A conviction of felony-murder in the second degree requires the jury to find that (1) the defendant committed or attempted to commit a felony with a maximum sentence of less than imprisonment for life; (2) a killing occurred during the commission or attempted commission of that felony; and (3) the felony was inherently dangerous or the defendant acted with conscious disregard for the risk to human life.
The defendant was convicted of felony murder and arson. He appealed arguing that the predicate felony, armed home invasion, should have merged into the killing of the victim. Essentially, he argued that the same acts that resulted in the victim’s death were the same acts that satisfied the elements of the armed home invasion. Thus, there should be no separate convictions.
Was the defendant’s conviction of felony murder in the first degree valid?
The court reasoned that there were no distinct actions of force used against the victim, other than that which led to her death. However, there was evidence of force used against the other occupants in the home in the form of assault. Thus, the proper jury instruction should have been felony murder in the second degree. Thus, the trial court reversed the lower court’s conviction of first degree felony murder, and remanded for an entry of second degree felony murder, or a new trial.