SECOND DEGREE MURDER
Too often a tragic accident or one giant mistake can impact your entire life. If you or a loved one have been charged with second degree murder, then you should know that the state of Arizona will use any and all its resources to secure a conviction. Because a conviction for second degree murder brings substantial prison time you must be armed with information and a solid legal defense. In order to avoid the destruction that a conviction can bring, you should utilize the skills of an experienced homicide attorney in batting this serious homicide charge.
Second Degree Murder Defined
The crime of second degree murder is defined in A.R.S. § 13-1104 of Arizona law. There are different ways in which you can be convicted. To prove that you committed the crime, the prosecutor must show that:
- Without premeditation, you intentionally or knowingly killed another person; or
- Without premeditation, knowing that your actions will cause serious physical injury, you cause the death of another person; or
- Your reckless actions, which showed extreme indifference to human life and created a grave risk of death, caused the death of another person.
- Without premeditation. A person is driving his car in the city. He owns a gun and legally keeps it in his car for self-protection. While driving, another car cuts him off, and in the spur of the moment, he impulsively drives up to the car that cut him off and takes out his gun. He then shoots and kills the other driver. This person may be convicted of second degree murder because he did not make plans to kill the other driver, but he acted with the intent and understanding that his actions would kill this other person.
- Knowing will cause serious physical injury. With no good reason, a person aims and shoots a gun at another person in the leg and the person dies as a result. This person may be convicted of second degree murder. This is because even though the person did not intend to kill the other person by shooting the person’s leg, they knew that shooting a person would cause serious physical injury, but the person actually died from the injuries.
- Reckless extreme indifference to human life. Shooting a gun randomly into a crowded movie theatre that causes another person’s death is second degree murder. It is reckless behavior that shows extreme indifference to human life and creates a grave risk of death.
Understanding Second Degree Murder
If you or a loved one have been charged with second-degree murder then you may already know the challenge you are up against. The first step to defending the charges against you is to understand the crime of second degree murder and the defenses that may be available to your charge.
Second Degree Murder vs First Degree Murder
The difference between second degree murder and first degree murder is that there is no premeditation with second degree murder. This means that the prosecutor does not have to show that a person planned or thought about the killing in any way.
- In a road rage incident, instead of impulsively driving up to the other car that cut him off and shooting the other driver, let’s say that the person instead follows the other driver. He then follows the other car into a grocery store parking lot and watches as the other driver goes into the store. In the meantime, the person gets his gun ready with the intent to kill the other driver when he sees him come out of the store. As the other driver walks back to his car, the person shoots and kills him. This time, there was actual time during which the person thought about killing the other driver. So, his premeditation increases his charge from second degree murder to first degree murder.
Second Degree Murder vs Manslaughter
The difference between second degree murder and manslaughter can be explained by understanding two main differences:
Higher level of blame. To commit second degree murder, you have to have a higher level of blame in the way you were thinking when you caused the death of another person—what the law calls a “more culpable mental state.” While both second degree murder and manslaughter involve reckless behavior that causes a death, second degree murder charge goes beyond the reckless behavior in a manslaughter charge. There is the added factor of an “extreme indifference to human life” that created a “grave risk of death.”
- Example: Shooting a gun into a crowded concert venue involves the type of increased recklessness required for second degree murder. A person would exhibit “extreme indifference to human life” and must know that someone could be killed by their actions
No sudden quarrel or heat of passion. Also, if you intentionally or knowingly killed someone, but you did so as result of a sudden argument or being in the heat of passion, then you have committed Manslaughter, not second degree murder.
- Example: A wife comes home to discover her husband cheating on her. So, in the heat of passion, she impulsively gets the gun out of their nightstand, shoots, and kills her husband. She acted without premeditation and intended to or knowingly killed her husband. But because she acted in the heat of passion, she should be convicted of Manslaughter, not second degree murder.
Second Degree Vehicular Homicide
Many reckless second degree murder charges are actually second degree vehicular homicide charges.
- Example: A city bus driver drives a bus packed with people during rush hour while the bus driver has a blood alcohol concentration three times the legal limit. Because the bus driver is so intoxicated, he crashes the bus and several of the passengers on board die as a result. The bus driver may be charged with Second Degree Murder.
Sentencing for Second Degree Murder
Second Degree Murder is a Class 1 Felony.
If convicted, sentencing for second degree murder in Arizona requires that you face a minimum sentence of 10 years in prison and a maximum sentence of 25 years in prison.
Specific to sentencing for Second Degree Murder, Arizona law calls these years in prison “calendar years.” This means that the prison time that you are sentenced to is “flat” prison time—you are not eligible for parole or any other type of release from prison if you are sentenced for Second Degree Murder.
