FELONY MURDER RULE: How Sarah McKinley Escaped a Murder Charge by Adeyemi Oshunrinade


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Recently, the entire nation woke up to the news that Sarah McKinley, 18, a widowed Oklahoma teen-mom shot and killed an intruder who tried to break into her home on New Year’s day. She was alone in her Blanchard, Oklahoma home around 2 p.m. December 31. when two men tried to break in; she grabbed a shotgun, called 911 and asked the dispatcher if it was alright to shoot. The dispatcher answered, “I can’t tell you that you can do that, but you do what you have to do to protect your baby.”

McKinley opened fired and killed Justin Martin, 24, one of the perpetrators; Martin was wielding a knife as he kicked his way through the door. His body was later found by the police and now Dustin Stewart 29; his accomplice has been arrested and is charged with first degree murder. The question some are asking is, why charge Stewart with murder when he did not fire the fatal shot? And why is the shooter Sarah McKinley not facing any murder charge for the killing? To answer the questions, you must understand the Felony Murder-Rule.

The Felony Murder Rule
At common law, one who is responsible for unintended death of another, during the perpetration or attempted commission of a felony, was guilty of murder. This became the Felony Murder-Rule. At the time, most felonies were punishable by death since such crimes were considered dangerous to human life. The threat posed by such felonies warranted strict response and as a result, the threats serve as a justification for the harshness of the rule.

Under the Felony murder rule, a death which occurs by accident (unintended) or chance during the course of the commission of a felony is first degree murder. However, this is a common law doctrine the rule has since been modified by statutes in some jurisdictions. The reasons for the modifications was due to the fact that the common law rule, became too harsh as it applied to all felonies irrespective of the dangerousness and threat to human life.

Nowadays, courts only apply the rule to specific felonies considered to be of the largest threat to human life; among such categories of crime are rape, arson, kidnapping, robbery, and mayhem. Take for example the following scenario, George and Ben decide to rob a TARGET store, both think it would be necessary to use all force available to carry out the robbery; during the commission of the crime, a security officer attempted to stop them but was shot by George accidentally and died at the scene.

Under the felony murder rule, both George and Ben are guilty of murder even though, Ben did not fire the fatal shot. They are equally culpable for the murder irrespective of whether or not Ben fired the fatal shot that killed the security officer. In the case above, the rule acts to provide the specific intent required for the defendants to be culpable for the murder, it creates a form of vicarious liability between both felons.

Even though, death in this case was not intended, the defendants may be found culpable based on the principle that, one who engages in inherently dangerous crimes should be aware of the high risk created by such crime to human life; such that, all those involved are equally liable for the resulting homicide. In the McKinley case, both Martin and Stewart, engaged in a felonious crime of robbery when they broke into McKinley’s home and as a result, assumed the risk that someone is likely to be killed or injured; such that both may be found liable for the outcome.

To establish a felony murder in most jurisdiction today, it must be shown that: (1) the defendant was engaged in the commission or attempted commission of a specified felony; (2) a death must have occurred during the commission or attempted commission of the felony and: (3) the death must be as a result of the felony meaning that, but for the crime, the death would not have occurred. The felony in the McKinley case is the robbery which satisfies the first requirement, the death requirement is satisfied with the killing of Martin, and lastly, the death was as a result of the robbery or else, Martin would not have been killed.

There are different views on the application of the felony murder rule. One view posits that, the rule is intended to deter negligent and accidental killings during perpetration of felonies. “The argument is that co-felons will dissuade each other from the use of violence if they may be liable for murder. The other postulate is directed not towards the killing but on the felony itself; it endorses the rule as a deterrent to dangerous felonies.

The notion is that by punishing both accidental and deliberate killings resulting from a felony is ‘the strongest possible deterrent’ to curbing inherently dangerous felonies.” (See Nelson E. Roth et al, The Felony Murder Rule: A Doctrine of Constitutional Crossroads 70 Cornell L. Rev. 446, 450-58 (1985))

‘The felony murder rule is a theory of transferred or constructive intent; under this theory, the intent to commit the felony is transferred to the act of killing in order to find Culpability for the homicide.” (See Wayne R. LaFave, Modern Criminal Law: Cases, Comments, and Questions p. 323 note 1. (2006). The rule serves the objective of relieving the State of the burden of proving premeditation or malice which is required in most first degree murder cases for a conviction to stand.

In most States, the lawmakers specified by statutes what crime must be committed for the felony murder rule to take effect. In most jurisdictions of the U.S. the crime of robbery as we have in the Oklahoma case, is one of the felonies that will trigger the felony murder-rule. Some however, have limited the rule to those felonies recognized at common law. In some instances, it may be essential to certify when a crime began and when it ended for the felony murder rule to apply.

