MURDER IN THE SECOND DEGREE -- MURDER ALLEGED BY COMMISSION AND OMISSION IN ONE COUNT - GENERIC

MURDER IN THE SECOND DEGREE -- MURDER ALLEGED BY COMMISSION AND OMISSION IN ONE COUNT - GENERIC: PARENT/MINOR CHILD (WITH INCLUDED OFFENSE AND DEFENSE) -- HRS §§ 707-701.5 and 702-203(2) [In Count (count number) of the Indictment/Complaint, the] [The] Defendant, (defendant's name), is charged with the offense of Murder in the Second Degree. This offense is being charged and can be proved by the prosecution in either of two ways. With respect to the first alternative, a person commits the offense of Murder in the Second Degree if he/she intentionally or knowingly causes the death of another person. In the first alternative, there are two material elements of the offense of Murder in the Second Degree, each of which the prosecution must prove beyond a reasonable doubt. These two elements are: 1. That, on or about (date) in the [City and] County of (name of county), the Defendant caused the death of another person; and 2. That the Defendant did so intentionally or knowingly. With respect to the second alternative, a person commits the offense of Murder in the Second Degree if he/she causes the death of another person by intentionally or knowingly failing to obtain to the best of his/her ability reasonably necessary and available medical services for the other person, a duty imposed by law upon a parent, intending or knowing that the failure to obtain medical services would result in the death of the other person. In the second alternative, there are four material elements of the offense of Murder in the Second Degree, each of which the prosecution must prove beyond a reasonable doubt. These four elements are: 1. That, on or about (date) in the [City and] County of (name of county), the Defendant was the parent of a minor child; and 2. That the Defendant intentionally or knowingly failed to obtain to the best of his/her ability reasonably necessary and available medical services for the minor child, a duty imposed by law upon a parent; and 3. That the Defendant failed to perform that duty intending or knowing that the Defendant's failure would cause the death of the minor child; and 4. That the Defendant's failure to perform that duty caused the death of the minor child. If and only if you unanimously find that all the elements of either or both alternatives of Murder in the Second Degree have been proven by the prosecution beyond a reasonable doubt, then you must consider whether, at the time the Defendant caused the death, he/she was under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation. The reasonableness of the explanation shall be determined from the viewpoint of a person in the Defendant's situation under the circumstances of which the Defendant was aware or as the Defendant believed them to be. Under either alternative, the prosecution must prove beyond a reasonable doubt that the Defendant was not, at the time that he/she caused the death of (decedent), under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation. If you unanimously find that the prosecution has done so, then you must return a verdict of guilty of Murder in the Second Degree. If unanimously find that the prosecution has not done so, then you must return a verdict of guilty of Manslaughter based upon extreme mental or emotional disturbance. If you are unable to reach a unanimous agreement as to whether the prosecution has proved, or failed to prove, that the Defendant was not under the influence of extreme mental or emotional disturbance, then your decision is not unanimous and a verdict may not be returned on this offense. If and only if you find the Defendant not guilty of both alternatives of Murder in the Second Degree, or you are unable to reach a unanimous verdict as to this offense, then you must consider whether the Defendant is guilty or not guilty of the offense of Manslaughter based upon reckless conduct. The offense of Manslaughter based upon reckless conduct can be proved by the prosecution in either of two ways. With respect to the first alternative, a person commits the offense of Manslaughter if he/she recklessly caused the death of another person. In the first alternative, there are two material elements of Manslaughter based upon reckless conduct, each of which the prosecution must prove beyond a reasonable doubt. These two elements are: 1. That, on or about (date) in the [City and] County of (name of county), the Defendant caused the death of another person; and 2. That the Defendant did so recklessly. With respect to the second alternative, a person commits the offense of Manslaughter if he/she causes the death of another person by recklessly failing to obtain to the best of his/her ability reasonably necessary and available medical services for injuries to the other person, a duty imposed by law upon a parent, consciously disregarding a substantial and unjustifiable risk that failure to obtain medical services would result in the death of the other person. In the second alternative, there are four material elements of the offense of Manslaughter based upon reckless conduct, each of which the prosecution must prove beyond a reasonable doubt. These four elements are: 1. That, on or about (date) in the [City and] County of (name of county), the Defendant was the parent of a minor child; and 2. That the Defendant recklessly failed to obtain to the best of his/her ability reasonably necessary and available medical services for the minor child, a duty imposed by law upon a parent; and 3. That the Defendant failed to perform that duty consciously disregarding a substantial and unjustifiable risk that the Defendant's failure would cause the death of the minor child; and 4. That the Defendant's failure to perform that duty caused the death of the minor child. If you unanimously find that all the elements of either or both alternatives of Manslaughter have been proved by the prosecution beyond a reasonable doubt, then you must return a verdict of guilty of Manslaughter based upon reckless conduct. [In any prosecution for an offense it is a defense that the Defendant engaged in the prohibited conduct under ignorance or mistake of fact if the ignorance or mistake negatives the state of mind required to establish an element of the offense. With respect to the charge of Murder in the Second Degree it is a defense that the Defendant believed it was not reasonably necessary to obtain medical care for the minor child. It does not matter if the Defendant's belief was mistaken, so long as the Defendant held the belief reasonably, recklessly or negligently at the time of the alleged offense. Thus, the prosecution has the burden of proving beyond a reasonable doubt that the Defendant was aware or believed or hoped that medical care for the minor child was reasonably necessary at the time of the alleged offense of Murder in the Second Degree. If the prosecution fails to meet its burden, then you must find the Defendant not guilty of Murder in the Second Degree. With respect to the offense of Manslaughter based upon reckless conduct, it is not a defense that the Defendant was recklessly mistaken. However, a negligent mistake would afford a defense to this offense. A person acts negligently when he/she is not aware of the risk that medical care for his/her child is reasonably necessary, but the person should have been aware of that risk. Thus, the prosecution has the burden of proving beyond a reasonable doubt that the Defendant either knew or consciously disregarded a substantial and unjustifiable risk that medical care for the minor child was reasonably necessary at the time of the alleged offense of Manslaughter based upon reckless conduct.] Commentary HRS §§ 707-701.5, 707-702, 702-203(2), 577-7(a), 702- 206(1), (2) and (3), 702-218. State v. Robinson, 82 Hawai`i 304, 922 P.2d 358 (1996), State v. Cabral, 77 Hawai`i 216, 883 P.2d 638 (App. 1994); State v. Cabral, 8 Haw. App. 506, 515, 810 P.2d 672, 677 (1991); State v. Tucker, 10 Haw. App. 43, 861 P.2d 24 (1993), cert. gr., remanded on other issues, 10 Haw. App. 73, 861 P.2d 37 (1993); State v. Batson, 73 Haw. 236, 251 n. 8, 831 P.2d 924, 932-33 n. 8 (1992). For definition of states of mind, see instructions: This instruction is included for the convenience of the court and parties. It is not intended to indicate in any way that the pattern included offense or defense should be submitted to the jury in a particular case.