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CentralCali
Joined: 17 May 2007
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 Posted: Sat Apr 27, 2013 12:16 am Post subject: |
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| Noliving wrote: |
| Based off of how this went down I do believe that this is in fact murder and is not self defense but I don't agree that this is 1st degree murder. This looks more like 2nd degree murder at most. |
From your excellent description of the case, which is quite like the descriptions I've seen in the news about it, I'd have to agree that it's 1st degree murder. He intended to murder the particular persons he murdered, the helpless people who no longer provided a threat to him. |
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rollo
Joined: 10 May 2006
Location: China
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| Posted: Sat Apr 27, 2013 4:34 am Post subject: |
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He was wrong and is going to be punished. But thinking the police would respond in time to save you is just utter foolishness. If you live in a rural area you could be talking 30 minutes or more. I walked in on a guy in my house. Turned and walked out called the cops on my cell and he was leaving and my neighbor and i tackled him. he was armed and we were very lucky, after the poplice arived we found out later he had two assaults an armed robbery charge previously. He entered my home armed in the day time which means he was prepared to kill.
yeah i agree Americans should not travel. |
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Noliving
Joined: 01 Apr 2010
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| Posted: Sat Apr 27, 2013 5:29 am Post subject: |
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| CentralCali wrote: |
From your excellent description of the case, which is quite like the descriptions I've seen in the news about it, I'd have to agree that it's 1st degree murder. He intended to murder the particular persons he murdered, the helpless people who no longer provided a threat to him. |
1st degree murder requires that you plan the murder well in advance of actually killing the person. 2nd degree murder is intending to kill the person but without any prior planning.
I haven't seen any evidence that he planned in advance of killing these teenagers. |
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CentralCali
Joined: 17 May 2007
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| Posted: Sat Apr 27, 2013 5:38 am Post subject: |
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| Noliving wrote: |
| 1st degree murder requires that you plan the murder well in advance of actually killing the person. |
That's not the way the legal types described it. 1st degree is in advance. The threat had dissipated, the homeowner was aware of that, and then--apparently just for the sheer entertainment value of it and/or because he thought "they deserved killing"--decided to kill them. That's in advance.
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2nd degree murder is intending to kill the person but without any prior planning.
I haven't seen any evidence that he planned in advance of killing these teenagers. |
Other than his own testimony and the forensic evidence, you mean? Okay. But I think I'll go with the legal types interviewed in the news and also the courts on this one. Hope you don't mind. |
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Kuros
Joined: 27 Apr 2004
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| Posted: Sat Apr 27, 2013 6:26 am Post subject: |
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Unfortunately, you will find it hard to get the Model Penal Code online, because ALI controls it and will not let go of it for free.
Here is the Minnesota Penal Code.
Murder 1
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609.185 MURDER IN THE FIRST DEGREE.
(a) Whoever does any of the following is guilty of murder in the first degree and shall be sentenced to imprisonment for life:
(1) causes the death of a human being with premeditation and with intent to effect the death of the person or of another;
(2) causes the death of a human being while committing or attempting to commit criminal sexual conduct in the first or second degree with force or violence, either upon or affecting the person or another;
(3) causes the death of a human being with intent to effect the death of the person or another, while committing or attempting to commit burglary, aggravated robbery, kidnapping, arson in the first or second degree, a drive-by shooting, tampering with a witness in the first degree, escape from custody, or any felony violation of chapter 152 involving the unlawful sale of a controlled substance;
(4) causes the death of a peace officer or a guard employed at a Minnesota state or local correctional facility, with intent to effect the death of that person or another, while the peace officer or guard is engaged in the performance of official duties;
(5) causes the death of a minor while committing child abuse, when the perpetrator has engaged in a past pattern of child abuse upon a child and the death occurs under circumstances manifesting an extreme indifference to human life;
(6) causes the death of a human being while committing domestic abuse, when the perpetrator has engaged in a past pattern of domestic abuse upon the victim or upon another family or household member and the death occurs under circumstances manifesting an extreme indifference to human life; or
(7) causes the death of a human being while committing, conspiring to commit, or attempting to commit a felony crime to further terrorism and the death occurs under circumstances manifesting an extreme indifference to human life.
