Most everyone has a general idea of what “Homicide” means, but few people really understand every aspect of the laws it is governed by. “Homicide,” is a very complex crime with many levels and layers to how it is applied. For example, while it is true that all murders are homicides, not all homicides are murder. This is because “murder” is a specific form of homicide that has two levels, first-degree and second-degree, and two related, but separate sub-types, Felony Murder and Capital Murder. There are, however, two other forms of homicide that are not legally referred to as murder: Voluntary Manslaughter, and Involuntary Manslaughter.
Moreover, the laws pertaining to “homicide” are full of legal words and phrases that can make them difficult to understand, such as malice aforethought, aggravating factors, mitigating factors, and enhancements.
What is the legal definition of “homicide?”
“Homicide” is actually a collection of six commonly referred to categories. Consequently in order to understand “homicide” we must first look at each of the six different categories.
NRS 200.010 defines “murder”:
Murder is the unlawful killing of a human being:
- With malice aforethought, either express or implied;
- Caused by a controlled substance which was sold, given, traded or otherwise made available to a person in violation of chapter 453 of NRS; or
- Caused by a violation of NRS 453.3325.
- The unlawful killing may be effected by any of the various means by which death may be occasioned.
There are essentially two ways that killing someone becomes “murder,” either because it was done with “malice aforethought, either express or implied,” or because it occurred because controlled substances were involved.
What does “malice aforethought” mean?
NRS 200.020 defines “Malice: Express and implied defined”:
- Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof.
- Malice should be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart.
In other words, there are two types of “malice aforethought”: Express and Implied.
There are two elements to “express malice.” The first is that you act with the intention of killing another person. The second is that your intent is clear by the circumstances of the murder.
“Implied malice” exists when one of two factors exists: either it does not appear that the alleged murderer was provoked into killing or when the circumstances show that the alleged murderer acted with a reckless disregard for human life.
Finally, the word “aforethought” generally means that the alleged murderer acted after having at least a moment to think about what he was about to do.
Taken together, “malice aforethought, either express or implied” means that the alleged murderer either planned to kill the victim, knew that his actions were going to kill the victim, or acted with a complete disregard for the life of the victim.
Why does the law refer to NRS Chapter 453?
NRS Chapter 453 governs controlled substances, or drugs. The reference, therefore means that if someone dies because you provided, or made available, the controlled substance that caused someone’s death, then you can be charged with murder.
The second reference, to NRS 453.3325, refers specifically to there being a child present during violations of the controlled substance laws.
Logically, these should make sense. Controlled substances are regulated because they can be dangerous, so providing such a substance to someone can easily be seen as a reckless disregard for that person’s life. Moreover, since crimes involving controlled substances often lead to death, allowing a child to be present during the commission of such a crime is a clear disregard for that child’s life.
So what are the possible penalties?
Since “homicide” is actually a collection of six different forms of killing, the penalties are dependent on which specific type of killing took place. Consequently, it is important to understand the differences between all six.
- First-degree murder – NRS 200.030(1)
- Murder of the first degree is murder which is:
- Perpetrated by means of poison, lying in wait or torture, or by any other kind of willful, deliberate and premeditated killing;
- Committed in the perpetration or attempted perpetration of sexual assault, kidnapping, arson, robbery, burglary, invasion of the home, sexual abuse of a child, sexual molestation of a child under the age of 14 years, child abuse or abuse of an older person or vulnerable person pursuant to NRS 200.5009;
- Committed to avoid or prevent the lawful arrest of any person by a peace officer or to effect the escape of any person from legal custody;
- Committed on the property of a public or private school, at an activity sponsored by a public or private school or on a school bus while the bus was engaged in its official duties by a person who intended to create a great risk of death or substantial bodily harm to more than one person by means of a weapon, device or course of action that would normally be hazardous to the lives of more than one person; or
- Committed in the perpetration or attempted perpetration of an act of terrorism.
If you are convicted of first-degree murder, then you are guilty of a category A felony, and you will be facing:
- The death penalty, but only if one or more of the aggravating factors are present and there are not enough mitigating factors to outweigh the aggravating factors;
Please Note: If the Court finds that you have an intellectual disability and has, therefore, stricken the notice of intent to seek the death penalty.
- Imprisonment, if there are no aggravating factors present, or the mitigating factors outweigh the aggravating factors, in which case you will be facing one of three sentences:
- Life without the possibility of parole;
- Life with the possibility of parole after a minimum of 20 years;
- A definite term of up to 50 years, with eligibility for parole after 20 years;
- Life without the possibility of parole;
Please Note: The decision regarding which sentence to impose is not based on the presence of absence of aggravating or mitigating factors. The decision is left to the discretion of the jury.
