FELONY MURDER
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By: Kevin E. McCarthy, Principal Analyst
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SUMMARY
The felony-murder doctrine provides that if a homicide occurs during the commission or attempted commission of a felony, the homicide is a form of murder. The felony-murder doctrine is probably derived from English common law, although its exact origins are disputed. Forty-six states, including Connecticut, have felony murder provisions in their statutes. Hawaii, Kentucky, and Michigan have eliminated the felony murder rule through legislation or court decisions. Ohio has effectively eliminated the felony murder doctrine by enacting an involuntary manslaughter statute that covers what was previously felony murder.
In most states, including Connecticut, a person can be found guilty of murder if he is convicted of one or more specified felonies and a person is killed in the course of the underlying crime or flight from it. The underlying crimes commonly include robbery, burglary, sexual assault, kidnapping, and escape. Florida's list of underlying crimes is notably more expansive than Connecticut's and Georgia's law applies to any felony. Maine's felony murder law additionally requires that the death is a reasonably foreseeable consequence of the commission of or attempt at the underlying felony or the flight from it. Case law has imposd similar requirements in several states.
In Connecticut, it is not felony murder if the person killed is one of the participants in the underlying felony. This is also true in Colorado, Florida, New Jersey, New York, and Washington. In contrast, the Rhode Supreme Court has held that the fact that the murder victim was an accomplice to the underlying felony does not prevent the defendant from being convicted of felony murder, so long as his actions foreseeably produced the fatal injury.
In Connecticut, it is an affirmative defense that the defendant was not involved in the killing, was unarmed, and met other criteria. Maine, New Jersey, New York, and Washington have very similar provisions in their laws.
CONNECTICUT
Connecticut and most other states have felony murder provisions in their statutes. Under CGS § 53a-54c, a person is guilty of murder when, acting either alone or with others, he (1) commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, aggravated sexual assault in the first degree, sexual assault in the third degree, sexual assault in the third degree with a firearm, or escape in the first or second degree and (2) in the course of and in furtherance of such crime or of flight from it, he or another participant in the underlying crime causes the death of a person other than one of the participants. The penalty for this crime depends on whether the person is convicted of a capital felony, murder, or arson murder.
If the defendant was not the only participant in the underlying crime, it is an affirmative defense that he: (1) did not commit the homicidal act or in any way solicit, request, command, importune, cause, or aid its commission; (2) was not armed with a deadly weapon or dangerous instrument; (3) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (4) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury. By law, defendants must prove an affirmative defense by a preponderance of the evidence.
In State v. Cobbs, 203 Conn. 4 (1987), the Supreme Court noted that a person can be convicted of felony murder even though he did not intend to kill the victim and did not personally do so. However, the court held that it is not enough that the defendant committed the underlying felony and caused the death of the victim unless the death was a part of the felony and directly involved in it. It explained that, at trial, the state must prove beyond a reasonable doubt that:
1. the defendant and others (if applicable) committed or attempted to commit the felony,
2. the defendant or one of the other participants caused the victim's death, and
3. the defendant or one of the other participants caused the death in the course of and in furtherance of the felony
In State v. Young, 191 Conn. 636 (1983), the defendant had been convicted under the statute for an arson for hire that killed one person in the building. The court noted that the statute had been taken from the New York Penal code. Following a New York case, (People v. Wood, 8 N.Y.2d 48, 1960), it held that the phrase “in furtherance of” imposes a proximate cause requirement beyond that of mere causation in fact. The New York court had ruled that felony murder does not include killings that are incidentally coincident with the underlying felony, but only those committed by one of the criminals in the attempted execution of the unlawful act. The Connecticut court upheld the conviction, finding that the jury instruction adequately conveyed this limitation of liability.
OTHER STATES
California (Cal. Pen. Code Sec. 189)
First degree murder includes murder committed in the perpetration of, or attempt to perpetrate: (1) arson, (2) rape and various other sexual crimes, (3) carjacking, (4) robbery, (5) burglary, (6) mayhem, (7) kidnapping, (8) train wrecking, or (9) any murder is perpetrated by discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle, with the intent to inflict death. First degree murder is punishable by death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. Other forms of murder are second degree murder, punishable by 15 years to life, except if the homicide victim was a peace officer engaged in his official duties, in which case the minimum sentence is 25 years.
Colorado (Col. Rev. Stat. Sec. 18-3-102)
It is first degree murder for someone, acting alone or with others to (1) commit or attempt to commit arson, robbery, burglary, kidnapping, sexual assault, class 3 felony sexual assault on a child, or escape and (2) in the course of or in furtherance of the crime or in immediate flight from it, anyone causes the death of a person other than one of the participants. The crime is subject to the death penalty or life in prison.
