Harvey v. State

• Decision Date: 01 September 1995
• Docket Number: No. 1763,1763
• Citation: 681 A.2d 628,111 Md.App. 401
• Parties: Latrice Michelle HARVEY v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 401

111 Md.App. 401

681 A.2d 628

Latrice Michelle HARVEY v. STATE of Maryland.

No. 1763, Sept. Term, 1995.

Court of Special Appeals of Maryland.

Aug. 30, 1996.

Michael R. Malloy, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for Appellant.

Mary Ann Ince, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Jack B. Johnson, State's Atty. for Prince George's County of Upper Marlboro, on the brief), for Appellee.

Submitted before WILNER, C.J., and MOYLAN and SALMON, JJ.

MOYLAN, Judge.

The subject of this appeal is the doctrine of transferred intent. The particular question is whether that doctrine, indisputably applicable when an unintended victim is killed and the crime charged is a consummated homicide, is similarly applicable when the unintended victim is not killed (either hit but only wounded or not even hit but only endangered) and the arguable crime, even with the benefit of the doctrine, would only be an inchoate criminal homicide, such as 1) assault with intent to murder, 2) attempted murder (in either degree), or 3) attempted voluntary manslaughter.

The appellant, Latrice Michelle Harvey, was convicted by a Prince George's County jury of assault with intent to murder and reckless endangerment. On this appeal, she raises three contentions:

1) That the trial judge erroneously instructed the jury on the subject of transferred intent;

2) That the trial judge erroneously failed to merge the conviction for reckless endangerment into the conviction for assault with intent to murder; and

3) That the evidence was not legally sufficient to sustain the conviction for assault with intent to murder.

The Facts

At approximately 10:30 P.M. on June 14, 1994, at an apartment complex at 1107 Nalley Road in Landover, Prince George's County, a gunfight occurred. An innocent bystander, Tiffany Evans, was shot in the leg and taken to a hospital. For purposes of further analysis, Tiffany Evans is the "unintended victim" or "unintended target." The appellant, informally known to everyone in the neighborhood as "Kitty Cat," was not the shooter. The shooter was Kitty Cat's male companion. The trouble started with a fight on the parking lot between two groups of young men. The leading combatant on one side was a young man named Antoine. The leading combatant on the other side was Kitty Cat's brother. It was while that fight was in progress that Kitty Cat and the ultimate shooter approached the scene of the confrontation.

The gun that was ultimately fired was passed, wrapped in a white towel, by an unidentified male to Kitty Cat. She then passed it, in turn, to her companion, who did the actual shooting. As Kitty Cat passed the gun to the shooter, she pointed to one young man in the crowd and told her companion, "Shoot him." One witness also heard Kitty Cat say that "she wanted him dead." The male companion, on her command, started shooting but missed the intended target, who turned and ran away. The shooter did not give chase. Approximately five shots had been fired. Kitty Cat then tapped her companion and caught his attention again. She pointed at another target and, again at her direction, her companion fired approximately four additional shots. That second intended target was standing in close proximity to Tiffany Evans. The four shots missed their intended target, but one of the errant bullets hit Tiffany Evans in the leg.

The Jury Instruction

Over the appellant's objection, the trial judge gave the following instruction on the subject of transferred intent:

In this case there are two legal theories that are applicable, and those are the theory of aiding and abetting another, and ... something we call transferred intent....

* * * * * * The doctrine of transferred intent means that the intent follows the bullet. The intent is--I think there was one witness that said that the bullet didn't have any name on it or whose name is on the bullet. Well, the transfer of intent means that the intent follows wherever the bullet goes.

During the course of its deliberations, the jury sent out a note asking for a further explanation of transferred intent. Again over the appellant's objection, the trial judge gave the following supplemental instruction:

All right. Ladies and gentlemen of the jury, the doctrine of transferred intent is not a very common thing that juries have to deal with. I have borrowed an instruction from another judge, which I hope will be helpful to you.

