Reader: Your Arias trial ‘Holy Grail’ felony murder charge article is baloney

Reader: Your Arias trial ‘Holy Grail’ felony murder charge article is baloney

by Rob Roman & Amanda Chen

liberty-bell-at-independence-hall-1901-padre-art

Did “Cate” decimate our Arias trial felony murder arguments?  It’s complicated.

“Like a wrecking ball’ –  One of our Readers decimates our Arias Trial felony murder argument?

miley_cyrus_wrecking_ball

One of our readers read our Holy Grail article about how we believe the 1st degree Felony Murder charge was bogus.

https://spotlightonlaw.wordpress.com/why-the-felony-murder-charge-is-the-holy-grail-of-the-jodi-arias-case-nov-5-2014/

“Cate” believes that Judge Stephens and Juan Martinez were correct and that Kirk Nurmi, Vladimir Gagic, Amanda Chen and Rob Roman are wrong about the validity and the application of the Felony Murder charge. “Cate” supplied some very good case law on this issue.

 

In our last article, we were asking a number of questions about the Felony Murder Charge:

  • Does it make sense that in Arizona, you can find someone guilty of BOTH Felony Murder (an unplanned murder) AND Pre-meditated murder (a planned murder)?
  • Does the felony murder charge correctly apply to the Arias case, or was the charge kept solely to give the jurors another choice of 1st degree murder (in a sort of heads I win, tails, you lose situation for the prosecution)?
  • Can you be found guilty of felony murder (A death occurs in the course of another dangerous felony) based on burglary with intent to commit the murder?
  • Is this a legitimate charge under the facts of State v. Arias?
  • Were the 7 jurors who found for felony murder correct or not?

It's complicated lg

We needed to dig deeper into the issue to get to the bottom of who’s right and who’s wrong about this. I’m going to make this as easy to understand as possible, easy enough for even me to understand. The citings and cases are all here for you to look at in more detail if you like.

“Cate” offered up an appellate case which had most of the relevant case law regarding the felony murder rule in Arizona, and how the elements of the felony and the elements of the murder can now be, in some cases, the same.

The appelate case is State v. Moore, argued in the Arizona Supreme Court.

az_moore_j

State v. Moore

http://supremestateaz.granicus.com/DocumentViewer.php?file=supremestateaz_34a4d3c5c51b1eedea7eb5b74365035c.pdf&view=1

Moore: It’s not felony murder because I can’t be charged with felony murder based on a burglary that is itself based on the intent to murder.

The Court: Yes, you can, and you did.

 

“Relying on State v. Essman, 98 Ariz(1965), Moore also argues that under the merger doctrine, felony murder cannot be predicated upon a burglary that is itself based on the intent to murder.”

State of Arizona v. Julius Jarreau Moore is an appeal of a death sentence for a man who killed 3 people. One murder victim was outside the house with a woman who also was shot, and 2 murder victims were inside the house. Sergio Mata, Guadalupe Ramos, and Delia Ramos were all shot to death in their rental home and Debra Ford was shot and survived. The crimes took place during a flurry of crack smoking.

'This is a textbook case of homicide.'

“Debra Ford went to the Phoenix apartment of Sergio Mata, Delia Ramos, and Guadalupe Ramos to purchase and smoke crack in the late evening hours of November 15, 1999. In the early hours of the 16th, Moore came to the apartment looking for Debra. When Debra came out to see Moore, they talked for a bit and smoked some crack.

Shortly after, Sergio came out of the apartment and Moore shot him in the head, killing him and then turned to Debra and shot her in the neck.

Debra remained alive and conscious while praying for her life. She heard several additional shots fired while she was on the ground. When police arrived and went into the apartment, they found Guadalupe on the couch and Delia inside the bedroom closet. Both were shot to death. Debra survived and testified against Moore during trial.”

Sergio was shot outside the apartment building in a public area, and there was evidence of pre-meditation, so his murder was charged as a premeditated murder. Guadalupe and Delia were shot inside the home, it appeared as if Moore’s motive was to steal drugs, and there was some reflection, so those two murders were charged as both premeditated and felony murders.

The felony murder was first based on burglary – theft, but the prosecution changed it later and based it on burglary – assault, possibly because they had more evidence of the assault than the theft.

