IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE DECEMBER SESSION, 1997 FILED September 10, 1998
Cecil Crowson, Jr. STATE OF TENNESSEE, ) Appellate C ourt Clerk ) No. 03C01-9703-CR-00117 Appellee ) ) SULLIVAN COUNTY vs. ) ) Hon. R. Jerry Beck, Judge LON MITCHELL PIERCE, JR., ) ) (Felony Murder; Theft over Appellant ) $10,000; misdemeanor theft; ) evading arrest)
DISSENTING OPINION
The majority concludes that the appellant’s conviction for felony murder was
committed during the perpetration of a theft. I am unable to join in this conclusion
as I find that neither the law of this State nor the facts of this case support such
interpretation. The majority reasons that, because the appellant was “exercising
control over stolen property” when the homicide occurred, the homicide was
committed in the perpetration of the felony.
As I read the opinion, because theft (exercising control) is a continuing
offense, the offense continues as one criminal transaction as long as the perpetrator
remains in possession of the stolen property. Accordingly, under majority rationale,
if death, at any point, results from the operation of the stolen vehicle, felony murder
prosecution would attach. The question of whether a crime is one of a continuing
nature, as opposed to whether a crime is committed during the perpetration of a
felony, poses two entirely separate questions. Here the majority merges the two. I
agree with the majority that, in this case, theft is a continuing offense for the purpose
of establishing jurisdiction. However, I disagree that this fact, per se, permits
application of the felony murder rule. See, e.g., Doane v. Commonwealth, 237
S.E.2d 797, 798 (Va. 1977) (refusing to apply theft as a continuing offense for purposes of the felony murder rule).
Moreover, the majority’s acknowledgment of previous appellate rulings of this
state which require the underlying felony to have been committed in pursuance of
the unlawful act and not collateral to it is belied by their reasoning that, as long as
the underlying felony is of a continuing nature, felony murder prosecution is
warranted. This precise issue was confronted in the case of State v. Gilliam, which
is virtually identical to the case before us. State v. Gilliam, No. 03C01-9109-CR-
00287 (Tenn. Crim. App. at Knoxville, Apr. 20, 1992), perm. to appeal denied,
(Tenn. Sept. 21, 1992). In Gilliam, the defendant stole a vehicle from a car lot and
eighteen days later in an adjoining county, while being pursued by the police, killed
three people in a head-on collision. Gilliam, No. 03C01-9109-CR-00287. This
court, in reversing the defendant’s conviction for first degree felony murder, held that
the “defendant’s operation of the vehicle on the date of the crash was a collateral
act, merely incidental, bearing no intimate relationship with the underlying felony.
We find no unity of time, place or purpose between the theft and the ultimate deaths
of the three young victims.” Gilliam, No. 03C01-9109-CR-00287. In the instant
case, the appellant had been in possession of the stolen vehicle for twenty-one days
when the homicide occurred and was approximately eight hundred miles from the
situs of the theft. The appellant and his companions had been residing in Bristol,
Virginia, for approximately twenty days. Consistent with the holding in Gilliam, I find,
under these facts, that the homicide in the case before us bore no intimate
relationship to the theft. See, e.g., Doane 237 S.E.2d at 798 (homicide not
committed in perpetration of underlying theft where defendant had stolen vehicle
previous day, 280 miles away).
The majority attempts to distinguish Gilliam from the instant case by finding
that Gilliam was charged with theft by taking, while the appellant in this case was
charged with theft by exercising control. It is inescapable, however, that every
2 defendant who commits a theft will, at some point, exercise control over stolen
property. The facts remain that both were charged with theft, both were exercising
control over stolen vehicles, both were being pursued for traffic violations and both
were attempting to avoid apprehension by the police before the collisions and
resulting deaths occurred. Ironically, under majority rationale, the thief who actually
steals the car is not subject to felony murder prosecution while the arguably less
culpable person, the receiver of the stolen property, is subject to punishment of
death by electrocution. Moreover, under the majority’s application of a “continuing
offense” theory, a defendant in possession of a stolen vehicle ten, twenty or thirty
years after the date of taking, who hits a pedestrian while operating the stolen
vehicle resulting in the pedestrian’s death, would remain criminally liable under the
felony murder rule. The principles applied in Gilliam were intended to prevent such
strained results. These principles are neither new nor novel to the jurisprudence of
this state. Our courts have held that, in order to fall within the provisions of the
felony murder statute, the homicide must have been committed “in pursuance of the
unlawful act, and not collateral to it.” State v. Farmer, 296 S.W.2d 879, 883 (Tenn.
