State v. VigilState v. Vigil
- Reporters:
- , , ,
- Before:
- Zimmerman
Wilfred A. Vigil, Jr., appeals from a trial court order denying a motion he directed against two counts of an information filed against him. He moved to amend one count of attempted second degree murder and to dismiss a second count of attempted second degree murder. The sole question presented on appeal is whether the trial court correctly ruled that Vigil could be prosecuted for attempted second degree murder under the depraved indifference alternative of section 76-5-203(l)(c) of the Code.
Because the facts are unimportant to the issue before us, we will summarize them briefly. Vigil was charged with one count of second degree murder, a first degree felony,
We first state the standard of review. The question of whether Utah recognizes attempted depraved indifference homicide is purely a matter of statutory interpretation. Therefore, we review the trial court’s ruling for correctness and give no deference to its conclusions. State v. Petersen, 810 P.2d 421, 424 (Utah 1991); City of Monticello v. Christensen, 788 P.2d 513, 516 (Utah), cert. denied, — U.S. -, 111 S.Ct. 120, 112 L.Ed.2d 89 (1990); Provo City Corp. v. Willden, 768 P.2d 455, 456 (Utah 1989).
The issue before us is narrow. We are asked to determine whether proof of the “knowing” mental state required for depraved indifference homicide under
We begin with the two statutes. The first is the second degree murder statute, which sets out several alternative formulations of second degree murder.
The other statute of concern is the attempt statute, section 76-4-101. The mental state required by the attempt statute is found in the first two paragraphs, as indicated by emphasis below:
(1) For purposes of this part a person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for the commission of the offense, he [or she] engages in conduct constituting a substantial step toward commission of the offense.
(2) For purposes of this part, conduct does not constitute a substantial step unless it is strongly corroborative of the actor’s intent to commit the offense.
(3) No defense to the offense of attempt shall arise:
(a) Because the offense attempted was actually committed; or
(b) Due to factual or legal impossibility if the offense could have been committed had the attendant circumstances been as the actor believed them to be.
Paragraph (1) of the attempt statute provides that an attempt can occur whenever the actor acts with the “kind of culpability otherwise required” for the completed crime and his or her act is a “substantial step” toward committing the crime.
On the other hand, paragraph (2) of the attempt statute states that the defendant’s conduct must be corroborative of his or her “intent to commit the offense.”
However, closer examination indicates that paragraphs (1) and (2) are not contradictory. “Culpability,” the term used in paragraph (1), and “intent,” the term used in paragraph (2), are distinct concepts. Intent is a mental state. Black’s Law Dictionary 415 (5th abr. ed. 1983). Culpability, on the other hand, refers to blameworthiness, id. at 200; 25
C.J.S. Culpability (1966), a value society assigns to particular behaviors that it deems punishable. Culpability is an inclusive term that comprehends actions or omissions, the mental state with which they are done, and the circumstances in which the acts or omissions take place. See Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law § 24 (1979) [hereinafter Criminal Law ]. Thus, although culpability includes consideration of the actor’s mental state, it is a much broader concept than intent. See 25 C.J.S. Culpable (1966) (defining culpability as “deserving punishment ... or blame or censure,” but noting that it does not necessarily connote “guilt,” “malice,” or “guilty purpose”). 3
With this distinction in mind, we interpret paragraphs (1) and (2) of section 76-4-101. In doing so, we rely on two well-established rules of statutory construction.
Cf.
