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92.9 Felony Murder, Statutorily Specified Offenses

    92.9.5 Felony Murder: Merger Doctrine As Defense Theory

    92.9.5.1 Felony Murder: Assault As Improper Predicate Felony
    92.9.5.2 Merger Doctrine Makes Felony Murder Inapplicable To Burglary With Intent To Kill Or Assault
    92.9.5.3 Felony Murder: Merger -- Applicability To Child Abuse
    92.9.5.4 Inherently Dangerous Felony Murder: Merger Doctrine
    92.9.5.5 Natural And Probable Consequences: Application Of Merger Doctrine

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RATIONALE: Since most conduct resulting in homicide is probably felonious in itself, absent the merger doctrine nearly every homicide could be brought within the felony-murder rule, thereby short-circuiting all the intricate distinctions of the graded homicide statutes.

POINTS AND AUTHORITIES: "Where the underlying felony is the actor’s assault of the homicide victim and the actor’s intention is to injure that victim, the felony murder rationales simply do not apply. This is because the graded homicide statutes, apart from felony murder, are designed to deal with the full range of assaults resulting in death and are carefully calibrated to take account of such things as different levels of culpability as to causing the death. Since most conduct resulting in homicide is probably felonious in itself, absent the merger doctrine nearly every homicide could be brought within the felony-murder rule, thereby short-circuiting all the intricate distinctions of the graded homicide statutes. [Footnote omitted.]" (Robinson, Criminal Law Defenses (West, 1984) § 103(b) p. 497.)

    Thus, unless the underlying felony is an "independent collateral felony," application of the felony murder rule should be precluded. (State v. Ulland (KS 1997) 943 P2d 947, 950; see also People v. Ireland (CA 1969) 70 C2d 522, 539-40 [75 CR 188]; Ex Parte Drinkert (TX 1991) 821 SW2d 953, 955; Wiman v. Lockhart (8th Cir. 1986) 797 F2d 666, 668; but see Lucas v. State (GA 1995) 458 SE2d 103, 105 [merger doctrine did not preclude defendant's conviction for felony murder based on underlying assault from which victim died]; McClellan v. Commonwealth (KY 1986) 715 SW2d 464, 472 [burglary was complete upon entry with required intent; subsequent commission of murder did not merge the two offenses]; but see State v. Rupe (KS 1979) 601 P2d 675, 679 [merger doctrine not applicable for felony murder where underlying felony was aggravated burglary based on aggravated assault on the victim]; Commonwealth v. Claudio (MA 1994) 634 NE2d 902 907 [offense of breaking and entering with intent to commit assault did not merge with homicide so as to preclude application of felony murder rule]; State v. Bartlett (WA 1994) 875 P2d 651, 655 [assault does not merge into homicide and hence may form predicate for application of felony-murder rule]; People v. Morgan (IL 2001) 758 NE2d 813 [Illinois Supreme Court holds that a killing cannot be prosecuted as felony murder if the acts constituting the predicate felony were inherent in the killing itself].)

    In other words, "[t]he lethal act itself cannot serve as the independent collateral felony necessary to support a felony-murder conviction. [Citations.]" (Ulland, 943 P2d at 950.) Thus, a crime such as second-degree murder may not serve as the underlying felony supporting first-degree felony murder because second-degree murder is one of the lesser included offenses of first-degree murder. Otherwise, all degrees of homicide would constitute murder in the first degree, regardless of the defendant's intention or premeditation." (State v. Lucas (KS 1988) 759 P2d 90, 93; see also State v. Jones (KS 1995) 896 P2d 1077, 1086.)

    The key is "whether the elements of the underlying felony are so distinct from the homicide so as not to be an ingredient of the homicide." (State v. Lucas (KS 1988) 759 P2d 90, 93-96; see also State v. Prouse (KS 1989) 767 P2d 1308, 1312; PATTERN INSTRUCTIONS FOR KANSAS - CRIMINAL, PIK - Criminal 3d 58.11 [Abuse Of A Child] comment (Kansas Judicial Council, 3rd ed. 1999).)

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

USE NOTE -- Exceptions To The Merger Doctrine: The merger doctrine may not apply to a burglary where the original intent was to kill one person but another person was killed instead. (See State v. Jones (KS 1995) 896 P2d 1077, 1086.)

RESEARCH NOTES:

Annotation, Application Of Felony-Murder Doctrine Where The Felony Relied Upon Is An Includible Offense With The Homicide, 40 ALR3d 1341.

Comment, The Merger Doctrine as a Limitation on the Felony-Murder Rule: A Balance of Criminal Law Principles, 13 Wake Forest L.Rev. 369, 377 (1977).

Felony Murder: Merger Doctrine (Ireland). LaFave & Scott, Substantive Criminal Law (West, 1986) § 7.5(g), pp. 228-30.

Wharton’s Criminal Law (West, 15th ed. 1993) § 149, p. 306.

RELATED FEDERAL MODEL INSTRUCTIONS:

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

    Even if you conclude that the homicide resulted from the perpetration or attempt to perpetrate an assault [with a deadly weapon] you may not find first degree murder based upon the intent to commit an assault.

[Source: FORECITE National™.]

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    92.9.5.2    Merger Doctrine Makes Felony Murder Inapplicable To Burglary With Intent To Kill Or Assault    

PRACTICE NOTE:  The merger doctrine may not apply to a burglary where the original intent was to kill one person but another person was killed instead. (See People v. Cahill (NY 2003) 809 N.E.2d 561 [statute contemplates a felonious intent independent of the murder itself]; State v. Jones (KS 1995) 896 P2d 1077, 1086; McClellan v. Commonwealth (KY 1986) 715 SW2d 464, 472 [burglary was complete upon entry with required intent; subsequent commission of murder did not merge the two offenses]; but see State v. Rupe (KS 1979) 601 P2d 675, 679 [merger doctrine not applicable for felony murder where underlying felony was aggravated burglary based on aggravated assault on the victim]; Commonwealth v. Claudio (MA 1994) 634 NE2d 902 907 [offense of breaking and entering with intent to commit assault did not merge with homicide so as to preclude application of felony murder rule]; State v. Bartlett (WA 1994) 875 P2d 651, 655 [assault does not merge into homicide and hence may form predicate for application of felony-murder rule].)

RELATED FEDERAL MODEL INSTRUCTIONS:

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

FORECITE National™
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 VOLUME 7 - CHAPTER 92

FORECITE National™
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 VOLUME 7 - CHAPTER 92

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
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 VOLUME 7 - CHAPTER 92