Under the Colorado felony murder rule, you can be liable for second-degree murder if a victim is killed, even accidentally, in the commission of certain dangerous felony crimes.
If you are convicted of felony murder, you face a sentence of 16 to 48 years in state prison.
Section 18-3-103(1)(b) of the Colorado Revised Statutes (CRS) Title 18 of the Criminal Code outlines Colorado’s felony murder rule.
According to this section, felony murder comprises situations when an innocent person dies as a result of you or an accomplice committing – or attempting to commit – any of the following crimes:
- arson;
- robbery;
- burglary;
- kidnapping;
- sexual assault;
- sexual assault in the first as prohibited by CRS 18-3-402 as it existed prior to July 1, 2000;
- sexual assault in the second degree as prohibited by CRS 18-3-403 as it existed prior to July 1, 2000;
- a class 3 felony of sexual assault on a child; or
- escape.
It does not matter whether the death occurs
- in the course of,
- in the furtherance of,
- in the attempt to, or
- during the immediate flight from
the above-listed felony.1
Below our attorneys at Colorado Legal Defense Group discuss the following felony murder topics:
- 1. Overview
- 2. Constitutionality
- 3. Defenses
- 4. Double Jeopardy
- 5. Elements
- 6. Penalties
- Additional Reading
CRS 18-3-103(1)(b) makes killing someone in the commission of a robbery “felony murder.”
1. Overview
Murder is the unlawful taking of another person’s life and is the result of an intentional act to cause that person’s death, except when it is felony murder.
There are several key differences between felony murder and first-degree murder, but the primary differences refer to your:
- intention,
- culpability, and
- purpose.
Intention
For most murders, the intention to kill is:
- premeditated,
- deliberated, and
- with malice aforethought.
Under the felony murder rule, the intent is not to kill someone but rather to commit a felony. Indeed, the Colorado courts found in 1974 that in felony murder cases, specific intent to kill another person with malice is not an element of the crime.2
Ten years later, the courts found that you can indeed be convicted of felony murder where mental culpability is for the underlying felony — a general intent crime.3 In other words, participation in a felony is a substitution for the mens rea (mental state) required in all other murder charges.4
So, if you kill someone during the commission of a felony, it does not matter if you intended to kill that person or did so through reckless or accidental means. It only matters that the person died while you participated in a felony.
Culpability
In most homicide cases, the person who commits the murder is at fault for that person’s death. Under the felony murder rule, however, it does not matter who directly caused the death of another person.
All parties to the commission of a felony are responsible for the person’s death as long as victim died during the commission of the felony. Again, that death could have been the result of an intentional, reckless, or accidental act.5
This means if you are a party to a felony, you are still complicit whether or not:
- you knew the death would occur, and
- you were even near the scene of the underlying felony or place where the death occurred.6
Purpose
The purpose of the felony murder rule is multifold and includes the following:
- Deterrence. The felony murder rule is meant to deter you from engaging in felonies.
- Accountability. The felony murder rule is meant to hold you accountable for deaths that result from felonies you take part in.7
- Lengthy prison. The felony murder rule is meant to make every homicide committed during the commission or the attempt to commit a felony punishable by 16 to 48 years in Colorado State Prison.8
Meanwhile, first-degree murder carries a possible life sentence.
When does felony murder liability end?
Felony murder is a strict liability crime, but when does that liability end? How soon after the commission of the felony are you liable for the death of another person, especially if the death was caused by an accomplice?
These are good questions and they have been tested by the courts. The answer depends on the circumstances, and there are three specific circumstances that have been discussed by the courts.
1. “Immediate Flight Therefrom”
The courts have said that liability does not end upon one co-offender’s arrest.
This means that you can still be held liable for a murder even if you have already been arrested but other co-offenders are in immediate flight from the police.9 The court allows the jury to consider the totality of the circumstances.
2. One Transaction
In cases of robbery, the court has found that a robbery and a killing are all part of one transaction if they are closely connected by:
- time,
- place, and
- continuity of action.10
3. Hot Pursuit
In a robbery case, the felony does not end when the victim surrenders money to the alleged robbers. The felony continues as long as the alleged offenders try to avoid an arrest.
Thus, if an innocent bystander is killed while the police are in hot pursuit of the alleged robbers, it is a case of felony murder.11
Liability for felony murder, therefore, typically ends when:
- the felony has been committed (or the attempt has been committed), and
- the police are no longer in hot pursuit of any one of the alleged offenders.
What are some examples of felony murder?
To better understand the felony murder rule in Colorado, here are a few examples of real cases:
Example 1: Curtis Brooks
Curtis Brooks, a 15-year-old kid, was homeless in 1995. While at the mall one day, he met another kid, Deon Harris — who had let Brooks sleep on his couch — and his two friends. They asked Brooks to help them steal a car. Brook had no criminal record, but he agreed. He was handed a gun and the four went to steal a car.
