State of Iowa v. Keyon Harrison

              IN THE SUPREME COURT OF IOWA
                              No. 16–1998

                          Filed June 22, 2018


STATE OF IOWA,

      Appellee,

vs.

KEYON HARRISON,

      Appellant.



      Appeal from the Iowa District Court for Polk County, Paul Scott,

Judge.



      A juvenile offender appeals his conviction for first-degree felony

murder and challenges his sentence of life imprisonment with the

possibility of immediate parole as cruel and unusual punishment under

the Iowa and United States Constitutions. AFFIRMED.



      Matthew G. Sease of Kemp & Sease, Des Moines, for appellant.



      Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant

Attorney General, John P. Sarcone, County Attorney, and Jeffrey K. Noble

and Shannon Archer, Assistant County Attorneys, for appellee.



      Brent Michael Pattison of Drake Legal Clinic, Des Moines, and

Marsha L. Levick, of Juvenile Law Center, Philadelphia, Pennsylvania, for

amici curiae Juvenile Law Center, Center on Wrongful Convictions of

Youth, and the Center for Law, Brain and Behavior.
                                     2

ZAGER, Justice.

      Keyon Harrison appeals his conviction for first-degree murder.

Harrison argues applying the felony-murder rule to juvenile offenders

based upon a theory of aiding and abetting violates the Iowa and United

States Constitutions. Harrison also presents as-applied and categorical

constitutional challenges to his sentence claiming a sentence of life with

the possibility of parole for a juvenile offender who was convicted of felony

murder constitutes cruel and unusual punishment under the Iowa and

United States Constitutions. Further, Harrison maintains the trial court

failed to provide the jury with proper instructions regarding the types of

assault required to establish the forcible felony robbery element of felony

murder.    Finally, Harrison presents ineffective-assistance-of-counsel

claims alleging he was prejudiced by the errors of his trial counsel,

including trial counsel’s failure to request certain jury instructions and

failure to object to certain evidence presented at trial. For the reasons set

forth below, we affirm the conviction and sentence.

      I. Background Facts and Proceedings.

      On November 7, 2014, starting at approximately 3:45 p.m., Aaron

McHenry began receiving calls and text messages from Keith Collins who

was looking to buy marijuana from McHenry.         Collins, then seventeen

years old, and Keyon Harrison, then sixteen years old, were at an Oasis

store at the time, and they initially wanted to meet McHenry at the Oasis

store. However, McHenry did not know where the Oasis store was located.

Therefore, McHenry arranged for them to meet at the Family Dollar store

near the 2600 block of Hickman Lane around 4:20 p.m. The purpose of

the meeting was to complete the sale of marijuana from McHenry to Collins

and Harrison.
                                             3

       At 4:23 p.m., Shirley Dick was taking her dogs outside when she

saw a black male, later identified as Collins, walking near her home at

2600 Hickman Lane. Dick approached Collins to see if there was anything

she could help him with, and Collins told her that he was waiting for his

girlfriend. Dick told Collins there were no kids that lived on her street,

and Collins turned away without responding to her.                     Thereafter, Dick

noticed Jorge Gutierrez, a nearby neighbor, chasing his dog as it ran from

his house in the direction of Dick’s house. Dick waited outside, offering to

help Gutierrez retrieve his dog.

       While Gutierrez was retrieving his dog and returning home, he

observed Collins sitting on a retaining wall on Hickman Lane. Gutierrez

also saw McHenry and Harrison walking from 26th Street in the direction

of Hickman Lane. Gutierrez saw McHenry and Harrison begin to walk

faster, and they eventually “started to, like, push each other.”

Nevertheless, Gutierrez went back inside, and Shirley Dick turned to walk

back towards her home.

       As she turned around, Dick heard gunshots, and she saw Collins

take off running underneath nearby bushes. Dick testified that Collins

was “maybe five feet” from McHenry when she turned around, but she did

not see Harrison or anyone else in the area. 1                 Dick then called 911.

Gutierrez also heard the gunshots and turned around to see McHenry lying

on the ground. Gutierrez saw Collins and Harrison start running together

“away from Hickman Road.”




       1Shirley  Dick testified about the events she witnessed surrounding McHenry’s
death at Collins’s trial, but she passed away before she was able to testify at Harrison’s
trial. The parties agreed to read her testimony into the record at Harrison’s trial, and her
testimony was admitted to the court as an exhibit. The parties also agreed to have Dick’s
911 call reporting the gunshots played at trial.
                                      4

      Several other neighbors told police they saw two black males

running away from the area, and two nearby homeowners provided police

with security camera footage from their homes showing a black male

running away from the area. Camera footage at Broadlawns Hospital,

taken shortly after the shooting, shows Collins and Harrison together at

the hospital where Collins was treated for an injury to his right hand.

Harrison and Collins then went to meet up with Harrison’s girlfriend at

her residence. The girlfriend testified that when she joined them, she saw

Harrison “was holding two bags of marijuana in his hands, like baseball

size”. Thereafter, the group went to a store to buy blunt wraps for smoking

marijuana, and Harrison and Collins smoked some of the marijuana when

they returned to the girlfriend’s house. Harrison and Collins then returned

to Collins’s apartment around 8:00 p.m.

      When police responded to the 911 call about a shooting at Hickman

Lane, they discovered Aaron McHenry’s dead body. McHenry had multiple

gunshot wounds to the head, torso, upper back, and arm, including a

couple of wounds that contained signs indicating he was shot from close

range. Police were able to identify Collins as a suspect soon after the

shooting. Police contacted the Hoover High School resource officer after

another Hickman Lane neighbor told them that one of the individuals went

to Hoover High School with her. She also told police that people at the

school thought he resembled the rapper Bobby Shmurda. The resource

officer identified two individuals who fit that description. Later, the police

provided the neighbor with two separate photo arrays. The neighbor was

able to positively identify Collins as one of the individuals running from

the area of the shooting. Police subsequently obtained a search warrant

for Collins’s apartment, which they executed about twelve hours after

responding to the scene of the shooting.
                                      5

      Harrison was with Collins at the apartment when the police

executed the search warrant. Collins had marijuana in his backpack, and

Harrison had marijuana on his person.          Both packages of marijuana

confiscated from Collins and Harrison were identical in amount and

packaging.   Police recovered the cell phone used to communicate with

McHenry, but they did not recover a gun during the search. The police

then took Harrison into custody.          After Harrison’s mother arrived,

Detective Youngblut provided Harrison and his mother with his Miranda

rights, and they agreed to sign a written waiver of his Miranda rights.

      Youngblut conducted Harrison’s questioning and recorded the

entire interview and events surrounding the interview at the police station.

The recording equipment was visible, and there was a sign outside of the

interview room informing people that the room was audio and video

recorded. Harrison’s mother was aware of the recording. While police were

not in the room, she informed Harrison that the room was being recorded.

During the interview, Harrison was repeatedly dishonest with Youngblut.

Harrison told Youngblut that Collins did not have a cell phone. Harrison

told Youngblut that he was not with Collins around the time of the murder

because he was somewhere else and that he went to Broadlawns Hospital

with his girlfriend from his girlfriend’s house to meet up with Collins.

      When Youngblut left the room, Harrison’s mother accused Harrison

of lying and told Harrison, “I can’t help you if you lyin’ to me.” In response,

Harrison stated,

      Alright mama. Look, look. We was walking, [Collins]’s like, “I
      got a lick.” I’m like, “Bro, no, bro, you’re not going to do it.”
      He’s like, “Bro, I’ve got a lick. I need it. I need to go to
      Chicago.” He’s like—because he’s trying to go to Chicago or
      whatever with his mom. He’s like, “Bro, I need it.” So I’m like,
      “Bro, you can hit that lick but bro, I’m just going to stay on
      the side.” So we walking down, we walking down the street
      and then he was . . . .
                                     6

Harrison’s mother then interjected to remind Harrison that they were

being recorded before Harrison could finish the rest of the sentence. A

“lick” is slang for a robbery, and the cell phone the police recovered from

Collins listed McHenry’s phone number under the name “Lick.”

Investigators found marijuana residue in McHenry's pants pocket but no

marijuana, which they believed indicated someone had stolen marijuana

from him.

      The State charged both Harrison and Collins with first-degree

murder. They were tried separately. The State initially charged Harrison

with first-degree murder in violation of Iowa Code sections 707.1 and

707.2 and first-degree robbery in violation of Iowa Code sections 711.1

and 711.2 (2015). Harrison’s trial began on October 3, 2016. On October

4, before the presentation of any evidence, the State filed an amended trial

information that dropped the charge of first-degree robbery.

      The State conceded during trial that “the evidence tends to suggest

that it was probably [Harrison’s] friend and companion Keith Collins” who

shot McHenry, and it dismissed the charge of premeditated murder in the

first-degree under Iowa Code section 707.2(1)(a). At trial, the State only

presented the theory of first-degree murder based upon the felony-murder

rule under Iowa Code section 707.2(1)(b). The State argued Harrison was

guilty of aiding and abetting in the robbery and murder of McHenry. At

the conclusion of the trial, the jury returned a unanimous verdict finding

Harrison guilty of first-degree murder in violation of Iowa Code sections

707.1 and 707.2(1)(b) for killing McHenry while participating in a forcible

felony, the robbery.    Harrison was sentenced to life in prison with

immediate parole eligibility.   Harrison filed a timely appeal, which we

retained.
                                      7

      II. Standard of Review.

      We review alleged violations of state or federal constitutional rights

de novo. State v. Coleman, 

907 N.W.2d 124

, 134 (Iowa 2018). In doing so,

we evaluate each case “in light of its unique circumstances” by examining

the “totality of the circumstances as shown by the entire record” to “make

an independent evaluation.” State v. Krogmann, 

804 N.W.2d 518

, 522–23

(Iowa 2011) (quoting State v. Brooks, 

760 N.W.2d 197, 204

 (Iowa 2009)).

Further, “[w]e may review a challenge that a sentence is illegal at any time.”

State v. Zarate, 

908 N.W.2d 831, 840

 (Iowa 2018). Though we typically

review challenges to illegal sentences for correction of legal errors, our

standard of review for an allegation of an unconstitutional sentence is de

novo. 

Id.

      Our standard of review for challenges to jury instructions is for

correction of errors at law. Alcala v. Marriott Int’l, Inc., 

880 N.W.2d 699, 707

 (Iowa 2016). “We do not consider an erroneous jury instruction in

isolation, but look at the jury instructions as a whole.” State v. Murray,

796 N.W.2d 907, 908

 (Iowa 2011). Our standard of review for claims of

ineffective assistance of counsel is de novo. State v. Schlitter, 

881 N.W.2d 380, 388

 (Iowa 2016). “Ineffective-assistance-of-counsel claims require a

showing by a preponderance of the evidence both that counsel failed an

essential duty and that the failure resulted in prejudice.” 

Id.

      III. Analysis.

      Harrison presents a number of claims on appeal.               First, he

maintains the felony-murder rule violates the Due Process Clause of both

the Iowa and United States Constitutions when it is applied to juvenile

offenders pursuant to a theory of aiding and abetting. Second, Harrison

argues a sentence of life with the possibility of immediate parole eligibility

for a juvenile offender convicted of first-degree murder under the felony-
                                       8

murder rule is unconstitutional both as applied to him and on its face

under the Cruel and Unusual Punishment Clauses of the Iowa and United

States Constitutions. Third, Harrison claims the trial court did not provide

proper jury instructions on the specific types of assault necessary to

establish a felonious robbery.       Finally, Harrison advances ineffective-

assistance-of-counsel claims alleging his trial counsel breached essential

duties that resulted in prejudice by failing to request certain jury

instructions and failing to object to certain evidence presented at trial. We

address these claims in turn.

      A. The State and Federal Juvenile Sentencing Landscape.

Article I, section 17 of the Iowa Constitution and the Eighth Amendment

of the United States Constitution provide Iowans convicted of a crime with

the right to be free from cruel and unusual punishment.         U.S. Const.

amend. VIII; Iowa Const. art. I, § 17. This fundamental constitutional

tenet “flows from the basic ‘precept of justice that punishment for crime

should be graduated and proportioned’ to both the offender and the

offense.” Miller v. Alabama, 

567 U.S. 460, 469

, 

132 S. Ct. 2455, 2463

(2012) (quoting Roper v. Simmons, 

543 U.S. 551, 560

, 

125 S. Ct. 1183, 1190

 (2005)); State v. Propps, 

897 N.W.2d 91, 98

 (Iowa 2017). In 2005,

the United States Supreme Court decided the first in a trilogy of cases

interpreting the Cruel and Unusual Punishment Clause under the Eighth

Amendment in relation to juvenile sentencing, which has transformed the

juvenile sentencing landscape. See generally Miller, 

567 U.S. 460

, 

132 S. Ct. 2455

; Graham v. Florida, 

560 U.S. 48

, 

130 S. Ct. 2011

 (2010); Roper,

543 U.S. 551

, 

125 S. Ct. 1183

. An overview of these changes is necessary

to provide background for our analysis of Harrison’s constitutional

challenge to the felony-murder rule and his sentence of life imprisonment

with immediate parole eligibility.
                                     9

      First, in Roper, the Supreme Court held that imposing capital

punishment on juvenile offenders constitutes cruel and unusual

punishment under the Eighth Amendment. 

543 U.S. at 568

, 126 S. Ct. at

1194. In doing so, the Court emphasized the differences between adult

and juvenile offenders that “render suspect any conclusion that a juvenile

falls among the worst offenders”—namely, the differences in maturity,

sense of responsibility, vulnerability to peer pressure and negative

influences, and the development of personality traits. Id. at 569–70, 

125 S. Ct. at 1195

.    Second, in Graham, the Supreme Court held that

sentencing juvenile offenders convicted of nonhomicide offenses to life

imprisonment without the possibility of parole constitutes cruel and

unusual punishment under the Eighth Amendment. 

560 U.S. at 74

, 

130 S. Ct. at 2030

.

      Finally,    in    Miller,    the    Supreme       Court     prohibited

all mandatory sentences of life imprisonment without the possibility of

parole for juvenile offenders under the Eighth Amendment. 

567 U.S. at 479

, 

132 S. Ct. at 2469

. The Court stated, “Mandatory life without parole

for a juvenile precludes consideration of his chronological age and its

hallmark features—among them, immaturity, impetuosity, and failure to

appreciate risks and consequences.”       

Id. at 477

, 

132 S. Ct. at 2468

.

Nevertheless, the Court did not prohibit all sentences of life imprisonment

without the possibility of parole. 

Id. at 480

, 

132 S. Ct. at 2469

. Instead,

the Court held that sentencing courts must “take into account how

children are different, and how those differences counsel against

irrevocably sentencing them to a lifetime in prison” before issuing a

sentence of life imprisonment without the possibility of parole to a juvenile

offender. 

Id.

                                     10

      Following Miller, the Iowa Governor commuted the sentences of all

thirty-eight juvenile offenders serving statutorily mandated sentences of

life without parole to sentences of life without parole eligibility for sixty

years with no credit for earned time. See State v. Ragland, 

836 N.W.2d 107

, 110–11 (Iowa 2013). Shortly thereafter, we held that Miller applied

retroactively, and the Governor’s commutations to life without parole for

sixty years with no credit for earned time, amounted to de facto sentences

of life without the possibility of parole and mandated the individualized

sentencing process outlined in Miller. 

Id. at 117, 122

. The Roper–Graham–

Miller trilogy, and our holding in Ragland, set the course for drastic

changes to juvenile sentencing under the Iowa Constitution.

      First, in State v. Null, we held that sentencing a juvenile offender to

52.5 years imprisonment triggered Miller’s individualized sentencing

requirement noting “[t]he prospect of geriatric release, if one is to be

afforded the opportunity for release at all, does not provide a ‘meaningful

opportunity’ to demonstrate the ‘maturity and rehabilitation’ required to

obtain release and reenter society.” 

836 N.W.2d 41, 71

 (2013) (quoting

Graham, 

560 U.S. at 75

, 

130 S. Ct. at 2030

). In State v. Pearson, we

similarly held that the individualized sentencing requirement set forth in

Miller applied under the Iowa Constitution to a juvenile offender’s sentence

of consecutive terms totaling thirty-five years imprisonment without parole

eligibility for nonhomicide offenses. 

836 N.W.2d 88, 96

 (Iowa 2013).

      In State v. Lyle, we held that “the sentencing of juveniles according

to statutorily required mandatory minimums does not adequately serve

the legitimate penological objectives in light of the child’s categorically

diminished culpability.” 

854 N.W.2d 378, 398

 (Iowa 2014). As a result,

we held that article I, section 17 of the Iowa Constitution prohibits all

mandatory minimum prison sentences for juvenile offenders. 

