State v. Disanto

of an officer.” expected proficiency able 2004 SD 112 for an exe- Additionally, it is unreasonable Dakota, of South Plaintiff STATE warrant rely officer to on search cuting Appellee, affidavit. from his own insufficient issued expressed: As one court v. Supreme Court announced When DISANTO, Leon, it Rocco Defendant weak William good exception faith rule, exclusionary but it did not Appellant. ened the magic faith is not a eviscerate it. “Good No. 22751. whenever lamp police officers rub they find themselves trouble.” Unit Supreme Dakota. Court South Reilly, 76 F.3d ed States (2ndCir.1996). particularly And where Considered on Briefs Nov. 2003. executing one of the the affiant is also Decided Oct. officers, disingenuous, af it is somewhat magistrate to the having gone ter here, showing sug paltry seen suggests, that

gest, government as the magistrate who

at bottom was error and the search and sei

made the insulated because the officer’s

zure are objectively that error was

reliance on aside, good That “[T]he

reasonable. requires sincerely held exception

faith objectively belief that reasonable applica a valid

the warrant is based on Id.

tion of the law to all known facts.” objective “re

at 1273. The standard

quires officers to have reasonable

knowledge prohibits.” of what the law

[US v.] Leon, U.S. ^[897] at 919-20 n. 3405, 82 L.Ed.2d 677. S.Ct. Zimmerman, 277 F.3d

United States (3dCir.2002). recog 437-438 We also excep faith” “good

nized the mischief foster: “an officer could submit

tion could inadequate magistrate, affidavit to a inadequate,

which the officer knows out and conduct the willy-nilly go

then “good has a faith” shield

search because he any subsequent challenge.” Bel

against ¶

montes, 115, 20, 615 2000 SD do not merit a

640. The facts of this case

good exception. faith Long, General,

Lawrence E. Attorney Craig Eichstadt, M. Deputy Attorney Gen- eral, Pierre, Dakota, South Attorneys for plaintiff appellee. Landeen,

Joel P. Office of Public De- fender for County Deadwood, Lawrence Dakota, Attorney South for defendant and appellant.

KONENKAMP, Justice.

[¶ 1.] Defendant told people several his intent to murder girlfriend his former and her boyfriend. new Unknown to de- fendant, design was revealed to the authorities and a police had officer pose as a contract interject killer to him- self in plan. Defendant and the “hit man” murders, discussed the wherein de- fendant wanted each victim shot twice in the head. He directed feigned killer to girlfriend’s address, the former gave him a picture her, provided details on what valuables could be obtained during the kill- ings, instructed him to kill a child witness if necessary, and issued a final command to proceed with the murders. Shortly af- terwards, however, defendant communicat- permit and admitted to a pistol without intermediary that he wanted ed with probation violation. For his vio- murders, probation “I’m not back- saying “halt” the lation, years he was sentenced to two it, put it on hold.” just want ing out of Penitentiary Dakota State counts of South trial for three In his a suspended. nine months He received defendant unsuccess- first-degree jail all one-year claim- concurrent sentence with acquittal fully sought judgment a days suspended to but five for the offense of was insufficient ing that the evidence carrying pistol per- a a than mere concealed without that he went further establish jury mit. The for the offenses. charges. three We him on all convicted in penitentiary, While defen- [¶ 5.] defen- convictions because reverse the Stephen Rynders. Ryn- met He told dant no more than actions amounted to dant’s ders of his intention to murder Olson and neither he nor preparation: Rynders informa- boyfriend. gave her committed an act toward feigned killer investiga- to law enforcement and an tion the offenses. commission of began. In June defendant was tion Background prison. Upon released from defendant’s release, en- Rynders, acting under law Defendant, “Billy” Rocco William [¶ 2.] direction, up defendant picked forcement Disanto, together lived and Linda Olson Inevitably, him a ride to Lead. and offered a engaged and were for years for two turned to defendant’s the conversation relationship But their turbulent short time. plans. suggestion murder At the began soon January in 2002. Olson ended investigators, Rynders told defendant Denny Egemo, and friendship a new Ryn- hire a contract killer who he should month, in together. moved in the next in ders knew Denver. loss, began his defendant Obsessed with calls to Ol- threatening telephone

making the afternoon of June On them and others Egemo. He told son McCabe, 2002, Rynders and Dale a law He also going to kill them. that he was posing officer as a killer enforcement responsi- that she was claiming sued Olson Denver, hire defen- from met twice with $15,000 disappearance for the over ble was se- dant. Much of their conversation joint in venture. restaurant cretly Defendant showed recorded. gave photos several Olson McCabe February while On vehicle, him one, out her led pointed him drinking at the First Gold gambling and home, and even the location of her to Deadwood, a wom- in defendant told Hotel leav- out to him as she was pointed Olson ex-girl- he intended “to shoot his an that meetings In between his ing her home. her, in friend, her new lover to kill to shoot afternoon, chance, with McCabe would have to live with the balls so that he street. ran into Olson on the defendant kill going to and then he was guilt, exclaimed, going suppose you’re “I intention, Olson if his As to confirm himself.” re- dog,” kill me.” “Like a defendant to hand and grabbed the woman’s defendant plied. jacket. pistol it on a placed security officer a hotel

woman contacted sec- Shortly afterwards their police. Defendant in turn called who McCabe, “I told meeting, defendant ond pistol and a loaded .25 caliber was arrested shots and him dead.” “Two want her him. was taken from shot, said, only one he the head.” With If Olson’s “something go wrong.” can plea bargain, In a defendant happened present, to be teenage daughter of a concealed guilty possession pleaded wanted her killed too: “If All against then defendant threat Olson on the street. know you gotta, you gotta, you what untrue. this was Defendant’s alarm about sug- He wanted no witnesses. He police mean.” apparent involvement was an ruse to appear that the murders gested why should explain through he did not want go robbery. happened during Because killings. with the money pay had no for the So, Defendant: I suggest we halt this. murders, suggested jewelry he Let it cool down little might other valuables the home be used bit.... partial compensation. told He McCabe Rynders: Okay. boyfriend, Egemo, that the known to agreed lot of cash. Defendant also pay killings for the metham- with some Defendant: So I if don’t that know he phetamine would later obtain. (Olson’s) being house At p.m., 3:00 watched, you do know agreement appeared McCabe to close their what I’m saying? following exchange: with Rynders: Okay. just sure, hey,

