The Missouri felony murder rule's merger limitation: a doctrine in limbo.

• Author: Guemmer, Jared
• Position: LAW SUMMARY

1. INTRODUCTION

   American criminal law is riddled with peculiarities that are decidedly "American" in nature. The United States plots its own course while other common law countries, like England, abolish certain forms of criminal liability (1) and punishments, (2) or establish mandatory protocols for criminal interrogations. (3) Among the most prominent of America's legal eccentricities is its continued use of the felony murder rule. It casts a broad shadow over America's criminal justice system by drastically increasing the punishment for criminal activity that is often less culpable than other offenses not prosecuted under the felony murder rule. (4) Many see it as a form of strict liability when a death results in the course of one's felonious activities. (5)

   Historically, the felony murder rule was unnecessary under common law felonies because all felonies were punishable by death. (6) As justice systems migrated away from that blanket form of punishment, it was important to recognize when a killing was a murder, and thus punishable through the harshest means available under the law. (7) The felony murder rule developed as a means to effectively punish those who caused another's death during the course of a felonious action. (8) The rationale was that those who caused a death while committing a felony should face greater punishment for their wrongful conduct than those who commit felonies without causing a death. (9)

   This new rule presented a problem. One who kills another person under the influence of a sudden heat of passion commits a felony: manslaughter. (10) Thus, the wrongdoer caused a death while committing a felony. (11) Therefore, felony murder must apply. (12) Under this interpretation, felony murder risks obliterating the crime of manslaughter because all manslaughter becomes punishable as felony murder. (13) As a result, the felony murder rule had to be limited in some manner. (14) The courts rapidly recognized the flaw and made it clear that such an absurd result could not stand: the crime of manslaughter would "merge" with the killing. (15) For the same reasons, a lesser degree of murder could not serve as the felony upon which a charge of felony murder was predicated. (16) Thus, the merger limitation of the felony murder rule was born, but felony murder continued to have a broad hold on punishments for killings other than murder.

   Imagine a circumstance where a man finds his wife in bed with another man. Distraught, and unable to think clearly, he grabs a heavy object from the dresser and bludgeons both of them to death in the heat of passion. Every first-year law student recognizes this as manslaughter. (17) But, what if the prosecutor chooses to not charge it as manslaughter? (18) What if, instead, the prosecutor charges the defendant with a non-killing felony, such as assault with a deadly weapon? (19) Now, a killing occurred during the course of a felony other than manslaughter--the underlying felony is the assault, not the killing itself. (20) Can the defendant who committed a textbook manslaughter instead be charged with murder via the felony murder rule? In the vast majority of states, the answer is, "No." (21)

   Most states, almost since the emergence of the felony murder rule, have limited by statute what felonies may serve as predicate--or underlying--felonies. (21) Some states limit the application of felony murder to those felonies inherently "dangerous to life," or they limit them to an enumerated list of felonies. (23) In many states, the merger doctrine applies to "assaultive" felonies and prevents application of the felony murder rule to killings that occur in the course of an assaultive felony. (24) The merger doctrine requires the actor have an independent, felonious purpose, other than causing bodily harm or death to the victim. (25)

   Unfortunately, recent case law in Missouri obliterated the merger doctrine. (26) This Note aims to expose the faulty reasoning applied by Missouri courts in abrogating the merger doctrine. In Part II, this Note will summarize the history of the merger doctrine, both generally and in Missouri. Then, Part III highlights the recent developments in Missouri law regarding felony murder and the merger doctrine. In Part IV, this Note discusses the purpose of the merger doctrine, the rules of interpretation regarding Missouri's felony murder provision, and why Missouri courts incorrectly decided the merger doctrine no longer functions as a valid legal theory in Missouri. Finally, Part V concludes this Note with a short discussion about the future of the merger doctrine and the role the Supreme Court of Missouri must play in that future.

