## Facts

- Andrae Barnett got into an altercation with Kevon Moses.
- During the confrontation, Barnett picked up a garden hoe and approached Moses.
- Moses backed away and tripped.
- Barnett struck Moses in the back of the head with the hoe.
- Moses died from the blow.
- The State charged Barnett with felony murder under Ala. Code § 13A-6-2(a)(3), alleging first-degree assault as the underlying felony.
- A jury convicted Barnett of felony murder, and Barnett appealed.

## Issues

1. May felony murder under Ala. Code § 13A-6-2(a)(3) be based on first-degree assault when the assaultive act is the same act that caused the victim’s death (i.e., the assault merges into the homicide)?
2. Did Barnett preserve for appellate review his challenge to using first-degree assault as the predicate felony?

## Decision

- The Alabama Court of Criminal Appeals reversed Barnett’s felony-murder conviction and remanded the case for further proceedings.
- The court held that first-degree assault could not serve as the predicate felony for felony murder where the assault was the act that resulted in the victim’s death, because the assault merged with the homicide.
- The court addressed Barnett’s challenge on the merits and concluded that convicting him of felony murder on this theory improperly removed the need to prove the mens rea ordinarily required for a homicide offense.

## Legal Principles

- Ala. Code § 13A-6-2(a)(3) imposes felony-murder liability when a defendant, in the course of and in furtherance of an enumerated felony (or another felony clearly dangerous to human life), causes a death.
- Under the merger doctrine, an assault that directly results in the victim’s death is not sufficiently independent of the homicide to serve as the predicate felony for felony murder.
- Allowing a homicide-causing assault to supply the felony-murder predicate would, in many cases, convert what is essentially an unlawful killing into felony murder without requiring the State to prove the mental state that distinguishes murder from lesser homicide offenses.
- When the only felony alleged is the assault that produced the fatal injury, the proper charging path is through the homicide statutes (e.g., intentional murder, reckless murder, manslaughter), not felony murder predicated on that assault.

## Conclusion

The court reversed and remanded because the State’s felony-murder theory depended on first-degree assault based on the same act that caused Moses’s death, and that assault merged into the homicide and could not serve as the independent predicate felony required for felony-murder liability under Alabama law.


Barnett v. State, 783 So. 2d 927 (2000)