The trial was in 2002, the jury found for the aggravator of multiple murders, but did not reach consensus on the aggravator of cruelty. The case is interesting because right during the penalty phase, Moore’s medical expert had a heart attack, causing a mistrial. Moore had a new aggravation and penalty phase in 2007, the jury found the same aggravator and sentenced Moore to death.

 

Our felony murder argument being destroyrd by one of our readers.
Our felony murder argument being destroyrd by one of our readers.

In the mandatory appeal before the Arizona Supreme court, Moore cites a number of issues. The relevant one to the Arias case is this:

Relying on State v. Essman, (1965), Moore also argues that under the merger doctrine, felony murder cannot be predicated upon a burglary that is itself based on the intent to murder.

 

State v. Essman (1965)

Essman: It’s not felony murder because the felony and the murder are the same thing.

Felony Murder does not apply when the felony is included in (Merged into) the charge of homicide.

Court: Yes, we agree.

 

Essman is in itself an interesting case. Essman was home and cleaning his gun with his daughter in a near bedroom. He began playing around with the gun. His wife came home and told him to put the gun away before someone gets hurt.

Essman said something like “See? It’s harmless”, as he pointed the gun at the family dog and fired twice. Nothing happened because Essman had emptied the revolver. Then he aimed the gun at his wife and pulled the trigger. The gun went off and killed her. Apparently there was one bullet left in the chamber. Jerk.

https://www.youtube.com/watch?v=ylqEN7J3GLA

 

In his instruction on second degree murder the judge in Essman instructed the jury that the felony-murder doctrine applied where the felony was assault with a deadly weapon. The pertinent portion of the instruction was “when the killing is done in the perpetration or attempt to perpetrate a felony such as assault with a deadly weapon.” The felony-murder doctrine does not apply where the felony is an offense included in the charge of homicide.

The felony murder doctrine basically states that any death caused during a dangerous felony becomes a 1st or 2nd degree murder.

 

The decision quoted People v. Moran 246 N.Y. 1927

“The acts of assault merge into the resultant homicide, and may not be deemed a separate and independent offense which could support a conviction for felony murder.”

 

In the appeal of State v. Moran, Chief Judge Cardozo quoted State v. Huter

“To make the quality of the intent indifferent, it is not enough to show that the homicide was felonious, or that there was a felonious assault which culminated in homicide”. People v. Huter 184 N.Y.

“Making the quality of the intent indifferent” means that the intent needs to be to commit a felony which causes a death, rather than an intent to commit a murder. Remember in felony murder, the death caused could be accidental (heart attack, death of a bystander, etc) or intentional (sudden decision to kill, foreseeable consequence of felonious activities).

“Such a holding would mean that every homicide, not justifiable or excusable, would occur in the commission of a felony, with the result that intent to kill and deliberation and premeditation would never be essential.” People v. Wagner 245 N.Y.

 

– And this is why most states practice this kind of common law.

“The felony that eliminates the quality of the intent must be one that is independent of the homicide and of the assault merged therein, like robbery or larceny or burglary or rape.” 246 N.Y.

This is the Merger Rule. When the predicate felony of a felony murder merges with the actual murder itself (assault, aggravated assault, assault with a deadly weapon), the merger rule applies and the crime cannot be charged as a Felony murder.

It's complicated

 

Why is this so important?

In the case of 1st degree murder, if the crime can be charged as a Felony Murder, two things happen:

 

First, there are no lesser included offenses or degrees of the crime. You either get convicted of the highest degree of murder, or you are not convicted. It’s all or nothing.

With Pre-mediated Murder, the jury can decide on lesser offenses and lower degrees of the crime (2nd degree Murder, Heat of Passion, Manslaughter), so you do not necessarily get convicted of the highest degree of murder.

 

Second, intent to murder no longer  has to be proven, only that a death occurred during an intent to commit a dangerous felony.

It might be advantageous for the prosecution to charge felony murder over premeditated murder, because a conviction would be of the highest degree, and intent to kill doesn’t need to be proven.

 

This is why the Merger rule is meant to prevent a murder with no dangerous felony other than the murder itself from being charged as a felony murder.

A serious problem with the Arias case is that the prosecution never really specified prior to trial exactly what the felony defining the burglary was, meaning the Felony part of the felony murder is Burglary with intent to …….?

