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27 August 2014

Police Officers Respond To A Report Of An Armed Man Disturbing The Peace and Fire Nine Rounds Killing An Innocent Woman . . . The Suspect Is Then Charged With Murder

In Charles Dickens' Oliver Twist, when the court told the unhappily-married Mr Bumble, the cruel and pompous beadle of the poorhouse, who was joined in holy matrimony unholy hell to an overbearing and domineering wife, that 'the law supposes that your wife acts under your direction', he replied:

'If the law supposes that, the law is an ass - an idiot.'

While this was not the first appearance of the phrase 'the law is an ass' in literature, it is unquestionably the most famous.  After reading a post this morning on Jonathan Turley's blog, I could not help but think of Mr Bumble.

The Felony Murder rule is a centuries-old legal doctrine in common law.  Basically, it applies in two situations.  The first is where the offender kills another accidentally or without intent while committing a felony.  An example of this would be where an owner burns down his property, which he believes is unoccupied, for insurance proceeds.  Even though he was unaware of the presence of, say, a vagrant inside the structure and certainly had no intent to kill him, the offender could be charged with felony murder in addition to arson, insurance fraud, and other possible offences.  The second situation that can give rise to a charge of felony murder is where an unlawful killing is committed during the commission of a felony by one or more, but not necessarily all, of the participants.  The textbook example of a felony murder charge in this case is where one offender kills, intentionally or accidentally, someone inside a bank during a robbery, but the getaway driver also is slapped with the same charges even though he never left the vehicle.  The latter example often leads to the perverse result of the driver - who is certainly not blameless by any means - being convicted and sentenced to death while the actual shooter pleads guilty (and may even agree to testify against the driver) to avoid the death penalty.

As most of you are well-aware, I have little sympathy for criminals, but there are times that I find myself in agreement with Mr Bumble and the case of Kody Roach might just be one of them.

There is an interesting case out of Orlando that raises questions about the use of felony murder charges by prosecutors whenever there is a fatality in the commission of a crime. Kody Roach was charged with felony murder even though he never fired a shot and the victim, Maria Fernada Godinez, 22, was actually killed by a police officer.

According to reports, three officers were dispatched to the Vixen Bar after a bouncer reported to a 911 operator that “I have a gun-wielding maniac. He set it on the bar top and he wielded it many times. I had to throw him out.” While the bouncer was unarmed, he was able to remove Roach from the bar but when the first two officers arrived, Officer Eduardo Sanguino and a fellow bicycle officer, Jeff Angel, they said that Roach was at the bar’s locked door.

News reports state that “surveillance video obtained by Vixen Bar shows Roach dropping his gun after he was kicked out of the bar for carrying a gun.” However, that does not appear to be the account of the officers. 

They say that Roach walked to the street “pointing his right hand at the officers,” and ignored commands to get on the ground. Instead, he began to walk back toward the bar. Angel fired his Taser but said that the taser had little effect due to Roach’s loose clothing. They say that Roach went for his waistband with his right hand, and according to the affidavit in the case:

“In order to prevent an armed individual from causing harm to any members of the public or to any of the surrounding officers, Ofc. Sanguino discharges his firearm nine times striking Roach at least five times.”

They say that when he fell, Roach dropped a .40 caliber Ruger handgun from his right hand — a stolen gun that was later found the gun to be unloaded. Only Sanguino appears to have fired any shots. 

It was then that the officers learned that one of their bullets had passed through a hole and hit Fernanda Godinez.

OK, if we are going to apply the Felony Murder Rule that has been extremely expanded by the government (#1: Mr Roach didn't kill Godinez; and #2: The police can in no serious manner be considered Mr Roach's 'partners-in-crime' so to speak) we have to first establish that Mr Roach was committing a felony when Fernanda Godinez was killed.  Given his criminal record, I think we can safely assume that he is prohibited from possessing a firearm, especially one that has been stolen.  So, I guess we could use that as the hook to invoke the FM rule. Right?  But wait...

Roach however has not been charged in the stolen-gun case — a charge stemming from the disappearance of a weapon from a friend’s apartment after an argument. Notably, Roach has a criminal history dating back to 2009 that includes charges of battery on a law-enforcement officer, grand theft, violating probation and driving with a suspended license.

The Florida felony murder statute (like virtually all such statutes) does not require that the perpetrator pull the trigger or even know of or support the ultimate act. He is only required to have been engaged in a felony during which a life was taken.

So, where's the underlying felony?  I am by no means an expert on Florida law and, perhaps, waving around an unloaded gun in a bar is a felony, but he hasn't been charged with that either.   Public intoxication, disorderly conduct, and resisting arrest /officer without violence are all misdemeanors in Florida.

As Turley correctly observes:

However, the law was designed with murders in mind that were caused by co-conspirators like a partner shooting a convenience store clerk. Here it was the police who killed the woman and Roach had an unloaded weapon. Ideally, such cases are handled by prosecutorial discretion but prosecutors today radically inflate charges to force defendants to take tough plea agreements or face life in prison. 

The officers clearly have a right to defend themselves and they may indeed be cleared of any wrongdoing. However, there remains the question of whether the death of this young lady should be charged as murder against Roach. He is by no means blameless of course but the case raises the question of the reasonable limits (or any limits) in the charging of felony murder in such cases.

So, what do you think?  Yes, Roach is aptly named, but is the law an ass in this case? 

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