Should driving while suspended in Missouri result in felony-murder charge?

You may have heard of defendant Kevin Fisher in Kansas City who is charged with felony-murder because he was in an auto accident and his passenger was killed. No Drugs or alcohol were involved. The reason he is charged with murder is that he was driving on a suspended license, normally a misdemeanor–but in his case, a felony because of his prior criminal record.

The Missouri “felony murder” statute provides that a “person commits the crime of murder in the second degree if he…commits…any felony, and, in the perpetration…of such felony…another person is killed as a result of the perpetration…of such felony. This is an area that has been developing in Missouri and other states.

Just this week another man was convicted of felony murder after he had robbed a convenience store and shot a deputy (who survived). The robber was eventually chased into the woods and captured. Forty miles away, a state trooper was on his way to assist in the search when the trooper rear-ended a tractor-trailer. The robber was charged with felony murder for the trooper’s death.

In 1997, Tom Osborne and I tried State v. Pembleton, Missouri’s first felony murder case based on felony driving while intoxicated. Pembleton ran two well-marked stop signs, sideswiped another car and killed three people in a very nasty wreck. The evidence was clear that the deaths were caused by the driving while intoxicated.

The problem with the Kansas City case is that it’s hard to see how the victim was “killed as a result of the perpetration” of the felony of driving while suspended. True, the accident would not have happened if Fisher had not been driving with a suspended license, but it does not appear that his suspended license had any connection to the accident.

In the DWI case it was clear that without the intoxication the accident simply would not have happened at all. In the Kansas City case, I cannot imagine how Fisher’s driving record could have contributed to the cause of the accident.

A just interpretation of the law requires a causal connection between the felony and the resulting death. If I rob a bank with a toy gun and the guard accidently shoots and kills a bystander while trying to stop me, I get charged with felony murder because someone was killed as a result of my felony.

• But should the same apply if I try to forge a check at Breaktime and the clerk gets suspicious and calls the manager from the back room. On the way out the manager slips, breaks her neck and dies. All because of my forgery. Am I now to be tried a murderer?

• What if they called the police and the officer runs over a baby on the way to investigate?

Some may argue that Mr. Fisher was a bad driver, so that puts him on a par with a drunk driver. But that is not necessarily so. One can be suspended for many reasons which have nothing to do with dangerous driving (e.g. failure to show proof of insurance or getting behind on child support).

Not only that, a person can drive while suspended without actually knowing that he is suspended. It is considered sufficient that you should have known you were suspended. That means Mr. Fisher can be guilty of murder on a standard of recklessness. Normally, a reckless killing would not be murder, but manslaughter.

Finally, remember that nobody is saying to let this guy off the hook for the felony of driving while suspended. If his criminal record is as bad as they say, he will surely go to prison, but not for murder. Whatever the court of appeals ends up saying about this, prosecutors need to use some discretion. “Because they can,” is not the end of the analysis. It needs to be fair.