A is a long-time sufferer of coulrophobia, an irrational fear of clowns. He maintains a popular anti-clown website, smellyclowns.com, where he vents his hatred of the clowning profession. One day, A posts the following note to the website’s news feed: “Tomorrow is the day I strike back. Tomorrow is the day I kill a clown.”
The next day, A buys several pounds of party supplies, as well as hardware, a cream pie, and a hand gun. He then laboriously constructs what he calls a “clown trap.” The trap is designed to attract and trap a clown for A to shoot and kill.
A decorates the trap with party ribbon, balloon animals, and glitter, and then he places a cream pie lure at the center. (A believes that clowns find cream pies irresistible.) The cream pie, once touched, triggers a non-lethal trap that captures and binds the touching hand. The trap’s purpose is to keep the clown stationary long enough for A to reach into a nearby cabinet, grab the hand gun he has concealed there, and shoot the clown.
Having finished the trap, A takes it down to the local mall, which clowns frequent. A waits for six hours before the first clown shows up. The clown strays towards the trap and examines a balloon animal, but then leaves without touching the cream pie.
The second clown is not so lucky. He leans inside the trap and tries to take the cream pie. The trap then snares the clown’s hand, sending the clown into a state of panic. Slowly, A walks towards the cabinet, grabs the gun, and takes aim at the clown’s head. A draws in a shaky breath and pulls the trigger—but the weapon misfires. An astute mall security guard notices both the trapped clown and A holding a handgun. The guard tackles A to the ground, takes the gun, handcuffs A, and then turns A over to state law enforcement officers.
In a common-law jurisdiction, A is arrested and charged with one count of attempted murder. Murder is defined as “the killing of another human being with malice aforethought.”
Assume that the prosecution can prove the above facts at A’s trial, that A’s mental state satisfies the mens rea of attempted murder, and that A does not have a valid defense of impossibility.
- Under both the dangerous-proximity and probable-desistance tests, at which of the following points in the above fact pattern does A’s conduct satisfy the actus reus of attempted murder:
(1) when A posts, on his website, his intention to kill a clown;
(2) when A gathers materials to construct the clown trap;
(3) when A sets up the clown trap at the mall;
(4) when the first clown walks up to the trap;
(5) when the second clown is captured by the trap; or
(6) when A points a handgun towards the second clown?
Explain, separately applying the dangerous-proximity and probable-desistance tests, but do not consider any other test and do not apply the Model Penal Code.