Birdsong presents the following article he wrote in 2006 to help students better understand the felony murder rule and the two theories of liability that are used by various states. Those theories are the Agency theory of liability and the proximate cause theory of liability. This article was originally published in the Ohio Northern University Law Review Volume XXXIII, Number 2 (2007).
Read and learn:
THE FELONY MURDER DOCTRINE
REVISITED: A PROPOSAL FOR CALIBRATING PUNISHMENT THAT REAFFIRMS THE SANCTITY OF HUMAN LIFE OF CO-FELONS WHO ARE VICTIMS
By: Leonard Birdsong*
The common law felony murder rule is that if a person kills another in doing or attempting to do an act amounting to a felony, the killing is murder.1 In his case book on criminal law Professor Dressler opines that in its classic form, the operation of the rule follows a compellingly simple, almost mathematical, logic: a felony + a killing = a murder.2
In People v. Stamp,3 Stamp while armed with a gun and blackjack entered a business and ordered the owner and employees to lie on the floor while Stamp and his accomplice fled with the business=s cash.4 Shortly after they fled the owner of the business, who suffered from heart disease, experienced a heart attack and died. Doctors testified at trial the heart attack had been precipitated by fright induced by the robbery.5 Stamp appealed his conviction for first degree murder. In upholding his conviction the Court of Appeals ruled that, a killing committed in either perpetration of or an attempt to perpetrate robbery is murder of the first degree…@whether the killing is willful, deliberate and premeditated, or merely accidental or unintentional and whether or not the killing is planned as a part of the commission of the robbery.@6
Stamp exemplifies the felony murder rule at its strictest. A killing during the course of a felony, whether accidental or intentional equals first degree murder. Prosecutors and law enforcement find the rule attractive for it provides a formal track of liability which permits a conviction regardless of the juror=s assessment of culpability.7
Felony murder is akin to strict liability crimes in that no mental element or mens rea must be proven. The felony murder rule operates in direct opposition to the fundamental principle of criminal law that liability ought to reflect culpability.8Although some courts have suggested that the felony murder rule dispenses with the requirement of malice, the more usual explanation is that the intent to commit the felony constitutes the implied malice required for common law murder.9 A felony murder in most states is graded as first degree murder. In states with a death penalty felony murderers are eligible for the death penalty.
Many commentators criticize the felony murder rule and some believe that it use should be abolished in the United States.10 Despite their criticism the felony murder is still retained in 43 of the American states.11 The law of felony murder varies from state to state but many courts
have engrafted limitations on the rule.12 Deterrence is often cited as one justification for the felony murder doctrine.13 Judges and commentators often argue that the felony murder rule encourages criminals to reduce the number of felonies they commit and to take greater care to avoid causing death while committing a felony.14
Critics argue that the felony murder rule distorts marginal deterrence incentives, that is, once a felon has accidently caused one death, there is less to deter him from intentionally killing other witnesses to the crime.15
Applying the felony murder rule becomes difficult when accomplices are involved in the felony and a killing occurs. An example of such difficulty is exemplified by the facts in the case of State v. Sophophone,16 where Sophophone and three others broke in to a house during the night.17 Police were called and gave chase to Sophophone and his three other co-felons who had run from the house.18 Sophophone was apprehended, hand cuffed, and placed in the back seat of a police car.19 Police continued to chase the others. One of the co-felons, Somphone Sysoumphone, was caught by another police officer and ordered to lie face down on the ground in order that he may be hand cuffed.20 While on the ground Sysouphone rose up and fired a handgun at the officer. The officer returned fire and killed him.21
The fatal shots were fired by a policeman and not one of the co-felons. Should Sophophone be tried and possibly convicted under the theory of felony murder? The answer lies in whether the state that tries him adopts the agency approach to felony murder or the proximate cause theory of felony murder, both of which will be discussed in this article.
Some felony murder statutes employ language that makes clear whether it was the intent of the legislature to apply the agency approach or the proximate cause approach. In at least one state the plain wording of the felony murder rule was written in such a way that favored a proximate cause interpretation. However, the state Supreme Court gave it an agency interpretation. Part V of this article will examine that ruling. The problem with the agency approach, as will be seen in this article is that it does not recognize that the death of the co-felon as the taking of a life that has value.
This article will examine the felony murder causation liability issue by analyzing the differences between the agency approach to felony murder and the proximate cause approach. The article concludes by proposing that states might wish to choose to amend their felony murder statutes in an effort to effectuate the proximate cause theory of liability. Such an approach could prove to be a better way to calibrate punishment in a proportionate way that would value the lives of co-felons who are victims. Such calibration would better serve to deter felons who might kill while also reaffirming the sanctity of human life, even the life of co-felons who may be killed.
II. A BRIEF HISTORY OF AMERICAN FELONY MURDER
Many commentators and courts assert or assume that the felony murder doctrine long prevailed as the common law of England and was received into American law at Independence.22 However, even if the English common law had developed a felony murder rule such a rule would not necessarily have been applicable to the American colonies.23 The colonial charters conferred by the Crown did not declare the applicability of the common law as such.24 Instead, they generally authorized local authorities to promulgate laws as compatible with English law.25
The felony murder doctrine as we know it today in America grew out of penal reform movements in many state legislatures.26 After the Independence a number of the new states began legislative reforms to codify murder. This was done, in part, to limit the use of the death penalty.27 One of the earliest states to do so was Pennsylvania. In 1794, that state enacted a murder grading statute which divided murder into first degree capital murder and second degree murder.28 The Pennsylvania legislature constricted the penalty for felony murder by imposing capital punishment only for such felonies as occurred in the perpetration of arson, rape, robbery or burglary.29 The statute further provided that all felony murder in the state other than ones committed in the perpetration of one of the common law felonies specified in their degree statute was to be second degree murder.30 Later, the felony of kidnapping was added to the list of specified felonies for purposes of felony murder.31 The Pennsylvania statute did not actually formulate a felony murder rule or define the elements of murder. Instead the statute identified participation in certain felonies as a grading element that aggravated murder liability. The statute prescribed that:
All murder, which shall be perpetrated by means of poison, or by laying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder in the first degree (emphasis added); and all other kinds of murder shall be murder in the second degree.32
The implication of the statute is that murder in the course of one of the enumerated felonies did not require willful, deliberate, and premeditate killing.33 The language of the statute does not suggest that the mere causing of death in the course of any felony was always murder.34 The word Adeemed@ in the statute implies the notion that a judge or jury could weigh the facts of the case and decide whether the conduct of an accused warranted a charge of murder for which the accused could be hanged. In other words there could be proportional punishment dependent upon the circumstances for the crime.
The Pennsylvania statute was enormously influential, shaping homicide reform statutes in two thirds of the states during the nineteenth century.35 Twelve states adopted Pennsylvania=s grading scheme with little or no modification,36 and another nineteen adopted a somewhat modified grading scheme.37
The first true felony murder rule statute was passed in Illinois in 1827.38 The Illinois statute defined murder as unlawful killing with express malice , or acting with knowledge that the acts will or probably will result in death or great bodily harm, and felony murder.39 The statute added that an Ainvoluntary killing… in the commission of an unlawful act which in its consequences, naturally tends to destroy the life of a human being, or is committed in the prosecution of a felonious intent…shall be deemed and adjudged to be murder.@40 Yet, it is not a strict liability statute in that it is limits liability for an involuntary killing in the course of a felony that Atends to destroy the life of a human being.
