HRS § 707-701 - Murder in the first degree

• Cite as: HRS § 707-701

(1) A person commits the offense of murder in the first degree if the person intentionally or knowingly causes the death of:

(a) More than one person in the same or separate incident;

(b) A law enforcement officer, judge, or prosecutor arising out of the performance of official duties;

(c) A person known by the defendant to be a witness in a criminal prosecution and the killing is related to the person's status as a witness;

(d) A person by a hired killer, in which event both the person hired and the person responsible for hiring the killer shall be punished under this section;

(e) A person while the defendant was imprisoned;

(f) A person from whom the defendant has been restrained, by order of any court, including an ex parte order, from contacting, threatening, or physically abusing pursuant to chapter 586;

(g) A person who is being protected by a police officer ordering the defendant to leave the premises of that protected person pursuant to section 709-906(4), during the effective period of that order; [or]

(h) A person known by the defendant to be a witness in a family court proceeding and the killing is related to the person's status as a witness; or

(i) A person whom the defendant restrained with intent to:

(i) Hold the person for ransom or reward; or

(ii) Use the person as a shield or hostage.

(2) Murder in the first degree is a felony for which the defendant shall be sentenced to imprisonment as provided in section 706-656.

Cite as HRS § 707-701

History: Amended by L 2016, c 214,§ 1, eff. 7/6/2016.

History: Amended by L 2011, c 63, § 2, eff. 7/1/2011.

History: L 1972, c 9, pt of §1; am L 1986, c 314, §49; am L 2001, c 91, §4; am L 2006, c 230, §27 .

Note:

COMMENTARY ON 707-701

General analysis. The aggravated nature and severe sanctions traditionally associated with the crime of murder are hardly subjects of debate today. The actor in such a crime has disregarded the most highly held social values, and has proved oneself an extreme danger to society. The Code recognizes the highly aggravated nature of this crime in imposing its most severe sanction.

Several states, and some recent efforts at penal law revision, recognize two degrees of murder.[1] One of the primary reasons for this distinction is to limit the scope of first degree murder in jurisdictions which make it a capital offense.[2] In states, like Hawaii, where the death penalty has been abolished, the above reason for the distinction is no longer applicable and the continuation of the distinction would be a carryover from the older death penalty legislation.

Under previous Hawaii law, first degree murder required proof of "deliberate premeditated malice aforethought."[3] For a conviction of murder in the second degree, the Hawaii law required only "malice aforethought."[4] The Code is in accord with the Model Penal Code in making murder a unified offense which requires that the actor act intentionally or knowingly with respect to the homicidal result.[5] If a person has the conscious object of causing the death of another, or if the person is "practically certain" that the person will cause the death, the person has the requisite culpability for conviction.

Murder has usually been defined to provide that it can be committed by extreme recklessness. In recent codes which do recognize two degrees of murder, a homicide caused with this lesser degree of mental culpability has been made murder in the second degree.[6] The net effect is to change manslaughter to murder when aggravated circumstances are present. Typically, these formulations hold an individual guilty of murder in the second degree if

[h]e recklessly causes the death of another person under circumstances which manifest a cruel, wicked, and depraved indifference to human life.[7]

Analytically, however, it is both simpler and more appropriate to leave provisions for more severe sentences in aggravated circumstances to those sections which are specifically designed to deal with such cases. An actor whose indifference to human life amounts to "practical certainty" of causing death will be held to have caused death knowingly under the Code's formulation of murder; but where the actor's conduct is characterized by a "cruel, wicked, and depraved indifference," without more, these character traits ought to be taken into account at the time of disposition. Sections 706-661 and 706-662 provide for extended sentences in such aggravated circumstances. An individual who would, under a statute such as that quoted above, be convicted of second degree murder would, under the Code's system, be convicted of manslaughter and given an extended sentence. The resultant sentence may be the same in both cases;[8] however, where the other formulation requires the determination of the actor's character to be made by the finder of fact, the Code assigns this task to a psychiatrist, who is eminently better suited to make such determinations. More specifically, the psychiatrist must report that the actor's conduct is characterized by "compulsive, aggressive behavior with heedless indifference to consequences, and that such condition makes him a serious danger to others."[9] It is easily seen that the psychiatrist is looking for precisely those traits which the trier of fact is asked to find in the other form of the statute. And, beyond the psychiatrist's greater expertise in making such determinations, the abnormality presented by such character traits falls more appropriately under special circumstances requiring prolonged treatment, via an extended sentence, than under greater moral culpability requiring conviction for a more serious offense.