Fenstermaker v. State

LANSING, Judge,

specially concurring.

I concur with parts I and II of the opinion of the Court. I also agree with the ultimate conclusions in Part III that the offense of attempted second degree murder exists in Idaho and that the defendant’s conviction should be upheld. I write separately because, in my view, the rationale stated in the Court’s opinion that intent to kill is always an element of second degree murder is inaccurate and over-simplifies a complex and ill-defined area of Idaho law. I proceed with some reluctance, for an explanation of my disagreement with my colleagues requires a…