                                                                                    FILED
                                                                                  April 9, 2019
No. 17-0401, State of West Virginia v. Marcus Stephen Sanders                     released at 3:00 p.m.
                                                                              EDYTHE NASH GAISER, CLERK
                                                                              SUPREME COURT OF APPEALS
Judge Bloom, joined by Justice Armstead, dissenting:                               OF WEST VIRGINIA



              I disagree with the majority’s conclusion that attempted felony murder

cannot be a cognizable crime in West Virginia. Simply put, no holding of this Court or

statute in our Code precludes the possibility of an attempted felony murder conviction.

While it is clear that attempted felony murder is not explicitly a statutory crime under the

laws of our State, neither are most attempted felonies. Instead, attempt crimes are governed

by W.Va. Code § 61-11-8 (2002), which imposes penalties for all attempted crimes not

otherwise provided for in the Code. Specifically, W.Va. Code § 61-11-8 provides:

              Every person who attempts to commit an offense, but fails to
              commit or is prevented from committing it, shall, where it is
              not otherwise provided, be punished as follows:

              (1) If the offense attempted be punishable with life
              imprisonment, the person making such attempt shall be guilty
              of a felony and, upon conviction, shall be imprisoned in the
              penitentiary not less than three nor more than fifteen years.

              (2) If the offense attempted be punishable by imprisonment in
              the penitentiary for a term less than life, such person shall be
              guilty of a felony and, upon conviction, shall, in the discretion
              of the court, either be imprisoned in the penitentiary for not
              less than one nor more than three years, or be confined in jail
              not less than six nor more than twelve months, and fined not
              exceeding five hundred dollars.

              (3) If the offense attempted be punishable by confinement in
              jail, such person shall be guilty of a misdemeanor and, upon
              conviction, shall be confined in jail not more than six months,
              or fined not exceeding one hundred dollars.

              Felony murder is defined as “[m]urder . . . in the commission of, or attempt

to commit, arson, kidnapping, sexual assault, robbery, burglary, breaking and entering,

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escape from lawful custody, or a felony offense of manufacturing or delivering a controlled

substance . . . .” W.Va. Code § 61-2-1 (1991). The penalty for felony murder and all other

murders of the first degree is “confinement in the penitentiary for life.” W.Va. Code § 61-

2-2 (1965). Therefore, the penalty for attempted first degree murder, and attempted felony

murder if recognized, is “not less than three nor more than fifteen years,” as provided by

W.Va. Code § 61-11-8. Without any specific statute for attempted felony murder,

attempted murder during the commission of any of the enumerated felony murder felonies

should fall under W.Va. Code § 61-11-8.

              At oral argument, both Petitioner and Respondent argued that attempted

felony murder cannot exist because specific intent to kill must be proven in order to

constitute a crime of attempt. This Court has repeatedly held that “[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." Syl. Pt. 4, State v. Minigh, 224 W.

Va. 112, 112, 680 S.E.2d 127, 130 (2009) (quoting Syl. Pt. 2, State v. Starkey, 161 W. Va.

517, 517, 244 S.E.2d 219, 220 (1978)).

              Attempted felony murder should be subject to the same requirements as a

completed felony murder. This Court has repeatedly held that “[t]he crime of felony-

murder in this State does not require proof of the elements 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.” Syl. Pt. 7, State

v. Sims, 162 W. Va. 212, 213, 248 S.E.2d 834, 836 (1978). Additionally, this Court has

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held that “[i]n adjudging a felony-murder, it is to be remembered at all times that the thing

which is imputed to a felon for a killing incidental to his felony is malice and not the act of

killing.” State ex rel. Painter v. Zakaib, 186 W. Va. 82, 83, 411 S.E.2d 25, 26 (1991)

(emphasis original).

              Felony murder does not require proving a specific intent to kill; neither

should attempted felony murder. Instead, the State would prove that the defendant intended

to commit the underlying felony and committed an intentional act that could have, but did

not, cause the death of another. Just as with felony murder, the malice that accompanies

the commission of an inherently dangerous felony would be imputed to the attempted

felony murder charge. In sum, the specific intent element of the attempt is satisfied by

proving the intent to commit the underlying felony, and the malice is imputed to the

attempted murder, specifically attempted felony murder.

