Section 24.13 Homicide

• Library: Criminal Practice 2012 Supp

2. (§24.13) Homicide

The practice of treating the issue of lesser-included homicide offenses different than non-homicide offenses has its roots in the due process requirement, announced in Beck v. Alabama, 447 U.S. 625, 638 (1980), that the jury must have the option of convicting the defendant of a non-capital offense “if the unavailability of a lesser included offense instruction enhances the risk of an unwarranted conviction.” The Court recently clarified the doctrine, explaining that the due process clause does not require a trial court to submit a lesser offense that is not supported by the charge or the evidence. Reeves v. Neb., 524 U.S. 88 (1998).

Missouri continues to apply a stricter standard for the submission of lesser homicide offenses. This is largely because the difference between degrees of offenses involves often subtle distinctions in the defendant’s mental state. This is especially true on the question of first and second degree murder:

In most homicide cases, however, a defendant is entitled to a second degree instruction. State v. Mease, 842 S.W.2d 98, 112 (Mo. banc 1992), cert. denied, 508 U.S. 918, 113 S. Ct. 2363, 124 L. Ed. 2d 269 (1983). The difference between first and second degree murder is the element of deliberation. For a conviction of first degree murder, the state must prove beyond a reasonable doubt that the defendant deliberated when he caused the death of another. Section 565.020. Deliberation is a mental state and is difficult to prove through direct evidence. State v. Turner, 623 S.W.2d 4, 7 (Mo. banc 1981). “The mental elements establishing murder may be proved by indirect evidence and inferences reasonably drawn from the circumstances surrounding” the offense. Id. In most cases, indirect evidence of deliberation also supports a finding of lack of deliberation. A jury may draw different inferences from the facts on the issue of whether the defendant deliberated. State v. Stepter, 794 S.W.2d 649, 653 (Mo. banc 1990). Deliberation is, therefore, a question of fact for the jury and a second degree murder instruction is usually warranted.

State v. Santillan, 948 S.W.2d 574, 576 (Mo. banc 1997). In Santillan, the trial court refused to submit a second degree murder instruction to the jury even though it was requested by both parties. The state argued on appeal that, because Santillan claimed that he did not participate in the offense, there was no issue as to the degree of the offense. The Court rejected that argument...