State v. Lyerla

I dissent from the majority opinion on “attempted second degree murder.”

*914Lyerla argues that it is a legal impossibility to attempt to commit murder in the second degree and his two convictions for this offense should be reversed. Since Lyerla did not object to the jury instructions on attempted second-degree murder, he now argues plain error. However, an argument based on plain error cannot succeed where there is no error.

The majority frames the question in a different manner, as follows: “If attempted second degree murder is not a crime in South Dakota, then a defendant’s failure to object…