When a drug dealer's customer fatally overdoses in Tennessee, what mental state must the prosecution prove to convict for second-degree murder?

Plain-English summary

Tennessee's second-degree murder statute reaches two separate kinds of killings. Subsection (a)(1) covers knowing killings. Subsection (a)(2) covers killings that result from the unlawful distribution of a Schedule I or Schedule II drug, where the drug is the proximate cause of the user's death. The (a)(2) version is sometimes called drug-delivery resulting in death.

In Opinion 14-72, the AG answered two questions. First, was the prosecution required to prove a "knowing" killing under subsection (a)(2)? The AG concluded no. Subsection (a)(2) does not list a mental state, and the default mental-state rule in Tenn. Code Ann. § 39-11-301(c) supplies intentional, knowing, or recklessness. Because intentional or knowing killings of this kind would be charged under first-degree murder or under subsection (a)(1), the AG said the practical mens rea for subsection (a)(2) was recklessness.

Second, the AG concluded that the "conscious indifference" standard from State v. Randolph, 676 S.W.2d 943 (Tenn. 1984), no longer applied. Randolph used conscious indifference as a way to find malice, but malice is no longer a statutory element of second-degree murder.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What mental state did the AG say a prosecutor had to prove?
A: Intent, knowledge, or recklessness all satisfy § 39-13-210(a)(2), but the AG observed that as a practical matter recklessness is the working standard. An intentional drug-related killing falls under first-degree murder, and a knowing one falls under § 39-13-210(a)(1), which leaves recklessness as the live route under subsection (a)(2).

Q: How does Tennessee define recklessness?
A: The opinion does not redefine the term, but Tennessee uses the standard recklessness mens rea: awareness of a substantial and unjustifiable risk and disregarding it. The Sentencing Commission Comments to § 39-13-210 expressly tie the (a)(2) version of second-degree murder to a "recklessly" caused death from unlawful Schedule I or II distribution.

Q: Why doesn't Tennessee require proof of intent to kill for drug-delivery murder?
A: The General Assembly omitted any mental-state element from subsection (a)(2), but the default-mens-rea statute in § 39-11-301(c) fills the gap by supplying intentional, knowing, or reckless conduct. The AG distinguished this from felony murder and bomb-killing first-degree murder, where the legislature took the additional step of expressly dispensing with a culpable mental state in § 39-13-202(b). Without that express dispensation language, the default rule applies.

Q: What was State v. Randolph and why did the AG say it no longer governs?
A: In Randolph, the Tennessee Supreme Court considered defendants who conspired to sell heroin to a user knowing the user was at risk of dying from injection and knowing the particular heroin had not been diluted. The user injected and died. The court held that a trier of fact could find the defendants acted "with such conscious indifference to the consequences of their highly unlawful activities as to evince malice," and at that time malice was an element of second-degree murder. The current statute no longer requires malice, so the conscious-indifference framing is not part of the modern element list.

Q: Does this opinion change the elements of first-degree murder?
A: No. The opinion is about second-degree murder under § 39-13-210(a)(2). First-degree felony murder under § 39-13-202(a)(2) and bomb-killing first-degree murder under § 39-13-202(a)(3) have their own express rule in § 39-13-202(b) that no culpable mental state is required beyond the intent to commit the enumerated offense.

Background and statutory framework

Tennessee's modern criminal code, found in Title 39, runs all offenses through the culpable-mental-state hierarchy in § 39-11-301. Intentional sits at the top, knowing in the middle, and reckless at the bottom, and proof of the higher state satisfies the lower. Section 39-11-301(b) says a culpable mental state is required for every Title 39 offense unless the definition "plainly dispenses with a mental element." Section 39-11-301(c) is the gap-filler: if the definition does not name a mental state, intentional, knowing, or recklessness suffices.

When the legislature wants to remove the mental-state requirement entirely, it does so expressly. Section 39-13-202(b) is the clearest example, telling courts that "no culpable mental state is required" for felony murder under (a)(2) or bomb murder under (a)(3) beyond the intent to commit the enumerated underlying offense. Section 39-13-210(a)(2) contains no comparable language, so the gap-filler in § 39-11-301(c) applies.

The Sentencing Commission's comments accompanying § 39-13-210 reinforce that reading. They state that the section "makes clear that the requisite mens rea for second degree murder is the 'knowing' killing of another or that the killing be done recklessly as a result of unlawful distribution of a Schedule I or Schedule II drug."

The opinion's second holding closes out an older standard. Randolph was decided in 1984 under a prior statute that included malice as an element. Conscious indifference was a tool for inferring malice from the defendant's awareness of risk. With malice no longer in the statute, the AG concluded the analytical pathway from conscious indifference to malice has no statutory hook.

