Who Commits the Killing

Who Commits the Killing

The felony-murder rule treats the intent to commit a dangerous felony as the malice that murder requires, so a felon whose felony produces a death is guilty of murder without any separate intent to kill.¹ That substitution settles the mental state but leaves open a question about the death itself: whose act caused it, and was that person part of the felony? The California decisions answer that the rule reaches a killing committed by the felon or by an accomplice acting in furtherance of the common design, and does not reach a killing committed by the felon's victim.² The sections below follow that line in order, beginning with the felon and the accomplice, then turning to the victim, then to the independent route to murder that remains when the felon starts the violence, and ending with the point at which courts disagree. The causation section that follows takes up a separate inquiry, namely how closely the death must be tied to the felony once the right person has done the killing.

The Agency Requirement

The rule attributes malice to a killing only when the killing is committed by the felon or by someone acting with the felon, which is the agency requirement. In People v. Washington the court explained that the felony-murder doctrine ascribes malice aforethought to the felon who kills in the perpetration of an inherently dangerous felony, and it treated a killing by anyone outside that circle as beyond the doctrine.³ Later decisions repeat the limit. People v. Stamp describes Washington as confining the rule to killings committed by the felon or an accomplice acting in furtherance of their common design.⁴ People v. Gonzalez likewise states that the doctrine does not apply when neither the defendant nor an accomplice committed the killing.⁵

The reason for tying malice to agency lies in what the rule is for. Its purpose is to deter felons from killing negligently or accidentally by holding them strictly responsible for the killings they commit.⁶ A felon controls his own hands and, through the common plan, can influence the hands of confederates, so a penalty on those killings gives a reason to handle weapons and victims with care. A death caused by someone else's independent choice is different: the threat of the penalty could not have changed what the felon did, and punishing the felon would serve the purpose only by accident. The statutory text points the same direction, because section 189 speaks of murder committed in the perpetration of the robbery, and the court read that language to require that the felon or an accomplice commit the killing.⁷ In Washington the killing had been committed to thwart the robbery, which strains the ordinary meaning of a killing committed in its perpetration.⁸

Accomplices and the Common Design

A defendant does not have to fire the fatal shot, because accomplice liability carries the act of one participant to all of them. Washington recognized that a defendant may be vicariously responsible for a killing under the rules defining principals and conspiracies, and it stated that everyone who aids and abets a robbery is guilty of first-degree murder when one of them kills while acting in furtherance of the common design.¹⁰ The rule therefore rests on two premises, which Commonwealth v. Tejeda describes for the Massachusetts common law: the intent to commit the felony stands in for malice, and a death caused by a joint venturer in furtherance of the venture is treated as the act of all.¹¹ Each participant then satisfies every element of murder, since the shared felony intent supplies the malice and the shooter's act is attributed to everyone in the enterprise. Ordinarily an accomplice answers for another's crime only through an intent of the accomplice's own, so this is an exception. The exception has an internal logic: because the principal is guilty without any showing that he intended, knew of, or was even careless about the death, it would be odd to demand more of the accomplice, whose complicity in the felony is the wrong that the rule punishes.¹²

The consequences are sharpest for participants who stay outside. In Enmund v. Florida the defendant was convicted of two counts of first-degree murder on an inference that he waited in a car a few hundred feet away to help the robbers escape while co-felons killed an elderly couple, and the Florida Supreme Court reasoned that the felony-murder rule and the law of principals combine to make a felon generally responsible for the lethal acts of a co-felon.¹³ A concurring opinion in Commonwealth v. Brown described the same consequence under Massachusetts common law: if an accomplice shot and killed a victim during an armed robbery, a defendant who sat in the getaway vehicle and implored the others to hurt no one was guilty of felony murder, although the same defendant would have been guilty only of the robbery had the victim survived.¹⁴ The concurrence treated that result as an exception to ordinary joint-venture liability and proposed to narrow it, which shows both how far the rule reaches and where criticism of it concentrates. Whether a defendant in Enmund's position may be sentenced to death is a separate constitutional question taken up later in this chapter.

The accomplice's act must also fall within the common design. People v. Gilbert required that the accomplice cause the death by an act committed in furtherance of the common design.¹⁵ A New York trial court in People v. Lewis explained what the phrase demands: a link between felony and homicide that is one of logic or plan, which is more than coincidence of time and place.¹⁶ A killing for the shooter's private motive falls outside the felony, because the killer uses the robbery as cover for a personal vendetta that could have been carried out at any time, and the private motive makes the act the killer's alone.¹⁷ A gratuitous killing with no private motive is different, since nothing personalizes it to the shooter, and even a senseless shot that advanced no part of the robbery remains an integral aspect of the felony and is attributable to the other participants.¹⁸

Killings by the Victim

The other side of the line appears when the person who fires the fatal shot is the felon's victim. In Washington the killing had been committed by the robbery victim to thwart the robbery, and the court held that malice aforethought is not attributable to the robber, because the killing was not committed by him or an accomplice in the perpetration of the robbery.²⁰ The court added that it is not enough that the killing was a risk reasonably to be foreseen or that the robbery might be regarded as a proximate cause of it.²¹ That second point fixes the character of the test, since the question is who committed the killing, and the foreseeability of the victim's response does not change the answer.

