The Hazards of Making Statements While Being Arrested

Guido and his girlfriend had a loud argument at her apartment building. Harvey, a carpenter working in the building, intervened and asked them to stop. Guido and Harvey had a brief but heated dispute. The apartment manager persuaded Guido to leave without further incident.

The next day, Harvey resumed his work at the apartment complex. That afternoon, he went to his truck to retrieve some tools and saw Guido in the parking lot. Guido began shouting and asked Harvey if he wanted to fight. Guido then lunged at Harvey who responded by punching Guido several times. Guido then got in his car and said “I’ll just run you over.” He drove his car toward Harvey twice. Both times Harvey was able to evade contact. Guido then told Harvey he would go get his gun and drove away.

Harvey contacted law enforcement. After arriving on the scene, the police and Harvey discussed the incident in the apartment complex parking lot. During this discussion, Harvey spotted Guido’s car coming down the street. The vehicle stopped abruptly, turned around, and headed in the opposite direction. The officers pursued and stopped the vehicle. They discovered Guido in the car and a loaded semi-automatic .22 caliber rifle on the floorboard. Guido was arrested and read his Miranda rights. During processing, he told the booking officer: “I lost it, I went home, got my gun, and came back to kill him.” He was charged with aggravated assault and attempted first degree murder.

The attempt statute in the state where these events occurred is fairly typical of similar statutes in other states and provides as follows:

    A person is guilty of an attempt to commit a crime if:

    With the intent to commit the crime, he does any act which is a substantial step towards commission of the crime. A “substantial step” is conduct which is strongly corroborative of the firmness of the person’s intention to complete the commission of the crime.

Prior case law from the Supreme Court of the state has held, similarly to courts in most other states, that acts of mere preparation to commit a crime do not satisfy the “substantial step” requirement of the attempt statute.

Assume that Guido is guilty of aggravated assault for trying to run down Harvey with his car. Is he also guilty of attempted first degree murder? If so, what evidence will the prosecutor rely upon to prove that Guido intended to kill Harvey and took a substantial step toward towards commission of that crime?

Guido was convicted of both counts.

On appeal of his conviction for attempted first degree murder Guido made the following arguments to the court:
He maintains that his conduct was simply driving on a public street (not a crime) and possessing a .22 rifle (also not a crime in that state) so there was no conduct “strongly corroborative” of a premeditated intent to kill Harvey, as the attempt statute clearly requires. He also asserts that his actions did not move beyond mere preparation because he “never pointed, brandished or even showed the gun to Harvey. He maintains that his actions were too far removed from the requisite act of killing any human being, and that Harvey was unaware that Guido intended to kill him with the loaded rifle.

The appellate court, in reviewing Guido’s conviction for attempted first degree murder, answered Guido’s arguments and held as follows:

Essentially, Guido asks us to ignore other evidence that provides context to his possession of the weapon. We must consider that evidence. The facts establish that Guido and Harvey engaged in a verbal and physical altercation. Guido unsuccessfully tried to hit Harvey with his car. He then cursed and told Harvey that he was going to get his gun. He went to his house, retrieved the loaded weapon, and was returning to the scene of the altercation when he spotted law enforcement. Most damning to Guido’s position was his statement to the police that “I lost it, I went home, got my gun, and came back to kill him.” This unequivocal statement of intent to kill is relevant in evaluating whether the conduct at issue satisfies the substantial step requirement. When the intent to commit murder is clearly shown, slight acts in furtherance thereof will constitute an attempt to murder.

Guido’s conviction was affirmed.

Guido and Harvey are fictitious names but these are essentially the facts and holding in Gentilini v. State, ___ P3d ___ (Wyo. 2010).

Washington super lawyer Bob Bennett, brother of Bill Bennett, is an avid fly fisherman. He has a bass that he caught mounted on a plaque hanging on his office wall. The inscription on the plaque reads, “If I had kept my mouth shut I wouldn’t be on this wall.”

If Guido had kept his mouth shut when he was arrested he might still have been convicted of aggravated assault, but would probably have avoided his conviction for attempted first degree murder. Guido might have heard the voice of reason for the first time during the police booking procedure, realized that his actions had been outrageously stupid and felt the need to explain himself. He probably had no idea what a life-changing moment that was going to be for him.

Guido’s behavior in this case is classical criminal thinking and acting out. His pride is hurt deeply by what he considers to have been disrespect by Harvey in requesting him to stop his loud argument with his girlfriend. He is so riled up over it that a full day later he has not cooled off enough to think about the probable consequences of furthering the confrontation. Then he gets his pride damaged even more when he gets the worst of a fist fight that he started, and strikes out again when he tries to run Harvey over with his car. If he had stopped at that point and been willing to let it go, it might have ended there. If he hadn’t told Harvey he was going to get a gun, Harvey might not have contacted the police. Even though Harvey got the police involved it still might not have resulted in criminal charges if Harvey had declined to press it, or it might have ended in a misdemeanor charge.

Guido demonstrates something that I have long tried to understand. Do criminals suffer from low self esteem? I think the answer is no, in fact they suffer from an inflated sense of self. That is the only explanation for why they are so willing to engage in senseless violence over petty insults that normal people would slough off.

By not thinking about consequences until it was too late, a classic trait of the criminal mind, Guido will now spend the most productive years of his life locked away in a prison cell, with people who will likely give him no respect at all.

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