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VOLUME 7 - CHAPTER 92
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92.10 Torture Murder

    92.10.3 Torture Murder: Defenses And Defense Theories

    92.10.3.1 Torture: Lack Of Causal Connection Between Torture And Death As Defense Theory
    92.10.3.2 Murder By Torture: Lack Of Intent To Inflict Pain As Defense Theory
    92.10.3.3 Murder By Torture: Defense Theory That Victim Was Not Alive When Injuries Were Inflicted
    92.10.3.4 Torture Murder: Intoxication As Defense Theory
    92.10.3.5 Torture Murder: Mental, Medical Or Physical Impairment Of Defendant
    92.10.3.6 Torture Murder: Additional Defenses And Defense Theories

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    92.10.3.1    Torture: Lack of Causal Connection Between Torture and Death As Defense Theory

RATIONALE: Where a statute punishes murder committed by "means of torture" the torturous acts must be the cause of death. Otherwise, the torture would not be the "means of" murder.

POINTS AND AUTHORITIES: To constitute murder by torture the acts of torture must be the cause of death. "However, there must be a causal relationship between the torturous act and death, as [California] Penal Code section 189 defines the crime as murder 'by means of' torture. (Cases cited)... The acts of torture may not be segregated into their constituent elements in order to determine whether any single act by itself caused the death; rather, it is the continuum of sadistic violence that constitutes the torture." (People v. Proctor (CA 1992) 4 C4th 499, 530-531 [15 CR2d 340, 355-356]; see also PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 15.2502G, note [Death Penalty, Stating Aggravating And Mitigating Circumstances] p.3 (Pennsylvania Bar Institute, PBI Press, 12/88) [recognizing issue].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTE:

See generally, FORECITE National™ 305.13.15 [Murder By Torture].

SAMPLE INSTRUCTION:

    You may not convict the defendant of murder by torture unless the prosecution has proven beyond a reasonable doubt that the acts of torture were [a] [the] cause of ______________'s (name of victim) death.  The defendant contends that the death was caused by acts other than the acts of torture.  If, after consideration of all the evidence, you have a reasonable doubt whether the acts of torture were [a] [the] cause of death you must give the defendant the benefit of that doubt and not convict [him] [her] of torture murder.

[Cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 8.24 [Murder By Torture] ¶ 2 & 5 (West, 6th Ed. 1996).]

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    92.10.3.2    Murder By Torture: Lack Of Intent To Inflict Pain As Defense Theory

PRACTICE NOTE: Some courts define torture in terms of extreme and prolonged pain: "[A] jury instruction as to a charge of First-Degree Torture Murder should state that First-Degree Murder by Torture consists of death of the victim caused by the intentional infliction of extreme and prolonged pain with the intent to cause suffering...." (State v. Tribe (ID 1993) 852 P2d 87, 91; see also People v. Steger (CA 1976) 16 C3d 539, 545-46 [128 CR 161]; People v. Morales (CA 1989) 48 C3d 527, 559-60 [257 CR 64] [torture requires a premeditated intent to inflict extreme and prolonged pain].) In such jurisdictions, a definition of premeditation and deliberation may be appropriate. (See generally FORECITE National™ 3.2.6 [Duty To Define Terms With Specialized/Technical Meaning].)

    Other jurisdictions, however, do not include the extreme and prolonged requirement. For example, in Tennessee torture is defined as "the infliction of severe physical or mental pain upon the victim while he or she remains alive and conscious." (State v. Williams (TN 1985) 690 SW2d 517, 529; see also State v. Odom (TN 1996) 928 SW2d 18, 26.)

    Nevertheless, the linchpin of the torture murder is the requirement of an intent to cause pain and suffering in addition to the intent to kill (see Commonwealth v. Edmiston (PA 1993) 634 A2d 1078, 1091); there must be an indication that the defendant was not satisfied with the killing alone. (Commonwealth v. Caldwell (PA 1987) 532 A2d 813, 817.)

    Hence, the aggravating circumstance cannot be established simply by demonstrating that the victim suffered pain before dying. (See Commonwealth v. Brode (PA 1989) 564 A2d 1254, 1258.)

    No single factor is necessarily determinative, and, therefore, the issue must be decided after considering all the circumstances.  For example, in Commonwealth v. Ockenhouse (PA 2000) 756 A2d 1130 the court observed that "[o]tentimes, this is an especially difficult determination because in virtually all cases of murder, the perpetrator inflicts terrible pain and suffering on the victim, and by definition, the individual who inflicts this killing upon another does so with specific intent. However, a number of factors can be distilled from a review of ... cases and give guidance as to whether the facts support a finding that a murder was committed by means of torture. These factors include, but are not limited to: (1) the manner in which the murder is committed, including the number and type of wounds inflicted; (2) whether the wounds were inflicted in a vital or non-vital area of the body; (3) whether the victim was conscious during the episode; and (4) the duration of the episode. ¶ While these considerations are not exhaustive, or in and of themselves determinative of the establishment of the aggravating circumstance of torture, these factors enlighten the inquiry and are the primary criteria by which our court has grappled with this formidable task." (Ockenhouse, 756 A2d at 1136.)

RESEARCH NOTE:

See generally, FORECITE National™ 305.13.15 [Murder By Torture].

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    92.10.3.3    Murder By Torture: Defense Theory That Victim Was Not Alive When Injuries Were Inflicted

RATIONALE: Because torture necessarily involves the infliction of pain, an element of a torture charge should be that the victim was alive.

POINTS AND AUTHORITIES: Because a deceased person cannot feel pain, torture cannot occur without a living victim. (People v. Franc (CA 1990) 218 CA3d 588, 595 [267 CR 109]; see also State v. Odom (TN 1996) 928 SW2d 18, 24.) Accordingly, where the evidence may be reasonably construed by the jury to establish that the victim died before the torturous acts were inflicted, instruction on the requirement that the victim be alive may be appropriate. (See Franc, 218 CA3d at 594; see also People v. Davenport (CA 1985) 41 C3d 247, 266-67 [221 CR 794].)

    See also FORECITE National™ 59.5 [Requirement That Victim Be Alive].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTE:

See generally, FORECITE National™ 305.13.15 [Murder By Torture].

SAMPLE INSTRUCTION:

    You may not return a verdict of torture unless the torturous acts were committed while the victim was alive.

[Source: FORECITE National™.]

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    92.10.3.4    Torture Murder: Intoxication As Defense Theory

   See FORECITE National™ 256.5 [Intoxication, Involuntary].

   See FORECITE National™ 256.6 [Intoxication, Voluntary].

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    92.10.3.5    Torture Murder: Mental, Medical Or Physical Impairment Of  Defendant

    See FORECITE National™ 256.7 [Mental, Medical Or Physical Impairment Of Defendant].

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    92.10.3.6    Torture Murder: Additional Defenses And Defense Theories

PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)