SIDE NOTE: Many online resources state that the maximum sentencing for second degree murder is 22 years in prison. However, in 2012, the Arizona legislature changed the maximum prison sentence from 22 years to 25 years. Presumably, much of the information you may find online is outdated material.
Attempted Second Degree Murder
Attempted Second Degree Murder is charged when someone has the intent to commit the murder and takes action in furtherance to commit the murder. But in the end the person fails to commit the murder.
Attempted Second Degree Murder can only be charged if the person either intended to or knowingly attempted to cause the death of another. It is not enough to show that the person intended to do serious bodily harm. Also, it cannot be charged if the person’s actions were only reckless (requires extreme indifference to human life).
Punishment for Attempted Second Degree Murder
Attempt drops the crime down from a Class 1 Felony to a Class 2 Felony.
For attempted second degree murder, which is a Class 2 Felony, you will typically face a minimum sentence of 7 years in prison and a maximum sentence of 21 years in prison.
Defenses to Second Degree Murder
When charged with a charge as serious as second-degree murder, it is of the upmost importance the best possible defense strategy be utilized. Some of the more common and effective defenses are as follows:
Prosecution’s Evidence Is Weak and Unreliable
This is a common defense that applies to almost every case. The police do not always carry out a complete investigation and neglect to follow up on important information. Their reports can include sloppy copy-and-paste jobs. The prosecution’s experts in areas such as ballistics, DNA analysis, forensic toxicology, or crime-scene reconstruction may have used faulty methods. Witnesses for the prosecution may be biased or mistaken in what they say they saw.
You may use deadly physical force in self-defense only to protect yourself against another person’s use, attempted use, or threatened use of deadly physical force against you. The use of deadly physical force is justified if a reasonable person in your situation would have reasonably believed that immediate deadly physical danger appeared to be present. The existence of actual danger is not necessary.
Defense of Others
You may use deadly physical force to defend a third person to protect that person from another person’s use or threatened use of deadly physical force against the third person. Like in self-defense, the use of deadly physical force is justified if a reasonable person in your situation would have reasonably believed that immediate deadly physical danger appeared to be present. Also, the existence of actual danger is not necessary.
You may use deadly physical force against another person if you reasonably believed that deadly physical force was immediately necessary to prevent the other person from committing one of the listed crimes in A.R.S. § 13-411(A):
- Arson of an occupied structure
- Burglary in the second or first degree
- Second degree murder
- First degree murder
- Sexual conduct with a minor
- Sexual assault
- Child molestation
- Armed robbery
- Aggravated assault (causing serious physical injury or using a deadly weapon/dangerous instrument)
You Were Being Forced
If you were forced to commit Reckless Second Degree Murder (showed extreme indifference to human life and created a grave risk of death) by the use or threatened immediate use of unlawful deadly force against you or another person, then you should be convicted of the less serious offense of Manslaughter, not Second Degree Murder.
Sudden Quarrel or Heat of Passion
If the murder was committed upon a sudden quarrel or heat of passion as a result of the victim doing something to you that would have caused a reasonable person to lose control, then you should be convicted of the less serious offense of Manslaughter, not Second Degree Murder.
Non-Abusive Use of Prescribed Medication
Maybe you committed the crime because of temporary intoxication from your proper use of your legally prescribed medication. If this is the case, then your temporary intoxication prevented you from having the required intent or knowledge to commit the crime of second degree murder.
SIDE NOTE: This is an affirmative defense that you have the burden of proving by a preponderance of the evidence (that it is more probably true than not true). So, it is unlike other defenses such as self-defense where the prosecution has the burden of proving beyond a reasonable doubt that you did not act in self-defense.
Also, it is not a defense to any crime if you were temporarily intoxicated from the voluntary use of:
- Prescription medication in a manner that does not follow the prescription,
- Prescription medication that is not prescribed to you,
- Alcohol, or
- Illegal drugs.
Guilty Except Insane
To establish a Guilty Except Insane defense, the defendant must prove that at the time of the murder, the defendant suffered from a mental illness that prevented the defendant from knowing the difference between right and wrong. For example, a person who suffers from schizophrenia may have killed another person during a paranoid delusional episode. So, this person would not have known that the killing was wrong as a result of the mental illness.
SIDE NOTE: This is also an affirmative defense and the defense must prove insanity by clear and convincing evidence (meaning it was highly probable that the defendant was insane).
Phoenix Homicide Attorney
If you face second degree murder charges, then you will need a defense attorney who has the expertise to protect you from the serious consequences that accompany such a crime. The experienced homicide attorneys at Feldman & Royle are here to help you. Call to schedule a free and confidential consultation.