Reader: Your Arias Trial, felony murder charge article is baloney (Dec 12)

Reader: Your Arias Trial, felony murder charge article is baloney

Legal analysis

by Rob Roman & Amanda Chen


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?


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

“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.


State v. Moore

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.'

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.

The ruling was made tha:.” 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.

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.

 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.


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)

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


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.”


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.

The Court held that sufficient evidence supported the finding of the predicate offense – assault. 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.


The prosecutors wouldn’t tell Moore what the felony was. 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. 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.

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.



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.


State v.Dann (2003)

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 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.”


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” 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. 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.

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


  • 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


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.
  • Jurors can find a defendant guilty of BOTH 1st degree pre-meditated murder AND 1st degree felony murder. (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.


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:


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.


– 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.

– 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.

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!

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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20 thoughts on “Reader: Your Arias Trial, felony murder charge article is baloney (Dec 12)”

  1. Can it happen if the jury felt that Juan Martinez did prove his case? I know you saying he didn’t prove it but the jury says he proved it, I believe it happened the way he said it happened, she premeditated it, planned it, went there to carry out the murder, and as she assaults him with the intent to kill him, now she is no longer an invited guest (the jury’s thinking) do you know what I mean? You believe that all that wasn’t proven, but they saw all the evidence and had no doubt that is the way it happened.

    1. Thank-You for your comment, Ang. I understand what you’re saying. Of course, each juror can believe what they wish, But, the appellate courts look for hard evidence. In the 3 other cases where the issue is similar, felony murder based on burglary with intent to commit theft or any other felony, in all three cases, there was clear evidence of intent to assault or kill the victim.

      In the Arias case, there is no proof of intent to commit any other felony. Alexander was certainly assaulted and he was certainly killed, even murdered by Arias. The problem is the prosecution has no clear proof that she intended to commit those crimes. She was a welcome guest, there’s no proof she brought a weapon(s), no matter how sure we might be of it. They were involved in activities together, then something happened.

      The pre-meditation evidence can’t be used, because we don’t know what she was intending to do. So, for the purposes of felony murder, there’s nothing there.

  2. Hi, I had left a comment and did not see it, it disappeared. Should I repost it? I was very curious to hear your take on it. It was about the jury believing that the case had been proven and if the jury had felt that it was proved that she did premeditate the murder, go to his house, carry out the murder which at that point would have made her an uninvited guest, so if the jury believed that the state had proved it then would the convictions for those two then be valid?

    1. Yes. Ang. The jury can vote how they wish, and a unanimous or partial conviction on felony murder would be valid. But,a felony murder conviction would have to be over-ridden by the judge or thrown out on appeal.

      This is because there is no evidence of intent.
      When prosecutor Martinez says, “As soon as she started stabbing him, she was no longer welcome” = burglary with intent, he never provided proof of intent. The whole predicate felony collapses right there.

      That’s why Monica Lindstrom said there was nothing to the charge and the judge should have dropped that charge.

  3. Oh geez, sorry. I got an email from you guys, I understand it might not have been directly from u, I thought it was telling me you responded to my first message, then when I looked I didn’t see my first post so I thought it did not go through and reposted it, only to see the comment after posting the 2nd. Lol. Oops

    1. Yeah, I didn’t know they send an e-mail. It’s because it’s your first time commenting, and I have to approve, and I just read it. On this site, we approve all comments, unlike Dr. Kristen Randle, who would not let me comment on her site because I opposed her view.

  4. Thanks rob. I can do all the basics on computers, tablet, and phones, which is odd cause I went to college for microcomputer applications, which was long before tablets and phones came out until I became a stay at home mom. So please forgive me if I have some minor issues with posting. Lol. I read your blog and all your posts,and I see you allow all comments, which is nice. But anyhoo, I see where you are coming from. I always thought as long as the jury came to their conclusion then that is what stands, I mean I know there are convictions that are overturned and I am not talking about anything other then this post. I actually really like how you break everything down to an understandable thing. So no matter which way you lean on the guilty or not guilty, self defense or she is guilty as sin for premeditated murder, I can still see where you are going with explanations. So say they had found the gun say, “it matches the gun stolen from the house and matched the bullet” that would be considered hard evidence? And thereforw then those convictions would apply? Also, I thought that if wvww if evidence was circumstantial but so much evidence that you add it up and the jury says thwre is all this evidence, sure it may be circumstantial but there is so much of it that we have no doubt that this evidence points to guilt, is that considered hard evidence? I watch the Scott Peterson and drew Peterson (who actually lived about 10 houses down from me in bolingbrook,I’ll and I vaguely knew Stacey) and really there was less “evidence” entered I’m their cases. I mean IL changed the law about hearsay just so they could convict drew Peterson of his first wife’s murder(which I believe is dangerous for anyone now)

    1. Ang, you made a lot of really nice points. We have a good article here on Scott Peterson, so don’t get me started on him. Drew Peterson is the probably the most arrogant sociopath I’ve seen.

