MODEL PENAL CODE ANNOTATED

STATE of South Dakota, Plaintiff and Appellee.

v.
Gerald K. LYERLA, Defendant and Appellant
Supreme Court of South Dakota
424 N.W.2d 908 (1988)

 KONENKAMP, Circuit Judge.

 A jury convicted Gerald K. Lyerla (Lyerla) of second degree murder and two counts of attempted second degree murder.  We affirm the second degree murder conviction, but reverse the convictions for attempted second degree murder.

 On the night of January 18, 1986, while driving east on Interstate 90 in Haakon County, Lyerla fired three shots with his .357 magnum pistol at a pickup truck carrying three teenage girls.  One was [p. 909] killed, the other two were injured.  Only one bullet entered the pickup cab, the one that killed seventeen-year-old Tammy Jensen.  Another bullet was recovered from the engine block;  the third was never found.  Lyerla fled the scene, but was later apprehended.  He was charged in the alternative with first degree murder or second degree murder for the death of Tammy Jensen and two counts each of attempted first degree murder and alternatively two counts of attempted second degree murder of the two surviving girls.

 Before the shooting, the teenagers and Lyerla were traveling in the same direction.  The vehicles passed each other a few times.  At one point when Lyerla tried to pass the girls, their truck accelerated so that he could not overtake them.  Lyerla decided to leave the interstate.  When he exited, the Jensen pickup pulled to the side of the road near the entry ramp.  Lyerla loaded his pistol, reentered the interstate and passed the Jensen pickup.  When the girls attempted to pass him, he fired at the passenger side of their truck.

 At his trial, Lyerla told the jury that the teenagers were harassing him to such an extent that he feared for his life and fired the shots to disable their pickup.  The two girls gave a different rendition of the events leading up to the shooting, but the prosecutor conceded in closing argument that Tammy Jensen was "trying to play games" with Lyerla by not letting him pass.  Both Lyerla's version and that of the girls had a number of discrepancies.  We view these inconsistencies to have been resolved by the jury's verdicts.

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ATTEMPTED SECOND DEGREE MURDER

 Lyerla argues that it is a legal impossibility to attempt to commit murder in the [p. 912] second degree and his two convictions for this offense should be reversed.

* * *

 In order to attempt to commit a crime, there must exist in the mind of the perpetrator the specific intent to commit the acts constituting the offense. State v. Primeaux, 328 N.W.2d 256 (S.D.1982);  State v. Poss, 298 N.W.2d 80 (S.D.1980);  State v. Rash, 294 N.W.2d 416 (S.D.1980);  State v. Martinez, 88 S.D. 369, 220 N.W.2d 530 (1974);  State v. Judge, 81 S.D. 128, 131 N.W.2d 573 (1964).  To attempt second degree murder one must intend to have a criminally reckless state of mind, i.e. perpetrating an imminently dangerous act while evincing a depraved mind, regardless of human life, but without a design to kill any particular person.

 Whether there can be such a crime as attempted second degree murder has never been determined in South Dakota.  Interpreting a similar statute the Minnesota Supreme Court ruled in State v. Dahlstrom, 276 Minn. 301, 150 N.W.2d 53 (1967):
We do not conceive of any practical basis upon which the jury could have found defendant guilty of attempted murder in the third degree. Philosophically, it might be possible to attempt to perpetrate an act imminently dangerous to others and evincing a depraved mind regardless of human life within the meaning [p. 913] of the phrase as used in 609.195, defining murder in the third degree....  But we cannot conceive of a factual situation which could make such conduct attempted murder in the third degree where the actor did not intend the death of anyone and where no death occurred.

 Unlike the Dahlstrom case, a death occurred here, but the jury obviously decided that Lyerla did not intend the death of the deceased since he was found guilty of the lesser count of second degree murder.  Nor did he intend to kill the other two girls as the verdicts for attempted second degree murder confirm.

 Other courts have likewise found attempted reckless homicide a logical impossibility.  In People v. Perez, 108 Misc.2d 65, 437 N.Y.S.2d 46, 48 (1981) it was stated:
However, murder in the second degree under PL 125.25 subdivision 2, involves no intent but instead requires a culpable mental state of recklessness.  One may not intentionally attempt to cause the death of another by a reckless act.  (Citations omitted.)
 The Colorado Supreme Court held:
An attempt to commit criminal negligent homicide thus requires proof that the defendant intended to perpetrate an unintended killing--a logical impossibility.  The words "attempt" and "negligence" are at war with one another;  they are internally inconsistent and cannot sensibly co-exist.
 People v. Hernandez, 44 Colo.App. 161, 614 P.2d 900, 901 (1980).  See also State v. Melvin, 49 Wis.2d 246, 181 N.W.2d 490 (1970) and State v. Carter, 44 Wis.2d 151, 170 N.W.2d 681 (1969) where it was held under a statute similar to our own that the crime of attempted second degree murder does not exist.  We agree with the reasoning of these courts.  Stating the rule most succinctly:
To commit murder, one need not intend to take life;  but to be guilty of an attempt to murder, he must so intend.  It is not sufficient that his act, had it proved fatal, would have been murder.
 Merritt v. Commonwealth, 164 Va. 653, 180 S.E. 395 (1935).

