Considering causation in Missouri felony murder law
Vol. 79, No. 1 / January - February 2023
Chad Flanders is a professor at the Saint Louis University School of Law, where he has taught classes on criminal law, election law, and religion and the First Amendment. Thanks to Brianna Coppersmith for extraordinary research assistance; to Vincent Chiao, Joe Welling, and Hon. Robert Dierker for comments and criticism; and to Maria Kolnar for insightful conversation based on her own work on felony murder.
Editor’s note: This article contains graphic language detailing murders.
It seems manifest that the causal connection between simple possession of a firearm or other article or substance, e.g., burglar's tools, [and a death] is at best attenuated. Merely possessing a firearm does not cause death any more than owning an automobile causes an accident. The question is whether the death is the “natural and proximate” or reasonably foreseeable consequence of the felony in question. The Missouri cases have stretched the boundaries of probability and foreseeability to the utmost.2
In Missouri, one can be guilty of second-degree murder if, during an attempted perpetration, a perpetration, or a flight from the perpetration of a felony, someone is killed “as a result” of any one of the above three things (attempted felony, commission of a felony, or flight from a felony), even absent a malicious mens rea.3 But what does it mean for a death to be the “result of” the perpetration of a felony? This is what one could call the “causation question” in Missouri felony murder law.
Two Missouri cases highlight the puzzles involved in deciding when a death is the “result of” a felony. In State v. Harding, Ricky J. Harding was convicted of felony murder after the victim died during a domestic altercation.4 During the fight, the victim was shot (seemingly accidentally5) by a gun, which was a felony for Harding to possess since he was a felon. But was the victim's death “the result” of Harding being a felon in possession?6 The Missouri Court of Appeals-Eastern District said yes. In State v. Balbirnie, Anthony J. Balbirnie choked a 15-year-old girl while ”engaging in sexual intercourse with her,” and the girl died.7 Balbirnie was convicted of felony murder because he was guilty of felony statutory rape which resulted in a death, the Missouri Court of Appeals-Western District ruled. Was the Court of Appeals right in these two cases?
The causation question in Missouri felony murder law is surprisingly complex. In this article, I explore that doctrine and offer perspective on how I believe courts should analyze it. We’ll examine what “causation” means in the context of Missouri felony murder and the reasoning of the Court of Appeals in Harding and Balbirnie.
The basics of causation and felony murder
Consider a hypothetical example of felony murder based on the facts of a foundational Missouri case, State v. Moore.8 A person brings a gun into a restaurant to rob it. When the robber pulls out the gun, a restaurant patron also pulls out a gun and attempts to shoot the would-be robber. Instead, the patron hits and kills an innocent bystander. The robber is charged with felony murder of the innocent bystander. How should we look at the causation question in this case? Was the death in this case the result of the felony, or the result of something else?
The first, and most basic, issue of causation is “actual causation.” This is the broadest question of them all. We ask: Did the perpetration of the felony causally relate in any way to the death?9 The answer in the above case is yes. As we might put it, “but for” the robber coming into the restaurant to rob it, the innocent bystander would still be alive. It was because the robber came in armed, attempting to commit a felony, that the patron reacted in a fashion which ended up in the death of the innocent bystander. There may be cases in which it will be harder to see the relationship between the actions of the felony and the felon to the resulting death, but this hypothetical does not seem to be one of them.
The problem with actual causation is that it sweeps too broadly; the test for actual causation is too easy to satisfy.10 There are too many actual causes. The fact that someone tried to rob the store is one actual cause of the death of the innocent bystander. But it is also an actual cause of the death that a patron of the restaurant was armed that day and tried to shoot the robber. It is also an actual cause of the death that the innocent bystander was in the restaurant that day and standing where he was standing. And it is also an actual cause of the death of the bystander that the restaurant was open that day rather than closed. Although being an actual cause is a necessary part of the causation analysis in felony murder,11 it cannot be sufficient – there are just too many actual causes of things. The perpetration of a felony is usually one (actual) cause among many.
Therefore, there is also a second causation question – the “proximate cause” question. Here, Missouri takes a different path than other states. Some take an “agency” approach to the proximate cause question in felony murder, which requires that the death be a direct result of some act(s) on the part of the felon or a co-felon.12 In states with the agency approach, for example, the person who fires the shot that kills must be the felon or an accomplice to the felony. In those states, it is not enough that someone caused the death during the perpetration of a felony – it must be an agent of the felony that causes the death, hence the “agency” approach. Missouri does not take the agency approach.
