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Massachusetts Changes its Felony Murder Doctrine for the Better

One fall evening in 2009, four men met up at one Timothy Brown’s apartment.  They had earlier been driving around together when two of them, Hernandez and Hill, decided to rob two women at gunpoint.  Hernandez, who had brandished a gun during the robbery, hid it in Brown’s kitchen when they arrived at the apartment.  In the early hours of the next morning, three more men arrived with a proposal to rob two drug dealers.  These three and Hernandez agreed to the second robbery and left in a car.  Before they left, Hernandez retrieved his gun and they asked Brown for hooded sweatshirts to cover their faces and for the loan of his handgun.  Brown provided them with the clothing and gun. 

During the ensuing robbery, the four men wore the sweatshirts Brown had provided and one of them brandished Brown’s gun.  Hernandez shot and killed the two victims with his gun.

On these facts, Brown was convicted of first-degree murder, on the basis of Massachusetts’ felony-murder doctrine, which makes anyone guilty of a life felony also guilty of any killing committed in the course of the commission or attempted commission of the felony.  Brown was charged with the felonies of armed robbery and armed home invasion, as an accessory, because he provided the gun and sweatshirts to the robbers although he did not otherwise participate and was not present for the robbery.

The Supreme Judicial Court (SJC) unanimously agreed that, under a provision of law that allows them to reduce a first-degree conviction “in the interests of justice,” Brown’s conviction should be reduced to second-degree murder given his peripheral involvement.  The court split on a landmark change in the law of felony-murder, with a four-justice majority concluding that, from now on, a conviction for felony-murder would require the jury to find that the defendant shared a state of mind called “malice.”

Not all killings are murder.  The criminal law distinguishes between intentional and non-intentional killings.  “Malice” is the intent required for a killing to be murder, and there are two degrees of murder in Massachusetts, both requiring malice, but first degree requiring a narrower version, actual intent to kill.  So, to be convicted of first degree murder, for the most part you much be found to have specifically intended to kill your victim.  There are two additional forms of malice:  intent to do great bodily harm, and intent to commit an act which creates a plain and strong likelihood of death or serious bodily harm.  If you have one of the latter two intents, without the intent to kill, you are guilty of second-degree murder.

Felony murder, until the Brown case, did not require that you have any form of malice to be convicted of first-degree murder.  If you had the intent to commit a life felony, that was the only intent required.  In Brown’s case, the SJC found that he was properly convicted of armed robbery and home invasion as an accessory – meaning that he knew the other men were going to commit robbery and a home invasion, and he actively assisted them, sharing the intent that they commit the robbery and the home invasion.  Supplying them with disguising clothing and with a gun, knowing of their plans, was clear encouragement and assistance.  Under the prior felony-murder rule the jury was told:  if you find that he was an accessory to armed robbery and home invasion, and that a killing took place during the commission of these crimes, you can find Brown guilty of first-degree murder – no malice is required.

Everyone on the Court recognized that Brown was not present at the scene of the crime, didn’t encourage anyone to kill the victims, and didn’t participate in the robbery and home invasion.  They all agreed that first-degree murder was not a just measure of his culpability, but second-degree murder was.  But Chief Justice Gants and three others went further, and concluded that overall it was not a just measure of culpability to dispense with the malice requirement altogether in felony murder cases.  The three remaining justices, in a dissenting opinion by Justice Gaziano, argued that requiring malice would in many cases set culpable felons free of murder convictions, and that it would be better to make corrections in appeal to the SJC under the very statute they used to reduce Brown’s conviction.

The examples that Justice Gaziano offers in his dissent (to which Justice Gants responds in his opinion) are not cases, like Brown’s, where the defendant was an accomplice to a felony and was not even present at the scene.  They are cases where the actual killers were convicted of felony-murder, and the issue is whether requiring malice would have absolved them of responsibility for their own acts.

So, for example, the case of a man who brutally dragged an elderly woman from her home to his and raped her, causing multiple fractures, bleeding and bruising.  After an operation, the woman died of pneumonia.   To Justice Gaziano it avoids moral culpability not to find him guilty of murder based on his intent to kidnap and rape the woman alone.  To Justice Gants, his actions support a finding of malice – intent to do great bodily harm or acts that create a plain and strong likelihood of death or great bodily harm – that a jury could find merited conviction of murder, but in his view it should be a jury’s decision.

Or a rapist who, in trying to silence his victim’s child’s cries, smothers her.  To Justice Gaziano his rape and acts causing a killing suffice to establish his culpability for murder.  To Justice Gants, the additional requirement of malice is likely met by those acts (an intent to do an act creating a plain and strong likelihood of death or bodily harm) but that this should be left to the jury’s judgment, and it should be open to the jury to find in those facts the lesser offense of  manslaughter for reckless conduct.

Or a man who sets out with a gun to rob a convenience store, and when the owner attacks him with a bat, shoots and kills the man and claims his gun went off accidentally when he was hit by the bat.  To Justice Gaziano, whether the shooting is accidental is not relevant to whether his moral culpability warrants a murder conviction.  To Justice Gants it is – and for him, the question whether it was or was not accidental would be for the jury to decide.

What is clear from this debate is that in cases where the defendant is present and involved in committing a felony and kills someone, the jury will decide whether he or she acted with malice, and deserves to be convicted of murder.  While Justice Gaziano and his colleagues who joined his opinion clearly express that in these examples the correct moral decision is to find the defendant guilty of murder, such moral decisions have, in the large part of the criminal law, been the province of a jury of the defendant’s peers, not of appellate judges.  Justice Gants is right in this – the moral decision should not be left to appellate judges, it should be lodged with the jury.  In cases like Brown’s, where the defendant is not present, does not encourage or plan a killing or injury, it is more likely that this change to  the felony-murder rule will leave the defendant convicted only of the felony to which he is an accomplice.  In the case examples that divide the Court in this opinion, the detailed presentation of evidence in a trial court will provide the jury with grounds to make the moral judgment of culpability, which is as it should be.

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