At common law, the felony-murder rule is a legal doctrine that expands the crime of murder to situations where the offender does not necessarily have the intent to kill. If an offender is involved in the commission of a felony (e.g. armed robbery, rape or carjacking) and someone is killed during the transaction, then that offender may be found guilty of the crime of murder even if he or she had no intention for anyone to die. This rule is still alive and well in most jurisdictions in the United States. Does Michigan have a similar rule for felony-murder?
MCL 750.316 provides that a person can be convicted of first-degree murder (punishable by life in prison without the possibility of parole) under the following circumstance:
- “Murder committed in the perpetration of, or attempt to perpetrate, arson, criminal sexual conduct in the first, second, or third degree, child abuse in the first degree, a major controlled substance offense, robbery, carjacking, breaking and entering of a dwelling, home invasion in the first or second degree, larceny of any kind, extortion, kidnapping, vulnerable adult abuse in the first or second degree (MCL 750.145n), torture (MCL 750.85), aggravated stalking (MCL 750.411i), or unlawful imprisonment (MCL 750.349b).” MCL 750.316(1)(b).
- “Major controlled substance offense” means a violation of MCL 333.7401(2)(a)(i) to (iii) (manufacture, create, deliver, or possess with intent to manufacture, create, or deliver a Schedule 1 or Schedule 2 controlled substance of 50 grams or more) or a violation of MCL 333.7403(2)(a)(i) to (iii) (manufacture, create, deliver, or possess with intent to manufacture, create, or deliver a controlled substance analogue of 50 grams or more). MCL 750.316(2)(c).
The Michigan Supreme Court held in People v Aaron, 409 Mich 672, 718; 299 NW2d 304 (1980) that the statutory provisions in MCL 750.316 override the old common-law rule of felony murder in Michigan:
- “Michigan does not have a statutory felony-murder doctrine which designates as murder any death occurring in the course of a felony without regard to whether it was the result if accident, negligence, recklessness, or willfullness. Rather, Michigan has a statute which makes a murder occurring in one of the enumerated felonies a first degree murder.” Id at 718.
- “The common-law felony murder rule for other felonies in Michigan is abolished.” Id at 723.
- “[W]e hold today that malice is the intention to kill, the intention to do great bodily harm, or the wanton and willful disregard of the likelihood that the natural tendency of defendant’s behavior is to cause death or great bodily harm. We further hold that malice is an essential element of any murder, as that term is judicially defined, whether the murder occurs in the course of a felony or otherwise. The facts and circumstances involved in the perpetration of a felony may evidence an intent to kill, an intent to cause great bodily harm or a wanton and willful disregard of the likelihood that the natural tendency of defendant’s behavior is to cause death or great bodily harm; however, the conclusion must be left to the jury to infer from the evidence.” Id at 128-129.
Michigan’s felony-murder statute differs in two significant ways from the common law rule.
First, it is not enough that there was a mere “killing” during the commission of a felony. There must be enough evidence to amount to at least second-degree murder. The elements of second-degree murder are (1) a death, (2) caused by an act of the defendant, (3) with malice and (4) without justification. Malice is defined as “the intent to kill, the intent to cause great bodily harm, or the intent an act in wanton and willful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm.” People v Hopson, 178 Mich App 406, 410; 444 NW2d 167 (1989). Malice can be “inferred from evidence that a defendant intentionally set a motion in force likely to cause death or great bodily harm.” People v Reeves, 202 Mich App 706, 712; 510 NW2d 198 (1993). The prosecutor must not only show intent to commit the underlying crime but also show a “malicious state of mind.” People v Dumas, 454 Mich 390, 411; 363 NW2d 31 (1997).
Second, felony-murder cannot be based on just any felony, but rather it must be one of the specifically enumerated felonies in MCL 750.316. The killing for felony-murder doesn’t have to be at the exact time that the felony is committed, but it must occur during the unbroken chain of events surrounding that felony. In People v Gillis, 474 Mich 105, 108; 712 NW2d 419 (2006), the defendant was convicted of two counts of felony with home invasion being the predicate felony, but the killings occurred in an automobile collision several miles away from the house that was broken into. The Michigan Supreme Court upheld the convictions and found that the defendant was attempting to escape detection after being identified during the home invasion, so “a reasonable juror could conclude that he was still in the perpetration of the home invasion.”
