LEGAL MEMORANDUM

TO:	Judge Virginia Vinson

FROM:	Clark V. Stewart

Student Number: 4666

DATE:	August 2, 2005

RE:	Beach Attack

Given the fact scenario it is clear that D had an intent to kill V1, V2, and V3. This intent makes him liable for their injuries and D should be charged with capital murder, attempted murder, and first degree assault.

I.	Capital Murder

D's murder of V1 should be elevated to capital murder under Alabama Criminal Code §13A-5-40(a)(17) as a "murder committed by or through the use of a deadly weapon while the victim is in a vehicle." The facts clearly show that defendant was standing beside the vehicle when he opened fire into the vehicle. Under the Alabama Criminal Code a defendant commits murder if he/she (1) acts with an intent to cause the death of another. Defendant intended to kill V1 because he was a member of a rival gang, "So you Tonto from Blue Gang." (R1). Alabama case law provides that evidence of gang affiliation may be admitted to prove motive - that D had a specific intent to murder the victims. Jordan v. State, 629 So.2d 738 (Ala. Crim. App. 1993).

II	Attempted Murder

D's act of shooting the passengers of V1's vehicle constitute attempted murder under §13A-4-2(a) of the Alabama Criminal Code as he committed an overt act in furtherance of an attempt to murder the passengers. But for V1's driving off, V2 and V3 would likely have been murdered as well. See also Cheney v. State, 417 So.2d 625 where the court found that an intent plus an act constitute an attempted crime.

III.	Assault First Degree

D should be charged with first degree assault as a lesser included offense to the charge of attempted murder. D's shooting of V2 and V3 qualifies as first degree assault under §13A-6-20(a) if with the "...intent to cause serious physical injury to another person, he causes serious physical injury to any person by means of a deadly weapon..." Intent to take life may be shown by inference, via character of assault, use of deadly weapon, and other attendant circumstances, and jury may give such evidence such emphasis and weight as they alone think proper in arriving at their verdict. Smith V. State, 344 So.2d 213 (Ala. Crim. App. 1977). Clearly D's use of a handgun qualifies as a deadly weapon, and the injuries sustained by V2 and V3 certainly qualify as "serious" by medical standards.

The record reflects that D clearly had a malicious intent followed by an overt act. When V1 pulled alongside the defendant his fellow gang member immediately pulled a pistol and asked if he was Tonto from the Blue Gang. When he answered affirmatively D shot and killed him. It is this malicious intent and the act of shooting his victims that is essential to the validity of the charges brought against the defendant.

D obviously intended to kill V1, thus the murder charge should stand. The fact that he shot into a vehicle elevates the murder by statute to capital murder. The fact that D did not have a chance to kill V2 and V3 is by sole virtue of V1's driving away. Had V1 not escaped then it is presumable that their wounds would have been more severe had D gotten a clean shot. He intended to kill them, and his act of shooting them constitutes attempted murder. As a lesser included offense to the attempted murder, D should be charged with assault in the first degree as he intended to cause a serious physical harm to V2 and V3 and in fact did so with a deadly weapon.

For the foregoing reasons Defendant D should be charged with capital murder, attempted murder, and assault in the first degree.