Instead, under Missouri’s “proximate cause” approach, the death need not be at the hand of the felon or a co-felon but must only be a “reasonably foreseeable” result of the perpetration of a felony.13 Here, we ask: Given that the felony was an actual cause of the death, was it also “reasonably foreseeable” that the felony would cause the death? Note how the proximate causation focuses the analysis. There may be many actual causes of the person dying, but not all causes create a reasonably foreseeable risk of death. In the hypothetical, it is not reasonably foreseeable that if you go to a restaurant, someone will die.
However, if you attempt to rob a restaurant while armed like in the hypothetical situation, it is reasonably foreseeable that some people might respond by using deadly force, and, during that, someone might get killed. In Moore, applying the proximate cause approach, the appeals court affirmed Moore’s conviction even though he did not fire the shot that killed the innocent bystander. Because the robbery causally contributed to the death (“actual cause”), and the death was a reasonably foreseeable result of the armed robbery of a restaurant (“proximate cause”), Moore was guilty of felony murder in Missouri.
Causation in two recent Missouri cases
Two recent Missouri Court of Appeals cases highlight difficulties in how to treat causation in Missouri felony murder law. Both are unique in that they revolve around issues of the status of the offender and the victim, where the offense seems to be a function not so much of someone actively doing something, but about someone being something (a felon in possession in one case; a victim under the age of 17 in the other). This raises important questions about what it means for a felony to “result in” a death, and what factors courts should consider when making that decision.
In Harding, decided by the Missouri Court of Appeals-Eastern District in 2017, Harding had purchased a pistol “off the street,” even though he was a prior felony offender and it was illegal for him to have a gun.14 In May of 2014, Harding got into a fight with the mother of one of his children, during which the mother pulled Harding’s pistol out from between the couch cushions. Harding moved for the pistol, but the mother tried to retain possession of it. At some point, the pistol discharged, killing the mother. Harding was found guilty of felony murder since the mother’s death had resulted from Harding’s felony of being a felon in possession.15 On appeal, Harding argued that the evidence was insufficient “to establish that Victim’s death was caused as a result of him being a felon in possession of a firearm.”16
The appeals court’s analysis focused on the question of proximate cause, not on the question of actual cause: Is it reasonably foreseeable that if you commit the felony of being a felon in possession of a firearm that someone will die? Surveying the case law in other states, the court saw two ways it could look at the felony as a proximate cause of the death: It could look at the felon in possession law “in the abstract,” or it could consider how the violation of that law played out in the particular circumstances.17 Some states, considering the felon in possession law in the abstract, found that it was not reasonably foreseeable that being a felon with a gun by itself made it reasonably foreseeable that someone would die as a result.18 But other states seemed to suggest that in some cases, the exact circumstances surrounding the use of the weapon by a felon could mean that death as a result of being a felon in possession could be reasonably foreseeable.19 It might be that, considered in the abstract, the felony does not create a foreseeable risk that death would occur, but considering the circumstances in which the crime happened there was a risk that someone would die.