2. LEGAL BACKGROUND

   The merger doctrine was recognized even before the founding of our nation. (27) In America, it first developed in New York, (28) and Missouri followed only a few decades later. (29) This Part will discuss the merger doctrine's development, which gives context to the role of the merger doctrine in our criminal justice system.

   1. Historical Development of the Merger Doctrine

      One commentator noted that "[t]he merger problem was recognized as soon as felony murder rules were first proposed." (30) In 1716, more than one hundred years before New York established the first merger limitation in the United States, (31) William Hawkins wrote that a killing committed in the course of a felony was murder only if it occurred during "the execution of an unlawful action principally intended for some other purpose, and not to do a personal injury to [the victim] who happens to be slain." (32) Though not binding, the history of New York's merger doctrine is useful in understanding the significance of the doctrine. New York was the first state to establish the limitation, and its reasoning reflects many of the core principles and exposes the absurdities of a criminal justice system without a merger limitation.

      In 1838, New York courts recognized the first merger limitation on felony murder in the United States. (33) At the time, New York statutory law dictated that an unlawful killing was murder if it was "perpetrated without any design to effect death, by a person engaged in the commission of any felony." (34) New York adopted the merger limitation in People v. Recto, (35) where the court held that the underlying - or "predicate"--felony must have a purpose independent of the victim's death or serious injury. (36) The facts of that case showed the killing to be, by statutory definition, manslaughter. (37) The New York court rejected the contention that manslaughter could act as the predicate felony for a felony murder charge. (38) Without such a limitation in place, manslaughter would cease to exist because it is a felony from which a killing results--"ergo it is murder." (39) The court refused to allow this absurd result. (40)

      In 1872, New York implicitly extended the merger limitation to felonious assaults (41) but explicitly rejected the application of a merger limitation to rape in 1879. (42) In 1906, the Court of Appeals of New York made explicit what it implied in 1872. It held that assaultive felonies merge into the resulting homicide (43) when it overturned the murder conviction of a defendant who resisted an officer's lawful arrest and the officer died as a result of that resistance. (44) The court held that violence may be part of the underlying felony, but the "other elements constituting the felony in which [the defendant was] engaged must be so distinct from that of the homicide as not to be an ingredient of the homicide." (45) Crimes that did not meet this standard merged with the homicide and could not support a felony murder charge. (46) The New York court notably added that the act causing the death need not be separate from the act performed in committing the underlying felony, stating that "if the act causing the death be committed with a collateral and independent felonious design it is sufficient." (47) Thus, in order for a felony to underlie a felony murder charge, the elements of the underlying felony must provide a "purpose independent of the homicide." (48)

      To summarize, New York concluded that manslaughter may not act as the underlying felony in Rector (49) and, in Huter, that an assaultive felony may not act as the underlying felony when that felony's sole purpose is to inflict harm or death upon the victim. (50) In felony murder cases, a felony could serve as the underlying felony only if it was committed with a "felonious design" that was independent of the intent to assault the victim. (51) For example, rape does not merge with a homicide because it has a motive beyond inflicting harm. (52) These principles are key to understanding the merger doctrine, and understanding them begins to shed light regarding why the merger doctrine plays an important role in ensuring that defendants are punished in accordance with their culpability.

   2. Development of the Merger Doctrine in Missouri

      Missouri was among the earliest adopters of the merger limitation in felony murder cases. (53) In 1845, Missouri's murder statute adopted language that aggravated second-degree murder to murder in the first degree if it was committed in the attempt of any felony. (54) Technically speaking, this was not a true felony murder statute. This statute merely aggravated a murder from second degree to first degree if the murder was committed in the course of another felony. (55) It did not establish any killing in the course of a felony as murder. (56) This distinction should not lead to confusion: the merger limitation analysis applies just the same.

      The Supreme Court of Missouri applied this aggravating statute in a handful of cases. (57) In an 1853 case, State v. Jennings, the Supreme Court of Missouri approved a jury instruction stating: "If ... it was not the intention of those concerned in lynching [the victim] to kill him, but that they did intend to do him great bodily harm, and that in so doing death...