Rose v. State

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Brian Rose was convicted of second-degree murder with the use of a deadly weapon. During the trial, the State relied on the felony-murder rule as one of its theories for second-degree murder. On appeal, Rose contended that assault with a deadly weapon cannot not be used as a predicate felony to obtain a second-degree murder conviction under the felony-murder rule because it merges with the homicide and thus is barred by the merger doctrine. Therefore, Rose argued that the State's reliance on this theory and its instructions regarding second-degree felony murder were improper. The Supreme Court reversed, holding (1) assaultive-type felonies that involve a threat of immediate violent injury merge with a charged homicide for purposes of second-degree felony murder and therefore cannot be used as the basis for a second-degree felony-murder conviction; (2) because the crime at issue in this case could be assaultive based on the manner in which it was committed, the district court erred when it failed to instruct the jury to determine whether the felony underlying the second-degree felony-murder theory was assaultive; and (3) the error was not harmless beyond a reasonable doubt in this case. Remanded. View "Rose v. State" on Justia Law