FIRST DEGREE MURDER

When someone faces a first degree murder pursuant to ARS 13-1105, they face the most serious crime possible. Under Arizona law, first degree is punishable by death. For those facing these most serious of homicide charges, having an experienced homicide attorney in their corner is a must.

What is First Degree Murder?

First degree murder is the most serious type of homicide charge you can face. Under Arizona law, ARS 13-1105, a person can be charged with three different types of first degree murder:

1. Premeditated Murder
2. Felony Murder
3. Murder of a Law Enforcement Officer

1. Premeditated Murder

Defined. The crime of premeditated murder requires the prosecution prove that:

• You caused the death of another person; and
• You intended or knew that you would cause the death of another person; and
• You acted with premeditation.

“Premeditation” means that you intended to or knew you would kill another person and you thought about your decision to kill before the actual killing. It is this thought or reflection on your decision to kill, regardless of the amount of time involved, that raises a murder from second degree murder to first degree murder.

The passage of time is not, in and of itself, premeditation—there has to be actual reflection on your decision to kill. But the time you thought on your decision to kill does not have to be long to establish premeditation. And the amount of time between when you formed your intent to kill and the actual killing may be very short.

Examples:

Premeditation is easier to prove when there is evidence such as:

• an agreement to kill a person; or
• the purchase of items used to kill another person not long before the killing took place; or
• a husband who killed his wife after she had filed for a divorce was overheard by neighbors a few days ago threatening his wife, “If you divorce me, I will kill you” as he was moving out of their home.

Premeditation is harder to prove but can still be established in situations that escalate very quickly:

• For example, a wife and husband get into an argument at home. The argument does not last long before the husband shoots and kills his wife.

Depending on the evidence, the husband could be found guilty of Manslaughter because maybe he shot his wife as a result of a sudden quarrel of heat of passion.

But let’s say there is additional evidence from another family member who was there. In the minutes before shooting his wife, the husband grabbed her phone as she tried to call for help. Then as she tried to run out the door for help, he caught her and threw her down on the ground and locked the door behind them and fired two shots killing her.

These actions can be used to show that the husband intended to kill his wife and actually thought about it before shooting her. The husband could then be found guilty of Premeditated first degree murder.

2. Felony Murder

Defined. Felony murder is committed when a person dies while you are committing another felony crime. The specific felony offenses that qualify you for Felony Murder are listed in the law in A.R.S. § 13-1105(A)(2). So, the crime of Felony Murder requires the prosecutor prove that:

1. You committed or attempted to commit one of the listed felony offenses:

• • Burglary in the third, second, or first degree – A.R.S. §§ 13-1506, 13-1507, or 13-1508
  • Robbery – A.R.S. § 13-1902
  • Aggravated robbery – A.R.S. § 13-1903
  • Armed robbery – A.R.S. § 13-1904
  • Sale or transportation of marijuana (involving statutory threshold amounts) – A.R.S. § 13-3405(A)(4)
  • Manufacture of a dangerous drug – A.R.S. § 13-3407(A)(4)
  • Sale or transportation of a dangerous drug (involving statutory threshold amounts)– A.R.S. § 13-3407(A)(7)
  • Sale or transportation of a narcotic drug (involving statutory threshold amounts) – A.R.S. § 13-3408(A)(7)
  • Involving or using minors in drug offenses – A.R.S. § 13-3409
  • Kidnapping – A.R.S. § 13-1304
  • Child abuse (intentional or knowing) – A.R.S. § 13-3623(A)(1)
  • Sexual conduct with a minor – A.R.S. § 13-1405
  • Sexual assault – A.R.S. § 13-1406
  • Molestation of a child – A.R.S. § 13-1410
  • Terrorism – A.R.S. § 13-2308.01
  • Arson – A.R.S. §§ 13-1703 or 13-1704
  • Escape in the second or first degree – A.R.S. § 13-2503 or 13-2504
  • Drive by shooting – A.R.S. § 13-1209
  • Unlawful flight from a pursuing law enforcement vehicle – A.R.S. § 28-622.01

and;

2. In the course of and in furtherance of this crime or immediate flight from this crime, you or another person caused the death of any person.