Applying these two rules to the attempt statute resolves the apparent contradiction between paragraphs (1) and (2). The more specific requirement of intent in paragraph (2) (i.e., “intent to commit the [underlying] offense”) takes precedence over the general culpability requirement in paragraph (1) (i.e., “culpability otherwise required for the commission of the [underlying] offense”). And to give the fullest possible effect to the terms of paragraphs (1) and (2), we construe the culpability requirement in paragraph (1) to refer to the attendant circumstances, if any,
4
of the un
Our construction of Utah’s attempt statute finds support in the attempt provisions of the Model Penal Code (“MPC”) and the 1971 Proposed Federal Criminal Code (“PFCC”), both of which served as bases for the Utah provision. See State v. Pearson, 680 P.2d 406, 408 (Utah 1984) (per curiam) (noting that the Utah attempt statute was modeled after the MPC version); Loren Martin, Utah Criminal Code Outline 169 (1973) (noting that the Utah attempt statute was modeled after section 1001 of the PFCC); cf 1 National Commission on Reform of Federal Criminal Laws, Working Papers of the National Commission on Reform of Federal Criminal Laws 351-52 (1970) (relying on the stated purposes of the MPC attempt provision as the current penalogical thinking) [hereinafter National Commission Working Papers ].
Both the MPC and PFCC provisions include two phrases regarding the requisite mental states for attempt that are the same as or analogous to the provisions of the Utah attempt statute. One phrase is the “kind of culpability otherwise required” that is also used in paragraph (1) of the Utah attempt statute. The other phrase specifies the mental state necessary for the conduct that constitutes the substantial step, which corresponds to the “intent” requirement in paragraph (2) of the Utah attempt statute.
See
Model Penal Code § 5.01(1), (2),
reproduced in
1 Amer. L.Inst.,
Model Penal Code and Commentaries
295-96 (1985) [hereinafter
MPC Commentaries
]; Proposed Federal Criminal Code § 1001(1),
reproduced in
1 National Commission on Reform of Federal Criminal Laws,
Final Report of the National Commission on Reform of Federal Criminal Laws
6 (1971). The commentaries to the MPC and PFCC attempt provisions indicate that the clause requiring the “kind of culpability otherwise required” for commission of the offense refers to the attendant circumstances of the underlying offense and the requisite mental states for those circumstances.
See MPC Commentaries
§ 5.01, at 301, 303;
National Commission Working Papers
at 355. In contrast, the commentaries make clear that both the MPC and PFCC attempt provisions require a more culpable mental state than recklessness for conduct that creates
Despite the foregoing support for limiting the Utah attempt provision to offenses requiring intent, the State argues that we should define “intent” in paragraph (2) of the attempt statute broadly to include purposeful intent and “equivalent” mental states, specifically, that required for depraved indifference homicide. The State reasons that this makes sense from a policy standpoint because the culpability of a person convicted of depraved indifference second degree murder is the same as the culpability of a person convicted of intentional second degree murder. See Standiford, 769 P.2d at 258; Fontana, 680 P.2d at 1045. In short, the State argues that the degree of the murder (i.e., “first” or “second”) is a measure of the societal judgment about the criminal‘s culpability and therefore murders of equal degree should be treated similarly.
Notwithstanding the apparent logic of this argument, the State’s suggested interpretation of “intent” in paragraph (2) of the attempt statute is contrary to the definition given to it by the legislature. Section 76-2-103(1) of the Code states that a person engages in conduct intentionally “with respect to the nature of his [or her] conduct or to the result of his [or her] conduct, when it is his [or her]
conscious objective or desire
to engage in the conduct or cause the result.”
Moreover, the State’s position is inconsistent with our prior decisions. In
State v. Bell,
785 P.2d 390 (Utah 1989), we addressed the question of whether there could be attempted felony-murder under subparagraph (d) of the second degree murder statute.
In two other cases, we considered attempt in the context of Utah’s manslaughter statute, which sets out three alternative formulations of manslaughter.
In State v. Norman, 580 P.2d 237 (Utah 1978), we addressed the first two formulations. We held that an attempt cannot be charged where the attempted crime is the form of manslaughter described in subpar-agraph (a) of the statute because that formulation requires only the mental state of recklessness, whereas “[a]n attempt to commit a crime is an act done with the intent to commit that crime....” Id. at 239 (emphasis added). Regarding subpara-graph (b), we held that attempted manslaughter is possible under this formulation because “the killing may be intentional but due to mental or emotional disturbance on the part of the defendant.” Id. at 240 (emphasis added).