In 1829 a statute enacted in New Jersey included within murder killing A in committing, or attempting to commit, sodomy, rape, arson, robbery, or burglary, or any unlawful act against the peace of this state, of which the probable consequence may be bloodshed…@41 During that same year New York passed the strictest of the new felony murder rule statutes. Their statute defined murder as killing Awithout any design to effect death, by a person engaged in the commission of any felony.@42 At the end of the nineteenth century, nineteen states had adopted such differing felony murder statutes.43
The twentieth century began with most states having various ways for defining felony murder: predicating murder liability on implied malice, as well as a felony; predicating murder liability on dangerous felonies, sometimes called enumerated felonies, or predicating murder liability on any felony44. Throughout the twentieth century and into the twenty first century we continue to see American states defining felony murder in the same ways.
Although we know that the states have defined felony murder by statute in various ways since the Independence of the United States, little attention has been given to how or why various states apply criminal liability in cases involving felony murder. The next section will examine the agency approach to felony murder and the proximate cause approach to felony murder.
III. THE FELONY MURDER THEORIES OF LIABILITY
One of the difficulties with the respect to the felony murder rule is determining how far liability should extend under the doctrine.45 The basic definition of felony murder implies a causal relationship between the underlying crime and the homicide.46 Causation problems arise in a variety of ways in felony murder cases.47 The questions that have been asked include should liability be imposed on a defendant whose co-felon does the actual killing. What if a bystander or a victim commits the killing during the course of the felony? What if a co-felon shoots and kills a police officer? Should a defendant be liable when an intended victim kills a police officer while attempting to foil a robbery by shooting at the felons? Should a defendant be liable when a person killed is a co-felon or is a co-felon=s death of too little consequence to merit liability.48 Since no intent is required before imposing liability under felony murder, the element of causation is especially important.49
The two major approaches to felony murder causation are the agency theory and the proximate cause theory.50
The agency approach limits application of the doctrine to those homicides committed by the felon or his or her agent.51 Under this approach, the identity of the killer is the threshold inquiry, i.e., the rule does not extend to a killing, although growing out of the commission of the felony, if directly attributable to the act of one other than the felon or one his co-felons.52
Originally, the agency doctrine may have been borrowed from conspiracy theory.53 When courts first applied the conspiracy theory, liability was limited to those situations that involved a killing in furtherance of the felony.54 If a bystander did the killing no liability would be imposed because the killing did not further the purpose of the felons in the commission of the crime.55
Although one is generally only criminally responsible for her own criminal acts and not acts of others, there is an exception when a felon may be responsible for the acts of a co-felon. That is, a person is responsible for the acts of another if the primary actor is functioning as the agent of the secondary party.56 This agency relationship exists when the secondary party is an accomplice of the primary party. In such a situations, the primary party=s acts are imputed to the secondary party.57 In an ordinary felony murder situation in which a felon kills an innocent party, her co-felons are also responsible for the killing.58 However, if the killing was done by a bystander, victim or police officer the primary party can not be convicted of murder because the primary party was not a person with whom she was an accomplice.59 A majority of jurisdictions follow the agency theory of liability for felony murder.60
In the introduction to this article we were introduced to the facts of the Sophophone61 case wherein four burglars fled a housebreaking as the police arrived to arrest them. Sophophone was caught by police and sat in handcuffs in the back of a police car while one of his accomplices, Sysoumphone, resisting arrest, shot at the arresting officer. The police officer returned fire and shot and killed Sysoumphone.
If the state that prosecutes Sophophone relies on the agency theory of liability, Sophonphone would not be guilty of felony murder, but could be prosecuted for the burglary. The killing was done by a police officer who was not in an agency relationship with Sophophone or any of the other burglars. This appears correct in theory but creates a situation where it is not clear that justice is served. The decision turns on the fact of who was the better marksman. The co-felon fired first and could have been prosecuted for felony murder, along with his accomplice Sophophone, had he been a better marksman. From a crime grading point, it might well be argued that justice might require that if not prosecuted for felony murder Sophophone should be punished for more than just burglary when any human being is killed. The sanctity of human life begs that there be some enhanced punishment for the accompanying murder, even though the one murdered was a co-felon The family of the murdered co-felon could see their relative=s loss of life devalued when there is not such enhanced punishment.
Nevertheless, such additional punishment does not happen in jurisdictions that follow the agency theory of liability.62
A rationale for upholding the agency theory and not punishing Sophophone is that the killing was not done in furtherance of the felony.63 As a matter of fact, the co-felon was killed resisting the arrest for the felony. A second rationale is deterrence. The felony murder rule can have little or no deterrent effect when the shooter is a non-felon, since the felon has no control over the actions of the innocent person.64
The seminal and often cited case on application of the agency theory is Commonwealth v. Redline.65 In that case Redline and his co-felon subdued and tied up two police officers who were in a restaurant in Reading, Pennsylvania.66 They robbed a number of the restaurant patrons and fled with a hostage.67 As they fled a number of other police officers bore down on then. Redline fired a handgun at one of the officers, missing him.68 The police immediately returned fire and a gun battle ensued. Two police officers were wounded, as were Redline and his co-felon.69 The co-felon died of his gunshot wounds, which were determined to have been fired by the police. Redline was convicted for the first degree murder of his co-felon.70
Redline=s appeal of his conviction was on the ground that no killing under the facts of his case had ever been declared murder in the state.71 The question he presented caused the Supreme Court of Pennsylvania to review its felony murder jurisprudence.72 The court reversed Redline=s conviction on the ground that the police officer who fired the shots that killed the co-felon was engaged in the lawful conduct of a police officer and the killing of the co-felon was a justifiable killing which could not be characterized as murder.73 Thus, Redline could not be guilty of felony murder for the consequences of the police officer=s conduct.74
Undoubtedly, the courts which employ the agency theory of liability view the outcome as just. Yet, that outcome is not satisfying when viewed through the lens oft upholding the dignity and sanctity of life B all life, including the co-felon who is killed by a police officer. The family of such co-felon would not view the lack of punishment for the murder as just deserts for the slaying of their relative. A proximate cause approach would prove to be a better alternative.
