Criminal Practice – Attempted Murder – Specific Intent – Evidence – Hearsay

State v. King (Lawyers Weekly No. 011-040-15, 14 pp.) (John Few, C.J.) (H. Bruce Williams, J., concurring in the result only without separate opinion) Appealed from Charleston County Circuit Court (J.C. Nicholson Jr., J.) S.C. App.

Holding: In light of our appellate courts’ prior rulings that specific intent is required for attempt crimes, we hold that the General Assembly intended to require the state to prove the specific intent to kill as an element of attempted murder when it enacted S.C. Code Ann. § 16-3-29: “A person who, with intent to kill, attempts to kill another person with malice aforethought, either expressed or implied, commits the offense of attempted murder.” The trial court erred when it charged the jury that a specific intent to kill is not an element of attempted murder.

We reverse defendant’s conviction of attempted murder and remand for a new trial. We affirm defendant’s convictions of armed robbery and possession of a firearm during the commission of a violent crime.

When a police officer testified as to the number of shots fired, she testified to the content of neighbors’ out-of-court statements. The state offered her testimony to prove the truth of the neighbors’ statements; therefore, her testimony as to the number of shots fired was hearsay.

The admission of the officer’s hearsay testimony was prejudicial as to defendant’s attempted murder conviction but not as to his other convictions.

There is no evidence contradicting the victim-taxi driver’s testimony that defendant shot the victim in the cab during an attempt to rob him. The victim testified he handed “give away money” to defendant while they were still in the cab.

However, the state bolstered its attempted murder case with evidence that defendant chased the victim down the street while continuing to shoot at him, yet officers found only one shell casing in the area. It seems highly unlikely that defendant could have robbed and shot the victim in the cab, chased him down the street while shooting at him, and then retrieved all the shell casings in the dark in the few minutes before an officer arrived on the scene.

Reversed and remanded in part, affirmed in part.