At common law, a felony murder was defined as the unlawful killing of a human being while in the commission of a felony crimes (LaFave). However, the modern concept of felony murder has widely been interpreted to mean an unlawful killing that occurred in the commission of only a certain type of felony crime, or acts that are deemed, by the totality of circumstances, to be inherently dangerous (LaFave). Under the federal criminal code, a person is guilty of felony murder if in “preparation of, or attempt to perpetrate, any” robbery (LII). Robbery, under the federal criminal code, is a felony and includes bank robbery, which is defined as using “force and violence, or by intimidation” to take or attempt to take “property, money or any other thing of value,” under the care or control of “any member bank of the Federal Reserve System (LII2). Accordingly, under the facts as presented in this scenario, armed robbery is included in the crimes that can give rise to charging Archer and Ray with felony murder.
Archer has no defense against the felony murder charge (LaFave). Under the facts of the case, it is clear that he perpetrated the robbery of a bank. Assuming that Bank of America is a member of the Federal Reserve System, then the robbery was a violation of the federal criminal code. Second, the robbery was independent from the killing. In other words, Archer had not planned on killing the person as part of his robbery scheme but it nevertheless occurred as a result of his action during the robbery. Third, the killing was a foreseeable result of robbing a bank armed with a gun. Here, the long history of bank robbery in the US, makes it abundantly clear that if one uses a gun in robbing the bank, it is possible that some one, most likely a security guard or bank teller, will get shot and die from their resulting wounds. Finally, the injured customer died at the bank. Accordingly, under the facts, Archer has no defense to the charge.
Conversely, Lana has a narrow defense against the charge. If Lana knew Archer was going to go into the bank armed with a gun, then she would also have no defense against the felony murder charge. This is so for the same reasons that Archer has no defense, namely Lana’s foreseeability that someone could get shot and killed if they conduct a robbery armed with a gun United State v. Carter). However, under the facts of the case, Archer, Ray and Lana did not plan on using a gun to rob the bank. Moreover, Lana was completely surprised when Archer produced the gun at the start of the robbery. Accordingly, Lana was not a party to the killing; had “no reasonable ground” to believe or know that Archer was armed; and had no way of knowing that Archer “intended to engage in conduct that would lead to a firefight and killing of a bank customer in the process (LaFave). If Lana had made this argument; it is likely that she would have been afforded a defense to the felony murder charge that Archer committed.
As discussed generally above, the robbery was independent of the killings. What “independent” means in the context of felony murder is that it is unrelated to the death of the bank customer. That is to say the elements of a bank robbery, namely the use of force or threat of force to take money or property in the care and control of a bank; is different from murder, or more specifically, homicide which refers to the unlawful killing of another. However, as a result of one’s attempt to rob the bank, which is a felony; a murder happens, then felony murder liability arises. Another way to consider how the charge or robbery is independent of the murder is to say proving either crime does not establish the elements of the other (Finkelstein, n.d.). In order to prove each crime, a prosecutor would have to convince a jury that all the elements of each crime have been satisfied by the facts of the case.
As mentioned, the fact that Ray and Lana did not know of that Archer’s decision to bring and use a gun are important in terms of their criminal liability. If they knew that Archer was going to being a gun, then even though they did not want or agree that a gun should be used; the fact of the matter is that it was foreseeable that he would use the gun, that someone would be shot and killed. Accordingly, Lana, and Ray, if he survived, would have been as guilty as Archer for the shooting death of the bank customer (United States v. Carter). However, since they did not know that Archer decided to bring a gun; indeed, Ray was surprised that Archer was armed, they have a valid defense against the charge of felony murder (LaFave). This is so because, as mentioned above, they can argue that since the original plan specifically included an agreement to “not use any firearms,” they had absolutely no way of reasonably knowing that a killing would occur. This is so even though bank robberies are generally highly dangerous acts that have often led to someone’s death; it is possible that Ray and Lana believed that no one would or could get killed in their plan to rob the bank.
In regards to whether or not the two deaths, namely that of the bank customer and of Ray, are attributable to the actions of Archer and Ray depends on each individual death. As explained above, the death of the bank customer is attributable to Archer’s action. He robbed that bank armed with a gun, and during the commission of the robbery he shot a bank customer. His actions absolutely fit the elements of a felony murder under the federal criminal code. Since Lana did not know Archer would use a gun in the robbery, she has plausible deniability in the shooting of the bank customer and therefore should escape any liability that arises from his/her death.
As for the death of Ray, as a result of being shot by a bank security guard during the commission of the robbery; neither Archer or Lana can be held liable. That is to say, Ray’s death is not directly attributable to either Archer or Lana (LaFave). According to the 1958 case Commonwealth v. Redline, there is no liability for a defendant for murder of a co-felon by a victim, police officer, or bystander. (Redline). In Redline, the issue before the court was whether a defendant can or should be found guilty of a co-defendant’s death that occurred while the two were conducting an armed robbery. The co-defendant was killed by a plain clothed police officer who attempted to stop them trying to escape from the robbery. According to the Redline court, a defendant’s liability cannot be based on the justifiable homicide of a co-felon that was the result of a third party involved or affected by or in the commission of the felony. In other words, when a murder is committed, “either by command or, at least with permission of the law,” a key element of murder, namely the malice is absent from the commission of the crime. Accordingly, in order for a charge of murder to be available in the above example, the death that the robbery resulted in must be “a consequence of the robbery and not merely a coincidence (Redline). In the case of Ray, it was clear that hid death was a coincidence rather than a consequence. Accordingly, in finding for the defendant, the appellate court, the courts analysis since Ray was shot by the security guard, neither Archer nor Lana are liable for his death even though they three conspired to conduct the bank robbery.
Works Cited
Commonwealth v. Redline, 137 A.2d 472. Supreme Court of Pennsylvania, 1957. Web. http://law.justia.com/cases/pennsylvania/supreme-court/1958/391-pa-486-0.html
Finkelstein, Claire. “Merger and Felony Murder.” University of Pennsylvania Law School, https://www.law.upenn.edu/cf/faculty/cfinkels/workingpapers/Merger%20and%20Felony%20Murder.pdf
LaFave, Wayne, R. Criminal Law, 3rd ed. St. Paul: West Group. 2000. Print.
Legal Information Institute (LII). “18 U.S. Code Section 2113 – Bank robbery and incidental crimes.” LII. Web. https://www.law.cornell.edu/uscode/text/18/part-I/chapter-103
Legal Information Institute (LII2). “18 U.S. Code Section 1111 – Murder.” LII. Web. https://www.law.cornell.edu/uscode/text/18/1111
United States v. Carter, 445 F.2d 669. The Court of Appeals for the District of Columbia Circuit, 1971. Web. https://tinyurl.com/zv9juwc