They came upon a man named Christopher Ramos who was walking to his car from an ATM. Brooks was told to fire his gun up in the air to distract the man. When he did, Deon Harris shot Ramos in the head, killing him.
The police found all four boys. Brooks, who did not know a person would be killed and who had no intention to kill anyone, was charged and subsequently convicted of first degree murder, or — in the case — felony murder.12
Example 2: Ibrahim Amir Musa and Husham Al Kinani
Two young men, Ibrahim Amir Musa and Husham Al Kinani, attempted to commit a street robbery of three persons. During the attempted aggravated robbery, a 25-year-old man Thomas Steen, was shot and killed.
Both men, as a result, have been charged with first degree murder even though only one pulled the trigger. Musa pleaded guilty to aggravated robbery and second-degree murder. Al Kinani was convicted at trial of first-degree murder, six counts of aggravated robbery, one count of criminal attempt to commit aggravated robbery, and one count of identity theft.13
Example 3: Trevor Jones
Trevor Jones, 17 years old, regularly stole money from people. He was a scammer, and one night his scamming went too far.
Another boy, Matt Foley, wanted to purchase a gun for $100. Jones decided he could pretend to sell the gun to Foley by taking the money from Foley and then pretending to show Foley the gun, run off with the gun so he could keep both the gun and money — and because it was an illegal transaction, Foley would not go to the police.
But when Jones took the gun from Foley on the pretense he was going to show Foley how to shoot it, he claims he accidentally shot Foley. Scared, he hid that night and the following day he turned himself into the police not knowing the full ramifications of his action.
Foley died from the gunshot wound and Jones was convicted of felony murder.14
Example 4: Lisl Auman
Lisl Auman broke up with her boyfriend, Shawn Cheever. She along with some friends, including a man named Matthaeus Jaehnig, went to Cheever’s house to take her things.
Whatever happened there caused the police to come. Auman got in the truck with Jaehnig and took off. They ended up at an apartment complex.
Auman surrendered to the police, but while she was in the vehicle, Jaehnig took off, firing his weapon at the police. He killed one police officer before he, too, was killed.
She was charged with several crimes. One specific one was burglary-felony murder.
She was convicted of it, and she was convicted even though she was in the police car with handcuffs on at the time the police officer was killed. She however, has since been resentenced and accepted a plea deal.15
Killing someone in commission of a kidnapping qualifies as felony murder in Colorado.
2. Constitutionality
Felony murder is a controversial offense because it punishes you for a death you may not have intended or committed yourself. The courts have been tested on many of these constitutional questions, and below are the findings.
Equal Protection Violation
The lack of culpable mental state as an element of a murder charge has been claimed by some as a violation of equal protection. The courts, however, differ.
In People v. Morgan (1981), the court determined that it is not a violation of equal protection if felony murder fails to include an element of culpable mental state in order for a conviction to be made.16
Due Process Violation
Some have argued that classifying felony murder as first-degree murder and preventing the jury from returning a verdict of second-degree murder is a violation of due process laws. The court, again, differs.
It found in Bizup v. Tinsley that due process is not denied.17
Right to a Jury Trial Violation
Some have argued that classifying murder committed during the commission of a felony as a first degree murder deprives you of the right to a jury trial with regard to intent. Again, the Colorado courts differed and have stated that this argument is without merit.18
3. Defenses
As mentioned, felony murder is unlike other murder cases because it does not include the element of intent to commit murder or to cause the death of another person. Since the intent element is absent, defenses like self-defense do not work in felony murder cases.19
However, you may have an affirmative defense if you disengaged from the commission of the crime upon learning or believing that another participant of the crime
- possessed a deadly weapon or
- intended to act in a way that could lead to serious injury or death of another person.
4. Double Jeopardy
You cannot be simultaneously convicted of
- felony murder and
- the felony underlying the felony murder charge.
If there is more than one felony to be charged, then the felony most directly contributing to the victim’s death is the felony charge that should be vacated.20 This process is known as merging and prevents double jeopardy.
For example, aggravated robbery will be merged with the offense of felony murder.21
5. Elements
There are only two elements a prosecutor must prove for a conviction of felony murder to hold:
- A felony was committed or was attempted; and
- A person not participating in the felony was killed.22
The victim can be anyone, including a security guard killed while you were in immediate flight, and the killing was intended to help you escape.23
Though the two elements above must be present for a felony murder charge, a conviction requires proof beyond reasonable doubt of:
- the homicide,
- the felony, and
- the connection between both of the crimes.
Absent any one of these three criteria, a conviction of felony murder will not stand.24
6. What are the penalties for felony murder?
Murder in the second degree is a class 2 felony. If you are arrested, charged, and convicted of felony murder, you are looking at:
- 16 to 48 years in prison without parole, and
- $5,000 to $1,000,000.25
Additional Reading
For more in-depth information, refer to the following scholarly articles:
- The Felony Murder Doctrine Distinguished from Criminal Negligence – Kentucky Law Journal.
