Tulsa Attorney BlogFelony Murder Doctrine Narrowly Escapes Expansion in Oklahoma: 2021 OK CR 35

Oklahoma Is Trying to Broaden The Felony Murder Doctrine

Video Transcribed:  Felony murder doctrine narrowly escapes expansion in Oklahoma. My name is James Wirth, I am an Attorney in Tulsa, Ok. We’re talking about a new case from the Oklahoma Court of Criminal Appeals. It’s actually a published decision. It’s Sims v. State of Oklahoma, 2021 OKCR35, and it deals with the felony-murder doctrine. In this case, the state is trying to broaden that doctrine to apply to something that history historically hasn’t been done before. And ultimately, the trial court agreed with that. So here’s the scenario.

We’ve got a defendant who tries to arrange for the purchase of marijuana. Shows up to purchase that marijuana, something happens and two people get shot and killed as part of that. Ultimately, the defendant gets charged with felony murder, which is a way to get to first-degree murder, not because they’re alleging specifically that he shot the people, but they’re alleging that the death of the people occurred during the commission of a felony.

The felony being not the buying of marijuana, because that would be a misdemeanor, or possessing is a misdemeanor, but the selling of marijuana, which is a felony, even though he wasn’t the seller, he was the buyer. That put the court in a weird deposition to decide, does that apply in a case like this? And that requires us to look a little bit back to what is the felony murder doctrine and how does that applies?

So essentially what the legislature has to determine in Oklahoma and some other states that have adopted felony murder doctrine, is that you don’t have to prove the normal things you have to prove to get to first-degree murder under certain circumstances. So normally, first-degree murder would be premeditated murder, something along those lines.

But the legislatures and ultimately the governor at some point signed the felony murder doctrine originally, which says that even if you don’t have the requisite intent to kill if somebody dies at your hands, while you’re committing certain felonies, then that also is going to amount to first-degree murder. You’re not going to have to prove the intent. It’s a way for prosecutors to be able to convict on first-degree murder in a way that’s a little bit easier when it’s done during the commission of certain felonies.

So that was the original felony murder doctrine. It’s been expanded by law since that time, to where used to be it’d have to be the defendant was the one that caused the killing, in 1996, it was greatly expanded. And the language from that point says it’s not just the defendant if the defendant or somebody else causes the death of somebody during the commission of a felony.

So if the defendant is committing one of these certain felonies, robbery, distribution of CDS, and as a result of that, a third party kills somebody, even if it’s, say, the cops show up and the cop kills the person that is working with the defendant as part of that, even though the defendant had no intent to harm his buddy, apparently who was committing this crime with him, the cop that showed up and kill him, the cop’s not guilty of anything. The defendant is guilty of first-degree murder, the same as premeditated coldblooded murder because of the felony murder doctrine after that 1996 amendment to it.

attorney in OklahomaSo now this issue comes before the court, from the trial judge that found that, yes, this is felony murder, even though the defendant isn’t the one that committed the crime.

So not the one that committed the murders, at least not as proven in the case, not the one that committed the felony offense, the distribution of CDS. They’re alleged to have aided in the felony offense. And we can look at the opinions from two…

There were two dissents because ultimately the Oklahoma Court of Criminal Appeals reversed the trial court and said, “No, this is not felony murder. It can’t be expanded like that. We’re going to reverse, remand it down for a new trial, dealing with certain issues.”

But there were two judges on the Oklahoma Court of Criminal Appeals who had dissents to that. And they said things like, “The defendant set in motion a chain of events so perilous to the sanctity of human life, that death resulted therefrom.” And that’s a common language that you see for felony murder.

And then the setting in motion, how did the defendant set in motion? They set in motion by trying to purchase marijuana. But the purchasing of marijuana is not a felony. It’s not listed on the felony offenses that can be felony murder, but they’re saying that the defendant doesn’t have to be guilty of it as long as they participated in some way to cause those things to occur.

That’s the issue that went to the Oklahoma Court of Criminal Appeals. They said, “No, that’s not how felony murder works. We’re not going to broaden it that widely to say they don’t even have to be guilty of the underlying felony.” But two judges on that court ultimately did not like that decision, they wanted to affirm.

And what’s really interesting, that we see a lot of opinions from the Oklahoma Court of Criminal Appeals expanding laws, bending over backward in some cases to keep these convictions, which didn’t happen in this case. And ultimately, they reversed it and sent it back down. But what makes that really interesting is that there were two visitors making this decision with the Oklahoma Court of Criminal Appeals.

Honorable Judge Kane and Honorable Judge James Winchester, both were two judges on this case, but they actually came from the Oklahoma Supreme Court and were filling in for other ones. If you take those two judges out, the Oklahoma Court of Criminal Appeals, in a decision two to one, would’ve affirmed this great expansion to the felony-murder doctrine.

So that’s a little bit of the background on what’s going on in the court. As I’ve said in other videos, the Oklahoma Court of Criminal Appeals, incredibly conservative, always looking, and most of the time finding, ways to maintain these convictions, including finding waiver arguments, bending over backward. We saw how they did a complete 180 in the Wallace case regarding McGirt and PCRs. But the Oklahoma Supreme Court is actually very different, much more liberal. So it’s really interesting.

Some issues could actually be decided before each of those, certain fourth amendment issues may go to each of those courts, depending on what type of appeal it is, whether it’s a DUI appeal related to the traffic stop or whether it’s the driver’s license appeal related to the DUI. They could go to different courts, get to different decisions based on the fourth amendment issue.

So that’s always strange, but this is the first time we’ve seen that the decision was actually made by the Oklahoma Court of Criminal Appeals was probably different just because we had visiting judges from the Oklahoma Supreme Court.

So if you’ve got any questions about the Oklahoma felony murder doctrine, how it may apply to your case or a family member’s case, you’re going to want to talk to an attorney about that specifically, confidentially. To get that scheduled with somebody at my office, you can go online to makelaweasy.com.

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