Finding a Lagniappe in Today's Already Great OSC Opinion
by: Ryan • August 24, 2011 • no comments
In today's OSC opinion, State v. Lopez-Minjarez, the Court upheld the defendant's convictions for kidnapping and burglary - which were the underlying predicates to the defendant's felony murder convictions - but reversed the convictions for felony murder. In so doing, the court provided a road map to challenging felony murder charges at trial.
I'm just going to quote the court and discuss the significance afterwards:
As noted, felony murder requires the jury to find that a participant in one of several specified felonies caused the victim's death "in the course of and in furtherance of the crime that the person was committing or attempting to commit[.]" ORS 163.115(1)(b).14 9 The requirement that the homicide be in the course and furtherance of the predicate felony is a familiar concept from the common-law crime of felony murder. As one authority describes it, "whether there is a sufficient causal connection between the felony and the homicide depends on whether the defendant's felony dictated his [or a coparticipant's] conduct which led to the homicide. If it did, and the matters of time and place are not too remote, the homicide may be 'in the commission of' the felony; but if it did not, it may not be." Wayne R. LaFave, 2 Criminal Law § 14.5(f), 466 (2d ed 2003); see generally State v. Rose, 311 Or 274, 285, 810 P2d 839 (1991) ("Something more than a mere coincidence of time and place, however, is necessary to show that the homicide occurred 'in the course of and in furtherance of' the felony. The statute also reaches a murder committed during "immediate" flight after the relationship between the robbery and the homicide."). Whether the felony was completed, terminated, or withdrawn from - any of which can be sufficient to break the causal connection between the felony and the homicide - generally depends on whether the homicide is incidental to the felony or part of a continuing sequence of events. See generally Erwin S. Barbre, Annotation, What Constitutes Termination of Felony for Purpose of Felony-Murder Rule, 58 ALR 3d 851 (1974) (collecting cases). That determination ordinarily is a question of fact for the jury. Id. § 5, 874-76 (collecting representative cases); see also Charles E. Torcia, 2 Wharton's Criminal Law § 151 (15th ed 1994) (stating general rule). [Emphasis added.]
In Lopez-Minjarez, one of the predicates for felony murder was the burglary of victim's home. However, the victim was taken from the home and driven quite a distance away before being shot and killed. (I'm leaving out the details about what occurred between leaving the residence and the murder.) Here's a simple question: had that burglary been completed well before the murder occurred simply because the parties were miles away from the house? And if it had been completed, did that sever the causal link between the burglary and the victim's death? (Assuming, for the purpose of this analysis, that the defendant neither personally nor intentionally killed the victim.)
Let's take a different example, inspired by a recent felony murder trial in Multnomah County. I'll change the facts somewhat to make a cleaner hypothetical. Home invasion robbery involving four co-defendants and four victims. One of the defendants is armed with a deadly weapon - a loaded firearm - but the gun is never discharged. Nevertheless, he is committing a robbery in the first degree (armed with a deadly weapon) and if the co-defendants intended that he was armed with a deadly weapon and they intended the robbery, they are also guilty as accomplices. Imagine that one of the victims is beaten up badly, and the victim dies a week later from his injuries. All of the defendants are charged with felony murder, and the underlying predicate is robbery in the first degree (armed with a deadly weapon/firearm).
Here's the thing, however: there wasn't a causal connection between robbery in the first degree and the death of the victim, because the firearm played no role in his death. It occurred simultaneously to the crimes that did cause his death, but the homicide was "incidental" to that particular crime. The exact same death would have occurred even if the gun were unloaded, even if the gun was a fake, even if the gun never existed. Yes, of course, other underlying felonies could serve as predicates if charged in this hypothetical, but for accomplices who didn't cause the death, a number of defenses to felony murder open up that might not exist otherwise.
Let me stress again, however, that this is an issue that begs for a jury instruction. If you think in terms of football, and that the jury must find the state reached the endzone in order to find your client guilty, it's important that it's the judge who tells them where the end zone is. It's your job to explain why the state didn't quite get there, but juries don't usually trust the players on the field to tell them where the endzone is.
