Hypothetical invoving the Felony Murder rule and a violent crime intermeddled-upon by an un-involved murderer

Question

This is a hypothetical that I encountered in a work of fiction. The work itself wasn't really a story about law and only briefly discussed the possible ramifications, but I thought I would bring it here because I found it really interesting. I'll summarize the case as follows:

Bob Jr. wants to murder his father, Bob Sr. Bob Jr. has all of the required mens rea to commit murder (malice aforethought), he is just waiting for the most opportune moment to commit the actus reus at the lowest likelihood of being caught. Alice, a person with no existing relationship, agreement, or arrangement with either men, kidnaps Bob Sr. and holds him for ransom because the Bobs are rich and are well-known to pay money to make trouble go away. Bob Jr. stages what appears to be a "daring" full-frontal rescue mission/raid to rescue his father, but it is entirely a ruse. Once he's in Alice's facilities, he kills his father with a bomb in a manner calculated to appear as if Bob Sr. was just collateral damage of a rescue attempt rather than the target of a murder plot. Since Bob Jr. is far richer than he is smart, the police figure out the truth pretty quickly and both Bob Jr. and Alice are arrested. Bob Jr. is charged with murder, and Alice is charged with both kidnapping and murder.

Clearly, Bob Jr. is guilty of murder and Alice is guilty of kidnapping. Is Alice also guilty of felony murder because Bob Sr. died in her custody in connection with her kidnapping of him?

My initial thought is that kidnapping would qualify as an "inherently dangerous" crime that would put the offender (Alice) under notice that she could be guilty of felony murder if someone dies, but it seems like Bob Jr. entirely separate criminal scheme might constitute a new intervening cause and place all of the murder liability on Bob Jr. with Alice being guilty only of kidnapping. While the possibility of someone dying in a bona-fide rescue attempt might be reasonably foreseeable by Alice and imported to her, the convenient arrival of a third-party murderer out for blood against her victim specifically might be a bit too much to be reasonably foreseeable.

I'm interested in reasoning or cases from any common law jurisdiction on how this might be handled.

Caveats:

• Bob Jr. and Alice are sane, competent adults and there are no reasons why they would be judged not criminally responsible or unable to stand trial due to insanity. Bob Sr. was a competent adult and not under any kind of guardianship or in any kind of legal custody of Bob Jr. or Alice.
• Bob Jr.'s mens rea to commit murder was perfected and lasted throughout his entire scheme up to the moment of his father's death. No defense on the basis of lack of mens rea or lack of convergence between mens rea and actus reus is plausible.
• Alice had both the mens rea and actus reus to commit kidnapping. She will be found guilty of kidnapping. She was aware that kidnapping is a violent crime that can sometimes lead to death but she had no active intent or plan to kill anyone and the place she was holding her victim was not set up to be a deathtrap. It only became a deathtrap because a third-party murderer broke in.
• Alice had no reasonable reason to suspect that Bob Jr. (or anyone) was planning to murder her victim.
• Evidence showing all of the facts above has been introduced in trial and will be used by the trier of law and trier of fact. No relevant evidence is missing, lost, or inadmissible and no misleading or false evidence will be admitted. In other words, this is a question purely on substantive law and not on procedural rules of trial or evidence or the possibility of an erroneous finding of law of fact.
• No other hypothetical "gotcha" shenanigans are present. This doesn't take place across a jurisdictional border, this doesn't take place in virtual reality, and none of the characters are actually cats.

Answer 1

In Washington state, RCW 9A.32.030(c) encodes the felony murder rule w.r.t. first degree murder:

(c) He or she commits or attempts to commit the crime of either (1) robbery in the first or second degree, (2) rape in the first or second degree, (3) burglary in the first degree, (4) arson in the first or second degree, or (5) kidnapping in the first or second degree, and in the course of or in furtherance of such crime or in immediate flight therefrom, he or she, or another participant, causes the death of a person other than one of the participants:

There being a list of crimes in the statute, we needn't be concerned over whether kidnapping is inherently dangerous. Because Bob is not a participant in Alice's kidnapping scheme, a crucial element of the crime is missing, but there is exceptional stuff after the colon –

Except that in any prosecution under this subdivision (1)(c) in which the defendant was not the only participant in the underlying crime, if established by the defendant by a preponderance of the evidence, it is a defense that the defendant: (i) Did not commit the homicidal act or in any way solicit, request, command, importune, cause, or aid the commission thereof; and (ii) Was not armed with a deadly weapon, or any instrument, article, or substance readily capable of causing death or serious physical injury; and (iii) Had no reasonable grounds to believe that any other participant was armed with such a weapon, instrument, article, or substance; and (iv) Had no reasonable grounds to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.

