State v. Adams, CA-CR
| Decision Date | 27 August 1987 |
| Docket Number | CA-CR |
| Citation | 155 Ariz. 117,745 P.2d 175 |
| Parties | STATE of Arizona, Appellee, v. Alfred Richard ADAMS, Appellant. 110000. |
| Court | Arizona Court of Appeals |
Appellant was charged with attempted first degree murder of his wife. Following a jury trial, he was convicted of attempted second-degree murder. The state had also alleged a prior dangerous offense. Appellant was sentenced to a presumptive term of 15.75 years, the presumptive term for conviction of a class 2 dangerous offense with a prior dangerous offense conviction.
The charges in this case were filed against the appellant following a shooting incident in which he shot his wife in the back outside of a pizza parlor where she worked. The appellant entered the pizza parlor, and handed his wife a note which stated she should leave with him or he would kill her. He also showed the victim that he had a pistol in his hand. They left the pizza parlor together and once outside, the victim knocked the appellant's arm from her and started to run away. There were several eyewitnesses to the shooting who testified that as the appellant's wife ran from him, he stated, "This one is for you, baby." He then appeared to point the weapon at his wife and fired a shot at her which struck her in the upper back.
The witnesses testified that after the first shot was fired, the victim ducked behind a pillar in front of the pizza parlor and appellant ran towards her while attempting to remove a shell from the pistol which had become jammed. Several of the witnesses also testified that appellant appeared to have full control of himself and did not appear to be intoxicated.
The witnesses also testified that they saw appellant go to where his wife was hiding behind the pillar and attempt to unjam the weapon. He continued to point the weapon at her. When several people attempted to approach the appellant, he pointed the gun at them and the victim, and stated that he would kill them. Appellant initially denied shooting the victim, then later admitted that he had pointed his gun at her but claimed that he had not intended to shoot her. He also admitted that he had raised the gun and fired at his wife while she was running away from him and that the gun had then jammed.
On appeal, appellant argues:
1. He was entitled to instructions and forms of verdict as to the offenses of attempted manslaughter and attempted negligent homicide;
2. He was denied his right to cross-examine the witnesses;
3. The trial court erroneously considered his prior California conviction as a "dangerous" prior conviction.
Relying on State v. Galan, 134 Ariz. 590, 658 P.2d 243 (App.1982), appellant argues that the trial court erred in refusing to instruct the jury on the alleged offenses of attempted manslaughter and attempted negligent homicide. Although recognizing that Galan left open the question of whether the offenses of attempted reckless manslaughter or attempted negligent homicide were cognizable offenses in Arizona, appellant argues that the trial court should have adopted the reasoning set forth in that opinion. The state argues, relying on Rhode v. State, 181 Ind.App. 265, 391 N.E.2d 666 (1979), that the crimes of attempted reckless homicide and attempted negligent homicide are nonexistent under the statutory scheme in Arizona. 1
In Rhode, the state appealed, arguing that the offense of reckless homicide was cognizable under the statutes in Indiana. The court, citing R. Perkins, Criminal Law 573-74 (2d ed. 1969), noted that "an attempt to commit any crime requires a specific intent to commit that particular offense." Rhode, 181 Ind.App. at 267, 391 N.E.2d at 668. In addition, the court noted that their statutory language defining "attempt" and "recklessness," paralleled that contained in the American Law Institute's Model Penal Code § 5.01 (Tent. Draft No. 10, 1960). The comments following § 5.01 limited the crime of attempt to "purposive" conduct, and stated that an attempt required "intent in fact" or "specific intent" to commit the crime allegedly attempted. The Model Penal Code specifically declared "reckless conduct" to be outside the coverage of the attempt statute. Rhode, 181 Ind.App. at 267, 391 N.E.2d at 668.