The appeals court in Harding opted to look at Harding’s felony not only in the abstract, but also in the context of the “underlying” circumstances of the case.20 The court first noted that Missouri, unlike other states, does not restrict which felonies can be the basis of a felony murder charge.21 Some states restrict felony murder to only certain so-called dangerous felonies, 22 which would presumably not include a felon in possession law.23 The court went on to say that while it did not need to look at surrounding circumstances to see whether Harding being a felon in possession was inherently dangerous – it had no need to, given Missouri’s law – it could look at the circumstances of Harding’s felony to see if death was a reasonably foreseeable result.24 Based on the facts that Harding 1) purchased a gun, 2) kept the gun loaded in a couch cushion, and 3) engaged in an argument with the victim, the court found that the felony in context was “closely connected in time, place and causal relation to” the victim’s death, so the death was reasonably foreseeable.25
Balbirnie, decided by the Missouri Court of Appeals-Western District in 2018, has a truly horrific set of facts.26 Balbirnie had sex with a victim who was 15 years old; Balbirnie was over 21.27 While Balbirnie was having sexual intercourse with the victim, he choked her, causing her death.28 Balbirnie was convicted of felony murder with the predicate felony being the statutory rape of the victim.29 Balbirnie appealed, arguing that the death was not the result of the perpetration of the crime of second-degree statutory rape.30
The appeals court rejected Balbirnie’s argument by focusing on proximate cause, as the court in Harding had. The court wrote that, “Here, Balbirnie choked Victim while engaging in sexual intercourse with her. It is reasonably foreseeable that choking a person could cause that person’s death.”31 The court turned to Harding to support its conclusion. Just as the court in Harding looked not only at the felony in the abstract, but also at the “underlying circumstances” in the commission of the felony, so too would the court do in Balbirnie’s case.32 Because the sexual intercourse that Balbirnie engaged in with the victim “included choking her,” the rape of the victim was “closely connected in time, place and causal relation” to the victim’s death, making it “completely foreseeable” that a death would occur.33 Thus, though it might not be foreseeable in the abstract that Balbirnie’s statutory rape of the victim would cause her death, it was reasonably foreseeable given the factual context that she would die as the result of the rape-plus-choking.
Reflections on Harding and Balbirnie
The cases of Harding and Balbirnie show how complex the seemingly simple question of causation in a felony murder case can be. In Harding, the court looked not only at whether the felony “in the abstract” caused a person’s death, but also at the “surrounding circumstances” of the felony. The Balbirnie court did something similar, by including the facts of an arguably separate event – Balbirnie’s choking of the victim – as part of the “underlying facts” that made it foreseeable that the felony of statutory rape would cause a death.
Both Harding and Balbirnie move quickly to the question of proximate causation – whether it was reasonably foreseeable that the perpetration of the felony would cause the death of another. But there is also the question of whether the perpetration of the felony was an actual cause of the death. The language of the Missouri statute seems to point towards asking whether the perpetration of the felony was an actual cause of the death – it has to be something about the felony that must in some way have causally contributed to the death.34 It can’t be that it is enough that someone died while the felony was being committed. Otherwise, it would be sufficient for a felony murder conviction if the roof falls in during a bank robbery and kills someone.35 But again, we should recall that actual causation is a fairly low bar, one that will usually be easy to meet. The state only has to show that something about the felony was involved in bringing about the death.36 In Harding, it seems that we can show actual causation: “But for” Harding being in possession of a pistol (the felony), the victim would still be alive. The firing of the pistol, after all, was an actual cause of the death. So, we can conclude that the requirement of actual causation was met in Harding, because Harding being a felon in possession of a weapon causally contributed to the death of the victim: No pistol, no death.
Consider a variation on Harding, however, that may go to show how complicated even the question of actual causation can sometimes be. In this hypothetical, the gun in Harding remains in the seat cushions of his couch – so Harding is still a felon in possession – but instead of the pistol causing the death of the victim, Harding stabs the victim with a knife. This would be more like a case of a death happening during the perpetration of a felony (the felon in possession) but not the perpetration of the felony causing a death.37 And might this variation perhaps come rather close to the facts of Balbirnie? It was not the felony of statutory rape that caused the death of the victim; it was from something else that happened during the statutory rape – Balbirnie choking his victim. The state would have to demonstrate, at least, that the choking was part of the sexual intercourse (i.e., the felony), not a separate event, to show that it was the sexual intercourse that was an “actual cause” of the victim’s death, and not merely what happened around the same time of the death.38 Of course, even if the choking was the cause of the victim’s death and not the sexual intercourse (and the two were indeed separate events), Balbirnie would still be responsible for the death – he would just not be responsible under a theory of felony murder.
Neither Harding nor Balbirnie looked at the felony just “in the abstract,” as Harding put it, but rather also regarding the “underlying circumstances” of the felony, to see whether a death was “foreseeable.” In Harding, this meant looking at the fact that the gun was in the couch cushions and that there was an altercation between the mother and Harding. In Balbirnie, the court focused on the fact that, during sex, Balbirnie choked the victim. Harding relied heavily on caselaw from Georgia to support its claim that looking at whether a felony caused a death could involve considering actions that concur with the felony.39 In one Georgia case involving a felon in possession felony murder, the court considered the fact that the person (a felon) who possessed the gun used it to shoot at what he thought was a turkey, but turned out to be a person (who died from being shot).40 By contrast, another Georgia case involved a person (also a felon) who was unloading his gun but in the process misfired and ended up shooting and killing someone in a downstairs apartment.41 In the former case, the person’s conviction for felony murder was upheld; in the latter it was reversed.
