What's Up in the 8th
As they say in the movies, the following is based on a true
story. Two gangs get into a fight; A
fires into the crowd. B, a member of
that crowd, shoots back, but winds up killing C, also a member of the crowd
that A shot into. Can A be prosecuted
for murder?
Hypothetical No. 2, also based etc. A and B kidnap someone. The police arrest A. Several hours later, they find B, who has the
victim tied up in a car. B pulls away,
trying to escape, and is killed by the police.
Can A be prosecuted for the policeman's killing of B?
Welcome to the felony murder rule.
As everyone remembers from their criminal law class, the
answer to both is a resounding yes, at least in the second scenario, which the
8th District dealt with last week in State v. Gibson. Gibson had been the mastermind of a
kidnapping, using "mastermind" in the loosest possible sense. (Tip to would-be kidnappers: if you wind up negotiating your ransom demand
from $150,000 down to $25,000, that's indicative of a lack of planning.) The felony-murder rule requires that the
death be the "proximate result" of the underlying felony, which means that the
conduct must have caused the result under a "but for" test, and the result must
have been foreseeable. The first part is
a gimme for the State; obviously, a death wouldn't have resulted "but for" the
commission of the crime in virtually any case.
As for the second part of the test, I had an appeal on this issue a
couple years back, I couldn't find a single Ohio case reversing the conviction
for felony murder because the death wasn't
sufficiently foreseeable. The
expansive nature of the requirement is probably best indicated by the response
to Gibson's argument that he should get off the hook because the police didn't
follow protocol in a hostage situation, and it was that failure which resulted
in the accomplice's death. All the court
did was point to the 1st District's 1999 decision in State v. Lovelace, where the defendant led the police on a high
speed chase, and one of the officers ran a stop sign, striking another car and
killing the driver; the fact that the officer's actions violated departmental policy
and might even have been a crime didn't matter a whit.
The facts of State
v. Robinson, a murder case, read
like, well, the facts of just about every other murder case anymore: a "heated altercation after a night of hanging
out and drinking" at the victim's apartment led to a confrontation between two
groups of people the next day, shots were fired, and someone wound up
dead. Robinson had a compelling argument
that his hadn't been the fatal shot. According
to the medical examiner who performed the autopsy, the victim was shot in the
face, and had stippling around the wound, indicating that the shot was fired
from about three feet away. Everybody
had the victim running away from Robinson at the time he was shooting, and
nobody had him within fifteen feet of the victim; thus, Robinson argues, the
fatal bullet was discharged by someone in the victim's crowd, returning
Robinson's fire. The court relies on the
felony murder rule in dismissing this claim:
"We find that it is foreseeable that someone in a crowd, gathered for a
fight, will shoot back if first fired upon."
As might be gathered from the eighty-one pages that the
opinions in Gibson and Robinson consume, there's more than the
felony-murder rule in play. Gibson's chief alternative argument is the
imposition of a whopping trial tax: he wound
up with a sentence of 38 to life, while his co-defendants, who all pled, got
fourteen-, eight-, and three-year sentences.
For those who are unacquainted with the criminal law, the operative
phrase in that last sentence was "who all pled." Gibson also argues misconduct by the
prosecutor, who "personally denigrated defense counsel, alluded to matters not
supported by the evidence, infringed on Gibson's right to remain silent, and
vouched for the credibility or lack thereof regarding certain witnesses." By this time, though, the panel is tiring in
the home stretch -- we're on page 35 -- and peremptorily dismisses the claim without
even telling us what the offending words were.
Robinson's argument about prosecutorial misconduct seems to
have more legs. The State's worst
witness was the medical examiner; her testimony about the stippling on the
victim's face would rule out Robinson as the shooter. So the prosecutor spent some time in closing
argument trashing her, telling the jury that she wasn't a ballistics expert, castigating
the defense for not asking the person who did testify as a ballistics expert about
the stippling, and arguing that an FBI expert's testimony that the Bureau no
longer did gunshot residue tests showed that the medical examiner's testimony about
stippling was worthless. The court finds
all this "improper," but concludes that it did not deprive Robinson of a fair
trial.
That's quite possible, especially given the court's holding
that even if someone in the victim's crowd had fired the fatal shot, Robinson
would still be on the hook under the felony murder rule; in fact, that would
have been the best way to counter the claim of error. Instead, though, the court sums up the
rejection this way:
The trial court
specifically instructed the jury that opening statements and closing arguments
of counsel were not evidence, and that the jury was to decide the case solely
on the evidence presented. We have no
basis to conclude that the jury did not follow this instruction.
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