Experienced Defending Homicide Charges

If you have been charged with any type of murder, immediately contact me, former prosecutor Justin Caldarone of The Caldarone Law Group, P.A., for a free consultation to protect your liberty and good name! Contact me online or call 239-244-3242 for trusted criminal defense counsel.

Introduction To Attempted Homicide

Attempted murder in the first degree includes the lesser crimes of attempted murder in the second degree, attempted murder in the third degree and attempted voluntary manslaughter, all of which are unlawful. An attempted killing that is excusable or was committed by the use of justifiable deadly force is lawful.

Justifiable Attempted Homicide

The attempted killing of a human being is justifiable and lawful if necessarily done while resisting an attempt to murder or commit a felony upon the person charged, or to commit a felony in any dwelling house in which the person charged was at the time of the attempted killing.

Excusable Attempted Homicide

According to the standard jury instructions concerning homicide, the attempted killing of a human being is excusable and therefore lawful under any one of the three following circumstances:

1. The alleged victim is dead.
   1. The death occurred as a consequence of and while the person charged was engaged in the commission of a criminal offense.
   2. The death occurred as a consequence of and while the person charged was attempting to commit a criminal offense.
   3. The death occurred as a consequence of and while the person charged, or an accomplice, was escaping from the immediate scene of the criminal offense.
   4. The person charged was the person who actually killed the alleged victim.
   5. The alleged victim was killed by a person other than the person charged, but both the person charged and the person who killed the alleged victim were principals in the commission of a criminal offense.
2. The alleged victim is dead.
   1. The death was caused by the criminal act of the person charged.
   2. There was an unlawful killing of the alleged victim by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.
   3. A person or ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and
   4. Is done from ill will, hatred, spite or an evil intent, and
   5. Is of such a nature that the act itself indicates an indifference to human life.
3. The alleged victim is dead.
   1. The death occurred as a consequence of and while the person charged was committing a crime.
   2. The death occurred as a consequence of and while the person charged was attempting to commit a crime.
   3. The death occurred as a consequence of and while there was an escape from the immediate scene where a crime was committed.
4. The alleged victim is dead.
   1. The death was caused by the criminal act of the person charged.
   2. There was a premeditated killing of the alleged victim.
   3. The person charged was not the person who actually killed the alleged victim but did knowingly aid, abet, counsel, hire or otherwise procure the commission of a crime.
   4. The person who actually killed the alleged victim was not involved in the commission or the attempt to commit a crime.

An “act” includes a series of related actions arising from and performed pursuant to a single design or purpose.

“Killing with premeditation” is killing after consciously deciding to do so. The decision must be present in the mind at the time of the killing. The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the killing. The period of time must be long enough to allow reflection by the person charged. The premeditated intent to kill must be formed before the killing.

The question of premeditation is a question of fact to be determined by a jury or a judge from the evidence. It will be sufficient proof of premeditation if the circumstances of the killing and the conduct of the accused convince you beyond a reasonable doubt of the existence of premeditation at the time of the killing.

If a person has a premeditated design to kill one person and in attempting to kill that person actually kills another person, the killing is premeditated.

Felony Murder – First Degree

To prove the crime of First Degree Felony Murder, the State Attorney must prove the following element beyond a reasonable doubt:

In order to convict of First Degree Felony Murder, it is not necessary for the State Attorney to prove that the person charged had a premeditated design or intent to kill.

Murder – Second Degree

To prove the crime of Second Degree Murder, the State Attorney must prove the following element beyond a reasonable doubt:

An “act” includes a series of related actions arising from and performed pursuant to a single design or acts that:

In order to convict of Second Degree Murder, it is not necessary for the State Attorney to prove the person charged had an intent to cause death.

Felony Murder – Second Degree

To prove the crime of Second Degree Felony Murder, the State Attorney must prove the following three elements beyond a reasonable doubt:

• When the killing is committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution and without any unlawful intent, or
• When the killing occurs by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or
• When the killing is committed by accident and misfortune resulting from a sudden combat, if a dangerous weapon is not used and the killing is not done in a cruel or unusual manner.

“Dangerous weapon” is any weapon that, taking into account the manner in which it is used, is likely to produce death or great bodily harm.

Murder – First Degree

There are two ways in which a person may be convicted of first-degree murder. One is known as premeditated murder and the other is known as felony murder.