B. Proximate Cause
Under the proximate cause theory, liability attaches for any death proximately resulting from the unlawful activity, though it is most often applied in those states that follow the enumerated felonies that are inherently dangerous to life approach to felony murder.75 A minority of jurisdictions employ this theory.76 Under the proximate cause theory the felon is liable for any death resulting from the felony, whether the killer is a felon or a third party.77
The rule is justified on the ground that Awhen a felon=s attempts to commit a forcible felony sets in motion a chain of events which were or should have been in his contemplation when the motion was initiated, he should be held responsible for any death which by direct and almost inevitable sequence results from the initial criminal act.@78
One often quoted note opines that since this proximate cause theory of liability is constructed out of tort principles, fairness would dictate that certain protections traditionally afforded to tort victims be made available to felony murder defendants, leaving sole remedial action in the civil system.79 An interesting opinion. Yet, it is unlikely that this will ever happen given the mind set of many legislators who err on the side of being Atough on crime.@
Application of the proximate cause approach varies greatly by jurisdictions because the statutes differ substantially,80 and this article will examine a representative sample of them. First, let us look again at the facts of the Sophophone case set out in the introduction and apply the proximate cause theory of liability. In that case Sophophone=s co-felon was shot and killed by a police officer after they had fled a burglary. At the time of the shooting Sophophone was handcuffed and seated in the backseat of a police car. If Sophophone were to be prosecuted in a jurisdiction that applied a proximate cause theory he would be held liable for the death of his co-felon. Vicarious liability would come together with proximate cause to provide a situation wherein the state could argue that AThe commission of the burglary, coupled with the election by defendants to flee, set in motion the pursuit by armed officers. The shot which killed.. ..was shot in opposition to the escape of the fleeing burglars… [and] was a direct and foreseeable consequence of defendants= actions.@81
A conviction of Sophophone for felony murder would be justified because it should have been foreseeable that a killing would occur as a proximate cause of the actions that he and his co-conspirators set in motion by committing burglary. As a result Sophophone should be responsible for the death. Again, deterrence may be the underlying rationale for the application of the proximate cause theory. That is, a purpose for the rule is to deter felons from committing dangerous felonies where it is foreseeable that any killing may ensue.82
An oft cited case illustrating the application of the proximate cause theory of felony murder is State v. Canola.83 Therein two men entered a jewelry store in Englewood, New Jersey, and forced the owner and his employee into a back room and robbed them of their money and jewelry.84 Soon thereafter two other accomplices to the crime entered the store with canvas bags and proceeded to collect jewelry in the display cases.85 After three of the robbers left the store the store owner grappled with the fourth robber who called for assistance. One of the accomplices returned to the store and shot the store owner.86 The owner, who had a pistol concealed on his body, drew the weapon and shot his assailant. Both the jewelry store owner and his assailant died.87
Canola was convicted of two counts of felony murder for the killing of the jewelry store owner and the co-felon.88 He argued on appeal that the trial judge below erred when he did not dismiss the murder indictment count for the killing of the store owner. He argued that he could not be liable, as a matter of law, for felony murder of his co-felon because his co-felon had been shot by one of victims of the robbery.89 Canola based his argument on agency theory and cited Commonwealth v. Redline in his defense.90
In upholding his conviction the court noted that the language of the New Jersey felony murder statute was different from the Pennsylvania statute91 and was written to allow the application of the proximate cause theory of causation. The court held:
The proximate cause theory, simply stated, is that when a felon sets in motion a chain of events which were or should have been within his contemplation when the motion as initiated, the felon and those acting in concert with him, should be held responsible for any death which by direct and almost inevitable consequences results from the initial criminal act.
In our view the statute indicates an intention on the part of the legislature to extend criminal responsibility beyond that imposed upon a felon at common law and to hold liable all participants in an armed robbery for deaths which occur during the commission of the crime. We conclude that the trial judge properly denied the motion to dismiss.92
In the next section of this article we will compare the statutes of three states that employ the proximate cause theory of liability and explain why it is superior to that of the agency theory of felony murder liability.
IV. PROXIMATE CAUSE STATUTES
Enhanced use of the proximate cause theory of felony murder liability would hold felons liable for the consequences of the results of their initial criminal activity and at the same time reaffirm the sanctity of human life. This should include all human life, including the life of a co-felon who is killed during the felony.
A purpose for enhanced sentencing for felons who kill in the course of their felonious conduct is proportionality.93 The punishment for a robbery where no one is killed should be less for a robbery in which there is a killing.94 Another reason for such enhanced punishment for the felony murder is the notion that the punishment expresses the condemnation of the community. The purpose of condemnation is to express the society=s rage that a life has been taken.95 This condemnation should include outrage at the loss of any life, including that of co-felons who may be killed during the course of the felony. To not do so sends a message that the lives of murdered co-felons are less valuable than that of innocents who may be killed during the course of such a felony murder.96
Felony murder, especially when the proximate cause theory of liability is applied, is a useful doctrine.97 It is useful because it reaffirms to the surviving family of a felony murder victim the kinship the society as a whole feels with him by denouncing in the strongest language of the law the intentional crime that produced the death.98 This should include the surviving family members of the murder co-felon. Under an agency approach to felony murder there is no murder liability for the surviving felon when the co-felon is killed by police, victims, or bystander. The family of such co-felon will feel devalued because their loss is not denounced by society. This does not enhance the sanctity a society should feel for the loss of any human life.
A number of courts have discussed the public policy reasons justifying application of a proximate cause approach.99 The Illinois Supreme Court may have stated it best when they wrote:
It is equally consistent with reason and sound public policy to hold that when a felon=s attempt to commit a forcible felony sets in motion a chain
of events were or should have been with in contemplation when the motion was initiated he would be responsible for any death which by direct and almost inevitable sequence results from the initial criminal act. Thus, there is no reason why the principle underlying the doctrine of proximate cause should not apply to criminal cases. Moreover, we believe that the intent behind felony murder doctrine would be thwarted if we did not hold felons responsible for the foreseeable consequences of their actions.100
Nevertheless, as a comparison of three different proximate cause statutes will demonstrate, states have taken quite different approaches to proximate cause theory.
A. 2 Acting either alone or with one or more other persons the person commits or attempts to commit [enumerated felonies]103 and in the course of and in furtherance or immediate flight from the offense, the person or another person causes the death of any person.
B. Homicide, as prescribed in subsection A, paragraph 2 of this section requires no specific mental state other than what is required for the commission of any of the enumerated felonies.104
The operative language of the Arizona statute for purposes of proximate cause applicability is clear: A…the person [ perpetrating the felony ] or another person causes the death of any person, A in the course of and in furtherance of the offense, or immediate flight would be guilty of felony murder. The Arizona legislature, also makes clear that no mental state is required other than the commission of the enumerated felony. Such statute codifies the principle that malice needed for the murder is transferred from the commission or attempted commission of any of the enumerated felonies.
In State v. Lopez,105 the Arizona Court of Appeals upheld the felony murder conviction of Gerardo Lopez on the basis of the language of the felony murder statute. The facts at trial showed that while thwarting an attempted armed robbery involving Lopez and his three co-felons, a police officer fatally shot one of the co-felons. The shooting occurred when Lopez claimed that he and another one of his co-felons were under arrest by an undercover DEA agent.106
The court held that his conviction for felony murder was consistent with the statute in that if one commits or attempts to commit one of the enumerated felonies Aand in the course and in furtherance of such offense or immediate flight therefrom, such person or another person causes the death of any person@107 Lopez would have been guilty. Under the statute, the victim can be a co-felon.108 With respect to Lopez=s argument that he could not be found guilty of felony murder because he was under arrest, the court held the Aeven if Lopez had been handcuffed or, like Peterson, ordered to lie on the ground, the jury still could have found him guilty of felony murder because his actions were the proximate cause of Richard=s death.@109
The Illinois statute, by contrast, leaves much of the interpretation of proximate cause for
felony murder to the Illinois Supreme Court. The statute 110 provides, in relevant part:
Sec. 9 – 1 First degree murder
(a) a person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death:
(1) he either intends to kill or do great bodily harm to that individual, or knows such act will cause death to that individual or another; or
(3) he is attempting or committing a forcible felony other than second degree murder.111
That=s it. There is no helpful phrase such as Acauses the death of another@ or Acauses the death of any person,@ that might guide one to readily understand that a theory of proximate cause liability was intended. Further, the statute does not define forcible felony, though another section lists the factors that would make felony murder punishable by the death penalty:112
the other felony was an inherently violent crime or attempt to commit an inherently violent crime. …@inherently violent crime@ includes, but is not limited to, armed robbery, robbery, predatory criminal sexual assault of a child, aggravated criminal sexual assault, aggravated kidnapping, aggravated vehicular hijacking, aggravated arson, aggravated stalking, residential burglary, and home invasion.
