FELONY
MURDER –NON-SLAYER PARTICIPANT
(N.J.S.A. 2C:11-3a(3) model jury charge
The defendant is charged in count __________ with
felony murder in violation of N.J.S.A. 2C:11-3.
The indictment reads in pertinent part as
follows:
(Read indictment or appropriate count, if indictment contains more than one
count.)
(Continue with basic charge.)
The State does not contend that the defendant
himself/herself killed (name of victim). The State charges that (name
of victim) was shot and killed1 while defendant, alone or with one or more
other persons, was engaged in the commission of or attempt to commit or flight
after committing or attempting to commit2 the crime of (insert predicate crime,
eg., robbery), as charged in count of the indictment.3
The section of the statute applicable to this case
reads in pertinent part as follows:
... [C]riminal homicide constitutes murder when:
It is committed when the actor either acting alone or
with one or more other persons, is engaged in the commission of or attempt to
commit or flight after committing or attempting to commit... (insert predicate
crime), and in the course of such crime or the immediate flight therefrom....
any person causes the death of a person other than one of the participants....
Under this law, it does not matter that the act which
caused death was committed by a participant in the crime of (predicate crime)
other than the defendant, or even by someone other than a participant4 Nor does
it generally matter that the act which caused death was committed recklessly or
unintentionally or accidentally.5 Each participant in the crime of (predicate
crime), whether the participant himself/herself caused the death or not, would
be guilty of felony murder.
In order for you to find the defendant guilty of
felony murder in this case, the State is
1 If the death was caused in some other manner, so
indicate.
2 Delete language relating to attempt or flight
throughout charge if not applicable. On flight, see State in the Interest of
J.R., 234 N.J. Super 388 (Ch. Div. 1988) and cases cited therein.
3 The crimes enumerated in N.J.S.A. 2C:11-3a(3)
are robbery, sexual assault, arson, burglary, kidnapping and criminal escape.
It is assumed that the indictment would contain a separate count or counts
charging defendant with the predicate crime(s) or attempted crime(s).
4 Under N.J.S.A. 2C:11-3a(3), a perpetrator would
be guilty of murder if the death of the victim (e.g., a bystander, but
not another participant) was caused by another person, such as a police officer
or a shopkeeper who was being robbed. Cf. State v. Kress, 105 N.J.
Super. 514 (Law Div. 1969).
5 The same result would follow if the death was the result of the victim's
fear or fright. See State v. Smith, 210 N.J. Super. 43 (App. Div.
1986); State v. McKeiver, 89 N.J. Super. 52 (Law Div. 1965), as
long as the requirements of the causation statute, N.J.S.A. 2C:2-3 were
charged and satisfied. FELONY MURDER - NON-SLAYER
PARTICIPANT (N.J.S.A. 2C:11-3a(3)) Page 2
of 6
required to prove beyond a reasonable
doubt, from all the evidence in the case, each of the following elements of the
offense charged:
6 If the facts indicate an attempted crime, see
appropriate charge on attempt elsewhere herein and modify to the extent
necessary. And if defendant's involvement was or may have been as an accomplice
(N.J.S.A. 2C:2-6), see appropriate charges elsewhere herein, including,
if also applicable, the defense of renunciation N.J.S.A. 2C:2-6(e)). In
this regard, the Commentary on the New Jersey Penal Code points out that
subsection c of 2C:2-6, in defining "accomplice," replaces the
"aiding and abetting" language of N.J.S.A. 2A:85-14.
7 Where the issue is whether the predicate crime had
terminated when the killing occurred, see State v. Holland, 59 N.J.
451, 458 (1971).
8 State v. Grey, 147 N.J. 4, 17 and 40
(1996). Where defendant is accused of being engaged in the commission of more
than one predicate crime (and, presumably, is so charged in the individual
counts of the indictment), the jury should be instructed that they must
unanimously agree that defendant has committed (or attempted to commit) at
least one of the offenses charged. Grey, 147 N.J. at 17 n. 2,
discussing State v. Harris, 141 N.J. 525, 561-564 (1995). In
appropriate cases, and when specifically requested by counsel, the jury should
be instructed that it must agree unanimously on which predicate crime or
crimes defendant was engaged in committing when the death was caused. Harris,
141 N.J. at 563; State v. Parker, 124 N.J. 628, 636-637
(1991).
1. That on or about (insert date) the defendant was
engaged in the commission of or attempt to commit or flight after committing or
attempting to commit the crime of (name of predicate crime), as charged in
count of the indictment;6
2. That the death of (name of victim) was
caused at some time within the course of the commission of that crime,
including its aftermaths of flight and concealment efforts.7
[And, if applicable:
3. That (name of victim) was not a
participant in the crime.]
