Felony Murder, Depraved Hearts, and the Chauvin Verdict

Former police officer Derek Chauvin was convicted yesterday of three charges: second-degree murder, third-degree murder, and second-degree manslaughter. (Since all three were based on the same act against the same victim, he will only be punished for one.) Understanding these charges, and how likely they are to be sustained on appeal, requires some background.

Felony Murder

The second-degree murder charge is based on the controversial felony-murder rule. This rule is a prime target of the criminal justice “reform” movement. The California Legislature has abolished the rule to the extent that it can, being limited by a voter-enacted initiative.

The felony-murder rule remains in force in most states, however, including Minnesota. Its roots go back to the common law. In the typical case, a charge of murder usually requires the prosecution to prove that the defendant intended to kill the victim. Under the felony-murder rule, though, if a person is killed during the commission of certain felonies, all participants in the felony are guilty of murder. It does not matter who did the killing or whether it was intentional or accidental.

There is wide variation among states as to the breadth of the rule, particularly which felonies qualify. Minnesota Statute § 609.19(2)(1) goes for the max. It includes any felony except drive-by shootings and certain sex crimes, which are dealt with elsewhere.

The inclusion of assault as the underlying felony in the felony-murder rule is particularly problematic. If one person strikes another with the intent to hurt but not kill and the target unexpectedly dies, including assault in the underlying felonies bumps the crime up to felony murder, which in most states is a more serious offense that some other kinds of homicide. Homicide was the first crime to be divided into degrees, and state laws typically have a hierarchy in more detail than most other crimes. Should a person who gets into a barroom brawl that unfortunately and unexpectedly results in someone’s death be punished more severely than one who intentionally kills another person “in the heat of passion,” i.e., voluntary manslaughter?

To deal with this anomaly, many states subscribe to the “merger doctrine.” The assault is said to merge into the homicide so that there is no independent felony for the felony-murder rule to apply to. See People v. Moran, 246 N.Y. 100, 102 (1927). “To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault — a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law.” People v. Ireland, 70 Cal. 2d 522, 539 (1969).

Minnesota does not follow the merger doctrine. The Minnesota Supreme Court already had a history of rejecting it in 1981 when the legislature amended the law, moving felony murder up from third to second degree. The Supreme Court in State v. Jackson, 346 N.W.2d 634, 636 (1984) decided that the legislature had implicitly spoken on the subject, and any change was up to the legislature and not the judiciary.

The crime traditionally known as voluntary manslaughter is first-degree manslaughter in Minnesota. See Minn. Stat. § 609.20(1): “intentionally causes the death of another person in the heat of passion provoked by such words or acts of another as would provoke a person of ordinary self-control under like circumstances ….” How is it possible to commit this crime in Minnesota without also committing second-degree murder? Intentional infliction of bodily harm is assault. See Minn. Stat. § 609.02(10). Assault resulting in substantial bodily harm (and death is certainly “substantial”) is assault in the third degree, a felony. See Minn. Stat. § 609.223(1). Logically, it would seem that everyone who commits voluntary manslaughter also commits felony murder. And, as the Ireland court said, that is not logical.

Can Chauvin appeal, arguing that Minnesota should now embrace the merger doctrine? Yes. Will he succeed? Not likely. First, the case would have to go to the Minnesota Supreme Court, as only that court can overrule its own precedents on state law. Second, even if the court were inclined to overrule Jackson, I doubt it would use this case to do so.

For what it’s worth, I favor keeping the felony murder rule but limiting it to certain particularly dangerous felonies. Kidnapping, rape and other forcible sex crimes, robbery with a deadly weapon, and burglary of a home while armed with a deadly weapon should qualify. These crimes are so dangerous that people who commit them with fatal consequences should be locked up for a very long time even when we cannot prove which perpetrator committed the killing or we cannot prove his mental state. We might allow a partial affirmative defense, with the burden of proof on the defendant, for mitigated cases. The rule should further be limited to the killing of innocent people, not accomplices to the felony. If two people commit a robbery and one is killed by the victim or the police, the other is not a murderer. If the robber’s death is a justifiable homicide, no one needs to go to prison or stay longer in prison because of it.

Does the evidence support application of the felony-murder rule in this case? The underlying crime of assault requires an intentional infliction of bodily harm. Here is the definition of “intentionally” from Minn. Stat. § 609.02(9)(3):

“Intentionally” means that the actor either has a purpose to do the thing or cause the result specified or believes that the act performed by the actor, if successful, will cause that result.

If there is no intent to cause bodily harm, there is no assault and no underlying felony for the felony-murder rule. Negligence is not enough. Even recklessness is not enough. This may be a close call.

Depraved and Malignant Hearts

Another type of murder without specific intent to kill is a killing with extreme recklessness. The classic example is a person who drives down the street shooting the windows out of buildings just for the fun of it, neither knowing nor caring if anyone is inside and killed as a result. This variant also goes back to the common law. In the nineteenth century, it was colorfully described as a killing with “a depraved (or abandoned) and malignant heart.” Such language still exists in statutes that were written in that era and have not been updated.

In Minnesota, the language is at least partially updated in Minn. Stat. § 609.195(a):

Whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years.

It seems obvious to me that this is a codification of the common law “depraved heart murder” rule. Even so, there is a line of cases in Minnesota to the effect that a person cannot be convicted under this statute if his conduct was directed particularly at a single person. A divided Minnesota Court of Appeals held that it could be applied in that situation in State v. Noor, 955 N.W.2d 644 (2001), a case currently under review by the Minnesota Supreme Court. The trial judge in the Chauvin case originally declined to follow Noor because the decision was not final, and he dismissed the third-degree murder charge. The Court of Appeals ordered him to reinstate it.

Whether this count will be thrown out on appeal depends on the outcome in Noor. I think the Court of Appeals majority was right and should be affirmed, but we will see.


Finally, we get to second-degree manslaughter, commonly called “involuntary manslaughter,” Minn. Stat. § 209.205 (1):

A person who causes the death of another by any of the following means is guilty of manslaughter in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both:

(1) by the person’s culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another; …

Any claim that the verdict on this count is not supported by the evidence is unlikely to succeed.

There will, of course, be claims that the entire judgment should be reversed. The trial judge himself noted that the comments of Congresswoman Maxine Waters could be grounds for such a reversal. We shall see.