when the homicide is accidental
by: Ryan • April 17, 2014 • one comment
Today, in State v. Serrano, the Oregon Supreme Court rejected the the multiple challenges to aggravated felony murder as unpreserved.
One of the arguments was that "because the victims 'deaths were not a "foreseeable result" of his act of burglary. In support of the "foreseeable result" aspect of his argument, defendant relies on Professor LaFave's statement that, "[i]n most jurisdictions even more than a but-for causal relationship is required, the usual rule being that the death must be the foreseeable or natural result of the felony." LaFave, 2 Substantive Criminal Law at 465."
The Oregon Supreme Court concluded, among other things, that both the legal and factual issues was not "obvious," and so could not be addressed as plain error. In reaching that conclusion, the opinion includes the sentence, "[The] principal purpose of that construct is to address the dilemma of unintended or coincidental killings committed by the defendant or another person in the course of the commission of a predicate felony. See LaFave, 2 Substantive Criminal Law at 452-59."
Unintended, coincidental, unforeseeable. Good words in the right case. But more than that. If this were the law, it would help avoid felony murder sentences that aren't commensurate with the actions the defendant committed.
Obviously, if this may be an issue in your case, you would want to preserve it not just with a motion for judgment of acquittal but also a special jury instruction. The reason for the latter is this: if you are right about the law, the appellate courts could still affirm the denial of an MJOA because of the facts of the case. On the other hand, if you are right about the law, and there are facts to support the argument, denial of a special jury instruction would almost certainly result in reversal.
