People v. Acosta

California Court of Appeals

284 Cal. App.3d 1375 (1991)

At 10 p.m. on March 10, 1987, Officers Salceda and Francis of the Santa Ana Police Department's automobile theft detail saw Acosta in Elvira Salazar's stolen Nissan Pulsar parked on the street. The officers approached Acosta and identified themselves. Acosta inched the Pulsar forward, then accelerated rapidly. He led Salceda, Francis and officers from other agencies on a 48–mile chase along numerous surface streets and freeways throughout Orange County. The chase ended near Acosta's residence in Anaheim.

During the chase, Acosta engaged in some of the most egregious driving tactics imaginable. He ran stop signs and red lights, and drove on the wrong side of streets, causing oncoming traffic to scatter or swerve to avoid colliding with him. Once, when all traffic lanes were blocked by vehicles stopped for a red light, he used a dirt shoulder to circumvent stationary vehicles and pass through the intersection. When leaving the freeway in Anaheim, he drove over a cement shoulder.

Throughout the pursuit, Acosta weaved in and out of traffic, cutting in front of other cars and causing them to brake suddenly. At one point on the freeway, he crossed three lanes of traffic, struck another car, jumped the divider between the freeway and a transition lane, and passed a tanker truck, forcing it to swerve suddenly to avoid a collision.

Acosta generally drove at speeds between 60 and 90 miles per hour, slowing only when necessary. During several turns, his wheels lost traction. When an officer was able to drive parallel to the Pulsar for a short distance, Acosta looked in his direction and smiled. Near the end of the chase, one of the Pulsar's front tires blew out, but Acosta continued to drive at 55 to 60 miles per hour, crossing freeway traffic lanes.

Police helicopters from Anaheim, Costa Mesa, Huntington Beach, and Newport Beach assisted in the chase by tracking Acosta. During the early part of the pursuit, the Costa Mesa and Newport Beach craft were used, pinpointing Acosta's location with their high beam spotlights. The Costa Mesa helicopter was leading the pursuit, in front of and below the Newport Beach helicopter. As they flew into Newport Beach, the pilots agreed the Newport Beach craft should take the lead. The normal procedure for such a maneuver is for the lead helicopter to move to the right and swing around clockwise behind the other craft while climbing to an altitude of 1,000 feet. At the same time, the trailing helicopter descends to 500 feet while maintaining a straight course.

At the direction of the Costa Mesa pilot, the Newport Beach helicopter moved forward and descended while the Costa Mesa helicopter banked to the right. Shortly after commencing this procedure, the Costa Mesa helicopter, having terminated radio communication, came up under the Newport Beach helicopter from the right rear and collided with it. Both helicopters fell to the ground. Three occupants in the Costa Mesa helicopter died as a result of the crash.

Menzies Turner, a retired Federal Aviation Administration (FAA) investigator, testified as an expert and concluded the accident occurred because the Costa Mesa helicopter, the faster of the two aircraft, made a 360–degree turn and closed too rapidly on the Newport Beach helicopter. He opined the Costa Mesa helicopter's pilot violated an FAA regulation prohibiting careless and reckless operation of an aircraft by failing to properly clear the area, not maintaining communication with the Newport Beach helicopter, failing to keep the other aircraft in view at all times, and not changing his altitude. He also testified the Costa Mesa pilot violated another FAA regulation prohibiting operation of one aircraft so close to another as to create a collision hazard.2

Turner could not think of any reason for the Costa Mesa helicopter's erratic movement. The maneuver was not a difficult one, and was not affected by the ground activity at the time. He had never heard of a midair collision between two police helicopters involved in tracking a ground pursuit, and had never investigated a midair collision involving helicopters.

After his arrest Acosta told the police he knew the Pulsar was stolen and he fled the police to avoid arrest. He also saw two helicopters with spotlights, and turned off the Pulsar's lights to evade them. Acosta knew that his flight was dangerous “to the bone,” but he tried to warn other cars by flashing the car lights and by otherwise being “as safe as possible.”

Acosta claims there was insufficient evidence of two elements necessary to support the convictions for second degree murder: that he proximately caused the deaths of the victims, and that his state of mind constituted implied malice. He is correct on the latter claim.

As to the proximate cause issue, Acosta argues that although a collision between ground vehicles was a foreseeable result of his conduct, one between airborne helicopters was not, noting his expert had never heard of a similar incident. He also contends the Costa Mesa helicopter pilot's violation of FAA regulations was a superseding cause. Because the deaths here were unusual, to say the least, the issue deserves special scrutiny.

“Proximate cause” is the term historically used to separate those results for which an actor will be held responsible from those not carrying such responsibility. The term is, in a sense, artificial, serving matters of policy surrounding tort and criminal law and based partly on expediency and partly on concerns of fairness and justice. Because such concerns are sometimes more a matter of “common sense” than pure logic, the line of demarcation is flexible, and attempts to lay down uniform tests which apply evenly in all situations have failed. That does not mean general guidelines and approaches to analysis cannot be constructed.

The threshold question in examining causation is whether the defendant's act was an “actual cause” of the victim's injury. It is a sine qua non test: But for the defendant's act would the injury have occurred? Unless an act is an actual cause of the injury, it will not be considered a proximate cause.

The next inquiry is whether the defendant's act was a “substantial factor” in the injury. In California, the substantial factor issue has arisen most often where multiple causes act concurrently, but independently, to produce the harm. The test is one of exclusion only.  Unless a cause is a substantial factor in the harm it will not be considered a proximate cause, but some substantial factor causes may not be deemed proximate causes.

[The Court then focused on California cases which held that proximate cause often boils down to the question of foreseeability.]

Prosser and Keeton, in an in-depth discussion of the dynamics of foresight, conclude that although it is desirable to exclude extremely remarkable and unusual results from the purview of proximate cause, it is virtually impossible to express a logical verbal formula which will produce uniform results. I agree. The standard should be simply stated, exclude extraordinary results, and allow the trier of fact to determine the issue on the particular facts of the case using “the common sense of the common man as to common things.” As with other ultimate issues, appellate courts must review that determination, giving due deference to the trier of fact.

The “highly extraordinary result” standard serves that purpose. It is consistent with the definition of foreseeability used in California. It does not involve the defendant's state of mind, but focuses upon the objective conditions present when he acts. Like numerous other legal definitions, what it means in practice will be determined as case law develops. Limitations arising from the mental state of the actor can be left to concepts like malice, recklessness and negligence.

Because the highly extraordinary result standard is consistent with the limitation on direct causes, it simplifies the proximate cause inquiry. The analysis is: (1) was the defendant's conduct the actual cause of the harm (but for his actions would it have occurred as it did)? (2) was the result an intended consequence of the act? (3) was the defendant's action a substantial factor in the harm? and (4) was the result highly extraordinary in light of the circumstances?

If the first question is answered no, proximate cause is lacking. If answered yes, the next question must be examined. If the second question is answered yes, proximate cause is established. If answered no, the next question must be examined. If the third question is answered no, proximate cause is lacking. If answered yes, proximate cause is established unless the fourth question is answered yes, in which case it is lacking. The analysis does away with the need to consider the distinction between direct, concurrent, contributory, and dependent and independent intervening causes. It focuses, as it should, upon the role the defendant's act played in the harm, limiting culpability only where the conduct was de minimis or the result highly extraordinary.

Here, but for Acosta's conduct of fleeing the police, the helicopters would never have been in position for the crash. However, there was no evidence he intended the harm, so I must examine questions three and four.

Although an extremely close question, Acosta's conduct was a substantial factor in causing the crash. He was fleeing when the accident occurred, and there was no lapse of time between his flight and the crash—his action had not “come to rest.” The only other factor operating at the time was the improper flight pattern of the Costa Mesa pilot. Although Acosta's horrendous driving did not cause the helicopter's improper maneuver, his flight undoubtedly infused excitement and tension into the situation, which can be considered to be a substantial factor. No similar case has held otherwise, although the third party collisions all have involved accidents on the ground.

The result was not highly extraordinary. Although a two-helicopter collision was unknown to expert witness Turner and no reported cases describe one, it was “a possible consequence which reasonably might have been contemplated.” Given the emotional dynamics of any police pursuit, there is an “appreciable probability” that one of the pursuers, in the heat of the chase, may act negligently or recklessly to catch the quarry. That no pursuits have ever before resulted in a helicopter crash or midair collision is more a comment on police flying skill and technology than upon the innate probabilities involved.

[The Court next concluded that, although Acosta was the legal cause of the crash, the murder conviction could not be sustained. “[T]here is no evidence Acosta had a conscious disregard for any risk to the helicopters. Although he stated he knew his conduct was dangerous “to the bone,” nothing connected the statement to the aerial surveillance. His knowledge that there were helicopters involved in the pursuit does not suffice. In the absence of more evidence, no reasonable juror could find a conscious disregard for a risk which is barely objectively cognizable.”]

People v. Warner-Lambert Co.

Court of Appeals of New York

414 N.E.2d 660 (N.Y. 1980)

The indictment charges each defendant with six counts of manslaughter in the second degree in violation of section 125.15 of the Penal Law and six counts of criminally negligent homicide in violation of section 125.10 of the Penal Law in consequence of the deaths of six employees which resulted from a massive explosion and fire at the Long Island City Warner-Lambert plant about 2:30 A.M. on November 21, 1976.

On the day on which the explosion occurred, Freshen-Up Gum, which is retailed in the shape of a square tablet with a jellylike center, was being produced at the Warner-Lambert plant by a process in which filled ropes of the gum were passed through a bed of magnesium stearate (MS), a dry, dustlike lubricant which was applied by hand, then into a die-cut punch (a Uniplast machine) which was sprayed with a cooling agent (liquid nitrogen), where the gum was formed into the square tablets. Both the MS (normally an inert, organic compound) and the liquid nitrogen were employed to prevent the chicle from adhering to the sizing and cutting machinery, the tendency to adhere being less if a dry lubricant was used and the punch was kept at a low temperature. The process produced a dispersal of MS dust in the air and an accumulation of it at the base of the Uniplast machine and on overhead pipes; some also remained ambient in the atmosphere in the surrounding area. 

Both MS and liquid nitrogen are considered safe and are widely used in the industry. In bulk, MS will only burn or smoulder if ignited; however, like many substances, if suspended in the air in sufficient concentration the dust poses a substantial risk of explosion if ignited. The minimum concentration at which an explosion can occur is denominated the “lower explosion level” (LEL). Liquid nitrogen, with a boiling temperature of minus 422 degrees Fahrenheit, is an effective cryogenic which might play a part in the process of “liquefaction”-- here, the production of liquid oxygen in the course of the condensation of air on its exposure to a source of intense cold. Liquid oxygen is highly volatile, is easily ignited and, if ignited, will explode. Among possible causes of such ignition of either liquid oxygen or ambient MS are electrical or mechanical sparks.

On November 21, 1976 defendant Warner-Lambert was operating six Uniplast machines in the production of Freshen-Up Gum on the fourth floor of its Long Island City plant. The machines were in almost constant operation; however, at the time of the catastrophic explosion near the end of one of the work shifts only one machine (designated the “D” machine) was in operation and employees were engaged in removing settled MS dust from the base of that machine and from overhead pipes by broom sweeping and by the use of airhoses. Suddenly an explosion occurred in the area of the operating machine, followed almost immediately by a second, much larger explosion accompanied by flames which caused injuries to more than 50 workers in the area (six of whom did not survive) and extensive damage to the building and equipment, which was attributed to burning of ambient dust and explosion rather than general fire. Thorough postcatastrophe investigation eliminated intentional or “man-caused” ignition as the origin of the event. A New York City Fire Marshal and an investigator for the United States Occupational Safety and Health Administration, both of whom examined the scene, testified before the Grand Jury that a primary explosion had occurred at the “D” machine which dispersed added MS dust into the atmosphere and could have caused the second, greater explosion. There was testimony that the ceiling of the floor below the “D” machine had been covered with peeling paint, indicating that the temperature of that machine was colder than the others and that an examination of the machine itself after the explosion had shown that its base, made of cast iron, had cracked, perhaps by reason of the cold. An employee present at the time of the occurrence testified that he had observed a spark in the area of the “D” machine immediately prior to the event. Although there was no direct proof as to what had triggered the early morning disaster, the People introduced expert testimony hypothesizing that there might have been a mechanical sparking induced by a breakup of metal parts of the Uniplast machine. Also presented was testimony by one of the People's experts who theorized that liquid oxygen produced through liquefaction occurring in the Uniplast machine was ignited by the impact of a moving metal part and that this touched off the dispersed MS dust present.

With respect to the quantity of ambient MS dust in the area of the Uniplast machines (the presence of which was the basis for the People's submission to the Grand Jury of evidence against the defendants ultimately indicted), there was proof that an inspection of the plant by Warner-Lambert's insurance carrier in February, 1976 had resulted in advice to the insured that the dust condition in the Freshen-Up gum production area presented an explosion hazard and that the MS concentration was above the LEL, together with recommendations for installation of a dust exhaust system and modification of electrical equipment to meet standards for dust areas. Although a variety of proposals for altering the dust condition were considered by the individual defendants in consultations and communications with each other and some alterations in the MS application were made, both ambient and settled MS dust were still present on November 21, 1976, as the result of an executive decision to work toward the eventual elimination of MS entirely by modification of the Freshen-Up equipment. This modification had been accomplished with respect to only one Uniplast machine at the date of the explosion, when approximately 500 pounds of MS a day were still being used in Freshen-Up production. Employees were wearing face masks and goggles to protect their eyes and breathing passages, and just prior to the tragedy, when sweeping and airhosing of accumulated MS were in progress, there was rising dust and a “heavy fog” or “mist” all around.

First, we look at the evidence as to the actual event or chain of events which triggered the explosion--evidence which may only be characterized as hypothetical and speculative. There was direct testimony by eyewitnesses, confirmed by reconstruction of the physical evidence that two explosions occurred. The first was a low-order detonation, occurring approximately two seconds before the major explosion, at the base of the “D” Uniplast machine, which was itself found to be in a substantially fragmented condition with gears, metal shafts, and other parts broken up and displaced; the second, occurring in rapid succession, was a major explosion accompanied by fire which caused the massive destruction and personal injuries. The prosecution hypothesizes that under what it describes as “the most plausible of theories” the initial detonation was attributable to mechanical sparking resulting from the breakup of the metal parts of the Uniplast machine, possibly occasioned by the machine's having become overheated or overloaded, by vibration, or by slipping of components. Testimony supporting this hypothesis included descriptions of the condition of the machine after the event, expert testimony that the physical evidence suggested mechanical failure prior to the first explosion and testimony of prior instances in which the machine had become overheated or metal parts had broken off. The District Attorney adds that “ignition produced by an electrical spark or arc emission from the non-explosion proof, over loaded Uniplast motor was not ruled out either.”

