Ex parte State, No. 1021997 (AL 5/7/2004), 1021997.

• Decision Date: 07 May 2004
• Docket Number: No. 1021997.,1021997.
• Parties: Ex parte State of Alabama In re: Christopher Cockrell v. State of Alabama.
• Court: Alabama Supreme Court

Page 1

Ex parte State of Alabama In re: Christopher Cockrell v. State of Alabama.

No. 1021997.

Supreme Court of Alabama.

May 7, 2004.

PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS, Jefferson Circuit Court, CC-02-551; Court of Criminal Appeals, CR-01-2097.

LYONS, Justice.

The State appeals from the reversal by the Court of Criminal Appeals of Christopher Cockrell's conviction for attempted murder. We affirm.

The following statement of the facts was taken from the opinion by the Court of Criminal Appeals:

"On October 1, 2001, following a previous disagreement over the theft of some money from Carlos Ivey's car, Cockrell was seen hiding in some bushes next to the neighborhood grocery store. Ivey pulled up in his car to a stop sign close to the store. Cockrell, following Ivey's car, ran from the bushes down the street. Cockrell fired several shots into Ivey's car. One of the shots struck 12-year-old Jerome Fails, who was standing on his grandmother's front porch eating a sucker, in the head. Although Jerome survived, he suffered severe brain damage and [is] unable to move or talk.

"Cockrell testified that Ivey fired at him first, that he fired at Ivey in self-defense, and that he did not intend to shoot Jerome Fails."

Cockrell v. State, [Ms. CR-01-2097, June 27, 2003] ___ So. 2d ___, ___ (Ala. Crim. App. 2003).

Cockrell was charged with the attempted murder of Fails, the unintended victim. Cockrell was not charged with the attempted murder of Ivey, the intended victim. The jury found Cockrell guilty of attempted murder, and the trial court sentenced Cockrell to life imprisonment. Cockrell appealed his conviction to the Court of Criminal Appeals. The Court of Criminal Appeals reversed Cockrell's conviction, holding that there was insufficient evidence to support a conviction of attempted murder as to Fails because there was no evidence indicating that Cockrell intended to murder Fails. The Court of Criminal Appeals rejected the State's argument that the doctrine of transferred intent applied to Cockrell's case; that court stated that the doctrine was usually reserved for crimes of general, as opposed to specific, intent, e.g., assault. According to the Court of Criminal Appeals, attempted murder is a specific-intent crime, and a conviction for attempted murder cannot be obtained unless the accused intended to murder the person who was actually harmed. The Court of Criminal Appeals remanded the case to the trial court for that court to sentence Cockrell for the offense of first-degree assault with a deadly weapon, a lesser offense included within the offense of attempted murder.

The State petitioned this Court for a writ of certiorari on the basis that the issue presented in this case is a question of first impression in this Court. This Court granted the writ to address the issue whether transferred intent is applicable where the defendant has been charged with attempted murder but the actual victim was not the victim the defendant intended to kill.

Cockrell does not dispute that the doctrine of transferred intent applies to a murder charge. Cockrell concedes that he intended to murder Ivey. Cockrell committed an overt act toward murdering Ivey by shooting into Ivey's automobile. During that act, Fails was injured by one of the bullets intended for Ivey. However, the issue to be decided, which is one of first impression to this Court, is whether the doctrine of transferred intent is applicable to an attempted-murder charge.

The Court of Criminal Appeals relied on a case decided by the Supreme Court of California, California v. Bland, 28 Cal. 4th 313, 48 P.3d 1107, 121 Cal. Rptr. 2d 546 (2002), when formulating its holding that transferred intent does not apply to the offense of attempted murder. The Court in Bland interpreted the California murder statute to mean that "[t]o be guilty of murder, the defendant must intend to kill the alleged victim, not someone else." 28 Cal. 4th at 328, 48 P.3d at 1117, 121 Cal. Rptr. 2d at 558. The California court used the theory of concurrent intent — "[w]here the means employed to commit the crime against a primary victim create a zone of harm around that victim, the fact finder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone" — to uphold Bland's conviction, because Bland's victim fell within that zone. 28 Cal. 4th at 330, 48 P.3d at 1118, 121 Cal. Rptr. 2d at 560.

The State contends that the Court of Criminal Appeals' reliance on Bland is misplaced because California's murder statute, unlike § 13A-6-2, Ala. Code 1975, does not include language incorporating the doctrine of transferred intent into the offense. The California murder statute, § 189, Cal. Penal Code (2004), reads:

"All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder in the first degree."

