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92.9 Felony Murder, Statutorily Specified Offenses

    92.9.4 Felony Murder: Defenses And Defense Theories

    92.9.4.1 Felony Murder: Lack Of Intent To Commit Underlying Felony As Defense Theory
    92.9.4.2 Failure To Charge Felony Murder As Defense Theory
    92.9.4.3 Felony Murder: Termination Of Underlying Felony As Defense Theory
    92.9.4.4 Felony Murder: Duty To Instruct On Defenses To Uncharged Predicate Felony
    92.9.4.5 Felony Murder: Lack Of Causation As Defense Theory
    92.9.4.6 Felony Murder: Instruction On Lesser Included Offense Of The Underlying Felony As Defense Theory
    92.9.4.7 Felony Murder: Instruction On Misdemeanor As Lesser Included Offense Of Burglary
    92.9.4.8 Felony Murder: Failure To Request Lesser Misdemeanor As Ineffective Assistance Of Counsel
    92.9.4.9 Felony Murder: Defense Theory That Killing Was Not For An Independent Felonious Purpose
    92.9.4.10 No Felony Murder Liability Based On After-Acquired Intent To Commit Predicate Felony
    92.9.4.11 Accomplice Liability For Felony Murder: Intent To Aid And Abet Must Be Formed Before Or During The Killing
    92.9.4.12 Felony Murder: Intoxication As Defense Theory
    92.9.4.13 Felony Murder: Mental, Medical Or Physical Impairment Of Defendant
    92.9.4.14 Felony Murder: Failure To Perform Legal Duty -- Mens Rea
    92.9.4.15 Felony Murder: Additional Defenses And Defense Theories

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RATIONALE: Because felony murder is typically predicated on an intent to commit the underlying felony, such intent should be included in the elements of the offense.

POINTS AND AUTHORITIES: Generally, for felony murder to apply, the defendant must have had a specific intent to commit the underlying felony even where the felony murder predicate felony is a general intent crime. (See e.g., Hrones & Homans, MASSACHUSETTS JURY INSTRUCTIONS - CRIMINAL 5-2, comment [Felony Murder] (Lexis, 2nd ed. 2000); see also People v. Berryman (CA 1993) 6 C4th 1048, 1085 [25 CR2d 867]; Lee v. U.S. (DC 1997) 699 A2d 373, 385-87; Gurganus v. State (FL 1984) 451 So2d 817, 822; Bruce v. State (MD 1989) 566 A2d 103, 104.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

RELATED FEDERAL MODEL INSTRUCTIONS:

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

    You should understand the difference between the intent element for the substantive offense of ___________________ (insert substantive offense) and the intent element for felony murder based on a killing occurring during the commission of a ___________________ (insert substantive offense). To convict the defendant of the substantive crime of ___________________ (insert substantive offense) it is necessary to find general criminal intent as defined elsewhere in these instructions. [[Voluntary intoxication] [mental disease defect or disorder] do not negate such intent.]

   Felony murder, on the other hand, requires that the defendant harbor a specific intent to commit the crime of ________________________ (insert substantive offense). Hence, even though the substantive crime of ______________________ (insert substantive offense) requires a general intent, felony murder requires a higher level of specific intent which may be negated by [voluntary intoxication] [mental disease defect or disorder].

[Source: FORECITE National™.]

    The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs [during the commission or attempted commission of the crime] [as a direct causal result] of ______________ (felony) is murder of the first degree when the perpetrator had the specific intent to commit that crime.

    The specific intent to commit ________________ (felony) and the commission or attempted commission of ________________ (felony) must be proven beyond a reasonable doubt.

[See generally People v. Berryman (CA 1993) 6 C4th 1048, 1085 [25 CR2d 867]; CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 8.21 [First Degree Felony-- Murder] (West, 6th Ed. 1996).]

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    92.9.4.2    Failure To Charge Felony Murder As Defense Theory

PRACTICE NOTE: "The defendant is entitled to notice that the State is proceeding under both theories [premeditation and felony murder] in the filing of the information." (PATTERN INSTRUCTIONS FOR KANSAS - CRIMINAL, PIK - Criminal 3d 56.02-A [Crimes Against Persons-Murder In The First Degree And Felony Murder-Alternatives], comment (Kansas Judicial Council, 3rd ed. 1999); see also State v. Wise (KS 1985) 697 P2d 1295, 1298-1300; State v. Jackson (KS 1978) 575 P2d 536, 538-39.)

