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Oklahoma Uniform Jury Instructions
Criminal 2nd Edition (
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OUJI-CR 4-65

MURDER IN THE FIRST DEGREE BY FELONY MURDER -

IN THE COMMISSION OF DEFINED

A person is in the commission of

[forcible rape]

[robbery with a dangerous weapon]

[kidnapping]

[escape from lawful custody]

[eluding an officer]

[first-degree burglary/arson]

[murder of a person other than the deceased]

[shooting/discharge of a firearm/crossbow with intent to kill a person other than the deceased]

[intentional discharge of a firearm/[specify other deadly weapon] into a dwelling/(building used for business/public purposes)]

[unlawful distributing or dispensing of controlled dangerous substances/synthetic controlled substances]

[trafficking in illegal drugs]

[(manufacturing)/(attempting to manufacture) a controlled dangerous substance)]

when he/she is (performing an act which is an inseparable part of)/(performing an act which is necessary in order to complete the course of conduct constituting)/(fleeing from the immediate scene of) a/an

[forcible rape]

[robbery with a dangerous weapon]

[kidnapping]

[escape from lawful custody]

[eluding an officer]

[first-degree burglary/arson]

[murder of a person other than the deceased]

[shooting/discharge of a firearm/crossbow with intent to kill a person other than the deceased]

[intentional discharge of a firearm/[specify other deadly weapon] into a dwelling/(building used for business/public purposes)]

[unlawful distributing or dispensing of controlled dangerous substances/synthetic controlled substances]

[trafficking in illegal drugs]

[(manufacturing)/(attempting to manufacture) a controlled dangerous substance)] .

______________________________

Statutory Authority: 21 O.S. 2011, § 701.7(B).

Notes on Use

This instruction must be given in every prosecution for murder in the first degree by felony murder.

If the predicate felony is an attempted crime, the trial judge should give the appropriate instructions for attempts (OUJI-CR 2-10 to 2-15).

Committee Comments

The first-degree felony-murder statute explicitly negates the requirement of mental state, and is analogous in this respect to the pre-1973 felony-murder statute. An analysis of the elements of first-degree felony murder follows.

Since intent to effect death is not an element of the crime of felony murder, an accused may be found guilty of murder in the first degree where he/she engages in one of the specified felonies, and his/her personal conduct causes death. The instruction encompasses this straightforward situation.

The felony-murder statute states that a person commits murder when that person or another person takes the life of a human during, or if the death of a human being results from, the commission of an underlying felony. The statute was amended in 1996 to cover deaths that occur at the hands of the intended victim of the underlying felony, police officers, or innocent bystanders. Dickens v. State, 2005 OK CR 4, ¶ 8, 106 P.3d 599, 601 (‚??That a police officer killed a codefendant does not relieve Appellant of responsibility for the death.‚??); Kinchion v. State, 2003 OK CR 28, ¶ 6, 81 P.3d 681, 683.

Even though a person may be convicted under the felony-murder rule for the acts of an accomplice, he may not be subject to the death penalty unless he was individually culpable for the killing. See Tison v. Arizona, 481 U.S. 137, 158 (1987) (requiring "major participation in the felony committed, combined with reckless indifference to human life" for defendant to be subject to the death penalty under the felony-murder rule); Enmund v. Florida, 458 U.S. 782, 797 (1982) (reversing death penalty where the defendant neither killed, attempted to kill, or intended the killing to take place or the use of lethal force).

The Death Occurred as a Result of an Act or Event Which Happened in the Commission of a Specified Felony. The statute defines murder in the first degree to include killings perpetrated during the course of a number of specified felonies.

The trial court must instruct the jury regarding the elements of the underlying felony with which the defendant is charged.

The trial judge must also instruct the jurors regarding the breadth of the "in the commission of" language, so there is no confusion regarding whether a homicide has been committed "in" the course of committing a felony. Therefore, a separate instruction defining "in the commission of" is included.

It must be noted that the guidance afforded by Oklahoma case law regarding the scope of criminal conduct included within the purview of "in the commission of" indicates a broad reading of this language. In Clark v. State, 1977 OK CR 4, 558 P.2d 674, in construing the predecessor first-degree felony-murder rule, the court declared:

[I]f the homicide is committed during the one, continuous transaction, the acts are so closely connected as to be inseparable in terms of time, place, and causal relation, and the actions tend to be explanatory and incidental to each other, the homicide has been committed during the felony in our statutory sense.

Id. ¶ 16, 558 P.2d at 678. The felony-murder rule was held applicable in that case to the killing of a hostage taken during a bank robbery by the defendants after they had left the bank and placed the deceased and another hostage in a different location. See also Johnson v. State, 1963 OK CR 91, 386 P.2d 336, (homicide committed during resistance by defendant after burglary attempt was thwarted by pursuing officers constitutes murder); Oxendine v. State, 1960 OK CR 26, 350 P.2d 606 (homicide committed to avoid detection and identification of perpetrators of felony constitutes murder).

A defendant may be convicted of murder under the felony-murder rule even though the defendant does not complete the underlying felony crime. For example, the Oklahoma Court of Criminal Appeals affirmed a murder conviction in James v. State, 1981 OK CR 145, 637 P.2d 862, where the fatal injury occurred during the course of an attempted robbery with a dangerous weapon. The court stated: "[T]his Court has concluded that the Legislature intended to include attempted armed robbery in the felony murder statute, just as they intended to include attempted armed robbery in the statute defining armed robbery." Id. ¶ 13, 637 P.2d at 865. See also McDonald v. State, 1984 OK CR 2, ¶ 8, 674 P.2d 51, 53 (following James).

Causation. In a line of cases, the Court of Criminal Appeals has recognized a nexus requirement between the underlying felony and the victim‚??s death in order for the felony murder doctrine to be applicable. Malaske v. State, 2004 OK CR 18, ¶ 5, 89 P.3d 1116, 1118; Wade v. State, 1978 OK CR 77, ¶ 4, 581 P.2d 914, 916; Lampkin v. State, 1991 OK CR 33, ¶4, 808 P.2d 694, 695; Diaz v. State, 1986 OK CR 187, ¶ 9, 728 P.2d 503, 509; Irvin v. State, 1980 OK CR 70, ¶ 34, 617 P.2d 588, 597. This requirement is satisfied if the defendant‚??s conduct was a substantial factor in bringing about the death and the conduct is dangerous and threatens or destroys life. See OUJI-CR 4-60, supra.

(2018 Supplement)


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