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

Revised 3/22/04

FELONY MURDER –NON-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 does not contend that th e defendant himsel f/herself killed (name of victim).

The State charges that (name of victim) was shot and killed 1 while defendant, alone or with one

or more other persons, was engaged in the commi ssion of or attempt to commit or flight after

committing or attempting to commit 2 the crime of (insert predicate crime, eg., robbery), as

charged in count of the indictment.3

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 either act ing alone or with one or more other

persons, is engaged in the commission of or attempt to commit or flight after

committing or attempting to commit... (inser t predicate crime), and in the course

of such crime or the immediate flight therefrom.... any person causes the death of

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

Under this law, it does not matter that the act which caused death was committed by a

participant in the crime of (predicate crime) ot her than the defendant, or even by someone other

than a participant 4 Nor does it generally matter that the act which caused death was committed

recklessly or unintentionally or accidentally. 5 Each participant in the crime of (predicate crime),

whether the participant himself/herself caused the death or not, would be guilty of felony murder.

In order for you to find the defendant guilty of felony murder in this case, the State is

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

2 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.

3 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 the indictment would contain a separate count or counts charging defendant

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

4 Under N.J.S.A. 2C:11-3a(3), a perpetrator would be guilty of murder if the death of the victim ( e.g., a

bystander, but not another participant) was caused by another person, such as a police officer or a shopkeeper who

was being robbed. Cf. State v. Kress, 105 N.J. Super. 514 (Law Div. 1969).

5 The same result would follow if the death was the result of the victim's fear or fright. See State v. Smith,

210 N.J. Super . 43 (App. Div. 1986); State v. McKeiver , 89 N.J. Super . 52 (Law Div. 1965), as long as the

requirements of the causation statute, N.J.S.A. 2C:2-3 were charged and satisfied.

FELONY MURDER -

NON-SLAYER PARTICIPANT

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

required to prove beyond a reason able doubt, from all the eviden ce in the case, each of the

following elements of the offense charged:

1. That on or about (insert date) 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) , as charged in count of the

indictment;6

2. 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.7

[And, if applicable:

3. That (name of victim) was not a participant in the 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 con cerning 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 .8

[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

6 If the facts indicate an attempted crime, see appr opriate charge on attempt else where 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.

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

Holland, 59 N.J. 451, 458 (1971).

8 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, presumab ly, 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

attempted 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 should be

instructed that it must agree unanimously on which predicate crime or crimes defendant was engaged 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 -

NON-SLAYER PARTICIPANT

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

crime), as charged in count of the indictment. Conspiracy to commit (predicate crime) is a

separate offense from (predicate crime) and can not be a basis for a conviction of felony murder.

Therefore, if you find defendant guilty beyond a reasonable doubt of conspiracy to commit

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

crime) as charged in count , you must find him/her not guilty of felony murder.9]

The second element requires the State to establish that the victim's death was caused

during the commission of or attempt to comm it or flight after committing or attempting to

commit the (insert predicate crime). In order to meet its burden of proof in this regard, the State

must prove beyond a reasonable doubt the following:

1. That but for defendant's conduct or the conduct of one or more others with

whom the defendant participated in the commissi on 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).

10

2. That the victim's death was a proba ble consequence of the commission of or

attempt to commit or flight after committing or attempting to commit (insert predicate crime). In

order for the death to be a "proba ble 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 just bear ing 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 reasonable doubt that, under all

the circumstances, the death did not occur in such an unexpected or unusual manner that it would

be unjust to find the defendant responsible for the death.

11

[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

9 Grey, 147 N.J. at 15.

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

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

jury with appropriate instruc tions to apply, 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 -

NON-SLAYER PARTICIPANT

(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.12 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.]13

( NOTE: In cases in which someone other than a participant causes the death the jury

should be instructed as follows:

A killing which is committed by someone other than a participant in the (insert predicate

crime), such as a victim or a police officer, need not be considered too re mote, too accidental or

too dependent on another's volitional act to have a just bearing on the issue of the defendant's

culpability. Our law recognizes that a death wh ich occurs as a result of self-defense or

retaliation may not be so unexpected or unusual th at it would be unjust to hold a participant in

the (insert predicate crime) responsible for the death.

