No, prosecutors can't use the assault to get an automatic murder conviction. The court said that the assault and the killing are too closely connected; they 'merge' into a single event. Using the felony murder rule here would be an unfair shortcut, allowing prosecutors to skip the step of proving the defendant actually intended to kill someone or was incredibly reckless. The court ruled that from now on, juries must decide if the felony was an 'assaultive' act based on how it happened. Because the jury in Rose's trial wasn't given these instructions, his conviction was overturned.

Yes, if a crime threatens immediate violence and someone dies during that crime, the threatening crime combines with the killing and can't be used to automatically make it murder. The jury has to look at how the crime actually happened to decide if it threatened violence. Here, the judge made a mistake by not telling the jury to decide if Rose threatening Watkins with a gun was a violent crime based on what happened. This mistake wasn't harmless because the jury could've found Rose guilty of murder another way, by deciding he acted with an evil intent. But since there were different stories about what Rose was thinking, we can't be sure the jury would've found him guilty without the mistake. So the murder conviction is reversed and the case goes back to the lower court.

We agree with the decision to overturn the conviction because the jury wasn’t properly told to decide if the attack was dangerous enough to mix with the homicide charge. Unlike the majority, we think the focus should have been on letting the jury look at all the facts about how dangerous the act really was, not just on the legal theory. In other words, even though we reached the same result, we feel that the instructions for the jury should have been much clearer so they could decide based on what actually happened.

The felony-murder rule makes a killing committed in the course of certain felonies murder, without requiring the State to present additional evidence as to the defendant's mental state

This rule alleviates the State's burden of proving the malice required for murder if it shows that the murder occurred during the course of certain felonies.

And even if second-degree felony murder were in play, instruction 11 (2) did not inform the jury of the critical "restrictions" that we have placed on the doctrine.

An erroneous instruction on the elements of an offense is harmless when it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error. "(internal quotation marks omitted

We thus reject appellant's argument that the district court abused its discretion in rejecting his proposed jury instructions.

The district court has broad discretion to settle jury instructions, and this court reviews the district court's decision for an abuse of that discretion or judicial error. "(internal quotation marks omitted

However, it abuses its discretion when it makes an "arbitrary or capricious" decision or "exceeds the bounds of law or reason."

Namely, the instruction did not require the jury to find an appropriate predicate felony; it did not explain that the predicate felony must be inherently dangerous; and it did not instruct the jury that it must find an immediate and direct causal relationship between Guidry's acts and Osorio's death.

This court has recognized that "[o] ne of the primary reasons we declined to follow California's example [in Contreras] was our recognition that the Legislature has specified the felonies that can be used for purposes of establishing first-degree felony murder."

This court went on to explain that there are no enumerated felonies for second-degree felony murder and adopted the merger doctrine for assaultive-type felonies forming the basis for second-degree felony murder only.

Yes, the merger doctrine prevents an assaultive-type felony from serving as the predicate for second-degree felony murder. Allowing an assault that is integral to a homicide to serve as the underlying felony would effectively eliminate the prosecution's burden to prove malice aforethought in the vast majority of homicides. This court adopts the merger doctrine for second-degree felony murder to maintain the narrow confines of the rule and avoid 'untoward prosecutions.' Unlike first-degree felony murder, for which the legislature has enumerated the predicate felonies, the court has the authority to place such restrictions on second-degree felony murder. Furthermore, the determination of whether a felony is 'assaultive'—involving a threat of immediate violent injury—is a factual question for the jury, which must assess the manner in which the felony was committed. Because the trial court failed to instruct the jury to make this determination regarding the underlying assault with a deadly weapon, the error was not harmless, and the conviction must be reversed.

Yes, assaultive-type felonies that involve a threat of immediate violent injury merge with a charged homicide and cannot be used as the basis for a second-degree felony-murder conviction. The jury must determine whether the underlying felony is assaultive based on the manner in which it was committed. In this case, the district court erred by not instructing the jury to determine whether the felony underlying the second-degree felony-murder theory, assault with a deadly weapon, was assaultive based on the manner in which it was committed. The error was not harmless beyond a reasonable doubt because a properly instructed jury could have found implied malice based on the circumstances of the killing and still convicted Rose of second-degree murder, but based on the conflicting evidence as to Rose's state of mind, it cannot be concluded beyond a reasonable doubt that a rational jury would have found Rose guilty of second-degree murder absent the omitted instruction. Therefore, the judgment of conviction is reversed and the case is remanded for further proceedings consistent with this opinion.

We concur with the majority’s decision to reverse the judgment because the district court failed to instruct the jury on whether the predicate felony possessed an assaultive nature. Our concurrence differs from the majority in that we emphasize the need for the jury to make a factual determination regarding the inherent danger of the felony rather than relying solely on abstract legal principles. We believe that clearer guidance should have been given so that the jury could more accurately assess whether the manner in which the assault was committed merged with the homicide. Thus, while we join in reversing the conviction, we stress that the trial court should more directly delegate this fact-intensive inquiry to the jury.

Rose v. State

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