State of Kansas v. Curtis Leon Underwood
228 Kan. 294, 615 P.2d 153 (1980)
Rule of Law:
To determine whether a collateral felony is inherently dangerous for the purposes of the felony murder rule, the elements of the felony must be viewed in the abstract, without considering the specific circumstances of its commission. The unlawful possession of a firearm by a convicted felon is not an inherently dangerous felony when viewed in the abstract and therefore cannot support a felony murder conviction.
Facts:
- In 1974, Curtis Leon Underwood, then 18, was convicted of felony theft for his role in stealing a bicycle and successfully completed a two-year probation in 1976.
- On October 28, 1978, Underwood attended a party where Earl Brewer accused him of stealing marijuana, leading to a physical fight between them.
- During a pause in the fight, one of Brewer's friends handed Brewer a shotgun, which he brandished at Underwood.
- Underwood left the scene, stating he would return.
- Underwood went to his home, obtained a .32 caliber pistol, and gave it to his half-brother to hold.
- Underwood and his friends returned to the party, and the fight with Brewer resumed.
- During the second fight, as Brewer ran towards his friend who was holding the shotgun, Underwood retrieved his pistol from his half-brother.
- Underwood fired four shots at Brewer, killing him, later claiming he acted in fear for his and his friends' safety.
Procedural Posture:
- Curtis Leon Underwood was charged in trial court with unlawful possession of a firearm and felony murder, with the firearm possession serving as the underlying felony.
- Underwood filed motions in the trial court to annul his 1974 felony conviction and to withdraw his nolo contendere plea from that case; both motions were denied.
- A jury in the trial court convicted Underwood of felony murder.
- Underwood, as appellant, appealed both his felony murder conviction and the denial of his motions regarding the 1974 conviction to the Kansas Supreme Court, which consolidated the appeals.
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Issue:
Does the unlawful possession of a firearm by a convicted felon constitute an inherently dangerous felony sufficient to support a conviction for first-degree murder under the felony murder rule?
Opinions:
Majority - Fromme, J.
No. The unlawful possession of a firearm by a convicted felon is not an inherently dangerous felony that can support a felony murder conviction. To determine if a felony is inherently dangerous, it must be viewed in the abstract by looking only at its statutory elements, not the specific circumstances of its commission. The crime of possessing a firearm is a passive, status-based offense that is merely malum prohibitum (wrong because it is prohibited), and it does not contain the elements of malice or premeditation necessary to be transferred to a resulting homicide. The danger arises from the use of the firearm, not its mere possession, and using the circumstances of the crime would create illogical outcomes and improperly strip defendants of defenses like self-defense. This decision overrules the precedent set in State v. Moffitt and State v. Goodseal.
Dissenting - Schroeder, C.J.
Yes. The court should adhere to the established precedent of State v. Moffitt, which has been the law in Kansas for thirteen years. Under that precedent, unlawful possession of a firearm by a felon was considered an inherently dangerous felony sufficient to support a felony murder charge, and the court should not reverse its position on this issue.
Analysis:
This decision marks a significant shift in Kansas's felony murder doctrine by explicitly overruling State v. Moffitt and its progeny. The court adopted the 'in the abstract' test, aligning Kansas with jurisdictions like California and narrowing the scope of the felony murder rule. This change prevents prosecutors from using status-based possession crimes as a predicate felony for first-degree murder, thereby requiring them to prove malice and premeditation directly in cases where the underlying felony is not inherently violent in its definition. The ruling strengthens defendants' ability to raise defenses such as self-defense, which were previously negated when the possession of a weapon was considered an ongoing dangerous felony.
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