Id. at 400

.
                                    11

Additionally, we established the following necessary factors for a district

court to consider in deciding whether a juvenile offender warrants the

minimum period of incarceration without parole:

      (1) the age of the offender and the features of youthful
      behavior, such as “immaturity, impetuosity, and failure to
      appreciate risks and consequences”; (2) the particular “family
      and home environment” that surround the youth; (3) the
      circumstances of the particular crime and all circumstances
      relating to youth that may have played a role in the
      commission of the crime; (4) the challenges for youthful
      offenders in navigating through the criminal process; and
      (5) the possibility of rehabilitation and the capacity for
      change.

Id.

 at 404 n.10 (quoting Miller, 

567 U.S. at 477

, 

132 S. Ct. at 2468

).

      In State v. Louisell, we vacated a sentence for a determinate term of

years in prison, holding that sentencing juvenile offenders convicted of

first-degree murder to a fixed term of years was not an option “[b]ecause

there was no statutory authority for the determinate sentence” and “judges

may only impose punishment authorized by the legislature within

constitutional constraints.” 

865 N.W.2d 590, 598

 (Iowa 2015). We also

rejected the defendant’s argument on ripeness grounds that she would be

denied a meaningful opportunity for release were she to become parole
eligible given the low rates at which the state parole board had actually

granted parole to eligible offenders.    

Id.

 at 601–02.   Nevertheless, we

reiterated that “juveniles convicted of crimes must be afforded a

‘meaningful opportunity to obtain release based on demonstrated maturity

and   rehabilitation’—if   a   sentencing   judge,   exercising   discretion,

determines parole should be available.” 

Id.

 at 602 (quoting Graham, 

560 U.S. at 75

, 

130 S. Ct. at 2030

).

      Further, in State v. Seats, we expounded upon the sentencing

factors espoused in Lyle and Miller that a sentencing court must consider
                                      12

“before sentencing a juvenile to life in prison without the possibility of

parole.” 

865 N.W.2d 545

, 555–57 (Iowa 2015). In applying these factors,

we first established that “the presumption for any sentencing judge is that

the judge should sentence juveniles to life in prison with the possibility of

parole for murder unless the other factors require a different sentence.”

Id. at 555

. Additionally, we explained that the sentencing factors require

sentencing courts to acknowledge the differences between children and

adults and consider the offender’s “family and home environment,” “the

circumstances of the homicide offense,” any substance abuse that may

have played a role in the juvenile’s offense, and that juveniles have a

greater capacity for rehabilitation than adults do. 

Id.

 at 555–56 (quoting

Miller, 

567 U.S. at 477

, 

132 S. Ct. at 2468

).

      In State v. Sweet, we adopted “a categorical rule that juvenile

offenders may not be sentenced to life without the possibility of parole

under article I, section 17 of the Iowa Constitution.” 

879 N.W.2d 811, 839

(Iowa 2016). Underlying this holding was our finding that a sentence of

life without the possibility of parole required the sentencing judge to “do

the impossible, namely, to determine whether the offender is ‘irretrievably

corrupt’ at a time when even trained professionals with years of clinical

experience would not attempt to make such a determination.” 

Id. at 837

.

We concluded that the parole board is in the best position to determine

whether the offender is invariably corrupt. 

Id. at 839

.

      In Propps, we upheld a juvenile offender’s indeterminate sentence

with no mandatory minimum and immediate parole eligibility because it

gave the juvenile the “potential for immediate parole if rehabilitation,

maturity, and reform have been demonstrated.” 

897 N.W.2d 91, 101

 (Iowa

2017). Moreover, in State v. Roby, we further developed the sentencing

factors first set forth in Lyle, explaining that these factors should generally
                                     13

mitigate the punishment of a juvenile offender so that sentencing courts

can devise a “punishment that serves the best interests of the child and of

society.” 

897 N.W.2d 127, 144

 (Iowa 2017) (quoting Lyle, 

854 N.W.2d at 402

). We also declined to categorically prohibit imposing a minimum term

of incarceration without immediate parole eligibility on juvenile offenders

convicted of first-degree murder as long as such sentences were only

imposed after the sentencing judge considered the necessary mitigating

factors associated with youth. Id. at 148. Finally, in Zarate, we held that

article I, section 17 of the Iowa Constitution did not categorically prohibit

sentencing juveniles convicted of first-degree murder to “life with the

possibility of parole after serving a minimum term of confinement as

determined by the court,” or life with the possibility of immediate parole.

908 N.W.2d at 843

, 856 (quoting 

Iowa Code § 902.1

(2)(a)(2)).

      B. Applying the Felony-Murder Rule to Juvenile Offenders.

Harrison argues applying the felony-murder rule to juvenile offenders

when their liability is grounded on a theory of aiding and abetting violates

due process under the Iowa and United States Constitutions. Specifically,

Harrison alleges the felony-murder rule is premised on the assumption

that juvenile offenders who participate in a forcible felony can appreciate

the potential consequences of their participation even though juvenile

offenders are “not developed enough to appreciate not only the

assumption, but the natural consequence of the [forcible felony] (i.e. the

murder).”   Harrison relies primarily on our state and federal juvenile

sentencing jurisprudence which recognizes that there is a “fundamental

and virtually inexorable difference between juveniles and adults for the

purposes of punishment.” Lyle, 

854 N.W.2d at 393

. Further, Harrison

reasons, even if he did understand the potential consequences of his

participation in the robbery, science on juvenile development indicates
                                            14

that he was incapable of controlling his impulses with regard to his

participation in the murder. 2

       Iowa Code section 707.2(1)(b) states, “A person commits murder in

the first degree when the person commits murder under any of the

following circumstances . . . . The person kills another person while

participating in a forcible felony.” 

Iowa Code § 707.2

(1)(b) (2015). 3 This

definition of first-degree murder is known as the felony-murder rule, and

it “began as a common-law doctrine of criminal law that any death

resulting from the commission or attempted commission of a felony

constitutes murder.” State v. Tribble, 

790 N.W.2d 121, 124

 (Iowa 2010).

“Felonies that have historically been used to support application of the

felony-murder doctrine are those that are particularly serious or

inherently dangerous.” 

Id.

 In Iowa, the legislature has specified which

felonies are classified as a “forcible felony” under the felony-murder rule

in section 702.11(1).         A forcible felony includes “any felonious child

endangerment, assault, murder, sexual abuse, kidnapping, robbery,

human trafficking, arson in the first degree, or burglary in the first degree.”

Iowa Code § 702.11

(1).

       The felony-murder rule aims to deter people from committing those

felonies the legislature has deemed inherently dangerous to the life of

others. See Tribble, 

790 N.W.2d at 127

. To promote deterrence, the rule

transforms those felonies “into first-degree murder if a person is killed in

the course of the felony, even though the felon had no specific intent or



       2The   State argues that Harrison did not preserve error on this issue since he
waited to raise it until after the State had presented its case on the felony-murder theory.
We assume error is preserved without addressing this challenge.
       3Though  Harrison was convicted in 2016, there has been no change in the felony-
murder statute since the time of his trial. See 

Iowa Code § 707.2

(1)(b) (2016).
                                    15

premeditation otherwise necessary to elevate the killing of another into

first-degree murder.” 

Id.

 at 127–28. Consequently,

      [w]hen a person engages in conduct dangerous enough to be
      identified by our legislature as a predicate felony for felony
      murder, the elements of the felony-murder statute are
      satisfied if the person also engages in an act causing death
      while participating in the dangerous conduct.

Id. at 126

. “In other words, our legislature adopted felony murder to deter

the commission of felonies, but not by totally eliminating the relationship

between criminal intent and criminal liability.” 

Id. at 128

.

      In contrast to first-degree murder under section 707.2(1)(a), which

requires a showing that the defendant “willfully, deliberately, and with

premeditation kills another person,” first-degree murder under the felony-

murder rule only requires a showing that the defendant acted with the

specific intent to commit the predicate felony that led to the killing.

Compare 

Iowa Code § 707.2

(1)(a), with 

id.

 § 707.2(1)(b). This difference

between the intent required for premeditated murder and felony murder

has produced confusion and a lack of conformity in the way our court and
other courts have explained the felony-murder rule in the past.        For

example, Harrison notes that our court previously stated in State v.

Heemstra, that the elements of premeditated murder under section

707.2(1)—namely that the murder was committed “willfully, deliberately,

and with premeditation”—“are presumed to exist if the State proves

participation in the underlying forcible felony” for a charge of felony

murder. 

721 N.W.2d 549, 554

 (Iowa 2006) (quoting 

Iowa Code § 707.2

(1)

(2001)). Harrison capitalizes on this language in his argument that the

felony-murder rule creates a conclusive presumption that the defendant

committed the killing with malice aforethought in violation of the Due

Process Clauses of the Iowa and United States Constitutions.
                                     16

      The Fifth and Fourteenth Amendments of the United States

Constitution, and Article I, section 9 of the Iowa Constitution, prohibit the

state from depriving any person of “life, liberty, or property, without due

process of law.” U.S. Const. amends. V, XIV; Iowa Const. art. I, § 9. “ ‘Due

process requires fundamental fairness in a judicial proceeding,’ so a trial

that is fundamentally unfair violates the guarantees of due process in the

United States and Iowa Constitutions.” More v. State, 

880 N.W.2d 487, 499

 (Iowa 2016) (quoting State v. Becker, 

818 N.W.2d 135, 148

 (Iowa

2012), overruled on other grounds by Alcala, 

880 N.W.2d at 708

 & n.3).

“[T]he Due Process Clause protects the accused against conviction except

upon proof beyond a reasonable doubt of every fact necessary to constitute

the crime with which he is charged.” In re Winship, 

397 U.S. 358, 364

, 

90 S. Ct. 1068, 1073

 (1970).       We have recognized that “a mandatory

presumption violates the due process clause because it undermines the

fact finder’s responsibility to find the ultimate facts beyond a reasonable

doubt.”   State v. Winders, 

359 N.W.2d 417, 419

 (Iowa 1984).          “[T]his

presumption would conflict with the overriding presumption of innocence

with which the law endows the accused and which extends to every

element of the crime.” Sandstrom v. Montana, 

442 U.S. 510, 522

, 

99 S. Ct. 2450, 2458

 (1979) (emphasis omitted) (quoting Morissette v. United States,

342 U.S. 246, 275

, 

72 S. Ct. 240, 256

 (1952)).

      We have previously addressed a due process challenge like the one

Harrison now makes regarding the alleged presumptions incorporated in

the felony-murder rule, as well as application of the felony-murder rule to

defendants who were convicted of felony-murder for aiding and abetting a

felony.   See generally Conner v. State, 

362 N.W.2d 449

 (Iowa 1985).

Similar to this case, the defendant in Conner claimed “that conclusively

attributing malice aforethought to him in relation to the killing, merely
                                     17

from his participation in the underlying felony,” violated his right to due

process under the Fourteenth Amendment of the United States

Constitution. 

Id. at 455

. Like Harrison, the defendant argued that the

felony-murder rule creates an unconstitutional presumption that takes

the burden off the state to prove the requisite culpability for murder. 

Id. at 456

. We rejected this argument, holding it was “misplaced” because

“[a]ccomplice liability . . . is a matter of substantive law that places

responsibility on a wrongdoer for the direct and indirect consequences of

his joint criminal conduct with another.” Id.; see also State v. Nowlin, 

244 N.W.2d 596

, 604–05 (Iowa 1976) (“The felony-murder statute does not

relieve the State of the burden of proving essential elements of first-degree

murder. The elements [of willfulness, deliberation, and premeditation]

alleged by defendant to be essential are not essential [to felony murder].”).

Finally, we exclaimed, “The State, through the enactment of laws, has a

right to prescribe the nature of the acts that constitute criminal conduct.”

Conner, 

362 N.W.2d at 456

.

      Despite our rejection of Harrison’s argument in Conner, Harrison

argues Conner is not controlling because we did not decide Conner under

the Iowa Constitution, it did not involve a juvenile offender, and it directly

contradicts our recognition in Heemstra of the presumptions inherent to

the felony-murder rule. While we acknowledge our court previously stated

in Heemstra that the felony-murder rule presumes the defendant

committed the killing with malice, we were not speaking to the

constitutional issue now raised. See 

721 N.W.2d at 554

. As such, that

language is not controlling in this case.

      The felony-murder rule does not create a conclusive presumption

that the defendant committed the murder “willfully, deliberately, and with

premeditation,” because these are not elements of first-degree felony
                                           18

murder in Iowa. Nowlin, 244 N.W.2d at 604–05. The substantive statutory

definition of first-degree felony murder in Iowa does not include these

elements since the state is only required to show the specific intent to

commit the predicate felony rather than show the defendant acted with

premeditation and deliberation to commit murder.                      See 

Iowa Code § 707.2

(1)(b). This is a substantive rule of law in Iowa and not simply an

evidentiary shortcut to find malice or a presumption that malice existed

on the part of the defendant. Consequently, whether the defendant acted

“willfully, deliberately, and with premeditation” is wholly irrelevant when

the defendant is charged with felony murder, regardless of the dicta

Harrison cites from Heemstra. “In that event the ‘conclusive presumption’

is no more than a procedural fiction that masks a substantive reality, to

wit, that as a matter of law malice is not an element of felony murder.”

People v. Dillon, 

668 P.2d 697, 717

 (Cal. 1983) (en banc). Therefore, it does

not follow that the felony-murder rule violates the Due Process Clauses of

the Iowa or United States Constitutions by creating a conclusive and

unconstitutional presumption about the defendant’s intent to commit

murder. Our ruling is supported by a number of other states, which have

likewise considered and rejected claims that the felony-murder rule

violates due process because it creates an unconstitutional presumption

that the defendant committed the killing with malice aforethought. 4


       4See, e.g., State v. Herrera, 

859 P.2d 131, 140

 (Ariz. 1993) (en banc) (rejecting a
constitutional challenge to the Arizona felony-murder rule that claimed the rule
unconstitutionally presumed the defendant’s intent to kill based on the intent to commit
the underlying felony); Dillon, 668 P.2d at 717–18 (holding the felony-murder rule does
not create a conclusive presumption of the existence of an element of the crime in
violation of the Due Process Clause of the Fourteenth Amendment since malice
aforethought is not an element of felony murder); State v. Goodseal, 

553 P.2d 279, 286

(Kan. 1976) (holding the felony-murder rule did not constitute cruel and unusual
punishment or the denial of equal protection and due process since “it is to protect
human life, represents sound public policy, is reasonably related to the end sought to be
accomplished and is not constitutionally impermissible”), overruled on other grounds by
                                             19

       By asking us to rely on a procedural fiction to hold that the felony-

murder rule creates an unconstitutional presumption about the intent of

juvenile offenders, Harrison is essentially asking us to implement greater

due process rights for juvenile offenders than adult offenders. Harrison is

right that we have recognized that “children are constitutionally different

from adults,” Seats, 

865 N.W.2d at 556

 (quoting Miller, 

567 U.S. at 471

,

State v. Underwood, 

615 P.2d 153

, 162–63 (Kan. 1980); Evans v. State, 

349 A.2d 300

,
329–30, 336–37 (Md. Ct. Spec. App. 1975) (holding the felony-murder rule did not violate
due process because it is not a “mere pale reflection[ ] of willful, deliberate, and
premeditated killing” since it has a different substantive definition of murder);
Commonwealth v. Watkins, 

379 N.E.2d 1040, 1049

 (Mass. 1978) (The felony-murder rule
is not unconstitutional under the Fourteenth Amendment because “[t]he Commonwealth
is not, pursuant to the operation of the felony-murder rule, ‘relieved’ of its duty prescribed
by the United States Supreme Court in In re Winship, 

397 U.S. 358

, 

90 S. Ct. 1068

, 25
L. Ed 2d 368 (1970), of proving every fact necessary to the crime as charged beyond a
reasonable doubt. Nor is the burden of proof as to an element of the crime charged
‘affirmatively shifted’ from the Commonwealth to the defendant as prohibited by the
Supreme Court in Mullaney v. Wilbur, 

421 U.S. 684, 701

, 

95 S. Ct. 1881

, 

44 L. Ed. 2d 508

 (1975).”); State v. Burkhart, 

103 P.3d 1037

, 1046–47 (Mont. 2004) (holding the felony-
murder rule does not violate due process since intent to kill is not an element of the crime
under the felony-murder rule); State v. Bradley, 

317 N.W.2d 99

, 101–02 (Neb. 1982)
(rejecting defendant’s argument that the felony-murder rule conclusively presumes
malice from the criminal intention to commit certain felonies and therefore violates “the
rule against irrebuttable presumptions [as] stated in Mullaney v. Wilbur, 

421 U.S. 685

,

96 S. Ct. 1881

 . . . (1975)”); State v. Campos, 

921 P.2d 1266, 1272

 (N.M. 1996) (“[T]he
felony-murder doctrine in New Mexico does not abandon the mens rea requirement for
murder, nor does it create a presumption that a defendant had intended to kill whenever
a homicide occurs during the course of a felony. Our felony-murder rule only serves to
raise second-degree murder to first-degree murder when the murder is committed in the
course of a dangerous felony.” (Citation omitted.)); State v. Swift, 

226 S.E.2d 652

, 668–
69 (N.C. 1976) (holding the felony-murder rule does not involve any presumption of
premeditation and deliberation that would violate the Due Process Clause of the
Fourteenth Amendment because those are not elements of the crime of felony murder);
Gore v. Leeke, 

199 S.E.2d 755, 757

 (S.C. 1973) (holding the felony-murder rule did not
violate the Due Process Clauses of the South Carolina and Federal Constitutions because
it does not create a conclusive presumption of malice that would allow the “defendant to
be convicted of murder without the State’s proving the element of malice beyond a
reasonable doubt”); State v. Wanrow, 

588 P.2d 1320, 1325

 (Wash. 1978) (en banc) (“The
argument that the felony-murder presumes the existence of intent to kill misconstrues
the nature of the felony-murder rule and must be rejected.”), superseded by statute as
recognized in In re Pers. Restraint of Andress, 

56 P.3d 981

, 984, 988 (Wash. 2002); State
ex rel. Peacher v. Sencindiver, 

233 S.E.2d 425

, 426–27 (W. Va. 1977) (rejecting a
constitutional challenge to the felony-murder rule under the Due Process Clauses
because the felony-murder rule does not require a showing of malice and therefore does
not create a presumption that defendant committed the killing with malice).
                                    20

132 S. Ct. at 2464

), for sentencing purposes due to “the features of

youthful behavior, such as ‘immaturity, impetuosity, and failure to

appreciate risks and consequences.’ ”     Lyle, 

854 N.W.2d at 404

 n.10

(quoting Miller, 

567 U.S. at 477

, 

132 S. Ct. at 2468

). Yet, we have never

held or implied that these constitutionally recognized differences require

our court or the legislature to transform the elements of any given offense

to account for these differences. Harrison seeks to expand the scope of our

juvenile sentencing jurisprudence far beyond its rational reach.

