N.J. Model Criminal Jury Charge, N.J.S.A. 2C:11-3a(3)

Revised 3/22/04

FELONY MURDER - SLAYER PARTICIPANT

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

The defendant is charged in count _______ with felony murder in violation of N.J.S.A.

2C:11-3. The indictment reads in pertinent part as follows:

(Read indictment or appropriate count, if indictment contains more than one count.)

(Continue with basic charge.)

The State contends that on (date), while the defendant was engaged in the commission

of1 or attempt to commit or flight after committing or attempting to commit the crime of (insert

appropriate crime, e.g., robbery),2 as charged in count of the indictment he/she shot and

killed3 (name of victim).

The section of the statute a pplicable to this case reads in pertinent part as follows:

...[C]riminal homicide constitutes murder when:

It is committed when the actor ... is engaged in the commission of or attempt to

commit or flight after committing or a ttempting to commit ... (insert predicate

crime), and in the course of such crim e or the immediate flight therefrom ...

causes the death of a person other than one of the participants....

Generally, it does not matter that the act which caused death was committed recklessly,

or unintentionally or accidentally.

4 The perpetrator is as guilty of felony murder as he/she would

be if he/she had purposely or knowingly committed the act which caused death.

In order for you to find the defendant guilty of felony murder, the State is required to

prove beyond a reasonable doubt, from all the evidence in the case, all of the essential elements

of the crime charged. Accordingly, before you can find the defendant guilty of felony murder,

the State must prove beyond a reasonable doubt:

1. That on or about (insert date) the defendant was engaged in the

commission of or attempt to co mmit or flight after committing or

1 Delete language relating to attempt or flight throughout charge if not applicable. On flight, see State in the

Interest of J.R., 234 N.J. Super. 388 (Ch. Div. 1988), and cases cited therein.

2 The crimes enumerated in N.J.S.A. 2C:11-3a(3) are robbery, sexual assault, arson, burglary, kidnapping and

criminal escape. It is assumed that th e indictment would contain a separate count or counts charging defendant with

the predicate crime(s) or attempted crime(s).

3 If the death was caused in some other manner, so indicate.

4 The same result would follow if the death were the result of the victim's fear or fright. See State v. McKeiver, 89

N.J. Super. 52 (Law Div. 1965) so long as the requirements of the causation statute, N.J.S.A. 2C:2-3, were charged

and satisfied. See State v. Smith, 210 N.J. Super. 43 (App. Div. 1986).

FELONY MURDER-

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(

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

attempting to commit the crime of (name of predicate crime), as charged

in count of the indictment;5

2. That the death of (name of victim) was caused by the defendant.

3. That the death of (name of victim) was caused at some time within the

course of the commission of that crime, including its aftermaths of flight

and concealment efforts.6

[And if applicable:

4. that (name of victim) was not a participant in the (predicate crime).]

The first element requires the State to prove beyond a reasonable doubt that the defendant

was engaged in the commission of or attempt to commit or flight after committing or attempting

to commit the crime of (name of predicate crime). I have already defined the elements of

[predicate crime], which defendant is accused of having engaged in committing (or attempting

to commit) in my instructions c oncerning count . You cannot find the defendant guilty of

felony murder unless you first find him/her gui lty beyond a reasonable doubt of having

committed (or attempted to commit) the crime charged in count .7

[NOTE: Where the defendant has been charged with conspiracy to commit a predicate

crime as well as the predicate crime itself, add:

I have also previously defined for you the elements of conspiracy to commit (predicate

crime), as charged in count

of the indictment. Conspiracy to commit (predicate crime) is

a separate offense from (predicate crime) and cannot be a basis fo r a conviction of felony

murder. Therefore, if you find defendant gui lty beyond a reasonable doubt of conspiracy to

commit (predicate crime) as charged in count , but you find the defendant not guilty of

5 If the facts indicate an attempted crime, see appropriat e charge on attempt elsewhere herein and modify to the

extent necessary. And if defendant's involvement was or may have been as an accomplice ( N.J.S.A. 2C:2-6), see

appropriate charges elsewhere herein including, if also applicable, the defense of renunciation ( N.J.S.A. 2C:2-6(e)).

In this regard, the Commentary on the New Jersey Penal C ode points out that subsection c of 2C:2-6, in defining

"accomplice," replaces the "aiding and abetting" language of N.J.S.A. 2A:85-14.

6 Where the issue is whether the predicate crime had terminated when the killing occurred, see State v. Holland, 59

N.J. 451, 458 (1971).

7 State v. Grey , 147 N.J. 4, 17 and 40 (1996). Where defendant is accused of being engaged in the commission of

more than one predicate crime (and, presumably, is so charged in the individual counts of the indictment), the jury

should be instructed that they must unanimously agree that defendant has committed (or atte mpted to commit) at

least one of the offenses charged. Grey, 147 N.J. at 17 n. 2, discussing State v.Harris, 141 N.J. 525, 561-564 (1995).

In appropriate cases, and when specifically requested by counsel, the jury shou ld be instructed that it must agree

unanimously on which predicate crime or crimes defendant was enga ged in committing when the death was caused.