      Both those cases are heavily circumstantial and thank-God they were both put away. Much of what you’re talking about applies to pre-meditation, and we were only addressing the felony murder charge.

      Most circumstantial pre-meditation evidence, for example the hair color change, the gas cans, the phone being turned off, the license plate tampering, even the gun caliber are all valid pieces of evidence.

      As far as the felony murder count, though, none of those items proves that Arias intended to assault Alexander in the bathroom at that time. We can really believe that she was intending something, but intent is very time specific.

      If Arias had told someone she was going to attack TA, or if the gun used was proven to be the gun stolen (like you said), then that would be proof of intent.

      Otherwise, every pre-meditated murder would also be a felony murder. Drew Peterson was really frightening because he was a police officer. The way he had that “catch me if you can, sucker” attitude. Wow.

      In this case we’re saying that the prosecutor knew he didn’t have anything for the felony murder charge, but he kept the charge, anyways. We believe that was wrong and prejudicial, no matter what a person’s opinion is on Arias.

      I definitely agree that hearsay can be problematic, because you can’t cross-examine hearsay.

  5. Ahhhj, I see what you are saying now. I wasn’t making that distinction between premed and felony. Yes, I absolutely get it now. I did not see the article you had on Scott but have seen comments that you made on him on other post that had to do with Jodi, so I do know how u feel about him. Lol. The way we all feel. Thank god they r off the streets. Yeah, I saw that ass drew out at a bar about a month after his wife disappeared and he was acting like he was some sort of rock star, I kid you not he was telling people he would be happy to sign autographs.WHAT??? When people started screaming at him in the bar he claimed he was just joking. I also worked at a company at the time that hired bolungbrook police officers as security over night to patrol the grounds(off duty) so they tell me that he makes all these jokes and thinks everything is so funny, he had alienated all of his police friends. They hated him. But I get it now. I am surprised then that juan had not, like you said, gone with the gun shot first scenerio. To tell the truth I do believe that theory more then the other theory. I believe that is how it happemed , which brings me to my next question
    Can the jury convict on that scenario?. Let me explain. So the jury is done hearing all the evidence and they go to deliberate, and while doing that, they say “well, we believe she did it, we believe it was premeditated,we believe everything the state say buuuut we believe she actually shot first and that did not work so she started stabbing him (cause if we can think that could have happened, them maybe some of the jury could) that is the only thing we disagree with and say the order was” so they all discuss and say felony/premed on that basis? I don’t know if a jury is allowed to ya know take some parts and say this makes sense and this makes sense and this is how we all think it happened? Or do they have to say OK this is the only scenerio the state gave so we have to make our decision based on that theroy and that one alone? Thanks so much. Jeez, u ask a question on each end that u might question one small detail and everyone jumps down ur throat. I question someone on Jodi side and they go cray cray, I question someone on Travis side and they go cray cray. And its legit questions about the evidence and procedures. I don’t call names, I don’t get sarcastic. I use only stuff that was in the trial. I don’t go by rumors or interviews from either side. I don’t watch the news. (In fact I only ever have nick or Disney on) lol. But lo and behold if I ask a question! Thanks again.

    1. Yes, Ang, Drew Peterson was so sure of himself, he thought he could brazenly act like he was untouchable. He would come out and say “You got nothing”, and it’s interesting to see someone who was there say it was just as the media portrayed.

      There are zealots, minions, and decepticons on both sides of the Arias case. We are proud of taking the high road and we believe our articles are factual and hold true whether Jodi Arias is totally guilty or totally innocent. We also do not depend on her testimony.

      The prosecution can charge whatever they want, the jurors can decide on what the facts are. They don’t have to agree with each other on theory. Now, if they decide it was gunshot first-murder, then since Jodi Arias aimed the gun at Travis Alexander and fired it, by her own admission, there’s a case for intent to assault on that basis. This is why Juan Martinez got Arias to admit on the stand that she aimed the gun at Travis and fired it.