      “Harm to a victim is not lessened because of the young age of an

offender.” Propps, 

897 N.W.2d at 102

. “[W]hile youth is a mitigating factor

in sentencing, it is not an excuse.” Lyle, 

854 N.W.2d at 398

 (quoting Null,

836 N.W.2d at 75

). Consequently, our “constitutional analysis is not about

excusing juvenile behavior, but imposing punishment in a way that is

consistent with our understanding of humanity today.”          Propps, 

897 N.W.2d at 102

 (quoting Lyle, 

854 N.W.2d at 398

). We do this by providing

juveniles with an individualized sentencing process that incorporates a

number of mitigating factors associated with “the features of youthful

behavior.” Lyle, 

854 N.W.2d at 404

 n.10; see also Zarate, 908 N.W.2d at

855–56. Nevertheless,

      the State has a legitimate interest in holding persons
      responsible for their criminal acts. When those acts are
      particularly serious, as in the case of forcible felonies, it is
      logical that the State would assign grave consequences to
      them . . . . “Having placed certain designated crimes
      committed by juveniles who have reached the age of sixteen
      within the criminal court jurisdiction, the legislature
      presumably thought the need for adult discipline and legal
      restraint was necessary in these cases.”

State v. Mann, 

602 N.W.2d 785

, 792–93 (Iowa 1999) (quoting State v. Terry,

569 N.W.2d 364, 367

 (Iowa 1997)).
                                            21

       Harrison does not provide us with any reason for further intruding

upon the role of the legislature to expand our juvenile sentencing

jurisprudence to hold that juvenile offenders cannot be tried for certain

crimes altogether due to their mens rea requirements. No other state that

has considered this issue has abolished the application of the felony-

murder rule to juvenile offenders. 5             Moreover, despite the controversy

surrounding the felony-murder rule, few states have actually abolished the

felony-murder rule, and one of these states has only abrogated the

common law felony-murder rule as opposed to a statutory version. 6

Notably, with the exception of Michigan, those states that have abolished

the use of the felony-murder rule have done so through statutes enacted

by their state legislatures as opposed to judicial abrogation.




       5California  is the only state we are aware of that has considered abolishing the
application of the felony-murder rule to juvenile offenders on constitutional grounds. This
was based on the argument that juvenile offenders cannot foresee the consequences of
their actions. A California Court of Appeal rejected this argument. People v. Richardson,
No. A134783, 

2013 WL 2432510

, at *5 (Cal. Ct. App. June 4, 2013) (rejecting a juvenile
offender’s argument that his conviction for felony murder violated his due process rights
because his age rendered him incapable of foreseeing the consequences of his decision to
participate in a robbery and noting that “[w]here, as in this case, the killing occurred
during the course of an independent felony (robbery), Richardson’s participation in the
commission of that crime made him liable for the murder committed during the course
of the robbery, even if the killing was not a natural, reasonable, or probable consequence
of that crime”).
        6See Haw. Rev. Stat. Ann. § 707–701 (West, Westlaw through Act II of the 2018

Reg. Sess.) (first-degree murder requires the actor to commit the killing “intentionally and
knowingly”); 

Ky. Rev. Stat. Ann. § 507.020

 (West, Westlaw through Chs. 74, 96–154, 158–
164, & 170 of 2018 Reg. Sess.) (first-degree murder requires “intent to cause the death
of another person”); 

Ohio Rev. Code Ann. § 2903.01

(B) (West, Westlaw through File 66 of
132d Gen. Assemb. (2017–2018)) (requiring a person to “purposely” cause the death of
another during the course of a felony in order for the crime to meet the definition of
aggravated murder); People v. Aaron, 

299 N.W.2d 304

, 328–29 (Mich. 1980) (“We conclude
that Michigan has no statutory felony-murder rule which allows the mental element of
murder to be satisfied by proof of the intention to commit the underlying felony. Today
we exercise our role in the development of the common law by abrogating the common-
law felony-murder rule.”).
                                     22

      Further, Harrison misrepresents the felony-murder rule in his

argument that it is premised on the ability to foresee danger. Though the

inherent dangerousness of the forcible felonies encompassed within the

felony-murder rule may make certain killings foreseeable, the felony-

murder rule encompasses unforeseeable crimes. The premise of the rule

is that there are certain felonies that “are so inherently dangerous that

proof of participating in these crimes may obviate the need for showing all

of the elements normally required for first-degree murder.” Heemstra, 

721 N.W.2d at 554

. Robbery, especially armed robbery, requires the use of

force and is “so inherently dangerous” that participating in it as the

principal or aider and abettor in the manner that Harrison did carries with

it an undeniable prospect of grave harm to the life of others. See Conner,

362 N.W.2d at 456

.

      The fact that killing was not within the actual contemplation
      and intention of one of the parties to the robbery does not
      relieve such person of the responsibility as long as the other
      party to the robbery had the necessary mens rea and the act
      was a consequence of carrying out the unlawful common
      design.

Id. at 455

. Thus, foreseeability is irrelevant to the felony-murder rule, and

Harrison’s alleged inability to foresee the consequences of his decision to

participate in a robbery is likewise irrelevant to his conviction.

      Finally, Harrison’s contentions that he could not foresee the

consequences of his decision to participate in a robbery, or that he could

not control his impulses even if he could foresee the consequences, are

irreconcilable with his admitted role in the commission of the robbery.

Harrison admitted that he knew Collins was going to commit a “lick” when

Harrison knowingly accompanied him to Hickman Lane that day.

Harrison then lured McHenry to Collins and used force against him to help

Collins carry out the robbery.     By participating in robbery—a forcible
                                      23

felony that the Iowa legislature has deemed inherently dangerous to

human life—Harrison became liable for any killing committed in the

commission of that offense by him or Collins. While there may be a unique

factual situation in which the felony-murder rule is unconstitutional as

applied to a certain juvenile offender, this is not that case. Therefore, we

decline to hold that the felony-murder rule is fundamentally unfair or that

it violates due process under the Iowa or United States Constitutions when

applied to juvenile offenders pursuant to a theory of aiding and abetting.

      C. Sentencing Juveniles Convicted Under the Felony-Murder

Rule. Harrison presents both an as-applied and categorical constitutional

challenge to his sentence of life imprisonment with immediate parole

eligibility. Harrison argues that the sentence of life imprisonment with the

possibility of immediate parole for juvenile offenders convicted of first-

degree murder as an accomplice to felony murder constitutes cruel and

unusual punishment under the Iowa and United States Constitutions.

Further, Harrison claims his sentence of life imprisonment with the

possibility of immediate parole is “grossly disproportionate to [his]

ultimate[ ] culpability” since he “did not personally murder any individual,

[and] no evidence was presented that he knew a murder would happen or

was likely to happen.”

      1. Categorical challenge.    We analyze categorical challenges to a

sentence through a two-step inquiry. Lyle, 

854 N.W.2d at 386

. We first

review “ ‘objective indicia of society’s standards, as expressed in legislative

enactments and state practice’ to determine whether there is a national

consensus against the sentencing practice at issue.” 

Id.

 (quoting Graham,

560 U.S. at 61

, 

130 S. Ct. at 2022

). Next, we examine “our controlling

precedents and our interpretation of the Iowa Constitution’s text, history,

meaning, and purpose to guide our own independent judgment on the
                                            24

constitutionality of the challenged sentence.” Zarate, 

908 N.W.2d at 843

.

We also assess “the culpability of the offenders at issue in light of their

crimes and characteristics, along with the severity of the punishment in

question,” as well as whether the sentencing practice furthers legitimate

penological goals. Lyle, 

854 N.W.2d at 386

 (quoting Graham, 

560 U.S. at 67

, 

130 S. Ct. at 2026

).

       First, there is not a national consensus against sentencing juvenile

offenders convicted of felony murder as the principal or accomplice to life

imprisonment         with     immediate       parole     eligibility,    and     Harrison

acknowledges this.          In fact, he “is not aware of any state that has

categorically held that life with the possibility of parole should be

categorically prohibited for juveniles convicted of felony murder.” 7 The

        7We are also not aware of any state that has considered a categorical challenge to

the specific sentence of life imprisonment with immediate parole eligibility for a juvenile
offender convicted under the felony-murder rule. One state, North Carolina, has similarly
considered a constitutional challenge to the sentence of life with the possibility of parole
after a prison term of twenty-five years for a juvenile offender convicted under the felony-
murder rule. See State v. Jefferson, 

798 S.E.2d 121

, 122–23 (N.C. Ct. App. 2017). The
North Carolina Court of Appeals upheld the constitutionality of the sentence as applied
to the defendant, noting it was “neither an explicit nor a de facto term of life imprisonment
without parole.” 

Id. at 125

.
        A few other states have considered the constitutionality of lengthy term of years
sentences or sentences of life imprisonment for juvenile offenders convicted under the
felony-murder rule. Those states have declined to find such sentences are categorically
unconstitutional. See Bell v. State, No. CR 10–1262, 

2011 WL 4396975

, at *2–3 (Ark.
Sept. 22, 2011) (rejecting defendant’s petition for recall and resentencing involving his
sentence to two consecutive life sentences for his convictions on two counts of first-degree
murder committed as an accomplice when he was sixteen years old and that
“[n]otwithstanding his claim that he was only an accomplice, we have held that there is
no distinction between principals on the one hand and accomplices on the other, insofar
as criminal liability is concerned”); People v. Jordan, No. D064010, 

2016 WL 6996216

, at
*14 (Cal. Ct. App. Nov. 30, 2016) (upholding the twenty-five-year-to-life sentence of
juvenile offenders convicted of felony murder noting other California appellate courts
“have rejected arguments by juvenile offenders that a sentence for first degree murder
violates the proportionality principle of the California Constitution even though the
defendant was not the person who committed the killing, when the defendant knowingly
participated in a serious crime that led to the murder”); Arrington v. State, 

113 So. 3d 20

,
27–28 (Fla. Dist. Ct. App. 2012) (declining to adopt a categorical rule prohibiting the
sentence of life imprisonment without the possibility of parole for juvenile offenders
convicted under the felony-murder rule); State v. Ali, 

855 N.W.2d 235

, 258–59 (Minn.
                                            25

national consensus remains in favor of subjecting juvenile offenders

convicted of first-degree murder under the felony-murder rule—regardless

of whether an offender was aiding and abetting or the principal actor—to

the   same     sentencing      options     as    juvenile    offenders     convicted     of

premeditated first-degree murder. 8


2014) (noting the constitutionality of life sentences for juveniles convicted of felony
murder); cf. Dillon, 668 P.2d at 700–01, 727 (holding a seventeen year-old’s sentence of
life imprisonment for felony murder was unconstitutional as applied where the offender
fatally shot his victim out of fear for his life in the course of trying to steal marijuana
plants from the victim’s farm when the victim—who had previously made threats about
shooting the defendant for being on his property—began approaching the defendant with
a shotgun in his possession.
       8A  sampling of the sentencing statutes of other states reveals that most states do
not distinguish between premeditated murder and felony murder for the purpose of
sentencing juvenile or adult offenders. See, e.g., Ala. Code § 13A-6-2 (Westlaw through
Act 2018–579) (classifying felony murder as first-degree murder and codifying the
punishment for juvenile offenders who commit murder to be either life imprisonment
without parole or life); 

Alaska Stat. Ann. § 11.41.100

(a)(2)–(5) (West, Westlaw through ch.
7 of 2018 2d Reg. Sess.) (classifying felony murder as first-degree murder); 

id.

§ 12.55.125(b) (treating all types of first-degree murder the same for sentencing
purposes); 

Ariz. Rev. Stat. Ann. § 13-1105

(A)(2) (Westlaw through May 18, 2018 of 2d
Reg. Sess.) (classifying felony murder as a form of first-degree murder); 

id.

 § 13-751(A)(2)
(A juvenile offender convicted of first-degree murder “shall be sentenced to imprisonment
in the custody of the state department of corrections for life or natural life.”); 

Ark. Code Ann. § 5-10-101

 (West, Westlaw through Acts 1–3, 5, 11, 12 & 13 from 2018 2d
Extraordinary Sess.) (designating felony murder a capital offense and mandating any
defendant under eighteen “at the time he or she committed the capital murder [be
sentenced to] life imprisonment with the possibility of parole after serving a minimum of
thirty (30) years’ imprisonment”); 

Del. Code Ann. tit. 11, § 636

 (classifying felony murder
as murder in the first degree) (West, Westlaw through 81 Laws 2018, chs. 200–253);

id.

 4209A (All juvenile offenders who are convicted of first-degree murder “shall be
sentenced to term of incarceration not less than 25 years to be served at Level V up to a
term of imprisonment for the remainder of the person’s natural life to be served at Level
V without benefit of probation or parole or any other reduction.”); 

Ga. Code Ann. § 17

-
10-6.1(a)(1), (c)(1) (West, Westlaw through Act 562 of 2018 Leg. Sess.) (listing “[m]urder
or felony murder” as “serious violent felon[ies]” for which adult and juvenile offenders can
be sentenced to life imprisonment with a minimum term of thirty years in prison before
any form of parole eligibility is available); Idaho Code Ann. § 18–4004 (West, Westlaw
through 2018 2d Reg. Sess.) (“[E]very person guilty of murder of the first degree shall be
punished . . . by imprisonment for life.”); id. § 18–4003(d) (classifying felony murder as
first-degree murder); 

La. Stat. Ann. § 14:30

(A) (Westlaw through 2018 1st Extraordinary
Sess.) (defining first-degree murder, which includes felony murder); 

id.

 § 15:574.4(E)(1)(a)
(A juvenile offender convicted of first-degree murder may become parole eligible after
“[t]he offender has served twenty-five years of the sentence imposed”); 

Nev. Rev. Stat. Ann. § 200.030

 (West, Westlaw through 2017 Reg. Sess.)) (classifying felony murder as
                                             26

       In addition to the national consensus in favor of treating felony

murder and premeditated murder the same for sentencing purposes, there

are objective indicia that the Iowa legislature has adopted this standard

regarding the challenged sentencing practice. “Legislative judgments can

be ‘the most reliable objective indicators of community standards for

purposes of determining whether a punishment is cruel and unusual.’ ”

Lyle, 

854 N.W.2d at 388

 (quoting State v. Bruegger, 

773 N.W.2d 862, 873

(Iowa 2009)). The legislature is aware of the different forms of first-degree

murder, yet it has declined to treat them differently for sentencing

purposes. This legislative decision to require mandatory life imprisonment

with the possibility of immediate parole for juvenile offenders convicted of

either premeditated murder or felony murder is indicative of a consensus

in Iowa in favor of the challenged sentencing practice.