As you can see, the exception lays out exceptions where a participant might not be found guilty. So, not guilty here. There is also second degree murder per RCW 9A.32.050(b), that

He or she commits or attempts to commit any felony, including assault, other than those enumerated in RCW 9A.32.030(1)(c), and, in the course of and in furtherance of such crime or in immediate flight therefrom, he or she, or another participant, causes the death of a person other than one of the participants

but since kidnapping is not "other than" the previously mentioned crimes, we needn't consider this case any further.

So under Washington law, Alice is only guilty of kidnapping.

Answer 2

colorado

Is Alice also guilty of felony murder because Bob Sr. died in her custody in connection with her kidnapping of him?

The relevant statutes in Colorado are as follows (in the pertinent parts, italic emphasis mine):

18-3-102. Murder in the first degree.

(1) A person commits the crime of murder in the first degree if:

(a) After deliberation and with the intent to cause the death of a person other than himself, he causes the death of that person or of another person; or . . .

(d) Under circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally, he knowingly engages in conduct which creates a grave risk of death to a person, or persons, other than himself, and thereby causes the death of another; . . .

(3) Murder in the first degree is a class 1 felony. . . .

18-3-103. Murder in the second degree - definitions.

(1) A person commits the crime of murder in the second degree if:

(a) The person knowingly causes the death of a person; or

(b) Acting either alone or with one or more persons, he or she commits or attempts to commit . . . kidnapping . . . and, in the course of or in furtherance of the crime that he or she is committing or attempting to commit, or of immediate flight therefrom, the death of a person, other than one of the participants, is caused by any participant.

(1.5) It is an affirmative defense to a charge of violating subsection (1)(b) of this section that the defendant:

(a) Was not the only participant in the underlying crime; and

(b) Did not commit the homicidal act or in any way solicit, request, command, importune, cause, or aid the commission thereof; and

(c) Was not armed with a deadly weapon; and

(d) Did not engage himself or herself in or intend to engage in and had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious bodily injury. . . .

18-3-301. First degree kidnapping.

(1) Any person who does any of the following acts with the intent thereby to force the victim or any other person to make any concession or give up anything of value in order to secure a release of a person under the offender's actual or apparent control commits first degree kidnapping:

(a) Forcibly seizes and carries any person from one place to another; or

(b) Entices or persuades any person to go from one place to another; or

(c) Imprisons or forcibly secretes any person.

(2) Whoever commits first degree kidnapping is guilty of a class 1 felony if the person kidnapped shall have suffered bodily injury; but no person convicted of first degree kidnapping shall suffer the death penalty if the person kidnapped was liberated alive prior to the conviction of the kidnapper.

(3) Whoever commits first degree kidnapping commits a class 2 felony if, prior to his conviction, the person kidnapped was liberated unharmed.

In Colorado, as in Washington, only killings by a participant count as felony-murder, so Alice is not guilty of felony-murder.

But, this is less of a big deal than it seems.

Under recently legislative amendments reflected above, in Colorado, felony-murder is a Class 2 felony (something that is unusual, if not unique, among U.S. states).

Meanwhile, kidnapping is and has always been a Class 1 felony unless the victim of the kidnapping is returned unharmed (without regard to the requirement that the killing be by a participation that applies to felony-murder). This approach to the offense of kidnapping is a common one, found in many states. Effectively, once someone is kidnapped in Colorado, the kidnapper has strict liability for any harm to the victim of the kidnapping which is punishable as if it was first degree murder.

Class 1 felonies are automatically punishable by life in prison without possibility of parole (except for minors tried as adults), in Colorado, which also recently abolished the death penalty.

Prior to the recent abolition of the death penalty in Colorado, first degree murder and kidnapping in which the victim died prior to release were both punishable by death or life in prison without possibility of parole as determined in a penalty phase of the jury trial. And when the death penalty existed in Colorado, felony-murder was a form of first degree murder rather than a form of second degree murder.

In Colorado, a class 2 felony, which is classified as a crime of violence like murder, is punishable by a fix term of incarceration set at sentencing between 16 and 48 years in prison followed by 5 years of post-release supervision, and eligibility for reduction of the sentence by up to 25% for good behavior in prison (which is usually awarded, so 9-36 years in the typical case).

So, while Alice is guilty of first degree kidnapping, but not felony-murder in Colorado, her punishment for this offense is more serious than the punishment for felony-murder anyway. If convicted of kidnapping, Alice will be sentenced to life in prison without possibility of parole in Colorado.

Answer 3

Alice could be liable for Felony Murder under the theory that, but fore Alice's criminal actions, Sr. would not have been in position that Jr. felt he had opportunity to engage in an additional crime Alice did not intend to happen.

Felony Murder doesn't look for reasonable to predict that his death could occur, but will ask the following:

• Was Alice committing a crime?
• During the commission of the crime did someone die?
• Was the death directly related to the initial crime?

In this case, the answer to all three is yes. It doesn't matter if Alice couldn't have known that Sr. had other enemies who wanted to use her incident to kill Sr. But it doesn't matter how likely the scenario that unfolded was to unfold.