Felony Murder: Homicide in the Course of another Crime

Case: State v. Martin, 573 A.2d 1359 (1990) [p. 413-418]

Facts: Δ went to a party with some of his friends, and he had consumed a lot of alcohol and smoked marijuana.
Δ and his friends were kicked out of the party. Δ says he basically was trying to make a mess of the garbage
(possibly, because he was mad about being thrown out), and lit it on fire. Δ claims he never intended the fire to
spread, that he only wanted to make a mess. But the fire did spread, and someone dies. However, according to
state's experts, the fire was set by spreading kerosene between the ground floor & second floor (so it looks
really intentional). Δ found guilty of felony murder (and arson). The court ended up reversing due to a bad jury
instruction.

Holding
• Trial Court jury instruction said:
o Under the felony murder law, it does not matter whether the act which caused death is committed
recklessly or unintentionally or accidentally. The perpetrator is as guilty as he would be if he has
purposefully or knowingly committed the act which caused the death.
• Court says the trial court failed to instruct the jury that Δ would not be liable for the felony murder of the
victim if her death was "too remote, accidental in its occurrence, or too dependant on another's volitional
act." Reversed & remanded.

Court discussing felony Murder:

• At CL, if the victim died during course of a felony, Δ also guilty of murder via transferred intent. If
there's an intent to commit the felony, even in the absence of an intent to kill, that intent was transferred
to the death of the victim. Now, felony murder not really viewed as transferred intent, but of strict or
absolute liability. Reasoning is that it serves as a deterrent against the commission of violent crimes. If a
potential felon knows they may be culpable also as murderers, they will be less likely to commit the
felony.
• Mens rea requirement & felony murder - felony murder holds actor liable for murder even though no
mens rea - no actual intent to murder, only for the felony. However, reasoning on why it's accepted is
that felonies are disproportionately dangerous. Murders happen often during the commission of a felony,
so law wants to prevent such deaths by making it undesirable to commit a felony. So then the actor is
liable not only for foreseeable consequences, but also, even if not foreseeable to the actor himself
(objective), those consequences that the legislature apprehends.
• CL vs. MPC (This jurisdiction's felony murder statute is based on the MPC)
o At CL felony murder treated as an absolute liability offense.
• Govt's burden to prove both cause-in-fact and also that the felony was a proximate cause
of the victim's death.
• The death must be a probable consequence of the commission of the felony
• Probable consequence - refers to the risk of death created by the felon's acts
o The MPC creates the presumption of recklessness when a homicide occurred in the course of the
commission of certain felonies. If not rebutted, that presumption would support a conviction of
murder.
• MPC meaning of probable consequences - related to concept of foreseeability. Some
deaths that occur in the course of a felony are too remotely related or accidental to
warrant holding the actor liable.
• Ex: too remote - the moment a bank robber steps into the bank, an employee
pushes the button for a burglar alarm and is electrocuted.
 • Ex: not too remote and is foreseeable/a probable consequence (often used
interchangeably) - Δ robs a store, shopkeeper fires at the Δ, but kills an innocent
bystander. Δ would be guilty of felony murder.
• Multiple-perpetrator felony, the focus should be on the relationship between the victim's
death and the felony, not the individuals roles of the felons.
• Ex: So during a robbery, all perpetrators held liable for death caused in
furtherance of the crime, unless it is so unexpected or unusual (not foreseeable).

Class Notes
• If there was no felony murder rule, may not be able to prove mental state for murder, and possibly not
even manslaughter.
• Causation - death has to be proximately caused by felony.
o Victim's death couldn’t have been too remote to be accidental
• Affirmative defense (NJ) - pg 414 - if actor is engaged in commission in enumerated activities - there
are defenses there to pull in sympathetic Δs who didn’t know, etc.
• Why have felony murder rule?
o Utilitarian - Deterrence - deter undesirable felonies, which is dangerous, and generally likely to
lead to death
• The true felony murdered - don’t think, don’t mean, to kill anyone, - it was accidental.
They won't be deterred by felony murder from committing the felony, because they don’t
think of themselves as a murderer. The very assumption that these are purely felony
murderers, they don’t think an accidental murder will occur. They will discount the
possibility of being charged with murder - may not deter.
• But maybe they will be more careful in committing the felony. Be deterred from
committing the felony in a more dangerous way.
o Retributive
• someone has to be held accountable, but why this person? Because you would have to
say, you are just as deserving of punishment - the independent felony, the felony itself
establishes the deserved punishment, as of there was an abandoned and malignant heart

____________________________

Notes: [p. 418-427]

