State of Iowa v. Keyon Harrison

IN THE SUPREME COURT OF IOWA
No. 16–1998
Filed June 22, 2018
STATE OF IOWA,
Appellee,
vs.
KEYON HARRISON,
Appellant.
Appeal from the Iowa District Court for Polk County, Paul Scott,
Judge.
A juvenile offender appeals his conviction for first-degree felony
murder and challenges his sentence of life imprisonment with the
possibility of immediate parole as cruel and unusual punishment under
the Iowa and United States Constitutions. AFFIRMED.
Matthew G. Sease of Kemp & Sease, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant
Attorney General, John P. Sarcone, County Attorney, and Jeffrey K. Noble
and Shannon Archer, Assistant County Attorneys, for appellee.
Brent Michael Pattison of Drake Legal Clinic, Des Moines, and
Marsha L. Levick, of Juvenile Law Center, Philadelphia, Pennsylvania, for
amici curiae Juvenile Law Center, Center on Wrongful Convictions of
Youth, and the Center for Law, Brain and Behavior.
2
ZAGER, Justice.
Keyon Harrison appeals his conviction for first-degree murder.
Harrison argues applying the felony-murder rule to juvenile offenders
based upon a theory of aiding and abetting violates the Iowa and United
States Constitutions. Harrison also presents as-applied and categorical
constitutional challenges to his sentence claiming a sentence of life with
the possibility of parole for a juvenile offender who was convicted of felony
murder constitutes cruel and unusual punishment under the Iowa and
United States Constitutions. Further, Harrison maintains the trial court
failed to provide the jury with proper instructions regarding the types of
assault required to establish the forcible felony robbery element of felony
murder. Finally, Harrison presents ineffective-assistance-of-counsel
claims alleging he was prejudiced by the errors of his trial counsel,
including trial counsel’s failure to request certain jury instructions and
failure to object to certain evidence presented at trial. For the reasons set
forth below, we affirm the conviction and sentence.
I. Background Facts and Proceedings.
On November 7, 2014, starting at approximately 3:45 p.m., Aaron
McHenry began receiving calls and text messages from Keith Collins who
was looking to buy marijuana from McHenry. Collins, then seventeen
years old, and Keyon Harrison, then sixteen years old, were at an Oasis
store at the time, and they initially wanted to meet McHenry at the Oasis
store. However, McHenry did not know where the Oasis store was located.
Therefore, McHenry arranged for them to meet at the Family Dollar store
near the 2600 block of Hickman Lane around 4:20 p.m. The purpose of
the meeting was to complete the sale of marijuana from McHenry to Collins
and Harrison.
3
At 4:23 p.m., Shirley Dick was taking her dogs outside when she
saw a black male, later identified as Collins, walking near her home at
2600 Hickman Lane. Dick approached Collins to see if there was anything
she could help him with, and Collins told her that he was waiting for his
girlfriend. Dick told Collins there were no kids that lived on her street,
and Collins turned away without responding to her. Thereafter, Dick
noticed Jorge Gutierrez, a nearby neighbor, chasing his dog as it ran from
his house in the direction of Dick’s house. Dick waited outside, offering to
help Gutierrez retrieve his dog.
While Gutierrez was retrieving his dog and returning home, he
observed Collins sitting on a retaining wall on Hickman Lane. Gutierrez
also saw McHenry and Harrison walking from 26th Street in the direction
of Hickman Lane. Gutierrez saw McHenry and Harrison begin to walk
faster, and they eventually “started to, like, push each other.”
Nevertheless, Gutierrez went back inside, and Shirley Dick turned to walk
back towards her home.
As she turned around, Dick heard gunshots, and she saw Collins
take off running underneath nearby bushes. Dick testified that Collins
was “maybe five feet” from McHenry when she turned around, but she did
not see Harrison or anyone else in the area. 1 Dick then called 911.
Gutierrez also heard the gunshots and turned around to see McHenry lying
on the ground. Gutierrez saw Collins and Harrison start running together
“away from Hickman Road.”
1Shirley Dick testified about the events she witnessed surrounding McHenry’s
death at Collins’s trial, but she passed away before she was able to testify at Harrison’s
trial. The parties agreed to read her testimony into the record at Harrison’s trial, and her
testimony was admitted to the court as an exhibit. The parties also agreed to have Dick’s
911 call reporting the gunshots played at trial.
4
Several other neighbors told police they saw two black males
running away from the area, and two nearby homeowners provided police
with security camera footage from their homes showing a black male
running away from the area. Camera footage at Broadlawns Hospital,
taken shortly after the shooting, shows Collins and Harrison together at
the hospital where Collins was treated for an injury to his right hand.
Harrison and Collins then went to meet up with Harrison’s girlfriend at
her residence. The girlfriend testified that when she joined them, she saw
Harrison “was holding two bags of marijuana in his hands, like baseball
size”. Thereafter, the group went to a store to buy blunt wraps for smoking
marijuana, and Harrison and Collins smoked some of the marijuana when
they returned to the girlfriend’s house. Harrison and Collins then returned
to Collins’s apartment around 8:00 p.m.
When police responded to the 911 call about a shooting at Hickman
Lane, they discovered Aaron McHenry’s dead body. McHenry had multiple
gunshot wounds to the head, torso, upper back, and arm, including a
couple of wounds that contained signs indicating he was shot from close
range. Police were able to identify Collins as a suspect soon after the
shooting. Police contacted the Hoover High School resource officer after
another Hickman Lane neighbor told them that one of the individuals went
to Hoover High School with her. She also told police that people at the
school thought he resembled the rapper Bobby Shmurda. The resource
officer identified two individuals who fit that description. Later, the police
provided the neighbor with two separate photo arrays. The neighbor was
able to positively identify Collins as one of the individuals running from
the area of the shooting. Police subsequently obtained a search warrant
for Collins’s apartment, which they executed about twelve hours after
responding to the scene of the shooting.
5
Harrison was with Collins at the apartment when the police
executed the search warrant. Collins had marijuana in his backpack, and
Harrison had marijuana on his person. Both packages of marijuana
confiscated from Collins and Harrison were identical in amount and
packaging. Police recovered the cell phone used to communicate with
McHenry, but they did not recover a gun during the search. The police
then took Harrison into custody. After Harrison’s mother arrived,
Detective Youngblut provided Harrison and his mother with his Miranda
rights, and they agreed to sign a written waiver of his Miranda rights.
Youngblut conducted Harrison’s questioning and recorded the
entire interview and events surrounding the interview at the police station.
The recording equipment was visible, and there was a sign outside of the
interview room informing people that the room was audio and video
recorded. Harrison’s mother was aware of the recording. While police were
not in the room, she informed Harrison that the room was being recorded.
During the interview, Harrison was repeatedly dishonest with Youngblut.
Harrison told Youngblut that Collins did not have a cell phone. Harrison
told Youngblut that he was not with Collins around the time of the murder
because he was somewhere else and that he went to Broadlawns Hospital
with his girlfriend from his girlfriend’s house to meet up with Collins.
When Youngblut left the room, Harrison’s mother accused Harrison
of lying and told Harrison, “I can’t help you if you lyin’ to me.” In response,
Harrison stated,
Alright mama. Look, look. We was walking, [Collins]’s like, “I
got a lick.” I’m like, “Bro, no, bro, you’re not going to do it.”
He’s like, “Bro, I’ve got a lick. I need it. I need to go to
Chicago.” He’s like—because he’s trying to go to Chicago or
whatever with his mom. He’s like, “Bro, I need it.” So I’m like,
“Bro, you can hit that lick but bro, I’m just going to stay on
the side.” So we walking down, we walking down the street
and then he was . . . .
6
Harrison’s mother then interjected to remind Harrison that they were
being recorded before Harrison could finish the rest of the sentence. A
“lick” is slang for a robbery, and the cell phone the police recovered from
Collins listed McHenry’s phone number under the name “Lick.”
Investigators found marijuana residue in McHenry's pants pocket but no
marijuana, which they believed indicated someone had stolen marijuana
from him.
The State charged both Harrison and Collins with first-degree
murder. They were tried separately. The State initially charged Harrison
with first-degree murder in violation of Iowa Code sections 707.1 and
707.2 and first-degree robbery in violation of Iowa Code sections 711.1
and 711.2 (2015). Harrison’s trial began on October 3, 2016. On October
4, before the presentation of any evidence, the State filed an amended trial
information that dropped the charge of first-degree robbery.
The State conceded during trial that “the evidence tends to suggest
that it was probably [Harrison’s] friend and companion Keith Collins” who
shot McHenry, and it dismissed the charge of premeditated murder in the
first-degree under Iowa Code section 707.2(1)(a). At trial, the State only
presented the theory of first-degree murder based upon the felony-murder
rule under Iowa Code section 707.2(1)(b). The State argued Harrison was
guilty of aiding and abetting in the robbery and murder of McHenry. At
the conclusion of the trial, the jury returned a unanimous verdict finding
Harrison guilty of first-degree murder in violation of Iowa Code sections
707.1 and 707.2(1)(b) for killing McHenry while participating in a forcible
felony, the robbery. Harrison was sentenced to life in prison with
immediate parole eligibility. Harrison filed a timely appeal, which we
retained.
7
II. Standard of Review.
We review alleged violations of state or federal constitutional rights
de novo. State v. Coleman, 907 N.W.2d 124, 134 (Iowa 2018). In doing so,
we evaluate each case “in light of its unique circumstances” by examining
the “totality of the circumstances as shown by the entire record” to “make
an independent evaluation.” State v. Krogmann, 804 N.W.2d 518, 522–23
(Iowa 2011) (quoting State v. Brooks, 760 N.W.2d 197, 204 (Iowa 2009)).
Further, “[w]e may review a challenge that a sentence is illegal at any time.”
State v. Zarate, 908 N.W.2d 831, 840 (Iowa 2018). Though we typically
review challenges to illegal sentences for correction of legal errors, our
standard of review for an allegation of an unconstitutional sentence is de
novo. Id.
Our standard of review for challenges to jury instructions is for
correction of errors at law. Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699,
707 (Iowa 2016). “We do not consider an erroneous jury instruction in
isolation, but look at the jury instructions as a whole.” State v. Murray,
796 N.W.2d 907, 908 (Iowa 2011). Our standard of review for claims of
ineffective assistance of counsel is de novo. State v. Schlitter, 881 N.W.2d
380, 388 (Iowa 2016). “Ineffective-assistance-of-counsel claims require a
showing by a preponderance of the evidence both that counsel failed an
essential duty and that the failure resulted in prejudice.” Id.
III. Analysis.
Harrison presents a number of claims on appeal. First, he
maintains the felony-murder rule violates the Due Process Clause of both
the Iowa and United States Constitutions when it is applied to juvenile
offenders pursuant to a theory of aiding and abetting. Second, Harrison
argues a sentence of life with the possibility of immediate parole eligibility
for a juvenile offender convicted of first-degree murder under the felony-
8
murder rule is unconstitutional both as applied to him and on its face
under the Cruel and Unusual Punishment Clauses of the Iowa and United
States Constitutions. Third, Harrison claims the trial court did not provide
proper jury instructions on the specific types of assault necessary to
establish a felonious robbery. Finally, Harrison advances ineffective-
assistance-of-counsel claims alleging his trial counsel breached essential
duties that resulted in prejudice by failing to request certain jury
instructions and failing to object to certain evidence presented at trial. We
address these claims in turn.
A. The State and Federal Juvenile Sentencing Landscape.
Article I, section 17 of the Iowa Constitution and the Eighth Amendment
of the United States Constitution provide Iowans convicted of a crime with
the right to be free from cruel and unusual punishment. U.S. Const.
amend. VIII; Iowa Const. art. I, § 17. This fundamental constitutional
tenet “flows from the basic ‘precept of justice that punishment for crime
should be graduated and proportioned’ to both the offender and the
offense.” Miller v. Alabama, 567 U.S. 460, 469, 132 S. Ct. 2455, 2463
(2012) (quoting Roper v. Simmons, 543 U.S. 551, 560, 125 S. Ct. 1183,
1190 (2005)); State v. Propps, 897 N.W.2d 91, 98 (Iowa 2017). In 2005,
the United States Supreme Court decided the first in a trilogy of cases
interpreting the Cruel and Unusual Punishment Clause under the Eighth
Amendment in relation to juvenile sentencing, which has transformed the
juvenile sentencing landscape. See generally Miller, 567 U.S. 460, 132
S. Ct. 2455; Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011 (2010); Roper,
543 U.S. 551, 125 S. Ct. 1183. An overview of these changes is necessary
to provide background for our analysis of Harrison’s constitutional
challenge to the felony-murder rule and his sentence of life imprisonment
with immediate parole eligibility.
9
First, in Roper, the Supreme Court held that imposing capital
punishment on juvenile offenders constitutes cruel and unusual
punishment under the Eighth Amendment. 543 U.S. at 568, 126 S. Ct. at
1194. In doing so, the Court emphasized the differences between adult
and juvenile offenders that “render suspect any conclusion that a juvenile
falls among the worst offenders”—namely, the differences in maturity,
sense of responsibility, vulnerability to peer pressure and negative
influences, and the development of personality traits. Id. at 569–70, 125
S. Ct. at 1195. Second, in Graham, the Supreme Court held that
sentencing juvenile offenders convicted of nonhomicide offenses to life
imprisonment without the possibility of parole constitutes cruel and
unusual punishment under the Eighth Amendment. 560 U.S. at 74, 130
S. Ct. at 2030.
Finally, in Miller, the Supreme Court prohibited
all mandatory sentences of life imprisonment without the possibility of
parole for juvenile offenders under the Eighth Amendment. 567 U.S. at
479, 132 S. Ct. at 2469. The Court stated, “Mandatory life without parole
for a juvenile precludes consideration of his chronological age and its
hallmark features—among them, immaturity, impetuosity, and failure to
appreciate risks and consequences.” Id. at 477, 132 S. Ct. at 2468.
Nevertheless, the Court did not prohibit all sentences of life imprisonment
without the possibility of parole. Id. at 480, 132 S. Ct. at 2469. Instead,
the Court held that sentencing courts must “take into account how
children are different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison” before issuing a
sentence of life imprisonment without the possibility of parole to a juvenile
offender. Id.
10
Following Miller, the Iowa Governor commuted the sentences of all
thirty-eight juvenile offenders serving statutorily mandated sentences of
life without parole to sentences of life without parole eligibility for sixty
years with no credit for earned time. See State v. Ragland, 836 N.W.2d
107, 110–11 (Iowa 2013). Shortly thereafter, we held that Miller applied
retroactively, and the Governor’s commutations to life without parole for
sixty years with no credit for earned time, amounted to de facto sentences
of life without the possibility of parole and mandated the individualized
sentencing process outlined in Miller. Id. at 117, 122. The Roper–Graham–
Miller trilogy, and our holding in Ragland, set the course for drastic
changes to juvenile sentencing under the Iowa Constitution.
First, in State v. Null, we held that sentencing a juvenile offender to
52.5 years imprisonment triggered Miller’s individualized sentencing
requirement noting “[t]he prospect of geriatric release, if one is to be
afforded the opportunity for release at all, does not provide a ‘meaningful
opportunity’ to demonstrate the ‘maturity and rehabilitation’ required to
obtain release and reenter society.” 836 N.W.2d 41, 71 (2013) (quoting
Graham, 560 U.S. at 75, 130 S. Ct. at 2030). In State v. Pearson, we
similarly held that the individualized sentencing requirement set forth in
Miller applied under the Iowa Constitution to a juvenile offender’s sentence
of consecutive terms totaling thirty-five years imprisonment without parole
eligibility for nonhomicide offenses. 836 N.W.2d 88, 96 (Iowa 2013).
In State v. Lyle, we held that “the sentencing of juveniles according
to statutorily required mandatory minimums does not adequately serve
the legitimate penological objectives in light of the child’s categorically
diminished culpability.” 854 N.W.2d 378, 398 (Iowa 2014). As a result,
we held that article I, section 17 of the Iowa Constitution prohibits all
mandatory minimum prison sentences for juvenile offenders. Id. at 400.