McCabe: So to make no or.... thoughts second * * * No, Defendant: none. And, ah, Defendant: is not time sure, right just McCabe: You man? right now. I’m I, you, telling I feel don’t Defendant: None. feel, it. I you what I know Okáy. McCabe: mean. I’m backing not out Defendant: None. it, you know I’m what done, McCabe: The deal’s man. saying. Defendant: a go. It’s Rynders: Um hm. McCabe: call you OK. Later. I’ll to- But, ah, Defendant: timing. You night. just know I I what mean. Defendant: Huh? got out of prison, right? I’ll you McCabe: call tonight.

Defendant: you. Thank So, ah, just telling you Defendant: I’m testify McCabe would later that as un- he right now, put it on hold. transaction, derstood their “the deal was Rynders: Okay. at point” killings sealed and the could accomplished be “from that time on until Defendant: And that’s the word final whenever I complete decided to the task.” reason, ah, simple I don’t want nothing hap- later, Less than three hours how- pen [McCabe], ever, you know defendant, seeking a message to have what I mean? McCabe, given to Rynders telling called him falsely that a “cop stopped here” spotted Olson had McCabe’s car plates, its Colorado that Olson had Defendant: Let it cool down. Plus let’s

“called cops,” un- defendant was let ‘em .... make an offer supervision, der intense and that now the [referring to defendant’s police were alerted because of defendant’s against lawsuit Olson] McCabe: Here. Well, no clue where Rynders: I have now. right is] [McCabe I wanna see nothin’. Defendant: don’t Oh, got You a cell God. Defendant: I that shit. got McCabe:

number? Defendant: Good.

* * * it.... Defendant: Get Hey. You still owe me some McCabe: good about just Defendant: I don’t feel shit, man. I’ll it to honest and tell be Defendant: Guaranteed. got great I’ve intuition. ‘ya, Defendant was arrested and

Rynders: Okay. charged with three counts of charged

murder. He was also with one simple count of assault for the threat he So, mean, him just let Defendant: against made Olson on the street. The Alright know. [McCabe] provided notice that intended to buddy? pertaining introduce all the evidence Rynders: Okay. subsequent arrest and prior defendant’s concerning at plea agreement the incident gonna him. He’s Defendant: Get to the First Gold Hotel. Over defendant’s tonight. at 11 call me objection, trial court admitted this evi- the call, telephone the Despite [¶ 10.] dence. McCabe, posing as a con- day, still next of all juryA convicted defendant killer, place at his tract came to defendant charges. He was sentenced to three con- ring Olson’s diamond employment thirty-year imprisonment terms of current murders had been ac- verify the Penitentiary. in the South Dakota State up drove to defen- complished. McCabe addition, he received a concurrent 865 him to his car. dant beckoned fifty-nine years days jail. He was old Hey, man. Come here. McCabe: These sentences were consecu- the time. here. Come here. Come unfinished two-year term defen- tive to the in, in, man. Jump Jump felony prior dant was to serve for his dude. conviction. Defendant: You sure? appeal, On defendant raises Jump in.

McCabe: (1) the trial following issues: Whether can’t, Defendant: I can’t leave the judg- motion for denying court erred in bakery. got I ain’t judgment and motion for acquittal ment of key. (2) notwithstanding the verdict. Whether Fuck, I fuck out gotta get McCabe: grossly disproportionate his sentence was done, here, dude. It’s man. charged in violation of the to the crime done, Fuckin’ dude. to the United Eighth Amendment States Okay. Defendant: I don’t wanna know VI, § and Article Constitution nothin’ about it. (3) Dakota Constitution. Whether South out, right. All Check this McCabe: on evidence of acts the State’s reliance him [Showing man. Olson’s for he had committed which ring.] diamond violated his already pleaded guilty double protections under the Fifth jeopardy Defendant: No. therefore, attempt, prosecution Amendments to the United Fourteenth (1) VI, § spe and Article 9 of must show that defendant had the Constitution States (2) crime, need cific intent to commit the com Dakota Constitution. We South mitted a direct act toward the commission only reach Issue (3) of the intended failed or was by Hiring Attempted Murder prevented intercepted perpetra Contract Killer Olson, tion of the crime. State v. argues Defendant (S.D.1987); N.W.2d State v. Mar denying trial court his motion erred tinez, 369, 371-72, S.D. N.W.2d acquittal judgment for because (1974); Judge, State 81 S.D. failed to offer sufficient evidence to 573, 574 on the three counts of sustain conviction linger ques- need not on the [¶ 16.] We judg A for attempted murder. motion Plainly, tion of intent. the evidence estab- acquittal ment of under SDCL 23A-23-1 repeatedly expressed lished that defendant 29(a)) (Rule proper is the vehicle for a Egemo, an intention to kill Olson and sufficiency challenge. 2 Chaeles Alan Cf. daughter, necessary. well as Olson’s if As WRIGHT,Federal Practice and ProcedüRE jury, McCabe told the defendant “was a (2d 1982). § 467 ed The denial of a motion man on a mission to have three individuals judgment acquittal presents ques murdered.” law, tion of and thus our review is de novo. Staula,