              Moreover, the public policy arguments that support statutorily criminalizing

felony murder are equally applicable to attempted felony murder. As this Court recognized

in State v. Shafer, 237 W. Va. 616, 624, 789 S.E.2d 153, 161 (2015),

              The harsh penalty for first degree murder reflects the
              seriousness of the crime . . . While this Court has never spoken
              directly to the Legislature’s purpose in providing such a harsh
              penalty, other jurisdictions have recognized that “[a]n obvious
              purpose of the felony murder statute, or any murder statute, is
              to protect human life” . . . This is accomplished through
              punishment and deterrence.

(Citations omitted). Most notably, this Court cited the Court of Appeals of Alaska, which

found that “if the increased punishment for an unintended homicide does not deter people

from committing dangerous felonies, it will at least encourage criminals to ‘plan and carry

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out such crimes with increased regard for physical dangers.’” Id. (citing Todd v. State, 884

P.2d 668, 686 (1994)).

              This rationale can easily be applied to attempted felony murder. Individuals

should be made aware that committing inherently dangerous crimes, specifically crimes

that may support a felony murder conviction, can lead to a more severe penalty than that

of the underlying felony. There is no reason to lessen such deterrence when an individual

commits a crime that could, but ultimately does not, cause the death of another. The

purpose of the severe punishment for felony murder is to deter future dangerous crimes.

Deterrence is moot once an individual determines to commit a dangerous felony. An

individual who ignores this risk and decides to commit a dangerous felony should not be

rewarded simply because they or their codefendants have poor aim or commit another

intentional act that could, but does not, cause the death of another. Instead, the State should

be free to prosecute, and if convicted, impose the “not less than three nor more than fifteen

years” sentence that accompanies other attempted first-degree murders.

              Furthermore, just as the felony murder doctrine permits states to sentence a

codefendant who agrees to commit a dangerous felony but is not the individual who

commits the intentional acts that causes a death, attempted felony murder would allow the

same ability to reach such codefendants in the instance where an actual death does not

occur. In other words, if a death by shooting occurs during the commission of a felony in

which multiple individuals agreed to participate, all codefendants may be charged with

first-degree murder and sentenced to life in the penitentiary. However, if all of the

codefendants agree to commit the same felony and the same shooting occurs that could,

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but ultimately does not, cause a death, only the shooter may be charged with attempted

murder, while the codefendants may only be charged with the underlying felony. To say

that the codefendants’ culpability varies so greatly between the two instances as to justify

wildly varying sentences is incongruent with both statutory law and the policy arguments

supporting the felony murder doctrine.

                Prior to the majority’s opinion, I believed attempted felony murder was a

cognizable crime pursuant to the plain language of W.Va. Code § 61-11-8. However, in

light of the majority’s opinion, I urge the Legislature to consider establishing attempted

felony murder by statute. For guidance, I would review Florida’s attempted felony murder

statute, F.S.A. § 782.051 (2017).1 The Florida Legislature enacted this statute after the

Florida Supreme Court held that such a crime does not exist.



       1
           The Florida attempted felony murder statute, F.S.A. § 782.051, provides:

                 (1) Any person who perpetrates or attempts to perpetrate any
                felony enumerated in s. 782.04(3) and who commits, aids, or
                abets an intentional act that is not an essential element of the
                felony and that could, but does not, cause the death of another
                commits a felony of the first degree, punishable by
                imprisonment for a term of years not exceeding life, or as
                provided in s. 775.082, s. 775.083, or s. 775.084, which is an
                offense ranked in level 9 of the Criminal Punishment Code.
                Victim injury points shall be scored under this subsection.

                (2) Any person who perpetrates or attempts to perpetrate any
                felony other than a felony enumerated in s. 782.04(3) and who
                commits, aids, or abets an intentional act that is not an essential
                element of the felony and that could, but does not, cause the
                death of another commits a felony of the first degree,
                punishable as provided in s. 775.082, s. 775.083, or s. 775.084,
                which is an offense ranked in level 8 of the Criminal
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For the foregoing reasons, I respectfully dissent from the majority opinion.




Punishment Code. Victim injury points shall be scored under
this subsection.

(3) When a person is injured during the perpetration of or the
attempt to perpetrate any felony enumerated in s. 782.04(3) by
a person other than the person engaged in the perpetration of
or the attempt to perpetrate such felony, the person perpetrating
or attempting to perpetrate such felony commits a felony of the
second degree, punishable as provided in s. 775.082, s.
775.083, or s. 775.084, which is an offense ranked in level 7 of
the Criminal Punishment Code. Victim injury points shall be
scored under this subsection.
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