Homicide is the killing of a person by another person. Homicide is not necessarily a crime. Murder as defined under Florida Statute 782.04 is always a crime.
There are three types of murder that are murder in the first degree that constitute a capital felony. Capital felonies are punishable by death.
Murder Type One
The first type of first degree murder is the premeditated unlawful killing of a human being. This can be the classic Sherlock Holmes murder. A careful plan, worked out months in advance where the killer goes to great lengths to remain undetected. However, the law does not set the period of time that must pass between the decision to kill and the actual murder. A decision to kill can be made in seconds. All that is required for there to be premeditation is a decision to kill being present at the time of the killing.
A defense to premeditated murder is that the act was done in the heat of passion based on adequate provocation. Florida Standard Jury Instruction 7.2 provides five factors for a jury to consider in a heat of passion case. They are:
- There must have been a sudden event that would have suspended the exercise of judgment in an ordinary reasonable person.
The first requirement is that the provocation be sudden. This would be an unexpected event with no prior knowledge by the Defendant. The next requirement is the event “would have suspended the exercise of judgment”. Notice the instruction uses the word “would”. Not could, should, or might. “Would” sets a very high standard and is used four times in this jury instruction.
- A reasonable person would have lost normal self-control and would have been driven by a blind and unreasoning fury.
The jury instruction contemplates there be no thinking, no considering, only an overwhelming emotional reaction of fury. This may be the only instance in law when one can act in anger, without reason and not be held accountable.
- There was not a reasonable amount of time for a reasonable person to cool off.
What is a reasonable amount of time for a person to cool off depends on the circumstances of the event. A blind fury cannot be sustained for a long period of time. Individual juries have to make the decision.
- A reasonable person would not have cooled off before committing the act that caused death.
The jury instruction again refers to what a reasonable person would do. So even if a particular person was indisputably in a crazed rage the jury can find the person should have cooled off and regained their senses.
- The Defendant was, in fact, so provoked and did not cool off before they committed the act that caused the death of the victim.
The first four factors discuss how a reasonable person would be affected. Factor five’s focus is on the actual Defendant who is on trial. If the Defendant before the jury, for whatever reason, cooled off unusually quickly or was never provoked in the first place, then this defense would not apply.
A heat of passion defense can be hard to prove. Even if the jury is convinced the Defendant acted in the heat of passion the jury should still find the Defendant guilty of Second Degree Murder.
Murder Type Two
The second type of first degree murder is the unlawful killing of a person when committed by a person engaged in the perpetration of, or in the attempt to perpetrate any of nineteen listed felonies. You can see Florida Statute 782.04(1)(a)2. for the complete list.
For example, if the unlawful killing of a person is done by a person engaged in a burglary, the murder is a capital offense punishable by death or life imprisonment. By contrast, if an unlawful killing of a person is done by a person engaged in a trespass a lesser degree of murder may have been committed but not a capital murder.
Murder Type Three
The third type of first degree murder is the unlawful killing of a person by unlawfully distributed drugs. The drugs include any substance controlled under Florida Statute 893.03(1), cocaine, opium, or methadone. The drug distributer must be at least 18 years old and the drug must have been the cause of the death.
Court decisions have limited the State’s ability to impose the death penalty and only premeditated murders carry any real chance of the death penalty being imposed.
We have several experienced criminal attorneys with over 20 and over 30 years in practice. One partner is one of the few private attorneys qualified to try capital offenses under the rules of the Florida Supreme Court.
If you have been arrested for murder or any other violent crime in Brevard County, Volusia County, Orange County, Indian River County or Osceola County call us to discuss your case and see how our attorneys can help you 321-631-0506 or email using the Contact Form at the top of this page.