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The Mens rea for Attempt

Case: State v. Lyerla [pp. 664-666]

Facts: Δ driving on highway, and some girls in a truck won't let him pass - they were "trying to play games". Δ
says they were harassing him to such an extent that he feared for his life, and fired shots to disable their truck.
One of the bullets kills a girl. Δ convicted of second degree murder and 2 counts of attempted second degree

Holding: The jury only found him guilty of second degree murder, so impliedly they believed that he didn’t
have the specific intent to kill them (or else it would have been first degree). To attempt second degree murder
one must have a criminally reckless state of mind. So, attempted reckless homicide is a logical impossibility - it
requires that the Δ intended to perpetrate an unintended killing. You cannot attempt to be negligent or reckless.

Dissent: the conduct of risking death was intentional even though there was no intent to cause death

Class Notes
• Mens rea – recklessness
o In this state, murder 1 was intent to kill; murder 2 was recklessness
• For the actual death, convicted of murder 2 - so we can assume jury did not find the
intent, just recklessness
 So can he be convicted of attempted murder for the other 2 who didn’t die?
• Not in this state - an attempt ALWAYS requires purpose. Logically
impossible to have purpose if it was an unintentional homicide
• Even though some forms of murder don’t need intent, attempt ALWAYS requires intent.
• So no such thing as attempted second degree murder (in this state only)
• Purpose is required for attempt (no such thing as an attempted accidental homicide)


Notes: [pp. 666-670]

• Attempted Recklessness - held that a charge of attempted reckless murder was a logical impossibility
o State v. Norman - Δ got into a fight with a player in a card game. He left the game, and came
back with a pistol, and secretly placed it on his lap and cocked it. Δ accidently brushed the
trigger, and it shot the other player.
• Attempt and circumstance elements
o MPC § 5.01. Criminal Attempt
• (1) Definition of Attempt. A person is guilty of an attempt to commit a crime if, acting
with the kind of culpability otherwise required for commission of the crime, he:
 (a) purposely engages in conduct that would constitute the crime if the attendant
circumstances were as he believes them to be; or
 (b) when causing a particular result is an element of the crime, does or omits to do
anything with the purpose of causing or with the belief that it will cause such
result, without further conduct on his part; or
 (c) purposely does or omits to do anything that, under the circumstances as he
believes them to be, is an act or omission constituting a substantial step in a
course of conduct planned to culminate in his commission of the crime.
• Subsection (a) addresses the mens rea required with respect to the conduct of the actor or
the attendant circumstances of the event. Subsection (b) concerns the mens rea required
for the results of the action taken.
 Thus, as with the CL, attempt liability would require that the Δ exhibit purpose
with respect to any conduct elements of the crime and purpose or possibly
knowledge with respect to any result element.
 But for the circumstances elements, a lower mens rea would be sufficient if
recklessness or negligence were otherwise sufficient in the statutory definition of
the completed crime.
• Specific intent & attempt
o United States v. Morales-Tovar (1999) - Δ was convicted of a felony drug offense, served his
sentence and was deported to Mexico. Statute makes it a crime for any deported person to re-
enter or attempt to re-enter the U.S. without express permission of the Attorney General. Δ had
lived in the U.S. for 38 yrs, and had a family in the U.S. He missed his family, and went to the
border port of entry and told immigration authorities that he wanted to replace his resident alien
card which was lost - but he didn’t tell them he was deported. When a computer check revealed
this, they arrested Δ. Δ never have a false name nor gave false docs.
• Court here says must be a specific intent to attempt a criminal act, and acquitted the Δ.
Otherwise, the statute would be contradictory. A deportee can seek permission to apply
for re-entry. Without requiring a specific intent to violate the law, any attempt to follow
the legal procedure to do so would be an illegal "attempt" to re-enter.
o However, in United States v. Gracidas-Ulibarry, court says attempt under the same statute is a
general intent crime.
• Court notes that most attempts are and should be specific intent crimes, whether or not
the crime attempted includes an element of specific intent.
• However, most crimes are malum in se (CL crimes); this statute is a regulatory statute
enacted to assist in the control of unlawful immigration by aliens (mala prohibita).
o HIV exposure
• State v. Smith - jail inmate who knew he was HIV+ bit an officer. Convicted for
attempted murder and aggravated assault - court held there was sufficient evidence that
it's possible to get HIV that way, and Δ knew it.
• Smallwood v. State - Δ, aware he was HIV+ virus that could be deadly, committed rape.
Court held not attempted murder because it required proof of Δ's specific intent to kill the
• Reckless Endangerment
o MPC recognizes a gap between a purpose-bound attempt law, and the great number of crimes
that permit conviction on a lesser mens rea.
• So MPC has a reckless endangerment provision:
 § 211.2: "A person commits a misdemeanor if he recklessly engages in conduct
which places or may place another person in danger of death or serious bodily
• This may result in a conviction when attempted murder wouldn’t have worked. Also,
because the term "reckless endangerment" is less condemnatory than "attempted murder"
a jury may be more likely to convict.
• Problem with reckless endangerment approach - it's a misdemeanor, but attempt to
commit a first degree felony is a 2nd degree felony. There's a big difference here.