Causation and Timing

Causation and Timing

Identifying who committed the killing settles whether a death can be attributed to the felony team, but it leaves open whether this particular death belongs to the felony at all. The felony-murder rule treats the intent to commit the felony as supplying implied malice for a killing committed in the perpetration of that felony.¹ A substitute borrowed from one crime can fairly be applied only to a death that grows out of that crime. The felon's culpable intent was formed with respect to the felony, and it has no claim on events that arise somewhere else. The rule therefore asks for two connections between the felony and the death, and each one polices a different way the death might drift away from the felony.

The first connection is causal: the homicide must be a direct causal result of the felony. The second is temporal: the homicide must occur within one continuous transaction with the felony. These are separate questions because a death can satisfy one and fail the other. A death that traces directly to the felon's conduct may come too long after the crime has ended to count as part of it, and a death that occurs in the middle of the felony may still have an independent cause that owes nothing to it. Keeping the two apart in the analysis prevents a strong showing on one from standing in for a missing showing on the other.

Within those limits the rule is generous to the prosecution, and the reason follows from the same structure. The causal and temporal requirements keep liability attached to the felony that supplies the malice, so the rule never reaches a death that the felony did not produce. Inside the limits, the felon chose to commit a dangerous crime and cannot reduce responsibility by pointing to how the death happened to come about, such as the victim's unusual frailty or the claim that the crime was technically complete before the death occurred. The two subsections below take the connections in the order just given, beginning with the causal link, including the role foreseeability plays in it, and then turning to the timing limit.

Direct Causal Result

The first connection the rule demands is causal, and its content is easy to state. When a death is the direct causal result of the felony, the felony-murder rule applies, and it applies whether or not the death was a natural or probable consequence of the felony.² That formulation sounds almost too generous, so it helps to see what it admits and what it excludes. It admits deaths that arrive by unusual routes, such as the fatal fright of a victim with a weak heart, because the felony is still what set the fatal sequence in motion. It excludes deaths that merely coincide with the felony, because those have no causal tie to the crime whose intent supplies the malice.³

The leading illustration is People v. Stamp. The defendant burglarized a business and robbed its owner, Carl Honeyman, at gunpoint, leading him from his office by the elbow and making him lie on the floor for about ten minutes until the defendant fled. Shortly afterward Honeyman felt chest pains, collapsed, and died of a heart attack. He was an obese 60-year-old with a history of heart disease, and the court upheld a first-degree murder conviction.⁴ Three doctors testified that although Honeyman's atherosclerosis was advanced and ultimately fatal, some immediate upset must have precipitated the attack, and that but for the robbery there would have been no fatal seizure at that time. An opposing expert said fright could never be shown fatal with reasonable medical certainty.⁵ The jury was entitled to credit the first account, since the evidence showed that without the robbery the victim would not have felt the fright that brought on the attack.⁶

From those facts the court drew a rule with several practical consequences. Because the doctrine is not confined to foreseeable deaths, a robber cannot defend by showing that no reasonable person would have expected a heart attack.⁷ Because a victim's predisposing physical condition does not break the causal chain unless it is the only substantial factor in the death, the robber's ignorance of that condition does not help either. Nor does it matter that the victim might have died soon anyway, so long as the felonious act shortened the victim's life. The court's shorthand for all of this is that the robber takes the victim as he finds him.⁸ The same logic reaches a robber who takes every precaution against injury: a holdup with a toy pistol that leaves the victim dead of a heart attack is still felony murder, because the absence of any wish to hurt anyone does not matter when the death proximately results from the felony.⁹

One contrast should stay separate from this causal inquiry. The statement in Washington that foreseeability alone does not make a victim's killing the felon's murder answers a different question, namely who committed the killing, and it leaves untouched how closely the felony produced a death that the felon's own conduct caused.¹⁰

The reason for the rule follows from what the felony already does. Under the common-law rule the intent to commit the felony stands in for malice, so the prosecution never has to prove what the felon expected about the death.¹¹ A foreseeability defense would reopen exactly that question through another door, because the felon would argue that a death from a hidden heart condition was too unlikely to have been anticipated, and the jury would be measuring the felon's foresight about the death. A fragility defense would be worse in one respect: ignorance of a victim's condition is nearly always genuine and nearly impossible to check, so the defense would be available in precisely the cases where the victims are most vulnerable. The deterrence purpose points the same way, since the rule aims to deter felons from killing negligently or accidentally by holding them strictly responsible for the killings they commit.¹² Students lose this issue by demanding foresight of the victim's frailty before attaching liability.

