$250,000 bail set for woman described as associate of man killed in Wendy's (COPS) robbery

[Omaha Steve]

Source: Omaha World Herald

By Kevin Cole

An Omaha woman charged with robbery and described as an associate of a man shot to death last week during another robbery was ordered held on $250,000 bail.

Jeneva Arias, 24, was charged Tuesday in Douglas County Court with the Aug. 26 robbery of a Little Caesars at 637 N. Saddle Creed Road. An assistant prosecutor with the Douglas County Attorney’s Office said Arias was traveling with Cortez Washington, 32, who was shot to death during the robbery of a Wendy’s restaurant at 43rd and Dodge Streets the same night.

The prosecutor said Arias entered the pizza restaurant about 9 p.m., showed a handgun and took an undetermined amount of money and fled.

The prosecutor said she and Washington then drove a half-mile to the Wendy’s restaurant, where Washington and a bystander were fatally wounded about 9:20 p.m. in a hail of bullets fired by three members of the Omaha Police Department, who were in the area responding to the earlier robbery.

FULL story at link.



Read more: http://www.omaha.com/news/crime/bail-set-for-woman-described-as-associate-of-man-killed/article_0a4d71e2-32dc-11e4-9a69-0017a43b2370.html

[ColesCountyDem]

1. She's fortunate not to have been charged with felony murder. n/t

[happyslug]

2. To my Knowledge, this being Felony Murder in only a handful of states.

Most other states with the Felony Murder rule, do not permit such a charge if the dead person was one of the criminals doing the underlying felony.

Four States do NOT have the Felony Murder Rules, they are Hawaii, Kentucky and Michigan.

http://www.nytimes.com/2007/12/04/us/04felony.html?pagewanted=2&_r=3

West Virginia, Michigan, New York, Massachusetts, Kentucky, North Carolina and Pennsylvania have all ruled that the felony murder rule did not apply when a co-perpetrator was killed.

http://www.courtswv.gov/supreme-court/docs/fall2012/12-0603.pdf

https://casetext.com/case/people-v-washington-11#.VAc88cVdWSo

By Statute, the following states restrict the Felony Murder rule to NOT cover when the dead person was a co-perpetrator of the felony:

Alaska, Colorado, Connecticut, New Jersey, New York, Oregon, Utah, and Washington

http://www.courtswv.gov/supreme-court/docs/fall2012/12-0603.pdf

On the other hand Indiana is clearly in the camp that even when the only person killed was a co-perpetrator, that person was still guilty of Felony Murder:

http://freetheelkhart4.com/2013/10/15/most-us-state-felony-murder-rules-would-not-apply-to-the-elkhart-4/

[ColesCountyDem]

3. As I read the applicable Nebraska statute, she could have been charged.

Pursuant to Nebraska Revised Statute 28-303, she could have been charged with first-degree murder, since the underlying felony (robbery) is the legal nexus between her acts and the victim's death. I see no requirement that she have any intent to cause death, nor any exception for the death of a co-defendant.

[happyslug]

4. Felony murder does NOT need any intent to kill

Thus if you committed a felony, that is covered by Felony Murder (not all felonies are covered by the Felony Murder Statute, varies by state) and someone dies during the felony, then no intent to kill someone is needed.

§ 28-303. Murder in the first degree; penalty

A person commits murder in the first degree if he or she kills another person (1) purposely and with deliberate and premeditated malice, or (2) in the perpetration of or attempt to perpetrate any sexual assault in the first degree, arson, robbery, kidnapping, hijacking of any public or private means of transportation, or burglary, or (3) by administering poison or causing the same to be done; or if by willful and corrupt perjury or subornation of the same he or she purposely procures the conviction and execution of any innocent person. The determination of whether murder in the first degree shall be punished as a Class I or Class IA felony shall be made pursuant to sections 29-2519 to 29-2524.

Thus NO intent to kill is needed, just the intent to commit a listed felony.

Pennsylvania Law is Similar:

(b) Murder of the second degree.--A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.

Pennsylvania then defines what is a "perpetration of a felony"

"Perpetration of a felony." The act of the defendant in engaging in or being an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping.

http://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/18/00.025.002.000..HTM

Pennsylvania calls Felony Murder Second Degree Murder, what other states call Second Degree, Pennsylvania calls Third Degree. Notice the Pennsylvania law includes ALL felonies, but the courts have restricted it as explained below, one of those restrictions is that it does NOT apply when a co-felon is killed by someone else other then the felon or another co-felon.

