Questions raised about whether shooting death was 'murder'

In a highly publicized New Marshfield fatal shooting case, Athens County prosecutors have used the so-called "œfelony murder" statute to indict for murder a defendant who, they acknowledge, probably had not the slightest intention of killing his victim.

To the legal layperson, it might seem odd that Matthew R. Culbertson, 26, is now facing up to 59 years to life in prison for having fatally shot 22-year-old Jerri L. Vernon while, based on authorities' accounts, Culbertson was engaging in drunken horseplay with a firearm he didn't realize was loaded.

The legal basis of the charge is firmly established, however "“ if controversial "“ and is widely used by prosecutors in Ohio and elsewhere.

John E. Murphy, executive director of the Ohio Prosecuting Attorneys Association, said his group doesn't track statistics on how widely the state's "felony murder" statute is applied. Based on anecdotal evidence, however, Murphy said, he believes it's a fairly popular piece of law with Ohio's county prosecutors.

"The felony murder section has been used quite frequently from what I hear, in definitely hundreds of cases," he said.

The felony murder concept basically says that you can be charged with murder if someone dies as a result of your committing or attempting a violent felony, whether or not you killed the person, or even meant him any harm. The functional concept here is "proximate cause," which means that, absent the felony you committed or participated in, the victim would not have died.

The felony murder concept is entrenched in American jurisprudence, dating back to English common law. Its application, however, has triggered controversy in recent years, especially when defendants who appear to be far from stereotypical "murderers" end up serving long prison terms.

In 2007, for example, The New York Times profiled Ryan Holle, serving life without parole in a Florida prison for having let a friend borrow his car in 2003. The friend drove three men to a drug dealer's home for a robbery, and one of them killed an 18-year-old woman in the home.

Holle was convicted of felony murder, under the theory that not only is an unintended killing during the course of a felony a murder, so is a killing by an accomplice to a felony.

Other countries, including England, India and Canada, have abolished their felony murder doctrines, but it still exists in the United States, the Times noted.

One might argue the doctrine has an appropriate use "“ to punish the getaway car driver in a bank robbery where a guard gets killed, for example, on the presumption that someone taking part in an armed robbery knows it entails a serious risk that someone may be injured or killed.

But Murphy argued that Ohio lawmakers probably felt it was appropriate to file a murder charge even in cases where the alleged perpetrator of a felony that resulted in a death had no reason to anticipate the lethal outcome.

"There's no reason to think that the offense was intended to be limited to situations where everyone thought there was going to be violence involved," he said.

He noted that the "underlying" offense that triggers the felony murder charge must be defined as a crime of violence, and a felony of the first or second degree.

In Culbertson's case, that underlying felony is felonious assault, which is based on his having allegedly aimed a firearm at Vernon and three other people, and pulled the trigger. This act alone, argues Athens County assistant prosecutor Keller Blackburn, constitutes a felonious assault under Ohio law.

In support of this claim, Blackburn cites an Ohio appellate court case dating from 1978, State v. Tate. That case, according to Blackburn, essentially found that pointing a gun at someone, empty or not, is a felonious assault.

Another appellate ruling, in 1989's State v. Brooks, found that something more was needed than the mere act of pointing the weapon to meet the criteria for felonious assault. However, Blackburn maintains, he has that "something more" in the fact that Culbertson not only pointed the gun, but also pulled the trigger, creating a situation he should have known was highly dangerous.

"When you pull the trigger, that's not an accident," he contended.

Blackburn also hinted that if the case goes to trial, jurors will hear evidence suggesting that Culbertson, who has experience with guns, was not "“ or should not have been "“unaware the firearm was loaded.

After a semi-automatic weapon fires its last bullet, Blackburn said, the slide locks, which it didn't in this case. "There have been allegations that he didn't know the gun was loaded," Blackburn noted. "That's not credible."

CULBERTSON'S DEFENSE ATTORNEY, John Lavelle, however, scoffed at the prosecutor's attempt to make a felonious assault charge out of a gun pointed in what appears to have been a stupid jest.

"It's a gross over-indictment, is what it boils down to," Lavelle suggested. (Culbertson is facing one count of felony murder, two counts of involuntary manslaughter, one count of reckless homicide, four counts of felonious assault, and one misdemeanor counts of using weapons while intoxicated.) "In my opinion, this dog just ain't going to hunt."

Lavelle noted that Ohio's legal definition of felonious assault requires the perpetrator to "cause or attempt to cause physical harm" by means of a deadly weapon or dangerous ordnance. The defense attorney said he can't see how anyone could show that his client caused or attempted to cause harm simply by pulling the trigger on a gun he thought was empty. The other people who were present at a New Marshfield residence the day Vernon was killed, he said, and whom the state is calling the other felonious assault victims, were close buddies of Culbertson, he said.

"These are best friends!" he said. "These guys were like brothers!... There's no mens rea (a legal term for evil intention) here."

Andrew Stevenson, president of the Ohio Assocation of Criminal Defense Lawyers, said that defense attorneys in the state have gotten used to what they consider "overcharging" in felony cases. From a prosecutor's point of view, he said, it makes perfect sense to pile on charges, because this encourages a defendant to take a plea bargain.

"My experience is that it happens frequently," Stevenson said. "Is the thought of a plea bargain on their minds? Of course."

There is another consideration as well in a homicide case, he said; while investigators may initially believe, as with Culbertson, that the defendant didn't plan to kill anyone, later investigation may make them change their mind. If they haven't charged the defendant with some type of homicide count, they may have to return to a grand jury for a new indictment, while charges can always be dropped with little difficulty.