Another explanation for the initial explosion was offered by an expert called by the prosecution who hypothesized that liquid oxygen, produced through liquefaction as air condensed on the liquid nitrogen-cooled parts of the “D” machine, dripped onto settled MS dust at the base of the Uniplast, became trapped there and then, when subjected to the impact caused by a moving metal part, reacted violently, causing ignition of already dispersed MS.

Viewed most favorably to the People, the proof with respect to the actual cause of the explosion is speculative only, and as to at least one of the major hypotheses--that involving oxygen liquefaction--there was no evidence that that process was foreseeable or known to any of the defendants. In sum, there is no proof sufficient to support a finding that defendants foresaw or should have foreseen the physical cause of the explosion. This being so there was not legally sufficient evidence to establish the offenses charged or any lesser included offense.

It has been the position of the People that but-for causation is all that is required for the imposition of criminal liability. Thus, it is their submission, reduced to its simplest form, that there was evidence of a foreseeable and indeed foreseen risk of explosion of MS dust and that in consequence of defendants' failure to remove the dust a fatal explosion occurred. The chain of physical events by which the explosion was set off, i.e., its particular cause, is to them a matter of total indifference. On oral argument the People contended that liability could be imposed if the cause of the explosion were the lighting of a match by an uninvited intruder or the striking of a bolt of lightning. In effect they would hold defendants to the status of guarantors until the ambient dust was removed. It thus appears that the People would invoke an expanded application of proximate cause principles lifted from the civil law of torts.

We have rejected the application of any such sweeping theory of culpability under our criminal law, however. We recently considered concepts of criminal culpability grounded in recklessness or negligence in People v. Kibbe (35 N.Y.2d 407). In that case the defendants had abandoned their helplessly intoxicated robbery victim in subfreezing temperatures, without shoes or eyeglasses, by the side of an unlighted highway, and he was shortly thereafter struck and killed by a passing motorist. The critical issue in the case was whether the defendants should be held criminally liable for murder when the particular cause of death was vehicular impact rather than freezing. Under the theory now advanced by the People it would have been irrelevant that death had been the consequence of one particular chain of causation rather than another; it would have been enough that the defendants exposed their victim to the risk of death and that he died. That, of course, was not the analysis of culpability that we adopted. Recognizing that “[a] distance separates the negligence which renders one criminally liable from that which establishes civil liability” -- both as to quantum and content of proof--we held that “the defendants should not be found guilty unless their conduct 'was a cause of death sufficiently direct as to meet the requirements of the criminal, and not the tort, law.'” “We subscribe to the requirement that the defendants' actions must be a sufficiently direct cause of the ensuing death before there can be any imposition of criminal liability, and recognize, of course, that this standard is greater than that required to serve as a basis for tort liability.” Thus, we were concerned for the nature of the chain of particularized events which in fact led to the victim's death; it was not enough that death had occurred as the result of the defendants' abandonment of their helpless victim. To analogize the factual situation in the case now before us to that in Kibbe it might be hypothesized that the abandoned victim in Kibbe instead of being either frozen to death or killed when struck by a passing motor vehicle was killed when struck by an airplane making an emergency landing on the highway or when hit by a stray bullet from a hunter's rifle--occasions of death not reasonably to have been foreseen when the defendants abandoned their victim.

In view of our disposition of this appeal on the ground that, inasmuch as the evidence before the Grand Jury was not legally sufficient to establish the foreseeability of the actual immediate, triggering cause of the explosion, defendants cannot be held criminally culpable, we have no occasion to reach or consider whether the steps that they took with respect to the general risk of explosion were a gross deviation from the standard of care or conduct that a reasonable person would have observed in the situation.

For the reasons stated, we conclude that there was not legally sufficient evidence in this case on the premise of which any jury could permissibly have imposed criminal liability on any of these defendants.

Accordingly, the order of the Appellate Division should be reversed and the indictment dismissed.

While the facts of Warner-Lambert are complicated, the legal question presented is complex and the result, perhaps, surprising. Warner-Lambert had been warned by its insurer that its process resulted in large amounts of flamable, possibly explosive MS dust on the ground and in the air; that dust exploded killing six people. Ask yourself about the mens rea of those individuals charged with causing those deaths; the court spends little time on that question, but how would you describe it? Then turn to causation. What was missing, in the court's estimation, from the government's case on causation? Wasn't the explosion at the plant incredibly foreseeable (in fact foreseen) by both Warner-Lambert officials and their insurance carrier? Why was causation found lacking here when it was found to be present in Acosta? Is there any way to square these two results?

People v. Saavedra-Rodriguez
971 P.2d 223 (1998)
Supreme Court of Colorado

Justice MARTINEZ delivered the Opinion of the Court.

I.

On September 9, 1994 the defendant, Patricio Saavedra–Rodriguez, stabbed Pedro Avila in the chest. The victim was found by his roommates and brought to the hospital by ambulance. Upon arrival at North Colorado Medical Center, the victim was treated by an emergency room doctor, Dr. Claman; a surgeon, Dr. Wikholm; and several nurses. Despite treatment, the victim's condition deteriorated and he did not survive. According to the autopsy, the victim died of a stab wound that penetrated approximately four and one-half inches into the victim's chest cavity, punctured his lung, and cut a one-inch hole in his heart.

During treatment of the victim, Drs. Claman and Wikholm disagreed about the severity of the wound, the appropriate course of treatment, and whether to continue resuscitative measures. Dr. Claman subsequently filed an “incident report” with the hospital criticizing Dr. Wikholm's treatment. The hospital's internal peer review concluded that Dr. Wikholm failed to provide “aggressive trauma management.”

The defendant was charged with second-degree murder. Based upon the victim's medical records and interviews with hospital personnel, who were involved in the victim's care, the defendant sought to raise an intervening cause defense. The prosecution moved to prevent the defense based on its argument that, although Dr. Wikholm's care may have been substandard, it did not rise to the level of an intervening cause.

At the pretrial hearing on the prosecution's motion to prevent the defendant from presenting an intervening cause defense, the parties disputed the standard of proof required for an intervening cause defense. The prosecution argued that the defendant had the burden of proving within a reasonable degree of medical certainty that Dr. Wikholm's gross negligence caused the death. The defense argued that, in order to raise the defense, there need be only a scintilla of evidence to support an intervening cause theory.

The defense made an offer of proof as to the testimony of a number of medical practitioners. This testimony would have been that Dr. Wikholm made several errors in his diagnosis and treatment of the victim. Additional testimony would have been that Dr. Wikholm unnecessarily delayed treatment and that given proper timely treatment the patient may have had a better chance of survival. Finally, the defense would have offered testimony that the patient survivability rate after a heart wound is higher than 50% and in certain circumstances increases to 80% if afforded proper treatment.

Although the defendant offered to present testimony of doctors and nurses who were critical of Dr. Wikholm's care, he did not offer testimony that Dr. Wikholm's allegedly substandard care was the cause of the victim's death. In fact, all of the doctors would have testified that the cause of the victim's death was the stab wound inflicted by the defendant.

In a written order issued on October 19, 1995, the trial court disallowed the defendant's intervening cause defense. The court found that, according to People v. Calvaresi, 188 Colo. 277, 283 (1975), a defendant is entitled to an intervening cause instruction only if the improper medical care is a cause “but for which death would not have occurred.” According to the trial court's reasoning, the victim would have died from the stab wound had no care been rendered. Therefore, “no acts or omissions by [Dr. Wikholm] changed the course of natural effects that flowed from the stabbing of the victim.” Furthermore, the trial court concluded that, despite evidence that given proper medical care the defendant would have had a better chance of survival, the treatment received by the victim did not contribute to his death, it merely failed to prevent it. Therefore, the physician's treatment did not constitute an intervening cause.

The defendant was found guilty of manslaughter as a lesser-included offense of second-degree murder, and the trial court entered a judgment of conviction. The court of appeals reversed the conviction and ordered a new trial. The court of appeals held that Calvaresi stands for the proposition that “once a physician undertakes a duty to treat a victim, grossly negligent delay in diagnosing and providing medical treatment can amount to an intervening cause of death if adequate timely medical treatment would have saved the victim's life.” The court of appeals found that the question of whether Dr. Wikholm's care amounted to gross negligence constituting an intervening cause should have gone to the jury.

We agree with the trial court. We hold that improper medical treatment does not relieve the defendant of liability for the death of the victim unless the treatment is grossly negligent and death probably would not have otherwise occurred. Therefore, we reverse the judgment of the court of appeals.

A conviction for criminal homicide requires proof beyond a reasonable doubt that death was a natural and probable consequence of the defendant's unlawful act. The prosecution therefore must prove that the defendant's conduct was the actual cause of death, in the sense that it began a chain of events the natural and probable consequence of which was the victim's death. However, under certain circumstances, the defendant may be relieved of liability for the death of the victim if there has been an independent intervening act. An independent intervening cause is an act of an independent person or entity that destroys the causal connection between the defendant's act and the victim's injury and, thereby becomes the cause of the victim's injury.

In Calvaresi, we adopted Wharton's rule on intervening cause:

To warrant a conviction for homicide, the death must be the natural and probable consequence of the unlawful act, and not the result of an independent intervening cause in which the accused does not participate, and which he could not foresee. If it appears that the act of the accused was not the proximate cause of the death for which he is being prosecuted, but that another cause intervened, with which he was in no way connected, and but for which death would not have occurred, such supervening cause is a defense to the charge of homicide.

We explained that an intervening cause is a defense to the charge of homicide if it is unforeseeable, and a cause without which death would not have occurred. We discuss these components in turn.

For an independent intervening cause to relieve a defendant of liability it must not be reasonably foreseeable. Simple negligent medical treatment, although hopefully unusual, is sufficiently ordinary that we consider it foreseeable. “[N]egligence, unfortunately, is entirely too frequent a human conduct to be considered ‘abnormal’” For this reason, we have previously stated that mere negligence on the part of an attending physician does not constitute a defense. Therefore, one who has inflicted a wound or injury upon another is criminally responsible for the victim's death even where different or more skillful medical treatment might have saved the victim's life, or where death was immediately caused by a surgical operation rendered necessary by the wound or injury. 

In Calvaresi, we recognized that unlike simple negligence, gross negligence is sufficiently extraordinary to be classified as unforeseeable. Where medical treatment is so deficient as to constitute gross negligence or intentional malpractice, such medical treatment is abnormal and not reasonably foreseeable. 

We have established that gross negligence is unforeseeable. However, in order for the gross negligence to discharge the defendant of liability for homicide, the maltreatment must also be the cause but for which death would not have occurred. Grossly negligent medical treatment is the cause but for which death would not have occurred when it disrupts the natural and probable sequence of events following the defendant's act and intervenes to cause the victim's death.

We are concerned that this component, the cause but for which death would not have occurred, could be misunderstood as merely requiring an event in a sequence of events which produced death. Indeed, this appears to be the misunderstanding of the court of appeals, which stated that grossly negligent delay in diagnosing and treating could amount to an intervening cause if proper treatment would have saved the victim's life. Rather, in order for grossly negligent medical treatment to relieve the defendant of liability, it must interrupt the natural and probable sequence of events to cause death. This interruption only occurs when death would not have been the probable and natural result without the grossly negligent medical treatment.

To determine whether grossly negligent medical treatment was the cause of death, we look to the initial trauma to the victim as well as to the nature of the improper treatment. We consider the defendant's act, the nature of the wound inflicted by the defendant, the location of the wound on the victim, the natural and probable result of the injury, and the actual result of the medical treatment. The inquiry should focus on whether the wound inflicted by the defendant is the type of wound that would generally endanger or destroy life and from which the victim would likely die if little or no treatment is provided. Accordingly, a defendant is not relieved of liability, even in the face of grossly negligent medical treatment, if the original wound would likely have been fatal without the treatment. Conversely, if the wound inflicted upon the victim would probably not have been fatal, but the victim dies as a result of the physician's grossly negligent treatment, the physician's gross negligence is an intervening act that relieves the defendant of criminal liability for the death. See Noble v. State, 54 Tex.Crim. 436 (Tex.Crim.App.1908) (one inflicting a wound upon another which is not fatal is not guilty of any degree of culpable homicide, even if the victim dies, if the death is a result of physician gross mistreatment).

We find it persuasive that other courts have also drawn distinctions based upon the seriousness of the original wound. By drawing this distinction, we hold a defendant criminally liable for death that results from the original injury but relieve a defendant of criminal liability for death that results from grossly negligent medical treatment.
Our holding, that grossly negligent medical treatment is not an intervening cause of death unless the initial wound would not have been fatal without treatment, is consistent with our analysis in Calvaresi. Calvaresi shot an intruder in the shoulder. The victim was taken to the hospital where he was examined and treated. In the course of being transferred to another hospital, he died. The treating doctor and another physician testified that the cause of death was the bullet wound, which severed a major artery. Two other doctors testified that the sole cause of death was substandard medical care. 

Although the sole cause testimony offered in Calvaresi was more than adequate evidence that death may not have resulted absent the grossly negligent medical treatment, we made it clear that the defendant need not provide evidence that the intervening act rise to the level of the sole cause of death.

We specifically directed that the jury be informed of Wharton's rule. We emphasized that gross negligence, which is not foreseeable, is a defense if death would not have resulted but for that gross negligence. 

In sum, in order to discharge a defendant of liability for homicide, an intervening act must be an unforeseeable act but for which the victim would not have died. Grossly negligent medical treatment is not foreseeable. Thus, if the treatment is grossly negligent and the wound inflicted by the defendant would not have been likely to cause death absent the medical treatment, the medical treatment constitutes an independent intervening act relieving the defendant of liability for the victim's death.

In discussing the relationship between proximate cause in torts and criminal law, professor LaFave wrote this:  

In tort law, it would seem, one might logically require one who actually injured another (especially if he intended to cause an injury to another, but also even if he only negligently caused such an injury), to pay for the damage actually caused without regard to the likelihood or unlikelihood of the particular result achieved, on the theory that of the two of them he, rather than the innocent victim, should bear the cost. (The trend in tort law has, in fact, been in the direction of expanding liability, though courts still talk in terms of legal or proximate cause).

But with crimes, where the consequences of a determination of guilt are more drastic (death or imprisonment, generally accompanied by moral condemnation, as contrasted with a mere money payment) it is arguable that a closer relationship between the result achieved and that intended or hazarded should be required.

Substantive Criminal Law § 3.12 (1985). Do you agree that the standard for causation should be higher in criminal law than in torts? Consider this hypothetical based on State v. Bauer, 180 Wash.2d 929 (2014):

A father very carelessly fails to secure loaded guns within his home. A minor child, bullied at school, brings one of those guns to class to frighten the bullies. After school the gun goes off while the child is rooting around in her backback, causing severe injury to another student.

