Did Sunny Hostin make a huge mistake on Dr. Phil? We examine the case law that says she did!
While Sunny Hostin serves an important role in the media helping people around the nation understand legal decision, she can make errors. On the January 17th episode of Dr. Phil, which focused on The Elkhart 4, she made a huge error of fact. We believe that she needs to address this error in order to help viewers and readers of The Dr. Phil Show and this blog put the case of The Elkhart 4 into the correct context.
During the Dr. Phil episode Vincent Campiti, the lawyer for Levi Sparks, stated that the case of The Elkhart 4 was “atypical” because the person who died (Danzele Johnson) was a co perpetrator not the victim or an innocent third party.
At that point Dr. Phil asked Sunny Hostin to weigh in. Sunny Hostin said,
“Yeah, it is typical felony murder, it is typical felony murder. You see it all over the country. The fact that a co-defendant, a co-conspirator dies during the commission of a felony makes no difference.”
This statement, made by Sunny Hostin, completely contradicts Vincent Campiti’s assertion that the charges were ‘atypical’. Her statement also contradicts a recent Supreme Court of Appeals of West Virginia ruling. We are referring to the November 2012 Supreme Court of Appeals of West Virginia decision, Davis v. Judge Fox and Sands. In this unanimous ruling the West Virginia Justices provide a detailed examination of felony murder laws across the United States. Specifically they focus on how these laws deal with situations where co-perpetrators are killed. The conclusion of the justices is that the majority of states in the USA do not allow for felony murder prosecution when a co-perpetrator is the person who is killed.
In the West Virginia case James Davis, the prosecuting attorney for Hancock County, was appealing the decision, by trial court Judge Fred L. Fox II, to throw out a felony murder charge against James Michael Sands.
James Sands was charged with felony murder after he and Dakota Givens attempted to burglarise a local convenience store. During the burglary the son of the storeowner pulled out a gun, and shot, killing Dakota Givens. James Sands was charged with the felony murder of Dakota Givens.
Judge Fox threw out the case against James Sands. Hancock Country Prosecutor James Davis appealed the decision of Judge Fox. In their ruling on the appeal the Supreme Court of Appeals of West Virginia, noted that Judge Fox said that it was against West Virginia law to charge felony murder when a co-conspirator is the person killed. Judge Fox then went further in his ruling. He examined other states with felony murder laws and declared that the majority of states with felony murder laws do not allow for the prosecution of an individual for felony murder when the person killed is a co-conspirator. This is in complete contradiction to what Sunny Hostin said on the Dr. Phil Show.
The Supreme Court of Appeals of West Virginia unanimously upheld Judge Fox’s decision and in their ruling they provide links to case law from around the country that shows that many states do not allow felony murder to be charged in the death of a co-perpetrator. The Supreme Court of Appeals of West Virginia started with Virginia stating,
“As the circuit court recognized in its ruling, there is a majority and a minority position with regard to the issue presented by the facts of this case. Of those states that fall within the majority position – those who refuse to convict a perpetrator of felony murder when a co-felon is killed by the victim of the initial felony – our sister state [Virginia] adopted this view in Wooden v. Commonwealth 284 S.E.2d 811 (Va. 1981)”
The ruling goes even further by referring, in footnote 4, to case law in several states including California, Maryland, Nevada, New Jersey, New Mexico, North Carolina and Tennessee which establishes that felony murder charges were not justified when the person killed was a co-perpetrator.
Then in footnote 9 the Supreme Court of Appeals of West Virginia notes that,
[legislators in] “Alaska, Colorado, Connecticut, New Jersey, New York, Oregon, Utah and Washington have amended their statutes to limit the offense of felony murder to the killing of an individual who is not a participant in the underlying felony.”
The court notes with specific, reference to Oklahoma, that there are some states where legislators have clearly written into the law the ability for prosecutors to charge and convict someone with felony murder if a co-perpetrator is killed during the commission of a felony. In our writing we have pointed out that the felony murder rule in Florida also allows for co-perpetrators to be charged with 2nd degree felony murder in the death of an accomplice. Although in the Florida case we refer to the prosecutor successfully finding the middle ground allowing the juvenile defendants a different option than an adult felon murder conviction.
Finally, the Supreme Court of Appeals of West Virginia points out that in the 2003 edition of Substantive Criminal Law, Wayne R. LaFave states “it is now generally accepted that there is no felony-murder liability when one of the felons is shot and killed by the victim, a police officer or a bystander.”
14 months ago the Supreme Court of Appeals of West Virginia published a detailed survey of felony murder laws across the United States and came to the conclusion that the majority of states do not allow felony murder charges and convictions when a co-perpetrator is killed during the commission of a felony. Their conclusion is based upon careful reading of case law from across The United States. This ruling is a complete contradiction to what Sunny Hostin said on the Dr. Phil episode. With all due respect for Ms. Hostin, and given the status of Supreme Court of Appeals of West Virginia, we are forced to believe that the court provided a much better assessment of the status of the felony murder law across America than Sunny Hostin did on the Dr. Phil Show.
The Supreme Court of Appeals of West Virginia directly contradicts Sunny Hostin’s assertion that this type of prosecution is “typical” and you “see it all over the country”. The Court findings show that across the country it does make a “difference” if a co-perpetrator dies during the commission of a felony.
We would be greatly interested to hear Ms. Hostin’s view on this. She is a legal expert, we are just bloggers so perhaps she could shine some light on why her comments contradict this very recent ruling by the respected Supreme Court of Appeals of West Virginia. We believe her insight into this would help our readers and Dr. Phil viewers to put her comments into context and help us to better understand the legal situation of felony murder across the USA.
As for the situation in Indiana, we do admit that things are less cut and dry than in other states. We note that the Supreme Court of Appeals of West Virginia’s ruling does not classify Indiana as a state which bans felony murder in cases where co-perpetrators are killed. We believe things in Indiana are a lot more confusing. We have documented some of this in our article Is Curtis Hill Using the Case of The Elkhart 4 to Expand the Felony Murder Rule in Indiana. In other postings we have also pointed out that Indiana State Representative Ryan Dvorak recently stated “If you actually read the statute, the language of the statute probably would not apply to the kids in this case [Elkhart 4].
Finally, we do agree with Sunny Hostin that the sentence these boys received was excessive and we also agree that it is important that these boys take responsibility for their actions. We do however respectfully disagree with Ms. Hostin when it comes to the felony murder conviction in this case.
LINK TO STATE LAWS AND COURT CASES THAT DO NOT ALLOW FELONY MURDER WHEN A CO-PERPETRATOR IS KILLED — January 25 we now have 21 states. With the addition of Michigan we have found that at least 49% of the US population live in states where the Elkhart 4 would not be prosecuted with felony murder given the facts of this case. We have not even started researching Ohio yet but we understand that state also does not have a functioning felony murder statute. This is clear evidence of how incorrect Ms. Hostin was on the Dr. Phil Show.
- Hawaii — does not have a felony murder rule
- Kentucky — does not have a felony murder rule
- Michigan — does not have a felony murder rule after the People v. Aaron ruling in 1980
- New Jersey
- New Mexico
- New York
- North Carolina
- West Virginia
The Supreme Court of Appeals of West Virginia Ruling
Ryan Dvorak’s Statement About the Indiana Felony Murder Rule
The Dr. Phil Show Episode on The Elkhart 4