Death During the Felony

Death During the Felony

The earlier sections asked which felonies can supply malice and how the felony fixes the degree of murder. This section asks when the killing must happen in relation to the felony. California's section 189 answers in a phrase: a killing committed in the perpetration of, or an attempt to perpetrate, a listed felony is first-degree murder. In People v. Stamp the court applied that language to robbery and held that the result is the same whether the killing was willful, deliberate, and premeditated or merely accidental or unintentional.¹ That phrase is the timing requirement. It marks off the stretch of time and activity within which the intent to commit the felony stands in for malice, and a death outside that stretch cannot borrow the felony's mental state.

The reason for tying the death to the course of the felony lies in what the substitution does. The rule dispenses with any inquiry into the defendant's mental state toward the death and treats the felonious purpose itself as the culpable mental state. That purpose is a fact about a particular stretch of conduct, the period in which the defendant is carrying out or trying to carry out the crime. During that period the defendant has chosen to create the risk of violence that the crime brings with it. A death that comes while the enterprise is under way is the realization of that chosen risk, and the law can fairly charge it to the felon. A death with no tie to the enterprise realizes some other risk, and the felony intent has nothing to say about it. The same structure serves the rule's deterrent aim, because a felon can be deterred only by a boundary that is knowable in advance, and the course of the crime is a boundary the felon controls.

The statutory phrase has two halves, and each does separate work. The word perpetration reaches killings during the felony itself, and the words attempt to perpetrate reach killings during a felony that was never completed. Each half raises its own questions, so the next two sections take them in turn: first attempts, then the continuous-transaction principle that decides how far the felony's course extends in time.

Stamp shows how generously the timing operates. Two armed men held up a business, and its owner, who had advanced heart disease, suffered a fatal attack between fifteen and twenty minutes later; the court rejected the argument that the felony-murder rule was inapplicable.² The court explained that the killing need not occur at the moment the felony is being committed, and need not be a part of the felony or of the felon's plan. It is enough that the felony and the killing are parts of one continuous transaction, with no technical inquiry into whether the robbery had been completed or abandoned before the homicide was finished.³ Compare two killings by the same offender. In the first, a burglar's struggle with a startled resident during the break-in ends in the resident's accidental death. In the second, the same burglar kills an acquaintance in a bar fight months after the burglary has ended and the loot has been sold. The first death occurs in the course of the burglary and falls within the rule. The second shares no episode with the felony, so nothing links the later act to the felonious purpose.

The common error on an exam stem is to ask whether the felony was technically complete when the victim died, and to deny liability if the defendant had already taken the property or left the scene. Stamp rejected that kind of inquiry, so the question is whether the felony and the killing form a single connected episode. A stem that shows one unbroken sequence satisfies the timing requirement, and a stem that shows a gap with no connecting thread does not. The first of the two timing rules, the coverage of attempts, comes next.

Attempted Felonies

California's section 189 reaches a killing committed "in the perpetration or attempt to perpetrate" a listed felony, and the second half of that phrase means the felon does not have to finish the crime for the felony intent to stand in for malice.⁴ The general statement of the doctrine says the same thing: a death resulting from the commission or attempted commission of a felony is murder.⁵ People v. Stamp applied section 189 on that footing, holding that a killing in either the perpetration of or an attempt to perpetrate robbery is first-degree murder, whether the killing was premeditated or merely accidental.⁶ A killing in a failed robbery is therefore analyzed exactly as a killing in a successful one. The reason the rule reaches unfinished felonies lies in the history of the rule itself.

The need for the attempt language grew out of a problem in the common law. Every felony was then punishable by death, so when a felony succeeded it made little difference whether the actor was convicted of murder for a death along the way or of the felony itself, because the sanction was the same.⁷ A failed felony stood differently, because an attempt to commit a felony was only a misdemeanor.⁸ An accidental death in a foiled robbery would not have met the ordinary requirement for murder, an intent to kill or a conscious disregard for life, so the misdemeanor of attempt would have been the felon's main exposure.⁹ The felony-murder rule closed that gap by treating the death as murder, which placed the unsuccessful felon in the position the felon would have occupied had the felony succeeded without a homicide, since either way the result was a capital crime.¹⁰ The practical effect was that a conviction for attempted robbery was a misdemeanor, while a homicide committed in the attempt was murder punishable by death.¹¹

