Most Felony Murder Laws In The USA Would Not Apply To The Elkhart 4


In December 2011, 18 year old Dakota Givens and 18-year-old James Sands decided to break into a store in Weirton West Virginia.  The two teens adjusted the store security cameras to prevent recording of their illegal entry into the building.  Dakota Givens was half way through the window when the son of the storeowner shot and killed him.

Hancock County Prosecutor James Davis Jr. charged James Sands with the felony murder of Dakota Givens.

Lawyers for James Sands questioned if the states felony murder laws applied to their client because a co-perpetrator was killed rather than an innocent victim.

In April of 2012 Judge Fred Fox II dismissed the felony murder charge against James Sands calling the charge “illogical” and “unjust” The judge continued stating “It is the duty of a court to construe a statute according to its true intent, and give to it such construction as will uphold the law and further justice”.

The felony murder law in West Virginia is written as follows:

 §61-2-1. First and second degree murder defined; allegations in indictment for homicide.
Murder by poison, lying in wait, imprisonment, starving, or by any willful, deliberate and premeditated killing, or in the commission of, or attempt to commit, arson, kidnapping, sexual assault, robbery, burglary, breaking and entering, escape from lawful custody, or a felony offense of manufacturing or delivering a controlled substance as defined in article four, chapter sixty-a of this code, is murder of the first degree. All other murder is murder of the second degree.

Hancock County Prosecutor James Davis Jr. was not pleased with the decision of Judge Fox. Davis appealed the decision to the West Virginia Supreme Court.  In November of 2012 the Supreme Court ruled on Judge Fox’s decision.

In a unanimous decision The Supreme Court of West Virginia upheld Judge Fox’s decision stating that the felony murder rule did not apply when a co-perpetrator was killed.

The West Virginia Supreme Court noted that the majority of states with Felony Murder laws do not allow for them to be applied when a co-perpetrator is killed.  In the footnotes the court specifically sites cases from California, Maryland, Nevada, New Jersey, New Mexico, North Carolina and Tennessee, which excluded felony murder charges when a co-perpetrator was killed.  In the ruling The West Virginia Supreme Court specifically focused on Supreme Court cases from Pennsylvania and Washington.

In another footnote in the ruling the judges point out that the legislators in Alaska, Colorado, Connecticut, New Jersey, New York, Oregon, Utah and Washington have amended their felony murder rules to specifically ban a co-perpetrator from being charged with the murder of their accomplice.

In contrast, the West Virginia Supreme Court ruling noted that Oklahoma has a felony murder rule, which could be applied when a perpetrator is killed during the commission of a felony.  The wording of the Oklahoma law is as follows: “When that person or any other person takes the life of a human being during, or in the death of a human being results from, the commission or attempted commission of (lists of felonies)”

In the Oklahoma statute it is very clear that is does not matter who does the killing as long as the killing happens during the commission of a felony.  As this blog has already written, in our article Déjà Vu — Another Similar Case, Another Different Result Florida has a felony murder rule that is very similar to Oklahoma.  This is because Florida has a very explicit felony murder law that is divided into two parts.  First-degree felony murder is charged when an innocent victim is killed.  Second degree felony murder is charged “When a human being is killed during the perpetration of, or during the attempt to perpetrate, any: (list of possible felonies including burglary) by a person other than the person engaged in the perpetration of …”

The Elkhart 4 were tried in Indiana under that states felony murder law.  The felony murder statute in Indiana states:

A person who kills another human being while committing or attempting to commit arson, burglary, child molesting, consumer product tampering, criminal deviate conduct, kidnapping, rape, robbery, human trafficking, promotion of human trafficking, sexual trafficking of a minor or carjacking . . . commits murder, a felony.

 This wording of the Indiana law is very much in line with the wording of the West Virginia law.  The Indiana law clearly states that felony murder occurs when a ‘person’ kills someone during the commission of a felonyAs Indiana State Representative Ryan Dvorak states “If you actually read the statue, the language of the statute probably would not apply to the kids in this case (Elkhart 4).   This is because Blake Layman, Jose Quiroz, Levi Sparks and Anthony Sharp did not kill Danzele Johnson.  The homeowner killed Danzele Johnson.

The upcoming appeals of Blake Layman, Levi Sparks and Anthony Sharp will be important tests of the law and courts in Indiana.  As we documented in our article ‘Is Curtis Hill Using the Elkhart 4 To Expand the Felony Murder Rule in Indiana?‘ courts have expanded the definition of Felony Murder in Indiana, but we question where that expansion stops.  How broad can the rule go without the consent of the legislature?  If the State of Indiana wishes to charge and convict people with felony murder when a co-perpetrator is killed then the legislature must make the change, not the courts.   This has been done in Florida and Oklahoma.  If the Indiana courts affirm the convictions of The Elkhart 4 then we believe that this will be a further expansion of the felony murder rule without the consent of the legislator.

Laws must be clear and easily accessible for all people.  Reading the Indiana felony murder rule as it is currently written it is clear that it does not apply to The Elkhart 4.  Even so, the court in Elkhart County has convicted the boys (using the precedent set by State v. Palmer see Is Curtis Hill Using the Elkhart 4 To Expand the Felony Murder Rule In Indiana?).

If the convictions of the Elkhart 4 are let to stand, the Indiana felony murder law will become more confused and unclear.  This will make it harder to understand and less accessible to the majority of the populations.  This is because the law as it is written will not reflect how it is being enforced.  This is a real injustice.  Laws must be clear.  The clarity of laws is essential for all, but especially when state prosecutors can use the law to send juveniles to jail for 55 years.

West Virginia Supreme Court Justice Thomas McHugh wrote in the unanimous decision: “Until such time as the Legislature sees fit to further amend (state code), we do not accept (the Hancock County Prosecutors) argument that the criminal offence of felony murder encompasses every death that occurs in the course of a statutorily enumerated felony regardless of who causes the death.”

We believe the same to be true in Indiana.  It is up to the legislature to expand the definition of felony murder if they wish, not the courts.  This is extremely important because only through the legislator can the people on Indiana have a say in how the law is enforced.  The case of The Elkhart 4 will provide the appeals court in Indiana a perfect opportunity to follow West Virginia and limit the scope of felony murder by overturning the convictions of the Elkhart 4.


West Virginia Court Ruling:

News Articles on the West Virginia Case