In these cases, however, the Georgia courts were dealing with a different question than the proximate cause question that engaged the Missouri courts in Harding and Balbirnie, making the focus on them in Harding somewhat unusual. Georgia law, as interpreted by Georgia courts, requires that the felony that forms the basis of a felony murder charge be either inherently dangerous or dangerous given the circumstances.42 If a felony is neither dangerous in itself (i.e., “in the abstract”) nor dangerous in the circumstances in which it was committed, there cannot be a valid felony murder charge. So, the consideration of the nature of the felony, or the felony in the given circumstances of the offense, is a threshold consideration in Georgia. It is an inquiry into whether a certain felony (for example, being a felon in possession) can even count as “one of the inherently dangerous felonies required to support a conviction for felony murder.”43 It is only when a felony does not seem inherently dangerous – such as being a felon in possession – that Georgia courts will go on to consider whether the felony “given the underlying circumstances” presented a foreseeable risk of death.44
Missouri has no such limitation on which felonies can count as so-called “predicate” felonies for felony murder, so it has no need to make this initial inquiry as to whether a felony is “inherently dangerous.”45 When Missouri courts take this aspect of Georgia’s law – looking at the circumstances under which the felony was committed – they are repurposing it. They are using it not to determine whether the felony could be a predicate felony for felony murder, but to analyze whether the felony proximately caused the death. Although this inquiry is similar to the inherently dangerous inquiry conducted by the Georgia courts, it is not being used for what Georgia courts used it for. The Georgia analysis happens at an earlier stage – when determining whether the felony could even count as part of a felony murder charge, irrespective of whether the felony proximately caused the death. Again, Missouri skips this step, for it does not limit which felonies can form the basis of a felony murder charge.
The adoption and repurposing by Missouri of one part of Georgia’s law on felony murder has an unintended irony. Georgia’s courts have interpreted the state’s felony murder law to only include felonies that involve dangerous behavior, finding this limitation as a key part of the history of felony murder law.46 To interpret this limitation, they focus on either felonies that are dangerous in themselves (arson, armed robbery, etc.) or felonies that are dangerous in the particular circumstances in which they are conducted. The focus in Georgia’s felony murder is on dangerous behavior that leads to a death, rather than on felonious behavior per se. This is the way Georgia courts have limited the potentially broad scope of their felony murder rule. By contrast, Missouri’s felony murder law, as interpreted by Missouri courts, is not about dangerousness; it is about whether “any felony” has caused the death. This would seem to rule out any concern with the dangerousness (inherent or not) of the felony and shift the focus to only whether the felony itself was the proximate cause of the death. When Missouri courts allow a consideration of the felony and the surrounding circumstances to enter its analysis, they further broaden the reach of Missouri’s felony murder rule. Missouri’s rule ends up being something like, “felony murder applies when it is reasonably foreseeable that the felony will cause a death or when the felony plus the circumstances surrounding the felony will cause a death.” Missouri courts, in other words, allow elements that happen alongside the felony to count in determining whether the felony was a proximate cause of the death.
