FELONY
MURDER - 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 contends that on (date), while the defendant was engaged in the
commission of1 or attempt to commit or flight after committing or attempting to
commit the crime of (insert appropriate crime, e.g., robbery),2 as
charged in count of the indictment he/she shot and killed3 (name of victim).
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 ... 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 ... causes the death of a person other
than one of the participants....
Generally, it does not matter that the act which caused death was committed
recklessly, or unintentionally or accidentally.4 The perpetrator is as guilty
of felony murder as he/she would be if he/she had purposely or knowingly
committed the act which caused death.
In order for you to find the defendant guilty of felony murder, the State
is required to prove beyond a reasonable doubt, from all the evidence in the
case, all of the essential elements of the crime charged. Accordingly, before
you can find the defendant guilty of felony murder, the State must prove beyond
a reasonable doubt:
1. That on or about (insert date) the
defendant was engaged in the commission of or attempt to commit or flight after
committing or
1 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.
2 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).
3 If the death was caused in some other
manner, so indicate.
4 The same result would follow if the death were the
result of the victim's fear or fright. See State v. McKeiver, 89 N.J.
Super. 52 (Law Div. 1965) so long as the requirements of the causation
statute, N.J.S.A. 2C:2-3, were charged and satisfied. See State v.
Smith, 210 N.J. Super. 43 (App. Div. 1986).
Page 1 of 5 FELONY MURDER-SLAYER PARTICIPANT
(N.J.S.A. 2C:11-3a(3)) Page 2 of 5
attempting to
commit the crime of (name of predicate crime), as charged in count of
the indictment;5
5 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.
6 Where the issue is whether the predicate crime had
terminated when the killing occurred, see State v. Holland, 59 N.J. 451,
458 (1971).
7 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).
2. That the death of (name of victim) was
caused by the defendant.
3. 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.6
[And if applicable:
4. that (name of victim) was not a participant
in the (predicate 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 .7
[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 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 FELONY
MURDER-SLAYER PARTICIPANT (N.J.S.A. 2C:11-3a(3)) Page 3 of 5
8 Grey, 147 N.J. at 15.
9 State v. Martin, 119 N.J.
2, 11, 19-34 (1990).
10 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).
(predicate crime) as charged in count , you must find
him/her not guilty of felony murder.8]
The second and third elements require the State to establish that the
victim's death was caused by the defendant and 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 as to the second and
third elements, the State must prove beyond a reasonable doubt the following:
1. That but for defendant's conduct 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).9
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.10
[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-SLAYER
PARTICIPANT (N.J.S.A. 2C:11-3a(3)) Page 4 of 5
11 State
v. Pelham, 176 N.J. 448, 455-456 and n. 2 (2003).
12 Pelham, 176 N.J. at 467.
13 It is assumed that the indictment would contain a separate count
charging defendant with the predicate crime or attempted crime.
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.11 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.]12
(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.)
[CHARGE IN ALL CASES]
In conclusion, 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, as I have just explained them: (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 (predicate felony), as charged in count of
the indictment, (2) that the death of (name of victim) was caused by defendant,
(3) that the death of that person was caused at some time within the course of
the commission of that crime including its aftermath of flight and concealment
efforts, [and, if applicable, (4) that (name of victim) was not a participant
in that 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 these elements, then
you must find the defendant not guilty of felony murder.13
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 the defendant caused the death of the victim then the defendant
should be found not guilty of all charged homicide offenses. The jury should be
FELONY MURDER-SLAYER PARTICIPANT (N.J.S.A. 2C:11-3a(3)) Page 5 of 5
14 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 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 2 supra,
the indictment does not contain a separate count for the offense? See
2C:1-8(d).
further advised with appropriate instructions that if they find beyond a
reasonable doubt that the defendant did cause the death of the victim but that
the State has failed to prove that the defendant was then engaged in the course
of the commission of or attempt to commit or flight after committing or
attempting to commit the (predicate crime) then they should proceed to consider
whether the defendant purposely, knowingly or recklessly caused the death of
the victim.14
(See appropriate charges elsewhere herein.)
