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302.2 Felony Murder Death Qualifier

    302.2.1 Felony Murder Death Qualifier: Reckless Indifference And Major Participant

    302.2.1.1 Definition Of "Major Participant”
    302.2.1.2 Reckless Indifference Requires Knowledge Of Higher Probability Of Death Than Normally Attends The Felony
    302.2.1.3 Reckless Indifference: Factors For The Jury To Consider
    302.2.1.4 Felony Murder Death Qualifier: Reckless Indifference Should Be Defined
    302.2.1.5 Felony Murder Death Qualifier: Reckless Indifference Requires Subjective Awareness
    302.2.1.6 Felony Murder Death Qualifier: Requires Subjective Appreciation Of The Life-Threatening Risk, Even If Defendant Was A Major Participant
    302.2.1.7 Felony Murder Death Qualifier: Actual Killer Must Be "Major Participant" And Have Reckless Indifference
    302.2.1.8 "Major" Participant Felony Murder Death Qualifier: Constitutional Challenge

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RATIONALE: Without definition the jury may not understand the meaning of the term "major participant."

POINTS AND AUTHORITIES: Tison v. Arizona (1987) 481 US 137, 158 & fn 12 [107 SCt 1676; 95 LEd2d 127] held that the 8th Amendment does not prohibit as disproportionate the imposition of the death penalty on a defendant convicted of first degree murder who was a "major participant" in the underlying felony, and whose mental state is one of "reckless indifference to human life." (See also Enmund v. Florida (1982) 458 US 782, 797-01 [102 SCt 3368; 73 LEd2d 1140] and Cabana v. Bullock (1986) 474 US 376, 385 [106 SCt 689; 88 LEd2d 704].)

    However, even if the term "major participant" may be commonly understood by those familiar with the English language, an instruction as to its meaning may be appropriate upon request. (See People v. Estrada (CA 1995) 11 C4th 568, 574 [46 CR2d 586]; see also People v. Proby (CA 1998) 60 CA4th 922, 933 [70 CR2d 706].)

    The definition of "major" in Sample Instruction # 1 below was suggested by Proby. Proby criticized the use of the "ringleader" and "triggerman" examples in Sample Instruction # 2 below because it "would require... a finding that defendant was a 'ringleader' 'whose participation was greater in importance than that of other participants.'" (Proby, 60 CA4th at 929.) However, this instruction does not "require" a finding that the defendant was a "ringleader" etc., it merely provides examples of one who may be a major participant. (See e.g., People v. Proby (CA 1998) 60 CA4th 922, 926 [defendant actively participated in execution of the robbery; provided the trigger man with a gun and helped take money out of the safe]; People v. Mora (CA 1995) 39 CA4th 607, 617 [46 CR2d 99]; People v. Bustos (CA 1994) 23 CA4th 1747, 1753-54 [29 CR2d 112] [defendant admitted planning the robbery seeing the codefendant with a knife, hitting the victim and seeing the codefendant stab her (which did not surprise the defendant)]; People v. Marshall (CA 1990) 50 C3d 907, 938 [269 CR 269]; People v. Keenan (CA 1988) 46 C3d 478, 504 [250 CR 550]; Parker v. Womack (CA 1951) 37 C2d 116, 120 [230 P2d 823].)

FEDERALIZATION: To federalize this request, click here. [Death Penalty Macro 13.1].

See Capital Punishment Handbook [1.7 a. Requisite Mental State For Imposition Of Death Sentence: General Principles And Authorities].

    A major participant is one whose role is notable or conspicuous and who is one of the more important participants.

[Source: NCJIC.]

    A major participant is one such as the ringleader, triggerman or the one who planned the crime, whose role is notable or conspicuous and who is one of the more important participants.

[Source: NCJIC.]

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RATIONALE: To comport with the 8th Amendment a death qualifier based on the commission of another offense should require a jury finding that the probability of death was greater than normally associated with the other offense.

POINTS AND AUTHORITIES: It is a fundamental principle of 8th Amendment jurisprudence that "death eligibility" statutes must rationally narrow the class of individuals who are death eligible for "valid penological reason[s]." (Spaziano v. Florida (1984) 468 US 447, 460 fn 7 [104 SCt 3154; 82 LEd2d 340]; see also Tison v. Arizona (1987) 481 US 137, 149 [107 SCt 1676; 95 LEd2d 127.) This principle requires a state to construe death eligibility criteria to provide a "principled way to distinguish [a] case, in which the death penalty was imposed, from the many cases in which it was not." (Lewis v. Jeffers (1990) 497 US 764, 773 [110 SCt 3092; 111 LEd2d 606] [quoting Godfrey v. Georgia (1980) 446 US 420, 428 [100 SCt 1759; 64 LEd2d 398]]; 8th and 14th Amendments.)