See United States 80 F.3d Defendant does claim not error (1stCir.1996). must decide anew We of the court’s instructions to the whether the evidence was sufficient to sus jury. jury in part instructed (Rule tain conviction. SDCL 23A-23-1 preparation, may Mere which consist ¶ Guthrie, 29(a)); 61, 47, v. 2001 State SD planning devising, the offense or of ob- 401, 420-21; 2 627 N.W.2d see also Steven taining or arranging the means for its S. Davis, Alan Childress & Federal Martha commission, not is sufficient to consti- (3d § 9.10 ed S tandards of Review attempt; tute an but person acts of a 1999) Scott, (citing United States v. who intends to commit a crime will con- 82, 13, 2187, 100 n. U.S. S.Ct. 2198 n. attempt stitute an when themselves (1978)). 13, In measuring 57 L.Ed.2d 65 clearly certain, unambiguous indicate a sufficiency, “whether, evidentiary we ask crime, intent to commit that specific viewing after the evidence in light the in themselves are an step immediate prosecution, any most to the ra favorable present the commission the criminal tional trier of fact could have found the design, progress the of which would be beyond essential elements of the crime a completed interrupted by unless some Virginia, reasonable doubt.” Jackson v. circumstances not intended in the origi- 307, 319, 2781, 2789, 443 U.S. 99 S.Ct. nal design. attempt The is the direct (1979). L.Ed.2d 560 movement toward commission of the crime preparations after the are made. In defining the crime of at tempt, begin we with our statute. person SDCL Once a has committed acts which 22-4-1 “Any person states that who at commit constitute an attempt tempts crime, to commit a crime and in the at person that cannot avoid respon- tempt any sibility by does act toward the commission proceeding not further with crime, of the prevented crime, fails or is the but intent to commit the either thereof, intercepted perpetration in the is of voluntarily abandoning reason the punishable” provided. prove as therein To purpose or because of a fact which pre- suspect’s not clear from a acts what completing the is vented or interfered do, crime. he intends observer cannot reasonably conclude that a crime will be However, to commit person if a intends committed; when the acts are such [of] before the commission crime but any the ultimate commission that rational person act toward would believe crime, freely and person crime is about to be consummated ab- voluntarily original intent abandons force, intervening sent an is attempt it, the accomplish and makes no effort to way, change under and a last-minute attempt has not been commit- crime of perpetrator heart should not be ted. permitted to exonerate him. that he Defendant contends Dillon, 441, People v. 34 Cal.3d 194 Cal. any attempt to murder when abandoned 697, Rptr. 668 P.2d Rynders to “halt” the kill- telephoned

he jury to the ings.1 argued perplexing The State more an act question defendant committed toward here is whether there was evi by giv- degree that, commission of first murder fulfilling dence in his murderous kill, ing the “hit-man” a final order to thus tent, defendant committed an “act” toward attempt complete. crime of If making the degree the commission first murder. actual beyond planning he went 22-4-1. SDCL Defendant contends that asserted, act, of an the State commission beyond preparation. he never went not then a later abandonment would extri- this Court declared responsibility him from for the crime cate boundary between hand, other murder. On the point lies at the where an act only postpone if he wanted to “unequivocally that a crime demonstrate^ then, contended, the State is about to be committed.” 88 S.D. at delayed, merely not abandoned. Miller, (citing People 220 N.W.2d at 531 (1935)). Cal.2d P.2d question On the of abandon- Thus, “presupposes the term “act” some ment, usually jury for the to decide direct act or movement execution of the already whether an accused has committed distinguished prepa from mere design, as an act of the mur- toward commission ration, which leaves the intended assailant act requisite ders. Once the has been committed, only in the condition to commence the first whether a defendant later of de delay plan to or the is direct act toward consummation wanted abandon (citations Miller, Mosk of the 42 P.2d at 310 sign.” irrelevant. As Justice Cali- omitted). wrote, Supreme unequivocal fornia Court The act toward the of the offense must demon commission obviously impossible It is to be certain to commit strate that a crime is about be person that a will not lose his resolve to by intervening cir ted unless frustrated completes until he the commit the crime Hanson, cumstances. State v. 456 N.W.2d necessary accomplish- last act for its (S.D.1990); 88 S.D. at attempts ment. But the law of would be 531; at Judge, 81 S.D. function if it could not N.W.2d largely without be 128, 131 However, at 573. this act N.W.2d trigger pulled, invoked until the the struck, possible act money the If it need not be the last before blow or seized. charge attempt recognizes of an to a crime. 1. The Model Penal Code that a commit 5.01(4). "complete voluntary § renunciation” of Article 5 See purpose defense to criminal is an affirmative accomplishment of the crime to con- which ones are consistent with South Da- actual Miskimins, However, precedent. State v. kota it stitute an law (S.D.1989). 217, 222-23 important examining out-of-state au- thority to confine our review to decisions no on point decisions [¶ 21.] We using attempt definitions of criminal simi- Dakota; therefore, we will examine South lar to our own. jurisdictions. in other similar cases cases, murder for hire the courts are divid Typical following the cases the ed on how to characterize offense: is Davis, majority the rule is State v. 319 Mo. to murder or an act toward a solicitation (Mo.1928) (superceded S.W.2d generally the commission of murder? See statute). There, by the defendant and the Annotation, Ghent, Jeffrey F. What Con plotted wife of the intended victim to kill Murder, 54 Attempted stitutes ALR3d 612 her husband to collect the life insurance (1973). courts “take the view that Most proceeds together. and then to live A the mere act of solicitation does not consti officer, police ex-convict, posing as an met tute an to commit the crime solic with the defendant several times. particularly significant ited. issue is This gave the undercover officer a jurisdiction in a where crime can be map showing where the husband could be subject only certain found and two of him. photographs He subject crimes can be solicitation.” $600, promised pay agent and later Torcia, E. Charles Wharton’s Criminal paid that sum. He wanted the matter (15th § 672 Law, ed Clark Boardman Cal handled so that the murder appear would 1996). laghan As one commentator ex to have been committed in the course of a jurisdictions plained, “[ajlthough some robbery. agent employed Because the solicitations are treated as indictable at commit the murder did not act toward the by judicial tempts, either virtue deci consummation of the intended them, failing distinguish sions court held that the defendant’s acts statutory provisions, great weight amounted to no more than solicitation or authority Analytically is otherwise. preparation. Similarly, People v. Ada two Francis crimes are distinct.” Bowes mi, Cal.App.3d 111 Cal.Rptr. 544 Sayre, L Attempts, Criminal Harv Rev (1973), gave the defendant an undercover 821, 857-58 $500, police photograph, officer and a majority wife, A of courts reason description that written of his with in a solicitation to murder is not attempted structions to kill her. The court reversed conviction, murder completion because the finding agent, that the who crime one requires only pretended an act solicited.2 had agree to commit the We will espousing performed examine cases both the had no act toward the majority minority and to view discern commission of the crime. State,