Citations and references

Statutes:

• Tenn. Code Ann. § 39-13-210 (second-degree murder)
• Tenn. Code Ann. § 39-13-202 (first-degree murder)
• Tenn. Code Ann. § 39-11-301 (culpable mental state requirements)

Cases:

• State v. Randolph, 676 S.W.2d 943 (Tenn. 1984) (Tennessee Supreme Court; conscious-indifference standard under prior malice-based second-degree murder statute)

Subject

Opinion No. 14-72, Second-degree Murder by Unlawful Distribution of Illegal Drugs, July 23, 2014

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-072.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
July 23, 2014
Opinion No. 14-72
Second-degree Murder by Unlawful Distribution of Illegal Drugs

QUESTIONS

1. In a prosecution for second-degree murder under Tenn. Code Ann. § 39-13-210(a)(2), is the State required to prove that the killing was knowing?

2. In a prosecution for second-degree murder under Tenn. Code Ann. § 39-13-210(a)(2), is the standard of "conscious indifference" announced in State v. Randolph, 676 S.W.2d 943 (Tenn. 1984), still applicable?

OPINIONS

1. No. Intentional, knowing, or reckless conduct will establish the culpable mental state for second-degree murder under Tenn. Code Ann. § 39-13-210(a)(2). As a practical matter, however, the mental-state element for subdivision (a)(2) is recklessness.

2. No.

ANALYSIS

1. The offense of second-degree murder is defined in Tenn. Code Ann. § 39-13-210 as follows:

(a) Second degree murder is:
(1) A knowing killing of another; or
(2) A killing of another that results from the unlawful distribution of any Schedule I or Schedule II drug, when the drug is the proximate cause of the death of the user.

The definition of second-degree murder under subdivision (a)(2) does not specifically list a mental-state requirement, but Tenn. Code Ann. § 39-11-301(b) provides that a culpable mental state is required for every criminal offense in Title 39 unless the definition of the offense plainly dispenses with a mental element. The legislature has demonstrated, in dealing with other criminal offenses, what it means to "plainly dispense" with a mental-state requirement. For example, in defining two different forms of first-degree murder, felony murder, Tenn. Code Ann. § 39-13-202(a)(2), and murder committed as a result of the unlawful throwing, placing, or discharging of a destructive device or bomb, Tenn. Code Ann. § 39-13-202(a)(3), the legislature explicitly provided:

No culpable mental state is required for conviction under subdivision (a)(2) or (a)(3), except the intent to commit the enumerated offenses or acts in those subdivisions.

Tenn. Code Ann. § 39-13-202(b).

In the absence of similar language defining the elements of second-degree murder under § 39-13-210(a)(2), the mere omission of a listed mental state for subdivision (a)(2) offenses does not signify an intention to dispense with a mental-state requirement. Instead, proper construction of the criminal code leads to applying the default mental-state provision, Tenn. Code Ann. § 39-11-301(c), which provides that intent, knowledge, or recklessness will suffice to establish the culpable mental state where none has been explicitly provided. These three statutory mental-state elements, intentional, knowing, and reckless, are arranged in descending degrees of culpability; proof of the greater element necessarily includes proof of the lesser elements. Tenn. Code Ann. § 39-11-301(a)(2). Therefore, intent, knowledge, or recklessness suffice to establish the culpable mental state for second-degree murder under § 39-13-210(a)(2).

As a practical matter, however, the mental-state element for second-degree murder under subdivision (a)(2) is recklessness. An intentional killing resulting from the unlawful distribution of a Schedule I or Schedule II drug would warrant prosecution for first-degree murder under Tenn. Code Ann. § 39-13-202(a)(1), and a knowing killing resulting from the unlawful distribution of a Schedule I or Schedule II drug would warrant prosecution for second-degree murder under § 39-13-210(a)(1). Indeed, as the Sentencing Commission observed in its comment on Tenn. Code Ann. § 39-13-210, the section "makes clear that the requisite mens rea for second degree murder is the 'knowing' killing of another or that the killing be done recklessly as a result of unlawful distribution of a Schedule I or Schedule II drug." Id. § 39-13-210, Sentencing Comm'n Cmts (emphasis added).

2. In State v. Randolph, 676 S.W.2d 943 (Tenn. 1984), the defendant and two codefendants conspired to sell heroin to the victim, knowing that a user of heroin was "subject to dying" whenever the drug was injected and that the particular heroin sold to the victim was especially dangerous because it had not been diluted. 676 S.W.2d at 944. The victim died of a self-injected overdose the next day. Id. at 943. The Supreme Court held that a trier of fact could conclude that the defendant and his codefendants, all charged with second-degree murder, had acted "with such conscious indifference to the consequences of their highly unlawful activities as to evince malice," at that time an element of second-degree murder. Id. at 947.

Because the "conscious indifference" standard was relevant to evaluating the presence of malice, and malice is not a statutory requirement for prosecution of second-degree murder under Tenn. Code Ann. § 39-13-210(a)(2), the Randolph standard no longer has any application to such prosecutions.

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

AMY L. TARKINGTON
Deputy Attorney General

Requested by:
The Honorable James G. (Jerry) Woodall
District Attorney General
26th Judicial District
P.O. Box 2825
Jackson, Tennessee 38302