Whether these Ainherently violent crimes@ are the same as forcible felonies is left unanswered. Although the language is spare, it is not necessarily ambiguous. Perhaps, the statute on felony murder was written by the legislature as a way of the insure no limitation on causation liability. This could be a sub silento or tacit way by the legislature of expressing its intention that proximate cause liability is to be applied to felony murder case in the state.
In People v. Dekens,113 the Supreme Court of Illinois addressed the precise question of the liability of a felon for the killing of a co-felon by a victim:
Illinois follows the proximate cause theory of felony murder, as opposed to the agency theory. Consistent with the proximate cause theory liability should lie for any death proximately related to the defendant=s criminal conduct. Thus, the key question here is whether the decedent=s death is the direct and proximate result of the defendant=s felony. As our cases make clear, application of the felony murder doctrine does not depend on the guilt or innocence of the person killed during the felony or on the identity of the person whose act causes the decedent=s death.
We believe that a charge of felony murder is appropriate in these circumstances.114
While the foregoing is an accurate statement of the proximate cause theory, since the Court never alludes to the Illinois felony murder statute itself, it is unclear whether such liability is predicated on it or Illinois practice since it passed the first true felony murder statute in the United States in 1827.115
One critic opines that the Illinois Supreme Court=s holding in Dekens creates a great injustice.116 She argues that the decision has extended the felony murder doctrine beyond any previous Illinois decision and brings about the unjust result of liability of felony murder for the felon when any one is killed during the felony, whether victim or co-felon.117 She, further argues, that Illinois should reassess its use of the proximate cause theory of liability and adopt the agency theory when applying the felony murder doctrine.118 Such criticism misses the point of proportionality in criminal grading. Even though it was a co-felon killed in the case, that co-felon=s life was of value and the conviction for the taking of life under the proximate cause properly recognizes and values such loss of life.
Florida has adopted a three tiered approach to proximate cause liability which allows for findings of first, second degree and third degree felony murder. Such a grading scheme allows for rational and proportional punishment based on the gravity of the underlying felony and/or who committed the killing.119
Florida=s first degree felony murder statute120 provides:
782.04 Murder. (1)(a) The unlawful killing of a human being:
(2) When committed by a person engaged in the perpetration of, or in the attempt to perpetrate any [enumerated felonies ]121 is murder in the first degree and constitutes a capital felony, punishable as provided in s. 775.082.122
The operative word in this first degree murder statute is that the killing be unlawful.123 Such wording allows for the first degree murder conviction of a defendant who kills his co-felon unlawfully in the perpetration of and in furtherance of the crime. The Florida Supreme Court has ruled that the statute does not apply against such defendant when the co-felon is killed as a result of his own negligence.124 Instead, the Court advises that the second degree murder statute be invoked for such killing of the co felon.
Florida=s second degree felony murder statute provides:
782.04 (3) When a person is killed in the perpetration of or in the attempt to perpetrate, any [ enumerated felonies ]125 by a person other than the person engaged in the perpetration of or in the attempt to perpetrate such felony, the person perpetrating or attempting to perpetrate such felony is guilty of murder in the second degree, which constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life.126
This second degree murder statute allows for murder liability when there is a killing, any killing, in the perpetration or attempt to commit a felony by a person other than the perpetrator of the felony whether the killing is accomplished by a victim of the crime, a police officer, or an innocent bystander. Such a second degree murder conviction does not carry the death penalty in Florida. From a grading point of view such a statute is rational. The proximate cause theory would hold the defendant liable for any death that ensued, however, since the killing was done by one other than the felon himself it will be graded lower and the punishment would be less severe. In most cases a term of years in prison up to life, but not the death penalty.
Florida=s third degree felony murder statute provides:
782.04 (4) The unlawful killing of a human being, when perpetrated without any design to effect death, by a person engaged in the perpetration of, or in the attempt to perpetrate, any felony other than any: [enumerated felonies]127 is murder in the third degree and constitutes a felony of the second degree, punishable as provided in s. 775.082,128 s. 775.083,129 or s. 775.084.130
This third degree felony murder statute is also rational. It grades such felony murder lower because it applies to killings occurring during the course of felonies that are not inherently dangerous. The statute applies when their was no design to effect death and serves as a recklessness statute. Such statute provides sensible and proportional punishment B a term of imprisonment not exceeding fifteen years and the possibility of imposition of a fine not exceeding $5,000.
Although more complex than the Arizona and Illinois felony murder statutes, the Florida felony murder statute is more comprehensive and treats felony murder in a way that provides for proportional punishment based on the severity of the crimes and/or who may have accomplished the killing. Most importantly the statute makes it clear that criminal liability is based on a proximate cause theory. Such a grading scheme serves to reaffirm the sanctity of life. The family of the victim of the felony murder, even if a co-felon, will derive some satisfaction that the life of their relative was of such value that his or her loss will be taken into consideration for purposes of punishment.
In State v. Perez,131 the appellee, Perez had been indicted for the first degree felony murder of his co-felon, Tomargo.132 The case involved an arson. Both Perez and Tomargo perpetrated the arson and were present at the scene. Tomargo died of burns suffered in the course of perpetrating the arson.133 The trial court dismissed the indictment on the ground that Florida=s first degree felony murder statute only applied to the killing of an innocent person.134
The court of appeal reversed this ruling and reinstated the indictment holding that the Ainnocent person@ rationale had been overturned.135 Instead, the court ruled that the trial court must look to the wording of the statute and find if the killing was Aunlawful@ as stated in the statute.136 The facts before the court of appeal did not indicate whether Tomargo had died as a result of his own actions, acts committed by Perez, or a combination of the two.137 The court of appeal, further, ruled that if Perez=s actions were even in part the cause of Tomargo=s death, the killing would be unlawful and the first degree murder section was applicable138 for the death of a co-felon. The indictment was reinstated.
Earlier, the Florida Supreme Court in Mikenas v. State139 ruled with respect to the language of the second degree felony murder statute that:
The language of section 782.04(3) is not ambiguous or vague. It refers to Aa person@ and must mean >any person@. If the Legislature had intended something other than this, it could have inserted the word Ainnocent=.140
In that case Mikenas, his brother, and another co-felon robbed a convenience store in Tampa.141 An auxiliary deputy sheriff was already in the store but had not been noticed by the robbers.142 When an off duty Police officer happened into the store the auxiliary deputy sheriff alerted him to the robbery. A gun battle ensued143 The off duty police officer was killed by Mikenas. The auxiliary deputy sheriff shot and killed Mikenas=s brother. Pursuant to a plea agreement Mikenas pled guilty to one count of first degree murder and pled nolo contendere to the charge of second degree murder for the killing of his brother with the right to appeal the applicability of the second degree felony murder statute.144 Mikenas argued that the statute only referred to Ainnocent@ persons killed during a felony.145 The Court disagreed and alluded to the plain language of the statute as discussed above.
The list of the enumerated felonies in the Florida=s first and second degree felony murder statute is rather long at 17, but they are all, arguably, inherently dangerous felonies where it is foreseeable that a death may result from their perpetration or attempted perpetration. Other state legislatures might well look to the Florida three-tiered scheme of grading felony murder. Perhaps, a shorter list of enumerated felonies should be applied. The Model Penal Code in its version of the felony murder rule limits the enumerated felonies to: robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape.146
The Model Penal Code allows for a sentence of death for conviction of the felony murder.147
Such a grading scheme as this article proposes would serve to better calibrate the
punishment for the various types of felony murder killings while at the same time reaffirming the sanctity of human life by punishing all killings perpetrated by the surviving co-felon or co-felons.