Where it is clear that the legislative scheme intends to restrict an "attempt" statute to intentional conduct, as ours does in A.R.S. § 13-1001(A)(2), then there must be "intent in fact" or "specific intent" to commit the crime attempted. In Rhode, the court held that the reckless homicide statute did not require an intent to accomplish a result which would constitute a crime. The statute in Rhode provided in part: "A person who recklessly kills another human being commits reckless homicide, a class C felony." Rhode, 181 Ind.App. at 266, 391 N.E.2d at 667. That statute is essentially the same as A.R.S. § 13-1103(A)(1). The Indiana statutes also set out definitions of culpable mental states: intentional, knowing, and reckless. Reckless was defined as follows: "A person engages in conduct 'recklessly' if he engages in the conduct in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct." Rhode, 181 Ind.App. at 267, 391 N.E.2d at 667 (quoting Ind. Code § 35-41-2-2 (Burns 1971 & Supp.1979)). The mental state of "recklessness" was demonstrated in Rhode by the defendant's disregard for the harm that might result. That is essentially the same result under our statutes. See A.R.S. § 13-105(6)(c). The question then arises as to whether our attempt statute requires either "intent in fact" or "specific intent." Our attempt statute states:
A. A person commits attempt if, acting with the kind of culpability otherwise required for commission of an offense, such person:
....
2. Intentionally does ... anything which ... is any step in a course of conduct planned to culminate in commission of an offense....
A.R.S. § 13-1001 (emphasis added).
Clearly, the statute, like the Model Penal Code and the statute discussed in Rhode, requires the actor to engage in "purposive" conduct. The relevant portion of the attempt statute applies to a person who has planned the commission of an offense and intentionally takes any step toward accomplishing the commission of the offense. Planning to commit an offense, in this case a homicide, is clearly different from disregarding a substantial risk that a result is highly likely to occur. See also State v. Melvin, 49 Wis.2d 246, 249-50, 181 N.W.2d 490, 492 (1970) ().
In Melvin, the court held that in order to commit an "attempt" a defendant must have an intent to perform acts and to achieve a result which, if accomplished, would constitute the crime. The court concluded that recklessness did not require any intent to achieve a result and that consequently one could not attempt to commit a crime which only required reckless conduct and not a specific intent. Melvin, 49 Wis.2d at 250, 181 N.W.2d at 492. See also People v. Krovarz, 697 P.2d 378, 381-82 n. 9 (Colo.1985) ()
The use of the term "planned" in A.R.S. § 13-1001(A)(2) clearly anticipates an intentional act or step by a defendant which is "planned," that is, designed or intended to culminate or end in the commission of an offense. The court in Galan, in declining to express an opinion as to whether the crimes of attempted manslaughter or negligent homicide were cognizable offenses under Arizona law, discussed that portion of our attempt statute that concerned the defense of impossibility, A.R.S. § 13-1001(A)(1). Galan involved a defendant who intentionally did certain acts and did them with a reckless state of mind as to the status of property. The court noted that the offense in Galan was not truly a preparatory crime but a completed offense which the legislature simply chose to define as an attempt where the status of the property was different from that contemplated by the defendant. 134 Ariz. at 593, 658 P.2d at 246. The court agreed with those cases, including Rhode, which have expressed the idea that there is no such criminal offense as an attempt to achieve an unintended result. 134 Ariz. at 592, 658 P.2d at 245. For the above reasons, we conclude that there is no such offense as attempted reckless manslaughter in the State of Arizona.
For the same reasons, we conclude that the offense of attempted negligent homicide is not cognizable under Arizona laws. See State v. Adams, 210 La. 782, 786-87, 28 So.2d 269, 270-71 (1946) (); State v. Williams, 435 So.2d 1047, 1049 (La.App.1983) (). Arizona's negligent homicide statute, A.R.S. § 13-1102, imposes liability if a person, with criminal negligence, causes the death of another person. Criminal negligence is defined in A.R.S. § 13-105(6)(d) as a failure to perceive a substantial and unjustifiable risk that a result will occur. Clearly, the attempt statute is by its plain terms...
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