Right on the heels of my
blog on Pundits, Pistorius, and Premeditation, I got another inquiry in a
similar vein from another reporter. This question dealt with attempted second
degree murder. Someone had been arrested in South Florida on a charge of
attempted first degree murder, but the prosecutor had filed the charge as
attempted second degree murder. The reporter wanted to know just how the heck
you could attempt a crime which by definition was unintentional. I had to
laugh, as I recalled a judge making a similar remark about an attempted murder
case I helped defend back in the 70’s.
The facts of the case
were this. Victim #1 beat the defendant up in an argument over a pool
shot. Apparently he had gotten some help from the other patrons in the bar/pool
hall, because the defendant left the bar with the warning “Y’all just wait. I’m
going home and get my boxcutter and come back all fix all y’all MFers.” The
defendant was as good as his word. Victim #1 had gone out to his car and
passed out in the back seat before the defendant got back. The defendant woke
him up by sticking the boxcutter in Victim #1's groin and opening a gash
from groin to kneecap. The defendant was in the process of filleting Victim #1
when some other bar patrons intervened and became Victims #2, #3, and possibly Victim #4. The defendant thoroughly sliced and diced them, too. I don’t
remember how many counts of attempted first degree murder they charged him
with, but it was at least three. Now, as thorough a carving job as he did on
the victims, it seemed apparent to me that he intended to kill someone. It wasn’t
so apparent to the jury, because they came back with verdicts ranging from
attempted second degree murder to attempted third degree murder to attempted manslaughter.
The judge observed that
the verdicts didn’t make sense. The attempted third degree murder verdict was
especially puzzling, and the attempted manslaughter verdict was downright paradoxical. but we’ll leave off discussion of that for a little later in this blog post.
Let’s first look at the logical incoherence of attempted second degree murder.
According to the
standard definition of attempt to commit a crime, attempted second degree
murder should logically be considered an attempted murder which is intentional
but not premeditated. BUT, the definition of premeditated murder is killing
after consciously deciding to do so. Therefore any intentional killing is
premeditated. Therefore, attempted second degree murder doesn't make any sense
because if you intend to kill, you’ve got to be guilty of attempted first
degree murder. This is why some older cases say there is no such thing as
attempted second degree murder. Some other courts allowed as how it didn’t make
much sense, but as the law stood in Florida at the time, you had to instruct
the jury on all degrees of a crime divided into degrees. (That’s no longer the
law, but that’s also another story).
So we had some courts
saying attempted second degree murder didn’t exist and others saying it did
exist even if it didn’t make sense. The Florida Supreme Court cleared up the
confusion by saying that attempted second degree murder is a crime. They had to
do some mental gymnastics to make it a crime. Here’s what happened:
A defendant got
convicted of attempted second degree murder and appealed, making the very
logical argument that: "An attempt is committed if you decide to
commit a crime, try to, and fail. If you decide to commit murder, you have
premeditated a murder. Therefore, there is no such thing as attempted second
degree murder." The Supreme Court decided, however, that you can
commit attempted second degree murder without intending to kill someone. They
explain it like this:
"The offense of
attempted second-degree murder does not require proof of the specific intent to
commit the underlying act (i.e., murder). See Gentry v. State, 437 So.2d 1097
(Fla.1983). In Gentry, we held that the crime of attempted second-degree murder
does not require proof of the specific intent to kill. Although the crime of
attempt generally requires proof of a specific intent to commit the crime plus
an overt act in furtherance of that intent, we reasoned: ‘If the state is not
required to show specific intent to successfully prosecute the completed crime,
it will not be required to show specific intent to successfully prosecute an
attempt to commit that crime.’ Id. at 1099. To establish attempted
second-degree murder of Harrell, the state had to show (1) that Brady
intentionally committed an act which would have resulted in the death of
Harrell except that someone prevented him from killing Harrell or he failed to
do so, and (2) that the act was imminently dangerous to another and
demonstrated a depraved mind without regard for human life. See Standard Jury
Instructions in Criminal Cases, 697 So.2d 84, 90 (Fla.1997)." Brown v.State, 790 So.2d 389 (Fla. 2000).
That certainly clears
everything up, doesn't it? By that line of reasoning, if I get drunk and walk
toward a car with a key in my hand trying to crank up and drive off, and if
somebody tackles me, then I’m guilty of attempted DUI. Or, if I do something
really stupid and almost kill somebody but don’t harm a hair on their head, I’m
guilty of attempted culpable negligence manslaughter. If I steal a car I've committed a felony If while driving that car I run over and kill someone, I've committed third degree felony murder. Now, under the Supreme Court's logic, if I steal a car and almost run over and kill someone but don't hurt anyone, I'm guilty of attempted third degree murder. Given enough time, we
could think of all sorts of silly scenarios that, under the Supreme Court's rationale, make
people guilty of criminal attempts to commit all sorts of unintended crimes.
Now to bring this back
to Pistorius. South Africa seems to me to have a much better definition of
premeditation than we do in the United States. South Africa distinguishes
between intending to kill and premeditating a murder. Put as simply as
possible,[1] if on the spur of the moment I decide to kill, in South Africa I’m
guilty of attempted intentional murder but not attempted premeditated murder.
In Florida I’m guilty of premeditated murder because premeditation is simply
killing “after consciously deciding to do so.” In South Africa premeditation
requires some prior planning. If we had the South African definition of
premeditation, then attempted second degree murder would make perfect sense. I
decide on the spur of the moment to kill and fail, I’m not guilty of attempted
first degree murder because there was no prior planning. I’m guilty of
attempted second degree murder without having to do the mental gymnastics the
Florida Supreme Court did to make attempted second degree murder a crime.
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