Last week I blogged about the basic rules for felony murder prosecutions in North Carolina. I promised to return this week with an update on the felony murder rule and the merger doctrine. This post, like Jeff’s 2009 article, focuses on the merger rule that bars charges of felony murder that are based upon killings resulting from certain types of felony assaults. It does not address the merger rule that requires the court to arrest judgment on the underlying felony when a defendant is convicted of first-degree murder solely on the basis of felony murder.
Tag Archives: felony murder
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.
Thirteen-year-old Nathan Clark and his teammates traveled from Winston-Salem to Raleigh last Friday night to play in a weekend soccer tournament. The team never took the field. As Clark slept in his hotel room Friday evening, a gun discharged in an adjacent room, sending a bullet through the wall and into the back of Clark’s head. Clark died before he could be transported to the hospital.
The man in the room next door, Randall Louis Vater, was a convicted felon who was prohibited by law from possessing a gun. Vater had been out of jail only two weeks, having been released on October 25 after serving a sentence for violating a domestic violence protective order. Vater was charged with involuntary manslaughter and possession of a firearm by a felon based on Clark’s death. He is being held in the Wake County Jail under a $1 million bond.
Authorities have said nothing about how the gun went off. Assuming that the discharge was accidental, could Vater be charged with first-degree murder under the theory of felony murder? Continue reading →
The jury need not be unanimous regarding the felony underlying a defendant’s conviction of felony murder. State v. Taylor, 362 N.C. 514 (2008) (the defendant was charged with felony murder, and the jury was instructed disjunctively regarding two armed robberies as possible predicate felonies; the supreme court rejected the defendant’s argument that he was thereby deprived of his right to a unanimous verdict, and held that the two armed robberies were simply alternative ways of establishing the felony element of felony murder); State v. Coleman, 161 N.C. App. 224 (2003) (affirming the defendant’s conviction of felony murder even though “we cannot determine if the jury was unanimous in which felony served as the underlying felony for purposes of the felony murder verdict,” and ruling that “where there are multiple felony convictions which could serve as the underlying felony for purposes of the felony murder conviction, it is in the discretion of the trial court as to which felony will serve as the underlying felony for purposes of sentencing”); State v. Dudley, 151 N.C. App. 711 (2002) (although the jury was instructed disjunctively regarding several possible predicate felonies, the court of appeals affirmed the defendant’s conviction of felony murder; the predicate felonies were alternative ways to establish a single element of felony murder, so the disjunctive instruction did not pose a unanimity problem; but remanding for resentencing because the trial judge did not arrest judgment on any of the predicate felonies). But see State v. McDougall, 308 N.C. 1 (1983) (suggesting that the jury must be unanimous regarding the underlying felony).
Therefore, there is normally no need to ask the jury, if it finds the defendant guilty of felony murder, to indicate which felony or felonies formed the basis of its verdict. Accordingly, the verdict form included in the pattern jury instructions simply asks whether the jury finds the defendant guilty of first-degree murder, and if so, whether the finding is on the basis of premeditation and deliberation, and whether the finding is on the basis of “the first-degree felony murder rule.” N.C.P.I. – Crim. 206.14.
However, there may be circumstances under which asking the jury to agree unanimously on a predicate felony or felonies – or at least asking the jury to indicate on the verdict sheet any predicate felony or felonies on which it did agree unanimously — may be useful. Consider the following scenarios:
- There are two possible predicate felonies in a case. The state is confident that the jury will convict the defendant of both and that it will find each felony sufficient to support a conviction of felony murder. However, the state is concerned that an appellate court may find that one of the possible predicate felonies is not supported by sufficient evidence, or is not a type of felony that may properly support a felony murder conviction. In such a case, the state may want the jury to indicate the basis of its felony murder verdict in order to insulate the murder conviction if the suspect felony is invalidated on appeal.
- There are two possible predicate felonies in a case. One has been charged, and the other is an uncharged felony. If the jury expressly finds that each of the two felonies supports felony murder, the state may be able to argue that the uncharged felony provides a basis for the felony murder verdict and it is therefore not necessary to arrest judgment on the charged felony under the merger doctrine.
No legal principle appears to prohibit asking the jury to provide a more detailed verdict in such cases. Whether to do appears to be within the discretion of the trial judge. Readers, if you can come up with additional scenarios in which it might make sense to ask the jury to be specific about the basis for its felony murder verdict, please weigh in.
I’ve had several questions recently about the merger doctrine as it applies to felony murder. It’s a complicated area, made even more confusing because there are two different doctrines that share the name “merger.” I’m not going to address the merger doctrine that requires the court to arrest judgment on the underlying felony when a defendant is convicted of first-degree murder only on the basis of felony murder. See, e.g., State v. Millsaps, 356 N.C. 556, 560 (2002) (“When a defendant is convicted of felony murder only, the underlying felony constitutes an element of first-degree murder and merges into the murder conviction.”). The law in that area is clear. Instead, I’m going to discuss the merger doctrine that prevents certain assaults from serving as the underlying felony for felony murder. In order to give this rule a unique name, and because the rule applies when an assault is an integral part of a homicide, I’ll sometimes refer to it as the “part-and-parcel assault rule.”
The basic rule was expressed in State v. Jones, 353 N.C. 159, 170 n.3 (2000): In “cases involving a single assault victim who dies of his injuries . . . the assault on the victim cannot be used as an underlying felony for purposes of the felony murder rule. Otherwise, virtually all felonious assaults . . . that result in . . . death would be first-degree murders via felony murder, thereby negating lesser homicide charges such as second-degree murder and manslaughter.” So it is clear that when A fatally shoots B, A cannot properly be charged with felony murder using, for example, AWDWIK as the predicate felony. As an aside, while this appears to be the majority rule nationally, some states have rejected it. In Georgia, for example, part-and-parcel assaults may form the basis of felony murder charges. State v. Huntley, 518 S.E.2d 890 (Ga. 1999). See generally Robert L. Simpson, Application of felony-murder doctrine where the felony relied upon is an includible offense with the homicide, 40 A.L.R.3d 1341 (comparing approaches).