The Florida felony murder scheme is a good model because it does an outstanding job of answering the questions concerning felony murder liability posed at the beginning Section III of this article.148 The Florida scheme allows for a first degree murder conviction and the death penalty when during the course of an enumerated felony anyone is killed accidentally or intentionally, including a co-felon.149 The scheme allows for a second degree murder conviction and a terms of years in prison, up to life imprisonment, but no death penalty when during the course of an enumerated felony one other than the person perpetrating the crime kills a person, including killing a co-felon. The third degree felony murder scheme would impose a prison term of no more than 15 years and a fine of up to $5,000, for killing in the course of a felony which was not inherently dangerous. The sentence and fine could be further calibrated in line with the seriousness of the felony or the manner of killing.
It would be this author=s proposal that in an effort to make their criminal justice systems fairer and more just while still providing a system of deterrence for those who might kill during the course of a felony legislators of the various states start calibrating their felony murder statutes into a three-tiered system. Such a calibrated system applying the proximate cause theory of liability could serve as a way to punish a death during the course of a felony while upholding the sanctity of any life that taken.
A few states which may want to look to the Florida scheme would be: Delaware which applies agency theory in what appears to be proximate cause worded felony murder statute;150 The District of Columbia which provides for first degree felony murder for attempt or perpetration of a felony involving a controlled substance (too broad);151 Iowa which reads like the Illinois felony murder statute but applies agency theory;152 New Mexico which applies agency theory for any felony;(too broad) 153 Tennessee which, also, employs proximate cause language but applies agency theory;154 and Wisconsin which has a statute that speaks in broad terms but limits its use to agency principles.155
V. A PROXIMATE CAUSE STATUTE IN AGENCY CLOTHES
The facts of the case of State v. Sophophone156 have been used throughout this article for purposes of analyzing the differences between the use of the agency theory of felony murder and the proximate cause theory. Sophophone was caught by police fleeing a burglary scene. While handcuffed and seated in a police car, one of his co-felons resisted arrest and fired a handgun at a police officer. The police officer returned fire and shot and killed the co-felon.
Sophophone was, in fact, tried for first degree felony murder.157 How was the actual case decided? Was it decided in an agency jurisdiction or a proximate cause jurisdiction?
Let us first look at the statute under which the Sophophone was prosecuted. He was prosecuted in Kansas. The Kansas felony murder statute158 provides, in relevant part:
Murder in the first degree:
Murder in the first degree is the killing of a human being committed :
(b) in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A 21- 3436159 and amendments thereto.
That=s it. Here we have a straightforward felony murder statute that enumerates a certain set of inherently dangerous felonies to which the felony murder would apply. There appears to be no limitation on who is killed or who does the killing. It is similar to the Illinois statute which prohibits killing without lawful justification when attempting or committing a forcible felony. Thus, the Kansas statute should accommodate the proximate cause approach, when any human being is killed in the commission of, attempt to commit, or flight from an inherently dangerous felony.
The Sophonphone court did not see it quite that way. Sophophone was convicted of conspiracy to commit aggravated burglary, aggravated burglary, and felony murder and sentenced to life imprisonment.160 On appeal he argued that he could not be convicted of the felony murder when the victim who was shot by a police officer after Sophophone was in custody.161 The Kansas Supreme Court had never decided a felony murder case where the killing was not by the direct acts of the felon but where a co-felon was killed during the flight from the scene of a felony by the lawful acts of a police officer.162
The Court acknowledged that the agency theory and the proximate cause
theory were the two approaches for determining applicability of the felony murder doctrine,163 deciding ultimately that the agency approach was the appropriate theory of causation reversing Sophophone=s felony murder conviction.164
The Court found that when the legislature amended the criminal code in 1992, one of its stated goals was to Aconform the code to the majority of states= laws when doing so was not clearly contrary to the Legislature=s intent.@165 It also relied on the rule of lenity that Acriminal statutes must be strictly construed in favor of the accused…and any reasonable doubt about the meaning is decided in favor of anyone subjected to the statute.@166
Accordingly, the court reasoned that to impute the act of killing to Sophophone when the act was the lawful killing by a police officer in the line of duty was contrary to the rule of strict construction and the principle that judicial interpretation must be reasonable and sensible to effect legislative design and intent.167 The court held:
There is considerable doubt about the meaning of K.S. A. 21 – 3401(b) as applied to the facts of this case, and we believe that making one criminally responsible for the lawful act of a law enforcement officer is not the intent of the felony murder rule as it is currently written.168
This ruling is incorrect because it disregards the plain language of the statute. The statute defines felony murder as the killing of a Ahuman being@ being killed in the commission of, attempt to commit, or flight from an inherently dangerous felony. This is clearly proximate cause language.
As the Supreme Court of Florida, interpreting almost identical language concluded:
The language of section 782.04(3) is not ambiguous or vague. It refers to Aa person@ and must mean >any person@. If the Legislature had intended something other than this, it could have inserted the word Ainnocent.169
It should be the same for the Kansas felony murder rule. The language is not ambiguous or vague. It leaves no doubt. The Supreme Court of Kansas should have looked to how Florida had previously decided the matter. Instead, the Kansas legislature wrote a proximate cause felony murder statute and the Supreme Court dressed it incorrectly in agency clothes. Not only is their decision incorrect as a matter of law, it effectively devalues the life of the victim of the killing, by allowing his homicide to go unpunished..
There are arguments in favor of the agency approach to felony murder170 and there are
arguments in favor of the proximate cause theory of felony murder.171 Neither theory is
inherently better than the other. It should be left to the prerogative of the legislatures of the various states, to determine which theory of liability should be applied by the courts of that state.
Yet, in exercising their prerogative with respect to felony murder, state legislators should employ clear language that favors one particular theory. This would avoid the incorrect result reached in Sophophone where the language of the statute appears to require proximate cause liability but which allows the highest court of the state to choose the agency theory. The choice of the correct theory should be the job of the legislature not the courts. It would be more just to have the elected representatives of the people make the choice of the proper theory of liability and the state should clothe their choice in clear language.
This article argues that the application of the proximate cause theory to felony murder is one that could serve to deter felons from killing negligently or intentionally during their crimes but could also better reaffirm the sanctity of human life B all human life, including the life of the murdered co-felon.
It is this author=s proposal to the various state legislatures around the country to rethink their felony murder statutes in favor of adopting a grading scheme akin to that presently used in the state of Florida. Felony murder convictions should not necessarily require that all such convictions be limited to first degree murder only. Justice requires that there be proportionality in punishment.
By calibrating felony murder punishment in a three tiered system both justice and deterrence can be readily achieved. First degree felony murder and the death penalty would be reserved for a killing, whether lawful or unlawful, during an enumerated felony, including the death of a felon who kills his co-felon. Such a grading scheme would free prosecutors to pursue a second degree murder indictment where the killing was of a co-felon was accomplished by a victim, policeman, or bystander. The way to a conviction would be eased because of no need to show a mens rea, but the death penalty would be off the table. Juries would more than likely readily convict the defendant in such situations. Such scheme would, also, reaffirm the value of all human life. Finally, such scheme would allow prosecutors no need to prove mens rea for a third-tier felony murder. Punishment for up to fifteen years in prison and a fine of up to $5,000 would be allowed for a killing that may have ensued from recklessness during the course of a felony not included among those enumerated for first and second degree felony murder.
