By David Brand
The cases of two men charged in the tragic death of a Queens detective have renewed scrutiny of a specific type of murder charge that does not depend on intent to kill or even proximity to a victim.
NYPD Detective Brian Simonsen was shot and killed by a fellow officer while responding to a robbery at a Richmond Hill cellphone store in February. The two men allegedly involved in the robbery were both charged with felony murder under a statute that enables prosecutors to charge a defendant with murder if someone dies during their commission of another felony.
The controversial charge has a long, high-profile history in New York.
In 1995, Edwin Smith was squatting in an abandoned building in Jamaica when his lit candle ignited a fire that engulfed the two-story structure. He and other squatters fled, but they did not tell firefighters that the building was empty. FDNY Lt. John Clancy died in the blaze.
Queens prosecutors charged Smith with felony murder for the incident because, they said, he made the “conscious decision'' not to tell the firefighters that no one was inside the building. A judge sentenced Smith to 17 years in prison, but his conviction was overturned in 2000 based on poor counsel.
Marcell Dockery was 16 when he torched a mattress inside his Brooklyn apartment building in 2014. He later told investigators he was “bored.”
NYPD officer Dennis Guerra responded to the fire and died of smoke inhalation. The DA’s Office and Guerra’s family acknowledged that Dockery did not intend to kill Guerra, but prosecutors charged him with felony murder. A Brooklyn jury convicted Dockery and a judge sentenced him to 19 years in prison in 2017.
The February death of Simonsen has prompted questions about felony murder, including exactly what circumstances and behaviors justify the charge
One defendant, Christopher Ransom, allegedly wielded a realistic toy gun inside the store, prompting a response from NYPD officers. The other, Jagger Freeman, allegedly served as a lookout during the robbery attempt.
Simonsen and Sgt. Matthew Gorman were the first to arrive at the store but left when Ransom aimed what turned out to be a toy gun, police said. As the two first responders exited, other NYPD officers opened fire, striking and killing Simonsen and wounding Gorman and Ransom.
Ransom was arraigned via video conference from a hospital in February. Freeman, an alleged accomplice, was arrested a few days after Ransom and was also arraigned in Queens Supreme Court. Both men face felony murder charges.
“The defendant and his co-defendant are wholly responsible and wholly culpable for the injuries sustained by Sergeant Gorman and the untimely death of Detective Simonsen,” said Assistant District Attorney Michael Curtis during Freeman’s arraignment.
A spokesperson for the Queens District Attorney’s office said the decision to charge a suspect with felony murder “is made on a case-by-case basis.”
“The law recognizes, however, that in some cases a charge of (felony) murder may be unduly harsh for an accomplice who played a relatively small role in the underlying felony,” the spokesperson said. “Therefore the statute (P.L. 125.25 [a-d]) provides for an affirmative defense for a defendant that did not commit the homicidal act or have any reason to believe it would be committed and who was not armed with a deadly weapon or dangerous instrument and had no reason to believe any of the other participants were so armed. Frequently this raises a question of fact for the jury. As an affirmative defense, the burden is upon the defendant to prove it by a preponderance of the evidence.”
Ronald Nir represents Freeman and is tasked with arguing against the felony murder charge, though he said he has not yet received discovery materials from the Queens DA’s office. Nir said prosecutors “put the cart before the horse” when pursuing felony murder charges without considering that an accomplice, like Freeman, might have known little about the alleged crime before it was committed.
“The facts and circumstances are not fully known or fully explored at the current time but I fully expect that Mr. Freeman will be exonerated of all charges that resulted in the passing of Detective Simonsen,” Nir told the Eagle. “We are all saddened by the loss of Detective Simonsen, and that includes my client.”
Ransom’s attorney Mihea Kim declined to talk with reporters, but Ransom has conducted at least two recent interviews, telling THE CITY that he had wanted to commit “suicide by cop” before telling the Daily News that the robbery was a “prank gone horribly wrong.”
A version of the felony murder statute exists in most U.S. states, though some, like Hawaii, Kentucky, Massachusetts and Michigan have abolished it. California scaled back its felony murder statute last year.
The statute has long generated controversy — specifically around what type of activity constitutes involvement in someone’s death — dating back to at least the 19th Century (accounts vary about whether the rule is rooted in English common law or is a uniquely American invention). Whatever its origin, England abolished the statute in 1957, and other Commonwealth countries followed suit. Canada ended felony murder for accomplices in 1990.
More than 40 states, including New York, enforce some version of the felony murder statute. Supporters say it holds people accountable for causing someone’s death, even if that was not their intent.
“Make no mistake about it, friendly fire aside, it is because of the actions of the suspect that Detective Simonsen is dead,” said NYPD Commissioner James O’Neill at a press conference the night of Simonsen’s death.
Opponents of the statute contend that accomplices like Freeman face a punishment severely disproportionate to their role in a person’s death.
A Florida man, for example, was convicted of felony murder in 2004 because he loaned his car to an acquaintance who, along with three others, attempted to steal a safe from a drug dealer. The burglary went wrong and one of the men killed the dealer’s 18-year-old sister. The car owner was at home, more than a mile away from the site of the slaying. He is now serving a life sentence.
“Just because I lent these guys my car, why should I be convicted the same as these people that actually went to the scene of the crime and actually committed the crime?” the man told the New York Times in 2007.
Critics also say that the statute disproportionately affects people of color, who account for an overwhelming majority of felony cases in New York City.
“New York is moving progressively toward criminal justice reform and we’re making great strides, but we’re still in the Dark Ages when it comes to having the felony murder statute,” said Jamal Johnson, the director of Legal Aid’s Homicide Defense Task Force. “It’s a senseless law that makes it easier to convict young black and brown men of murder and put them in jail for rest of their lives.”
Johnson also said the law violates the norms of the criminal justice system by not requiring mens rea — the intent to commit a specific crime.
“You do this without requiring the kind of intent that should be required when you’re asking a jury to put someone in prison for the rest of their life,” Johnson said. “What is built into our law is this belief that individuals should be convicted of crimes that they committed and that they intended to commit — that’s mens rea.”
“It’s so ingrained in our criminal justice system, but this particular law is the only law that allows for conviction without specific mens rea,” he continued. “For a charge that requires life [in prison] if convicted, to take the away mens rea element is profoundly unjust.”
The statute receives significant attention during high-profile cases, as in the death of Simonsen. But plenty of lower-profile defendants also face the felony murder charge.
On Tuesday, jury selection began in the case of Nycocan Mattocks, a Brooklyn teenager charged with felony murder for allegedly breaking into an apartment where the occupant, a 68-year-old woman, experienced a fatal heart attack.
Mattocks was 17 when he allegedly robbed the victim’s Canarsie home.
Additional reporting by Noah Goldberg.