 

It’s not even specified in the jury instructions, the way it is in other cases. It merely says burglary with intent to commit any theft or felony.

So what’s the felony in the felony murder charge in the Arias case?

 

SWCC bell

In Moore, State v. Miniefield is also cited. You can hear Kirk Nurmi discussing this on day 9 of the trial (we included the video and where to find it in the Holy Grail article).

Miniefield basically got drunk and went ballistic trying to kill a guy he got angry at. He had at times, a handgun, a shotgun, and finally, Molotov Cocktails. He finally managed to set the guy’s house on fire and the guy’s young daughter was burned to death.

Kind of makes it difficult to root for this guy in his appeal, doesn’t it?

 

It's complicated lg

 

State v. Miniefield (1974)

http://law.justia.com/cases/arizona/supreme-court/1974/2763-0.html

This guy wanted the felony murder conviction dropped so badly, he was even willing to admit to pre-meditated murder.

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Minefield: It’s not felony murder because I intended to murder the victim.

It’s not felony murder because the arson was not independent of the homicide.

Court: Yes, it is felony murder and the arson IS independent of the homicide.

 

“Later Arizona cases implicitly rejected the broad language in Essman suggesting that the predicate felony must be “independent of the homicide.” For example, in State v. Miniefield, the defendant argued that it was fundamental error to charge him with felony murder by arson because “the arson was merely the use of fire to attempt to kill the victim.”

The Court rejected this argument by noting that the felony murder statute provided that when a person commits arson and the arson results in death it is first-degree murder. “The statute does not draw a distinction between a person who intends to kill another by fire and one who only intends to burn down a dwelling house and accidentally kills one of the occupants.”

 

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See the logic there? Arizona doesn’t care if premeditated murder and felony murder, seemingly mutually exclusive, are both charged and both found as long as the basic elements of each theory are proven.

Most recently, the Court distinguished Essman in State v. Dann (Dann I), (2003).

“There, the defendant argued that because he intended to murder a victim rather than assault him, he could not be convicted of felony murder.

 

Noting that the defendant did not dispute that felony murder could be predicated on burglary based on intent to commit assault, the Court held that sufficient evidence supported the finding of the predicate offense. The Court further observed that the merger rule does not apply in cases in which the separate crime of burglary is alleged.”

Meaning that it helps a felony murder charge, to have a separate charge for the felony.

The Jodi Arias case did not have a separate charge for felony.

 

“Moore complains that the State, while charging felony murder based on burglary, did not specify until the settling of jury instructions, and after the close of evidence, that burglary would be defined by his intent to commit murder rather than theft.”

Prosecutor

Arizona prosecutors sure like to keep secrets from the defense, don’t they?

“We agree with Moore that Blakley implies that the state should identify before trial the particular felony that will be used to define burglary when the latter crime is the predicate for felony murder.”

 

Moore was indicted for and convicted of two counts of premeditated and felony murder for the murders of Delia and Guadalupe, one count of premeditated murder for the murder of Mata, one count of attempted first-degree murder for the injuries to Ford, and one count of first-degree burglary. The trial court was to sentence Moore in August 2002, but the hearing was vacated after the Supreme Court held that Arizona’s capital sentencing scheme was unconstitutional. See Arizona v. Ring (Ring II), (2002).

 

Clarence Thomas, Antonin Scalia, John G. Roberts, Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor, Stephen Breyer, Smauel Alito Jr., Elena Kagan

Arizona v. Ring (Ring II), (2002). Is a landmark case which held that juries, not judges, should decide the death penalty mitigators and aggravators and decide on life or death.

 http://www.deathpenaltyinfo.org/us-supreme-court-ring-v-arizona

Landmark cases are sometimes based on the trials of real pieces of ……… work, like Ring.

 

“In November 2004, the trial court empanelled a jury to determine Moore’s sentence. The State alleged two aggravators: that Moore murdered Delia in an especially cruel manner, and that Moore murdered multiple persons on the same occasion. The jury did not reach a verdict on the (F)(6) aggravator, but did find the (F)(8) aggravator. Before the penalty phase concluded, the court declared a mistrial because Moore’s medical expert suffered a heart attack.

Moore was another endless case.

