9.3: 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-degreearson (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.

425 P.3d 183
Court of Appeals of Alaska.
Brian Albert PFISTER, Appellant,
v.
STATE of Alaska, Appellee.
Court of Appeals No. A-12019
May 18, 2018

OPINION
Judge MANNHEIMER.

In November 2011, Brian Albert Pfister and two accomplices—Joseph Trantham and Maurice Johnson—decided to break into the home of a marijuana grower and rob him. Pfister waited outside while his two accomplices entered the marijuana grower’s home.

Once Trantham and Johnson were inside the home, they pistol-whipped the marijuana grower and demanded his money. The marijuana grower led Trantham and Johnson to his safe—where, unbeknownst to the robbers, he kept a handgun. The grower removed the handgun from the safe and used it to shoot Trantham and Johnson—mortally wounding both of them. Pfister ran away, but he was later arrested.

The State charged Pfister with first-degree burglary, first-degree robbery, and conspiracy to commit robbery. The State also charged Pfister with two counts of manslaughter, for causing the deaths of his two accomplices. Following a jury trial, Pfister was convicted of all these crimes.

In this appeal, Pfister challenges his two manslaughter convictions. He asserts that, under Alaska law, an accomplice to a dangerous felony cannot be convicted of manslaughter when the person who is killed as a result of the felony is another accomplice.

Pfister notes that, under Alaska law, he could not be convicted of felony-murder for the deaths of his accomplices. This is because the portion of the second-degree murder statute that defines felony-murder, AS 11.41.110(a)(3), expressly exempts situations where the person who dies during a violent felony is “one of the participants” in that felony.

Based on the fact that Alaska’s felony-murder statute does not cover situations where a felony results in the death of an accomplice to that crime, Pfister argues that the Alaska Legislature also must have intended to exempt accomplices to a felony from any criminal liability for the death of another accomplice. Thus, under Pfister’s view of the law, he could not be convicted of manslaughter or any other degree of criminal homicide based on the deaths of his two accomplices to the burglary and robbery in this case.

As we explain in this opinion, Pfister’s argument is inconsistent with the common law defining the crime of manslaughter. Based on that common law, and based on the hundred-year history of Alaska’s manslaughter statute, we conclude that Pfister’s proposed limitation on the crime of manslaughter is inconsistent with the intent of the Alaska Legislature. We therefore uphold Pfister’s two manslaughter convictions.

[…]

The common-law definition of manslaughter, and the related doctrines of felony-murder and misdemeanor-manslaughter

At common law, the crime of manslaughter was a residual category of unlawful homicide. Manslaughter was defined as any unlawful homicide committed without malice aforethought—that is, any unlawful homicide that was not murder.

Thus, whenever a person caused the death of another human being, and if that killing was neither justified nor excused, and if the killing did not constitute some form of murder, then the person was guilty of manslaughter.

One of the forms of murder recognized at common law was “felony-murder”. In the early days of the common law, this doctrine applied only to homicides that were caused during an attempt to perpetrate a felony—because, in those days, any completed felony was already punishable by death.

Later, when the law allowed lesser penalties for felonies, the felony-murder doctrine was altered to cover any unintended homicide that resulted from the perpetration or attempted perpetration of an inherently dangerous felony, or from any other felony that was perpetrated in a dangerous manner. In such instances, the common law viewed the defendant’s intent to commit the felony as “malice aforethought”—thus elevating the homicide to murder—even though the defendant had no intent to kill.

Because the only intent required for felony-murder was the intent to commit the felony, the felony-murder rule applied to deaths that were attributable to the commission of a felony even if those deaths were unforeseen or even quite unexpected:

If [the] intent [to commit the felony] is shown[,] the resulting homicide is murder even if it was quite accidental. … [For example,] if arson results in the death of a fireman who was trying to put out the fire, the arsonist is recognized as having caused this death and is guilty of murder under the felony-murder rule.

Indeed, even the accidental killing of an accomplice during the perpetration of the felony was felony-murder for this same reason.

