Abandoning an attempt to do the unintended: applying the abandonment defense to attempted homicide offenses with no intent-to-kill element.

AuthorSanders, Richard

Section 777.04(5)(a) creates a defense to an attempt offense if, "under circumstances manifesting a complete and voluntary renunciation of his or her criminal purpose, the defendant ... [a]bandoned his or her attempt to commit the offense...." This article considers this defense as applied to the offenses of attempted second-degree murder and attempted manslaughter, neither of which has an intent-to-kill element. One of two results seems to follow when we apply the defense to these offenses: 1) The defense will never be available because, in the absence of an intent-to-kill element, there is no unfulfilled "criminal purpose" that the defendant can abandon in order to raise the defense; or 2) the defense will apply in any case in which the defendant voluntarily decided not to kill even though he never intended to kill (which, since intent-to-kill is not an element, will probably occur in most cases).

Neither alternative is desirable. But the problem here is not the existence of the defense. The problem is that an attempted homicide offense with no intent-to-kill element is an illogical concept.

Part I of the article notes the problems with recognizing an attempted homicide offense with no intent-to-kill element. The main problem is determining what acts that might-have-but-did-not cause death are included in the attempt offense. This requires juries to speculate on what might have happened if the facts of the case were changed. Such a hypothetical test cannot be rationally and consistently applied. A second problem is one discussed in this article.

Part II discusses the abandonment defense. This defense excuses defendants for crimes already committed (the attempt) and it is designed to encourage defendants not to cause greater harm by fulfilling their original intent (committing the completed offense). But the defense is available only if there is something still left to do from the original intent that can now be abandoned. If there is nothing left to do, there is nothing to abandon. If there is nothing to abandon, there is no defense.

Part III summarizes the Florida cases that have affirmed convictions for attempted second-degree murder and exposes the problems with trying to apply the abandonment defense in such cases. Part IV considers several non-Florida authorities that say this defense is not available if, before the abandonment occurred, either the victim was injured or the defendant fired a firearm. It will be argued that Florida should not recognize such exceptions, primarily because nothing in the language of [section]777.04(5) supports any exceptions. The article concludes that because of these problems, the Florida Supreme Court should recede from the cases that recognized attempted homicide offenses with no intent-to-kill element.

Attempted Homicide Offenses With No Intent-to-Kill Element

Under F.S. [section]777.04(1), "the offense of criminal attempt" occurs when one "attempts to commit an offense ... and in such attempt does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof...." The attempt offense has two elements: "[An] inten[t] to commit the offense and commit[ing] an overt act toward its completion." (1) It is logically impossible to intend to do something one does not intend to do, such as cause an unintended result. Thus, it seems to be logically impossible to attempt to commit an offense that has an element of causing an unintended result (because one cannot intend to cause that result and, thus, cannot intend to commit the offense).

However, in Brown v. State, 790 So. 2d 389, 390 (Fla. 2001), the court held there is an offense of attempted second-degree murder, and it has no intent-to-kill element but rather only requires proof that the defendant "intentionally committed an act which would have resulted in the death of [the victim] except that someone prevented him from killing...or he failed to do so...." In Williams v. State, 123 So. 3d 23, 27 (Fla. 2013), the court held there is an offense of attempted manslaughter, which also "does not require [proof of] an intent to kill." The court later approved standard jury instructions for attempted manslaughter that contain the same "would have resulted" language from Brown. (2)

Florida is one of very few states to recognize an attempted homicide offense with no intent-to-kill element. Courts in other states say homicide offenses with no intent-to-kill element cannot be attempted because one cannot "attempt to commit an act which one does not intend to commit" (3) or "attempt to achieve an unintended result." (4) "An attempt, by nature," said one court, "is a failure to accomplish what one intended to do":

Attempt means to try; it means an effort to bring about a desired result....The concept of attempt seems necessarily to involve the notion of an intended consequence, for when one attempts to do something one is endeavoring or trying to do it. Hence, an attempt requires ... an intended consequence. (5)

As stated in State v. Gray, 654 So. 2d 552, 553 (Fla. 1995), the primary problem with recognizing an attempted homicide offense with no intent-to-kill element is the "difficult[y] with determining what constitutes an 'overt act' that could, but does not, cause death." How do we determine whether an act that did not kill could (or would) have killed? "Could or would have killed" means "could or would have killed if the facts were different both from what they actually are and from what was intended." How can we rationally apply such a hypothetical test?

Many actions that did not kill could or would kill if the facts were changed. Driving recklessly or drunk, a single punch to the head, (6) a slashing wound, a gunshot, a blow with a blunt object --all could or would kill if a child runs in front of the car, if one's arm shakes or is jostled as the trigger is pulled or the knife is plunged, if bullets ricochet, if the victim ducks one way rather than another and the blow hits the right spot, if the wound gets infected and goes untreated. Most homicide offenses outlaw, not specific acts, but any act that causes death. Severing the act committed from the intent to cause the result leaves us no principled way to determine which, of the innumerable acts that could or would (if they caused death) prove the completed offense, also prove an attempt. (7)

The Gray court recognized this problem when it receded from Amlotte v. State, 456 So. 2d 448 (Fla. 1984), and held that Florida would no longer recognize an offense of attempted first-degree felony murder (which, the Amlotte court said, had no intent-to-kill element but rather only required proof of an act that "could, but does not, cause ... death"). (8) The Gray court said "the more logical and correct position" here was the position advocated by the Amlotte dissent, which is that attempted felony murder is "a crime requiring one to intend to do an unintended act which is a logical absurdity." (9)

But in Brown and Williams, the court did not explain why this "more logical and correct position" would not also apply to attempts to commit second-degree murder and manslaughter. How are the problems identified in Gray eliminated by changing the could-have test to a would-have test, or by renaming the offense from attempted felony murder to attempted second-degree murder or attempted manslaughter? Attempted second-degree murder is a permissive lesser offense of attempted first-degree felony murder, (10) and attempted manslaughter is a necessary lesser offense. (11) Thus, any set of facts that would prove attempted first-degree felony murder may (depending on the precise facts in the case) prove attempted second-degree murder and would necessarily prove attempted manslaughter. Neither Brown nor Williams cited Gray, much less tried to distinguish it.

A related problem, which is relevant to the issue discussed in this article, is found in the standard jury instructions for attempted second-degree murder and attempted manslaughter. Both offenses require proof that the defendant "committed an act which would have resulted in the death of (victim) except that someone prevented (defendant) from killing (victim) or [he][she] failed to do so." (12) But how can one "fail to do," or be "prevented from doing," something one never intended to do? Would we say that all but a handful of people have "failed" to play center for the Boston Celtics even though only a slightly larger handful ever tried to achieve that goal? Or that "someone prevented" all those non-Celtic centers from achieving this goal that they never attempted to achieve?

The elements of the abandonment defense give rise to a similar conundrum. How does one "renounce the purpose to do," or "abandon an attempt to commit," or "prevent to commission of," (13) something one never intended to do, i.e...

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