I'm with Mcbeth on the felony murder charge. Its always sounded like a government twist to me--a way to stick the rest of the crooks with more time.
If evidence showed that two of them knew the homeowner was armed, and they talked the dead guy into being the first one in the door as a conspiracy to get him shot, then I could see a murder charge.
But, c'mon. They went in with a toy gun. Clearly they didn't intend to shoot the homeowner. Where's the mens rea for murder?
I wonder if felony murder was originally developed to address situations where, for example, the homeowner was killed by one crook, in order to get the other crooks; but then some creative prosecutors expanded the application of the statute to situations where an accomplice dies.
Jeezus. Under the current theory, its possible for a car full of teenagers to run from a cop, overturn the car killing one of them, and the rest get charged with felony murder. Or, two crooks to flee together and one gets shot and killed by a cop, and the other gets charged with murder. Flight to evade is a crime, if I recall. Even if the cop shot one of them illegally, the felony murder charge is still applicable.