The Getaway Driver Who Left: Withdrawal, Agency, and Felony Murder
Dana and Ellis agreed to rob a convenience store. Dana was to drive and keep watch. Ten minutes before Ellis entered, Dana said, 'I'm out - I'm not going in, and I'm taking the car,' and drove away. Ellis heard her but proceeded alone, entered the store with an unloaded revolver, and pointed it at the clerk while demanding the cash drawer. The clerk grabbed a bat and struck Ellis, who fell, hit his head on the tile floor, and died. The prosecutor charges Dana with felony murder, aggravated robbery, and conspiracy. Dana moves to dismiss the felony murder count, arguing that (1) she withdrew, (2) she neither caused nor intended Ellis's death, and (3) the fatal blow was struck by the victim, not by a felon. The jurisdiction retains the common-law felony murder rule and lists robbery as an enumerated felony; its withdrawal doctrine requires communication to the co-felon and, where prior assistance has been rendered, complete neutralization of that assistance.
1. Was Dana's withdrawal effective to cut off liability for the robbery and for Ellis's death?
Read the worked answer
Separate the two crimes, because withdrawal operates differently for each.
For conspiracy, withdrawal after the agreement does not erase the completed offense; conspiracy is complete on agreement plus any required overt act, and later withdrawal is at most a defense to subsequent substantive crimes. So the conspiracy charge survives regardless.
For the substantive robbery, the governing test is the one the jurisdiction supplied: communication plus neutralization. Dana communicated - Ellis heard her - so the first prong is met, and taking the car plausibly removed her own assistance as getaway driver. But neutralization is judged by effect, not gesture. Dana had already helped plan the robbery and had positioned Ellis at the scene; driving off did not undo either. A driver who leaves does not neutralize planning, casing, or the co-felon's resolve. The stronger argument is that her departure gave Ellis a chance to abandon, which the doctrine values, but Ellis continued immediately, so the withdrawal did not accomplish its purpose.
The timing is also fatal. Withdrawal must occur early enough for the co-felon to desist; ten minutes before entry, with Ellis already armed and committed, is not that moment. Did Dana do anything to frustrate the crime - call the store, warn police, physically obstruct Ellis? No. On these facts the withdrawal is ineffective for the robbery, though it may limit liability for crimes Ellis commits much later and far away.
2. Can Dana be convicted of felony murder when the fatal blow was struck by the clerk? Explain the competing theories.
Read the worked answer
This is the pivot of the case, and it turns on which causation theory the jurisdiction follows. Both are common-law positions, so the label 'common law' does not answer it.
Under the agency theory, felony murder reaches only killings committed by the felon or an accomplice acting in furtherance of the felony. The clerk is not an agent of the felons, so there is no felony murder; the death is the clerk's justified act of self-defense, and Dana's homicide exposure drops away (she remains liable for robbery and conspiracy). Courts adopting agency reasoning worry about extending murder liability to deaths the felons neither caused nor contemplated.
Under the proximate cause theory, felony murder applies to any death proximately resulting from the felony, whoever inflicts it, so long as the death is a foreseeable consequence. A clerk resisting an armed robbery with force is the paradigm foreseeable response; the robbery set in motion the confrontation that killed Ellis. Under this theory the killing is attributable to Dana as a participant in the felony.
Two limiters deserve mention. Some proximate-cause courts refuse to extend liability when the deceased is a co-felon killed by the victim or police, on the reasoning that the felony-murder rule should not be stretched to the death of a wrongdoer. Others apply a justifiable-homicide bar. Dana should argue both, and counsel should press the court to identify its theory before instructing the jury; leaving the jury with a generic 'in the commission of a felony' charge invites reversal.
3. What is the strongest remaining argument for Dana on the robbery count, and how does the unloaded gun affect it?
Read the worked answer
Even if withdrawal fails, the robbery count has a vulnerability: the degree of the offense may depend on the weapon.
Robbery requires force or intimidation. Pointing a gun at a clerk is intimidation whether or not the gun is loaded, and most courts hold that a victim who does not know the gun is unloaded is still placed in fear; the subjective emptiness of the threat does not matter where the victim reasonably believes it is real. So the robbery itself is not defeated.
But aggravated, armed, or first-degree robbery typically requires a 'deadly weapon' or a 'dangerous weapon.' An unloaded revolver is not a deadly weapon in the sense of being capable of causing death as used; whether it is 'dangerous' turns on whether it was used as a bludgeon or whether its display created a risk of escalation. Jurisdictions split sharply, so counsel must check the definitional text: some statutes cover 'any firearm, whether loaded or not,' which ends the argument; others require a weapon 'from the manner of its use likely to produce death or great bodily harm,' which an unloaded gun does not satisfy.
The consequence matters twice over. First, the degree of robbery is often what qualifies as an enumerated felony for felony murder; if the armed element fails, the predicate may collapse and the felony murder count with it. Second, Dana's liability is derivative, so any failure of proof on the predicate felony benefits her. Preserve the issue with a requested instruction on the lesser-included unarmed robbery and a motion for judgment of acquittal on the aggravated count.