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Attempted Felony-Murder Is Not a Cognizable Crime in West Virginia

by Douglas Ankney

Maurice Stephen Sanders and Deshaun Evans decided to rob drug dealer Josh Palmer. Both Sanders and Evans had guns. In the course of the robbery, a neighbor of Palmer—Christopher Greene—was pistol-whipped and robbed. Greene’s wife, Michelle, sustained a single gunshot wound. Fortunately, no one died. Sanders and Evans were indicted on numerous felonies. But on the day before Sanders’ trial, the State announced it would pursue an additional charge of “attempted felony-murder.” Sanders objected, arguing there is no such crime as attempted felony-murder. The trial court overruled the objection. The jury convicted Sanders of the charged felonies, including the attempted felony-murder for which he was given an indeterminate sentence of 3 to 15 years. Sanders appealed, arguing attempted felony-murder is not recognized as a crime in West Virginia.

The Supreme Court of Appeals began its analysis with the statutory definition of felony-murder: “Murder ... in the commission of, or attempt to commit, arson, kidnapping, sexual assault, robbery, burglary, breaking and entering, escape from lawful custody, or a felony offense as defined in article four, chapter sixty-a of this code, is murder in the first-degree.” West Virginia Code § 61-2-1. In order for the doctrine of felony-murder to apply, there must be a homicide. State ex rel. Davis v. Fox, 735 S.E.2d 259 (W. Va. 2012). The crime of felony murder in West Virginia does not require proof of malice, premeditation, or specific intent to kill. It is deemed sufficient if the homicide occurs accidentally during the commission of, or the attempt to commit, one of the enumerated felonies. State v. Sims, 248 S.E.2d 834 (W. Va. 1978). It is only when a homicide occurs during the commission, or attempted commission, of one of the enumerated felonies that felony murder becomes operable because the occurrence of the homicide allows the transfer of intent involved in the underlying felony to fulfill the required specific intent to sustain a conviction for first-degree murder. That is, to convict on a first-degree murder charge, the State must prove a homicide occurred and the criminal actor intended to kill. But, in felony murder, the actor’s intent to commit any of the other listed felonies becomes the required specific intent for the homicide even when the actor did not intend to kill. State v. Young, 311 S.E.2d 118 (W. Va. 1983). 

Attempted felony-murder cannot be a viable crime because, “[i]n order to constitute the crime of attempt, two requirements must be met: (1) a specific intent to commit the underlying substantive crime; and (2) an overt act toward the commission of that crime, which falls short of completing the underlying crime.” State v. Burd, 419 S.E.2d 676 (W. Va. 1991). And as already stated, with felony murder, there is no specific intent to commit murder (the underlying substantive crime), so there can be no attempted felony-murder. Accordingly, the Court reversed Sanders’ conviction and sentence imposed for attempted felony murder and remanded to the circuit court for resentencing. See: State v. Sanders, 827 S.E.2d 214 (W. Va. 2019).

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Editor’s note: The Court provides a comprehensive list of states in which courts have similarly rejected the crime of attempted felony-murder. 

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