Criminal Law III Summer Qtr 2010 Week 1 Attempts

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1. Criminal Law III Summer Qtr 2010 Week 1 Attempts John C. Schick jschick@humphrey.edu jcschick@earthlink.net 209.235.2937 Serena Essapour
2. Attempts  Is there a justification for punishing someone who does not do a completed crime, that is cause actual social harm?  What is the historical basis for this crime?
3. Is the “evil mind” a basis?  If a person clearly INTENDS to do a crime and cause social harm, we may need a device to stop that act and to punish it.  But this makes the mental state connected to the crime of attempt all important.  Note that we have imposed the requirement of specific intent to do the act as a prerequisite.
4. People v. Gentry  Gentry is convicted for the crime of attempted murder.  He had spilled gasoline on his girlfriend and her body caught fire.  He apparently put out the fire, after she had been severely burned.  Court’s instructions on homicide covered all categories of that crime.
5. Gentry, concluded  This lumping together meant that some forms of non-intentional homicide were part of the possible verdicts.  These categories included intent, knowledge, recklessness and negligence.  An attempt requires the specific intent to do the target crime.  Thus the instructions were too broad and the conviction must be reversed.
6. Bruce v. State  Bruce is convicted of attempted felony murder, since he pointed a gun at another person during a robbery.  While pointing the gun, he told the person he would kill him.  Bruce shoots but does not kill Tensor.
7. Bruce, continued  Bruce argues that the felony murder rule only requires intent to do the felony plus a killing during the commission or attempted commission of the felony.  An accidental killing still allows for the person to be convicted of homicide given the theoretical basis of the FMR.
8. Bruce, concluded  Again, it is to be noted that criminal attempt is a specific intent crime.  A conviction for felony murder on the other hand does not require any specific intent to kill.  Thus it would be error to say that an attempt to kill that is not guided by a legal definition that shows specific intent to kill is wrong.  The conviction is reversed.
9. The two intents nature of an attempt  First the actor must intentionally do the act. The act cannot be accidental or unplanned. This satisfies the actus reus prong.  Secondly, the actor must do this act with the specific intent of doing the substantive crime. This would be the mens rea.
10. California law on the topic  CAL CRIM 460 To show an attempt, the people must prove that the defendant took a direct but ineffective step toward committing the target offense.  Also, the state must prove that the defendant intended to commit the target offense.
11. United States v. Mandujano  Court notes that mere preparation does not equate with an attempt to do a crime.  But formulating a rule is not that easy.  Court notes that a traditional way to look at this area was to note if the actor has done all that he/she can do short of the crime, but in some way is interrupted by outside forces.
12. Mandujano, concluded  But courts now avoid this test and look to whether or not the crime put in progress would be consummated, but for some outside intervention.
13. Aid to understanding Attempts 1) Did D intend to commit the crime? 2) Was what D did wrong in itself? 3) Was it impossible for D to commit the crime? 4) Did D use an appropriate method? 5) Was D’s act preparatory or perpetrating? 6) Was D’s act too remote to be considered? 7) Was D’s conduct sufficiently blameworthy to merit punishment?
14. Commonwealth v. Peaslee  Peaslee was planning to burn a building.  He set it up so that if one item had been lighted, the building would burn.  He asked an employee to help.  The employee refused.  Peaslee then changes his mind before he gets to the building.
15. Peaslee, cont.  Holmes says that merely collecting items that would do the crime is not enough.  There must be a present intent to do the crime, without much delay.  The act of soliciting the employee would add substance to the charge.  As worded, the pleading is not enough.
16. People v. Rizzo  Rizzo is convicted of attempted robbery.  Court has no doubt that Rizzo intended to do the crime if he had the chance.  His crime partners were looking for the payroll clerk, without success.
17. Rizzo, concluded  While they are still trying to find the clerks, the cops intervene and arrest them.  Court notes that there must be dangerous proximity to success, or an act that is very near to the accomplishment of the crime.  The absence of these elements means the conviction must be reversed.
18. People v. Miller  Defendant convicted of attempted murder.  Evidence showed that Miller walked towards the location of possible victim with rifle, but never raised it to point at victim.  Because these acts are equivocal, the conviction is reversed.
21. State v. Reeves  Two 12 year old girls devise a plot to kill a teacher.  They bring rat poison to class but never put it in her cup.  Tennessee case law required some substantial overt act beyond the mere preparation present in an attempt.
22. Reeves, concluded  But the legislature passed a new law as part of a code revision in 1989.  Consequently, there is a less rigid requirement for the “substantial” act that needs to be done.  Thus the court affirms the conviction.
23. United States v. Alkhabaz  Federal law made it a crime to communicate threats via interstate commerce.  Defendant had communicated very explicit stories about acts of violence he might do and named explicitly a real victim who was a student at his school.
24. Alkhabaz, continued  The majority concludes that these messages, between two e-mail correspondents, did not have the element of purpose or a goal (intent)  They feel this element is a part of the full definition of threat, the word used in the language of the statute.
25. Alkhabaz, concluded  Majority affirm the dismissal because they feel the element of purpose for stating the words is missing in this instance.  Dissent states that the words are a threat pure and simple and that is enough for a conviction.  Note the dictionary definition of threat quoted by the dissent.
26. Thank You Serena Essapour