This is an audio case brief of State v. sophophone, 19 P.3d 70 (Kan 2001). The audio brief provides a full case analysis. However a written summary of the case is provided below.
Sanexay Sophophone and three other individuals conspired to and broke into a house in Emporia. The resident reported the break-in to the police.
Police officers responded to the call, saw four individuals leaving the back of the house, shined a light on the suspects, identified themselves as police officers, and ordered them to stop. The individuals, one being Sophophone, started to run away. One officer ran down Sophophone, hand-cuffed him, and placed him in a police car.
Other officers arrived to assist in apprehending the other individuals as they were running from the house. An officer chased one of the suspects later identified as Somphone Sysoumphone. Sysoumphone crossed railroad tracks, jumped a fence, and then stopped. The officer approached with his weapon drawn and ordered Sysoumphone to the ground and not to move. Sysoumphone was lying face down but raised up and fired at the officer, who returned fire and killed him. It is not disputed that Sysoumphone was one of the individuals observed by the officers leaving the house that had been burglarized.
Sophophone was charged with conspiracy to commit aggravated burglary, aggravated burglary, obstruction of official duty, and felony murder.
Sophophone moved to dismiss the felony-murder charges. He aregued the complaint was defective because;
His motion to dismiss was denied by the trial court. Sophophone was convicted by a jury of all counts. He appealed only his conviction of felony murder.
The issue before the court is whether Sophophone can be convicted of felony murder for the killing of a co-felon not caused by his acts but by the lawful acts of a police officer acting in self-defense in the course and scope of his duties in apprehending the co-felon fleeing from an aggravated burglary.
There are two basic approaches to application of the felony-murder doctrine: the agency and proximate cause theories. The agency approach, which is the majority view, limits application of the doctrine to those homicides committed by the felon or an agent of the felon. Under such an approach, ‘the identity of the killer becomes the threshold requirement for finding liability under the felony-murder doctrine.’
The proximate cause approach on the other hand provides that ‘liability attaches “for any death proximately resulting from the unlawful activity–even the death of a co-felon–notwithstanding the killing was by one resisting the crime.'” Under the proximate cause approach, felony murder may preclude consideration of the deceased’s identity, which would make a defendant liable for all deaths caused by others during the crime. Application of the proximate cause varies greatly by jurisdiction because the statutes differ substantially.
On appeal, Sophophone did not dispute that aggravated burglary is an inherently dangerous felony which given the right circumstances would support a felony-murder charge. His principal argument instead, centered on the fact that he was in custody at the time his co-felon was killed by the lawful act of the officer. He contended that this was a “break in circumstances” sufficient to insulate him from further criminal responsibility.
But the court found that this “intervening cause” or “break in circumstances” argument has no merit under the facts of this case. Because, time, distance, and the causal relationship between the underlying felony and a killing are factors to be considered in determining whether the killing occurs in the commission of the underlying felony, and the defendant is therefore subject to the felony-murder rule. And Based on the uncontroverted evidence in this case, the killing took place during flight from the aggravated burglary.
However, the court stated that a question remained as whether Sophophone could be convicted of felony murder when the act which resulted in the killing was a lawful one by a third party.
To this end, the court deliberated on whether to apply the agency approach or proximate cause approach to the facts of this case to determine whether Sophophone’s conviction could stand.
The court chose to adopt the agency approach.
The court explained that, the minority of the states whose courts have adopted the proximate cause theory believe their legislatures intended that any person, co-felon, or accomplice who commits an inherently dangerous felony should be held responsible for any death which is a direct and foreseeable consequence of the actions of those committing the felony. These courts apply the civil law concept of proximate cause to felony-murder situations.
The overriding fact which exists in our case is that neither Sophophone nor any of his accomplices “killed” anyone. The law enforcement officer acted lawfully in committing the act which resulted in the death of the co-felon.
It appears to the majority that to impute the act of killing to Sophophone when the act was the lawful and courageous one of a law enforcement officer acting in the line of his duties is contrary to the strict construction we are required to give criminal statutes. And we believe that making one criminally responsible for the lawful acts of a law enforcement officer is not the intent of the felony-murder statute as it is currently written.
It does little good to suggest one construction over another would prevent the commission of dangerous felonies or that it would deter those who engage in dangerous felonies from killing purposely, negligently, or accidentally. Actually, innocent parties and victims of crimes appear to be those who are sought to be protected rather than co-felons.
We hold that under the facts of this case where the killing resulted from the lawful acts of a law enforcement officer in attempting to apprehend a co-felon, Sophophone is not criminally responsible for the resulting death of Somphone Sysoumphone, and his felony-murder conviction must be reversed