Felony Murder

One theory of second-degree murder is felony murder.  Felony murder is a criminal homicide that occurs during the commission or attempted commission of an inherently dangerous felony. Under Alaska’s felony murder rule, a defendant is guilty of second-degree murder if the defendant commits one of the enumerated felonies and during the course of the felony, a person (other than an accomplice) dies. Most states and the federal government include felony murder in their respective penal codes, although it has not been universally adopted.

Figure 9.6 Alaska Criminal Code – Felony Murder Rule

Under Alaska’s felony murder rule, the defendant does not have to act with malice or with a “murderous intent.” Instead, the defendant’s malice is “transferred” or imputed from the malice involved in the commission of the underlying felony.  In some ways, the felony murder rule is similar to the Natural and Probable Consequences Doctrine. When a defendant commits an inherently dangerous felony, he or she does so reasonably aware that an innocent victim may die. The defendant’s malice is implied in the decision to commit the felonious act. The felonies that create a foreseeable risk of violence or death include arson, kidnapping, sexual assault, sexual abuse of a minor, burglary, escape, robbery, and drug-trafficking. One inherently dangerous felony that is omitted is felony assault. This is because a death that results from an assault is already covered in traditional theories of second-degree murder.

Alaska law also includes an aggravated felony murder rule: if a person commits a sexual offense or kidnapping against a minor, first-degree criminal mischief, or first-degree terroristic threatening, and during the course of the offense another person dies (other than a co-participant), the perpetrator is guilty of first-degree murder, not second-degree murder. AS 11.61.100(a)(3)-(a)(5).

Felony murder covers all killings that occur during the course of, in furtherance of, or the immediate flight from, one of the enumerated felonies. Defendants are responsible for any deaths a non-coconspirator that occur throughout the felonious enterprise. Because the purpose of the felony-murder rule is to diminish the risk of unintentional or even accidental killings during the commission of violent felonies, it is a controversial criminal law doctrine.  The doctrine authorizes significant penalties for otherwise purely “accidental” deaths. As you explore the felony murder rule below, ask yourself whether the felony murder rule is a fair and just application of criminal liability.

Example of Felony Murder

Jackie, who has just lost her job, decides to burn down her apartment building because she cannot afford to pay the rent. Jackie carefully soaks her apartment with lighter fluid, exits into the hallway, and throws a lit, lighter-fluid-soaked towel into the apartment. She then runs outside to watch the entire building burn down. Jackie forgot that the apartment building is occupied by several other residents. As the apartment burns, several tenants die of smoke inhalation while trapped inside.

In this example, Jackie did not intend to kill the tenants. However, she did have the criminal intent necessary for first-degree arson (i.e., intentionally setting a fire that recklessly endangers another person). AS 11.46.400. In Alaska, Jackie is guilty of second-degree murder under the felony murder rule for each death. Jackie is also guilty of first-degree arson. Jackie will receive separate punishments for each conviction. Under this scenario, Jackie intentionally engaged in conduct that created a foreseeable risk that other people would be seriously injured or killed.

Co-Felon Liability

It is common for defendants to collaborate on criminal activity. As we have seen, both accomplice liability and conspiracy may place criminal responsibility squarely on a defendant who did not commit the offense when defendants cooperate in criminal activity. The felony murder rule is an extension of this concept. If one defendant kills a person during the commission of a felony, then all accomplices involved in the felony are guilty of murder.  AS 11.41.110(a)(3). This is true even if the accomplice did not intend or anticipate anyone would be killed or injured.

Example of Co-Felon Liability

Joe and Jane dream up a plan to rob a local bank.  They both agree that Joe will be the primary robber and will enter the bank, armed with a pistol, and hand a note to the teller that demands all of the money in the till.  Jane’s role will be more limited – they agree that Jane will drive the getaway car; Jane will wait outside the front door with the motor running and drive Joe away from the bank after the robbery. On the day of the robbery, Jane drives them to the bank and Joe walks in, armed with a pistol.  After Joe passes the note to the teller, the teller frantically summons the security guard.  As the security guard approaches, Joe panics and pulls out the gun. Several customers start to scream.  In all of the excitement, Joe accidentally shoots an elderly lady standing next to the security guard, killing the customer instantly.

In this case, Joe and Jane are both guilty of second-degree murder under the felony-murder rule.  As we have previously discussed, Jane is an accomplice to Joe’s first-degree robbery under accomplice liability. But Joe and Jane are also both guilty of murder, even though neither had an intent to kill (or seriously injure) anyone during the bank robbery. The felony-murder rule allows both to be held criminally liable for second-degree murder because it is reasonably foreseeable that a person may be killed during a bank robbery.

Exceptions to Co-Felon Liability for Felony Murder

As you can see, the felony-murder rule has broad reach.  Two important exceptions exist.  First, a person cannot be convicted of felony-murder when the death is to one of the other participants in the felony (i.e., accomplice). Alaska’s felony-murder statute expressly excludes criminal liability if the person killed is one of the participants.

Example of Exception to Co-Felon Liability for Felony Murder

Let’s change the hypothetical of Joe and Jane.  Assume that instead of Joe shooting the elderly lady, let’s assume that the security guard shoots and kills Joe. Under this scenario, Jane would not be guilty of second-degree murder under the felony murder rule for Joe’s death. Although Joe’s death occurred during the commission of the robbery, the felony-murder statute expresses excludes the death of a co-participant from the rule.

Jane is still guilty of first-degree robbery, but under traditional accomplice liability principles. And, as you will see next, Jane is also likely guilty of manslaughter for Joe’s death.

Pfister v. State, 425 P.3d 183 (Alaska App. 2018)

Alaska’s felony murder statute expressly prohibits holding a defendant responsible for second-degree murder if the death is to a co-felon. But does that mean the defendant is excused of all criminal liability for the resulting homicide? The next case, Pfister v. State, answers that question.

