I can’t be the only person who was surprised to learn in my first year of law school that a person who never intended to kill someone else could be convicted of first degree murder. Even an accidental killing can result in first-degree murder charges if it occurs during the commission of a dangerous felony. The classic example of this theory of murder, known as felony murder, is the defendant who agrees to serve as get-away driver while his friends rob a business. Once inside the business, one of the robbers brandishes a gun. The owner of the business, who is confronted by one of the robbers, suffers a heart attack and dies. The defendant and his co-conspirators all are prosecuted for and convicted of first-degree murder based on the felony murder rule. See People v. Stamp, 82 Cal. Rptr. 598 (Cal. Ct. App. 1969).
Today’s post will review the basics of North Carolina’s felony murder rule. Next week’s post will explore recent developments regarding when the so-called merger rule may apply to bar charges of felony murder that arise from a single assault that injures and kills a single victim.
Felony murder in North Carolina. The felony murder rule in North Carolina is codified in G.S. 14-17(a).
That statute defines first-degree murder to include a homicide committed in the perpetration or attempted perpetration of any of the following felonies:
- rape or a felony sex offense;
- burglary; or
- a felony committed or attempted with the use of a deadly weapon.
The intent requirement. To establish first-degree murder under the theory of felony murder, the State is not required to prove premeditation or deliberation. See State v. Wright, 282 N.C. 364, 369 (1972). Instead, the relevant intent is the intent to commit the underlying felony.
The catch-all category. The last category of qualifying felonies purports to include any “felony committed or attempted with the use of a deadly weapon.” Before 1977, this category included any “other felony.” The courts interpreted the prior version of G.S. 14-17 to include killings committed during the commission of any other felony inherently dangerous to human life, but reserved judgment on whether it covered other types of felonies. See State v. Davis, 305 N.C. 400, 423 (1982). Similarly, the current catch-all felony category has been construed by the courts to be narrower than a plain reading might suggest. First, only felonies predicated on actual intent, rather than implied intent as evidenced by a defendant’s culpable negligence, may serve as underlying felonies for the crime of felony murder. See State v. Jones, 538 S.E.2d 917, 925 (2000) (discussed here). Thus, for example, the death of a victim in connection with an assault with a deadly weapon inflicting serious injury does not support charges of felony murder unless the State proves the defendant was purposefully resolved to commit the underlying assault. Id.
The appellate courts have upheld felony murder convictions predicated on the following felonies in the catch-all category:
- discharging a firearm into an occupied vehicle or structure, see, e.g., State v. King, 316 N.C. 78 (1986);
- felony larceny, see, e.g., State v. McNeill, ___ N.C. App. ___,778 S.E.2d 457, 464 (2015)
- felony breaking and entering, see, e.g., State v. Wiley, 182 N.C. App. 437, 442 (2007)
- assault with a deadly weapon with intent to kill or with intent to inflict serious injury, see, e.g., State v. Terry, 337 N.C. 615 (1994);
- felonious child abuse, see, e.g., State v. Pierce, 346 N.C. 471 (1997);
- attempted sale and sale of cocaine, see, e.g., State v. Squires, 357 N.C. 529 (2003); State v. Freeman, 202 N.C. App. 740 (2010)
- drug trafficking, see, e.g., State v. Herring, 176 N.C. App. 395 (2006)
Use of a deadly weapon. When a killing occurs in connection with a felony involving a deadly weapon, the State must prove only that the defendant intentionally committed or attempted the felony and that a deadly weapon was used. The defendant does not have to know ahead of time that a deadly weapon will be used or, in the case of a crime committed by more than one defendant, that one of his or her accomplices possesses a weapon. See, e.g., State v. Herring, 176 N.C. App. 395, 400–01 (2006) (explaining that whether the defendant knew that his co-conspirator had a gun “is irrelevant” so long as his co-conspirator killed the victim “while possessing or attempting to possess the drugs in the apartment, which the State substantially established was defendant and [his co-conspirator’s] common purpose”).
There is no requirement that the weapon be physically used to commit the underlying felony; mere possession suffices. State v. Fields, 315 N.C. 191, 199 (1985) (stating that “[i]f the defendant has brought the weapon along, he has at least a psychological use for it: it may bolster his confidence, steel his nerve, allay fears of his apprehension,” and explaining that even when the weapon is never physically employed, “it functions as a backup, an inanimate accomplice that can cover for the defendant if he is interrupted”).
A single transaction. To constitute felony murder, the homicide must occur “in the perpetration or attempted perpetration” of a qualifying felony. This standard is satisfied when there is no break in the chain of events leading from the felony to the act causing death, so that the killing is part of a “series of incidents that form one continuous transaction.” Fields, 315 N.C. at 197. It is immaterial whether the felony occurred prior to or immediately after the killing, see State v. Williams, 308 N.C. 47, 67, (1983), so long as both “occur in a time frame that can be perceived as a single transaction.” State v. Thomas, 329 N.C. 423, 434–35 (1991).
Those are the basics. Next week’s post will cover new developments in the application of the merger rule, which Jeff wrote about back in 2009 (the year this blog was launched).