Attempted Felony-Murder

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uwb09
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Attempted Felony-Murder

Postby uwb09 » Mon Dec 13, 2010 9:32 pm

is this possible?

Let's say you and your homies are all in your car on the way to the bank, packed and loaded, you park, get out of the car, and as you step out onto the sidewalk to go towards the bank a gun goes off and kills a person chillin at the bus stop

you can be charged with felony-murder when fleeing the scene of a felony, what about when you are in "dangerous proximity" to one?

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uwb09
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Re: Attempted Felony-Murder

Postby uwb09 » Mon Dec 13, 2010 9:36 pm

Actually just remembered Bruce v. State, where when the attempt statute requires the specific intent of the attempted crime, and since felony-murder requires no intent, it doesn't really work

I guess i'm wondering more about attempt statutes that don't require specific intent, I dunno if those exist

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OGR3
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Re: Attempted Felony-Murder

Postby OGR3 » Mon Dec 13, 2010 9:47 pm

My criminal law professor asked us to weigh the chances of success of attempted involuntary manslaughter on our final today. He threw it in the middle of a big issue spotter where he asked us to consider 5 or 6 potential charges. It was tricky. I know of multiple people who got hung up on it and weren't able to get to the last couple of crimes.

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beach_terror
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Re: Attempted Felony-Murder

Postby beach_terror » Mon Dec 13, 2010 9:56 pm

OGR3 wrote:My criminal law professor asked us to weigh the chances of success of attempted involuntary manslaughter on our final today. He threw it in the middle of a big issue spotter where he asked us to consider 5 or 6 potential charges. It was tricky. I know of multiple people who got hung up on it and weren't able to get to the last couple of crimes.

Isn't it a logical fallacy to attempt an unintended homicide? I know some jurisdictions allow it, but it seems illogical.

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MBZags
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Re: Attempted Felony-Murder

Postby MBZags » Mon Dec 13, 2010 9:56 pm

I think attempted felony-murder is a crime in two states. Florida is one of them.

Our professor tried to explain it by saying that if felony-murder is a higher crime than intentional murder in a given state, then the prosecutor can charge a defendant with attempted felony murder to get the harsher sentence.

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OGR3
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Re: Attempted Felony-Murder

Postby OGR3 » Mon Dec 13, 2010 10:04 pm

beach_terror wrote:
OGR3 wrote:My criminal law professor asked us to weigh the chances of success of attempted involuntary manslaughter on our final today. He threw it in the middle of a big issue spotter where he asked us to consider 5 or 6 potential charges. It was tricky. I know of multiple people who got hung up on it and weren't able to get to the last couple of crimes.

Isn't it a logical fallacy to attempt an unintended homicide? I know some jurisdictions allow it, but it seems illogical.


Hence the trickiness. For those who weren't paying attention when he said you either had attempted 1st degree murder or attempted voluntary manslaughter, both under the umbrella of attempted murder, this was probably pretty tough.

Also, if you haven't adequately prepared, even if you were paying attention in class, this probably caught you off guard and you spent 20 minutes discussing it on a 60 minute question.

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OGR3
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Re: Attempted Felony-Murder

Postby OGR3 » Mon Dec 13, 2010 10:10 pm

To OP: At least from my professor, you can only have attempt for specific intent crimes.

random5483
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Re: Attempted Felony-Murder

Postby random5483 » Mon Dec 13, 2010 10:38 pm

Attempted Felony Murder is not possible in the majority of the states since an attempt needs an intent to commit the murder and Felony Murder is an unintentional killing.

However, a minority of jurisdictions allow an attempted felony murder conviction since they consider the crime a partial strict liability crime. However, in the case described in your post, an attempted felony murder conviction will not occur.


For an attempted felony murder conviction (minority position) you need the predicate felony to have occurred. So unless the "robbery" was completed, no attempted felony murder charge could be brought. Remember that a defense to the predicate felony will be a defense to felony murder (ex. duress is a defense for robbery and thus a defense for felony murder with a predicate felony of robbery. But duress is not a defense to regular murder).


Arguably if the jurisdiction follows the Abnormal Step rule for attempt, you would have an attempted robbery in your fact pattern. Further, if the jurisdiction follows the minority felony murder for attempts rule, you would have a possible FMR conviction.

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uwb09
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Re: Attempted Felony-Murder

Postby uwb09 » Mon Dec 13, 2010 10:41 pm

random5483 wrote:Attempted Felony Murder is not possible in the majority of the states since an attempt needs an intent to commit the murder and Felony Murder is an unintentional killing.

However, a minority of jurisdictions allow an attempted felony murder conviction since they consider the crime a partial strict liability crime. However, in the case described in your post, an attempted felony murder conviction will not occur.


