T.P.I. -- CRIM. 7.05(b)

SECOND DEGREE MURDER (Drugs as Proximate Cause)

            Any person who commits second 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 distributed  ____________, a [Schedule

                                                                                             (name drug) 

                   I] [Schedule II] drug;

 and

            (2)  that said drug was the proximate cause of the death of the user;

and

            (3)  that the defendant acted either intentionally, knowingly or recklessly.²

            A "proximate cause" of the result is a cause which occurs or concurs with another and which, in natural and continuous sequence, produces the result, and without which the result would not have occurred.³

            "Distribute" means to deliver other than by administering or dispensing a controlled substance.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 

            "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.⁶

            [The requirement of "knowingly" is also established if it is shown that the defendant acted intentionally.]⁷

            ["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.]⁸ 

FOOTNOTES

  1.  Tenn. Code Ann. § 39-13-210(a)(2).

  2.  Tenn. Code Ann. § 39-11-301(b) and (c) and accompanying Sentencing

       Commission Comment.

  3.  The definition of "proximate cause" is based upon the definition of

       "proximate result", as set forth in T.P.I. -- CRIM. 7.08(a) (Vehicular Homicide          (reckless conduct).

  4.  Tenn. Code Ann. § 39-17-402(a)(9).  For definitions of "administer" and

       "dispense", see Tenn. Code Ann. § 39-17-402(a)(1) and Tenn. Code Ann.

       § 39-17-402(a)(7), respectively.

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

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

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

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

COMMENTS

            1.  Second degree murder is a Class A felony.  Tenn. Code Ann. § 39-13-210(b).

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

      3.  If the definition of an offense within Title 39 does not plainly dispense with a mental element, intent, knowledge or recklessness suffices to establish the culpable mental state.  Tenn. Code Ann. § 39-11-301(c).  The Committee is of the opinion that the definitions of "intentionally", "knowingly", and "recklessly" should all be charged for this offense. Further, the Committee feels that second degree murder involving drugs as the proximate cause of death may not be a result-of-conduct offense. Therefore, this instruction retains the statutory definitions of “intentionally,” “knowingly,” and “recklessly” rather than the definitions suggested in State v. Page, ___S.W.3d___; No. M2001-01853-CCA-R3-CD (Tenn. Crim. App. April 16, 2002).