Can you be convicted of attempted felony-murder?

West Virginia is one of many states that has the “felony-murder rule.” You may already know that intentionally killing another can rise to the level of first-degree murder. What is lesser known is that the felony-murder rule allows a first-degree murder conviction when the perpetrator did not intend to kill anyone. The statute outlines how this works. Basically, if someone is killed while one of the delineated felonies is being carried out, the person committing the felonies can be charged with first-degree murder even though he or she did not intend for the death to occur. The question then arises of whether someone can be convicted of attempted felony-murder under the rule when nobody died.  

This was recently addressed in State v. Sanders. Maurice Stephen Sanders was charged with numerous felonies including robbery, which falls within the felony-murder rule. During the robbery, Sanders pistol-whipped one victim. Another victim was wounded by a bullet. Neither victim died. Sanders was charged with attempted first-degree felony-murder. The trial court jury convicted him.

Sanders appealed the case. While the trial court had allowed the charge over objection, the Supreme Court of Appeals had a different opinion of its validity. The Court analyzed both the felony-murder rule as well as the legal elements of the crime of attempt. It found the two doctrines to be contradictory. It noted that felony-murder requires no specific intent to commit murder. Instead, it only requires specific intent to commit the underlying felony, in this case robbery, which is transferred to the accidental death. On the other hand, the crime of attempt requires the specific intent to commit the substantive crime. In this case, it requires the specific intent to commit murder.  

Based on its analysis, the Court reversed the conviction of attempted felony-murder and remanded the matter for resentencing. The Court’s actions reflect that felony-murder is a doctrine built on transferring intent to kill where none exists, while the crime of attempt requires specific intent to commit the crime. Based on this case, it appears unlikely anyone will be convicted of attempted felony-murder any time soon in West Virginia.

This information is provided for informational purposes and is not intended as legal advice.    

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