ATTEMPTED MURDER[1]
N.J.S.A.
2C:5-1
N.J.S.A.
2C:11-3a(1)
The
Indictment charges the defendant with the crime of attempted murder. In order for you to find the defendant
guilty of an attempted murder, the State must prove beyond a reasonable doubt
that it was the defendant's purpose to cause the death of the victim. More
specifically, the law provides that a person is guilty of an attempt to commit
the crime of murder, if the person:
[Select appropriate
section]
[Attempt-Impossibility]
(1) Purposely engaged in conduct
which was intended to cause the death of the victim, if the attendant
circumstances were as a reasonable person would believe them to be;
[or]
[Attempt-When Causing
a Particular Result is an Element of the Crime]
(2) Did or
omitted to do anything with the purpose of causing the death of the victim
without further conduct on his part.
[or]
[Attempt-Substantial Step]
(3) Purposely
did or omitted to do anything which, under the circumstances as a reasonable
person would believe them to be, is an act or omission constituting a
substantial step in a course of conduct planned to culminate in his causing the
death of the victim.
Thus,
in order to find the defendant guilty of the crime of attempted murder, the
State must prove the following elements beyond a reasonable doubt:
First,
it was the defendant's purpose to cause the death of _____________.
Secondly,
the defendant:
[Select
Appropriate Section]
[Attempt - Impossibility]
(1) Purposely
engaged in conduct which was intended to cause the death of the victim, if the
attendant circumstances were as a reasonable person would believe them to be;
[or]
[Attempt-When Causing
a Particular Result is an Element of the Crime]
(2) Did
or omitted to do anything with the purpose of causing the death of the victim without further conduct on his/her
part.
[or]
[Attempt-Substantial Step]
(3) Purposely
did or omitted to do anything which, under the circumstances as a reasonable
person would believe them to be, is an act or omission constituting a substantial
step in a course of conduct planned to culminate in his/her
causing the death of the victim.
First,
the State must prove that the defendant acted purposely.
"Purposely"
means it was the person's conscious object to cause the death of the victim.[2]
Whether
the defendant's purpose was to cause the death of the victim is a question of
fact for you to decide. Purpose is
a condition of the mind which cannot be seen and can only be determined by
inference from conduct, words or acts.
It is not necessary for the State to produce a witness or witnesses who
could testify that the defendant stated, for example, that his/her purpose was to cause the death of the victim. It is within your power to find that
proof of purpose has been furnished beyond a reasonable doubt by inference
which may arise from the nature of the acts and the surrounding
circumstances. Such things as the
place where the acts occurred, the weapon used, the location, number and nature
of wounds inflicted, and all that was done or said by the defendant preceding,
connected with, and immediately succeeding the events are among the
circumstances to be considered.
Causing the death of the victim must be within the design or
contemplation of the defendant.
The
use of a deadly weapon such as a (describe the deadly weapon used) in itself may permit you
to draw an inference that the defendant's purpose was to take a life. A deadly weapon is any firearm or other
weapon, device, instrument, material or substance, which in the manner it is
used or is intended to be used, is known to be capable of producing death. . .[3]
In your deliberations you may consider the weapon used and the manner and
circumstances of the attack, and if you are satisfied beyond a reasonable doubt
that the defendant (shot) (stabbed) the victim with a (gun) (knife) you may
draw an inference from the weapon used, that is the (gun) (knife), and from the
manner and circumstances of the attack, as to the defendant's purpose.
Secondly,
the State must also prove beyond a reasonable doubt that the defendant:
[Select the appropriate section]
(A) Purposely engaged
in conduct which was intended to cause the death of the victim if the attendant
circumstances were as a reasonable person would believe them to be.
If
the defendant's conduct would have caused the death of the victim had the facts
been as a reasonable person would have believed them to be, you should consider
that conduct as evidence of the guilt of the attempt to purposely cause the
victim's death. It does not matter
that the defendant was frustrated in accomplishing his/her objective because the facts were not as a reasonable person
would believe them to be; it is no defense that the defendant could not succeed
in reaching his/her goal because of circumstances unknown to the defendant.[4]
or
[When Causing a
Particular Result is an Element of the Crime of Murder ]
(B) Did or
omitted to do anything with the purpose of causing the death of the victim
without further conduct on his/her part.
