Second-degree murder is one of the more serious felonies for which you can be charged in the Commonwealth of Virginia. If convicted, you face significant time in prison and classification as a felon for the rest of your life.
If you or someone you care for has been charged with second-degree murder in Virginia, Bryan J. Jones can provide you with the advice you need to best protect your rights. You do not have to plead guilty just because you are charged with a crime.
Criminal Homicide in Virginia
In Virginia, there are multiple types of criminal homicide. Homicide is a deliberate and unlawful killing of one person by another. For prosecutors to determine which charge to indict, they must look to the unique factual situation of the case at hand. Under Virginia law, you could be charged with a criminal homicide in the form of:
- Capital Murder
- First-Degree Murder
- Second-Degree Murder
Elements of Second-Degree Murder in Virginia
Second-degree murder is defined in the same statute as first-degree murder, in Va. Code Ann. § 18.2-32. It states, in regards to second-degree murder:
"All murder other than capital murder and murder in the first degree is murder of the second degree and is punishable by confinement in a state correctional facility for not less than five nor more than forty years."
To understand the nature of your murder charge, a Virginia prosecutor must look to the unique facts and circumstances of the criminal case. He or she must first determine whether the charge qualifies as capital murder or first-degree murder. Any other murder is a murder of the second degree.
What Qualifies as Capital Murder?
In Virginia, capital murder is the intentional, willful, deliberate and premeditated killing of a person under any of the following circumstances.
- Killing of any person in the commission of an abduction when the abduction was for the purpose of extorting money or a pecuniary benefit or with the intent to defile the victim.
- Killing of any person by another for hire.
- Killing of any person by a prisoner in a state or local correctional facility, or while in the custody of an employee of such a facility.
- Killing of any person in the commission of a robbery or an attempted robbery.
- Killing of any person during or after a rape, attempted rape, forcible sodomy, attempted forcible sodomy, or object sexual penetration.
- Killing of a law enforcement officer when the killing is to interfere with official duties.
- Killing of more than one person as part of the same act or transaction.
- Killing of more than one person within a 3 year period.
- The killing of a pregnant woman when the accused knew she was pregnant and intended to end the pregnancy.
- The accused was 21 or over and the person killed was under 14 years old.
- The murder happened during an act or attempted act of terrorism.
- The victim was a judge at the Supreme Court, Court of Appeals, circuit court, or district court.
- The victim was a witness in a criminal proceeding after a subpoena was received by the victim, and the murder was committed to interfere with that person's duties in the criminal case (e.g. a witness).
If any of these circumstances exist, the murder is capital murder, and therefore not second-degree murder. You face the death penalty unless you are convicted under the age of 18, or in either case, you could face life in prison without parole. You could also be fined up to $100,000.
Capital murder trials are bifurcated, which simply means that there are two portions of the trial. The first determines if you are guilty of the crime. The second portion determines whether you will receive the death penalty. To receive the death penalty, the prosecutor must prove, beyond a reasonable doubt, one of the following:
- Based on the offender's prior history or the actions committed in this murder, there is a probability that the offender would commit another violent act that would be a serious danger to society;
- The offender's actions in the murder were outrageous, wantonly vile, horrible or inhuman, in that the actions involved tortured, aggravated assault, or depravity of mind.
Without either of these findings by the jury, the death penalty is off the table.
What Qualifies as First-Degree Murder?
A full explanation of first-degree murder can be on the First-Degree Murder in Virginia page. If your charge does not qualify as either capital murder or first-degree murder, it may be considered second-degree murder.
What Qualifies as Second-Degree Murder?
If the elements of the crime do not qualify as capital murder or first-degree murder, it may qualify as second-degree murder. This generally includes murders that were committed in the "heat of the moment," without any form of planning or premeditation, but with malice.
Malice can mean many things. It could mean the accused was reckless in his or her conduct, the offender intended to cause injury, or the conduct had a very high risk of causing another person's death and the offender simply did not care.
Felony murder is a common law principle which holds that if your actions in committing a felony result in another person's death, even when you never intended to kill someone, that killing is murder. Virginia has included this principle in its law at Va. Code Ann. § 18.2-33. If that felony is not listed as part of the felonies which qualify for capital or first-degree murder, the statute makes felony murder a form of second-degree murder.
Penalties for Second-Degree Murder in Virginia
If you are convicted of second-degree murder, you face serious criminal penalties. You face a prison sentence of 5 years up to a maximum of 40 years.
After prison, you will also face the stigma of the "felon" label. From then on you will be required to check "Yes" on any form which asks if you have ever been convicted of a felony. Some employers are less likely to hire a felon over a non-felon, even if you are more highly qualified for the job. The felony label is permanent, meaning it will affect the rest of your life, even after your release from prison.
Defenses to Second-Degree Murder Charges in Virginia
While every case is different, and different defenses may apply to your case, your Virginia criminal attorney can analyze the unique facts of your case to present the best defense. Some of the following could be used to prevent or reduce your conviction.
Present Reasonable Doubt
The Virginia prosecutor is required to prove, beyond a reasonable doubt, each and every element of the charge of second-degree murder. Your criminal defense attorney can show that there are inconsistencies in the prosecutor's case, creating doubt in the mind of the jury. Your attorney can also attempt to show that you were not the guilty party or you were not the actual cause of the alleged victim's death.
In many cases, eyewitness identification can simply be wrong. A suspect may be innocent and be accused of a crime only because he or she looks vaguely like the individual who actually committed the crime. With proper investigation and a challenge from your attorney, the jury can see the many problems with eyewitness identification.
Further, police line-ups must conform to specific constitutional requirements. If the line up which was used to identify you was not properly performed, that evidence against you could be suppressed.
Suppression of Certain Evidence
Suppression is a legal mechanism which excludes evidence which was wrongfully acquired by the prosecution. If law enforcement did not follow the constitutional requirements for the collection of evidence, such as when a warrant is required, that evidence which was wrongfully obtained can be excluded from your case. In some instances, this can result in the dismissal of your charges, especially if the evidence excluded connected you in some way to the case.
If you use an affirmative defense, you are admitting to the killing of another person, but you are arguing that the killing was justified. This typically occurs with self-defense or defense of another. If you reasonably believed that the use of force was necessary to prevent your or another's death, sexual assault, or serious bodily harm the defense may apply to you.
Challenge the Underlying Offense in Felony Murder
If you are charged with felony murder, you can challenge the fact that you are guilty of the offense which the prosecutor says qualifies your offense as felony murder. If you are not guilty of the underlying offense, you did not commit felony murder.
You can also challenge the connection the underlying felony has to the death. For example, if a person steals a truck, and three days later hits and kills a pedestrian, you would not likely be convicted of second-degree murder because too much time has passed and the connection between the two incidents is too distant.
Consult Your Virginia Criminal Defense Attorney
A felony conviction for second-degree murder has serious consequences including substantial prison time and restrictions on your freedoms for the rest of your life. Even if the police and prosecutor treat you like you are guilty, you still have legal rights and defenses.
Contact Virginia criminal defense attorney Bryan J. Jones to fight for your constitutional rights throughout the criminal process.