N.J. Model Criminal Jury Charge, N.J.S.A. 2C:5-1 / 2C11-3a(1)

Approved 12/7/92

ATTEMPTED MURDER1

N.J.S.A. 2C:5-1

N.J.S.A. 2C:11-3(a)1

The Indictment charges the de fendant with the crime of attempted murder. In order for

you to find the defendant guilty of an attempted murder, the State must prove beyond a

reasonable doubt that it was the defendant's purpose to cause the death of the victim. More

specifically, the law provides that a person is guilty of an attempt to commit the crime of murder,

if the person:

[Select appropriate section]

[Attempt-Impossibility]

(1) Purposely engaged in conduct which was intended to cause the death of the

victim, if the attendant circumstances were as a reasonable person would believe them to be;

[or]

[Attempt-When Causing a Particular Result is an Element of the Crime]

(2) Did or omitted to do anything with the purpose of causing the death of the victim

without further conduct on his part.

[or]

[Attempt-Substantial Step]

(3) Purposely did or omitted to do anything which, under the circumstances as a

reasonable person would believe them to be, is an act or omission constituting a substantial step

in a course of conduct planned to culminate in his causing the death of the victim.

Thus, in order to find the defendant guilty of the crime of attempted murder, the State

must prove the following elements beyond a reasonable doubt:

First, it was the defendant's pur pose to cause the death of _____________.

Secondly, the defendant:

1 Not to be used if murder is also charged in the indictment. State v. Rhett, 127 N.J. 3(1992).

ATTEMPTED MURDER

N.J.S.A. 2C:5-1

N.J.S.A. 2C:11-3(a)

[Select Appropriate Section]

[Attempt - Impossibility]

(1) Purposely engaged in conduct which was intended to cause the death of

the victim, if the attendant circumstances were as a reasonable person would believe them

to be;

[or]

[Attempt-When Causing a Particular Result is an Element of the Crime]

(2) Did or omitted to do anything with the purpose of causing the death of the

victim without further conduct on his part.

[or]

[Attempt-Substantial Step]

(3) Purposely did or omitted to do anything which, under the circumstances as

a reasonable person would believe them to be, is an act or omission constituting a

substantial step in a course of conduct planned to culminate in his causing the death of

the victim.

First, the State must prove th at the defendant acted purposely.

"Purposely" means it was the person's c onscious object to cause the death of the

victim.

2

Whether the defendant's purpose was to cause th e death of the victim is a question of fact

for you to decide. Purpose is a condition of the mind which cannot be seen and can only be

2 As noted in the Final Report of the New Jersey Criminal Law Revision Commission, Vol. II: Commentary,

p.114: the definition of attempt in the Code follows the conventional pattern of limiting this inchoate crime to

purposive conduct." See also, State v. McAllister, 211 N.J. Super. 355 (App. Div. 1986 ). See also State v. Gilliam,

224 N.J. Super. 759, 762 ( App. Div. 1988 ), reversing an attempted murder conviction, noting that the crime of

attempted murder must be limited to attempts to cause death, not serious bodily injury. See also State v. Darby, 220

N.J. Super. 327 ( App. Div. 1984 ), certif. den. 101 N.J. 226 (1985). State v. Rhett, 127 N.J. 3 (1992).

ATTEMPTED MURDER

N.J.S.A. 2C:5-1

N.J.S.A. 2C:11-3(a)

determined by inference from conduct, words or acts. It is not necessary for the State to produce

a witness or witnesses who could testify that th e defendant stated, for example, that his/her

purpose was to cause the death of the victim. It is within your power to find that proof of

purpose has been furnished beyond a reasonable doubt by inference which may arise from the

nature of the acts and the surround ing circumstances. Such things as the place where the acts

occurred, the weapon used, the location, number and nature of wounds inflicted, and all that was

done or said by the defendant preceding, connected with, and immediately succeeding the events

are among the circumstances to be considered. Ca using the death of the victim must be within

the design or contemplation of the defendant.

The use of a deadly weapon such as a (describe the deadly weapon used) in itself may

permit you to draw an inference that the defendant's purpose was to take a life. A deadly weapon

is any firearm or other weapon, device, instrument, material or substance, which in the manner it

is used or is intended to be used, is known to be capable of producing death. . .

3 In your

deliberations you may consider the weapon used and the manner and circumstances of the attack,

and if you are satisfied beyond a reasonable doubt th at the defendant (shot) (stabbed) the victim

with a (gun) (knife) you may draw an inference fr om the weapon used, that is the (gun) (knife),

and from the manner and circumstances of the attack, as to the defendant's purpose.

Secondly, the State must also prove be yond a reasonable doubt that the defendant:

[Select the appropriate section]

(A) Purposely engaged in conduct whic h was intended to cause the death of

the victim if the attendant circumstances were as a reasonable person would believe them to be.