The common law also recognized a related doctrine that is commonly referred to as the “misdemeanor-manslaughter” rule.

Under this rule, a person was guilty of manslaughter if they engaged in any unlawful act that was not covered by the felony-murder rule and, as a result, another person died.

The misdemeanor-manslaughter rule is sometimes treated as if it were a separate legal doctrine, distinct from (but related to) the felony-murder rule. However, in truth, the misdemeanor-manslaughter rule follows directly from the definition of manslaughter.

As we explained earlier, the common law defined manslaughter as any unlawful homicide that did not constitute murder. Thus, if a person engaged in an unlawful act, and if that act resulted in the unintended death of another human being, and if that death did not constitute felony-murder, then the crime was manslaughter.

[…]

Alaska’s current definitions of manslaughter and felony-murder

[U]nder Alaska’s pre-1980 criminal law, the crime of murder did not include unintended killings, even when those killings resulted from the perpetration of a felony. Instead, the crime of manslaughter encompassed all unintended killings that resulted from any unlawful act.

The drafters of Alaska’s current criminal code made significant changes to this area of the law. They created Alaska’s first true felony-murder rule, and they also made two substantive changes to the definition of manslaughter.

Alaska now has a felony-murder provision—AS 11.41.110(a)(3)—that mirrors the common-law doctrine of felony-murder in most respects. Under this statute, an unintended homicide is now murder (second-degree murder) if the homicide occurs during the commission or attempted commission of a specified serious felony:

(a) A person commits the crime of murder in the second degree if …

(3) under circumstances not amounting to murder in the first degree under AS 11.41.100(a)(3), while acting either alone or with one or more persons, the person commits or attempts to commit [one of the enumerated felonies] and, in the course of or in furtherance of that crime or in immediate flight from that crime, any person causes the death of a person other than one of the participants[.]

For purposes of the present appeal, the key aspect of this felony-murder provision is that it departs from the common-law rule with respect to the death of an accomplice. At common law, if an accomplice died during the perpetration of a felony, the surviving accomplices could be convicted of felony-murder. But under Alaska’s felony-murder statute, a person cannot be convicted of felony-murder based on the death of one of the other participants in the felony.

The drafters of AS 11.41.110(a)(3) did not explain why they placed this limitation on the scope of the felony-murder doctrine. However, Professor LaFave notes that several other modern criminal codes contain this same limitation on the felony-murder rule. And some modern appellate court decisions have reached this conclusion as a matter of statutory interpretation—although this approach is certainly not unanimous.

Turning to the crime of manslaughter, the drafters of our current criminal code modified the definition of this crime in two substantive ways.

First, negligent homicide became a crime in its own right—defined separately from manslaughter, and punishable by a lesser penalty. See AS 11.41.130.

Second, the drafters of our criminal code decided to abolish the “misdemeanor-manslaughter” rule—the rule that a person was guilty of manslaughter if they unintentionally caused the death of another human being while perpetrating any unlawful act (unless the unlawful act was the kind that would support a conviction for felony-murder).

The drafters abolished the misdemeanor-manslaughter rule by defining manslaughter in a new way. Under the drafters’ manslaughter statute, AS 11.41.120(a), it was no longer sufficient for the government to prove that the defendant acted with the intent to commit an unlawful act, and that a death ensued. Instead, the government would have to prove that the defendant acted either intentionally, knowingly, or recklessly with regard to the possibility that their conduct might cause the death of another human being:

(a) A person commits the crime of manslaughter if the person … intentionally, knowingly, or recklessly causes the death of another person under circumstances not amounting to murder in the first or second degree.

Former AS 11.41.120(a) (pre-2006 version).

By requiring proof of one of these three culpable mental states, the manslaughter statute effectively abolishes the misdemeanor-manslaughter rule—a rule that did not require proof of any culpable mental state apart from the intent to perpetrate an unlawful act.

(The manslaughter statute omits “negligence” from the list of culpable mental states because, as we explained earlier, criminally negligent homicide is now independently defined as a lesser crime.)