(b) For purposes of paragraph (a), clause (5), "child abuse" means an act committed against a minor victim that constitutes a violation of the following laws of this state or any similar laws of the United States or any other state: section 609.221; 609.222; 609.223; 609.224; 609.2242; 609.342; 609.343; 609.344; 609.345; 609.377; 609.378; or 609.713.
(c) For purposes of paragraph (a), clause (6), "domestic abuse" means an act that:
(1) constitutes a violation of section 609.221, 609.222, 609.223, 609.224, 609.2242, 609.342, 609.343, 609.344, 609.345, 609.713, or any similar laws of the United States or any other state; and
(2) is committed against the victim who is a family or household member as defined in section 518B.01, subdivision 2, paragraph (b).
(d) For purposes of paragraph (a), clause (7), "further terrorism" has the meaning given in section 609.714, subdivision 1. |
Murder 2
Justifiable Taking of Life
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609.065 JUSTIFIABLE TAKING OF LIFE.
The intentional taking of the life of another is not authorized by section 609.06, except when necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor's place of abode. |
Felonies in Minnesota
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| The usual definition is that a felony is any crime that may be punished by more than a year�s imprisonment, or death. A crime that has a maximum sentence of a monetary fine, or a short period of confinement in the local jail is not a felony. A statute may not specifically label an offense as a felony, but the punishment defines the offense as a felony. State criminal codes may call a crime an �aggravated� or �gross� misdemeanor, but the offense calls for a sentence of more than one year in the state penal system. Those offenses will be treated as felonies. |
Burglary
First Burglary Offense Sentencing
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609.583 SENTENCING; FIRST BURGLARY OF DWELLING.
Except as provided in section 609.582, subdivision 1a, in determining an appropriate disposition for a first offense of burglary of a dwelling, the court shall presume that a stay of execution with at least a 90-day period of incarceration as a condition of probation shall be imposed unless the defendant's criminal history score determined according to the Sentencing Guidelines indicates a presumptive executed sentence, in which case the presumptive executed sentence shall be imposed unless the court departs from the Sentencing Guidelines pursuant to section 244.10. A stay of imposition of sentence may be granted only if accompanied by a statement on the record of the reasons for it. The presumptive period of incarceration may be waived in whole or in part by the court if the defendant provides restitution or performs community work service. |
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CentralCali
Joined: 17 May 2007
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| Posted: Sat Apr 27, 2013 6:43 am Post subject: |
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| Thanks, Kuro, in the 1st Degree! |
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Kuros
Joined: 27 Apr 2004
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| Posted: Sat Apr 27, 2013 6:49 am Post subject: |
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From OP's link:
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According to a criminal complaint, Smith, a retired U.S. State Department employee, told authorities he feared the teens had a weapon when they entered his home on Thanksgiving Day and acknowledged firing "more shots than I needed to." He also told investigators he fired "a good clean finishing shot" into Kifer's head as she was gasping for air, the complaint said.
Prosecutors have said an audio recording Smith made of the shootings includes him telling a wounded Kifer "you're dying," before firing the final shot. Court documents show his security system also made a video recording of the teens breaking in. |
Murder 1st seems ambitious. There may be facts we don't know, but generally, I like it when these articles confine themselves to the allegations in the criminal complaint. Perhaps the police believe that Smith was planning to kill the intruders upon their next entry, and executed them in response.
So far it looks like Murder 2:
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| (1) causes the death of a human being with intent to effect the death of that person or another, but without premeditation; |
Its hard to judge from behind the keyboard, though. This will be an interesting trial.
Last edited by Kuros on Sat Apr 27, 2013 6:52 am; edited 1 time in total |
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young_clinton
Joined: 09 Sep 2009
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| Posted: Sat Apr 27, 2013 6:52 am Post subject: Re: Man gets 1st degree murder charge for killing teen burgl |
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| Noliving wrote: |
I disagree if you break into my house I will use force to defend myself. If a person is trying to force their way into my house and I have a gun you are getting shot.
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Whatever you say.......
