State v. Tackmier, 1993 Wisc. App. LEXIS 1412 (WI Ct. App. 3 1993)

State v. Tackmier, 1993 Wisc. App. LEXIS 1412 (WI Ct. App. 3 1993)

Court of Appeals of Wisconsin, District Three

November 9, 1993, Released

No. 93-0891

1993 Wisc. App. LEXIS 1412 | 180 Wis. 2d 470 | 514 N.W.2d 54

STATE OF WISCONSIN, Plaintiff-Respondent, v. DEAN R. TACKMIER, Defendant-Appellant.

Judges: Before Cane, P.J., LaRocque and Myse, JJ.

Opinion by: BY THE COURT; CANE


CANE, P.J. Dean Tackmier appeals that part of a judgment convicting him of attempted second-degree murder and the order denying his postconviction motion to vacate, set aside or correct the conviction. Tackmier argues that there is no such crime as attempted second-degree murder, and therefore his sentence for such crime should be vacated, set aside or corrected. Because we conclude that attempted second-degree murder is a crime under the homicide statutes as they existed at the time the acts occurred, [1] we affirm.

Tackmier was charged with seven counts; among them were one count of attempted murder by choking and one count of attempted murder by pushing a person out of a moving motor vehicle in violation of secs. 940.01 and 939.32(1)(a), Stats.

Following the testimony at the jury trial, the trial court instructed the jury regarding attempted first-degree murder and attempted second-degree murder. The jury found Tackmier guilty of two counts of attempted second-degree murder, one count of kidnapping, one count of endangering safety and two counts of aggravated battery.

Tackmier argues that the attempt statute requires that Tackmier intended to commit the crime of second-degree murder; that is, Tackmier argues, the intent to cause the death of the victim. Therefore, because intent to cause death is not an element of second-degree murder, and in fact the lack of intent is what distinguishes second- from first-degree murder, there can be no such crime as attempted second-degree murder.

In response, the state argues that the attempt statute does not require that Tackmier intended to cause death. It only requires that Tackmier intended to perform the acts that, if not frustrated by the intervention of some extraneous factor, would produce the particular result proscribed by the attempted crime under circumstances that would constitute that crime if the result occurred. Thus, in a homicide case, the intent element of attempt would be satisfied if the defendant intended to engage in acts that would have caused death but for the intervention of some extraneous factor under circumstances that would have subjected the actor to liability for the homicide offense had death occurred. We agree.

Section 939.32(3), Stats., stated in 1986, and continues to state:

An attempt to commit a crime requires that the actor have an intent to perform acts and attain a result which, if accomplished, would constitute such crime and that he does acts toward the commission of the crime which demonstrate unequivocally, under all the circumstances, that he formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor.

Our supreme court has decided that the intent required by the attempt statute is the intent to perform acts, not the intent to attain the result. Under such reasoning, the supreme court has held that attempted manslaughter (imperfect self-defense) is a crime. State v. Seifert, 155 Wis.2d 53, 65, 454 N.W.2d 346, 351 (1990).

We note that it is not proper to give an imperfect self-defense manslaughter instruction unless the evidence shows that the “person exercising the privilege of self-defense intended to use force or to threaten to use force against another for the purpose of self-defense.” State v. Mendoza, 80 Wis.2d 122, 151-52, 258 N.W.2d 260 [273] (1977) (emphasis added). Because imperfect self-defense manslaughter is a crime requiring a showing of intent, there is a crime of attempted imperfect self-defense manslaughter. See also State v. Oliver, 108 Wis.2d 25, [29] 321 N.W.2d 119 [121] (1982) (concluding that the crime of attempted heat-of-passion manslaughter exists).


“Second-degree murder” covered two distinct forms of murder in the 1985-86 homicide statutes. The one we are concerned with is popularly referred to as “depraved-mind” murder and was covered in sec. 940.02(1), Stats. Someone was guilty of “depraved-mind” murder when they caused the death of another human being by “conduct imminently dangerous to another and evincing a depraved mind, regardless of human life.” Section 940.02(1), Stats. Although intent to kill is not an element of second-degree murder, “intent to do the act” is required for the purpose of establishing the depraved mind element of sec. 940.02(1), Stats. See State v. Weso, 60 Wis.2d 404, 411-12, 210 N.W.2d 442, 446 (1973). For example, in this case, whether Tackmier intended to push the victim from the moving vehicle has to be proven.

Just as the intent to use force required under imperfect self-defense manslaughter satisfies the intent requirement of the attempt statute, the “intent to do the act” that is required for the purposes of establishing a depraved mind under second-degree homicide satisfies the attempt intent requirement. Therefore, because second-degree murder is a crime requiring a showing of intent, even though it is not the intent to kill, there is a crime of attempted second-degree murder under the homicide statutes as they stood in 1986.

It could be argued that our supreme court has already authoritatively resolved this issue in State v. Carter, 44 Wis.2d 151, 170 N.W.2d 681 (1969), when it stated that the language of the statutes for second-degree murder, third-degree murder and manslaughter was not reconcilable with the concept of attempt because intent is not an element of any of these crimes. Id. at 155, 170 N.W.2d at 683. However, Carter stopped short of declaring that there was no such offense as attempted second-degree murder. Instead, the court assumed that these crimes existed and based its decision on a different issue. Id. at 156, 170 N.W.2d at 683.

Furthermore, Carter’s subsequent history indicates that any conclusions it made with regard to the existence of these crimes have been implicitly overruled. With regard to manslaughter, Oliver and Seifert both implicitly overruled Carter insofar as Carter held that there is no crime of attempted manslaughter. In both of these cases the supreme court expressly recognized the crime of attempted manslaughter. Seifert went further in overruling Carter when it found that the intent to use or threaten force, that is, the intent to engage in acts constituting the crime, is sufficient to fulfill the intent element of attempted manslaughter. An intent to cause the death of the victim was not found to be necessary to fulfill that element. Because intent to do the acts constituting the crime is required for second-degree murder, the basis upon which Seifert implicitly overruled Carter exists with regard to attempted second-degree murder.

By the Court.–Judgment and order affirmed.

Not recommended for publication in the official reports.


1. Because Tackmier’s conviction was based on acts that occurred in November 1986, the merits of his argument are judged on the basis of the homicide statutes as they stood at that time. That is, the major recodification of the homicide law, effective January 1989, is not to be considered.

For purposes of this opinion, when referring to statutes we are referring to 1985-86, Stats.