Digital Extra: The shooting of Sgt. Cornel Young Jr.

Felony murder: Intent is not necessary

The charge against Aldrin Diaz in the death of Sgt. Cornel Young Jr. is based on a legal argument that reaches back to English common law.

PROVIDENCE — How can one man be charged with murdering another even though he didn't kill him?

That's the question many people are asking in the days following the fatal shooting last week of an off-duty Providence police officer by two on-duty officers.

Aldrin Diaz, 30, has been charged by Providence with the murder of Sgt. Cornel Young Jr. even though he dropped his weapon before the police fired the fatal shots.

"If he didn't shoot no one, how could they charge him with that?" the defendant's mother, Paula Diaz, wonders.

The explanation lies in a law called felony murder.

Usually people are charged with murder only if their killing was intentional. But under the felony murder rule — which dates back to English common law — you can be charged with murder if a person dies while you are committing or attempting to commit a felony, even if the person's death is accidental.

In virtually every state, people can be found guilty of felony murder even if they did not kill anyone.

If a prisoner starts a jailbreak that mushrooms into a riot and during the riot someone is killed, that prisoner can be charged with felony murder.

Likewise, if two young men break into a summer home in Watch Hill in the dead of winter and surprise a homeowner who is in the cellar fixing a leaky boiler and the homeowner has a fatal heart attack, both intruders can be charged with murder.

In Rhode Island, there are two degrees of felony murder — first-degree and second-degree. First-degree felony murder carries a mandatory sentence of life imprisonment; second-degree felony murder carries a sentence of 10 years to life.

The law creating first-degree felony murder was enacted by the General Assembly in 1915. Back then, there were only four felonies — arson, rape, burglary and robbery — which, if involving a death, could lead to a charge of first-degree felony murder.

But over the years, the General Assembly has expanded the group of crimes for which someone may be prosecuted for first-degree felony murder. Now, more than a dozen crimes qualify, some of them nonviolent, including breaking and entering and the sale of illegal drugs.

Other "inherently dangerous" felonies that result in someone's death — those not included in the first-degree statute — come under the second-degree felony murder law.

For example, 20-year-old Tracy Stewart was convicted of second-degree felony murder for neglecting her newborn son who died of dehydration because she was binging on cocaine.

The U.S. inherited the felony-murder rule from England. English common law made all felony murders punishable by death. But over the years, England began having second thoughts about the doctrine's wisdom.

According to John A. MacFadyen III, a Providence lawyer who specializes in criminal appeals, England abolished felony murder in the late 1950s.

The U.S. Supreme Court ruled in 1982 that it was cruel and unusual punishment to impose the death penalty on a person convicted of a felony murder unless the defendant actually intended at the outset for the victim to die.

But many people nationwide are serving lengthy sentences for felony murder, including at the Adult Correctional Institutions in Cranston.

In 1995, Walter Perry was given a life sentence after pleading guilty to felony murder in the death of Providence Police Sgt. Steven M. Shaw, who was shot to death inside an apartment house by Perry's accomplice, Corey L. Fields, who in turn was killed by the police. Perry was in handcuffs, outside the apartment house, when Shaw was slain.

Historically, the felony-murder charge has been applied to situations where a defendant has committed a felony and in the process, unintentionally killed an innocent victim. More recently, the rule has been expanded to instances where someone other than the felon committed the homicide.

For years, legal scholars have debated the merits of felony-murder laws.

According to a 1994 Iowa University law-review article, "although there is some support for the felony-murder doctrine, most scholars are critical of it. Supporters argue that it deters criminals from committing crimes and aids in the efficient allocation of resources. Critics argue that it undermines the goal of punishing an actor in proportion to the actor's blameworthiness."

Many are critical of felony-murder statutes because crime statistics fail to support the proposition that felonies are inherently dangerous and are likely to lead to death. In 1982, only 0.38 percent of robberies resulted in homicide; the figure for arson was 0.23 percent.

The Rhode Island Supreme Court has interpreted the state's felony-murder provisions several times.

In one case, it ruled that a life sentence without parole was not excessive for a man who raped a 73-year-old double amputee who died of a heart attack during the violent assault.

It has also ruled that if a person is prosecuted for felony murder, he or she cannot also be prosecuted for the underlying offense (such as robbery or rape or burglary) because that would amount to double jeopardy.

Under Rhode Island law, judges and juries have much more leeway in deciding the guilt of people who are charged with second-degree felony murder than they do in first-degree cases.

The case against Aldrin Diaz will be presented to a grand jury for consideration. If the grand jury elects to indict him on a felony-murder count, it would appear that the charge could only be second-degree felony murder, because Diaz is not alleged by the police to have committed any of the offenses included in the first-degree statute.

But it remains unclear whether Diaz will face trial on a felony-murder count because a grand jury may opt not to indict him for that offense.

Asst. Public Defender Michael A. DiLauro says he thinks "it's a stretch for them to be pursuing this, based on the facts as I understand them. There's no direct connection between him brandishing the gun and Cornel Young's death."