Unless the police are convinced that you were extremely frightened or that your life was in danger you will be arrested and jailed and probably convicted. Except of course if you live in TEXAS. |
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young_clinton
Joined: 09 Sep 2009
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| Posted: Sat Apr 27, 2013 7:06 am Post subject: |
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| Noliving wrote: |
| CentralCali wrote: |
From your excellent description of the case, which is quite like the descriptions I've seen in the news about it, I'd have to agree that it's 1st degree murder. He intended to murder the particular persons he murdered, the helpless people who no longer provided a threat to him. |
1st degree murder requires that you plan the murder well in advance of actually killing the person. 2nd degree murder is intending to kill the person but without any prior planning.
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He might be able to plea it down to 1st degree manslaughter, if he can convince the DA that he killed the guys solely out of rage over the circumstances of having his home repeatedly burglarized by lowlifes. The problem is it could be very possible that he could be acquitted of murder by a jury. |
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Kuros
Joined: 27 Apr 2004
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| Posted: Sat Apr 27, 2013 7:26 am Post subject: |
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| young_clinton wrote: |
| Noliving wrote: |
| CentralCali wrote: |
From your excellent description of the case, which is quite like the descriptions I've seen in the news about it, I'd have to agree that it's 1st degree murder. He intended to murder the particular persons he murdered, the helpless people who no longer provided a threat to him. |
1st degree murder requires that you plan the murder well in advance of actually killing the person. 2nd degree murder is intending to kill the person but without any prior planning.
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He might be able to plea it down to 1st degree manslaughter, if he can convince the DA that he killed the guys solely out of rage over the circumstances of having his home repeatedly burglarized by lowlifes. The problem is it could be very possible that he could be acquitted of murder by a jury. |
That's right. Manslaughter 1st is where Minnesota places its heat of passion language.
But if the rage had been simmering for awhile from repeated entries, its not really heat of passion. Its actually more like premeditation. |
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Noliving
Joined: 01 Apr 2010
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| Posted: Sat Apr 27, 2013 5:25 pm Post subject: |
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| CentralCali wrote: |
That's not the way the legal types described it. 1st degree is in advance. The threat had dissipated, the homeowner was aware of that, and then--apparently just for the sheer entertainment value of it and/or because he thought "they deserved killing"--decided to kill them. That's in advance. |
Than we have a different understanding of what advance is. Advance to me means you have planned it before the incident happens. Planning or deciding to do something during the event is not in advance. It is you reacting to the situation.
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2nd degree murder is intending to kill the person but without any prior planning.
I haven't seen any evidence that he planned in advance of killing these teenagers. |
| CentralCali wrote: |
| Other than his own testimony and the forensic evidence, you mean? Okay. But I think I'll go with the legal types interviewed in the news and also the courts on this one. Hope you don't mind. |
What is with the attitude?
This is how 2nd degree homicide is defined in Minnesota:
609.19 MURDER IN THE SECOND DEGREE.
Subdivision 1.Intentional murder; drive-by shootings. Whoever does either of the following is guilty of murder in the second degree and may be sentenced to imprisonment for not more than 40 years:
(1) causes the death of a human being with intent to effect the death of that person or another, but without premeditation; or
(2) causes the death of a human being while committing or attempting to commit a drive-by shooting in violation of section 609.66, subdivision 1e, under circumstances other than those described in section 609.185, clause (3).
Subd. 2.Unintentional murders. Whoever does either of the following is guilty of unintentional murder in the second degree and may be sentenced to imprisonment for not more than 40 years:
(1) causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting; or
(2) causes the death of a human being without intent to effect the death of any person, while intentionally inflicting or attempting to inflict bodily harm upon the victim, when the perpetrator is restrained under an order for protection and the victim is a person designated to receive protection under the order. As used in this clause, "order for protection" includes an order for protection issued under chapter 518B; a harassment restraining order issued under section 609.748; a court order setting conditions of pretrial release or conditions of a criminal sentence or juvenile court disposition; a restraining order issued in a marriage dissolution action; and any order issued by a court of another state or of the United States that is similar to any of these orders.
