State v. Bell
| Decision Date | 28 November 1989 |
| Docket Number | No. 870150,870150 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Gerald Glen BELL, Defendant and Appellant. |
| Court | Utah Supreme Court |
M. Cort Griffin, Pleasant Grove, for defendant and appellant.
David L. Wilkinson, Sandra L. Sjogren, Salt Lake City, for plaintiff and appellee.
Defendant appeals his convictions of attempted second degree murder 1 and aggravated robbery 2 and the dual sentences imposed. The principal issues on appeal are (1) whether intent is an element of proof of attempted second degree felony-murder, and (2) whether the statutory procedure which permits the prosecution of juveniles as adults is constitutional.
In October 1986, defendant and D.P., both seventeen years of age, stopped at a service station in Fillmore, Utah, for the purpose of committing a theft. Defendant put gas in the car and then went inside with a gun concealed in his waistband. He took a six-pack of soda pop out of the cooler and placed it on the sales counter along with a package of cigarettes. He then asked the attendant, Carley Penney, for another package of cigarettes from the shelf behind her. When she turned around with the cigarettes, defendant shot her in the head. The gun used was a single action Ruger pistol which is normally fired by first pulling the hammer back to cock it and then pulling the trigger. However, the pistol can also be fired by holding the trigger back while releasing the hammer.
Defendant left, taking the products without paying for them. When he got back in the car, D.P. asked, "What happened?" Defendant responded, "I shot her." When asked "Where?" he said, "In the head." D.P. asked if she was dead, and defendant answered, "Yeah, I think so." The station attendant did not die, nor did her unborn child, which was taken by Caesarean section. Defendant and D.P. were arrested later in the evening in Cedar City, Utah.
Defendant was initially charged, directly in the district court, 3 with one count of aggravated robbery 4 and two counts of attempted first degree murder during the commission of a robbery. 5 The juvenile court thereafter denied defendant's motion to recall jurisdiction, 6 and the State subsequently amended the information to charge defendant with one count of attempted second degree felony-murder 7 and one count of aggravated robbery. 8
Following a bench trial which proceeded on the basis of the stipulated facts hereinabove recited, the trial judge concluded that the shooting was intentional. Thereafter, he sentenced defendant to a term of one to fifteen years for the attempted murder and to a term of five years to life for the aggravated robbery, the sentences to run concurrently.
Defendant moved to vacate the conviction and sentence for aggravated robbery, in part relying upon this Court's decision in State v. Shaffer 9 for the proposition that robbery was a predicate offense that merged into the offense of attempted felony-murder. This apparently prompted the State to seek and obtain a further amendment of the information, charging defendant with the intentional offense of attempted second degree murder, 10 so as to conform the information with the convictions and sentences already imposed by the court. The facts of this case differ significantly from those in Shaffer, inasmuch as in Shaffer the offense of murder was in fact committed, not merely attempted. For that reason, Shaffer is not supportive of defendant's position.
Utah Code Ann. § 76-5-203 (Supp.1989) provides in pertinent part:
(1) Criminal homicide constitutes murder in the second degree if the actor:
(a) intentionally or knowingly causes the death of another;
...;
(d) while in the commission [or] attempted commission ... of aggravated robbery....
(2) Murder in the second degree is a felony of the first degree.
Utah Code Ann. § 76-4-101(1) (1978) provides that a person is guilty of an attempt to commit the crime if, acting with the kind of culpability otherwise required for the commission of the offense, he or she engages in conduct constituting a substantial step toward the commission of the offense.