I check Lexis and can NOT find a Nebraska case on the death of a co-perpetrator or co-Felon. I check the Nebraska Attorney General, and he has issued no opinion on the death of co-perpetrators/Co-felons and felony murder. Such a case MAY never have come up in Nebraska law for the simple reasons in most of the listed felonies, it is rare for a perpetrator to be killed, and in most cases with one perpetrator is killed a victim is almost always killed (and thus you have a victim as the person killed during the felony and you do NOT have to address the issue of the dead perpetrator).

These cases are rare. The case most cited is a 1958 such a case decided by the Supreme Court of Pennsylvania. In that case, the Pennsylvania Supreme Court had to look outside Pennsylvania to see how other courts in other states had handle the issue and found that all of the states that reported such cases all said one can NOT be convicted of Felony Murder if the bullet or other means of death, was NOT from the defendant or one of his or her co-felons.

Commonwealth v. Redline, Appellant, The Supreme Court of Pennsylvania, 391 Pa. 486; 137 A.2d 472; 1958 Pa. LEXIS 536

Such cases are so rare, the Pennsylvania Supreme Court had to go back to a Massachusetts Civil War Draft Riot Case for guidance:

Commonwealth vs. James Campbell, [NO NUMBER IN ORIGINAL], SUPREME COURT OF MASSACHUSETTS, 89 Mass. 541; 1863 Mass. LEXIS 151; 7 Allen 541

In the Massachusett case the court ruled if someone died when the troops sent to suppress the riot opened fire, that was NOT felony murder by any of the rioters (on the other hand if the Jury found that the bullet had been fired by a rioters, then the rioters would be guilty of Felony Murder).

No person can be held guilty of homicide unless the act is either actually or constructively his, and it cannot be his act in either sense unless committed by his own hand or by some one acting in concert with him or in furtherance of a common object or purpose.....

The real distinction is between acts which a man does either actually or constructively, by himself or his agents or confederates, and those which were done by others acting not in concert with him or to effect a common object, but without his knowledge or assent, either express or implied. For the former the law holds him strictly responsible, and for all their necessary and natural consequences, which he is rightfully deemed to have contemplated and intended. For the latter he is not liable, because they are not done by himself or by those with whom he is associated, and no design to commit them or intent to bring about the results which flow from them can be reasonably imputed to him.

Commonwealth vs. James Campbell, [NO NUMBER IN ORIGINAL], SUPREME COURT OF MASSACHUSETTS, 89 Mass. 541; 1863 Mass. LEXIS 151; 7 Allen 541

Side note: The Pennsylvania Supreme Court in 1955 did make a ruling that the killing of a co-felon by a victim of the felony was Felony Murder on the surviving felon. The case was cited and overruled in 1958 in the Redline case mentioned above. The 1955 case was on appeal from a County Judge ruling that a co-felon could NOT be convicted of murder of a co-felon. From that ruling the District Attorney took an appeal and the Pennsylvania Supreme Court reversed and ruled that a Co-felon could be convicted of Felony Murder of an another Co-Felon. On remand the Defendant in that case was offered a deal, dismissal of the Felony Murder charge in exchange for a guilty plea on the robbery charge. Thus no conviction under the Felony Murder rule. The Pennsylvania Supreme Court actually expressed thanks that no one suffered any additional prison time for what they called they wrongful decision.

Now the Kansas Supreme Court does a good job in definding the two views on Felony Murder and co-felons in State v. Sophophone, 270 Kan. 703 (Citing the Pennsylvania Redline case as a "Agency Approach":

" The 'Agency' Approach

"The majority rule is that the felony-murder doctrine does not apply if the person who directly causes the death is a non-felon. . . .

"The reasoning of this approach stems from accomplice liability theory. Generally speaking, the acts of the primary party (the person who directly commits the [***13] offense) are imputed to an accomplice on the basis of the agency doctrine. It is as if the accomplice says to the primary party: 'Your acts are my acts.' It follows that [a co-felon] cannot be convicted of the homicides because the primary party was not the person with whom she was an accomplice. It is not possible to impute the acts of the antagonistic party--[the non-felon or] the police officer--to [a co-felon] on the basis of agency.

"The 'Proximate Causation' Approach"

"An alternative theory, followed by a few courts for awhile, holds that a felon may be held responsible under the felony-murder rule for a killing committed by a non-felon if the felon set in motion the acts which resulted in the victim's death.

