Supremes Clarify Heemstra rule

State v. Millbrook, no. 07-0309 (Iowa Sept. 17, 2010)

This recent decision's gone a long way toward clarifying the felony murder doctrine as modified in State v. Heemstra. If you recall, when the predicate felony is merged into the homicide, it cannot serve as the predicate felony that triggers the felony murder rule,

Confused? Read on.

Millbrook was convicted in The Kingdom of Scott of felony murder in which a nineteen year old bystander was killed. Here's what happened.

On the evening of August 19, 2006, an outdoor party was in progress at which the victim, Vincelina Howard, was attending. Parenthetically, the Howard family is no stranger to law enforcement in the Quad Cities and one of their members had recently been sentenced to the whole megillah for various offenses.

A minivan rolled by and the occupants opened fire. Vincelina was struck by a bullet and died shortly thereafter.

Millbrook had attended a memorial earlier that day for one of his friends who had been killed in a drive by shooting. Together with fellow travelers Bogan, Lobley, and White, they set out to find one Stevie West, who, it was thought, had been involved in gunplay in Rock Island. Spotting West on the bridge, they followed him to the vicinity of the Howard family party.

The door of the minivan slid open and all four occupants fired their weapons into the crowd.

Millbrook and the others were apprehended and Millbrook was convicted under a felony murder theory. Millbrook argued for reversal in light of the Heemstra decision wherein it was found that the predicate felony (in that case, willful injury) must be separate and distinct from the act that caused the victim's death. Millbrook argued that the crime of intimidation with a dangerous weapon merged into the homicide.

Evidence that Millbrook opened the door to the minivan and that White reached across and opened fire supported the theory that Millbrook aided and abetted White's crime before he had opened fire himself.

The takehome's clear. The conduct of the offender must be carefully examined for potential independent criminal liability that can serve as the predicate felony so as to avoid the application of Heemstra.