 11
Additionally, we established the following necessary factors for a district
court to consider in deciding whether a juvenile offender warrants the
minimum period of incarceration without parole:
(1) the age of the offender and the features of youthful
behavior, such as “immaturity, impetuosity, and failure to
appreciate risks and consequences”; (2) the particular “family
and home environment” that surround the youth; (3) the
circumstances of the particular crime and all circumstances
relating to youth that may have played a role in the
commission of the crime; (4) the challenges for youthful
offenders in navigating through the criminal process; and
(5) the possibility of rehabilitation and the capacity for
change.
Id. at 404 n.10 (quoting Miller, 567 U.S. at 477, 132 S. Ct. at 2468).
In State v. Louisell, we vacated a sentence for a determinate term of
years in prison, holding that sentencing juvenile offenders convicted of
first-degree murder to a fixed term of years was not an option “[b]ecause
there was no statutory authority for the determinate sentence” and “judges
may only impose punishment authorized by the legislature within
constitutional constraints.” 865 N.W.2d 590, 598 (Iowa 2015). We also
rejected the defendant’s argument on ripeness grounds that she would be
denied a meaningful opportunity for release were she to become parole
eligible given the low rates at which the state parole board had actually
granted parole to eligible offenders. Id. at 601–02. Nevertheless, we
reiterated that “juveniles convicted of crimes must be afforded a
‘meaningful opportunity to obtain release based on demonstrated maturity
and rehabilitation’—if a sentencing judge, exercising discretion,
determines parole should be available.” Id. at 602 (quoting Graham, 560
U.S. at 75, 130 S. Ct. at 2030).
Further, in State v. Seats, we expounded upon the sentencing
factors espoused in Lyle and Miller that a sentencing court must consider
12
“before sentencing a juvenile to life in prison without the possibility of
parole.” 865 N.W.2d 545, 555–57 (Iowa 2015). In applying these factors,
we first established that “the presumption for any sentencing judge is that
the judge should sentence juveniles to life in prison with the possibility of
parole for murder unless the other factors require a different sentence.”
Id. at 555. Additionally, we explained that the sentencing factors require
sentencing courts to acknowledge the differences between children and
adults and consider the offender’s “family and home environment,” “the
circumstances of the homicide offense,” any substance abuse that may
have played a role in the juvenile’s offense, and that juveniles have a
greater capacity for rehabilitation than adults do. Id. at 555–56 (quoting
Miller, 567 U.S. at 477, 132 S. Ct. at 2468).
In State v. Sweet, we adopted “a categorical rule that juvenile
offenders may not be sentenced to life without the possibility of parole
under article I, section 17 of the Iowa Constitution.” 879 N.W.2d 811, 839
(Iowa 2016). Underlying this holding was our finding that a sentence of
life without the possibility of parole required the sentencing judge to “do
the impossible, namely, to determine whether the offender is ‘irretrievably
corrupt’ at a time when even trained professionals with years of clinical
experience would not attempt to make such a determination.” Id. at 837.
We concluded that the parole board is in the best position to determine
whether the offender is invariably corrupt. Id. at 839.
In Propps, we upheld a juvenile offender’s indeterminate sentence
with no mandatory minimum and immediate parole eligibility because it
gave the juvenile the “potential for immediate parole if rehabilitation,
maturity, and reform have been demonstrated.” 897 N.W.2d 91, 101 (Iowa
2017). Moreover, in State v. Roby, we further developed the sentencing
factors first set forth in Lyle, explaining that these factors should generally
13
mitigate the punishment of a juvenile offender so that sentencing courts
can devise a “punishment that serves the best interests of the child and of
society.” 897 N.W.2d 127, 144 (Iowa 2017) (quoting Lyle, 854 N.W.2d at
402). We also declined to categorically prohibit imposing a minimum term
of incarceration without immediate parole eligibility on juvenile offenders
convicted of first-degree murder as long as such sentences were only
imposed after the sentencing judge considered the necessary mitigating
factors associated with youth. Id. at 148. Finally, in Zarate, we held that
article I, section 17 of the Iowa Constitution did not categorically prohibit
sentencing juveniles convicted of first-degree murder to “life with the
possibility of parole after serving a minimum term of confinement as
determined by the court,” or life with the possibility of immediate parole.
908 N.W.2d at 843, 856 (quoting Iowa Code § 902.1(2)(a)(2)).
B. Applying the Felony-Murder Rule to Juvenile Offenders.
Harrison argues applying the felony-murder rule to juvenile offenders
when their liability is grounded on a theory of aiding and abetting violates
due process under the Iowa and United States Constitutions. Specifically,
Harrison alleges the felony-murder rule is premised on the assumption
that juvenile offenders who participate in a forcible felony can appreciate
the potential consequences of their participation even though juvenile
offenders are “not developed enough to appreciate not only the
assumption, but the natural consequence of the [forcible felony] (i.e. the
murder).” Harrison relies primarily on our state and federal juvenile
sentencing jurisprudence which recognizes that there is a “fundamental
and virtually inexorable difference between juveniles and adults for the
purposes of punishment.” Lyle, 854 N.W.2d at 393. Further, Harrison
reasons, even if he did understand the potential consequences of his
participation in the robbery, science on juvenile development indicates
14
that he was incapable of controlling his impulses with regard to his
participation in the murder. 2
Iowa Code section 707.2(1)(b) states, “A person commits murder in
the first degree when the person commits murder under any of the
following circumstances . . . . The person kills another person while
participating in a forcible felony.” Iowa Code § 707.2(1)(b) (2015). 3 This
definition of first-degree murder is known as the felony-murder rule, and
it “began as a common-law doctrine of criminal law that any death
resulting from the commission or attempted commission of a felony
constitutes murder.” State v. Tribble, 790 N.W.2d 121, 124 (Iowa 2010).
“Felonies that have historically been used to support application of the
felony-murder doctrine are those that are particularly serious or
inherently dangerous.” Id. In Iowa, the legislature has specified which
felonies are classified as a “forcible felony” under the felony-murder rule
in section 702.11(1). A forcible felony includes “any felonious child
endangerment, assault, murder, sexual abuse, kidnapping, robbery,
human trafficking, arson in the first degree, or burglary in the first degree.”
Iowa Code § 702.11(1).
The felony-murder rule aims to deter people from committing those
felonies the legislature has deemed inherently dangerous to the life of
others. See Tribble, 790 N.W.2d at 127. To promote deterrence, the rule
transforms those felonies “into first-degree murder if a person is killed in
the course of the felony, even though the felon had no specific intent or
2The State argues that Harrison did not preserve error on this issue since he
waited to raise it until after the State had presented its case on the felony-murder theory.
We assume error is preserved without addressing this challenge.
3Though Harrison was convicted in 2016, there has been no change in the felony-
murder statute since the time of his trial. See Iowa Code § 707.2(1)(b) (2016).
15
premeditation otherwise necessary to elevate the killing of another into
first-degree murder.” Id. at 127–28. Consequently,
[w]hen a person engages in conduct dangerous enough to be
identified by our legislature as a predicate felony for felony
murder, the elements of the felony-murder statute are
satisfied if the person also engages in an act causing death
while participating in the dangerous conduct.
Id. at 126. “In other words, our legislature adopted felony murder to deter
the commission of felonies, but not by totally eliminating the relationship
between criminal intent and criminal liability.” Id. at 128.
In contrast to first-degree murder under section 707.2(1)(a), which
requires a showing that the defendant “willfully, deliberately, and with
premeditation kills another person,” first-degree murder under the felony-
murder rule only requires a showing that the defendant acted with the
specific intent to commit the predicate felony that led to the killing.
Compare Iowa Code § 707.2(1)(a), with id. § 707.2(1)(b). This difference
between the intent required for premeditated murder and felony murder
has produced confusion and a lack of conformity in the way our court and
other courts have explained the felony-murder rule in the past. For
example, Harrison notes that our court previously stated in State v.
Heemstra, that the elements of premeditated murder under section
707.2(1)—namely that the murder was committed “willfully, deliberately,
and with premeditation”—“are presumed to exist if the State proves
participation in the underlying forcible felony” for a charge of felony
murder. 721 N.W.2d 549, 554 (Iowa 2006) (quoting Iowa Code § 707.2(1)
(2001)). Harrison capitalizes on this language in his argument that the
felony-murder rule creates a conclusive presumption that the defendant
committed the killing with malice aforethought in violation of the Due
Process Clauses of the Iowa and United States Constitutions.
16
The Fifth and Fourteenth Amendments of the United States
Constitution, and Article I, section 9 of the Iowa Constitution, prohibit the
state from depriving any person of “life, liberty, or property, without due
process of law.” U.S. Const. amends. V, XIV; Iowa Const. art. I, § 9. “ ‘Due
process requires fundamental fairness in a judicial proceeding,’ so a trial
that is fundamentally unfair violates the guarantees of due process in the
United States and Iowa Constitutions.” More v. State, 880 N.W.2d 487,
499 (Iowa 2016) (quoting State v. Becker, 818 N.W.2d 135, 148 (Iowa
2012), overruled on other grounds by Alcala, 880 N.W.2d at 708 & n.3).
“[T]he Due Process Clause protects the accused against conviction except
upon proof beyond a reasonable doubt of every fact necessary to constitute
the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90
S. Ct. 1068, 1073 (1970). We have recognized that “a mandatory
presumption violates the due process clause because it undermines the
fact finder’s responsibility to find the ultimate facts beyond a reasonable
doubt.” State v. Winders, 359 N.W.2d 417, 419 (Iowa 1984). “[T]his
presumption would conflict with the overriding presumption of innocence
with which the law endows the accused and which extends to every
element of the crime.” Sandstrom v. Montana, 442 U.S. 510, 522, 99 S. Ct.
2450, 2458 (1979) (emphasis omitted) (quoting Morissette v. United States,
342 U.S. 246, 275, 72 S. Ct. 240, 256 (1952)).
We have previously addressed a due process challenge like the one
Harrison now makes regarding the alleged presumptions incorporated in
the felony-murder rule, as well as application of the felony-murder rule to
defendants who were convicted of felony-murder for aiding and abetting a
felony. See generally Conner v. State, 362 N.W.2d 449 (Iowa 1985).
Similar to this case, the defendant in Conner claimed “that conclusively
attributing malice aforethought to him in relation to the killing, merely
17
from his participation in the underlying felony,” violated his right to due
process under the Fourteenth Amendment of the United States
Constitution. Id. at 455. Like Harrison, the defendant argued that the
felony-murder rule creates an unconstitutional presumption that takes
the burden off the state to prove the requisite culpability for murder. Id.
at 456. We rejected this argument, holding it was “misplaced” because
“[a]ccomplice liability . . . is a matter of substantive law that places
responsibility on a wrongdoer for the direct and indirect consequences of
his joint criminal conduct with another.” Id.; see also State v. Nowlin, 244
N.W.2d 596, 604–05 (Iowa 1976) (“The felony-murder statute does not
relieve the State of the burden of proving essential elements of first-degree
murder. The elements [of willfulness, deliberation, and premeditation]
alleged by defendant to be essential are not essential [to felony murder].”).
Finally, we exclaimed, “The State, through the enactment of laws, has a
right to prescribe the nature of the acts that constitute criminal conduct.”
Conner, 362 N.W.2d at 456.
Despite our rejection of Harrison’s argument in Conner, Harrison
argues Conner is not controlling because we did not decide Conner under
the Iowa Constitution, it did not involve a juvenile offender, and it directly
contradicts our recognition in Heemstra of the presumptions inherent to
the felony-murder rule. While we acknowledge our court previously stated
in Heemstra that the felony-murder rule presumes the defendant
committed the killing with malice, we were not speaking to the
constitutional issue now raised. See 721 N.W.2d at 554. As such, that
language is not controlling in this case.
The felony-murder rule does not create a conclusive presumption
that the defendant committed the murder “willfully, deliberately, and with
premeditation,” because these are not elements of first-degree felony
18
murder in Iowa. Nowlin, 244 N.W.2d at 604–05. The substantive statutory
definition of first-degree felony murder in Iowa does not include these
elements since the state is only required to show the specific intent to
commit the predicate felony rather than show the defendant acted with
premeditation and deliberation to commit murder. See Iowa Code
§ 707.2(1)(b). This is a substantive rule of law in Iowa and not simply an
evidentiary shortcut to find malice or a presumption that malice existed
on the part of the defendant. Consequently, whether the defendant acted
“willfully, deliberately, and with premeditation” is wholly irrelevant when
the defendant is charged with felony murder, regardless of the dicta
Harrison cites from Heemstra. “In that event the ‘conclusive presumption’
is no more than a procedural fiction that masks a substantive reality, to
wit, that as a matter of law malice is not an element of felony murder.”
People v. Dillon, 668 P.2d 697, 717 (Cal. 1983) (en banc). Therefore, it does
not follow that the felony-murder rule violates the Due Process Clauses of
the Iowa or United States Constitutions by creating a conclusive and
unconstitutional presumption about the defendant’s intent to commit
murder. Our ruling is supported by a number of other states, which have
likewise considered and rejected claims that the felony-murder rule
violates due process because it creates an unconstitutional presumption
that the defendant committed the killing with malice aforethought. 4
4See, e.g., State v. Herrera, 859 P.2d 131, 140 (Ariz. 1993) (en banc) (rejecting a
constitutional challenge to the Arizona felony-murder rule that claimed the rule
unconstitutionally presumed the defendant’s intent to kill based on the intent to commit
the underlying felony); Dillon, 668 P.2d at 717–18 (holding the felony-murder rule does
not create a conclusive presumption of the existence of an element of the crime in
violation of the Due Process Clause of the Fourteenth Amendment since malice
aforethought is not an element of felony murder); State v. Goodseal, 553 P.2d 279, 286
(Kan. 1976) (holding the felony-murder rule did not constitute cruel and unusual
punishment or the denial of equal protection and due process since “it is to protect
human life, represents sound public policy, is reasonably related to the end sought to be
accomplished and is not constitutionally impermissible”), overruled on other grounds by
19
By asking us to rely on a procedural fiction to hold that the felony-
murder rule creates an unconstitutional presumption about the intent of
juvenile offenders, Harrison is essentially asking us to implement greater
due process rights for juvenile offenders than adult offenders. Harrison is
right that we have recognized that “children are constitutionally different
from adults,” Seats, 865 N.W.2d at 556 (quoting Miller, 567 U.S. at 471,
State v. Underwood, 615 P.2d 153, 162–63 (Kan. 1980); Evans v. State, 349 A.2d 300,
329–30, 336–37 (Md. Ct. Spec. App. 1975) (holding the felony-murder rule did not violate
due process because it is not a “mere pale reflection[ ] of willful, deliberate, and
premeditated killing” since it has a different substantive definition of murder);
Commonwealth v. Watkins, 379 N.E.2d 1040, 1049 (Mass. 1978) (The felony-murder rule
is not unconstitutional under the Fourteenth Amendment because “[t]he Commonwealth
is not, pursuant to the operation of the felony-murder rule, ‘relieved’ of its duty prescribed
by the United States Supreme Court in In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25
L. Ed 2d 368 (1970), of proving every fact necessary to the crime as charged beyond a
reasonable doubt. Nor is the burden of proof as to an element of the crime charged
‘affirmatively shifted’ from the Commonwealth to the defendant as prohibited by the
Supreme Court in Mullaney v. Wilbur, 421 U.S. 684, 701, 95 S. Ct. 1881, 44 L. Ed. 2d
508 (1975).”); State v. Burkhart, 103 P.3d 1037, 1046–47 (Mont. 2004) (holding the felony-
murder rule does not violate due process since intent to kill is not an element of the crime
under the felony-murder rule); State v. Bradley, 317 N.W.2d 99, 101–02 (Neb. 1982)
(rejecting defendant’s argument that the felony-murder rule conclusively presumes
malice from the criminal intention to commit certain felonies and therefore violates “the
rule against irrebuttable presumptions [as] stated in Mullaney v. Wilbur, 421 U.S. 685,
96 S. Ct. 1881 . . . (1975)”); State v. Campos, 921 P.2d 1266, 1272 (N.M. 1996) (“[T]he
felony-murder doctrine in New Mexico does not abandon the mens rea requirement for
murder, nor does it create a presumption that a defendant had intended to kill whenever
a homicide occurs during the course of a felony. Our felony-murder rule only serves to
raise second-degree murder to first-degree murder when the murder is committed in the
course of a dangerous felony.” (Citation omitted.)); State v. Swift, 226 S.E.2d 652, 668–
69 (N.C. 1976) (holding the felony-murder rule does not involve any presumption of
premeditation and deliberation that would violate the Due Process Clause of the
Fourteenth Amendment because those are not elements of the crime of felony murder);
Gore v. Leeke, 199 S.E.2d 755, 757 (S.C. 1973) (holding the felony-murder rule did not
violate the Due Process Clauses of the South Carolina and Federal Constitutions because
it does not create a conclusive presumption of malice that would allow the “defendant to
be convicted of murder without the State’s proving the element of malice beyond a
reasonable doubt”); State v. Wanrow, 588 P.2d 1320, 1325 (Wash. 1978) (en banc) (“The
argument that the felony-murder presumes the existence of intent to kill misconstrues
the nature of the felony-murder rule and must be rejected.”), superseded by statute as
recognized in In re Pers. Restraint of Andress, 56 P.3d 981, 984, 988 (Wash. 2002); State
ex rel. Peacher v. Sencindiver, 233 S.E.2d 425, 426–27 (W. Va. 1977) (rejecting a
constitutional challenge to the felony-murder rule under the Due Process Clauses
because the felony-murder rule does not require a showing of malice and therefore does
not create a presumption that defendant committed the killing with malice).