    Hence, the failure to charge felony murder may violate the defendant's federal constitutional rights (6th and 14th Amendments) to notice. (See Sheppard v. Rees (9th Cir. 1990) 909 F2d 1234, 1236-37; see also People v. Ricks DEPUBLISHED (CA 1988) 198 CA3d 1266 [244 CR 696]; Alford v. State (NV 1995) 906 P2d 714, 716 ["It was simply not fair for the prosecution to bring in charges of felony-murder after the close of the case"]; but see Stephens v. Borg (9th Cir. 1995) 59 F3d 932, 935-36 [distinguishing Sheppard v. Rees]; People v. Gallego (CA 1990) 52 C3d 115, 188-89 [276 CR 679] [defendant could not have been misled and, therefore, there was no 6th Amendment violation].)

CAVEAT: To avoid waiving this issue, it may be necessary to formally ask to reopen the case to present defense evidence when the uncharged theory is advanced. (See e.g., People v. Memro (CA 1995) 11 C4th 786, 869 [47 CR2d 219.)

STRATEGY NOTE: The lack of notice in the Sheppard case was held to be prejudicial in large part due to the record made by trial counsel below indicating that the felony murder instruction was a new theory which was unexpected by the defense resulting in the inability of the defense to adequately defend against the charge. Counsel should take advantage of every opportunity to place in the record his or her surprise at the new theory and the manner in which it impairs the defendant's ability to defend against the charges.

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    92.9.4.3    Felony Murder: Termination Of Underlying Felony As Defense Theory

PRACTICE NOTE: Felony murder does not apply unless the underlying felony and the killing are part of "a continuous transaction." (People v. Thompson (CA 1990) 50 C3d 134, 171 [266 CR 309]; cf. State v. Grey (NJ 1996) 685 A2d 923, 929; see also State v. Holland (NJ 1971) 283 A2d 897, 900.) For example, Talbert v. Commonwealth (VA 1993) 436 SE2d 286, 289-90 held that the court erred in instructing the jury that it must be proven the defendant "had committed" the underlying felony at some previous time. The instruction was erroneous because it permitted the jury to convict on felony murder based on an act which was transactionally distinct from the death and failed to require the jury to find that the act which caused death was committed in furtherance of the felony.

    Accordingly, "the jury must be sufficiently informed as to what constitutes a termination of a felony in order to determine if the felony has terminated." (People v. Jackson (NY 1967) 231 NE2d 722, 732.) This requires "instructions pointing out generally that the killing to be felony murder must occur while the actor or one or more of his confederates is engaged in securing the plunder or in doing something immediately connected with the underlying crime [citation]; that escape may, under certain unities of time, manner, and place, be a matter so immediately connected with the crime as to be part of its commission [citation]; but that, where there is ... a complete intervening desistance from the crime, as by the abandonment of the loot and running away, the subsequent homicide is not murder in the first degree without proof of deliberation and intent. [Citations].'" (People v. Jackson (NY 1967) 231 NE2d 722, 732.)

    In California, robbery and burglary the felony and killing are part of "a continuous transaction" unless the defendant has reached "a place of temporary safety." (See People v. Haynes (CA 1998) 61 CA4th 1282, 1292 [72 CR2d 143] [temporary safety basis for termination of robbery may be measured by victim safety, robber safety, robber's common purpose and motive, or the indivisible or continuous nature of the transaction]; see also People v. Thongvilay (CA 1998) 62 CA4th 71, 77-84 [72 CR2d 738] [felony murder doctrine applies when defendants cause death while driving away after committing a burglary]; People v. Salas (CA 1972) 7 C3d 812, 822-24 [103 CR 431]; People v. Fuller (CA 1978) 86 CA3d 618, 623 [150 CR 515] [burglary]; People v. Bodely (CA 1995) 32 CA4th 311 [38 CR2d 72].)

    In sum, when there is evidence that the underlying felony had ended before the killing occurred, the trial court should instruct the jury as to when the underlying felony ends and that murder may not be predicated upon the killing which occurs after the felony has ended. (See People v. Pearch (CA 1991) 229 CA3d 1282, 1299 [280 CR 584].)

RESEARCH NOTES:

Annotation, What Constitutes Termination Of Felony For Purpose Of Felony-Murder Rule, 58 ALR3d 851.

See 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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    92.9.4.4    Felony Murder: Duty To Instruct On Defenses To Uncharged Predicate Felony

PRACTICE NOTE: When a defendant is charged with a felony murder but not the predicate underlying felony, a defense to the underlying felony is also a defense to the felony murder allegation. Therefore, instruction upon such defenses should be given. For example, it has been held that the court should instruct "as to the necessity for the concurrence of act and intent, or the availability of the defenses of diminished capacity and voluntary intoxication for the underlying felony." (People v. Mickey (CA 1991) 54 C3d 612, 675-77 [286 CR 801] [felony murder charged as death eligibility special circumstance].)