For an attempted felony murder conviction (minority position) you need the predicate felony to have occurred. So unless the "robbery" was completed, no attempted felony murder charge could be brought. Remember that a defense to the predicate felony will be a defense to felony murder (ex. duress is a defense for robbery and thus a defense for felony murder with a predicate felony of robbery. But duress is not a defense to regular murder).


Arguably if the jurisdiction follows the Abnormal Step rule for attempt, you would have an attempted robbery in your fact pattern. Further, if the jurisdiction follows the minority felony murder for attempts rule, you would have a possible FMR conviction.

but if the predicate felony has already occurred, then attempt wouldn't really be involved would it? it would just be straight felony-murder wouldn't it?

or are you getting at a situation where felony committed + one of the felons attempts to murder someone?

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Borhas
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Re: Attempted Felony-Murder

Postby Borhas » Mon Dec 13, 2010 11:38 pm

nope

random5483
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Re: Attempted Felony-Murder

Postby random5483 » Mon Dec 13, 2010 11:54 pm

uwb09 wrote:
random5483 wrote:Attempted Felony Murder is not possible in the majority of the states since an attempt needs an intent to commit the murder and Felony Murder is an unintentional killing.

However, a minority of jurisdictions allow an attempted felony murder conviction since they consider the crime a partial strict liability crime. However, in the case described in your post, an attempted felony murder conviction will not occur.


For an attempted felony murder conviction (minority position) you need the predicate felony to have occurred. So unless the "robbery" was completed, no attempted felony murder charge could be brought. Remember that a defense to the predicate felony will be a defense to felony murder (ex. duress is a defense for robbery and thus a defense for felony murder with a predicate felony of robbery. But duress is not a defense to regular murder).


Arguably if the jurisdiction follows the Abnormal Step rule for attempt, you would have an attempted robbery in your fact pattern. Further, if the jurisdiction follows the minority felony murder for attempts rule, you would have a possible FMR conviction.

but if the predicate felony has already occurred, then attempt wouldn't really be involved would it? it would just be straight felony-murder wouldn't it?

or are you getting at a situation where felony committed + one of the felons attempts to murder someone?



If the predicate felony already occurred and a co-felon attempts to kill someone. The "attempt" is intentional by the co-felon but the defendant is not liable since he does not have the mens rea intent for the attempt even via the accomplice liability for Felony Murder. But a minority of jurisdictions allow the prosecution of attempted felony murder due to it being a partial strict liability crime.

If the defendant himself attempted to kill someone, Felony Murder would not be needed since we could prosecute the defendant for attempted murder. Attempted Felony Murder basically applies to Accomplice Liability. But as mentioned by most of the above posters, the majority position does not allow an attempt prosecution for an unintentional crime.

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Re: Attempted Felony-Murder

Postby toolfan » Fri Dec 17, 2010 3:23 am

uwb09 wrote:is this possible?

Let's say you and your homies are all in your car on the way to the bank, packed and loaded, you park, get out of the car, and as you step out onto the sidewalk to go towards the bank a gun goes off and kills a person chillin at the bus stop

you can be charged with felony-murder when fleeing the scene of a felony, what about when you are in "dangerous proximity" to one?


so you and your friends just go to the bank and one of your friends gun goes off? Where is the felony. You might have a involuntary manslaughter. You certainly don't have any intent to kill, express or implied. Maybe depraved heart murder if you want to wiggle your way through that one (manifest extreme indifference to human life? likely not) People carry guns all the time. & remember negligent homicide isn't always actionable.

Accomplices must share the common design of the principal 1st degree to be liable for that crime. So i assume they were going to rob the bank? which may explain the presence of the gun? but if the gun discharges before they commit the felony, then we don't necessarily have the predicate felony for felony murder, do we?

unless you consider possession of a firearm a felony. in which case you can't argue that the accomplices had the common design to feloniously possess a firearm.

i think you need to rework your hypo

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uwb09
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Re: Attempted Felony-Murder

Postby uwb09 » Fri Dec 17, 2010 12:14 pm

toolfan wrote:
uwb09 wrote:is this possible?

Let's say you and your homies are all in your car on the way to the bank, packed and loaded, you park, get out of the car, and as you step out onto the sidewalk to go towards the bank a gun goes off and kills a person chillin at the bus stop

you can be charged with felony-murder when fleeing the scene of a felony, what about when you are in "dangerous proximity" to one?


so you and your friends just go to the bank and one of your friends gun goes off? Where is the felony. You might have a involuntary manslaughter. You certainly don't have any intent to kill, express or implied. Maybe depraved heart murder if you want to wiggle your way through that one (manifest extreme indifference to human life? likely not) People carry guns all the time. & remember negligent homicide isn't always actionable.