20
132 S. Ct. at 2464), for sentencing purposes due to “the features of
youthful behavior, such as ‘immaturity, impetuosity, and failure to
appreciate risks and consequences.’ ” Lyle, 854 N.W.2d at 404 n.10
(quoting Miller, 567 U.S. at 477, 132 S. Ct. at 2468). Yet, we have never
held or implied that these constitutionally recognized differences require
our court or the legislature to transform the elements of any given offense
to account for these differences. Harrison seeks to expand the scope of our
juvenile sentencing jurisprudence far beyond its rational reach.
“Harm to a victim is not lessened because of the young age of an
offender.” Propps, 897 N.W.2d at 102. “[W]hile youth is a mitigating factor
in sentencing, it is not an excuse.” Lyle, 854 N.W.2d at 398 (quoting Null,
836 N.W.2d at 75). Consequently, our “constitutional analysis is not about
excusing juvenile behavior, but imposing punishment in a way that is
consistent with our understanding of humanity today.” Propps, 897
N.W.2d at 102 (quoting Lyle, 854 N.W.2d at 398). We do this by providing
juveniles with an individualized sentencing process that incorporates a
number of mitigating factors associated with “the features of youthful
behavior.” Lyle, 854 N.W.2d at 404 n.10; see also Zarate, 908 N.W.2d at
855–56. Nevertheless,
the State has a legitimate interest in holding persons
responsible for their criminal acts. When those acts are
particularly serious, as in the case of forcible felonies, it is
logical that the State would assign grave consequences to
them . . . . “Having placed certain designated crimes
committed by juveniles who have reached the age of sixteen
within the criminal court jurisdiction, the legislature
presumably thought the need for adult discipline and legal
restraint was necessary in these cases.”
State v. Mann, 602 N.W.2d 785, 792–93 (Iowa 1999) (quoting State v. Terry,
569 N.W.2d 364, 367 (Iowa 1997)).
21
Harrison does not provide us with any reason for further intruding
upon the role of the legislature to expand our juvenile sentencing
jurisprudence to hold that juvenile offenders cannot be tried for certain
crimes altogether due to their mens rea requirements. No other state that
has considered this issue has abolished the application of the felony-
murder rule to juvenile offenders. 5 Moreover, despite the controversy
surrounding the felony-murder rule, few states have actually abolished the
felony-murder rule, and one of these states has only abrogated the
common law felony-murder rule as opposed to a statutory version. 6
Notably, with the exception of Michigan, those states that have abolished
the use of the felony-murder rule have done so through statutes enacted
by their state legislatures as opposed to judicial abrogation.
5California is the only state we are aware of that has considered abolishing the
application of the felony-murder rule to juvenile offenders on constitutional grounds. This
was based on the argument that juvenile offenders cannot foresee the consequences of
their actions. A California Court of Appeal rejected this argument. People v. Richardson,
No. A134783, 2013 WL 2432510, at *5 (Cal. Ct. App. June 4, 2013) (rejecting a juvenile
offender’s argument that his conviction for felony murder violated his due process rights
because his age rendered him incapable of foreseeing the consequences of his decision to
participate in a robbery and noting that “[w]here, as in this case, the killing occurred
during the course of an independent felony (robbery), Richardson’s participation in the
commission of that crime made him liable for the murder committed during the course
of the robbery, even if the killing was not a natural, reasonable, or probable consequence
of that crime”).
6See Haw. Rev. Stat. Ann. § 707–701 (West, Westlaw through Act II of the 2018
Reg. Sess.) (first-degree murder requires the actor to commit the killing “intentionally and
knowingly”); Ky. Rev. Stat. Ann. § 507.020 (West, Westlaw through Chs. 74, 96–154, 158–
164, & 170 of 2018 Reg. Sess.) (first-degree murder requires “intent to cause the death
of another person”); Ohio Rev. Code Ann. § 2903.01(B) (West, Westlaw through File 66 of
132d Gen. Assemb. (2017–2018)) (requiring a person to “purposely” cause the death of
another during the course of a felony in order for the crime to meet the definition of
aggravated murder); People v. Aaron, 299 N.W.2d 304, 328–29 (Mich. 1980) (“We conclude
that Michigan has no statutory felony-murder rule which allows the mental element of
murder to be satisfied by proof of the intention to commit the underlying felony. Today
we exercise our role in the development of the common law by abrogating the common-
law felony-murder rule.”).
22
Further, Harrison misrepresents the felony-murder rule in his
argument that it is premised on the ability to foresee danger. Though the
inherent dangerousness of the forcible felonies encompassed within the
felony-murder rule may make certain killings foreseeable, the felony-
murder rule encompasses unforeseeable crimes. The premise of the rule
is that there are certain felonies that “are so inherently dangerous that
proof of participating in these crimes may obviate the need for showing all
of the elements normally required for first-degree murder.” Heemstra, 721
N.W.2d at 554. Robbery, especially armed robbery, requires the use of
force and is “so inherently dangerous” that participating in it as the
principal or aider and abettor in the manner that Harrison did carries with
it an undeniable prospect of grave harm to the life of others. See Conner,
362 N.W.2d at 456.
The fact that killing was not within the actual contemplation
and intention of one of the parties to the robbery does not
relieve such person of the responsibility as long as the other
party to the robbery had the necessary mens rea and the act
was a consequence of carrying out the unlawful common
design.
Id. at 455. Thus, foreseeability is irrelevant to the felony-murder rule, and
Harrison’s alleged inability to foresee the consequences of his decision to
participate in a robbery is likewise irrelevant to his conviction.
Finally, Harrison’s contentions that he could not foresee the
consequences of his decision to participate in a robbery, or that he could
not control his impulses even if he could foresee the consequences, are
irreconcilable with his admitted role in the commission of the robbery.
Harrison admitted that he knew Collins was going to commit a “lick” when
Harrison knowingly accompanied him to Hickman Lane that day.
Harrison then lured McHenry to Collins and used force against him to help
Collins carry out the robbery. By participating in robbery—a forcible
23
felony that the Iowa legislature has deemed inherently dangerous to
human life—Harrison became liable for any killing committed in the
commission of that offense by him or Collins. While there may be a unique
factual situation in which the felony-murder rule is unconstitutional as
applied to a certain juvenile offender, this is not that case. Therefore, we
decline to hold that the felony-murder rule is fundamentally unfair or that
it violates due process under the Iowa or United States Constitutions when
applied to juvenile offenders pursuant to a theory of aiding and abetting.
C. Sentencing Juveniles Convicted Under the Felony-Murder
Rule. Harrison presents both an as-applied and categorical constitutional
challenge to his sentence of life imprisonment with immediate parole
eligibility. Harrison argues that the sentence of life imprisonment with the
possibility of immediate parole for juvenile offenders convicted of first-
degree murder as an accomplice to felony murder constitutes cruel and
unusual punishment under the Iowa and United States Constitutions.
Further, Harrison claims his sentence of life imprisonment with the
possibility of immediate parole is “grossly disproportionate to [his]
ultimate[ ] culpability” since he “did not personally murder any individual,
[and] no evidence was presented that he knew a murder would happen or
was likely to happen.”
1. Categorical challenge. We analyze categorical challenges to a
sentence through a two-step inquiry. Lyle, 854 N.W.2d at 386. We first
review “ ‘objective indicia of society’s standards, as expressed in legislative
enactments and state practice’ to determine whether there is a national
consensus against the sentencing practice at issue.” Id. (quoting Graham,
560 U.S. at 61, 130 S. Ct. at 2022). Next, we examine “our controlling
precedents and our interpretation of the Iowa Constitution’s text, history,
meaning, and purpose to guide our own independent judgment on the
24
constitutionality of the challenged sentence.” Zarate, 908 N.W.2d at 843.
We also assess “the culpability of the offenders at issue in light of their
crimes and characteristics, along with the severity of the punishment in
question,” as well as whether the sentencing practice furthers legitimate
penological goals. Lyle, 854 N.W.2d at 386 (quoting Graham, 560 U.S. at
67, 130 S. Ct. at 2026).
First, there is not a national consensus against sentencing juvenile
offenders convicted of felony murder as the principal or accomplice to life
imprisonment with immediate parole eligibility, and Harrison
acknowledges this. In fact, he “is not aware of any state that has
categorically held that life with the possibility of parole should be
categorically prohibited for juveniles convicted of felony murder.” 7 The
7We are also not aware of any state that has considered a categorical challenge to
the specific sentence of life imprisonment with immediate parole eligibility for a juvenile
offender convicted under the felony-murder rule. One state, North Carolina, has similarly
considered a constitutional challenge to the sentence of life with the possibility of parole
after a prison term of twenty-five years for a juvenile offender convicted under the felony-
murder rule. See State v. Jefferson, 798 S.E.2d 121, 122–23 (N.C. Ct. App. 2017). The
North Carolina Court of Appeals upheld the constitutionality of the sentence as applied
to the defendant, noting it was “neither an explicit nor a de facto term of life imprisonment
without parole.” Id. at 125.
A few other states have considered the constitutionality of lengthy term of years
sentences or sentences of life imprisonment for juvenile offenders convicted under the
felony-murder rule. Those states have declined to find such sentences are categorically
unconstitutional. See Bell v. State, No. CR 10–1262, 2011 WL 4396975, at *2–3 (Ark.
Sept. 22, 2011) (rejecting defendant’s petition for recall and resentencing involving his
sentence to two consecutive life sentences for his convictions on two counts of first-degree
murder committed as an accomplice when he was sixteen years old and that
“[n]otwithstanding his claim that he was only an accomplice, we have held that there is
no distinction between principals on the one hand and accomplices on the other, insofar
as criminal liability is concerned”); People v. Jordan, No. D064010, 2016 WL 6996216, at
*14 (Cal. Ct. App. Nov. 30, 2016) (upholding the twenty-five-year-to-life sentence of
juvenile offenders convicted of felony murder noting other California appellate courts
“have rejected arguments by juvenile offenders that a sentence for first degree murder
violates the proportionality principle of the California Constitution even though the
defendant was not the person who committed the killing, when the defendant knowingly
participated in a serious crime that led to the murder”); Arrington v. State, 113 So. 3d 20,
27–28 (Fla. Dist. Ct. App. 2012) (declining to adopt a categorical rule prohibiting the
sentence of life imprisonment without the possibility of parole for juvenile offenders
convicted under the felony-murder rule); State v. Ali, 855 N.W.2d 235, 258–59 (Minn.
25
national consensus remains in favor of subjecting juvenile offenders
convicted of first-degree murder under the felony-murder rule—regardless
of whether an offender was aiding and abetting or the principal actor—to
the same sentencing options as juvenile offenders convicted of
premeditated first-degree murder. 8
2014) (noting the constitutionality of life sentences for juveniles convicted of felony
murder); cf. Dillon, 668 P.2d at 700–01, 727 (holding a seventeen year-old’s sentence of
life imprisonment for felony murder was unconstitutional as applied where the offender
fatally shot his victim out of fear for his life in the course of trying to steal marijuana
plants from the victim’s farm when the victim—who had previously made threats about
shooting the defendant for being on his property—began approaching the defendant with
a shotgun in his possession.
8A sampling of the sentencing statutes of other states reveals that most states do
not distinguish between premeditated murder and felony murder for the purpose of
sentencing juvenile or adult offenders. See, e.g., Ala. Code § 13A-6-2 (Westlaw through
Act 2018–579) (classifying felony murder as first-degree murder and codifying the
punishment for juvenile offenders who commit murder to be either life imprisonment
without parole or life); Alaska Stat. Ann. § 11.41.100(a)(2)–(5) (West, Westlaw through ch.
7 of 2018 2d Reg. Sess.) (classifying felony murder as first-degree murder); id.
§ 12.55.125(b) (treating all types of first-degree murder the same for sentencing
purposes); Ariz. Rev. Stat. Ann. § 13-1105(A)(2) (Westlaw through May 18, 2018 of 2d
Reg. Sess.) (classifying felony murder as a form of first-degree murder); id. § 13-751(A)(2)
(A juvenile offender convicted of first-degree murder “shall be sentenced to imprisonment
in the custody of the state department of corrections for life or natural life.”); Ark. Code
Ann. § 5-10-101 (West, Westlaw through Acts 1–3, 5, 11, 12 & 13 from 2018 2d
Extraordinary Sess.) (designating felony murder a capital offense and mandating any
defendant under eighteen “at the time he or she committed the capital murder [be
sentenced to] life imprisonment with the possibility of parole after serving a minimum of
thirty (30) years’ imprisonment”); Del. Code Ann. tit. 11, § 636 (classifying felony murder
as murder in the first degree) (West, Westlaw through 81 Laws 2018, chs. 200–253);
id. 4209A (All juvenile offenders who are convicted of first-degree murder “shall be
sentenced to term of incarceration not less than 25 years to be served at Level V up to a
term of imprisonment for the remainder of the person’s natural life to be served at Level
V without benefit of probation or parole or any other reduction.”); Ga. Code Ann. § 17-
10-6.1(a)(1), (c)(1) (West, Westlaw through Act 562 of 2018 Leg. Sess.) (listing “[m]urder
or felony murder” as “serious violent felon[ies]” for which adult and juvenile offenders can
be sentenced to life imprisonment with a minimum term of thirty years in prison before
any form of parole eligibility is available); Idaho Code Ann. § 18–4004 (West, Westlaw
through 2018 2d Reg. Sess.) (“[E]very person guilty of murder of the first degree shall be
punished . . . by imprisonment for life.”); id. § 18–4003(d) (classifying felony murder as
first-degree murder); La. Stat. Ann. § 14:30(A) (Westlaw through 2018 1st Extraordinary
Sess.) (defining first-degree murder, which includes felony murder); id. § 15:574.4(E)(1)(a)
(A juvenile offender convicted of first-degree murder may become parole eligible after
“[t]he offender has served twenty-five years of the sentence imposed”); Nev. Rev. Stat.
Ann. § 200.030 (West, Westlaw through 2017 Reg. Sess.)) (classifying felony murder as
26
In addition to the national consensus in favor of treating felony
murder and premeditated murder the same for sentencing purposes, there
are objective indicia that the Iowa legislature has adopted this standard
regarding the challenged sentencing practice. “Legislative judgments can
be ‘the most reliable objective indicators of community standards for
purposes of determining whether a punishment is cruel and unusual.’ ”
Lyle, 854 N.W.2d at 388 (quoting State v. Bruegger, 773 N.W.2d 862, 873
(Iowa 2009)). The legislature is aware of the different forms of first-degree
murder, yet it has declined to treat them differently for sentencing
purposes. This legislative decision to require mandatory life imprisonment
with the possibility of immediate parole for juvenile offenders convicted of
either premeditated murder or felony murder is indicative of a consensus
in Iowa in favor of the challenged sentencing practice.
