Opinion
No. CR08-233569 T
December 8, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#23)
The defendant, Marquis Jones, stands charged with felony murder and murder arising out of the shooting death of Horace Cheatham on December 27, 2002. In the present motion, the defendant seeks dismissal of the felony murder charge on the ground that such charge is barred by the statute of limitations. This motion was denied by the court in an oral ruling on February 10, 2010.
The facts are not in dispute. Horace Cheatham, the victim, was shot and killed on December 27, 2002. An arrest warrant was issued for the defendant charging him with the Cheatham murder on April 23, 2008 — more than five years after the date of the homicide. The defendant asserts that because the arrest warrant was issued beyond the five-year statute of limitations for robbery (§ 54-193(b)), his prosecution for felony murder based on an underlying robbery is also barred. The defendant has cited no authority for this assertion.
Our felony murder statute, as relevant here, reads as follows:
A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery . . . and in the course of and in furtherance of such crime or flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants . . .
General Statutes § 53a-54c.
Felony murder is a class A felony. General Statutes § 53a-54a(c). The statute of limitations applicable to a class A felony reads as follows:
There shall be no limitation of the time within which a person may be prosecuted for . . . a class A felony . . .
General Statutes § 54-193(a).
The meaning of these two statutes is, in the first instance, to be ascertained from the plain meaning of the text itself. General Statutes § 1-2z.
The defendant's position is that the expiration of the statute of limitations for the predicate felony in a felony murder prosecution also bars the prosecution for felony murder itself. In other words, because the five-year statute of limitations for robbery had expired before the defendant's arrest warrant was signed, the defendant asserts that he cannot be prosecuted for a robbery-based felony murder charge. This position is unpersuasive for three reasons:
First, the plain meaning of § 54-193(a) expressly provides that there is no statute of limitations for a class A felony such as felony murder. To accept the defendant's position would mean that all felony murder prosecutions were time-limited by the statute of limitations for the underlying felony. Such a result is completely inconsistent with the present legislative scheme.
Second, § 53a-54c does not make a prosecution or conviction for robbery an element of a robbery-based felony murder. As in all felony murder prosecutions, the underlying violent felony provides the mens rea that substitutes for an intent to kill. Accordingly, whether or not a robbery count could be brought is irrelevant to prosecution for felony murder.
Third, although this court has found no Connecticut case addressing this issue, decisions from other jurisdictions have uniformly held that expiration of the statute of limitations for the predicate felony does not bar a prosecution for felony murder. See People v. Seals, 285 Mich.App. 1, 13 (2009) ("the expiration of the statutory period of limitations for a predicate felony does not serve as a bar to conviction for . . . felony murder); State v. Jones, 274 Ga. 287, 288; 553 S.E.2d 612 (2001) (running of the statute of limitations is irrelevant to prosecution for felony murder); People v. Holt, 91 Ill.2d 480, 485; 440 NE.2d 102 (1962) (conviction on the underlying felony is not an element of felony murder and the statute of limitations applicable to the underlying felony is irrelevant to charge and conviction for felony murder); State v. Lacy, 187 Ariz. 340, 350; 929 P.2d 1288 (1996) (even if the statute of limitations has expired on the predicate offense, a defendant may still be prosecuted for felony murder).
The motion to dismiss is denied.
So Ordered at Bridgeport, Connecticut this 8th day of December 2010.