In the instant case, the State elected to charge and try defendant for attempted second degree felony-murder in violation of section 76-5-203(1)(d) rather than for the intentional offense of attempted second degree murder as provided by section 76-5-203(1)(a). It is apparent from the record that this was done in an effort to avoid the burden of having to prove intent to kill. This is to be seen in that prior to trial, the judge made the observation that it would seem that attempt crimes could only be committed with requisite intent. However, counsel on both sides were of the view that intent was not an issue or an element of proof of the offense of attempted second degree felony-murder as charged. Indeed, defense counsel took the position that although defendant intentionally pointed the gun at the victim, he did not intend to fire it and that if the State were to prove that the shooting was intentional, it would simply have proven more than was required to convict of attempted second degree felony-murder as charged. Defendant cited and relied upon State v. Hansen 11 in support of his position. The State also relied upon the felony-murder doctrine espoused in Hansen for the proposition that intent is not an element of proof of felony-murder.
The facts of this case are also materially different from those of Hansen, because in Hansen, as in Shaffer, the offense of felony-murder was in fact committed. The issue thus presented is whether the principles of felony-murder applied in Shaffer and Hansen have equal application to the offense of attempted murder. We conclude that they do not.
The crime of attempted murder does not fit within the felony-murder doctrine because an attempt to commit a crime requires proof of an intent to consummate the crime, 12 and numerous courts have held that the crime of attempted murder requires proof of intent to kill. 13 At least two other states with attempt statutes similar to Utah's have determined that attempted murder requires a specific intent to kill. In State v. Huff, 14 the Supreme Court of Maine interpreted its attempt statute, which provides in part:
A person is guilty of criminal attempt if, acting with the kind of culpability required for the commission of the crime, and with the intent to complete the commission of the crime, he engages in conduct which, in fact, constitutes a substantial step toward its commission. 15
(Emphasis added.) The court held:
Where a discrepancy exists in the culpable mental states between criminal attempt and the offense attempted, the criminal attempt to commit such a crime is a "logical impossibility." ... Before a person can be convicted of attempted murder, he must act with the intent to cause the death of another human being. 16
Likewise, in Head v. State, 17 the Supreme Court of Indiana interpreted an attempt statute similar to Utah's:
A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime. 18
In that case, an attempted murder was committed during the course of a robbery. The court analyzed the history and purpose of the felony-murder rule and concluded:
[W]hether the underlying felony has been completed or attempted, the felony-murder rule cannot be applied unless the death of another occurred by virtue of the commission or attempted commission of the underlying felony. In other words, absent death the applicability of the felony-murder rule is never triggered....
....
... We do not believe the fact that bodily injury has occurred in the commission or attempted commission of one of [the felonies which trigger the felony-murder rule] warrants the presumption that, as a matter of law, the perpetrator possessed the mens rea requisite to murder....
....
... It does not follow that in purely arbitrary circumstances, the legislature intended to create a discretionary vehicle whereby the state could seek a conviction for attempted murder without an obligation to prove the intent to kill. 19
Other courts have also held that the crime of attempted felony-murder does not exist. 20 Indeed, in the face of logic, the conclusion is inescapable that the crime of attempted murder requires proof of intent to kill. Therefore, we also hold that attempted felony-murder does not exist as a crime in Utah.
The trial in this case did not proceed in the usual fashion. Rather, defendant was tried on stipulated facts presented to the trial judge. After evaluating the facts and hearing arguments from both sides, the court found defendant guilty of attempted second degree murder, but not on the basis of the felony-murder doctrine alleged in the information. In issuing his ruling, the trial court stated:
The Court also finds that the defendant is guilty of the alleged offense of Attempted Murder in the Second Degree....
....
And also the Court finds that the Attempted Second Degree Homicide was committed by the defendant in that at the time he was in the course of committing the robbery offense, he pointed a loaded .22 pistol at the head of the [victim] and caused the same to be discharged while so pointing it, which leaves the Court to conclude that that was an act done intentionally, intending to shoot her and cause her death.
And the Attempted Second Degree Homicide offense is complete by that finding.
As to whether or not there would be a sufficient Attempt provided for through the operation of a felony in the murder doctrine, of course, the Court is not taking any position on that.
But the Court is convinced that the act of the shooting was an intentional act. Therefore, the Attempted Second Degree Homicide charge is established and the Court finds the defendant guilty.
(Emphasis added.) The court entered written findings and conclusions...
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