T.P.I. -- CRIM. 7.03(a)

FIRST DEGREE MURDER

(KILLING IN PERPETRATION OF OTHER CRIMES)

(FOR OFFENSES COMMITTED PRIOR TO JULY 1, 1995)

            Any person who commits 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 killing was committed in the perpetration of or the attempt² to

                   perpetrate the alleged _____________; that is, that the killing was

                                                               (name crime)

                   closely connected to the alleged _____________ and was not

                                                                                (name crime)

                   a separate, distinct and independent event;

 and

            (3)  that the defendant intended to commit the alleged ______________;

                                                                                                               (name crime)

 and

            (4)  that the defendant acted recklessly.

                   [Include here the elements of the alleged crime(s).]³

            The intent to commit the underlying felony must exist prior to or concurrent with the commission of the act causing the death of the victim.  Proof that such intent to commit the underlying felony existed before, or concurrent with, the act of killing is a question of fact to be decided by the jury after consideration of all the facts and circumstances.4 

            "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.5

            The requirement of "recklessly" is also established if it is shown that the defendant acted intentionally or knowingly.6

            "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.7      

            "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.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)(2) and (3).

 2.  The trial judge may wish to charge Criminal Attempt in appropriate fact

      situations.  See T.P.I. -- CRIM. 4.01 (Criminal Attempt).

 3.  The trial should use the appropriate jury instruction for the offense alleged.

      There is no statutory provision for aircraft piracy or the unlawful throwing,

      placing or discharging of a disruptive device or bomb.  For aircraft piracy, the

      trial judge should consult the appropriate federal statute:

"[A]ircraft piracy" means seizing or exercising control, of an aircraft in the special aircraft jurisdiction of the United States by force, violence, threat of force or violence, or any form of intimidation, and with wrongful intent,49 U.S.C.A. - 46502(a)(1)(A). See also 49 U.S.C.A. - 46502(b), defining aircraft piracy outside the special  aircraft jurisdiction of the United States.

       Though there is not a statutory definition of unlawful throwing, placing or

       discharging a destructive device or bomb, the trial judge may want to refer

        to the offense of reckless endangerment, which is defined as the criminal

        offense committed by any person who recklessly engages in conduct

        which places or may place another person in imminent danger or death or

        serious bodily injury.  Tenn. Code Ann. § 39-13-103(a).

4.  State v. Buggs,995 S.W.2d 102, 107 (Tenn. 1999).

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

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

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

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

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(c).   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 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.  For offense committed on or after July 1, 1995, see T.P.I. -- CRIM. 7.03(b) (First degree murder (killing in perpetration of other crimes).