Despite the fact that there is no national consensus in opposition to
the challenged sentencing practice based on the laws of other states,
Harrison asks us to consider “that many legal scholars throughout the
first-degree murder and subjecting defendants convicted of first-degree murder to a
minimum sentence of twenty years imprisonment before parole eligibility); Tex. Penal
Code § 19.03 (West, Westlaw through 2017 Reg. & 1st Called Sess.) (including “capital
felony” in the definition of “capital murder”); id. § 12.31(1) (“An individual adjudged guilty
of a capital felony in a case in which the state does not seek the death penalty shall be
punished by imprisonment in the Texas Department of Criminal Justice for: (1) life, if the
individual committed the offense when younger than 18 years of age.).
North Carolina is the only state we are aware of that differentiates between
premeditated and felony murder for juvenile sentencing purposes. Under this statute,
an offender convicted of first-degree murder under the felony-murder rule shall be
sentenced “to life imprisonment with parole.” N.C. Gen. Stat. Ann. § 15A-1340.19B(a)(1)
(West, Westlaw through 2017 Reg. Sess.). For juvenile offenders, “ ‘life imprisonment
with parole’ shall mean that the defendant shall serve a minimum of 25 years
imprisonment prior to becoming eligible for parole.” Id. § 15A-1340.19A. Meanwhile, a
defendant convicted of premeditated first-degree murder “should be sentenced to life
imprisonment without parole . . . or a lesser sentence of life imprisonment with parole.”
Id. § 15-1340.19B(a)(2). Nevertheless, this sentencing scheme still requires juvenile
offenders in North Carolina to serve a definite term of imprisonment that exceeds
Harrison’s sentence of life imprisonment with immediate parole eligibility.
27
country have not only routinely held that the felony murder rule is
improper, but have specifically argued for the abolishment of the felony
murder rule as applied to juveniles.” Nevertheless, much of the scholarly
criticism—including from some of the legal scholars Harrison cites—of
applying the felony-murder rule to juveniles focuses on the sentence of life
without parole that many jurisdictions impose on juveniles convicted of
felony murder. See, e.g., Steven A. Drizin & Allison McGowen Keegan,
Abolishing the Use of the Felony-Murder Rule When the Defendant Is a
Teenager, 28 Nova L. Rev. 507, 536, 541 (2004) (noting “it is debatable as
to whether we should ease the prosecution’s burden for a crime that can
carry the death penalty or life without possibility of parole, and especially
debatable when child defendants are involved and concluding that
juveniles “convicted of felony murder should be exempted from the
sentence of life without the possibility of parole”); Erin H. Flynn, Comment,
Dismantling the Felony-Murder Rule: Juvenile Deterrence and Retribution
Post-Roper v. Simmons, 156 U. Pa. L. Rev. 1049, 1068 (2008) (“If convicted
of a felony-murder charge, juveniles are often subject to corresponding
mandatory sentencing laws that remove a judge’s discretion to account for
a juvenile offender’s individual characteristics and his level of threat to
public safety.”). We already quashed these concerns surrounding
sentencing juveniles convicted of felony murder to life imprisonment
without parole in Sweet where we held sentencing juvenile offenders to life
imprisonment without the possibility of parole violates the Iowa
Constitution. See Sweet, 879 N.W.2d at 839.
While there is not a national consensus against the sentencing
practice at issue, this does not end our inquiry into Harrison’s categorical
challenge to sentencing juvenile offenders convicted of felony murder to
life imprisonment with immediate parole eligibility. We still must “consider
28
our controlling precedents and our interpretation of the Iowa
Constitution’s text, history, meaning, and purpose to guide our own
independent judgment on the constitutionality of the challenged
sentence.” Zarate, 908 N.W.2d at 843. Likewise, we must “evaluate
whether the challenged sentencing practice serves legitimate penological
goals.” Id. This also requires us to examine “the culpability of the
offenders at issue in light of their crimes and characteristics along with
the severity of the punishment in question.” Lyle, 854 N.W.2d at 386
(quoting Graham, 560 U.S. at 67, 130 S. Ct. at 2026).
“We seek to interpret our constitution consistent with the object
sought to be obtained at the time of adoption as disclosed by the
circumstances.” Chiodo v. Section 43.24 Panel, 846 N.W.2d 845, 851 (Iowa
2014). Nevertheless, “originalism may not be the best guide for
interpreting our constitution’s cruel and unusual punishment clause in
light of the changes to juvenile sentencing” since “juveniles over the age of
fourteen were tried and sentenced as adults when our constitution was
adopted.” Zarate, 908 N.W.2d at 846. Yet, an analysis of our own juvenile
sentencing jurisprudence supports sentencing juvenile offenders
convicted of felony murder to life imprisonment with immediate parole
eligibility.
Both our juvenile sentencing jurisprudence and that of the United
States Supreme Court centers around the “fundamental and virtually
inexorable difference between juveniles and adults for the purposes of
punishment.” Lyle, 854 N.W.2d at 393. Because of this difference,
“juveniles convicted of crimes must be afforded a ‘meaningful opportunity
to obtain release based on demonstrated maturity and rehabilitation.’ ”
Louisell, 865 N.W.2d at 602 (quoting Graham, 560 U.S. at 75, 130 S. Ct.
at 2030). Nevertheless, Harrison does not argue as part of his categorical
29
challenge that the sentence of life imprisonment with the immediate
possibility of parole for juvenile offenders convicted of felony murder
denies these offenders “a ‘meaningful opportunity to obtain release based
on demonstrated maturity and rehabilitation.’ ” 9 Id. Rather, he largely
repeats the same argument he made with regard to banning the
application of the felony-murder rule to juveniles—namely, that “juveniles
lack the ability to form the proper foreseeability, lack the appreciation of
consequences, and are highly impulsive.” However, we held in Propps that
“[t]he constitutional analysis is not about excusing juvenile behavior, but
imposing punishment in a way that is consistent with our understanding
of humanity today.” Propps, 897 N.W.2d at 102 (alteration in original)
(quoting Lyle, 854 N.W.2d at 398).
Thus, in our previous juvenile sentencing cases, “we sought to
eliminate the mandatory nature of mandatory minimums and sentences
that were the functional equivalent of life without parole because those
sentences did not offer juveniles a ‘meaningful opportunity’ to demonstrate
their rehabilitation before the parole board.” Id. at 101. Consequently,
unlike the mandatory life without parole that adults who commit first-
degree murder are subject to, there is no mandatory minimum term of
confinement for juvenile offenders convicted of first-degree murder.
Compare Iowa Code § 902.1(1) (2016), with id. § 902.1(2)(a)(2)–(3).
Likewise, Iowa provides juvenile offenders convicted of first-degree murder
“with an individualized sentencing hearing that takes into account their
youth and a number of other mitigating factors that provide juveniles with
9Harrison does argue along these lines in his reply brief regarding his as-applied
challenge. Specifically, Harrison notes that he is eligible for parole under his current
sentence, but “the ability of parole appears to be a legal fiction more than a real
opportunity.” Thus, we will address that argument as part of his as-applied challenge.
30
more leniency in the sentencing process.” Zarate, 908 N.W.2d at 846.
Compare Iowa Code § 902.1(1), with id. § 902.1(2)(b)(2)(a)–(v).
Similarly, the parole board provides juvenile offenders with “an
individualized analysis that considers the juvenile’s past, in addition to
current psychiatric and psychological evaluations, the time already served
on the sentence, any reports of misconduct or good behavior, and the
inmate’s attitude and behavior while incarcerated.” Propps, 897 N.W.2d
at 102; see also Iowa Code § 906.5(3). This individualized analysis allows
the parole board to take into account the culpability of the offender,
including the possibility that the offender was less culpable when he or
she was aiding and abetting the principal actor in a felony-murder
situation. We have repeatedly held that “the parole board [is] best situated
to discern which juvenile homicide offenders have benefited from
opportunities for maturation and rehabilitation.” Propps, 897 N.W.2d at
102.
Unlike a sentencing judge, “[t]he parole board has the benefit of
seeing the individual offender’s actual behavior, rather than having to
attempt to predict chances at maturity and rehabilitation based on
speculation.” Id. As a result, the parole board may decide to continue
confinement of the juvenile “[i]f rehabilitation has not yet occurred” until
he or she “has demonstrated through his or her own actions the ability to
appreciate the severity of the crime.” Id. “This is consistent with the
approach of our prior holdings in the area of juvenile sentencing, because
it allows for a realistic and meaningful opportunity for parole upon the
juvenile’s demonstration of maturity and rehabilitation.” Id.
“In addition to our understanding and interpretation of the Iowa
Constitution, we also consider whether the challenged sentencing practice
serves legitimate penological goals and the culpability of the offender at
31
issue.” Zarate, 908 N.W.2d at 847. We traditionally take into account the
penological goals of rehabilitation, retribution, deterrence, and
incapacitation. Id. Nevertheless, rehabilitation is the primary
consideration in the juvenile sentencing context “due to the increased
capacity of juveniles to reform in comparison to adults.” Id. In Zarate, we
held that the statutory juvenile sentencing options of life imprisonment
with the possibility of immediate parole, or life imprisonment with parole
eligibility after a minimum term of confinement, “align with our focus on
rehabilitation and allow sentencing judges to acknowledge the
fundamental concept of our juvenile sentencing jurisprudence that
children are different from adults and should be treated differently due to
their increased potential for rehabilitation.” Id.
Despite our emphasis on rehabilitation, juvenile sentences may still
aim to promote additional penological goals, including deterrence,
retribution, and incapacitation. We previously noted this in Roby,
explaining, “[I]t may be appropriate retribution to incarcerate a juvenile for
a short time without the possibility of parole. Additionally, a sentencing
judge could properly conclude a short term of guaranteed incarceration is
necessary to protect the public.” 897 N.W.2d at 142. Ultimately,
“[c]riminal punishment can have different goals, and choosing among
them is within a legislature’s discretion.” State v. Oliver, 812 N.W.2d 636,
646 (Iowa 2012) (alteration in original) (quoting Graham, 560 U.S. at 71,
130 S. Ct. at 2028).
Though Harrison is correct to note that deterrence and retribution
are less applicable to juveniles due to their diminished culpability, they
still carry “some weight depending on the circumstances of each case.”
Zarate, 908 N.W.2d at 854. As we declared in Propps, “[c]ompletely
eliminating the mandatory imposition of a prison term, even when the term
32
is indeterminate and the individual is immediately eligible for parole,
would not serve the proportionality concept we have addressed in our
previous juvenile sentencing cases.” 897 N.W.2d at 101. “While juveniles
may be more prone to reform and rehabilitation because of their age and
the attendant characteristics of youth, they must also understand the
severity of their actions.” Id. at 102. Frankly, the “[h]arm to [the] victim
is not lessened because of the young age of [the] offender.” Id. Thus,
“while youth is a mitigating factor in sentencing, it is not an excuse.” Lyle,
854 N.W.2d at 398 (quoting Null, 836 N.W.2d at 75).
Juvenile offenders who choose to participate in inherently
dangerous felonies, whether they are the principal actor or aid and abet
the felony, demonstrate a certain lack of maturity and impulse control that
particularly implicates the penological goals of incapacitation and
rehabilitation. “Nothing that the Supreme Court has said” or that we have
said “suggests trial courts are not to consider protecting public safety in
appropriate cases through imposition of significant prison terms.” Null,
836 N.W.2d at 75. Harrison is claiming that juveniles have uncontrollable
impulses due to their youth that limit their ability to appreciate the gravity
of their participation in an inherently dangerous felony. Importantly,
sentencing juvenile offenders in his position to life imprisonment with the
possibility of immediate parole takes this into account by allowing the
parole board to examine maturity and rehabilitation and provides such
offenders with a meaningful opportunity for release as soon as they meet
these goals.
Overall, “the legislature is in the best position to identify and adopt
legal protections that advance our constitutional recognition that ‘children
are different.’ ” Zarate, 908 N.W.2d at 851 (quoting Roby, 897 N.W.2d at
144). The legislature sought to prescribe “the most severe sentences for
33
[juvenile] offenders convicted of murder in the first degree,” including those
juveniles convicted under the felony-murder rule. Louisell, 865 N.W.2d at
600. We are not in a position to undermine those goals given that the
challenged sentencing practice aligns with our juvenile sentencing
jurisprudence by promoting legitimate penological goals and providing
juvenile offenders like Harrison with “a ‘meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation.’ ” Id. at 602
(quoting Graham, 560 U.S. at 75, 130 S. Ct. at 2030). Therefore, we hold
that sentencing juvenile offenders convicted of felony murder—whether
they were the principal actor or aided and abetted—to life imprisonment
with immediate parole eligibility is constitutional under both the Iowa
Constitution and the United States Constitution.
2. As-applied challenge. Harrison argues his sentence of life
imprisonment with the immediate possibility of parole is unconstitutional
as applied to him because it is grossly disproportionate to his ultimate
culpability. The Iowa and United States Constitutions both prohibit cruel
and unusual punishment. See U.S. Const. amend. VIII; Iowa Const. art.
I, § 17. This prohibition “embraces a bedrock rule of law that punishment
should fit the crime.” Bruegger, 773 N.W.2d at 872.
We use a three-prong test to determine whether a sentence is grossly
disproportionate under the Iowa and United States Constitutions. First,
we examine “whether the sentence being reviewed is ‘grossly
disproportionate’ to the underlying crime,” which “involves a balancing of
the gravity of the crime against the severity of the sentence.” Id. at 873.
This is the threshold question, and we do not inquire any further if the
challenged sentence does not appear grossly disproportionate based on
this balancing. Oliver, 812 N.W.2d at 650. If the threshold is met, we then
engage in the second step of our analysis in which we partake in an
34
intrajurisdictional analysis, comparing the challenged sentence to
sentences of other crimes in our jurisdiction. Bruegger, 773 N.W.2d at
873. Finally, we perform an interjurisdictional review, surveying the
sentences for similar crimes in other jurisdictions. Id.
As we engage in this three-part inquiry, we must keep in mind
certain general principles that help guide our determination of whether the
challenged sentence is grossly disproportionate. “The first is that we owe
substantial deference to the penalties the legislature has established for
various crimes.” Oliver, 812 N.W.2d at 650. Second, though we provide a
more demanding review of a defendant’s sentence for gross
disproportionality under the Iowa Constitution than available under the
United States Constitution, “it is rare that a sentence will be so grossly
disproportionate to the crime as to satisfy the threshold inquiry and
warrant further review.” Id. Third, “a recidivist offender is more culpable
and thus more deserving of a longer sentence than a first-time offender.”
Id. Finally, we analyze the facts of each case in reaching our threshold
determination because they “can ‘converge to generate a high risk of
potential gross disproportionality.’ ” Id. at 651 (quoting Bruegger, 773
N.W.2d at 884).
For instance, in Bruegger, we held that the defendant’s twenty-five
year prison sentence for statutory rape was susceptible to an as-applied
constitutional challenge because the unique features of the case
“converge[d] to generate a high risk of potential gross disproportionality—
namely, a broadly framed crime, the permissible use of preteen juvenile
adjudications as prior convictions to enhance the crime, and a dramatic
sentence enhancement for repeat offenders.” 773 N.W.2d at 868, 884. We
vacated his sentence and remanded the case for a new sentencing hearing
that considered the constitutionality of his sentence. Id. at 886.
 35
Meanwhile, we held a sentence of life in prison without the possibility of
parole for a defendant’s second conviction of third-degree sexual abuse
was not unconstitutional as applied to the defendant in Oliver. 812
N.W.2d at 651–53. In reaching this decision, we explained that the
defendant’s sexual exploitation of a minor who was twenty years younger
than him was precisely the kind of exploitation that third-degree sexual
abuse “was designed to prevent, not conduct that was inadvertently
caught by a broadly written statute.” Id. at 651.