Modern statutes write the attempt into their text, and the reason for covering it holds up on the rule's own logic. The rule treats the intent to commit the felony as the culpable mental state and charges the felon with the danger the enterprise creates. A person attempting a robbery has that felonious purpose in full, because the intent to take property by force does not depend on whether the taking works out, and the attempt generates the same risk of a violent confrontation as the completed crime. A rule that required completion would also make the grade of the offense turn on events outside the felon's control, such as an alarm, a resisting guard, or a patrol car arriving early. Worse, it would reward the felon whose crime failed with a lighter charge for a death that the attempt itself produced. Covering attempts removes that reward and treats the danger created by an attempt the same as the danger created by the completed crime.

An armed robber who is interrupted before taking any property, and who kills a guard in the ensuing struggle, shows the rule at work. The robbery failed, yet the death occurred in an attempt to perpetrate it, so the felony intent supplies the malice and the killing is murder, first degree where robbery is a listed felony. The felony need not come close to completion. A gunman who demands money from a clerk and flees empty-handed, after which the clerk dies of a heart attack brought on by fright, has committed an attempted robbery, and the failure to take anything does not take the death outside the rule.¹² Whether the fright was a sufficient cause of the death is a question about causation, which a later section takes up; the point here is only that an unsuccessful felony does not by that fact defeat the rule.

The rule requires a genuine attempt, which excludes mere planning. A person who is only planning a robbery, and who has taken no step beyond preparation, has no felony under way for a killing to belong to. If that person causes an accidental death on an unrelated errand, the felony intent attaches to nothing, because the death has no connection to any attempt. The law of attempt fixes the threshold: Illinois's statute, for example, requires an intent to commit a specific offense and an act that constitutes a substantial step toward it.¹³ Change one fact and the answer changes. Once the same planner has walked into a store, drawn a weapon, and demanded the money, a substantial step has been taken and an attempt exists, so an accidental discharge that kills a customer falls inside the rule. The planner's state of mind was the same throughout, and what moved the answer was whether an attempt existed at the moment of the death.

One more distinction guards against a common confusion. The attempt that matters here is an attempt at the underlying felony, and the killing is a completed homicide. Attempted murder is a different offense that requires an intent to kill. The Illinois Supreme Court observed in People v. Harris that attempt requires an intent to commit a specific offense, while felony murder involves no intention to kill, so no offense exists of attempting to achieve an unintended result.¹⁴ People v. Bland drew on a Maryland court's analogy between transferred intent and felony murder, both of which impose murder liability for unintended deaths, and that analogy rests on the point that no crime of attempted felony murder exists when no death occurs.¹⁵ On an exam stem, attempted felony murder names no offense: if the robbery is foiled and nobody dies, the charge is the attempted robbery, and if someone dies in the attempt, the charge is murder.

The Continuous Transaction

Whether a killing occurred in the perpetration of a felony cannot be answered by asking what the felon was doing at the instant the victim died. People v. Stamp states the broader test: the killing need not occur at the moment the felony is being committed and need not be part of the felon's plan, so long as the felony and the killing are parts of one continuous transaction, and courts make no technical inquiry into whether the felon had already completed or abandoned the felony before the homicide was finished.¹⁷ That principle fixes how far in time the substitution of felonious intent for malice reaches, and the facts of Stamp show it operating on a death that no one planned.

A robbery victim with advanced atherosclerosis suffered a fatal heart attack. Three doctors testified that some immediate upset must have precipitated the seizure and that, but for the robbery, there would have been none at that time, while opposing expert testimony was to the effect that fright could never be shown fatal with reasonable medical certainty.¹⁸ The court held the evidence sufficient to show that but for the robbery the victim would not have experienced the fright that brought on the attack. It then applied the felony-murder rule, under which a killing in the perpetration of or an attempt to perpetrate robbery is first-degree murder whether the killing was premeditated or merely accidental.¹⁹ The heart attack was unplanned and advanced no purpose of the robbery, yet the death belonged to the robbery episode, so the timing element required nothing more.

