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Generally referred to as the "agency" theory of liability, the doctrine of felony murder does not extend to a killing, although growing out of the commission of the felony, if directly attributable to the act of one other than the defendant or those associated with him in the unlawful enterprise. Therefore, a felon is not liable for his co-felon's death if the co-felon is killed by a victim or a police officer attempting to thwart the crime. On the other hand, the defendant is responsible for any lethal acts perpetrated by his co-felons in furtherance of their common design.
Robert M. Myers was indicted by the grand jury for the manslaughter of New Orleans police officer Joseph Thomas and the manslaughter of Jessie Lopez in violation of La. R.S. 14:31. The indictment charged that the manslaughters were committed during the perpetration of a felony, specifically a violation of the Controlled Dangerous Substances Act. After trial by jury, Myers was found guilty as charged. He was sentenced to serve twenty years at hard labor on each count, with the sentences to run concurrently. The court of appeal reversed Myers’ convictions and sentences.
Was there sufficient evidence to support Myers’ convictions for the manslaughter of Officer Joseph Thomas and the manslaughter of his accomplice, Jessie Lopez, while engaged in the perpetration of a violation of the Controlled Dangerous Substances Act?
Yes (Officer Thomas); No (Accomplice Lopez).
The court reversed as to Thomas’ death, affirming Myers’ conviction on that count, and affirmed as to the accomplice's death, reversing Myers’ conviction on that count. There was sufficient evidence that Myers’ accomplice was aiding and abetting Myers in violating the Controlled Dangerous Substances Act; therefore, Myers was liable for the accomplice's killing of Thomas. There was insufficient evidence to conclude that Myers, or anyone acting in concert with d Myers, was responsible for the death of the accomplice, who was shot by Thomas in self-defense.