- Second-degree murder – NRS 200.030(2)
As stated in NRS 200.03(2), “Murder of the second degree is all other kinds of murder” other than first degree murder.
If you are convicted of murder in the second degree, then you are guilty of a category A felony and will be facing:
- Life in prison with the possibility of parole after a minimum of 10 years has been served; or
- For a definite sentence of 25 years, with the possibility of parole after a minimum of 10 years has been served.
Please Note: As with the possible sentences for first degree murder, the jury has the discretion to decide which of the two prison sentences to impose on you.
Also Note: For a more in-depth look at first and second degree murder, as well as a discussion regarding the difference between manslaughter and murder, please click here.
- Voluntary Manslaughter – NRS 200.050
Although it is charged in a separate statute from first and second-degree murder, Manslaughter is another form of homicide.
NRS 200.040 states:
- Manslaughter is the unlawful killing of a human being, without malice express or implied, and without any mixture of deliberation.
- Manslaughter must be voluntary, upon a sudden heat of passion, caused by a provocation apparently sufficient to make the passion irresistible, or involuntary, in the commission of an unlawful act, or a lawful act without due caution or circumspection.
- Manslaughter does not include vehicular manslaughter as described in NRS 484B.657.
NRS 200.050 Goes on to define “Voluntary Manslaughter” as:
- In cases of voluntary manslaughter, there must be a serious and highly provoking injury inflicted upon the person killing, sufficient to excite an irresistible passion in a reasonable person, or an attempt by the person killed to commit a serious personal injury on the person killing.
- Voluntary manslaughter does not include vehicular manslaughter as described in NRS 484B.657.
Essentially, “voluntary manslaughter” is a killing that takes place in the heat of passion. This is what the statute is referring to when it states “there must be a serious and highly provoking injury inflicted upon the person killing…or an attempt by the person killed to commit a serious personal injury on the person killing.” In this case, the serious injury does not have to be a physical one, it can be emotional or psychological, like the husband who catches his wife in bed with another man.
If you are convicted of voluntary manslaughter, then you are guilty of a category B felony, and you will be facing:
- Between 1 and 10 years in a Nevada State Prison; and
- The possibility of a fine up to $10,000.00.
Please Note: For a more in-depth discussion of Voluntary Manslaughter, as well as a discussion about the difference between Manslaughter and Murder, please click here.
- Involuntary Manslaughter – NRS 200.070
NRS 200.070 defines “Involuntary Manslaughter” as:
- Except under the circumstances provided in NRS 484B.550 and 484B.653, involuntary manslaughter is the killing of a human being, without any intent to do so, in the commission of an unlawful act, or a lawful act which probably might produce such a consequence in an unlawful manner, but where the involuntary killing occurs in the commission of an unlawful act, which, in its consequences, naturally tends to destroy the life of a human being, or is committed in the prosecution of a felonious intent, the offense is murder.
- Involuntary manslaughter does not include vehicular manslaughter as described in NRS 484B.657.
In other words, “Involuntary Manslaughter” is an accidental killing, but specifically one that occurs while you are breaking the law, or during a lawful act that is likely to produce an illegal killing. The most common examples of this type of homicide are:
- Driving a little over the speed limit and hitting a pedestrian who dies from the wounds;
- Leaving poison within the reach of a small child, who then ingests the poison and dies;
- Indiscriminately firing a bow and arrow into the air when one of the arrows kills a passerby.
Within the realm of homicide, Involuntary Manslaughter is the lowest category of homicide because it requires no intent to kill, no deliberation and no premeditation.
If you have been convicted of Involuntary Manslaughter, then you are guilty of a category D felony and will be facing:
- Between 1 and 4 years in a Nevada State Prison; and
- The possibility of fines up to $5,000.00.
Please Note: For a more in-depth discussion of “Involuntary Manslaughter,” please click here.
- Felony Murder – NRS 200.030(1)(b)
Felony murder is essentially the colloquial name for any death that occurs during anyone of the situations listed in NRS 200.030(1)(b).
Committed in the perpetration or attempted perpetration of sexual assault, kidnapping, arson, robbery, burglary, invasion of the home, sexual abuse of a child, sexual molestation of a child under the age of 14 years, child abuse or abuse of an older person or vulnerable person pursuant to NRS 200.5009.
In other words, “Felony Murder” is really just a subset of Murder in the First Degree. As a result, Felony Murder is a category A felony and carries with it:
- Death; or
- Life without the possibility of parole in a Nevada State Prison; or
- A Life sentence in a Nevada State Prison with the possibility of parole after a minimum of 20 years has been served; or
- A definite sentence of 50 years in a Nevada State Prison with the possibility of parole after a minimum of 20 years has been served.
