I have a capital murder case involving the deaths of two victims in the same transaction. The second victim was murdered to prevent her from reporting the murder of the first victim, in the defendant's words. Are the two different methods of committing capital murder (two victims; murder in course of obstruction) different offenses that should be alleged in different counts or indictments, or are they alternative means of committing the same offense? What are the pitfalls of one or the other method of charging?

I had a case like this and I never did resolve in my mind how it should come out. On the one hand, alleging a capital murder with two victims and a capital murder with one of the victims for remuneration seems to allege two ways of committing the same capital murder. On the other hand, you could allege it in a manner that the lead victim in each case is different, making them separate crimes.

I ended up punting on the issue by pleading it out for one capital murder naming both victims. If I had gone to trial, I might have asked for an instruction to the jury that they could only convict on one theory. But I also might have asked for two convictions, leaving it to an appellate court to toss one out.

Now, wasn't that totally unhelpful?

I had the same thoughts, John. This is going to be tried as a death penalty case, so the appellate issue is important to me. Don't want to make new law by getting reversed. Thanks for the input.

My vote is that you are dealing with separate offenses which must be alleged in separate counts rather than paragraphs, but which could result in two separate convictions although they would be tried together. While there are several ways of committing offenses labelled in common as "capital murder" in a single section of the code, the aggravating circumstances in each subsection of the statute are quite distinct. While some of them overlap and would seem to be provable by the same facts, most share only the element that an intentional or knowing death of an individual is caused. E.g., someone,while escaping or attempting to escape from a penal institution, could kill a five year old, and probably be guilty of only a single offense for double jeopardy purposes. But, since there are no five year old peace officers or firemen a person could never be guilty of a single offense if he violated both subsections (a)(1) and (a)(8), thus those two definitions have to describe separate offenses.

I think your situation falls into the distinct offense category. It seems the defendant has essentially tried to deny a single criminal impulse, that is, he says meant to kill A, without regard to B, but when B turned out to be a witness, he separately determined to kill B. These facts may or may not qualify under (a)(7) as occurring during the same criminal transaction or during different criminal transactions but the murders are committed pursuant to the same scheme or course of conduct. But, in any event that theory requires proof of both murders in full and the two deaths can only result in a single conviction. Proof that B was killed in the course of obstruction probably requires the same proof, but arguably you could hedge on the proof of the murder of A because what you are really prosecuting is the Defendant's intent or motive for killing B. Proof of that mental state arguably is easier to prove than the completed murder of A. Furthermore, I would argue that after being convicted of the capital murder of B the defendant remains subject prosecution for the murder of A, since it was not necessary to prove A was murdered in order to show the defendant desired to kill B for an obstruction purpose. For example, the defendant did not necessarily know A was dead at the time he chose to murder B; in other words he just needed to obstruct the prosecution of a crime, not necessarily murder.

If each theory of capital murder is tried together, then even if you can get two convictions, I don't see where you have accomplished much. You could not stack one on the other (assuming that were ever necessary), rather each 40 year sentence would run concurrent (or there will only be a single execution). But, I think you could possibly get two convictions, because as stated, both murders are elements of an (a)(7) prosecution, but the murder of A is not an element of the (a)(2) prosecution (just part of the proof necessary to show obstruction). Probably the safer bet is to allege both theories and then elect just one to be submitted to the jury. Or John's approach is just as valid, because proof of each theory will be admissible upon the trial of the other, and it would seem the court can cure any error by striking one conviction and leaving the other in place.

I am about to have to make a similar choice in a case where we have alleged both the manslaughter and intoxication manslaughter of a single victim in a two count indictment. The defendant ran a stop sign (never even slowed down) at a major highway intersection while drunk. I say it was reckless not to stop (without regard to the state of intoxication) and that it was reckless to drive while intoxicated without regard to the to stop sign. The victim was where she was because of the stop sign, the defendant did what he did because of a .19 BAC. Aren't those theories different enough to allow submission of each- but have the jury return a single verdict of guilty- as they choose?

Martin, I feel your pain. Under the old Penal Code (before 1994), both theories of a manslaughter (intoxication or recklessness) were in the same section, allowing the prosecutor to indict in one count with two paragraphs and submit both theories in a single application paragraph and get a single conviction without worrying which one the jury believed.

But now that the Penal Code has placed them into separate sections, they are treated as separate offenses, but only for indictment purposes. In the jury charge, we have to submit separate application paragraphs but only one conviction can be obtained for double jeopardy purposes because it involves the death of one victim. This means that a jury must unanimously pick or reject one of the offenses. If rejected, only then can the jury move to consider the other offense. This creates a higher risk of confusion, acquittal, and mistake.

This might be one time where the Legislature outsmarted itself.

Juries seem to get confused pretty easily by the charge, so I think we will waive the manslaughter count from the outset, though I still think it fits the facts. Actually, it was included only because we did not have the BAC result at the time of indictment. If it had come back closer to .08 might be a harder choice. Even in the "old" code weren't they also two separate offenses: voluntary manslaughter and involuntary manslaughter? It sure is tricky to try to determine when the same conduct violates separate parts of the penal code whether we have separate offenses or different means of commission of the same offense, and that is true even when we deal with different subsections of the same section, much less different crimes that overlap. Good luck Tim, whichever conviction you seek.