Chapter 92

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92.9 Felony Murder, Statutorily Specified Offenses

92.9.2 Felony Murder: Miscellaneous Issues

    92.9.2.1 Felony Murder: Constitutional Challenge Based On Unconstitutional Presumption Of An Element Of The Offense
    92.9.2.2 Felony Murder: Instruction On Elements Of Underlying Felony
    92.9.2.3 Felony Murder: All Elements Of The Predicate Felony Must Be Proven Beyond A Reasonable Doubt
    92.9.2.4 Felony Murder: Instruction Proper Even Though Underlying Felony Is Barred By Statute Of Limitations
    92.9.2.5 Felony Murder: Killer Other Than Perpetrator Of Underlying Crime
    92.9.2.6 Felony Murder Based On Sex Offenses: Requirement That Victim Be Alive

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92.9.2.1 Felony Murder: Constitutional Challenge Based On Unconstitutional Presumption Of An Element Of The Offense

PRACTICE NOTE: It has been held that the felony murder rule improperly imputes malice or intent from an intent to commit a felony. (See People v. Aaron (MI 1980) 299 NW2d 304, 324-25; see also State v. Ortega (NM 1991) 817 P2d 1196, 1204-05 [because of concern with strict liability and presumption issues, felony murder construed to require intent to kill]; State v. Doucette (VT 1983) 470 A2d 676, 682 [felony murder limited to intent to kill, intent to do great bodily harm or wanton disregard].)

Logically, if intent to kill or malice is an element of murder, it would be unconstitutional to convict without requiring the prosecution to prove that element beyond a reasonable doubt. (See In re Winship (1970) 397 US 358, 364 [90 SCt 1068; 25 LEd2d 368]; Sandstrom v. Montana (1979) 442 US 510, 524 [99 SCt 2450; 61 LEd2d 39]; see also FORECITE National™ 300.1.2 [Due Process: Proof Of Every Essential Fact Beyond A Reasonable Doubt].)

However, other cases have rejected constitutional challenges to the felony murder rule. (See e.g., People v. Dillon (CA 1983) 34 C3d 441, 462-76 [194 CR 390]; see also LaFave & Scott, Substantive Criminal Law (West, 1986) § 7.5(h), fn. 127.1 [discussing cases which have rejected constitutional challenges].)

RESEARCH NOTES:

The Felony-Murder Rule: A Doctrine at Constitutional Crossroads, 70 Cornell L. Rev. 446, 492 (1985).

The New Law of Murder, 69 Ind. L.J. 375, 423+ (1994).

Robinson, Criminal Law Defenses (West, 1984), pocket part § 104, pp. 92-93.

Tomkovicz, "The Endurance of the Felony Murder Rule: A Study of the Forces That Shape Our Criminal Law" (1994) 51 Wash.& Lee L.Rev. 1429.

RELATED FEDERAL MODEL INSTRUCTIONS:

See FORECITE National™ 92.9.1.2 [Felony Murder: Federal Circuit Model Instructions And Notes].

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92.9.2.2 Felony Murder: Instruction On Elements Of Underlying Felony

PRACTICE NOTE: Since the defendant must have killed during the "perpetration or attempted perpetration" of one of several felonies enumerated in the statute, the felony relied upon must be defined. (See Application of Novaock (SD 1988) 572 NW2d 840, 842-43; Joseph & LaMonica, LOUISIANA CIVIL LAW TREATISE CRIMINAL JURY INSTRUCTIONS 10.08, comments [Second Degree Murder-Felony Murder] para. 2 (West, 2000).) Failure to instruct on the elements of the underlying felony in a felony murder case is reversible error. (See State v. Schad (AZ 1984) 691 P2d 710.) Felony murder instructions are erroneous if they fail to inform the jury that the prosecution has the burden of proving all the elements of the underlying felony. (See State v. Stacy (WV 1989) 384 SE2d 347, 352-54; SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 3-24-16 [Homicide-Murder-First Degree-Felony Murder-Elements] (State Bar of South Dakota, 2000).)

This element should apply regardless of whether or not the underlying felony is charged. (See e.g., People v. Mickey (CA 1991) 54 C3d 612, 675-77 [286 CR 801].)

See also FORECITE National™ 92.9.4.4 [Felony Murder: Duty To Instruct On Defenses To Uncharged Predicate Felony].

See also FORECITE National™ 92.9.4.1 [Felony Murder Rule: Lack Of Intent To Commit Underlying Felony As Defense Theory].