The causal requirement still does real work, and it is what keeps the strictness from running past the felony. A death that happens during the felony is not enough on that ground alone, because something more than coincidence of time and place is required, namely a causal relationship between the felony and the death.¹³ A customer in a bank lobby who is unaware of a robbery in progress and suffers a fatal heart attack from natural causes has died at the time and place of the robbery, and the robber is not a murderer. A customer with a weak heart who dies of fright at witnessing the robbery has died because of it.¹⁴

Ordinary causation limits also keep applying to independent events that intrude between the felony and the death. Legal cause is missing where an unforeseeable coincidence or an abnormal response intervenes.¹⁵ In a casino illustration, three robbers leave with their loot and are met on the steps by a stranger, unaware of the robbery, who shoots one of them out of hatred for gambling operators. The death flowed from a truly independent event, so the surviving robbers are not liable for felony murder even in a state that holds felons liable for a co-felon's death.¹⁶ These limits do not contradict the statement that foreseeability is unnecessary. In Stamp the felony itself produced the death through the victim's own frightened body, with no separate cause entering the sequence, while the casino shooter is a separate cause that the felony did not produce.

Some jurisdictions state the causal requirement more tightly than Stamp does. New Jersey applies the Code's probable-consequence provision to felony murder, and the Model Penal Code commentary it relies on gives the example of a bank employee electrocuted while pushing the alarm button just as a robber walks in, a death for which the robber would not be liable.¹⁷ Massachusetts likewise asks whether the death was a natural and probable consequence of the felony, yet it treats a victim's fatal fright during a robbery as satisfying that test.¹⁸ The stricter and the looser formulations therefore agree on the paradigm fright death and part ways only in the rare case where a death directly produced by the felony was also highly improbable.

One Continuous Transaction

The causal link settles that the felony produced the death. The timing link asks whether the death belongs to the same criminal episode as the felony or to a separate one. The common-law rule answers by relaxing every test that would tie the killing to the technical life of the felony. A killing need not occur “while engaged in” the felony or “to perpetrate” it, and it need not be part of the felon's plan. It is enough that the felony and the killing are parts of one continuous transaction, and courts make no technical inquiry into whether the felony was completed or abandoned before the death.²⁰ Courts sometimes call this window the res gestae of the felony, the Latin for the things done in the course of the criminal episode.²¹

Each phrase the rule disclaims would otherwise hand the felon a separate defense. A “while engaged in” test would turn on the instant the felony's last element was satisfied, a “to perpetrate” test would ask whether the killing helped the crime succeed, and a “planned as part of” test would ask what the felon had in mind. None of those inquiries fits a doctrine in which the intent to commit the felony already stands in for malice, because the prosecution never has to show what the felon expected or wanted about the death.²² Timing follows the same logic. A robbery does not stop being dangerous when the property is in hand, since the robber then has loot to protect and a pursuit to escape, and violence in those minutes is the same risk the robbery created. A test keyed to technical completion would let a felon argue that the crime had ended in the instant before the fatal shot or collision, so the standard places the line where the episode ends.

Flight with the property is the commonest way a death falls inside the transaction. In People v. Anderson the defendant took a 19-year-old's car from an apartment carport and, when the exit gate began to close, accelerated toward it and ran over the owner, who had followed the car and stood about ten feet in front of it, killing her.²³ The court described robbery as a continuing offense that runs from the original taking until the robber reaches a place of relative safety, which makes a death during the getaway a death in the course of the robbery.²⁴ Flight on foot works the same way. In People v. Gladman, a New York case, the defendant walked a few blocks from the scene of a robbery and, before reaching a point of safety, shot a police officer who was looking for him, and the felony-murder conviction was upheld.²⁵

A passing observation in People v. Gonzales points the same direction. Quoting a footnote from People v. Williams, the court noted that a person who enters a store intending to commit theft by false pretenses and kills an employee while fleeing can be convicted of felony-murder burglary.²⁶ That remark is an aside, because Gonzales concerned the reach of the shoplifting statute rather than felony murder. It still shows the assumption courts bring to the problem, that a killing during flight from the felony belongs to the felony.

The standard is one of degree, and the decided cases mark its far ends. In Commonwealth v. Stelma, a Pennsylvania court held that a defendant who struck a victim with a brick and only afterward formed the intent to rob could be convicted of felony murder, and in State v. Metalski a New Jersey court 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.²⁷ Most cases fall between those extremes, and the middle cases ask how closely in time, distance, and pursuit the death follows the felony. Some statutes spell out the same idea in separate words. New York's felony-murder statute, as read in People v. Lewis, treats “in the course of” as a duration requirement, “causes the death” as a causation requirement, and “in furtherance” as a relation requirement, so a death must satisfy each of the three.²⁸ The continuous-transaction standard is the common-law version of the first of those links.

The contrasting case is a death that belongs to a different episode, and the difference lies in the sequence of events rather than in how the death happened.

Students lose this issue by asking whether the felony was technically complete when the death occurred, a question the rule declines to ask.²⁹ A getaway after the property is taken, and a felony that is only attempted, remain within the transaction. A killing that comes after the episode has ended is a separate homicide, and it is analyzed without help from the felony.