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.

The Supreme Court of Appeals of West Virginia even went further discussing in detail cases from Pennsylvania and Washington noting that both cases have set precedents around the country.

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.

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


  • Why should they be set free? They will probably do only about 15 yrs. Thats what they deserve! Its called felony murder and its the law. I saw no remorse or sadness for their dead friend or their crime. Only self pity tears. Why weren’t they volunteering at a shelter if they were bored? Million other things they could do than commit a crime. Hope prison straightens them out.

    • Did you read the article you are posting this comment on? This is a very unique case of felony murder and as Levi’s lawyer pointed out on Dr. Phil and as we have written about the law in Indiana is not very clear. Sunny Hostin on Dr. Phil said that this is a typical felony murder case. Nothing can be further from the truth. We have used actual case law from across the country to show that in many states these boys would not have been charged with Felony Murder. In fact we have made a separate page for 18 states that directly links to the law and/or court cases that established these precedents. You can find those links at the left hand side of your screen near the bottom. We will continue looking into this. The West Virginia Supreme Court notes that the majority of states could not charge given the specifics of this case. The law in Indiana is not clear, so I do not agree with you in your thoughts about felony murder law. I do agree that there were millions of better things for these boys to be doing that day and I agree that there needs to be consequences. I am not sure I want them in prison as long as you, but I do hope they can turn prison into a positive experience so when they get out they will not return to criminality. Unfortunately our fall well behind other countries when it comes to providing inmates with programming to help them not reoffend once they are released.

    • How many 16 or 17 year olds do you know who would be volunteering at a homeless shelter when they’re bored? Get real! They messed up big time, YES! But, they didn’t intend to hurt or kill anyone! This situation is wrong on so many levels!

  • The argument given in the article above makes no sense to me. What does West Virginia law have to do with a case in Indiana? Different states have different laws, and unless there is an appeal that takes it to a Federal level, there is no reason for such a comparison. If there are only 18 states that have a precedent against charging felony murder in the death of a co-perpetrator, isn’t that saying that there are 32 states – nearly double – that would allow such a charge?

    Suppose any person, the homeowner, the perpetrators, a random party, had a heart attack and died during the crime. Certainly there have been such cases in the past.

    I find the arguments given unconvincing.

    • The argument in the article is very clear. The article is correcting a factual error made on national TV. On the Dr. Phil episode Sunny Hostin stated, “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 is not correct. The reason West Virginia is so important is that the court there did a survey of felony murder statutes across the country. They found that the majority of states do not charge felony murder if a co-perpetrator was killed by the victim or a third party. In the West Virginia ruling they cited several states which we have included in the article. The West Virginia judges in their ruling state that the majority of states do not allow for felony murder charges when a co-perpetrator has died.

      Since publication we have been looking into other cases we can now add Delaware to the list. Also you need to remember that there are four states without felony murder statutes on the books.

      This is not an article necessarily about The Elkhart 4, it is an article which uses actual case law to show that the national consensus that Sunny Hostin talked about is not a reality.

      There have been cases of someone having a heart attack during a crime. In most states across the nation if a victim has a heart attack and the doctors connect that heart attack to the crime then you have felony murder. If one of the perpetrators has a heart attack and the doctors connect it to the crime then it depends which state you are in the the construction of their laws. That is why we wrote the article to show that there is no consensus nationally on cases like The Elkhart 4.

      • There is no factual error. This is felony murder every day of the week and twice on sunday. Was somehidy killed during the commission of a felony? The answer is yes and the verdict is guilty. What’s so hard to understand?

        Here is a hint for any who read this. If you don’t wantnto go to prison, don’t commit crimes. I blame the parents though. Clearly a he’s boys are victims of parents that have checked out.

        Onc again, a boy is dead because of these criminals. Did any of the hoys try and stop it, did any boys call the police and tell them about the crime about to he commimtted? Nope. They brazenly broke into a home with anpickuo truck on the proprty and had a look out and even ignored a wallet and keys that they saw.

      • Your comment very nearly did not get approved because it fails to live up to our comment policy which can be found here. The reason it does not follow our policy is that you can’t back up your assertion that Sunny Hostin did not make a factual error. You have provided no links, no court ruling nothing to prove that you are correct. You made a statement with no factual proof. Basically your gut said we were wrong so you posted that we are wrong.