      The point we make is, the gun-shot first theory is possibly a case for felony murder, but the gunshot last theory has no possibility. Also, it’s more cruel, because she could have called for help and saved his life, but she went on to stab him to death. It’s also pre-meditation built-in at the moment she grabbed the knife regardless of the weeks long premeditation. You no longer need to rely on any of the evidence of planning before she arrived at the home.

      On top of that, in Arizona, when you assault a person you believe is already dead, as in the gunshot last theory, and the M.E. did testify to that, that automatically qualifies Arias for the heinous and depraved “prongs” of the especially heinous, cruel, and depraved Death Penalty aggravator.

      This is very important because the state never alleged heinous or depraved. Now, they’re not required to, but WHY NOT? All these things show that the state never believed the gunshot-last theory, and the felony murder charge, the crime scene evidence, and the failure to charge the extra aggravator prongs all point to gunshot first.

      This bolsters our claim that the prosecution deliberately switched the order of injuries prior to the ANTICIPATED start of trial to defeat Arias’s claim of of self-defense, as a strategy to win, and not because they actually believed it.

      It’s like stepping through mine fields talking with one side or the other and most people don’t really know or care what the facts are. The people who really investigate this case and know the evidence, almost all believe the gunshot was first, on both sides of this case.

      We enjoy being challenged and that’s why we have this blog, not for as much for Arias supporters as for prosecution supporters and the undecided.

      Thanks for your comments, you can ask us anything, but then we always want people to decide for themselves.

  6. You know something stinks in Denmark when appellate attorneys use first degree premeditated murder as a defense argument, seems like there’s a pattern in Arizona.
    On the subject of burglary as the predicate felony, I could understand if Jodi’s grandpa had a heart attack while she was stealing his gun (which is what Juan argued throughout the case) she would be charged with felony murder but I can’t figure out how she qualified for it since Martinez insisted she brought it with her to Mesa. This is not multiple choice.
    The principle behind the felony murder law in the first place was to distinguish it from premeditated murder while punishing equally, therefore deterring, serious crimes which ended in deaths unintentionally, this is completely at odds with the Arizona interpretation of this principle imo. There’s a reason why many places are moving away from this charge all together but of course leave it to Arizona to really take a liking to it centuries later (perhaps in an attempt to patriotically beef up the robust state prison industry). The merger doctrine is crucial and I don’t see how it can be applied selectively either.
    The crux of the problem in Arizona imo (though they don’t see it as a problem) is that they changed their definition of burglary, now basically anything can qualify as felony murder. Their definition of burglary is really just a robust form of trespassing but it is routinely used to qualify you for that much needed predicate felony. Any time you start stabbing, shooting, strangling (or whatever) someone it goes without saying you’re no longer welcome on the premises, whether that’s Bob’s house or the Mormon Mega Mall (aka. MMM).
    Premeditated murder and felony murder is an oxymoron in my opinion.
    ps. Who’s that Randle quack who won’t let you talk :)?

    1. Chad Shell – Congratulations, you get it! That’s exactly right. Ä robust form of trespassing – right. Arizona, I’m guessing, likes to go with burglary of all the predicate felonies when they need to bootstrap a defendant into felony murder. They love to use the cruelty aggravator to qualify the defendant for the DP, also, because Arizona’s statute calls for any suffering at all, and most murders involve suffering.

      When you say Ït could have been felony OR premeditated murder, aren’t you saying “Ïdon’t know”? There is somewhat of a logic to it, but a distinct advantage goes to the prosecution. Definitely not what the felony murder statute was intended for. It just makes any murder done in someone else’s home or in a business an automatic felony murder, even if there is no other felony.

      It’s clear that the Arizona style merger rule means SOME elements can merge with the murder, but certainly not ALL elements, as in the Arias case.

      You cannot both intend and not intend a murder, it just defies common sense, bu that’s the law in Arizona, it’s multiple guess, as you say. This is why I was always disturbed by that charge.

      1. Chad Shell – had to google that LOL
        Several advantages go to the prosecution really, they increase their odds of getting “some sort of murder” conviction and the felony murder is a bonus as it has no lesser includeds, the best of all possible (Juan) worlds.
        Is there nobody out there supervising Arizona?