To prove the crime of First Degree Premeditated Murder, the state attorney must prove the following three elements beyond a reasonable doubt:

• a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and
• is done from ill will, hatred, spite, or an evil intent, and
• is of such a nature that the act itself indicates an indifference to human life.

In order for the State Attorney to convict the person charged of Attempted Second Degree Murder, it is not necessary for the State Attorney to prove the person charged had an intent to cause death.

It is not an attempt to commit second-degree murder if the person charged abandoned the attempt to commit the offense or otherwise prevented its commission under circumstances indicating a complete and voluntary renunciation of his or her criminal purpose.

Attempted Voluntary Manslaughter

To prove the crime of Attempted Voluntary Manslaughter, the State Attorney must prove the following element beyond a reasonable doubt:

The person charged committed an act or procured the commission of an act which was intended to cause the death of the alleged victim and would have resulted in the death of the alleged victim except that someone prevented the person charged from killing the alleged victim or he or she failed to do so.

However, the person charged cannot be guilty of Attempted Voluntary Manslaughter if the attempted killing was excusable or justifiable.

It is not an attempt to commit manslaughter if the person charged abandoned the attempt to commit the offense or otherwise prevented its commission under circumstances indicating a complete and voluntary renunciation of his or her criminal purpose.

To “procure” means to persuade, induce, prevail upon, or cause a person to do something.

In order to convict of Attempted Voluntary Manslaughter, it is not necessary for the State Attorney to prove that the person charged had a premeditated intent to cause death.

Introduction to Homicide

Murder in the First Degree includes the lesser crimes of Murder in the Second Degree, Murder in the Third Degree, and Manslaughter, all of which are unlawful.

A killing that is excusable or was committed by the use of justifiable deadly force is lawful.

If you find the alleged victim was killed by the person charged, a jury or a judge will then consider the circumstances surrounding the killing in deciding if the killing was Murder in the First Degree, Murder in the Second Degree, Murder in the Third Degree, Manslaughter, or whether the killing was excusable or resulted from justifiable use of deadly force.

Justifiable Homicide

The killing of a human being is justifiable homicide and lawful if necessarily done while resisting an attempt to murder or commit a felony upon the person charged, or to commit a felony in any dwelling house in which the person charged was at the time of the killing.

Excusable Homicide

The killing of a human being is excusable, and therefore lawful, under any one of the following three circumstances:

• The person charged intentionally committed an act which would have resulted in the death of the alleged victim except that someone prevented the person charged from killing the alleged victim or he or she failed to do so.
• The act was imminently dangerous to another and demonstrating a depraved mind without regard for human life.

An “act” includes a series of related actions arising from and performed pursuant to a single design or purpose.

An act is “imminently dangerous to another and demonstrating a depraved mind” if it is an act or series of acts that:

• The person charged did some act intended to cause the death of the alleged victim that went beyond just thinking or talking about it.
• The person charged acted with a premeditated design to kill the alleged victim.
• The act would have resulted in the death of the alleged victim except that some prevented the person charged from killing the alleged victim or he or she failed to do so.

A premeditated design to kill means that there was a conscious decision to kill. The decision must be present in the mind at the time the act was committed. The law does not fix the exact period of time that must pass between the formulation of the premeditated intent to kill and the act. The period of time must be long enough to allow reflection by the person charged. The premeditated intent to kill must be formed before the act was committed.

The question of premeditation is a question of fact to be determined by a jury or a judge from the evidence. It will be sufficient proof of premeditation if the circumstances of the attempted killing and the conduct of the accused convince a jury or a judge beyond a reasonable doubt of the existence of premeditation at the time of the attempted killing.

It is not an attempt to commit first degree premeditated murder if the person charged abandoned the attempt to commit the offense or otherwise prevented its commission under circumstances indicating a complete and voluntary renunciation of his or her criminal purpose.

Attempted Second Degree Murder

To prove the crime of Second Degree Murder, the State Attorney must prove the following two elements beyond a reasonable doubt:

• When the attempted killing is committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution and without any unlawful intent, or
• When the attempted killing occurs by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or
• When the attempted killing is committed by accident and misfortune resulting from a sudden combat, if a dangerous weapon is not used and the attempted killing is not done in a cruel and unusual manner.

“Dangerous weapon” is any weapon that, taking into account the manner in which it is used, is likely to produce death or great bodily harm.

Attempted Murder – First Degree (Premeditate)

To prove the crime of Attempted First Degree Premeditated Murder, the State Attorney must prove the following three elements beyond a reasonable doubt: