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  1. #1
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    Felony Murder Vs Premeditated Murder

    Please carry on the debate here. Please keep TOS in mind; no personal attacks

    ETA:

    If you all are interested in debating whether premeditated murder can be proven or whether felony murder can be proven please do so.



    Everything posted on this topic is going to be a posters opinion because this is a subjective topic. It cannot be answered with 100% accuracy because it can only our opinions as to the probable outcome.

    The ONLY question being discussed and debated in this thread is:

    Does the prosecution have enough to convict on Murder 1?
    Does the prosecution have enough to convict on Felony Murder?
    Does the prosecution have enough to convict on any of the lesser included offenses?

    That is all that is open for discussion on this thread.

    If anyone posts anything OT, ignore it and report it. If anyone responds to anything OT then you are also OT and it just goes on and on and on and on.

    Feel free to bump this post if you see someone go off topic. and then report the OT post but do not respond to it.


    I will leave this closed for awhile to make sure this post is viewed and then open later.

    Thank you everyone!
    Last edited by JBean; 12-01-2009 at 08:24 PM. Reason: add thread parameters

  2. #2
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    Quote Originally Posted by rhornsby View Post
    First, I would just say you both could be correct. When it comes to what constitutes enough premeditation, the case law basically leaves it to the trier of fact (jury) if their is some evidence suggesting premeditation. So it sounds like the two of you are having a classic juror debate - not one the case law will settle one way or the other.

    As for the evidence you have mentioned, I think it is very strong circumstantial evidence that suggests guilt of something (interesting fact: DNA is actually circumstantial evidence by definition).

    Finally, please don't get me started on the manner in which the body was disposed. I just cannot imagine that it was done alone - I PERSONALLY think someone else had to have assisted. But that is just my PERSONAL intuition.
    Have you had a chance to view our many Felony Murder debates?

  3. #3
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    Quote Originally Posted by RR0004 View Post
    Have you had a chance to view our many Felony Murder debates?
    Mr. Hornsby,

    Speaking of Felony Murder, is the Death Penalty available for 1st degree felony murder in Florida.

    The Bureau of Justice Statistics (US Dept of Justice) has Florida listed as having the death penalty for 1st degree felony murder.

    I notice the Florida Supreme Court defines First Degree Felony Murder as Fla. Statute 782.04 (1)
    http://www.floridasupremecourt.org/j...uctions.shtml#


    Statute 782.04(1) is murder in the first degree and constitutes a capital felony, punishable as provided in s. 775.082.
    Last edited by marspiter; 11-30-2009 at 06:12 PM.

  4. #4
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    Quote Originally Posted by marspiter View Post
    Mr. Hornsby,

    Speaking of Felony Murder, is the Death Penalty available for 1st degree felony murder in Florida.

    The Bureau of Justice Statistics (US Dept of Justice) has Florida listed as having the death penalty for 1st degree felony murder.

    I notice the Florida Supreme Court defines First Degree Felony Murder as Fla. Statute 782.04 (1)
    http://www.floridasupremecourt.org/j...uctions.shtml#


    Statute 782.04(1) is murder in the first degree and constitutes a capital felony, punishable as provided in s. 775.082.
    Yes it is, although I do not believe the State is proceeding on a Felony Murder Basis; rather the Grand Jury specifically indicted her on a Premeditated Murder Basis.

    Actually that has me thinking, under Florida law, the prosecution can not amend the indictment - so they are stuck pursuing the Premeditated First Degree Murder, even though a Felony Murder prosecution would be more readily obtainable.

    The only way to amend the Indictment would be to reconvene the Grand Jury, which I doubt they would want to do at this point.

    Hmmm, very interesting...
    My blog: Florida Law and the Criminal Justice System
    My site: Law Office of Richard Hornsby, Criminal Defense Lawyer
    “The only real lawyers are trial lawyers, and trial lawyers try cases to juries.” - Clarence Darrow

  5. #5
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    Quote Originally Posted by rhornsby View Post
    Yes it is, although I do not believe the State is proceeding on a Felony Murder Basis; rather the Grand Jury specifically indicted her on a Premeditated Murder Basis.

    Actually that has me thinking, under Florida law, the prosecution can not amend the indictment - so they are stuck pursuing the Premeditated First Degree Murder, even though a Felony Murder prosecution would be more readily obtainable.

    The only way to amend the Indictment would be to reconvene the Grand Jury, which I doubt they would want to do at this point.

    Hmmm, very interesting...
    1.Under Knight v. State, 338 So.2d 201 (Fla. 1976), felony murder is included within a single indictment count of premeditated murder. Therefore, first degree felony murder should be given if requested by the state and if supported by the evidence, although it is not a lesser included offense.

  6. #6
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    Quote Originally Posted by reeseeva View Post
    Websleuths Crime Sleuthing Community - View Single Post - Legal Q&A Thread for R Hornsby

    Wudge,

    Re: above post, If premeditation can happen in the blink of an eye, how does that relate to the disposal of the body? Premeditation that happens in seconds, doesn't necessarily have plans for the disposal of the body. People have acted out without thinking of what will follow. I feel the disposal method, fits her personality to a tee.
    Reseeva, for clarity, the following is what I post on the intial Q&A thread.

    [REPOST]

    "It's true that people certainly can and do commit premeditated murders without having a well thought out disposal plan or any disposal plan whatsover.

    However, in this case the fact is that someone did attempt to dispose of Caylee's body. Moreover, I think we can agree that their disposal method demonstrates a lack of forethought.

    Pay attention to the theory the prosecution will eventually offer to the jury -- I suspect it will take place in their final closing argument (rebuttal) to the jury. If the SA comes to claim that Casey had been planning to murder Caylee over the course of days, weeks or months (not a spur of the moment murder), then it is entirely reasonable to believe that Casey had the time to devise a far better disposal plan than simply placing Caylee's body inside bags and laying it on the top of the ground near the house days after the alleged premeditated murder.

    As things now stand, the way Caylee's body was allegedly disposed of by Casey and the apparant timing of that disposal -- she drove around with the dead body in her trunk for days -- does not suggest that this disposal was part of a thought out and considered murder plot. Rather, the manner and the timing of the disposal work against the notion that such was the case."

    [END OF REPOST]

    I don't know to what extent or when prosecutors will lay out their theory to the jury -- I suspect we will first hear it in their rebuttal closing argument. However, if they were to claim that premeditation was formed in an instant (or close to an instant), what evidence in the public domain would prove this beyond a reasonable doubt?

    (Amongst other things, consider that the evidence in the public domain lacks: an eyewitness, a confession, a cause of death, an instrument of death, a crime scene, as well as not knowing the circumstances of Caylee's death.)
    It's not what a man knows that makes him a fool, it's what he does know that ain't so. .... Josh Billings

  7. #7
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    Doh impatientredhead beat me to it.

    Knight v. State, 338 So.2d 201 (Fla. 1976)

    BTW thank you for clearing up the Death Penalty and Felony Murder. That was debated sometime ago and if it was available. Thanks for clearing that up for us here.

  8. #8
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    Quote Originally Posted by impatientredhead View Post
    1.Under Knight v. State, 338 So.2d 201 (Fla. 1976), felony murder is included within a single indictment count of premeditated murder. Therefore, first degree felony murder should be given if requested by the state and if supported by the evidence, although it is not a lesser included offense.
    Well there goes that theory, I looked up your case and it appears the Florida Supreme Court upheld it as recently as last year. See Deparvine v. State, 995 So. 2d 351 (Fla. 2008).

    Thanks.
    My blog: Florida Law and the Criminal Justice System
    My site: Law Office of Richard Hornsby, Criminal Defense Lawyer
    “The only real lawyers are trial lawyers, and trial lawyers try cases to juries.” - Clarence Darrow

  9. #9
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    Quote Originally Posted by rhornsby View Post

    SNIP

    Okay, I got started and i am finished because i just know someone helped her - someone with law enforcement experience is my guess.

    (chuckle)

    I've been waiting for the day when someone of prominence would suggest this.


    (Say it ain't so Joe.)
    It's not what a man knows that makes him a fool, it's what he does know that ain't so. .... Josh Billings

  10. #10
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    Quote Originally Posted by marspiter View Post
    Doh impatientredhead beat me to it.

    Knight v. State, 338 So.2d 201 (Fla. 1976)

    BTW thank you for clearing up the Death Penalty and Felony Murder. That was debated sometime ago and if it was available. Thanks for clearing that up for us here.
    As many times as it has been debated and the number of people I have annoyed arguing my point I keep that one handy


  11. #11
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    Quote Originally Posted by marspiter View Post
    Mr. Hornsby,

    Speaking of Felony Murder, is the Death Penalty available for 1st degree felony murder in Florida.

    The Bureau of Justice Statistics (US Dept of Justice) has Florida listed as having the death penalty for 1st degree felony murder.

    I notice the Florida Supreme Court defines First Degree Felony Murder as Fla. Statute 782.04 (1)
    http://www.floridasupremecourt.org/j...uctions.shtml#


    Statute 782.04(1) is murder in the first degree and constitutes a capital felony, punishable as provided in s. 775.082.
    Quote Originally Posted by rhornsby View Post
    Yes it is, although I do not believe the State is proceeding on a Felony Murder Basis; rather the Grand Jury specifically indicted her on a Premeditated Murder Basis.

    Actually that has me thinking, under Florida law, the prosecution can not amend the indictment - so they are stuck pursuing the Premeditated First Degree Murder, even though a Felony Murder prosecution would be more readily obtainable.

    The only way to amend the Indictment would be to reconvene the Grand Jury, which I doubt they would want to do at this point.

    Hmmm, very interesting...
    Quote Originally Posted by impatientredhead View Post
    1.Under Knight v. State, 338 So.2d 201 (Fla. 1976), felony murder is included within a single indictment count of premeditated murder. Therefore, first degree felony murder should be given if requested by the state and if supported by the evidence, although it is not a lesser included offense.
    Quote Originally Posted by rhornsby View Post
    Well there goes that theory, I looked up your case and it appears the Florida Supreme Court upheld it as recently as last year. See Deparvine v. State, 995 So. 2d 351 (Fla. 2008).

    Thanks.
    Wudge, here is a conversation I believe is note worthy. Given that you asked for links to prove the DP was available for Felony Murder. I believe this conversation clears up that particular topic. As well as showing that the indictment would not have to be altered.

    HTH

  12. #12
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    Quote Originally Posted by marspiter View Post
    Wudge, here is a conversation I believe is note worthy. Given that you asked for links to prove the DP was available for Felony Murder. I believe this conversation clears up that particular topic. As well as showing that the indictment would not have to be altered.

    HTH
    I think by virtue of the fact that Felony murder is not a lesser charge to premed murder, (and by definition) the same penalty has to be available.

  13. #13
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    Quote Originally Posted by JBean View Post
    I think by virtue of the fact that Felony murder is not a lesser charge to premed murder, (and by definition) the same penalty has to be available.
    It was however argued that the DP was not available as a fact with out supporting citation if I recall.

    The rebuttal was that it was available and that rebuttal was supported by citation. That citation was disregarded and proof directly from Florida was request. As the Dept of Justice info was said to not be accurate.

    I believe RHornsby statements pretty much set that topic straight.

  14. #14
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    Quote Originally Posted by marspiter View Post
    Wudge, here is a conversation I believe is note worthy. Given that you asked for links to prove the DP was available for Felony Murder. I believe this conversation clears up that particular topic. As well as showing that the indictment would not have to be altered.

    HTH
    I've held the evidence that we know of in this case to be incongruent with simultaneous charges of both felony murder and premeditated murder. Moreover, with 'Knight' as the controlling case law, I've also held that if prosecutors were to motion Judge Strickland to amend the charges prior to his instructing the jury so as to add felony murder, that it would have been his decision on whether the evidence supported a felony murder charge or, perhaps, a felony manslaughter charge -- felony murder in Florida is based on proximate cause not agency theory.

    Moreover, I'm anything but a fan of last minute ambush charges, so I certainly would have no problem with Mr. Hornsby's post that reads: "Actually that has me thinking, under Florida law, the prosecution can not amend the indictment - so they are stuck pursuing the Premeditated First Degree Murder, even though a Felony Murder prosecution would be more readily obtainable."

    The only way to amend the Indictment would be to reconvene the Grand Jury, which I doubt they would want to do at this point."
    It's not what a man knows that makes him a fool, it's what he does know that ain't so. .... Josh Billings

  15. #15
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    Quote Originally Posted by Wudge View Post
    I've held the evidence that we know of in this case to be incongruent with simultaneous charges of both felony murder and premeditated murder. Moreover, with 'Knight' as the controlling case law, I've also held that if prosecutors were to motion Judge Strickland to amend the charges prior to his instructing the jury so as to add felony murder, that it would have been his decision on whether the evidence supported a felony murder charge or, perhaps, a felony manslaughter charge -- felony murder in Florida is based on proximate cause not agency theory.

    Moreover, I'm anything but a fan of last minute ambush charges, so I certainly would have no problem with Mr. Hornsby's post that reads: "Actually that has me thinking, under Florida law, the prosecution can not amend the indictment - so they are stuck pursuing the Premeditated First Degree Murder, even though a Felony Murder prosecution would be more readily obtainable."

    The only way to amend the Indictment would be to reconvene the Grand Jury, which I doubt they would want to do at this point."
    However if you notice (you seemed to skip this part) once Mr. Hornsby was aware of Knight he did change his position on the change of the indictment issue. That case was also upheld as recently as last year by the case he posted. That and with the charge of aggravated child abuse on the indictment the prosecution can ask for felony murder. I don't see it happening but the point of the matter is they can if they so choose. The debate is not if they will or not. That's open to opinion.

    The point is they could if the prosecution sees fit to do so.

    I would like to point out that the DP is available for Felony Murder btw. I noticed you didn't address that part of the post.

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