Harris, 141 N.J. at 563; State v. Parker, 124 N.J. 628, 636-637 (1991).

FELONY MURDER-

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(

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

(predicate crime) as charged in count , you must find him/her not guilty of felony

murder.8]

The second and third elements require the Stat e to establish that the victim's death was

caused by the defendant and was caused during the commission of or attempt to commit or flight

after committing or attempting to commit the (insert predicate crime). I n o r d e r t o m e e t i t s

burden of proof as to the second and third elements, the State must prove beyond a reasonable

doubt the following:

1. That but for defendant's conduct in the commission of, or attempt to

commit, or flight after committing or attempting to commit (the predicate

crime) the victim would not have died. In other words, that the victim's

death would not have occurred without the commission of the (insert

predicate crime).

9

2. That the victim's death was a probable consequence of the commission of,

or attempt to commit or flight after committing or attempting to commit

(insert predicate crime). In order for the d eath to be a "probable

consequence" of the (insert predicate crime) the death must not have

been too remote, or too accidental in its occurrence, or too dependent on

another's volitional acts to have a ju st bearing on the defendant's liability

or the gravity of his/her offense. In other words, you must decide if the

State has proven beyond a reasona ble doubt that, under all the

circumstances, the death did not occur in such an unexpected or unusual

manner that it would be unjust to fi nd the defendant responsible for the

death.

10

[NOTE: In cases where Causation - Removal of Life Support is an issue, the jury

should be instructed as follows:

You have heard test imony that on [date], (insert victim’s name) was taken off life

support and that he/she died at some point after this wa s done. Should you find beyond a

reasonable doubt that (insert victim’s name) died from medical complications that resulted from

8 Grey, 147 N.J. at 15.

9 State v. Martin, 119 N.J. 2, 11, 19-34 (1990).

10 Where divergent factual versions give rise to different theories of causation, the trial court must provide the jury

with appropriate instructions to appl y, depending on which version it chooses to accept. Thus, in appropriate cases

the court must fashion its charge to instruct the jury how to deal with the defendant's (as well as with the State's)

factual contentions. State v. Martin, 119 N.J. 2, 16-18 (1990).

FELONY MURDER-

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(

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

injuries caused by defendant’s actions, the re moval of life support, in this case (method of

removal), is not an intervening cause that relie ves defendant of any criminal liability for those

actions.11 That is, if defendant ’s actions set in motion (insert victim’s name) need for life

support, without which death would result natu rally, then the causal lin k between defendant’s

action and the death of (insert victim’s name) was not broken by an unforeseen, extraordinary

act when (insert victim’s name) was removed from life support a nd then expired, unless there

was an intervening volitional act of another.]12

( NOTE: Where there is an issue of whether th e decedent was a participant in the crime

or attempted crime, add:

The State must also prove beyond a reasonab le doubt that (name of victim) was not a

participant in the (predicate crime or attempted cr ime). A participant is one who participates in

or shares in that crime.)

[CHARGE IN ALL CASES]

In conclusion, if you find, afte r a consideration of all the evidence, that the State has

proven to your satisfaction beyond a reasonable doubt each of these elements, as I have just

explained them: (1) that the defendant was engage d in the commission of or attempt to commit

or flight after committing or attempting to commit the crime of (predicate felony), as charged in

count of the indictment, (2) that the death of (name of victim) was caused by defendant,

(3) that the death of that person was caused at so me time within the course of the commission of

that crime including its aftermath of flight and c oncealment efforts, [and, if applicable, (4) that

(name of victim) was not a participant in that crime,] then you must find the defendant guilty of

felony murder.

On the other hand, if you find that the Stat e has failed to prove to your satisfaction

beyond a reasonable doubt any one or more of th ese elements, then you must find the defendant

not guilty of felony murder.

13

NOTE: In the event that purpos eful or knowing murder, aggravated manslaughter or

manslaughter is charged in the indictment the jury should be advised that if the State has failed to

prove beyond a reasonable doubt that the defenda nt caused the death of the victim then the

defendant should be found not gui lty of all charged homicide o ffenses. The jury should be

11 State v. Pelham, 176 N.J. 448, 455-456 and n. 2 (2003).

12 Pelham, 176 N.J. at 467.

13 It is assumed that the indictment would contain a sepa rate count charging defendant with the predicate crime or

attempted crime.

FELONY MURDER-

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

further advised with appropriate instructions that if they find beyond a reasonable doubt that the

defendant did cause the death of the victim but that the State has failed to prove that the

defendant was then engaged in the course of th e commission of or attempt to commit or flight

after committing or attempting to commit the (predicate crime) then they should proceed to

consider whether the defendant purposely, know ingly or recklessly caused the death of the

victim.14

(See appropriate charges elsewhere herein.)

14 In the rare event the facts are such that the jury might find the defendant not guilty of felony murder solely

because of its conclusion that the victim's death was not caused by the defendant quaere: should the predicate crime,

e.g., robbery or attempted robbery, be charged as a lesser in cluded offense, where, contrary to the assumption in

footnote 2 supra, the indictment does not contain a separate count for the offense? See 2C:1-8(d).