Due to COVID-19, we are providing FREE consultations via PHONE or VIDEO conferencing for your safety and convenience. Please don't hesitate to call us if you have any questions! 877-462-3841

Justia Lawyer Rating
Best Lawyer
Super Lawyer - Top 100
Super Lawyer - Top 100
Best Lawyers
Avvo Rating 10.0
AV Preeminent
NACDA
The National Trial Lawyers
The Best Lawyers in America
Best Lawyers
CLEA
Advocates for Justice
Business North Carolina Legal Elite - 2021
DUI Defense
NBTA
*For additional information regarding the criterion for inclusion or membership for lawyer associations, awards, & certifications click image for link.

Criminal Law - Outline Part 4

By Collin B. Hardee

Download the PDF version of this outline

<< Part 3 | Part 5 >>

NC

1st Degree Murder

  1. WPD (Willful/Premeditated/Deliberate) – Specific Intent to murder; can use intoxication/Mistake of Fact
  2. Enumerated Felony Murder – act causes a death regardless of felony committed
    • In the perpetration or attempted perpetration of any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon
  3. Specialty – thermo nuclear, biological weapon, chemical weapon; POISON, Lying in Wait, Imprisonment, Starving, Torture

DEFENSES: Insanity, Mistaken ID, Self-Defense, Heat of Passion (mitigates to manslaughter)

2nd Degree Murder

  1. Extreme Recklessness (R++) – killing caused by dangerous conduct and the offender’s obvious lack of concern for human life
  2. SBI (Serious Bodily Injury) – intent to inflict serious bodily injury
  3. NO WPD – an intentional killing that is not premeditated or planned, nor committed in a reasonable “heat of passion”

DEFENSES: insanity, Self-Defense

MUST prove D realized that his conduct posed a risk to human life

Willful – purposeful

Premediated – to think about beforehand

Deliberated – weight the facets of a choice or problem – if you deliberate, you automatically premediate b/c deliberating takes time

Voluntary Manslaughter

  • Provocation – mitigates murder to voluntary manslaughter
  • Heat of Passion

MUST BE:

  1. More than mere words
  2. Adultery and killing must be severely proximate
    1. Mere suspicion, belief, or knowledge is not enough
  3. No rekindling or “last straw” situation
  4. Reasonable Person – jury decides if RP in D’s situation would have responded as D did
  5. Can be re-provoked after cooling-off period if provocation is continuous – D “snaps”

Involuntary Manslaughter

  1. Ordinary Recklessness
    1. Nature of risk (magnitude)
    2. Awareness of risk
    3. Justifiability of risk
    4. Degree of deviation from reasonable behavior
    5. Must Prove:
      1. Acted unlawfully
      2. Proximate Cause
  2. Criminal Negligence
    1. Killing resulting from gross negligence
    2. More than ordinary negligence

DEFENSE: no crime if w/o negligence or recklessness

MPC

MURDER

  1. Purposely – D’s conscious object to murder
  2. Knowingly – D was practically certain he’d murder
  3. Extreme Recklessness (R++) – D was reckless under circumstances manifesting extreme indifference to human life

Manslaughter

  1. Reckless – substantial unjustified awareness of gross deviation from reasonable law-abiding person
    1. Conscious disregard of known risk
  2. Extreme Mental or Emotional Disturbance – homicide committed under the influence of extreme mental or emotional disturbance (SUBJECTIVE) for which there is reasonable explanation or excuse (OBJECTIVE)
    1. Can be built up over time – allows cooling off period
    2. Victim doesn’t have to be source of stress
    3. Reasonable excuse
    4. From viewpoint of person in actor’s situation under circumstances as he believes them to be
    5. Words alone can be adequate

Negligent Homicide

  • Disregard of a risk that D should have been aware of
  • Substantial unjustifiable gross deviation from reasonable law-abiding person
Felony Murder Nuances C/L
  • one is guilty if he kills another person, even accidently, during the commission or attempted commission of a felony
  • causation limitation requires that the killing be in furtherance of the felony
  • No Felony Murder if person who commits the homicide is a non-felon who is resisting the felony
  • Proximate Causation Test – holds a felon responsible for the killing by a non-felon if the felon proximately caused the death / set in motion the events that lead to the death
  • Provocative Act Doctrine – D held responsible for the death of another at the hands of a third party, if the basis for the charge is founded on provocative act doctrine, which is simply a form of reckless homicide
    • Example: a felon recklessly provokes a victim to shoot in self-defense, killing an innocent bystander
NC

