Frye

In this case of murder and attempted murder, the trial court instructed the jury that a killing or attempted killing was unlawful unless it was either excusable or justifiable. It went on to instruct the jury that “[i]t is undisputed in this case that each of the acts in question was an unlawful act.” Defendant contends that by this instruction the trial court improperly directed the jury’s verdict on disputed factual issues. We reject this contention in the published portion of this opinion. As we shall explain, the word “unlawful” in the various homicide instructions simply means that there was no excuse or justification for the killing. In this sense it is a negative rather than an affirmative element of the homicide offenses. Because there was no issue of excuse or justification tendered or raised in this case, the trial court did not direct a verdict on either an affirmative element of the charged crimes or on a defense to those crimes.

Defendant Brian David Frye appeals from a judgment sentencing him to state prison after a jury found him to be guilty of the first degree murder of William Edward Massey, Jr., with the personal use of a firearm, and of the attempted…