Felony Murder – No Need for Intent to Cause Death

You do not have to intend to cause the death of another person to be charged with Felony Murder. The death could be a complete accident, as long as the death occurred in the course of and in the furtherance of the other felony crime (or while immediately fleeing from the other felony crime).

Examples:

• Drug Sale. Two people meet up to sell and buy drugs. One person agrees to bring the drugs and the other person agrees to bring cash to buy the drugs. The person bringing the drugs, however, does not intend to hand over the drugs. Instead, he plans to rob the person bringing cash when they meet. He brings a gun that he uses to threaten the other man with to rob him. But the robbery goes wrong and he ends up shooting and killing the other man. The shooter can be charged with felony murder.

If the shooter had intended to rob and kill the other man, then the prosecution could decide to charge him with both Felony Murder and Premeditated Murder.

• Unlawful flight. A person is riding a motorcycle when a marked police car tries to pull the motorcyclist over for speeding. The police car turns on its emergency lights and siren and gets behind the motorcyclist. But the motorcyclist does not pull over and thinks that she can outrun the police car and avoid getting a ticket. So, the motorcyclist picks up speed and tries to flee from the police car. As the motorcyclist does this, she runs a stop sign. Another car swerves to avoid hitting the motorcycle in the intersection but accidentally hits a pedestrian as a result. The pedestrian dies from being hit by the car. The motorcyclist faces a charge of Felony Murder.

Felony Murder – No Need to be Direct Cause of Death

Also, you do not even have to be the person who directly caused the death to be charged with Felony Murder. You are held responsible for any deaths that occur in the course of and in the furtherance of the other felony crime (or while immediately fleeing from the other felony crime).

Example:

Three men decide to rob a bank. Immediately after robbing the bank, they jump into their car and flee from the scene. Police chase after them and the robbers start shooting at the police car. The police fire back and an officer shoots and kills one of the bank robbers. The other two bank robbers can be charged with Felony Murder for the death of the third bank robber.

3. Murder of a Law Enforcement Officer

Defined. The crime of first degree murder of a law enforcement officer requires the prosecution prove that:

1. You engaged in conduct intending or knowing that the conduct would cause the death of a person, who you know is a law enforcement officer; and
2. The law enforcement officer was in the line of duty.

The elements in this crime are pretty straightforward. Of significance is that the prosecution does not have to prove premeditation. So, for example, if a person shoots and kills an officer during a routine traffic stop, then that person faces a charge of first degree murder of a law enforcement officer. The prosecution does not have to prove that the shooter thought about the decision to kill the officer before killing the officer.

Attempted First Degree Murder

Attempted First Degree Murder is when a person, with the intent to actually commit the murder, takes a step to commit the murder, but ultimately fails to commit the murder.

• A wife who hires a hitman to murder her husband. The hitman gets cold feet and calls the police. Even though the husband was never even physically harmed, the wife faces a charge of Attempted first degree murder.

Attempt drops the felony category from a Class 1 Felony to a Class 2 Felony.

First Degree Murders Sentence

First Degree Murder is a Class 1 Felony.

For crimes committed before August 2, 2012:

All three types of first degree murder (Premeditated Murder, Felony Murder, and Murder of a Law Enforcement Officer) are punishable by:

• Death; or
• Life Imprisonment; or
• Natural Life Imprisonment.

For crimes committed on or after August 2, 2012:

Premeditated Murder and Murder of a Law Enforcement Officer are punishable by:

• Death; or
• Natural Life Imprisonment.
• Life Imprisonment is not an option.

Felony Murder is still punishable by:

• Death; or
• Life Imprisonment; or
• Natural Life Imprisonment.

Life Imprisonment

Life imprisonment means that a person is sentenced to prison to life with the possibility of release after 25 (or 35 years, if the victim was under 15 years of age or was an unborn child).

• But this does not include parole. Parole is not currently available as a type of release for life imprisonment.
• The defendant’s only option is to petition the Board of Executive Clemency for release. If the Board recommends to the Governor that the defendant should be released, then the Governor would make the final decision regarding whether the defendant would be released.

Natural Life Imprisonment

Natural life imprisonment means that a person is sentenced to prison without the possibility of release. It means that the person will never be eligible to be released from prison for any reason for the rest of the person’s life.