Turning to the threshold inquiry, we cannot find that Harrison’s
sentence of life imprisonment with immediate parole eligibility for felony
murder is grossly disproportionate to the underlying crime. Unlike the
defendant in Bruegger, who committed an act “of lesser culpability” that
fell within the scope of “a broadly-framed statute,” felony murder does not
encompass “acts of lesser culpability” since every felony murder requires
a defendant’s participation in a forcible felony that directly leads to the
killing of the victim. Bruegger, 773 N.W.2d at 884; see Iowa Code
§ 707.2(1)(b). Harrison directly participated in a forcible felony as an aider
and abettor, which directly led to the death of Aaron McHenry. His actions
of luring the victim to Collins and physically shoving the victim to help set
up the “lick” that resulted in the murder of McHenry are exactly the type
of actions the felony-murder rule is meant to encompass. Though
Harrison maintains he did not know ahead of time that Collins had a gun,
Harrison was present when Collins shot McHenry, and he admitted he was
in on the plan to rob McHenry. He was not an unknowing participant in
the events that took place that day, and he showed no remorse during
sentencing for his actions, simply declaring to the court, “[I]t’s just crazy
how I can just be judged by people that don’t know what I’ve been through
in my life.” See State v. Knight, 701 N.W.2d 83, 88 (Iowa 2005) (“[A]
36
defendant’s lack of remorse is highly pertinent to evaluating his need for
rehabilitation and his likelihood of reoffending.”).
Moreover, his sentence does not involve “the permissible use of
preteen juvenile adjudications as prior convictions to enhance the crime
and a dramatic sentence enhancement for repeat offenders” like the
defendant in Bruegger. See Bruegger, 883 N.W.2d at 884. Harrison does
not argue that he was denied an individualized sentencing as required
under our juvenile sentencing jurisprudence. Because Harrison is a
juvenile offender, the district court was required to consider a number of
mitigating circumstances, including his culpability, “[t]he nature of the
offense,” “[t]he commission of the murder while participating in another
felony,” and “[t]he circumstances of the murder including the extent of the
defendant’s participation in the conduct and the way familial and peer
pressure may have affected the defendant.” Iowa Code § 902.1(2)(b)(2)(e),
(i), (s). Based on the sentencing court’s assessment of Harrison’s
participation in the felony murder, it sentenced him to the minimum
possible sentence for first-degree murder.
Further, the legislature’s decision to designate felony murder
committed by either the principal or aider and abettor as first-degree
murder reflects the seriousness of this offense. The legislature sought to
prescribe “the most severe sentences for [juvenile] offenders convicted of
murder in the first degree,” including those juveniles convicted under the
felony-murder rule. Louisell, 865 N.W.2d at 600. “[W]e owe substantial
deference to the penalties the legislature has established for various
crimes.” Oliver, 812 N.W.2d at 650. This conviction for first-degree
murder, as an aider or abettor under a felony-murder theory, is not the
rare case in which the unique features of the case “can ‘converge to
37
generate a high risk of potential gross disproportionality.’ ” Id. at 651
(quoting Bruegger, 773 N.W.2d at 884).
Finally, Harrison’s argument that his sentence denies him of a
meaningful opportunity for parole since “the ability of parole appears to be
a legal fiction more than real opportunity” is not ripe for adjudication. We
rejected similar arguments in both Louisell and Zarate since neither of
those defendants had actually been denied parole in order to claim a legal
violation. See Zarate, 908 N.W.2d at 847; Louisell, 865 N.W.2d at 601–02.
The same ripeness issue occurs in this case since Harrison’s claim is
merely speculative. He has yet to appear before the parole board, and he
does not provide any “basis for us to conclude that the parole board will
fail to follow the law in a case that is presented to it, including his own.”
Zarate, 908 N.W.2d at 848.
In conclusion, life imprisonment with immediate parole eligibility for
aiding and abetting in felony murder is not grossly disproportionate to the
seriousness of the offense given the fatal harm Harrison helped enact on
the life of another. Nevertheless, even if it were, Harrison’s argument
would fail under our intrajurisdictional and interjurisdictional analyses
since he received the most lenient punishment given to offenders convicted
of felony murder. See Iowa Code § 707.2; id. § 902.1. Likewise, as we
have noted previously, there is no national consensus against sentencing
juvenile offenders convicted of felony murder—as the principal actor or
aider and abettor—to life imprisonment with immediate parole eligibility.
Therefore, Harrison’s sentence of life imprisonment with immediate parole
eligibility does not constitute cruel and unusual punishment, either
categorically or as applied to Harrison.
D. Jury Instructions Regarding Robbery and the Felony-Murder
Rule. Harrison argues the jury instructions did not properly inform the
38
jury on the types of assault required to establish a felonious robbery. The
jury was provided the following definitional instruction of robbery:
A person commits a robbery when, having the specific intent
to commit a theft, the person commits an assault to assist or
further the commission of the intended theft or the person’s
escape from the scene thereof with or without the stolen
property.
The jury instructions also informed the jury on the definition of assault
through the standard model instruction for a simple misdemeanor
assault. 10 In 2016, approximately two years after Harrison committed the
robbery at issue, Iowa Code section 711.3A went into effect. This Code
section codified third-degree robbery—a misdemeanor that could not serve
as a predicate for felony murder. See [Iowa Code § 711.3A (2017)].
Harrison now argues this change in the Code should be applied to him
retroactively and the jury should have been instructed on the types of
assault that would constitute forcible felony robbery.
Iowa Code section 4.13(1) provides that “[t]he reenactment, revision,
amendment, or repeal of a statute does not affect . . . the prior operation
of the statute or any prior action taken under the statute.” Iowa Code
§ 4.13(1)(a). Section 4.13 “does not require that the characterization of
the crime of which [the defendant] is convicted be changed.” State v.
Chrisman, 514 N.W.2d 57, 63 (Iowa 1994). It is a well-settled law that
10Jury Instruction No. 28 defined “assault”:
An assault is committed when a person does an act which is intended to
either:
1. cause pain or injury to another person; or
2. result in physical contact which will be insulting or offensive to
another person; or
3. place another person in fear of immediate physical contact
which will be painful, injurious, insulting or offensive to the other
person when coupled with apparent ability to do the act.
39
substantive amendments to criminal statutes do not apply retroactively.
See, e.g., Nguyen v. State, 878 N.W.2d 744, 754–56 (Iowa 2016) (holding
both the Iowa and Federal Constitutions only require “retroactive
application of clarifications to existing substantive law, not changes to
substantive law”); Dindinger v. Allsteel, Inc., 860 N.W.2d 557, 563 (Iowa
2015) (“It is well established that a statute is presumed to be prospective
only unless expressly made retrospective.” (quoting Anderson Fin. Servs.,
LLC v. Miller, 769 N.W.2d 575, 578 (Iowa 2009)). Since third-degree
robbery did not exist in the Iowa Code at the time of Harrison’s offense,
Harrison was not entitled to a jury instruction differentiating between
felony robbery and misdemeanor robbery.
E. Ineffective-Assistance Claims. Harrison presents a number of
ineffective-assistance-of-counsel claims. Criminal defendants have the
right to effective assistance of counsel under both the Iowa Constitution
and the United States Constitution. U.S. Const. amend. VI; Iowa Const.
art. I, § 10. “Generally, claims of ineffective assistance of counsel are
preserved for postconviction relief proceedings.” State v. Soboroff, 798
N.W.2d 1, 8 (Iowa 2011). Preserving these claims for postconviction relief
allows the parties to develop an adequate record of the claims and provides
the attorney charged with ineffective assistance with the “opportunity to
respond to defendant’s claims.” Id. However, if “the record is adequate,
we may resolve the claim on direct appeal.” Id.
To prove ineffective assistance of counsel, the defendant must show
“by a preponderance of the evidence both that counsel failed an essential
duty and that the failure resulted in prejudice.” Schlitter, 881 N.W.2d at
388. Since the defendant must show both prongs of this test have been
met, we need not address the second prong regarding prejudice if the
defendant fails to establish the first prong. Nguyen, 878 N.W.2d at 754.
40
Crafting a trial strategy is inherently difficult, so we “must indulge a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged action
‘might be considered sound trial strategy.’ ” Id. at 752 (quoting Strickland
v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065 (1984)). In
accordance with this presumption, counsel fails his or her essential duty
by “perform[ing] below the standard demanded of a reasonably competent
attorney.” Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001).
Further, prejudice results from counsel’s failure to perform an
essential duty when “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 143 (quoting Strickland, 466 U.S. at 694, 104 S. Ct.
at 2068). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. (quoting Strickland, 466 U.S. at 694, 104
S. Ct. at 2068). To meet this standard, the defendant must show that,
“absent the errors, the fact finder would have had a reasonable doubt
respecting guilt.” Id. (quoting Strickland, 466 U.S. at 695, 104 S. Ct. at
2068).
1. Challenge to the use of felony robbery as a predicate felony. This
claim of ineffective assistance involves the jury instructions utilized by the
district court. Therefore, the record is adequate to resolve this claim on
direct appeal. See Soboroff, 798 N.W.2d at 8. The relevant jury
instructions at issue are as follows:
[a] person commits robbery when, having the specific intent
to commit a theft, the person commits an assault to assist or
further the commission of the intended theft or the person’s
escape from the scene thereof with or without the stolen
property.
....
41
An assault is committed when a person does an act which is
intended to either: 1. Cause pain or injury to another person;
or 2. Result in physical contact which will be insulting or
offensive to another person; or 3. Place another person in fear
of immediate physical contact which will be painful, injurious,
insulting or offensive to the other person when coupled with
the apparent ability to do the act.
“Under the merger doctrine, a person is only guilty of felony murder
if the act resulting in the predicate felony is independent of the act
resulting in death.” Tribble, 790 N.W.2d 128. We have never extended the
merger doctrine to hold that felony robbery cannot serve as the predicate
felony for felony-murder purposes. Nonetheless, Harrison claims his trial
counsel was ineffective by failing to request jury instructions requiring the
State to prove the felony robbery was an independent act from the murder.
Harrison reasons the merger doctrine should apply to his case because his
actions that caused the robbery were the same actions that caused the
victim’s death. Thus, to determine whether Harrison’s attorney failed an
essential duty by declining to request jury instructions on the merger
doctrine, we must examine the validity of Harrison’s merger argument.
Harrison premises his argument largely on our holding in Heemstra,
in which the defendant was convicted of first-degree murder under a
general verdict after the defendant shot and killed the victim during the
course of an argument. 721 N.W.2d at 551. In that case, the district court
instructed the jury on both premeditated murder and felony murder,
informing the jury that it was required to find either that “[t]he defendant
acted willfully, deliberately, premeditatedly, and with specific intent to kill”
the victim, or that the defendant participated in the felony of willful injury
as the predicate felony to murder. Id. at 552–53. On appeal, we held, “if
the act causing willful injury is the same act that causes the victim’s death,
the former is merged into the murder and therefore cannot serve as the
42
predicate felony for felony-murder purposes.” Id. at 558. Consequently,
the law requires the State to prove that felony assault was a separate act
from the murder if felony assault is the predicate felony to murder given
that “[d]eath is obviously a bodily injury.” Id. at 555, 558 (quoting 4 Robert
R. Rigg, Iowa Practice Criminal Law (1) § 3:16 (2006)). “Otherwise, all
assaults that immediately precede a killing would bootstrap the killing into
first-degree murder, and all distinctions between first-degree and second-
degree murder would be eliminated.” Id. at 557. Because the defendant’s
act of shooting the victim in Heemstra was both the act causing willful
injury and the cause of the victim’s death, we held the felony of willful
injury merged into the murder and could not serve as the predicate felony
for his felony-murder charge. See id. at 558.
In reaching this conclusion, we relied in part on a similar case from
New York, People v. Moran, 158 N.E. 35 (N.Y. 1927), which held that the
predicate felony in a felony murder case must be independent of the
assault that caused the victim’s death. Heemstra, 721 N.W.2d at 557–58.
To explain the merger doctrine, we specifically quoted the portion of Moran
that stated, “The felony that eliminates the quality of the intent must be
one that is independent of the homicide and of the assault merged therein,
as, e.g., robbery or larceny or burglary or rape.” Id. at 558 (emphasis
added) (quoting Moran, 158 N.E. at 36).
Since Heemstra, we have considered similar felony-murder cases
predicated on the forcible felony of felonious assault. In State v. Millbrook,
we held “the fact that intimidation with a dangerous weapon is not a
lesser-included offense of first-degree murder does not preclude
application of the merger doctrine enunciated in Heemstra.” 788 N.W.2d
647, 652 (Iowa 2010). Nevertheless, we upheld the defendant’s conviction
because his act of aiding and abetting a codefendant in the commission of
43
intimidation with a dangerous weapon with intent was sufficiently
independent of his own firing of the gun into the crowd that caused the
victim’s death. Id. at 652–54. Likewise, we examined our merger
jurisprudence in Tribble, upholding a felony-murder conviction based on
the felonious assault of willful injury due to the substantial evidence
demonstrating the act of willful injury was sufficiently separate from the
act of killing. Tribble, 790 N.W.2d at 128–29.
All of these cases dealt with the merger doctrine in relation to the
forcible felony of assault, and none of them discussed extending the
merger doctrine to cases that involve felony robbery as the predicate for
felony murder. We even quoted other authorities in Heemstra that
specifically stated the act of robbery was sufficiently independent from the
act of killing to preclude it from being merged into the murder. See
Heemstra, 721 N.W.2d at 556 (“Although rape, arson, robbery and
burglary are sufficiently independent of the homicide, . . . aggravated
battery toward the deceased will not do for felony murder.” (quoting
Commonwealth v. Quigley, 462 N.E.2d 92, 95 (Mass. 1984))); see also id.
at 558 (“The felony that eliminates the quality of the intent must be one
that is independent of the homicide and of the assault merged therein, as,
e.g., robbery or larceny or burglary or rape.” (quoting Moran, 158 N.E. at
36)). This is because robbery is clearly distinguishable from assault for
the purpose of the merger doctrine.
Unlike the felonious assault at issue in Heemstra, felony robbery is
not merely a less serious version of murder from which every felonious
robbery ending in death could automatically be elevated to first-degree
murder in the same way felonious assault could “bootstrap the killing into
first-degree murder.” Heemstra, 721 N.W.2d at 557. Rather, felony
robbery is a distinct crime that necessitates the showing of a different
44
intent from the killing. Under Iowa Code section 711.1(1), robbery requires
a showing that the defendant had the “intent to commit a theft” and that
the defendant committed an assault “to assist or further the commission
of the intended theft or the person’s escape from the scene thereof.” Iowa
Code § 711.1(1). Therefore, the concern that, absent the merger doctrine,
all felony robberies “that immediately precede a killing would bootstrap
the killing into first-degree murder, and all distinctions between first-
degree and second-degree murder would be eliminated” is not implicated
here as it was with felonious assaults in Heemstra. Heemstra, 721 N.W.2d
at 557. Moreover, robbery—unlike willful injury—is expressly listed as a
forcible felony under section 702.11(1) to qualify as a basis for felony
murder. See Iowa Code § 702.11(1). Based on the fundamental
differences between felony robbery and felony assault in the felony-murder
context, in addition to the merger rule jurisprudence in Iowa, it can hardly
be said that trial counsel in this case “performed below the standard
demanded of a reasonably competent attorney.” Ledezma, 626 N.W.2d at
142.
2. Evidentiary and testimonial objections. Harrison also maintains
his trial counsel was ineffective in failing to challenge certain testimony
and evidence presented at trial. Harrison asserts that his trial counsel
should have objected to testimony and evidence presented at his trial
regarding his codefendant’s conviction for first-degree murder in the death
of McHenry. Harrison also challenges trial counsel’s decision not to object
to certain testimony from Detective Youngblut. Harrison challenges trial
counsel’s decision to allow the testimony of Shirley Dick from Collins’s trial
to be read into the record since Dick passed away before Harrison’s trial.