"Pursuant to this rule, the issue becomes one of proximate causation: if an act by one felon is the proximate cause of the homicidal conduct by [the non-felon] or the police officer, murder liability is permitted."

STATE OF KANSAS, Appellee, v. SANEXAY SOPHOPHONE. No. 82,647, SUPREME COURT OF KANSAS, 270 Kan. 703; 19 P.3d 70; 2001 Kan. LEXIS 149

The dissent then objects in Kansas adopted the Agency Approach saying Kansas has always followed the "'Proximate Causation' Approach", but then cite NOT case to that effect (the case he does site involved the surviving arsonist when his three fellow arsonists died in the arson, the Kansas Supreme Court ruled that the act that killed the co-arsonist was also an act of the surviving arsonists and thus guilty of felony murder. Here is the dissents argument in a nutshell:

The following courts have used a proximate cause approach instead of following the agency theory adopted by the majority in this case. Several of the following cases also involve factual situations where the co-felon was killed by a police officer, as is the situation in the present case. See State v. Lopez, 173 Ariz. 552, 556, 845 P.2d 478 (Ct. App. 1993) (affirming felony-murder conviction where police officer shot co-felon while defendant was already under arrest by using the proximate cause approach as set forth by Arizona statute); State v. Wright, 379 So. 2d 96, 96-97 (Fla. 1980) (holding that there was nothing in the Florida felony-murder statute which limited application to "innocent persons killed" by the defendant); People v. Dekens, 182 Ill. 2d 247, 252, 695 N.E.2d 474, 230 Ill. Dec. 984 (1998) (Illinois follows the proximate cause theory of felony murder); Jenkins v. State, 726 N.E.2d 268, 269-70 (Ind. 2000) (holding that Indiana felony-murder statute does not require the victim to be "innocent" and that defendant could be convicted of felony murder where robbery victim shot and killed co-felon); Palmer v. State, 704 N.E.2d 124, 125-26 (Ind. 1999) (affirming felony-murder conviction where co-felon was shot by police officer); State v. Baker, 607 S.W.2d 153, 156-57 (Mo. 1980) (affirming conviction where death was a proximate result of the acts of the defendant and his accomplices); State v. Blackmon, 587 S.W.2d 292, 293 (Mo. Ct. App. 1979) (affirming felony-murder conviction where victim was shot by an off-duty police officer); State v. Burton, 130 N.J. Super. 174, 178-79, 325 A.2d 856 (1974) (affirming felony-murder conviction where police killed co-felon during commission of a robbery and where statutory language indicated a preference for the proximate cause approach); In re Leon, 122 R.I. 548, 554-55, 410 A.2d 121 (1980) (taking a proximate cause approach and holding that defendant could be convicted of felony murder where the victim was a co-felon); State v. Oimen, 184 Wis. 2d 423, 435, 516 N.W.2d 399 (1994) (adopting proximate cause approach where co-felon was killed by burglary victim).

Some courts have been forced to take an agency approach because of the statutory language contained within their felony-murder statutes. See Weick v. State, 420 A.2d 159, 161-63 (Del. 1980) (reversing second-degree murder conviction where victim killed co-felon because statute requires that "he, with criminal negligence, causes the death of another person&quot ; State v. Jones, 859 P.2d 514, 515 (Okla. Crim. 1993) (taking an agency approach because statute provides that the person committing the felony must "take the life of a human being&quot ; State v. Hansen, 734 P.2d 421, 427 (Utah 1986) (holding that state law precluded second-degree felony-murder conviction where co-felon is killed because language in statute requires the death to be "other than a party" to the crime).

Simply put the following States follow 'Proximate Causation' Approach":

Arizona: See State v. Lopez, 173 Ariz. 552, 556, 845 P.2d 478 (Ct. App. 1993) (affirming felony-murder conviction where police officer shot co-felon while defendant was already under arrest by using the proximate cause approach as set forth by Arizona statute);

Florida: State v. Wright, 379 So. 2d 96, 96-97 (Fla. 1980) (holding that there was nothing in the Florida felony-murder statute which limited application to "innocent persons killed" by the defendant);

Illinois : People v. Dekens, 182 Ill. 2d 247, 252, 695 N.E.2d 474, 230 Ill. Dec. 984 (1998) (Illinois follows the proximate cause theory of felony murder);

