catbrown91
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- North Carolina
if a predicate/underlying felony is dismissed during jury charge conference, can the defendant be found guilty of felony murder using the dismissed felony
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Need some serious help.
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army judge
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Are you certain you're using the correct terminology?
The Jury Charge Conference: Tips for Trial Counsel
Jury instructions and the verdict form are the keys a jury needs to unlock the proper analysis of the evidence and argument at trial, rendering the jury charge conference a critical aspect of any successful trial strategy.
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The Jury Charge Conference: Tips for Trial Counsel
Jury instructions and the verdict form are the keys a jury needs to unlock the proper analysis of the evidence and argument at trial, render
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adjusterjack
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Catbrown91 would be foolish to discuss his crimes on a public website.
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army judge
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Felony Murder Rule, as applied in NC
With that background, what about the second question: suppose that an innocent bystander has been killed during a shootout between the defendant and another person, but it cannot be determined who fired the fatal shot. The defendant stands charged with several qualifying felonies, such as discharging a firearm into occupied property or assault with a deadly weapon with intent to kill his original target. May he also be prosecuted for felony murder based on the bystander's death?
In a foreseeability/proximate cause jurisdiction, that's an easy yes. It doesn't matter whether the fatal shot was fired by the other person, or if that other person was acting lawfully in self-defense, because the defendant remains liable for the consequences. See, e.g., Commonwealth v. Devine, 26 A.3d 1139 (Pa. Super. Ct. 2011) (where defendant initiated a gun battle on a crowded street and victim was caught in the cross-fire, the finder of fact "could reasonably infer a causal nexus" between defendant's conduct and decedent's death).
But is a felony murder prosecution possible on these facts in an agency state like ours? After all, there is at least a 50% chance that the fatal shot was fired by the other person, who was not an accomplice of the defendant. Even if the state somehow got past a motion to dismiss and a skeptical jury, Bonner, Oxendine, and Williams tell us that a felony murder conviction couldn't possibly hold up on appeal.
Right…?
Well, maybe not. See State v. Platt, 85 N.C. App. 220 (1987). In Platt, two rival gangs got into a fight near an apartment that served as one gang's "fortress." The fight escalated into a mutual shootout, and "during this shootout, five persons in the vicinity of apartment 231 were shot." The defendant was unquestionably a participant, but he argued that his charges should have been dismissed because the evidence showed only that "gunfire erupted from all directions during a fight between two rival groups resulting in wounds to the five victims but failed to show who actually shot any of the victims." The Court of Appeals disagreed and affirmed his conviction, holding that since the evidence showed the victims were shot during "a shootout between two rival gangs, the jury could reasonably infer that defendant, either solely or while acting in concert with other members of the 'Platt' group, inflicted these injuries during the shootout." Therefore, it was properly left up to the jury to decide "whether the facts, taken singly or in combination, satisfy them beyond a reasonable doubt that the defendant is actually guilty."
Granted, Platt was only addressing assault charges rather than felony murder, but it suggests that it should be left up to the jury to decide whether the identity of the shooter is known or unknown. See also State v. Frione, 248 N.C. App. 303 (2016) (unpublished) (felony murder is inapplicable if "an adversary, not an accomplice, committed the deadly act," but affirming conviction in this case where an attempted robbery turned into a four-way shootout because circumstantial evidence indicated the fatal bullet most likely came from defendant's gun).
Adversary or Mutual Combat?
Critics of this post will correctly point out that I just cheated. If there is a factual basis to determine who likely fired the fatal shot, then the shooter's identity is not truly "unknown." That's no help at all in resolving situations where it's genuinely impossible to determine whether the fatal act was caused by the defendant, an accomplice, or an adversary. In an agency state, the inability to identify which side (accomplice or adversary) caused the death makes any felony murder prosecution a practical impossibility for all the reasons given above.
Right…?
