On October 21 the actor Alec Baldwin fired a .45 Long Colt round into the body of cinematographer Halyna Hutchins, killing her, while on the set of low-budget Western film “Rust.”
I’ve commented extensively on this event, including:
The general theme of my previous commentary is that Alec Baldwin’s shooting of Ms. Hutchins appears to have been the result of reckless conduct, and that a reckless killing, albeit unintentional, qualifies as felony involuntary manslaughter. Further, felony involuntary manslaughter carries a prison sentence of up to
four years 18 months under New Mexico law [AFB: The crime is a 4th-degree felony, not a 4-year sentence].
There is, however, another prosecutorial argument to be made on the facts of this case that could result in far more than merely four years in prison.
Indeed, it could justify a sentence of life imprisonment without possibility of early release.
That raises the question of whether that could be why Alec Baldwin took the tremendous risk of his interview with George Stephanopoulos this past week, shortly after which he deleted his Twitter account previously used for commenting publicly on the Hutchins killing? Was it because he’s been advised that if he doesn’t pull every political and emotive lever at his disposal he could be looking at life in prison if prosecuted, and not merely a worst-case of four years?
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OK, let’s dive back into this notion that Alec Baldwin could be looking at life in prison for his having shot dead Halyna Hutchins rather than merely a four-year sentence for involuntary manslaughter predicated on recklessness.
I’ll preface this analysis by noting up front that it involves the making of inferences from Alec Baldwin’s infamously poorly-controlled temper over a period of many years.
I’ll also note that despite the plain English reading of the relevant New Mexico law on this point, the law here is complex, and Alec Baldwin would have definite defenses to a life sentence charge made on the facts here. Accordingly, in this content I’ll detail both the reasoning path favoring that life sentence charge as well as the prospective legal argument against it, on the facts of this case.
I’m also obliged to note that it was a video yesterday by the great Canadian lawyer and legal commentator VivaFrei that brought to mind the prospect of this life sentence charge argument in the case of Alec Baldwin’s shooting dead of Halyna Hutchins. I caution that VivaFrei did not make such an argument himself, at least not in that video, so to the extent the notion takes heat, please direct that heat at me.
Incidentally, I’m a huge fan of VivaFrei’s work generally, so I encourage you to watch the entirety of his video from yesterday that I just referenced, click here for that, as well as to subscribe and otherwise support Viva’s efforts on YouTube, Twitter, Locals, and elsewhere.
The essence of VivaFrei’s argument in his video of yesterday is that it may be reasonable to infer from Alec Baldwin’s infamous history of poor anger management that his manipulation of the firearm that led to its (presumably unintentional) discharge was itself an intentional act done out of anger and frustration, and not merely some kind of an accidental slip of the trigger finger or thumb.
Here are the few seconds from VivaFrei’s excellent video that illustrates Alec Baldwin’s anger over time. (Unfortunately, if you’re watching this on YouTube, I’m averse to embedding other video content because doing so makes the YouTube angry—instead I’d encourage you to access the version of this content available at http://lawofselfdefense.com/baldwin.)
This first clip is a raging phone message Alec Baldwin left for his then 11-year-old daughter, some 15 years ago.
You have insulted me for the last time! You don’t have the brains, or the decency as a human being. I don’t give a damn that you’re 12 years old or 11 years old or that you’re a child, or that your mother is a thoughtless pain in the ass. I AM GONNA GET ON A PLANE, or I’m going to come out there for the day, and I’m gonna straighten your ASS OUT when I see you! You understand me? I’m gonna let you know just how I feel about what a rude little PIG you really are! You are a rude, thoughtless little pig.
Keep in mind, this rant is targeted at an 11-year-old child, who is also Alec Baldwin’s own daughter.
VivaFrei points out that at the time that rant occurred Baldwin was apparently in the midst of divorcing this child’s mother, and divorces do tend to raise intense emotions. Fair enough. That said, I’ve been through my own divorce, and however frustrated one might be with the soon-to-be-ex-spouse, I cannot imagine ever speaking to my own children in such a fashion.
