State v. Maestas
| Decision Date | 21 July 1982 |
| Docket Number | No. 17751,17751 |
| Citation | 652 P.2d 903 |
| Parties | The STATE of Utah, Plaintiff and Appellant, v. Clyde MAESTAS, Defendant and Respondent. |
| Court | Utah Supreme Court |
Ted Cannon, James F. Housley, David L. Wilkinson, Atty. Gen., Robert N. Parrish, Asst. Atty. Gen., Salt Lake City, for plaintiff and appellant.
Ronald J. Yengich of O'Connell & Yengich, Salt Lake City, for defendant and respondent.
The state appeals from an order by the trial court dismissing a charge of attempted murder against defendant in spite of a jury verdict finding him guilty. The state seeks reinstatement of the jury verdict.
On February 20, 1980, defendant allegedly robbed a bank and attempted to escape in a black van. As defendant drove south on State Street at about 650 South, he passed Sergeant Cecil Throckmorton of the Salt Lake City Police Department, who had stationed his car on the island in the center of the street and was standing beside the car awaiting defendant's approach. As defendant's van passed him, Sergeant Throckmorton fired a shot with his shotgun into the front of the van in an unsuccessful attempt to disable it. A few seconds later, as he drove away from Sergeant Throckmorton, defendant allegedly leaned out of the van window holding a 38-caliber revolver and fired it at the officer. Defendant drove several blocks further before crashing into a parked car, at which time he was apprehended by other police officers.
Defendant was charged with attempted first degree murder. At the conclusion of his trial, he filed a motion to dismiss, which the court denied. The jury then deliberated, returning a verdict of guilty. On the date set for defendant's sentencing, he renewed his motion to dismiss. The court granted defendant's motion on the ground that "specific intent to kill could not properly be inferred from the evidence."
U.C.A., 1953, 76-5-202(1) describes the elements of first degree murder:
Criminal homicide constitutes murder in the first degree if the actor intentionally or knowingly causes the death of another under any of the following circumstances:
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(d) The homicide was committed while the actor was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit, aggravated robbery, robbery, rape, forcible arson, aggravated burglary, burglary, aggravated kidnapping or kidnapping.
(e) The homicide was committed for the purpose of avoiding or preventing an arrest by a peace officer acting under color of legal authority or for the purpose of effecting an escape from lawful custody. [Emphasis added.]
Thus, in order to find defendant guilty of attempted first degree murder, the jury was required to determine beyond a reasonable doubt that he "intentionally or knowingly" attempted to kill Sergeant Throckmorton under one of the circumstances listed above.
Defendant founds his argument for dismissal on the theory that the crime of attempted murder requires a stronger showing of intent than does the crime of murder itself. This theory derives from the common law rule that intent is a necessary element of every "attempt" crime even where the corresponding completed crime does not require intent as an element. As an example, defendant cites cases which discuss the common law rule that there is no crime of "attempted felony murder" because of the fact that felony murder requires no specific intent to kill, while an "attempt" crime must always consist of an intent to commit the corresponding completed crime accompanied by a substantial step toward realization of that crime. 1 Defendant then attempts to carry this rule one step further by asserting that the crime of attempted first degree murder with which he is charged requires a "specific intent" beyond that which would have been required in order to prove first degree murder itself if an actual death had occurred. Defendant does not argue that the evidence concerning intent would have failed to support a first degree murder conviction in the event of actual death, but rather that such evidence fell short of establishing the stronger "specific intent" allegedly required for the crime of attempted first degree murder.
Defendant's argument ignores the fact that common law definitions of criminal behavior have no application in this jurisdiction. The criminal code of this state explicitly abolishes all common law crimes 2 and our legislature has expressed its intention that its statutes be construed liberally even when they conflict with the common law. 3 U.C.A., 1953, 76-4-101(1) defines the crime of "attempt" as follows:
For purposes of this part a person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for the commission of the offense, he engages in conduct constituting a substantial step toward commission of the offense. [Emphasis added.]
The above statute makes it clear that regardless of any requirements which the common law may impose concerning "attempt" crimes, Utah law requires only "the kind of culpability otherwise required for the commission of the [completed] offense." Thus, there can be no difference between the intent required as an element of the crime of attempted first degree murder and that required for first degree murder itself.
Even if the common law rule of attempt governed this Court's interpretation of the elements of that crime, that rule would not require the result urged by defendant here. That rule differentiates between the intent requirements for an attempted and a completed crime only where the completed crime may be committed without the intent to commit that crime in particular, as in the case of felony murder. 4 Where an intent to commit the particular crime committed is an element of the completed crime, the same intent requirement applies to the corresponding "attempt" crime, even at common law. Thus, Utah's first degree murder statute, which does contain such an intent requirement, would not fall within the rule cited by defendant even under common law principles.
Following the jury's finding that defendant had "intentionally or knowingly" attempted murder, the trial court had authority to enter a judgment contrary to that finding only if it found that no substantial evidence existed to support that verdict. In State v. Penderville, 5 this Court declared:
It has been repeatedly held by this court that upon a motion to dismiss or to direct a verdict of not guilty for lack of evidence that the trial court does not consider the weight of the evidence or credibility of the witnesses, but determines the naked legal proposition of law, whether there is any substantial evidence of the guilt of the accused, and all reasonable inferences are to be taken in favor of the state. [Emphasis added.]
Thus, if any substantial evidence before the court supported the jury's guilty verdict, the court erred in granting defendant's motion to dismiss. 6
The evidence tending to indicate that defendant intentionally fired his revolver at Sergeant Throckmorton consisted of a revolver, a photograph and testimony by three witnesses. Sergeant John Bernardo of the Salt Lake County Sheriff's Office testified that in investigating the scene of defendant's arrest he found a small revolver lying on the running board of the van next to the driver's seat. According to Sergeant Bernardo, the revolver contained four live rounds of ammunition and one fired casing and smelled of fresh nitrite, indicating that it had been fired recently. Sergeant Bernardo identified the revolver, the empty casing and a photograph showing the position of the revolver at the time of his discovering it, and the court received these items as evidence.
Sergeant Throckmorton, defendant's alleged target, testified that after passing him in the van, defendant continued to drive south for roughly one-half of a block and then veered somewhat to the left. At that moment, Sergeant Throckmorton reported hearing "a snap and a bang" which he identified as a gunshot. He testified that he could see the side of defendant's head and knew that defendant was looking back at him, although he did not see defendant's hand or a revolver. Sergeant Throckmorton testified that he had spent hundreds of hours on police firing ranges as a firearms instructor, that he was capable of determining the direction in which a projectile was traveling from its sound and that he heard the gunshot travel past him.
Salt Lake City police officer Dave Madsen, who possessed similar experience in working with firearms, testified that from a position of approximately 75-100 feet behind the van, he heard a...
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