# FILED

September 10, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE DECEMBER SESSION, 1997

STATE OF TENN ESSEE, ) ) No. 03C01-9703-CR-00117 Appellee ) ) SULLIVAN COUNTY vs. ) ) Hon. R. Jerry Beck, Judge LON MITCHELL PIERC E, JR., ) ) (Felony Murder; Theft over Appellant ) $10,000; misdemeanor theft; ) evading arrest)

DISSENTING OPINION
The majority concludes that the appellant’s convicti on for felony murder was committed during the perpetra tion of a theft. I am unable to join in this conclusion as I find that neither the law of this State nor the facts of this case support such interpretation. The majority reasons that, because the appell ant was “exercis ing control over stolen pr

operty” when the homici de occurred, the homicide w as committ ed in the perpetra tion of t he felon y.

As I read the opinion, because theft (exercising contr ol) is a continuing offense, the offense continues as one criminal transaction as long as the perpetrator remains in possession of the sto len property. Accordi ngly, under majority rationale, if death, at any point, results from the operation of the stolen v ehicle, felony murder prosecution would attach. The question of whether a cr ime is one of a continuing nature, as opposed to wh ether a c rime is committ ed durin g the pe rpetrat ion of a felony, poses two entir ely separate questions . Here the majority mer ges the two. I agree with the majority that, in this case, theft is a continuing offense f or the purpose of establishing jurisdi ction. However, I disagree that this fact, per se, permits application of the felony murder rule. See, e.g. , Doane v. Commonwealth , 237 S.E.2d 797, 798 (Va. 1977) (refusi ng to apply theft as a conti nuing offense for2

purposes of the felony murder rul e).

Moreover, the majority’s acknowledgment of previous appellate rulings of this state which requir

e the underlying felony to have been committed in purs uance of the unlawful act and not coll ateral to it is belied by their reasoning that, as long as the underlying felony is of a continuing nature, felony murder prosecution is

warra nted. Thi s preci se issu e was c onfronted in the c

ase of State v. Gilliam , which is virtually i dentical to the case before us. State v. Gilliam , No. 03C01-9109-CR00287 (Tenn. Crim. App. at Knoxv ille, Apr. 20, 1992), perm. to appeal denied , (Tenn. Sept. 21, 1992). In Gilliam , the defendant stole a vehicle from a car lot and eighteen days later i n an adjoining county, w hile being pursued by the police, killed three people in a head-on coll ision. Gilliam , No. 03C01-9109-CR-00287. This court, in reversing

the defendant’s conviction for fir st degree felony murder, hel d that the “defendant’s operation of the vehi cle on the date of the crash wa s a collateral act, merely incidental, bearing no intimate relat ionship with the underl ying felony. We find no unity of time, place or purpose betw een the theft and the ultimate deaths of the three young victims.” Gilliam , No. 03C01-9109-CR-00287. In the instant case, the appellan t had bee n in posse ssion of the stole n vehicle f or twenty-o ne days when the homicide occurre d and was approximately eight hundred miles from the situs of the theft. The appellant and his companions had been residing in Bristol, Virginia, for approxi mately twenty day s. Consistent with the holding in Gilliam , I find, under these facts, that the homicide in the case before us bore no inti mate relationship to the theft. See, e.g. , Doane 237 S.E.2d at 798 (homicide not committed in perpetration of underlying theft where def endant had stolen vehicle previous day, 280 miles away).

The majority attempts to dist inguish Gilliam from the instant case by finding that Gilliam was charged with theft by taking, whi le the appellant in this cas e was charged with theft by exercising control. It is inescapable, however, that every3

defendant who commits a theft wil l, at some point, exerci se control over stolen property. The facts remain that both were charged w

ith theft, both were exer cising control over stolen v

ehicles, both were being pursued for traffic violatio ns and both were attempting to av

oid apprehension by the poli ce before the collisions and resulting deaths occurred. Ironically, under majority rationale, the thief who actually steals the car is not subject to felony murder prosecution while the arguably less culpable person, the receiv er of the stolen property, i s subject to punishment of death by electrocution. M oreover, under the majority’s application of a “c ontinuing offense” theory, a defendant in possess ion of a stolen vehicle ten, twenty or thirty years after the date of taking , who hits a pedestrian w hile operating the stolen vehicle resulting

in the pedestrian’s death, w ould remain criminally

liable under the felony murder rule. The pri nciples applied in Gilliam were intended to prevent such strained results. These pr inciples are neither new nor novel to the juris prudence of this state. Our courts have held that, in order t o fall within the prov