- The Stickiness of Felony Murder: The Morality of a Murder Charge – Mississippi Law Journal.
- Assaultive Femicide and the American Felony-Murder Rule – Berkeley Journal of Criminal Law.
- Felony Murder and Capital Punishment: An Examination of the Deterrence Question – Criminology.
- A Felon Can Be Held Responsible for a Murder Committed by a Fear-Motivated Victim – Responsibility Is Based on a Theory of Vicarious Liability and Not Felony-Murder – St. Mary’s Law Journal.
References
- CRS 18-3-103(1)(b); SB21-124; Alex Burness, Colorado is changing how it sentences people found guilty of felony murder, Denver Post (April 26, 2021).
- People v. Scheer, 184 Colo. 15, 518 P.2d 833 (1974) (finding specific intent is not an element of felony murder).
- People v. Hickam, 684 P.2d 228 (Colo. 1984) (finding a defendant can be convicted of first degree felony murder without the mental culpability for murder but with the mental culpability for the underlying the general intent felony).
- People v. Priest, 672 P.2d 539 (Colo. App. 1983) (finding that participation in a felony is substitution for the mens rea otherwise needed to support a murder conviction).
- See, People v. Saiz, 42 Colo. App. 469, 600 P.2d 97 (1979); People v. Priest, 672 P.2d 539 (Colo. App. 1983).
- People v. Bastin, 937 P.2d 761 (Colo. App. 1996) (finding that “acting either alone or with one or more persons” is not an element of the offense of felony murder, but merely a clarification that guilt results whether or not the defendant acted alone or with one or more persons).
- People v. Raymer, 626 P.2d 705 (Colo. App. 1980), aff’d, 662 P.2d 1066 (Colo. 1983).
- Andrews v. People, 33 Colo. 193, 79 P. 1031 (1905); see also, Robbins v. People, 142 Colo. 254, 350 P.2d 818 (1960); Whitman v. People, 161 Colo. 110, 420 P.2d 416 (1966).
- People v. Auman, 67 P.3d 741 (Colo. App. 2003), rev’d on other grounds, 109 P.3d 647 (Colo. 2005). The court has reasoned that the phrase “immediate flight therefrom” is not specific to one defendant’s immediate flight because commas set off the phrase.
- Bizup v. Tinsley, 211 F. Supp. 545 (D. Colo. 1962), aff’d, 316 F.2d 284 (10th Cir. 1963); People v. McCrary, 190 Colo. 538, 549 P.2d 1320 (1976). People v. Mitchell (Colo.App. 2024) 547 P.3d 412.
- Whitman v. People, 161 Colo. 110, 420 P.2d 416 (1966).
- Katie Rose Quandt. September 18, 2018. “A Killer Who Didn’t Kill.” Jurisprudence. Slate.
- Janet Oravetz, 2 men convicted in killing of man during street robbery, 9 News (March 4, 2020).
- People v. Jones, 990 P.2d 1098 (Colo. App. 1999).
- Howard Pankratz and Robert Sanchez. August 22, 2005. “Auman Apologizes to All.” The Denver Post. See also, “Stretching Liability Too Far: Colorado’s Felony Murder Statute in Light of Auman“, see 83 Den. U.L. Rev. 639 (2005).
- People v. Morgan, 637 P.2d 338 (Colo. 1981).
- Bizup v. Tinsley, 211 F. Supp. 545 (D. Colo. 1962), aff’d, 316 F.2d 284 (10th Cir. 1963).
- Early v. People (1960) 142 Colo. 462, cert. denied, 364 U.S. 847, 81 S. Ct. 90, 5 L. Ed. 2d 70 (1960).
- People v. Burns, 686 P.2d 1360 (Colo. App. 1983).
- People v. Huynh, 98 P.3d 907 (Colo. App. 2004).
- People v. Raymer, 626 P.2d 705 (Colo. App. 1980), aff’d, 662 P.2d 1066 (Colo. 1983); People v. Driggers, 812 P.2d 702 (Colo. App. 1991).
- People v. Scheer, 184 Colo. 15, 518 P.2d 833 (1974).
- People v. Hickam, 684 P.2d 228 (Colo. 1984).
- Early v. People, 142 Colo. 462, 352 P.2d 112, cert. denied, 364 U.S. 847, 81 S. Ct. 90, 5 L. Ed. 2d 70 (1960); Jones v. People, 146 Colo. 40, 360 P.2d 686 (1961). See also, Doubleday v. People, 2016 CO 3, 364 P.3d 193.
- CRS 18-3-103(3). For historical perspective, see also Senate Bill 16-181. A Bill for an Act Concerning the Sentencing of Persons Convicted of Class 1 Felonies Committed While the Persons were Juveniles, Senate Bill 17-094. A Bill for an Act Concerning Removing Felony Murder from the Provisions of Murder in the First Degree, and Senate Bill 17-094. CO State Legislature page for SB094.