One of the crimes that may be charged as a result of participating in crimes such as robbery leading to the death of a victim is “felony murder,” involving the death of a person while the robbery is being committed. Proof of such crimes may depend on the sequence of events, as illustrated by an unreported opinion from Maryland’s intermediate appellate court last week in a case called Edward Tyrone Winder v. State of Maryland.
The Court of Special Appeals’ opinion indicates that the State alleged Winder was one of seven people who assaulted the victim. Witnesses established that they chased the victim because he supposedly stole money from Winder’s aunt, caught up with him and a fight ensued. During the fight, another person stabbed the victim several times. When he tried to flee, Winder caught up with him and took the money from him. The victim later died of his stab wounds.
Winder testified in his own defense. He said that his aunt told him that the victim, who he knew well, had taken her money and he went with her to ask him for the money back. He claimed that when he and the aunt asked for the money, the victim struck his aunt and Winder then hit him. He denied knowing the victim had been stabbed, but admitted he went after him and pinned him up against the wall and removed the money from his pants. He denied ever intending to fight the victim, claiming he thought he would just give him back the money, and only hit him to defend his aunt.
The trial judge instructed the jury on the charge of first degree felony murder, where the underlying crime was robbery or the taking and carrying away of property though violence or threat of violence. The judge told the jury the elements of felony murder in this case: the defendant or another participating with him committed a robbery, and another participant kills the victim during the course of the robbery. The judge would not give an instruction on “afterthought robbery,” and the jury convicted Winder of felony murder, robbery, assault and other crimes.
The appellate Court held that the trial judge committed error by not giving the requested instruction. It noted that the State had the burden of proving that the defendant had the intent to commit robbery before or at the time of the act that killed the victim. “When the decision to rob the victim is an afterthought, made after the commission of the act that caused the victim’s death, a Defendant may not be convicted of felony murder.” Since Winder testified that he did not intend to fight or rob the victim initially, a jury could have found that robbing him after the initial fight was an afterthought, so the jury should have been given this instruction.
Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.