Duress and the underlying felony.

• Author: Shankland, Russell
• Position: Maryland

1. INTRODUCTION

   On September 9, 2008, the Maryland Court of Special Appeals ruled in a case of first impression that duress can serve as a defense to felony murder if the duress negates the defendant's culpability for the underlying felony. (1) In McMillan v. State, two men recruited Nathaniel McMillan, the appellant, to assist in a home invasion because of McMillan's preexisting relationship with the targeted victim, Hermann Haiss. (2) On the day of the crime, McMillan's co-felons picked him up at his place of employment, and the three men drove to Haiss' house. (3) McMillan knocked on the victim's door. Recognizing him, Haiss answered the door, and McMillan's co-felons stormed into the house. (4) McMillan claims to have stayed outside, but inside, his co-felons forced Haiss to unlock his gun safe. (5) They stole Haiss's collection of firearms and bludgeoned him to death with a baseball bat. (6)

   The State charged McMillan with first-degree felony murder. (7) In his defense, McMillan requested a jury instruction for the duress defense. (8) He claimed that his co-felons had promised him a ride home but instead took him, against his will, to the victim's house and demanded that he help them gain entry. (9) When McMillan objected, he said, his co-felons threatened, "[Y]ou get down or you lay down, you gonna be with that old man in the house or you gonna leave out the house with us, which one you wanna do?" (10) The trial judge rejected McMillan's request for a duress instruction. (11) The jury convicted him, and the court sentenced him to life imprisonment. (12)

   On appeal, McMillan argued that his pretrial statements constituted sufficient evidence from which a jury could reasonably find that he was coerced into participating in the robbery. (13) Thus, the trial court erred in denying his request for a duress instruction. (14) In turn, the State of Maryland challenged the availability of the duress defense for murder no matter the circumstance. (15) A defendant can only rely on duress, according to the State, where the crime did not involve the taking of an innocent life. (16)

   The Maryland Court of Special Appeals granted neither McMillan nor the State what each sought. Even though the common law generally bars the duress defense for murder, the court concluded that where "duress would serve as a defense to the underlying felony, [duress] is also available as a defense to a felony-murder arising from that felony." (17) It relied on dicta from a prior Maryland Court of Special Appeals decision, (18) analysis from legal commentators, (19) and cases from other jurisdictions. Although the court approved of the defense generally, it found that McMillan was not entitled to a jury instruction as to duress. According to the Court of Special Appeals, the trial court had properly weighed whether McMillan produced "'some evidence' of imminent threat." (20)

   In allowing the defense, the court aligned Maryland with six states that deny the duress defense for murder generally but allow it for the special case of felony murder. (21) The Maryland approach, however, does not represent the unanimous approach used by states. On December 30, 2008, the Michigan Court of Appeals, in an unpublished opinion, also examined the availability of the duress defense for felony murder. (22) The Michigan court analyzed the same legal commentators and cases from outside jurisdictions as did the Maryland court in McMillan but reached the opposite conclusion. (23) It sided with the six states that have affirmatively ruled that duress can never serve as a defense to felony murder. (24) In addition to the Maryland and Michigan approaches, a third approach exists. Both Arkansas and Delaware allow duress as a defense to all forms of murder, felony murder included. (25)

   A mere fifteen states have ruled directly on the applicability of the duress defense for felony murder. Yet, many other states have touched on the issue only to dispose of their cases on alternative grounds, such as the defendant's failure to meet the elements of duress even if it were available. (26) Because so few states have acted definitively, this Comment endeavors to provide guidance for courts encountering the issue in cases of first impression. To accomplish this goal, the Comment begins by reviewing the histories and rationales underlying both the felony-murder rule and the duress defense. Next, it explores the three prevailing approaches used by the various states. It examines how prohibiting the defense fails to comport with the identified policies and leads to several unacceptable outcomes. The Comment concludes by first recommending that states that rely on the common law duress defense recognize its development to allow the defense for felony murder and then urging that states that have duress statutes interpret those statutes in light of contemporary standards of justice.

