Reciting the language of Arizona's felony murder statute, the trial judge in Jackson v.Ryan, (9th Cir. Ariz. 9/1/2011, No. 10-15067) stated that: “[A] person commits first degree murder if such person, acting alone or with one or other persons, commits or attempts to commit robbery or kidnapping, and in the course of and in the furtherance of such offense, or the immediate flight from such offense, such person or another person causes the death of any person.” However, the judge went on to say that the "homicide [need not] have been committed to perpetrate the felony." And, it ended by declaring: "It is enough if the felony and the killing were part of the same series of events."
The reviewing court held that the introductory sentence reciting the statutory language was not sufficient to cure the court's final and incorrect assertion that felony murder had no facilitation requirement.
First, the reviewing court emphasized that in assessing how a reasonable juror would have understood the charge, the court must pay "careful attention to the words actually spoken to the jury." Sandstrom v. Montana, 442 U.S. 510, 514 (1979) (citing Ulster Cnty. Court v. Allen, 442 U.S. 140, 157-59 n.16, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979)).
Next, the court noted that (1) A reasonable juror would have understood the court's opening sentence to mean that there is an "in furtherance of" or facilitation element in felony murder and (2) at the same time, a reasonable juror would have understood the court's final "same series of events" sentence as meaning the opposite—that there must be only a temporal link between the underlying felony and the homicide. Finally, the court looked to "'the context of the overall charge'" (Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir. 2010) (quoting Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973)) and found three features illustrative: (1) the fact that the "same series" sentence was the court's final word on the elements of felony murder, (2) the use of the phrase "[i]t is enough," and (3)the lack of any other clarifying instruction. Taking these factors together, the court held that a reasonable juror would have resolved the court's contradictory explanations of felony murder by finding that the "same series of events" instruction negated its "in furtherance of" instruction. Hence, there was “a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." Estelle v.McGuire, 502 U.S. 62, 72 (1991) (quoting Boyde v. California, 494 U.S. 370, 380 (1990)).
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