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Under Wis. Stat. § 940.03, a defendant can be charged with felony murder for the death of a co-felon when the killing was committed by the victim of the underlying felony. Section 940.03 limits liability to those deaths caused by a defendant committing or attempting to commit a limited number of inherently dangerous felonies, but it contains no other limitations on liability. The state need only prove that the defendant caused the death, and that the defendant caused the death while committing or attempting to commit one of the five listed felonies. The defendant's acts need not be the sole cause of death.
Although defendant masterminded a plan by which he and two co-felons would rob Tom Stoker, a bookie, he remained in the car while his two co-felons entered the bookie's home. The plan went awry when the bookie fatally shot one of the co-felons. Defendant left with the car without waiting for his co-felons. Subsequently, defendant was convicted of felony murder and appealed. When the appellate court sustained the trial court's rulings, defendant sought further review, arguing that the felony murder statute, did not apply to a co-felon when the victim of the underlying felony killed one of the other felons.
Could the defendant be charged with felony murder under sec. 940.03, Stats., notwithstanding the fact that it was the intended victim who killed the defendant’s co-felon?
The court affirmed the decision of the lower courts. Under the circumstances, defendant was properly charged with and convicted of felony murder based on the bookie's killing of his co-felon because even though it was the bookie who shot the co-felon, defendant's conduct was a "substantial factor" in bringing about that result. The court also held that conduct during immediate post-crime flight was culpable and that the evidence supported the jury's determination that defendant's conduct was a substantial factor in the co-felon's death. After noting that felony murder was a strict liability offense and that conviction did not require proof of any mental state, the court specifically declared that § 940.03 was constitutional. It also provided directions as to the elements that were to be included in valid jury instructions under § 940.03.