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Former Homicide Prosecutor, now Fairfax Criminal Defense Attorney, Explains Murder in Virginia

What is Murder in Virginia?

Not every death is a murder. To convict someone of first degree murder, the Commonwealth must prove each of the following elements beyond a reasonable doubt:

  • The defendant killed a person
  • The killing was malicious
  • The killing was willful, deliberate, and premeditated or occurred by poison; lying in wait; imprisonment; or starving.

The first element is simple. You can't be charged with murder for killing an animal – it has to be a person. The second element, Malice, refers to something done in an angry, rude, or vengeful manner. It can also be the result of an unjustified motive or 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 can be inferred from any case where a firearm is used in the commission of the crime.

Virginia law defines premeditation as “a specific intent to kill, adopted at some time before the killing, but which need not exist for any particular length of time.”          This is important, because most people hear premeditation and think it means careful planning over a long period of time. But in Virginia, just raising a firearm, pointing it at someone's head, and pulling the trigger counts as premeditation. This is because the only intent a person can have in that situation is the intent to kill.

Is there a death penalty in Virginia?

No, there is no longer a death penalty in Virginia. The charge previously called Capital Murder is now called Aggravated Murder. Aggravated Murder convictions result in life imprisonment.

Is life imprisonment the punishment for murder?

It depends. The punishment for first degree murder is a sentence between 20 years in prison to life. The punishment for second degree murder is from 5 years to 40 years in prison. The punishment for felony murder is 5 years in prison to up to 40 years. The punishment for manslaughter is 1 year in prison to 10 years in prison, with the option for a court to sentence someone to 12 months of jail time and up to a $2,500 fine instead.

The reality is, it's uncommon for a life sentence to be imposed in Virginia. Generally, a person with no criminal record who is convicted of first degree murder will do 30 or so years in prison, on average. This is based on the sentencing guidelines in Virginia, which is a set of sentencing recommendations provided to courts. These recommendations are based on the average sentences for different crimes depending on certain factors.

For second degree murder, the average falls in the 15- to 20-year range. For manslaughter, it can vary greatly depending on which charge got the person to manslaughter. You could get a manslaughter conviction in a murder case if heat of passion was present or if there was imperfect self-defense. You could also get a manslaughter conviction for a traffic-related fatality or a DUI-caused death.

These sentencing ranges are subject to change. Juries in Virginia could get harsher over time or more lenient. There's just no way to know what the result might be without speaking to a seasoned Trial Attorney.

Law surrounding death cases is storied and complicated. Call Mr. Tyler Bezilla today for a consultation and speak with an experienced Criminal Defense Attorney who has handled many of these cases.

What is second degree murder?

Under Virginia law, “all murder other than aggravated murder and murder in the first degree is murder of the second degree.” There are two forms that second degree murder commonly takes. The first is what's called felony murder.

Felony murder is where a person commits a felony, not listed in the first degree code section, and as a result of that felony, a person unintentionally dies. A classic example of this is two people who rob a gas station. One carries a gun, the other holds the bag. The defendant with the gun pulls the trigger and kills the clerk. The person holding the bag, even though they didn't intend to kill the clerk, can be charged with felony murder (or second degree murder).

The other version of second degree murder is when a person maliciously commits an intentional act that results in a death. The key here is that the person killed someone and acted with malice, but they did not premeditate, meaning they did not intend to kill the person. Imagine if two people were in a bar fight, and Person A pulls a knife. They stab Person B in the leg and Person B dies from blood loss. Person A didn't intend to kill, just seriously injure. So they could be guilty of second degree murder.

How do you defend a murder charge?

Every case is unique. Murder is no exception. In fact, murder cases tend to involve the lengthiest investigations and the greatest amount of evidence. There are always defenses available if the government violated your rights or failed to collect sufficient evidence to meet their burden in court. There are several defenses to murder which are commonly seen in Virginia:

  • Alibi
  • Self-Defense
  • Heat of Passion
  • Insanity

What is Heat of Passion?

            In Virginia, 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 cause one to act on impulse without conscious reflection.” If a persons had reasonable time to calm down (called a cool down period), heat of passion no longer applies.

            The law school example of this is the spouse who returns home and finds someone in bed with their partner. There is much more nuance to what qualifies as heat of passion, but it's generally some event that deprives you of your ability to reason.

When do I need a lawyer if I'm facing murder charges?

You should retain counsel as soon as possible. A common police strategy in serious cases such as these is to do as much work as possible before bringing a charge. They interview suspects early under the guise of consensual encounters, in the hope the suspects will say something incriminating or something that will lead to new evidence. Homicide detectives are some of the most skilled and experienced detectives in any police department. They're trained in investigation and interrogation tactics, designed to elicit incriminating responses. If you think you're under investigation for a murder charge, you should call and speak to an experienced Criminal Defense Attorney immediately.

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