Consider if the courts in Harding and Balbirnie looked at the proximate cause question by examining the felony in itself, which is arguably what the statute requires. In Harding, this would require asking whether, simply by being a felon in possession of a weapon, it is reasonably foreseeable that someone would die as a result. With Balbirnie, this would mean asking whether when someone over 21 years old has sexual intercourse with someone under 16, it is reasonably foreseeable that the victim will die. Compare these two inquiries with our hypothetical from earlier in the article. Is it reasonably foreseeable that an armed robbery (considered in the abstract) might lead to the death of another person? The answer to this seems to be clearly “yes.” Courts in Missouri have reached similar conclusions about the felony of drug distribution, considered in the abstract.47
It is harder to see that it is reasonably foreseeable that (simply) being a felon in possession of a weapon or having sex with an underaged victim, again, considered just as felonies in the abstract, would foreseeably lead to a death. Note that answering “no” to these proximate cause questions is independent from the issue of actual causation discussed above (whether the death had as one of its causes the perpetration of the felony). It could be, to take the Balbirnie example, that the sexual intercourse itself actually caused the death of the victim. Even though there might be actual causation here, it still may be that the felony of statutory rape was not the proximate cause of the victim’s death, because that felony considered in the abstract does not create a foreseeable risk of death. So too does the existence of a felon with a gun act as a “but for” cause of the death of the victim in Harding, but it is hard to argue that the death was a “natural and proximate” result of Harding simply being a felon in possession.48
To focus on the question in this way shows how much Harding and Balbirnie rely on facts other than the felony to find proximate cause. Being a felon in possession, by itself, might not make it reasonably foreseeable that a person might die, but being a felon in possession and hiding a gun in the cushions and getting into a fight near where the gun is hidden does make it more likely that a death will result. And having sex with someone underage may not foreseeably lead to someone’s death, but having sex with an underage person and choking them at the same time would predictably lead to a risk of death. In both cases, it seems that far from the felony itself creating a reasonably foreseeable risk of death, it is all the other elements that are happening alongside the felony which create the risk. To be sure, the presence of the gun and the sex provided the occasion for those other circumstances. But the test for proximate causation is not that the felony provides an “occasion” for actions leading to a death;49 it is that the felony is something which (considered by itself, in the abstract) creates a foreseeable risk of death.
In trying to decide Harding, the appeals court reached out to Georgia court decisions, despite that state’s law being fundamentally different from Missouri’s; the appeals court in Balbirnie followed Harding and engaged in a similar analysis. I don’t have to ascribe any bad faith on the part of the Court of Appeals for this move. It is a hard question to decide which felonies create a foreseeable risk of death, and courts can always look to other courts for guidance. But it is important to be clear what those other courts were trying to accomplish. Georgia courts have said that it is permissible to look at facts about the circumstances of the felony being committed to see if it is an “inherently dangerous” felony, because only dangerous felonies can be the basis of a felony murder conviction in Georgia. Missouri courts have no need to consider whether a felony (such as being a felon in possession) is inherently dangerous. The Missouri felony murder statute states any felony can be the basis of a felony murder.
But saying that “any felony” can work for felony murder does not relieve Missouri courts of the obligation to consider whether all felonies create a reasonably foreseeable risk of death. Even though in theory any felony can be the basis of a felony murder charge (per the statute), this may not be enough for a felony murder conviction. Not all felonies are the kinds of felonies that will create a reasonably foreseeable risk of death. For felonies like armed robbery, burglary, or even drug possession, it will be easy to say that they – considered in the abstract – create a foreseeable risk of death. For other felonies, such as being a felon in possession or statutory rape, this is a harder case to make. Missouri courts should be reluctant to allow prosecutors to rely on facts surrounding the felony, such as the accidental discharge of a gun, or the choking of a victim, to show that the existence of the felony itself has created a reasonably foreseeable risk of death. After all, as one state court noted, it will be hard to say that a felony that results in a death did not involve some danger in the particular circumstances in which it was committed.50 Felony murder is already a particularly harsh doctrine – it finds a murder even in the absence of an intent to kill. Missouri does not have to make its felony murder law even more harsh51 by finding proximate causation when there may be none. There does not have be a change in the law for Missouri courts to do this (the courts in Harding and Balbirnie, remember, were taking their cues from out-of-state authority) – just a better understanding of what it means for a felony to be a proximate cause of a death.
1 Chad Flanders is a professor at the Saint Louis University School of Law, where he has taught classes on criminal law, election law, and religion and the First Amendment. Thanks to Brianna Coppersmith for extraordinary research assistance; to Vincent Chiao, Joe Welling, and Hon. Robert Dierker for comments and criticism; and to Maria Kolnar for insightful conversation based on her own work on felony murder.
2 Robert Dierker, 32 Mo. Prac., Missouri Criminal Law § 13:3 (3d ed.).
3 Mo. Rev. Stat. § 565.021.1(2).
4 State v. Harding, 528 S.W.3d 363, 372 (Mo. App. E.D. 2017).
5 The facts of Harding are unclear as to how, exactly, the death happened. I will refer to it in this article from now on as an “accidental” death because, from the perspective of the felony murder doctrine, it does not matter whether the death was caused intentionally or by accident.