       Despite the fact that there is no national consensus in opposition to

the challenged sentencing practice based on the laws of other states,

Harrison asks us to consider “that many legal scholars throughout the


first-degree murder and subjecting defendants convicted of first-degree murder to a
minimum sentence of twenty years imprisonment before parole eligibility); Tex. Penal
Code § 19.03 (West, Westlaw through 2017 Reg. & 1st Called Sess.) (including “capital
felony” in the definition of “capital murder”); id. § 12.31(1) (“An individual adjudged guilty
of a capital felony in a case in which the state does not seek the death penalty shall be
punished by imprisonment in the Texas Department of Criminal Justice for: (1) life, if the
individual committed the offense when younger than 18 years of age.).
        North Carolina is the only state we are aware of that differentiates between
premeditated and felony murder for juvenile sentencing purposes. Under this statute,
an offender convicted of first-degree murder under the felony-murder rule shall be
sentenced “to life imprisonment with parole.” N.C. Gen. Stat. Ann. § 15A-1340.19B(a)(1)
(West, Westlaw through 2017 Reg. Sess.). For juvenile offenders, “ ‘life imprisonment
with parole’ shall mean that the defendant shall serve a minimum of 25 years
imprisonment prior to becoming eligible for parole.” Id. § 15A-1340.19A. Meanwhile, a
defendant convicted of premeditated first-degree murder “should be sentenced to life
imprisonment without parole . . . or a lesser sentence of life imprisonment with parole.”
Id. § 15-1340.19B(a)(2). Nevertheless, this sentencing scheme still requires juvenile
offenders in North Carolina to serve a definite term of imprisonment that exceeds
Harrison’s sentence of life imprisonment with immediate parole eligibility.
                                     27

country have not only routinely held that the felony murder rule is

improper, but have specifically argued for the abolishment of the felony

murder rule as applied to juveniles.” Nevertheless, much of the scholarly

criticism—including from some of the legal scholars Harrison cites—of

applying the felony-murder rule to juveniles focuses on the sentence of life

without parole that many jurisdictions impose on juveniles convicted of

felony murder. See, e.g., Steven A. Drizin & Allison McGowen Keegan,

Abolishing the Use of the Felony-Murder Rule When the Defendant Is a

Teenager, 

28 Nova L. Rev. 507

, 536, 541 (2004) (noting “it is debatable as

to whether we should ease the prosecution’s burden for a crime that can

carry the death penalty or life without possibility of parole, and especially

debatable when child defendants are involved and concluding that

juveniles “convicted of felony murder should be exempted from the

sentence of life without the possibility of parole”); Erin H. Flynn, Comment,

Dismantling the Felony-Murder Rule: Juvenile Deterrence and Retribution

Post-Roper v. Simmons, 

156 U. Pa. L. Rev. 1049

, 1068 (2008) (“If convicted

of a felony-murder charge, juveniles are often subject to corresponding

mandatory sentencing laws that remove a judge’s discretion to account for

a juvenile offender’s individual characteristics and his level of threat to

public safety.”).   We already quashed these concerns surrounding

sentencing juveniles convicted of felony murder to life imprisonment

without parole in Sweet where we held sentencing juvenile offenders to life

imprisonment without the possibility of parole violates the Iowa

Constitution. See Sweet, 

879 N.W.2d at 839

.

      While there is not a national consensus against the sentencing

practice at issue, this does not end our inquiry into Harrison’s categorical

challenge to sentencing juvenile offenders convicted of felony murder to

life imprisonment with immediate parole eligibility. We still must “consider
                                          28

our    controlling    precedents    and    our   interpretation   of   the   Iowa

Constitution’s text, history, meaning, and purpose to guide our own

independent judgment on the constitutionality of the challenged

sentence.”       Zarate, 

908 N.W.2d at 843

.      Likewise, we must “evaluate

whether the challenged sentencing practice serves legitimate penological

goals.”    

Id.

    This also requires us to examine “the culpability of the

offenders at issue in light of their crimes and characteristics along with

the severity of the punishment in question.” Lyle, 

854 N.W.2d at 386

(quoting Graham, 

560 U.S. at 67

, 

130 S. Ct. at 2026

).

       “We seek to interpret our constitution consistent with the object

sought to be obtained at the time of adoption as disclosed by the

circumstances.” Chiodo v. Section 43.24 Panel, 

846 N.W.2d 845, 851

 (Iowa

2014).         Nevertheless, “originalism may not be the best guide for

interpreting our constitution’s cruel and unusual punishment clause in

light of the changes to juvenile sentencing” since “juveniles over the age of

fourteen were tried and sentenced as adults when our constitution was

adopted.” Zarate, 

908 N.W.2d at 846

. Yet, an analysis of our own juvenile

sentencing        jurisprudence    supports    sentencing   juvenile   offenders

convicted of felony murder to life imprisonment with immediate parole

eligibility.

       Both our juvenile sentencing jurisprudence and that of the United

States Supreme Court centers around the “fundamental and virtually

inexorable difference between juveniles and adults for the purposes of

punishment.”        Lyle, 

854 N.W.2d at 393

.       Because of this difference,

“juveniles convicted of crimes must be afforded a ‘meaningful opportunity

to obtain release based on demonstrated maturity and rehabilitation.’ ”

Louisell, 

865 N.W.2d at 602

 (quoting Graham, 

560 U.S. at 75

, 

130 S. Ct. at 2030

). Nevertheless, Harrison does not argue as part of his categorical
                                          29

challenge that the sentence of life imprisonment with the immediate

possibility of parole for juvenile offenders convicted of felony murder

denies these offenders “a ‘meaningful opportunity to obtain release based

on demonstrated maturity and rehabilitation.’ ” 9 

Id.

 Rather, he largely

repeats the same argument he made with regard to banning the

application of the felony-murder rule to juveniles—namely, that “juveniles

lack the ability to form the proper foreseeability, lack the appreciation of

consequences, and are highly impulsive.” However, we held in Propps that

“[t]he constitutional analysis is not about excusing juvenile behavior, but

imposing punishment in a way that is consistent with our understanding

of humanity today.” Propps, 

897 N.W.2d at 102

 (alteration in original)

(quoting Lyle, 

854 N.W.2d at 398

).

       Thus, in our previous juvenile sentencing cases, “we sought to

eliminate the mandatory nature of mandatory minimums and sentences

that were the functional equivalent of life without parole because those

sentences did not offer juveniles a ‘meaningful opportunity’ to demonstrate

their rehabilitation before the parole board.” Id. at 101. Consequently,

unlike the mandatory life without parole that adults who commit first-

degree murder are subject to, there is no mandatory minimum term of

confinement for juvenile offenders convicted of first-degree murder.

Compare 

Iowa Code § 902.1

(1) (2016), with 

id.

 § 902.1(2)(a)(2)–(3).

Likewise, Iowa provides juvenile offenders convicted of first-degree murder

“with an individualized sentencing hearing that takes into account their

youth and a number of other mitigating factors that provide juveniles with



       9Harrison does argue along these lines in his reply brief regarding his as-applied

challenge. Specifically, Harrison notes that he is eligible for parole under his current
sentence, but “the ability of parole appears to be a legal fiction more than a real
opportunity.” Thus, we will address that argument as part of his as-applied challenge.
                                    30

more leniency in the sentencing process.” Zarate, 

908 N.W.2d at 846

.

Compare 

Iowa Code § 902.1

(1), with 

id.

 § 902.1(2)(b)(2)(a)–(v).

       Similarly, the parole board provides juvenile offenders with “an

individualized analysis that considers the juvenile’s past, in addition to

current psychiatric and psychological evaluations, the time already served

on the sentence, any reports of misconduct or good behavior, and the

inmate’s attitude and behavior while incarcerated.” Propps, 

897 N.W.2d at 102

; see also 

Iowa Code § 906.5

(3). This individualized analysis allows

the parole board to take into account the culpability of the offender,

including the possibility that the offender was less culpable when he or

she was aiding and abetting the principal actor in a felony-murder

situation. We have repeatedly held that “the parole board [is] best situated

to discern which juvenile homicide offenders have benefited from

opportunities for maturation and rehabilitation.” Propps, 

897 N.W.2d at 102

.

       Unlike a sentencing judge, “[t]he parole board has the benefit of

seeing the individual offender’s actual behavior, rather than having to

attempt to predict chances at maturity and rehabilitation based on

speculation.” 

Id.

 As a result, the parole board may decide to continue

confinement of the juvenile “[i]f rehabilitation has not yet occurred” until

he or she “has demonstrated through his or her own actions the ability to

appreciate the severity of the crime.”   

Id.

 “This is consistent with the

approach of our prior holdings in the area of juvenile sentencing, because

it allows for a realistic and meaningful opportunity for parole upon the

juvenile’s demonstration of maturity and rehabilitation.” 

Id.

       “In addition to our understanding and interpretation of the Iowa

Constitution, we also consider whether the challenged sentencing practice

serves legitimate penological goals and the culpability of the offender at
                                            31

issue.” Zarate, 

908 N.W.2d at 847

. We traditionally take into account the

penological      goals     of     rehabilitation,    retribution,    deterrence,    and

incapacitation.          

Id.

      Nevertheless,     rehabilitation    is   the   primary

consideration in the juvenile sentencing context “due to the increased

capacity of juveniles to reform in comparison to adults.” 

Id.

 In Zarate, we

held that the statutory juvenile sentencing options of life imprisonment

with the possibility of immediate parole, or life imprisonment with parole

eligibility after a minimum term of confinement, “align with our focus on

rehabilitation     and         allow   sentencing    judges   to     acknowledge     the

fundamental concept of our juvenile sentencing jurisprudence that

children are different from adults and should be treated differently due to

their increased potential for rehabilitation.” 

Id.

      Despite our emphasis on rehabilitation, juvenile sentences may still

aim to promote additional penological goals, including deterrence,

retribution, and incapacitation.             We previously noted this in Roby,

explaining, “[I]t may be appropriate retribution to incarcerate a juvenile for

a short time without the possibility of parole. Additionally, a sentencing

judge could properly conclude a short term of guaranteed incarceration is

necessary to protect the public.”                897 N.W.2d at 142.          Ultimately,

“[c]riminal punishment can have different goals, and choosing among

them is within a legislature’s discretion.” State v. Oliver, 

812 N.W.2d 636, 646

 (Iowa 2012) (alteration in original) (quoting Graham, 

560 U.S. at 71

,

130 S. Ct. at 2028

).

      Though Harrison is correct to note that deterrence and retribution

are less applicable to juveniles due to their diminished culpability, they

still carry “some weight depending on the circumstances of each case.”

Zarate, 

908 N.W.2d at 854

.               As we declared in Propps, “[c]ompletely

eliminating the mandatory imposition of a prison term, even when the term
                                     32

is indeterminate and the individual is immediately eligible for parole,

would not serve the proportionality concept we have addressed in our

previous juvenile sentencing cases.” 897 N.W.2d at 101. “While juveniles

may be more prone to reform and rehabilitation because of their age and

the attendant characteristics of youth, they must also understand the

severity of their actions.” Id. at 102. Frankly, the “[h]arm to [the] victim

is not lessened because of the young age of [the] offender.” Id. Thus,

“while youth is a mitigating factor in sentencing, it is not an excuse.” Lyle,

854 N.W.2d at 398

 (quoting Null, 

836 N.W.2d at 75

).

      Juvenile offenders     who choose to       participate in inherently

dangerous felonies, whether they are the principal actor or aid and abet

the felony, demonstrate a certain lack of maturity and impulse control that

particularly implicates the penological goals of incapacitation and

rehabilitation. “Nothing that the Supreme Court has said” or that we have

said “suggests trial courts are not to consider protecting public safety in

appropriate cases through imposition of significant prison terms.” Null,

836 N.W.2d at 75

. Harrison is claiming that juveniles have uncontrollable

impulses due to their youth that limit their ability to appreciate the gravity

of their participation in an inherently dangerous felony.       Importantly,

sentencing juvenile offenders in his position to life imprisonment with the

possibility of immediate parole takes this into account by allowing the

parole board to examine maturity and rehabilitation and provides such

offenders with a meaningful opportunity for release as soon as they meet

these goals.

      Overall, “the legislature is in the best position to identify and adopt

legal protections that advance our constitutional recognition that ‘children

are different.’ ” Zarate, 

908 N.W.2d at 851

 (quoting Roby, 

897 N.W.2d at 144

). The legislature sought to prescribe “the most severe sentences for
                                     33

[juvenile] offenders convicted of murder in the first degree,” including those

juveniles convicted under the felony-murder rule. Louisell, 

865 N.W.2d at 600

. We are not in a position to undermine those goals given that the

challenged sentencing practice aligns with our juvenile sentencing

jurisprudence by promoting legitimate penological goals and providing

juvenile offenders like Harrison with “a ‘meaningful opportunity to obtain

release based on demonstrated maturity and rehabilitation.’ ” 

Id.

 at 602

(quoting Graham, 

560 U.S. at 75

, 

130 S. Ct. at 2030

). Therefore, we hold

that sentencing juvenile offenders convicted of felony murder—whether

they were the principal actor or aided and abetted—to life imprisonment

with immediate parole eligibility is constitutional under both the Iowa

Constitution and the United States Constitution.

      2. As-applied challenge.      Harrison argues his sentence of life

imprisonment with the immediate possibility of parole is unconstitutional

as applied to him because it is grossly disproportionate to his ultimate

culpability. The Iowa and United States Constitutions both prohibit cruel

and unusual punishment. See U.S. Const. amend. VIII; Iowa Const. art.

I, § 17. This prohibition “embraces a bedrock rule of law that punishment

should fit the crime.” Bruegger, 

773 N.W.2d at 872

.

      We use a three-prong test to determine whether a sentence is grossly

disproportionate under the Iowa and United States Constitutions. First,

we   examine    “whether    the   sentence    being   reviewed   is   ‘grossly

disproportionate’ to the underlying crime,” which “involves a balancing of

the gravity of the crime against the severity of the sentence.” 

Id. at 873

.

This is the threshold question, and we do not inquire any further if the

challenged sentence does not appear grossly disproportionate based on

this balancing. Oliver, 

812 N.W.2d at 650

. If the threshold is met, we then

engage in the second step of our analysis in which we partake in an
                                        34

intrajurisdictional analysis, comparing the challenged sentence to

sentences of other crimes in our jurisdiction. Bruegger, 

773 N.W.2d at 873

.   Finally, we perform an interjurisdictional review, surveying the

sentences for similar crimes in other jurisdictions. 

Id.

       As we engage in this three-part inquiry, we must keep in mind

certain general principles that help guide our determination of whether the

challenged sentence is grossly disproportionate. “The first is that we owe

substantial deference to the penalties the legislature has established for

various crimes.” Oliver, 

812 N.W.2d at 650

. Second, though we provide a

more    demanding     review   of   a    defendant’s     sentence    for   gross

disproportionality under the Iowa Constitution than available under the

United States Constitution, “it is rare that a sentence will be so grossly

disproportionate to the crime as to satisfy the threshold inquiry and

warrant further review.” 

Id.

 Third, “a recidivist offender is more culpable

and thus more deserving of a longer sentence than a first-time offender.”

Id.

 Finally, we analyze the facts of each case in reaching our threshold

determination because they “can ‘converge to generate a high risk of

potential gross disproportionality.’ ”       

Id.

 at 651 (quoting Bruegger, 

773 N.W.2d at 884

).

       For instance, in Bruegger, we held that the defendant’s twenty-five

year prison sentence for statutory rape was susceptible to an as-applied

constitutional challenge because the unique features of the case

“converge[d] to generate a high risk of potential gross disproportionality—

namely, a broadly framed crime, the permissible use of preteen juvenile

adjudications as prior convictions to enhance the crime, and a dramatic

sentence enhancement for repeat offenders.” 

773 N.W.2d at 868, 884

. We

vacated his sentence and remanded the case for a new sentencing hearing

that considered the constitutionality of his sentence.              

Id. at 886

.
                                     35

Meanwhile, we held a sentence of life in prison without the possibility of

parole for a defendant’s second conviction of third-degree sexual abuse

was not unconstitutional as applied to the defendant in Oliver.          812

N.W.2d at 651–53.        In reaching this decision, we explained that the

defendant’s sexual exploitation of a minor who was twenty years younger

than him was precisely the kind of exploitation that third-degree sexual

abuse “was designed to prevent, not conduct that was inadvertently

caught by a broadly written statute.” Id. at 651.