2. See also S.W.2d Hobbs v. 884 commit murder because constitute "[t]o an State, (Tex.Cr.App.1977); attempt Hutchinson v. perpetra there must also be an act of 546, (holding So.2d (Fla.App.1975) 548-49 [and] tion ... solicitation is rath (internal that perpetration”) solicitation of to commit murder another er than citations omitted); Commonwealth, attempt does not constitute to commit murder Hicks v. 86 Va. 223, (1889) (defendant because mere overt purchased solicitation is not act to- 9 S.E. 1024 murder); attempt ward strychnine gave to commit Gervin v. agent it to with instruc State, place Tenn. 371 S.W.2d tions to it in the victim’s coffee: these (1963) (holding only preparatory that solicitation of another to were measures and not an attempt commit attempt). murder does not constitute Otto, urgings proximate attempted 102 Idaho into a com- In State v. (1981), urged the defendant hired mission of the crime doing 629 P.2d 646 so kill another police officer to very require- undercover violates the essence of the disappear- investigating officer police ment that a sufficient actus reus be A wife. divided ance of the defendant’s proven liability before criminal will at- at- reversed the Supreme Idaho Court tach. conviction,

tempted first-degree murder Id. at 651.3 soliciting agent ruling that the act of Davis, Otto, Cases like Ada- crime, coupled with the commit the actual because, helpful analysis mi are to our at promise larger of and a of a payment $250 decided, the time were the statutes or completed, after the crime had been sum jurisdictions case law those defined at- rather amounted to solicitation to murder tempt way attempt identical to our attempted murder. The court Otto than formulation, statute. Under there another, held that “[t]he solicitation] specific must be intent to commit the assuming neither solicitor nor solicitee crime and also a direct act done towards com- proximately acts toward the crime’s commission, its which failed or inter- was mission, for an cannot be held cepted perpetration. in its As the Mis- He does not his incitement of another noted, tougher Supreme “[t]his souri Court activity dangerously to criminal commit language prepara- was couched in terms of perpetration. act The exten- proximate perpetration, required tion and liability attempt sion of back to solici- steps ‘... the defendant must have taken destroys prepa- tor the distinction between going beyond preparation, by doing In perpetration.” ration and Id. at 650. something bringing him the crime nearer sum, nor defendant Otto “[n]either [the ] ” Molasky, he intends to commit.’ State v. agent steps perpetra- ever took (Mo 1989). S.W.2d in dangerous proximity tion to the commis- at planned.” sion of the offense Id. opposite To understand view, point of we will examine cases follow- Requisite understanding ing minority rule. But before we be- general recognition rule “is the that solici- definition of gin, tation in the nature of the incitement or we must first consider the Code, to commit a under the Model Penal encouragement of another essentially crime in the future it is cases decided under its formu- distinguish [and so] to the commission of the tar- to court preparatory response la. decisions (citations n. 4 geted offense.” Id. another to commit murder did not hiring omitted). Supreme juris- The Idaho Court made many constitute pointed created, urging the rather observation dictions sometimes at the courts, jurisdictions the offense of solicitation is foreseeable that faced [i]t alternative, murder. As an another wide- general attempt with a statute and no adopt the defini- severely spread response a solicita- punishing means tion of under the Model Penal felony might tion to commit a resort to the Model Penal This is because transforming the device of the solicitor’s Code. proceed spiracy. still a solicita- precisely And solicitation is 3. This is how the dissenters They compare attempt the crime of here. it comes in the form of a final tion even when conspiracy and convert end, with the crime of proceed. for another In the command into an “act.'' An the final solicitation itself nor McCabe took “act” neither defendant attempt a distinct of- to commit a crime is perpetration of a crime. toward the charged Defendant was not with con- fense. 210 crime,” attempt in criminal much of the if strongly

