Section 9 Causation 291

Section 9 Causation 291 treatment, Sharon is able to leave the hospital and move into an apartment with a nursing assistant to care for her. Sharon realizes that her life is not over. She begins taking classes at Coastline Community College, with hopes of becoming a counselor. Even her doctor, Dr. Edward Weir, notices that she is generally upbeat and excited about her studies. Nonetheless, Sharon is never free of the physical ailments connected with her quadriplegia; her trachea tube continues to be bothersome and she is frustrated with the efforts it takes to stay healthy. In January 1985, Sharon develops pneumonia. After allowing it to go untreated for several weeks, her condition becomes quite serious. She finally seeks medical care and is admitted to the hospital on January 24, but dies the next day. Her doctor concludes that she died of aspiration pneumonia due to tracheotomy problems due to the quadriplegia. On May 13, 1985, Govan is charged with second degree murder for Sharon s death based upon the shooting five years earlier. 1. Assuming the earlier assault has already been fully dealt with, relying only upon your intuitions of justice, what additional liability and punishment, if any, does Joe Paul Govan deserve because of Keeble s subsequent death? N 0 1 2 3 4 5 6 7 8 9 10 11 no liability liability but no 1 day 2 wks 2 mo 6 mo 1 yr 3 yrs 7 yrs 15 yrs 30 yrs life imprisonment death punishment 2. Would Govan be causally accountable for Keeble s death under the causation provision reproduced in the questions immediately following the Manny the Master Problem later in this Section? 3. If there had been no death, what liability, if any, would be imposed under the then-existing statutes? After the death, what liability, if any? 4. If there had been no death, what liability, if any, would be imposed under the Model Penal Code? After the death, what liability, if any? THE LAW Arizona Revised Statutes (1980) Section 13-1101. Definitions Title 13. Criminal Code Chapter 11. Homicide In this chapter, unless the context otherwise requires: 1. Premeditation means that the defendant acts with either the intention or the knowledge that he will kill another human being, when

292 Part III Homicide and Related Issues such intention or knowledge precedes the killing by a length of time to permit reflection. An act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion. 2. Homicide means first degree murder, second degree murder, manslaughter or negligent homicide. 3. Person means a human being. 4. Adequate provocation means conduct or circumstances sufficient to deprive a reasonable person of self-control. Section 13-1102. Negligent Homicide; Classification A. A person commits negligent homicide if with criminal negligence such person causes the death of another person. B. Negligent homicide is a class 4 felony. Section 13-1103. Manslaughter; Classification A. A person commits manslaughter by: 1. Recklessly causing the death of another person; or 2. Committing second degree murder as defined in Section 13-1104, subsection A upon a sudden quarrel or heat of passion resulting from adequate provocation by the victim; or 3. Intentionally aiding another to commit suicide; or 4. Committing second degree murder as defined in Section 13-1104, subsection A, paragraph 3, while being coerced to do so by the use or threatened immediate use of unlawful deadly physical force upon such person or third person which a reasonable person in his situation would have been unable to resist. B. Manslaughter is a class 3 felony. Section 13-1104. Second Degree Murder; Classification A. A person commits second degree murder if without premeditation: 1. Such person intentionally causes the death of another person; or 2. Knowing that his conduct will cause the death or serious physical injury, such person causes the death of another person; or 3. Under circumstances manifesting extreme indifference to human life, such person recklessly engages in conduct which creates a grave risk of death and thereby causes the death of another person. B. Second degree murder is a class 2 felony.

Section 9 Causation 293 Section 13-1105. First Degree Murder; Classification A. A person commits first degree murder if: 1. Knowing that his conduct will cause death, such person causes the death of another with premeditation; or 2. Acting either alone or with one or more other persons such person commits or attempts to commit sexual assault under Section 13-1406, child molestation under Section 13-1410, narcotics offenses as provided in Section 36-1002.02, 36-1002.03 or 36-1002.04, kidnapping under Section 13-1304, burglary under Section 13-1506, 13-1507 or 13-1508, arson of an occupied structure under Section 13-1704, robbery under Section 13-1902, 13-1903 or 13-1904, escape under Section 13-2503 or 13-2504, and in the course of and in furtherance of such offense or immediate flight from such offense, such person or another person causes the death of any person. B. Homicide, as defined in paragraph 2 of subsection A of this section, requires no specific mental state other than what is required for the commission of any of the enumerated felonies. C. First degree murder is a class 1 felony and is punishable by death or life imprisonment as provided by Section 13-703. Chapter 12. Assault and Related Offenses Section 13-1201. Endangerment; Classification A. A person commits endangerment by recklessly endangering another person with a substantial risk of imminent death or physical injury. B. Endangerment involving a substantial risk of imminent death is a class 6 felony. In all other cases, it is a class 1 misdemeanor. Section 13-1203. Assault; Classification A. A person commits assault by: 1. Intentionally, knowingly or recklessly causing any physical injury to another person; or 2. Intentionally placing another person in reasonable apprehension of imminent physical injury; or 3. Knowingly touching another person with the intent to injure, insult or provoke such person. B. Assault committed intentionally or knowingly pursuant to subsection A, paragraph 1 is a class 1 misdemeanor. Assault committed recklessly pursuant to subsection A, paragraph 1 or assault pursuant to subsection A, paragraph 2 is a class 2 misdemeanor. Assault committed pursuant to subsection A, paragraph 3 is a class 3 misdemeanor.

