Shot to the head at close range: attempts to save the victim or call an ambulance do not exclude intent to kill

The Criminal Cassation Court of the Supreme Court upheld the verdict, which reclassified the man’s actions from manslaughter to intentional murder. The court concluded that under the circumstances of the case, aiming a loaded pistol at the victim’s head and firing did not justify applying Article 119 of the Criminal Code on manslaughter.

The Criminal Cassation Court of the Supreme Court also emphasized that calling an ambulance after the incident or the unwillingness for the victim to die by itself does not exclude the presence of indirect intent.

Case circumstances

According to the case materials, the man illegally possessed a modified signal pistol that previously belonged to his father. On the evening of February 6, 2022, while intoxicated, during a conflict in the kitchen of the apartment, he aimed the pistol at the woman’s head and fired. The victim died from the gunshot wound.

The Obolonsky District Court of Kyiv concluded that there was no evidence of intentional killing and that the shot was the result of criminal negligence. Therefore, the court reclassified the charge from Part 1 of Article 115 of the Criminal Code to Part 1 of Article 119 and sentenced him to 4 years imprisonment for the combined crimes.

The prosecutor and the victim’s representative appealed the verdict. The Kyiv Court of Appeal re-examined some evidence, questioned the accused and a witness, reviewed police bodycam footage, and ballistic expert conclusions. After this, the court concluded that the local court had incorrectly applied the criminal law. The appellate court found that the accused aimed the pistol at the victim’s head and pulled the trigger, being aware of the socially dangerous nature of his actions, foreseeing the possibility of the victim’s death and consciously allowing it. Therefore, his actions were qualified under Part 1 of Article 115 of the Criminal Code as intentional murder.

Defense arguments

In cassation complaints, the convicted man and his lawyer argued that the shot was accidental and that the convicted did not know the pistol found was modified into a firearm. They also emphasized that after the shot, the man called the police and ambulance, tried to provide first aid to the victim, and therefore, in their opinion, had no intent to kill. Additionally, the defense argued that the appellate court incorrectly assessed the evidence and unjustifiably reclassified the accused’s actions as intentional murder.

Supreme Court’s position

The Criminal Cassation Court agreed with the appellate court’s conclusions.

The Supreme Court stressed that the question of the form of guilt cannot be decided based on a single piece of evidence. The court must evaluate the entire set of established circumstances, including the manner of committing the act, the weapon used, the nature and location of injuries, the behavior of the offender before, during, and after the incident, relationships between participants, with the decisive factor being the person’s mental attitude toward the consequences of their actions.

Under the circumstances of case 756/4936/22, the Criminal Cassation Court noted that the accused, standing about one and a half meters from the victim, aimed the barrel of a loaded pistol at her head and fired. The shot to the head was directly causally linked to the death. Under these circumstances, the Supreme Court agreed with the appellate court’s conclusion that there were no legal grounds to qualify the actions under Article 119 of the Criminal Code.

The Court also noted that the defense’s version of an accidental shot was disproved by repeated forensic ballistic examination. Experts established that the pistol could not fire without pressing the trigger with a finger.

The Supreme Court also disagreed with the arguments about the convicted’s ignorance that the pistol was a firearm. The court considered the expert’s conclusion that the structural changes to the weapon could be detected by visual inspection, as well as the convicted’s own testimony that he examined the pistol, partially disassembled it, and saw a magazine loaded with cartridges. This confirms the appellate court’s conclusion that the convicted was aware that he possessed a firearm.

Legal conclusion

The Criminal Cassation Court emphasized that if there is intent to cause death, the offender’s subsequent behavior does not change the legal qualification of his actions. In particular, calling medical workers, attempting to save the victim, or unwillingness for the victim to die by themselves do not exclude the intentional form of guilt and do not affect the qualification if the person was aware of the socially dangerous nature of their actions, foresaw the possibility of death, and consciously allowed such consequences.

The Supreme Court agreed that in this case the appellate court correctly established the presence of indirect intent in the convicted, since he, while intoxicated, aimed the pistol at the victim’s head, pulled the trigger, was aware of the danger of his actions, foresaw the possibility of another person’s death, and consciously allowed it.

As a result of the cassation review, the Supreme Court dismissed the cassation complaints and left the Kyiv Court of Appeal’s verdict unchanged.

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