Section 13A-6-2, Ala. Code 1975, provides:

"(a) A person commits the crime of murder if:

"(1) With the intent to cause the death of another person, he causes the death of that person or of another person."

(Emphasis added.) Thus, in contrast to the California murder statute, the doctrine of transferred intent has been codified into Alabama's murder statute. In Carter v. State, 843 So. 2d 812, 814 (Ala. 2002), this Court stated:

"... Alabama appellate courts have repeatedly held that 'the defendant's liability for the unintended consequences of a criminal act is in the same degree as it would have been had his aim been true and the intended target been injured or killed.' Carter[ v. State, 843 So. 2d 798, 810 (Ala. Crim. App. 2000)] (opinion on remand) .... Section 13A-6-2(a)(1), Ala. Code 1975, reiterates the doctrine [of transferred intent] in its definition of murder. The statute provides in pertinent part, that '[a] person commits the crime of murder if ... [w]ith the intent to cause the death of that person or another person, he causes the death of that person or of another person ....' (Emphasis added [in Carter])."

See also Mathis v. State, 497 So. 2d 231, 232 (Ala. Crim. App. 1986).

This distinction is problematic. Cases taking a similar view to the one taken in California (rejecting the doctrine of transferred intent when the charge is attempted murder) can be found in jurisdictions, like Alabama, where the doctrine of transferred intent has been codified into the statute defining the offense of murder. See, e.g., People v. Fernandez, 88 N.Y.2d 777, 783, 673 N.E.2d 910, 913-14, 650 N.Y.S.2d 625, 628-29 (1996)("[B]ecause an attempt charge always involves an uncompleted crime, the transferred intent doctrine is ordinarily not implicated. ... Since the focus of the doctrine of transferred intent under Penal Law § 125.25(1) is the identity of the person whose death actually resulted, this doctrine has no relevance in an attempt case, where an actual death is not an element."); Ramsey v. State, 56 P.3d 675, 682 (Alaska Ct. App. 2002) ("Accordingly, we conclude that Judge Wood erred in instructing the jury and allowing the State to argue that it could convict Ramsey of attempted murder of S.M. if Ramsey intended to kill Palacios and simultaneously injured S.M. We conclude that the proper instruction would have required the jury to find Ramsey had the specific intent to kill S.M. before it could convict Ramsey of the attempted murder of S.M."); and State v. Hinton, 227 Conn. 301, 315-18, 630 A.2d 593, 601-02 (1993) (applying the rule of lenity in construing a criminal statute and concluding that it was not clear that the legislature intended to apply the doctrine of transferred intent to an attempt crime whenever the statute defining the crime allows the transfer of intent for the completed offense).

A Florida District Court of Appeals in Bell v. State, 768 So. 2d 22, 28 (Fla. Dist. Ct. App. 2000), provides a helpful collection of authorities rejecting the applicability of the doctrine of transferred intent to the offense of attempted murder of an unintended victim, as follows:

"A number of jurisdictions have rejected the doctrine of transferred intent in relation to the crime of attempted murder of the unintended victim. See, e.g., Jones v. State, 159 Ark. 215, 251 S.W. 690 (1923); People v. Chinchilla, 52 Cal. App. 4th 683, 60 Cal. Rptr. 2d 761, 765 (1997); People v. Calderon, 232 Cal. App. 3d 930, 283 Cal. Rptr. 833 (1991); State v. Hinton, 227 Conn. 301, 630 A.2d 593, 602 (1993); Ford v. State, 330 Md. 682, 625 A.2d 984 (1993); State v. Williamson, 203 Mo. 591, 102 S.W. 519 (1907); State v. Mulhall, 199 Mo. 202, 97 S.W. 583 (1906); People v. Fernandez, 88 N.Y.2d 777, 650 N.Y.S.2d 625, 673 N.E.2d 910, 914 (1996); State v. Shanley, 20 S.D. 18, 104 N.W. 522 (1905)."

The Bell court continued:

"As several of these cases reason, transferred intent is inapplicable where no death results and the defendant is charged with attempted murder of the intended victim, because the defendant committed a completed crime at the time he shot at the intended victim regardless of whether any injury resulted to the unintended victim. See Chinchilla, 60 Cal. Rptr. 2d at 764-65; Calderon, 283 Cal. Rptr. at 836-37; Fernandez, 650 N.Y.S.2d 625, 673 N.E.2d at 914."

768 So. 2d at 28 (emphasis added).

Professor Perkins in his treatise on criminal law states:

"If, without justification, excuse or mitigation D with intent to...