 

Why felony murder is so contentious:

Remember that Felony Murder means that if someone dies in the course of a dangerous felony, that death can become a 1st degree murder. A defendant could get life in prison or the death penalty. While Premeditated Murder includes lesser charges a jury could decide on.

There’s a famous case where a man goes into a home with a gun to rob it. He hears a sound and changes his mind and runs out of the home. On the way, he trips over a wire falls and the gun goes off. Unknown to him, there was a person behind the wall who was shot and killed. The man leaves thinking the worse thing he did was the gun went off. He was arrested for felony murder and faced the death penalty. This is because he attempted a burglary and in the course of the attempt, he caused the death of a person.

This is the landmark U.S. Supreme Court case of Furman v. Georgia.

http://www.floridalawreview.com/wp-content/uploads/2010/01/ShatzA2.pdf

 

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Scary to think that because of the felony murder law, the man faced the death penalty for what was otherwise an accidental shooting. Without the felony of burglary – theft, this would normally be a 2nd degree murder at most or manslaughter.

So, there are lots of consequences, sometimes unintended, when applying the law to the facts of a case or deciding how a defendant will be charged.

– and sometimes they are intended.

 

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State v.Dann (2003)

http://supremestateaz.granicus.com/DocumentViewer.php?file=supremestateaz_510ea0c0c124b6f12fd2ce54a0d0ad2d.pdf&view=1

Dann: It cannot be Felony Murder if I enter the home in order to commit premeditated murder.

Court:  It is felony murder because the felony was burglary with intent to commit assault. In the course of that felony, you caused the death of a person. There is sufficient evidence to find intent to assault.

 

“The jury found Dann guilty of felony murder on all three murder charges. The predicate offense for the felony murders was burglary, which, in turn, was predicated on an intent to commit aggravated assault. The State charged that Dann went to the apartment intending to shoot Andrew, which constitutes an aggravated assault.

Dann asserts that the evidence showed that he entered Andrew’s apartment intending to murder Andrew, not assault him; therefore, he argues, the only felony offense to support the burglary charge was murder, not aggravated assault.”

 

“This results in ‘bootstrapping’, Dann maintains, because the State is saying that he committed felony murder because he entered the apartment intending to commit premeditated murder.”

 

 

 

The Court held that sufficient evidence supported the finding of the predicate offense. The Court further observed that “merger does not apply in cases in which the separate crime of burglary is alleged and established.”

“Dann I and Miniefield defeat Moore’s argument that felony murder cannot be predicated on a burglary that is based on the intent to murder. The felony murder statute, A.R.S.§ 13-1105(A)(2), does not distinguish between burglaries defined by intent to commit assault versus intent to murder.”

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In Arizona, yes you can!

So who is right about the Arias case? “Cate” and Juan Martinez and Judge Sherry Stephens and The Supreme Court of Arizona or Amanda Chen and Rob Roman and Kirk Nurmi and Vladimir Gagin?

“Cate” made the comment that legal interpretations and decisions should be left to the professionals (Prosecutors and Judges), and not to layman blog writers. She forgets that Nurmi and Gagin are experienced criminal defense attorneys in Arizona, and they say the felony murder charge is in error.

 

“Cate” also forgets I went to law school as did Amanda, I’m a paralegal working in Federal and State Civil Litigation with an emphasis on the Disabled. I think I can give it a shot.

 

“Cate” made a big legal boo-boo. She forgot that in State v. Moore, all those cited cases and the appeal apply to State v. Moore. They do not necessarily apply to State v. Arias.

 

Now let’s bring down all the questions from the top of this article and see if these cases have answered our questions:

  • Does it make sense that in Arizona, you can find someone guilty of BOTH Felony Murder (an unplanned murder) and Pre-meditated murder (a planned murder)?

Yes, it makes sense – in Arizona. You can find a defendant guilty of both premeditated murder AND felony murder. You can see that it’s a correct verdict in State v. Moore, because Moore was convicted of both 1st degree premeditated murder and felony murder of 2 victims.

 

So, to clarify, you can be found guilty under both theories of first degree murder IF, in the course of a dangerous felony, you commit pre-meditated murder. That’s the reality in Arizona.

This seems to be only in Arizona, as far as I know. It seems like this gives prosecutors two bites at the apple, though.