Take for example the following scenario; George has just entered a home and robbed a woman of her purse and belongings. He was running away chased by a Police Officer on foot; As the Police Officer tried to avoid an incoming traffic, he was struck and killed by a motorist. The question is whether the death occurred during the commission of the crime such that George may be guilty of the murder; in most cases the answer is yes, the officer died during the commission of a felony in this case robbery. Likewise, Martin was killed during the attempted commission of a robbery.

Moreover, there is a causal connection between the crime and the death since but for the crime, the death would not have occurred. Proving that the crime occurred during the commission or attempted commission of a felony will satisfy requirement (2) above.

In the same Scenario, suppose that the Police Officer was driving fast to respond to the robbery, he ran the red light and struck an incoming vehicle killing a 78 years old woman. Is this during the commission of the crime? It is unlikely that a felony murder would be found since the death was too far removed from the commission or attempted commission of the felony; George may not be feloniously culpable for the death.

Also to satisfy requirement (3), the felony must be the legal or proximate cause of the death. The causal connection must be closely linked and the death must be a “consequence not coincidence” of the criminal act. Not only that, the death must also be a foreseeable consequence of the felonious act. Suppose Dele broke into a house at 2:00 A.M. with the intention to rob the inhabitants and the 86 years old woman inside suffered a shock from fear and died when she suddenly saw Dele. Dele is guilty of felony murder because his felonious act precipitated the resulting death.

However, if Benson a neighbor of the woman unaware of the robbery suffered a shock and dies, Dele is not guilty of felony murder; the simultaneous occurrence does not establish a causal connection between the death and his felonious act. He is therefore, not culpable for the neighbor’s death under the felony murder rule. In the McKinley case however, there is a causal connection between the attempted robbery and the death of Martin therefore, the felony murder-rule will apply.

In some jurisdictions, the event that precipitated the death of the victim need not occur as a result of the action of one of the perpetrators of the crime. If Biola and Stephen decide to rob a Home Depot and as a result are engaged in a shootout with the police and the police accidentally shoot an innocent shopper to death. Biola and Stephen are equally guilty of murder of the innocent shopper under the felony-murder rule. Note that in the McKinley case, the shot that caused Martin’s death was not fired by Stewart but by McKinley however, Stewart may be charged with the felony-murder of Martin.

The officer in the illustration above is not guilty of any crime because both Biola and Stephen set in motion the series of events which led to the death of the innocent shopper. Likewise, Martin and Stewart both set in motion the events that led to the shooting that ended Martin’s life in the Oklahoma case. In other situations, it may happen that the police accidentally kill one of the felons for example, if the police during a shootout accidentally kill Biola; Stephen is not guilty of the felony-murder of Biola. However, he may be charged with robbery.

The felony murder-rule recognize vicarious liability of co-felons however, there is limitation. If a defendant can establish by clear and convincing evidence that he did not
engage in the act which caused the death; did not conspire to cause the death, plan, or encourage the act of his co-felon; and had no reason to believe the act would be committed; he may have a defense to felony-murder charge in some states.

The reason for such rule is that, there are situations where a co-conspirator decides at the last minute to withdraw from the act without doing more; but as a co-conspirator he is still considered part of the act if he did not take further action for example, to report the situation to the police or appropriate authority.

The rules concerning accomplices, parties and principals to crimes may establish culpability irrespective of the felony-murder rule. In jurisdictions that subscribed to the felony-murder rule, all killings that occur during or attempted commission of a named felony are categorized as first degree murder. All other killings that occur during other felonies are considered second degree murder.

A named felony can be in the category such as; rape, arson, aggravated robbery, mayhem, and kidnapping specifically, those felonies creating the largest threat to human life. In the McKinley case, both Martin and Stewart engaged in a named felony aggravated robbery which in most jurisdictions as in Oklahoma will trigger the application of the felony murder-rule.

Sarah McKinley is not charged because she acted in self-defense using a reasonable force when she sensed a danger to her life and her baby. Stewart however, may be charged with first degree murder for the death of Martin.

Dr Adeyemi Oshunrinade [E. JD] is an expert in general law, foreign relations, and the United Nations. He is the author of ‘Murder of Diplomacy’ (2010) and ‘Wills Law and Contests’ (2011) Felony Murder-Rule is an excerpt from his incoming book ‘Criminal Law-Homicide.’

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Categories: Criminal Law

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