RELATED FEDERAL MODEL INSTRUCTIONS:

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

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RATIONALE: Special instruction may be appropriate to assure the jury understands the causation element of felony murder.

POINTS AND AUTHORITIES: Some jurisdictions require a causal link between the conduct of the defendant or one of the cofelons and the death. (See e.g., Wade v. State (OK 1978) 581 P2d 914; State v. Rough Surface (SD 1989) 440 NW2d 746, 758-59 [trial court was correct in instructing the jury that the acts perpetrated by the defendant had to be the proximate cause of the victim's death and that, to be guilty of the felony murder charges, the defendant had to have caused the death while engaged in the perpetration of the crime]; OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 4-65, comment [By Felony Murder-In The Commission Of Defined] (Oklahoma Center for Criminal Justice, 2nd ed. 1996).)

    Under this rule "homicide must be a 'reasonably foreseeable consequence' of the commission or the attempt to commit an enumerated felony...." (Wharton’s Criminal Law (West, 15th ed. 1993) § 149, p. 306; see also LaFave & Scott, Substantive Criminal Law (West, 1986) § 7.5(d), pp. 213-21; but see People v. Tapia (CA 1994) 25 CA4th 984, 1024-25 [30 CR2d 851].)

    For example, in Regina v. Horsey (Eng. 1862) 3 F. & F. 287, 176 Eng. Rep. 129, the felony was arson. Defendant unlawfully set fire to a stack of straw and a person was burned to death. The death in an immediate sense was thus produced by the very mechanism which the felony of arson foreseeably and naturally creates a danger of, i.e., death by burning. But there was doubt whether the decedent had been present before the blaze was started. As there seemed to be no normal reason why the decedent should have gone into the flames, the court ruled that there could be no conviction of murder if the deceased, in fact, went in afterwards for the purpose of committing suicide, for in such case the deceased's own act "intervened between the death and the act of the prisoner." (176 Eng. Rep. at 131-32; see also discussion of Horsey in Perkins & Boyce, Criminal Law (Foundation Press, 1982) Ch. 6, § 9, p. 811.)

    In sum, the failure to instruct on the causal connection between the defendant's conduct and the killing may be error. (See Jenkins v. Nelson (7th Cir. 1998) 157 F3d 485, 492-94 [instructions violated due process by removing a necessary element of felony murder -- causation -- from the jury’s consideration]; Early v. People (CO 1960) 352 P2d 112, 119 [proof beyond a reasonable doubt required as to the connection between the homicide and the underlying offense]; State v. Wall (NM 1980) 608 P2d 145, 148; Aaronson, MARYLAND CRIMINAL JURY INSTRUCTIONS AND COMMENTARY 4.21b(e) [Murder-First-Degree: Felony Murder] p. 260 (Lexis, 2nd ed. 1988) [citing Maryland cases for proposition that causal relationship is required under either "but for" test or natural and probable consequences test].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1; 4.3].

RESEARCH NOTES:

The nature of the connection between the felony and the death has been a source of considerable difficulty in many states which have felony murder statutes. (See LaFave & Scott, Substantive Criminal Law (West, 1986) § 7.5, pp. 206-234 (1986).)

RELATED FEDERAL MODEL INSTRUCTIONS:

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

    The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs during the commission or attempted commission of __________ (insert felony) and as a direct causal result of __________ (insert felony) is murder of the first degree when the perpetrator had the specific intent to commit such crime.

    The specific intent to commit __________ and the commission or attempted commission of such crime must be proved beyond a reasonable doubt.

[Source: FORECITE National™.]

    An essential element of the offense of first degree felony murder which the government must prove beyond a reasonable doubt,  is that the defendant's acts caused the death of _______________ (name of alleged victim).

[See generally Jenkins v. Nelson (7th Cir. 1998) 157 F3d 485, 492-94; cf. CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.22, § II(A), [Homicide-First Degree Premeditated Murder, First Degree Felony Murder And Second Degree Murder (No Self-Defense Or Mitigation Generated)] ¶ 1 (Bar Association of the District of Columbia, 4th ed. 1993); see also PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Ps. SSJI (crim)15.2502B [Second Degree Murder ] (Pennsylvania Bar Institute, PBI Press, 09/95); MONTANA CRIMINAL JURY INSTRUCTIONS, MCJI 5-102(b) [Issues in Deliberate Homicide--"Felony Murder"] (State Bar of Montana, 1990); MICHIGAN CRIMINAL JURY INSTRUCTIONS 16.7 [Element Chart–First Degree Felony And Second Degree Murder] (1995-96 supp.) (ICLE, 2nd ed. 1999).]

