In State v. Perry, decided April 21, 2021, the SC Court of Appeals reversed an attempted murder conviction because the trial court gave an incorrect and confusing jury instruction as to the intent required.
Attempted murder, or any “attempt” crime, requires a specific intent to commit the crime that was attempted. For example, attempted murder requires a specific intent to murder someone – you can’t accidentally attempt to murder someone.
In every criminal trial, it is critical that you 1) ensure that the court gives the appropriate jury instruction for the intent required, 2) object and preserve the record for appeal if the court does not, and 3) effectively explain the intent that is required (and why your client did not have it) to the jurors.
What are the different types of criminal intent that must be proven in SC criminal cases?
Different Types of Criminal Intent
In most cases, accident is a complete defense to allegations that you committed a crime. With few exceptions, it just doesn’t make sense to punish a person for something that they didn’t intend to do…
There are some situations where no criminal intent is required for a conviction, but, in most cases, the prosecution must prove either 1) a general criminal intent or 2) a specific criminal intent that is found in the SC Code for that particular crime.
There are situations where the prosecution does not have to prove any intent. Speeding is one example – it doesn’t matter if you were purposefully speeding or if you just weren’t paying attention. If you were exceeding the speed limit, you can be convicted of speeding.
Another example is statutory rape. If you have sex with a minor, it doesn’t matter if you knew that they were a minor. It doesn’t matter if they consented to the sex. It doesn’t matter if they told you they were old enough. If they are under the age of consent, it is considered rape regardless of your intent or state of mind.
There are other situations that require proof of recklessness – for example, if you cause someone’s death “by the driving of a vehicle in reckless disregard of the safety of others,” you could be convicted of reckless homicide even though you had no intent to kill a person.
Similarly, you can be convicted of manslaughter although you did not intend to kill a person, where the death occurred “in the heat of passion” and “upon sufficient legal provocation.”
Where the criminal statute does not specify the criminal intent required, the prosecution must still prove that there was a “general criminal intent,” and, if they do not, the defendant should be acquitted at trial.
Other crimes in SC require proof of a specific intent that is provided in the criminal statute. For example, murder requires proof that the person was killed with “malice aforethought,” either express or implied.
Attempted murder, on the other hand, requires proof of intent to kill another person and malice aforethought. Whereas the specific intent to kill required for murder is “malice aforethought,” the specific intent required for attempted murder is the intent to kill with malice aforethought.
Attempted Murder Charges Require Proof of Specific Intent
In Perry, the defendant ran from police and fired two shots from a pistol as he ran. He said he fired the shots accidentally.
The officer at trial said that Perry fired at least one shot directly at him. The officer then had to change his testimony when confronted with his prior statement that said Perry had fired in the air as well as another officer’s testimony that Perry fired his pistol into the air.
At trial, Officer Taylor testified Perry fired directly at him once. Officer Taylor opined that it was not an accidental discharge and Perry was trying to shoot him in order to escape. On cross-examination, Officer Taylor acknowledged that his written statement about the incident provided that Perry fired the first shot in the air. He indicated he perceived Perry as pointing the weapon at him with the intent to kill. Officer Bailey testified he also pursued Perry and observed Perry fire twice in the air.
If you fire a pistol into the air as you run from police officers, you are committing several very serious crimes. But attempted murder is not one of them – if Perry fired the shots into the air, he clearly did not intend to kill the officer.
At first, the trial court gave an appropriate instruction to the jurors, telling them that “[a] person who with intent to kill attempts to kill another person with malice aforethought, either express or implied, commits the offense of attempted murder.”
Perfect. That’s what SC law says about the intent required for attempted murder. The problem arose when the jurors returned with several questions during deliberations, asking the Court to further explain the law of attempted murder, what malice means, and the definition of intent.
In response, the judge brought the jurors back to the courtroom and read a passage from Black’s Law Dictionary to them:
“Intent. The state of mind accompanying an act, especially a forbidden act. While motive is the inducement to do some act, intent is the mental resolution or determination to do it. When the intent to do an act that violates the law exists motive becomes immaterial.”
By reading this passage in response to the juror’s question, the Court did away with the specific intent required by the statute, the intent to kill, and confused the jurors with an unnecessary discussion of motive and a jury instruction that described “general criminal intent” instead of the specific intent required.
The Court of Appeals points out that the intent required for attempted murder is greater than the intent required for murder:
…the General Assembly created the offense of attempted murder by purposefully adding the language ‘with intent to kill’ to ‘malice aforethought, either express or implied’ to require a higher level of mens rea for attempted murder than that of murder.
Also, every attempt crime necessarily has a specific intent:
…the crime of attempt is commonly regarded as a specific intent crime and as it is logically impossible to attempt an unintended result, prosecutions are generally not maintainable for attempts to commit general intent crimes, such as criminal recklessness, attempted felony murder, or attempted manslaughter.
The very nature of an attempt crime is the intent to commit a specific crime although the attempt was unsuccessful…
Criminal Defense Lawyer in Conway, SC
Attorney Johnny Gardner has over twenty years of trial experience defending against criminal charges in SC courtrooms.