Trust Territory v Rodriquez [1985] TTLawRp 5; 8 TTR 491 (1 August 1985)

8 TTR 491

TRUST TERRITORY OF THE PACIFIC ISLANDS, Plaintiff –Appellee

v.

HERBERT RODRIQUEZ and RAY IRIARTE, Defendants-Appellants

Criminal Appeal No. 103

Appellate Division of the High Court

August 1, 1985

Appeal by two defendants from their convictions for Attempted Murder in the Second Degree and Murder in the Second Degree. The Appellate Division of the High Court, Hefner, Associate Justice, held that felony-murder rule was inapplicable to two escaping prisoners where a third escaping prisoner had actually injured a policeman and killed a radio announcer while in the act of escape, since Second Degree Murder statute only applies to the felon who actually kills another while perpetrating a felony, and not the other participants in the felony, and therefore convictions of two defendants were reversed.

1. Homicide-Murder in Second Degree-Felony Murder

Charge of second-degree murder based on felony-murder rule against two prisoners escaping from prison was erroneous, where charge was based on a shooting by a third escaping prisoner in which a police officer was injured but not killed, since without a homicide the felony-murder rule is not applicable. (11 TTC § 752)

2. Homicide-Murder in Second Degree-Felony Murder

Second-degree murder statute was not properly applied against two prisoners who were in the act of escaping from prison when a third escaping prisoner shot and injured a police officer, since language of felony-murder provision makes it clear that only the person who actually kills another while perpetrating a felony is liable, and not other participants in the felony. (11 TTC § 752)

3. Criminal Law-Attempt

Criminal statute defining "attempts" does not permit or allow any transferred intent or vicarious criminal liability; a bystander to an attempted crime is not included in the coverage of the statute. (11 TTC § 4)

4. Criminal Law-Attempt

An attempt to commit a crime requires specific intent, the performance of an act towards the commission, and the failure to consummate the act.

5. Homicide-Attempted Murder

Where during a joint escape, one prisoner shot and injured a police officer, and there was no finding of intent by two other escaping prisoners to attempt to murder the officer, nor any act toward the commission of the crime, the two other escaping prisoners could not be convicted of attempted murder. (11 TTC § 4)

6. Homicide-Murder in Second Degree-Felony Murder

Attempted felony murder is a legal impossibility. (11 TTC § 4)

7. Homicide-Murder i n Second Degree-Felony Murder

Second-degree murder statute was not properly applied against two prisoners who were in the act of escaping from prison when a third escaping prisoner shot and killed a person, since language of felony-murder provision makes it clear that only the person who actually kills another while perpetrating a felony is liable, and not other participants in the felony. (11 TTC § 752)

8. Homicide-Murder in Second Degree-Felony Murder

Government could not prosecute co-felons under "common law" felony-murder rule, since no person is subject to criminal prosecution in Trust Territory except under written law. (1 TTC § 108)

Counsel for Appellee:	THOMAS TARPLEY, State Attorney's
		Office, Pohnpei State Government, Kolonia, Pohnpei 96941
Counsel for Appellants:	RICHARD W. POLLACK, Deputy
		Public Defender, Suite 200, North Vineyard Blvd., Honolulu, Hawaii 96817

Before MUNSON, Chief Justice, MIYAMOTO, Associate Justice, and HEFNER*, Associate Justice

* Chief Judge, Commonwealth of the Northern Mariana Islands, designated as Temporary Associate Justice by the United States Secretary of Interior.

HEFNER, Associate Justice

Defendants Herbert Rodriquez and Ray Iriarte appeal their convictions for the crimes of Attempted Murder in the Second Degree and Murder in the Second Degree. For the reasons stated herein we reverse these convictions for both defendants.

BACKGROUND

On January 19, 1980, the defendants were prisoners in the Ponape jail and they escaped from the facility with three other prisoners, Ioanis Roberts (a.k.a. Bambo), Kasmiro Amos, and Albert Atem.^[1] As the five prisoners were departing the prison, a policeman (Perez Alik) was assaulted by Bambo with the officer's gun and then Bambo handcuffed him. The prisoners broke into the armory and took several guns and some ammunition. They then went outside and commandeered a police jeep. However, before leaving the grounds, Bambo went back in to the police station and shot Officer Alik in the back as he was laying down on the floor.^[2] Both Rodriquez and Iriarte were outside the jail at the time the shooting occurred. This is the basis for the conviction of the charge of Attempted Murder in the Second Degree.

After Bambo emerged from the jail the five prisoners left in the police jeep and proceeded to the local radio station. The jeep was parked and Bambo approached the radio station and shot, the radio announcer in the head, killing him instantly. Rodriquez and Iriarte did not enter the building but waited in or around the jeep. Approximately five minutes expired from the time Bambo left the jeep and returned from the radio station. This event is the basis for the conviction of Murder in the Second Degree.

Rodriquez and Iriarte were both sentenced to 10 years confinement for the Attempted Murder conviction while Rodriquez received 30 years for the Murder conviction and Iriarte received 25 years.

DISCUSSION

The prosecution's theory for both convictions is based on the felony murder rule.

Turning first to the Attempted Murder conviction which was charged in Count 7^[3] this can be easily (but not briefly) disposed of.

The felony murder rule originated in England and at common law the author of an unintended homicide is guilty of murder if the killing takes place in the perpetration of a felony. Boyd v. United States, 142 U.S. 450