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9. His best argument for being found NOT guilty is that he
The defendant was charged with felony murder.
A defendant, in desperate need of money, decided to hold up a local convenience store. Determined not to harm anyone, he carried a toy gun that resembled a real gun. In the store, he pointed the toy gun at the clerk and demanded money. A customer who entered the store and saw the robbery in progress pulled his own gun and fired at the defendant. The bullet missed the defendant but struck and killed the clerk.
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There are several limitations to the felony murder rules. For instance, a valid defense to the underlying felony also serves as a valid defense to felony murder; the victim's death must be a foreseeable result of the felony; the victim's death must be caused before the defendant reaches a place of temporary safety; the defendant is not liable for the death of a co-felon killed by police or the original victim. Another limitation to liability for felony murder is the «agency theory» where a defendant will only be liable for felony murder of an innocent party when the killing was committed by the defendant or an accomplice.
The courts are split regarding whether a defendant is liable for felony murder when an innocent party is killed by a third party. Under the «proximate cause theory,» a defendant can be liable for the death of an innocent party caused by a third party because the defendant started the series of events that caused the death. However, under the «agency theory,» the defendant will only be found liable for felony murder of an innocent party when the killing was committed by the defendant or an accomplice.
D is correct. The defendant was committing robbery of the convenience store, an inherently dangerous felony. Even though he did not have a real gun, he still demanded money through the threat of force, as required for a robbery. An innocent victim, the clerk, was killed by the customer, a third party who is not the defendant or an accomplice. The defendant's best defense is one under an «agency theory» where the defendant can argue that he is not responsible for the death of an innocent party by a third party.
A is incorrect. Felony murder does not require that the defendant have the intent to kill. It is sufficient that the defendant has the intent to commit the underlying felony. In this case, the defendant had the intent to commit a robbery, which is all that is needed for purposes of intent for felony murder.
B is incorrect. Felony murder is a killing that occurs during the attempt or the commission of inherently dangerous felonies. A successful conviction of felony murder does not hinge on whether the defendant acquired the money from the clerk. It is sufficient that the defendant attempted to commit the felony; he did not need to complete the robbery in order to be liable for felony murder. It is enough that the death occurred during the commission of the felony.
C is incorrect. Robbery is the wrongful taking of another's personal property from his person or presence through the use of force or threat of force, with the intent to permanently deprive the owner of his/her property. Felony murder simply requires the intent to commit the underlying felony, in this case, robbery. It is irrelevant whether the defendant intended to harm or create any risk of harm, as long as the harm was a foreseeable result. It is foreseeable that a customer could enter the store during the commission of the robbery and could shoot and the defendant and miss.