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In State v. Smith, decided March 18, 2020, the SC Supreme Court reversed a conviction for attempted murder that was based on a non-existent “felony attempted murder rule.”

Smith was involved in a gunfight – he fired one shot at a group of men that the defense’s witnesses said fired at him first, but the shot missed and struck an innocent bystander, severing her spinal cord and resulting in permanent disability.

The prosecutor did not charge Smith with attempted murder of the person he intended to shoot. They did not argue “transferred intent” – if he intended to kill the intended target and if it was not in self-defense, the intent to kill would then apply to the woman his bullet struck.

Instead, they charged with him with attempted murder of the bystander, arguing that it was “felony attempted murder” because it happened during the commission of a felony, the felony being his possession of a handgun.

Why did the prosecutor seek a conviction for a non-existent crime? Why didn’t the prosecutor charge Smith with attempted murder of his intended target?


There has never been a crime of “felony attempted murder” in SC. Despite this, the prosecutor asked for and received from the Court:

1) a jury instruction of “felony attempted murder” and

2) an instruction that the jurors could imply malice (required for an attempted murder conviction) from the fact that the attempted murder happened during the commission of a felony (possession of a handgun).

Smith was in possession of a handgun, and so technically the shooting happened during the commission of a felony. He had already admitted and pled guilty to possession of the weapon in federal court, and, during trial in the state court, he acknowledged he fired the shot that struck the bystander but argued that he was acting in self defense.

The Supreme Court reversed his conviction, noting that there is no crime of felony attempted murder in SC and that other states have also rejected the notion of felony attempted murder as a “logical absurdity:”

First, as a majority of states have found, felony attempted-murder is not a recognized crime. Cf. State v. Sanders, 827 S.E.2d 214, 219-22 & n.9 (W. Va. 2019) (collecting an extensive list of cases, all of which note the “logical absurdity” of recognizing the crime of felony attempted-murder). As a result, the trial court’s instruction to the jury regarding the requirements and consequences of felony attempted-murder was erroneous.

What is Felony Murder?

To prove murder, the prosecution must prove that the defendant had the intent to kill the victim – with malice aforethought.

If a person is killed during the commission of a felony, however, the prosecution does not need to prove intent to kill. To convict the defendant of murder, the state only needs to prove 1) that the defendant intended to participate in the underlying felony and 2) that someone died during the commission of the felony.

For example, if Bob and Jim commit a burglary together and, while Bob keeps a lookout outside, Jim shoots and kills the residents of the house, both Bob and Jim can be convicted of murder. Even if Bob did not intend to hurt anyone and did not know that Jim had a gun, Bob can be convicted of murder under the “felony murder rule” as if he had pulled the trigger himself.

If Smith had been robbing a convenience store with an accomplice, and the accomplice shot and killed the store clerk, Smith could be convicted of murder even if he did not pull the trigger himself and even if he had no intent to kill the clerk.

But – the “felony” Smith was committing was the fact that he was in possession of a handgun, not a robbery or burglary. He admitted the intent to kill when he claimed self defense. Why did the prosecutor attempt to convict him under a non-existent “attempted felony murder rule?”


The prosecutor admitted on the record that they were determined to get a jury instruction on “implied malice,” reasoning that the jurors must find malice aforethought before convicting Smith of attempted murder:

Additionally, the State argued the felony attempted-murder charge was permissible because it was merely “another way to infer malice.”

However, the prosecutor surely knew that the SC Supreme Court has repeatedly rejected the use of an implied malice charge when there is evidence of self defense – if Smith says he was acting in self defense, he has admitted the intent to kill. The jurors can then find that 1) the intent to kill was justified (acquittal) or 2) that it was not justified (guilty verdict):

In claiming self-defense, Smith admitted he had an express intent to kill, but argued his intent to kill was legally justified due to an imminent threat to his life from the rival group. Thus, there was no need for the jury to infer his malice from the circumstances surrounding the shooting. Rather, the jury was faced with the choice of either believing Smith’s story and finding he acted in self-defense, or believing Smith had a self-admitted intent to kill that was not legally justified-the very definition of express malice. See, e.g., State v. King, 422 S.C. 47, 57, 810 S.E.2d 18, 23 (2017) (defining express malice as the deliberate intention to unlawfully kill another (quoting Keys v. State, 766 P.2d 270, 273 (Nev. 1988))). In either case, an implied malice charge was wholly unnecessary to the jury’s decision.

Knowing that they were prohibited from asking for an implied malice charge, the prosecutor admittedly sought a conviction on the nonexistent charge of felony attempted murder solely to get a jury instruction from the Court on implied malice… and the trial judge agreed.

Why Wasn’t Smith Charged with Attempted Murder of the Person He Shot At?

Smith was a member of the Bloods, and the individuals that he fired at may also have been gang members.

The bystander was, as far as we know, an innocent third-party, much more sympathetic to a jury than a gang member who was involved in an altercation. Her injuries, which the prosecutor laid out in great detail for the jurors, were heartbreaking and allowed the prosecutor to make an emotional appeal for conviction.

On appeal, the State represented to the Court that, if the conviction was reversed, it would re-charge Smith with three counts of attempted murder for firing at the rival group, and then charge him with assault and battery of a high and aggravated nature on the bystander-victim. Do they get two bites at the apple? Is that the reason they did not charge Smith with attempted murder of the rival group in the first place?


If you have been charged with a crime or believe you may be under investigation in SC, call Axelrod and Associates now at 843-353-3449 or send an email to talk with a Myrtle Beach, SC criminal defense attorney today.

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