    To find the defendant guilty of felony murder you must find beyond a reasonable doubt that the following elements have been proven beyond a reasonable doubt:

    1.    The defendant (killed) (caused the death of) ________;

    2.    The defendant did so while (committing) (attempting) (fleeing after committing) (fleeing after attempting) the crime of ___________ (name of underlying felony).     

[Cf. PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Ps. SSJI (crim)15.2502B [Second Degree Murder ] (Pennsylvania Bar Institute, PBI Press, 09/95); see also MONTANA CRIMINAL JURY INSTRUCTIONS, MCJI 5-102(b) [Issues in Deliberate Homicide--"Felony Murder"] (State Bar of Montana, 1990); MICHIGAN CRIMINAL JURY INSTRUCTIONS 16.7 [Element Chart–First Degree Felony And Second Degree Murder] (1995-96 supp.) (ICLE, 2nd ed. 1999).]

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    92.9.4.6    Felony Murder: Instruction On Lesser Included Offense Of The Underlying Felony As Defense Theory

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    92.9.4.7    Felony Murder: Instruction On Misdemeanor As Lesser Included Offense Of Burglary

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    92.9.4.8    Felony Murder: Failure To Request Lesser Misdemeanor As Ineffective Assistance Of Counsel

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RATIONALE: The policy objective of the felony murder rule is to discourage the commission of certain dangerous felonies by imposing murder liability for killings which occur during the commission of such felonies. This policy objective is not promoted by extending felony murder liability to a situation where the commission of the felony is only incidental to the underlying intent to commit the homicide. Hence, the jury should be required to find that the felony was committed for an independent purpose as a prerequisite to finding felony murder liability.

POINTS AND AUTHORITIES: It has been held that the felony murder rule should not apply when the felony is committed after the killing. (People v. Anderson (CA 1968) 70 C2d 15, 34 [73 CR 550]; see also Commonwealth v. Legg (PA 1980) 417 A2d 1152, 1154-55.) "Although the felony may either precede or follow the killing, the intent to commit the felony must be established prior to the homicide, and acquittal is proper if the felony is an afterthought...." (CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.23, comment [Homicide-First Degree Felony Murder And Second Degree Murder] p. 305 (Bar Association of the District of Columbia, 4th ed. 1993).)

    The rationale for this rule is that commission of the felony must be the defendant's primary purpose in order to rationally further the legislative objective of deterring killings which occur as a result of or during the commission of the defendant's commission of one of the enumerated felonies. (See People v. Green (CA 1980) 27 C3d 1, 61-62 [164 CR 1] [applying rule to felony murder death qualifier].)  Although Green dealt with the felony murder death qualifier, the same rationale should apply to "ordinary" felony murder.  (But see Williams v. Calderon (9th Cir. 1995) 52 F3d 1465, 1476 [independent felonious purpose serves narrowing finding necessary for capital eligibility].)

    Based on these principles, the defendant should not be held liable for felony murder if the primary intent was to kill. In other words, the prosecution must prove beyond a reasonable doubt that the defendant had an independent felonious purpose to commit one of the enumerated felonies. (Green, 27 C3d at 61-62.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1; 4.3].

RELATED FEDERAL MODEL INSTRUCTIONS:

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

    For the defendant to be guilty of felony murder the homicide must have been done in the commission of the ________________ (name of underlying felony) and not [collateral] [incidental] to it. It is not enough that the homicide occurred soon, or presently, after the felony was attempted or committed. 

[See generally People v. Anderson (CA 1968) 70 C2d 15, 34 [73 CR 550]; cf. GEORGIA SUGGESTED PATTERN JURY INSTRUCTIONS - CRIMINAL CASES Part 4, § B(4) [Murder; Felony, During Commission] p. 72, sent. 4-6 (rev. 3/95) (Carl Vinson Institute of Government, University of Georgia, 2nd ed. 2000); 40 Corpus Juris Secundum 21, p. 870.]

    To prove first degree murder on a felony murder theory, the prosecution must prove beyond a reasonable doubt that the defendant committed the __________ [insert felony] for an independent felonious purpose rather than merely to facilitate or conceal the murder. This requires the prosecution to prove that the defendant had an independent purpose to commit the felony of ___________ wholly independent of the murder. If after considering all of the evidence you have a reasonable doubt that the defendant had such an independent felonious purpose, you must give the defendant the benefit of the doubt and find [him] [her] not guilty on the felony murder theory.

