ATTEMPTED
MURDER/ATTEMPTED PASSION/PROVOCATION MANSLAUGHTER
(N.J.S.A.
2C:11-3, 2C:11-4 and 2C:5-1)
Count
__________ of the indictment charges defendant with attempted murder.
[Read count of the
indictment]
The
law provides[1]:
An actor is guilty of attempted murder if
he purposely attempted to cause death and did not act in the heat of passion
arising from reasonable provocation.
In order to convict defendant of this
charge, the State must prove the following elements beyond a reasonable doubt:
1. that it was defendant’s purpose to
cause the death of (name of victim);
2.
that defendant 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
2. that defendant did or omitted to do
anything with the purpose of causing the death of (name of victim) without
further conduct on his part;
OR
2. that defendant purposely did or omitted
to do anything which, under the circumstances as a reasonable person would
believe them to be, was an act or omission constituting a substantial step in
the course of conduct planned to culminate in the death of (name of victim),
and
3. that defendant did not act in the heat
of passion arising from reasonable provocation.
If you find that the State has proven beyond
a reasonable doubt that defendant purposely attempted to cause the death of
(name of victim) and that defendant did not act in the heat of passion
resulting from reasonable provocation, then you must find defendant guilty of
attempted murder. If you find beyond a
reasonable doubt that the State has proven that defendant purposely attempted
to cause the death of (name of victim) and that defendant acted in the heat of
passion resulting from a reasonable provocation, then you must find defendant
guilty of attempted passion/provocation manslaughter.
The first element that the State must
prove beyond a reasonable doubt is that defendant’s purpose was to cause the
death of (name of victim).
The second element that the State must
prove beyond a reasonable doubt is that defendant
[CHOOSE
APPROPRIATE]
[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 Crime]
(2) Did or omitted to do anything with the
purpose of causing the death of (name of 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,
was an act or omission constituting a substantial step in a course of conduct
planned to culminate in defendant’s causing the death of (name of victim). The step taken must be one that is strongly
corroborative of criminal purpose.
Defendant must be shown to have had a firmness of criminal purpose in
light of the steps he/she had already taken. These
preparatory steps must have been substantial and not just very remote
preparatory acts.
A person acts purposely with respect to
the nature of his/her
conduct or a result thereof if it is his/her
conscious object to engage in conduct of that nature or to cause such a
result. A person acts purposely with
respect to attendant circumstances if the individual is aware of the existence
of such circumstances or the individual believes or hopes that they exist. “With purpose,” “designed,” “with design” or
equivalent terms have the same meaning.
The term purposely is a condition of the
mind. A condition of the mind cannot be
seen. It can only be determined by
inferences from defendant’s conduct, words or acts. A state of mind is rarely susceptible of
direct proof but must ordinarily be inferred from the facts. Therefore, it is not necessary that the State
produce witnesses to testify that an accused said that he/she had a certain state of mind when he/she
did a particular thing. It is within
your power to find that such proof has been furnished beyond a reasonable doubt
by inferences which may arise from the nature of his/her
acts and conduct and from all he/she said and did at the particular time and place and from all
surrounding circumstances established by the evidence.
The use of a deadly weapon such as
(describe deadly weapon) 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.[2] 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) (other
method of causing injury) (name of victim) with a (gun) (knife) (other weapon),
you may draw an inference as to defendant’s purpose from the (gun) (knife)
(other weapon) used and from the manner and circumstances of the attack.[3]
The third element that the State must
prove beyond a reasonable doubt is that defendant did not act in the heat of
passion resulting from a reasonable provocation. Attempted passion/ provocation manslaughter
has four factors which distinguish it from attempted murder. In order for you to find defendant guilty of
attempted murder, the State need only prove the absence of any one of them
beyond a reasonable doubt. The four
factors are:
1. There was adequate provocation;
2. The
provocation actually impassioned defendant;
3. Defendant
did not have a reasonable time to cool off between the provocation and the
attack, and
4.
Defendant
did not actually cool off before committing the attack.
The first factor you must consider is
whether the State has proven beyond a reasonable doubt that the provocation was
not adequate. Whether the provocation is
inadequate essentially amounts to whether loss of self‑control is a reasonable
reaction to the circumstances. In order
for the State to carry its burden it must prove beyond a reasonable doubt that
the provocation was not sufficient to arouse the passions of an ordinary person
beyond the power of his control. For
example, words alone do not constitute adequate provocation. On the other hand, a threat with a gun or
knife or a significant physical confrontation might be considered adequate
provocation. Again, the State must prove
that the provocation was not adequate.
The second factor you must consider is
whether the State has proven beyond a reasonable doubt that defendant was not
actually impassioned, that is, that he did not actually lose his/her
self-control.
The third factor you must consider is
whether the State has proven beyond a reasonable doubt that defendant had a
reasonable time to cool off. In other
words, you must determine whether the State has proven that the time between
the provoking event(s) and the attack was adequate for the return of a
reasonable person's self‑control.
The fourth factor you must consider is
whether the State has proven beyond a reasonable doubt that defendant actually
did cool off before committing the attack, that is, that he/she was no longer actually impassioned.
If you find that the State has proven
beyond a reasonable doubt that there was not adequate provocation or
that the provocation did not actually impassion the defendant or that
defendant had a reasonable time to cool off or that defendant actually
cooled off and in addition to proving one of those four factors you
determine that the State has proved beyond a reasonable doubt that defendant
purposely attempted to cause the death of (name of victim), then you must find
defendant guilty of attempted murder.
If, on the other hand, you determine that
the State has not disproved at least one of the factors of attempted passion/provocation
manslaughter beyond a reasonable doubt, but that the State has proven
beyond a reasonable doubt that defendant purposely attempted to cause the death
of (name of victim), then you must find defendant guilty of attempted passion/provocation
manslaughter.
If, however, the State has failed to
prove beyond a reasonable doubt that defendant purposely attempted to cause the
death of (name of victim), then you must find defendant not guilty of attempted
murder or attempted passion/provocation manslaughter.
PROPOSED
VERDICT SHEET
On the charge that defendant purposely
attempted to cause the death of (name of victim), our verdict is
A. NOT
GUILTY [ ]
B. GUILTY
OF ATTEMPTED
PASSION/PROVOCATION
MANSLAUGHTER [ ]
C. GUILTY OF ATTEMPTED MURDER [ ]
[2] N.J.S.A. 2C:11-1c.
[3] If
defendant claims that he/she used deadly force in self defense, a rational
basis for passion/provocation manslaughter can be found in evidence supporting
the pre-Code theory of imperfect self defense.
See footnote 1 of
Model Jury Charge, Justification–Self Defense In Self Protection (N.J.S.A.
2C:3-4).
