ICJI 704B

ICJI 704B FIRST DEGREE MURDER - TORTURE

In order for the defendant to be guilty of First Degree Murder by torture, the state must prove each of the following:

1. On or about [date]

2. in the state of Idaho

3. the defendant [name] intentionally applied torture to [name of decedent],

4. which resulted in the death of [name of decedent],

5. the defendant acted without justification and excuse, and

6. the torture consisted of [the intentional infliction of extreme and prolonged pain with the intent to cause suffering]

[or]

[the infliction of extreme and prolonged acts of brutality, and

[the torture was inflicted with the intent to cause suffering,]

[or]

[the torture was inflicted with the intent to execute vengeance,]

[or]

[the torture was inflicted with the intent to extort something of value from [name of decedent]]

[or]

[the torture was inflicted with the intent to satisfy some sadistic inclination].

If you find that the state has failed to prove any of the above, you must find the defendant not guilty of first degree murder. If you find that all of the above have been proven beyond a reasonable doubt, then you must find the defendant guilty of first degree murder.

Comment

Idaho Code � 18-4001, 18-4003.

The phrase "without justification or excuse, and" should be deleted if that issue is not raised by the evidence, and the instruction should be modified accordingly.

The elements of murder by torture are discussed in State v. Tribe, 123 Idaho 721, 852 P.2d 87 (1993). The Court said: "[A] jury instruction as to a charge of first degree torture murder should state that first degree murder by torture consists of death of the victim caused by the intentional infliction of extreme and prolonged pain with the intent to cause suffering, or the death of the victim caused by the infliction of extreme and prolonged acts of brutality with the intent to cause suffering, to execute vengeance, to extort something from the victim, or to satisfy a sadistic inclination." 123 Idaho at 725, 852 P.2d at 91. The Court distinguished first degree murder by torture from second degree murder by torture, by stating: "[T]he infliction of extreme and prolonged acts of brutality not accompanied by proof of intent to cause suffering, or by proof of executing vengeance, or by proof of extortion, or by proof of satisfying a sadistic inclination, is second degree torture murder under the legislature's statutory scheme." Id.

Murder inflicted by the intentional application of torture may be elevated to first degree murder by the other circumstances listed in Idaho Code � 18-4003, subsections (a) through (f). If first degree murder is charged on the basis of any of these additional circumstances, the jury should be instructed accordingly.

Attempted first degree murder by torture, absent a specific showing of intent, is not a crime in Idaho. State v. Luke, 134 Idaho 294, 1 P.3d 795 (2000).

The jury need not agree on which special circumstance exists to constitute First Degree Murder. Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991).

If the court is going to instruct on the included offense of Voluntary Manslaughter, the transition instruction 225, and then the Voluntary Manslaughter instruction 708, should be given.

In order to avoid possible prejudicial effect from the introduction of evidence in the case in chief that the defendant has once been convicted of murder, the court may want to consider bifurcated proceedings where the crime is to be enhanced to first degree murder while under a sentence for murder, or on probation or parole for murder. If such a procedure is to be followed, the committee recommends that the jury deliberate first on the elements of murder, plus any other related enhancements to first degree murder, then, depending on the outcome of that deliberation, ICJI 706 be given.