Why we conclude that, even though Pfister cannot be convicted of felony-murder for the deaths of his accomplices, he can be convicted of manslaughter for these deaths

As we explained at the beginning of this opinion, Pfister was convicted of two counts of manslaughter based on the deaths of his two accomplices in the robbery. Pfister argues that the Alaska Legislature did not intend the manslaughter statute to apply to situations like his.

Pfister notes that AS 11.41.110(a)(3) expressly exempts people in his situation from conviction for second-degree murder under a felony-murder theory. Based on this, Pfister argues that the legislature must also have intended for there to be no lesser criminal liability for people in his situation—and that, therefore, he cannot be convicted of manslaughter based on the deaths of his two accomplices.

We conclude that when an accomplice to a felony is killed by the victim, or by police officers responding to the crime, Alaska law allows the surviving accomplices to be prosecuted for manslaughter (or for the lesser offense of criminally negligent homicide).

We reach this conclusion because the crime of manslaughter requires proof of an element beyond the elements of felony-murder. Unlike the crime of felony-murder, manslaughter requires proof that the defendant acted with a culpable mental state (either intentionally, knowingly, or recklessly) regarding the possibility that their conduct would cause the death of another human being. The crime of felony-murder, on the other hand, only requires proof that the defendant acted with the intent of perpetrating one of the felonies listed in AS 11.41.110(a)(3).

It will often be true that a defendant’s intent to commit one of these listed felonies will be strong evidence that the defendant acted at least recklessly regarding the possibility that someone would die. But this is not invariably so. That is why the drafters of our criminal code rejected the misdemeanor-manslaughter doctrine and, instead, insisted on proof that the defendant acted at least recklessly with regard to the possibility that someone would die as a result of their actions.

Moreover, in these situations, we see no inconsistency between a legislative policy to spare defendants the severe penalties of second-degree murder while, at the same time, subjecting these defendants to the lesser penalties of manslaughter or criminally negligent homicide.

We acknowledge that our manslaughter statute does not expressly call for this result. But as we have explained, the crime of manslaughter is—and traditionally has been—a residual category of unlawful homicide, encompassing the various types of unlawful killings that do not constitute some form of murder.

Thus, for example, no provision of Alaska law expressly states that an intentional homicide committed in the heat of passion is manslaughter. Instead, AS 11.41.115(a) simply declares that heat of passion is a defense to murder. But because an unlawful intentional killing in the heat of passion is not murder, it is manslaughter under AS 11.41.120.

The same principle applies to Pfister’s case. Under our second-degree murder statute, a homicide that results from the commission of a felony does not constitute felony-murder if the person killed was an accomplice to the felony. But because the killing is not murder, it falls within the residual category of manslaughter if the State can prove (1) that the defendant’s conduct was a substantial factor in causing the death, and (2) that the defendant acted at least recklessly with respect to the possibility that someone would die as a result of their actions.

For these reasons, we hold that Pfister could lawfully be convicted of manslaughter for the deaths of his two accomplices.

[…]

Conclusion

Pfister’s two convictions for manslaughter are AFFIRMED[.]

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).

Exercises

Answer the following questions. Check your answers using the answer key at the end of the chapter.

1. Fred, visiting from Seattle, violently stole a vehicle in the Anchorage downtown parking garage. The victim of the carjacking reported that Fred walked up to him while he was getting in his car, pointed a gun at him, and demanded the car keys. The victim turned over the key and Fred drove away without incident. The following day, Fred struck and killed a pedestrian, while driving the stolen vehicle in downtown Wasilla. Is Fred guilty of second-degree murder under the felony murder rule? Why or why not?
2. Kurt robs a convenience store at gunpoint. As the cashier hands him money out of the cash register, Kurt hears a siren and runs outside, stuffing the money in his pockets. He sees a dark alley and dashes into it. While he crouches there waiting for the police to leave, a homeless person living in the alley taps him on the shoulder. Startled, Kurt spins around and shoots and kills the homeless person. Is this felony murder? Explain your answer.