    The "reckless indifference" provision of a felony murder death qualifier may violate this principle by permitting the jurors to conclude that mere felony murder liability as defined by the substantive felony murder statute is sufficient to establish "reckless indifference." As the Tison court put it, "the possibility of bloodshed is inherent in the commission of any violent felony ...." (Tison, 481 US at 151.) Hence, to assure that the felony murder special circumstance will rationally identify those felony murder defendants who will be death (or life without parole) eligible as required by the 8th Amendment, the jury must be instructed both upon the subjective awareness requirement (see NCJIC 302.2.1.5 [Felony Murder Death Qualifier: Reckless Indifference Requires Subjective Awareness ]) and upon the requirement that the felony committed carried a higher probability of death than normally attends such a crime.

FEDERALIZATION: To federalize this request, click here. [Death Penalty Macro 13.1].

    A defendant aids, abets, counsels, commands, induces, solicits, requests or assists in a __________ (underlying crime, e.g., robbery) with reckless indifference to human life if [he] [she] knew the particular __________ (e.g., robbery) in which [he] [she] was participating carried a higher probability of death than normally attends the commission of such crime.

[Source: NCJIC.]

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RATIONALE: To promote reliability it may be appropriate to specify relevant factors for the jury to consider in deciding whether the defendant acted with reckless indifference to human life.

POINTS AND AUTHORITIES: As with other determinations the jury must make such as witness credibility (see NCJIC 31.2.11 [Right To Instruction On Eyewitness Factors]) and eyewitness identification (see NCJIC 27.2 [Miscellaneous Witness Credibility Factors]), specification of factors relevant to a determination of reckless indifference may promote a more reliable jury determination.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.5; Death Penalty Macro 13.1].

USE NOTE: These factors are examples. Other factors may be added and irrelevant factors deleted.

    In making your determination as to whether the evidence introduced in this case proves that a defendant acted with reckless indifference to human life, the factors which you should consider included, but are not limited to, the presence or absence of the following:

    a.    whether the defendant acted as a ringleader or mastermind for the underlying criminal enterprise;

    b.    whether the defendant personally used a deadly weapon in the commission of the offense;

    c.    whether the defendant knew that a participant in the offense was armed with a deadly weapon;

    d.    whether the defendant knew that a participant in the offense used a deadly weapon;

    e.    whether the defendant urged or enticed another participant to commit acts involving the extreme likelihood that death would result to an innocent human being;

    f.    the nature and extent of the contact between the defendant and any crime victim(s);

    g.    whether the defendant had an intent that someone be killed or injured;

    h.    whether the defendant personally committed, or threatened to commit, acts of violence against the victim(s);

    i.    whether the defendant had the opportunity to prevent harm to an innocent person, and whether or not [he] [she] exercised the opportunity to do so;

    j.    any other evidence relating to whether the defendant acted with reckless indifference to human life.

[Source: NCJIC.]

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PRACTICE NOTE: It has been held that, upon request, the trial court should define reckless indifference. (See People v. Estrada (CA 1995) 11 C4th 568, 580 [46 CR2d 586].)

    See also NCJIC 302.2.1.5 [Felony Murder Death Qualifier: Reckless Indifference Requires Subjective Awareness].

    See also NCJIC 302.2.1.6 [Felony Murder Death Qualifier: Requires Subjective Appreciation Of The Life-Threatening Risk, Even If Defendant Was A Major Participant].

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PRACTICE NOTE: Any definition of reckless indifference must include a subjective element requiring the defendant to actually know or be aware that his or her actions are "known to carry a grave risk of death." (Tison v. Arizona (1987) 481 US 137, 157 [107 SCt 1676; 95 LEd2d 127].)

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PRACTICE NOTE: Tison v. Arizona (1987) 481 US 137 [107 SCt 1676; 95 LEd2d 127] did not attempt to delineate precisely the particular types of conduct or the states of mind which make one a major participant or which demonstrate reckless indifference to life. It did explain, however, that the two requirements may overlap significantly. The greater the degree of a defendant's participation in the felony murder, the more likely that he or she acted with reckless indifference to human life. But the fact that a defendant was a major participant in the felony does not necessarily suffice in and of itself to establish reckless indifference. (Tison, 481 US at 153, 158, fn 12.)

