My brother is currently incarcerated for 2 counts of attempted 1st degree murder and firearm possession. My question is, can he be charged for 1st degree attempted murder if according to witness statements he did not intentionally try to hit the actual victim, and the intended person he was trying to hit was not hit (according to the witness statements) shouldn't the charge be aggravated assault?

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Originally Posted by rennayrose

my brother is currently incarcerated for 2 counts of attempted 1st degree murder and firearm possession. my question is, can he be charged for 1st degree attempted murder if according to witness statements he did not intentionally try to hit the actual victim, and the intended person he was trying to hit was not hit (according to the witness statements) shouldn't the charge be aggravated assault?

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He can be charged anyway the prosecution prefers.
However, by charging him incorrectly they run the risk of the charge being thrown out.
Bringing that to the attention of the judge(s) is the task of the defense attorney.
Can your brother afford a good lawyer?
;)

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Originally Posted by rennayrose

shouldn't the charge be aggravated assault?

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Hello rennay:

Maybe.

There was a case in Washington State recently that had major ramifications in lots of old convictions. I don't remember the details nor do I remember the case.. But, it was something like, those people, whose convictions for 2nd degree murder were the result of ASSAULT with no intent to cause death, should have been charged with manslaughter instead...

It's not ON point, but it's damn close.

Your attorney should know about the case - even his jail house lawyer should. But, it's Washington law and won't apply to your state. It certainly could help sway an appeals court, though.

excon

1. First each state in the US has its own laws as to who and what each charge is. In some states 1st degree murder is only against law enforcement, in others it has lesser requirements. Others have 1,2 3 degree murder charges

And to be honest after he is already convicted and sentences it is too late to challenge the charge.

To get a conviction, the DA is suppose to prove each element of the actual crime.

It could be the court and/or the jury did not believe the witnesses as to the motivation of the crime

But even if NO ONE was hit, just the act of taking a gun and trying to kill someone is all they need, the charge of attempted murder would be for the first person he tried to kill.
So since there was intent to kill the first person, others hurt while doing that are included in that same intent normally

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Originally Posted by excon

those people, whose convictions for 2nd degree murder were the result of ASSAULT with no intent to cause death, should have been charged with manslaughter instead.....

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Hello again:

The Padre is right. After a conviction has been obtained, plus the fact that THIS argument wasn't brought up in trial, means that he'll have a very difficult time getting relief...

However, if I wasn't clear enough above, I should have stated that this case wasn't just an advisory thing. It caused massive retrials throughout the state and massive releases from the joint where the convict had spent more time than he legally could have been sentenced to.

These things are RARE. But they DO happen.

excon

If our brother's attorney did not "catch" the wrong charge before he was sentenced it's too late now to do anything unless it has been less than 30 days since his conviction and you have a lot of money to file an appeal of his sentence.

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Originally Posted by rennayrose

my brother is currently incarcerated for 2 counts of attempted 1st degree murder and firearm possession. my question is, can he be charged for 1st degree attempted murder if according to witness statements he did not intentionally try to hit the actual victim, and the intended person he was trying to hit was not hit (according to the witness statements) shouldn't the charge be aggravated assault?

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This same situation has been posted 4 times - once by you and 3 times in another name.

It's getting very difficult to answer because the facts aren't always identical.

If you really do need/want help you have to stick to one post, one set of questions, give everyone an opportunity to answer after learning the whole story.