        We are very confident we are not wrong. We have linked to several law setting cases across the USA which prove that states across the country don’t view a co-perpetrator being killed by a victim or third party as felony murder. We have even gone so far as to create separate pages for many states quoting legislation and quoting case law. We provide links to actual law sites on those pages so that people can follow through and read our sources.

        Where is your proof that “this is felony murder every day of the week and twice on Sunday?” Where are your links to actual state legislation or case law? If you were to link to the state law for Oklahoma or Florida and say to us that felony murder exists when a co-perpetrator is killed by a victim or third party we would agree 100% because that is what their laws say. But as the West Virginia Appeals Court pointed out states like Oklahoma are in the minority. (link to WV case can be found above in the article — note our stats tell us that this link was not clicked today . . did you read it?)

        In State v. Severs which is case law from Tennessee the court stated the following,

        The statute provides that the murder be in the “perpetration” or “attempted perpetration” of, among other things, “a larceny.” In this instance, the death resulted from the effort to thwart rather than to perpetrate the felony. The same conclusion was reached in People v. Washington, 62 Cal.2d 777, 44 Cal. Rptr. 442, 402 P.2d 130 (1965), in the interpretation of an identical statute to that enacted by this state.

        Any extension of the meaning of the statute to the current facts would be in derogation of the common law definition of felony-murder.

        The court continues

        In conclusion, it appears that extension of the felony-murder rule beyond its common law limitation to acts by the felon and his accomplice, to include the lethal actions of those not acting in pursuance of the felonious scheme, is an appropriate action for the legislature … not the courts. The “language of the statute does not compel it and … is entirely compatible with the traditional limitations of the rule.” Canola 374 A.2d at 30.
        The death of the co-perpetrator, when a justifiable homicide, is not within the purview of the statute.

        What the court is saying here is that traditional felony murder is when someone is killed to further a felony — classic example four guys go into a bank to rob it and one shoots a bank teller the others are charged with felony murder.

        In the case the Tennessee Court is dealing with the victim of the initial felony killed one of the perpetrators to thwart the felony. The Tennessee Court ruled that if the death was caused by a victim in an attempt to thwart the felony this is not traditional felony murder. This is a “derogation of the common law definition of felony-murder.” The court went on to say if the legislature wants to have this definition then it is their job to change the law, not the courts.

        This directly contradicts what you said in your post. It also directly contradicts what Sunny Hostin said on Dr. Phil when she stated,

        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.”

        That is why we wrote this article. This was not us wanting Sunny Hostin to be wrong. In fact we would have preferred that she went on Dr. Phil and was correct so she could have put the law and this case into the correct context. We do not think she did this purposely, we just believe that actual case law is complex and often difficult to keep tabs of. We wrote this article to correct a significant error and we have been successful not because we wanted to, but because the facts back us up.

        If you want your posts to be included on the site you need to back things up just like we did there. You come on this site genuinely believing your definition of felony murder to be true maybe because you heard it from Sunny Hostin. The problem is neither you or Sunny Hostin can back what you have said up because the case law from across the country does not back you up. In your case you did not even try.

        If you want to come on this site and tell us that we are wrong please have the decency to provide proof for your ideas and explain your thinking. If you can’t spend the time to do the research and prove your point then you are not following our comments rules. In all truthfulness why should be publish your thoughts if you can’t back them up? On this site we do express our opinion but we try very hard to back our opinion with facts. We are not afraid to look at case law, legislation and the writings of experts. We provide links to our sources so our readers can see our information and make up their own minds. Will we make mistakes? Absolutely. If someone comes along and can back things up with sources then we will acknowledge or errors and be happy that we have engaged with someone in an honest debate based on facts and reality . . . not thoughts that can’t be backed up.

      • She gave her opinion based on her expertise. The key word is opinion. And I think you should hold everyone to the same standards regardless of what side they agree with. But your not doing that.

        Have you asked around about these boys criminal history? Hint, there is a reason the defense didn’t put up any of their friends as charecter witnesses

      • No, Sunny Hostin was brought in as a legal expert. That is how she was introduced. As a legal expert she has an obligation to report the law accurately. When she stated that the law as applied in this case was valid across the country it was in response to the expert opinion of Levi’s lawyer who was factually right. She was factually wrong and yet she said he was wrong even though the facts don’t support her. This undermined the other lawyer and it is important the record is put straight because it puts his professional understanding of the law into question. Even if you don’t agree with anything else stated on this site you must agree that media lawyers have an obligation to correctly represent the laws as they are written, not as they wish they were written.