Florida (Fla. Rev. Stat. Sec. 782.04)
It is second degree murder if a person commits one or more specified crimes and the perpetration of, or in the attempt to perpetrate this crime, another person is killed by someone other than the perpetrator of the underlying crime. The underlying crimes are: drug trafficking; arson; sexual battery; robbery or home invasion robbery; burglary; kidnapping; escape; aggravated abuse of a child, elderly person, or disabled adult; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; carjacking; aggravated stalking; murder; resisting an officer with violence to his or her person; or felonious acts of terrorism or in furtherance of an act of terrorism. The crime is punishable by up to life in prison and a fine of up to $10,000.
Florida has a separate crime, attempted felony murder (Fla. Rev. Stat. § 782.051), which covers cases where someone commits one of the specified felonies and in the process acts in a way that could have killed another person.
Georgia (Ga. Code. Ann. 16-5-1)
A person commits murder when, in the commission of a felony, he causes the death of another person, irrespective of malice. A person convicted of this offense must be punished by death or by life imprisonment.
The state Supreme Court refused to hold a person liable for a death caused by a person who was not the defendant or an accomplice to the felony. In State v. Crane, 279 S.E.2d 695 (Ga. 1981) the intended victim of the crime shot and killed a would-be burglar and the deceased burglar's accomplices were charged with felony murder. While the court favored an interpretation of Georgia's felony-murder statute to include deaths indirectly caused by one of the parties, it ruled that the state's rules of statutory interpretation required that ambiguous statutes be construed against the state.
Maine (17-A Me. Rev. Stat. Sec. 202)
Under Maine law a person is guilty of felony murder if acting alone or with others in committing or attempting to commit murder, robbery, burglary, kidnapping, arson, gross sexual assault, or escape, or immediate flight after committing or attempting to commit these crimes, the person or another participant in fact causes the death of a person and the death is a reasonably foreseeable consequence of such commission, attempt or flight. The crime is punishable by up to 30 years imprisonment and a fine of up to $50,000.
It is an affirmative defense that the defendant:
1. did not commit the homicidal act or in any way solicit, command, induce, procure, or aid its commission;
2. was not armed with a dangerous weapon or other weapon which under circumstances indicated a readiness to inflict serious bodily injury;
3. reasonably believed that no other participant was armed with such a weapon; and
4. reasonably believed that no other participant intended to engage in conduct likely to result in death or serious bodily injury.
The Maine Supreme Court has held that felony murder involves an unintended death that results as a reasonably foreseeable consequence of an intended felony (State v. Caouette, 462 A.2d 1171 (Me. 1983)). The court also has held that the law does not violate the state or federal bans on cruel and unusual punishment (State v. Reardon, 486 A.2d 112 (Me. 1984)).
Massachusetts (265 Mass. Gen Laws Sec. 1)
First degree murder includes murder that occurs in the commission or attempted commission of a crime that is punishable with death or imprisonment for life. These crimes include such things as rape of a child, kidnapping with intent to extort money, and illegal sale of 20 or more firearms. Unlike other forms of murder, the killing does not need to involve deliberately premeditated malice aforethought, extreme atrocity, or cruelty. The crime is subject to life imprisonment. Other types of murder are considered second degree murder.
The Massachusetts Supreme Court held in Commonwealth v. Padgett, 44 Mass. App. Ct. 359, review denied 425 Mass. 1105 (1998) that to invoke the felony murder rule, the state must establish that:
1. the defendant was a participant in a felonious enterprise independent of the homicide,
2. the felony was inherently dangerous,
3. homicide occurred in the course of the felonious enterprise, and
4. the death was natural and probable consequence of the felony.
In this case, the court held that armed robbery and armed assault are inherently dangerous. The Supreme Court has also held, in Commonwealth v. Claudio, 634 N.E.2d 902, 418 Mass. 103 (1994), that burglary with actual assault can serve as the underlying felony for felony murder.
New Jersey (N.J. Rev. Stat. Sec. 2C:11-3)
In New Jersey, it is murder when a person, acting alone or with others, (1) commits, attempts to commit, or flees after committing or attempting to commit robbery, sexual assault, arson, burglary, kidnapping, carjacking, criminal escape, or terrorism and (2) in the course of such crime or of immediate flight from it, any person causes the death of a person other than one of the participants. The offender must be sentenced to a term of 30 years to life, with no parole allowed before 30 years have been served. Under certain circumstances, (e.g., the homicide of law enforcement while performing his official duties), the offender must be sentenced to life without parole.
If the defendant was not the only participant in the underlying crime, it is an affirmative defense that he:
1. did not commit the homicidal act or in any way solicit, request, command, importune, cause, or aid the commission of it;
2. was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons;
3. had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article, or substance; and
4. had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.
