Pushing the Limits of Felony Murder

The law of homicide is really much more complex than most people imagine. One of the doctrines that lay people aren't aware of is called felony murder. Basically, if a defendant commits a felony and during the course of that felony somebody dies, he is guilty of murder. Intent doesn't matter, malice doesn't matter (see WV's model jury instruction for felony murder here). It generally doesn't even matter if the victim is the target of the underlying felony (i.e., the robbery target) or a third party (i.e., the cop who intervenes). My opinion is that prosecutors use it as a crutch to obtain easy Murder One convictions when they otherwise couldn't prove intent or malice. Surely it has it's limits, right?

A local case is going to test that:

Stephanie Holsinger, 24, of Blue Creek, was one of three people who faked a disabled vehicle to rob Justin Johnson at his St. Albans apartment in April.

L.B. Booker, a former Capital High School basketball star, died when Johnson pulled a gun out of his sweatshirt and shot him.

In other words, one of the perps got killed during the botched robbery attempt. Holsinger's attorney (and jedi jawa's boss) argues that the law recognizes an exception where the person killed is not an innocent party. Since the vic was one of the robbers, Holsinger can't be liable for his death. The prosecutor handling the case (who - small world - I went to law school with) disagrees, pointing out that but for the robbery attempt, the victim would still be alive. The trial judge will make a decision on Monday about Holsinger's argument, tho' I expect the state Supreme Court will have the final say in the matter.

It's been a long time since I've really done any felony murder research (since back when jedi's boss was mine as well), but I seem to remember cases in which one of a group of multiple perpetrators was killed and the others were held liable under the felony murder rule. But the law in WV may be more favorable than that.

In US v. Martinez, 16 F.3d 202 (7th Cir. 1994), Judge Posner provides a good overview of the issue in trying to determine whether the Federal statute covers such situations. It being a Federal case, the issue came up at sentencing under the Guidelines, of course. Posner cites State ex. rel. Painter v. Zakaib, 411 S.E.2d 25 (WV 1991), in which the state Supreme Court held that a defendant could not be held liable for the death of an accomplice following a botched burglary where the accomplice committed suicide. However, Posner ultimately distinguishes the WV case and concludes:

The better rule, hence the one we would hope to see adopted in cases under the federal felony murder statute, is that the death of a felon, whether by his own hand or that of another felon, in the course of any of the felonies (including arson) listed in the statute, is a felony murder. The lives of criminals are not completely worthless, so their deaths should not be considered nonevents for sentencing purposes; and lest that seem an amorphous and even mawkish ground for an expansive interpretation of felony murder, we add that liability for felony murder in a case such as the present serves the practical function of deterring felons from using lethal weaponry, more broadly from committing the kind of felony in which someone is likely to be shot or run down or otherwise injured (and hence possibly killed), by punishing them severely should death result--to anyone. Cases that refuse to apply the felony-murder rule when the death is caused by someone outside the criminal enterprise, typically a victim or a police officer, do so on the mechanical ground that the acts of these outsiders cannot be attributed to the criminals by the principles of the law of agency. . . . One who commits a crime of violence is more likely to be shot by a victim or a police officer than one who commits a non-violent crime. Even within the class of violent felonies, a felon is more likely to be shot by a victim or a police officer if he is armed--and if he is not shot but his cofelon is, he stands to receive a heavier punishment. If we must have felons, at least let them be peaceable felons.

It doesn't sound good for Holsinger, but the state Supremes have shown a willingness recently to take the minority view (Mullins anyone?).