"Prosecutors have charged his alleged accomplice, 29-year-old Dustin Louis Stewart, with first-degree murder. According to authorities, Stewart was with Martin but ran away from McKinley's home after hearing the gunshots.

"When you're engaged in a crime such as first-degree burglary and a death results from the events of that crime, you're subject to prosecution for it," Walters said."

Now that's not going to stick ...

It absolutely will stick.  Felony murder rule.  If you are engaged in the commission of or acts in furtherance of a felony and someone dies, it's considered felony murder.  It doesn't matter how or by whose hand the person dies. 

AP, to answer your question, I can't say for certain under Oklahoma law, but in Missouri it's first degree burglary if the resident is home at the time of the burglary and 2nd degree burglary if the resident isn't home.  Oklahoma may use a similar distinction.

"It doesn't matter how or by whose hand the person dies."

Amplifying Max's scenario, what if while we're holding up the 7-Eleven, AP starts feeling a little peckish, decides to grab a bean burrito and chokes to death? Can I be prosecuted for first degree murder?

artie_fufkin wrote:

"It doesn't matter how or by whose hand the person dies."

Amplifying Max's scenario, what if while we're holding up the 7-Eleven, AP starts feeling a little peckish, decides to grab a bean burrito and chokes to death? Can I be prosecuted for first degree murder?

No (I'll explain later).

Intellectual curiosity got the better of me, so I did a little research into this issue.  In 1993, the Oklahoma Court of Appeals, interpreting the then-existing felony murder statute, concluded that the statute did not permit a conviction for felony murder unless the death was caused by the perpetrator or an accomplice.  The facts in that case were the same as these, a co-defendant had been shot during a burglary by the homeowner.  The defendant was convicted of felony murder and appealed  In that case, the felony murder conviction was overturned based on the language of the statute.

In 1993, the Oklahoma felony murder statute stated as follows:

A person also commits the crime of murder in the first degree when he, regardless of malice, in the commission of forcible rape, robbery with a dangerous weapon, kidnapping, escape from lawful custody first degree burglary, first degree arson, unlawful distributing or dispensing of controlled dangerous substances, or trafficking in illegal drugs, takes the life of another.


After this case was decided, in 1996, the Oklahoma legislature amended the felony murder statute.  Following the amendment, the statute read as follows:

A person also commits the crime of murder in the first degree, regardless of malice, when that person or any other person takes the life of a human being during, or if the death of a human being results from, the commission or attempted commission of forcible rape, robbery with a dangerous weapon, kidnapping, escape from lawful custody first degree burglary, first degree arson, unlawful distributing or dispensing of controlled dangerous substances, or trafficking in illegal drugs, takes the life of another.


In 2005, the Oklahoma Court of Appeals was presented with slightly different facts that again required an interpretation of the felony murder statute.  In that case, the defendant's accomplice was shot and killed by police while attempting to escape following an armed robbery.  In its decision affirming the conviction, the Court of Appeals cited the 1993 case and the 1996 amendment, specifically noting that the 1996 amendment was intended to cover any taking of a life by third persons, other than the alleged criminals, during the commission of one of the listed felonies.  The defendant's life sentence was upheld.

Fast forward to 2012.  Since we know the accomplice died, and we know his death was caused by the homeowner, the only question is whether or not the defendant was involved in the burglary and, if so, whether the burglary meets the requirements for first degree burglary.  If so, the defendant is guilty of felony murder.


Turning back to your burrito scenario--no conviction.  AP's death was caused by the burrito (more specifically, his own failure to properly chew the burrito), not another person.  It doesn't fit the statute.

Here's a trickier scenario.  You and AP decide to hold up the 7-11.  You find the clerk wearing a Tebow jersey and you threaten to kill him.  The clerk, fearful of a psychotic Raiders fan, has a heart attack and dies.  You guilty of felony murder?  Reading the statute, I'd say more probable than not the answer is "Yes."

Interesting stuff fors.  I never put much thought into such situations.  IL supreme court ruled two case in 2006 that were basicly the same as what has been mentioned in this thread.  One difference was that in both cases the would be victims were off duty cops.  On both occasions the off duty cop shot one of the suspects and the other got convicted of murder.  Talk about a crime gone bad.  Can you imagen trying to rob someone, them pulling a gun and blowing away your buddy and then your getting arrested for killing your buddy?  Even better in one of the cases the guy charged with his crook buddies murder never even got out of the car.

Last edited by APRTW (1/05/2012 4:14 pm)

forsberg_us wrote:

Turning back to your burrito scenario--no conviction.  AP's death was caused by the burrito (more specifically, his own failure to properly chew the burrito), not another person.  It doesn't fit the statute.

Now, to have a little more fun with this, let's suppose:

a) AP soils himself, and in a fit of panic, decides to commit suicide by intentionally choking on a burrito.

MURDER

b) AP soils himself, and in the process, loses control of his eating, chokes on a burrito and dies.

MURDER?

I'm guessing that an aggressive OK prosecutor might still go for murder, in the same way that the clerk/heart-attack victim could be construed as murder.

"Here's a trickier scenario.  You and AP decide to hold up the 7-11.  You find the clerk wearing a Tebow jersey and you threaten to kill him.  The clerk, fearful of a psychotic Raiders fan, has a heart attack and dies.  You guilty of felony murder?  Reading the statute, I'd say more probable than not the answer is "Yes."

In that scenario, I'm going to the chair. Prosecution can clearly make a case anyone who wears a Tebow jersey is of diminished capacity.