State v. Disanto
2004 SD 112, 688 N.W.2d 201 (2004) (2004)
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Rule of Law:
Under South Dakota's attempt statute, hiring a contract killer and giving a final order to proceed does not constitute an "act toward the commission of the crime" of murder if neither the hirer nor the feigned killer commits a direct act of perpetration; such actions amount only to mere preparation or solicitation.
Facts:
- After a turbulent relationship with Rocco William Disanto ended, Linda Olson began a new relationship with Denny Egemo.
- Disanto became obsessed and made numerous telephone calls threatening to kill both Olson and Egemo.
- While in the penitentiary on an unrelated weapons charge, Disanto told fellow inmate Stephen Rynders of his intention to murder Olson and Egemo.
- Upon his release, Disanto met with Rynders (now a police informant) and Dale McCabe, an undercover law enforcement officer posing as a contract killer.
- Disanto gave McCabe a photograph of Olson, pointed out her home and vehicle, and identified her in person.
- Disanto instructed McCabe to shoot Olson and Egemo twice in the head, and to also kill Olson's teenage daughter if she was present to eliminate witnesses.
- Disanto agreed on a plan for McCabe to be compensated with valuables from the victims' home and future methamphetamine payments.
- At the conclusion of their meeting, Disanto gave McCabe the final command to proceed with the murders, stating, "It’s a go."
- Less than three hours later, Disanto contacted the informant Rynders and asked him to tell McCabe to "halt" the plan, stating "I’m not backing out of it, I just want to put it on hold."
Procedural Posture:
- Rocco William Disanto was charged in a state trial court with three counts of attempted murder and one count of simple assault.
- Following a trial, a jury convicted Disanto on all charges.
- Disanto filed a motion for judgment of acquittal, arguing the evidence was insufficient to prove an attempt.
- The trial court denied Disanto's motion.
- Disanto (appellant) appealed his convictions to the Supreme Court of South Dakota, the state's highest court.
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Issue:
Does a defendant commit an "act toward the commission of the crime" of murder, sufficient to sustain a conviction for attempt, when he hires a police officer posing as a contract killer, provides information about the targets, and gives a final command to proceed, but no physical step of perpetration is taken by either party?
Opinions:
Majority - Konenkamp, Justice
No, a defendant does not commit an act toward the commission of murder under these circumstances. To be guilty of an attempt in South Dakota, a defendant must commit a direct act of perpetration that goes beyond mere preparation. The court reasoned that solicitation, even when it includes providing information and giving a final command to a feigned killer, remains in the realm of preparation. Because neither Disanto nor the undercover officer took any physical step toward executing the murders, no act of perpetration occurred. The court explicitly rejected the broader Model Penal Code "substantial step" test, which might include solicitation, and adhered to South Dakota's stricter precedent distinguishing solicitation and preparation from a criminal attempt.
Dissenting - Gilbertson, Chief Justice
Yes, a defendant does commit an act toward the commission of murder under these circumstances. Disanto’s final command, "It’s a go," was a direct movement that put his murderous plan into action and went far beyond mere verbal solicitation. He had done everything he could to effectuate the killings, and the crime would have been completed but for the fact that the hitman was an undercover officer. The jury was justified in finding his actions had gone far enough to constitute an attempt, and courts should not use subtle distinctions between preparation and perpetration to overturn a common-sense verdict.
Dissenting - Zinter, Justice
Yes, a defendant does commit an act toward the commission of murder under these circumstances. While agreeing with the majority's legal distinction between solicitation and attempt, this opinion argues the facts show Disanto did more than just solicit. He performed physical acts like providing a photograph and pointing out the victim's home. The combination of these physical acts with the final command to execute the murder, "It’s a go," unequivocally demonstrated that a crime was about to be committed and was sufficient evidence for a jury to convict for attempt.
Concurring - Sabers, Justice
No, a defendant does not commit an act toward the commission of murder under these circumstances. The conviction should be reversed because Disanto was an inept and broke felon who would not have acted without the motivating encouragement of the police informant and the undercover officer. On his own, the plan would have remained merely a thought.
Analysis:
This decision reinforces a strict line between preparation and perpetration for the crime of attempt in South Dakota, distinguishing the state's jurisprudence from the more expansive Model Penal Code "substantial step" analysis. It establishes that in a murder-for-hire scenario involving an undercover agent, the defendant's actions, even up to giving a final kill order, do not constitute an attempt unless a further, direct act of perpetration is committed. This ruling significantly raises the evidentiary bar for prosecutors in such sting operations and clarifies that solicitation, without more, is not attempted murder, potentially prompting the state legislature to create a specific statute criminalizing solicitation to murder.
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