• Types of modern felony-murder laws
o MPC doesn’t have a felony murder statute. Still, almost all states have some form of the rule.
o Predicate felonies - most important factor in classifying a felony-murder rule - the range of
felonies that can serve as "predicates" for murder liability. This means that the felony is
sufficiently dangerous per se that a person committing it can be viewed as accepting the risk of
murder liability.
• Some states specify which felonies - arson, robbery, burglary, rape, etc.
• Other states just say "on any dangerous or forcible felony" or "a felony using a deadly
weapon."
• Some statutes enumerate predicate felonies for 1st degree murder, and leave it to the
courts to find predicates for 2nd degree murder.
o Aggravating Liability - determining how the committing or attempting of a predicate felony
elevates homicide liability beyond what would otherwise be imposed for causing death with a
given level of culpability.
• Examples legislature might do:
• Predicate felony may transform accidental or nonculpable homicides into 1st or
2nd degree murder
 • May only apply those accidental killings that meet the criteria of involuntary
manslaughter, invoking negligence or recklessness, and elevating them to 1st or
2nd degree murder
• May raise intentional or grossly reckless killings from 2nd to 1st degree murder
• Felony may elevate he killing to one imposing a capital sentence
• A felony murder rule is any rule reducing the culpability with respect to death required
for a particular grade of murder when committed in the course of certain felonies.
o Culpability - Most states don’t explicitly condition felony-murder liability on any culpable
mental states, but some do.
• A few states expressly condition felony murder on a mens rea of gross recklessness with
respect to death, elevating 2nd degree (or possibly involuntary manslaughter) to 1st
degree when done in course of a dangerous felony.
• Some states condition felony murder on recklessness, elevating involuntary manslaughter
to 1st degree murder if done during the course of a felony.
• Some states expressly require proof of negligence, removing the strict liability
component from felony murder.
o Accomplice Liability - in many states, the felony murder rule can also make a Δ liable for
homicidal behavior of an accomplice to the independent felony. Some jurisdictions say if you're
a felon, then liable for any death caused by the felony. Others require some degree of culpability
for the act that caused the death. Compromise is an affirmative defense (not carrying a deadly
weapon, didn’t intend a murder, didn’t know the other participant was going to or was carrying a
deadly weapon, and it wasn’t a foreseeable consequence).
• Rationales for the felony-murder rule
o The independent felony establishes, as a fact, that the Δ acted with the sort of mens rea that
would otherwise establish murder liability - gross recklessness or "wanton indifference."
(Retributive)
o The intention to commit a felony is as "malicious" a mental state as the intention to kill.
(Retributive)
o A felony-murder rule, by raising the stakes to murder where a death occurs in the course of a
felony, will deter prospective criminals from committing the felony. (Utilitarian)
o A felony-murder rule will induce those who will commit felonies to take the greatest pains to
commit those felonies safely, since they know they will be responsible for any fatal outcomes.
(Utilitarian)
• Felony murder and deterrence (Utilitarian rationales)
o Deterrence-based rationales assume that the act of committing the felony raises a substantial risk
of death (robbery, burglary, rape). But statistics say the # of homicides that occur during felonies
if not so high - low probability of death.
• Felony murder and desert
o Retributivists argue that felony murder rule is one of strict liability - and without a culpable mens
rea toward the risk of death, Δ doesn’t merit murder.
• So how do you justify extreme punishments for a strict liability rule?
• Knowingly creating a risk of death during a felony (felony-murder) is more
culpable than knowingly creating a risk of death during an innocent or less
culpable act (involuntary manslaughter, etc.). A reckless homicide out of a
seriously wrongful activity is much more culpable homicide.
• The mens rea for any homicide involves weighing 2 factors: (1) The extent of the
Δ's willingness to impose a risk of death on others and (2) the moral worth of the
purpose for which the Δ imposes the risk. So possibly for felony-murder, the
willingness to impose a risk of death on others in pursuit of a malign goal is just
as bad as when there's gross recklessness necessary to establish murder
(recklessness in the course of an unworthy or immoral purpose).
• Foreseeability and Causation
o People v. Stamp (1969) - Δs committed a robbery, and one of the victims has a heart attack and
dies. Δ convicted of 1st degree murder (via the felony murder rule). Felony murder rule 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 a felony. Death still has to be the
proximate cause, but the jury instruction here said the proximate cause is that which the actor did
that lead to the death, where there was no other interference.
o People v. Brackett (1987) - 85 yr old woman had suffered a rape & aggravated battery. She fell
into a depression, and wouldn’t eat, so Doctor inserted a tube to feed her. But breathing
difficulties resulting from the attack led her to choke on the tube and she died. Court upheld the
felony murder charge because the death was foreseeable, even though the attack wasn’t the
specific means of death.