The father was charged with assault in the third degree, alleging that he, “[w]ith criminal negligence, cause[d] bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm.”

The Washington Supreme Court in Bauer, citing LaFave, held that though causation might be satisfied for a tort action, the harm to the unfortunate student was too tangentially related to the defendant's conduct to justly hold him criminally responsible for it. Do you agree? The negligent handling of a gun in a house with children could quite foreseeably have led to the death of the defendant's child or a guest in the home. Does it matter that it happened at school instead? Is this result consistent or insconsistent with the result in Warner-Lambert?

MPC § 2.03.

Causal Relationship Between Conduct and Result; Divergence Between Result Designed or Contemplated and Actual Result or Between Probable and Actual Result.

(1) Conduct is the cause of a result when:

(a) it is an antecedent but for which the result in question would not have occurred; and

(b) the relationship between the conduct and result satisfies any additional causal requirements imposed by the Code or by the law defining the offense.

(2) When purposely or knowingly causing a particular result is an element of an offense, the element is not established if the actual result is not within the purpose or the contemplation of the actor unless:

(a) the actual result differs from that designed or contemplated, as the case may be, only in the respect that a different person or different property is injured or affected or that the injury or harm designed or contemplated would have been more serious or more extensive than that caused; or

(b) the actual result involves the same kind of injury or harm as that designed or contemplated and is not too remote or accidental in its occurrence to have a [just] bearing on the actor's liability or on the gravity of his offense.

(3) When recklessly or negligently causing a particular result is an element of an offense, the element is not established if the actual result is not within the risk of which the actor is aware or, in the case of negligence, of which he should be aware unless:

(a) the actual result differs from the probable result only in the respect that a different person or different property is injured or affected or that the probable injury or harm would have been more serious or more extensive than that caused; or

(b) the actual result involves the same kind of injury or harm as the probable result and is not too remote or accidental in its occurrence to have a [just] bearing on the actor's liability or on the gravity of his offense.

People v. Campbell

Court of Appeals of Michigan

335 N.W.2d 27 (Mich. App. 1983)

On October 4, 1980, Kevin Patrick Basnaw committed suicide. On the night in question, Steven Paul Campbell went to the home of the deceased. They were drinking quite heavily.

The testimony indicates that late in the evening the deceased began talking about committing suicide. He had never talked about suicide before.

About two weeks before, the defendant, Steven Paul Campbell, caught the deceased in bed with defendant's wife, Jill Campbell. Some time during the talk of suicide, Kevin said he did not have a gun. At first the defendant, Steven Paul Campbell, indicated Kevin couldn't borrow or buy one of his guns. Then he changed his mind and told him he would sell him a gun, for whatever amount of money he had in his possession. Then the deceased, Kevin Basnaw, indicated he did not want to buy a gun, but Steve Campbell continued to encourage Kevin to purchase a gun, and alternately ridiculed him.

The defendant and the deceased then drove to the defendant's parent's home to get the weapon, leaving Kimberly Cleland, the deceased's girlfriend, alone. Even though she knew of the plan, she did not call anyone during this period of time. She indicated she thought the defendant was saying this to get a ride home.

The defendant and the deceased returned in about fifteen minutes with the gun and five shells. The deceased told his girlfriend to leave with the defendant because he was going to kill himself. He put the shells and the gun on the kitchen table and started to write a suicide note.

The defendant and the deceased's girlfriend left about 3 to 3:30 a.m. When they left, the shells were still on the table.

Next morning, one Billy Sherman arrived at about 11:30 a.m. and he and the deceased's roommate found the deceased slumped at the kitchen table with the gun in his hand. Dr. Kopp, the county Pathologist, listed the cause of death as suicide; self-inflicted wound to the temple. No autopsy was performed. No time of death was established.

The prosecutor argues that inciting to suicide, coupled with the overt act of furnishing a gun to an intoxicated person, in a state of depression, falls within the prohibition, “or other wilful, deliberate and premeditated killing”.

There exists no statutory definition of the term “murder.” That crime is defined in the common law.

“Homicide is the killing of one human being by another." The term suicide excludes by definition a homicide. Simply put, the defendant here did not kill another person.

Defendant had no present intention to kill. He provided the weapon and departed. Defendant hoped Basnaw would kill himself but hope alone is not the degree of intention requisite to a charge of murder.

[I]t is not clear that incitement to suicide was ever considered murder at the common law. Certainly, attempted suicide was not held to be attempted murder.

While we find the conduct of the defendant morally reprehensible, we do not find it to be criminal under the present state of the law.

The remedy for this situation is in the Legislature. We invite them to adopt legislation on the subject as set forth in the Michigan Proposed Criminal Code.

The trial court is reversed and the case is remanded with instructions to quash the information and warrant and discharge the defendant.

Stephenson v. State

Supreme Court of Indiana

179 N.E. 633 (Ind. 1932)

The Grand Jurors for the County of Marion and State of Indiana upon their oaths, present that David C. Stephenson, Earl Gentry and Earl Klinck, on or about the 16th day of April, A. D. 1925, at and in the County of Marion and State aforesaid, did then and there unlawfully, feloniously and with premeditated malice kill and murder Madge Oberholtzer in the manner and form and by the means following, towit: That said David C. Stephenson, Earl Gentry and Earl Klinck did then and there on the 16th day of March, 1925, wrongfully, unlawfully and feloniously by force of arms and by duress and by putting her the said Madge Oberholtzer in fear and against her will take possession of the body and person of her, the said Madge Oberholtzer, and did then and there wrongfully, unlawfully and feloniously by force of arms and by duress and by putting her, the said Madge Oberholtzer in fear and against her will place her in a drawing room of a certain pullman passenger car which was then and there a part of a railroad train, which train was then and there scheduled to and did shortly thereafter depart from the city of Indianapolis for a regular trip to the City of Chicago; and said defendants did then and there wrongfully, unlawfully and feloniously, by force of arms and by duress and by putting her, the said Madge Oberholtzer in fear and against her will restrain her of her liberty in the drawing room of said car on said train during the progress of said train to the city of Chicago until the city of Hammond, in the State of Indiana, was reached; and said defendants did unlawfully and feloniously while so holding possession of the body and person of said Madge Oberholtzer, as aforesaid, and so restraining her of her liberty in the drawing room of said car as aforesaid, upon the body and person of her, the said Madge Oberholtzer, commit an assault, and did her, the said Madge Oberholtzer, unlawfully and feloniously in a rude and insolent manner her the said Madge Oberholtzer strike, beat, bite and grievously wound with the unlawful and felonious intent her, the said Madge Oberholtzer, to ravish and carnally know forcibly and against her will; and said defendants when said train arrived at the City of Hammond at about 6 o'clock in the morning of the 17th day of March, 1925, still unlawfully and feloniously, while so holding possession of her the said Madge Oberholtzer and so restraining her of her liberty as aforesaid did cause her to depart from said car of said train and to enter the room of a hotel in said city of Hammond and to occupy a bed with said defendant Stephenson; that thereafter on the said 17th day of March, 1925, in said city of Hammond, the said Madge Oberholtzer, distracted with the pain and shame so inflicted upon her by said defendants as aforesaid, did procure and swallow into her stomach a large quantity of deadly poison, towit: Bichloride of mercury; that said defendants on said day with full knowledge that she the said Madge Oberholtzer had taken said poison as aforesaid and although requested by her so to do did unlawfully, feloniously and wilfully wholly fail and refuse to procure for or furnish to her the said Madge Oberholtzer any antidote for said poison or any attention or help from any physician or any one skilled in counteracting the effects of said poison although they and each of them were then and there fully able to procure such antidote and the help of such physician; that said defendants did, on the afternoon and night of said March 17th, still unlawfully and feloniously by force of arms and by duress and by putting her the said Madge Oberholtzer in fear holding possession of the body and person of her the said Madge Oberholtzer and restraining her of her liberty, place her in an automobile and by said vehicle did transport her back to the city of Indianapolis and did during said night and until near noon of the 18th day of March so hold possession of her body and person and restrain her of her liberty as aforesaid in a room in a garage of said defendant Stephenson, and did at all times during said return and at all times during the imprisonment of her the said Madge Oberholtzer in said garage unlawfully and feloniously wholly fail and refuse to furnish or provide for or administer to her any antidote for said poison and did unlawfully and feloniously wholly fail and refuse to procure for her or furnish to her any attention by or help from any physician or any one skilled in counteracting the effects of said poison although they said defendants and each of them were then and there fully able to procure such antidote and help from such physician; that thereafter she the said Madge Oberholtzer did at and in the County of Marion aforesaid languish and languishing did thereafter on April 14, 1925, in said County die from the effect of her wounds inflicted as aforesaid and said poison taken as aforesaid.

Appellant very earnestly argues that the evidence does not show appellant guilty of murder. He points out in his brief that, after they reached the hotel, Madge Oberholtzer left the hotel and purchased a hat and the poison, and voluntarily returned to his room, and at the time she took the poison she was in an adjoining room to him, and that she swallowed the poison without his knowledge, and at a time when he was not present. From these facts, he contends that she took her life by committing suicide; that her own act in taking the poison was an intervening responsible agent which broke the causal connection between his acts and the death; that his acts were not the proximate cause of her death, but the taking of the poison was the proximate cause of death.

In the case of State v. Preslar 48 N.C. 421 (1856), the defendant in the nighttime fought with his wife, and she left to go to the home of her father. When she reached a point about two hundred yards from her father's home, she, for some reason, did not want to go in the house till morning, laid down on a bed cover, which she had wrapped around her, till daylight. The weather was cold and the next morning she could not walk, but made herself known. She afterwards died. The court held that the wife without necessity exposed herself, and the defendant was not guilty. In Rex v. Valade (Que.) 22 Rev. de Jur. 524, 26 Can. Cr. Cas. 233, where the accused induced a young girl under the age of consent to go along with him to a secluded apartment, and there had criminal sexual intercourse with her, following which she jumped from a window to the street to get away from him, and was killed by the fall. The accused was held guilty of murder. Bishop in his work on Criminal Law, vol. 2, (9th Ed.) page 484, says: “When suicide follows a wound inflicted by the defendant his act is homicidal, if deceased was rendered irresponsible by the wound and as a natural result of it.” We do not understand that by the rule laid down by Bishop, supra, that the wound which renders the deceased mentally irresponsible is necessarily limited to a physical wound. We should think the same rule would apply if a defendant engaged in the commission of a felony such as rape or attempted rape, and inflicts upon his victim both physical and mental injuries, the natural and probable result of which would render the deceased mentally irresponsible and suicide followed, we think he would be guilty of murder.

We think the evidence shows that the deceased was at all times from the time she was entrapped by the appellant at his home on the evening of March 15th till she returned to her home two days later, in the custody and absolute control of appellant. Neither do we think the fact that the deceased took the poison some four hours after they left the drawing–room on the train or after the crime of attempted rape had been committed necessarily prevents it from being a part of the attempted rape. Suppose they had not left the drawing–room on the train, and, instead of the deceased taking poison, she had secured possession of appellant's revolver and shot herself or thrown herself out of the window of the car and died from the fall. We can see no vital difference. At the very moment Madge Oberholtzer swallowed the poison she was subject to the passion, desire, and will of appellant. She knew not what moment she would be subjected to the same demands that she was while in the drawing–room on the train. What would have prevented appellant from compelling her to submit to him at any moment? The same forces, the same impulses, that would impel her to shoot herself during the actual attack or throw herself out of the car window after the attack had ceased, was pressing and overwhelming her at the time she swallowed the poison. The evidence shows that she was so weak that she staggered as she left the elevator to go to the room in the hotel, and was assisted by appellant and Gentry. That she was very ill, so much so that she could not eat, all of which was the direct and proximate result of the treatment accorded her by appellant. To say that there is no causal connection between the acts of appellant and the death of Madge Oberholtzer, and that the treatment accorded her by appellant had no causal connection with the death of Madge Oberholtzer would be a travesty on justice. We therefore conclude that the evidence was sufficient and justified the jury in finding that appellant by his acts and conduct rendered the deceased distracted and mentally irresponsible, and that such was the natural and probable consequence of such unlawful and criminal treatment, and that the appellant was guilty of murder in the second degree as charged in the first count of the indictment.

Campbell and Stephenson are both classic cases of subsequent human action. In Campbell, the death of Basnaw was the entirely foreseeable, in fact the goal, of Campbell's actions. He wanted his friend dead. He created the means for his friend to die and the result could not possibly have surprised him. If all we were looking at was mens rea and but for and proximate cause, this would look like a simple case of premeditated murder. But that is not how the Court saw the matter. Notwithstanding the fact that Campbell got just the outcome he wanted, the Court saw the decision of Basnaw to end his own life as the sole cause of Basnaw's death.

Is that result consistent with the result in Stephenson? Stephenson, for all of his monstrous conduct, did not intentionally cause Ms. Oberholzer's death. Why, then, did the Court not see her decision to end her own life as the cause of that death? If it is because he was responsible for her suicidal state, how much would we need to change the facts of Campbell to make that true of Basnaw's death as well.

How much do we think gender plays a role in these two outcomes? Is the Indiana Court less willing to grant Ms. Oberholzer autonomy because of the tremendous abuse visited upon her by Stephenson?

Modern courts and legislatures have tried to solve these problems by making inducement to suicide either a separate offense or as a category of homicide. Look back at the Colorado homicide statute. How does it resolve the question? Is that a satisfying resolution?

State v. McFadden

Supreme Court of Iowa

320 N.W. 2d 608 (Ia. 1982)

ALLBEE, Justice.

This case stems from a drag race between defendant Michael Dwayne McFadden and another driver, Matthew Sulgrove, which occurred on a Des Moines city street in April 1980. During the course of the two vehicles' southbound progression, Sulgrove lost control of his automobile and swerved into a lane of oncoming traffic, where he struck a lawfully operated northbound vehicle. This third vehicle contained a six-year-old passenger, Faith Ellis, who was killed in the collision along with Sulgrove. Defendant's automobile did not physically contact either of the two colliding vehicles. Further details concerning the race and the accident will be related as necessary for treatment of the issues raised by defendant.

Defendant was charged with two counts of involuntary manslaughter, a violation of section 707.5(1), The Code 1979. Having waived a jury, defendant was tried to the court and convicted and sentenced on both counts.