6 A recent case from the City of St. Louis had similar facts – with the twist that the defendant (who was a felon) used his weapon in self-defense. Tony Messenger, Jury Foreman Pleads for Leniency in Case Where Law, Not Facts, Dictated Outcome, St. Louis Post Dispatch (May 7, 2022), https://www.stltoday.com/news/local/columns/tony-messenger/messenger-jury-foreman-pleads-for-leniency-in-case-where-law-not-facts-dictated-outcome/article_79ce5be5-27ca-5e19-a302-0b28c78c02f4.html.
7 State v. Balbirnie, 541 S.W.3d 702, 708 (Mo. App. W.D. 2018).
8 State v. Moore, 580 S.W.2d 747 (Mo. banc 1979).
9 See Wayne R. LaFave, Subst. Crim. L. § 6.4(b) (3d ed. Dec. 2021) (“In order that conduct be the actual cause of a particular result, it is almost always sufficient that the result would not have happened in the absence of the conduct; or, putting it another way, that ‘but for’ the antecedent conduct the result would not have occurred.”).
10 See Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 861-62 (Mo. 1993) (“Some lawyers and judges have come to look upon the ‘but for’ test as a particularly onerous and difficult test for causation. Nothing could be further from the truth.”). I thank Robert Dierker for the reference.
11 A point that Missouri courts sometimes get wrong. See, e.g., State v. Scroggs, 521 S.W.3d 649, 656 (Mo. App. W.D. 2017) (“Contrary to Scrogg’s [sic] argument on appeal, the State is not required to prove strict ‘but for’ causation to convict Scroggs of second-degree murder.”). This is simply incorrect as a statement of the law. Both actual and proximate causation must be shown, and if something is not the actual cause of something, it cannot be the proximate cause either. In any event, the main issue in Scroggs was not proximate cause, but actual cause –Scroggs had argued that the death would have happened even if the felony had not been committed.
12 As of April 2022, according to one count, all but 14 states had adopted the “agency” approach to the proximate cause question. Nazgol Ghandnoosh, Emma Stammen, & Connie Budaci, Felony Murder, An On-Ramp for Extreme Sentencing, The Sentencing Project 19 (2022), https://www.sentencingproject.org/wp-content/uploads/2022/03/Felony-Murder-An-On-Ramp-for-Extreme-Sentencing.pdf.
13 See, e.g., Balbirnie, 541 S.W.3d at 708.
14 Harding, 528 S.W.3d at 367.
15 Id. at 368.
17 Id. at 370-71.
18 Id. at 370 (citing State v. Anderson, 666 N.W.2d 696 (Minn. 2003)). The court in Anderson, however, did go on to consider the particular circumstances of the death and the relationship to the death of the crime of felony in possession.
19 Harding, 528 S.W. at 370-71 (citing Ford v. State, 423 S.E.2d 255, 256 (Ga. 1992) and Hines v. State, 578 S.E.2d 868 (Ga. 2003)). I discuss these cases more below in Part III.
20 Id. at 371 (“Thus, Missouri’s felon-in-possession law is sufficient to charge a defendant with felony-murder, but the underlying facts dictate whether Missouri’s felon-in-possession law is sufficient to convict a defendant of felony-murder”) (emphasis in original).
22 See, e.g., Minnesota’s “special danger to human life” standard, a predicate finding for a felony murder charge, State v. Anderson, 666 N.W.2d 696 (Minn. 2003), or Texas’s “clearly dangerous to human life” limitation to felony murder, Boudreau v. State, 631 S.W.3d 319, 326-27 (Tex. App. 2020).
23 But see Shivers v. State, 688 S.E.2d 622, 627 (Ga. 2010) (Nahmias, J., concurring) (finding that being felon in possession is inherently dangerous per se).
24 Harding, 528 S.W.3d at 371.
25 Id. at 371-72.
26 Balbirnie, 541 S.W.3d at 705-07.
27 Id. at 707.
29 Id. at 704-05.
30 Id. at 707.
31 Balbirnie, 541 S.W.3d at 708.
32 Id. at 709.
34 Mo. Rev. Stat. § 565.021.1(2).
35 See State v. Manuel, 443 S.W.3d 669, 675 (Mo. App. W.D. 2014) (“Manuel argues that if a bank roof collapses and kills a bystander during a bank robbery, the killing will have taken place while the robbery was underway, but not as a result of the robbery”). In his treatise, Robert Dierker gives a related example, where a person being robbed “dies from a dose of poison administered previously by a person unrelated to the robbers.” Robert Dierker, 32 Mo. Prac., Missouri Criminal Law § 13:3 (3d ed.). In either case, the requirement that the perpetration of the felony actually cause the death is not met.
