Criminal Homicide - Felony Murder, Merger, Agency, Misdemeanor Manslaughter PDF

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Class 13 – Criminal Homicide: Felony Murder, Merger, Agency, Misdemeanor Manslaughter REVIEW 

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Homicides that involve a “depraved heart” shown by gross negligence can be punishable as 2nd degree murder while unintentional kills that involve simple recklessness or gross negligence generally can only be punished as involuntary manslaughter. Conscious disregard suggests the person KNOWS the act is dangerous & does it anyway o Contrast w/ knowing homicide in MPC – know w/ virtual certainty death will occur o Contrast w/ negligence homicide in MPC – should have known of a substantial & unjustifiable risk of death. Proximate Cause: If the harm is foreseeable? But For: If x did not happen, y would not have happened. INTRODUCTION

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Felony Murder Rule a. Under CL felony murder rule (also known as the 2nd degree FMR), a person who kills during the commission or attempted commission of a qualifying felony has committed 2nd degree murder. Felon’s accomplices may also be convicted of 2nd degree murder. b. If a homicide that is committed during the commission of rape, robbery, arson, burglary, & kidnapping will lead to a 1st degree murder charge. Other felonies will lead you to be convicted of 2nd degree murder. c. Described as a strict liability crime b/c a person may be convicted of murder even if she had no intent to kill & was not reckless or negligent w/ respect to the risk of death. d. W/o limitation can lead to absurd & unjust results – Jesse Rhodes. e. Limiting Rules: i. Inherently dangerous felony limitation; ii. “Res gestate” requirement; iii. Merger doctrine; & iv. Agency rule THE INHERENTLY DANGEROUS FELONY LIMITATION

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Introduction a. Rule: The underlying felony leading to death must be inherently dangerous to human life. b. Rationale: When conduct is inherently dangerous & felonious; D should not be allowed to excuse himself by saying he was unaware of the danger to human life. Conversely, if the conduct is not inherently dangerous, imposing FMR would have no deterrent effect b/c death would not have been foreseeable. c. How do we determine if a felony is “inherently dangerous to human life”? i. Categorial/Abstract Test: Is the felony, in the abstract, inherently dangerous to human life? 1. Does not consider the particular nature of the case. 2. Is this activity the sort of activity that is inherently dangerous, even if it is engaged in the safest practice. More favorable to the defendant. 3. People v. James ii. Fact-Specific Test: If the felony, as committed in the particular case, inherently dangerous? 1. Looks at the particular nature of the case. 2. Heins v. State People v. James

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a. Facts: D was manufacturing meth & one of the chemicals she was using in the process caught fire in the mobile home & burned it to the ground. D escaped through the window of the front bathroom. Three of her children died in the fire while one escaped. Defendant testified that she had made 300+ batches of meth & never had an explosion or fire. She claimed she manufactured meth “in the safest way possible.” She contends manufacturing meth cannot be used to support a murder conviction under the 2nd degree felony-murder rule, b/c it is not an inherently dangerous felony. b. Issue: Is manufacturing meth an inherently dangerous felony for purposes of conviction of 2nd degree murder under the felony murder rule? c. Underlying Felony: Manufacturing methamphetamine. d. Precedent/Applicable Law: i. Murder: unlawful killing of a human being w/ malice aforethought. Express malice murder requires an intent to kill. ii. Felony Murder Rule: Artificially imposes malice as to one crime b/c of D’s commission of another & thereby satisfies the standard of culpability necessary to raise a homicide to murder. In determining whether a felony is inherently dangerous, the court looks to the elements of the felony in the abstract, not the “particular” facts of the case, i.e., not to D’s specific conduct. iii. People v. Burroughs: An inherently dangerous felony is one which “by its very nature cannot be committed w/o creating a substantial risk that someone will be killed.” iv. People v. Patterson: Inherently dangerous felony is “an offense carrying ‘a high probability’ that death will result.” v. People v. Taylor: Determining ‘high probability of death’ depends on evidence to dangerousness of the underlying felony in the abstract, evidence which is best garnered from testimony by experts. vi. Patterson & Taylor permit court to consider evidence of whether a felony is inherently dangerous. e. Holding: Manufacturing methamphetamine is an inherently dangerous felony for purposes of the 2nd degree felony-murder rule. The red phosphorus, iodine, & various acids involved are extremely hazardous. We do not understand the term “high probability” to mean greater than 50%. Very few activities in life, even noncriminal conduct, carry such a risk. We dare say only a small minority of simple kidnappings actually result in death. But simple kidnapping has repeatedly been held to be inherently dangerous. Manufacturing meth “by its very nature cannot be committed w/o creating a substantial risk that someone will be killed.” Affirmed. Hines v. State a. Facts: D, a convicted felon, was turkey hunting w/ some friends. He heard a turkey gobble, “saw it fan out & shot.” It hit the victim approximately 80’ away. Victim died before help could arrive. The entire group agreed to say that they did not know who had shot the victim. 2 days later, D admitted he had shot Wood & showed the police where he had hidden his shotgun. b. Issue: Is possession of a firearm by a convicted felon an inherently dangerous felony which can serve as the underlying felony for a criminal charge of felony murder? c. Applicable Law/Precedent: i. A felony is “inherently dangerous” when it is “dangerous per se” or “by its circumstances created a foreseeable risk of death.” Depending on the facts, possession of a firearm by a convicted felon can be an inherently dangerous felony. ii. Ford v. State: For a felony to serve as the basis for a felony murder conviction, it had to be inherently dangerous by its very nature or had to be committed