If the defendant's conduct would have cau sed the death of the victim had the facts

been as a reasonable person would have believed them to be, you should consider that conduct as

3 N.J.S.A 2C:11-1c; State v. Jones, 115 N.J.L. 257, 262 (E. & A. 1935).

ATTEMPTED MURDER

N.J.S.A. 2C:5-1

N.J.S.A. 2C:11-3(a)

evidence of the guilt of the attemp t to purposely cause the victim's death. It does not matter that

the defendant was frustrated in accomplishing his/her objective b ecause the facts were not as a

reasonable person would believe them to be; it is no defense that the defendant could not succeed

in reaching his/her goal because of circumstances unknown to the defendant.4

or

[When Causing a Particular Result is an Element of the Crime of Murder]

(B) Did or omitted to do anything with the purpose of causing the death of the

victim without further conduct on his/her part.

This means that the defendant did or failed to do anything de signed to accomplish

the death of the victim without having to take further action. Where the defendant has done all

that he/she believes necessary to cause the death of the vic tim, you should consider that as

evidence of guilt of attempt to purposely cause the victim's death.

5

[or]

[Attempt-Substantial Step]

(C) Purposely did or omitted to do anything which, under the circumstances as

a reasonable person would believe them to be, is an act or omission constituting a substantial

step in the course of conduct planned to culmin ate in his/her causing the death of the victim.

However, the step taken must be one which is strongly corroborative of the defendant's criminal

purpose. The defendant must be shown to have had a firmness of criminal purpose to cause the

death of the victim. Preparatory steps, if any, must be substantial and not just very remote

preparatory acts.

6

4 Final Report of the New Jersey Criminal Law Revision Commission , Vol. II: Commentary, p. 114-115

(citing State v. Moretti , 52 N.J. 182, 186-90 (1968)). N.J.S.A . 2C:5-a(1) rejects outright the defense of

impossibility.

5 Id., p. 116. This is the so-called "last proximate act" doctrine.

6 State v. Fornino, 223 N.J. Super. 531 ( App. Div. 1988 ).

ATTEMPTED MURDER

N.J.S.A. 2C:5-1

N.J.S.A. 2C:11-3(a)

In order for you to find the defendant guilty of an attempted murder, the State must prove

beyond a reasonable doubt that it was the defendant 's purpose to cause the death of the victim.

The State, however, is not requ ired to prove a motive. If th e State has proved the essential

elements of the offense beyond a reasonable doubt , the defendant must be found guilty of the

offense regardless of the defendant's motive or lack of motive.

If the State, however, has proved a motive, you may consider that insofar as it gives

meaning to other circumstances.7 On the other hand, you may consider the absence of motive in

weighing whether or not the defendant is guilty of attempted murder.

If after a consideration of all the evidence, you are convinced beyond a reasonable doubt,

that the State has proved all of the elements of the crime of at tempted murder, then your verdict

must be guilty.

If, however, after a consideration of all th e evidence, you find the State has failed to

prove each and every element of the crime of attempted murder beyond a reasonable doubt, your

verdict must be not guilty.

[Charge where appropriate]

RENUNCIATION OF CRIMINAL PURPOSE

[To be used when the defendant's conduct wo uld otherwise constitute an attempt under

sections B or C set forth above]

As part of the defendant's denial of guilt, the defendant raises the defense of renunciation

of criminal purpose.

The defendant must prove, by a preponderan ce of the evidence, that he/she abandoned

his/her effort to cause the death of the victim, or otherwise prevented its commission under

circumstances manifesting a complete and vo luntary decision to ab andon his/her criminal

7 State v. Beard, 16 N.J. 50, 60 (1954).

ATTEMPTED MURDER

N.J.S.A. 2C:5-1

N.J.S.A. 2C:11-3(a)

purpose. The abandonment of the criminal effort must originate with the defendant and not be

forced upon the defendant by some external ci rcumstance, such as police intervention. 8

Renunciation of criminal purpose will not be deemed to be voluntary if it is motivated in whole

or in part by circumstances not present or apparent at the beginning of the defendant's course of

conduct which increases the probability of det ection or apprehension or which make more

difficult the accomplishment of the criminal pur pose. Renunciation is not complete if it is

motivated by a decision to postpone the crimin al conduct until a more advantageous time or to

transfer the criminal effort to another victim. Nor is renunciation complete if mere abandonment

is insufficient to accomplish avoidance of the death of the victim. In this instance, the defendant

must have taken further and affi rmative steps that prevented the commission of the offense. A

renunciation, in order to be complete, must prevent the completion of the crime.9

8 Final Report of the New Jersey Criminal Law Revision Commission, Vol. II: Commentary p. 124.

9 Final Report of the New Jersey Criminal Law Revision Commission, Vol. II: Commentary, p.125.