The elements of felony murder are (1) the killing of a human being, (2) with the intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result, and (3) while committing, attempting to commit, or assisting in the commission of any of the felonies specifically enumerated in [the statute].” People v Carines, 460 Mich 750, 756; 597 NW2d 130 (1999). In People v. Nowack, 462 Mich 392; 614 NW2d 78 (2000), the Michigan Supreme Court upheld a felony murder conviction where the underlying offense of first-degree arson:
- “Uncontested evidence established that two human beings died in the explosion, thereby satisfying the first element. Regarding the second element, the jury could infer that defendant acted with malice when he intentionally set in motion a force likely to cause death or great bodily harm… [T]he circumstantial evidence and reasonable inferences therefrom indicated that defendant intentionally released and ignited gas in his apartment building. Defendant thereby created a very high risk of death or great bodily harm, and the jury could infer from defendant’s actions that he knew that death or such harm was the likely result. The third element of felony murder is satisfied because defendant committed the crime of arson, [defined as] “the malicious and voluntary or wilful burning of a dwelling house of another.” Id at 401-402.
The underlying felonious act and the killing can be a single event. For example, a person can be convicted of first-degree murder when he committed a single blow to a child’s head that fractured the skull and caused death. If “the jury found that defendant possessed both the malice to commit murder and the intent to commit first degree child abuse”, then the first-degree murder conviction can stand. People v Magyar, 250 Mich App 408, 412; 648 NW2d 215 (2002).
The felony-murder statute provides that first-degree murder can be triggered by a “larceny of any kind”. In People v Gimotty, 216 Mich App 254, 258; 549 NW2d 39 (1996), the Michigan Court of Appeals upheld a felony-murder conviction where the underlying predicate felony was retail fraud in the first degree. However, in People v Malach, 202 Mich App 266, 272-274; 507 NW2d 834 (1993), the Michigan Court of Appeals rejected larceny by false pretenses as the predicate felony for first degree murder because the underlying crime involves taking property by trick or false pretenses, not stealing, so the offense does not fit into “larceny of any kind.”
If you are accused of felony-murder, you need to have the best legal representation in your corner to assert all of the legal defenses available to you according to law:
- KILLING WAS ACCIDENTAL – Malice for murder requires “the intent to kill, the intent to cause great bodily harm, or the intent an act in wanton and willful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm.” If the death was completely accidental and unrelated to the commission of the felony, it may not rise to murder.
- ALIBI OR MISTAKEN IDENTITY – The defendant may assert that he was in another location at the date and time that the murder occurred, provided that there are sufficient witnesses and proper notice to the prosecutor to establish the alibi.
- LEGAL INSANITY – A person may be found not guilty by reason of insanity. A person is legally insane if, as a result of mental illness or intellectual disability, he or she was incapable of understanding the wrongfulness of his or her conduct, or was unable to conform his or her conduct to the requirements of the law. The defendant has the burden of proof to show that he or she was legally insane at the time of the killing.
- DEATH NOT PROXIMATE TO FELONY – The death does not have to be contemporaneous with the felony act, but “the homicide must be incident to the felony associated with it as one of its hazards.” People v Thew, 201 Mich App 78, 87; 506 NW2d 547 (1993). “A lapse of time and distance are factors to be considered” for determining proximity. Id.
- KILLING OCCURS BEFORE FELONY – If the homicide occurs before the felony, it may not be considered felony-murder. At a minimum, “[d]efendant must intend to commit the felony at the time the killing occurs.” People v Goddard, 135 Mich App 128, 136; 352 NW2d 367 (1984). However, “[i]f a homicide occurs before the underlying felony, yet is closely connected with the felony, then the homicide can be found to be felony-murder.” Id.
A conviction of first-degree felony-murder will cause you to spend the rest of your life in prison without the possibility of parole. The stakes are too high to settle for less. You need the best lawyers in your corner from the very beginning to work towards the best resolution of your case. Your criminal defense lawyer cannot be afraid to hold the prosecuting attorney to their high burden of proving guilt beyond a reasonable doubt.
If you or a loved one are accused of any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