The court also rejected the argument that the rule serves to prevent robberies generally. In every robbery there is a possibility that the victim will resist and kill, and the robber has little control over that response once the robbery begins.²² A penalty for a victim's killing would distinguish between robbers solely on the basis of how others happened to react, and it would deter robbery only haphazardly.²³ The deterrence reasoning from the previous subsection therefore explains the result: the rule reaches acts the felon can control, and a resisting victim's act is not one of them.

Other courts apply the same logic when the person killed is a co-felon. In State v. Canola a store owner resisting an armed robbery shot and killed one of the robbers, and the court observed that the early formulations of the rule concerned situations where the felon or a confederate did the actual killing.²⁴ It held that the state's felony-murder statute did not extend liability beyond the traditional agency theory to killings by third parties.²⁵ Pennsylvania's decision in Commonwealth v. Redline reached the same position when a police officer justifiably shot a defendant's cohort during an escape from a robbery, reasoning that the rule imposes liability for the act of a felon or a cohort, and a third party who is retarding the felony is neither.²⁶ Some statutes make the point expressly by excluding the killing of a participant in the felony.²⁷ Students lose this issue by treating a foreseeable response by the victim as if it were the felon's own act.

Gun Battles and Implied Malice

A victim's killing ends the felony-murder theory but does not always end murder liability. Gilbert explains that malice is implied when the defendant or an accomplice, for a base antisocial motive and with wanton disregard for human life, does an act involving a high probability of death, and it identifies initiating a gun battle as such an act.²⁹ It adds that when the defendant or an accomplice intentionally commits such an act with conscious disregard for life and a victim or police officer kills in reasonable response, the killing is attributable to that intentional act and the defendant is guilty of murder.³⁰ Gilbert also notes that Washington had already recognized, apart from the felony-murder rule, that a defendant who initiates a gun battle may be convicted of murder for a killing committed by another.³¹ The commentary to the Model Penal Code gives a parallel example: a robber who shoots at a police officer with intent to kill and provokes return fire that kills a bystander could be charged with purposeful murder.³²

This route is ordinary implied malice, the abandoned and malignant heart variety, in which reckless indifference to an unjustifiably high risk to human life supplies the malice.³³ It differs from felony murder in who supplies the malice. Under felony murder the law supplies it from the felony, while here the jury must find it in the defendant's own act, and Gilbert treats the victim's self-defensive shot or the officer's shot as a reasonable response to the dilemma the defendant created, so it is no independent intervening cause that cuts off liability.³⁴ The difference decided Gilbert itself. The trial court had instructed that the defendants could be convicted for the killing of their accomplice solely because the robbery was a proximate cause of the death, and that instruction withdrew from the jury whether the officer's shooting answered a shooting the defendants started or was aimed only at preventing the robbery.³⁵ Once murder is established on this footing, section 189 may be invoked to fix its degree, which ties this route back to the grading rules discussed earlier.³⁶

The theory demands conduct that shows more than participation in the felony. California has allowed it where a defendant's conduct involves something more outrageous than mere participation in an armed robbery, as in Taylor v. Superior Court, where a cohort verbally threatened to use his gun and acted edgy throughout the robbery before the victim shot him.³⁷

The Contested Line

The line drawn in Washington was not unanimous, and the dissent shows where the argument lies. It would have reached victim-killings, reasoning that a homicide arising out of an attempted armed robbery is a direct causal result of the chain of events the robbers set in motion, so that when a victim fires the lethal bullet the killing is caused by the felons' act and they are as responsible as when an accomplice fires or the shot is accidental.³⁹ It also argued that section 189 contains no suggestion that the killing must take place to perpetrate the felony, a requirement it found hard to reconcile with the rule that accidental killings fall within the statute.⁴⁰ The majority answered with the agency reading and the deterrence purpose described above, and that view governs in California.⁴¹

Other jurisdictions divide along the same fault. Pennsylvania held a robber guilty in Commonwealth v. Thomas when the robbery victim's shot killed the robber's partner, on the theory that the death was a foreseeable consequence of the robbery, and three years later Redline overruled that decision.⁴² Illinois, by contrast, upheld a felony-murder conviction in People v. Dekens on the theory that the felony proximately caused the killing, over a dissent that neither felon had done the killing.⁴³ New York reached the agency result in People v. Wood, where the felony-murder counts were dismissed for the deaths of an accomplice and a bystander shot by a tavern owner, even though the deaths were foreseeable consequences of the underlying assault.⁴⁴

What separates the two lines is the question each asks. The agency approach asks who committed the killing and whether that person was on the felony team, so the foreseeability of a lethal response does not decide the case. The proximate-cause approach asks whether the felony set in motion a foreseeable chain that ended in death, so a foreseeable response by a victim or officer is enough. Wood shows the difference at its sharpest, because the deaths were foreseeable and the agency approach still produced no felony murder. Foreseeability returns in the next section, where it bears on how directly the felony produced the death, a question that arises only after the right killer has been identified.