[The t]rial court found that defendant was guilty of involuntary manslaughter under each of three separate theories: (1) that defendant aided and abetted Sulgrove in Sulgrove's commission of involuntary manslaughter, see § 703.1, The Code 1979 (defining aiding and abetting); (2) that defendant was vicariously responsible for Sulgrove's commission of involuntary manslaughter by reason of their joint participation in the public offense of drag racing, see § 703.2, The Code 1979 (defining joint criminal conduct); and (3) that defendant himself committed the crime of involuntary manslaughter by recklessly engaging in a drag race so as to proximately cause the Sulgrove-Ellis collision.

We note that aiding and abetting and joint criminal conduct are theories of vicarious liability, based on Sulgrove's commission of involuntary manslaughter. Although a vicarious liability theory may be sufficient to convict defendant for the death of Faith Ellis, the same is not true with regard to the death of Sulgrove. This is because the involuntary manslaughter statute requires proof that the perpetrator caused the death of “another person.” See § 707.5(1). Obviously, Sulgrove could not have committed involuntary manslaughter with respect to his own death. Therefore, a theory under which defendant is only vicariously liable for Sulgrove's crime would be inadequate to convict defendant for Sulgrove's death.

We turn, then, to consideration of the third theory of liability, i.e., that defendant's reckless commission of the public offense of drag racing was a proximate cause of the Sulgrove and Ellis deaths.

Preliminarily, we note that the fact that defendant's automobile did not physically contact either of the other two vehicles does not, standing alone, preclude his conviction. This rule was established in Iowa in another drag-racing case, State v. Youngblut, 132 N.W.2d 486 (1965), where a defendant was held to have been properly charged with involuntary manslaughter under similar facts. Having taken initial note of Youngblut, we proceed to address defendant's legal arguments concerning causation.

[D]efendant contends trial court erred in applying the civil standard of proximate cause in a criminal prosecution, rather than adopting the more stringent standard of “direct causal connection” used by the Pennsylvania court in Commonwealth v. Root, 403 Pa. 571, 580 (1961). In Root, the court held that “the tort liability concept of proximate cause has no proper place in prosecutions for criminal homicide and more direct causal connection is required for conviction.”

We had occasion to consider a similar standard-of-causation issue in State v. Marti, 290 N.W.2d 570, 584-85 (Iowa 1980), which upheld the involuntary manslaughter conviction of a man who provided an obviously intoxicated, suicidal woman with the means to shoot herself by loading a gun for her and placing it within her reach. As here, the defendant in Marti argued that the trial court “inappropriately adopted the standards of proximate cause applied in civil cases.” Unlike the Pennsylvania court in Root, however, we said in Marti that we were “unwilling to hold as a blanket rule of law that instructions used in civil trials regarding proximate cause are inappropriate for criminal trials.” Id. We explained:

One reason for this is the similar functions that the requirement of proximate cause plays in both sorts of trials. The element of proximate cause in criminal prosecutions serves as a requirement that there be a sufficient causal relationship between the defendant's conduct and a proscribed harm to hold him criminally responsible. Similarly, in the law of torts it is the element that requires there to be a sufficient causal relationship between the defendant's conduct and the plaintiff's damage to hold the defendant civilly liable.

We did note in Marti, however, that legal causation (as opposed to factual causation) is “essentially a question of whether the policy of the law will extend the responsibility for the conduct to the consequences which have in fact occurred.” Id. at 585 (quoting W. Prosser, Handbook of the Law of Torts § 42, at 244 (4th ed. (1971)). Further, we recognized “that different policy considerations may come into play in criminal prosecutions than in civil trials,” and that an “argument could be made that these differences should be reflected in the proximate cause instructions used in the different kinds of trials.”

Finally, defendant has suggested no specific policy differences, nor can we think of any, that would justify a different standard of proximate causation under our involuntary manslaughter statute than under our tort law. The Root court opined that “[l]egal theory which makes guilt or innocence of criminal homicide depend upon such accidental and fortuitous circumstances as are now embraced by modern tort law's encompassing concept of proximate cause is too harsh to be just.” 403 Pa. at 576, 170 A.2d at 312. We do not agree. Proximate cause is based on the concept of foreseeability. We believe the foreseeability requirement, coupled with the requirement of recklessness, will prevent the possibility of harsh or unjust results in involuntary manslaughter cases. We disagree with the Root court's apparent opinion that drag racing on a public street is “not generally considered to present the likelihood of a resultant death.”

Accordingly, we hold that trial court did not err in applying ordinary proximate cause principles to determine whether the causation element of section 707.5(1) had been met, and in declining to adopt the more stringent “direct causal connection” standard of Root.

Commonwealth v. Atencio

Supreme Judicial Court of Massachusetts

189 N.E.2d 223 (Mass. 1963)

On Sunday, October 22, 1961, [Stewart E. Britch], his brother Ronald, and the defendants spent the day drinking wine in the deceased's room in a rooming house in Boston. At some time in the afternoon, with reference to nothing specific so far as the record discloses, Marshall said, ‘I will settle this,’ went out, and in a few minutes returned clicking a gun, from which he removed one bullet. Early in the evening Ronald left, and the conversation turned to ‘Russian roulette.’

The ‘game’ was played. The deceased and Atencio were seated on a bed, and Marshall was seated on a couch. First, Marshall examined the gun, saw that it contained one cartridge, and, after spinning it on his arm, pointed it at his head, and pulled the trigger. Nothing happened. He handed the gun to Atencio, who repeated the process, again without result. Atencio passed the gun to the deceased, who spun it, put to his head, and pulled the trigger. The cartridge exploded, and he fell over dead.

There is no controversy as to definition. Involuntary manslaughter may be predicated upon wanton or reckless conduct. ‘The essence of wanton or reckless conduct is intentional conduct, by way either of commission or of omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another.’ Commonwealth v. Welansky, 316 Mass. 383, 399.

We are of opinion that the defendants could properly have been found guilty of manslaughter. This is not a civil action against the defendants by the personal representative of Stewart Britch. In such a case his voluntary act, we assume, would be a bar. Here the Commonwealth had an interest that the deceased should not be killed by the wanton or reckless conduct of himself and others. Such conduct could be found in the concerted action and coöperation of the defendants in helping to bring about the deceased's foolish act. The jury did not have to believe testimony that the defendants at the last moment tried to dissuade the deceased from doing that which they had just done themselves.

The defendants argue as if it should have been ruled, as matter of law, that there were three ‘games' of solitaire and not one ‘game’ of ‘Russian roulette.’ That the defendants participated could be found to be a cause and not a mere condition of Stewart Britch's death. It is not correct to say that his act could not be found to have been caused by anything which Marshall and Atencio did, not that he would have died when the gun went off in his hand no matter whether they had done the same. The testimony does not require a ruling that when the deceased took the gun from Atencio it was an independent or intervening act not standing in any relation to the defendants' acts which would render what he did imputable to them. It is an oversimplification to contend that each participated in something that only one could do at a time. There could be found to be a mutual encouragement in a joint enterprise. In the abstract, there may have been no duty on the defendants to prevent the deceased from playing. But there was a duty on their part not to cooperate or join with him in the ‘game.’ Nor, if the facts presented such a case, would we have to agree that if the deceased, and not the defendants, had played first that they could not have been found guilty of manslaughter. The defendants were much more than merely present at a crime. It would not be necessary that the defendants force the deceased to play or suggest that he play.

We are referred in both briefs to cases of manslaughter arising out of automobiles racing upon the public highway. When the victim is a third person, there is no difficulty in holding the drivers, including the one whose car did not strike the victim or in whose car a victim was not a passenger.

In two cases the driver of a noncolliding car has been prosecuted for the death of his competitor, and in both cases an appellate court has ruled that he was not guilty of manslaughter. In Commonwealth v. Root, 403 Pa. 571, the competitor drove on the wrong side of the road head-on into an oncoming truck and was killed. The court that ‘the tort liability concept of proximate cause has no proper place in prosecutions for criminal homicide and more direct causal connection is required for conviction. * * * In the instant case, the defendant's reckless conduct was not a sufficiently direct cause of the competing driver's death to make hime criminally liable therefor.’ In Thacker v. State, 103 Ga.App. 36, 117 S.E.2d 913, the defendant was indicted for the involuntary manslaughter of his competitor in a drag race who was killed when he lost control of his car and left the highway. The court said that the indictment ‘fails to allege any act or acts on the part of the defendant which caused or contributed to the loss of control of the vehicle driven by the deceased, other than the fact that they were engaged in a race at the time.’

Whatever may be thought of those two decisions, there is a very real distinction between drag racing and ‘Russian roulette.’ In the former much is left to the skill, or lack of it, of the competitor. In ‘Russian roulette’ it is a matter of luck as to the location of the one bullet, and except for a misfire (of which there was evidence in the case at bar) the outcome is a certainty if the chamber under the hammer happens to be the one containing the bullet.

The judgments on the indictments for manslaughter are affirmed. The judgments on the indictments for carrying a revolver on the person are reversed, and the verdicts on those indictments are set aside.

Both of these cases raise similar questions. In both, the deceased and the defendant were engaged in extremely dangerous games together -- drag racing and Russian roulette. Both courts seem to assume, quite rightly, that both the deceased and the defendant were at least reckless in playing these games together. (Query, though, whether they were reckless with regard to their own lives or the lives of others.) And in both cases, the death of the deceased was quite foreseeable. The question for each court, therefore, is whether the deceased's own reckless participation in the endeavor absolves the defendant of criminal responsibility.

Both courts assume that in tort, the deceased own recklessness would prevent recovery by the deceased's families. Let's assume that's right. Should the same causation rule apply in a criminal case? We saw this question at least once before. Does the calculus change when the victim contributed to her own death? As the court in McFadden noted, there is no problem convicting the defendant of the death of the innocent third party (we'll get to why when we discuss accomplice and co-conspirator liability later in the semester). But should the death of a reckless victim in a case like McFadden or Atencio go entirely unpunished?

People v. Rizzo

New York Court of Appeals

158 N.E. 888 (N.Y. 1927)

CRANE, J.

The police of the city of New York did excellent work in this case by preventing the commission of a serious crime. It is a great satisfaction to realize that we have such wide­-awake guardians of our peace. Whether or not the steps which the defendant had taken up to the time of his arrest amounted to the commission of at crime, as defined by our law, is, however, another matter. He has been convicted of an attempt to commit the crime of robbery in the first degree and sentenced to State’s prison. There is no doubt that he had the intention to commit robbery if he got the chance. An examination, however, of the facts is necessary to determine whether his acts were in preparation to commit the crime if the opportunity offered, or constituted a crime in itself, known to our law as an attempt to commit robbery in the first degree. Charles Rizzo, the defendant, appellant, with three others, Anthony Dorio, Thomas Milo and John Thomasello, on January 14th planned to rob one Charles Rao of a payroll valued at about $31,200 which he was to carry from the bank for the United Lathing Company. These defendants, two of whom had firearms, started out in an automobile, looking for Rao or the man who had the payroll on that day. Rizzo claimed to be able to identify the man and was to point him out to the others who were to do the actual holding up. The four rode about in their car looking for Rao. They went to the bank from which he was supposed to get the money and to various buildings being constructed by the United Lathing Company. At last they came to One Hundred and Eightieth street and Morris Park avenue. By this time they were watched and followed by two police officers. As Rizzo jumped out of the car and ran into the building all- four were arrested. The defendant was taken out from the building in which he was hiding. Neither Rao nor a man named Previti, who was also supposed to carry a payroll, were at the place at the time of the arrest. The defendants had not found or seen the man they intended to rob; no person with a payroll was at any of the places where they had stopped no one had been pointed out or identified by Rizzo. The four men intended to rob the payroll man, whoever he was; they were looking for him, but they had not seen or discovered him up to the time they were arrested.

Does this constitute the crime of an attempt to commit robbery in the first degree? The Penal Law, section 2, prescribes: An act, done with intent to commit a crime, and tending but failing to effect its commission, is "an attempt to commit that crime". The word tending is very indefinite. It is perfectly evident that there will arise differences of opinion as to whether an act in a given case is one tending. to commit a crime. Tending means to exert activity in a particular direction. Any act in preparation to commit a crime may be said to have a tendency towards its accomplishment. The procuring of the automobile, searching the streets looking for the desired victim, were in reality acts tending toward the commission of the proposed crime. The law, however, has recognized that many acts in the way of preparation are too remote to constitute the crime of attempt. The line has been drawn between those acts which are remote and those which are proximate and near to the consummation. The law must be practical, and, therefore, considers those acts only as tending to the commission of the crime which are so near to its accomplishment that in all reasonable probability the crime itself would, have been committed but for timely interference. The cases which have been before the courts express this idea in different language, but the idea remains the same. The act or acts must come or advance very near to the accomplishment of the intended crime. In People v. Mills (178 N. Y. 274) it was said: “Felonious intent alone is not enough, but there must be an overt act shown in order to establish even an attempt. An overt act is one done to carry out the intention, and it must be such as would naturally effect that result, unless prevented by some extraneous cause.” In Hyde V. U. S. (225 U.S. 347) it was stated that the act amounts to an attempt when it is so near to the result that the danger, of success is very great. There must be dangerous proximity to success.”

The method of committing or attempting crime varies in each case so that the difficulty, if any, is not with this rule of law regarding an attempt, which is well understood, but with its application to the facts.

How shall we apply this rule of immediate nearness to this case? The defendants were looking for the payroll man to rob him of his money. This is the charge in the indictment. Robbery is defined in section 2120 of the Penal Law as the unlawful taking of personal property, from the person or in the presence of another, against his will, by means of force, or violence, or fear of injury, immediate or future, to his person; and it is made robbery in the first degree by section 2124 when committed by a person aided by accomplices actually present. To constitute the crime of robbery the money must have been taken from Rao by means of force or violence, or through fear. The crime of attempt to commit robbery was committed if these defendants did any act tending to the commission of this robbery. Did the acts above describe come dangerously near to the taking of Rao’s property? Did the acts come so near the commission of robbery that there was reasonable likelihood of its accomplishment but for the interference? Rao was not found the defendants were still looking for him; no attempt to rob him could be made, at least until he came in sight; he was not in the building at One Hundred and Eightieth street and Morris Park Avenue. There was no man there with the payroll for the United Lathing Company whom these defendants could rob. Apparently, no money had been drawn from the bank for the payroll by anybody at the time of the arrest. In a word, these defendants had planned to commit a crime and were looking around the city for an opportunity to commit it, but the opportunity fortunately never came. Men would not be guilty of an attempt at burglary if they had planned to break into a building and were arrested while they were hunting about the streets for the building not knowing where it was. Neither would a man be guilty of an attempt to commit murder if he armed himself and started out to find the person whom he had planned to kill but could not him. So here these defendants were not guilty of an attempt to commit robbery in the first degree when they had not found or reached the presence of the person they intended to rob.

For these reasons, the judgment of conviction of this defendant, appellant, must be reversed and a new trial granted.