More relevant, I suppose, is that this event took place some 15 years ago—but Baldwin’s uncontrolled anger has been put on public display on many other occasions.
VivaFrei then cites portions of Alec Baldwin’s interview with Stephanopolous where Baldwin is recounting how he was taking highly repetitive direction from Hutchins during the “marking” rehearsal in which Hutchins was shot. In the interview, Baldwin has already described how heavy a burden he perceives having to be on a set for four weeks, as he is for this film.
It’s also noted that the kind of micromanagement direction being given by Hutchins would normally be done only by the actual director, not merely by a relatively “lowly” director of photography, especially to the self-described “star” of the movie.
As VivaFrei puts it:
So put all the pieces of this puzzle together now and you have a short-tempered rage-aholic Alec Baldwin who by his own admission is fatigued, away from home and doesn’t like it, taking micromanagement and instructions from a director of photography for a scene that might very well not even be in the movie, and he looks at her and says, “can you see it now! can you see it now! can you see it now!” and then thinking the gun is empty he just pulls the trigger to release the hammer to get the gun back to its normal position, and it goes off.
Viva here is suggesting that Baldwin operated the firearm in a manner that resulted in a discharge out of pure frustration and uncontrolled anger, without expecting the gun to fire a live round. Whether this operation was in the form of pulling the trigger or “snapping” the hammer, I expect Viva is correct that Baldwin did not intend for the gun to actually fire.
But what if Alec’s intent was to do more than simply act frustrated?
What if Alec was specifically frustrated and unhappy with Halyna Hutchins in particular, and personally? What if he was offended at being compelled to take micro-managing direction from a mere cinematographer, and him being the lead star of the movie? Doesn’t she know how lucky she is just to have a startof his level on this dumpy little $5 million move?
What if he was thinking to himself, that rude thoughtless little pig, doesn’t she KNOW WHO I AM!
What if in that moment of anger Alec Baldwin decided he would teach that thoughtless little pig a lesson, put a little scare into her, and do it by pointing the gun at her and dropping the hammer, as if a shot were being fired? Not to actually shoot her, of course—just to make her jump, just to frighten her, as a mere corrective action so she would adjust her behavior towards him in a more respectful direction.
Well, that would be a pretty serious problem for Alec Baldwin, given the actual consequences.
Felony Murder Under New Mexico Law
Under New Mexico law, an unlawful intentional touching or application of force done in an angry manner qualifies as a simple battery (§ 30-3-4. Battery). Of course, we’re presuming that Baldwin never intended to actually apply force to Hutchins.
Nevertheless, merely putting someone in fear of an imminent battery is itself a crime. Under New Mexico law, menacing conduct which causes another person to reasonably believe that he is in danger of receiving an immediate battery qualifies as misdemeanor simple assault (§ 30-3-1. Assault).
Further, a gun, a deadly weapon, was used here, and unlawfully assaulting someone with a deadly weapon meaning putting them in fear of imminent harm from the gun, escalates the criminal offense to felony aggravated assault (§ 30-3-2. Aggravated assault).
And, finally, under New Mexico law the killing of one human being by another without lawful justification in the commission of any felony qualifies as felony murder, a murder in the first degree (§ 30-2-1 Murder).
Now if all that sounds like pretty bad news for Alec Baldwin—and it is—there’s at least some good news, as well.
First-degree murder is a capital offense under New Mexico law. As in, a death sentence. Execution. The green mile.
Fortunately for Alec Baldwin, however, New Mexico repealed its capital punishment sentencing statute in 2009, so at least that prospective fate is off the table in his case.
That nevertheless leaves the prospect of life imprisonment without possibility of early release—which is a stretch quite a bit longer than a mere four years for involuntary manslaughter.
Counter-Arguments to a Felony Murder Case Against Alec Baldwin
Now, I’m obliged to point out that the New Mexico appellate courts apparently don’t think much of the felony murder rule in general, and have made numerous efforts to interpret that rule narrowly.
