MD MPJI-Cr 4:17.14 Homicide — Attempted First Degree Murder, Attempted Second Degree Murder, and Attempted Voluntary Manslaughter (Imperfect Self-defense)

Maryland Criminal Pattern Jury Instructions (MSBA)
CHAPTER FOUR CRIMINAL OFFENSES
HOMICIDE–ATTEMPTED FIRST DEGREE MURDER, ATTEMPTED SECOND DEGREE MURDER, AND ATTEMPTED VOLUNTARY MANSLAUGHTER (IMPERFECT SELF-DEFENSE)
MPJI-Cr 4:17.14

The defendant is charged with the crime of attempted murder. This charge includes attempted first degree murder, attempted second degree murder, and attempted voluntary manslaughter. Attempt is a substantial step, beyond mere preparation, toward the commission of a crime combined with an intent to commit the crime.

ATTEMPTED FIRST DEGREE MURDER

Attempted first degree murder is a substantial step, beyond mere preparation, toward the commission of murder in the first degree combined with an intent to commit the crime. In order to convict the defendant of attempted murder in the first degree, the State must prove:

(1) that the defendant took a substantial step, beyond mere preparation, toward the commission of murder in the first degree;

(2) that the defendant had the apparent ability, at that time, to commit the crime of murder in the first degree; and

(3) that the defendant willfully, and with pre meditation and deliberation, intended to kill ( name).

Willful means that the defendant actually intended to kill ( name). Deliberate means that the defendant was conscious of the intent to kill. Premeditated means that the defendant thought about the killing and that there was enough time, though it may only have been brief, for the defendant to consider the decision whether or not to kill and enough time to weigh the reasons for and against the choice.

ATTEMPTED SECOND DEGREE MURDER

Attempted second degree murder is a sub stantial step, beyond mere preparation, toward the commission of murder in the second degree combined with an intent to commit the crime. In order to convict the defendant of attempted murder in the second degree, the State must prove:

(1) that the defendant took a substantial step, beyond mere preparation, toward the commission of murder in the second degree;

(2) that the defendant had the apparent ability, at that time, to commit the crime of murder in the second degree; and

(3) that the defendant actually intended to kill ( name).

ATTEMPTED VOLUNTARY MANSLAUGHTER (IMPERFECT SELF-DEFENSE)

Attempted voluntary manslaughter is a substantial step, beyond mere preparation, toward the intentional taking of a life, which would be attempted murder, but is not attempted murder because the defendant acted in partial self-defense. Partial self-defense does not result in a verdict of not guilty, but rather reduces the level of guilt from attempted murder to attempted manslaughter.

You have heard evidence that the defendant attempted to kill ( name) in self-defense. You must decide whether this is a complete defense, a partial defense, or no defense in this case.

In order to convict the defendant of attempted murder, the State must prove that the defendant did not act in either complete self-defense or partial self-defense. If the defendant did act in complete self-defense, the verdict must be not guilty. If the defendant did not act in complete self-defense, but did act in partial self-defense, the verdict should be guilty of attempted voluntary manslaughter and not guilty of attempted murder.

Self-defense is a complete defense, and you are required to find the defendant not guilty, if all of the following four factors are pre sent:

(1) [the defendant was not the aggressor] [although the defendant was the initial aggressor, [he] [she] did not raise the fight to the deadly force level];

(2) the defendant actually believed that [he] [she] was in immediate or imminent danger of death or serious bodily harm;

(3) the defendant’s belief was reasonable; and

(4) the defendant used no more force than was reasonably necessary to defend [himself] [herself] in light of the threatened or actual force. [[This limit on the defendant’s use of deadly force requires the defendant to make a reasonable effort to retreat. The defendant does not have to retreat if [the defendant was in his or her home] [retreat was unsafe] [the avenue of retreat was unknown to the defendant] [the defendant was being robbed] [the defendant was lawfully arresting the victim]].

In order to convict the defendant of attempted murder, the State must prove that self-defense does not apply in this case. This means that you are required to find the defendant not guilty, unless the State has persuaded you, beyond a reasonable doubt, that at least one of the four factors of complete self-defense was absent.

Even if you find that the defendant did not act in complete self-defense, the defendant may still have acted in partial self-defense. [If the defendant actually believed that [he] [she] was in immediate or imminent danger of death or serious bodily harm, even though a reasonable person would not have so believed, the defendant’s actual, though unreasonable, belief is a partial self-defense and the verdict should be guilty of attempted voluntary manslaughter rather than attempted murder.] [If the defendant used greater force than a reasonable person would have used, but the defendant actually believed that the force used was necessary, the defendant’s actual, though unreasonable, belief is a partial self-defense and the verdict should be guilty of attempted voluntary manslaughter rather than attempted murder.]

In order to convict the defendant of attempted murder, the State must prove that the defendant did not act in complete self-defense or partial self-defense. If the defendant did act in complete self-defense, the verdict must be not guilty. If the defendant did not act in complete self-defense, but did act in partial self-defense, the verdict should be guilty of attempted voluntary manslaughter and not guilty of attempted murder.

Notes on Use

Use this instruction if the defendant is charged with attempted first degree premeditated murder under MD. CODE ANN., CRIMINAL LAW I § 2-201 (2021) (hereinafter CRIM. LAW I or II § ), attempted second degree specific intent to kill murder under CRIM. LAW I § 2-204, and/or attempted voluntary manslaughter under CRIM. LAW I § 2-207, but only if there is an issue of justification generated by evidence of a perfect self-defense and an issue of mitigation generated by evidence of an imperfect self-defense. In subsection (1) of Part C of this instruction, use the bracketed language if there was evidence that the defendant was the aggressor at the nondeadly force level but the nonaggressor at the deadly force level. If there was a duty on the part of the defendant to retreat, add “duty to retreat” as a fifth factor necessary for the self-defense. In the next to last paragraph, use the “imminent danger” bracket and/or the “greater force” bracket, depending on the evidence.

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