under circumstances creating a foreseeable risk of death. We did not specify how to determine whether a particular felony, either by its nature or as it was committed, was inherently dangerous to human life. d. Holding: Hines intentionally fired his shotgun, intending to hit his target while he had been drinking and hunting. He took an unsafe shot at dusk after he heard a turkey gobble, through heavy foliage, at a target eighty ft away that he had not positively identified as a turkey. Under these circumstances, we conclude that Hines’s illegal possession of a firearm created a foreseeable risk of death. Possession of a firearm by a convicted felon is an inherently dangerous felony and may serve as the underlying felony for a criminal charge of felony murder. Affirmed.

THE RES GESTATE REQUIREMENT I.

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Introduction a. First, the felony & the homicide must be close in time & distance. There must be both temporal & geographical proximity between the felony & homicide. i. “Place of temporary safety”: Homicides that occur after completion of the felony will still fall w/in FMR until the felon reaches a “place of temporary safety” following flight from the felony. b. Second, the res gestate requirement demands a causal connection between the felony & homicide. Courts are not in agreement regarding how much of a causal connection is required. i. People v. Stamp: Merely require a but for causal connection. ii. King v. Commonwealth: Requires there to be proximate cause. People v. Bodely a. Facts: D entered a supermarket, stole $75, & ran. Andre ran in front of D’s car & put his hands on the hood as if to stop him. Andre went to the driver’s side window, put his arm inside the car, & told D to stop. D drove away, jerking the car sharply to the left, hitting Andre. The impact resulted in Andre’s death. D sped up & drove away. b. Issue: Whether a killing which occurs during the perpetrator’s flight from a burglary occurs “in the perpetration of the burglary & therefore is felony murder?” c. Applicable Law/Precedent: i. All murder which is committed in the perpetration of or attempt to perpetrate burglary is murder of the 1st degree. ii. Escape Rule: Perpetration of a robbery continues, for felony-murder liability purposes, so long as robbers are in flight form the scene of the crime & have not reached a place of temporary safety. iii. People v. Bigelow: The test used in felony-murder cases to determine when a killing is so closely related to an underlying felony as to justify an enhanced punishment for the killing is that the crime continues until the criminal has reached a place of temporary safety. iv. People v. Cooper: The potential of felony-murder liability of burglars continues through the escape until the perpetrators reach a place of temporary safety. d. Holding: If we apply this “one continuous transaction” analysis, no rationale supports limiting the escape rule exclusively to robbery. The perpetrator’s immediate escape from the scene of a crime is no less a part of the same continuous transaction which includes the crime when the crim is burglary than when the crime is robbery. Felony-murder liability continues during the escape of a burglar from the scene of the burglary until the burglar reaches a place of temporary safety. Felonymurder liability continues during the escape of a criminal defendant, from the scene of the felony until the defendant reaches a place of temporary safety. Conviction sustained.

