T.P.I. -- CRIM. 7.02

 FIRST DEGREE MURDER (KILLING OF A CHILD LESS THAN SIXTEEN (16) YEARS OF AGE)

(FOR OFFENSES COMMITTED PRIOR TO JULY 1, 1995)

            Any person who commits the offense of first degree murder is guilty of a crime.

            For you to find the defendant guilty of this offense, the state must have proven beyond a reasonable doubt the existence of the following essential elements:1

            (1)  that the defendant unlawfully killed the alleged victim;

 and

            (2)  that the alleged victim was a child less than sixteen (16) years of age;

and

            (3)  that the death of the alleged victim resulted from aggravated child

                  abuse committed by the defendant against the child;

and

            (5)  that the defendant acted recklessly.

            "Recklessly" means that a person acts recklessly with respect to circumstances surrounding the conduct, or the result of the conduct, when the person is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.  The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the accused person's standpoint.2

            [The requirement of "recklessly" is also established if it is shown that the defendant acted knowingly or intentionally.]3

            "Knowingly" means that a person acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist.  A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result.4

            "Intentionally" means that a person acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result.5

            "Aggravated child abuse" means:  Any person who knowingly, other than by accidental means, treats a child under eighteen (18) years of age in such a manner as to inflict injury or neglects such as to adversely affect the child's health and welfare;

and

            (1)  the act of abuse results in serious bodily injury to the child;

or

            (2)  a deadly weapon is used to accomplish the act of abuse.6

            ["Serious bodily injury" means bodily injury which involves a substantial risk of death; protracted unconsciousness; extreme physical pain; protracted or obvious disfigurement; or protracted loss or substantial impairment of a function of a bodily member, organ or mental faculty.]7


            ["Deadly weapon" means a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.]8

            If you find from the proof beyond a reasonable doubt that the defendant is guilty of murder in the first degree, you will so report and your verdict in that event shall be "We, the Jury, find the defendant guilty of murder in the first degree".

            [If you so find, then it shall be your duty after a separate sentencing hearing to determine whether the defendant will be sentenced to death, life imprisonment without the possibility of parole, or life in prison, but you will not consider punishment for this offense at this time.]

FOOTNOTES

  1.  Tenn. Code Ann. § 39-13-202(a)(4) (effective July 1, 1994).

  2.  Tenn. Code Ann. § 39-11-106(a)(31).

  3.  Tenn. Code Ann. § 39-11-301(a)(2).

  4.  Tenn. Code Ann. § 39-11-106(a)(18).

  5.  Tenn. Code Ann. § 39-11-106(a)(20).

  6.  Tenn. Code Ann. § 39-15-402.  See T.P.I. -- CRIM. 21.01, Aggravated Child             Abuse.

  7.  Tenn. Code Ann. § 39-11-106(a)(33).  Some trial judges are of the opinion

       that the definition of "bodily injury", Tenn. Code Ann. § 39-11-106(a)(2),

       should be given in connection with the definition of "serious bodily injury".

  8.  Tenn. Code Ann. § 39-11-106(a)(5).

COMMENTS


            1.  A person convicted of murder in the first degree shall be punished by death, by life without the possibility of parole or by imprisonment for life.  Tenn. Code Ann. § 39-13-202(b).   For the instruction concerning sentencing for this offense, see T.P.I. -- CRIM. 7.04(a) (Fixing Punishment of Death or life imprisonment or life imprisonment without possibility of parole) or T.P.I. -- CRIM. 7.04(b) (Fixing Punishment of life imprisonment or life imprisonment without possibility of parole).

            2.   A violation of Tenn. Code Ann. § 39-15-401, child abuse and neglect, may be a lesser included offense of first degree murder.  Tenn. Code Ann. § 39-15-401(d).

            3.  The age of the alleged victim for applicability of this statute was changed from less than thirteen (13)  years to less than sixteen (16) years of age, effective July 1, 1994.  See  Public Acts of 1994, Chapter 883.

            4.  For first degree murder committing in the perpetration of aggravated child abuse committed on or after July 1, 1995, see T.P.I. -- CRIM. 7.03(b) (First degree murder (killing in perpetration of other crimes).