The first element requires the State to prove beyond a
reasonable doubt that the defendant was engaged in the commission of or attempt
to commit or flight after committing or attempting to commit the crime of (name
of predicate crime). I have already defined the elements of (predicate crime),
which defendant is accused of having engaged in committing (or attempting to
commit) in my instructions concerning count . You cannot find the defendant
guilty of felony murder unless you first find him/her guilty beyond a
reasonable doubt of having committed (or attempted to commit) the crime charged
in count .8
[NOTE: Where the defendant has been charged
with conspiracy to commit a predicate crime as well as the predicate crime
itself, add:
I have also previously defined for you the elements of
conspiracy to commit (predicate FELONY MURDER - NON-SLAYER PARTICIPANT
(N.J.S.A. 2C:11-3a(3)) Page 3 of 6
9 Grey, 147 N.J. at 15.
10 State v. Martin, 119 N.J. 2, 11,
19-34 (1990).
11 Where divergent factual versions give rise to
different theories of causation, the trial court must provide the jury with
appropriate instructions to apply, depending on which version it chooses to
accept. Thus, in appropriate cases the court must fashion its charge to
instruct the jury how to deal with the defendant's (as well as with the
State's) factual contentions. State v. Martin, 119 N.J. 2, 16-18
(1990).
crime), as charged in count of the indictment.
Conspiracy to commit (predicate crime) is a separate offense from (predicate
crime) and cannot be a basis for a conviction of felony murder. Therefore, if
you find defendant guilty beyond a reasonable doubt of conspiracy to commit
(predicate crime) as charged in count , but you find the defendant not guilty
of (predicate crime) as charged in count , you must find him/her not guilty of
felony murder.9]
The second element requires the State to establish
that the victim's death was caused during the commission of or attempt to
commit or flight after committing or attempting to commit the (insert predicate
crime). In order to meet its burden of proof in this regard, the State must
prove beyond a reasonable doubt the following:
1. That but for defendant's conduct or the conduct of
one or more others with whom the defendant participated in the commission of,
or attempt to commit, or flight after committing or attempting to commit (the
predicate crime) the victim would not have died. In other words, that the
victim's death would not have occurred without the commission of the (insert
predicate crime).10
2. That the victim's death was a probable consequence
of the commission of or attempt to commit or flight after committing or attempting
to commit (insert predicate crime). In order for the death to be a
"probable consequence" of the (insert predicate crime) the death must
not have been too remote, or too accidental in its occurrence, or too dependent
on another's volitional acts to have a just bearing on the defendant's
liability or the gravity of his/her offense. In other words, you must decide if
the State has proven beyond a reasonable doubt that, under all the
circumstances, the death did not occur in such an unexpected or unusual manner
that it would be unjust to find the defendant responsible for the death.11
[NOTE: In cases where Causation -
Removal of Life Support is an issue, the jury should be instructed as
follows:
You have heard testimony that on [date], (insert
victim’s name) was taken off life support and that he/she died at some
point after this was done. Should you find beyond a reasonable doubt that (insert
victim’s name) died from medical complications that resulted from FELONY
MURDER - NON-SLAYER PARTICIPANT (N.J.S.A. 2C:11-3a(3)) Page 4 of 6
12 State v. Pelham, 176 N.J. 44,
455-456 and n. 2 (2003).
13 Pelham, 176 N.J. at 467.
14 State v. Martin, supra, 119 N.J.
at 32.
injuries caused by defendant’s actions, the removal of
life support, in this case (method of removal), is not an intervening cause
that relieves defendant of any criminal liability for those actions.12 That is,
if defendant’s actions set in motion (insert victim’s name) need for
life support, without which death would result naturally, then the causal link
between defendant’s action and the death of (insert victim’s name) was
not broken by an unforeseen, extraordinary act when (insert victim’s name) was
removed from life support and then expired, unless there was an intervening
volitional act of another.]13
(NOTE: In cases in which someone other than a
participant causes the death the jury should be instructed as follows:
A killing which is committed by someone other than a
participant in the (insert predicate crime), such as a victim or a police
officer, need not be considered too remote, too accidental or too dependent on
another's volitional act to have a just bearing on the issue of the defendant's
culpability. Our law recognizes that a death which occurs as a result of
self-defense or retaliation may not be so unexpected or unusual that it would
be unjust to hold a participant in the (insert predicate crime) responsible for
the death.14)
(NOTE: Where there is an issue of whether the
decedent was a participant in the crime or attempted crime, add:
The State must also prove beyond a reasonable doubt
that (name of victim) was not a participant in the (predicate crime or
attempted crime). A participant is one who participates in or shares in that
crime.)