Code includes corroborative of purpose, to be under the actor’s criminal as sufficient that was held step require- PeRkins, Rollin M. satisfaction the substantial former decisions. (2d 1957). ment to support conviction for criminal Law 561 ed This is CRiminal 5.01(2)(g). § accompanying clear the comments from Model Penal Code attempt of criminal in Tenta- the definition Representative of decisions un (1960) of No. 10 the American tive Draft der the Model Penal Code is State v. Kil Code, Institute’s Model Penal Article Law (N.H. 577, gus, N.H. 519 128 A.2d 231 § The intent was to extend the 5 5.01. 1986).5 There, it was that the held defen criminality attempts by drawing the line party dant’s solicitation of a third to kill act, away from the final so as to further the victim constituted attempted essentially make the crime one of criminal completed where the defendant had all the implemented step a substantial purpose preliminary steps, including setting and purpose. of such highly corroborative sum, paying identifying the contracted for 5.01(1) § (Proposed Model Penal Code victim, instructing the “killer” that (1962)). OfficialDraft corpse must be found outside the state. Hampshire Supreme The New Court con provides The Model Penal Code cluded, was more than ... “[t]his ‘mere’ or part person guilty that “A is of an ‘naked’ solicitation. It was a ‘substantial if, attempt acting to commit crime step’ toward the of capital commission culpability required the kind otherwise murder.” Id. at 236. he ... pur- for commission that, posely or omits to do anything does using [¶ 30.] Another decision the Mod- under the circumstances as he believes el Penal Code framework in analyzing the be, an act or them to is omission constitut- Burd, offense of is State v. ing step in a course of con- a substantial 415, (W.Va.1991). W.Va. S.E.2d 676 planned duct to culminate in his commis- case, In that the court ruled evidence sion of the crime.” Model Penal Code that the defendant solicited the murder of 5.01(l)(c) (1985) added).4 § (emphasis child, boyfriend’s her wife and hired the 5.01(2) §in species Code then lists several killer, gave him money weapon for a may conduct constitute a “substan- contract, an advance on the murder drew a step.” tial The Model Penal Code treats map of the planned residence of the vic- agent tims, the solicitation of “an innocent and instructed the on killer how to engage constituting victims, in conduct supported element shoot the her conviction 18, (West Many jurisdictions adopted 1983); § the "sub- Ann tit Wash Rev Code step” stantial framework from the Model Pe- (West 1988); § Ann 9A.28.020 Wyo Stat Ann § (Supp nal Code. See Alaska Stat 11.31.100 (Michie 1977). § 6-1-301 1988); (Michie § 5-3-201 Ark Code Ann 1975); (2002); § 18-2-101 Colo Rev Stat fitting 5. Another category decision (West 2001); § 53a-49 Conn Gen Stat Del Sunzar, N.J.Super. 751 A.2d (1987); § Code Ann tit Ga Code Ann (1999). By adopting a Model Penal (1988); § § 16-4-1 705-500 Haw Rev Stat type attempt Code statute the court concluded (1985); (Michie § 35-41-5-1 Ind Code Ann above, history on the "[b]ased outlined 1985); 17-A, (West § Me Rev Stat Ann tit appears legislature opted that our has for an 1983); (West 1987); § 609.17 Stat Ann Minn law, expansive version of the notwith (1979); § 28-201 NH Rev Stat Neb Rev Stat view, standing 'majority' governs which (1986); § § 629:1 NJ Stat Ann 2C:5-1 Ann Manchester, elsewhere.” See also State v. (West 1982); § ND Cent Code 12.1-06-01 Neb. 331 N.W.2d 776 (1985); (West § 2923.02 Ohio Rev Code Ann (1985); § 161.405 1986); Or Rev Stat Pa Stat Molasky crystallizes our sense that with- is curious murder. What attempted for of that expansive that at the time out the Model Penal Code defi- Burd is about a Virginia had attempt, of West acts such as the decision State nition of ones to our own. of similar definition performed defendant here are not suffi- Nonetheless, seems the Court Id. at 679. under our definition to constitute at- cient Penal Code adopted the Model to tempt. Kilgus from to step” analysis “substantial Knowing that the Model Penal assassin hiring feigned conclude prep- Code relaxes the distinction between toward commission a “substantial act”

was perpetration, aration and we exclude from murder. Id. at attempted crime of analysis our those murder for hire cases position, of its the Court support 680. form of the definition of using some Code’s murder for hire cases several other cited attempt. Obviously, engraft we cannot a defi- under the Model Penal Code decided piece of the Model Penal Code onto our nition of statutory attempt, definition of for to do so mur- Finally, attempted another judicial rewriting amount to a of our would Model Penal Code der case decided under Nonetheless, there are statute. several Molasky, 765 formulation minority taking position courts at The decision is instructive. S.W.2d 597. solicitation of murder can constitute at- There, for murder a conviction murder, tempted without reference reversed, only the con- because Model Penal Code definition. We will now conversation, unac- solely consisted of duct those cases. examine by affirmative acts. Id. at 602. companied Thus, reasoned, “a substantial the court State, In Braham v. 571 P.2d actions, indicative of step is evidenced (Alaska denied, 1977), cert. 436 U.S. standing not mere conversation purpose, (1978), 56 L.Ed.2d 410 98 S.Ct. O’Neil, Id.; alone.” accord State instructed the evidence that the defendant (2003) (reversing Conn. 811 A.2d 1288 gunman hired to visit the intended victim under Model attempted murder conviction a hospital purpose fostering in the for Penal Code formulation where relationship of trust and confidence was jail to killer to have message sent from required overt sufficient establish murdered). evincing a defen- witness Acts necessary prove attempted murder act purpose to commit dant’s seriousness requiring an act toward the commission Molasky suggested, Court at the murder. Alaska’s statute hands, con- might money exchanging be to ours. The Alas time is almost identical deliver- arrangements payment, crete ka held that whether Supreme Court victim, ing a of the intended photograph “sufficiently merely or preparatory act is address of the intended vic- providing the to the consummation of the crime close tim, furnishing weapon, visiting degree attempt, question amount to is a victim, scene, waiting crime for the the facts and circum depends upon showing expected the hit man the victim’s at case.” Id. 637. particular stances of Molasky, 765 route of travel. S.W.2d State, In Duke v. 340 So.2d 34.] Therefore, [¶ the relaxed stan- under (Miss.1976), an em- the defendant solicited Code, of the Model Penal evidence dards partner. kill ployee to his business an act in furtherance of the crime could hunting on a here, place murder was to take provide include what defendant did failed and the defendant trip. plan That of the intended victim and photograph killer. An FBI sought to hire another feigned home to the killer. point out her as the killer and collected directed toward the commission of the tar- agent posed $11,500 repre- after get from the defendant crime. Id. at 345. The court ruled partner that the senting to the defendant everything the defendant had done held dead. This evidence was suffi- by accomplish that was to be done her to cient to the conviction because the sustain the murder of her Since the husband. the defendant’s court concluded that acts feigned assassin had made all the contacts beyond preparation. went way him, and she had no to contact she stopped could not have him after the final Mandel, Ariz. In State v. [¶ 35.] planning. The court concluded the (1954), a woman who made a 278 P.2d 413 defendant’s to murder her hus- pretended accomplices contract with two clearly band was established the follow- murdered, partly to have her exe- husband (1) ing undisputed forged evidence: the by paying portion cuted that contract assignment of the insurance policy six advance, the identified for consideration months before she hired a man to kill her the home and the intended assassins the (2) husband, payment premiums the on victim, pointed out car of the intended $50,000 her husband’s life policy insurance body, possible disposing site for the and commenced, after the divorce had without place them on the time and advised where (3) husband, knowledge the of her and the contact could be made for the execution of hiring feigned assassin. the The court held that murder. she was murder, properly attempted convicted minority expressed view stating, everything sup- did she was “She Braham, Duke, Gay, and Mandel is epito- posed accomplish purpose. to do to the Otto, dissenting opinion mized in the subterfuge, Had not been where it was noted that efforts to distin- intended victim would have been mur- guish between of preparation “acts and dered. Under such circumstances she perpetration” artificial, acts of “highly are clever, escape by cannot reason of elusive since all acts leading up to the ultimate preparation, distinctions between solicita- consummation of a very crime are their tion and acts committed furtherance of Otto, preparatory.” nature 629 P.2d at design.” Id. courts, 653. For preparation these Gay, In 4 Wash.App. perpetration merely degrees are seen (1971), paid 486 P.2d 341 a wife continuum, on a and thus the distinction $1,000 feigned to a retainer killer to assas- perpetration between be- agreed pay sinate her husband and comes blurred. $9,000 killer an additional when her hus- law, interpreting In our all band was dead. She furnished the killer penal “criminal and provisions and all pe- pictures of her husband so that he nal statutes are to be according construed right would kill the man and him told import terms, to the fair of their with a about her husband’s habits and where he objects view to promote effect their upholding could found. be her convic- justice.” 22-1-1. long- tion for SDCL Under our court ac- solicitation, standing knowledged jurisprudence, preparation that mere which perpetration involves no than are distinct asking enticing concepts. more Nei- someone to commit a ther defendant nor feigned would not “hit man” However, constitute the crime of committed an act “which would end in very court declared that act accomplishment, but for ... circumstances hiring a contract killer is an overt ... occurring independent act the will of of[] GILBERTSON, 88 S.D. at the defendant.” Chief Justice ZINTER, Justice, 220 at 531. and dissent. N.W.2d SABERS, Justice (concurring). cannot solicita [¶ We convert 39.] I agree [¶ because in- 44.] the evidence tion into because to do so is obvi broke, dicates that this blundering, inept ously contrary Legislature to what the had felon, year-old just 59 out prison, up catego mind when it set the distinct inadequate pursue or execute this crime Indeed, attempt. ries of solicitation and without the motivating encouragement of Legislature has criminalized other prison” “friend from and law enforce- types of solicitations. See 22-43-2 SDCL own, ment officers. On his it would have bribe); 22- (soliciting commercial SDCL been no more than a thought. (pimping felony); 23-8 SDCL 22-11-20 (solicitation witnesses); 22-22- SDCL GILBERTSON, (dissent- Chief Justice (solicitation sex); 24.5 of minor for SDCL ing). (solicitation by 16-18-7 disbarred or sus I respectfully [¶ 45.] dissent. I would pended attorney). affirm the circuit court. doubt, Beyond any

