Does This Theory of Attempted Aggravated Murder Exist?
by: Ryan • August 29, 2011 • no comments
Following yesterday's post on the merger implications of one particular theory of Attempted Aggravated Murder, I've learned of three cases where it has been charged. Looking at the indictment in two of those cases, I have become convinced that this particular version of Attempted Aggravated Murder doesn't actually exist in Oregon law.
The relevant statute states in part:
163.095 "Aggravated murder" defined. As used in ORS 163.105 and this section, "aggravated murder" means murder as defined in ORS 163.115 which is committed under, or accompanied by, any of the following circumstances: (d) There was more than one murder victim in the same criminal episode as defined in ORS 131.505.
In order to charge Attempted Aggravated Murder when no one has died, the indictment will look something like this:
[The Defendant] did . . . intentionally attempt to cause the death of another human being, defendant having unlawfully and intentionally attempted to cause the death of an additional human being, in the course of the same criminal episode.
What should have set my internal alarm off immediately was the fact that this charge needs to use "attempt" or a variation twice in the same count. That alone makes the crime unique.
The second thing worth noticing is that the indictment significantly changes one particular element beyond just adding "attempt." The statute requires that "there was more than one murder victim in the same criminal episode." But that is changed in the indictment to "attempted to cause the death of an additional human being." The change from passive to active language should also set off alarm bells.
Enough with the gut reactions. What, legally, is the problem with the statute? Very simple. This theory of aggravated murder requires a murder, with a predicate murder from the same criminal episode. There are plenty of crimes with predicates. Felon in possession has a predicate offense of a prior felony conviction. Felony DUII requires two predicate DUIIs. Felony Assault IV can have a predicate offense of a prior assault against the same victim. What all of these have in common is that the completed predicate offense is required, not an attempt version of the same.
But, of course, your reaction is that all of those predicates require "convictions." Therefore, if someone has a conviction for an "attempted felony" conviction, the language of Felon in Possession is clearly not met:
166.250 Unlawful possession of firearms. (1) Except as otherwise provided in this section or ORS 166.260, 166.270, 166.274, 166.291, 166.292 or 166.410 to 166.470, a person commits the crime of unlawful possession of a firearm if the person knowingly:
(c) Possesses a firearm and:
(C) Has been convicted of a felony;
And that is exactly right, the indictment could not say, "has been convicted of an attempted felony" in order to reach the offense of Attempted Felon in Possession. But why? It's because "has been convicted of a felony" is plainly passive language that denotes a "circumstance." "Attempt" does not apply to predicate convictions or, more broadly, circumstances. A person can only attempt "conduct." Having been convicted of a felony is a "circumstance", it's not "conduct."
161.405 "Attempt" described. (1) A person is guilty of an attempt to commit a crime when the person intentionally engages in conduct which constitutes a substantial step toward commission of the crime. [Emphasis added and in original.]
Going back to the indictment, you may notice that it alleges conduct in place of the predicate language. It says, "defendant having unlawfully and intentionally attempted to cause the death of an additional human being. . . ."
But what the indictment has done is convert passive language from the statute into active language, or more specifically, it has converted a circumstance in the statute into conduct. This is why the change in language should have set off alarm bells. The actual agg murder statute requires:
(d) There was more than one murder victim in the same criminal episode as defined in ORS 131.505.
This is predicate language, not conduct language. The passive phrase "there was. . . ." gives it away as a circumstance. Not to mention the fact that the statute itself explicitly refers to it as a circumstance. It says, this murder charge becomes aggravated murder if accompanied by one of the listed "circumstances."
But the additional circumstance does not exist. But definition, there is no additional "murder victim in the same criminal episode." No one has been murdered at all. That predicate is no more satisfied than the defendant who tried to kill someone who had applied for a job with the Oregon State Police, but wasn't actually a "(C) A member of the Oregon State Police." Could you get to Att Agg Murder for attempting to kill someone who was an "attempted member of the Oregon State Police"?
In sum, "attempt" applies to conduct, and even though the indictment tries to convert the predicate into conduct, the plain language of the statute ("accompanied by any of the following circumstances ") makes it explicit the legislature intended it as a circumstance, not conduct.
The best way to deal with this is a demurrer, for failure to state a crime. Alternatively, you may want to file a motion in arrest of judgment after trial.
