Felony Murder Doctrine Cases

The felony-murder doctrine is an anomaly in the law of homicide because the government is not required to prove that the defendant had the mens rea for murder but only that for the attendant felony. In early common law, murder was simply defined as the unlawful killing of another human being with "malice aforethought;" the intent to kill and the intent to commit a felony were alternative aspects of a single concept of malevolence. Schad v. Arizona, 501 U.S. 624, 640-41, 115 L. Ed. 2d 555, 111 S. Ct. 2491 (1991). Thus, a person who caused a death while perpetrating a felony was guilty of murder; intent was imputed regardless of the actual intent of the offender, the dangerousness of the felony or the likelihood that death might result. See W. Lafave & A. Scott, CRIMINAL LAW 545-46 (1972). The rationale was that, because the defendant committed a felony, he was a "bad person" such that society need not concern itself with the fact that the result accomplished may have been very different from the result intended. Id. at 560. With the evolution of the criminal law, however, it came to be espoused that a person is not criminally liable without the requisite culpable mental state with regard to the result of his action. Id. Accordingly, some United States legislatures and appellate courts have imposed differing requirements from the original common-law doctrine, such as requiring the defendant to have a degree of culpable mental state beyond the intent to commit the underlying felony See, e.g., ARK. CODE ANN. 41.1501(1)(a) (1977)(defendant must manifest "extreme indifference to the value of human life" in causing the death); DEL. CODE ANN. tit. 11, 636(a)(6)(Supp. 1982)(requiring "criminal negligence"); LA. REV. STAT. ANN. 14:30 (West Supp. 1983)(requiring "specific intent to kill or to inflict great bodily harm"); State v. Doucette, 143 Vt. 573, 470 A.2d 676, 682 (Vt. 1983)(malice as essential element of felony murder); People v. Aaron, 409 Mich. 672, 299 N.W.2d 304, 326-27 (Mich. 1980)(malice not found from intent to commit underlying felony alone); State v. Galloway, 275 N.W.2d 736, 738 (Iowa 1979)(felony murder includes element of malice), overruled on other grounds, State v. Schutz, 579 N.W.2d 317 (Iowa 1998); State v. Harrison, 90 N.M. 439, 564 P.2d 1321, 1324 (N.M. 1977)(presumption that one who commits any felony has requisite mens rea to commit first-degree murder insupportable legal fiction; killing must be natural and probable consequence of felony), superceded by statute on other grounds, Tafoya v. Baca, 103 N.M. 56, 702 P.2d 1001 (N.M. 1985); State v. Millette, 112 N.H. 458, 299 A.2d 150, 153 (N.H. 1972)(malice indispensable aspect of murder and not inference of law from mere act of killing during commission of felony); State v. Noren, 125 Wis. 2d 204, 371 N.W.2d 381, 384 (Wis. Ct. App. 1985) (construing "natural and probable consequence" language of felony-murder statute to limit liability to deaths that were foreseeable consequences of felonious acts equal to "depraved mind" murder); see also MODEL PENAL CODE 210.2 (requiring recklessness under circumstances "manifesting an extreme indifference to the value of human life"). The majority basically is equating felony murder with second-degree murder as if the crimes were a similar expression of an "extreme indifference to human life" or the "reckless engagement in conduct creating a grave risk of death." On this rationale, they are able to uphold a merger of the second-degree murder conviction with the first-degree murder conviction. While in many states, as above noted, the crime of murder committed in the course of the commission of a felony requires a mental state which equates with second-degree murder, under Arizona law, there is no such analysis as that in which the majority engages. According to our statutes, these two forms of homicide are neither one and the same, nor is one a lesser-included offense of another. Not only do the two crimes require differing mental states, which alone negates the lesser-included analysis, no lesser-included homicide offense exists for first-degree (felony) murder. See State v. Lopez, 163 Ariz. 108, 112, 786 P.2d 959, 963 (1990); State v. Celaya, 135 Ariz. 248, 255, 660 P.2d 849, 856 (1983), citing State v. Arias, 131 Ariz. 441, 641 P.2d 1285 (1982). Thus there can be no such "merger."