§ 31.10 CRIMINAL HOMICIDE: MODEL PENAL CODE

• Jurisdiction: North Carolina

§ 31.10. Criminal Homicide: Model Penal Code²⁷⁸

[A] In General

A person is guilty of criminal homicide under the Model Code if she unjustifiably and inexcusably takes the life of another human being²⁷⁹ purposely knowingly, recklessly, or negligently.²⁸⁰ Unlike the common law, the death need not occur within a year and a day of the homicidal act.²⁸¹ The Code recognizes three forms of criminal homicide: murder, manslaughter, and (unlike the common law) negligent homicide.

[B] Murder

A criminal homicide constitutes murder when the actor unjustifiably, inexcusably, and in the absence of a mitigating circumstance, kills another: (1) purposely or knowingly; or (2) recklessly, under circumstances manifesting extreme indifference to the value of human life.²⁸² Thus, if one applies common law terminology, a homicide is murder (defenses aside) if the actor intentionally takes a life, or if she acts with extreme recklessness (i.e., essentially depraved-heart murder).

There are no degrees of murder under the Code. However, the offense of murder is graded as a felony of the first degree,²⁸³ which carries a maximum sentence of death²⁸⁴ or life imprisonment.

The Model Penal Code definition of murder abandons the common law element of malice aforethought. As such, the common law mental state of "intent to commit grievous bodily injury"—one form of malice—has no independent significance under the Code. Any case involving this state of mind could constitute extreme recklessness (i.e., murder) or a lesser form of unintentional homicide (i.e., reckless manslaughter or negligent homicide).²⁸⁵

The Code's approach to felony-murder is more complicated. The drafters of the Code were opposed in principle to the doctrine, but they considered it politically unfeasible to abolish the rule. Therefore, the Code provides that extreme recklessness (and, thus, murder) is non-conclusively presumed if the homicide occurs while the actor is engaged in, or is an accomplice in, the commission or attempted commission of, or flight from, one of the dangerous felonies specified in the statute.²⁸⁶ For example, under this provision, if D unintentionally kills V during the commission of a robbery, the jury should be instructed that it may, but need not, infer extreme recklessness from commission of the crime.²⁸⁷ If the felony was not committed in a manner that manifested an extreme indifference to the value of human life, the felon is not guilty of murder for the resulting homicide.

[C] Manslaughter

[1] In General

A person is guilty of manslaughter if she: (1) recklessly kills another; or (2) kills another person under circumstances that would ordinarily constitute murder, but which homicide is committed as the result of "extreme mental or emotional disturbance" for which there is a "reasonable explanation or excuse."²⁸⁸ These forms of manslaughter are discussed below. The Code does not recognize any form of criminal homicide based on the unlawful-act (misdemeanor-manslaughter) rule.

Manslaughter is a felony of the second degree.

[2] Reckless Homicide

A person who kills another recklessly is guilty of manslaughter. It should be observed, however, that a homicide committed recklessly may also constitute murder under the Model Penal Code. The difference between the two offenses is that, in the case of murder, the recklessness must manifest extreme indifference to the value of human life.²⁸⁹ This feature is not included in the definition of manslaughter. Thus, the difference between reckless murder and reckless manslaughter is "a kind of culpability that differs in degree but not in kind."²⁹⁰

It follows from this that reckless manslaughter is a necessarily included lesser offense of reckless murder.²⁹¹ That is, in any case in which a defendant is prosecuted for reckless murder, she is entitled to a jury instruction regarding reckless manslaughter, and may be convicted of the lesser offense if the jury determines that her conscious risk-taking, although unjustifiable and substantial, was not extreme enough to merit treatment as murder.

In a sharp departure from the common law, liability for manslaughter under the Code cannot be founded on criminal negligence. The drafters of the Code believed that no person should be convicted of an offense as serious as manslaughter in the absence of subjective fault, e.g., conscious disregard of a substantial and unjustifiable risk.

[3] Extreme Mental or Emotional Disturbance²⁹²

[a] In General

A person who would be guilty of murder because she purposely or knowingly took a human life, or because she killed a person recklessly under circumstances manifesting an extreme indifference to the value of human life, is guilty of the lesser offense of manslaughter if she killed the victim while suffering from an "extreme mental or emotional disturbance" (EMED) for which there is "reasonable explanation or excuse." The reasonableness of the explanation or excuse regarding the EMED is "determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be."

The Model Penal Code provides that the defendant has the burden of producing evidence regarding this affirmative defense, after which the prosecution must disprove the defense beyond a reasonable doubt.²⁹³ However, most states that have adopted this provision of the Code require the defendant to prove the affirmative defense by a preponderance of the...