Finally, Harrison argues his trial counsel was ineffective in failing to object
to the playing of Dick’s 911 call for the jury. However, the record is
45
inadequate for us to address these claims. Like most claims of ineffective
assistance of counsel, we preserve these claims for postconviction-relief
proceedings “so an adequate record of the claim can be developed and the
attorney charged with providing ineffective assistance may have an
opportunity to respond to defendant’s claims.” Soboroff, 798 N.W.2d at 8.
IV. Conclusion.
For the aforementioned reasons, we affirm the conviction and
sentence for Harrison and preserve the additional claims of ineffective
assistance of counsel for postconviction-relief proceedings.
AFFIRMED.
All justices concur except Wiggins, and Appel, JJ., who dissent, and
Hecht, J., who takes no part.
46
#16–1998, State v. Harrison
APPEL, Justice (dissenting).
The question in this case is whether an unarmed child may be
subject to life in prison with the possibility of parole for participating in a
marijuana robbery where a coparticipant brought a gun to the crime and
killed the robbery victim.
I. History of Felony Murder.
The origin of the felony-murder rule lies in the shadows of the past.
Scholars have speculated that it arose because of a mistake made by Lord
Coke in summarizing the legal texts of Lord Bracton when he substituted
the word murder for homicide in describing death arising out of unlawful
conduct. See Leonard Birdsong, Felony Murder: A Historical Perspective
by Which to Understand Today’s Modern Felony Murder Rule Statutes, 32
T. Marshall L. Rev. 1, 8–9 (2006) [hereinafter Birdsong]; see also James J.
Tomkovicz, The Endurance of the Felony-Murder Rule: A Study of the Forces
That Shape Our Criminal Law, 51 Wash. & Lee L. Rev. 1429, 1442 (1994)
[hereinafter Tomkovicz] (citing the Lord Coke theory along with other
possible origins of the felony-murder rule).
In any event, the felony-murder rule was controversial in its country
of origin. See Guyora Binder, The Origins of American Felony Murder Rules,
57 Stan. L. Rev. 59, 101–02 (2004) (noting “learned opinions did not
support felony murder rule unanimously”); Birdsong, 32 T. Marshall L.
Rev. at 15 (“Some of the earliest reported jury instructions on the felony
murder rule allude to its unpopularity, and seem to invite the jury to ignore
it.”); Rudolph J. Gerber, The Felony Murder Rule: Conundrum Without
Principle, 31 Ariz. St. L.J. 763, 766 (1999) [hereinafter Gerber] (“The felony
murder rule has an extensive history of thoughtful condemnation from at
least 1834.”). As a matter of practice, the felony-murder rule appears to
47
have been rarely used in England, and when it was, many cases tended to
limit its scope by requiring that the defendant participate in an act of
violence during the perpetration of the felony or that the killing involved
must be a natural and probable consequence of the felon’s actions. See
Binder, 57 Stan. L. Rev. at 100–03. Yet, the vestiges of the felony-murder
rule persisted in theory in England until 1957, when the felony-murder
rule was abolished. Birdsong, 32 T. Marshall L. Rev. at 16.
The felony-murder rule took hold in America in the early years of the
Republic. In 1794, Pennsylvania passed a statute that at least indirectly
embraced felony murder. Id. at 17–18. The vast majority of states
eventually followed suit. Id. at 18.
The felony-murder rule has been subject to extensive criticism. See
generally Gerber, 31 Ariz. St. L.J. at 766–67, 770 (noting the rule suffers
from at least four problems, each alone “fatal to a claim of principled
justice”); Nelson E. Roth & Scott E. Sundby, The Felony-Murder Rule: A
Doctrine at Constitutional Crossroads, 70 Cornell L. Rev. 446, 491–92
(1985) [hereinafter Roth & Sundby]; Joseph Trigilio & Tracy Casadio,
Executing Those Who Do Not Kill: A Categorical Approach to Proportional
Sentencing, 48 Am. Crim. L. Rev. 1371, 1408–11 (2011). The thrust of the
criticism generally is that moral culpability is at the heart of criminal
justice and that for harsh criminal sanctions to be imposed, the
perpetrator must manifest the intent, or mens rea, to commit the crime.
See Gerber, 31 Ariz. St. L.J. at 770–72.
The felony-murder rule has traditionally been defended on two
grounds. First, it is said that the felony-murder rule embraces a theory of
transferred intent, namely, that the intent of the cofelon who kills the
victim during the course of a felony is transferred to others who participate
in the crime. See Steven R. Morrison, Defending Vicarious Felony Murder,
48
47 Tex. Tech L. Rev. 129, 130, 138, 149 (2014). Under this theory, the
traditional mens rea requirement of criminal law is satisfied. The problem
with the transferred-intent theory is that it does not comport with facts on
the ground. A cofelon may be shocked that his colleague in crime brought
a gun, or a knife, to what the cofelon thought would be a petty crime.
The second theory is that the legislature in enacting a felony-murder
rule has determined that mens rea is not required to support a conviction.
See Kevin Cole, Killings During Crime: Toward a Discriminating Theory of
Strict Liability, 28 Am. Crim. L. Rev. 73, 77, 98 n.82 (1990) [hereinafter
Cole]. This theory seems more honest, but it amounts to a frontal assault
on the traditional notion of criminal justice that a mens rea element is
essential before the state imposes severe criminal sanctions. See John G.
Malcolm, Morally Innocent, Legally Guilty: The Case for Mens Rea Reform,
18 Federalist Soc’y Rev. 40, 40–41 (2017).
Aside from legal theory, the felony-murder rule has been defended
on a number of policy grounds. The rule is defended on the ground that
it deters unlawful conduct that leads to the death. See David Crump &
Susan Waite Crump, In Defense of the Felony Murder Doctrine, 8 Harv. J. L.
& Pub. Pol’y 359, 369–71 (1985). It is also defended on grounds of
retributive justice. See Cole, 28 Am. Crim. L. Rev. at 74–78, 121–32.
While the felony-murder rule has been adopted in most American
jurisdictions, there has been a trend to limit its scope. Roth & Sundby,
70 Cornell L. Rev. at 446. The scope of felony murder has been limited
through a number of techniques, including limiting the crimes from which
felony murder may arise, imposing a requirement of proximate cause,
requiring some showing of mens rea such as reckless indifference to
human life, and adopting an affirmative defense where the cofelon did not
participate in the killing in any meaningful way, was not armed with a
49
dangerous weapon, and had no reason to believe that the other participant
intended to engage in conduct likely to result in death or physical injury.
Id. at 446 & nn.7–8. As noted by one court, “the felony murder doctrine
expresses a highly artificial concept that deserves no extension beyond its
required application.” People v. Phillips, 414 P.2d 353, 360 (Cal. 1966) (en
banc), overruled on other grounds by People v. Flood, 957 P.2d 869, 882
n.12 (Cal. 1998).
The limitations of felony murder adopted in some jurisdictions have
not satisfied critics. When the Model Penal Code was promulgated in
1962, it sharply criticized the felony-murder rule as inconsistent with
traditional notions of criminal culpability. According to the commentary,
“Principled argument in favor of the felony-murder doctrine is hard to
find.” Model Penal Code § 210.2 cmt. 6, at 37 (Am. Law Inst. 1980).
Academic commentators have continued to attack the felony-
murder rule. The parade of negative commentary is long and winding. See
Gerber, 31 Ariz. St. L.J. at 766 (“The felony murder rule has an extensive
history of thoughtful condemnation.”); John Calvin Jeffries Jr. & Paul B.
Stephan III, Defenses, Presumptions, and Burdens of Proof in the Criminal
Law, 88 Yale L.J. 1325, 1387 (1979) (citing “at least fifty years of sustained
academic and judicial hostility” to the felony-murder rule); Jeanne Hall
Seibold, The Felony-Murder Rule: In Search of a Viable Doctrine, 23 Cath.
Law. 133, 160 (1978) (“The concept of basing the degree of punishment on
the seriousness of the result of the criminal act seems grossly misplaced
in a legal system which recognizes the degree of mental culpability as the
appropriate standard for fixing criminal liability.”); Tomkovicz, 51 Wash.
& Lee L. Rev. at 1460–65 (noting that despite constant attack on the
felony-murder rule, legislators feel pressures to placate a populace that
does not care about treating felons fairly).
50
Yet, in most jurisdictions, some form of felony murder remains on
the books. Kentucky, Hawaii, and Ohio have abolished it through
legislative action. See People v. Aaron, 299 N.W.2d 304, 314 & nn.57–58
(Mich. 1980) (citing the Kentucky and Hawaii statutes); Turk v. State, 194
N.E. 425, 426 (Ohio Ct. App. 1934) (noting that the common law felony-
murder rule is not the law in Ohio and citing Ohio statute that the state
must show “purpose and intent to kill” for murder), aff'd, 194 N.E. 453
(Ohio 1935) (per curiam). In Michigan, the felony-murder rule has been
substantially transformed by judicial ruling, if not eliminated. See Aaron,
299 N.W.2d at 325–26.
No one, of course, contends that participants in felonies are not
deserving of punishment. A person who knowingly participates in a
robbery has the necessary mens rea for a robbery and may be convicted
and sentenced for that crime. In some cases, the participant may also
have the necessary mens rea for a more serious offense, including
involuntary manslaughter and even murder. What the critics insist,
however, is that the traditional element of mens rea must accompany any
such convictions with serious penological consequences.
II. Background of Felony Murder in Iowa.
Iowa’s current felony-murder statute was passed as part of the
criminal code revisions adopted by the Iowa General Assembly in 1976 and
made effective in 1978. 1976 Iowa Acts ch. 1245, ch. 1, § 702 (codified at
Iowa Code § 707.2 (1979)). 11 The new statutory provision stated that “A
person commits murder in the first degree when he or she commits murder
under any of the following circumstances . . . [t]he person kills another
person while participating in a forcible felony.” Iowa Code § 707.2(2). The
11Priorto the modern version of the statute, Iowa’s felony murder rule was codified
at Iowa Code section 690.2 (1977).
51
statute further provided a list of crimes that were “forcible felonies,”
including, among other offenses, robbery. Id. § 702.11; see generally
Douglas Van Zanten, Note, Felony Murder, the Merger Limitation, and
Legislative Intent in State v. Heemstra: Deciphering the Proper Role of the
Iowa Supreme Court in Interpreting Iowa’s Felony-Murder Statute, 93 Iowa
L. Rev. 1565, 1576–84 (2008).
In an early case decided shortly after the current felony-murder
statute was enacted, we considered whether a showing of malice
aforethought for murder was required under the statute. See State v.
Galloway, 275 N.W.2d 736, 738 (Iowa 1979) (applying old version of felony-
murder statute and noting recent Code changes did not alter the analysis),
abrogated on other grounds by State v. Schutz, 579 N.W.2d 317, 320 (Iowa
1998). We answered the question in the affirmative. Id. In Galloway, the
defendant objected to a jury instruction which did not require the
prosecution to prove malice aforethought, but the court refused to add the
requested language. Id. The Galloway court reversed, noting “[m]alice
aforethought is a necessary element for murder. . . . And murder must be
committed in order to implement our felony-murder rule.” Id. In light of
Galloway, it appears that while the common law felony-murder rule
requires only a killing, the Iowa statute requires a murder. See Iowa Code
§ 707.2(1)(b) (2015) (“A person commits murder in the first degree when
the person commits murder under any of the following circumstances: . . .
[t]he person kills another person while participating in a forcible felony.”
(Emphasis added.)).
Yet, the situation has become clouded by the manner in which we
have allowed malice to be proven. In State v. Veverka, 271 N.W.2d 744,
747 (Iowa 1978), we held that required malice “may be implied from
circumstances such as an intent to commit a felony from which death
52
results.” Although stated in permissive terms, an instruction providing
that malice may be inferred from an intent to commit a felony from which
death results sounds a lot like the common law rule, namely, that any
killing can give rise to murder if it occurred in the course of a felony. See
Kristy L. Albrecht, Note, Iowa’s Felony-Murder Statute: Eroding Malice and
Rejecting the Merger Doctrine, 79 Iowa L. Rev. 941, 950 & n.71 (1994)
[hereinafter Albrecht]. Thus, in State v. Taylor, 287 N.W.2d 576, 578 (Iowa
1980), we again stated that malice may be shown by the commission of a
felony, and in Schrier v. State, 347 N.W.2d 657, 666–67 (Iowa 1984), we
held that counsel was not ineffective for failing to object to a felony-murder
instruction that allowed the state to prove malice simply by proving an
underlying felony. Under this approach, when the malice to support the
murder element of Iowa’s felony-murder statute is not independent of the
commission of a felony, the legislature’s limitation of felony murder to
murders rather than mere killings does indeed ring “hollow.” Albrecht, 79
Iowa L. Rev. at 955.
We considered questions related to the scope of felony murder in
Conner v. State, 362 N.W.2d 449 (Iowa 1985). In Conner, the defendant
challenged his first-degree murder conviction under the Iowa felony-
murder rule on the ground that by presuming malice was present, the
statute violated due process under the United States Constitution. Id. at
455. The defendant cited Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct.
2450 (1979), and its precursors for the proposition that a criminal statute
violates due process if it imposes an irrebuttable presumption regarding
facts necessary to support a conviction. Conner, 362 N.W.2d at 455–56.
In Conner, we departed from the transferred-intent model of
analysis, which would have exposed the felony-murder rule to due process
attack, and instead declared that elimination of the mens rea requirement
53
was not an irrebuttable presumption but instead “a matter of substantive
law that places responsibility on a wrongdoer for the direct and indirect
consequences of his joint criminal conduct with another.” Id. at 456. We
came to a similar conclusion in State v. Ragland, 420 N.W.2d 791, 794
(Iowa 1988), overruled on other grounds by State v. Heemstra, 721 N.W.2d
549, 558 (Iowa 2006). Ragland and Conner involved claims under the
United States Constitution only. Ragland, 420 N.W.2d at 793; Conner,
362 N.W.2d at 455.
A significant question under the new felony-murder statute was
whether we would recognize the merger rule, namely, that an assault that
resulted in a homicide merged and could not provide the predicate felony
for felony murder. In State v. Beeman, we declined to recognize the merger
doctrine under our felony-murder statute. 315 N.W.2d 770, 777 (Iowa
1982), overruled by Heemstra, 721 N.W.2d at 558. We noted that felonious
assault was listed by the legislature as one of the predicate offenses that
could give rise to the felony-murder rule. Id. We therefore declined to
adopt the merger rule. Id. We reaffirmed the Beeman holding in a number
of cases. See State v. Anderson, 517 N.W.2d 208, 214 (Iowa 1994),
overruled by Heemstra, 721 N.W.2d at 558; State v. Rhomberg, 516 N.W.2d
803, 805 (Iowa 1994), overruled by Heemstra, 721 N.W.2d at 558; Ragland,
420 N.W.2d at 793.
In Heemstra, we reconsidered the question of whether the felony of
willful injury could be used as a predicate crime or whether willful injury
merged with the resulting homicide to prevent application of the felony-
murder rule. 721 N.W.2d at 554. In Heemstra, we charted a new course.
Id. We noted that felony murder was one of the most controversial
doctrines in the field of criminal law. Id. The Heemstra court noted that
without the merger rule, the law could “test the outer constitutional
54
parameters of our felony-murder law.” Id. at 555. We cited, among other
things, a California case where the court had declared that refusing to
recognize merger would extend the operation of the rule “beyond any
rational function that it is designed to serve.” Id. at 556 (quoting People v.
Ireland, 450 P.2d 580, 590 (Cal. 1969) (en banc)). The Heemstra court was
determined not to create what one commentator had called “an ever-
expanding felony murder rule.” Id. at 558 (quoting 4 Robert R. Rigg, Iowa
Practice Criminal Law (I) § 3:16 (2006)).
Even with the limitations, the felony-murder rule has produced
some troublesome results. In Ragland, a child knowingly participated in
a fight with a rival group of children. 836 N.W.2d 107, 110 (Iowa 2013).
