Colorado's Felony Murder Rule

Section 18-3-102(1)(b) of the Colorado Revised Statutes (CRS) Title 18 of the Criminal Code outlines Colorado's felony murder rule. According to CRS 18-3-102(1)(b), a person commits felony murder when he or she -- either alone or with one or more persons -- commits or attempts to commit:

  • arson;
  • robbery;
  • burglary;
  • kidnapping;
  • sexual assault as prohibited by CRS 18-3-402;
  • sexual assault in the first as prohibited by CRS 18-3-402 as that section existed prior to July 1, 2000;
  • sexual assault in the second degree as prohibited by CRS 18-3-403 as that section existed prior to July 1, 2000;
  • a class 3 felony for sexual assault on a child as provided in CRS 18-3-405(2); or
  • the crime of escape as provided in CRS 18-8-208

and while

  • in the course of;
  • In the furtherance of;
  • in the attempt to; or
  • during the immediate flight from

committing or attempting to commit one of the above listed offenses, the person or one of the other persons involved in the commission or attempt to commit the same crime causes the death of another person not involved in the crime.1

Felony murder is first degree murder, which is the most serious of homicide charges in Colorado.

Penalties for Felony Murder

Felony murder is murder in the first degree, which is classified as a Class 1 felony. The penalties for this offense are severe and include either:

  • life in prison without parole; or
  • the death penalty.

Unlike murder in the second degree, where fines can reach a million dollars, there are no fines associated with a first degree felony murder offense.

To note, minors can be prosecuted and convicted of felony murder, too. In their, case, however, Colorado has ended the mandatory life without parole sentence.

Defenses to Felony Murder

Defenses to a felony murder charge are scarce, so your defense will depend greatly on proving that you were not involved in a felony. Because the element of intent to cause harm or death is not associated with this offense, defenses like self-defense are not applicable.

There is, however, an affirmative defense if you -- after believing another party to the offense has a weapon and/or intends to act in a way that could harm another person -- take steps to disengage from the commission or the attempt to commit the felony.

Felony murder has a bad reputation. It is an offense brought to the United States from the British, and though the British have since foregone the offense over four decades ago, it still exists in most states of the United States, including Colorado. It is a serious offense with devastating consequences for the alleged offender. Life in prison is unforgivable, and the death penalty even more so.

It is imperative to contact a felony murder defense attorney in Colorado who can help you build a defense that works best in your favor. The outcome is dependent on the facts of the case and the defense put forth. Below are some answers to common questions former clients have had about felony murder. It is a tough, confusing law. Our attorneys at Colorado Legal Defense Group want to make sure you are informed so you make the best decisions for yourself.

Murder
Section 18-3-102(1)(b) of the Colorado Revised Statutes (CRS) Title 18 of the Criminal Code outlines what Colorado’s felony murder rule is.

1. What is felony murder in Colorado?

Section 18-3-102(1)(b) of the Colorado Revised Statutes (CRS) Title 18 of the Criminal Code outlines what Colorado's felony murder rule is. According to CRS 18-3-102(1)(b), a person commits felony murder when he or she -- either alone or with one or more persons -- commits or attempts to commit:

  • arson;
  • robbery;
  • burglary;
  • kidnapping;
  • sexual assault as prohibited by CRS 18-3-402;
  • sexual assault in the first as prohibited by CRS 18-3-402 as that section existed prior to July 1, 2000;
  • sexual assault in the second degree as prohibited by CRS 18-3-403 as that section existed prior to July 1, 2000;
  • a class 3 felony for sexual assault on a child as provided in CRS 18-3-405(2); or
  • the crime of escape as provided in CRS 18-8-208

and while

  • in the course of;
  • In the furtherance of;
  • in the attempt to; or
  • During the immediate flight from

committing or attempting to commit one of the above-listed offenses, the person or one of the other persons involved in the commission or attempt to commit the same crime causes the death of another person not involved in the crime.1

Felony murder is first-degree murder, which is the most serious of homicide charges in Colorado. But even though felony murder is classified as a first-degree murder, it is unlike any other kind of first-degree murder.

1.1 What makes felony murder different from other first degree murders?

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 other first degree murders, but the primary differences refer to the person's intention, culpability, and purpose.

