Rose v. State

Brief Fact Summary.

Defendant, Brian Rose, was charged with second degree murder, and argued the merger doctrine should apply, and the felony murder rule should not.

Synopsis of Rule of Law.

According to state criminal law, the merger doctrine’s purpose is to place limits of the applicability of the felony murder rule by merging a lesser felony offense to the much larger offense of homicide.

Facts.

Rose and his friends were at Rose’s residence one night and Rose gave a semi automatic pistol to his friends to look at. Rose then took the gun back, went into the kitchen, and told his girlfriend that it was time to leave. Rose’s girlfriend was on the phone at the time, and Rose proceeded to point the gun in her direction and tell her it was time to leave. The gun then went off and hit Rose’s girlfriend in the head, killing her. Rose was charged with second degree murder, under the felony murder rule, for using a deadly weapon. Rose told officers that he had no intention of shooting his girlfriend, but instead was waving the gun around as a joke. Rose moved pretrial to strike the felony murder rule and that the merger doctrine should be applicable under these facts. The motion was denied.

Issue.

Whether the merger doctrine’s purpose is to place limits of the applicability of the felony murder rule by merging a lesser felony offense to the much larger offense of homicide.

Held.

Yes. The merger doctrine’s purpose is to place limits of the applicability of the felony murder rule by merging a lesser felony offense to the much larger offense of homicide.

Concurrence.

None

Discussion.

If a defendant is charged with the felony of assault with a deadly weapon, that crime will merge with the homicide offense so that the felony of assault cannot be used as a basis for the felony murder rule. Under the felony murder rule, a defendant can be convicted of murder if a death occurs during the commission of a felony, and the prosecution need not prove whether the defendant killed with malice. However, there are also various restrictions to the felony murder rule including that the felony must be inherently dangerous and the merger doctrine, which states that a defendant can only be charged with a larger of 2 offenses, when all the elements of the lesser offense are included in the larger offense. It follows that specific offense will be merged into the crime of homicide and the prosecution still must prove that the defendant killed with malice. Thus, the jury can either find that Rose assaulted his girlfriend with a deadly weapon and thus, the crimes would merge, or that there was an implied malice based on the facts before them. Therefore, the trial court erred in denying Rose’s pretrial motion and the jury should be allowed to decide either scenario presented above.