The doctrine of transferred intent applies to the specific intent to murder. Transferred intent means that if one specifically intends injury to another person, and in an effort to accomplish the injury or harm upon a person other than the one intended, he is guilty of the same kind of crime as if his aim had been more accurate.

The fact that a person actually was killed instead of the intended victim, is immaterial, and the only question is what would have been the degree of guilt, if the result intended actually had been accomplished. The intent is transferred to the person whose death or harm has been caused.

The appellant's primary contention is that the doctrine of transferred intent is inapplicable to the crime of assault with intent to murder and erroneously relieved the State of its obligation to prove the required mens rea of a specific intent to kill directed at the actual assault victim, Tiffany Evans.

Whose Intent Is Being Transferred?

Before turning to the ultimate question of the applicability of the transferred intent doctrine to a charge of inchoate criminal homicide, one modest procedural complication must be acknowledged and dealt with. With regard to the shooting of Tiffany Evans, the appellant, of course, was not the principal in the first degree. That role was played by the appellant's male companion, the actual triggerman. The appellant was merely a principal in the second degree, present at the scene and actively aiding and abetting the first-degree principal in his criminal conduct but not herself wielding the gun. To what extent, therefore, does the appellant, as a second-degree principal, partake of the guilt of the first-degree principal and to what extent must she generate her own guilt? That depends on which particular element of the larger crime is being examined.

With respect to the actus reus--the physical battery of Tiffany Evans--the appellant bears full responsibility for whatever her companion did. The shooter committed a criminal act regardless of whether his marksmanship was good or bad, and the appellant shared full responsibility for the criminal act itself. She was responsible for the consequences of his bad aim as surely as she would have been responsible for the consequences of his good aim. The actus reus of the first-degree principal is attributable to all parties to the crime.

Although we are in this case dealing with an inchoate criminal homicide rather than a consummated criminal homicide, the law that has been developed in the consummated homicide context, as to which elements of a crime are shared by all multiple defendants alike and which elements must be established independently as to each defendant individually, is instructive in this context as well. All participants in a crime--the various aiders, abettors, and inciters, the principals in the second degree and the accessories before the fact--are tied into the criminal act itself, to wit, into a common and collective actus reus.

If, therefore, the level or degree of guilt for a criminal homicide is controlled by the actus reus, then the guilt level of all participants must rise or fall together. If the homicide occurred in the perpetration or attempted perpetration of a felony spelled out in Md.Code Ann., Art. 27, §§ 408, 409, or 410, for instance, all parties to the crime would be guilty of felony-murder in the first degree. Their individual intents would be immaterial, provided only that they had the necessary intent to commit the underlying felony. If the felony should be one of the residual felonies under the common law felony-murder doctrine and not one of those listed in sections 408, 409, or 410, the guilt of all participants would then be murder in the second degree, under the common law felony-murder doctrine. If the crime being perpetrated were a misdemeanor and death resulted, all participants would be guilty of manslaughter under the common law misdemeanor-manslaughter doctrine. It is, with respect to those particular crimes, the collective act to which all defendants are tied that controls the level of guilt.

When the degree of aggravation or level of blameworthiness of a crime, however, is not automatically a function of the criminal act itself but depends, rather, on the additional presence of some special mental element or specific intent--in this case the specific intent to kill that could elevate a simple assault and battery into an assault with intent to murder--each co-participant in the crime is on his own as to that mental element. The mens rea of each participant is independent of that of all other participants. It is the unique mens rea of each defendant that controls the level of guilt of that defendant. An aider and abettor or an accessory before the fact may be more blameworthy than the principal in the first degree or equally blameworthy or less blameworthy. Each mens rea floats free.

In State v. Ward, 284 Md. 189, 201, 396 A.2d 1041 (1978), Judge Orth noted in this regard:

Furthermore, a principal in the second degree may be convicted of a higher crime or a lower crime than the principal in the first degree. Clark & Marshall § 8.05, p. 521; Perkins at 670-671.15 Although, as State v. Ward noted, the guilt levels of principals in the first and second degrees could rise and fall independently of each other, the common law was far more rigid in the case of accessories before the fact. At the common law, an accessory before the fact could not be...