Intention

Intention, or mental state, is a key difference. For most murders, the person kills someone with an intent to cause death to that person. This intention is premeditated, deliberated, and with malice aforethought. Under the felony murder rule, the person's intent is not to kill someone but to commit a felony.

Likewise, the courts have affirmed the latter for decades. 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 a defendant 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 substitution for the mens rea 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

Culpability, or fault, is another key difference and is linked to intention.

For 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 or to the attempt to commit a felony are responsible for the person's death as long as the latter person died during the commission or the attempt to commit the felony. And again, that death could have been the result of an intentional, reckless, or accidental act.

This means that a party to the felony is still a complicitor -- a principal -- whether or not:

  • he or she knew the death would occur; and
  • he or she was even near the scene of the underlying felony or place where the death occurred.5

Furthermore, the “acting either alone or with one or more persons” phrase, which is part of the definition of felony murder, does not refer to an element of the offense whereby the prosecutor must prove it via evidence. Rather, it is a clarification that whether or not you act alone or in a group, you are guilty of murder regardless who did it.6

Thus, a person can be charged with first degree murder for someone else's act of murder. There is no differentiation between one person's bad intentions and another person's intentions to harm or not harm another person while committing a felony.

Purpose

The purpose of the felony murder rule is multifold and includes the following:

  • Deterrence. The felony murder rule is meant to deter people who otherwise would not cause another person's death from engaging in felonies.
  • Accountability. The felony murder rule is meant to hold a person participating in a felony accountable for the death of a non-participant as long as the death was a result of some act put forth to commit the felony.7
  • Death Penalty. The felony murder rule is meant to make every homicide committed during the commission or the attempt to commit a felony punishable by death even though premeditation to murder did not exist -- if the jury determines that the latter is just punishment.8

1.2 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 is a person liable for the death of another person even if he or she did not commit the murder but was committed by another person who was a co-offender of the felony? 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. The court has reasoned that the phrase “immediate flight therefrom” is not specific to one defendant's immediate flight because the phrase is set off by commas. 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 and a killing, the court has found that if a robbery and a killing is all part of one transaction if they are closely connected by:

  • time,
  • place, and
  • continuity of action.10

3. Hot Pursuit

It has been found -- in another robbery case -- that the felony does not end the second the victim surrenders money to the alleged robbers, but the offense continues as long as the alleged offenders try to avoid an arrest. Thus, if a person -- for example, a motorist and not the victim of the robbery -- is killed while the police are in hot pursuit of the alleged robbers, then if robbery is proven, it is a case of felony murder.11 The felony does not end when the primary intent of the felony is completed, but continues as long as the alleged offenders are in hot pursuit by the police.

Liability for felony murder, therefore, typically ends -- but each case is different -- when the felony has been committed or the attempt has been committed and the police are no longer in hot pursuit for any one of the alleged offenders.

1.3 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.

The case is pending, so no conviction has yet been made.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

2. Does felony murder conviction violate any constitutional rights?

Felony murder is a controversial offense and part of the controversy lies in the question of a person's constitutional rights and violation of the same. The courts have been tested on many of these 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 by classifying felony murder as first degree murder and preventing the jury to return 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 some murder committed during the commission of a felony as a first degree murder deprives the defendant 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. Are there defenses to Colorado's felony murder rule?

As mentioned, felony murder is unlike other murder cases because -- as above-mentioned -- it does not include the element of intent to commit murder or to cause the death of another person. Lacking this element of intent, defenses like self-defense do not work in felony murder cases.19

A defendant, however, may have an affirmative defense if he or she 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.

One of two elements that must be proved in felony murder case is the felony itself. It is not felony murder but for the felony being committed. For example, X would not have died but for Y robbing him. That said, even if X punched Y to prevent the robbery, thus, causing Y to return a fatal blow to X, Y cannot use self-defense as a defense because of the robbery element. To defend against a felony murder, therefore, you need to defend against the felony.

Defenses are limited, and much of it is dependent on the strength of your criminal defense lawyer and the defense strategy he or she develops and implements.