[Source: FORECITE National™.]

    To prove the felony murder theory of first degree murder, the prosecution must prove beyond a reasonable doubt that the __________ [insert felony] was done for the independent purpose of committing the felony rather than for the purpose of committing the homicide. If the defendant's primary purpose was to kill or if [he] [she] committed the __________ [insert felony] to facilitate or conceal the homicide, then there was no independent felonious purpose. If from all the evidence you have a reasonable doubt that the defendant committed the ___________ for such independent felonious purpose, you must find the defendant not guilty on the felony murder theory.

[Source: FORECITE National™.]

    To convict the defendant of felony murder, the felony must not be an afterthought.  The defendant must have intended to commit the felony before the homicidal act took place.

[See generally Commonwealth v. Legg (PA 1980) 417 A2d 1152, 1154-55; cf. PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 15.250B, note 2 [Second Degree Murder] ¶ 2, p. 4 (Pennsylvania Bar Institute, PBI Press, 09/95).]

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RATIONALE: Without a special instruction the jury may not understand that the intent to commit the underlying felony must precede the killing of the victim for the felony murder rule to apply.

POINTS AND AUTHORITIES: If the defendant is charged with felony murder as a perpetrator, the instructions should require the jury to find that the defendant had the intent to commit the underlying felony "immediately prior to" or "during...infliction of the fatal wounds." (People v. Anderson (CA 1968) 70 C2d 15, 34 [73 CR 550]; see also People v. Musselwhite (CA 1998) 17 C4th 1216, 1249 [74 CR2d 212].)

    "Although the felony may either precede or follow the killing, the intent to commit the felony must be established prior to the homicide, and acquittal is proper if the felony is an afterthought...." (CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.23, comment [Homicide-First Degree Felony Murder And Second Degree Murder] p. 305 (Bar Association of the District of Columbia, 4th ed. 1993).)

    Where an "afterthought" defense is raised, the jury should be instructed that "(1) to convict of felony murder, it is necessary that the intent to commit the underlying felony be formed before the homicide, (2) ‘intent’ can only be proved by action beyond mere preparation since until that time the defendant could have abandoned the plan to commit the felony without legal liability, and (3) even if the jury finds the underlying felony did occur, that finding by itself does not settle the issue [of whether] the intent to commit the felony was formed before or after the homicide. [Citations.]" (CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.23, comment [Homicide-First Degree Felony Murder And Second Degree Murder] p. 305 (Bar Association of the District of Columbia, 4th ed. 1993); see also U.S. v. Bolden (DC Cir. 1975) 514 F2d 1301, 1307.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1; 4.3].

RESEARCH NOTES:

See LaFave & Scott, Substantive Criminal Law (West, 1986) § 7.15 p. 228. Wharton’s Criminal Law (West, 15th ed. 1993) § 150, pp. 309-315.

RELATED FEDERAL MODEL INSTRUCTIONS:

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

    To establish the defendant's guilt of first degree murder on the theory that [he] [she] committed the killing during the perpetration or attempted perpetration of __________ [insert underlying felony], the prosecution must prove beyond a reasonable doubt that prior to or during the infliction of the fatal wounds the defendant:

    1. Committed or attempted to commit _________ (insert underlying felony) [or]

    2. Personally harbored the specific intent to commit __________ (insert underlying offense) prior to the killing.

[Source: FORECITE National™.]

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RATIONALE: If the defendant did not form the intent to aid and abet the underlying felony until after the killing was committed there should be no vicarious liability for murder under the felony murder rule.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1; 4.3].

RELATED FEDERAL MODEL INSTRUCTIONS:

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

SAMPLE INSTRUCTION # 1:

    An [accomplice] [aider and abetter] may not be found guilty of murder under this instruction unless the aiding and abetting occurred before or during the killing. If you have a reasonable doubt that the defendant formed the intent to aid and abet before or during the killing, and/or that the act of aiding and abetting occurred before or during the killing, you must give the defendant the benefit of that doubt and find [him] [her] not guilty of murder.

[Source: FORECITE National™.]

    The rule of liability described in this instruction does not apply to a person who aids and abets the perpetrator of the crime only after the killing has been completed.

[Source: FORECITE National™.]

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    See FORECITE National™ 256.5 [Intoxication, Involuntary].

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    See FORECITE National™ 256.7 [Mental, Medical Or Physical Impairment Of Defendant].

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    92.9.4.15    Felony Murder: Additional Defenses And Defense Theories