Indiana: Jenkins v. State, 726 N.E.2d 268, 269-70 (Ind. 2000) (holding that Indiana felony-murder statute does not require the victim to be "innocent" and that defendant could be convicted of felony murder where robbery victim shot and killed co-felon); Palmer v. State, 704 N.E.2d 124, 125-26 (Ind. 1999) (affirming felony-murder conviction where co-felon was shot by police officer);

Missouri: State v. Baker, 607 S.W.2d 153, 156-57 (Mo. 1980) (affirming conviction where death was a proximate result of the acts of the defendant and his accomplices);
State v. Blackmon, 587 S.W.2d 292, 293 (Mo. Ct. App. 1979) (affirming felony-murder conviction where victim was shot by an off-duty police officer);

New Jersey: State v. Burton, 130 N.J. Super. 174, 178-79, 325 A.2d 856 (1974) (affirming felony-murder conviction where police killed co-felon during commission of a robbery and where statutory language indicated a preference for the proximate cause approach);

Rhode Island: In re Leon, 122 R.I. 548, 554-55, 410 A.2d 121 (1980) (taking a proximate cause approach and holding that defendant could be convicted of felony murder where the victim was a co-felon);

Wisconsin: State v. Oimen, 184 Wis. 2d 423, 435, 516 N.W.2d 399 (1994) (adopting proximate cause approach where co-felon was killed by burglary victim).

Other states take the AGENCY APPROACH:

Delaware: See Weick v. State, 420 A.2d 159, 161-63 (Del. 1980) (reversing second-degree murder conviction where victim killed co-felon because statute requires that "he, with criminal negligence, causes the death of another person&quot ;

Oklahoma: State v. Jones, 859 P.2d 514, 515 (Okla. Crim. 1993) (taking an agency approach because statute provides that the person committing the felony must "take the life of a human being&quot ;

Utah: State v. Hansen, 734 P.2d 421, 427 (Utah 1986) (holding that state law precluded second-degree felony-murder conviction where co-felon is killed because language in statute requires the death to be "other than a party" to the crime).

I notice no one cite a Nebraska case and I can NOT find one. Please note the Dissent in the Kansas Case refuses to cite States that do NOT have laws that clearly excludes co-felons, such as Pennsylvania cited by the Majority.

Here is a on line cite that explains the Felony Murder rule and its two classifications:

http://birdsongslaw.com/2008/08/01/liability-theories-for-felony-murder-agency-v-proximate-cause/

It points out Arizona has the broadest Felony Murder rule in the country and thus even if a co-felon is in custody and a police officer shoots and kills another co-felon, the first co-felon is guilty of Felony Murder.

Florida has THREE Felony Murder Statutes, Covering first, second and third degree Murder. The First Degree follows Pennsylvania Redline and the Agency Concept, the Third Degree is clearly a Proximate Cause murder (i.e. the death of a co-felon is NOT first degree murder, but is clearly third degree murder and maybe Second Degree Murder in the State of Florida).

I have looked and looked and can NOT find a Nebraska case on point. No one cites any cases from Nebraska on this subject. My Lexis account does NOT include Annotated Law Journals (A.L.J.) and since I do NOT want to run up any costs I have not checked them.

But it is clear the Majority rule follows Pennsylvania's Redline Case and its concept of Agency. If Nebraska accepts that positions the death of a co-felon by a police officer is NOT Felony Murder, but that is up to a Nebraska Judge to decide if and when it is brought up to such a Judge. Notice the underlying Pennsylvania Statute is, once you look at the definition section, about the same as the law in the Nebraska Statute, thus this is an issue up to the Courts of Nebraska to decide.

[ColesCountyDem]

5. Oh, I don't disagree with your analysis at all.

I had also Shepard-ized the Nebraska statute and was unable to find any case(s) on point. Like Nebraska, Illinois does not have a separate statute dealing with the offense of felony murder; rather, Illinois uses the proximate cause theory, as People v. Dekens, 182 Ill. 2d 247, 252, 695 N.E.2d 474, 230 Ill. Dec. 984 (1998) makes clear and you cite.

Hope this dispels any seeming disagreement over the instant case.

[happyslug]

6. It gave me a chance to review some criminal law, an area of law I do NOT practice.

And every so often I need the review.

[ColesCountyDem]

7. Same here.

I did my time in the trenches of the Public Defender's office thirty years ago, and then left the profession twenty years ago, so I'm not always up to date.

[Omaha Steve]

8. Thank you

The last two posts were in English.

[ColesCountyDem]

9. LOL!