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Criminal Practice – First Impression – Conspiracy to Commit Attempted First-Degree Murder

Since a failure to complete the crime is not an element of an attempt to commit the crime, conspiracy to commit attempted first-degree murder is a crime.
We find no error in defendant’s convictions of attempted first-degree murder and conspiracy to commit attempted first-degree murder. Because defendant has conceded that he could not appeal his sentences as a matter of right, we dismiss his appeal of his sentences.
State’s Evidence
After robbing a restaurant, defendant and two others led a deputy on a high-speed chase. At one point, the getaway car stopped, and defendant leaned out a back window, aimed a gun, and shot at the deputy. The deputy ducked down before the shot was actually fired.
Whether conspiracy to commit attempted first-degree murder is a crime is an issue of first impression for this court, and presents, defendant argues, “an illogical impossibility and a legal absurdity,” insofar as it would criminalize agreements not to commit murder. Though this argument does appear convincing at first blush, a full examination of the common law surrounding both conspiracy and attempted first-degree murder lead us to hold that the indictment is valid.
A criminal conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means. Attempted first-degree murder is most certainly a crime. Thus, from a purely formulaic perspective, the indictment alleges both elements of conspiracy: (1) an agreement between Gerald Holmes and defendant (2) to commit an unlawful act, i.e., attempted first-degree murder.
Crucially, conspiracy is a common law crime in North Carolina, as is attempted first-degree murder.
While failure precludes a conviction for a completed crime, it is not necessary to support a conviction for criminal attempt of that same crime. Such an understanding is consistent with the common law’s treatment of attempted first-degree murder as a lesser included offense of first-degree murder. A conclusion that failure to kill is an essential and necessary element of attempted first-degree murder cannot be squared with the definition of a lesser included offense, as failure is most certainly not an element of the greater offense of a completed first-degree murder.
Given that failure need not actually be proven to convict a defendant of attempt, and that attempted first-degree murder is a lesser included offense of first-degree murder, the charge of conspiracy to commit attempted first-degree murder does not require the state to prove defendant intended to fail to commit the attempted crime itself. As a result, we hold that conspiracy to commit attempted first-degree murder is a cognizable offense and, with all other elements of conspiracy appearing in the indictment, was adequately charged in this case.
Motion to Dismiss
Defendant next argues that the trial court erred in denying his motion to dismiss all charges for insufficiency of the evidence, contending that the evidence shows only that he fired a pellet gun in an attempt to scare the deputy away. A pellet gun was found in the backseat and a Beretta pistol was found on the front floorboard of the getaway car.
Defendant is incorrect in his claim that the evidence shows only that he fired a pellet gun with an intent to scare off the deputy. The deputy testified that she saw defendant point a gun at her face and that she heard a gunshot after ducking behind her dashboard.
While it is possible that the gun was not pointed at the deputy when defendant pulled the trigger, the jury could draw a reasonable inference from the deputy’s testimony to find the gun remained pointed at her when she heard it seconds later. Contrary to defendant’s argument, such an inference is no less reasonable because the deputy took quick evasive action in the interest of self-preservation.
Antonio Pratt, who was the getaway driver during the chase, also provided the following testimony indicating that defendant discharged a firearm rather than a pellet gun: “I heard [Holmes] say ‘Shoot, bro. Shoot.’ … He had to be talking to [defendant] … I just looked at Holmes. I heard [a] boom … I want to say [defendant] fired the shot.” Further, Pratt was unequivocal in his testimony that Holmes did not have a gun in his hand when the shot rang out.
Our standard of review on a motion to dismiss compels us to adopt the reasonable inference most favorable to the state from this evidence, which, in this case, is an inference that defendant aimed and fired a gun at the deputy following instruction from Holmes.
Dismissed in part; no error in part.
(Berger, J.) I write separately because I would reach the same result through different reasoning.
The state satisfied its burden of proving that defendant was a member of a conspiracy to commit first-degree murder. Since the inclusion of the word “attempted” in the indictment did not prejudice defendant at trial, this surplusage can properly be ignored.
State v. Lyons (Lawyers Weekly No. 011-315-19, 22 pp.) (Lucy Inman, J.) (Philip Berger, J., concurring) Appealed from Johnston County Superior Court (Imelda Pate, J.) Neil Dalton for the state; James Parish for defendant. N.C. App.

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