(NOTE: In the event facts appear in the State's
or defendant's proofs supporting the affirmative defense contained in N.J.S.A.
2C:11-3a(3)(a) through (d), but not otherwise the following instructions
should be given:
Under the statute which applies here, it is an
affirmative defense to the charge of felony murder if there is proof in the
case that defendant
(a) Did not commit the homicidal act or in
any way solicit, request, command, importune, cause or aid the commission
thereof; and
(b) Was not armed with a deadly weapon, or
any instrument, article or substance readily capable of causing death or
serious physical injury and FELONY MURDER - NON-SLAYER PARTICIPANT (N.J.S.A.
2C:11-3a(3)) Page 5 of 6
15 See State v. Fair, 45 N.J.
77, 91 (1965); State v. Abbott, 36 N.J. 63, 72 (1961); Commentary
on New Jersey Penal Code, 35-36.
of a sort not ordinarily carried in public
places by law-abiding persons; and
(c) Had no reasonable ground to believe
that any other participant was armed with such a weapon, instrument, article or
substance; and
(d) Had no reasonable ground to believe
that any other participant intended to engage in conduct likely to result in
death or serious physical injury.
This means that the affirmative defense is not
available to defendant unless there is evidence in the case supporting all of
the four requirements, and not merely one, or two or three of them. If there is
such supporting evidence, either in the State's proofs or as presented in
behalf of the defendant, then it is incumbent upon the State to negate this
evidence by proof beyond a reasonable doubt.15 However, it is not necessary
that all four requirements be negated. Since the defense is not available to
defendant unless the evidence supports all four of the requirements, it is
sufficient for the State in such case to present proof beyond a reasonable
doubt negating any one of them).
If you find, after a consideration of all the evidence
that the State has proven to your satisfaction beyond a reasonable doubt each
of these elements of the offense charged, as I have just explained them to you;
that is, (1) that the defendant was engaged in the commission of or attempt to
commit or flight after committing or attempting to commit the crime of (name of
predicate crime), as charged in count of the indictment, (2) that the death of
(name of victim) was caused at some time within the course of the commission of
that crime, including its aftermaths of flight and concealment efforts [and, if
applicable, (3) that (name of victim) was not a participant in the crime], then
you must find the defendant guilty of felony murder.
On the other hand, if you find that the State has
failed to prove to your satisfaction beyond a reasonable doubt any one or more
of those elements of the crime charged, as I have explained them, then you must
find the defendant not guilty of felony murder.
NOTE: In
the event that purposeful or knowing murder, aggravated manslaughter or
manslaughter is charged in the indictment the jury should be advised that if
the State has failed to prove beyond a reasonable doubt that any participant
caused the death of the victim then the defendant should be found not guilty of
all charged homicide offenses. FELONY MURDER - NON-SLAYER PARTICIPANT
(N.J.S.A. 2C:11-3a(3)) Page 6 of 6
16 In the rare event the facts are such that the jury
might find the defendant not guilty of felony murder solely because of its
conclusion that the victim's death was not caused by the defendant or some
other person, quaere: should the predicate crime, e.g., robbery
or attempted robbery, be charged as a lesser included offense, where, contrary
to the assumption in footnote 3 supra, the indictment does not contain a
separate count for the offense? See 2C:1-8(d).
The jury should be further advised with appropriate
instructions that if they find beyond a reasonable doubt that any participant
did cause the death of the victim but that the State has failed to prove that
the defendant was then engaged as an accomplice in the course of the commission
of or attempt to commit or flight after committing or attempting to commit the
(predicate crime) charged in count , then they should proceed to consider
whether the defendant as an accomplice purposely, knowingly or recklessly
caused the death of the victim.16
(See appropriate charges elsewhere herein.)
(NOTE: If the affirmative defense is an issue
in the case, incorporate the following into the summary:
If you find
there is evidence in the case supporting all elements of the affirmative
defense which I explained to you, and that the State has failed to negate
beyond a reasonable doubt any one or more of them, then you must find the
defendant not guilty of felony murder. But if you find that the State has
presented proof beyond a reasonable doubt negating one or more of those
elements, and has also proven beyond a reasonable doubt all the elements of the
offense charged, then you will must the defendant guilty of felony murder.)