*Leonard Birdsong, Associate Professor of Law at Barry University School of Law, Orlando, Florida. He received his B.A. (Cum Laude) at Howard University and his J.D. from Harvard Law School. He wishes to wishes to thank Reference Librarians Warren McEwen, and Ann Pascoe of the Barry University School of Law Library for their valuable research assistance in preparation of this article.
1 See, 89ALR 4th 683 at 683 ‘ 2.
2 See, Joshua Dressler, Cases and Materials on Criminal Law (3d. Edition, 2003) at p 304.
3 See, 2 Cal. App. 3d 203, 204 (1969)
4 Id. at 207.
5 Id at 208.
6 Id at 209.
7 See, George P. Fletcher, Rethinking Criminal Law (1978), at ‘4.4.7 p 318.
8 See, Case note: Criminal Law B Dangerous, Not Deadly: Possession of A Firearm Distinguished From Use Under The Felony Murder Rule B State v. Anderson, 31 Wm. Mitchell L. Rev. 607 (2004), at 612.
9 See, Joshua Dressler, Understanding Criminal Law (3d ed. 2001) at ‘ 31.06 p. 515.
10 E.g., David Lanham, Felony Murder B Ancient and Modern, 7 Crim. L. J.90, 99 (1983);
Rudolph J. Gerber, The Felony Murder Rule: Conundrum Without Principle, 31 Ariz. St. L. J. 763; Wayne R. LaFave, Principles of Criminal Law (2003) at ‘ 13.5 p. 590-591; and see, Model Penal Code Commentaries Part II, Article 210 at p. 30 (The effect of the Model Penal Code therefore is to abandon felony murder as a separate basis for establishing liability for homicide and to retain the presumption described as a concession to the facilitation of proof.)
11 See, Anup Malani, Does the Felony-Murder Rule Deter? Evidence from FBI Crime Data, Working Paper at http://www.law.Virginia.edu/home 2002/pdf/malani/FelonyMurder021111Rand.pdf.
12 Dressler, supra note 9 ‘ 31.06 at p 519. Such limitations include only using the rule for inherently dangerous felonies. Some states recognize some form of independent felony or collateral felony limitation. That, is the felony murder rule applies only if the predicate felony is independent of, or collateral to, the homicide. If the felony is not independent then the felony merges with the homicide and cannot serve as the basis for the felony murder conviction.
13See, David Crump & Susan Waite Crump, In Defense of the Felony Murder Doctrine, 8 Harv. J. .L. & Pub. Pol=y 359 (1985) at 369
14 See, People v. Washington, 62 Cal, 2d 777,781 402 P. 2d 130, 132, see, also, Anup Malani, supra. at note 11.
15 See, Anup Malani, supra at note 11, p.1.
16 19 Pacific Rptr. 3d 70 (Kansas 2002).
17 Id. at 71.
20 Id. at 72.
22 See, Guyora Binder, The Origins of American Felony Murder Rules, 57 Stan L. Rev. 59 at p.60-64. It is Binder=s thesis that the first felony murder rules were not enacted in medieval England, but in nineteenth century America.
23 Id at 107. As a result of his research Binder contends the English common law felony murder doctrine was brief. Lasting only about a century from 1850 to the 1950’s. He contends that during this time, it never became a rule that felons were strictly liable for accidental deaths in the course of any felony. Instead, the felony had to be violent or manifestly dangerous. The death had to be mat least foreseeable, and so had to be caused with a degree of culpability amounting to at least negligence. He concludes that the felony murder rule was not a part of the common law at the time of the American Revolution and could not have been inherited.
24 Id at 108
26 See, Lawrence M. Friedman, A History of American Law,(1973, 1985) at p. 280-81.
28 See, Commonwealth v. Redline, 137 A 2d 472 (Pennsylvania 1958)
29 Redline, supra, at p.476.
31 Id at 476 note 4.
32 See, Binder, supra, note 23 at119.
34 Id at 120.
36 Id. Binder advises in his note 304 that the states which adopted the Pennsylvania statute as drafted were: Virginia in 1796, Kentucky from 1798 to 1801, Maryland in 1810, Louisiana from its admission from 1812 to 1855, Tennessee in 1829, Michigan in 1838, Arkansas in 1838, New Hampshire in 1842, Connecticut in 1846, Delaware in 1852,Massachusetts in 1858, and West Virginia, entering the Union with such a statute in 1863.
37 Id. A p.120, Binder in his note 305 that the states that adopted the Pennsylvania statute with a somewhat grading scheme were :Ohio in 1815, Maine in 1840, Alabama in 1841, Missouri in 1845, Iowa in 1851, Indiana in 1852, California in 1856, Texas in 1858, New York in 1860, Kansas (entering the Union with such a law in 1861), Oregon in 1864, Nevada (entering the Union with such a law in 1864), Nebraska in 1873, Montana (entering the Union with such a law in 1889), Washington (entering the union with such law in 1889), Idaho (entering the Union with such a law in 1890), Wyoming (entering the Union with such a law in 1890), North Carolina in 1893, and Utah (entering the Union with such law in 1896).
38 See, Notes: People v. Dekens: The Expansion of the Felony-Murder Doctrine in Illinois, 30 Loy. Chi. L.J. 357 (1999) at 368.
40 Binder, supra, note 26, at 121citing Ill. Rev. Code, Crim. Code ‘ 28.
41 Id, Act of Feb. 17, 1829,’ 66, 1828-29 N.J. Acts 109, 128.
42 Id, Statute N.Y. Rev. Stat. Pt. 4, ch.1, tit. I, ‘ 5 (1829).
43 Id, These states are: Illinois (1827), New Jersey (1829), Georgia (1833), Mississippi (1839), Alabama (1841), Missouri (1845), Wisconsin (1849), California (1850), Texas (1857), Minnesota (entering the Union with such a law in 1858), Nevada (entering the Union with such a law in 1864), Oregon (1864), Nebraska (1866, though repealing the law in 1873), Florida (1868), Colorado (entering the Union with such a law in 1876), Idaho and Montana (both entering the Union with such laws in 1889), and Utah (entering the Union with such a law in 1896).
44 Id at 121.
45 See, Note: Developments in California Homicide Law: VI the Felony Murder Doctrine, 36 Loy. L.A. L. Rev 1479 (2003).
46 See, Crump &Crump, In Defense of the Felony Murder Doctrine, supra at note 13 at p. 383.
50 See, State v. Sophophone, supra at note 16 at p. 74.
51 See, Note: Kansas Felony Murder: Agency or Proximate Cause, 48 Kan. L. Rev. 1047 (2000).
52 See, Dressler, supra, at note 9, at sec. 31.06 p. 524
53 See, Note: Developments in California Homicide Law, supra, at note 129, 1511-12.
54 Id.at 1512.
56See, Dressler, supra at note 9 sec. 31.06 at p.525
60 See, e.g., Weick v. State, 420 A. 2d 159, 161-62 (Del 1980); State v. Garner, 115 So. 2d 855, 861-64 (La. 1959); Campbell v. State, 444 A 2d 1034, 1037 (Md. 1982); Commonwealth v. Balliro, 209 N.E. 2d 308, 313 (Mass. 1965); State v. Rust, 250 N.W. 2d 867, 875 (Neb. 1977); Clark County Sheriff v. Hicks, 506 P. 2d 766, 768 (Nev. 1973); Jackson v. State, 589 P. 2d 1052 (N.M. 1979); State v. Oxendine, 122 S. E. 568, 570 (N. C. 1924): State v. Jones, 859 P. 2d 514, 515 (Okla. 1993); Commonwealth v. Redline, 137 A. 2d 472, 482-83 (Pa. 1958); State v. Severs, 759 S.W. 935, 938 (Tenn. Crim. App. 1988): Wooden v. Commonwealth, 284 S.E. 2d 811, 816 (Va. 1981). Georgia and Minnesota have both applied an agency approach without formally adopting the agency theory of liability. See, State v. Crane, 279 S.E. 695, 696 (Ga. 1981); Branson, 487 N.W. 2d at 885.