294 Part III Homicide and Related Issues Section 13-1204. Aggravated Assault A. A person commits aggravated assault if such person commits assault as defined in Section 13-1203 under any of the following circumstances: 1. If such person causes serious physical injury to another. 2. If such person uses a deadly weapon or dangerous instrument. 3. If such person commits the assault after entering the private home of another person with the intent to commit the assault.... B. Aggravated assault pursuant to subsection A, paragraph 1 or 2 of this section is a class 3 felony. Aggravated assault pursuant to subsection A, paragraphs 3, 4, 5, 6, 7 or 8 of this section is a class 6 felony. Section 13-1001. [Attempt] Classifications... C. Attempt is a: 1. Class 2 felony if the offense attempted is a class 1 felony. 2. Class 3 felony if the offense attempted is a class 2 felony. 3. Class 4 felony if the offense attempted is a class 3 felony. 4. Class 5 felony if the offense attempted is a class 4 felony. 5. Class 6 felony if the offense attempted is a class 5 felony. 6. Class 1 misdemeanor if the offense attempted is a class 6 felony. 7. Class 2 misdemeanor if the offense attempted is a class 1 misdemeanor. 8. Class 3 misdemeanor if the offense attempted is a class 2 misdemeanor. 9. Petty offense if the offense attempted is a class 3 misdemeanor or petty offense. Section 13-701. Sentence of Imprisonment for Felony; Presentence Report A. A sentence of imprisonment for a felony shall be a definite term of years and the person sentenced, unless otherwise provided by law, shall be committed to the custody of the state department of corrections. B. No prisoner may be transferred to the custody of the state department of corrections without a certified copy of the judgment and sentence, signed by the sentencing judge, and a copy of a recent presentence investigation report unless the court has waived preparation of the report. C. Except as provided in 13-604 the term of imprisonment for a felony shall be determined as follows for a first offense: 1. For a class 2 felony, seven years. 2. For a class 3 felony, five years. 3. For a class 4 felony, four years. 4. For a class 5 felony, two years. 5. For a class 6 felony, one and one-half years.

Section 9 Causation 295 Section 13-101. Purposes Chapter 1. General Provisions It is declared that the public policy of this state and the general purposes of the provisions of this title are: 1. To proscribe conduct that unjustifiably and inexcusably causes or threatens substantial harm to individual or public interests; 2. To give fair warning of the nature of the conduct proscribed and of the sentences authorized upon conviction; 3. To define the act or omission and the accompanying mental state which constitute each offense and limit the condemnation of conduct as criminal when it does not fall within the purposes set forth; 4. To differentiate on reasonable grounds between serious and minor offenses and to prescribe proportionate penalties for each; 5. To insure the public safety by preventing the commission of offenses through the deterrent influence of the sentences authorized; and 6. To impose just and deserved punishment on those whose conduct threatens the public peace. Section 13-103. Abolition of Common Law Offenses All common law offenses are hereby abolished. No conduct or omission constitutes an offense unless it is an offense under this title or under another statute or ordinance. Section 13-104. Rule of Construction The general rule that a penal statute is to be strictly construed does not apply to this title, but the provisions herein must be construed according to the fair meaning of their terms to promote justice and effect the objects of the law, including the purposes stated in 13-101. Section 13-105. Definitions In this title, unless the context otherwise requires: 1. Act means a bodily movement. 2. Benefit means an act of value or advantage, present or prospective. 3. Conduct means an act or omission and its accompanying culpable state. 4. Crime means a misdemeanor or a felony. 5. Culpable mental state means intentionally, knowingly, recklessly or with criminal negligence as those are thusly defined: (a) Intentionally or with the intent to means, with respect to a result or to conduct described by a statute defining an offense, that a person s objective is to cause that result or to engage in that conduct.