This
means that the defendant did or failed to do anything designed to accomplish
the death of the victim without having to take further action. Where the defendant has done all that he/she believes necessary to
cause the death of the victim, you should consider that as evidence of guilt of
attempt to purposely cause the victim's death.[5]
[or]
[Attempt-Substantial Step]
(C) Purposely
did or omitted to do anything which, under the circumstances as a reasonable
person would believe them to be, is an act or omission constituting a
substantial step in the course of conduct planned to culminate in
his/her causing the death of the victim. However, the step taken must be one which is strongly corroborative
of the defendant's criminal purpose.
The defendant must be shown to have had a firmness of criminal purpose
to cause the death of the victim.
Preparatory steps, if any, must be substantial and not just very remote
preparatory acts.[6]
In
order for you to find the defendant guilty of an attempted murder, the State
must prove beyond a reasonable doubt that it was the defendant's purpose to
cause the death of the victim. The
State, however, is not required to prove a motive. If the State has proved the essential elements of the
offense beyond a reasonable doubt, the defendant must be found guilty of the
offense regardless of the defendant's motive or lack of motive.
If the State, however,
has proved a motive, you may consider that insofar as it gives meaning to other
circumstances.[7] On the other hand, you may consider the
absence of motive in weighing whether or not the defendant is guilty of
attempted murder.
If
after a consideration of all the evidence, you are convinced beyond a
reasonable doubt, that the State has proved all of the elements of the crime of
attempted murder, then your verdict must be guilty.
If,
however, after a consideration of all the evidence, you find the State has
failed to prove each and every element of the crime of attempted murder beyond
a reasonable doubt, your verdict must be not guilty.
[Charge
where appropriate]
RENUNCIATION
OF CRIMINAL PURPOSE
[To be used when the
defendant's conduct would otherwise constitute an attempt under sections B or C
set forth above]
As
part of the defendant's denial of guilt, the defendant raises the defense of
renunciation of criminal purpose.
The
defendant must prove, by a preponderance of the evidence, that he/she abandoned his/her effort to cause the death of the victim, or otherwise
prevented its commission under circumstances manifesting a complete and voluntary decision to abandon his/her criminal purpose.
The abandonment of the criminal effort must originate with the defendant
and not be forced upon the defendant by some external circumstance, such as
police intervention.[8] Renunciation of criminal purpose will
not be deemed to be voluntary if it is motivated in whole or in part by
circumstances not present or apparent at the beginning of the defendant's
course of conduct which increases the probability of detection or apprehension
or which make more difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is
motivated by a decision to postpone the criminal conduct until a more
advantageous time or to transfer the criminal effort to another victim. Nor is renunciation complete if mere
abandonment is insufficient to accomplish avoidance of the death of the victim. In this instance, the defendant must
have taken further and affirmative steps that prevented the commission of the
offense. A renunciation, in order
to be complete, must prevent the completion of the crime.[9]
[1] Not
to be used if murder is also charged in the indictment. State v. Rhett, 127 N.J.
3(1992).
[2] As
noted in the Final Report of the New Jersey
Criminal Law Revision Commission, Vol. II: Commentary, p.114: the definition of
attempt in the Code follows the conventional pattern of limiting this inchoate
crime to purposive conduct." See
also, State v. McAllister, 211 N.J. Super. 355 (App. Div.
1986 ). See also State
v. Gilliam, 224 N.J. Super. 759, 762 ( App. Div. 1988 ), reversing
an attempted murder conviction, noting that the crime of attempted murder must
be limited to attempts to cause death, not serious bodily injury. See also State v. Darby,
220 N.J. Super. 327 ( App. Div. 1984 ), certif. den. 101 N.J. 226
(1985). State v. Rhett, 127 N.J. 3 (1992).
[3]
N.J.S.A
2C:11-1c; State v. Jones, 115 N.J.L. 257, 262 (E. & A.
1935).
[4]
Final
Report of the New Jersey Criminal Law Revision Commission, Vol. II:
Commentary, p. 114-115 (citing State v. Moretti, 52 N.J. 182,
186-90 (1968)). N.J.S.A.
2C:5-a(1) rejects outright the defense of impossibility.
[5]
Id.
at 116. This is the so-called
"last proximate act" doctrine.
[6]
State
v. Fornino, 223 N.J. Super. 531 ( App. Div. 1988 ).
[7]
State
v. Beard, 16 N.J. 50, 60 (1954).
[8]
Final
Report of the New Jersey Criminal Law Revision Commission, Vol. II: Commentary p. 124.
[9]
Final
Report of the New Jersey Criminal Law Revision Commission, Vol. II:
Commentary, p.125.