      2. mn, you’re right again. It’s real death peanlty case “strategery” going on. These things re hardly coincidental, they’re designed to take every advantage. Capital cases can hardly be a genuine search for the truth, when the defense will do most anything to save a life and the prosecution will do almost anything to secure the conviction, another reason why the DP is going to have to be relegated to the dust bin of history.

        Thanks for the comment and I AM going to call you about Mr. Martinez.

  7. It really does amaze me then that the state would really would jepordize the conviction (on appeals, as you say), because in reality if they are going with this scenario and she is convicted as she was then the whole conviction is questioned. People on both sides, that are not running on emotion I mean, are confused by this. I see it. And I agree as mn and u say a minor crime, say even a young woman/man just being stupid and maybe breaking into a building as kids do stupid things sometimes, (18 years old) and don’t think anyone is there and maybe had no plan to take anything run into a security guard, they didn’t know was there, dies of a heart attack, BAM, felony murder? Now, I don’t understand because I believe he could have gotten the conviction on the gun shot first theory, and no confusion would have followed. And yep, that drew you saw on t.v. was actually toned down compared to when the cameras weren’t rolling, I know its hard to believe considering what a douche he was on t.v.

    1. It’s really funny what you are saying about Drew Peterson, Ang, as he was not above showboating in front of the media or rudely shoving them aside. He maybe wanted to present an image of someone who was being hounded, at once inviting scrutiny, then dodging it. I think it was his brother who helped him wheel a blue plastic oil drum out of his house, not knowing or asking what was inside.

      Your example about the teen and the heart attack is exactly right. A prosecutor is supposed to have discretion, and see that this example is at most a manslaughter charge. But some over-zealous DA’s, with an election coming and a “get tough on crime” atitude, mau decide to seriously overcharge this kid, and make their life a living hell, at least for a while.

      In the same way, prosecutors are supposed to charge with what they feel they can get a conviction on. Some jurisdictions routinely over-charge hoping they can cut a deal and avoid a trial. Going for the Death Penalty, in the Arias case, when she is young, attractive, and very well-spoken, was a long shot. There’s a case I talk about on this blog where an Arizona man ia caught on video choking and murdering a woman on video, he then steals her car and he was caught in her car with lots of her blood in it.

      The man had 4 charges and 3 aggarvating factors, and still the jury could not agree on a death sentence, after watching the murder. We saw how Marissa DeVault had a quick and seamless trial, got life without parole, and we’ve heard nothing about her or from her since. Sure, Juan sent Wendi Andriano to death row, but Wendi was more crude than Arias, she tried to poison her terminally il and incapacitated husband for weeks, then sent the ambulance away when he didn’t die, then he clubbed and stabed him to death. It’s the easier decision for sure.

      If the judge or the DA haven’t the political will to end this death quest soon, they may come to regret that decision later. There just continues to be so many interesting facets to this trial.

      Thanks for your comments.

    1. Colleen, I suppose you think the truth is “pretty low”. What’s also pretty low is a person like you commenting with 3 whole words on an article that’s over 7,000 words long and took many hours to write. That’s pretty low.

      If you’re referring to Cate, she had the timerity and the arrogance to comment that I wasn’t qualified to opine on the law, while at the same time implying that she is. That’s low.

      It’s also “pretty low” for her to ignore my replies to her comments, explaining my position. So, I guess I had to spell it out for her. I also wanted to spell it out for others, because this is a very complicated subject.

      Next time, see if you can cough up an actual comment.

  8. Pretty Low Rob to use a close Facebook page which the admit allows you to participate and defends your opinions even though different from most members.
    Rob you choose to make it public to 40 people maybe because your feelings were hurt.

    1. The Admins, Robin and Beverly, are friends of mine from before that facebook group started. We are in agreement on 90% of the Arias case.They do not “allow me to participate”, I was asked to be an Admin.

      In case you didn’t notice, it’s called “Open Discussion”, so why wouldn’t they want people with different opinions?

      It’s a closed group, so the content and the participants can be controlled, and we can have a Civil Discussion.

      You are just upset because you want it to be a Jodi bashing, Defense bashing, pray for the death penalty group – and it’s not. The only reason there are more prosecution supporters than Arias supporters is because we are outnumbered 95 to 1.

      Why don’t you worry about yourself, Colleen Doyle, and stop trying to defend people you don’t really know?

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