1956). “The killing must have had an intimate relation and close connection with the
felony and not be separate, distinct, and independent from it.” Id. (citing Wharton on
Homicide, § 126). In other words, a homicide is committed during the perpetration
of a felony if the homicide is committed within the res gestae of the felony. See
Smith v. State, 354 S.W.2d 450, 452 (Tenn. 1961). Within the context of the felony
murder rule, the res gestae requires that the felony and homicide be part of a
continuous transaction, that the homicide be incident to the felony, or that there be
no break in the chain of events between the felony and the homicide. See generally
Erwin S. Barbre, Annotation, What Constitutes Termination of Felony for Purpose of
Felony-Murder Rule, 58 A.L.R.3d 851, 856, 865-874 (1974). The res gestae
embraces not only the actual facts of the transaction and the circumstances
surrounding it, but also the matters immediately antecedent to the transaction and
having a direct causal connection with it, as well as acts immediately following it and
3 so closely connected as to form in reality a part of the occurrence. Payne v. State,
406 P.2d 922, 925 (Nev. 1965). Thus, the res gestae of the crime begins at the
point where an indictable attempt is reached, and ends where the chain of events
between the initial crime and the homicide is broken. See Parker v. State, 570
So.2d 1048, 1051 (Fla. Dist. Ct. App. 1 1990); State v. Rider, 625 P.2d 425, 430-
431 (Kan. 1981); Payne, 406 P.2d at 924; Commonwealth v. Kelly, 10 A.2d 431,
433 (Pa. 1940).
The defendant’s actions must be one continuous integrated attempt to
successfully complete his crime and escape. Factors to be considered in
determining whether there has been a break in the chain of circumstances include
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE DECEMBER SESSION, 1997 FILED September 10, 1998
Cecil Crowson, Jr. STATE OF TENNESSEE, ) Appellate C ourt Clerk ) No. 03C01-9703-CR-00117 Appellee ) ) SULLIVAN COUNTY vs. ) ) Hon. R. Jerry Beck, Judge LON MITCHELL PIERCE, JR., ) ) (Felony Murder; Theft over Appellant ) $10,000; misdemeanor theft; ) evading arrest)
DISSENTING OPINION
The majority concludes that the appellant’s conviction for felony murder was
committed during the perpetration of a theft. I am unable to join in this conclusion
as I find that neither the law of this State nor the facts of this case support such
interpretation. The majority reasons that, because the appellant was “exercising
control over stolen property” when the homicide occurred, the homicide was
committed in the perpetration of the felony.
As I read the opinion, because theft (exercising control) is a continuing
offense, the offense continues as one criminal transaction as long as the perpetrator
remains in possession of the stolen property. Accordingly, under majority rationale,
if death, at any point, results from the operation of the stolen vehicle, felony murder
prosecution would attach. The question of whether a crime is one of a continuing
nature, as opposed to whether a crime is committed during the perpetration of a
felony, poses two entirely separate questions. Here the majority merges the two. I
agree with the majority that, in this case, theft is a continuing offense for the purpose
of establishing jurisdiction. However, I disagree that this fact, per se, permits
application of the felony murder rule. See, e.g., Doane v. Commonwealth, 237
S.E.2d 797, 798 (Va. 1977) (refusing to apply theft as a continuing offense for purposes of the felony murder rule).
Moreover, the majority’s acknowledgment of previous appellate rulings of this
state which require the underlying felony to have been committed in pursuance of
the unlawful act and not collateral to it is belied by their reasoning that, as long as
the underlying felony is of a continuing nature, felony murder prosecution is
warranted. This precise issue was confronted in the case of State v. Gilliam, which
is virtually identical to the case before us. State v. Gilliam, No. 03C01-9109-CR-
00287 (Tenn. Crim. App. at Knoxville, Apr. 20, 1992), perm. to appeal denied,
(Tenn. Sept. 21, 1992). In Gilliam, the defendant stole a vehicle from a car lot and
eighteen days later in an adjoining county, while being pursued by the police, killed
three people in a head-on collision. Gilliam, No. 03C01-9109-CR-00287. This
court, in reversing the defendant’s conviction for first degree felony murder, held that
the “defendant’s operation of the vehicle on the date of the crash was a collateral
act, merely incidental, bearing no intimate relationship with the underlying felony.
We find no unity of time, place or purpose between the theft and the ultimate deaths
of the three young victims.” Gilliam, No. 03C01-9109-CR-00287. In the instant
case, the appellant had been in possession of the stolen vehicle for twenty-one days
when the homicide occurred and was approximately eight hundred miles from the
situs of the theft. The appellant and his companions had been residing in Bristol,
Virginia, for approximately twenty days. Consistent with the holding in Gilliam, I find,
under these facts, that the homicide in the case before us bore no intimate
relationship to the theft. See, e.g., Doane 237 S.E.2d at 798 (homicide not
committed in perpetration of underlying theft where defendant had stolen vehicle
previous day, 280 miles away).
