D and three other people broke into a house. It was called into the police who caught the men as they were leaving.
D was chased down and handcuffed. Another man was ordered on the ground. The man raised up off of the ground and fired at the police officer. The police officer shot the man dead.
D was charged with aggravated burglary and felony murder.
Trial court found D guilty of felony murder.
KS Supreme Court reversed.
If the killing was a lawful one by a third party, can a defendant still be convicted of felony murder?
A defendant cannot be convicted of felony murder if the killing was a lawful killing by a third party. (Agency approach)
The agency approach, the majority rule, says that the felony-murder doctrine does not apply if the person who directly causes the death is a non-felon.
The minority rule is that a felon can be held responsible in felony murder if the felon set in motion acts which resulted in the victim's death. Proximate causation and foreseeability are the issues. Court does not follow this rule.
It is not right for a person to be charged with something that another person did lawfully.
Following the minority rule goes against the strict construction of criminal statutes.
Making one criminally responsible for the lawful acts of a law enforcement officer is not the intent of the felony-murder statute as it is currently written.
The statute is unambiguous, and the court should not be able to add words to it.
There is no need to adopt the agency theory. The statute does not contain the limitations discussed by the majority.