dissenting.
I dissent. This court should not continue supporting the unjust jury verdict of guilty.
Without extensive rhetoric, let us look at the strange circumstances of this case. When the O’Dell car pulled up to Eugene Pyatt’s residence, Pyatt approached the car and expressed the belief that he had killed O’Dell during the beating two weeks earlier. After discovering otherwise, Pyatt retrieved a .30 carbine and fired twice upon the O’Dell vehicle. One shot killed Ruth O’Dell, and the other disabled Denver O’Dell. Only after Pyatt had wounded the O’Dells did Gene Schmidt return fire and kill Pyatt. Although O’Dell never touched his gun, which remained on the floor in the back seat during the entire incident, he was convicted for the second-degree felony murder of his wife who was sitting next to him.
O’Dell’s felony-murder conviction can stand only if sufficient evidence establishes an attempt to commit a second-degree assault — that is, that O’Dell took a “substantial step” toward inflicting injury upon Pyatt with a deadly weapon. Mo.Ann.Stat. § 564.011 (Vernon 1979). Mere talk, solicitation or preparation does not constitute a substantial step. State v. Molasky, 765 S.W.2d 597, 602 (Mo.1989) (en banc). Rather, the defendant must have taken some affirmative action in furtherance of the crime that corroborates the firmness of his intent to complete the offense. Id. at 601. Under the common law of attempts, this act “must be of such an unequivocal nature, in order to be a valid corroboration, that it would seem, at the time the act is committed, that voluntary termination is unlikely.” Fryer v. Nix, 775 F.2d 979, 993 (8th Cir.1985).
An instructive Missouri case is State v. Zismer, 696 S.W.2d 349 (Mo.Ct.App.1985), in which two defendants were convicted for the attempted second-degree assaults of two game wardens. In affirming the convictions, the Missouri Court of Appeals stressed several factors as sufficiently establishing a substantial step. First, the defendants drove toward the wardens in stealth at night, with their lights off. Second, both defendants cursed and threatened to kill the wardens. Further, both defendants brandished guns while making the threats. One man actually aimed his gun at the wardens, while the other repeatedly ignored the wardens’ demands that he lay down his weapon. Id. at 353.
Zismer seems to emphasize that an attempt requires the joinder of the means to commit the crime with a present intent to do so. Both defendants in that case carried weapons at readiness to shoot and expressed the intent to kill.
The present case, however, involves conduct very different from that in Zismer. The O’Dells and Schmidts stopped at Pyatt’s home in the middle of the afternoon, and only after Pyatt saw them drive by. Moreover, no occupant of the O’Dell car threatened Pyatt or even touched a gun before Pyatt initiated the gunfire. Thus, Pyatt became the sole actor, without objective provocation from O’Dell, in the ensuing killing of Ruth O’Dell. The only substantial step taken in this case was that of Pyatt in grabbing his weapon, aiming it, and shooting it. Under these circumstances, no jury could reasonably conclude that O’Dell attempted to assault Pyatt with a deadly weapon. See State v. O’Dell, 684 S.W.2d 453, 472-73 (Mo.Ct.App.1984) (Greene, J., dissenting), cert. denied, — U.S. -, 109 S.Ct. 319, 102 L.Ed.2d 337 (1988).
The absurdity of the result in this case is illustrated by two hypothetical questions. First, if Pyatt had just walked back into his home rather than retrieving a gun and firing on the O’Dell car, could a reasonable jury have convicted O’Dell for attempted second-degree assault? The negative answer is self-evident. Second, if Pyatt had survived and O’Dell had been killed, would Pyatt have been the defendant in this case? The affirmative answer seems equally obvious. Apparently, the prosecutor believed that someone should pay for the killing of Ruth O’Dell, regardless of who pulled the trigger.
*1083It is a strange doctrine that would make mere words and visitation, without more, an attempt to commit a felony. The final confrontation between O’Dell and Pyatt was completely peaceful on O’Dell’s part. Making O’Dell criminally responsible for Pyatt’s later violent action defies reason. The Missouri Court of Appeals has twisted the law of attempts into a pretzel to sustain O’Dell’s conviction. We should not follow suit. I would grant habeas corpus relief.