The reasons for measuring by the transaction rather than by the instant correspond to the two things the principle declines to ask. The first reason concerns the felony's completion. A test that asked whether the felony was still in progress at the moment of death would invite argument over trivia: the property had already been taken, the felon had already turned to run, the weapon was already lowered. The danger a felony creates does not switch off at any of those moments, because the fear, the confrontation, and the pursuit that a robbery produces last until the episode is over. A death caused by that danger realizes the risk the felon chose to create, and the law can charge it to the felon without fixing the exact second at which the crime ended. The second reason concerns the felon's plan. The rule already substitutes the intent to commit the felony for any mental state toward the death, so a requirement that the killing serve the felony's goals would bring back an inquiry into the felon's purposes toward the victim, the very inquiry the substitution removes.

The transaction reaches furthest in two settings. The first is flight. In California, robbery is a continuing offense that runs from the original taking until the robber reaches a place of relative safety, so a death caused during the getaway occurs during the robbery.²⁰ In People v. Anderson, the defendant took a car from an apartment carport and, accelerating toward an exit gate that was closing, ran over the car's owner, who was standing in front of the car; the defendant was convicted of first-degree felony murder with a robbery special circumstance.²¹ The same logic applies elsewhere: perpetration of a felony continues while the felon is trying to reach a place of seeming safety, so a death caused by a careful driver of a getaway car is still a death during the robbery.²² It applies to other felonies too. People v. Gonzales, quoting an earlier decision, observed that a defendant who enters a store intending to commit theft by false pretenses and kills an employee while fleeing can be convicted of felony-murder burglary.²³

The second setting is the victim's confinement. A robber who ties the occupant of a house to a chair and leaves with the loot has not ended the episode if the occupant, still bound, dies of a heart attack while straining to get free. That death is treated as occurring during the robbery even though the robber is by then at home.²⁴ The departure removes the robber from the scene, yet the victim remains in the condition the robber created, so the struggle to escape the bonds is a continuation of the same episode.

The transaction has an end, and a death that falls beyond it cannot borrow the felony's mental state. Consider a store held up by a robber while the owner is away on vacation. The owner returns the next day, learns of the holdup, becomes so upset that a cerebral hemorrhage follows, and dies. Fright at a robbery killed the victim in Stamp, and distress at a robbery killed this owner, but felony murder reaches only the first, because the owner's death did not occur during the perpetration. It followed the episode and was set off by news of it.²⁵ The opposite defect appears when the timing is satisfied and the connection is not. If a customer in a bank lobby, unaware of the robbery at the teller's window, dies of natural causes during it, coincidence of time and place does not make the robber a murderer, because some causal relationship between the felony and the death is also required.²⁶ The vacation case has causation without timing, and the lobby case has timing without causation. The next section develops the causation requirement.

Between those poles, courts disagree about how long flight lasts. At the generous end, Commonwealth v. Stelma upheld felony murder even where the defendant hit the victim with a brick and only then formed the intent to rob.²⁷ State v. Metalski found felony murder when one of two robbers shot a policeman who had stopped them for speeding two hours, several miles, and one state away from the robbery.²⁸ Most cases fall between these extremes. In People v. Gladman, a defendant who had walked a few blocks from a robbery and shot a policeman looking for him before reaching a point of safety was convicted.²⁹ Many American jurisdictions limit the rule in part by construing the period of commission narrowly, and the extreme cases show why, since a transaction stretched across hours and state lines has lost its connection to the danger that justifies the rule.³⁰

The same principle explains why a killing that does nothing for the felony still counts. In People v. Lewis, the defendant's accomplice shot the owner of an apartment as the defendant was going down the stairs after a robbery in which the victims had been bound and blindfolded. The court rejected the argument that a shooting which advanced neither the robbery nor the escape fell outside a New York statute requiring a killing in furtherance of the felony.³¹ It read the statute as linking felony and homicide in three ways: "in the course of" supplies a duration requirement, "causes the death" a causation requirement, and "in furtherance" a relation requirement, a nexus of logic or plan rather than a requirement that the killing help the crime succeed.³² A killing for the shooter's private motive stands apart from the felony because it shares with it only coincidence of time and place.³³ Whether the person who fired must be the felon or an accomplice is a separate limit, taken up in the section on who does the killing.

The recurring error is to treat the felon's departure as the end of the felony, so that a death after the felon has left looks like a death after the felony. The chair example shows why that inference fails, and the vacation example shows the opposite mistake of stretching the transaction to reach a death caused only by later news of the crime.