Accomplices must share the common design of the principal 1st degree to be liable for that crime. So i assume they were going to rob the bank? which may explain the presence of the gun? but if the gun discharges before they commit the felony, then we don't necessarily have the predicate felony for felony murder, do we?

unless you consider possession of a firearm a felony. in which case you can't argue that the accomplices had the common design to feloniously possess a firearm.

i think you need to rework your hypo

I thought it would've been clearly assumed from my hypo that we were on our way to the bank to perform armed robbery, which would be the felony

Pretty sure in any jurisdiction, if a group of people were going to a bank to rob it, and were carrying loaded fire-arms, and were basically at the door of the bank about to enter to rob it, it would either already be in the commission of the felony, or at minimum "attempted robbery", an attempted felony, which is where my question comes into play

My question was if you are at the point where you can be charged with an "attempted felony", and at that same point you commit a homicide, can you have an "attempted-felony murder" strict liability charge. I'm not sure where you are going on your little condescending "i'm smarter than you" rant, but I think you are misunderstanding the question.

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kalvano
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Re: Attempted Felony-Murder

Postby kalvano » Fri Dec 17, 2010 12:59 pm

Felony murder transfers the intent to commit the felony to the intent necessary for premeditated murder. But the majority of states also specify that the murder must be in furtherance of the felony, and / or specify the crimes it can be attached to.

Your hypo would have furtherance issues.

Also, attempt is a specific crime. Since most states specify the available crimes, I doubt you could attach felony murder to attempted whatever.

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Re: Attempted Felony-Murder

Postby toolfan » Fri Dec 17, 2010 2:02 pm

kalvano wrote:Felony murder transfers the intent to commit the felony to the intent necessary for premeditated murder. But the majority of states also specify that the murder must be in furtherance of the felony, and / or specify the crimes it can be attached to.

Your hypo would have furtherance issues.

Also, attempt is a specific crime. Since most states specify the available crimes, I doubt you could attach felony murder to attempted whatever.


+1 aye.

anyways, i'm not sure that standing in front of a bank, with several buddies and a gun, with the intent to rob the bank is sufficient to establish attempted robbery. i again ask where the attempt is? maybe if you and your buddies walked into the bank, demanded money, chickened out (never showing/using the weapon), and on the way out of the bank the gun discharged accidentally, then you might have an attempted armed robbery (i don't know the specific statute). anyways, even then, the gun discharge might have to be in furtherance of the felony, so if attempted armed robbery is considered a felony, perhaps the gun discharge on their way out of the bank can be considered a furtherance of their escape. maybe then you establish felony murder (among other things)

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Re: Attempted Felony-Murder

Postby jhawk4life » Tue Dec 21, 2010 11:45 pm

uwb09 wrote:is this possible?

Let's say you and your homies are all in your car on the way to the bank, packed and loaded, you park, get out of the car, and as you step out onto the sidewalk to go towards the bank a gun goes off and kills a person chillin at the bus stop

you can be charged with felony-murder when fleeing the scene of a felony, what about when you are in "dangerous proximity" to one?




Okay this is crazy because our final was an attempted felony murder hypo the inherently dangerous felony being attempted burglary. The question is what we would argue as a defense attorney. The whole time on the exam I wondered if it was possible to have an attempted felony murder. I ended up making multiple arguments against the charge, but I did say something about it being illogical to have a charge of attempted felony murder. Hmm hope I was right.

random5483
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Re: Attempted Felony-Murder

Postby random5483 » Wed Dec 22, 2010 12:38 am

I answered this question earlier and I shall try to explain it better.


Attempt requires an intent to commit the specific crime. Felony Murder involves an unintentional killing (usually). In most jurisdictions you cannot commit attempted felony murder because attempt requires an intent to commit the murder. A minority of jurisdictions allow attempted felony murder because they argue that felony murder is a partial strict liability crime and they waive the intent requirement of attempt for felony murder.

With that said, if "attempted robbery" is the predicate felony, you can still charge someone with felony murder. The charge would not be attempted felony murder, but actual felony murder. This is because the "attempt" requirement only applies to the predicate felony. You would have to consider whether the attempted robbery is inherently dangerous/specifically enumerated (if your prof expects you to analyze modern limitations).

To answer your question:
1. The majority of jurisdictions do not allow attempted felony murder. The minority of jurisdictions allow attempted felony murder.
2. If the predicate felony is an "attempted robbery", the predicate felony can be used to find the person guilty of felony murder (you would NOT call this attempted felony murder).
3. The above points are my takeaway from my crim law course/readings. I could be wrong, but I am fairly confident that I am not.




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