Just how closely related must the assault and the homicide be in order for the part-and-parcel assault rule to apply? Very closely, under State v. Carroll, 356 N.C. 526 (2002). In Carroll, the defendant struck the victim with a machete, then strangled her. He was convicted of felony murder, with AWDWISI — based on the blow with the machete — as the underlying felony. The reviewing court affirmed, holding that “[t]he victim . . . did not die as a result of the assault with the machete. The blow to her head was not fatal. Rather, the cause of death was strangulation. As such, the assault was a separate offense from the murder. Accordingly, the trial court did not err in submitting a felony murder instruction to the jury because the felonious assault did not merge into the homicide.” Carroll appeared to involve a slight time gap between the blow with the machete and the strangulation, and perhaps the result would be different if the non-fatal assault were followed immediately by the fatal one — for example, if A stabbed B during a fight, then immediately shot him. Or, to take the example a step further, if A shot B in the arm, then immediately and fatally in the chest.
Does the merger rule as expressed in Jones apply to felonies that are not denominated as assaults but involve similar conduct? For example, is felony child abuse subject to the merger rule? We have very little law in this important area. Several pre-Jones cases affirmed felony murder convictions based on felonies that are similar to assaults. See, e.g., State v. Wall, 304 N.C. 609 (1982) (discharging a firearm into an occupied vehicle); State v. Pierce, 346 N.C. 471 (1997) (felony child abuse). And while the court of appeals has continued to follow these precedents for the specific offenses involved, see, e.g., State v. Jackson, 189 N.C.App. 747 (2008) (discharging a firearm into an occupied vehicle), the holding of Jones calls the reasoning of these cases into question. For example, the Wall court acknowledged that, under the facts of that case, discharging a firearm into an occupied vehicle was in “integral part of the homicide,” and affirmed the conviction only because it rejected the merger doctrine that Jones, at least to some extent, endorsed. Perhaps the part-and-parcel assault rule can be limited to offenses denominated as assaults, but I’m inclined to think that the rationale for the rule applies with equal force to assault-like offenses with different names. If you disagree, please post a comment! In any event, I’m told that a case raising this issue is on appeal now, so perhaps we’ll have a definitive answer soon.
Because of a case currently pending in Gaston County — story here — several people have asked me about the law as it concerns scaring a person to death. Let me start off with two caveats. First, this post is not a comment on the Gaston County case, about which I know nothing more than what I read in the newspaper, or on any pending case. It’s just a little black-letter law on an interesting subject. Second, I will readily admit to having no special knowledge about the scientific or medical aspects of scaring someone to death. However, it seems like it is possible to scare someone to death, as reflected in a Scientific American article available here.
With those caveats in mind, let’s look at the law. One can imagine a scenario where grandson, the only heir to grandma’s fortune, is desperate to get his hands on the money. Grandma won’t turn it loose, and is threatening to change her will to leave all the money to her cat, Truffles, so grandson decides to kill her. Knowing that she has a weak heart, he puts on a hockey mask, hides behind a houseplant, and when the grandma walks by, he leaps out and makes menacing noises. She’s terrified, has a heart attack, and dies. That’s first-degree murder under the theory of premeditation and deliberation.
North Carolina law also provides that a killing “committed in the perpetration or attempted perpetration of any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon” is first-degree murder under the felony murder theory. G.S. 14-17. The killing need not be intentional. See, e.g., State v. Gibbs, 335 N.C. 1 (1993). So a defendant who puts on his hockey mask and jumps out from behind a streetlight with the intention of robbing a passer-by has committed first-degree felony murder if the victim is so terrified that he dies.
The felony murder doctrine applies even if the killing need not be a part of the commission of the underlying felony, so long as there is “an unbroken chain of events leading from the attempted felony to the act causing death, so that the homicide is part of a series of events forming one continuous transaction.” State v. Coleman, 161 N.C. App. 224 (2003) (internal quotation marks and citations omitted). A defendant’s attempt to escape apprehension for a crime is normally part of such a continuous transaction, so a killing committed during an attempt to escape normally falls within the felony murder rule. See, e.g., State v. Doyle, 161 N.C. App. 247 (2003). It sounds like that’s the basis of the charge in the Gaston County case, where the defendant, while trying to escape apprehension for a failed bank robbery, apparently broke into a house, which the state contends scared the elderly woman who lived there so much that she had a heart attack.
One can imagine scenarios where scaring someone to death results in other degrees of homicide, too. For example, a nursing home employee who, as a prank, not intending any harm, dresses in a terrifying costume and scares a resident to death might arguably exhibit the sort of extreme recklessness than can support a second-degree murder charge. Folks who can think of good scenarios for other degrees of homicide, feel free to post them in the comments section — it can be a sort of a macabre contest.
All interesting stuff, and of course, while it’s a hot issue in North Carolina right now, it isn’t limited to North Carolina. According to an article available here, there are at least a couple of cases elsewhere in which first-degree murder convictions have been based on a defendant’s scaring a victim to death. I imagine that these cases tend to involve a lot of expert testimony about the cause of death, with the state trying to prove that the heart attack was caused by the defendant’s conduct and the defense arguing that the victim was just in poor health and set to expire, regardless.