 

Arizona seems to like those second bites at the apple, as shown in their nifty little ‘if at first you don’t succeed (at the death penalty) try, try again’.

  • Does the Merger rule apply in Arizona? Can you be found guilty of felony murder based on a burglary with intent to commit murder?
  • Can Juan Martinez use an intent to assault or murder as the basis for the Felony burglary in State v. Arias?

 

If the felony merges with the murder, then any murder would be a felony murder and there would be no need to prove pre-meditation, deliberation, or an intent to kill.

This is the law in most states. This was the law in Arizona. But, Arizona didn’t like that too very much, so they do it their way.

 

Later Arizona cases implicitly rejected the broad language in Essman suggesting that the predicate felony must be “independent of the homicide.”

These next three cases reflect that rejection of Essman:

 

 It's complicated lg

 

Moore:  How can I be guilty of Felony Murder based on a burglary with the intent to commit pre-meditated murder?

Court: Because we find you committed burglary with the intent to commit assault. In the course of this felony, you caused the death of a person. Have a nice day.

 

Other states have held that a felony-murder conviction cannot be based on a burglary intended solely to murder the victim. Arizona don’t give a squid what them there other states do.

“We have already recognized that Arizona’s felony-murder statute identifies burglary based on assault as a valid predicate offense”.

 

Miniefield: It’s not felony murder because I intended to murder the victim

Court: Your intention to murder the victim is of no consequence for the purposes of felony murder. Your intention was to commit arson because you did commit arson. Whether you intended to kill or not, doesn’t matter in felony murder. You set the building on fire and someone died as a result, Jerk.

 

Miniefield: I did not intend to commit arson, my intent was to kill the victim.

Court: You lit the Molotov cocktail and you threw it at the house.  How was that not your intention, sir?

 

Dann:  How can it be Felony Murder if I enter the home in order to commit premeditated murder?

Court: We have proof you entered the home to commit an assault. Also, we have a separate felony charge

 

Felony murder can be predicated on a burglary that is based on the intent to murder.

The felony murder statute does not distinguish between burglaries defined by intent to commit assault versus intent to murder.

 

  • Does the felony murder charge correctly apply to the Arias case, or was the charge possibly kept solely to give the jurors another choice of 1st degree murder, (in a sort of heads I win, tails, you lose situation) for the prosecution?

curious george

I would not put it past a prosecutor who tries to bring in evidence of “animal cruelty and torture” based on a vague, 3rd party report of a too tightly squeezed cat. After that monkey business with the order of injuries, I wouldn’t trust him anyways, nohow.

  • Can you be found guilty of felony murder (A death occurs in the course of another dangerous felony) based on burglary with intent to commit the murder?

Under some circumstances, yes you can.

  • Is this a legitimate charge under the facts of State v. Arias?

No. They can charge whatever they want, but then you have to wonder if there is an ulterior motive.

  • Were the 7 jurors who found for felony murder correct or not?

Incorrect. (but, it’s complicated)

 

It's complicated lg

 

CONCLUSION:

In Arizona, Yes You Can:

  • Prosecutors can charge a defendant with BOTH 1st degree pre-meditated murder AND 1st degree felony murder of a single victim. (Guess what? You can charge a defendant with anything you want – but, then you have to prove it)
  • Jurors can find a defendant guilty of BOTH 1st degree pre-meditated murder AND 1st degree felony murder (The verdict form proves it and State v. Moore proves it) (A juror can make any decision allowed by the jury instructions).
  • Arizona’s felony murder statute recognizes assault as a valid predicate offense.
  • prosecutor_tsukichima_in_action_by_tsukichime-d5v3t03
  • In Arizona the Merger Rule doesn’t always apply. The felony can incorporate some parts of the murder.
  • In Arizona the felony predicate does not need to be independent of the homicide
  • In Arizona, felony murder can be predicated on a burglary that is based on the intent to murder.
  • In Arizona, burglary does not distinguish between an attempt to assault and an attempt to murder.

 

crown_prosecutor_marie_grills_addresses_the_weathe_85063054a4

So, are Juan Martinez and Judge Stephens correct that the felony murder charge is a viable extra 1st degree murder charge under the facts of the Jodi Arias case?

Has “Cate” decimated all the arguments we made in the Holy Grail article?

Do Nurmi and Gagic and Chen and Roman have it all wrong and are their arguments are no good?

