Can the murder charge be upgraded to first degree if additional evidence warrants that? Please say yes.
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It sure looks like it. First-degree murder:
First-degree murder is the most serious, most heinous type of murder charge. In Minnesota, many different types of killings can be considered first-degree murder, but all of them have aggravating (or responsibility or culpability increasing) factors.
The killings that Minnesota law states deserve the most severe punishment include when the victim is a child or spouse who is continually abused at home or a witness or judge who is killed due to their official duties.
Sometimes, its the serious behavior of the defendant, such as committing a burglary, robbery, or sexual crime when the victim is killed that deserves harsher punishment.
However, even most of these murders do require an intent to kill. Thus, first-degree felony-related murders are distinguished from the felony murder rule that also applies to some second-degree murder felony-related deaths.
http://statelaws.findlaw.com/minnesota-law/minnesota-first-degree-murder.html
Second-degree murder:
Second-degree murder is an intentional killing, but is less serious than first-degree murder because some malicious factors arent present. Both first and second-degree murder in Minnesota have aspects of the felony murder rule. Felony murder is when you kill a person during the commission of another felony, such as rape or burglary.
http://statelaws.findlaw.com/minnesota-law/minnesota-second-degree-murder.html
My boldings.
The sticking point seems to be whether Anderson intended to kill Alayna. I'm sure he's claimed that it happened "accidentally" at some point and without substantial evidence it could be hard to prove otherwise. IMO he did intend to kill her - realistically, what was he going to do? Drop her off somewhere to be found so she could say her friend Zach took her? Remember, "intent" can happen at any time, even minutes before the murder.
IMO it should be a given that Anderson had the foresight to know that what he was doing could result in Alayna's death, both by committing rape on a tiny little girl and by having her out in the middle of nowhere - due to her age she had no chance to escape. But, sigh, that's in an ideal situation - I understand the law is written to protect the suspect's right, and that's important, but... damn, it doesn't mean I have to like it. It's pretty clear in this specific case that Zach is the only possible perp.