isions of the felony murder statute, the homicide must have been committed “i n pursuance of the unlawful act, and not collateral to it.” State v. Farmer , 296 S.W.2d 879, 883 (Tenn. 1956). “The killing must have had an intimate relati on and close connection with the felony and not be separate, distinct, and indepen dent from it.” Id . (citing Wharton on Homicide , § 126). In other words , a homicide is committed duri ng the perpetration of a felony if the homicide is commit ted within the res gestae of the felony. See Smith v. State , 354 S.W.2d 450, 452 (Tenn. 1961). Within the context of the felony murder rule, the res gestae requir es that t he felony

and homi cide be p

art of a continuous transaction, that the homicide be incident to the felony , or that there be no break in the chain of events between the felony and the homic ide. See generally Erwin S. Barbre, Annotat ion, What Constitutes Terminati on of Felony for Purpose of Felony-Murder Rule , 58 A.L.R.3d 851, 856, 865-874 (1974) . The res gestae embraces not only the actual facts of the transaction and the cir cumstances surrounding it, but als

o the matters immediately antec edent to the transaction and having a direct causa l connection with it, as well as acts immediat ely following it

and4

so closely connected as to form in reality a part of the occurrence. Payne v. State , 406 P.2d 922, 925 (Nev. 1965). Thus, the res gestae of the crime begins at the point where an indictabl e attempt is reached, and ends w here the chain of events between the initial cr

ime and the homicide is broken. See Parker v. State , 570 So.2d 1048, 1051 (Fla. Dist. Ct. App. 1 1990); State v. Rider , 625 P.2d 425, 430- 431 (Kan. 1981); Payne , 406 P.2d at 924; Commonwealth v. Kelly , 10 A.2d 431, 433 (Pa. 1940).

The defendant’s actions must be one contin uous integrated attempt to successfully complete his crime and escape. Factors to be considered in determining whether ther e has been a break in the chain of ci rcumstances include the relationship between the underlying felony an d the homicide in point of time, place, and causal relations hip. Farmer , 296 S.W.2d at 883. In the case of flight, an important consideration is whether the fleeing felon has r eached a place of temporary safety. See People v. Ford , 416 P.2d 132, 141 (Cal. 1966), cert. denied , 385 U.S. 1018, 87 S.Ct. 737 (1967) , overruled in part by , People v. Satchell , 489 P.2d 1361 (Cal. 1971); People v. Boss , 290 P. 881, 883 (Cal. 1930); Parker , 570 So.2d at 1051 (citing LaFav e, Substantive Criminal Law § 7.5 (1986)); Lampkin v. State , 808 P.2d 694, 696 (Okla. Crim. App. 1991). If these f actors, considered in light of the circumstances of the particular incident, r eveal a definite break in the chain of events, eliminating the possibility of one continuous transaction from the initial attempt of the underlying felony to the homicide, then the felony murder rule cannot be applied.

I am unable to find any jurisdiction in these United States which would support a conviction for felon y murder under the facts of this case. A number of jurisdictions have ad opted a “safe haven” approach i n determining whether the particular facts of the case ar e sufficient to establish a break in the chain of events from the underlying felony to the subsequent homicide. Al though the majority5

alluded to this co ntempo rary appro ach, no a nalysis was p erforme d as, obvio usly, under a “continuing offense” theory, there would never be a place of tem porary safety.

In sum, our task in this appeal is to construe what the legislature intended by the phrase “in the perpetrati on of.” The standard applied by the majority is, in effect, no standard and provides no workable principle for future cases. As previously stated, I believe this decision overrules existing case law which had previously defined the boundaries of the phrase “i n the perpetration of.” Moreov er, the majority’s opinion r

emoves the rationale behind th e legal boundaries and ig nores the objectives of the legal fiction of felony-murder. This concept of vicarious li ability deserves no extension beyond its required app lication.

While I have concluded that the f elony murder rule was misapplied in this case, this does not mean that the appel lant’s unlawful conduct sh ould be excused. It only means that the appellant’ s guilt should be establi shed upon an offense for which culpability

exists, not upon the ov erextension of an artificial concept. For the above reasons, the appellant’ s conviction for felony mur der should be reversed and this cause should be remanded for tr ial on all lesser included homicide offenses of second degree murder, cri minally negligent homicide, vehicular homic ide and reckless homicide.

____________________________________ DAVID G. HAYES, Jud ge