 

Uh………no. They’re still good. Here’s why:

 

In State v. Arias,

There is insufficient evidence to support the finding of the predicate offense of burglary with intent to commit theft.

There is insufficient evidence to support the finding of the predicate offense of burglary with intent to commit assault.

 

Although the Essman ruling used to be the law, where the merger rule always applied and a predicate felony needed to be independent of the homicide, that’s no longer true, because of the decisions in the above cases

Later Arizona cases implicitly rejected the broad language in Essman suggesting that the predicate felony must be “independent of the homicide.” The key here is “the broad language” That does not mean that the Merger rule never applies or that felony predicates can always be the same as the elements of homicide.

 

The important thing is that each element needs to be proven beyond a reasonable doubt to the jury. This means that to find for pre-meditated murder or felony murder, each element of the charge needs to be proven according to the requirements of the two separate theories.

 

So let’s take another look at the chart from the Holy Grail article, and see if we can find Jodi Arias guilty of Felony murder under the facts of the case.

To find Arias guilty of 1st degree felony murder, we need:

  • A predicate felony (We are told it is 2nd degree burglary)
  • A death caused in the course of that felony.

 

Jury Instructions:

CHARGED OFFENSE – FELONY MURDER

As stated earlier, Count 1 also charges defendant with First Degree Felony Murder. The crime of First Degree Felony Murder requires the state to prove the following two things:

  1. The defendant committed or attempted to commit Burglary in the Second Degree; and
  2. In the course of and in furtherance of committing Burglary in the Second Degree, or immediate flight from it, the defendant caused the death of any person.

An “attempt” requires the state to prove that the defendant intentionally did something which, under the circumstances she believed them to be, was a step in a course of conduct planned to culminate in the commission of the offense. The crime of

Burglary in the Second Degree requires proof that the defendant:

  1. Entered or remained unlawfully in or on a residential structure; and
  2. Did so with the intent to commit any theft or felony therein.

 

#1 As far as the first part of burglary, I will accept Juan Martinez’ explanation for now that once Jodi Arias started stabbing Travis Alexander, he revoked his permission for her to be there, and she was now remaining unlawfully in the residence.

Many people believe Alexander was shot first. Then, let’s say that once Arias ‘began her assault’ on Travis, she was no longer welcome and she was now remaining unlawfully in the residence.

 

Problem: Wait a minute, Juan is assuming intent to assault or intent to kill – take your pick. We don’t know exactly what happened in that bathroom. Reporters still want to ask Arias that question.

Let’s ignore that for a moment and move on.

 

#2 Remained unlawfully in the residence with the intent to commit any theft or felony therein.

Juan Martinez gave us the theft of the gun as defining the burglary. If we believe Arias’ account of the crime

(No premeditation, she brought no weapons with her, A fight breaks out, Arias shot Alexander with his own gun in self-defense, he kept attacking, she finishes him off with a knife, she steals his gun).

 

I say “No pre-meditation”, because for felony murder, pre-meditated or not makes no difference. Only an intent to commit the dangerous felony matters. You cannot use your finding of premeditation as proof of intent in a felony murder.

So theft of the gun fails as defining the burglary right here. Why? Because, Juan Martinez did not PROVE WHEN the intent to take the gun was formed. The intent could have been formed AFTER the killing (and most likely was). This means that the death would not be caused “in the course of and in furtherance of the burglary”.

 

Do you understand?

A death has to be caused as a consequence of Arias trying to steal that gun. If she forms the intent to steal the gun after he’s already dead, then the death is not a consequence of the theft.

“Cate” made a remark that maybe Juan might have been being facetious about the gun. I thought of that also, but I hope not, because this is somewhat of a serious matter.

 

So the gun theft fails. Let’s move on to the assault.

Jodi Arias remained unlawfully in the home. She did so with the intent to commit assault upon Travis Alexander.

Problem: Where is Juan Martinez’ proof beyond a reasonable doubt of intent to assault? There isn’t any, because Nurmi was right, there is no other felony. There is no other felony because Juan Martinez failed to PROVE it.

 

Well, I believe she pre-meditated the killing, isn’t that intent?

  • No, because pre-meditated or not makes no difference. It cannot be an element of intent to assault, or intent to kill. That has to be proven separately. Well, that’s really bizarre. Yes, but law is very bizzare sometimes.

