Three Challenges to Felony Murder

Latest revision as of 17:23, May 19, 2025

Felony murder occupies an unusual place in the murder firmament. It does not require an intent to kill. Nor does it require the defendant kill the victim. Yet it carries the exact same sentence as any other murder in the 2nd degree (live, with a 25 year mandatory minimum before eligibility for parole). Given that significantly less culpability is built into the offense, it seems to me that every felony murder conviction is vulnerable to a challenge under Article I, section 16. But that's not the point of today's post.

Instead I want to discuss three challenges to felony murder. The first applies to every felony murder. The second is limited to those situations where the defendant's only role is as an accomplice to the predicate felony. And the third applies to a very specific theory of felony murder: when a child dies from injuries sustained during an assault in the second degree.

I learned of the first one from a press release from the Oregon Supreme Court from March, 2025. It stated in relevant part that the court had granted review to:

State of Oregon v. Ryan Thomas Monaco, 336 Or App 684, 561 P3d 650 (2024) (A177164) (S071665) (on review from the Multnomah County Circuit Court)

Defendant has been granted review of the Court of Appeals decision that affirmed his convictions for arson, felony murder, and other crimes.

Prior to being indicted for those crimes, defendant was arrested and interrogated by police about his involvement. After being charged by indictment, but before trial, defendant demurred to the indictment, arguing that the felony murder charges violated due process protections because an applicable statute, ORS 163.115, required the factfinder prove only the mental state for the underlying felony, rather than the requisite mental state for causing a death. The trial court denied defendant’s demurrer. Defendant also moved pretrial to suppress all statements that he had made to police during his interrogation, contending that they had been involuntary, but the trial court denied that motion, concluding that the state had met its burden to prove that defendant's statements were voluntary.

Defendant appealed, and the Court of Appeals affirmed. Defendant petitioned for review.

On review, the issues are:

(1) Whether ORS 163.115(1)(b), Oregon's felony-murder statute, violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

The second issue I stumbled on by randomly watching oral argument videos on the COA webcasting page. In this case, I had the pleasure of stumbling upon Laura Frikert's argument in State v. McLeod.

The following summary of the argument is taken from Laura's wonderful opening brief:

3a. Accomplice liability is a form of vicarious liability that makes a person liable for the conduct of another. Accomplice liability is available to the prosecution as provided for by a specific criminal statute, ORS 161.155(1) or, if not provided in a specific statute, as provided for by ORS 161.155(2). The felony murder statute is a specific criminal statute that allows for accomplice liability. Because the felony murder statute provides for accomplice liability as contemplated by ORS 161.155(1), accomplice liability under ORS 161.155(2) is not available to the state to establish a conviction for felony murder.

3b. The legislature’s intention to allow for accomplice liability either under ORS 161.155(1), as provided for by a specific criminal statute, or if not provided by a specific statute, as provided for by ORS 161.155(2), is apparent, obvious, and not reasonably in dispute as a matter of statutory construction. Therefore, the trial court plainly erred when it failed to enter a motion for judgment of acquittal on Count 1, felony murder, because the state’s theory that defendant committed felony murder relied on ORS 161.155(2).

The third involves the necessary mental state for felony murder when the defendant has committed assault of a child, causing serious physical injury, and the child subsequently dies. The state believes that to be guilty of this offense, the defendant only needs to be negligent as to the element of serious physical injury. But the legislative history for this specific theory of felony murder demonstrates (remarkably unambiguously) that the defendant must know they are causing serious physical injury or must intend to do so. If you want the briefing and legislative history on this issue, feel free to e-mail me.