Section 5.01. Criminal Attempt.

(1) Definition of Attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:

(a) purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be; or

(b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; or

(c) purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.

(2) Conduct That May Be Held Substantial Step Under Subsection (1)(c). Conduct shall not be held to constitute a substantial step under Subsection (1)(c) of this Section unless it is strongly corroborative of the actor's criminal purpose. Without negativing the sufficiency of other conduct, the following, if strongly corroborative of the actor's criminal purpose, shall not be held insufficient as a matter of law:

(a) lying in wait, searching for or following the contemplated victim of the crime;

(b) enticing or seeking to entice the contemplated victim ofthe crime to go to the place contemplated for its commission;

(c) reconnoitering the place contemplated for the commission of the crime;

(d) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed;

(e) possession of materials to be employed in the commission of the crime, that are specially designed for such unlawful use or that can serve no lawful purpose of the actor under the circumstances;

 (f) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, if such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances;

(g) soliciting an innocent agent to engage in conduct constituting an element of the crime.

(3) Conduct Designed to Aid Another in Commission of a Crime.

A person who engages in conduct designed to aid another to commit a crime that would establish his complicity under Section 2.06 if the crime were committed by such other person, is guilty of an attempt to commit the crime, although the crime is not committed or attempted by such other person.

(4) Renunciation of Criminal Purpose. When the actor's conduct would otherwise constitute an attempt under Subsection (1)(b) or (1)(c) of this Section, it is an affirmative defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. The establishment of such defense does not, however, affect the liability of an accomplice who did not join in such abandonment or prevention.

Within the meaning of this Article, renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor's course of conduct, that increase the probability of detection or apprehension or that make more difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim.

United States v. Jackson
560 F.2d 112 (2nd Cir. 1977)

[Jackson and his co-defendants were convicted of conspiracy to commit bank robbery, two counts of attempted bank robbery, and possession of sawed-off shotguns.]

Appellants' principal contention is that the court below erred in finding them guilty on counts two and three. While they concede that the evidence supported the conspiracy convictions on count one, they assert that, as a matter of law, their conduct never crossed the elusive line which separates “mere preparation” from “attempt.”

The Government's evidence at trial consisted largely of the testimony of Vanessa Hodges, an unindicted co-conspirator, and of various FBI agents who surveilled the Manufacturers Hanover branch on June 21, 1976. Since the facts are of critical importance in any attempt case, we shall review the Government's proof in considerable detail. 

On June 11, 1976, Vanessa Hodges was introduced to appellant Martin Allen by Pia Longhorne, another unindicted co-conspirator. Hodges wanted to meet someone who would help her carry out a plan to rob the Manufacturers Hanover branch located at 210 Flushing Avenue in Brooklyn, and she invited Allen to join her. Hodges proposed that the bank be robbed the next Monday, June 14th, at about 7:30 A. M. She hoped that they could enter with the bank manager at that time, grab the weekend deposits, and leave. Allen agreed to rob the bank with Hodges, and told her he had access to a car, two sawed-off shotguns, and a .38 caliber revolver.

The following Monday, June 14, Allen arrived at Longhorne's house about 7:30 A. M. in a car driven by appellant Robert Jackson. A suitcase in the back seat of the car contained a sawed-off shotgun, shells, materials intended as masks, and handcuffs to bind the bank manager. While Allen picked up Hodges at Longhorne's, Jackson filled the car with gas. The trio then left for the bank.

When they arrived, it was almost 8:00 A. M. It was thus too late to effect the first step of the plan, viz., entering the bank as the manager opened the door. They rode around for a while longer, and then went to a restaurant to get something to eat and discuss their next move. After eating, the trio drove back to the bank. Allen and Hodges left the car and walked over to the bank. They peered in and saw the bulky weekend deposits, but decided it was too risky to rob the bank without an extra man.

Consequently, Jackson, Hodges, and Allen drove to Coney Island in search of another accomplice. In front of a housing project on 33rd Street they found appellant William Scott, who promptly joined the team. Allen added to the arsenal another sawed-off shotgun obtained from one of the buildings in the project, and the group drove back to the bank.

When they arrived again, Allen entered the bank to check the location of any surveillance cameras, while Jackson placed a piece of cardboard with a false license number over the authentic license plate of the car. Allen reported back that a single surveillance camera was over the entrance door. After further discussion, Scott left the car and entered the bank. He came back and informed the group that the tellers were separating the weekend deposits and that a number of patrons were now in the bank. Hodges then suggested that they drop the plans for the robbery that day, and reschedule it for the following Monday, June 21. Accordingly, they left the vicinity of the bank and returned to Coney Island where, before splitting up, they purchased a pair of stockings for Hodges to wear over her head as a disguise and pairs of gloves for Hodges, Scott, and Allen to don before entering the bank.

Hodges was arrested on Friday, June 18, 1976 on an unrelated bank robbery charge, and immediately began cooperating with the Government. After relating the events on June 14, she told FBI agents that a robbery of the Manufacturers branch at 210 Flushing Avenue was now scheduled for the following Monday, June 21. The three black male robbers, according to Hodges, would be heavily armed with hand and shoulder weapons and expected to use a brown four-door sedan equipped with a cardboard license plate as the getaway car. She told the agents that Jackson, who would drive the car, was light-skinned with a moustache and a cut on his lip, and she described Allen as short, dark-skinned with facial hair, and Scott as 5' 9 , slim build, with an afro hair style and some sort of defect in his right eye.

At the request of the agents, Hodges called Allen on Saturday, June 19, and asked if he were still planning to do the job. He said that he was ready. On Sunday she called him again. This time Allen said that he was not going to rob the bank that Monday because he had learned that Hodges had been arrested and he feared that federal agents might be watching. Hodges nevertheless advised the agents that she thought the robbery might still take place as planned with the three men proceeding without her.

At about 7:00 A. M. on Monday, June 21, 1976, some ten FBI agents took various surveilling positions in the area of the bank. At about 7:39 A. M. the agents observed a brown four-door Lincoln, with a New York license plate on the front and a cardboard facsimile of a license plate on the rear, moving in an easterly direction on Flushing Avenue past the bank, which was located on the southeast corner of Flushing and Washington Avenues. The front seat of the Lincoln was occupied by a black male driver and a black male passenger with mutton-chop sideburns. The Lincoln circled the block and came to a stop at a fire hydrant situated at the side of the bank facing Washington Avenue, a short distance south of the corner of Flushing and Washington.

A third black male, who appeared to have an eye deformity, got out of the passenger side rear door of the Lincoln, walked to the corner of Flushing and Washington, and stood on the sidewalk in the vicinity of the bank's entrance. He then walked south on Washington Avenue, only to return a short time later with a container of coffee in his hand. He stood again on the corner of Washington and Flushing in front of the bank, drinking the coffee and looking around, before returning to the parked Lincoln.

The Lincoln pulled out, made a left turn onto Flushing, and proceeded in a westerly direction for one block to Waverly Avenue. It stopped, made a U-turn, and parked on the south side of Flushing between Waverly and Washington a spot on the same side of the street as the bank entrance but separated from it by Washington Avenue. After remaining parked in this position for approximately five minutes, it pulled out and cruised east on Flushing past the bank again. The Lincoln then made a right onto Grand Avenue, the third street east of the bank, and headed south. It stopped halfway down the block, midway between Flushing and Park Avenues, and remained there for several minutes. During this time Jackson was seen working in the front of the car, which had its hood up.

The Lincoln was next sighted several minutes later in the same position it had previously occupied on the south side of Flushing Avenue between Waverly and Washington. The front license plate was now missing. The vehicle remained parked there for close to thirty minutes. Finally, it began moving east on Flushing Avenue once more, in the direction of the bank.

At some point near the bank as they passed down Flushing Avenue, the appellants detected the presence of the surveillance agents. The Lincoln accelerated down Flushing Avenue and turned south on Grand Avenue again. It was overtaken by FBI agents who ordered the appellants out of the car and arrested them. The agents then observed a black and red plaid suitcase in the rear of the car. The zipper of the suitcase was partially open and exposed two loaded sawed-off shotguns,4 a toy nickel- plated revolver, a pair of handcuffs, and masks. A New York license plate was seen lying on the front floor of the car. All of these items were seized.

***

The draftsmen of the Model Penal Code recognized the difficulty of arriving at a general standard for distinguishing acts of preparation from acts constituting an attempt. They found general agreement that when an actor committed the “last proximate act,” i. e., when he had done all that he believed necessary to effect a particular result which is an element of the offense, he committed an attempt. They also concluded, however, that while the last proximate act is sufficient to constitute an attempt, it is not necessary to such a finding. The problem then was to devise a standard more inclusive than one requiring the last proximate act before attempt liability would attach, but less inclusive than one which would make every act done with the intent to commit a crime criminal. See Model Penal Code s 5.01, Comment at 38-39 (Tent. Draft No. 10, 1960).

The draftsmen considered and rejected the following approaches to distinguishing preparation from attempt:

(a) The physical proximity doctrine the overt act required for an attempt must be proximate to the completed crime, or directly tending toward the completion of the crime, or must amount to the commencement of the consummation.
(b) The dangerous proximity doctrine a test given impetus by Mr. Justice Holmes whereby the greater the gravity and probability of the offense, and the nearer the act to the crime, the stronger is the case for calling the act an attempt.
(c) The indispensable element test a variation of the proximity tests which emphasizes any indispensable aspect of the criminal endeavor over which the actor has not yet acquired control.
(d) The probable desistance test the conduct constitutes an attempt if, in the ordinary and natural course of events, without interruption from an outside source, it will result in the crime intended.
(e) The abnormal step approach an attempt is a step toward crime which goes beyond the point where the normal citizen would think better of his conduct and desist.
(f) The res ipsa loquitur or unequivocality test an attempt is committed when the actor's conduct manifests an intent to commit a crime.

The formulation upon which the draftsmen ultimately agreed required, in addition to criminal purpose, that an act be a substantial step in a course of conduct designed to accomplish a criminal result, and that it be strongly corroborative of criminal purpose in order for it to constitute such a substantial step. The following differences between this test and previous approaches to the preparation-attempt problem were noted:

First, this formulation shifts the emphasis from what remains to be done the chief concern of the proximity tests to what the actor has already done. The fact that further major steps must be taken before the crime can be completed does not preclude a finding that the steps already undertaken are substantial. It is expected, in the normal case, that this approach will broaden the scope of attempt liability.

Second, although it is intended that the requirement of a substantial step will result in the imposition of attempt liability only in those instances in which some firmness of criminal purpose is shown, no finding is required as to whether the actor would probably have desisted prior to completing the crime. Potentially the probable desistance test could reach very early steps toward crime depending upon how one assesses the probabilities of desistance but since in practice this test follows closely the proximity approaches, rejection of probable desistance will not narrow the scope of attempt liability.

Finally, the requirement of proving a substantial step generally will prove less of a hurdle for the prosecution than the res ipsa loquitur approach, which requires that the actor's conduct must itself manifest the criminal purpose. The difference will be illustrated in connection with the present section's requirement of corroboration. Here it should be noted that, in the present formulation, the two purposes to be served by the res ipsa loquitur test are, to a large extent, treated separately. Firmness of criminal purpose is intended to be shown by requiring a substantial step, while problems of proof are dealt with by the requirement of corroboration (although, under the reasoning previously expressed, the latter will also tend to establish firmness of purpose).

Model Penal Code §5.01, Comment at 47 (Tent. Draft No. 10, 1960).

The draftsmen concluded that, in addition to assuring firmness of criminal design, the requirement of a substantial step would preclude attempt liability, with its accompanying harsh penalties, for relatively remote preparatory acts. At the same time, however, by not requiring a “last proximate act” or one of its various analogues it would permit the apprehension of dangerous persons at an earlier stage than the other approaches without immunizing them from attempt liability. 

In the case at bar, Chief Judge Mishler found that on June 14 the appellants, already agreed upon a robbery plan, drove to the bank with loaded weapons. In order to carry the heavy weekend deposit sacks, they recruited another person. Cardboard was placed over the license, and the bank was entered and reconnoitered. Only then was the plan dropped for the moment and rescheduled for the following Monday. On that day, June 21, the defendants performed essentially the same acts. Since the cameras had already been located there was no need to enter the bank again, and since the appellants had arrived at the bank earlier, conditions were more favorable to their initial robbery plan than they had been on June 14. He concluded that on both occasions these men were seriously dedicated to the commission of a crime, had passed beyond the stage of preparation, and would have assaulted the bank had they not been dissuaded by certain external factors, the breaking up of the weekend deposits and crowd of patrons in the bank on June 14 and the detection of the FBI surveillance on June 21.

We cannot say that these conclusions which Chief Judge Mishler reached as the trier of fact as to what the evidence before him established were erroneous. [T]he the criminal intent of the appellants was beyond dispute. The question remaining then is the substantiality of the steps taken on the dates in question, and how strongly this corroborates the firmness of their obvious criminal intent. This is a matter of degree. 

On two separate occasions, appellants reconnoitered the place contemplated for the commission of the crime and possessed the paraphernalia to be employed in the commission of the crime loaded sawed-off shotguns, extra shells, a toy revolver, handcuffs, and masks which was specially designed for such unlawful use and which could serve no lawful purpose under the circumstances. Under the Model Penal Code formulation, either type of conduct, standing alone, was sufficient as a matter of law to constitute a “substantial step” if it strongly corroborated their criminal purpose. Here both types of conduct coincided on both June 14 and June 21, along with numerous other elements strongly corroborative of the firmness of appellants' criminal intent. The steps taken toward a successful bank robbery thus were not “insubstantial” as a matter of law, and Chief Judge Mishler found them “substantial” as a matter of fact. We are unwilling to substitute our assessment of the evidence for his, and thus affirm the convictions for attempted bank robbery on counts two and three.9

The judgments of conviction are affirmed.

Both Rizzo and Jackson are classic cases in the area of drawing the line between preparation and attempt. In Rizzo the New York Court, though praising the work of the officers, concluded that they had stopped the defendants before they had crossed that line. By contrast, the Second Circuit in Jackson concluded that those defendants had done enough to be guilty of an attempt. Was the difference between these two outcomes in the facts of the two cases? In the different legal standards applied in the two cases?

It is worth noting that the goal of the MPC is quite explicitly to make it easier to convict defendants of criminal attempt; the focus is on what has already done rather than what remains to be done. Is that consistent with other provisions of the MPC? 

