There are some conflicting indications about whether Georgia will ultimately be charging McDaniel with malice murder or felony murder. Currently, both options remain a possibility, but indications are that felony murder is being heavily considered as the eventual charge. This seems slightly incongruous, in that Lauren's murder appears, by all accounts, to be an intentional and premeditated act, making it a malice murder rather than a felony murder.
But there is one obvious explanation for why prosecutors are leaning towards the felony murder charge:
in Georgia, it can be easier to obtain the death penalty against a first-time offender where the charge is one of felony murder rather than one of malice murder.
This is because premeditated murder, on its own, cannot result in imposition of the death penalty. Although the death penalty is available for either malice murder, or for felony murder where there is also malice, you need something additional to get the death penalty for malice murders, whereas you do not for (most) felony murders.
Under a threshold scheme, like Georgia has, the death penalty is an available punishment for a capital crime only where one of eleven aggravating circumstances are met. See Ga. Code Ann. § 17-10-30(b). This means that, to impose capital punishment, the jury must find that the accused committed the murder
and that one of the eleven enumerated circumstances exist. Both of these parts must be established beyond a reasonable doubt. However, many of the eleven aggravating factors concern offenders with prior records. So Georgia's threshold scheme means that, for someone who has never been charged with a crime before, felony murder can be more likely to result in capital punishment, whereas for a repeat offender, the aggravating element is automatically met.
Of the eleven aggravating circumstances, only two are potentially applicable to McDaniel -- (b)(2) and (b)(7). The remaining nine either involve defendants with prior convictions or circumstances not present here. So for the death penalty to apply to McDaniel, one of following two factors must be proved beyond a reasonable doubt:
(b)(2): The offense of murder, rape, armed robbery, or kidnapping was committed while the offender was engaged in the commission of another capital felony or aggravated battery, or the offense of murder was committed while the offender was engaged in the commission of burglary or arson in the first degree; [or]
(b)(7): The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim[.]
It is (b)(2) where the felony murder charge comes in. With felony murder, you essentially get to "double-count" the aggravating factor -- first, the felony is found to be part of the underlying murder charge, and second, the felony is the aggravating circumstance warranting the death penalty.
If the state's case is that McDaniel planned to kill Lauren, and then carried out his plan and killed her, the prosecution will have a more difficult time getting capital punishment under (b)(2). If instead the state's case is that McDaniel broke into Lauren's apartment (itself a burglary, as it's a breaking into a dwelling, with whatever felony intent the prosecutors want to try for), and then subsequent to the break in Lauren was somehow killed, then the death penalty becomes automatically available.
True, in either case, the prosecutor will have to prove beyond a reasonable doubt that a felony occurred. But from the perspective of the jury, you can see why the latter is the more preferable. If a jury is asked only to find McDaniel guilty of felony murder, then you can bet your pants that the jury is going to make sure someone like McDaniel gets convicted, and they will go ahead and find that he was also committing a burglary at the time, if that's what is needed and if there is evidence backing it up. If instead, the jury is only asked to find McDaniel guilty of premeditated murder, and then they are later asked to go back and find if he also committed another crime, things get more chancy. The jury might well decide that even if the murder was beyond a reasonable doubt, is there really sufficient evidence to determine beyond reasonable doubt that McDaniel also happened to plan to commit this other crime at the same time? Or did he only probably commit this other crime? Given that he viciously murdered her, who cares if he also committed a burglary while doing it?
Of course, prosecutors won't necessarily need the felony murder hook to get the death penalty for McDaniel at all -- because (b)(7) would already authorize it. Showing that the second factor was present in McDaniel's crime -- depravity of mind -- will be easier in this case than it will in most others, given the post-mortem mutilation. Jury instructions for “depravity of mind” have been given as follows:
[D]epravity of mind is a reflection of an utterly corrupt, perverted or immoral state of mind. In determining whether or not the offense of murder in this case involved depravity of mind on the part of the defendant, you may consider the age and physical characteristics of the victim and you may consider the actions of the defendant prior to and after the commission of the murder. In order to find that the offense of murder involved depravity of mind, you must find that the defendant, as the result of his utter corruption, perversion or immorality, committed aggravated battery or torture upon a living person, or subjected the body of a deceased victim to mutilation, or serious disfigurement or sexual abuse. West v. State, 252 Ga. 156, 161, (appendix) 313 S.E.2d 67 (1984)
Thus, the dismemberment of Lauren's body alone could be, but is not necessarily, sufficient to get the death penalty, because "the offense of murder" does not terminate at the instant of death, and events that happen afterward can be considered in determining whether aggravating factors are present.
See Conklin v. State, 254 Ga. 558, 565, 331 S.E.2d 532, 539 (1985) (finding that complete dismemberment of the body and disposal in a dumpster was sufficient to find that murder was outrageously or wantonly vile, horrible or inhuman, justifying imposition of death penalty).
So the prosecutors can get capital punishment against McDaniel with or without the felony murder charge. However, given that with felony murder you could also still get the aggravating charge under (b)(7), the prosecutors may have decided that they can get a more solid case with felony murder -- after all, if you go in to trial trying to prove two separate aggravating factors, the odds that the jury will come back with a verdict finding at least one of them was present go up. And you only need one to get the death penalty, doesn't matter which one it ends up being.