 . . . . Defendant's convictions for attempted second degree murder are reversed.  In all other respects, the judgment of the trial court is affirmed.
 
 

 SABERS, Justice (dissenting).

 I dissent from the majority opinion on "attempted second degree murder."

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 The majority frames the question in a different manner, as follows:  "If attempted second degree murder is not a crime in South Dakota, then a defendant's failure to object cannot establish that crime."  I agree with that statement of the law by the majority and with their statement that "[i]n order to attempt to commit a crime, there must exist in the mind of the perpetrator the specific intent to commit the acts constituting the offense."  Citing State v. Primeaux, 328 N.W.2d 256 (S.D.1982);  State v. Poss, 298 N.W.2d 80  (S.D.1980);  State v. Rash, 294 N.W.2d 416 (S.D.1980);  State v. Martinez, 88 S.D. 369, 220 N.W.2d 530 (1974);  and State v. Judge, 81 S.D. 128, 131 N.W.2d 573 (1964).  More specifically, I agree that "[t]o attempt second degree murder one must intend to have a criminally reckless state of mind, i.e. perpetrating an imminently dangerous act while evincing a depraved mind, regardless of human life, but without a design to kill any particular person."  However, the majority also cites the Minnesota Supreme Court case of State v. Dahlstrom, 276 Minn. 301, 307, 150 N.W.2d 53, 59 (1967) in part as follows:
"... But we cannot conceive of a factual situation which could make such conduct attempted murder in the third degree where the actor did not intend the death of anyone and where no death occurred."

 That concept is not that difficult:

 For example, knowing he is a bad shot, A attempts to shoot B's eyelashes off from fifty feet away

 --if A misses and kills B, it constitutes second-degree murder under South Dakota law;

 --if A misses and wounds B, it constitutes attempted second-degree murder under South Dakota law;

 --if A misses all together, it may constitute attempted second-degree murder under South Dakota law.

 I agree with the majority that the jury obviously decided that Lyerla did not intend the death of the deceased since he was found guilty of the lesser count of second-degree murder.  Nor did he intend to kill the other two girls as the verdicts for attempted second-degree murder confirm.  However, had his acts resulted in their deaths, either directly as in the case of Tammy Jensen, or indirectly, through a resulting car accident, he would have been guilty of second-degree murder.  Since deaths did not result he was guilty of attempted second-degree murder under South Dakota law.

 SDCL 22-4-1 provides:
"Any person who attempts to commit a crime and in the attempt does any act toward the commission of the crime, but fails or is prevented or intercepted in the perpetration thereof, is punishable where no provision is made by law for the punishment of such attempt[.]"

 SDCL 22-16-7 provides:
"Homicide is murder in the second degree when perpetrated by any act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual."

 This statute deals with "homicide" which is named "murder in the second degree."  Neither statute contains an element of specific intent.  SDCL 22- 16-7 simply requires an act.  The act required must be dangerous to others (or stupid) under South Dakota law.  If one attempts a "dangerous" or "stupid" act it is sufficient.  The only "intent" or "attempt" necessary is a voluntary as opposed to a non-volitional or forced act.  In this case, Lyerla clearly attempted the dangerous and stupid act of pulling the trigger and shooting the gun at or near the people or the car in which they were riding.  This is sufficient for attempted second-degree [p. 915] murder under South Dakota law. SDCL 22-16-7 and SDCL 22-4-1.

* * *

 The majority opinion cites People v. Perez, 108 Misc.2d 65, 66, 437 N.Y.S.2d 46,48 (1981) and People v. Hernandez, 44 Colo.App. 161, 614 P.2d 900, 901 (1980), for the proposition that one cannot intentionally attempt to cause the death of another by a reckless act and for the proposition that the perpetration of an unintended killing is a logical impossibility.  Further, these cases are cited to support the proposition that the words "attempt" and "negligence" are at war with one another;  that they are internally inconsistent and cannot sensibly co-exist.  These cases place emphasis on the word "intentional" contrary to the South Dakota statute on attempt.  As previously indicated, the "intent" or "attempt" required under the South Dakota statute is simply to voluntarily act as opposed to an involuntary or forced action.  In other words, an attempt to pull the trigger and shoot the gun is enough.  This type of "attempt" and the "dangerous" or "stupid" act are not at war with one another;  they are internally consistent and can sensibly co- exist.

 Much of the confusion in this matter results from the use of the word murder, which implies an intent to take life.  What we are really dealing with under South Dakota law is homicide, named second-degree murder.  To intentionally pull the trigger and shoot a gun in this dangerous manner was not homicide because neither Gropper girl died, but it was attempted homicide, also known as attempted second-degree murder.  Accordingly, attempted second-degree murder is a crime in South Dakota, and Lyerla's convictions for attempted second-degree murder should be affirmed.