2. THE COMMON LAW OF FELONY MURDER AND DURRESS

   1. BACKGROUND OF THE FELONY-MURDER RULE

      In the early development of English common law, murder represented a very specific act: the unlawful killing of another person with "malice aforethought." (27) Malice meant the intent to kill. (28) Aforethought required that the killing be premeditated. (29) Over time, judges expanded the boundaries of common law murder and distinguished two categories of malice: express malice and implied malice. (30) Where a killer displays a purposeful intent to kill, he acts with express malice. (31) Implied malice, alternatively, exists where the killer does not intend to kill but the circumstances of the killing demonstrate that he acted with a malignant heart. (32)

      Based on the concept of implied malice, several English legal commentators theorized that one who inadvertently kills in the course of an unlawful act is guilty of murder. (33) In 1628, Sir Edward Coke opined:

      [I]f A. meaning to steal a deere in the park of B., shooteth at the deer, and by the glance of the arrow killeth a boy that is hidden in the bush: this is murder, for that the act was unlawfull, although A. had no intent to hurt the boy.... [Yet,] if B. the owner of the park had shot at his own deer, and without any ill intent had killed the boy by the glance of his arrow, this had been homicide by misadventure. (34) Under Coke's analysis, the first shooter commits murder because his unlawful intent amounts to implied malice. (35) Meanwhile, the second shooter, who was engaged in lawful conduct, avoids criminal liability with a defense of per infortunium. (36) Two centuries later, Sir William Blackstone adapted Coke's doctrine in defining the basis of the felony-murder rule. Blackstone wrote, "[W]hen an involuntary killing happens in consequence of an unlawful act, it will be either murder or manslaughter according to the nature of the act which occasioned it. If it be in prosecution of a felonious intent, it will be murder." (37)

      Forty-eight states currently recognize some version of the felony-murder rule. (38) State approaches vary, but the offense has three general elements. First, the defendant must commit or attempt to commit the felony. (39) Second, a human being must be unlawfully killed. (40) Third, that killing must occur during the commission of the felony. (41) Many states limit the felonies which trigger felony murder to those offenses which are dangerous to human life. (42)

      Although murder traditionally requires that a defendant commit a killing with a culpable mental state, felony murder requires no culpable mental state as to the killing. (43) The defendant's mens rea for the felony substitutes for his mens rea for the murder. (44) Some scholars insist that since felony murder does not require a culpable state of mind, it operates as a strict liability offense. (45) It makes a felon responsible for any death, accidental or otherwise, that occurs during the course of his felony. (46) Other commentators assert that felony murder simply creates a per se culpability rule. (47) Because felonious conduct is inherently dangerous, felony murder infers the mens rea of negligence or recklessness for any killing which occurs in the course of a felony. (48)

      By enforcing the felony-murder rule, the government hopes to deter dangerous conduct. (49) The rule, in theory, serves two distinct deterrent purposes. First, it seeks to prevent reckless or negligent killing during the commission of a felony. (50) If a felon understands that carelessness carries with it elevated punishment, he might conduct his crime more cautiously. He might elect not to use a weapon, for example, or might try to dissuade others from using force. (51)

      Second, the felony-murder rule aims to deter criminals from committing the felony itself, especially when dangerous. (52) Proponents of the rule believe that threatening severe punishment for any accidental death will inspire potential felons to reconsider engaging in the felony. (53) Two criminals perpetrating the same crime in the same place in the same way will face much different consequences if during one's crime a death inadvertently occurs. (54) By participating, a felon faces the normal chance for standard punishment and a small chance of a very harsh penalty. (55) Here, sentencing operates like a punishment lottery. (56) The criminal plays at his own peril.

      Besides deterrence, retribution also serves as a rationale for the felony-murder rule. (57) Under the theory of retribution, a person who causes harm to society deserves punishment, and the state should punish him proportionally to the harm caused. (58) A reckless bank robber who inadvertently kills a pedestrian during his getaway causes more societal harm than a careful bank robber who only robs the bank without inadvertently killing. (59) Thus, the reckless robber deserves greater punishment than his careful counterpart. (60) Without the felony-murder rule, both would receive similar prison sentences. Both only have mens rea as to the robbery. Without the...