61 See, State v. Sophophone, supra, at note 16
62 Many states do not acknowledge a crime of attempted felony murder. Attempt requires intent and the crime of felony murder is complete without specific intent. See, e.g., State v. Briggs, 579 N.W. 2d 783(Wis 1994).
63See, Dressler, supra at note 9 sec. 31.06 at p.525
65 Commonwealth v. Redline, supra, at note 26.
66 Id at 74.
70 Id at 73.
71 Id. at 74.
73 Id at 83.
75 See, Wayne R. LaFave, Principles of Criminal Law, supra, at note 10 at, p. 578.
76 See, e.g. , State v. Lopez, 845 P. 2d 478 (Ariz. Ct. App. 1992); Mikenas v. State 367 So. 2d (Fla. 1978); Sheckles v. State, 684 N. E. 2d . 201(Ind. Ct. App 1997); State v. Barker, 607 S.W. 2d 153 (Mo. 1980); People v. Dekens, 695 N.E. 475 (Ill. 1998); People v. Udwin, 172 N. E. 489 (N.Y. 1930)
77 See, Dressler, supra at note 9 sec. 31.06 at p.525.
78 See, People v. Lowery, 687 N. E. 2d 973, 976 (Ill. 1997).
79 See, Note: Felony Murder: A Tort Law Reconceptualization, 99 Harv. L. Rev 1918, 1935. Among other thing this note proposes that, at a minimum, criminal defendants prosecuted for felony murder should receive certain benefits and protections extended to tort defendants. Before the state can subject a defendant to vicarious liability for a death during a felon, the state should be required to prove that the death was foreseeable, and that the defendant participated substantially in the felony and had some control over the situation. Similarly, the state should have to prove that the death was in fact a reasonably foreseeable consequence.
80 See, Note: Kansas Felony Murder, supra , at note 135 at p. 1051.
81 See, People v. Hickman, 319 N.E. 2d 544, (Ill. 1974).
82 See, Notes: People v. Dekens, supra, at note 38 p. 384.
83 343 A 2d 110 (New Jersey 1975)
84 Id. at 111.
88 Id. at 110.
89 Id at 113.
90 Id at 115.
91 Id. at 114, the court noted that the New Jersey statute, N. J. S. A. 2A:113 – 1 provided : If any person, in committing or attempting to commit arson, burglary, kidnapping, rape, robbery, sodomy or any unlawful act against the peace of this state, of which the probable consequences may be bloodshed, kills another, or if the death of anyone ensues from the committing or attempting to commit any such crime or act:* * * then such person so killing is guilty of murder.@ Whereas the Pennsylvania felony murder statute only provided that Aa criminal homicide constitutes murder of the first degree if the actor is engaged in or is an accomplice in the commission of, or an attempt to commit robbery (and other designated felonies).@The court noted, further, that numerous other states have the same or similar statutes follow the agency theory adopted in Redline.
92 Id. at 116.
93 See, Crump & Crump, In Defense of the Felony Murder Doctrine, supra at note 13 at p. 362-63. On this point the authors explain: AMost jurisdictions treat vehicular homicide more severely than the misdemeanor of alcohol-impaired driving, even though the actions and mental states may be equivalent or identical * * * These classifications are the result of a concern for grading offenses so as to reflect societal notions of proportionality * * * Many penal codes declare proportionality to be among their major objectives. The classification and grading of offenses so that the entire scheme of defined crimes squares with the societal perception of proportionality B Ajust deserts@ B is fundamental goal of the law of crimes * * * The felony murder doctrine serves this goal, just as do the distinctions inherent in the separate offenses of attempted murder and murder, or impaired driving and vehicular homicide. Felony murder reflects a societal judgment that an intentionally committed robbery that causes the death of a human being is qualitatively more serious than an identical robbery that does not.@
94 Id. at 363.
95 Id at 367.
96 Id.at 368.
99See, State v. Sophophone, supra, at note 16, p. 79.
100 See, People v. Lowery, 687 N. E. 2d 973, 973; and Cf, Sheckles v. State, 684 N.E.2d 201 (Ind. Ct. App. 1997, which held AA person who commits or attempts to commit one of the offenses designated in the felony murder statute is criminally responsible for a homicide which results from the act of one who was not a participant in the original criminal activity. Where the accused reasonably should have… foreseen that the commission of or attempt to commit the contemplated felony would likely create a situation which would expose another to the danger of death at the hands of a nonparticipant in the felony, and where death in fact occurs as was foreseeable, the creation of such dangerous situation is an intermediary, secondary, or medium in effecting or bringing about the death of the victim. At 684 N. E. 2d at 205.
101 See, Gerber, supra, at note 10 at p.768.
102 Arizona Revised Statutes ‘ 13 -1105 (2005).
103 The enumerated felonies in the Arizona statute are: sexual conduct with a minor, sexual assault; molestation of a child, terrorism, marijuana offenses, dangerous drug offenses, narcotics offenses, using minors in drug offenses, kidnapping, burglary, arson, robbery, escape, child abuse, unlawful flight from a pursuing law enforcement vehicle.
104 Arizona Revised Statutes ‘ 13 – 1105 (B).
105 See, State v. Lopez, supra, note 76.
106 The killing grew out of a criminal drug operation involving several undercover officers. Lopez was in a vehicle with an undercover DEA agent while other co felons tried to rob another undercover officer of cocaine. Lopez tried to rob the DEA agent in the vehicle of the money. When Lopez put a handgun in the undercover officer=s ribs the agent was able to grab the gun and put his hand over the hammer of the semi-automatic. While they struggled for the gun a co-felon was shot by another officer as he tried to flee the scene.
107 State v. Lopez, supra, note 161 at p. 481.
109 Id. at p. 482.
110 ‘ 720 Illinois Compiled Statutes 5/9-1.
112 ‘ 720 Illinois Compiled Statutes at Sec. 9 – 1 (b)(6)(c)
113 See, People v. Dekens, supra, at note 76 p.475
114 Id. at 477.
115 The original Illinois felony murder statute provided: an involuntary killing… in the commission of an unlawful act which in its consequences, naturally tends to destroy life of a human being, or is committed in the prosecution of a felonious intent…shall be deemed and adjudged to be murder. See, Binder, supra, at note 22.
116 See, Notes: People v. Dekens, supra, at note 122 p. 391.
117 Id at 392, the Note maintains that the Illinois Supreme Court …@created the precedent for a co felon to be held liable when anyone commits a homicide during the commission of the defendant=s felony. The liability created by this decision is unfounded and does not serve public policy. The holding in Dekens will erode the basis of justice and fairness in the Illinois criminal justice system. The broad based holding will not protect people from accidental killings; it only serves to create a larger gap between Amoral culpability@ and Acriminal liability@ in the felony murder doctrine. Therefore the court missed the opportunity to halt the expansion of unjust liability and adopt a just theory of liability.
