One beautiful morning, Jake and Sally set out to burglarize a jewelry store. The plan was to take as much jewelry as possible – no one was supposed to get hurt. The first store they went to burglarize was closed,

Question

so Jake and Sally abandoned their criminal plan and went for breakfast. As they were shopping for napkins later that day at Super Discount, Sally looked at the diamonds in the jewelry case and motioned to Jake. "Get a load of these," she said and gave a wink and nod to Jake as she patted her concealed weapon. Jake took out his pistol and ordered the clerk to step aside as Jake collected all the diamonds and put them in a bag. The Discount Greeter, the one who says, "Hi and Welcome" when customers enter the store, happened to be a 78-year-old ex-cop, rushed to the jewelry clerk's aid. Just as police arrived, Jake grabbed the Greeter and took him hostage in a desperate act of escape. Jake, the Greeter and Sally got to their car and led police on a high speed chase for many miles which resulted in the Greeter being accidentally killed by police gunfire. What crimes have Jake and Sally committed? Discuss whether the prosecution can prove all of the elements of the charges and any defenses Jake and Sally may have.
What will be an ideal response?

Answer 1

ANSWER: Answers may vary: The question is designed to test the students' knowledge on the felony-murder rule, burglary, robbery and kidnapping. Despite the intentions of the co-felons that no one during the commission of the felony is supposed to get hurt, the inherent dangerousness of the felony presumes people will get hurt and all co-felons will be responsible. There's no burglary of the Discount Store as Jake and Sally had abandoned their criminal plan before entering – and there's the larger question whether you can ever "break and enter" a structure that is open. But they both commit robbery of the diamonds. The jewelry counter clerk is deemed to have "constructive possession" of the diamonds which Jake and Sally take by threat of force/force. They both kidnap the Greeter having taken him by force, against his will and with asportation away from the Discount Store. The tricky question for students is whether Jake and Sally will be responsible for the police accidentally killing the Greeter, and the answer is yes. Under the elements is felony murder if: 1. in the commission or attempted commission of a felony (here kidnapping) 2. a death results, and 3. there is a nexus between the felony and the death and the nexus can be proved by causation: a. Jake and Sally are the factual cause of the death ("but for" the kidnapping, the Greeter would not have died), b. Jake and Sally were the proximate cause of the death (the death was a foreseeable consequence of engaging in an inherently dangerous felony) and c. no intervening cause exists, then Jake and Sally are responsible. Many students will want to treat the police shooting as an intervening cause breaking the causal chain from Jake and Sallys' initial criminal behavior and the ultimate death of the Greeter, but the felony murder rule was designed to punish all co-felons for deaths that result from the felony, unintentional or not.