14)

( NOTE: Where there is an issue of whether the 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.)

( NOTE: In the event facts appear in the State's or defenda nt's proofs supporting the

affirmative defense contained in N.J.S.A.

2C:11-3a(3)(a) through (d ), but not otherwise the

following instructions should be given:

Under the statute which applies here, it is an affirmative defense to the charge of felony

murder if there is proof in the case that defendant

(a) Did not commit the homicidal act or in any way solicit, request, command,

importune, cause or aid the commission thereof; and

(b) Was not armed with a deadly weapon, or any instrument, article or

substance readily capable of causing death or serious phys ical injury and

12 State v. Pelham, 176 N.J. 44, 455-456 and n. 2 (2003).

13 Pelham, 176 N.J. at 467.

14 State v. Martin, supra, 119 N.J. at 32.

FELONY MURDER -

NON-SLAYER PARTICIPANT

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

of a sort not ordinarily carried in public places by law-abiding persons;

and

(c) Had no reasonable ground to believe that any other participant was armed

with such a weapon, instrument, article or substance; and

(d) Had no reasonable ground to believe that any other participant intended to

engage in conduct likely to result in death or serious physical injury.

This means that the affirmative defense is not available to defendant unless there is

evidence in the case supporting al l of the four requirements, and not merely one, or two or three

of them. If there is such supporting evidence, e ither in the State's proofs or as presented in

behalf of the defendant, then it is incumbent upon the State to negate this evidence by proof

beyond a reasonable doubt.

15 However, it is not necessary that all four requirements be negated.

Since the defense is not available to defendant unless the evidence supports all four of the

requirements, it is sufficient for the State in such case to present proof beyond a reasonable doubt

negating any one of them).

If you find, after a consideration of all th e evidence that the State has proven to your

satisfaction beyond a reasonable doubt each of these elements of the offense charged, as I have

just explained them to you; that is, (1) 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), as charged in count

of the indictment, (2) th at 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 [and, if applicable, (3) that (name of victim) was not

a participant in the 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 thos e elements of the crime charged, as I have

explained them, then you must find the defendant not guilty of felony murder.

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 any particip ant caused the death of the victim then the

defendant should be found not guilty of all charged homicide offenses.

15 See State v. Fair, 45 N.J. 77, 91 (1965); State v. Abbott, 36 N.J. 63, 72 (1961); Commentary on New Jersey

Penal Code, 35-36.

FELONY MURDER -

NON-SLAYER PARTICIPANT

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

The jury should be further advised with appr opriate instructions that if they find beyond a

reasonable doubt that any particip ant did cause the death of the victim but that the State has

failed to prove that the defenda nt was then engaged as an acco mplice in the course of the

commission of or attempt to commit or flight after committing or attempting to commit the

(predicate crime) charged in count , then they should proceed to consider whether the

defendant as an accomplice purposely, knowingly or recklessly caused the death of the victim.16

(See appropriate charges elsewhere herein.)

( NOTE: If the affirmative defense is an issue in the case, incorporate the following into

the summary:

If you find there is evidence in the case suppor ting all elements of the affirmative defense

which I explained to you, and that the State ha s failed to negate beyond a reasonable doubt any

one or more of them, then you must find the defe ndant not guilty of felony murder. But if you

find that the State has presented proof beyond a reasonable doubt negating one or more of those

elements, and has also proven beyond a reasonable doubt all the elements of the offense charged,

then you will must the defendant guilty of felony murder.)

16 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 wa s not caused by the defendant or some other person, quaere:

should the predicate crime, e.g., robbery or attempted robbery, be charge d as a lesser included offense, where,

contrary to the assumption in footnote 3 supra, the indictment does not contain a separate count for the offense? See

2C:1-8(d).