Roary v. State

The Facts

Defendant convicted at trial of second-degree murder.  Defendant and his three friends chased the victim, and then kicked, tripped, and dropped a large rock on his head twice.  Ten months later the victim died of injuries caused by the incident.

Procedural History

Convicted at trial, appeals.

At trial, defendant argues “first degree assault on a theory of intent to inflict serious physical injury …, which is part and parcel of any intentional homicide, is not an underlying felony which sustains a conviction for common law second-degree felony murder.  Accordingly, this theory of criminal homicide should not have been submitted to the jury, and the resulting conviction must be reversed.”

The Issue

Whether first degree assault on a theory of intent to inflict serious physical injury is not an underlying felony which sustains a conviction for common law second degree felony murder.

The Holding/Reasoning

No.  “First-degree assault would support a common law second degree felony-murder conviction if the nature of the crime itself or the manner in which it was perpetrated was dangerous to human life.  First degree assault can be dangerous to human life.  The men dropping a 30 pound boulder on the victim’s head is clearly dangerous to human life.

While other course do not permit assault as an underlying felony in a felony-murder conviction (merger doctrine), the court chooses to focus “on the conduct of the participants in the perpetration or attempted perpetration of the underlying felony.   The court refuses to narrow the scope of the doctrine’s application to just felonies that are “independent of the resulting death.”  It is better policy “for the law to provide an additional deterrent to the perpetration of felonies which, by their nature or the attendant circumstances, create a forseeable risk of death.”  Therefore a person creating a felony is responsible for consequences of her felonious activities.

Dissent

“The court holds that first degree assault would support a common law second degree felony-murder conviction if the nature of the crime itself or the manner in which it was perpetrated was dangerous to human life.”  This is incorrect.  The felony must be one that is separate of the murder, and therefore is independent.  Most courts today limit the merger doctrine.  Court recognize first degree assault’s contribution to the murder and apply merger where death may have occurred during the course of the first degree assault.  “If the purpose of the felony-murder (merger) rule is to deter accidental or negligent killings, how then is this purpose furthered by finding murder when the defendant intentionally commits a dangerous and life threatening assault?”

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