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People v. Stamp (But For) a. Facts: Defendants held up a business with a gun. The robbery victims were required to lie down on the floor while the robbers took the money & fled out the back door. As the robbers were leaving, they told the victims to remain on the floor for 5 minutes so no one would “get hurt.” Honeyman, an obese 60 y/o man w/ a history of heart disease, had to use a counter to assist himself in getting off of the floor. Still pale, he was short of breath, sucking air, & pounding & rubbing his chest. When the police arrived, he told them he was not feeling well & had a pain in his chest. Two minutes later, he collapsed on the floor & was pronounced dead on arrival at the hospital. Coroner’s report listed the immediate cause of death as heart attack. 3 doctors testified that although he had an advanced heart condition, there must have been some immediate upset to his system which precipitated the attack (the fright induced by the robbery). b. Issue: Whether there is substantial evidence to uphold the judgment of the TC, & in so deciding this court must assume in the case of a jury trial the existence of every fact in favor of the verdict which the jury could reasonably have deduced from the evidence. c. Applicable Law: Under the FMR, a killing committed in either the perpetration of or an attempt to perpetrate robbery is murder of the 1st degree. The doctrine presumes malice aforethought on the basis of the commission of a felony inherently dangerous to human life. The doctrine is not limited to those deaths which are foreseeable, rather a felon is held strictly liable for all killings committed by him or his accomplices in the course of the felony. d. Holding: A review of the facts shows that there was substantial evidence of the robbery itself, that appellants were the robbers, & that but for the robbery the victim would not have experienced the fright which brought on the fatal heart attack. So long as life is shortened as a result of the felonious act, it does not matter that the victim might have died soon anyway. In this respect, the robber takes his victim as he finds him for the but for test. Affirmed. e. Rule of Law: In CA, a defendant may be convicted of murder if, during the attempt or actual commission of an inherently dangerous crime, a killing occurs King v. Commonwealth (Proximate Cause) a. Facts: Bailey & King were flying an airplane carrying over 500 lbs of marijuana. Bailey was driving & was not a licensed pilot (King was). Encountered heavy cloud cover & fog & became lost. Flew the plane to a lower altitude in order to follow Route 52. Airplane crashed, killing Bailey almost instantly. King was thrown from the plane & survived. King was charged w/ felony homicide. Jury convicted him of 2nd degree murder. b. Applicable Rules/Precedent: i. 2nd degree felony homicide: The killing of one accidentally, contrary to the intention of the parties, while in the prosecution of some felonious act…is murder of the 2nd degree & is punishable as a Class 3 felony. ii. 2nd degree felony-murder: The commission of any felonious act supplies the malice which raises the incidental homicide to the level of 2nd degree murder. It does not follow, however, that any death of any person which occurs during the period in which a felony is being committed will subject the felon to criminal liability under the felony-murder rule. iii. Previous decisions have found it unnecessary to decide whether “a mere nexus” between the death & predicate felony is sufficient to satisfy the statute or whether a more direct causal relationship is required. Felonymurder statute applies where the killing is so closely related to the felony in time, place, & causal connection as to make it a part of the same criminal enterprise.

iv. Redline: Malice of the underlying felony attaches to whatever else the criminal may do in connection w/ the felony. The killing must have been done by the D or by an accomplice or confederate or by one acting in furtherance of the felonious undertaking. c. Holding: Not sufficient that death be only temporally related to commission of felony. Death must be directly related in time, place, & causal connection to commission of felony; felony or acts in furtherance thereof must contribute to cause death to constitute “killing” w/in FMR. No causal connection exists between felony of drug distribution & killing by a plane crash. To be considered an “accidental killing” w/in statute, it has to be resulted from a particular act which was an integral part of the felony or an act in direct furtherance of the felony. There is no such act. There has been no homicide. Cause of Bailey’s death was Bailey’s piloting & adverse weather conditions. For the FMR to apply, the death of a victim must be directly related in time, place, and causal connection to the commission of a felony. Reversed. THE MERGER DOCTRINE I.