[¶ 40.] defen 22-4-1 [¶ 46.] SDCL defines what con- dant’s behavior here was immoral and ma an attempt: stitutes question levolent. But the is whether his Any person who attempts to commit a beyond evil intent went preparation into crime and in the attempt does act perpetration. prepa acts of Acts of mere toward the commission of the but in setting groundwork ration for a or prevented intercepted fails attempt. crime do not amount to an Un thereof,.... the perpetration attempt, der South Dakota’s definition of Herein the Defendant was con- solicitation alone cannot an at constitute victed of three counts of mur- tempt to commit a Attempt crime. and der. The issue before us is whether he solicitation are distinct offenses. To call committed a direct act toward the commis- an attempt away solicitation is to do with sion of the intended crime. See State v. necessary element of an overt act. Olson, 748, (S.D.1987); 408 N.W.2d Worse, to succumb to the understandable Martinez, 369, 372, 88 S.D. misguided temptation merge solici (1974); Judge, N.W.2d State v. attempt only tation and muddles the two 128, 133, S.D. 575-76 N.W.2d concepts and the normal perverts and ben (1964). development eficial of the criminal law Miskimins, State v. through legislative incremental corrections (S.D.1989) ana- 222-23 we improvements. It Legisla is for the lyzed requirement the nature of the that a remedy problem, ture to and not for act direct be committed: judicial through expansion uphold us In drawing prepa- a distinction between conviction where no crime under South attempt, ration and this court has held Dakota law was committed. necessary that it is not the last [¶ 41.] Reversed. necessary further act to the actual ac-

complishment crime be taken to SABERS, Justice, requisite attempt. concurs with be a to make an MEIERHENRY, Justice, writing clearly require only “any” statutes concurs. act towards the commission of the crime preparation 88 S.D. difference between mere

be done. State Any unequivo- acts needed constitute an 220 N.W.2d to insure that the cal act Herein the Defendant hired was a crime and not intended result McCabe, man, gave a hit him instructions innocent act constitutes an at- another victims, kill provid- on how to the intended tempt. “The line between Olson, photo ed the hit man point is drawn at him the showed location of Olson’s home longer acts no where the accused’s personally pointed and Olson out to the jury being equivocal as strike the “hit man.” All these acts constitute devis- unequivocally that a crime demonstrate ing or arranging the murder for hire Martinez, is about to be committed.” 88 arriving scheme. The Defendant’s acts of 372, at 220 at 531. S.D. N.W.2d payment arrangement at a concrete for the previously prepara- also have defined issuing We “hit man’s” services and the final “devising arranging tion as the means kill go,” order a were direct “[i]t’s move- necessary or measures for the commission actually put ments served to Defen- of the offense” and as “the direct plan dant’s into action. The consummation movement toward the commission after of the contract kill and final order were preparations Judge, the are made.” 81 step[s] “immediate present the commis- 133, at at (quoting S.D. 131 N.W.2d 575 design” sion of the criminal required by Wood, 261, 260, State v. 19 S.D. 103 jury N.W. the instructions used in Defendant’s (1905)). 25, “it 26 Once becomes clear trial. This is far more than mere verbal what the actor’s intention is and when the solicitation of a hit man to accomplish the perpetrator Mandel, acts done show that the is murders. See State v. 78 Ariz. action,” actually putting plan 226, 413, (1954) his into the (holding 278 P.2d 416 Dillon, complete. People v. 34 everything did she was after defendant 390, 441, Cal.Rptr. Cal.3d 194 668 P.2d supposed accomplish to do to the purpose (1983) (citations omitted). 697, Thus, 702 the murder by making hire contract we the must examine evidence to see partial payment advising of when and whether there was evidence which would conducted, where murder should be she jury a to find such an act allow did occur. beyond sphere was the of mere solicitation added); or preparation) (emphasis State v. In determining sufficiency the of the 834, Gay, 4 Wash.App. 486 P.2d 346 case, appeal evidence on in a criminal (1971) (holding beyond prep- the [Cjourt the issue before this is whether stage aration making payment after final which, there is evidence in the record arrangements and payment, down furnish- if by jury, believed the is sufficient to ing pictures man, of intended victim to hit finding guilt beyond sustain a a rea- issuing order without means to con- sonable ... In making doubt our de- final tact man hit in order to halt the murder termination, accept this Court will sufficient to sustain conviction for at- evidence and the most favorable infer- added). tempt) (emphasis therefrom, fairly ences drawn which still support the verdict. evidence, This if by believed ¶ 93, 26, Augustine, State v. 2000 jury, SD 614 was well in “any excess of the act” Davi, (quoting N.W.2d v. requirement. State It showed Defendant had (S.D.1993) (citations 504 N.W.2d everything carry done he could do to out omitted)). Court, pointed As out killings intent have the occur. De- jury properly instructed on the fendant had set in motion a course interrupted resulted in the unless some circumstances action would original design” individuals “but for” not intended in the of two or three deaths reality simply preparation. hit man was not at {Supra the fact the ¶ 17). appears officer. It police undercover killings the actual them only act left was Although we do not have facts, jury analyzing “In selves. directly point, South Dakota cases on State justified finding defendant’s