      Turning to the threshold inquiry, we cannot find that Harrison’s

sentence of life imprisonment with immediate parole eligibility for felony

murder is grossly disproportionate to the underlying crime. Unlike the

defendant in Bruegger, who committed an act “of lesser culpability” that

fell within the scope of “a broadly-framed statute,” felony murder does not

encompass “acts of lesser culpability” since every felony murder requires

a defendant’s participation in a forcible felony that directly leads to the

killing of the victim.     Bruegger, 

773 N.W.2d at 884

; see 

Iowa Code § 707.2

(1)(b). Harrison directly participated in a forcible felony as an aider

and abettor, which directly led to the death of Aaron McHenry. His actions

of luring the victim to Collins and physically shoving the victim to help set

up the “lick” that resulted in the murder of McHenry are exactly the type

of actions the felony-murder rule is meant to encompass.             Though

Harrison maintains he did not know ahead of time that Collins had a gun,

Harrison was present when Collins shot McHenry, and he admitted he was

in on the plan to rob McHenry. He was not an unknowing participant in

the events that took place that day, and he showed no remorse during

sentencing for his actions, simply declaring to the court, “[I]t’s just crazy

how I can just be judged by people that don’t know what I’ve been through

in my life.”   See State v. Knight, 

701 N.W.2d 83, 88

 (Iowa 2005) (“[A]
                                     36

defendant’s lack of remorse is highly pertinent to evaluating his need for

rehabilitation and his likelihood of reoffending.”).

       Moreover, his sentence does not involve “the permissible use of

preteen juvenile adjudications as prior convictions to enhance the crime

and a dramatic sentence enhancement for repeat offenders” like the

defendant in Bruegger. See Bruegger, 883 N.W.2d at 884. Harrison does

not argue that he was denied an individualized sentencing as required

under our juvenile sentencing jurisprudence.           Because Harrison is a

juvenile offender, the district court was required to consider a number of

mitigating circumstances, including his culpability, “[t]he nature of the

offense,” “[t]he commission of the murder while participating in another

felony,” and “[t]he circumstances of the murder including the extent of the

defendant’s participation in the conduct and the way familial and peer

pressure may have affected the defendant.” 

Iowa Code § 902.1

(2)(b)(2)(e),

(i), (s).   Based on the sentencing court’s assessment of Harrison’s

participation in the felony murder, it sentenced him to the minimum

possible sentence for first-degree murder.

       Further, the legislature’s decision to designate felony murder

committed by either the principal or aider and abettor as first-degree

murder reflects the seriousness of this offense. The legislature sought to

prescribe “the most severe sentences for [juvenile] offenders convicted of

murder in the first degree,” including those juveniles convicted under the

felony-murder rule. Louisell, 

865 N.W.2d at 600

. “[W]e owe substantial

deference to the penalties the legislature has established for various

crimes.”    Oliver, 

812 N.W.2d at 650

.      This conviction for first-degree

murder, as an aider or abettor under a felony-murder theory, is not the

rare case in which the unique features of the case “can ‘converge to
                                     37

generate a high risk of potential gross disproportionality.’ ” 

Id.

 at 651

(quoting Bruegger, 

773 N.W.2d at 884

).

      Finally, Harrison’s argument that his sentence denies him of a

meaningful opportunity for parole since “the ability of parole appears to be

a legal fiction more than real opportunity” is not ripe for adjudication. We

rejected similar arguments in both Louisell and Zarate since neither of

those defendants had actually been denied parole in order to claim a legal

violation. See Zarate, 

908 N.W.2d at 847

; Louisell, 865 N.W.2d at 601–02.

The same ripeness issue occurs in this case since Harrison’s claim is

merely speculative. He has yet to appear before the parole board, and he

does not provide any “basis for us to conclude that the parole board will

fail to follow the law in a case that is presented to it, including his own.”

Zarate, 

908 N.W.2d at 848

.

      In conclusion, life imprisonment with immediate parole eligibility for

aiding and abetting in felony murder is not grossly disproportionate to the

seriousness of the offense given the fatal harm Harrison helped enact on

the life of another.   Nevertheless, even if it were, Harrison’s argument

would fail under our intrajurisdictional and interjurisdictional analyses

since he received the most lenient punishment given to offenders convicted

of felony murder. See 

Iowa Code § 707.2

; 

id.

 § 902.1. Likewise, as we

have noted previously, there is no national consensus against sentencing

juvenile offenders convicted of felony murder—as the principal actor or

aider and abettor—to life imprisonment with immediate parole eligibility.

Therefore, Harrison’s sentence of life imprisonment with immediate parole

eligibility does not constitute cruel and unusual punishment, either

categorically or as applied to Harrison.

      D. Jury Instructions Regarding Robbery and the Felony-Murder

Rule. Harrison argues the jury instructions did not properly inform the
                                            38

jury on the types of assault required to establish a felonious robbery. The

jury was provided the following definitional instruction of robbery:

      A person commits a robbery when, having the specific intent
      to commit a theft, the person commits an assault to assist or
      further the commission of the intended theft or the person’s
      escape from the scene thereof with or without the stolen
      property.

The jury instructions also informed the jury on the definition of assault

through the standard model instruction for a simple misdemeanor

assault. 10 In 2016, approximately two years after Harrison committed the

robbery at issue, Iowa Code section 711.3A went into effect. This Code

section codified third-degree robbery—a misdemeanor that could not serve

as a predicate for felony murder.                See [

Iowa Code § 711

.3A (2017)].

Harrison now argues this change in the Code should be applied to him

retroactively and the jury should have been instructed on the types of

assault that would constitute forcible felony robbery.

      Iowa Code section 4.13(1) provides that “[t]he reenactment, revision,

amendment, or repeal of a statute does not affect . . . the prior operation

of the statute or any prior action taken under the statute.” 

Iowa Code § 4.13

(1)(a). Section 4.13 “does not require that the characterization of

the crime of which [the defendant] is convicted be changed.”                     State v.

Chrisman, 

514 N.W.2d 57, 63

 (Iowa 1994). It is a well-settled law that


      10Jury   Instruction No. 28 defined “assault”:
      An assault is committed when a person does an act which is intended to
      either:
               1. cause pain or injury to another person; or
               2. result in physical contact which will be insulting or offensive to
               another person; or
               3. place another person in fear of immediate physical contact
               which will be painful, injurious, insulting or offensive to the other
               person when coupled with apparent ability to do the act.
                                    39

substantive amendments to criminal statutes do not apply retroactively.

See, e.g., Nguyen v. State, 

878 N.W.2d 744

, 754–56 (Iowa 2016) (holding

both the Iowa and Federal Constitutions only require “retroactive

application of clarifications to existing substantive law, not changes to

substantive law”); Dindinger v. Allsteel, Inc., 

860 N.W.2d 557, 563

 (Iowa

2015) (“It is well established that a statute is presumed to be prospective

only unless expressly made retrospective.” (quoting Anderson Fin. Servs.,

LLC v. Miller, 

769 N.W.2d 575, 578

 (Iowa 2009)).       Since third-degree

robbery did not exist in the Iowa Code at the time of Harrison’s offense,

Harrison was not entitled to a jury instruction differentiating between

felony robbery and misdemeanor robbery.

      E. Ineffective-Assistance Claims. Harrison presents a number of

ineffective-assistance-of-counsel claims.   Criminal defendants have the

right to effective assistance of counsel under both the Iowa Constitution

and the United States Constitution. U.S. Const. amend. VI; Iowa Const.

art. I, § 10. “Generally, claims of ineffective assistance of counsel are

preserved for postconviction relief proceedings.” State v. Soboroff, 

798 N.W.2d 1, 8

 (Iowa 2011). Preserving these claims for postconviction relief

allows the parties to develop an adequate record of the claims and provides

the attorney charged with ineffective assistance with the “opportunity to

respond to defendant’s claims.” 

Id.

 However, if “the record is adequate,

we may resolve the claim on direct appeal.” 

Id.

      To prove ineffective assistance of counsel, the defendant must show

“by a preponderance of the evidence both that counsel failed an essential

duty and that the failure resulted in prejudice.” Schlitter, 

881 N.W.2d at 388

. Since the defendant must show both prongs of this test have been

met, we need not address the second prong regarding prejudice if the

defendant fails to establish the first prong. Nguyen, 

878 N.W.2d at 754

.
                                        40

Crafting a trial strategy is inherently difficult, so we “must indulge a strong

presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance; that is, the defendant must overcome

the presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’ ” 

Id.

 at 752 (quoting Strickland

v. Washington, 

466 U.S. 668, 689

, 

104 S. Ct. 2052, 2065

 (1984)).            In

accordance with this presumption, counsel fails his or her essential duty

by “perform[ing] below the standard demanded of a reasonably competent

attorney.” Ledezma v. State, 

626 N.W.2d 134, 142

 (Iowa 2001).

      Further, prejudice results from counsel’s failure to perform an

essential duty when “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have

been different.” 

Id.

 at 143 (quoting Strickland, 

466 U.S. at 694

, 

104 S. Ct. at 2068

). “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” 

Id.

 (quoting Strickland, 

466 U.S. at 694

, 

104 S. Ct. at 2068

). To meet this standard, the defendant must show that,

“absent the errors, the fact finder would have had a reasonable doubt

respecting guilt.” 

Id.

 (quoting Strickland, 

466 U.S. at 695

, 

104 S. Ct. at 2068

).

      1. Challenge to the use of felony robbery as a predicate felony. This

claim of ineffective assistance involves the jury instructions utilized by the

district court. Therefore, the record is adequate to resolve this claim on

direct appeal.    See Soboroff, 

798 N.W.2d at 8

.          The relevant jury

instructions at issue are as follows:

      [a] person commits robbery when, having the specific intent
      to commit a theft, the person commits an assault to assist or
      further the commission of the intended theft or the person’s
      escape from the scene thereof with or without the stolen
      property.
      ....
                                      41

      An assault is committed when a person does an act which is
      intended to either: 1. Cause pain or injury to another person;
      or 2. Result in physical contact which will be insulting or
      offensive to another person; or 3. Place another person in fear
      of immediate physical contact which will be painful, injurious,
      insulting or offensive to the other person when coupled with
      the apparent ability to do the act.

      “Under the merger doctrine, a person is only guilty of felony murder
if the act resulting in the predicate felony is independent of the act

resulting in death.” Tribble, 

790 N.W.2d 128

. We have never extended the

merger doctrine to hold that felony robbery cannot serve as the predicate

felony for felony-murder purposes. Nonetheless, Harrison claims his trial

counsel was ineffective by failing to request jury instructions requiring the

State to prove the felony robbery was an independent act from the murder.

Harrison reasons the merger doctrine should apply to his case because his

actions that caused the robbery were the same actions that caused the

victim’s death. Thus, to determine whether Harrison’s attorney failed an

essential duty by declining to request jury instructions on the merger

doctrine, we must examine the validity of Harrison’s merger argument.

      Harrison premises his argument largely on our holding in Heemstra,

in which the defendant was convicted of first-degree murder under a

general verdict after the defendant shot and killed the victim during the

course of an argument. 

721 N.W.2d at 551

. In that case, the district court

instructed the jury on both premeditated murder and felony murder,

informing the jury that it was required to find either that “[t]he defendant

acted willfully, deliberately, premeditatedly, and with specific intent to kill”

the victim, or that the defendant participated in the felony of willful injury

as the predicate felony to murder. 

Id.

 at 552–53. On appeal, we held, “if

the act causing willful injury is the same act that causes the victim’s death,

the former is merged into the murder and therefore cannot serve as the
                                      42

predicate felony for felony-murder purposes.” 

Id. at 558

. Consequently,

the law requires the State to prove that felony assault was a separate act

from the murder if felony assault is the predicate felony to murder given

that “[d]eath is obviously a bodily injury.” 

Id. at 555

, 558 (quoting 4 Robert

R. Rigg, Iowa Practice Criminal Law (1) § 3:16 (2006)). “Otherwise, all

assaults that immediately precede a killing would bootstrap the killing into

first-degree murder, and all distinctions between first-degree and second-

degree murder would be eliminated.” Id. at 557. Because the defendant’s

act of shooting the victim in Heemstra was both the act causing willful

injury and the cause of the victim’s death, we held the felony of willful

injury merged into the murder and could not serve as the predicate felony

for his felony-murder charge. See id. at 558.

      In reaching this conclusion, we relied in part on a similar case from

New York, People v. Moran, 

158 N.E. 35

 (N.Y. 1927), which held that the

predicate felony in a felony murder case must be independent of the

assault that caused the victim’s death. Heemstra, 721 N.W.2d at 557–58.

To explain the merger doctrine, we specifically quoted the portion of Moran

that stated, “The felony that eliminates the quality of the intent must be

one that is independent of the homicide and of the assault merged therein,

as, e.g., robbery or larceny or burglary or rape.” Id. at 558 (emphasis

added) (quoting Moran, 

158 N.E. at 36

).

      Since Heemstra, we have considered similar felony-murder cases

predicated on the forcible felony of felonious assault. In State v. Millbrook,

we held “the fact that intimidation with a dangerous weapon is not a

lesser-included   offense   of   first-degree   murder   does   not   preclude

application of the merger doctrine enunciated in Heemstra.” 

788 N.W.2d 647, 652

 (Iowa 2010). Nevertheless, we upheld the defendant’s conviction

because his act of aiding and abetting a codefendant in the commission of
                                      43

intimidation with a dangerous weapon with intent was sufficiently

independent of his own firing of the gun into the crowd that caused the

victim’s death.   

Id.

 at 652–54.      Likewise, we examined our merger

jurisprudence in Tribble, upholding a felony-murder conviction based on

the felonious assault of willful injury due to the substantial evidence

demonstrating the act of willful injury was sufficiently separate from the

act of killing. Tribble, 790 N.W.2d at 128–29.

      All of these cases dealt with the merger doctrine in relation to the

forcible felony of assault, and none of them discussed extending the

merger doctrine to cases that involve felony robbery as the predicate for

felony murder.    We even quoted other authorities in Heemstra that

specifically stated the act of robbery was sufficiently independent from the

act of killing to preclude it from being merged into the murder.        See

Heemstra, 

721 N.W.2d at 556

 (“Although rape, arson, robbery and

burglary are sufficiently independent of the homicide, . . . aggravated

battery toward the deceased will not do for felony murder.” (quoting

Commonwealth v. Quigley, 

462 N.E.2d 92, 95

 (Mass. 1984))); see also id.

at 558 (“The felony that eliminates the quality of the intent must be one

that is independent of the homicide and of the assault merged therein, as,

e.g., robbery or larceny or burglary or rape.” (quoting Moran, 

158 N.E. at 36

)). This is because robbery is clearly distinguishable from assault for

the purpose of the merger doctrine.

      Unlike the felonious assault at issue in Heemstra, felony robbery is

not merely a less serious version of murder from which every felonious

robbery ending in death could automatically be elevated to first-degree

murder in the same way felonious assault could “bootstrap the killing into

first-degree murder.”   Heemstra, 

721 N.W.2d at 557

.         Rather, felony

robbery is a distinct crime that necessitates the showing of a different
                                      44

intent from the killing. Under Iowa Code section 711.1(1), robbery requires

a showing that the defendant had the “intent to commit a theft” and that

the defendant committed an assault “to assist or further the commission

of the intended theft or the person’s escape from the scene thereof.” 

Iowa Code § 711.1

(1). Therefore, the concern that, absent the merger doctrine,

all felony robberies “that immediately precede a killing would bootstrap

the killing into first-degree murder, and all distinctions between first-

degree and second-degree murder would be eliminated” is not implicated

here as it was with felonious assaults in Heemstra. Heemstra, 

721 N.W.2d at 557

. Moreover, robbery—unlike willful injury—is expressly listed as a

forcible felony under section 702.11(1) to qualify as a basis for felony

murder.     See 

Iowa Code § 702.11

(1).         Based on the fundamental

differences between felony robbery and felony assault in the felony-murder

context, in addition to the merger rule jurisprudence in Iowa, it can hardly

be said that trial counsel in this case “performed below the standard

demanded of a reasonably competent attorney.” Ledezma, 

626 N.W.2d at 142

.

       2. Evidentiary and testimonial objections. Harrison also maintains

his trial counsel was ineffective in failing to challenge certain testimony

and evidence presented at trial. Harrison asserts that his trial counsel

should have objected to testimony and evidence presented at his trial

regarding his codefendant’s conviction for first-degree murder in the death

of McHenry. Harrison also challenges trial counsel’s decision not to object

to certain testimony from Detective Youngblut. Harrison challenges trial

counsel’s decision to allow the testimony of Shirley Dick from Collins’s trial

to be read into the record since Dick passed away before Harrison’s trial.

