The Theory of Attempted Aggravated Murder that Doesn't Exist
by: Ryan • May 5, 2016 • no comments
Assume a defendant shoots at -- and misses -- two people. It's quite common that that defendant will be charged with attempted aggravated murder for attempting to kill one person while attempting to kill another.
I have long argued -- but never in court, alas -- that that theory of attempted aggravated murder does not exist. I have written a demurrer that I have freely handed out and only gotten maybe three people to file, and only one to argue. Although this charge comes up quite often in Multnomah County, defense attorneys generally struggle with the argument conceptually and I think are discouraged from putting forth an argument they don't quite feel in their bones.
Well, today, the OSC ruled that my argument is . . . well, it didn't actually rule on the issue, but they did rule on the essential premise that undergirds my argument, and the Court reached the same conclusion I have been promoting.
The argument hinges on a simple rule: a person cannot be convicted of a crime based on attempting to commit a circumstance.
What does that mean? It means this. All crimes have elements. But the elements -- and of course I'm only focusing on material elements -- can be defined differently: conduct, circumstance and result. Delivering drugs is conduct. Within a thousand feet of a school is a circumstance. A person dying from the drugs is a result. Moreover, not all mental states apply to all elements. So, for example, you can recklessly cause a result (e.g., recklessly cause injury), but you can't recklessly commit conduct (e.g., you can't recklessly deliver drugs). I will be happy to provide authority for this, of which there's plenty, to anyone who asks, but let's just say these rules are not at all in dispute.
The reason a person cannot be convicted for attempting to commit a circumstance is that all attempt crimes carry an intentional mental state, per statute. And the law does not allow an intentional mental state to apply to circumstances. In other words, in order to charge someone with a crime that requires attempting a circumstance, the prosecutor would have to either violate the law against applying an intentional mental state to circumstances, or would have to violate the law by having a lesser mental state applied to an attempt.
Obviously, the law permits the crime of attempting to kill someone. This is entirely consistent with the rules involving mental states and elements: you can intentionally attempt conduct (killing someone) or you can intentionally attempt result (causing their death). If the crime of aggravated murder at issue was defined as murdering two people, then there would be nothing wrong with a crime that alleged the defendant attempted to kill two people. But the crime of aggravated murder -- based on a theory where two people are dead -- is not defined, per statute, as attempting to kill two people. Rather, it's written in such a way that a defendant need only intentionally kill one person, while a second person has been killed in the same criminal episode.
In other words, the second body is a circumstance. And if I'm right that it's a circumstance, and not conduct, and the law doesn't permit attempting a circumstance, then you can't be guilty of attempting to kill one person while intentionally attempting an attendant circumstance (another person having been killed).
Again, I recognize this is conceptually difficult, but I want to stress the bottom line: if the second body in the crime of aggravated murder is a circumstance, I win. If it's conduct, I lose. It really is that simple.
So what did the OSC say? Today, in one of the Turnidge opinions, it said this:
- Our conclusion is bolstered by a closer examination of the particular aggravating circumstance on which counts 1 and 2 were based, especially in the context of the other aggravating circumstances enumerated in the statute. Under ORS 163.095(1)(d), intentional murder is aggravated murder when “[t]here was more than one murder victim in the same criminal episode.” The passive form of that sentence itself conveys, not action or conduct, but a circumstance attendant to the criminal episode—the circumstance that more than one person was murdered. And the past tense form of the verb “to be”—in was murdered—likewise suggests a state of affairs that existed at the conclusion of the criminal episode, not a state of mind that attached to the defendant’s conduct during the episode. [Bold added.]
In other words, the second body is a circumstance, or attendant circumstance. You can't be convicted of a crime that hinges on attempting a circumstance. For example, you can be convicted for attempted to drive, and being intoxicated, but you can't be convicted for attempting to drive while attempting to be intoxicated. With respect to attempted aggravated murder, defendants have gotten longer sentences than the law permits because they were convicted of a crime that doesn't exist.
