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Criminal
Law Felony-Murder -- West Virginia <1> In West Virginia the felony-murder rule is set forth as part of the "definition" of murder (incomplete as it may be) in West Virginia Criminal Code, §61-2-1. Murder . . . in the commission of, or attempt to commit, arson, kidnapping, sexual assault, robbery, burglary, breaking and entering, escape from lawful custody, or a felony offense of manufacturing or delivering a controlled substance . . . is murder of the first degree. All other murder is murder of the second degree. The West Virginia Supreme Court has ruled that §61-2-1 alters the scope of the common law felony-murder rule by confining its application to injuries resulting in death that take place in the commission of the crimes set forth in the statute. See State v. Sims, 162 W. Va. 212, 248 S.E.2d 834 (1978); State v. Young, 173 W.Va. 1, 311 S.E.2d 118 (1983). <2> In State v. Wayne, 169 W.Va. 785, 289 S.E.2d 480 (1982), the court held that the felony-murder provision of the murder statute applies where the initial felony and the homicide were parts of one continuous transaction, and were closely related in point of time, place, and causal connection, as where the killing was done in flight from the scene of the crime to prevent detection or promote escape. <3> In West Virginia felony-murder cases, proof of a specific intent to kill, premeditation, and malice are not required. State v. Williams, 172 W.Va. 295, 305 S.E.2d 251 (1983); State v. Sims, 162 W. Va. 212, 248 S.E.2d 834 (1978); State v. Hottle, 197 W.Va. 529, 476 S.E.2d 00 (1996)(The Court notes in State v. Wade that "we have repeated this principle on many occasions."). Consequently, in a case where the defendant shots and kills a person during the commission of a robbery, whether the killing was willful, deliberate and premeditated is irrelevant. State v. Bragg, 140 W.Va. 585, 87 S.E.2d 689 (1955). The West Virginia jury instructions commonly given on felony-murder reads as follows: "Under the felony-murder doctrine Murder of the First Degree does not require proof of the elements of willfulness, deliberation, premeditation, malice or specific intent to kill. It is deemed sufficient if the homicide occurs during the commission of or the attempt to commit one of the enumerated felonies [that is, one of the felonies set forth in §61-2-1]. <4> As a matter of law, second-degree murder, voluntary manslaughter, and involuntary manslaughter are not lesser included offenses of felony-murder. State v. Wade (W.Va. 1997)[on-line text]. This means that a defendant charged with felony-murder cannot avail himself of a defense premised on provocation and killing in a heat of passion. <5> The West Virginia Supreme Court has held that it is a violation of the Constitutional prohibition against double jeopardy to punish the defendant for both felony-murder and the underlying felony. State v. Williams, 172 W. Va. 295, 305 S.E.2d 251 (1983); State v. Tesack, 181 W.Va. 422, 383 S.E. 2d 54 (1989). <6> Historically, the Court allowed the state to proceed on the basis of both murder and felony murder, but then required the state to elect, at least at the time the state closes its case, whether it was proceeding on the basis of felony murder. The Court has also noted that the defendant may, upon a showing of prejudice, move to require the state to elect whether it was proceeding on the basis of felony murder still earlier in the proceedings. State v. Walker (Sup.Ct. W. Va., 1992) [on-line text]. The Court now seems to have abandoned its "must elect" rule. See Stuckey v. Warden [on-line text]. In Stuckey, the court held that: (1) murder by any willful, deliberate and premeditated killing, and (2) felony-murder constitutes an alternative means, pursuant to W.Va. Code, 61-2-1, to commit 1st degree murder. Thus, whatever the weakness in logic, first degree murder and felony-murder in West Virginia are found by the Court to be a single offense which can be proven on the basis of either premeditated/deliberate murder or felony-murder. Consequently, the State's reliance upon both theories at a trial for 1st degree murder does not, the Court finds, necessarily violate defendant's Due Process rights, provided that the two theories are distinguished for the jury through adequate court instructions. Should a murder conviction be sustained when some jurors indicate on the verdict form that they find the defendant guilty of murder, while others find the defendant guilty of felony murder? Stuckey v. Warden (Sup.Ct. App. W.Vir., 1998) answers the question in the affirmative. In State v. Walker, the West Virginia court allowed the prosecution to procede in a murder case on the grounds that the killing was with premeditation and deliberation and on the grounds that the killing was committed during the commission of an enumerated felony, and thus was felony murder. The Court in Walker seems to suggest that the prosecution will, no later than the final presentation of proof the close of all evidence, be required to elect whether it is proceeding on the basis of premeditated/deliberated murder or felony-murder. And further, that the election might be required earlier in the trial if the defendant could show prejudice for failure to do so.
In Walker the prosecution proceeded on both murder and felony murder at the trial but sought jury instructions only on felony murder and arson, not premeditated murder. In Stuckey the prosecution proceeded on the basis of both premeditated murder and felony murder at trial, and the trial court refused to require the prosecution to elect either premeditated or felony murder and then gave jury instructions that allowed for conviction on either murder or felony murder. The jury found the defendant guilty (of 7 counts of murder) and was provided with and returned to the court verdict forms which made no distinction between premeditated and felony-murder as the basis for the conviction. To follow Walker, the court would, it seems, be required to overturn the conviction. The court decides, in a dubious decision, to uphold the conviction on the following grounds:
<7> In Schad v. Arizona, 501 U.S. 624 (1991) [on-line text] The "one crime" approach, as reflected in West Virginia felony-murder cases, sanctioned by the U.S. Supreme Court in Schad, allows the State to proceed on an indictment for murder, and then have the case presented to the jury on the basis of a felony-murder theory. See: State v. Hughes (Sup.Ct.App. W.Va., 2010) [on-line text] In Hughes, the defendant raises a question as to whether the jury should have been allowed to consider both felony murder and premeditated murder. The defendant made a motion at trial to require the State to elect one or the other. The motion was denied. The trial court's decision was upheld on the basis of Stuckey. Following Stuckey, the Court in Hughes finds no basis for overturning the conviction on the basis of the failure of the trial court to use a special jury verdict form that distinguishes felony murder and premeditated murder. For a rousing critique of Schad, see the dissenting opinion in Bouwkamp v. State, 833 P.2d 486 (Sup.Ct. Wyoming, 1992) [on-line text]
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