Please Note: For a more in-depth discussion of the Felony Murder rule, please click here.
- CAPITAL MURDER
Capital murder is not, strictly speaking, a category of homicide. Similar to Felony Murder, Capital Murder is only a subset of Murder in the First Degree. It applies whenever the prosecution is seeking the death penalty for a First-Degree Murder case.
Capital Murder applies when there are “aggravating factors” in a First-Degree Murder case.
What are “aggravating factors?
Essentially, “aggravating factors” are circumstances of the crime that raise the maximum punishment. In the case of Capital Murder, they raise the maximum punishment from Life in Prison, to the possibility of the death penalty.
There are number of different factors that can “aggravate” your sentence:
- If the murder was committed during the commission of one of the following crimes and you either meant to kill the victim, or knew that death was likely to occur from your actions. The crimes that apply are:
- Home Invasion;
- First-Degree Arson; or
- First-Degree Kidnapping.
- If the murder was committed while you were under a sentence for conviction or a crime, whether you are in prison or out on parole;
- If you knowingly or intentionally created a risk of death to others at the time of the murder;
- If you committed the murder in order to prevent an arrest or to escape custody;
- If the murder was committed in exchange for pay (monetary or otherwise);
- If the murder victim was a law enforcement officer or firefighter engaged in their official duties. It is important that you either knew or should have known that the victim was an officer or firefighter at the time of the murder;
- If the victim was tortured or mutilated prior in addition to being killed (Please Note: Mutilation does not have to occur prior to the murder to apply as an aggravating factor);
- If the killing was random, and there was more than one killing;
- If the murder was of a person younger than 14 years old;
- If the murder was a hate-crime based on race, religion, national origin, disability, or sexual orientation;
- If the murder occurred in the process of, or as a part of, a rape or attempted rape;
- If the murder took place on school property, or at a school function or activity, and there was an intent to create a great risk of injury or death to multiple people;
- If the murder was committed as an act of terrorism.
If any of the above circumstances applies to your case, then you may be facing “capital murder” charges, and you should speak with an experienced criminal defense attorney as soon as possible.
However, just as there are “aggravating factors” to a murder, there are equivalent “mitigating factors” that can lower the sentence you may be facing.
What are the “mitigating factors”?
In many cases, there are circumstances that can help to lower the maximum penalty that you will be facing. These circumstances are known as “mitigating factors” and include:
- You had no criminal history prior to the murder;
- You were under an extreme mental disorder at the time of the murder (this generally applies when you were under a delusion or some sort of mental disorder that affects your ability to sufficiently understand the consequences of your actions);
- You were under extreme duress, or were forced to kill by another person;
- You were very young at the time of the murder (generally, this applies when you were young enough that you could not fully understand the consequences of your actions);
- You were the victim of a poor, usually abusive, childhood;
- Any other facts or circumstances that could give the jury reason to be lenient on you during the penalty phase of a trial.
Generally speaking, in a Capital Murder case (and, to a lesser extent, in any homicide case), the prosecutor will seek the maximum possible penalty, and your attorney will use any and all possible mitigating factors to convince the jury to impose a lesser sentence.
Are there any Defenses to Homicide?
Yes, but the specific defenses will depend on the specific facts and circumstances of your case as well the specific crime charged. Some of the more common defenses are listed below:
- Self-Defense – Self-defense is a commonly understood concept. It is important to understand, however, that it is only a defense to murder, if your actions were “reasonable.” In other words, you must have been facing serious bodily injury or death, and that harm must have been imminent, or about to occur, in order for lethal force to be used in self-defense. Self-defense can apply to any form of homicide, so long as the force used in your defense was appropriate and reasonable;
- Insufficient Evidence – As with any crime, the prosecution must prove each element of the crime beyond a reasonable doubt, consequently, showing that the prosecutor cannot prove one or more of the elements should be enough to get the charges dropped or dismissed;
- Police mistake or misconduct – Murder investigations take a long time and are extensive. If the police made a mistake, conducted an illegal search, or mishandled evidence during the process of investigating the charges, then any evidence derived from the police misconduct should be suppressed. If the evidence that is suppressed is important enough to create doubt in the prosecution’s case, then the charges may be dropped or dismissed;
There are other defenses, but they depend largely on the specific charges you are facing. For a further explanation of the charge-specific defenses, please use the following links: Murder in the First Degree; Murder in the Second Degree; Voluntary Manslaughter; Involuntary Manslaughter; Felony Murder; or Capital Murder.
What should I do if I’ve been charged with Homicide?
Because of the seriousness of the charges against you, it is extremely important that you speak with an experienced criminal defense attorney so that you can discuss the facts and circumstances of your case to determine what, if any, defenses may apply.