Finally, Harrison argues his trial counsel was ineffective in failing to object

to the playing of Dick’s 911 call for the jury.      However, the record is
                                    45

inadequate for us to address these claims. Like most claims of ineffective

assistance of counsel, we preserve these claims for postconviction-relief

proceedings “so an adequate record of the claim can be developed and the

attorney charged with providing ineffective assistance may have an

opportunity to respond to defendant’s claims.” Soboroff, 

798 N.W.2d at 8

.

      IV. Conclusion.

      For the aforementioned reasons, we affirm the conviction and

sentence for Harrison and preserve the additional claims of ineffective

assistance of counsel for postconviction-relief proceedings.

      AFFIRMED.

      All justices concur except Wiggins, and Appel, JJ., who dissent, and

Hecht, J., who takes no part.
                                      46

                                                 #16–1998, State v. Harrison

APPEL, Justice (dissenting).

      The question in this case is whether an unarmed child may be

subject to life in prison with the possibility of parole for participating in a

marijuana robbery where a coparticipant brought a gun to the crime and

killed the robbery victim.

      I. History of Felony Murder.

      The origin of the felony-murder rule lies in the shadows of the past.

Scholars have speculated that it arose because of a mistake made by Lord

Coke in summarizing the legal texts of Lord Bracton when he substituted

the word murder for homicide in describing death arising out of unlawful

conduct. See Leonard Birdsong, Felony Murder: A Historical Perspective

by Which to Understand Today’s Modern Felony Murder Rule Statutes, 

32 T. Marshall L. Rev. 1

, 8–9 (2006) [hereinafter Birdsong]; see also James J.

Tomkovicz, The Endurance of the Felony-Murder Rule: A Study of the Forces

That Shape Our Criminal Law, 

51 Wash. & Lee L. Rev. 1429

, 1442 (1994)

[hereinafter Tomkovicz] (citing the Lord Coke theory along with other

possible origins of the felony-murder rule).

      In any event, the felony-murder rule was controversial in its country

of origin. See Guyora Binder, The Origins of American Felony Murder Rules,

57 Stan. L. Rev. 59

, 101–02 (2004) (noting “learned opinions did not

support felony murder rule unanimously”); Birdsong, 32 T. Marshall L.

Rev. at 15 (“Some of the earliest reported jury instructions on the felony

murder rule allude to its unpopularity, and seem to invite the jury to ignore

it.”); Rudolph J. Gerber, The Felony Murder Rule: Conundrum Without

Principle, 

31 Ariz. St. L.J. 763

, 766 (1999) [hereinafter Gerber] (“The felony

murder rule has an extensive history of thoughtful condemnation from at

least 1834.”). As a matter of practice, the felony-murder rule appears to
                                       47

have been rarely used in England, and when it was, many cases tended to

limit its scope by requiring that the defendant participate in an act of

violence during the perpetration of the felony or that the killing involved

must be a natural and probable consequence of the felon’s actions. See

Binder, 57 Stan. L. Rev. at 100–03. Yet, the vestiges of the felony-murder

rule persisted in theory in England until 1957, when the felony-murder

rule was abolished. Birdsong, 32 T. Marshall L. Rev. at 16.

      The felony-murder rule took hold in America in the early years of the

Republic. In 1794, Pennsylvania passed a statute that at least indirectly

embraced felony murder.       Id. at 17–18.   The vast majority of states

eventually followed suit. Id. at 18.

      The felony-murder rule has been subject to extensive criticism. See

generally Gerber, 31 Ariz. St. L.J. at 766–67, 770 (noting the rule suffers

from at least four problems, each alone “fatal to a claim of principled

justice”); Nelson E. Roth & Scott E. Sundby, The Felony-Murder Rule: A

Doctrine at Constitutional Crossroads, 

70 Cornell L. Rev. 446

, 491–92

(1985) [hereinafter Roth & Sundby]; Joseph Trigilio & Tracy Casadio,

Executing Those Who Do Not Kill: A Categorical Approach to Proportional

Sentencing, 

48 Am. Crim. L. Rev. 1371

, 1408–11 (2011). The thrust of the

criticism generally is that moral culpability is at the heart of criminal

justice and that for harsh criminal sanctions to be imposed, the

perpetrator must manifest the intent, or mens rea, to commit the crime.

See Gerber, 31 Ariz. St. L.J. at 770–72.

      The felony-murder rule has traditionally been defended on two

grounds. First, it is said that the felony-murder rule embraces a theory of

transferred intent, namely, that the intent of the cofelon who kills the

victim during the course of a felony is transferred to others who participate

in the crime. See Steven R. Morrison, Defending Vicarious Felony Murder,
                                    48

47 Tex. Tech L. Rev. 129

, 130, 138, 149 (2014). Under this theory, the

traditional mens rea requirement of criminal law is satisfied. The problem

with the transferred-intent theory is that it does not comport with facts on

the ground. A cofelon may be shocked that his colleague in crime brought

a gun, or a knife, to what the cofelon thought would be a petty crime.

      The second theory is that the legislature in enacting a felony-murder

rule has determined that mens rea is not required to support a conviction.

See Kevin Cole, Killings During Crime: Toward a Discriminating Theory of

Strict Liability, 

28 Am. Crim. L. Rev. 73

, 77, 98 n.82 (1990) [hereinafter

Cole]. This theory seems more honest, but it amounts to a frontal assault

on the traditional notion of criminal justice that a mens rea element is

essential before the state imposes severe criminal sanctions. See John G.

Malcolm, Morally Innocent, Legally Guilty: The Case for Mens Rea Reform,

18 Federalist Soc’y Rev. 40, 40–41 (2017).

      Aside from legal theory, the felony-murder rule has been defended

on a number of policy grounds. The rule is defended on the ground that

it deters unlawful conduct that leads to the death. See David Crump &

Susan Waite Crump, In Defense of the Felony Murder Doctrine, 8 Harv. J. L.

& Pub. Pol’y 359, 369–71 (1985).       It is also defended on grounds of

retributive justice. See Cole, 28 Am. Crim. L. Rev. at 74–78, 121–32.

      While the felony-murder rule has been adopted in most American

jurisdictions, there has been a trend to limit its scope. Roth & Sundby,

70 Cornell L. Rev. at 446. The scope of felony murder has been limited

through a number of techniques, including limiting the crimes from which

felony murder may arise, imposing a requirement of proximate cause,

requiring some showing of mens rea such as reckless indifference to

human life, and adopting an affirmative defense where the cofelon did not

participate in the killing in any meaningful way, was not armed with a
                                     49

dangerous weapon, and had no reason to believe that the other participant

intended to engage in conduct likely to result in death or physical injury.

Id. at 446 & nn.7–8. As noted by one court, “the felony murder doctrine

expresses a highly artificial concept that deserves no extension beyond its

required application.” People v. Phillips, 

414 P.2d 353, 360

 (Cal. 1966) (en

banc), overruled on other grounds by People v. Flood, 

957 P.2d 869

, 882

n.12 (Cal. 1998).

      The limitations of felony murder adopted in some jurisdictions have

not satisfied critics.   When the Model Penal Code was promulgated in

1962, it sharply criticized the felony-murder rule as inconsistent with

traditional notions of criminal culpability. According to the commentary,

“Principled argument in favor of the felony-murder doctrine is hard to

find.” Model Penal Code § 210.2 cmt. 6, at 37 (Am. Law Inst. 1980).

      Academic commentators have continued to attack the felony-

murder rule. The parade of negative commentary is long and winding. See

Gerber, 31 Ariz. St. L.J. at 766 (“The felony murder rule has an extensive

history of thoughtful condemnation.”); John Calvin Jeffries Jr. & Paul B.

Stephan III, Defenses, Presumptions, and Burdens of Proof in the Criminal

Law, 

88 Yale L.J. 1325

, 1387 (1979) (citing “at least fifty years of sustained

academic and judicial hostility” to the felony-murder rule); Jeanne Hall

Seibold, The Felony-Murder Rule: In Search of a Viable Doctrine, 

23 Cath. Law. 133

, 160 (1978) (“The concept of basing the degree of punishment on

the seriousness of the result of the criminal act seems grossly misplaced

in a legal system which recognizes the degree of mental culpability as the

appropriate standard for fixing criminal liability.”); Tomkovicz, 51 Wash.

& Lee L. Rev. at 1460–65 (noting that despite constant attack on the

felony-murder rule, legislators feel pressures to placate a populace that

does not care about treating felons fairly).
                                           50

       Yet, in most jurisdictions, some form of felony murder remains on

the books.       Kentucky, Hawaii, and Ohio have abolished it through

legislative action. See People v. Aaron, 

299 N.W.2d 304

, 314 & nn.57–58

(Mich. 1980) (citing the Kentucky and Hawaii statutes); Turk v. State, 

194 N.E. 425, 426

 (Ohio Ct. App. 1934) (noting that the common law felony-

murder rule is not the law in Ohio and citing Ohio statute that the state

must show “purpose and intent to kill” for murder), aff'd, 

194 N.E. 453

(Ohio 1935) (per curiam). In Michigan, the felony-murder rule has been

substantially transformed by judicial ruling, if not eliminated. See Aaron,

299 N.W.2d at 325–26.

       No one, of course, contends that participants in felonies are not

deserving of punishment.           A person who knowingly participates in a

robbery has the necessary mens rea for a robbery and may be convicted

and sentenced for that crime. In some cases, the participant may also

have the necessary mens rea for a more serious offense, including

involuntary manslaughter and even murder.                   What the critics insist,

however, is that the traditional element of mens rea must accompany any

such convictions with serious penological consequences.

       II. Background of Felony Murder in Iowa.

       Iowa’s current felony-murder statute was passed as part of the

criminal code revisions adopted by the Iowa General Assembly in 1976 and

made effective in 1978. 1976 Iowa Acts ch. 1245, ch. 1, § 702 (codified at

Iowa Code § 707.2

 (1979)). 11 The new statutory provision stated that “A

person commits murder in the first degree when he or she commits murder

under any of the following circumstances . . . [t]he person kills another

person while participating in a forcible felony.” 

Iowa Code § 707.2

(2). The

       11Priorto the modern version of the statute, Iowa’s felony murder rule was codified
at Iowa Code section 690.2 (1977).
                                    51

statute further provided a list of crimes that were “forcible felonies,”

including, among other offenses, robbery.      

Id.

 § 702.11; see generally

Douglas Van Zanten, Note, Felony Murder, the Merger Limitation, and

Legislative Intent in State v. Heemstra: Deciphering the Proper Role of the

Iowa Supreme Court in Interpreting Iowa’s Felony-Murder Statute, 

93 Iowa L. Rev. 1565

, 1576–84 (2008).

      In an early case decided shortly after the current felony-murder

statute was enacted, we considered whether a showing of malice

aforethought for murder was required under the statute.        See State v.

Galloway, 

275 N.W.2d 736, 738

 (Iowa 1979) (applying old version of felony-

murder statute and noting recent Code changes did not alter the analysis),

abrogated on other grounds by State v. Schutz, 

579 N.W.2d 317, 320

 (Iowa

1998). We answered the question in the affirmative. 

Id.

 In Galloway, the

defendant objected to a jury instruction which did not require the

prosecution to prove malice aforethought, but the court refused to add the

requested language. 

Id.

 The Galloway court reversed, noting “[m]alice

aforethought is a necessary element for murder. . . . And murder must be

committed in order to implement our felony-murder rule.” 

Id.

 In light of

Galloway, it appears that while the common law felony-murder rule

requires only a killing, the Iowa statute requires a murder. See 

Iowa Code § 707.2

(1)(b) (2015) (“A person commits murder in the first degree when

the person commits murder under any of the following circumstances: . . .

[t]he person kills another person while participating in a forcible felony.”

(Emphasis added.)).

      Yet, the situation has become clouded by the manner in which we

have allowed malice to be proven. In State v. Veverka, 

271 N.W.2d 744, 747

 (Iowa 1978), we held that required malice “may be implied from

circumstances such as an intent to commit a felony from which death
                                     52

results.” Although stated in permissive terms, an instruction providing

that malice may be inferred from an intent to commit a felony from which

death results sounds a lot like the common law rule, namely, that any

killing can give rise to murder if it occurred in the course of a felony. See

Kristy L. Albrecht, Note, Iowa’s Felony-Murder Statute: Eroding Malice and

Rejecting the Merger Doctrine, 

79 Iowa L. Rev. 941

, 950 & n.71 (1994)

[hereinafter Albrecht]. Thus, in State v. Taylor, 

287 N.W.2d 576, 578

 (Iowa

1980), we again stated that malice may be shown by the commission of a

felony, and in Schrier v. State, 

347 N.W.2d 657

, 666–67 (Iowa 1984), we

held that counsel was not ineffective for failing to object to a felony-murder

instruction that allowed the state to prove malice simply by proving an

underlying felony. Under this approach, when the malice to support the

murder element of Iowa’s felony-murder statute is not independent of the

commission of a felony, the legislature’s limitation of felony murder to

murders rather than mere killings does indeed ring “hollow.” Albrecht, 79

Iowa L. Rev. at 955.

      We considered questions related to the scope of felony murder in

Conner v. State, 

362 N.W.2d 449

 (Iowa 1985). In Conner, the defendant

challenged his first-degree murder conviction under the Iowa felony-

murder rule on the ground that by presuming malice was present, the

statute violated due process under the United States Constitution. 

Id. at 455

. The defendant cited Sandstrom v. Montana, 

442 U.S. 510

, 

99 S. Ct. 2450

 (1979), and its precursors for the proposition that a criminal statute

violates due process if it imposes an irrebuttable presumption regarding

facts necessary to support a conviction. Conner, 362 N.W.2d at 455–56.

      In Conner, we departed from the transferred-intent model of

analysis, which would have exposed the felony-murder rule to due process

attack, and instead declared that elimination of the mens rea requirement
                                    53

was not an irrebuttable presumption but instead “a matter of substantive

law that places responsibility on a wrongdoer for the direct and indirect

consequences of his joint criminal conduct with another.” Id. at 456. We

came to a similar conclusion in State v. Ragland, 

420 N.W.2d 791, 794

(Iowa 1988), overruled on other grounds by State v. Heemstra, 

721 N.W.2d 549, 558

 (Iowa 2006). Ragland and Conner involved claims under the

United States Constitution only. Ragland, 

420 N.W.2d at 793

; Conner,

362 N.W.2d at 455

.

      A significant question under the new felony-murder statute was

whether we would recognize the merger rule, namely, that an assault that

resulted in a homicide merged and could not provide the predicate felony

for felony murder. In State v. Beeman, we declined to recognize the merger

doctrine under our felony-murder statute. 

315 N.W.2d 770, 777

 (Iowa

1982), overruled by Heemstra, 

721 N.W.2d at 558

. We noted that felonious

assault was listed by the legislature as one of the predicate offenses that

could give rise to the felony-murder rule. 

Id.

 We therefore declined to

adopt the merger rule. 

Id.

 We reaffirmed the Beeman holding in a number

of cases.   See State v. Anderson, 

517 N.W.2d 208, 214

 (Iowa 1994),

overruled by Heemstra, 

721 N.W.2d at 558

; State v. Rhomberg, 

516 N.W.2d 803, 805

 (Iowa 1994), overruled by Heemstra, 

721 N.W.2d at 558

; Ragland,

420 N.W.2d at 793

.

      In Heemstra, we reconsidered the question of whether the felony of

willful injury could be used as a predicate crime or whether willful injury

merged with the resulting homicide to prevent application of the felony-

murder rule. 

721 N.W.2d at 554

. In Heemstra, we charted a new course.

Id.

   We noted that felony murder was one of the most controversial

doctrines in the field of criminal law. 

Id.

 The Heemstra court noted that

without the merger rule, the law could “test the outer constitutional
                                     54

parameters of our felony-murder law.” 

Id. at 555

. We cited, among other

things, a California case where the court had declared that refusing to

recognize merger would extend the operation of the rule “beyond any

rational function that it is designed to serve.” 

Id.

 at 556 (quoting People v.

Ireland, 

450 P.2d 580, 590

 (Cal. 1969) (en banc)). The Heemstra court was

determined not to create what one commentator had called “an ever-

expanding felony murder rule.” 

Id.

 at 558 (quoting 4 Robert R. Rigg, Iowa

Practice Criminal Law (I) § 3:16 (2006)).

      Even with the limitations, the felony-murder rule has produced

some troublesome results. In Ragland, a child knowingly participated in

a fight with a rival group of children. 

836 N.W.2d 107, 110

 (Iowa 2013).

During the course of the ensuing fight, one of his compatriots struck a

person on the head with a tire iron, causing death.          

Id.

   The actual

perpetrator of the crime plead guilty to second-degree murder and served

a three-year prison sentence before being released. 

Id. at 112

. Ragland

went to trial, was convicted of felony murder, and received a life sentence.

