There is an interesting case out of Orlando that raises questions about the use of felony murder charges by prosecutors whenever there is a fatality in the commission of a crime. Kody Roach was charged with felony murder even though he never fired a shot and the victim, Maria Fernada Godinez, 22, was actually killed by a police officer.
According to reports, three officers were dispatched to the Vixen Bar after a bouncer reported to a 911 operator that “I have a gun-wielding maniac. He set it on the bar top and he wielded it many times. I had to throw him out.” While the bouncer was unarmed, he was able to remove Roach from the bar but when the first two officers arrived, Officer Eduardo Sanguino and a fellow bicycle officer, Jeff Angel, they said that Roach was at the bar’s locked door.
News reports state that “surveillance video obtained by Vixen Bar shows Roach dropping his gun after he was kicked out of the bar for carrying a gun.” However, that does not appear to be the account of the officers.
They say that Roach walked to the street “pointing his right hand at the officers,” and ignored commands to get on the ground. Instead, he began to walk back toward the bar. Angel fired his Taser but said that the taser had little effect due to Roach’s loose clothing. They say that Roach went for his waistband with his right hand, and according to the affidavit in the case:
“In order to prevent an armed individual from causing harm to any members of the public or to any of the surrounding officers, Ofc. Sanguino discharges his firearm nine times striking Roach at least five times.”
They say that when he fell, Roach dropped a .40 caliber Ruger handgun from his right hand — a stolen gun that was later found the gun to be unloaded. Only Sanguino appears to have fired any shots.
It was then that the officers learned that one of their bullets had passed through a hole and hit Fernanda Godinez.
The use of the felony murder charge has long been controversial in such cases, particularly because some have questioned why an unarmed bouncer could remove Rouch but three officers had to fire multiple shots to subdue him. We have previously discussed the sharp statistical difference between officer shootings in this country as opposed to other countries.
Roach however has not been charged in the stolen-gun case — a charge stemming from the disappearance of a weapon from a friend’s apartment after an argument. Notably, Roach has a criminal history dating back to 2009 that includes charges of battery on a law-enforcement officer, grand theft, violating probation and driving with a suspended license.
The Florida felony murder statute (like virtually all such statutes) does not require that the perpetrator pull the trigger or even know of or support the ultimate act. He is only required to have been engaged in a felony during which a life was taken. However, the law was designed with murders in mind that were caused by co-conspirators like a partner shooting a convenience store clerk. Here it was the police who killed the woman and Rouch had an unloaded weapon. Ideally, such cases are handled by prosecutorial discretion but prosecutors today radically inflate charges to force defendants to take tough plea agreements or face life in prison.
The officers clearly have a right to defend themselves and they may indeed be cleared of any wrongdoing. However, there remains the question of whether the death of this young lady should be charged as murder against Rouch. He is by no means blameless of course but the case raises the question of the reasonable limits (or any limits) in the charging of felony murder in such cases.
What do you think?
Kudos: Michael Blott
Yes, Paul, absolutely, we have a police action which at the very minimum is negligent. If the shooting is no good, criminal culpability could even attach to the police officer, but right now at the very minimum there’s a negligent action supporting a wrongful death cause of action. Of that I am 100% convinced.
I agree, Darren, there’s no reason to prejudge the actual case at hand of course. Indeed the actual shooting itself is very, very relevant here. If the shooting itself is justifiable, the errant bullet becomes negligence in my mind and applying felony murder remains equitable, if it wasn’t justified, then the errant bullet becomes reckless or worse and it becomes unfair to hold the defendant criminally liable for a bullet that shouldn’t have been fired in the first place.
Darren and NYC Pics – regardless the police dept is going to get sued.
This will depend on the outcome of the investigation for my analysis. The case does bring up some interesting legal approaches.
The undisputed facts are that the armed person was inside the bar clearly displaying a weapon. The possession of this person in a bar was unlawful. From the convictions stated in the article he could be banished from possession of a firearm and there has been an allegation the firearm was stolen. I am presuming these are felonies but for the purpose of being a felony murder it might be not applicable.
The situation is that there is the possibility of having to deal with an unstable person having a firearm. The measure of police reasonableness in shooting a firearm includes in significant part the facts that the officer had, or reasonably should have, that gave an officer the belief that death or serious harm could occur if a particular action was not taken. The standard beginning to be used by courts in my area is the Reasonable Officer standard. That is would a reasonable officer, given the circumstances known or reasonably perceived by the shooting officer, likely act in the same manner as the shooting officer.
I haven’t seen the investigation on this but for the purpose of discussion the suspect made a furtive movement that is consistent with drawing a firearm in a matter that is consistent with both training and history as to an aggravated assault, murder, or attempted murder,
If the suspect performed the actions in the last paragraph, even if the gun is not loaded, that still would not be something that an officer could determine given the extreme time restraints and the inability to see if a firearm was unloaded from a distance with absolute certainty.
