Harrison v. State

• Decision Date: 04 August 2004
• Docket Number: No. 70,70
• Citation: 382 Md. 477,855 A.2d 1220
• Parties: Gerard HARRISON v. STATE of Maryland.
• Court: Maryland Court of Appeals

855 A.2d 1220

382 Md. 477

Gerard HARRISON v. STATE of Maryland.

No. 70, Sept. Term, 2003.

Court of Appeals of Maryland.

August 4, 2004.

Julia Doyle Bernhardt, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), for petitioner.

Steven L. Holcomb, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), for respondent.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

BATTAGLIA, J.

Gerard Harrison fired his .38 caliber pistol six times at a man known as "Valentine" but struck James Cook instead. We issued a writ of certiorari to determine whether the evidence in this case was sufficient to support Harrison's conviction of attempted second-degree murder. Harrison argues that the evidence was not sufficient to prove the intent element of that crime. For the reasons discussed herein, we agree with Harrison and hold that, under the theory of "concurrent intent," the evidence was insufficient to support a finding that Harrison possessed the requisite intent for attempted second-degree murder. We also hold that the doctrine of "transferred intent" does not support the conviction because "transferred intent" may not be applied to prove attempted murder.

I. Background

Harrison engaged in a shooting in Baltimore City on July 27, 2001. As a result of the incident, the State charged Harrison in a nine-count indictment with: (1) attempted first degree murder in violation of Maryland Code, Article 27, Section 411A (b) (1957, 1996 Repl.Vol.);¹ (2) attempted second degree murder of Cook in violation of Article 27, Section 411A (a);² (3) first-degree assault of Cook in violation of Article 27, 12A-1 (1957, 1996 Repl.Vol., 2000 Supp.);³ (4) second-degree assault of Cook in violation of Article 27, Section 12A (1957, 1996 Repl.Vol.);⁴ (5) reckless endangerment of Cook in violation of Article 27, Section 12A-2 (1957, 1996 Repl.Vol., 2000 Supp.);⁵ (6) use of handgun in the commission of a felony or crime of violence in violation of Article 27, Section 36B (1957, 1996 Repl.Vol., 2000 Supp.);⁶ (7) the wearing, carrying, and transportation of a handgun in violation of Article 27, Section 36B (1957, 1996 Repl.Vol., 2000 Supp.);⁷ (8) possession of a regulated firearm after having been previously convicted of a misdemeanor carrying a penalty of more than two years imprisonment in violation of Article 27, Section 445(d)(1)(iii) (1957, 1996 Repl.Vol., 2000 Supp.);⁸ and (9) possession of a regulated firearm after having been previously convicted of a crime of violence in violation of Article 27, Sections 445(d) and 449(e) (1957, 1996 Repl.Vol., 2000 Supp.).⁹ On June 12, 2002, in the Circuit Court for Baltimore City, Harrison was convicted of attempted second-degree murder and use of a handgun in the commission of a felony or crime of violence on an agreed statement of facts, which the prosecutor narrated for the record:

The facts would be that, on July 27, 2001, in the fifteen hundred block of Clifton Avenue, the victim in this matter, Mr. James Cook, was standing and talking with friends when he was struck in the neck with a bullet. Investigation revealed that [Harrison] and another unknown person were shooting at someone known only to them only as Valentine, and in the course of the shooting, accidentally struck the victim, Mr. Cook. Your Honor, a witness was identified. He was taken down to the station and shown a photo array. He observed the photo array and picked out [Harrison] who would be identified in court here today as Mr. Gerard Harrison to my right, with counsel, as the person he knows as Fats and as one of the shooters. I believe the photo array is already in evidence in the court file from the motions hearing. Situationally, the defendant was advised of his rights. He waived his constitutional rights and he did give a statement that was taped. I believe that and the advisement of rights are already in the court file as well from evidence and motions hearings. During the statement, [Harrison] advised that he and a person known to him as Twin Shitty began firing on a person that they knew as Valentine. [Harrison] stated that he had one gun and the other person had two guns, stating that he had fired six shots and then they both ran. Found out later that somebody other than their intended target was shot.

[I]f called to testify, the ballistics examiner would have stated that the ballistics evidence recovered from the crime scene was consistent with [Harrison's] confession and that the ballistics show that there were three different firearms used and they matched the caliber that [Harrison] described. The victim was taken to Sinai Hospital where he was operated on. All events occurred in Baltimore City, State of Maryland. That would be the statement supporting the guilty plea as a Count Two, attempted murder in the second degree and Count Six, use of a handgun in the commission of a crime of violence.