Because of that, Alec Baldwin has definite legal arguments to make that his conduct stands outside the boundaries of felony murder under New Mexico law despite what a plain reading of the New Mexico murder statute would suggest.
I caution here that while I make a general commitment to translate the law into plain English and avoid legalese, I’m afraid there are certain legal doctrines that are inherently hair-splitting—and New Mexico’s treatment of the felony murder doctrine falls into that category. If you like digging into the nuts-and-bolts of legal doctrine, read away. If you don’t, you can stop reading now having been informed that Alec Baldwin would have definite legal counter-arguments to a felony murder case made against him.
For example, in the 2016 NM Supreme Court decision of State v. Marquez, 376 P.3d 815 (NM Sup. Ct. 2016), the court ruled that a felony murder could not predicated on just any underlying felony, in that particular case the underlying felony of shooting from a motor vehicle. The court argued that despite the plain reading of the murder statute (“the commission of any felony”) they believed the legislature did not intend felony murder to apply to just any underlying felony, but rather that:
[N]ot all felonies can serve as a predicate for felony murder. For one thing, some felonies are not inherently dangerous to human life or are not committed in a dangerous manner.
Well, fair enough, although that suggests an arguable surplusage of felonies in law generally, but that’s a topic for a different day.
The court also requires that the predicate felony for felony murder be one that is independent of the actual killing. I know that may come across as less than clear, so let me illustrate with an example of a felony murder charge being properly predicated (in the view of the NM supreme court) on an independent felony, and then contrast that with a scenario where the underlying felony is effectively a lesser included offense of some degree of murder itself and therefore not appropriately the basis of a felony murder charge.
We can imagine a felony liquor store robbery in which the clerk being robbed pulls out his own gun, shoots in self-defense, and unintentionally kills a bystander, with the result that the robber is charged with felony murder for the death. There the elements of felony robbery are entirely distinct from the elements of first degree murder—one can fully satisfy the elements of felony robbery without any necessary element of first-degree murder. In that sense, then, the felony robbery is independent of the killing. In that situation the NM supreme court would accept the felony robbery as a predicate for felony murder.
The NM supreme court sees matters differently when the underlying felony includes elements of some form of murder, however. Where a felonious assault or battery results in unintended death, the court reasons, the appropriate elevated charge is not felony murder, which is a form of murder in the first degree, but rather second-degree murder.
This matters, because whereas first degree murder is punishable by up to life in prison, second degree murder is punishable by up to only nine years in prison.
Of course, those scenarios are distinguishable from that of Alec Baldwin, because those scenarios involve an intent to cause at least some degree of harm, whereas we are presuming that Baldwin never intended to actually harm Hutchins at all.
So rather than dealing with two offenses both involving an intent to cause some degree of harm, with the distinction between the lesser and greater offense being merely the actual degree of harm caused, there is no such relationship between a felony assault meant merely to frighten and not intended to cause any degree of harm whatever, and second degree murder which requires an intent to cause actual harm.
In any case, the best defense for Alec Baldwin against an otherwise substantive felony murder argument would be either that a felony assault absent actual intent to cause harm should be treated in a similar fashion as a felony assault with intent to cause harm, and thus not be a predicate for felony murder under State v. Marquez but at worst be grounds for second degree murder (and, in Alec Baldwin’s case, not even that, due to lack of intent to cause harm), or alternatively that a felony assault absent actual intent to cause harm should if anything be treated even more leniently than a felony assault with actual intent to cause harm, and for that reason be neither a predicate for felony murder nor a basis for second degree murder
In any case, I would suggest that when the barrier between oneself and life in prison without possibility of early release consists largely on fine readings of law and subtle distinctions of legal doctrine by a state supreme court, one is not in the most secure of legal positions.
OK, folks, that’s all I have for you on this case until Wednesday morning.
Until next time:
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Attorney Andrew F. Branca
Law of Self Defense LLC
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