        You came on here and said we were wrong in our writing about the way the felony murder rule is constructed nationwide. Perhaps you did that partly because of what Sunny Hostin said on Dr. Phil. Yet in your latest post you have not in anyway been able to prove we were incorrect . . no evidence, no discussion of the court rulings we posted, nothing, not even a mention of the facts we laid out. All you did is come back with another unsubstantiated attack, just another attack. Where is the beef in your arguments? Were are your proofs. Stop relying on rumour, gossip and innuendo.

        To repeat — Sunny Hostin was harsh towards the boys and said they needed to take responsibility for the murder. We might disagree with her opinion, but we will not challenge her on that because that is her opinion. But when she said that the law as applied in this case is how it is applied across the country we will challenge her on that because that is a factual statement, not an opinion and she was wrong.

        We make no apologies for our comments policy. We are a support site. Our name says it all. We allow supportive comments and we encourage honest debate, but not with people who can’t even bother to do their research like you have just done.

        Finally we have never once said that these boys are angels in fact on several occasions we have been quite critical of their actions that day. But we have also never had anyone provide us with documented evidence of a ‘criminal past’. If you want to make that accusation do the leg work go out and document it. Don’t say you heard it from someone (an unnamed person) that is gossip. What I will say is I know that in this situation these boys were only charged with one crime. If people have evidence of further crimes they need to speak to Mr. Hill and the police and then they can then pursue it. Until someone provides solid evidence of a criminal past, not just gossip, the debate is closed. Central to our legal principals is the notion of innocent until proven guilty. If you decide to post again please make sure you do your homework and actually back up what you are saying with facts.

  • The west Virginia supreme court of appeals has no direct bearing on an Indiana case. That is not how the law works

    • If you read the article you will realise that it is not suggesting that the WV court is directly involved in the Elkhart 4 case. This story is looking at the comments of a legal expert and reporter on a TV show and stating that her comments on the status of the felony murder law nationwide is not backed up by the legal reality nationwide. Not all of our stories are 100% about The Elkhart 4, we must also focus on the debate surrounding the controversy.

      All this being said, we need to be very cautious dismissing the influence one states legal rulings can have on legal proceedings in another state. The West Virginia Court was asked to examine if a person could be convicted of felony murder if their co-accused was killed by the victim or a third party. In the ruling the court did not just look at West Virginia law, they also looked at laws across the nation to see if there was a pattern. What they found was that the majority of states do not allow a co-fellon to be charged with felony murder when a co-accused was killed by the victim or a third party. This survey of rules nationally helped the West Virginia judges with their unanimous verdict.

      It needs to be noted that in many ways the Indiana felony murder law is constructed very similar to the West Virginia felony murder law (we examine this here ). Now Indiana has a different case law than WV (We examine this here ). Recently (as noted and linked to above ) an Indiana State Representative said in a TV interview that the Indiana law as written probably would not apply to the Elkhart 4. The wording of the statute could be part of the upcoming appeals. The lawyers will submit briefs focused on case law both within the state and nationally. If the lawyers for The Elkhart 4 decided to argue along this line then they might very well decide that the West Virginia ruling supports their case. They could use it to argue legal precedent.

      So in trail a defendant can’t use other states laws as a defence. This is totally understanding. But in appeals they can use other state laws and precedents as a way to help clarify if a charge is correct. On the different pages from each state we link to a lot of case notes. If you look through the footnotes you will notice case laws from all over the country referenced. Chances are very great that in the briefs lawyers both for the state and for the Elkhart 4 file with the appeals court there will be Indiana cases references as well as cases from across the USA.

  • I couldn’t believe what I was hearing. It was extreme and over the top.
    This wasn’t a boy that got killed. He was the oldest of all involved. He made his choice, and that was the consequence, as unfortunate as it was. Now their consequence should be a charge of home invasion. Nothing more, nothing less.

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  • michelle proffitt

    Let’s be realistic these boys knew they were doing wrong however it is physically impossible for their brains to totally process the ALL the possible consequences for their actions. Let them learn from it and turn into positive role models for others instead of ending any possibilities of ever living any real life.Hey Elkhart with a heart I think you better rename this city if all we do is lock our young youth up throw away the key and give up. My heart goes out to all the moms stay strong for the strong will prevail.
    Michelle ( Mann)