was well (S.D.1993) Kaiser, N.W.2d far that would gone actions had ‘so (S.D.1995) Kaiser, N.W.2d crime accomplishment result factually legally are close. Therein circum by extraneous unless frustrated counts of con- Kaiser was convicted two ” Miskimins, at 223 435 N.W.2d stances.’ on spiracy commit murder his ex-wife at (citing 88 S.D. boyfriend and her new under SDCL 22-3- at (quoting Judge, 81 at 531 S.D. N.W.2d bar, sought 8. Like the case at Kaiser 575)). have hit-man commit the murders with argues that the evi- Defendant pistol. disguised murders were to be .The clearly that Defen- dence demonstrates appear robbery so as to the result of a go in 2002 did not dant’s actions June illegal drugs. The halted at murders were beyond preparation. Defendant minute hit-man the last when the revealed to arrest Defen- police’s cites the failure plot the to enforcement. The hit-man law meeting the dant after June working with was now law enforcement also proof proposition. of this Defendant by to Kaiser over able obtain admissions Rynders call to phone notes that his telephone. appeal argued the Kaiser On put a halt to “clearly shows the Defendant up- that there insufficient evidence to was crime ... the commission of the he failed to commit hold his conviction as friendly by remaining but chose to do so act in Dakota. on overt South Based cooperative and with the hitman.” by guiding hit-man assisting Kaiser’ the proposed him to the location of the murder Two distinct theories can be providing gun the for the murders and telephone from Defendant’s conver- drawn information, concluding other we affirmed Defendant, first, posited by sation. The is acts re- that Kaiser had committed overt himself that Defendant wished to extricate quired conspiracy for a conviction of a murder, agreed upon from an but leave the charge. that the deal perception “hit man” with the However, in there is a place.

remained today The Court enters equally plausible theory which was second acts consti- lengthy analysis whether the is, That Defen- presented the State. preparation tuted or acts the merely delay previous- wanted to dant “majority” posi- I commit murder. find the “hit man” ly planned but leave the by the to be at odds tion now taken Court knoivledge that the deal remained with prior interpretation this with Court’s place. 22-4-1. SDCL generally authorities and texts thoroughly Both theories were The However, often difficult to deter- jury. jury agree is argued to to commit theory. preparation mine when mere chose to believe the State’s ends, Therefore, a crime and when the act toward jury properly could have begins. of the crime Defendant’s actions were “done the commission concluded by its crime ... Each case must be determined toward the commission of the are completed own facts and circumstances. We progress of which would be McCabe, itself, legally the view that where the tion of in and of accord with “courts should not de- design is shown insufficient7 to constitute an and common commit stroy practical sense murder under SDCL 22-4-1. How- ever, respectfully disagree of the law with subtleties administration facts, constitutes analysis as to what Court’s of the leads it which the commission an act done toward what to find as a matter of law that Disanto of a crime.” “committed act toward the commis- [no] ¶1. Supra my sion of the offense[].” 503, 508, Pepka, 72 S.D. judgment, the Court’s of the facts view (citations omitted). (1949) supported by not the record. On the con- majority and Minute examination between trary, setting even aside Disanto's solicita- minority “preparation” views and tion, he engaged still sufficient other “perpetration” conflict with the command “acts” toward the commission of the mur- 22-1-1: SDCL jurors der such that reasonable could have penal The rule of the common law that proceeded found that he “so far that strictly statutes are to be construed has accomplishment would result in the title. All its crimi- application no crime unless frustrated extraneous cir- penal provisions penal nal and and all cumstances.” State v. 88 S.D. according statutes are to construed be 369, 372, 220 N.W.2d terms, import the fair of their with a intended clearly victims were in more dan- objects promote view to effect their ger they then than were when Disanto justice. expressed first his kill desire to them. Here there was evidence that all [¶ 56.] pull trigger. left was to As Specifically, was physically Disanto acknowledges the Court “the law of at provided photograph McCabe with a of the tempts largely victim, would be without function if vehicle, he pointed out her and he trigger it could not be invoked until the took McCabe to the victim’s home and Dillon, pulled.” Citing Cal.Rptr. was pointed her leaving. out as she was None 390, 668 P.2d at 703. of these acts were acts of solicitation. Rather, physical going] were “act[s I also conclude that the two re- toward the commission” of the murder. maining by issues raised the Defendant SDCL 22-4-1. are merit without and thus would affirm Thus, I respectfully trial court. dis- Although it is acknowledged sent. that the cases discussed the Court have found that one or more of the foregoing ZINTER, (dissenting). Justice part solicitation, acts can be of a Disanto’s join legal analysis [¶ the Court’s significant 58.] case has one distinguishing fea- concerning the distinction between solicita- ture. After his solicitation completed, was attempts tions and to commit murder.6 after the details were arranged, and after Therefore, I agree that Disanto’s solicita- completed physical Disanto acts de- join analysis However, 6. I also the Court's normally upon of Disanto’s would not rule it. defense of abandonment. argument preserved ais sub-issue of the challenging sufficiency issue of the evi- Technically, argument 7. specific was not dence. Because we must address it to rule on presented to the trial court or raised in the evidence, sufficiency proper a it is Thus, appellate briefs. the trial court did not subject appeal. for this it, opportunity an to address and we above, Consequently, to kill her. there then went even further sire he scribed implement a command support and executed sufficient evidence to fact, itself describes killing. In this Court conviction.11 “final command”8 to execute