Id. at 110

. In a letter to the county attorney, the actual perpetrator asked,

“How can it be that I, the person who is actually directly responsible for

[the victim’s] death was given a second chance and am allowed to live freely

in society, but Jeff Ragland is not?” 

Id. at 112

.

      III. Felony-Murder Cases in Other States.

      A. Introduction. There have been relatively few cases challenging

the constitutionality of the felony-murder rule. The older cases generally,

however, reject due process challenges. See, e.g., People v. Dillon, 

668 P.2d 697, 718

 (Cal. 1983) (en banc); State v. Nichols, 

734 P.2d 170, 177

 (Mont.

1987); Cotton v. Commonwealth, 

546 S.E.2d 241, 244

 (Va. Ct. App. 2001).

These cases tend to emphasize the ability of the legislature to define the

crimes and then proceed to construe the scope of felony-murder statutes
                                       55

as narrowly as possible. A narrow result may be powered by the desire to

avoid due process constitutional infirmities that might result from broader

interpretations of felony-murder statutes. See, e.g., State v. Ortega, 

817 P.2d 1196, 1204

 (N.M. 1991), abrogated on other grounds by Kersey v.

Hatch, 

237 P.3d 683, 689

 (N.M. 2010).

         B. People v. Aaron. The first such case is Aaron, 

299 N.W.2d 304

.

In this case, the Michigan Supreme Court, in a lengthy and highly

footnoted opinion, considered the validity of the felony-murder rule in

Michigan. 

Id. at 324

. The Aaron court abrogated felony murder in that

state.    

Id. at 326

.   Although the case does not directly deal with a

constitutional challenge to a state statute, the approach of Aaron to the

felony-murder rule is instructive on potential constitutional issues.

         The Aaron court first surveyed caselaw and legislative developments

regarding the felony-murder rule. 

Id.

 at 312–16. The court noted that the

wisdom of the felony-murder rule had long been questioned, citing a

Pennsylvania court’s declaration stating “how shaky are the basic

premises on which (the felony murder rule) rests” and a California decision

characterizing the felony murder doctrine as expressing “a highly artificial

concept.”      

Id.

 at 313–14 (first quoting Commonwealth ex rel. Smith v.

Myers, 

261 A.2d 550, 555

 (Pa. 1970); and then quoting Phillips, 

414 P.2d at 360

). The Aaron court cited numerous limitations placed on the felony-

murder rule by courts and by legislatures. 

Id.

 at 314–16.

         The Aaron court next focused its discussion on the issue of moral

culpability.    

Id.

 at 316–17.   Citing authorities for the proposition that

culpability represents a basic principle of criminal law, the court observed

that     the   felony-murder   rule   “completely   ignores   the   concept   of

determination of guilt on the basis of individual misconduct.” 

Id.

 With

respect to first-degree murder, the court noted that while murder
                                     56

ordinarily requires “a showing of premeditation, deliberation and

willfulness,” felony murder “only requires a showing of intent to do the

underlying felony.” Id. at 317.

      The Aaron court noted academic authorities that had condemned

the felony-murder rule. See id. The court favorable cited a commentator

who declared that “the felony-murder doctrine gives rise to what can only

be described as an emotional reaction, not one based on logical and

abstract principles.” Id. (quoting Note, Recent Extensions of Felony Murder

Rule, 

31 Ind. L.J. 534

, 543 (1956)). The court further cited a treatise that

noted in 1771 it was observed that the felony-murder doctrine “is surely

repugnant to that noble, and active confidence, which a free people ought

to possess in the laws of their constitution, the rule of their actions.” 

Id.

at 318 (quoting Jerome Hall, General Principles of Criminal Law 455

(1947)).

      In the end, the Aaron court held that malice is an essential part of

any murder, whether it occurred in the course of a felony or otherwise. Id.

at 319.    The court emphasized that the necessary malice, in the

appropriate case, might be inferred from the circumstances of the crime.

Id. at 327. The issue of malice, however, is for the jury, which “may not

find malice from the intent to commit the underlying felony alone.” Id.

      C. State v. Ortega. A second case of interest is Ortega, 

817 P.2d 1196

. The felony murder statute in New Mexico at the time was quite

broad, triggered by any killing that occurred in the course of any felony.

Id. at 1202

.   The New Mexico Supreme Court interpreted the statute,

however, to require that the defendant “intended to kill (or had the state

of mind otherwise generally associated with mens rea).” 

Id. at 1204

. The

Ortega court concluded that “proof that a killing occurred during the

commission or attempted commission of a felony will no longer suffice to
                                    57

establish murder in the first degree” under the felony-murder rule. 

Id. at 1205

.    Instead, according to the court, the state must show that the

defendant had the mens rea sufficient to support second-degree murder,

which then could be elevated to first-degree murder when a felony is

involved. 

Id.

        The Ortega decision was based on three propositions. 

Id. at 1204

.

First, the Ortega court emphasized that in Anglo-American law, serious

nonregulatory crimes require criminal intent.     

Id.

   Second, if criminal

intent is supplied merely by participation in a felony, the “one runs

headlong into Sandstrom.” 

Id.

 Third, the Ortega court found its approach

most consistent with the structure of the homicide provisions of New

Mexico law. 

Id. at 1206

.

        D. Lowry v. State. The third case is Lowry v. State, 

657 S.E.2d 760

 (S.C. 2008). In Lowry, the South Carolina Supreme Court considered

the constitutionality of jury instructions related to felony murder. 

Id. at 763

. The challenged instruction stated felony murder arose if “a person

kills another in the doing or attempting to do an act which is considered a

felony.” 

Id. at 762

. The Lowry court held the trial court’s supplemental

jury charge created a mandatory presumption of the malice element and

violated the defendant’s due process rights. 

Id. at 764

.

        E. People v. Dillon. The fourth case worthy of note is Dillon, 

668 P.2d 697

. In Dillon, a seventeen-year-old boy was convicted of first-degree

murder under California’s felony-murder rule arising from an attempted

robbery. 

Id. at 700

. The defendant and others scouted a small marijuana

farm on two prior occasions, only to be chased off by an owner armed with

a shotgun. 

Id.

 A larger group engaged in a third foray, this time armed

with various weapons including shotguns and a .22 caliber semi-

automatic rifle possessed by Dillon. 

Id. at 701

. They also brought various
                                      58

equipment for harvesting the marijuana. 

Id.

 Some of the party left the

scene after a couple of hours, but Dillon and his companion remained. 

Id.

When the owner emerged in close proximity with his shotgun pointed

outwards, Dillon shot him nine times with his rifle. 

Id. at 701, 723

.

       In Dillon, the child took the stand and described his state of mind,

from youthful bravado to sheer panic as events unfolded. 

Id.

 at 722–23.

With respect to the shooting, Dillon testified, “I just pressed the trigger, I

was so scared . . . . I just kept squeezing it, and shots just went off.” 

Id. at 723

. A clinical psychologist testified regarding Dillon’s immaturity, poor

judgment and planning, and found him acting as a much younger child.

Id.

 The psychologist testified that Dillon, when confronted with the armed

owner, probably “ ‘blocked out’ the reality of the situation and reacted

reflexively, without thinking at all.” 

Id.

       The jury seems to have credited the child’s testimony. See 

id. at 724

. At the close of evidence, the jury sent the judge a note asking what

the purpose of the psychologist’s testimony was. 

Id. at 723

. The court

simply responded by directing the jury to follow the instructions.         

Id.

During deliberations, the jury sent the judge a note asking whether it could

convict the defendant of second-degree murder rather than first-degree

murder. 

Id. at 724

. The judge reread the instruction and further declared

that if the defendant was guilty of felony murder, it must be murder in the

first degree. 

Id.

 The jury convicted the defendant of attempted robbery

and first-degree murder. 

Id.

       The court advised the jury when discharging it that “[t]his felony

murder rule is a very harsh rule and it operated very harshly in this case.”

Id.

   Yet, the court advised the jury that the court had an option of

committing the defendant to the Youth Authority rather than sending him

to prison. 

Id.

 The judge invited the jury to provide whatever observations
                                     59

they might care to make about ultimate disposition of the case. 

Id.

 The

foreman of the jury responded by stating that it was extremely difficult for

the jurors to render the verdict since the defendant “by moral standards

is a minor.”   

Id.

   Expressing the consensus of most or all jurors, the

foreman urged the judge to give the defendant “his best opportunity in life”

by committing Dillon to the Youth Authority.       

Id.

   The district court

followed the advice of the jury, but the Court of Appeals ruled that at the

time the offense was committed, Dillon was ineligible as a matter of law to

be committed to the Youth Authority.        

Id.

 at 725–26.   The case was

remanded for resentencing, and the district court, left with no choice,

sentenced Dillon to life in prison. 

Id. at 726

.

      In reviewing the conviction and sentence, the California Supreme

Court rejected challenges to felony murder based upon due process,

reasoning that the legislature had defined the crime so as not to require a

mens rea element for felony murder. 

Id. at 718

. That, however, was not

the end of the matter, as the court turned to the question of whether a

first-degree murder conviction could be supported against the seventeen-

year-old defendant under the facts and circumstances of the case. See 

id. at 719

.

      The court noted that the record showed that the defendant at the

time of the events “was an unusually immature youth.” 

Id.

 at 726–27.

According to the court, the defendant was “not the prototype of a hardened

criminal who poses a grave threat to society.” 

Id. at 727

. The court noted

there was “ample evidence that because of his immaturity he neither

foresaw the risk he was creating nor was able to extricate himself without

panicking when that risk seemed to eventuate.” 

Id.

 The court further

noted the discrepancy in punishment of the defendant compared to his
                                    60

coconspirators in the venture, who, although they did not pull the trigger,

nonetheless had armed themselves with shotguns and knives. 

Id.

      In the end, the court found life in prison violated the cruel and

unusual punishment clause of the California Constitution. 

Id.

 Because

he intentionally killed the victim without legal provocation, however, the

defendant was guilty of second-degree murder. 

Id.

 The conviction was

affirmed as modified, and the case remanded to the district court for

resentencing. 

Id.

 Because the defendant was no longer guilty of first-

degree murder, the district court on remand was “to determine whether to

recommit him to the Youth Authority.” 

Id.

      IV. Framework of Challenges to the Felony-Murder Rule.

      A. Transferred Intent and Due Process.         The notion that the

felony-murder rule embraces a theory of transferred intent may be

attacked on the ground that it violates due process and constitutes cruel

and unusual punishment. The outlines of the argument were developed

some decades ago by Roth and Sundby. See Roth & Sundby, 70 Cornell

L. Rev. at 460–90.

      The argument begins with In re Winship, 

397 U.S. 358

, 

90 S. Ct. 1068

 (1970).    In In re Winship, the United States Supreme Court

emphasized that under the Due Process Clause of the United States

Constitution, the accused is protected “against conviction except upon

proof of every fact necessary to constitute the crime with which he is

charged” beyond a reasonable doubt. 

Id. at 364

, 

90 S. Ct. at 1073

. In

Mullaney v. Wilbur, the Court emphasized that the state could not shift the

burden of proof to the defendant to show “heat of passion” sufficient to

avoid conviction of murder. 

421 U.S. 684

, 703–04, 

95 S. Ct. 1881, 1892

(1975).
                                     61

      The Supreme Court then seemed to retreat from In re Winship and

Mullaney in Patterson v. New York, 

432 U.S. 197

, 

97 S. Ct. 2319

 (1977).

In Patterson, the Court upheld a state statute that required the defendant

to prove the affirmative defense of severe emotional distress to a charge of

murder.    

Id.

 at 205–06, 97 S. Ct. at 2324–25.     Language in Patterson

emphasized that the state had the power to define the elements of the

crime. 

Id. at 205

, 

97 S. Ct. at 2324

. At the same time, however, the court

indicated that there were constitutional limits to the state’s definitional

power. 

Id. at 210

, 

97 S. Ct. at 2327

.

      The United States Supreme Court case revisited Mullaney and

Patterson issues in Sandstrom, 

442 U.S. 510

, 

99 S. Ct. 2450

.              In

Sandstrom the trial court had instructed the jury that “the law presumes

that a person intends the ordinary consequences of his voluntary acts.”

Id. at 512

, 

99 S. Ct. at 2453

. The Sandstrom Court found the instruction

flawed because it shifted the burden of proving intent. 

Id. at 524

, 

99 S. Ct. at 2459

.

      The felony-murder rule has been justified under a theory of

“transferred intent,” namely, that the mens rea required for murder is

provided by imputing the mens rea from the defendant’s felonious act. See

Roth & Sundby, 70 Cornell L. Rev. at 453. Once a jury concludes that a

killing had been committed in the course of the commission of a felony,

the necessary culpability required for murder must be presumed. See id.

at 460.    The presumption of the necessary mens rea as arising out of

something else—namely the commission of a felony where another has

murdered someone—is subject to serious challenge under Sandstrom. Id.

at 469.

      B. Legislative Definitions of Crime and Due Process and Cruel

and Unusual Punishment.          As second theoretical defense of felony
                                    62

murder eschews any fictitious transferred intent but emphasizes the

ability of the legislature to define crimes. According to this theory, the

legislature is free to enact a felony-murder rule that does not require the

state to prove the traditional mens rea normally associated with the crime

of murder.    But a bedrock principle of criminal law has been that

imposition of serious criminal sanctions ought to reflect culpability.

      The United States Supreme Court considered the question of mens

rea requirement in Morissette v. United States, 

342 U.S. 246

, 

72 S. Ct. 240

(1952).   In Morissette, the defendant had taken what he thought were

abandoned shell casings from a government bombing range, compressed

the shells, and sold the metal for $84. 

Id. at 247

, 

72 S. Ct. at 242

. He

was charged with conversion of government property. 

Id. at 248

, 

72 S. Ct. at 242

. The trial court refused to allow the defendant to assert that he

believed the property was abandoned on the ground that intent was

presumed.    The United States Court of Appeals for the Sixth Circuit

affirmed, holding the statute did not require the government to prove

criminal intent. 

Id.

 at 249–50, 72 S. Ct. at 242–48.

      The Supreme Court reversed. 

Id. at 276

, 

72 S. Ct. at 256

. In an

opinion by Justice Jackson, the Court noted,

             The contention that an injury can amount to a crime
      only when inflicted by intention is no provincial or transient
      notion. It is as universal and persistent in mature systems of
      law as belief in freedom of the human will and a consequent
      ability and duty of the normal individual to choose between
      good and evil. A relation between some mental element and
      punishment for a harmful act is almost as instinctive as the
      child’s familiar exculpatory “But I didn’t mean to . . . .”

Id.

 at 250–51, 

72 S. Ct. at 243

 (footnote omitted).

      Even where a statute did not expressly include an intent

requirement, the Morissette Court emphasized “[c]ourts, with little
                                      63

hesitation or division, found an implication of the requirement as to

offenses that were taken over from the common law.” 

Id. at 252

, 

72 S. Ct. at 244

. The Court declined to depart from the common law mens rea

requirement in light of the statutory silence in federal conversion law. 

Id. at 262

, 

72 S. Ct. at 249

. Citing a state supreme court case, the Court

noted, “It is alike the general rule of law, and the dictate of natural justice,

that to constitute guilt there must be not only a wrongful act, but a

criminal intention.” 

Id. at 274

, 

72 S. Ct. at 255

 (quoting People v. Flack,

26 N.E. 267, 270

 (N.Y. 1891)). The Court recognized that while the mens

rea element might be eliminated for certain regulatory crimes, the Court

declined to do so for crimes under the federal conversion statute. 

Id.

 at

262–63, 72 S. Ct. at 249–50. While to do so might “ease the prosecution’s

path to conviction,” it would “change the weights and balances in the

scales of justice.” Id. at 263, 

72 S. Ct. at 249

; see also United States v.

U.S. Gypsum Co., 

438 U.S. 422

, 436–37, 

98 S. Ct. 2864, 2873

 (1978).

      The United States Supreme Court considered the role of culpability

in two felony-murder cases involving the death penalty in Enmund v.

Florida, 

458 U.S. 782

, 

102 S. Ct. 3368

 (1982), and Tison v. Arizona, 

481 U.S. 137

, 

107 S. Ct. 1676

 (1987). In Enmund, the Court considered a case

in which a nontriggerman getaway driver was convicted of felony murder

and sentenced to death. 458 U.S. at 784–85, 

102 S. Ct. at 3370

. In Tison,

the Court considered a felony-murder case in which the defendants did

not pull the trigger but were deeply involved in an underlying crime. 481

U.S. at 139–41, 107 S. Ct. at 1678–79.

      In Enmund, the defendant drove the getaway car in an armed

robbery. 

458 U.S. at 784

, 

102 S. Ct. at 3370

. His compatriots approached

the targeted house and engaged in a fight with the occupants; as a result,

the residents were killed. 