36 Guyora Binder, in his excellent article, Making the Best of Felony Murder, B.U. L. Rev. 402 (2011), considers the example of someone who is out joyriding and hits someone, based off the facts of the Missouri case State v. Colenburg 773 S.W.2d 184, 185 (Mo. App. E.D. 1989). Binder says that a felony murder conviction in a case like Colenburg is “unjust” and even “illegal” because the accident “was not motivated or caused” by the aim of misappropriating the vehicle. Id. at 481. I am not sure this is correct, at least when it comes to the requirement of actual causation, as there is no requirement in Missouri that the death be caused when one is acting in “furtherance of the felony.” Id.
37 In this hypothetical, Harding would still probably be guilty of murder. But he would not be guilty of felony murder unless the assault with a knife was the predicate felony.
38 The question whether the choking was part of the sexual intercourse or only incidental to it was an issue between the parties in the briefing. Balbirnie’s lawyer on appeal argued that the victim’s death was an accidental death as a result of the choking, not a result of the act of sexual intercourse. The state, by contrast, characterized the choking as part of the defendant’s act of violent sex. The appeals court seemed to accept the state’s version of the act. See Balbirnie, 541 S.W.3d at 709 (“the sexual intercourse he chose to engage in with Victim included choking her” (emphasis added)).
39 Harding, 528 S.W.3d at 370. It is unclear why the court chose to focus on Georgia cases. Neither the state nor the defendant in Harding cited any cases from Georgia.
40 Hines v. State, 578 S.E.2d 868, 872 (Ga. 2003).
41 Ford v. State, 423 S.E.2d 255, 255 (Ga. 1992).
42 See Harding, 528 S.W.3d at 370-71.
43 Hines, 578 S.E.2d at 872.
44 Minnesota also takes a similar approach, limiting predicate felonies for felony murder to those that pose a special danger to human life, which requires “consideration of the elements of the underlying felony in the abstract and the circumstances under which the felony was committed.” See Anderson, 666 N.W.2d at 700-01. However, Minnesota does not go on to consider the felony under the circumstances in which it was committed if it finds that the felony is not inherently dangerous in the abstract. By contrast, Georgia goes on to consider the circumstances in which the felony was committed even if the felony is not inherently dangerous in the abstract.
45 See Harding, 528 S.W.3d at 371.
46 See Hines, 578 S.E.2d at 872 (“The only limitation on the type of felony that may serve as an underlying felony for a felony murder conviction [in Georgia] is that the felony must be inherently dangerous to human life. A felony is inherently dangerous when it is dangerous per se or by its circumstances creates a foreseeable risk of death.”) (internal citations and quotations omitted).
47 See, e.g., State v. Burrage, 465 S.W.3d 77, 81 (Mo. App. E.D. 2015) (“Death is a foreseeable part of an illegal drug transaction because guns are commonly carried and used by participants in drug deals.”).
48 See Anderson, 666 N.W.2d at 701. See also Mettis v. State, 511 S.E.2d 508, 510 (Ga. 1999) (status felony of being a felon in possession is not inherently dangerous); State v. Underwood, 615 P.2d 153, 161 (Kan. 1980) (“The unlawful possession of a firearm … when considered in the abstract is not a felony inherently dangerous to human life.”); People v. Satchell, 480 P.2d 1361, 1369 (Cal. 1971) (same).
49 This is closer to the test for actual causation.
50 See Anderson, 66 N.W.2d 701 n.6 for a related criticism of Georgia’s approach to felony murder (“Looking only at the circumstances of a particular case – i.e. the facts-would eviscerate the special danger to human life standard because the predicate offense would always be found to have been committed in a particularly dangerous manner if a death occurs.”).
51 We have seen two ways in which Missouri law is harsher than other states: (1) it takes a proximate cause rather than an agency approach to felony murder, and (2) it has no limitation on what felonies can be the predicate felony for felony murder.