this act as the It repeating 62.] bears that none of [¶ issued the order: “It’s the murder. Disanto the various “tests” used courts in this present in the go.”9 a This act is not possibly distinguish area of the law can all cases that invalidate solicitation Therefore, from a preparations attempts. they proceed- murder convictions because defendant’s entire course of conduct preparation.10 ed no further than light should be evaluated in of his intent Therefore, final when Disanto’s prior history in order to determine is combined plan command to execute the whether there was substantial evidence acts, this is the history with his and other from which a reasonable trier of fact could further than type proceeded of case that a of an finding have sustained found in- plans the mere solicitations and Memro, People v. 38 Cal.3d Cal. law. This combination sufficient the case Rptr. 700 P.2d acts would have resulted physical determination, making it is univer the crime accomplishment of absent sally recognized that the acts solicitation intervention of the law enforcement offi- are continuum between substantially Clearly, cer. the victim was planning perpetration of the offense. greater danger after the final command expressed preparatory first his de- acts are so as to not than when Disanto Whether ¶ merely alleged supra, 8. 1. cient because that defendant See hired, persuaded, procured another to State, another); attempt to murder Hobbs v. ¶ supra, 9. See 1977) (in (TexCrimApp SW2d noth dictment was insufficient because it did significant act 10. This execution order was ing merely pay plead promise than more of the murder after toward the commission another); a named individual to kill Hicks v. preparations were made. This act distin Commonwealth, 223, 86 Va. 9 S.E. 1024 See, guishes People the Court's cases: v. Ada (1889) (indictment insufficient because it did mi, 452, Cal.Rptr. Cal.App.3d 111 544 36 agent agreed charge that to administer not (1973) (mere acts of did not con poison, any or that she did act towards only stitute an overt act: there was a verbal the commission of the and the mere agreement between defendant and the hired another, delivery poison by person of one killer, person the selection of such to do the any do act in who refuses to administer it or portion killing, payment of a of the and design of the homicidal of the furtherance Otto, 250, consideration); 102 Idaho State v. it, person delivering an does not constitute 646, (1981) (agreement 629 P2d 651 reached attempt poison). to administer made, payment but no other overt act and 1222, identified); Davis, State v. 319 Mo. 6 n3, 11.Contrary suggestion at to the Court’s 609, (1928) (evidence going S.W.2d 612 no foregoing analysis premised supra, the is not developing arrangement further than verbal conspiracy jurisprudence. upon concepts of agent, delivery of a certain draw with the However, that, having interesting to said it is ing photographs and two of victim to the distinguishing purpose of be- note that agent, payment portion of a and the attempts preparations and is the same agreed prep tween were mere acts of consideration 597, aration); purpose requiring an act in a Molasky, as the overt State v. 765 SW2d 602 (Mo 1989) conspiracy purpose case. "The of the overt act (only prisoner talk about the banc poenitentiae, when either killings, but further act that indicated a is to afford a locus no conspirators may purpose payment money, abandon the un- seriousness of i.e. or all the Olmstead, 712, picture purpose.” U.S.v. 5 F.2d providing a other corroborative lawful Britton, State, 653, (D.C.Wash.1925) action); (citing U.S. v. v. 212 Tenn. 371 714 Gervin 531, 698). 449, 199, ( 1963) (indictment U.S. 2 S.Ct. 27 L.Ed. S.W.2d 450 insuffi- 108 attempt commit- sufficiently or are found that an had been constitute ted.12 of the crime as to close to consummation question “is a attempt,

constitute an depends upon the facts

degree and case.” Bra particular

circumstances

ham, (Alaska 631, State, 571 P.2d

1977). However, generally it 2004 SD 109 to determine whether those jury’s function Sally PAWLOVICH, Plaintiff beyond plan proceeded acts have Appellant, noted, has where ning. As this Court itself shown, “courts should not de design is and common sense ad stroy practical LINKE, Donna Defendant law with subtleties as ministration Appellee. preparation” to [the] to what constitutes 23024, 23033. Nos. distinguished commit a crime as from acts the commission of a crime. done towards Supreme Court of South Dakota. 503, 508, Pepka, State v. S.D. 1, Considered on Briefs 2004. June (1949). Therefore, should be a rare case to be decided as a Decided Oct. Ordinarily law. this issue would

matter of Sunzar, jury. left to the State v.

be (Ct.Law 751 A.2d

N.J.Super 1999). question

Div. We leave to the

jury prepara line between “[t]he because point

tion is drawn at that longer the accused’s acts no strike

where jury being equivocal unequivo

cally demonstrate that a crime is about to Miskimins, State v.

be committed.” 1989) (SD (emphasis

NW2d add

ed) (citing State v. 88 S.D. (1974)).

[¶ would follow admonition 64.] judgment jury.

and affirm the of this Di- solicitation, design, physical

santo’s acts

toward commission crime and his

final command to execute the together, unequivocally

when considered

demonstrated that crime was about to be This was

committed. sufficient evidence jury reasonably

from which the could have

12. Disanto's issues have other no merit.

Case Details

Case Name: State v. Disanto

Court Name: South Dakota Supreme Court

Date Published: Oct 6, 2004

Citation: 688 N.W.2d 201

Docket Number: None

Court Abbreviation: S.D.