Felony Murder Defense

Under § 13-1105(A)(2), the State must prove three things:

1. You, "acting either alone or with one or more other persons," committed or attempted to commit one of the felonies listed in the statute.
2. A death occurred "in the course of and in furtherance of the offense or immediate flight from the offense."
3. You "or another person" caused "the death of any person."

Two features set felony murder apart. First, § 13-1105(B) says it "requires no specific mental state other than what is required for the commission of any of the enumerated felonies." The State does not have to prove you intended a death. Second, the statute speaks of "the person or another person" causing the death, so the State may charge people who did not cause it themselves. How far that language reaches in a given case can depend on court decisions, which we review closely.

The listed felonies

Only the offenses named in § 13-1105(A)(2) can support a felony murder charge. They include:

• Sexual conduct with a minor, sexual assault and molestation of a child
• Terrorism
• Certain marijuana, dangerous drug and narcotic drug offenses identified by subsection, with a statutory threshold amount for the narcotic drug offense, and involving or using minors in drug offenses
• Drive by shooting and kidnapping
• Burglary, arson and robbery, in the forms the statute lists by section number
• Escape, in the forms the statute lists
• Child abuse under one specific paragraph of the child abuse statute
• Unlawful flight from a pursuing law enforcement vehicle

If the underlying offense is not on this list, or the State cannot prove it, felony murder does not apply. Another homicide charge may still be possible, depending on the facts. You can compare all of Arizona's homicide charges on our main page.

A person sentenced to natural life "is not eligible for commutation, parole, work furlough, work release or release from confinement on any basis" (§ 13-751(A)). A person sentenced to life "shall not be released on any basis" until serving 25 calendar years, or 35 years if the person killed was under fifteen or was an unborn child. That is a minimum before any release, not a promise of release.

When death is not sought or not imposed, the court chooses between life and natural life. Under § 13-752(Q), the court may consider any evidence introduced before sentencing, and it shall consider aggravating and mitigating circumstances and any statement made by a victim. Factors such as your role in the felony, your age and your background may be presented at this stage.

If the State seeks death, the prosecution must prove at least one aggravating circumstance listed in § 13-751(F) "beyond a reasonable doubt" (§ 13-751(B)). The trier of fact "shall determine unanimously whether death is the appropriate sentence" (§ 13-752(H)).

Because felony murder does not require intent to kill, the defense usually focuses on the other elements. Each one is something the State must prove beyond a reasonable doubt.

• The underlying felony: If the State cannot prove the listed felony or an attempt, the felony murder charge fails. We examine each element of that offense, such as entry and intent in a burglary case, or the drug amount where a threshold applies.
• Timing and connection: The death must occur "in the course of and in furtherance of" the felony or the "immediate flight" from it. Whether a death falls inside that window can be contested.
• Your role: The State must prove you committed or attempted the felony, alone or with others. What you knew, what you agreed to and what you did are all part of that question.
• Co-defendants and statements: Co-defendant accounts, cooperation agreements and phone records are reviewed closely, along with how your own statements were obtained.
• Identity and causation: Video, location data, forensic results and the medical cause of death may be reviewed with independent experts.
• Sentencing: Because the court may choose life rather than natural life, mitigation work starts early.