During the course of the ensuing fight, one of his compatriots struck a
person on the head with a tire iron, causing death. Id. The actual
perpetrator of the crime plead guilty to second-degree murder and served
a three-year prison sentence before being released. Id. at 112. Ragland
went to trial, was convicted of felony murder, and received a life sentence.
Id. at 110. In a letter to the county attorney, the actual perpetrator asked,
“How can it be that I, the person who is actually directly responsible for
[the victim’s] death was given a second chance and am allowed to live freely
in society, but Jeff Ragland is not?” Id. at 112.
III. Felony-Murder Cases in Other States.
A. Introduction. There have been relatively few cases challenging
the constitutionality of the felony-murder rule. The older cases generally,
however, reject due process challenges. See, e.g., People v. Dillon, 668 P.2d
697, 718 (Cal. 1983) (en banc); State v. Nichols, 734 P.2d 170, 177 (Mont.
1987); Cotton v. Commonwealth, 546 S.E.2d 241, 244 (Va. Ct. App. 2001).
These cases tend to emphasize the ability of the legislature to define the
crimes and then proceed to construe the scope of felony-murder statutes
55
as narrowly as possible. A narrow result may be powered by the desire to
avoid due process constitutional infirmities that might result from broader
interpretations of felony-murder statutes. See, e.g., State v. Ortega, 817
P.2d 1196, 1204 (N.M. 1991), abrogated on other grounds by Kersey v.
Hatch, 237 P.3d 683, 689 (N.M. 2010).
B. People v. Aaron. The first such case is Aaron, 299 N.W.2d 304.
In this case, the Michigan Supreme Court, in a lengthy and highly
footnoted opinion, considered the validity of the felony-murder rule in
Michigan. Id. at 324. The Aaron court abrogated felony murder in that
state. Id. at 326. Although the case does not directly deal with a
constitutional challenge to a state statute, the approach of Aaron to the
felony-murder rule is instructive on potential constitutional issues.
The Aaron court first surveyed caselaw and legislative developments
regarding the felony-murder rule. Id. at 312–16. The court noted that the
wisdom of the felony-murder rule had long been questioned, citing a
Pennsylvania court’s declaration stating “how shaky are the basic
premises on which (the felony murder rule) rests” and a California decision
characterizing the felony murder doctrine as expressing “a highly artificial
concept.” Id. at 313–14 (first quoting Commonwealth ex rel. Smith v.
Myers, 261 A.2d 550, 555 (Pa. 1970); and then quoting Phillips, 414 P.2d
at 360). The Aaron court cited numerous limitations placed on the felony-
murder rule by courts and by legislatures. Id. at 314–16.
The Aaron court next focused its discussion on the issue of moral
culpability. Id. at 316–17. Citing authorities for the proposition that
culpability represents a basic principle of criminal law, the court observed
that the felony-murder rule “completely ignores the concept of
determination of guilt on the basis of individual misconduct.” Id. With
respect to first-degree murder, the court noted that while murder
56
ordinarily requires “a showing of premeditation, deliberation and
willfulness,” felony murder “only requires a showing of intent to do the
underlying felony.” Id. at 317.
The Aaron court noted academic authorities that had condemned
the felony-murder rule. See id. The court favorable cited a commentator
who declared that “the felony-murder doctrine gives rise to what can only
be described as an emotional reaction, not one based on logical and
abstract principles.” Id. (quoting Note, Recent Extensions of Felony Murder
Rule, 31 Ind. L.J. 534, 543 (1956)). The court further cited a treatise that
noted in 1771 it was observed that the felony-murder doctrine “is surely
repugnant to that noble, and active confidence, which a free people ought
to possess in the laws of their constitution, the rule of their actions.” Id.
at 318 (quoting Jerome Hall, General Principles of Criminal Law 455
(1947)).
In the end, the Aaron court held that malice is an essential part of
any murder, whether it occurred in the course of a felony or otherwise. Id.
at 319. The court emphasized that the necessary malice, in the
appropriate case, might be inferred from the circumstances of the crime.
Id. at 327. The issue of malice, however, is for the jury, which “may not
find malice from the intent to commit the underlying felony alone.” Id.
C. State v. Ortega. A second case of interest is Ortega, 817 P.2d
1196. The felony murder statute in New Mexico at the time was quite
broad, triggered by any killing that occurred in the course of any felony.
Id. at 1202. The New Mexico Supreme Court interpreted the statute,
however, to require that the defendant “intended to kill (or had the state
of mind otherwise generally associated with mens rea).” Id. at 1204. The
Ortega court concluded that “proof that a killing occurred during the
commission or attempted commission of a felony will no longer suffice to
57
establish murder in the first degree” under the felony-murder rule. Id. at
1205. Instead, according to the court, the state must show that the
defendant had the mens rea sufficient to support second-degree murder,
which then could be elevated to first-degree murder when a felony is
involved. Id.
The Ortega decision was based on three propositions. Id. at 1204.
First, the Ortega court emphasized that in Anglo-American law, serious
nonregulatory crimes require criminal intent. Id. Second, if criminal
intent is supplied merely by participation in a felony, the “one runs
headlong into Sandstrom.” Id. Third, the Ortega court found its approach
most consistent with the structure of the homicide provisions of New
Mexico law. Id. at 1206.
D. Lowry v. State. The third case is Lowry v. State, 657 S.E.2d
760 (S.C. 2008). In Lowry, the South Carolina Supreme Court considered
the constitutionality of jury instructions related to felony murder. Id. at
763. The challenged instruction stated felony murder arose if “a person
kills another in the doing or attempting to do an act which is considered a
felony.” Id. at 762. The Lowry court held the trial court’s supplemental
jury charge created a mandatory presumption of the malice element and
violated the defendant’s due process rights. Id. at 764.
E. People v. Dillon. The fourth case worthy of note is Dillon, 668
P.2d 697. In Dillon, a seventeen-year-old boy was convicted of first-degree
murder under California’s felony-murder rule arising from an attempted
robbery. Id. at 700. The defendant and others scouted a small marijuana
farm on two prior occasions, only to be chased off by an owner armed with
a shotgun. Id. A larger group engaged in a third foray, this time armed
with various weapons including shotguns and a .22 caliber semi-
automatic rifle possessed by Dillon. Id. at 701. They also brought various
58
equipment for harvesting the marijuana. Id. Some of the party left the
scene after a couple of hours, but Dillon and his companion remained. Id.
When the owner emerged in close proximity with his shotgun pointed
outwards, Dillon shot him nine times with his rifle. Id. at 701, 723.
In Dillon, the child took the stand and described his state of mind,
from youthful bravado to sheer panic as events unfolded. Id. at 722–23.
With respect to the shooting, Dillon testified, “I just pressed the trigger, I
was so scared . . . . I just kept squeezing it, and shots just went off.” Id.
at 723. A clinical psychologist testified regarding Dillon’s immaturity, poor
judgment and planning, and found him acting as a much younger child.
Id. The psychologist testified that Dillon, when confronted with the armed
owner, probably “ ‘blocked out’ the reality of the situation and reacted
reflexively, without thinking at all.” Id.
The jury seems to have credited the child’s testimony. See id. at
724. At the close of evidence, the jury sent the judge a note asking what
the purpose of the psychologist’s testimony was. Id. at 723. The court
simply responded by directing the jury to follow the instructions. Id.
During deliberations, the jury sent the judge a note asking whether it could
convict the defendant of second-degree murder rather than first-degree
murder. Id. at 724. The judge reread the instruction and further declared
that if the defendant was guilty of felony murder, it must be murder in the
first degree. Id. The jury convicted the defendant of attempted robbery
and first-degree murder. Id.
The court advised the jury when discharging it that “[t]his felony
murder rule is a very harsh rule and it operated very harshly in this case.”
Id. Yet, the court advised the jury that the court had an option of
committing the defendant to the Youth Authority rather than sending him
to prison. Id. The judge invited the jury to provide whatever observations
59
they might care to make about ultimate disposition of the case. Id. The
foreman of the jury responded by stating that it was extremely difficult for
the jurors to render the verdict since the defendant “by moral standards
is a minor.” Id. Expressing the consensus of most or all jurors, the
foreman urged the judge to give the defendant “his best opportunity in life”
by committing Dillon to the Youth Authority. Id. The district court
followed the advice of the jury, but the Court of Appeals ruled that at the
time the offense was committed, Dillon was ineligible as a matter of law to
be committed to the Youth Authority. Id. at 725–26. The case was
remanded for resentencing, and the district court, left with no choice,
sentenced Dillon to life in prison. Id. at 726.
In reviewing the conviction and sentence, the California Supreme
Court rejected challenges to felony murder based upon due process,
reasoning that the legislature had defined the crime so as not to require a
mens rea element for felony murder. Id. at 718. That, however, was not
the end of the matter, as the court turned to the question of whether a
first-degree murder conviction could be supported against the seventeen-
year-old defendant under the facts and circumstances of the case. See id.
at 719.
The court noted that the record showed that the defendant at the
time of the events “was an unusually immature youth.” Id. at 726–27.
According to the court, the defendant was “not the prototype of a hardened
criminal who poses a grave threat to society.” Id. at 727. The court noted
there was “ample evidence that because of his immaturity he neither
foresaw the risk he was creating nor was able to extricate himself without
panicking when that risk seemed to eventuate.” Id. The court further
noted the discrepancy in punishment of the defendant compared to his
60
coconspirators in the venture, who, although they did not pull the trigger,
nonetheless had armed themselves with shotguns and knives. Id.
In the end, the court found life in prison violated the cruel and
unusual punishment clause of the California Constitution. Id. Because
he intentionally killed the victim without legal provocation, however, the
defendant was guilty of second-degree murder. Id. The conviction was
affirmed as modified, and the case remanded to the district court for
resentencing. Id. Because the defendant was no longer guilty of first-
degree murder, the district court on remand was “to determine whether to
recommit him to the Youth Authority.” Id.
IV. Framework of Challenges to the Felony-Murder Rule.
A. Transferred Intent and Due Process. The notion that the
felony-murder rule embraces a theory of transferred intent may be
attacked on the ground that it violates due process and constitutes cruel
and unusual punishment. The outlines of the argument were developed
some decades ago by Roth and Sundby. See Roth & Sundby, 70 Cornell
L. Rev. at 460–90.
The argument begins with In re Winship, 397 U.S. 358, 90 S. Ct.
1068 (1970). In In re Winship, the United States Supreme Court
emphasized that under the Due Process Clause of the United States
Constitution, the accused is protected “against conviction except upon
proof of every fact necessary to constitute the crime with which he is
charged” beyond a reasonable doubt. Id. at 364, 90 S. Ct. at 1073. In
Mullaney v. Wilbur, the Court emphasized that the state could not shift the
burden of proof to the defendant to show “heat of passion” sufficient to
avoid conviction of murder. 421 U.S. 684, 703–04, 95 S. Ct. 1881, 1892
(1975).
61
The Supreme Court then seemed to retreat from In re Winship and
Mullaney in Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319 (1977).
In Patterson, the Court upheld a state statute that required the defendant
to prove the affirmative defense of severe emotional distress to a charge of
murder. Id. at 205–06, 97 S. Ct. at 2324–25. Language in Patterson
emphasized that the state had the power to define the elements of the
crime. Id. at 205, 97 S. Ct. at 2324. At the same time, however, the court
indicated that there were constitutional limits to the state’s definitional
power. Id. at 210, 97 S. Ct. at 2327.
The United States Supreme Court case revisited Mullaney and
Patterson issues in Sandstrom, 442 U.S. 510, 99 S. Ct. 2450. In
Sandstrom the trial court had instructed the jury that “the law presumes
that a person intends the ordinary consequences of his voluntary acts.”
Id. at 512, 99 S. Ct. at 2453. The Sandstrom Court found the instruction
flawed because it shifted the burden of proving intent. Id. at 524, 99 S. Ct.
at 2459.
The felony-murder rule has been justified under a theory of
“transferred intent,” namely, that the mens rea required for murder is
provided by imputing the mens rea from the defendant’s felonious act. See
Roth & Sundby, 70 Cornell L. Rev. at 453. Once a jury concludes that a
killing had been committed in the course of the commission of a felony,
the necessary culpability required for murder must be presumed. See id.
at 460. The presumption of the necessary mens rea as arising out of
something else—namely the commission of a felony where another has
murdered someone—is subject to serious challenge under Sandstrom. Id.
at 469.
B. Legislative Definitions of Crime and Due Process and Cruel
and Unusual Punishment. As second theoretical defense of felony
62
murder eschews any fictitious transferred intent but emphasizes the
ability of the legislature to define crimes. According to this theory, the
legislature is free to enact a felony-murder rule that does not require the
state to prove the traditional mens rea normally associated with the crime
of murder. But a bedrock principle of criminal law has been that
imposition of serious criminal sanctions ought to reflect culpability.
The United States Supreme Court considered the question of mens
rea requirement in Morissette v. United States, 342 U.S. 246, 72 S. Ct. 240
(1952). In Morissette, the defendant had taken what he thought were
abandoned shell casings from a government bombing range, compressed
the shells, and sold the metal for $84. Id. at 247, 72 S. Ct. at 242. He
was charged with conversion of government property. Id. at 248, 72 S. Ct.
at 242. The trial court refused to allow the defendant to assert that he
believed the property was abandoned on the ground that intent was
presumed. The United States Court of Appeals for the Sixth Circuit
affirmed, holding the statute did not require the government to prove
criminal intent. Id. at 249–50, 72 S. Ct. at 242–48.
The Supreme Court reversed. Id. at 276, 72 S. Ct. at 256. In an
opinion by Justice Jackson, the Court noted,
The contention that an injury can amount to a crime
only when inflicted by intention is no provincial or transient
notion. It is as universal and persistent in mature systems of
law as belief in freedom of the human will and a consequent
ability and duty of the normal individual to choose between
good and evil. A relation between some mental element and
punishment for a harmful act is almost as instinctive as the
child’s familiar exculpatory “But I didn’t mean to . . . .”
Id. at 250–51, 72 S. Ct. at 243 (footnote omitted).
Even where a statute did not expressly include an intent
requirement, the Morissette Court emphasized “[c]ourts, with little
63
hesitation or division, found an implication of the requirement as to
offenses that were taken over from the common law.” Id. at 252, 72 S. Ct.
at 244. The Court declined to depart from the common law mens rea
requirement in light of the statutory silence in federal conversion law. Id.
at 262, 72 S. Ct. at 249. Citing a state supreme court case, the Court
noted, “It is alike the general rule of law, and the dictate of natural justice,
that to constitute guilt there must be not only a wrongful act, but a
criminal intention.” Id. at 274, 72 S. Ct. at 255 (quoting People v. Flack,
26 N.E. 267, 270 (N.Y. 1891)). The Court recognized that while the mens
rea element might be eliminated for certain regulatory crimes, the Court
declined to do so for crimes under the federal conversion statute. Id. at
262–63, 72 S. Ct. at 249–50. While to do so might “ease the prosecution’s
path to conviction,” it would “change the weights and balances in the
scales of justice.” Id. at 263, 72 S. Ct. at 249; see also United States v.
U.S. Gypsum Co., 438 U.S. 422, 436–37, 98 S. Ct. 2864, 2873 (1978).
The United States Supreme Court considered the role of culpability
in two felony-murder cases involving the death penalty in Enmund v.
Florida, 458 U.S. 782, 102 S. Ct. 3368 (1982), and Tison v. Arizona, 481
U.S. 137, 107 S. Ct. 1676 (1987). In Enmund, the Court considered a case
in which a nontriggerman getaway driver was convicted of felony murder
and sentenced to death. 458 U.S. at 784–85, 102 S. Ct. at 3370. In Tison,
the Court considered a felony-murder case in which the defendants did
not pull the trigger but were deeply involved in an underlying crime. 481
U.S. at 139–41, 107 S. Ct. at 1678–79.
