The West Virginia Supreme Court ruled recently that a criminal perpetrator cannot be charged with felony murder if the co-perpetrator was killed by the intended victim. This decision came in response to a 2011 case where two perpetrators committed an attempted burglary at an A&M Quick Mart and the store owner shot and killed one of them. Although the store owner was not charged, the surviving perpetrator was charged with felony murder. A Hancock County Circuit Court judge later dismissed the charge, and the decision was appealed to the West Virginia Supreme Court. The Supreme Court confirmed the lower court’s ruling.
Under West Virginia Code section 61-2-1, felony murder is defined as: “Murder by poison, lying in wait, imprisonment, starving, or by any willful, deliberate, and premeditated killing, or in the commission of, or attempt to commit, arson, kidnapping, sexual assault, robbery, burglary, breaking and entering, escape from lawful custody, or a felony offense of manufacturing or delivering a controlled substance.” The Supreme Court noted that the felony murder statute is derived from West Virginia common law, and that the offense always involved the death of a victim of the felony or the death of a police officer. The Supreme Court further stated that until the state legislature sees fit to amend the statute, it would not rule that a criminal perpetrator could be charged with felony murder even for murders the perpetrator did not commit. However, the perpetrator in this case would still face charges of conspiracy and burglary.
The Supreme Court’s ruling did not escape criticism. One prosecutor in a similar case argued that those involved in a serious crime, from which one or more deaths could result, should face serious consequences.
This ruling could prove to be quite significant for other suspects charged with felony murder, as well as West Virginia criminal defense attorneys. There is a case pending where a suspect in a pharmacy robbery was charged with felony murder after a pharmacy employee shot and killed the co-suspect. The prosecutor said that he would proceed with the case as if nothing had been changed until the situation was addressed in court.
The Supreme Court’s ruling is encouraging and, if the West Virginia legislature does not amend the statute to extend felony murder, could prevent countless people from being convicted based on a disturbingly literal reading of section 61-2-1. There is no reason that a criminal suspect should be charged for the murder of his co-conspirator if he was not the one responsible. While it could be argued that the felony murder statute can be read very broadly, and that, like the killing of an intended victim or a police officer, the criminal suspect should have been prepared for any killings to occur, applying felony murder in this situation goes too far. It is not as though such a charge would help deter criminal activity, or that the suspect would “get away with something” if the charge were not applied. The suspect would still have to face other charges associated with the crime. Only in this case, any possible sentence would be based on the suspect’s actions, not on the actions of a third party.