Attempting the unintended: the problems with recognizing an attempted homicide offense that does not require proof of an intent-to-kill.

• Author: Sanders, Richard

1. INTRODUCTION AND SUMMARY: THE ATTEMPT LOGIC

   Start with a simple syllogism: (1) The mental element of the Florida "offense of criminal attempt" (2) is an "inten[t] to commit [an] offense"; (3) (2) it is logically impossible to intend to do something that one does not intend to do, such as intend to cause an unintended harm; so therefore (3) "[t]here is no such criminal offense as an attempt to achieve an unintended [harm]," (4) because it is logically impossible to intend, and thus to attempt, to commit an offense that has an element of causing-unintended-harm. Call this the attempt logic.

   Most courts accept this logic as to homicide offenses, concluding that one cannot attempt to commit a homicide offense unless one intends to kill another. (5) As one court put it, "An attempt, by nature, is a failure to accomplish what one intended to do. Attempt means to try; it means an effort to bring about a desired result." (6) "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." (7)

   But in Brown, a sharply divided (4-3) Florida Supreme Court recognized an offense of attempted second-degree murder with no intent-to-kill element, which occurs when one "commit[s] an act which would have resulted in the death of another except that someone prevented [one] from killing ... or [one] failed to do so...." (8) A few years later, a unanimous Florida Supreme Court recognized an attempted manslaughter offense with no intent-to-kill element, which also requires proof that one committed an act that would have resulted in death, except that someone prevented one from killing or one failed to do so. (9) This article primarily addresses the logic of Brown, although essentially the same arguments apply to Williams.

   The Brown Court did not consider two arguments that would compel the conclusion that the Florida attempt statute cannot be applied to second-degree murder. First, Brown conflicts with State v. Gray, 654 So. 2d 552 (Fla. 1995), and with Knight v. State, 28 So. 759 (Fla. 1900) and its progeny. Second, recognizing an offense of attempted second-degree murder with no intent-to-kill element causes serious problems, including the same problem that led the Gray Court to hold that Florida would no longer recognize an offense of attempted felony murder.

   1. THE CONFLICT IN THE CASE LAW

      The Gray Court accepted the attempt logic when it receded from Amlotte v. State (10) and held that Florida would no longer recognize an offense of attempted felony murder. The problem in Amlotte was that it recognized an attempted homicide offense with no intent-to-kill element, which the Gray Court said is "troublesome" because that creates "difficulties with determining what constitutes an 'overt act' that could, but does not, cause [another's death]." (11)

      But the Brown Court rejected the attempt logic and concluded that one can attempt to unintentionally kill another. Brown and Gray conflict. (12) Brown also conflicts with Knight, el al., which adopted the attempt logic with regard to the Florida offense of assault-with-intent-to-commit-a-felony ("AWIC"). (13) Beginning with Knight, many Florida cases held that the offense of AWIC-second-degree murder has an intent-to-kill element because it is logically impossible to assault another with the intent to unintentionally kill the other.

      The AWIC offense is quite similar to the attempt offense. One can commit an attempt without also committing an assault, which means that all attempts-to-commit-a-felony are not necessarily also AWICs. But all AWICs are also attempts, because the assault element of an AWIC offense is the overt act that proves the attempt offense. In effect, an attempt is a type of lesser-included-offense of an AWIC; put another way, an AWIC is a specialized version of an attempt, in the way that a statute that expressly outlawed killing another with a firearm would be a specialized version of murder.

      Given this, the mental elements for attempted-homicides and AWIC-homicides should be the same. But with second-degree murder (and manslaughter) in Florida, they are not; intent-to-kill is an element of the AWIC offense but not of the attempt offense. Brown conflicts with the AWIC cases.

   2. THE PROBLEMS CREATED BY REJECTING THE ATTEMPT LOGIC

      The main problem with rejecting the attempt logic for attempted (and AWIC) homicide offenses is that there is no principled way to determine what acts that would-have-but-did-not-cause-death prove the attempt offense. Without an intent-to-kill element, to determine whether an act proves an attempted homicide we must ask whether death would-have-resulted if the facts were different both from what they actually were and from what the defendant intended. We cannot consistently apply such a vague and hypothetical test.