Id. at 784

, 102 S. Ct. at 3369–70. Pursuant to
                                      64

Florida law, the district court instructed the jury that “[t]he killing of a

human being while engaged in the perpetration of or in the attempt to

perpetrate the offense of robbery is murder in the first degree even though

there is no premeditated design or intent to kill.” 

Id.

 at 784–85, 

102 S. Ct. at 3370

 (alteration in original).      The defendant was convicted and

sentenced to death.     

Id. at 785

, 

102 S. Ct. at 3370

.        The defendant

appealed, claiming that the imposition of the death penalty under the

circumstances violated the Eighth Amendment proscription against cruel

and unusual punishment. 

Id. at 787

, 

102 S. Ct. at 3371

.

      The Supreme Court agreed. 

Id. at 801

, 102 S. Ct. at 3378–79. The

Enmund Court emphasized that to impose the death penalty pursuant to

a felony-murder conviction of a nontriggerman would not further either of

the goals of deterrence or retribution. 

Id. at 800

, 

102 S. Ct. at 3378

. With

respect to deterrence, the Court noted that “if a person does not intend

that life be taken . . . the possibility that the death penalty will be imposed

for vicarious felony murder will not ‘enter into the cold calculus that

precedes the decision to act.’ ’’ 

Id. at 799

, 

102 S. Ct. at 3377

 (quoting

Gregg v. Georgia, 

428 U.S. 153, 186

, 

96 S. Ct. 2909, 2931

 (1976)). Aside

from a lack of intent that might be deterred, the Court noted that there

was no reason to believe that death so frequently occurs during the course

of a felony that it would be a substantial deterrent to the underlying felony

itself. Id. at 799, 102 S. Ct. at 3377–78. The Enmund Court further cited

three studies that indicated the incidence of murder that occurred in

connection with robberies hovered at only approximately .5%. Id. at 799–

800 nn.23–24, 

102 S. Ct. at 3378

 nn.23–24.

      The Enmund Court then turned to retribution. 

Id. at 800

, 

102 S. Ct. at 3378

. The Court concluded that it was unconscionable to treat the

triggerman and the nontriggerman alike for purposes of imposing the
                                     65

death penalty. 

Id. at 801

, 

102 S. Ct. at 3378

. According to the Enmund

Court, “American criminal law has long considered a defendant’s

intention—and therefore his moral guilt—to be critical to ‘the degree of

[his] criminal culpability.’ ” 

Id. at 800

, 

102 S. Ct. at 3378

 (alteration in

original) (quoting Mullaney, 

421 U.S. at 698

, 

95 S. Ct. at 1889

).         The

defendant’s punishment in Enmund, according to the Court, was not

“tailored to his personal responsibility and moral guilt.” 

Id. at 801

, 

102 S. Ct. at 3378

.

      The Court took a different tack in Tison, 

481 U.S. 137

, 

107 S. Ct. 1676

. In Tison, the Court considered whether the death penalty arising

from felony murder could be applied in a case where the defendants were

substantial participants in the crime and where they manifested a reckless

disregard for human life. See 

id.

 at 139–41, 107 S. Ct. at 1678–79. In

Tison, the defendants were involved in a carefully planned and heavily

armed effort to free their father and another convicted murderer from

prison. 

Id. at 139

, 

107 S. Ct. at 1678

. The prison break at first succeeded,

with the escapees and his rescuers fleeing the area in a Lincoln

automobile. 

Id. at 139

, 

107 S. Ct. at 1679

. When the car ultimately had

a flat tire, the party flagged down a family in a passing vehicle. 

Id.

 at 139–

40, 

107 S. Ct. at 1679

. The family was kidnapped and their car and the

Lincoln driven into the desert. 

Id. at 140

, 

107 S. Ct. at 1679

. While the

family, standing in front of the Lincoln, pled for their lives, the father and

another compatriot fatally shot the family. 

Id.

 at 140–41, 

107 S. Ct. at 1679

. The defendants at the time were near the other automobile where

they had gone to fetch water for the victims. 

Id.

 The defendants were

convicted of felony murder, sentenced to death, and lost their appeal. 

Id.

at 141–43, 

107 S. Ct. at 1680

. They then launched a postconviction-relief
                                     66

challenge to their death sentence, calling it cruel and unusual under the

Eighth Amendment. 

Id. at 143, 152

, 107 S. Ct. at 1680–81, 1685.

      The Tison Court upheld the death sentences. 

Id. at 158

, 

107 S. Ct. at 1688

.   The Court observed that in Enmund, “the Court found that

Enmund’s degree of participation in the murders was so tangential that it

could not be said to justify a sentence of death.” 

Id. at 148

, 

107 S. Ct. at 1683

 (emphasis omitted).        In contrast, in Tison, the defendants

participated extensively in the escape, intentionally brought guns into the

prison to arm the murderers, participated fully in kidnapping and robbery,

and, after the murders, did nothing to aid the victims. 

Id.

 at 151–52, 

107 S. Ct. at 1685

. Unlike in Enmund, the involvement of the defendants in

the crimes was not minor, but “substantial.” 

Id. at 158

, 

107 S. Ct. at 1688

.

The Tison Court held that the defendants’ major participation in the felony

committed, combined with reckless indifference to human life, was

sufficient to satisfy the Enmund culpability requirement. 

Id.

      Justice Brennan and three other members of the court dissented.

Id. at 159

, 

107 S. Ct. at 1689

 (Brennan, J., dissenting).       According to

Justice Brennan, the felony-murder rule was a curious “living fossil from

a legal era in which all felonies were punishable by death.” 

Id.

 Justice

Brennan saw parallels with Enmund. 

Id. at 161

, 

107 S. Ct. at 1690

. In

both cases, the defendants did not shoot the victims and there was nothing

in the record to indicate intent to kill. 

Id.

 Justice Brennan rejected the

notion that a reckless actor could be held to the same degree of

accountability as an intentional actor, noting that “[t]he reckless actor has

not chosen to bring about the killing in the way the intentional actor has.”

Id. at 170

, 

107 S. Ct. at 1695

. According to Justice Brennan, “the criminal

law must ensure that the punishment an individual receives conforms to

the choices that individual has made.” 

Id. at 171

, 

107 S. Ct. at 1695

. As
                                    67

a result, Justice Brennan argued that the death penalty could not be

imposed under the facts presented. 

Id. at 182

, 

107 S. Ct. at 1701

.

      C. Application of Felony Murder to Children in Light of Recent

Developments in Juvenile Justice. As can be seen above, the felony-

murder rule generally has substantial due process and proportionality

problems. These well recognized challenges are greatly magnified in the

context of juvenile offenders.      This case involves more than the

conventional challenges to felony murder, but because a child is involved

the due process and cruel and unusual punishment claim are on legal

steroids. A body of literature has recently developed suggesting that, at

least as applied to children, the felony-murder rule is unconstitutional.

See Steven A. Drizin & Allison McGowen Keegan, Abolishing the Use of the

Felony-Murder Rule When the Defendant Is a Teenager, 

28 Nova L. Rev. 507

, 535–42 (2004) (“[W]e believe that there should be an absolute ban on

the felony-murder doctrine for child defendants under the age of

fourteen . . . .”); Emily C. Keller, Constitutional Sentences for Juveniles

Convicted of Felony Murder in the Wake of Roper, Graham, & J.D.B., 11

Conn. Pub. Int. L.J. 297, 309–23 (2012) [hereinafter Keller] (arguing life

sentences without parole for juvenile convicted of felony murder is

unconstitutional).

      Recent challenges to the application of felony murder to juveniles

emphasize the juvenile justice cases recently decided by the United States

Supreme Court. See generally Miller v. Alabama, 

567 U.S. 460

, 

132 S. Ct. 2455

 (2012); J.D.B. v. North Carolina, 

564 U.S. 261

, 

131 S. Ct. 2394

(2011); Graham v. Florida, 

560 U.S. 48

, 

130 S. Ct. 2011

 (2010); Roper v.

Simmons, 

543 U.S. 551

, 

125 S. Ct. 1183

 (2005).         The thrust of the

argument is that while the felony-murder rule is generally in a weak
                                    68

position, it simply cannot be sustained with respect to juvenile offenders.

See Keller, 11 Conn. Pub. Int. L.J. at 316–18.

       First, critics note that the deterrence rational supporting felony

murder is already weak with respect to adults. In Enmund, the Supreme

Court stated that it was “quite unconvinced . . . that the threat that the

death penalty will be imposed for murder will measurably deter one who

does not kill and has no intention or purpose that life will be taken.” 458

U.S. at 798–99, 

102 S. Ct. 3377

; see also Keller, 11 Conn. Pub. Int. L.J. at

317.

       If the Court is unconvinced that the death penalty in the felony-

murder rule is a deterrent for adults, the Court would surely be

unconvinced that life in prison with the possibility of parole would provide

a deterrent for children who do not intend that life will be taken.      In

Graham, for instance, the Supreme Court noted that juveniles “are less

likely to take a possible punishment into consideration when making

decisions.” 

560 U.S. at 72

, 130 S. Ct. at 2028–29. In Roper, the Supreme

Court noted “[t]he likelihood that the teenage offender has made the kind

of cost-benefit analysis that attaches any weight to the possibility of

execution is so remote as to be virtually nonexistent.” 

543 U.S. at 572

,

125 S. Ct. at 1196

 (alteration in original) (quoting Thompson v. Oklahoma,

487 U.S. 815, 837

, 

108 S. Ct. 2687, 2700

 (1988)). As our court has noted,

“children lack the risk-calculation skills adults are presumed to possess

and are inherently sensitive, impressionable, and developmentally

malleable.” State v. Lyle, 

854 N.W.2d 378, 389

 (Iowa 2014); see also Keller,

11 Conn. Pub. Int. L.J. at 317–18. In State v. Null, we summed up the

developments by noting that juvenile brains are not fully developed for

executive functioning which effect behaviors “such as reasoning, abstract
                                     69

thinking, planning, the anticipation of consequences, and impulse

control.” 

836 N.W.2d 41, 55

 (Iowa 2013).

      Second, critics maintain that the retributive goals of criminal

punishment have less force as applied to juveniles.           Retribution is

appropriate goal for morally culpable offenders. But the felony-murder

rule does not require the individual mens rea ordinarily required to

support a murder conviction. With respect to children, the retributive

goals of the felony-murder rule are further diminished because of the

characteristics of youth. See Roper, 

543 U.S. at 571

, 

125 S. Ct. at 1196

;

see also Keller, 11 Conn. Pub. Int. L.J. at 316–17.

      V. Discussion.

      Justice Frankfurter noted long ago that “not the least significant test

of the quality of a civilization is its treatment of those charged with crime,

particularly with offenses which arouse the passions of a community.”

Irvin v. Dowd, 

366 U.S. 717, 729

, 

81 S. Ct. 1639, 1646

 (1961) (Frankfurter,

J., concurring). Harrison is guilty of significant crime and deserves to be

punished accordingly. But the application of the felony-murder rule to

him distorts the criminal justice system beyond recognition.

      First, although he certainly had the necessary mens rea to commit

the robbery, the instructions in this case permitted the jury to find that if

he was guilty of the crime of robbery, Harrison was also guilty of felony

murder, or murder in the first degree. For all the reasons in the authorities

cited above, this is a troublesome state of affairs. In order to comport with

fundamental fairness, the issue is not whether Harrison had sufficient

moral culpability to support robbery.      He did.    The issue is whether

Harrison had sufficient moral culpability to support first-degree murder

and a life sentence with possibility of parole, merely because of his

participation in the robbery.     In order to support such a conviction
                                    70

consistent with due process, the state must prove the elements of the

underlying felony and, independently, sufficient malice to support a

conviction of murder.    Yet, the instructions permitted the jury to find

Harrison guilty of murder without a finding of malice independent of the

underlying felony.

      Further, the limited moral culpability that may be assigned to

Harrison is further diminished by the fact that he was a child. Without

question, the teachings of Miller, Graham, and Roper establish that the

moral culpability of juveniles even for horrendous crimes is diminished by

their lack of neurological and psychological development. Thus, the very

thin basis of culpability that might support the felony-murder rule in some

circumstances is further diminished by the age of Harrison.

      Second, there is the issue of deterrence. As was powerfully pointed

out in Enmund, it is hard to understand how the felony-murder rule deters

when the defendant has no intention to commit the crime. 458 U.S. at

798–99, 

102 S. Ct. at 3377

. As with moral culpability, the deterrence

rationale for felony murder, already thin, is further diminished by the fact

that Harrison was seventeen at the time of the offense.

      It is true that in this case, Harrison was not sentenced to life in

prison without the possibility of parole. Instead, he was sentenced to life

in prison with the possibility of parole as required by State v. Sweet, 

879 N.W.2d 811, 839

 (Iowa 2016).      Yet, there can be little doubt that his

conviction of first-degree murder, albeit through a highly attenuated

application of the felony-murder rule, is going to dramatically increase his

prison term beyond that which he would have been imposed had he been

convicted merely of robbery.

      There is no occasion today to reconsider whether the felony-murder

rule is categorically unconstitutional on grounds of due process as applied
                                      71

to adults. That is not the issue before us. Instead, the question is whether

the felony-murder rule as applied to children is so attenuated from

traditional notions of due process of law. For the above reasons, I would

conclude that application of the felony-murder rule to persons under the

age of eighteen is so lacking in relationship to criminal culpability as to

amount to a violation of due process under both the United States and the

Iowa Constitutions.

         I also write to express disagreement with the majority’s approach to

cruel and unusual punishment under the Iowa Constitution. First, I note

that no party before this court has advocated that Iowa should not follow

the standards for determining cruel and unusual punishment set out in

State v. Bruegger, 

773 N.W.2d 862, 884

 (Iowa 2009), and State v. Oliver,

812 N.W.2d 636, 640

 (Iowa 2012).           We have not held that the federal

standards are applicable under the Iowa Constitution as there has been

no case where the issue has been contested.

         In any rate, in applying the federal standards, I would not put much

weight onto the national consensus in considering the issue before us.

The exploration of national consensus is a technique utilized by the United

States Supreme Court to address its federalism concerns, namely, a

concern that the United States Supreme Court must set a nationwide

standard. Such federalism concerns tend to dilute the scope of individual

rights and drive the decision toward a lowest acceptable common

denominator. Such federalism concerns simply are not applicable when a

state considers a constitutional question that does not apply outside the

state.

         In addition, I do not agree with the majority’s handling of Bruegger

in considering an as-applied standard. In Bruegger, we found that there

was reason to believe that an as-applied challenge under article I, section
                                      72

17 may be present. 

773 N.W.2d at 885

. Among other factors, we cited the

breadth of the underlying statute, Bruegger’s age when the predicate

offense was committed, and the geometric increase in criminal sanction.

Id.

 at 884–85.

      First, the breadth of the crime, the age of Bruegger when the

predicate offense was committed, and the geometric increase in sentence,

were factors, not criteria. The factors were never intended to establish a

ceiling or ironclad set of criteria for determining whether a sentence was

cruel and unusual under article I, section 17, but rather the general

nature of the factors that may point in the direction of finding a sentence

so grossly disproportional as to amount to a violation of article I, section

17.

      Second, the Bruegger factors are met in this case. Although the Iowa

felony-murder statute has been limited in important ways, it is still very

broad. Any person who simply participates in a robbery may be found

guilty of felony murder, even if that person did not bring a weapon to the

scene, had no knowledge that weapons would be present at the scene, and

had nothing to do with the murder. Also, Harrison was seventeen at the

time of the crime. And, instead of being exposed to the sanction for the

crime he clearly was guilty of committing, robbery, which carries a term of

years sentence, Harrison was sentenced to life in prison with possibility of

parole. There seems little doubt that Harrison’s prison sentence under

felony murder will be geometrically longer than that which would have

resulted if he had been convicted only of robbery.

      It is true, of course, that Harrison is eligible for parole. That, of

course, might be a mitigating factor, particularly if eligibility for parole is

considered soon after he has reached full maturity and correctional

authorities have an opportunity to evaluate his rehabilitation.         And a
                                     73

meaningful opportunity to be heard must mean more than a paper review

but must involve a serious assessment of the maturity and rehabilitation

of the defendant. Even so, however, the difference between a sentence of

life in prison with a meaningful opportunity to show rehabilitation and

maturity after a decade in prison in substantially more severe than a mere

conviction for robbery.

      I find it unnecessary to reach the question of whether life without

parole is categorically unconstitutional under article I, section 17, but I

would hold that in this case, a life sentence with the possibility of parole,

the harshest sentence available to a child, is grossly disproportional to

what he deserves, namely, a sentence for robbery or perhaps involuntary

manslaughter.

      VI. Conclusion.

      For the above reasons, I respectfully dissent.

      Wiggins and Hecht, JJ., join this dissent.