Affirmative Defense to Felony Murder

Defendants also have a limited affirmative defense to felony murder. If the defendant did not actually commit the act that killed the victim, nor had knowledge, or awareness, that the death might occur, the defendant may avoid liability under the felony murder rule. AS 11.41.115(b). As an affirmative defense, the defendant bears the burden of proving each element, including that the defendant “had no reasonable ground to believe that another participant, if any, intended to engage in conduct likely to result in death or serious physical injury.” AS 11.41.115(b)(4).

Figure 9.7 Alaska Criminal Code – Felony Murder Affirmative Defense

Example of Affirmative Defense to Felony Murder

Assume that Sue and Sam dream up a plan to “defraud” a local bank (instead of robbing it like Joe and Jane). Sue works as a teller at the bank. Sam and Sue agree that Sam will come into the bank unarmed and act as a customer.  Sam will fake that he has a gun in his pocket, and Sue will give Sam the money, pretending to be scared. Sue agrees not to activate the bank’s silent alarm. Without informing Sue, Sam brings a real gun into the bank, “just in case.” The security guard sees Sue handing Sam large amounts of cash. Suspicious, the security guard begins to approach Sam. Sam notices the guard, frantically pulls out the gun, and shoots the guard, killing him instantly.

In this scenario, Sue may have a valid defense to a second-degree murder charge. Although Sue had the intent to participate in the “representation” robbery, the jury could determine that Sue had neither knowledge nor awareness that Sam had a real gun, or that Sam was likely to engage in conduct likely to result in death or serious physical injury. Thus, it is possible that only Sam would be guilty of second-degree murder under the felony murder rule (because Sam committed first-degree robbery).

Felony Murder Merger Doctrine

The purpose of the felony murder rule is to protect human life and deter defendants from committing dangerous felonies, or failing that, to encourage felons to be extremely careful when committing specific inherently dangerous crimes. See Todd v. State, 884 P.2d 668, 671 (Alaska App. 1994). For this reason, the felony murder rule allows a defendant to be punished for both the underlying felony and the unintentional death. This is true even though it is impossible to commit felony murder without committing the underlying felony.  Punishment for both crimes – second-degree murder and the underlying felony – does not violate double jeopardy. See id. at 684.

The exception to this rule is when a defendant breaks into a house with the intent to kill the occupant. Normally, this conduct would constitute both first-degree burglary and second-degree murder (under the felony murder rule), but under the felony murder merger doctrine, the burglary merges with the murder. AS 11.41.115(c). The felony murder rule does not apply. Instead, the defendant may be convicted of intentional murder (first-degree murder) and the underlying burglary if the circumstances warrant it. Similarly, if the defendant breaks into a house with the intent to commit a different crime (like theft), and another person is killed, the defendant may be convicted of both felony murder and the underlying burglary. The felony murder merger doctrine does not apply.

Lack of Concurrence

Recall that under the felony murder rule, a defendant is guilty of murder if the death occurs “in the course of or in furtherance of that crime or in immediate flight from” the underlying felony. AS 11.41.110(3). Thus, the statute necessarily requires a nexus between the felony and the death.  The felony and the death must be part of the same continuous criminal transaction. If the death occurs before or after the commission of the felony, the defendant is not guilty of felony murder. Likewise, if the felony occurs after the death, the felony murder rule does not apply. See e.g., Hansen v. State, 845 P.2d 449, 452 (Alaska App. 1993). Under either scenario, there is a lack of concurrence between the volitional act (the death during a felony) and the culpable mental state (the intent to commit the underlying felony).

Felony Occurring After Death

Susan decides to confront her long-time drug dealer, Vince, because she believes that Vince has “shorted” her on numerous prior occasions. Susan meets Vince at his apartment to discuss his poor business practices. No drug deal takes place, but nonetheless, an argument ensues, and Susan pushes Vince down a flight of stairs, in a fit of rage. Vince dies instantly. Susan, convinced that she is going to be arrested, lights a large fire inside the apartment and flees.

In this case, it is unlikely that Susan is guilty of felony murder (although she may be guilty of a different classification of criminal homicide). The scenario suggests that Susan started the fire after the homicide, in an effort to cover up evidence of the crime. The death did not occur during, or in furtherance of, the underlying felony (arson).

Death Occurring After Felony

The issue that more commonly arises is when the death occurs after the felony. The defendant may try to avoid criminal liability by arguing that the underlying felony was completed before the death occurred.  Such a defense requires the trier of fact to determine when the felony ended. Some jurisdictions look to whether a defendant has reached a place of temporary safety. The place need not be a formal location like the defendant’s residence; it could simply be a hiding place.  See e.g., California v. Wilkins, 295 P.3d 903 (Cal. 2013). Most jurisdictions, however, employ various factors, including the time between the felony and the killing, the distance between the felony and the death, and whether there is evidence of abandonment or renunciation of the underlying felonious objective. See generally, What Constitutes Termination of Felony for Purpose of Felony-Murder Rule, 58 A.L.R.3d 851 (1974). In the end, if the felony and killing are part of one continuous transaction, then the felony murder applies. If the felony and killing are separate and distinct, then the felony murder rule is inapplicable. For example, a defendant was guilty of felony murder when the defendant killed the victim immediately following a sexual assault in an effort to conceal his crime. Conversely, a defendant was not guilty of felony murder when he killed a sexual assault victim after he learned that the victim was going to alert law enforcement of the sexual assault. Compare Montana v. Perry, 505 P.2d 113 (Mont. 1973) with Minnesota v. Murphy, 380 N.W.2d 766 (Minn. 1986).