In an obvious case of self-defense, probably so. But in many other cases, perhaps not. Think about the types of cases where the identity of the person who committed the fatal act is most likely to be in question. Real world examples could include shootouts between rival gangs, drug deals gone wrong, road rage that escalates to gunfire, or even violent confrontations between opposing groups at protests. In some of those cases, the underlying violence might be more accurately characterized as "mutual combat" rather than self-defense.
A growing number of courts have held that when both sides choose to engage in violence, they become de facto accomplices for felony murder purposes because they are aiding and abetting each other in carrying out the conflict, even though they are also adversaries who are trying to harm or kill each other. Therefore, a defendant who willingly participates in the violence can be held liable for any resulting deaths, even if it cannot be determined whether it was directly caused by him or an adversary, because either way it was caused by an aider and abettor to the underlying crime. See, e.g., State v. Young, 838 S.E.2d 516 (S.C. 2020) ("Today, we extend our jurisprudence and hold that each participant who willingly engages in mutual combat may be held accountable for the death or injury of an innocent bystander resulting from that confrontation. As each combatant aids and encourages the others to fire and continue firing the hail of bullets that results in a victim's death or injury, each may be found guilty under the 'hand of one is the hand of all' theory of accomplice liability"); State v. Spates, 779 N.W.2d 770 (Iowa 2010) ("the acts of a defendant engaged in mutual combat can be the proximate cause of injury to an innocent bystander that directly results from the act of another combatant" because "participants in mutual combat encourage each other to engage in the potentially lethal conduct that leads to the injury of innocent bystanders, thereby supporting liability as an aider and abettor").
Would that theory work in North Carolina? It seems to satisfy both prongs of Bonner, since: (i) the fatal act is now attributable to an accomplice; and (ii) a willing participant in mutual combat is not acting lawfully in self-defense. On the other hand, our case law has consistently foreclosed felony murder liability for the acts of an "adversary," which the defendant's opponent clearly still is. We have plenty of cases addressing mutual combat in relation to claims of self-defense and conventional murder, but I have not yet seen one that applies it in the context of imposing felony murder liability. (As always, please correct me in the comments if I'm wrong.) Platt seems like a potential first step, but it only characterized the defendant as acting in concert with other members of his own group, not his adversaries.
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With that background, what about the second question: suppose that an innocent bystander has been killed during a shootout between the defendant and another person, but it cannot be determined who fired the fatal shot. The defendant stands charged with several qualifying felonies, such as discharging a firearm into occupied property or assault with a deadly weapon with intent to kill his original target. May he also be prosecuted for felony murder based on the bystander's death?
In a foreseeability/proximate cause jurisdiction, that's an easy yes. It doesn't matter whether the fatal shot was fired by the other person, or if that other person was acting lawfully in self-defense, because the defendant remains liable for the consequences. See, e.g., Commonwealth v. Devine, 26 A.3d 1139 (Pa. Super. Ct. 2011) (where defendant initiated a gun battle on a crowded street and victim was caught in the cross-fire, the finder of fact "could reasonably infer a causal nexus" between defendant's conduct and decedent's death).
But is a felony murder prosecution possible on these facts in an agency state like ours? After all, there is at least a 50% chance that the fatal shot was fired by the other person, who was not an accomplice of the defendant. Even if the state somehow got past a motion to dismiss and a skeptical jury, Bonner, Oxendine, and Williams tell us that a felony murder conviction couldn't possibly hold up on appeal.
Right…?