When the law intervenes early in a course of criminal conduct, there is a risk that innocent conduct will be punished. Another classic case is McQuirter v. State, 36 Ala.App. 707 (1953) an appalling fact scenario in which an African-American man in 1950s Alabama was convicted of attempted rape for his mere proximity to a white woman. The trial judge invited the jury to draw conclusions about the defendant's intent based on the races of the defendant and his purported victim. The result in McQuirter is obviously unacceptable. However, if the police must wait until the defendant has made his intent to commit a crime unequivocal, the crime may already have occurred. How should the law allocate these concerns?

In the next document we see one approach a number of states have adopted: criminalizing certain types of pre-attempt conduct. One relatively non-controversial example is possession of criminal tools -- such as burglary tools or the sawed-off shotgun in Jackson. Others, like the Colorado stalking statute, are less straight-forward.

O’Shaughnessy v. People

Colorado Supreme Court

269 P.3d 1233 (Colo. 2012)

Justice RICE delivered the Opinion of the Court.

I. Introduction

We granted certiorari in this case to review whether the court of appeals imposed an unauthorized restriction on the affirmative defense of abandonment when it held that a defendant was not entitled to a jury instruction on abandonment when charged with attempted first degree murder with a deadly weapon or with attempted aggravated robbery once the defendant injured the victim. We hold that to present an affirmative defense of abandonment of an attempt crime for jury consideration the defendant must present “some credible evidence” on the issue. Further, we hold that having injured the victim does not necessarily foreclose the affirmative defense of abandonment. Nonetheless, we agree that here the defendant was not entitled to a jury instruction on the affirmative defense of abandonment because the defendant failed to present sufficient evidence. Accordingly, we affirm.

II. Facts and Proceedings Below

Uncontroverted evidence presented at trial showed that Geri David was attacked in the parking lot of a grocery store on the morning of September 13, 2004, by a man she later identified as Michael O'Shaughnessy. She was approached from behind by O'Shaughnessy, who was brandishing a six-inch hunting knife with a serrated blade. He held the knife to her face and ordered her into her car. She sat in the driver's seat with her feet outside of the car and kicked at her assailant to ward off the attack. As she lashed out at him, he stabbed her with the knife, causing injury to the right and left sides of her neck and throat, to her left thigh, and to her hand.

At that point, O'Shaughnessy said, “You're going to die,” and demanded her money. David told him she did not have any money and turned toward the floor of the passenger seat to look for her purse. When she turned back, O'Shaughnessy was gone. He did not reach for or take the purse.

A jury convicted O'Shaughnessy of attempted first degree murder with a deadly weapon, attempted aggravated robbery, second degree assault, false imprisonment, reckless endangerment, and a violent crime sentence enhancer. The trial court imposed consecutive sentences for the crimes of attempted murder, attempted aggravated robbery, and second degree assault. During the course of the trial, O'Shaughnessy requested a jury instruction on the affirmative defense of abandonment. The trial court denied the request.

We granted certiorari to determine whether the court of appeals imposed an unauthorized restriction on the affirmative defense of abandonment.

III. Analysis

The issue before this Court is whether the court of appeals imposed an unauthorized restriction on the affirmative defense of abandonment when it held that a defendant is not entitled to a jury instruction on abandonment when charged with attempted first degree murder with a deadly weapon, or with attempted aggravated robbery, once the defendant has injured the victim. We hold that a defendant must present “some credible evidence” on the issue involving the claimed defense in order to merit a jury instruction on the affirmative defense of abandonment for criminal attempt. We additionally hold that evidence showing that the defendant injured the victim does not necessarily foreclose the defendant's ability to present the abandonment defense to the jury. Nonetheless, we agree with the court of appeals' conclusion that here the defendant was not entitled to a jury instruction on the affirmative defense of abandonment because the defendant failed to present sufficient evidence.

A. Section 18–2–101—Attempt Crimes

Under section 18–2–101(1), C.R.S. (2011), a person commits criminal attempt if “he engages in conduct constituting a substantial step toward the commission of the offense.” A substantial step is any conduct “which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense.”

The statute goes on to provide that a defendant may assert the affirmative defense of abandonment to the crime of attempt when the defendant “abandon[s] his effort to commit the crime or otherwise prevent[s] its commission ... under circumstances manifesting the complete and voluntary renunciation of his criminal intent.” § 18–2–101(3).†

Thus, under the statute, though the crime of attempt is complete once the actor takes a substantial step toward the commission of the crime, the affirmative defense of abandonment applies if the actor completely and voluntarily renunciates his criminal intent thereafter. § 18–2–101(1), (3).

This tension between completion by a substantial step and a subsequent complete voluntary renunciation of criminal intent gives rise to the issue before this Court. Though the abandonment defense “may apply at various stages, early and late, in the commission of attempted crimes,” it is not unlimited. Once the attempt has been completed by putting into motion forces the actor can no longer stop, it cannot be abandoned. Volumes of scholarly work could be devoted to the topic, but the core of the issue before this Court is: what evidence must the defendant put forth to raise an affirmative defense of abandonment? To address that issue, we look to section 18–1–407, C.R.S. (2011).

B. Section 18–1–407—Affirmative Defenses

“The General Assembly is vested with constitutional authority not only to define criminal conduct and to establish the legal components of criminal liability but, as well, to delineate statutory defenses and bars to criminal prosecution.” Lybarger v. People, 807 P.2d 570, 580 (Colo.1991). Thus, in construing defenses to crimes, we first look to the criminal code. Section 18–1–407(1) mandates what a defendant must establish to raise an affirmative defense:

“Affirmative defense” means that unless the state's evidence raises the issue involving the alleged defense, the defendant, to raise the issue, shall present some credible evidence on that issue.

(emphasis added).

The “some credible evidence” standard requires little evidence for submitting an affirmative defense to the jury. For example, in People v. Saavedra–Rodriguez, 971 P.2d 223, 227–28 (Colo.1998), the Court used the terms “a scintilla of evidence” and “[s]ome credible evidence” interchangeably when considering the quantum of evidence necessary to raise an affirmative defense of an independent intervening act relieving the defendant of liability for criminal homicide.

The question of whether the defendant has presented “some credible evidence” of an affirmative defense is a question of law and thus must be resolved by the trial court. Therefore, if the trial court determines as a matter of law that no evidence exists in the record to support an affirmative defense, then the instruction need not be presented to the jury because there is no issue of fact for the jury to resolve. This Court reviews such determinations de novo.

C. Application

We now turn to whether the defense presented some credible evidence to support an instruction on the affirmative defense of abandonment in the case at hand. At the close of evidence, O'Shaughnessy requested that the jury be given an instruction on the affirmative defense of abandonment which read:

It is an affirmative defense to the crime of criminal attempt that the defendant abandoned his effort to commit the crime or otherwise prevent its commission, under circumstances manifesting the complete and voluntary renunciation of his criminal intent.

O'Shaughnessy asserts that he was entitled to the instruction with regard to both attempted aggravated robbery and attempted first degree murder.

1. Attempted Aggravated Robbery

The criminal code provides that a person is guilty of aggravated robbery if

. . . during the act of robbery or immediate flight therefrom . . . he knowingly wounds or strikes the person robbed . . . with a deadly weapon or by the use of force, threats, or intimidation with a deadly weapon knowingly puts the person robbed . . . in reasonable fear of death or bodily injury.

§ 18–4–302(1)(b), C.R.S. (2011). The requirement of the attempt statute quoted above, section 18–2–101, must also be met to satisfy a charge of attempted aggravated robbery.

Here, uncontroverted evidence showed that O'Shaughnessy knowingly struck and wounded David in the process of attempting to rob her. He stabbed her six times with a hunting knife while demanding money. While doing so, he used force, threats, and intimidation by telling her she was “going to die,” while wielding the knife.

Given these undisputed facts, O'Shaughnessy failed to present some credible evidence that he abandoned his effort to commit the crime under circumstances manifesting the complete and voluntary renunciation of his criminal intent. Accordingly, we agree with the trial court's determination, as a matter of law, that O'Shaughnessy did not raise an affirmative defense of abandonment to the charge of attempted aggravated robbery.

2. Attempted First Degree Murder

O'Shaughnessy also asserts that he was entitled to a jury instruction on the affirmative defense of abandonment with respect to the charge of attempted first degree murder.

O'Shaughnessy asserts that there was some evidence in the record that he abandoned the attempt to murder David when he stopped the assault, asked for money, and then walked away. To the contrary, the undisputed evidence at trial is that in the course of thirty to sixty seconds the assailant stabbed the victim six times, including four times in and near the throat; verbally threatened her life; and demanded money. The victim also testified that she fought her attacker throughout the incident. In addition, there was undisputed testimony that the defendant asked others to lie about his whereabouts that morning and changed his appearance and clothes immediately following the attack.

We hold that the evidence did not satisfy the threshold requirement of some credible evidence of abandonment of attempted first degree murder. A defendant must present some affirmative evidence of his abandonment of the crime to raise the defense. The defendant's mere withdrawal—particularly when faced with resistance by the victim—before completing the murder or the robbery is insufficient evidence of abandonment. Because the defendant did not present some credible evidence of abandonment, the defendant was not entitled to a jury instruction on an affirmative defense on that issue.

Accordingly, we affirm the judgment of the court of appeals.

As the O'Shaughnessy case demonstrates, many states, as well as the MPC, have created a defense of abandonment to an attempt crime. That is, when the defendant can demonstrated that he has abandoned his attempt before it has been completed, he may have a defense to the attempt charge. Note also, that in Colorado abandonment is an affrimative defense; the defendant must put forth evidence that the defense is available at which point the burden shifts to the state to demonstrate that the defendant is not entitled to that defense.

Abandonment raises complicated issues. We can understand why a jurisdiction would want to reward a defendant who has abandoned his attempt. If the reason we punish attempts less than completed offense is that they cause less harm, we want to do what we can to encourage conduct that reduces harm such as abandoning an attempt before it is completed. But when, exactly, is the defense available. If the defendant abandons his criminal scheme before he has crossed the line between preparation and attempt, he does not need the defense -- he has not committed either the completed crime or an attempt. If the attempt is for people who have already crossed the line into attempt, why isn't it available to O'Shaughnessy? He had certainly attempted at least robbery and probably murder as well; but he completed neither offense. If he were allowed to raise an abandonment defense, he would be absolved of responsibility for those crimes, though he might remain liable for something else (like assault with a deadly weapon). Is that a just result on these facts? Would it matter if he had manifested a change of heart or remorse? If he had stabbed the victim multiple times and demanded her money but then said "oh my god, what have I done, let me call 911 for you and stay with you till they get here" would that change the Court's analysis? Should it?

Also, does it matter why the defendant's course of conduct has not yet succeeded? If a would-be assassin shoots and misses and then packs up his rifle and walks away, should that preclude an attempt charge? Most people would say no. Is the same true if the defendant simply has more to do before the attempt is completed? 

Smallwood v. State

Maryland Court of Appeals

680 A.2d 512 (App. Md.1996)

MURPHY, Chief Judge.

On August 29, 1991, Dwight Ralph Smallwood was diagnosed as being infected with the Human Immunodeficiency Virus (HIV). According to medical records from the Prince George's County Detention Center, he had been informed of his HIV-positive status by September 25, 1991. In February 1992, a social worker made Smallwood aware of the necessity of practicing "safe sex" in order to avoid transmitting the virus to his sexual partners, and in July 1993, Smallwood told health care providers at Children's Hospital that he had only one sexual partner and that they always used condoms. Smallwood again tested positive for HIV in February and March of 1994.

On September 26, 1993, Smallwood and an accomplice robbed a woman at gunpoint, and forced her into a grove of trees where each man alternately placed a gun to her head while the other one raped her. On September 28, 1993, Smallwood and an accomplice robbed a second woman at gunpoint and took her to a secluded location, where Smallwood inserted his penis into her with "slight penetration." On September 30, 1993, Smallwood and an accomplice robbed yet a third woman, also at gunpoint, and took her to a local school where she was forced to perform oral sex on Smallwood and was raped by him. In each of these episodes, Smallwood threatened to kill his victims if they did not cooperate or to return and shoot them if they reported his crimes. Smallwood did not wear a condom during any of these criminal episodes.

Based upon his attack on September 28, 1993, Smallwood was charged with, among other crimes, attempted first-degree rape, robbery with a deadly weapon, assault with intent to murder, and reckless endangerment. In separate indictments, Smallwood was also charged with the attempted second degree murder of each of his three victims. On October 11, 1994, Smallwood pled guilty in the Circuit Court for Prince George's County to attempted first-degree rape and robbery with a deadly weapon. The circuit court also convicted Smallwood of assault with intent to murder and reckless endangerment based upon his September 28, 1993 attack, and convicted Smallwood of all three counts of attempted second-degree murder.

Following his conviction, Smallwood was sentenced to concurrent sentences of life imprisonment for attempted rape, twenty years imprisonment for robbery with a deadly weapon, thirty years imprisonment for assault with intent to murder, and five years imprisonment for reckless endangerment. The circuit court also imposed a concurrent thirty-year sentence for each of the three counts of attempted second-degree murder. The circuit court's judgments were affirmed in part and reversed in part by the Court of Special Appeals. In Smallwood v. State, 106 Md.App. 1, 661 A.2d 747 (1995), the intermediate appellate court found that the evidence was sufficient for the trial court to conclude that Smallwood intended to kill his victims and upheld all of his convictions.[2] Upon Smallwood's petition, we granted certiorari to consider whether the trial court could properly conclude that Smallwood possessed the requisite intent to support his convictions of attempted second-degree murder and assault with intent to murder.

Smallwood asserts that the trial court lacked sufficient evidence to support its conclusion that Smallwood intended to kill his three victims. Smallwood argues that the fact that he engaged in unprotected sexual intercourse, even though he knew that he carried HIV, is insufficient to infer an intent to kill. The most that can reasonably be inferred, Smallwood contends, is that he is guilty of recklessly endangering his victims by exposing them to the risk that they would become infected themselves. The State disagrees, arguing that the facts of this case are sufficient to infer an intent to kill. The State likens Smallwood's HIV-positive status to a deadly weapon and argues that engaging in unprotected sex when one is knowingly infected with HIV is equivalent to firing a loaded firearm at that person.

As we have previously stated, "[t]he required intent in the crimes of assault with intent to murder and attempted murder is the specific intent to murder, i.e., the specific intent to kill under circumstances that would not legally justify or excuse the killing or mitigate it to manslaughter." Smallwood has not argued that his actions were performed under mitigating circumstances or that he was legally justified in attacking the three women. He was properly found guilty of attempted murder and assault with intent to murder only if there was sufficient evidence from which the trier of fact could reasonably have concluded that Smallwood possessed a specific intent to kill at the time he assaulted each of the three women.

