Murder by premeditation.

• Author: Pauley, Matthew A.

1. INTRODUCTION

   Murder began as a common law crime. In Anglo-American legal history, murder was first defined, and made a crime, by judges. Judges did not divide murder into degrees, however. That was done by legislatures. It is to legislatures, then, that we owe the now all too familiar term premeditation, which is often today the dividing line between degrees of murder.(1)

   In pre-Revolutionary America, William Penn insisted that premeditation be the word used to describe the most culpable murders. Under Penn's guidance, and mindful of the fact that English judges had required the death penalty for planned murder--murder with "malice prepensed," the old English equivalent of premeditated murder--as far back as the 1500s, the Pennsylvania legislature revised the law of homicide in 1682 and 1683, restricting the death penalty to willful or premeditated murder. A Pennsylvania Supreme Court Justice said, at the time, capital punishment should be reserved for deliberate, premeditated assassinations.(2)

   By 1794, a Pennsylvania statute provided that "all murder, which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, premeditated, and deliberate killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, or burglary shall be deemed murder in the first degree; and all other kinds of murder shall be deemed murder in the second degree."(3) In time it became clear that Pennsylvania would allow the death penalty only for willful, premeditated, and deliberate murders.(4)

   Soon, many states copied the Pennsylvania premeditation/deliberation distinction.(5) Today, in England and in a minority of American states, there is no differentiation of murder into degrees.(6) But, in most American states, there are degrees of murder,(7) and premeditation remains a very common dividing line between murders of the first and second degree.(8) For example,, in Virginia, premeditation and deliberation are what makes first degree murder distinct from second degree murder, and premeditation is also required for capital murder.(9) The New Mexico murder statute also uses the term "willful, premeditated, and deliberate" to distinguish first and second degree intentional murder.(10)

   It is important to remember that these terms--premeditated, willful, and deliberate--often mean the difference between the death penalty and prison, or between very long and much shorter prison terms.(11) For instance, in Virginia, premeditation and deliberation determine whether the defendant will get five to twenty years in prison for second degree murder or, possibly, the death penalty for capital murder.(12) In New Mexico, an intentional murder which is also willful, premeditated, and deliberate is first degree murder and subject to punishment ranging from a minimum of thirty years without parole to the death penalty; by contrast, second degree murder is punishable by a maximum of nine years in prison.(13) In short, premeditation matters.

   In Parts II and III of this Article, I will carefully review the two primary approaches to the meaning of premeditation, offering an in-depth analysis of one case to illustrate each approach.(14) In Part V, I will discuss problems inherent in the term premeditation. In Part VI, I will very briefly review some alternatives to the premeditation/deliberation distinction for degrees of murder and consider some suggestions for future legislative reforms that might permit courts and juries better to separate the most heinous murders from all other murders.

2. THE CARROLL APPROACH TO PREMEDITATION

   1. The Carroll Case

      In Commonwealth v. Carroll,(15) the defendant was convicted, after a bench trial, of first degree murder of his wife and sentenced to life imprisonment.(16) He appealed, contending that the evidence sustained a conviction no higher than murder in the second degree.(17) The Supreme Court of Pennsylvania affirmed his conviction and sentence, ruling that there was sufficient evidence for the trial judge to have concluded that there was premeditation and that the crime was therefore first degree murder.(18)

      The defendant in Carroll had been in the United States Army, and had a good reputation among his neighbors and acquaintances.(19) His wife, by contrast, had been diagnosed and treated for a schizoid-personality mental disorder--a condition apparently caused, in part, by a fractured skull, which she had suffered when attempting to leave the defendant's car during an argument four years before the killing.(20) There was also evidence that the wife sometimes subjected the couple's small children to "sadistic `discipline.'"(21)

      In January 1962, at his wife's suggestion and request, Carroll put a loaded .22 caliber pistol on the window sill at the head of their common bed so she would feel safe while he was away for a week attending an electronics class.(22) On the night of the killing, the defendant returned home and informed his wife that he had been assigned to teach at a school in another city, thus requiring him to be out of the house four nights a week for over two months.(23) This led to a violent and lengthy argument, which continued in bed until four in the morning, Carroll said.(24)