Well, there’s the crime scene and the stabbed and shot body. No one else was there. It had to be Arias. Isn’t that intent to commit assault?

  • No. Because Juan Martinez didn’t prove beyond a reasonable doubt that Arias intended to assault Alexander.

 

Well, what about all that case law above?

  • Right. Did you see the Judge say hey, Moore, You were convicted of both premeditated AND felony murder? You dispute the felony murder, but, you premeditated it, so there’s the intent. He didn’t say that.

Did you hear the judge say, hey, Moore, you see that dead body? That proves your intent. He didn’t say that either.

 

What the judge said was, it doesn’t matter what’s in your mind, we have evidence that you were heavily engaged in crack smoking throughout, that you got a gun, that you told your gf you “weren’t going to stand for it” and to come and find you if you didn’ return. You showed a friend the gun and asked him for hrlp to “get”the victim. You entered the home with a weapon. There’s an eye witness. That’s proof of intent to assault. And people died in the course of the assault. That’s felony murder.

 That kind of evidence does not exist in the Jodi Arias case.

In Minifield, it was proven that he took a Molotov cocktail, lit it, and threw it at the home. That’s proof of intent to commit arson. A little girl died. That’s felony murder.

 That kind of evidence does not exist in the Jodi Arias case.

In Dann, he claimed there was no other felony except the murder. The State charged an intent to kill, but later changed it to an intent to commit aggravated assault. Dann told the court he intended to kill the victim, not assault him, so there is no other felony.

The court replied that we have testimony that you borrowed a gun from your ex-gf, you tried to boorow another “untraceable gun” from a friend, you told your friend you intended to “straighten out the problem, you entered the home with the gun, you called your ex-gf and told he you just shot three people, and that’s proof of intent to assault. As a consequence, someone died. That’s felony murder.

 That kind of evidence does not exist in the Jodi Arias case.

liberty_bell

– Well, what if we forget about pre-meditation for now, and let’s say Jodi Arias was proven to be going to Alexander’s home after preparing for a nefarious purpose of some kind, isn’t that proof of intent to assault?

No. Because we don’t know when or where or if she formed the intent to assault, no proof.

– Well, it’s a reasonable assumption that Jodi brought a gun and/or knife to Mesa and into Travis’ home. Isn’t that proof of intent to assault?

No. There’s no proof that Jodi brought the gun or the knife to the crime scene.

In Moore and Dann, there was proof they were armed when they entered residences. Moore was also charged separately with a felony, so for the facts of his case, the merger rule doesn’t apply anyways.

 

Arias was charged with the felony predicate of 2nd degree burglary – assault. They used 2nd degree instead of 1st degree precisely because the state could not prove she brought a weapon into the house.

– Well, she said she did it. She said she did it all. So, if I don’t believe her self-defense story or that Travis attacked her, or if I believe she went way too far, then that proves her intent to assault, doesn’t it?

No, I don’t think so. I wouldn’t rely on her word about anything. I see the merger rule coming into play here, as there’s no distinct felony here, just like Nurmi said. I don’t see how there’s a clear intent to kill or assault, beyond a reasonable doubt.

 

She was an invited guest, they did interact and have a good time, she was there over 12 hours, then something happened, and I believe there will always be some doubt there as far as what exactly happened. Apparently, it wasn’t very clear to 5 of the jurors.

Now, I believe the only way that felony murder makes any sense at all in this case is if the gunshot was first. Think about this: She shoots him in the shower, as part of a plan to kill him, only he doesn’t die. Jodi Arias doesn’t leave the residence, and she doesn’t call for an ambulance or for help. At this point, she’s remaining in the residence unlawfully. It’s burglary – assault. Jodi Arias then picks up a knife and finishes him off.

 

Here I would say this is a clear burglary – assault, and in the course of and furtherance of this felony, she caused the death of Alexander. The other way, it’s not so clear at all. Maybe Juan Martinez wanted it that way.

That’s another reason why the change in the order of injuries by the prosecution is problematic. The felony murder charge certainly fits much better with the gunshot first murder theory. I believe that when the prosecution changed the order of injuries to gunshot last, they forgot that this new theory doesn’t fit felony murder. I believe that later, they stubbornly refused to drop the charge, for fear it would draw attention to the fact that they swcithed the order of injuries intentionally to squash Jodi Arias’ self-defense claim.