Death

For a person to be sentenced to death in Arizona, the prosecution has to file a notice of intent to seek the death penalty.

• Then a jury has to find the person guilty of first degree murder at the first phase of trial—called the guilt phase. If found guilty, then the second phase of trial—called the aggravation phase—takes place.
• During the aggravation phase of trial, the jury has to find that the prosecution has proven at least one alleged aggravating circumstance. Aggravating circumstances are factors listed in Arizona law, A.R.S. § 13-751, that make a first degree murder offense eligible for the death penalty. Common alleged aggravating circumstances include: the crime was committed in an especially cruel way; the crime was committed in an especially heinous or depraved way; the defendant has prior convictions for serious offenses; or the victim was under 15 years of age.
• If the jury finds at least one aggravating circumstance (even if it is the one and only aggravating circumstance alleged by the prosecution), then trial goes on to the third and final stage—called the penalty phase. This is when the jury decides whether to sentence the defendant to death of life imprisonment (the judge decides whether it is life or natural life imprisonment).

During the penalty phase, evidence of any mitigating circumstances is presented to the jury. Mitigating circumstances are any factors that are a basis for a life sentence instead of a death sentence, so long as they relate to any sympathetic or other aspect of the defendant’s character, propensity, history or record, or circumstances of the offense. They are not an excuse or justification for the offense but are factors that in fairness or mercy may reduce the defendant’s moral culpability.

Mitigating circumstances may be found from any evidence presented during all of the phases of trial and come from either the defendant’s evidence of the prosecution’s evidence. Common mitigating circumstances include the defendant’s mental health issues that made his ability to appreciate the wrongfulness of his actions (but not in a way that it constitutes a defense to prosecution); the defendant’s horrendous childhood or upbringing; or a defendant’s young age.

If the jury unanimously agrees there is mitigation sufficiently substantial to call for leniency, then they must return a verdict of life. If the jury unanimously agree there is no mitigation, or the mitigation is not sufficiently substantial to call for leniency, then they must return a verdict of death.

Attempted First Degree Murder

Attempt drops the crime down to a Class 2 Felony. For Attempted First Degree Murder, you will typically face a minimum sentence of 7 years in prison and a maximum sentence of 21 years in prison.

Defenses to First Degree Murder

The type of defense to raise depends on the way a person has been charged with First Degree Murder and the specific facts of the person’s case. Possible defenses, however, include the following:

• Unreliable Investigation and Evidence. This involves attacking the quality of the police’s investigation and the reliability of the evidence used against you. Your attorney will help you decide whether an independent defense expert should be hired to evaluate and fight the prosecution’s evidence. Examples of the types of evidence you can attack include:
  • Crime scene – Did the police get all necessary search warrants? Did the police follow a proper system for searching for physical evidence? Was relevant evidence overlooked? Why were only some items tested and not others? What photos were taken? Was evidence properly packaged and stored? Was any evidence lost or destroyed?
  • Forensic pathology – What did the State’s medical examiner conclude? Did the medical examiner follow proper methods? Did the medical examiner fail to consider important evidence? Is the time of death accurate?
  • Forensic serology – Serology is a general term for the various laboratory tests that use specific antigen and serum antibody reactions to examine blood. How did the prosecution determine whether a substance was blood? How did they determine whether it was human blood? How did they link the blood to you? Were proper methods used?
  • DNA evidence – Was the DNA evidence contaminated during the collection process? What kind of DNA-typing procedure did the prosecution use—STR analysis or mitochondrial DNA typing? Mitochondrial DNA typing does not have the same discrimination power as STR analysis.
  • Fingerprints – Did the police’s crime technicians properly locate and develop latent (invisible) fingerprints? Were the developed prints properly preserved? Were the prints enhanced digitally before analysis? Did the analyst follow the correct methods and procedures?Broken glass – Did police use broken and shattered glass to place you at the scene? Did they use an expert to make any glass comparisons? Was the composition of the glass (e.g., tempered glass vs laminated glass) considered? How did they measure and compare the glass density or refractive index?
  • Ballistics evidence – Did the police perform accurate comparisons of bullet markings or cartridges? Did police properly look for gunpowder residue on the appropriate people and their clothing?
  • Computer forensics – Did the police properly preserve, acquire, extract, analyze, and interpret any computer data used against you? Did multiple people have access to the same computer?
• Self-Defense. Deadly physical force may be used to protect yourself against another person’s use, attempted use, or threatened use of deadly physical force against you.
• Defense of a Third Person. Like self-defense, deadly physical force may be used to protect a third person from another person’s use or threatened use of deadly physical force.
• Crime Prevention. Deadly physical force may be used against another person if you reasonably believe that deadly physical force was immediately necessary to prevent another person from committing any of the listed crimes in A.R.S. § 13-411(A). Some examples of these listed crimes are murder, kidnapping, armed robbery, and sexual assault.
• No Motive. The prosecution does not have to prove motive, but they often try to use motive against you. If you had no motive, then this can be used to show that you did not commit the crime.
• Mistaken Identity. Mistaken identity can take many forms. However, if the prosecution names you as the defendant based on eyewitness identification, then you will want to look into attacking the eyewitness’s testimony. Eyewitness testimony has been shown to be one of the most unreliable types of evidence. Other times a suggestive photo lineup can be used to identify you which leads to mistaken identity issues.
• Mere Presence. If you were just present when a crime was being committed, even if you knew that a crime was being committed, then you should raise a mere presence defense. If you were merely present at the crime scene, then you did not have any criminal intent and did not take part in the crime.
• Alibi. An alibi defense is when you have evidence that you were somewhere else when the murder took place. Therefore, you could not have committed the murder.
• Third Party Culpability. This defense is similar to an alibi defense, except that you have evidence to connect someone else (a third party) to the murder. You could also have both an alibi and third-party culpability defense depending on the facts.
• No Premeditation. This is when you attack the prosecution’s evidence of premeditation in order to invalidate an element necessary to prove first degree murder.
• No actual reflection . Maybe the prosecution is only relying on the passage of time with no evidence that you actually thought about a decision to kill. This is not enough to show premeditation. There has to be evidence of actual reflection.
• Character Trait for Impulsivity – Unless you are arguing a complete insanity defense, you are not allowed to argue that you suffered from a mental disorder that made it impossible for you to premeditate. But if you have the character trait of acting impulsively, then witness testimony of their observations of your tendency to act impulsively can be used to show that you did not act with premeditation. You can also present expert testimony of this character trait as it relates to your lack of premeditation.
• Attack the Underlying Felony. When you are charged with felony murder you should always attack the evidence that shows you committed the underlying felony. If the prosecution cannot show that you committed the underlying felony, then they cannot prove felony murder.
• Guilty Except Insane. This is when a defendant committed the murder, but their actions are excused due to mental illness. To prove a guilty except insane defense, the defendant has to show that, at the time the murder was committed, they had a mental illness that prevented them from knowing right from wrong. This is not a common defense because a lot of people suffer from mental illness but still know that it is wrong to kill someone. But when it applies to a case it is of utmost importance to hire the appropriate mental health expert and to provide all experts—both for the prosecution and the defense—with all pertinent biosocial and mental health records.

Defendants found guilty except insane are confined to a mental institution instead of prison.

SIDE NOTE: Guilty except insane in Arizona, it is an affirmative defense, meaning that the defendant has the burden to prove that the defendant was guilty except insane by clear and convincing evidence (meaning that it was highly probable the defendant was insane).

• Mitigation Evidence. This is evidence of any factors of you and your life that in fairness or mercy should spare you from the death penalty. As discussed above, mitigating circumstances include factors such as a defendant’s young age, mental illness, and biosocial history. In any first degree murder case, it is important to start preparing mitigation evidence as soon as possible. Depending on what the best strategy is for your case, you may want to submit mitigation evidence to the prosecution early on to convince the prosecution not to seek the death penalty in your case.

Phoenix Homicide Attorney

First Degree Murder is the most serious crime you can face in Arizona. The punishments are the harshest with life imprisonment or even death as a possibility. The Phoenix homicide Attorneys at Feldman & Royle have the experience and knowledge to give you the best possible defense. Call us as soon as possible for a free consultation to see how we can help protect you or your loved one.