119 Punishment under such differing gradations range from the death penalty to fifteen years in jail for third degree felony murder.
120 Florida Statutes Chapter 782 Homicide, s. 782.04.
121 The enumerated felonies in the Florida statute for first degree felony murder are: trafficking offense, arson, sexual battery, robbery, Burglary, Kidnapping., Escape, aggravated child abuse, aggravated abuse of an elderly person or disabled adult, aircraft piracy, unlawful throwing or discharging of a destructive device or bomb, carjacking, home invasion robbery, aggravated stalking, murder of another human being , resisting an officer with violence to his or her person, a felony that is an act of terrorism or in furtherance of an act of terrorism.
122 s. 776.082 of the Florida Statutes allows for a sentence of death or a sentence of life.
123 In Florida v. Perez, 382 So.2d 731 (1980), the Florida Supreme Court held Athe first degree murder statute requires an unlawful killing. The accidental death of a person at his own hands is not unlawful.@
124 See, State v. Perez, supra at note 122, at p, 733.
125 The enumerated felonies for second degree felony murder are the same as for first degree murder: trafficking offense, arson, sexual battery, robbery. Burglary. Kidnapping. Escape. Aggravated child abuse, aggravated abuse of an elderly person or disabled adult, aircraft piracy, unlawful throwing or discharging of a destructive device or bomb, carjacking, home invasion robbery, aggravated stalking murder of another human being resisting an officer with violence to his or her person, a felony that is an act of terrorism or in furtherance of an act of terrorism.
126 Florida Statutes Chapter 782 Homicide, s. 782.04 (3).
127 The list of the Aany felony other than the enumerated felonies@ of the third degree murder statute are generally the same as for first and second degree with the addition of unlawful distribution of any controlled substance: trafficking offense, arson, sexual battery, robbery. Burglary. Kidnapping. Escape. Aggravated child abuse, aggravated abuse of an elderly person or disabled adult, aircraft piracy, unlawful throwing or discharging of a destructive device or bomb, unlawful distribution of controlled substance under s. 893.03(1), cocaine, or opium, when such drug is the proximate of the death of the user, carjacking, home invasion robbery, aggravated stalking murder of another human being resisting an officer with violence to his or her person, a felony that is an act of terrorism or in furtherance of an act of terrorism.
128 Allows for a term of imprisonment not exceeding 15 years.
129 Allows for the imposition of a $5,000 fine.
130 Provision provides for AHabitual felony offender@ treatment and enhanced sentencing if defendant has been previously convicted of two or more felonies.
131 See, supra, at note 76 at 732.
135 Id at 733.The court of appeal found that the 1978 Supreme Court of Florida ruling in Mikenas v. State made it clear that the first degree felony murder statute contained no language that limited the killing to innocent persons.
139 See, supra, at note 76, 367 So. 2d 606 ( Florida Sup. Ct. 1978).
140 Id at p 608.
141 Id at 607.
144 Id at 608.
146 See, Model Penal Code and Commentaries (Official Draft and Revised Commentaries, The American Law Institute (1980), p. 13. ‘ 210.2 (1)(b) of the Model Penal Code provides in full: criminal homicide constitutes murder when: it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit or flight after committing or attempt to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape.
147 Model Penal Code ‘ 210.2 (2).
148 Those questions included: Should felony murder liability be imposed on a defendant whose co-felon does the actual killing.? What if a bystander or victim commits the killing? What if a co-felon shoots a police officer? Should there be liability if a police officer shoots a co-felon? Should there be liability when an intended victim kills a police officer while attempting to foil a robbery?
149 As stated earlier in this article the Florida Supreme Court has ruled that a co-felon who causes his own accidental death by his negligence alone does not qualify for felon murder treatment because it is not an unlawful killing. However, if surviving the co-felon=s actions were even in part the cause of his co-felon=s death the killing would be unlawful and first degree murder would be applicable. State v. Perez, supra at note 76, p.733.
150 11 Del. Code ‘ 636 (2005) provides A person is guilty of murder in the first degree….while engaged in the commission of, or attempt to commit, or flight after committing or attempting to commit any felony, the person recklessly causes the death of another person.
151 D.C. Code ‘ 22-2101 (2005) provides in relevant part: Whoever…kills another….without purpose to do so kills another in perpetrating or in attempting to perpetrate any arson, first degree sexual abuse= first degree cruelty to children, mayhem, robbery, or kidnapping * * * or in perpetrating or attempting to perpetrate a felony involving a controlled substance is guilty of murder in the first degree.
152 Iowa Code ‘ 707.2 (2004): a person commits murder in the first degree when the person commits murder under any of the following circumstances: (3) The person kills another while participating in a forcible felony. (4) The person kills another person while escaping or attempting to escape from lawful custody.
153 N.M. Stat. Ann. ‘ 30-2-1 (2005). Murder in the first degree is the killing of one human being by another without lawful justification or excuse…(2) in the commission of or attempt to commit any felony.
154 Tenn. Code Ann. ’39-13-202 (2005). First degree murder is….(2) A killing of another committed in the perpetration of or attempt to perpetrate any first degree murder, act of terrorism, arson, rape, robbery, burglary, theft, kidnapping, aggravated child abuse, aggravated child neglect or aircraft piracy.
155 Wis. Stat. ‘ 940 . 03 (2005) Felony murder. Whoever causes the death of another human being while committing or attempting to commit a crime specified in s. 940.225……..may be imprisoned for not more than 15 years in excess of the maximum term of imprisonment provided by law for that crime or attempt. See, also, Case Note: Criminal Law B Dangerous, Not Deadly: Possession of a Firearm Distinguished From Use Under The Felony-Murder Rule B State v. Anderson, 31 Wm. Mitchell L. Rev. 607 (2004).
156 See, State v. Sophophone, supra, at note 16.
157 Id. at p 71.
158 Kansas Statutes Annotated ‘ 21 – 3401
159 This statute provides that inherently dangerous felonies are: kidnapping, aggravated kidnapping, robbery, aggravated robbery, rape, aggravated criminal sodomy, abuse of a child, felony theft, burglary, aggravated burglary, arson, aggravated arson, treason, endangering the food supply aggravated endangering the food supply. In addition, the statute enumerates a second list of inherently dangerous felonies that may be used for purpose of felony murder Aonly when such felony is so distinct from the homicide alleged as to not be an ingredient of the homicide.@ This is, of course, a merger doctrine limitation. Those additional felonies subject to the merger limitation are: murder in the first degree, murder in the second degree, voluntary manslaughter, aggravated assault, aggravated assault of a law enforcement officer, aggravated battery, and aggravated battery of a law enforcement officer.
161 Id. at p. 72.
163 State v. Sophophone, supra, at note 16, at p. 74.
164 Id at 76-77.
165 Id. at p. 76.
169 See, supra, Mikenas v. State at note 76 at p. 608.
170 Those who favor the agency approach limit criminal liability to killings done by the felons to victims of the crime, or innocent bystanders but not co-felons. They espouse the position that the law should not operate to place felons on an equal footing, under the law with such injured or killed innocent parties.
171 The proximate cause theorists would hold liable any felon involved in a felony murder where any one is killed, including a co-felon. For them public policy requires that felons be punished for setting in motion a chain of events which were or should have been foreseeable that death could result and should be held responsible for such death.