      Further, any set of facts that might prove attempted second-degree murder would, if they occurred during a qualifying felony, also prove the Amlotte offense of attempted felony murder. But the problem with Amlotte arose, not because the acts occurred during a felony, but because the attempted felony murder offense had no intent-to-kill element. The same problems that prompted Gray to recede from Amlotte will occur with attempted second-degree murder (because it also has no intent-to-kill element). The problems noted in Gray are not solved simply by renaming the offense from attempted felony murder to attempted second-degree murder.

      Rejecting the attempt logic causes other problems as well. It affects the statutory abandonment defense to the Florida attempt offense, which allows one to "un-commit" an attempt offense already committed by abandoning the original intent to commit the completed offense. (14) But with attempted homicide offenses with no intent-to-kill element, there is nothing to abandon. If one never intended to kill, then the commission of the actus reus element of the attempted homicide offense fulfills the original intent (which was to commit a different offense, such as aggravated battery). If there is no intent to abandon once the attempt actus reus is committed, then the defense will not be available for attempted second-degree murder. (15)

      Or we might say that the abandonment defense is always available for attempted second-degree murder, at least when it is clear that one voluntarily decided not to kill. In such cases, there was something left to do--kill--and one voluntarily decided not to do that. But now we are saying that the defense is established because one abandoned the intent to do something that one never intended to do; and the intent to do that something (that one never intended to do) is not an element of the crime that one allegedly attempted. How can this be considered an abandonment of the crime attempted?

      There will also be problems if we try to apply the reasoning of Brown to attempts to commit other offenses with unintended-harm elements, such as DUI-manslaughter; or to the other inchoate offenses in section 777.04, Florida Statutes (conspiracy, solicitation), which have the same intent-to-commit-crime element as the attempt offense. If we say one can intend to cause an unintended harm for one offense, then there is no reason not to apply that same logic to other offenses with unintended harm elements. For instance, could one be charged with multiple counts of attempted DUI-manslaughter if one drove drunk and crashed the car (although causing no deaths, or even injuries) because the passengers in one's own car, or other motorists, passengers, or pedestrians in the area, would-have-been-killed if the crash had occurred in a different fashion?

      Finally, the rejection of the attempt logic in these cases is a symptom of a larger problem in Florida law: The failure to properly analyze the elements of criminal offenses. Similar flawed reasoning caused three Florida trial courts to erroneously conclude that a 2002 amendment to the Florida drug statutes violated due process principles because it rendered all Florida drug offenses invalid "strict-liability offenses," rulings which caused some mischief in the Florida legal system. (16) Thus, this analytical flaw has caused, and may cause in the future, other problems in Florida criminal law.

   3. OUTLINE OF THE ARTICLE

      These problems arose in Florida because, to determine the mental element of an attempted homicide offense, courts analyzed the issues with offense analysis (including the perceived distinction between specific and general intent) rather than element analysis. Offense analysis, which assumes that all criminal offenses have a singular physical element and a singular mental element, cannot account for offenses with multiple physical and mental elements (which occurs with many offenses). Element analysis recognizes that each physical element of an offense has its own mental element, and the mental element may be different for each physical element (e.g., intentionally committing an act while also recklessly ignoring the possible harm it might cause).

      Section II of this article discusses these two forms of analysis in general and the problems with the specific-intent/general-intent distinction in particular. This distinction was judicially created in the nineteenth century to determine the availability of an intoxication defense. It was created for reasons of social policy rather than logic, and as a matter of logic, it is "an artificial irrationality....." (17) Unfortunately, Florida courts used this flawed distinction to determine the mental element of the attempt offense (a use unrelated to the use for which the distinction was originally created).

      Section III discusses the elements of the Florida attempt offense. Section 777.04(1) creates a singular offense of criminal attempt, not multiple offenses of attempted robbery, attempted burglary, etc. The mental element(s) of...