    Hence, the reckless indifference element should be required in addition to the "major participant" requirement. (See People v. Timms UNPUBLISHED (A066707, CA 1996).)

OPINION AVAILABLE: To read the Timms opinion reversing on this point, click here. [Opinion Bank # O-215].

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RATIONALE: Whether or not the defendant was the actual killer is not always a reliable guage of blameworthiness or culpability. Hence, death eligibility should not turn solely on whether the defendant was the actual killer. Instead, the major participant and reckless indifference requirements should apply to the actual killer as well as the accomplice.

POINTS AND AUTHORITIES: It is usually assumed that the "major participant" and "reckless indifference" requirements of Tison v. Arizona (1987) 481 US 137, 158 [107 SCt 1676; 95 LEd2d 127] and Enmund v. Florida (1982) 458 US 782, 796-801 [102 SCt 3368; 73 LEd2d 1140] only apply to an accomplice who was not the actual killer. (See e.g., CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 8.80.1 [Post June 5, 1990 Special Circumstances: Introductory] (West, 6th Ed. 1996).)

    However, in the context of felony murder, whether or not a person is the actual killer does not necessarily reflect upon that person’s relative culpability. This is so because felony murder imposes strict liability and generally has minimal, if any, causation or foreseeability elements. (See e.g., People v. Escobar (CA 1996) 48 CA4th 999, 1018-19 [55 CR2d 883]; People v. Pock (CA 1993) 19 CA4th 1263, 1276 [23 CR2d 900]; but see NCJIC 92.9.4.5 [Felony Murder: Lack Of Causation As Defense Theory].) In other words, felony murder liability may be imposed regardless of whether the killing was unforeseeable, accidental or even in self defense.

    Consider the following hypothetical:

    An accomplice plans and executes an armed robbery. The defendant does not participate in the planning or commission of the robbery but merely serves as the driver in the get away car. While driving from the scene of the robbery, at a safe and normal speed, a pedestrian unexpectedly darts out from behind a car, without affording the defendant driver any chance to apply the brakes or avoid hitting the pedestrian, and the pedestrian is killed. In this situation the actual killer -- the driver of the car -- was neither a major participant in the underlying felony nor did he harbor any intent to kill or have reckless indifference to human life.

    It would therefore be absurd to say, that the actual killer would be more culpable than the accomplice. If anything, the accomplice who personally planned and committed the robbery would be the more culpable of the two.

    This precise issue was not resolved in either Enmund v. Florida (1982) 458 US 782 [102 SCt 3368; 73 LEd2d 1140] or Tison v. Arizona (1987) 481 US 137 [107 SCt 1676; 95 LEd2d 127], which concerned accomplice rather than actual killer liability. One federal circuit case has stated -- without considering the issue -- that Enmund applies in cases of "accomplice felony murder." (Greenawalt v. Ricketts (9th Cir. 1991) 943 F2d 1020, 1028.) However, the 8th Circuit has concluded that "limiting Enmund/Tison to "accomplice felony murder" "unduly narrows" those cases. (Reeves v. Hopkins (8th Cir. 1996) 102 F3d 977, 984-5 [reversed on other grounds in Hopkins v. Reeves (1998) 524 US 88 [118 SCt 1895; 141 LEd2d 76].)

    Accordingly, death qualifier instructions on felony murder should be modified to require the "major participant" and "reckless indifference" [or intent to kill] requirements as to the actual killer.

FEDERALIZATION: To federalize this request, click here. [Death Penalty Macro 13.1].

    You cannot find the felony murder [special circumstance] [aggravating factor] unless the defendant either:

    1.    Intended to kill, or

    2.    Acted with reckless indifference to human life and was a major participant in the crime of ________ which caused the death of ___________ (name of deceased). (name of deceased).

[Source: NCJIC; cf. NORTH CAROLINA PATTERN JURY INSTRUCTIONS - CRIMINAL, NCPI-Crim 150.10 (6/97) [Death Penalty-Instructions To Jury At Separate Sentencing Proceedings] (TRCC, 1999).]

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    302.2.1.8    "Major" Participant Felony Murder Death Qualifier: Constitutional Challenge

See NCJIC 302.2.2.4 [Felony Murder Special: Reckless Indifference As Unconstitutionally Vague]; 

See also NCJIC 302.2.2.5 [Overbreadth Constitutional Challenge To Felony Murder Death Qualifier].