In Enmund, the defendant drove the getaway car in an armed
robbery. 458 U.S. at 784, 102 S. Ct. at 3370. His compatriots approached
the targeted house and engaged in a fight with the occupants; as a result,
the residents were killed. Id. at 784, 102 S. Ct. at 3369–70. Pursuant to
64
Florida law, the district court instructed the jury that “[t]he killing of a
human being while engaged in the perpetration of or in the attempt to
perpetrate the offense of robbery is murder in the first degree even though
there is no premeditated design or intent to kill.” Id. at 784–85, 102 S. Ct.
at 3370 (alteration in original). The defendant was convicted and
sentenced to death. Id. at 785, 102 S. Ct. at 3370. The defendant
appealed, claiming that the imposition of the death penalty under the
circumstances violated the Eighth Amendment proscription against cruel
and unusual punishment. Id. at 787, 102 S. Ct. at 3371.
The Supreme Court agreed. Id. at 801, 102 S. Ct. at 3378–79. The
Enmund Court emphasized that to impose the death penalty pursuant to
a felony-murder conviction of a nontriggerman would not further either of
the goals of deterrence or retribution. Id. at 800, 102 S. Ct. at 3378. With
respect to deterrence, the Court noted that “if a person does not intend
that life be taken . . . the possibility that the death penalty will be imposed
for vicarious felony murder will not ‘enter into the cold calculus that
precedes the decision to act.’ ’’ Id. at 799, 102 S. Ct. at 3377 (quoting
Gregg v. Georgia, 428 U.S. 153, 186, 96 S. Ct. 2909, 2931 (1976)). Aside
from a lack of intent that might be deterred, the Court noted that there
was no reason to believe that death so frequently occurs during the course
of a felony that it would be a substantial deterrent to the underlying felony
itself. Id. at 799, 102 S. Ct. at 3377–78. The Enmund Court further cited
three studies that indicated the incidence of murder that occurred in
connection with robberies hovered at only approximately .5%. Id. at 799–
800 nn.23–24, 102 S. Ct. at 3378 nn.23–24.
The Enmund Court then turned to retribution. Id. at 800, 102 S. Ct.
at 3378. The Court concluded that it was unconscionable to treat the
triggerman and the nontriggerman alike for purposes of imposing the
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death penalty. Id. at 801, 102 S. Ct. at 3378. According to the Enmund
Court, “American criminal law has long considered a defendant’s
intention—and therefore his moral guilt—to be critical to ‘the degree of
[his] criminal culpability.’ ” Id. at 800, 102 S. Ct. at 3378 (alteration in
original) (quoting Mullaney, 421 U.S. at 698, 95 S. Ct. at 1889). The
defendant’s punishment in Enmund, according to the Court, was not
“tailored to his personal responsibility and moral guilt.” Id. at 801, 102
S. Ct. at 3378.
The Court took a different tack in Tison, 481 U.S. 137, 107 S. Ct.
1676. In Tison, the Court considered whether the death penalty arising
from felony murder could be applied in a case where the defendants were
substantial participants in the crime and where they manifested a reckless
disregard for human life. See id. at 139–41, 107 S. Ct. at 1678–79. In
Tison, the defendants were involved in a carefully planned and heavily
armed effort to free their father and another convicted murderer from
prison. Id. at 139, 107 S. Ct. at 1678. The prison break at first succeeded,
with the escapees and his rescuers fleeing the area in a Lincoln
automobile. Id. at 139, 107 S. Ct. at 1679. When the car ultimately had
a flat tire, the party flagged down a family in a passing vehicle. Id. at 139–
40, 107 S. Ct. at 1679. The family was kidnapped and their car and the
Lincoln driven into the desert. Id. at 140, 107 S. Ct. at 1679. While the
family, standing in front of the Lincoln, pled for their lives, the father and
another compatriot fatally shot the family. Id. at 140–41, 107 S. Ct. at
1679. The defendants at the time were near the other automobile where
they had gone to fetch water for the victims. Id. The defendants were
convicted of felony murder, sentenced to death, and lost their appeal. Id.
at 141–43, 107 S. Ct. at 1680. They then launched a postconviction-relief
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challenge to their death sentence, calling it cruel and unusual under the
Eighth Amendment. Id. at 143, 152, 107 S. Ct. at 1680–81, 1685.
The Tison Court upheld the death sentences. Id. at 158, 107 S. Ct.
at 1688. The Court observed that in Enmund, “the Court found that
Enmund’s degree of participation in the murders was so tangential that it
could not be said to justify a sentence of death.” Id. at 148, 107 S. Ct. at
1683 (emphasis omitted). In contrast, in Tison, the defendants
participated extensively in the escape, intentionally brought guns into the
prison to arm the murderers, participated fully in kidnapping and robbery,
and, after the murders, did nothing to aid the victims. Id. at 151–52, 107
S. Ct. at 1685. Unlike in Enmund, the involvement of the defendants in
the crimes was not minor, but “substantial.” Id. at 158, 107 S. Ct. at 1688.
The Tison Court held that the defendants’ major participation in the felony
committed, combined with reckless indifference to human life, was
sufficient to satisfy the Enmund culpability requirement. Id.
Justice Brennan and three other members of the court dissented.
Id. at 159, 107 S. Ct. at 1689 (Brennan, J., dissenting). According to
Justice Brennan, the felony-murder rule was a curious “living fossil from
a legal era in which all felonies were punishable by death.” Id. Justice
Brennan saw parallels with Enmund. Id. at 161, 107 S. Ct. at 1690. In
both cases, the defendants did not shoot the victims and there was nothing
in the record to indicate intent to kill. Id. Justice Brennan rejected the
notion that a reckless actor could be held to the same degree of
accountability as an intentional actor, noting that “[t]he reckless actor has
not chosen to bring about the killing in the way the intentional actor has.”
Id. at 170, 107 S. Ct. at 1695. According to Justice Brennan, “the criminal
law must ensure that the punishment an individual receives conforms to
the choices that individual has made.” Id. at 171, 107 S. Ct. at 1695. As
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a result, Justice Brennan argued that the death penalty could not be
imposed under the facts presented. Id. at 182, 107 S. Ct. at 1701.
C. Application of Felony Murder to Children in Light of Recent
Developments in Juvenile Justice. As can be seen above, the felony-
murder rule generally has substantial due process and proportionality
problems. These well recognized challenges are greatly magnified in the
context of juvenile offenders. This case involves more than the
conventional challenges to felony murder, but because a child is involved
the due process and cruel and unusual punishment claim are on legal
steroids. A body of literature has recently developed suggesting that, at
least as applied to children, the felony-murder rule is unconstitutional.
See Steven A. Drizin & Allison McGowen Keegan, Abolishing the Use of the
Felony-Murder Rule When the Defendant Is a Teenager, 28 Nova L. Rev.
507, 535–42 (2004) (“[W]e believe that there should be an absolute ban on
the felony-murder doctrine for child defendants under the age of
fourteen . . . .”); Emily C. Keller, Constitutional Sentences for Juveniles
Convicted of Felony Murder in the Wake of Roper, Graham, & J.D.B., 11
Conn. Pub. Int. L.J. 297, 309–23 (2012) [hereinafter Keller] (arguing life
sentences without parole for juvenile convicted of felony murder is
unconstitutional).
Recent challenges to the application of felony murder to juveniles
emphasize the juvenile justice cases recently decided by the United States
Supreme Court. See generally Miller v. Alabama, 567 U.S. 460, 132 S. Ct.
2455 (2012); J.D.B. v. North Carolina, 564 U.S. 261, 131 S. Ct. 2394
(2011); Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011 (2010); Roper v.
Simmons, 543 U.S. 551, 125 S. Ct. 1183 (2005). The thrust of the
argument is that while the felony-murder rule is generally in a weak
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position, it simply cannot be sustained with respect to juvenile offenders.
See Keller, 11 Conn. Pub. Int. L.J. at 316–18.
First, critics note that the deterrence rational supporting felony
murder is already weak with respect to adults. In Enmund, the Supreme
Court stated that it was “quite unconvinced . . . that the threat that the
death penalty will be imposed for murder will measurably deter one who
does not kill and has no intention or purpose that life will be taken.” 458
U.S. at 798–99, 102 S. Ct. 3377; see also Keller, 11 Conn. Pub. Int. L.J. at
317.
If the Court is unconvinced that the death penalty in the felony-
murder rule is a deterrent for adults, the Court would surely be
unconvinced that life in prison with the possibility of parole would provide
a deterrent for children who do not intend that life will be taken. In
Graham, for instance, the Supreme Court noted that juveniles “are less
likely to take a possible punishment into consideration when making
decisions.” 560 U.S. at 72, 130 S. Ct. at 2028–29. In Roper, the Supreme
Court noted “[t]he likelihood that the teenage offender has made the kind
of cost-benefit analysis that attaches any weight to the possibility of
execution is so remote as to be virtually nonexistent.” 543 U.S. at 572,
125 S. Ct. at 1196 (alteration in original) (quoting Thompson v. Oklahoma,
487 U.S. 815, 837, 108 S. Ct. 2687, 2700 (1988)). As our court has noted,
“children lack the risk-calculation skills adults are presumed to possess
and are inherently sensitive, impressionable, and developmentally
malleable.” State v. Lyle, 854 N.W.2d 378, 389 (Iowa 2014); see also Keller,
11 Conn. Pub. Int. L.J. at 317–18. In State v. Null, we summed up the
developments by noting that juvenile brains are not fully developed for
executive functioning which effect behaviors “such as reasoning, abstract
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thinking, planning, the anticipation of consequences, and impulse
control.” 836 N.W.2d 41, 55 (Iowa 2013).
Second, critics maintain that the retributive goals of criminal
punishment have less force as applied to juveniles. Retribution is
appropriate goal for morally culpable offenders. But the felony-murder
rule does not require the individual mens rea ordinarily required to
support a murder conviction. With respect to children, the retributive
goals of the felony-murder rule are further diminished because of the
characteristics of youth. See Roper, 543 U.S. at 571, 125 S. Ct. at 1196;
see also Keller, 11 Conn. Pub. Int. L.J. at 316–17.
V. Discussion.
Justice Frankfurter noted long ago that “not the least significant test
of the quality of a civilization is its treatment of those charged with crime,
particularly with offenses which arouse the passions of a community.”
Irvin v. Dowd, 366 U.S. 717, 729, 81 S. Ct. 1639, 1646 (1961) (Frankfurter,
J., concurring). Harrison is guilty of significant crime and deserves to be
punished accordingly. But the application of the felony-murder rule to
him distorts the criminal justice system beyond recognition.
First, although he certainly had the necessary mens rea to commit
the robbery, the instructions in this case permitted the jury to find that if
he was guilty of the crime of robbery, Harrison was also guilty of felony
murder, or murder in the first degree. For all the reasons in the authorities
cited above, this is a troublesome state of affairs. In order to comport with
fundamental fairness, the issue is not whether Harrison had sufficient
moral culpability to support robbery. He did. The issue is whether
Harrison had sufficient moral culpability to support first-degree murder
and a life sentence with possibility of parole, merely because of his
participation in the robbery. In order to support such a conviction
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consistent with due process, the state must prove the elements of the
underlying felony and, independently, sufficient malice to support a
conviction of murder. Yet, the instructions permitted the jury to find
Harrison guilty of murder without a finding of malice independent of the
underlying felony.
Further, the limited moral culpability that may be assigned to
Harrison is further diminished by the fact that he was a child. Without
question, the teachings of Miller, Graham, and Roper establish that the
moral culpability of juveniles even for horrendous crimes is diminished by
their lack of neurological and psychological development. Thus, the very
thin basis of culpability that might support the felony-murder rule in some
circumstances is further diminished by the age of Harrison.
Second, there is the issue of deterrence. As was powerfully pointed
out in Enmund, it is hard to understand how the felony-murder rule deters
when the defendant has no intention to commit the crime. 458 U.S. at
798–99, 102 S. Ct. at 3377. As with moral culpability, the deterrence
rationale for felony murder, already thin, is further diminished by the fact
that Harrison was seventeen at the time of the offense.
It is true that in this case, Harrison was not sentenced to life in
prison without the possibility of parole. Instead, he was sentenced to life
in prison with the possibility of parole as required by State v. Sweet, 879
N.W.2d 811, 839 (Iowa 2016). Yet, there can be little doubt that his
conviction of first-degree murder, albeit through a highly attenuated
application of the felony-murder rule, is going to dramatically increase his
prison term beyond that which he would have been imposed had he been
convicted merely of robbery.
There is no occasion today to reconsider whether the felony-murder
rule is categorically unconstitutional on grounds of due process as applied
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to adults. That is not the issue before us. Instead, the question is whether
the felony-murder rule as applied to children is so attenuated from
traditional notions of due process of law. For the above reasons, I would
conclude that application of the felony-murder rule to persons under the
age of eighteen is so lacking in relationship to criminal culpability as to
amount to a violation of due process under both the United States and the
Iowa Constitutions.
I also write to express disagreement with the majority’s approach to
cruel and unusual punishment under the Iowa Constitution. First, I note
that no party before this court has advocated that Iowa should not follow
the standards for determining cruel and unusual punishment set out in
State v. Bruegger, 773 N.W.2d 862, 884 (Iowa 2009), and State v. Oliver,
812 N.W.2d 636, 640 (Iowa 2012). We have not held that the federal
standards are applicable under the Iowa Constitution as there has been
no case where the issue has been contested.
In any rate, in applying the federal standards, I would not put much
weight onto the national consensus in considering the issue before us.
The exploration of national consensus is a technique utilized by the United
States Supreme Court to address its federalism concerns, namely, a
concern that the United States Supreme Court must set a nationwide
standard. Such federalism concerns tend to dilute the scope of individual
rights and drive the decision toward a lowest acceptable common
denominator. Such federalism concerns simply are not applicable when a
state considers a constitutional question that does not apply outside the
state.
In addition, I do not agree with the majority’s handling of Bruegger
in considering an as-applied standard. In Bruegger, we found that there
was reason to believe that an as-applied challenge under article I, section
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17 may be present. 773 N.W.2d at 885. Among other factors, we cited the
breadth of the underlying statute, Bruegger’s age when the predicate
offense was committed, and the geometric increase in criminal sanction.
Id. at 884–85.
First, the breadth of the crime, the age of Bruegger when the
predicate offense was committed, and the geometric increase in sentence,
were factors, not criteria. The factors were never intended to establish a
ceiling or ironclad set of criteria for determining whether a sentence was
cruel and unusual under article I, section 17, but rather the general
nature of the factors that may point in the direction of finding a sentence
so grossly disproportional as to amount to a violation of article I, section
17.
Second, the Bruegger factors are met in this case. Although the Iowa
felony-murder statute has been limited in important ways, it is still very
broad. Any person who simply participates in a robbery may be found
guilty of felony murder, even if that person did not bring a weapon to the
scene, had no knowledge that weapons would be present at the scene, and
had nothing to do with the murder. Also, Harrison was seventeen at the
time of the crime. And, instead of being exposed to the sanction for the
crime he clearly was guilty of committing, robbery, which carries a term of
years sentence, Harrison was sentenced to life in prison with possibility of
parole. There seems little doubt that Harrison’s prison sentence under
felony murder will be geometrically longer than that which would have
resulted if he had been convicted only of robbery.
It is true, of course, that Harrison is eligible for parole. That, of
course, might be a mitigating factor, particularly if eligibility for parole is
considered soon after he has reached full maturity and correctional
authorities have an opportunity to evaluate his rehabilitation. And a
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meaningful opportunity to be heard must mean more than a paper review
but must involve a serious assessment of the maturity and rehabilitation
of the defendant. Even so, however, the difference between a sentence of
life in prison with a meaningful opportunity to show rehabilitation and
maturity after a decade in prison in substantially more severe than a mere
conviction for robbery.
I find it unnecessary to reach the question of whether life without
parole is categorically unconstitutional under article I, section 17, but I
would hold that in this case, a life sentence with the possibility of parole,
the harshest sentence available to a child, is grossly disproportional to
what he deserves, namely, a sentence for robbery or perhaps involuntary
manslaughter.
VI. Conclusion.
For the above reasons, I respectfully dissent.
Wiggins, J., joins this dissent.