The statements made by Harrison during a police interrogation on August 22, 2001, which were referred to in the agreed-upon facts, were as follows:

[Officer]: Okay and if you could, in your own words again tell me what you know and what happened as far as what you knew in this case.

Harrison: All I know is that me and another ... another dude, a friend of mines walking up on the basketball court and he had two guns, I had one. We just started shooting in the direction of Valentine.

[Officer]: Of Valentine, and why were you all shooting at Valentine?

Harrison: Because he around there selling some dope.

[Officer]: Okay, and was he told something in the past?

Harrison: He was told in the past not to hustle around there.

[Officer]: Okay, and when you all were shooting in the direction of Valentine, what type of gun did you have?

Harrison: I had a .38.

* * *

[Officer]: Okay. Now when you all were shooting at Valentine, how many shots did you shoot at him?

Harrison: Six.

[Officer]: So did you have any more shots left?

Harrison: No.

The judge imposed concurrent sentences of twelve years imprisonment for attempted second-degree murder and five years imprisonment for the handgun violation. The Court of Special Appeals affirmed the convictions. Harrison v. State, 151 Md.App. 648, 828 A.2d 249 (2003). In addition to affirming the handgun conviction, the court held that the evidence was sufficient to sustain Harrison's conviction of attempted second-degree murder of Cook. Id. at 662, 828 A.2d at 257.¹⁰ In reaching this conclusion, the court considered the State's arguments that the intent element of the crime could be supported under theories of "transferred intent," "depraved heart" recklessness, and "concurrent intent." The court concluded that the conviction could not rest on theories of "transferred intent" or "depraved heart" recklessness. Id. at 659-660, 828 A.2d at 255. The theory of "transferred intent" fails because, according to the court, under Ford v. State, 330 Md. 682, 625 A.2d 984 (1993), the doctrine only applies when a defendant shoots at his target, misses, and an unintended victim receives a fatal injury. Harrison, 151 Md.App. at 658,828 A.2d at 254-55. The court held that "depraved heart" recklessness also does not apply because Harrison's conviction of attempted second-degree murder requires that he had a specific intent to kill; depraved heart" murder, on the other hand, "only requires wanton disregard for human life, ... a mental state [that] falls short" of the necessary mental element of attempted second-degree murder. Id. at 660, 828 A.2d at 255. Nevertheless, in the court's view, the evidence did support a finding of the requisite intent, under the theory of "concurrent intent." Id. at 661-62, 828 A.2d at 256-57. The court held that the jury could infer that Harrison "intentionally created a `kill zone' to accomplish the death of Valentine, the primary victim," and, therefore, the jury could also infer that Harrison had a concurrent intent to kill Cook, who was among those "gathered at the scene of the crime." Id. at 662, 828 A.2d at 257.

Harrison petitioned this Court for a writ of certiorari and raised two questions, which we have rephrased and combined into one: Is the evidence sufficient to support a conviction of attempted second-degree murder, where Harrison fired six shots at one person, missed that person, but hit another person causing injury and not death?¹¹ We conclude that the evidence fails to support a conviction for attempted second-degree murder based on the theory of "concurrent intent" because the stipulated facts do not prove that Cook inhabited the "kill zone" when Harrison fired the errant shots. Furthermore, the State's reliance on the doctrine of "transferred intent" also fails inasmuch as that doctrine does not apply to a charge of attempted murder.¹²

II. Standard of Review

Our opinion in Moye v. State, 369 Md. 2, 12-13, 796 A.2d 821, 827 (2002) sets out the appropriate standard of review in the instant case:

The standard of review for appellate review of evidentiary sufficiency is whether any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. See State v. Albrecht, 336 Md. 475, 478-79, 649 A.2d 336, 337 (1994). We view the evidence in the light most favorable to the prosecution. See id. (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979) and Branch v. State, 305 Md. 177, 182-83, 502 A.2d 496, 498 (1986)). We give "due regard to the [fact finder's] finding of facts, its resolution of conflicting evidence, and, significantly, its opportunity to observe and assess the credibility of witnesses." McDonald v. State, 347 Md. 452, 474, 701 A.2d 675, 685 (1997), cert. denied, 522 U.S. 1151, 118 S.Ct. 1173, 140 L.Ed.2d 182 (1998) (quoting Albrecht, 336 Md. at 478, 649 A.2d at 337).

III. Discussion

"Murder is the killing of one human being by another with the requisite malevolent state of mind and without justification,...