Surviving intruders can be charged with murder after a resident shoots and kills one of them in self-defense

Atlanta TV station 11alive (Addie Haney) reports:

Police now believe four people were involved in a shooting in East Atlanta’s Gresham Park neighborhood and that it began as an attempted home invasion. One person has since died in connection with the shooting, police said.

At the time, police said the shooting “appears warranted” and no charges are expected against the person who fired the shot.

The three survivors are expected to face felony murder charges in the death of their alleged accomplice. The two adults are also charged with trespassing.

What about the murder charges? you might be wondering. Here is the answer from a very similar story from a 2015 Georgia Supreme Court case: Hill vs State:

[Jarmal Hill] and [Calvin] Lavant…entered [an] apartment [in which a party was taking place] through an open sliding glass door. [Hill] was armed with a black pistol and Lavant had a silver revolver; Both men were dressed in black and wore hats and bandanas covering their noses and mouths.

[Hill] and Lavant ordered everyone in the apartment to lie on the floor, taking their wallets, cell phones, and other valuables. Two former United States Marines, Sean Barner and James Adams, attended the party but had briefly gone outside a few minutes before the home invasion; When they came back, they were ordered at gunpoint to lie on the ground and [Hill] and Lavant took their cell phones, a wallet and an iPod. [Note that Barner was, in fact, a Marine, not a former Marine, at the time of the events. -EV]

[Hill] and Lavant searched the apartment for other valuables, then decided to separate their male and female captives. The men were forced at gunpoint to go to the back bedroom and lie on the floor there, and two of the female guests were forced into the other bedroom while the other two female guests remained in the living room.

said Lavant [Hill], “we’re going to have sex with these girls, then we’re going to kill them all.” Barner heard it [Hill] and Lavant discussed condoms and the number of bullets in their guns, and he decided he had to act. He’d brought his book bag to the party with his gun in it, and coincidentally the bag was behind the bed in the bedroom where he was lying.

Barner drew his gun, got up and walked down the hallway into the living room, Adams at his heels. Barner saw [Hill] stood at the front door of the apartment, looked out and opened fire [Hill]running out of the sliding glass door.

Barner then rushed back into the bedroom where Lavant was holding two of the women, shouted for everyone to come down and smashed the door open with his shoulder. Lavant had ordered the two women to bend over the bed, pulled one of the panties aside, and slipped a condom over his penis.

As Barner rushed into the room, Lavant started shooting at him. Barner fired back at Lavant, who fled through a window. Lavant was shot in the face and thigh, and one of the women in the room was hit in the arm and both legs, but she survived.

Ensign Sean Barner is awarded a medal for heroism (Source: US Marine Corps).

Lavant later died of his injuries – and Hill (the surviving intruder) was convicted not only of armed robbery, aggravated assault, false imprisonment, burglary and attempted rape, but also of Lavant’s murder.

[1.] For in Georgia and some other states, a criminal can be guilty of murder if a victim (or a police officer or bystander) kills the criminal’s accomplice. The basic legal principle is that many state homicide laws (including Georgia’s) provide that someone is guilty of so-called “crime murder” if, in the commission of a crime, he causes the death of another human being. So you can be guilty of murder in such a situation, even if you don’t intend to kill.

And “causes” is a broad term. Obviously, the cause of death is considered to be shooting someone, so they die instantly. But that could, for example (to quote the summary of a Georgia Supreme Court decision on a previous case) “smash[ing] the victim’s skull with a hatchet”, although “the victim dies[s] nine months later from an infection and a gangrenous lung abscess.” Thus, “throw the drunk victim off a bridge into a river” if this results in the victim drowning. The criminal is guilty of felony murder so long as the “proximate cause” condition is satisfied, meaning that (1) death would not have occurred but for the actions of the accused and (2) death was foreseeable.

Suppose the robber Rob and his accomplice Alec rob the victim Vic, and Vic pulls a gun, shoots and kills Alec. A jury could potentially find that the death would not have happened were it not for Rob’s actions (since Alec might not have been willing to commit the crime himself). And the jury was able to determine that there was a reasonably foreseeable possibility (not a certainty or even a probability, just a foreseeable possibility) that Vic would use deadly force to defend himself against Alec. In states that follow the “proximate cause” approach, Rob would then be guilty of murder because “in the commission of a felony [robbery]he causes[d] the death” of Alec. The same would happen if it’s police officer Polly who kills Alec.

[2.] But that is the minority view. The majority of states that have commented on this issue follow the “agency” approach, according to which criminals are only guilty of felony murder if the immediate cause of human death is one of the criminals. If Alec kills Vic (even accidentally), then both Rob and Alec are guilty of felony murder. But if Vic kills Alec, Rob is not guilty of the felony murder of Alec since the proximate human cause of death was Vic. A common argument for the agency’s view is that if Vic kills Alec, that’s not murder at all – that’s Vic’s defensible defensive killing of Alec. Therefore, Alec’s killing is not felony murder on the part of Rob (who is guilty of robbery and conspiracy to rob, but no more).

[3.] Okay, so we know what happens when Vic kills Alec – felony murder on Rob’s part in the proximate cause states, not a felony on Rob’s part in the agency states.

But what if Vic (or police officer Polly) shoots Alec but accidentally kills bystander Betty? The immediate cause states that Rob is guilty since such an unfortunate event is foreseeable (it is foreseeable that Vic would attempt to defend himself, and in the heat of the moment that self-defense will accidentally kill someone else). In the authorities states, Rob is not guilty as Vic is the proximate human cause of death.

But wait, there’s a third, small category of states (which at least includes New York) — within those states, Rob would guilty of felony murder in the death of bystander Betty, but would not be guilty of felony murder in the death of accomplice Alec.

The focus in these third-way states is on who dies (Crime murder when anyone dies other than one of the criminals). The focus in the agency states is on who kills (Crime murder only if the immediate human cause of death is one of the perpetrators). And in the immediate cause it says it’s felony murder if someone dies, if the death is foreseeable and would not have occurred if the accused had not participated in the act. (Actually, these requirements of foreseeability and causation of a murder conviction would also apply in the states with no immediate cause; it’s just that those other states also have the additional requirements I discuss above.)

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Then back to hill Case. From 1981 to 2010, Georgia had precedents on the books that made it an agency state; but in State vs. Jackson (2010), the Georgia Supreme Court overturned these precedents by a vote of 4 to 3, adopting the proximate cause view. And because this sort of breaking of precedent can generally be applied retrospectively (except when it’s not possible, which is itself a complicated issue), that decision was applied to Hill.

The jury found that Hill’s participation was an actual cause of Lavant’s death and that attempting to rob the party could predictably result in one of the victims killing Lavant. Although Barner was right to kill Lavant, Hill murdered Lavant. And the same logic would apply to the case I started this post with.

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