1st degree murder - if you have intent to commit felony, attributes that intent to intent for murder – if felony is one of the enumerated felonies, then the M is 1st degree; if not, then it is 2nd degree

Limitations

  1. Enumerated:
    1. Arson
    2. Rape – sex crimes
    3. Burglary
    4. Robbery
    5. Kidnapping
  2. Inherently Dangerous:
    1. In the ABSTRACT, does the felony carry a high risk of death?
    2. AS APPLIED: look at felony in the particular case
  3. Merger Rule: the felony that forms the basis of the felony murder charge, must be a felony independent of the murder – if underlying felony is integral part of murder, it will merge
    • a felony cannot be a predicate for felony murder unless the felony is legally distinct from the act of killing. In other words, if a felony by definition requires bodily harm or imminent threat of bodily harm, it can’t support felony-murder liability.
    • Prevents the felony-murder rule from turning virtually any attack that culminates in death into automatic murder
      • This is so as not to allow every assault to be elevated to felony murder – b/c lack mens rea
  4. Agency/In Furtherance of: felon is only responsible for homicides committed in furtherance of the felony
    1. Committed by felon, his agent, or someone under his control
    2. Police officer that killed another suspect did not count b/c the killing was against the felony
  5. Res Gestae: must be part of one continuous transaction
    1. Felony ends at break in chain of circumstances
MPC
  • Does not distinguish felony murder, but MPC raises a presumption of “recklessness and indifference to human life”; EXTREME RECKLESSNESS R++
  • If the D, during the commission or attempt of certain felonies
  • Gross recklessness during a felony can be a predicate for felony murder
    • Robbery
    • Rape
    • Deviate Sexual Intercourse by threat/force
    • Arson
    • Burglary
    • Kidnapping
    • Felonies escape
Theft Crimes Larceny – Interferes w/ Possession C/L and NC

Misdemeanor

  1. Trespassory taking
    1. Severance of good from the owner
    2. Not only move goods but have them in his possession, if only for a moment
  2. And carrying away
    1. 4-6 inches is enough – slightest movement AWAY is sufficient (shifting position w/o moving away is not enough)
    2. DOES NOT have to be removed from possessor’s premise
    3. ANY assumption of control by D, however brief, satisfies this element
  3. w/o consent of the possessor
    1. if possession was taken lawfully, w/ consent, generally embezzlement
  4. w/ intent to permanently deprive the possessor of the property
    1. NOT REAL PROPERTY (land)
  5. knowing that they (taker) weren’t entitled to it
    1. specific intent crime
    2. mere temporary taking under circumstances in which the possessor is likely to regain possession does NOT satisfy element
    3. MUST BE CONCURRENCE BETWEEN MENTAL STATE (INTENT TO TAKE) AND TAKING OF PROPERTY
    4. Continuing Trespass Doctrine – when a person wrongfully takes possession of property, he commits a new trespass every moment possession is retained – if the D later forms the intent to steal, concurrence is met and the crime can be larceny
    5. If believe the property is yours, taking it back, regardless if really is yours or not, is not larceny
    6. “tree falls on land and person who cut it drags it off – not larceny; person leaves then comes back – larceny”

Felony

  1. in addition to one of the following:
    1. over $1,000
    2. was from the Person
    3. committed during burglary, breaking/entering
    4. explosive/incendiary device
    5. firearm
    6. record/paper from NC State Archive
Client Reviews
★★★★★
I am so fortunate to have had Bill Powers on my case. Upon our first meeting, Bill insisted that through the emotions of anger, sadness, confusion, and betrayal that I remain resilient. He was available to answer questions with researched, logical, truthful answers throughout our two year stretch together. I went to any lengths for my case because he won my trust almost immediately... J.R.
★★★★★
My daughter had a second DUI and when it all seemed hopeless, Bill was able to get the charges dropped. This is a man who is extremely knowledgeable, yet still keeps his integrity which was impressive to me. He handles himself with dignity. If you hire him, you will have the best of the best, along with his expansive intellect and wisdom about the law. Lisa
★★★★★
Bill Powers’ staff has handled several traffic citations for me over the years, and they exceeded my expectations each and every time. Would highly recommend anyone faced with a traffic citation or court case contact his office and they will handle it from there. M.C.
★★★★★
Bill and his staff are flat out great. I (unfortunately) was a repeat customer after a string of tickets. These guys not only took care of the initial ticket for me, but went the extra mile and reduced my problems from 3 to just 1 (very minor one) on the same day I called back! I would recommend them to anyone. A.R.