The majority attempts to distinguish Gilliam from the instant case by finding
that Gilliam was charged with theft by taking, while the appellant in this case was
charged with theft by exercising control. It is inescapable, however, that every
2 defendant who commits a theft will, at some point, exercise control over stolen
property. The facts remain that both were charged with theft, both were exercising
control over stolen vehicles, both were being pursued for traffic violations and both
were attempting to avoid apprehension by the police before the collisions and
resulting deaths occurred. Ironically, under majority rationale, the thief who actually
steals the car is not subject to felony murder prosecution while the arguably less
culpable person, the receiver of the stolen property, is subject to punishment of
death by electrocution. Moreover, under the majority’s application of a “continuing
offense” theory, a defendant in possession of a stolen vehicle ten, twenty or thirty
years after the date of taking, who hits a pedestrian while operating the stolen
vehicle resulting in the pedestrian’s death, would remain criminally liable under the
felony murder rule. The principles applied in Gilliam were intended to prevent such
strained results. These principles are neither new nor novel to the jurisprudence of
this state. Our courts have held that, in order to fall within the provisions of the
felony murder statute, the homicide must have been committed “in pursuance of the
unlawful act, and not collateral to it.” State v. Farmer, 296 S.W.2d 879, 883 (Tenn.
1956). “The killing must have had an intimate relation and close connection with the
felony and not be separate, distinct, and independent from it.” Id. (citing Wharton on
Homicide, § 126). In other words, a homicide is committed during the perpetration
of a felony if the homicide is committed within the res gestae of the felony. See
Smith v. State, 354 S.W.2d 450, 452 (Tenn. 1961). Within the context of the felony
murder rule, the res gestae requires that the felony and homicide be part of a
continuous transaction, that the homicide be incident to the felony, or that there be
no break in the chain of events between the felony and the homicide. See generally
Erwin S. Barbre, Annotation, What Constitutes Termination of Felony for Purpose of
Felony-Murder Rule, 58 A.L.R.3d 851, 856, 865-874 (1974). The res gestae
embraces not only the actual facts of the transaction and the circumstances
surrounding it, but also the matters immediately antecedent to the transaction and
having a direct causal connection with it, as well as acts immediately following it and
3 so closely connected as to form in reality a part of the occurrence. Payne v. State,
406 P.2d 922, 925 (Nev. 1965). Thus, the res gestae of the crime begins at the
point where an indictable attempt is reached, and ends where the chain of events
between the initial crime and the homicide is broken. See Parker v. State, 570
So.2d 1048, 1051 (Fla. Dist. Ct. App. 1 1990); State v. Rider, 625 P.2d 425, 430-
431 (Kan. 1981); Payne, 406 P.2d at 924; Commonwealth v. Kelly, 10 A.2d 431,
433 (Pa. 1940).
The defendant’s actions must be one continuous integrated attempt to
successfully complete his crime and escape. Factors to be considered in
determining whether there has been a break in the chain of circumstances include
the relationship between the underlying felony and the homicide in point of time,
place, and causal relationship. Farmer, 296 S.W.2d at 883. In the case of flight, an
important consideration is whether the fleeing felon has reached a place of
temporary safety. See People v. Ford, 416 P.2d 132, 141 (Cal. 1966), cert. denied,
385 U.S. 1018, 87 S.Ct. 737 (1967), overruled in part by, People v. Satchell, 489
P.2d 1361 (Cal. 1971); People v. Boss, 290 P. 881, 883 (Cal. 1930); Parker, 570
So.2d at 1051 (citing LaFave, Substantive Criminal Law § 7.5 (1986)); Lampkin v.
State, 808 P.2d 694, 696 (Okla. Crim. App. 1991). If these factors, considered in
light of the circumstances of the particular incident, reveal a definite break in the
chain of events, eliminating the possibility of one continuous transaction from the
initial attempt of the underlying felony to the homicide, then the felony murder rule
cannot be applied.
I am unable to find any jurisdiction in these United States which would
support a conviction for felony murder under the facts of this case. A number of
jurisdictions have adopted a “safe haven” approach in determining whether the
particular facts of the case are sufficient to establish a break in the chain of events
from the underlying felony to the subsequent homicide. Although the majority
4 alluded to this contemporary approach, no analysis was performed as, obviously,
under a “continuing offense” theory, there would never be a place of temporary
safety.
In sum, our task in this appeal is to construe what the legislature intended by
the phrase “in the perpetration of.” The standard applied by the majority is, in effect,
no standard and provides no workable principle for future cases. As previously
stated, I believe this decision overrules existing case law which had previously
defined the boundaries of the phrase “in the perpetration of.” Moreover, the
majority’s opinion removes the rationale behind the legal boundaries and ignores the
objectives of the legal fiction of felony-murder. This concept of vicarious liability
deserves no extension beyond its required application.
While I have concluded that the felony murder rule was misapplied in this
case, this does not mean that the appellant’s unlawful conduct should be excused. It
only means that the appellant’s guilt should be established upon an offense for
which culpability exists, not upon the overextension of an artificial concept. For the
above reasons, the appellant’s conviction for felony murder should be reversed and
this cause should be remanded for trial on all lesser included homicide offenses of
second degree murder, criminally negligent homicide, vehicular homicide and
reckless homicide.
____________________________________ DAVID G. HAYES, Judge