 

– Well, what is your reasoning for felony murder not working the other way, with the stabbings first?

I see a merger rule problem with that theory. I just don’t see clear proof of intent either to kill or assault, to make this strictly a felony murder.

 

“Cate” said something to the effect of, well, if the felony murder charge really didn’t make sense, why weren’t the legal minds in the major media discussing it? This is her type of street logic that I just don’t get, using something that didn’t happen to prove that something else did.

Remember the saying – “Evidence of absence is not absence of evidence.”

You drive me crazy that way, Cate, I have to admit.

 

Maybe they weren’t discussing it because the prosecution was pushing pre-meditation, or because pre-meditation elements and the lesser included offenses that go with it are more interesting to talk about. Or maybe the viewers weren’t asking about it. Who knows?

If Arias was found unanimously guilty of felony murder 1 instead of premeditated murder 1, maybe they would have talked about it then.

Who are these legal experts she’s talking about, anyways? Dershowitz? Beth Karas? Vinnie Politan? – Please!

 

Is there a quote or an article or a video from anyone about how the felony murder charge is correct?

I couldn’t find any major media Legal Eagles speaking on the soundness of the charge, but I did find one legal commentator who said what Nurmi said – that there was nothing there. Does the name Monica Lindstrom ring a bell?

 

This case is not the same as the other cases cited above. This is the only case of the above in which I see no clear felony outside of the murder, despite the Arizona way of not always using the merger rule and sometimes allowing the felony to incorporate certain parts of the murder, which certainly seems to favor the prosecution.

  • Why was the prosecution so reluctant to explain to the defense exactly what their felony murder theory was in this case?
  • Why was there was a lot of contention in motions in 2010, before Nurmi took over the case about this exact question?
  • Why did the prosecution argue for pre-meditation all day every day and then spend just 5 minutes arguing felony murder?
  • Why didn’t the prosecution specify the exact felony (assault, murder, theft, etc.) defining the burglary, even in the jury instructions? Other cases do.
  • Why was the prosecution intentionally ambiguous about it, and why did they spend so little time explaining it?

That’s just more than a little fishy when the felony murder is obviously not as clear-cut and much harder to understand.

 

Maybe Nurmi was right: “(This) is either a premeditated murder or it’s not, and the felony murder burglary charge is just an “empty vessel” in order to seek a first degree murder conviction”. 

 

images (1)images (2) 

It certainly seems that felony murder charge was left there more to ensure a first degree murder conviction than because the prosecution honestly believed it was a legitimate charge.

Good job rejecting it, jurors!

 

  • Again, the predicate felony = remaining unlawfully in the home (via killing Alexander) with the intent of committing any further felony (killing Alexander) and the murder part of the felony murder is (killing Alexander).

circular_logic_by_mestafais-d5vm1d1

 

  • Even in Arizona, and even considering all the cited cases above, “Felony-murder still cannot be charged if all the elements of the felony are included in the elements of the murder”. This is the merger doctrine in Arizona. 

 

  • The gun theft fails, timing of the intent to steal the gun – not proven – therefore no burglary, therefore no felony murder.

 

  • The assault fails – no clear and convincing of proof of an intent to assault, therefore no burglary, therefore no felony murder.

 

  • Remaining unlawfully in the home. No clear proof of intent to assault – therefore no proof of revocation of consent to be in the home, therefore no burglary, therefore no felony murder.

 

The charge should have been dropped.

We invite any legal expert, especially those who practice criminal law in Arizona to explain to us why the felony murder charge in the Jodi Arias case makes any sense at all.

Monica Lindstrom Legal Commentator After the prosecution rested in the Arias Trial guilt phase: “I think the Court has every reason now to kick that felony murder count or alternate theory out, because there’s nothing that I’ve seen, and I don’t think anybody else has seen anything that will go to that.”
Monica Lindstrom Legal Commentator After the prosecution rested in the Arias Trial guilt phase:
“I think the Court has every reason now to kick that felony murder count or alternate theory out, because there’s nothing that I’ve seen, and I don’t think anybody else has seen anything that will go to that.”

What is YOUR opinion?

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