296 Part III Homicide and Related Issues (b) Knowingly means, with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that his or her conduct is of that nature or that the circumstance exists. (c) Recklessly means, with respect to a result or to a circumstance described by a statute defining an offense, that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware of such risk solely by reason of voluntary intoxication also acts recklessly with respect to such risk. (d) Criminal negligence means, with respect to a result or to a circumstance described by a statute defining an offense, that a person fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.... 7. Dangerous instrument means anything that under the circumstance in which it is used, attempted to be used or threatened to be used is readily capable of causing death or serious physical injury. 8. Deadly physical force means force which is used with the purpose of causing death or serious physical injury or in the manner of its use or intended use is capable of creating a substantial risk of causing death or serious physical injury. 9. Deadly weapon means anything designed for lethal use. The term includes a firearm.... 11. Felony means an offense for which a sentence to a term of imprisonment to the custody of the department of corrections is authorized by any law of this state.... 15. Intoxication means any mental or physical incapacity resulting from the use of drugs, toxic vapors, or intoxicating liquors. 16. Misdemeanor means an offense for which a sentence to a term of imprisonment other than to the custody of the department of corrections is authorized by any law of this state. 17. Narcotic drug means narcotic drugs as defined by Section 36-1001. 18. Offense means conduct for which a sentence to a term of imprisonment or of a fine is provided by any law of this state or by any law, regulation or ordinance of a political subsection of this state. 19. Omission means the failure to perform an act as to which a duty of performance is imposed by law.... 22. Petty offense means an offense for which a sentence of a fine only is authorized by law. 23. Physical force means the impairment of physical condition....

Section 9 Causation 297 27. Property means anything of value, tangible or intangible.... 29. Serious physical injury includes physical injury which created a reasonable risk of death, or which causes serious and permanent disfigurement, or serious impairment of health or loss or protracted impairment of the function of any bodily organ or limb. 30. Unlawful means contrary to law or, where the context so requires, not permitted by law.... 32. Voluntary act means a bodily movement performed consciously and as a result of effort and determination. 33. Voluntary intoxication means intoxication caused by the knowing use of drugs, toxic vapors or intoxicating liquors by the defendant, the tendency of which to cause intoxication the defendant knows or ought to know, unless the defendant introduces them pursuant to medical advice or under duress as would afford a defense to an offense. Chapter 2. General Principles of Criminal Liability Section 13-201. Requirements for Criminal Liability The minimum requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform a duty imposed by law which the person is physically capable of performing. Section 13-203. Causal Relationship Between Conduct and Result; Relationship to Mental Culpability A. Conduct is the cause of a result when both of the following exist: 1. But for the conduct the result in question would not have occurred. 2. The relationship between the conduct and result satisfies any additional causal requirements imposed by the statute defining the offense. B. If intentionally causing a particular result is an element of an offense, and the actual result is not within the intention or contemplation of the person, that element is established if: 1. The actual result differs from that intended or contemplated only in the respect that a different person or different property is injured or affected or that the injury or harm intended or contemplated would have been more serious or extensive than that caused; or 2. The actual result involves similar injury or harm as that intended or contemplated and occurs in a manner which the person knows or should know is rendered substantially more probable by such person s conduct. C. If recklessly or negligently causing a particular result is an element of an offense, and the actual result is not within the risk of which the person is aware or in the case of criminal negligence, of which the person should be aware, that element is established if: 1. The actual result differs from the probable result only in the respect that a different person or different property is injured or affected or that the

298 Part III Homicide and Related Issues injury or harm intended or contemplated would have been more serious or extensive than that caused; or 2. The actual result involves similar injury or harm as the probable result and occurs in a manner which the person knows or should know is rendered substantially more probable by such person s conduct. Model Penal Code (Official Draft 1962) Section 2.03. Causal Relationship Between Conduct and Result; Divergence Between Result Designed or Contemplated and Actual Result or Between Probable and Actual Result (1) Conduct is the cause of a result when: (a) it is an antecedent but for which the result in question would not have occurred; and (b) the relationship between the conduct and result satisfies any additional causal requirements imposed by the Code or by the law defining the offense. (2) When purposely or knowingly causing a particular result is an element of an offense, the element is not established if the actual result is not within the purpose or the contemplation of the actor unless: (a) the actual result differs from that designed or contemplated, as the case may be, only in the respect that a different person or different property is injured or affected or that the injury or harm designed or contemplated would have been more serious or more extensive than that caused; or (b) the actual result involves the same kind of injury or harm as that designed or contemplated and is not too remote or accidental in its occurrence to have a [just] bearing on the actor s liability or on the gravity of his offense. (3) When recklessly or negligently causing a particular result is an element of an offense, the element is not established if the actual result is not within the risk of which the actor is aware or, in the case of negligence, of which he should be aware unless: (a) the actual result differs from the probable result only in the respect that a different person or different property is injured or affected or that the probable injury or harm would have been more serious or more extensive than that caused; or (b) the actual result involves the same kind of injury or harm as the probable result and is not too remote or accidental in its occurrence to have a [just] bearing on the actor s liability or on the gravity of his offense. (4) When causing a particular result is a material element of an offense for which absolute liability is imposed by law, the element is not established unless the actual result is a probable consequence of the actor s conduct.