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State v. Godsey11/29/2001
ommission of the felony is transferred by law to the homicide. As a result of the fictional transfer, the homicide is deemed committed with malice.
Contrary to the defendant's assertion, the 1995 amendment to the first degree murder statute did not fundamentally change the felony murder doctrine so as to render the statute unconstitutional. With respect to the culpable mental state, the 1995 amendment merely returned the felony murder statute to its pre-1989 form. Moreover, like the other enumerated felonies, the predicate felony in this case, aggravated child abuse, includes a culpable mental state - "knowingly." Consistent with the traditional felony murder doctrine, the statute as amended in 1995 requires the State to prove that the predicate felony was committed with the applicable culpable mental state. Therefore, the defendant's claim that the statute violates due process by failing to include a culpable mental state is without merit.
The defendant also asserts that because the killing in this case resulted from knowing conduct, the facts do not establish a "reckless disregard for human life," as required by Tison v. Arizona, 481 U.S. 137, 107 S. Ct. 1676, 1688, 95 L. Ed. 2d 127 (1987), to constitutionally support imposition of the death penalty. We disagree. First, as the Court of Criminal Appeals also correctly pointed out, Tison involved defendants who themselves did not kill the victims. Here the defendant's own actions killed the victim. In Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 147 (1982), the United States Supreme Court approved the imposition of the death penalty on the actual killer in a felony murder, and the Court in Tison reaffirmed this position with respect to participants in a felony murder who exhibit reckless indifference to human life. Furthermore, the culpable mental state for aggravated child abuse, "knowing," is a higher standard than "reckless indifference." See Tenn. Code Ann. § 39-11-106(a)(2)(20) (defining knowing). Therefore, the Court of Criminal Appeals correctly concluded that both the statutory elements and the facts of this case establish reckless indifference.
The defendant's next argument is that the statute violates due process because the acts constituting the aggravated child abuse upon which the felony murder conviction is based are the same acts that caused the victim's death. The defendant contends that due process requires that the underlying felony be based upon acts separate from those causing death. The defendant points to other jurisdictions that apply the merger doctrine to preclude a felony murder conviction based on assaultive offenses. See State v. Wanrow, 588 P.2d 1320, 1322-1324 (Wash. 1978); see generally Annotation, "Application of Felony-Murder Doctrine Where the Felony Relied upon Is an Includible Offense with the Homicide," 40 A.L.R.3d 1341 (1971). The State responds that the merger doctrine is a rule of statutory construction, not a principle of constitutional law, and that the rule applies only when the legislature has not enumerated the felonies that will support a conviction for felony murder. We agree.
Conceived in the nineteenth century, the merger doctrine was developed . . . as a shorthand explanation for the conclusion that the felony-murder rule should not be applied in circumstances where the only underlying (or "predicate") felony committed by the defendant was assault. The name of the doctrine derived from the characterization of the assault as an offense that "merged" with the resulting homicide. People v. Hansen, 885 P.2d 1022, 1028 (Cal. 1994) (emphasis in original).
More broadly, "the merger doctrine bars the use of the felony murder rule when the underlyin
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