See also FORECITE National™ 92.9.2.3 [Felony Murder: All Elements Of The Predicate Felony Must Be Proven Beyond A Reasonable Doubt].

RELATED FEDERAL MODEL INSTRUCTIONS:

See FORECITE National™ 92.9.1.2 [Felony Murder: Federal Circuit Model Instructions And Notes].

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92.9.2.3 Felony Murder: All Elements Of The Predicate Felony Must Be Proven Beyond A Reasonable Doubt

RATIONALE: Because commission of the underlying or predicate felony is an element of felony murder, all elements of the felony must be proven beyond a reasonable doubt.

POINTS AND AUTHORITIES: In most jurisdictions it is established that "[t]o convict a defendant of felony murder the state is required to prove beyond a reasonable doubt each element of the predicate felony." (State v. Quillin (WA 1987) 741 P2d 589, 594; see also People v. Whitehorn (CA 1963) 60 C2d 256, 264; People v. Hepler (IL 1985) 477 NE2d 768, 773; State v. Stewart (LA 1981) 400 So2d 633, 635; People v. Wilder (MI 1978) 266 NW2d 847, 848; State v. Bryant (WA 1992) 828 P2d 1121, 1127 n11.) "Failure to prove the underlying offense beyond a reasonable doubt results in the reversal of a conviction of felony murder." (People v. Bell (IL 1992) 598 NE2d 256, 261; see also Richie v. State (PA 1995) 908 P2d 268, 275 [failure to properly define elements of predicate crime for felony murder was error].) This principle is so well settled that "[a] lawyer who informs the jury that there is no reasonable doubt but that his client committed the predicate crime to felony murder has utterly failed to 'subject the prosecution's case to meaningful adversarial' scrutiny." (State v. Harrington (NJ 1998) 708 A2d 731, 737.)

Thus, the federal constitutional rights to trial by jury and due process (5th, 6th and 14th Amendments) require the jury to be instructed that all elements of the predicate felony must be proven beyond a reasonable doubt. (In re Winship (1970) 397 US 358, 361-67 [90 SCt 1068; 25 LEd2d 368].)

See also FORECITE National™ 92.9.2.2 [Felony Murder: Instruction On Elements Of Underlying Felony].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RELATED FEDERAL MODEL INSTRUCTIONS:

See FORECITE National™ 92.9.1.2 [Felony Murder: Federal Circuit Model Instructions And Notes].

SAMPLE INSTRUCTION # 1:

An essential element of felony murder, which the prosecution must prove beyond a reasonable doubt is that he defendant [committed] (or) [attempted to commit] _______________ (name felony, e.g., robbery).

The elements of _______________ (name felony) which must be proven beyond a reasonable doubt ate the following:

(Define the felony and enumerate elements.)

[Cf. NORTH CAROLINA PATTERN JURY INSTRUCTIONS - CRIMINAL, NCPI-Crim 206.14 [First Degree Murder-Murder Committed In Perpetration Of A Felony Or Murder With Premeditation And Deliberation Where A Deadly Weapon Is Used] pp. 153-54 (TRCC, 1999); MICHIGAN CRIMINAL JURY INSTRUCTIONS 16-04, [First-Degree Felony Murder] ¶ 1 and 4 (ICLE, 2nd ed. 1999); MONTANA CRIMINAL JURY INSTRUCTIONS, MCJI 5-102(b) [Issues In Deliberate Homicide- "Felony Murder"] (State Bar of Montana, 1990).]

SAMPLE INSTRUCTION # 2:

You must first determine whether the prosecution has proven to you beyond a reasonable doubt the elements which constitute the underlying offense of ________________ (name of underlying felony). Only then may you turn to any analysis of the felony-murder charge.

[See generally Commonwealth v. Melendez (MA 1998) 692 NE2d 61, 63.]

SAMPLE INSTRUCTION # 3:

    The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

    First: That the victim named in the indictment is dead;

    Second: That the Defendant caused the death of the victim, as charged;

    Third: That the death of the victim occurred as a consequence of and while the Defendant was knowingly and willfully engaged [in perpetrating] [in attempting to perpetrate] the crime of [arson, etc.] as charged; and

    Fourth: That the killing occurred within the [special maritime] [territorial] jurisdiction of the United States.

[Source: 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL OI10 [Presenting False Declaration Or Certification (18 USC 289)] (1997).]