We addressed the third formulation in
State v. Howell,
649 P.2d 91 (Utah 1982). There we held that attempted manslaughter can be charged for a crime described under subparagraph (c) of the manslaugh
At bottom, the State seeks to replace the word “intent” in paragraph (2) of the attempt statute with, as it says, “intent
or
a mental state that is equivalent thereto” and to modify or reject the holdings of
Bell, Norman,
and
Howell.
Although it may make sense to allow attempt for homicide offenses that are presumably equal in culpability to intentional murder, we believe that the most reasonable approach, in light of the statutory language and our cases, is to read the word “intent” in paragraph (2) of the attempt statute as that word is defined in
Clarity is crucial to a just criminal law system. Jurors are instructed to apply the language set forth in our penal statutes to determine criminal liability. Articulating the various mental states required for the various crimes in the Code is difficult enough without giving multiple meanings to the word “intent.”
We hold that to convict a defendant of attempted second degree murder, the prosecution must prove that the defendant had a conscious objective or desire to cause the death of another. Because the mental state required for depraved indifference homicide falls short of that intent, the crime of attempted depraved indifference homicide does not exist in Utah.
The order of the trial court denying Vigil’s motion to dismiss and amend is reversed.
HALL, C.J., HOWE, Associate C.J., and STEWART and DURHAM, JJ., concur.
Notes
. In 1991, the legislature changed “second degree murder” to simply “murder” and “first degree murder” to “aggravated murder.” 1991 Utah Laws ch. 10, §§ 7-9 (codified as amended
. In Standiford, we held that to convict a defendant of depraved indifference homicide, the jury must find “(1) that the defendant acted knowingly (2) in creating a grave risk of death, (3) that the defendant knew the risk of death was grave, (4) which means a highly likely probability of death, and (5) that the conduct evidenced an utter callousness and indifference toward human life.” 769 P.2d at 264.
. We are aware that culpability is sometimes used inter-changeably with mental state: However, we think that this usage is imprecise.
. “Attendant circumstances” are those circumstances that may be required to be present for criminal liability in addition to the requisite physical conduct, or actus reus, and the mens rea specified for the offense.
See Criminal Law
§ 34, at 237, 240-41. In general, mens rea means “guilty mind,” that attribute which, along with physical conduct, was required for criminal liability under common law,
see id.
§ 27, at 191-92, and is now required by statute except
for strict liability offenses.
See
Occasionally, an offense may require a certain mental state for an attendant circumstance. For example, under section 76-5-202(l)(k) of the current Code, a person is guilty of aggravated murder (“first degree murder” under the 1990 statute) if he or she intentionally or knowingly causes the death of a police officer acting in an official capacity and the person knew or “reasonably should have known” that the decedent was a police officer.
Id.
§ 76 — 5—202(l)(k). The mens rea element for this offense is intent or knowledge, whereas the attendant circumstance that the decedent was a police officer requires at least a negligent mental state. Some offenses do not have attendant circumstances, such as the intentional or knowing formulation of murder (“second degree murder” under the 1990 statute), which requires only conduct that intentionally or knowingly causes the death of another.
. In
State v. Maestas,
652 P.2d 903 (1982), we rejected an argument that the Utah attempt statute required a higher level of “intent” than that required for first degree murder. In so holding, we interpreted paragraph (1) of the Utah attempt statute as making “clear that regardless of any requirements which the common law may impose concerning ‘attempt’ crimes, Utah law requires only ‘the kind of culpability otherwise required for the commission of the [completed] offense.’
” Id.
at 904 (brackets in original) (quoting
The first alternative rationale relied on in
Maestas
is clearly inconsistent with our cases in
Bell, Howell,
and
Norman
and with our holding in the instant case. Thus, that portion of
Maes-tas
that conflicts with these cases and today’s holding is incorrect. However, we note that
Maestas
is still good law insofar as it authorizes prosecution for attempted aggravated murder under the intentional or knowing formulation of section 76-5-202(1) or attempted murder under the intentional or knowing formulation of