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Bar News - January 18, 2013

Criminal Law: A Criminal Law Playlist


Popular music provides many examples that illustrate the complexity of determining culpability in criminal cases. The following are just a few I found while reviewing various principles of criminal law, after recently shifting the focus of my practice to criminal defense.

1. "Hangman Jury" by Aerosmith.

In this bluesy number, the protagonist, who shot his old lady, claims he "drank so much hooch/It made my eyes be getting blurry." He further contends, "I swear I didn’t know the .45 was loaded / In fact, my memory ain’t too clear." So, does he have a defense? He is likely facing charges of first-degree murder, second-degree murder, or manslaughter for "purposely," "knowingly," or "recklessly," causing his old lady’s death. However, the fact that he drank so much that his eyes became blurry and he lost his memory indicates that he was highly intoxicated at the time.

RSA 626:4 provides that intoxication is not in itself a defense. A jury may nonetheless consider whether a defendant’s intoxication affected his ability to form the requisite mental state to establish the crime charged. Given this defendant’s high level of intoxication and his belief that the gun was not loaded, a jury might well find the state unable to prove beyond a reasonable doubt that he "purposely" or "knowingly" caused the death of another. On the other hand, the "hangman" jury obviously didn’t buy this defendant’s excuses. The rest of the lyrics indicate that this defendant has credibility problems. He had a motive for wanting his old lady dead (she was running around with other men), his love for her had come "tumbling down," and he felt that she "[got] what she deserved."

Even if a jury acquitted him on charges of "purposely," or "knowingly" committing murder, he would be unlikely to skate on a charge of acting "recklessly." RSA 626:2, II, (c) provides that a person "acts recklessly with respect to a material element of an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that a material element exists and will result from his conduct." In addition, "[t]he risk must be of such a nature and degree that his failure to become aware of it constitutes a gross deviation from the conduct that a law-abiding person would observe in the situation."

It’s safe to say that a jury would probably find that pointing a gun at someone’s heart and pulling the trigger creates a "substantial and unjustifiable risk" of causing death. While our defendant may have been unaware of this risk due to his intoxication, the law states that "A person who creates such a risk but is unaware thereof solely by reason of having voluntarily engaged in intoxication… also acts recklessly with respect thereto." Therefore, our defendant’s intoxication will not likely help him in establishing reasonable doubt as to his recklessness – unless, and this is a long shot, he could persuade the jury that his lack of awareness of the risk was caused by some other factor (besides his intoxication) that led him to believe the gun was not loaded. Unfortunately, for the "poor boy" protagonist of "Hangman Jury," the best possible outcome is probably a manslaughter conviction.

2. "I Shot the Sheriff" by Bob Marley.

The speaker in this classic reggae hit asserts a very different defense: "I shot the sheriff/But I swear it was in self-defense." He elaborates: "All of a sudden I saw Sheriff John Brown/Aiming to shoot me down/So I shot – I shot – I shot him down… " This defendant has a potentially viable defense under RSA 627:4, which provides (with certain exceptions) that a person is justified in using deadly force upon another person when he reasonably believes that such other person is about to use unlawful, deadly force upon him. In many cases it is reasonable to conclude that someone who points a gun at another person is about to use deadly force.

This case, however, is complicated by the fact that Sheriff Brown was known to the defendant as a law enforcement officer. Was it reasonable for the defendant to conclude that Sheriff Brown was about to shoot him, rather than merely attempting to arrest him? Our defendant claims: "Sheriff John Brown always hated me/For what, I don’t know/Every time I plant a seed/He said kill it before it grow." Despite our defendant’s claims, a jury might well conclude that he had no reasonable belief that John Brown intended to kill him. First, there is no evidence of any motive for Sheriff John Brown to hate him. Second, the sheriff’s opposition to our defendant’s agricultural activities is more likely evidence of the sheriff’s dedication to enforcing marijuana laws, rather than proof of a murderous antipathy.

The record in this case is spotty. We need to know more about the history between the defendant and the sheriff and the circumstances of their final confrontation. Our defendant says, "Freedom came my way one day/And I started out of town, yeah!" when "all of a sudden" he saw the sheriff aiming a gun at him. Was our defendant fleeing police custody or trying to evade a warrant? If so, a jury is even more likely to conclude that the defendant should have known that the sheriff was only trying to arrest him. In any case, the defendant may well have a viable self-defense claim, but counsel must further develop the record in this case.

3. "Goodbye Earl" by the Dixie Chicks.

This song tells the story of Wanda, whose husband, Earl, started abusing her physically within two weeks after they got married. Eventually, Wanda filed for divorce and sought protection from the law, but "Earl walked right through that restraining order/And put her in intensive care." Wanda called her dear friend Mary Ann, who flew in from Atlanta to help: "She held Wanda’s hand as they worked out a plan, and it didn’t take ’em long to decide / That Earl had to die." If caught, Mary Ann and Wanda would surely have faced first-degree murder charges for "purposely" killing Earl. That is, their "conscious object [was] the death of another and [their acts] in furtherance of that object were deliberate and premeditated."

Feminist legal scholars have argued that the traditional legal concepts of self-defense or provocation do not adequately address the situation in which many a battered woman finds herself – coping with a partner she knows is determined to kill her or cause serious injury, yet expected by the law to wait until that moment when the deadly threat is imminent and she is perhaps least able to protect herself. In New Hampshire, the obvious threat Earl posed to Wanda’s safety and the failure of the law to protect her does not provide a defense to a first-degree murder charge. New Hampshire’s self-defense statute does not apply, because Mary Ann and Wanda did not kill Earl at a time when he posed an imminent deadly threat.

Mary Ann and Wanda could try for acquittal on first-degree murder in favor of a manslaughter charge, on the grounds that they committed the homicide "under the influence of extreme mental or emotional disturbance caused by extreme provocation," under RSA 630:2.

However, even a defendant who killed in the face of extreme provocation would not be entitled to an instruction on manslaughter, if the court found that a reasonable person would have cooled down during the time between the provocation and the homicide. State v. Soto, 162 NH 708, 714 (2011). If the defendant "reflected, deliberated or cooled for any period of time before the fatal blow was given… the killing would amount to murder, being attributable to malice and revenge, not mental disturbance." Id. (quotation omitted). The pair’s careful planning and their gleeful taunts ("Those black-eyed peas/They tasted alright to me" and "Ain’t it dark/Wrapped up in that tarp") don’t help their case. Fortunately for them, they were apparently able to evade detection and to this day, they "don’t lose any sleep at night."

Catherine Costanzo recently joined DeMoura|Smith LLP and is practicing both criminal defense and civil litigation throughout New Hampshire. She can be reached at or (603) 824-9699.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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