SAMPLE INSTRUCTION # 4:

    Joint venture only applies to the felony-murder charge if you are of the opinion following your review of the evidence and your deliberations that the Commonwealth has proven to you beyond a reasonable doubt all four of the elements of the underlying offense of armed robbery and all three of the elements of the principle of joint venture.

    That is, you must determine whether the Commonwealth has proven to you beyond a reasonable doubt the elements which constitute the underlying offense and you must determine that the Commonwealth has proven to you beyond a reasonable doubt the elements which constitute -- make up this principle of joint venture. Only then may you turn to an analysis of the felony-murder charge.

    And only then can you consider whether the Commonwealth has proven beyond a reasonable doubt that there was an unlawful killing, that that unlawful killing occurred in the commission or the attempted commission of a felony punishable by life imprisonment, and that that underlying felony was either inherently dangerous to human life or committed with conscious disregard on the part of the defendant for the risk to human life.

[See Commonwealth v. Melendez (MA 1998) 692 NE2d 61, 63.]

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92.9.2.4 Felony Murder: Instruction Proper Even Though Underlying Felony Is Barred By Statute Of Limitations

PRACTICE NOTE: See Wharton's Criminal Procedure (West, 13th ed. 1989) § 473, p. 69; see also Clarey v. Gregg (9th Cir. 1998) 138 F3d 764, 766 [no statute of limitations for felony murder under the federal statute]; see also People v. Lilliock (CA 1968) 265 CA2d 419, 431-32 [71 CR 434]; People v. Morris (CA 1988) 46 C3d 1, 14 [249 CR 119]; Sochor v. State (FL 1993) 619 So2d 285, 290-91; State v. White (NE 1991) 477 NW2d 24, 25-26; Commonwealth v Munchinski (PA 1990) 585 A2d 471, 482-83; State v. Dennison (WA 1990) 801 P2d 193, 202.

RELATED FEDERAL MODEL INSTRUCTIONS:

See FORECITE National™ 92.9.1.2 [Felony Murder: Federal Circuit Model Instructions And Notes].

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92.9.2.5 Felony Murder: Killer Other Than Perpetrator Of Underlying Crime

PRACTICE NOTE: "[T]he felony-murder rule does not apply when the killing is done by the victim of the crime, because in such a case the malice aforethought necessary for murder is not attributable to the accomplice felon. The killing in such an instance is done, not in the perpetration of, or an attempt to perpetrate, a crime, but rather in an attempt to thwart the felony." (Sheriff, Clark County v. Hicks (NV 1973) 506 P2d 766, 768; see also People v. Washington (CA 1965) 62 C2d 777, 781 [44 CR 442]; Campbell v. State (MD 1982) 444 A2d 1034, 1039; People v. Austin (MI 1963) 120 NW2d 766, 775; State v. Canola (NJ 1977) 374 A2d 20, 30; Commonwealth v. Redline (PA 1958) 137 A2d 472, 476 [killing must have been done by the defendant or by an accomplice or confederate or by one acting in furtherance of the felonious undertaking].)

However, California is to the contrary. The California Supreme Court has made it clear that vicarious liability for the death of an accomplice requires that the death be caused by the perpetrator's commission of a provocative, life-endangering act. (See cases cited in People v. Mai (CA 1994) 22 CA4th 117, 123-26 [27 CR2d 141]; see also People v. Garcia (CA 1999) 69 CA4th 1324 [82 CR2d 254] [provocative act doctrine requires that defendant or surviving accomplice commit provocative act beyond that necessary to commit the underlying offense].)

RESEARCH NOTES:

Annotation, Application Of Felony-Murder Doctrine Where Person Killed Was Co-Felon, 89 ALR4th 683.

Annotation, Criminal Liability Where Act Of Killing Is Done By One Resisting Felony Or Other Unlawful Act Committed By Defendant, 56 ALR3d 239.

See also Capital Punishment Handbook [1.11.3a. Sentencing For Murders Including Felonies: General Principles And Authorities].

RELATED FEDERAL MODEL INSTRUCTIONS:

See FORECITE National™ 92.9.1.2 [Felony Murder: Federal Circuit Model Instructions And Notes].

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92.9.2.6 Felony Murder Based On Sex Offenses: Requirement That Victim Be Alive

See FORECITE National™ 101.1.5.4 [Rape/Sex Crimes: Defense Theory That Victim Was Not Alive].

See also FORECITE National™ 101.1.5.5 [Rape/Sex Crimes: Good Faith Belief That Victim Was Dead As Defense Theory].