Schnitker v. State

DAVIS, Justice,

dissenting, in which HILL, Justice, joins.

[¶23] The underlying felony in this case is burglary. In this state, any person who enters a vehicle with intent to steal is guilty of that crime. Wyo. Stat. Ann. § 6-3-301(a). This is so even though the conduct involved is what is commonly called “ear hopping,” a term used to refer to a defendant (often a juvenile or drug addict) trying doors on vehicles to see if they are locked, and if they are not, pilfering whatever valuables can be found, even if only the change in the ashtray. Yet burglary, without any limitation, is one of the listed felonies for felony murder. Wyo. Stat. Ann. § 6-2-101(a).

[¶24] I cannot disagree -with the majority that most states apply an absolute rule that self-defense is never available in felony-murder cases, no matter the underlying felony. However, I do not believe that such a blanket rule is the best approach. At least one other court agrees.

[¶25] In Commonwealth v. Fantauzzi, 91 Mass.App.Ct. 194, 73 N.E.3d 323 (2017), the defendant planned to sell drugs to the victim. The transaction took place in the victim’s vehicle. According to the defendant’s trial testimony, another man in the vehicle held a knife to his throat and said “[G]ive me everything you got or I’ll stab you.” When the defendant tried to exit the vehicle, the victim grabbed his jacket and produced a charged stun gun. Id. at 324-25.

[¶26] Despite having a previous felony conviction which would prohibit him from carry*47ing a firearm, the defendant had a pistol, and ■without really aiming, discharged two shots inside the vehicle and was then able to exit it. When he heard a door open and feared an attack, he fired two more times at the front passenger side of the vehicle, killing the victim. He then fled the jurisdiction. Id.

[¶27] Fantauzzi was charged with second degree felony murder and second degree murder. This led to considerable confusion in instructing the jury, particularly when those two crimes were complicated by the need to instruct on voluntary manslaughter.3 The trial judge gave a self-defense instruction that pertained to both second degree murder and voluntary manslaughter, but not to the felony murder charge. Oddly enough, evidently without clear guidance on how to instruct on voluntary manslaughter, the judge instructed the jury that it was a lesser-included offense of both murder charges.4

[¶28] The jury sent out a series of very perceptive questions indicating confusion about the instructions, which the judge answered with further instructions, Id. at 328-29. The jury ultimately convicted of voluntary manslaughter, but the verdict did not indicate whether it found this to be lesser-included offense of second degree murder or of felony murder. Id. at 329. On appeal, Fantauzzi argued that he should have been entitled to a self-defense instruction as to felony murder, and that this error was not harmless because the voluntary manslaughter conviction could have resulted from finding it to be a lesser included offense of felony murder.

[¶29] The Court of Appeals conducted a thorough legal analysis. It noted that cases in Massachusetts, as elsewhere, suggest “that the nature of the underlying felony marks the defendant as the ‘initiating and dangerous aggressor.’ ” Id. at 330. It also noted that case reports indicated there are cases of felony murder in Massachusetts in which self-defense instructions were given without objection. Id. at 331. It concluded that “tejases in other jurisdictions are split on the application of the defense of self-defense to a charge of felony murder.” Id at 332.

[¶30] Having digested the law in its jurisdiction as well as throughout the country, the court ultimately decided:

We conclude that the general rule that self-defense is not applicable to felony-murder does not apply in the circumstances of this case. Where the felony was not inherently dangerous, and the defense was based on the assertion that the defendant was not the aggressor and initiator of the violence, an instruction on self-defense in relation to felony-murder should have been given. See generally Commonwealth v. Kendrick, 351 Mass. 203, 211, 218 N.E.2d 408 (1966); Commonwealth v. Pike, 428 Mass. 393, 395, 701 N.E.2d 951 (1998) (“A defendant is entitled to a self-defense instruction if any view of the evidence would support a reasonable doubt as to whether the prerequisites. of self-defense were present”). We do so recognizing that this is a very close question, because bringing a firearm to a drug transaction presents obvious risks of violence.

Id. at 332.

[¶31] I agree with this reasoning. A rule that requires a straightforward particularized assessment of the underlying felony is a better approach than a blanket rule, even though a generic rule may be easier to apply. Our district courts are quite capable of deciding if a predicate felony is inherently dangerous.

[¶32] Moreover, a particularized assessment harmonizes with our precedent. Recently, this Court decided it was wrong to have a blanket rule precluding the justification of self-defense when the crime charged involves a reckless act, rather than an intentional one. Haire v. State, 2017 WY 48, ¶¶ 20-25, 393 P.3d 1304, 1309-11 (Wyo. 2017). In*48stead of a wholesale approach,'we reasoned that a district court should provide self-defense instructions when it decides there is competent evidence to support the law expressed in the instructions. Id. ¶ 24, 393 P.3d at 1310. Under the same logic, whether self-defense instructions are warranted hr a felony-murder case depends on the evidence establishing that the predicate felony was not inherently dangerous and that the defendant was not the initial aggressor.

[¶33] In this case, although Sehnitker claimed he had implied permission to enter the vehicle to obtain cigarettes, he also ad-mittéd that he was looking for money or methamphetamine, and it seems doubtful that he had implied permission to take those. Indeed, the jury had to find that to be so in order to support the conviction of felony murder. The facts of this burglary, however, establish that is not an inherently dangerous felony. The evidence also shows that Appellant was not the initial aggressor. The State conceded in opening statement and in argument on a motion for judgment of acquittal that Appellant did not bring the large carving knife he used to kill the victim to the crime; rather, it was in' the victim’s vehicle when he entered it. Appellant used the knife only after the victim approached him with an axe. The danger involved in committing this kind of felony is that of being attacked by the owner of the vehicle, and that does not seem to me to be inherent when a vehicle seems to be unattended.

[¶34] Finally, I do not believe allowing the justification of self-defense violates the legislature’s intent. Wyoming’s felony murder statute, Wyo. Stat. Ann. § 6-2-101(a), does not mention self-defense. Rather, whether to allow it or not is a judicial decision. It is hard to believe that the legislature would intend that a car-hopping juvenile would have no right of self-defense if attacked with deadly force by the vehicle’s owner. If that was its, intent, it would be very simple to adopt a statute saying that self-defense was not available as to the listed felonies.5

[¶35] Most of the felonies listed in the statute are inherently dangerous, and a defendant committing them would necessarily be the aggressor, However, I would reverse and remand for a new trial with proper self-defense instructions on. the particular offense and facts involved in this ease. Whether that defense would be successful would be up to the jury.'

. The State wisely avoided those complications here by dismissing a second degree murder count after the district court ruled that self-defense was available on that count, while it was not as to felony murder.

. Under Wyoming law, this would be incorrect. In Richmond v. State, 554 P.2d 1217, 1232-33 (Wyo. 1976), this Court held that manslaughter could not be a lesser included offense of felony murder because it would not be a lesser included offense of the underlying felony, in that case robbery.

. See, e.g., Kan. Stat. Ann. § 21-5226(a) (self-defense not available to one who is "attempting to commit,, committing, or escaping from the commission of a forcible felony”); Ga. Code Ann. § 16-3-21(b)(2) (a person is not justified in using force if he "is attempting to commit, committing, or fleeing after the commission or attempted commission of a felony”).