An intent to kill may be proved by circumstantial evidence. "[S]ince intent is subjective and, without the cooperation of the accused, cannot be directly and objectively proven, its presence must be shown by established facts which permit a proper inference of its existence. Therefore, the trier of fact may infer the existence of the required intent from surrounding circumstances such as "the accused's acts, conduct and words." As we have repeatedly stated, "under the proper circumstances, an intent to kill may be inferred from the use of a deadly weapon directed at a vital part of the human body."

In Raines, 606 A.2d 265 (Md.,1992) we upheld the use of such an inference. In that case, Raines and a friend were traveling on a highway when the defendant fired a pistol into the driver's side window of a tractor trailer in an adjacent lane. The shot killed the driver of the tractor trailer, and Raines was convicted of first degree murder. The evidence in the case showed that Raines shot at the driver's window of the truck, knowing that the truck driver was immediately behind the window. We concluded that "Raines's actions in directing the gun at the window, and therefore at the driver's head on the other side of the window, permitted an inference that Raines shot the gun with the intent to kill."

The State argues that our analysis in Raines rested upon two elements: (1) Raines knew that his weapon was deadly, and (2) Raines knew that he was firing it at someone's head. The State argues that Smallwood similarly knew that HIV infection ultimately leads to death, and that he knew that he would be exposing his victims to the risk of HIV transmission by engaging in unprotected sex with them. Therefore, the State argues, a permissible inference can be drawn that Smallwood intended to kill each of his three victims. The State's analysis, however, ignores several factors.

First, we must consider the magnitude of the risk to which the victim is knowingly exposed. The inference drawn in Raines, supra, rests upon the rule that "[i]t is permissible to infer that 'one intends the natural and probable consequences of his act.'" Before an intent to kill may be inferred based solely upon the defendant's exposure of a victim to a risk of death, it must be shown that the victim's death would have been a natural and probable result of the defendant's conduct. It is for this reason that a trier of fact may infer that a defendant possessed an intent to kill when firing a deadly weapon at a vital part of the human body. When a deadly weapon has been fired at a vital part of a victim's body, the risk of killing the victim is so high that it becomes reasonable to assume that the defendant intended the victim to die as a natural and probable consequence of the defendant's actions.

Death by AIDS is clearly one natural possible consequence of exposing someone to a risk of HIV infection, even on a single occasion. It is less clear that death by AIDS from that single exposure is a sufficiently probable result to provide the sole support for an inference that the person causing the exposure intended to kill the person who was exposed. While the risk to which Smallwood exposed his victims when he forced them to engage in unprotected sexual activity must not be minimized, the State has presented no evidence from which it can reasonably be concluded that death by AIDS is a probable result of Smallwood's actions to the same extent that death is the probable result of firing a deadly weapon at a vital part of someone's body. Without such evidence, it cannot fairly be concluded that death by AIDS was sufficiently probable to support an inference that Smallwood intended to kill his victims in the absence of other evidence indicative of an intent to kill.

In this case, we find no additional evidence from which to infer an intent to kill. Smallwood's actions are wholly explained by an intent to commit rape and armed robbery, the crimes for which he has already pled guilty. For this reason, his actions fail to provide evidence that he also had an intent to kill. As one commentator noted, in discussing a criminal case involving similar circumstances, "[b]ecause virus transmission occurs simultaneously with the act of rape, that act alone would not provide evidence of intent to transmit the virus. Some additional evidence, such as an explicit statement, would be necessary to demonstrate the actor's specific intent." Smallwood's knowledge of his HIV-infected status provides the only evidence in this case supporting a conclusion that he intended anything beyond the rapes and robberies for which he has been convicted.

The cases cited by the State demonstrate the sort of additional evidence needed to support an inference that Smallwood intended to kill his victims. The defendants in these cases have either made explicit statements demonstrating an intent to infect their victims or have taken specific actions demonstrating such an intent and tending to exclude other possible intents. In State v. Hinkhouse, 139 Or.App. 446 (1996), for example, the defendant engaged in unprotected sex with a number of women while knowing that he was HIV positive. The defendant had also actively concealed his HIV-positive status from these women, had lied to several of them by stating that he was not HIV-positive, and had refused the women's requests that he wear condoms. There was also evidence that he had told at least one of his sexual partners that "if he were [HIV-] positive, he would spread the virus to other people." The Oregon Court of Appeals found this evidence to be sufficient to demonstrate an intent to kill, and upheld the defendant's convictions for attempted murder.

In State v. Caine, 652 So.2d 611 (La.App.), cert. denied, 661 So.2d 1358 (La.1995), a conviction for attempted second degree murder was upheld where the defendant had jabbed a used syringe into a victim's arm while shouting "I'll give you AIDS." The defendant in Weeks v. State, 834 S.W.2d 559 (Tex.App.1992), made similar statements, and was convicted of attempted murder after he spat on a prison guard. In that case, the defendant knew that he was HIV-positive, and the appellate court found that "the record reflects that [Weeks] thought he could kill the guard by spitting his HIV-infected saliva at him." Id. at 562. There was also evidence that at the time of the spitting incident, Weeks had stated that he was "going to take someone with him when he went,' that he was `medical now,' and that he was 'HIV-4.'"

The evidence in State v. Haines, 545 N.E.2d 834 (Ind.App.1989), contained both statements by the defendant demonstrating intent and actions solely explainable as attempts to spread HIV. There, the defendant's convictions for attempted murder were upheld where the defendant slashed his wrists and sprayed blood from them on a police officer and two paramedics, splashing blood in their faces and eyes. Id. at 835. Haines attempted to scratch and bite them and attempted to force blood-soaked objects into their faces. During this altercation, the defendant told the officer that he should be left to die because he had AIDS, that he wanted to "give it to him," and that he would "use his wounds" to spray the officer with blood. Id. Haines also "repeatedly yelled that he had AIDS, that he could not deal with it and that he was going to make [the officer] deal with it." Id.

Scroggins v. State, 198 Ga.App. 29, 401 S.E.2d 13, 15 (1990), presents a similar scenario, where the defendant made noises with his mouth as if bringing up spittle and then bit a police officer hard enough to break the skin. Immediately after this incident he informed a nurse that he was HIV-positive and laughed when the police officer asked him if he had AIDS. The Georgia Court of Appeals found that evidence showing that the defendant "sucked up excess sputum" before biting the officer was "evidence of a deliberate, thinking act" and that in conjunction with the defendant's laughter when asked about AIDS, it provided sufficient evidence of intent to support Scroggins's conviction for assault with intent to kill.

In contrast with these cases, the State in this case would allow the trier of fact to infer an intent to kill based solely upon the fact that Smallwood exposed his victims to the risk that they might contract HIV. Without evidence showing that such a result is sufficiently probable to support this inference, we conclude that Smallwood's convictions for attempted murder and assault with intent to murder must be reversed.

People v. Thomas

Supreme Court of Colorado

729 P.2d 972 (Colo. 1986)

LOHR, Justice.

On the evening of February 4, 1981, the defendant received a telephone call from a former girlfriend informing him that she had been raped in her apartment by a man who lived in an apartment upstairs. The defendant arrived at the woman's apartment shortly thereafter, armed with a pistol. He went upstairs and gained entrance into the apartment occupied by the alleged assailant by identifying himself as a policeman. The defendant pointed his gun at the man who, believing the defendant was a police officer, accompanied him back down to the woman's apartment. The woman identified the man as the rapist, and the defendant instructed her to call the police. At that time, the man started to flee to his own apartment, and the defendant gave chase. The defendant fired three shots, two of which struck the fleeing man. The defendant testified that he fired the first shot as a warning when the man was going up the stairs, that he fired a second shot accidentally when the man kicked him while on the stairs, and that the third shot was also a warning shot, fired from the outside of the building near the window of the apartment occupied by the alleged rapist. When the police arrived, they found the defendant still waiting outside, holding the gun.

The jury was instructed on the crimes of attempted first degree murder, first degree assault, and the lesser included offenses of attempted second degree murder, attempted reckless manslaughter, attempted heat of passion manslaughter, and second degree assault. The jury returned verdicts of guilty to the charges of first degree assault and attempted reckless manslaughter, and the trial court entered judgment accordingly.

The language of the relevant statutes provides the framework for our analysis. The crime of reckless manslaughter is defined in section 18-3-104(1)(a) C.R.S. as follows:

(1) A person commits the crime of manslaughter if:

(a) He recklessly causes the death of another person;

"Recklessly," the relevant culpable mental state for this crime, is defined in § 18-1-501(8), C.R.S. (1986):

(8) A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that a result will occur or that a circumstance exists.

As applied to the offense of reckless manslaughter, the requisite conscious disregard of a substantial and unjustifiable risk relates to a result, the death of another person.

The inchoate offense of criminal attempt is defined as follows in section 18-2-101(1), C.R.S. (1986):

A person commits criminal attempt if, acting with the kind of culpability otherwise required for commission of an offense, he engages in conduct constituting a substantial step toward the commission of the offense. A substantial step is any conduct, whether act, omission, or possession, which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense. . .

The court of appeals held that "[r]ecklessness is ... a mental culpability which is incompatible with the concept of an intentional act." This is so, the court held, because the "conscious disregard" with respect to risk of death that is essential to reckless manslaughter cannot be equated with the conscious intent to cause death which the court of appeals implicitly determined to be a necessary element of the offense of criminal attempt in this context. On certiorari review, the defendant supports this analysis, contending that "[o]ne cannot intend to cause a specific result ... by consciously disregarding the risk that the result will occur." A careful analysis of the elements of criminal attempt and of reckless manslaughter demonstrates, however, that the court of appeals' analysis and the defendant's supporting arguments are misconceived.

In People v. Frysig, 628 P.2d 1004 (Colo.1981), we construed the criminal attempt statute in the context of a charge of attempted first degree sexual assault. We held that the intent to commit the underlying offense is an essential element of the crime.

More precisely, in order to be guilty of criminal attempt, the actor must act with the kind of culpability otherwise required for commission of the underlying offense and must engage in the conduct which constitutes the substantial step with the further intent to perform acts which, if completed, would constitute the underlying offense.

In order to complete the offense of reckless manslaughter, it is necessary that the actor cause the death of another person by acting in a manner that involves a substantial and unjustifiable risk of death of that other person and that the actor be conscious of that risk and of its nature when electing to act. Attempted reckless manslaughter requires that the accused have the intent to commit the underlying offense of reckless manslaughter. The "intent to commit the underlying offense" of which People v. Frysig speaks is the intent to engage in and complete the risk-producing act or conduct. It does not include an intent that death occur even though the underlying crime, reckless manslaughter, has death as an essential element.

The crime of attempted reckless manslaughter also requires that the risk-producing act or conduct be commenced and sufficiently pursued to constitute a "substantial step toward the commission of the offense." That is, the act or conduct must proceed far enough to be "strongly corroborative of the firmness of the actor's purpose," Id., to complete those acts that will produce a substantial and unjustifiable risk of death of another.

Finally, in order to be guilty of attempted reckless manslaughter the actor must engage in the requisite acts or conduct "with the kind of culpability otherwise required for the commission of the underlying offense," that is, with a conscious disregard of a substantial and unjustifiable risk that the acts or conduct will cause the death of another person. Based upon this analysis, and contrary to the defendant's argument, there is no logical or legal inconsistency involved in the recognition of attempted reckless manslaughter as a crime under the Colorado Criminal Code.

Darr v. People

Supreme Court of Colorado

568 P.2d 32 (Colo. 1977)

HODGES, Justice.

Defendant Darr was charged with attempted felony theft by receiving jewelry valued at $100 or more. See sections 18-2-101 and 18-4-401, C.R.S. 1973. Trial was to a jury. At the close of the prosecution's case, the trial court granted the defendant's motion for judgment of acquittal. Pursuant to section 16-12-102, C.R.S. 1973, the district attorney appealed to the court of appeals which disapproved the trial court's ruling and judgment of acquittal

Uncontradicted evidence revealed that the jewelry which was sold to the defendant by two policemen who represented it as being stolen, had never been stolen. In granting the defendant's motion for judgment of acquittal, the trial court ruled that the defendant had acted under a mistake of fact and was entitled to be acquitted as a matter of law. This trial court ruling is not in accord with the generally accepted rule in attempt cases, and is contrary to the clear provisions of our criminal attempt statute.

Whether the mistaken belief that goods are stolen is a defense to attempted theft by receiving is a question of first impression in Colorado, although appellate courts of other states have addressed it.

In the early years of this century, some jurisdictions held that the mistaken belief that an object was stolen was a mistake of law and a defense to attempted theft by receiving. A case frequently cited for this holding is People v. Jaffe, 185 N.Y. 497 (1906). The Jaffe court reasoned that because an element of the completed crime required that the goods be stolen, the fact that the goods were not stolen was a defense to the completed crime. Consequently, an attempt to do an act which would not be criminal if completed could not itself be criminal regardless of the actor's intent. The Jaffe line of cases has now been generally rejected. The modern trend is to hold that a mistake of fact is not a defense to attempted theft by receiving. Some courts have undertaken to remedy the Jaffe rule through statutory interpretation while other courts, including New York's, have requested legislative change.

Corrective legislation usually takes a form similar to the Model Penal Code or the New York Penal Code's formulations of an attempt statute. These statutes define three elements of the offense of attempt: (1) culpability required to commit the completed offense; (2) intent to commit the offense; and (3) a substantial step toward completion of the offense. Both codes specifically provide that impossibility is no defense if a completed offense could have occurred had circumstances been as the accused believed them to be. Commentaries accompanying each of these sections express the opinion that the sections nullify the Jaffe rule. We find these commentaries persuasive.

Colorado's attempt statute closely resembles these statutes:

“A person commits criminal attempt if, acting with the kind of culpability otherwise required for commission of an offense, he intentionally engages in conduct constituting a substantial step toward commission of the offense. . . . Factual or legal impossibility of committing the offense is not a defense if the offense could have been committed had the attendant circumstances been as the actor believed them to be . . .” § 18-2-101(1), C.R.S. 1973.

The crime which the defendant was charged with attempting was theft by receiving:

“A person commits theft when he knowingly obtains or exercises control over anything of value of another . . . knowing said thing of value to have been stolen, and: (a) Intends to deprive the other person permanently of the use or benefit of the thing of value . . .” § 18-4-401(1), C.R.S. 1973.

Here, the defendant did every act within his power to commit the offense of theft by receiving and would have committed the completed offense had the jewelry been stolen as he believed it to be. These acts evidenced an intent to commit the offense, and the defendant comes within the letter of the attempt statute. We agree with the opinion of the California court in its leading case, People v. Rojas, 358 P.2d 921 (Ca. 1961):

“In our opinion, the consequences of intent and acts such as those of defendants here should be more serious than pleased amazement that because of the timeliness of the police the projected criminality was not merely detected but also wiped out.”