      The defendant's statement to police after arrest described the events leading up to the killing:

      We went into the bedroom a little before 3 o'clock ... where we continued to argue in short bursts.... She laid with her back to me facing the wall in bed and would just talk over her shoulder to me. I became angry and more angry especially [at] what she was saying about my kids and myself, and sometime between 3 and 4 o'clock in the morning I remembered the gun on the window sill over my head. I think she had dozed off. I reached up and grabbed the pistol and brought it down and shot her twice in the back of the head.(25) At trial, the defendant gave a slightly different account:

      I wanted to help my boys.... I thought of the gun, just thought of the gun. I am not sure whether I felt my hand move toward the gun--I saw my hand move ... I saw the gun in my hand just pointed at my wife's head. She was still lying on her back, I mean her side. I could smell the gunpowder and I could hear something--it sounded like running water. I didn't know what it was; at first, didn't realize what I'd done at first. Then I smelled it. I smelled blood before.(26) On direct examination, the defense attorney asked the defendant if he had been "fully aware" and if he had intended to shoot his wife.(27) The defendant responded by saying that all he could remember was "hearing two shots and feeling myself go cold all of a sudden."(28) On cross examination, the defendant admitted that about five minutes elapsed between his wife's last remark and the shooting.(29)

      The prosecution introduced evidence that, after the killing, the defendant wrapped the body in a blanket and sheets, and later disposed of it near a trash dump. He also tried to clean up at home and took his children to his parents' house.(30)

      The defense relied on an expert witness, a psychiatrist who testified that this was "an impulsive automatic reflex type of homicide."(31) The psychiatrist testified that if the gun had fallen on the floor, the defendant would not have been able to pick it up. The psychiatrist added that if the gun had not been loaded, the defendant would not have been able to load it.(32)

      Under the Pennsylvania murder statute at issue in Carroll, first degree murder included killings by poison, lying in wait, "or any other kind of willful, deliberate, and premeditated killing."(33) The defendant made two arguments on appeal: first, he contended that the psychiatrist's evidence proved that it was legally impossible for him to have premeditated the crime.(34) The appeals court rejected this argument summarily, noting that a factfinder does not have to believe testimony of a defendant or any of his witnesses, especially if the witness's expert opinion seems in large measure to be based on statements made to him by the defendant.(35) The defendant, the court said, was condemned by his own words. He admitted that he "remembered the gun, deliberately took it down, and deliberately fired two shots into the head of his sleeping wife."(36)

      Fundamental to this part of the court's opinion in Carroll is a reluctance to abdicate judicial responsibility to psychiatrists. There are, of course, many other areas of criminal law where such reluctance manifests itself. In the law of insanity, for instance, courts frequently insist that insanity is a legal term, not a medical one.(37) In Carroll, the court emphasized the danger of accepting the psychiatrist's opinion that blind rage or emotional impulse should excuse the defendant's act: "Society would be almost completely unprotected from criminals if the law permitted a blind or irresistible impulse or inability to control one's self, to excuse or justify a murder or to reduce it from first degree to second degree."(38)

      The defendant's second argument on appeal was that there was simply not enough time for him to have premeditated this crime. In Commonwealth v. Drum,(39) the court had said that "no time is too short for a wicked man to frame in his mind the scheme of murder."(40) Carroll argued that, if no time is too short for a wicked man, a long time is necessary for a man of good reputation, like himself, to premeditate.(41)

      The court did not accept this argument, quoting instead from Commonwealth v. Earnest.(42) "Whether the intention to kill and the killing, that is the premeditation and the fatal act, were within a brief space of time or a long space of time is immaterial if the killing was in fact intentional, willful, deliberate, and premeditated."(43) The defendant was making a "jury argument," the court said. The facts of the case, including the time element, did not negate premeditation as a matter of law.

   2. Interpreting Carroll

      What is...