New York (N.Y. Pen. Code Sec. 125.25)
It is second degree murder if a person, acting alone or with others (1) commits or attempts to commit robbery, burglary, kidnapping, arson, rape in the first degree, criminal sexual act in the first degree, sexual abuse in the first degree, aggravated sexual abuse, or escape in the first or second degree and (2) in the course of and in furtherance of committing the underlying crime or of immediate flight from it, he or another participant in the crime causes the death of a person other than one of the participants. The crime is punishable by imprisonment for 15 years to life and a fine of up to $100,000.
If the defendant was not the only participant in the underlying crime, it is an affirmative defense that he:
1. did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof;
2. was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons;
3. had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and
4. had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.
Rhode Island (R. I. Gen Laws Sec. 11-23-1)
Under state law, first degree murder includes any murder committed (1) in the perpetration of, or attempt to perpetrate, any arson, rape, any degree of sexual assault or child molestation, burglary or breaking and entering, robbery, kidnapping, (2) during the course of the perpetration, or attempted perpetration of felony manufacture, sale, delivery, or other distribution of a controlled substance; (3) while resisting arrest by, or under arrest of, any state trooper or police officer in the performance of his or her duty: or (4) against an assistant attorney general or special assistant attorney general in the performance of his or her duty. People of first degree murder must be sentenced to life imprisonment and serve at least 15 years of their sentence before becoming eligible for parole. Under certain circumstances, such as a murder committed in the perpetration or attempted perpetration of various felony drug crimes, the offender is ineligible for parole.
The Rhode Island Supreme Court has held that felony murder is any homicide committed while perpetrating or attempting to perpetrate the enumerated offenses. It acquires first-degree murder status without the necessity of proving such elements as premeditation and deliberation (State v. Villani, 491 A.2d 976 (R.I. 1985)). The fact that the murder victim was an accomplice to the underlying felony does not prevent the defendant from being convicted of felony murder, so long as his actions foreseeably produced the fatal injury (In re. Leon, 410 A.2d 121 (R.I. 1980).
Vermont (13 Vt. Stat. Sec. 2301)
In Vermont, homicide committed in perpetrating or attempting to perpetrate arson, sexual assault, aggravated sexual assault, robbery or burglary, is first degree murder. The crime is punishable by a sentence of 35 years to life or life without the possibility of parole. However, the Vermont Supreme Court held that merely showing that a person intended to commit one of the specified felonies is insufficient to convict a person of felony murder (State v. Bacon, 168 Vt. 279, 658 A.2d 54, cert. denied 516 U.S. 837 (1995). The state must show a mental state of wanton disregard for human life with respect to the murder itself. In State v. Doucette, 143 Vt. 573 (1983), the Supreme Court ruled that the jury must find, beyond a reasonable doubt, that the killing was done with malice during the perpetration or attempted perpetration of one of the specified felonies. The court held that the doctrine does not apply if the killing was done accidentally or unintentionally. On the other hand, premeditation is not an element of felony murder.
Washington (Wash. Rev. Code. Sec. 9A:32.030)
It is first degree murder for someone to commit or attempts to commit (1) first degree burglary or first or second degree robbery, rape, arson, or kidnapping and (2) in the course of or in furtherance of such crime or in immediate flight from it, he or she or another participant in the underlying crime causes the death of a person other than one of the participants.
If the defendant was not the only participant in the underlying crime and if established by the defendant by a preponderance of the evidence, it is a defense that the defendant:
1. did not commit the homicidal act or in any way solicit, request, command, importune, cause, or aid the commission of it;
2. was not armed with a deadly weapon, or any instrument, article, or substance readily capable of causing death or serious physical injury;
3. had no reasonable grounds to believe that any other participant was armed with such a weapon, instrument, article, or substance; and
4. had no reasonable grounds to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.
Murder in the first degree is a class A felony, punishable by life imprisonment and a fine of up to $50,000.
Wisconsin (Wis. Sec. 940.03)
In Wisconsin, a person is guilty of felony murder if causes the death of another person while committing or attempting to commit battery or related offenses, threatening witnesses or judges, sexual assault, false imprisonment, kidnapping, arson, burglary, armed carjacking, or robbery. The offender may be imprisoned for up to 15 years beyond the maximum term provided for that crime or attempt.
The state's courts have held that, to prove that the defendant caused the death, the state need only prove that the defendant's conduct was a substantial factor (State v. Oimen, 184 Wis. 2d 423, (1994). They have also held that a defendant may be convicted if another person, including an intended felony victim, fires the fatal shot (State v. Chambers, 183 Wis. 2d 316, (1994).
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