Unanimity and Felony Murder

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.