Can attempted murder be a predicate crime in felony murder?

Question

Say I hire someone to kill my wife, but my wife gets the better of him and kills him in self-defense.

I am guilty of at least attempted murder. Could I also be guilty of

1. Murder (presumably second-degree)
2. Felony murder (with the murder conspiracy as the predicate felony)

Yes, this is the plot of Dial M For Murder and yes, this question got me thinking.

I was reading the New York State statutes closely and it wasn’t clear to me. They don’t list murder itself as a predicate felony — I assume because accidentally knocking off some random bystander definitely still counts as a regular murder — but the felony-murder rule explicitly excludes co-participants, which feels fair. I don’t know if this is universal.

The provision in the second-degree statutes includes “third persons”, but does not explicitly say whether a participant would be counted as a third-person or not.

Is there any case law?

Answer 1

Can attempted murder be a predicate crime in felony murder?

The answer will depend on the specifics of a given state's felony murder provision. But, generally, felony murder can be predicated on an attempted murder, as long as the other elements of the states' felony murder provision are made out.

For example, see State v. Steen, 376 N.C. 469 (N.C. 2020). The defendant was convicted of first-degree murder "on the basis of the felony-murder rule using the attempted murder of his mother with a deadly weapon as the predicate felony."

The conviction was overturned, but on the grounds of erroneous jury instructions relating to whether the use of hands and arms could be considered a "deadly weapon." This was relevant because the North Carolina felony-murder provision is worded to include killings committed in the perpetration of any "felony committed or attempted with the use of a deadly weapon." There was no question that attempted murder could be the predicate offence in principle.

Answer 2

If your agent kills a bystander

Suppose you hired a knockoff Agent 47 (just much worse), and he is caught. We know from the photo in his pocket, that he was hired to kill Target A, but didn't get to that. But he did kill Guard B to get his uniform, and we find your fingerprints on the photo. What can we charge him and you with?

Oh, Attempted murder and Felony Murder: The attempted Murder of Target A is the predicate crime for the felony murder of Guard B. As the person hining the would-be killer, you also are in for incitement.

If your agent is killed by the target

Ok, now your agent is killed by the Guard B. First of all, you did not plan to kill your agent, and Guard B did act lawfully as he was attacked. So we have:

• A case of Self Defense by Guard B.
• No case against the dead Agent.
• A case of Attempted Murder of Target A against you (due to the photo with your fingerprints on it in the pocket)

Nothing changes if Target A self-defends your Agent to death, instead of Guard B. The whole Plot Dial M for Murder hinges on evidence tampering, which results in a bad verdict against Target A.

Answer 3

Many states have laws about murder for hire, and you would be guilty of one of those.

That is not participation in the murder or attempted murder of someone, so you would not be guilty of either.