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Fairfax Criminal Defense Attorney Explains: Homicide in Virginia 

Former Fairfax County Prosecutor, now Fairfax Criminal Defense Attorney, George Freeman explains the basics of Homicide - Murder, Manslaughter, Excused or Justified - under Virginia law.  Contact Mr. Freeman today for a free consultation to discuss your case.

Homicide is the killing of a person by another person.  Not every homicide is a crime.  Accidental killings, if the act does not involve recklessness or criminal negligence, is just that - an accident and is an excused homicide.  Killing in self-defense is a justified homicide and no criminal liability attaches.  Criminal Homicide comes in two forms - Murder and Manslaughter. 

  • Murder is killing with Malice. 
  • Heat of Passion negates Malice.
  • A killing under Heat of Passion is Voluntary Manslaughter
  • A killing that is unintentional or accidental but that involves reckless disregard for human life or criminal negligence is Involuntary Manslaughter.

To read about the related offense of Manslaughter, click here.  

Malice & Heat of Passion

Malice is a required element for Murder.  Virginia Model Jury Instructions provide a comprehensive definition of Malice under Virginia law:  

  • Malice is that state of mind which results in the intentional doing of a wrongful act to another without legal excuse or justification, at a time when the mind of the actor is under the control of reason. Malice may result from any unlawful or unjustifiable motive including anger, hatred or revenge. You may, but are not required, to infer malice from any deliberate, willful, and cruel act against another, however sudden.

Heat of Passion negates Malice.  Virginia Model Jury Instructions provide a comprehensive definition of Heat of Passion under Virginia law:

  • Heat of passion excludes malice when that heat of passion arises from provocation that reasonably produces an emotional state of mind such as hot blood, rage, anger, resentment, terror or fear so as to demonstrate an absence of deliberate design to kill (or maim), or to cause one to act on impulse without conscious reflection. Heat of passion must be determined from circumstances as they appeared to the defendant but those circumstances must be such as would have aroused heat of passion in a reasonable person.

If a person acts upon reflection or deliberation, or after his passion has cooled or there has been a reasonable time or opportunity for cooling, then the act is not attributable to heat of passion.  (Virginia Model Jury Instructions - Criminal Instruction No. 33.220 (2019)).

For Felony Murder, Malice is imputed by virtue of committing the underlying felony.  Therefore, a jury need not determine actual malice in a Felony Murder prosecution.  (See below).

Capital Murder

Capital Murder is punishable by death, or life in prison.  For a capital murder offense to be on the table, a person must commit first degree murder and there must exist an aggravating factor.  Typically the aggravating factor is the commission of another violent felony.  For example, willful, deliberate, and premeditated killing of any person in the commission of robbery or attempted robbery or in the commission of rape, sodomy, or object penetration are forms of first degree murder, that because of an aggravating circumstance, permit the Commonwealth to seek the death penalty.

First Degree Murder

First Degree Murder is most commonly the phrase used to describe premeditated murder.  In Virginia, a person is guilty of First Degree Murder if they willfully, deliberately, and premeditatedly kill another with malice.  Premeditation need not exist for any length of time.  A person can satisfy the premeditation requirement based on the gruesomeness of the acts involved in the killing.  To believe a person must literally plan and plot a murder to commit first degree murder is incorrect.  “Willful, deliberate, and premeditated” means a specific intent to kill, adopted at some time before the killing, but which need not exist for any particular length of time.

There are other forms of First Degree Murder.  Killing with malice by:

  • poison
  • lying in wait
  • imprisonment
  • starvation

are forms of First Degree Murder.  

Felony Murder in the First Degree is also a crime under Virginia law.  Felony Murder theory involves a killing that results because of and during the commission of an underlying felony.  A person who commits or attempts to commit arson, rape, forcible sodomy, inanimate or animate object sexual penetration, robbery, burglary or abduction and, during the commission of that felony, another person dies, is guilty of Felony Murder in the First Degree.  The only exception - it is not murder if a co-defendant is the person who dies during the commission of the felony.

Felony Murder has serious, and often unintended, consequences.  If, for example, you are the getaway driver during the commission of a bank robbery, you are a principal in the second degree and are liable for the robbery as if you were the actual robber.  If your co-defendant, the actual robber, ends up killing the bank teller during the robbery, whether intentionally or otherwise, he becomes guilty of Felony Murder in the First Degree...and so do you.  Under Virginia law, you would be guilty of Robbery and First Degree Felony Murder. If your co-defendant intentionally killed the bank clerk he could also be charged under traditional Murder in the First Degree or Second Degree depending on the facts. And you would still be liable as an accomplice. You both could only be punished for one act of murder under the Double Jeopardy clause of the Fifth Amendment but the Commonwealth could prove their case under multiple murder theories. 

  • Killing is in the commission of an underlying felony if it is so related in time, place and causal connection as to make it part of the same criminal undertaking or enterprise. This can occur before, during or after the commission of the underlying felony.
    • An underlying felony can be ongoing until the defendant or defendants have escaped to a point of safety.  For example, after robbing a store clerk the defendant flees down the block and shoots back at the clerk and kills him, though the robbery is over the killing would still be during the commission of the underlying felony - thus, Felony Murder.

First Degree Murder is a Class 2 felony and is punishable by Life imprisonment or any term not less than 20 years.

Second Degree Murder

All other forms of Murder are Second Degree.  Second Degree Murder is punishable by up to 40 years or any term not less than 5 years.  Second Degree Murder is traditionally defined as the killing of another, without excuse or justification, with malice.  One who commits an intentional act with malice that results in death is guilty of Second Degree Murder; the perpetrator need not have a specific intent to kill when the act is committed.  For example, one who maliciously stabs another with the intent to maim but death results, is guilty of Second Degree Murder.

There is Felony Murder in the Second Degree - which is a newer theory of murder.  Felony Murder in the Second Degree involves a scenario where a person commits a felony not enumerated in the First Degree Felony Murder statute, and as a result of the commission or attempted commission of that felony, a person unintentionally dies.  

There are other acts that are punishable as Second Degree Murder.  For example, shooting a firearm into an occupied dwelling that results in death is punishable as Second Degree Murder - this is regardless of whether one had the intent to kill or the intent to even shoot a person. 

To read more about Violent Crimes and Self-Defense, click here.

If you, or a loved one, is facing a Felony Homicide charge, contact an experienced and trial tested Fairfax Criminal Defense Attorney today.  George Freeman will gladly meet with you to discuss your case.

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