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Introduction a. Felonies that are assaultive in nature (physically violent) “merge” w/ the homicide & cannot serve as the basis for a felony murder conviction. There must be a felony independent of the killing b. If the underlying felony is deemed to be assaultive, the FMR is inapplicable & the gov must prove malice aforethought some other way than through the FMR. c. If all felony assaults leading to homicides were deemed murder under FMR, it would allow murder to swallow up all lesser homicide offenses. d. Involuntary manslaughter is a felony. Thus, since Welansky committed a criminally negligent homicide, a felony, during which people died. Thus, the FMR would require that involuntary manslaughter charge be upgraded to murder w/o the merger doctrine. Examples a. D approaches V in a fit of rage, repeatedly beating him over the head w/ his fists. V dies. i. Felonious assault charge cannot serve as the basis for a felony murder charge. b. D enters V’s pawn shop w/ the intent to steal rare jewels behind the counter. He threatens V and begins taking the jewels. V resists, which throws D into a fit of rage, wherein he repeatedly beats V over the head w/ his fists. V dies i. There is a separate independent felony that it being committed. The felonious aggravated burglary charge can serve as a basis for a felony murder charge. Rose v. State a. Facts: D handed over his semiautomatic pistol to his friends for them to examine. Rose took the magazine out of the gun and pulled the slide back to make sure the chamber was empty. His friend took the gun and fell asleep on the couch w/ the gun still in the holster around his waist. At some point, Rose took the gun from his sleeping friend and places it on his waistband. Later, Rose shot Watkins in the head while she spoke on the phone to her friend. b. Issue: Whether a charge of assault with a deadly weapon merges w/ a charged homicide so that it cannot be used as the basis for 2nd degree felony murder. c. Notes: Independent Felonious Purpose Test: i. Whether the underlying felony is assaultive. If the underlying felony is assaultive (& therefore would ordinarily merge w/ the homicide, precluding application of the FMR), the court will then ask a second question ii. Whether the defendant had an independent felonious purpose.

d. Holding: Assault w/ a deadly weapon cannot support a murder conviction under the 2nd degree FMR b/c to allow that would alleviate the state from ever having to prove intent to kill in all cases wherein a killing results from a felonious assault. THIRD PARTY KILLINGS: THE AGENCY RULE I.

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Introduction a. The FMR does not apply to those who are not directly responsible for the killing UNLESS the party committing the homicide was acting as an agent of the defendant. b. If a 3rd party is responsible for the killing, the FMR does not apply, & the prosecutor seeking a murder conviction must prove malice aforethought using some other theory of malice aforethought (other than the FMR). c. Based on principles of agency. A minority of jurisdictions permit felony murder liability even if the killing was by a 3rd party, relying on principles of proximate causation. State v. Canola a. Facts: D was robbing a store when a victim of the robbery, attempting to resist the perpetration of the crime, fatally shot one of the cofelons. A second conspirator called upon for assistance, began shooting & the store owner returned the gunfire. Both the owner & the felon were fatally shot in the exchange. Canola & two others were indicted on two counts of murder, one count of robbery, & one count of armed robbery. b. Issue: Is defendant subject to application of FMR when a death of a cofelons results from resisting victim? c. Holding: A felon cannot be found guilty of the death of an accomplice occurring during the commission of the felony. It is inescapable that the ensures clause is connected w/ the conclusion of the section, “then such person so killing is guilty of murder.” d. Rule of Law: The victim who committed homicide was not in agency w/ the felon robber – therefore, the felony robber cannot be held liable. e. Example: 4 individuals commit a gas station robbery. One points a gun at the attendant, one takes money from the register, one serves a lookout at the door, and one sits in the getaway car across the street. First person shoots and kills the attendant. Can the getaway driver be tried for felony murder? i. Co-conspirators were acting in concert as agents of one another. All 4 individuals can be charged. Notes: a. Provocative act murder: When D or his accomplice commits a “provocative act” & the victim or a police officer kills in reasonable response to that act, the defendant can be found guilty of murder.

THE MISDEMEANOR MANSLAUGHTER DOCTRINE I.

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Introduction a. A homicide that occurs during the commission of (1) a misdemeanor, or (2) a felony that cannot serve as the underlying felony for a felony murder conviction constitutes involuntary manslaughter. Todd v. State a. Facts: Appellant stole $110 from the church collection plate. Voegltin took off in his car in pursuit of D. During the pursuit, Voegltin began to experience cardiac dysrhythmia. He lost control of his vehicle, collided with a tree at low speed, and died of cardiac arrest. The state charged D w/ manslaughter.

b. Issue: Whether Florida recognizes the misdemeanor manslaughter rule. c. Holding: If there is no causal connection between the perpetration of a misdemeanor and the death that follows, a defenda...