The predicate offenses of felon in possession of a firearm and possession of a stolen firearm do not support the charge of unintentional second-degree felony murder.
The opinion of the court was delivered by: Blatz, Chief Justice.
Heard, considered, and decided by the court en banc.
In this pretrial appeal, appellant Jerrett Lee Anderson challenges the court of appeals' decision reversing the district court's dismissal of the charge of unintentional second-degree felony murder for lack of probable cause. Anderson argues that, when the second-degree felony-murder statute is read in conjunction with our prior holdings, the court of appeals' decision must be reversed. We agree and hold that the predicate offenses of felon in possession of a firearm*fn1 and possession of a stolen firearm cannot support the charge of unintentional second-degree felony murder.
The facts giving rise to this appeal are not in dispute. On February 26, 2002, Jerrett Lee Anderson arrived at Blake Rogers' residence in Minneapolis and, at about 10:45 p.m., joined Rogers and a friend of Rogers in Rogers' bedroom. While there, Anderson showed them a 12-gauge shotgun, which was missing its rifle stock, and stated that the shotgun had been stolen. Rogers' friend handled the shotgun, and all three noticed that the shotgun was loaded. As the shotgun was returned to Anderson, Rogers was kneeling in front of his stereo system, inserting compact discs. Anderson then pointed the shotgun at Rogers, and it discharged, killing Rogers. Anderson and Rogers' friend fled the residence.
Anderson was charged with second-degree unintentional felony murder, in violation of Minn. Stat. § 609.19, subd. 2(1) (2002), and third-degree murder ("depraved mind" killing), in violation of Minn. Stat. § 609.195(a) (2002). The district court dismissed the second-degree felony-murder charge, ruling that felon in possession of a firearm and possession of a stolen firearm are not proper predicate offenses for second-degree felony murder.
The state appealed under Minn. R. Crim. P. 28.04, subd. 1, which permits appeals from pretrial orders of the trial court. In a 2-1 decision, the court of appeals concluded that possession of a loaded, stockless shotgun pointed at the victim was inherently dangerous. State v. Anderson, 654 N.W.2d 367, 372 (Minn. 2002). Accordingly, the court of appeals held that the district court erred in dismissing the second-degree felony-murder charge. Id. The dissenting judge argued that there is nothing inherently dangerous about the two predicate unlawful firearm possession offenses. Id. at 373. Viewing the majority holding as an unwarranted extension of the felony-murder doctrine to "status" offenses,*fn2 the dissenting judge explained that she "would [have affirmed] the trial court's pretrial order dismissing the unintentional murder in the second-degree (felony-murder) charge on the grounds that the 'status' offenses of unlawful possession of a firearm and possession of a stolen firearm cannot serve as predicate offenses to felony-murder." Id. at 372, 375. It is from this court of appeals' decision that Anderson appeals.
The single issue presented by this case is whether the offenses of felon in possession of a firearm and possession of a stolen firearm are proper predicate offensesfor a charge of unintentional second-degree felony murder. This issue is a question of law, subject to de novo review. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984). Whether a statute has been properly construed is also a question of law, reviewed de novo. State v. Stevenson, 656 N.W.2d 235, 238 (Minn. 2003).
We begin with the statutory provisions at issue. The felon-in-possession statute provides that a person who has been adjudicated delinquent of a crime of violence shall not be entitled to possess a firearm for 10 years following restoration of civil rights or expiration of his or her sentence, and a violator is subject to a penalty of up to 15 years imprisonment or a $30,000 penalty, or both.*fn3 Minn. Stat. § 624.713, subds. 1(b), 2 (2002). Similarly, the receiving stolen property statute provides that the offense of possession of a stolen firearm is subject to up to 20 years confinement or a fine of $100,000, or both. Minn. Stat. §§ 609.53, subd. 1 (2002); 609.52, subd. 3(1) (2002). The second-degree felony-murder statute, under which Anderson was charged, provides that a person who "causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting" may be sentenced to imprisonment for not more than forty years. Minn. Stat. § 609.19, subd. 2(1). This statutory provision does not define what constitutes "a felony offense."
To understand the felony-murder statute, it is helpful to review the historical backdrop surrounding its enactment as well as our case law. To begin, Minnesota's second-degree felony-murder statute codifies the common law felony-murder rule: "'if one intends to do another felony, and undesignedly kills a man, this is also murder.'" Rudolph J. Gerber, The Felony Murder Rule: Conundrum Without Principle, 31 Ariz. St. L. J. 763, 765 (1999) (quoting Sir William Blackstone, Commentaries on the Laws of England 947 (George Chase ed., 4th ed. 1938)). Viewed in historical context, the common law felony-murder rule, though stated broadly, was limited in scope and consequence because there were few felonies*fn4 at common law—all were mala in se*fn5 and most were life-endangering—and because all were punishable by death. 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, 1445-46 (1994). As a result, application of the felony-murder rule at common law was consistent with the requirement of mens rea because the malice required for murder could be imputed from the wrongful mental attitude for the predicate felony, and "it made little difference whether the felon was hanged for the felony or for the murder." 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 7.5, at 207 n.4 (1986); State v. Branson, 487 N.W.2d 880, 881 (Minn. 1992).
More recently, because the number of felonies has increased and many comparatively minor offenses are classified as felonies, malice is imputed from crimes that are much less severe than murder. Branson, 487 N.W.2d at 882. For this reason, many courts have judicially limited the application of the doctrine so that not every felony offense serves as a predicate felony ...