The part in bold to me sounds a lot more like what happened. Based off of his testimony, he didn't plan to in advance of the situation to kill the people, instead he made the decision to kill them during the incident which is what the 2nd degree is basically saying there and that is the person makes a decision during the moment to kill but without prior planning.
Is it really so hard for you to understand why I would consider it to be 2nd degree homicide? |
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Noliving
Joined: 01 Apr 2010
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| Posted: Sat Apr 27, 2013 5:36 pm Post subject: Re: Man gets 1st degree murder charge for killing teen burgl |
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| young_clinton wrote: |
Whatever you say.......
Unless the police are convinced that you were extremely frightened or that your life was in danger you will be arrested and jailed and probably convicted. Except of course if you live in TEXAS. |
No kidding, if someone is trying to force their way into my house, which wouldn't exactly be hard to prove, they would probably side that you were extremely frightened and that you considered your life to be in danger. Basically any attempt to force entry into a house is considered in Minnesota to be justified in using lethal force if you were inside the house at the time. In other words if no one was in the house and I was on the other side of the street and saw someone breaking into my house and I shot them that would be considered murder. If I was in the house and someone was trying to break and I shot them only once and they died that would not be considered murder. Which is pretty much what every legal analyst on this case has been saying and that is if those cousins would have died from the gun shots they sustained at the top of the stairs and the homeowner didn't do anything else after shooting them at the top of the stairs and called the cops he pretty much would not be facing homicide charges. |
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CentralCali
Joined: 17 May 2007
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| Posted: Sat Apr 27, 2013 6:10 pm Post subject: |
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| Noliving wrote: |
| Is it really so hard for you to understand why I would consider it to be 2nd degree homicide? |
No, I it seemed to me that you're making up stuff and pretending it's part of the law: "well in advance." The statute doesn't say "well in advance." It says "premeditation". I'm kind of curious about that since, as I said, you provided an excellent description of the case on page one of this thread.
That's what's with the "attitude." But, what the hey, let's see how this plays out in the actual trial. As another poster said above, it'll be an interesting trial. |
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Noliving
Joined: 01 Apr 2010
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| Posted: Sun Apr 28, 2013 6:21 am Post subject: |
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| CentralCali wrote: |
| Noliving wrote: |
| Is it really so hard for you to understand why I would consider it to be 2nd degree homicide? |
No, I it seemed to me that you're making up stuff and pretending it's part of the law: "well in advance." The statute doesn't say "well in advance." It says "premeditation". I'm kind of curious about that since, as I said, you provided an excellent description of the case on page one of this thread.
That's what's with the "attitude." But, what the hey, let's see how this plays out in the actual trial. As another poster said above, it'll be an interesting trial. |
This is generally what the word premeditation means:
pre�med�i�ta�tion (pr-md-tshn)
n.
1. The act of speculating, arranging, or plotting in advance.
2. Law The contemplation of a crime well enough in advance to show deliberate intent to commit the crime; forethought.
The American Heritage� Dictionary of the English Language, Fourth Edition copyright �2000 by Houghton Mifflin Company. Updated in 2009. Published by Houghton Mifflin Company. All rights reserved.
Thesaurus Legend: Synonyms Related Words Antonyms
Noun 1. premeditation - planning or plotting in advance of acting
forethought
planning, preparation, provision - the cognitive process of thinking about what you will do in the event of something happening; "his planning for retirement was hindered by several uncertainties"
2. premeditation - (law) thought and intention to commit a crime well in advance of the crime; goes to show criminal intent
malice aforethought, mens rea - (law) criminal intent; the thoughts and intentions behind a wrongful act (including knowledge that the act is illegal); often at issue in murder trials
law, jurisprudence - the collection of rules imposed by authority; "civilization presupposes respect for the law"; "the great problem for jurisprudence to allow freedom while enforcing order"
Based on WordNet 3.0, Farlex clipart collection. � 2003-2012 Princeton University, Farlex Inc.
http://www.thefreedictionary.com/premeditation
Premeditation almost always means legally "well in advance". |
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CentralCali
Joined: 17 May 2007
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| Posted: Sun Apr 28, 2013 9:40 pm Post subject: |
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| What's the law--you know, courts, legal definition, things like that as opposed to a general dictionary of language--say? |
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