4. Can you be convicted of both felony murder and the underlying felony?

The short answer: no. A defendant 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 in the offense of felony murder.21

5. What must the prosecutor prove to render a conviction of felony murder in Colorado?

There are only two elements a prosecutor must prove for a conviction of felony murder to hold:

  1. A felony was committed or was attempted; and
  2. A person not participating in the felony was killed.22

The victim can be anyone, including a security guard killed while the defendant was in immediate flight and the killing was intended to help the defendant escape.23

Though the two elements above must be present for a felony murder charge, a conviction requires proof beyond reasonable doubt of homicide, the felony, and the connection between both of the crimes.24 That means all elements of:

  • homicide must be proven beyond a reasonable doubt; and
  • the underlying felony must be proven beyond a reasonable doubt.

Along proving beyond a reasonable doubt the elements of the offenses, a link between the two offenses must also be clearly established. Absent any one of these three criteria, a conviction of felony murder will not stand.

6. What are the penalties for felony murder in Colorado?

Murder in the first degree is a Class 1 felony.25 If you are arrested, charged, and convicted of felony murder, you are looking at two potential sentences:

  1. Life in prison without parole; and
  2. The death penalty (though this is reserved usually for the person who actually committed the murder).

There is one exception and that's in the case of minors. Up until 2006, minors convicted of felony murder could spend the rest of their lives behind bars -- even if they did not commit the murder and had no idea that it was going to take place. Colorado ended the life without parole sentencing for minors, but those still behind bars were unaffected. That may have ended in 2016, via the passage of Senate Bill 16-181. This bill allows inmates convicted of first-degree murder between 1990 and 2006 to see, new sentences that could include parole or shortened sentences.26

7. Have there been efforts in Colorado to change the felony murder rule?

There have been efforts in Colorado to change the felony murder rule. It is viewed by many as unfair, unjust, and outdated.

Apart from organizations and other outspoken persons on the matter, there was legislation, Senate Bill 17-094, introduced in 2017 that would classify felony murder as murder in the second degree, meaning it would be designated as a Class 2 felony and not a Class 1 felony.27 That bill, however, was postponed indefinitely.28

 

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If you or a loved one if facing murder charges in Colorado, we invite you to contact us for help. We are located in Denver and Golden, but we represent clients throughout Denver and the greater metropolitan area.

References

1. CRS 18-3-102(1)(b).

2. People v. Scheer, 184 Colo. 15, 518 P.2d 833 (1974) (finding specific intent is not an element of felony murder).

3. 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).

4. 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).
5. See, People v. Saiz, 42 Colo. App. 469, 600 P.2d 97 (1979); People v. Priest, 672 P.2d 539 (Colo. App. 1983).

6. 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).

7.People v. Raymer, 626 P.2d 705 (Colo. App. 1980), aff'd, 662 P.2d 1066 (Colo. 1983).

8. 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).

9. People v. Auman, 67 P.3d 741 (Colo. App. 2002), rev'd on other grounds, 109 P.3d 647 (Colo. 2005).

10. 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).

11. Whitman v. People, 161 Colo. 110, 420 P.2d 416 (1966).

12. Katie Rose Quandt. September 18, 2018. “A Killer Who Didn't Kill.” Jurisprudence. Slate.
13. Kirk Mitchell. November 27, 2018. “Two alleged robbers charged with felony murder for shooting death in Denver's Baker neighborhood.” Crimes & Courts. The Denver Post.
14. People v. Jones, 990 P.2d 1098 (Colo. App. 1999).
15. 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).

16. People v. Morgan, 637 P.2d 338 (Colo. 1981).

17. Bizup v. Tinsley, 211 F. Supp. 545 (D. Colo. 1962), aff'd, 316 F.2d 284 (10th Cir. 1963).

18. 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).

19. People v. Burns, 686 P.2d 1360 (Colo. App. 1983).

20. People v. Huynh, 98 P.3d 907 (Colo. App. 2004).

21. 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).

22. People v. Scheer, 184 Colo. 15, 518 P.2d 833 (1974).

23. People v. Hickam, 684 P.2d 228 (Colo. 1984).

24. 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

25. CRS 18-3-102(3).

26. 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.

27. Senate Bill 17-094. A Bill for an Act Concerning Removing Felony Murder from the Provisions of Murder in the First Degree.

28. Senate Bill 17-094. CO State Legislature page for SB094.

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