Well, maybe not. See State v. Platt, 85 N.C. App. 220 (1987). In Platt, two rival gangs got into a fight near an apartment that served as one gang's "fortress." The fight escalated into a mutual shootout, and "during this shootout, five persons in the vicinity of apartment 231 were shot." The defendant was unquestionably a participant, but he argued that his charges should have been dismissed because the evidence showed only that "gunfire erupted from all directions during a fight between two rival groups resulting in wounds to the five victims but failed to show who actually shot any of the victims." The Court of Appeals disagreed and affirmed his conviction, holding that since the evidence showed the victims were shot during "a shootout between two rival gangs, the jury could reasonably infer that defendant, either solely or while acting in concert with other members of the 'Platt' group, inflicted these injuries during the shootout." Therefore, it was properly left up to the jury to decide "whether the facts, taken singly or in combination, satisfy them beyond a reasonable doubt that the defendant is actually guilty."
Granted, Platt was only addressing assault charges rather than felony murder, but it suggests that it should be left up to the jury to decide whether the identity of the shooter is known or unknown. See also State v. Frione, 248 N.C. App. 303 (2016) (unpublished) (felony murder is inapplicable if "an adversary, not an accomplice, committed the deadly act," but affirming conviction in this case where an attempted robbery turned into a four-way shootout because circumstantial evidence indicated the fatal bullet most likely came from defendant's gun).
Adversary or Mutual Combat?
Critics of this post will correctly point out that I just cheated. If there is a factual basis to determine who likely fired the fatal shot, then the shooter's identity is not truly "unknown." That's no help at all in resolving situations where it's genuinely impossible to determine whether the fatal act was caused by the defendant, an accomplice, or an adversary. In an agency state, the inability to identify which side (accomplice or adversary) caused the death makes any felony murder prosecution a practical impossibility for all the reasons given above.
Right…?
In an obvious case of self-defense, probably so. But in many other cases, perhaps not. Think about the types of cases where the identity of the person who committed the fatal act is most likely to be in question. Real world examples could include shootouts between rival gangs, drug deals gone wrong, road rage that escalates to gunfire, or even violent confrontations between opposing groups at protests. In some of those cases, the underlying violence might be more accurately characterized as "mutual combat" rather than self-defense.
A growing number of courts have held that when both sides choose to engage in violence, they become de facto accomplices for felony murder purposes because they are aiding and abetting each other in carrying out the conflict, even though they are also adversaries who are trying to harm or kill each other. Therefore, a defendant who willingly participates in the violence can be held liable for any resulting deaths, even if it cannot be determined whether it was directly caused by him or an adversary, because either way it was caused by an aider and abettor to the underlying crime. See, e.g., State v. Young, 838 S.E.2d 516 (S.C. 2020) ("Today, we extend our jurisprudence and hold that each participant who willingly engages in mutual combat may be held accountable for the death or injury of an innocent bystander resulting from that confrontation. As each combatant aids and encourages the others to fire and continue firing the hail of bullets that results in a victim's death or injury, each may be found guilty under the 'hand of one is the hand of all' theory of accomplice liability"); State v. Spates, 779 N.W.2d 770 (Iowa 2010) ("the acts of a defendant engaged in mutual combat can be the proximate cause of injury to an innocent bystander that directly results from the act of another combatant" because "participants in mutual combat encourage each other to engage in the potentially lethal conduct that leads to the injury of innocent bystanders, thereby supporting liability as an aider and abettor").
Would that theory work in North Carolina? It seems to satisfy both prongs of Bonner, since: (i) the fatal act is now attributable to an accomplice; and (ii) a willing participant in mutual combat is not acting lawfully in self-defense. On the other hand, our case law has consistently foreclosed felony murder liability for the acts of an "adversary," which the defendant's opponent clearly still is. We have plenty of cases addressing mutual combat in relation to claims of self-defense and conventional murder, but I have not yet seen one that applies it in the context of imposing felony murder liability. (As always, please correct me in the comments if I'm wrong.) Platt seems like a potential first step, but it only characterized the defendant as acting in concert with other members of his own group, not his adversaries.
Felony Murder: Limits of Agency – North Carolina Criminal Law
Under the felony murder rule, a death that occurs as the proximate result of the commission or attempted commission of another qualifying crime (robbery,
nccriminallaw.sog.unc.edu
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