From a legal area this falls within a bit of gray. Assaulting an officer is considered in my officers to be a felony, but in this state does simply assaulting an officer considered part of that to be included in a felony murder? Here if the case was that the suspect pulled a firearm on the officer or made the officer reasonably believe a firearm was drawn on them, if this action is considered an aggravated assault, (even though not fired) then I believe the felony murder is applicable.
But not all states have the same definition of assault. Some states consider the assault to be the charge/menacing the person and the injury caused to be a battery. In this case it would be an assault but not a battery. This could be a matter but it is not necessary.
In WA there is no concept of Battery, assault includes what other jurisdictions codify assault and battery. Here pointing a firearm at somebody to give them a reasonable fear in the mind of the victim is still considered as an assault.
Furthermore in robbery cases, producing a counterfeit firearm or the inference of having a firearm to be used still makes this a armed robbery.
So if it is the case where the statutes there can consider the type of threat directed against the suspects is a felony assault and as a direct causation of this action the police, authorized to use deadly force upon the investigation as to if the shooting was justified, the fact that this unfortunate woman who died could result in a felony murder charge against the suspect.
I personally don’t see any facts here that pull on the equitable heart strings. The fire was directed at the defendant. If the use of force is ruled excessive or if there isn’t a sufficient nexus between the police action and the defendant’s crime, then I can see crafting exceptions to the rule, ie. imagine if a police cruiser strikes and kills a pedestrian en route to a crime scene miles away. Nevertheless, I still believe the state should remain civilly liable in negligence for a wrongful death suit. At the end of the day, the defendant created the dangerous circumstance.
Annie,
There is a significant difference between exposing the challenges law enforcement encounters every day in the line of duty and condoning abuses of law enforcement. I would be grossly ignorant to believe you are defending the suspect merely because an innocent woman was killed. If you lack the critical-thinking skills to make that distinction then that explains much of what I read from you.
Need a little scratch doggie? I see your tail wagging.
Annie: By the Grace of Dog go thee.
Missouri has a felony murder statute. This is where Dorian Johnson could be for the killing of his co felon partner after the cigar robbery in Ferguson.
Beldar – Dorian Johnson has some real problems facing him. The more he can keep the narrative on Wilson and off him and Brown the longer he stays out of jail.
Up next:
The cameraman is responsible for the (insert the police homicide/murder) actions.
Annie
Some people don’t like accountability.
When I was young, around 14 or so, I got in trouble at home and got grounded… So I went out to the front yard to declare my father a hater. “You just hate me!!!”
I think of it this way now, calling out a priest that abuses children isn’t being a religious hater… It’s holding that institution responsible in just the same way holding irrational police accountable isn’t police haters gone mad.
It could be asked… Where was the good cop with a gun to protect Ms Godinez?
When accusations of ‘cop haterism’ always accompanies any blog post on police abuse and overreach, one must wonder if these acts are sanctioned by such people. Those who agree with the continuing nation wide police abuses seem to think they and their loved ones with be somehow immune from it happening to them. Some people have a very difficult time putting themselves in the shoes of other’s. There by the grace of God go I….
Any old guy, I agree.
http://trackemtigers.com/wp-content/uploads/2012/12/pot_stirrer_medium.jpg
Jeff
In that flash bang case where the infant was hurt, the pd involved refuses to pay damages.
The correct discussion seems to be around police being less likely charged for homicides while in the line of duty…
The account starts with clear evidence of lying on the part of the police. So their story is already suspect.
The person doing the shooting is responsible for their bullets – very simple. To shift that responsibility to another party is fantastically dishonest and dishonorable. We should not allow police to avoid responsibility for their use of force and they should demand of themselves performance at the highest level as if they are fully responsible for their actions.
I read that following up on the recent no-knock raid, where an infant in crib was nearly killed and suffered lifetime injuries by a stun grenade thrown into the crib, the police tried to blame their use of the grenade on the criminal they didn’t find at the address. No guns or drugs were found.
Jeff – on the grenade in the crib incident, the city or town or whatever is refusing to pay the child’s hospital bill.
“Blah, blan, blah, Dick.”
Correction:
Blah, blah, blah, Nick.
Pretty much the same, though.
Maybe it’s just me but it seems the only hope an Officer has to escape controversy anymore is to become a “provable” victim at the crime scene. Police engagements seem to be a lose/lose situation. The common refrain is “when seconds matter, the Police are only minutes away”. Had the Officers chose to rush the suspect and then injured him in the process they would have been accused of excessive force. Had the Taser killed him they would have been accused of excessive force. Had they forgone the Taser and fired their handgun they would be accused of excessive force.
As Jack eloquently described, these are split-second decisions that must be made typically with incomplete information. And unless I missed it, no mention of the race of the Officers involved. Well done.
Blah, blah, blah, Dick.
What a great morning here @ the Turley blog. Kudos to all who have made that happen and thanks to those who have abstained.
Sorry to be picky, but “misfire” doesn’t mean “miss.” If you pull the trigger on a round but it doesn’t go bang, that’s a misfire.