It is irrelevant whether the goods are recovered stolen goods or have never been stolen. The intent and acts of the defendant, not the surrounding circumstances, are the crucial elements of the attempt offense, as the provision prohibiting the defense of impossibility for attempt crimes makes clear.

Defendant claims that the section allowing a defense of mistake of fact where the mistake “negatives the existence of a particular mental state essential to commission of the offense” exculpates him. § 18-1-504(1)(a), C.R.S. 1973. Both the trial court and the court of appeals, as well as the defendant, seemed to believe that the mistake section and the attempt section conflict – the first, allowing mistake as a defense here, and the second prohibiting the defense. We disagree.

The pertinent portion of the mistake section applies only to mistakes which “negative” the existence of a mental state essential to the commission of an offense. The portion of the attempt statute which provides that impossibility “is not a defense if the offense could have been committed had the attendant circumstances been as the actor believed them to be,” in effect substitutes “believing” the goods to be stolen, the element of culpability required in attempted theft by receiving, for “knowing” the goods to be stolen, the element of culpability for a completed theft by receiving. Here, the defendant's mistake, far from negativing his belief that the goods were stolen, established the requisite mental state. Had he not been mistaken, he would have known that the goods were not stolen and would have lacked the culpable mental state. The mistake section simply does not apply.

The judgment of the court of appeals is affirmed.

United States v. Church

US Air Force Court of Military Review

29 M.J. 679 (1989)

The appellant and his wife were married in 1985, and a son was born of this union about a year later. In 1987, they experienced marital difficulties which eventually led to their separation. By an order dated 5 October 1987, the local district court awarded custody of the child to the appellant’s wife, and shortly thereafter she returned with the child to her home in Michigan. The appellant loved his son and desired to regain custody of him, but began to realize it was unlikely he would be able to do so through the courts.

[After speaking with Airman Meyer and other co-workers, Appellant got word to Airman Skyberg that he] wanted to talk to him. Skyberg phoned the appellant and asked him what he wanted to talk about. The appellant indicated that the matter was too private to discuss over the phone, and Skyberg arranged to meet the appellant at his dormitory room. After Skyberg arrived, the appellant asked him if he knew anyone “who could [the appellant gestured with his hand, his fingers arranged as if to simulate a gun] his wife.” The appellant indicated that he felt that was the only way he could get custody of his son. He said he was getting out of the service in about a month, and wanted “it” done before he left so he would have a good alibi as to where he was at the time. Skyberg believed the appellant was serious. A few other airmen, including Airman Meyer, entered the room and they changed the subject of conversation. After all had left except Skyberg and Meyer, the conversation about the appellant’s wife was resumed. The appellant talked in more detail about the location of his wife’s home in Michigan, and a hotel close by where someone doing the job could stay. He indicated her house was up for sale, so someone could easily get inside by posing as a prospective buyer. He said he could provide a detailed map of the area, and would be able to raise “a few grand” for the job. The appellant said this was not a spur of the moment thing, but something he had been thinking about for the last few months. Meyer indicated that he had tried to contact someone on the appellant’s behalf. After leaving the appellant’s room, Skyberg and Meyer discussed the matter further and decided to contact the Office of Special Investigations (OSI).

After talking with Skyberg and Meyer the following day, OSI decided to open up an investigation and attempt to place an undercover agent in the role of a hit man. Meyer agreed to assist them by introducing the appellant to the undercover agent. On 15 April 1988, Meyer was instructed to contact the appellant and tell him that his [Meyer’s] friend in New York had found someone to do the job if the appellant was still interested. The appellant indicated he was, and Meyer told him an individual by the name of “Nick” (in reality, Special Agent Nicholas J. Karnezis) would call him on the evening of 19 April. The appellant subsequently borrowed $400.00 from Meyer (money provided by OSI) to help pay the hit man.

Nick called the appellant as planned, and indicated they had some business to discuss. Nick related that he would need a picture of the appellant’s wife, a sketch of the house, and maps of the local area in Michigan. The appellant said he already had the picture and a detailed diagram of the residence, and that he could get the maps. Nick indicated he would need $500.00 up front for expenses. It was agreed they would meet at the Holiday Inn in Fargo, North Dakota on 22 April 1988 and that the appellant would wear an Ohio State football jacket and carry a Time magazine so Nick could recognize him.

The meeting occurred as planned. After some discussion about his family situation the appellant indicated he wanted his Wife killed. The appellant said he had brought the things Nick had asked for and had $1,100.00 with him, $500.00 for the job, plus $600.00 for air fare. After discussing the location of the appellant’s residence, Nick simulated a phone call to an airline ticket agent, booking a flight to Marquette, Michigan. The appellant provided Nick with pictures of his Wife and son; a spiral notebook containing a list of people who lived in the house and hours they were away from home, two detailed diagrams of the house and surrounding area, and directions on how to get to the house from the Marquette airport; a Rand-McNally road atlas with two different routes from the airport to the house highlighted; and, a local Marquette area phone book, which included the phone number at his Wife’s home. They discussed the schedules of the residents, the vehicles they drove, where the dogs were located, closets in the house where guns were kept, and other details of the planned murder. They settled on a total price of $2,100.00 if the job went as easily as the appellant indicated it should. The appellant gave Nick the $1,100.00 he had brought with him. Nick asked for ideas on how the killing should be done, and the appellant said it seemed to him the easiest way was to make it look like a robbery and that his wife got in the way. As to the weapon, he indicated a knife or gun could be used. Nick showed the appellant a .22 caliber semi-automatic pistol, equipped with a silencer, that he had in his brief case. Nick asked the appellant if he had any “special requests” as to how he wanted it done. The appellant replied “one in her head and one in her (using a slang term for a private part of the female anatomy). Nick expressed concern about the appellant’s wife’s grandfather, who also lived in the house and did not work. The appellant indicated there should be no witnesses, and that if the grandfather got in the way Nick should take care of him too. The appellant indicated he wanted the job done while he was at work S0 he would be very visible. He provided Nick with his work and dormitory phone numbers, and Nick said he would be in touch, and for the appellant to expect a call around 8:00 to 8:30

Nick called the appellant from K.I. Sawyer Air Force Base, Michigan (a base located close to Marquette) on 24 April. He told the appellant that his wife had moved, and that the job would cost more, another $500.00, since he would have to locate where she was living. The appellant agreed to pay the additional amount. That evening the appellant asked Airman Meyer to call directory assistance in Michigan for him to find out his wife’s new phone number. Meyer did, and gave the new number to the appellant. (A fair inference is that the appellant obtained the number so he could provide it to Nick if Nick was unable to locate the appellant’s wife on his own.) Nick called again the following day, indicating he had located the appellant’s wife and that the job would be done between then and the following morning. The appellant said that was fine. He indicated he had the other $1,000.00, but that it would take a little longer to come up with the additional $500.00.

On the morning of 26 April, the appellant was notified of his wife’s death by his unit commander. According to Airman Meyer, the appellant told him that everyone was sympathetic and that the appellant put on “a Class A act,” including crying and laying down on the first sergeant’s couch. Later that day, the appellant received a message to meet Nick down in Fargo. He proceeded to the Holiday Inn in Fargo. He told Nick he had received notification of his wife’s death. Nick said: “You mean you got the word already!” And the appellant replied: “You do good work.” Nick showed the appellant a picture of his wife laying on the floor with what appeared to be two bullet wounds, one in her head and another in her neck. The appellant confirmed that it was his Wife. After some further discussion, he gave Nick $1,000.00. At that point Nick identified himself as a government agent and apprehended the appellant. The two meetings between- the appellant and Nick at the Holiday Inn were both video and audio tape recorded (the tapes were admitted in evidence at trial). 

An Attempt or Only a Solicitation?

On the appellant’s behalf, it is forcefully argued that his conduct never passed the threshold from mere preparation (i.e., a solicitation) to an attempt to commit the offense because there was no “dangerous proximity” to success of the planned murder. Since there is little military authority on point, appellate counsel rely principally on state court approaches to this dilemma. In various factual situations involving “contracting out” for crimes, these courts held that the evidence only established mere acts of preparation not leading directly or proximately to consummation of the intended crime. For example, in Adami the Court concluded that “the contemplated murder would not have resulted in the usual course of natural events since neither the ‘agent’ nor the solicitor [defendant] did any unequivocal overt act which can be said to be a commencement of the commission of the intended crime.” People v. Adami, 111 Ca1.Rptr. at 548.

Typical, and perhaps closest factually to the present appellant’s case, are the companion cases of Davis and Lourie. They involved a plan hatched by two lovers to murder the woman’s husband (Edmon Lourie) so that they could get his life insurance amounting to $66,000.00. The parties resided in Kansas City, Missouri. In furtherance of their plan, Davis engaged a man named Leverton to find an ex­-convict who would commit the murder for hire. However, Leverton disclosed the plot to the police. Thereafter, several meetings were held between Davis, Leverton and an undercover police officer, Dill. It was agreed that Dill would kill Mr. Lourie for $600.00 and diamonds valued at about $3,000.00 owned by the Louries. Also, arrangements were made for Dill to meet Mrs. Lourie so they would be able to recognize each other. It was decided that the contemplated assault would occur in Chicago, where Mr. Lourie had gone on business. Davis provided Dill a map showing where Mr. Lourie could be located and two photos of him. If Dill could not locate him, Mrs. Lourie would also travel to Chicago to assist. However, this part of the plan was interrupted when Mr. Lourie returned early from his trip. It was then decided that Mrs. Lourie would persuade her husband to go out for a night on the town, and that they would leave their home at 8:00 p.m. on a certain date. Mrs. Lourie was to have the diamonds on her person so it would appear that robbery was the motive for the crime. She would be “mussed up”, and then faint, permitting Dill time to escape. On the evening in question, Dill, accompanied by three other police officers, proceeded to the Lourie residence as planned. The Louries were dressed and ready to leave; Mrs. Lourie had the diamonds on her person. Davis, also as planned, was at home in another part of the city in order to have an alibi. Two of the officers entered the residence and took charge of the Louries, while Dill and the other officer proceeded to Davis’ residence and arrested him. The Supreme Court of Missouri concluded:

The employment of Dill as agent to murder Lourie was not tantamount to an attempt. Dill not only had no intention of carrying out the expressed purpose of defendant, but was guilty of no act directly or indirectly moving toward the consummation of the intended crime.  He did nothing more than listen to the plans and solicitations of defendant without intending to act upon them. It was not shown that Dill committed an act that could be construed as an attempt. The arrest of Lourie, his wife, and defendant as detailed in the evidence could not be said to be an act involving the consummation of the crime. (Citations omitted.)

State v. Davis, 6 S.W.2d at 612. The Court adopted the same rationale in its decision in State v. Laurie. The Court acknowledged that the defendants were guilty of soliciting another to commit murder, a crime not charged. (Apparently under Missouri law that offense is not a lesser included offense to murder or attempted murder.)

Not all authority favors the defense position. A few state courts have upheld attempt convictions in cases involving crimes for hire. These cases stand for the proposition that once the intent that a crime be committed is clearly proved, “slight acts” on the part of the solicitor will support an attempt conviction.

 To a great extent, resolution of the issue we face is dependent upon the facts of the case. We hold that under the circumstances present in the case now before us, the appellant’s conviction of attempted murder can be sustained. We have found no military or federal precedent which we believe would require us to reach the opposite conclusion.

As this Court has recently stated, “a criminal attempt attaches culpability to a state of mind consisting of an accused’s criminal intent and the belief that he is acting in such a manner as to achieve that intent.” In United States v. Byrd, 24 M.J. 286, 290 (C.M.A. 1987), the United States Court of Military Appeals relied upon a test adopted by the United States Court of Appeals for the Second Circuit:

[T]o be guilty of an attempt, a ‘defendant must have engaged in conduct which constitutes a substantial step toward commission of the crime’ and that substantial step must be conduct strongly corroborative of the firmness of the defendant’s criminal intent. 

Conclusion

 [W]e are convinced that the trial court’s findings of guilty of the offense of attempted murder should be upheld. The appellant’s conduct in obtaining the services of Nicholas Karnezis to murder his wife, his detailed participation in planning the intended crime, up to advising the agent exactly how he wanted his wife shot, and his payment of the agreed upon consideration, both before the crime was to occur and after he was apprised that it had, constitutes “a substantial step toward commission of the crime,” and establishes the requisite overt act amounting to more than mere preparation. We can envision nothing else the appellant could possibly have done to effect what he believed would be his wife's murder, short of committing the act himself (which is precisely what he did not want to do). As characterized by appellate government counsel during oral argument, the appellant armed a missile (Nick) and fired it off, fully believing it was aimed directly at his intended victim. If we were to accept the reasoning of appellate defense counsel neither appellant nor SA Karnezis ever took any steps or perpetration in dangerous proximity to the commission of the offense planned” because the agent never intended to commit the offense. No contract for hire criminal scheme could ever be prosecuted as an attempt if the person hired turned out to be a government agent or informant. To place our criminal justice system in this posture defies logic. It is the accused’s criminal intent we are concerned with, not that of the person hired to commit the crime.

Turning to that intent, we find the record replete with evidence establishing “conduct strongly corroborative of the firmness of the defendant’s criminal intent.” The appellant retained whom he believed to be a big city hit man for the purpose of murdering his wife; he paid an agreed upon amount of money up front; he provided photographs, documents and diagrams to facilitate commission of the crime; he helped plan precisely how it would be committed; he indicated the need for an alibi for himself; after being advised that his wife had moved, he agreed to an increase in the contract price and obtained her new telephone number; when notified of her murder through unit channels, he “put on a Class A act;” upon being shown a staged picture of his wife with gunshot wounds, he commended Nick for his “good work,” and paid a further installment on the contract price. The firmness of his intent is clearly established.

We are convinced beyond a reasonable doubt that the appellant is guilty of attempted murder.

Recall the facts of Rizzo and Jackson that began this section. The Rizzo Court concluded that those defendants never got dangerously close to completing their attempt while the Jackson Court reached the opposite conclusion. Did Darr get dangerously close to committing his offense? It depends what we mean by this question. From his point of view, he never came remotely close to committing the offense of receipt of stolen property because there was no stolen property for him to acquire. In the same way that Rao did not have the payroll and could not have been robbed, Darr would argue, there was no offense here to commit.

Cases almost universally reject this argument today. They do so because they focus not on what the defendant was actually doing, but instead on what he believed he was doing. Thus, in both Darr and Church, the defendants believed they had done all they needed to to commit a criminal offense. The fact that some external factor prevented the commission of the offense, most courts hold today, should not apare them from criminal liability.

This result reflects the impact of the MPC rules on attempt. Do you see where in the Code it rejects impossibility as a defense to attempt charges? Is this the right result in a case like Church or Darr?