manslaughter concerning causing the death of another
while fleeing or attempting to elude a law enforcement
officer while operating a motor vehicle. See N.J.S.A.
2C:11-4a(3). The second and third are additional
categories of aggravated assault. They involve the causing
of serious bodily injury and bodily injury while operating
a motor vehicle in the course of fleeing or attempting to
elude a law enforcement officer. See N.J.S.A. 2C:12-
1b(6); N.J.S.A. 2C:12-1b(7).
A. Felony Murder
Felony murder, N.J.S.A. 2C:11-3a, is a strict or
absolute liability crime under N.J.S.A. 2C:2-3e; see also,
State v. Martin, 119 N.J. at 11. The defendant is,
therefore, only responsible for the results which are the
“probable consequences” of his conduct. Id. at 26. A
probable consequence is one which is not “too remote,
accidental in its occurrence or too dependent on
another’s volitional act to have a just bearing on the
defendant’s culpability.” Id. at 33. See also State v.
McClain, 263 N.J. Super. 488, 494 (App. Div.), certif.
denied, 134 N.J. 477 (1993); State v. Mujahid, 252 N.J.
Super. 100, 113 (App. Div. 1991), certif. denied, 127 N.J.
561 (1992).
In a felony murder case involving robbery, it was held
that the trial court’s failure supplement its reference to
“probable consequence” in the jury charge with the “not
too remote” language” was not plain error in a situation
where such supplemental language was not requested.
State v. McClain, 263 N.J. Super. at 494-96.
In felony murder cases involving multiple
perpetrators, the focus should be on the relationship
between the victim’s death and the felony, not the
individual roles of the various perpetrators. State v.
Martin, 119 N.J. at 33. Hence, an otherwise culpable
accomplice may be liable for the death of the victim even
if he or she was merely a lookout for the driver of a getaway
car. Id. The point is that a defendant should be
exculpated only when a death occurs in a manner that is
so unexpected or unusual that he or she could not justly
be found culpable as a result. Id.
The majority of cases in this area involve allegations
of improper jury instructions. A proper jury charge as to
causation in felony-murder cases must include the two
statutory elements of N.J.S.A. 2C:2-3e: (1) the
“antecedent but for” element; and (2) a finding that the
result was a “probable consequence of the actor’s
conduct.” State v. Smith, 210 N.J. Super. 43, 55-56 (App.
Div.), certif. denied, 105 N.J. 582 (1986) (failure to
charge both elements was plain error where fleeing
robber, driving at a high rate of speed through a stop sign,
struck another vehicle whose driver had a pre-existing
heart condition); State v. Whitted, 232 N.J. Super. 384,
390 (App. Div. 1989) (failure to charge probable
consequence element was plain error where expert
testimony indicated that the stress and excitement of a
burglary caused the heart diseased victim to expire during
the course thereof).In cases where the issue of causation is disputed, both
the defendant and the state are entitled to a jury charge
consistent with their respective versions of the facts. State
v. Martin, 119 N.J. at 16-17.In State v. Green, 318 N.J. Super. 361 (App. Div.
1999), aff’d., 163 N.J. 140 (2000), three police officers
in a police car followed defendant as he drove his vehicle
from a known crack house to a nearby parking lot and one
of the officers approached defendant on foot at
defendant’s driver’s side window. Id. at 367. Defendant
threw his car into reverse and then moved it forward,
hitting the police officer’s leg and bruising it. Id. at 368.
The officer then punched his hand through defendant’s
driver’s side window in an attempt to turn off the
ignition, and injured his hand in the process. Id. On
appeal, defendant asserted that since the officer’s injuries
could have been caused by his own conduct, the trial
court’s failure to charge the jury on causation was plain
error. Id. at 366. The Appellate Division agreed, holding
that where, as in this case, a factual issue existed regarding
causation, the trial court’s failure to give a fact-specific
causation charge was plain error. Id. at 373.However, in a felony-murder case involving arson
where the issue of causation was not in dispute (i.e. that
there was no question that the deaths were caused by the
deliberately set fire and defendant offered only a
complete denial), a causation instruction was not
required. State v. Mujahid, 252 N.J. Super. at 113.B. Drug-Induced Death
N.J.S.A. 2C:35-9, the Code section which defines
the strict liability offense for drug-induced deaths sets
forth the causation requirement to be proven. That
statute expressly states that the causation provisions of
N.J.S.A. 2C:2-3 do not apply to this section. N.J.S.A.
2C:35-9b. The State must prove two elements under
this section. First the State must prove that the
defendant’s act of manufacture, distribution or
dispensing is an antecedent but for which the death
would not have occurred. N.J.S.A. 2C:35-9b(1). In