MURDER IN THE SECOND DEGREE BY FELONY MURDER -
IN THE COMMISSION OF DEFINED
A person is in the commission of [Specify Underlying Felony] when he/she is performing an act which is an inseparable part of [Specify Underlying Felony], or which is necessary in order to complete the course of conduct constituting [Specify Underlying Felony], or when he/she is fleeing from the immediate scene of a/an [Specify Underlying Felony].
Statutory Authority: 21 O.S. 2011, § 701.8.
The instruction is proposed as a means of focusing the jury's attention upon the two critical elements of felony murder: commission of a felony, and death to the victim as a consequence of the defendant's conduct in committing that crime.
This portion of section 701.8 essentially embodies the language of the pre-1973 felony-murder rule, 21 O.S. 1971, § 701(3). Like section 701(3), section 701.8 does not require that any particular intent or mental state be established in order to convict the defendant of felony-murder. Given the near identity of language, the Oklahoma precedent discussed in relation to first-degree felony murder, holding that all cofelons participating in the felony may be convicted of murder where the conduct of any one of the participants causes death in the commission of the crime, seems fully applicable.
Several points must be emphasized regarding the "any felony" language of section 701.8. First, the Oklahoma Court of Criminal Appeals announced in Barnett v. State, 2011 OK CR 28, ¶¶ 10-15, 32, 263 P.3d 959, 963-64, that it would no longer require the precedent felony to be an independent crime that was not included within the resulting homicide, and the Court abandoned the merger doctrine, which previously had restricted the crime of second degree felony murder.
However, an enumerated felony for first degree felony murder cannot serve as the basis for a second degree felony murder charge. State v. McCann, 1995 OK CR 70, ¶¶ 7-9, 907 P.2d 239, 241 (affirming demurrer to information charging defendant with second degree felony murder based on felony of unlawful distribution of a controlled dangerous substance).
In addition, the "any felony" language raises the specter of a forger being convicted of murder if he accidentally trips his victim and causes the victim to strike his head and suffer death. Many jurisdictions have circumscribed the scope of the "any felony" rule by judicial decision. See, e.g., People v. Washington, 62 Cal. 2d 777, 402 P.2d 130 (1965); Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472 (1958). The restriction of the felony-murder rule to those crimes which evince some potential for peril to others is more in accordance with the common law development of the doctrine than it is an unfettered interpretation of the "any felony" provision. Indeed, at common law the felony-murder rule was in fact more narrow and less arbitrary because, at the time the doctrine developed, the few existing felonies were themselves punishable by death. W. LaFave & A. Scott, Criminal Law § 71, at 545-48 (1972).
The Oklahoma Court of Criminal Appeals has afforded explicit recognition to this limiting principle. In Wade v. State, 1978 OK CR 77, 581 P.2d 914, the defendant committed the felony of possession of a loaded pistol in an establishment where beer or alcoholic beverages were consumed, in contravention of 21 O.S. Supp. 1976, §§ 1272.1 - 1272.2. In affirming the defendant's conviction for felony-murder in connection with the homicide of a woman by the defendant, the Court articulated a requirement which must link the underlying felony to the homicide: "The felony must be inherently or potentially dangerous to human life, inherently dangerous as determined by the elements of the offense or potentially dangerous in light of the facts and circumstances surrounding both the felony and the homicide." Id. ¶ 4, 581 P.2d at 916.
Thus, the Court has adopted an approach to the question of whether the particular felony at issue might form the basis for a felony-murder charge that requires an examination of the circumstances in which the crime was committed, as well as of the crime itself. As an abstract proposition, some felonies, such as burglary or robbery, are inherently dangerous to life, while others, such as larceny or false pretenses, are not. But the facts of the particular case, including the circumstances under which the felony was perpetrated, must be examined in order to determine whether even a nonperilous felony is committed in such a way as to create a potential danger to life.
The determination of the inherent or potential peril to human life engendered by the defendant's conduct must be made by the trial judge. Should he find the felony-murder rule inappropriate as applied to a particular felony, he should not instruct on it. Should he find the felony-murder rule applicable, he must determine which felony or felonies to name and define in the instruction. Note: Due-process requires that any such felony be charged in the information or indictment. Cole v. Arkansas, 333 U.S. 196 (1948). If the jury is charged and instructed on the basis of alternative felonies, separate verdict forms should be given in order to determine which felony was committed.