Deciding Whether Attempt Merges

Deciding Whether Attempt Merges

The rules in this chapter work as a sequence, and running them out of order is the usual way to reach a wrong result. The sequence follows from what merger is: an attempt can be absorbed only by something that was actually finished, so the first question concerns completion and every later question depends on its answer. The starting point is the common-law doctrine, which treated solicitation, attempt, and conspiracy as misdemeanors in their preliminary form and regarded that conduct as merged into the felony once the principal offense was completed.¹ The modern rule reaches the same result for attempt by a different route, and the method below is built to work under either.

Step 1 comes first because merger presupposes a finished offense, and an attempt is not defined by failure. In Berry v. State the court read the statutory phrase about acts showing the defendant would have committed the crime except for the intervention of another person or some other extraneous factor as a measure of how far the conduct must go, namely past the point where the person could still turn back, and it refused to make failure a separate element of attempt.² Commonwealth v. LaBrie, a Massachusetts decision, adds the practical reason: if the State had to prove that the attempt failed, a jury with a reasonable doubt about completion could find the defendant guilty of neither the completed offense nor the attempt.³ The standard of proof explains why attempt is the fallback. The completed offense counts as proved only if the State establishes every element beyond a reasonable doubt, as In re Winship requires, so doubt about completion removes the completed offense from the verdict without removing an attempt that the evidence otherwise establishes.⁴

The alternative verdict is available only when the evidence supports it. A defendant on trial for burglary who relies on an alibi, or who admits being inside but claims an innocent purpose, leaves the jury a choice between guilty and not guilty, while a defendant who contends that the entry had not yet occurred when apprehended puts attempted burglary in play.⁵ The completed offense must also be the one the attempt targeted. Attempted murder requires an intent to kill the particular alleged victim, and the defendant's mental state is examined separately for each alleged victim, so a completed killing of one person is not the completed version of an attempt against a different person who survived.⁶ In that situation the attempt count is judged on its own and nothing is absorbed.

Once completion is proved, step 2 turns on which doctrine the stem uses, because the two reach the same bottom line by different reasoning. At common law the attempt was a misdemeanor and the completed crime a felony, so the preliminary conduct was treated as merged into the felony.⁷ The doctrine was tied to that difference in grade, which is why the problem did not arise when the completed offense was itself a misdemeanor or when a statute made the attempt a felony.⁸ Modern courts no longer treat the grade gap as controlling, yet they still refuse to let a defendant stand convicted of both the attempt and the completed crime, even in jurisdictions that permit convictions for both conspiracy and the completed crime, and statutes saying so are not uncommon.⁹ The attempt consists entirely of elements that the completed crime also contains, so a second conviction would punish the same conduct twice. A stem that specifies common-law rules therefore calls for a comparison of grades before anything merges, while a stem that is silent calls for the modern bar, under which the completed crime is the sole conviction.

Steps 3 and 4 sort the remaining inchoate counts by the same test, which is whether the count adds anything the completed crime lacks. Solicitation merges like attempt, as the earlier section showed, but conspiracy adds the agreement, so in most jurisdictions a conspiracy conviction survives beside the completed crime.¹⁰ A separate limit applies when the crime is not completed and the State charges two inchoate offenses with the same objective. Some state statutes provide that a defendant may not be convicted of an attempt and another inchoate crime aimed at the same objective,¹¹ and the Model Penal Code limit on multiple inchoate convictions, taught earlier in this chapter, belongs to the same step. The reason is that both counts measure the same danger, the risk that the target crime will be committed, so a conviction on each would punish that single risk twice.

A combined fact pattern shows the four steps running together, first with the robbery proved and then with one fact changed.

The two outcomes differ in one fact, whether the completed robbery was proved, and that fact alone moved the attempt count from absorbed to convictable. The conspiracy count survived both times because the agreement is an element the completed crime lacks.¹² Students lose this issue when they treat merger as automatic: merger requires a proved completed offense, so a stem that leaves completion in doubt sends the analysis to the attempt count rather than away from it.¹³ The stem's own wording is the second check. When the question asks for common-law rules, the grade comparison taught in the opening sections of this chapter governs, and the attempt merges only into a completed felony.¹⁴