Millen v. State
| Decision Date | 26 April 1999 |
| Citation | 988 S.W.2d 164 |
| Parties | Bryant Dewayne MILLEN, Appellant, v. STATE of Tennessee, Appellee. |
| Court | Tennessee Supreme Court |
Leslie I. Ballin, Mark A. Mesler, Ballin, Ballin & Fishman, P.C., Memphis, Tennessee, for Appellant.
John Knox Walkup, Attorney General & Reporter, Michael E. Moore, Solicitor General, Daryl J. Brand, Senior Counsel Criminal Justice Division, Nashville, Tennessee, John W. Pierotti, District Attorney General, Thomas D. Henderson, Assistant District Attorney General, Memphis, Tennessee, for Appellee.
We granted this appeal to determine whether one who intends to kill a specific person but instead kills an innocent bystander may be convicted of premeditated and deliberate first degree murder under the common law doctrine of "transferred intent." 1
The defendant, who intentionally fired several gunshots at a specific person but inadvertently killed a random victim near the scene, was convicted of premeditated and deliberate first degree murder. The author of the Court of Criminal Appeals' opinion concluded that the trial court properly instructed the jury on the doctrine of transferred intent under Tennessee law; however, one judge on the three-judge panel concurred in results only, and the other judge wrote a concurring opinion questioning the application of transferred intent.
We conclude that it is unnecessary to resort to the common law doctrine of transferred intent under our first degree murder statutes. The definition of "intentional" in the statute does not require the State to prove that the defendant killed the intended victim. Instead it requires the State to prove that the defendant intended to kill a person, i.e., that the defendant had a "conscious objective or desire to ... cause the result. As in the present case, where a defendant, acting with premeditation and deliberation, kills one person while intending to "engage in the conduct or cause the result," first degree murder is proven. 2 Moreover, where an innocent bystander is killed during a defendant's attempt to perpetrate first degree murder, first degree felony murder is proven. 3 Accordingly, although the trial court erred in instructing the jury on transferred intent, we affirm the judgment of conviction of first degree murder.
In June of 1994, the defendant, Bryant Dewayne Millen, told friends that he was tired of harassment from Tony Gray and that if he saw Gray again, he was "going to blast on him." According to the evidence, Millen was a member of a gang known as the "Bloods," and Gray was a member of a rival gang called the "Crips." Later that day, Millen obtained a handgun and ammunition from a friend. He proceeded to the corner of Graceland and David in Memphis and placed a red bandana around his head and another over his mouth.
When a car containing Tony Gray and other passengers proceeded slowly along Graceland, Millen drew his weapon and ran toward the car firing several shots. One of the shots struck and killed fourteen-year-old Lanetta King, who had been walking home from school. Millen fled from the scene and was later found at his father's home. The handgun he had used was found buried in the backyard. Millen later confessed to the shooting.
The trial court instructed the jury on the elements of premeditated and deliberate murder and felony murder, both of which had been charged in the indictment. The trial court also charged the jury that "[u]nder a doctrine known as 'transferred intent,' a crime may be murder although the person killed was not the one whom the accused intended to kill such as where one shooting at another kills a bystander or third person coming within ranges." The jury convicted Millen of premeditated and deliberate first degree murder.
On appeal, the author of the Court of Criminal Appeals' opinion observed that the transferred intent doctrine, pursuant to which a defendant is no less culpable for killing an unintended victim, presented "an interesting and novel issue." He concluded:
Tennessee's murder statute defines first degree murder as the "intentional, premeditated and deliberate killing of another." Tenn.Code Ann. § 39-13-202 (1991). The Code does not limit the killing to the intended victim or that person. Accordingly, we find that Tenn.Code Ann. § 39-13-202 (1991) incorporates the doctrine of transferred intent. The appellant's conviction can be sustained provided he intended, with premeditation and deliberation, to kill his intended victim.
Although the panel of judges appeared to differ on the application of the transferred intent doctrine, the appellate court found that the evidence was sufficient to support the elements of premeditated and deliberate first degree murder and affirmed the conviction.
We granted this appeal to consider the viability of the common law doctrine of transferred intent under Tennessee law.
Under the so-called "transferred intent" doctrine, a defendant who intends to kill a specific victim but instead strikes and kills a bystander is deemed guilty of the offense that would have been committed had the defendant killed the intended victim. 2 Charles E. Torcia, Wharton's Criminal Law § 146 (15th ed.1994); 1 Wayne R. LaFave & Austin W. Scott Jr., Substantive Criminal Law § 3.12(d) (1986). The doctrine has been widely applied to all forms of homicide by the majority of courts. See LaFave & Scott, § 3.12(d) at 399. As one Court has said:
The common law doctrine of transferred intent was applied in England as early as the 16th century. The doctrine became part of the common law in many American jurisdictions ... and is typically invoked in the criminal law context when assigning criminal liability to a defendant who attempts to kill one person but accidentally kills another instead. Under such circumstances, the accused is deemed as culpable, and society is harmed as much, as if the defendant had accomplished what he had initially intended, and justice is achieved by punishing the defendant for a crime of the same seriousness as the one he tried to commit against his intended victim.
People v. Scott, 59 Cal.Rptr.2d 178, 14 Cal.4th 544, 927 P.2d 288, 291 (1996) (citations omitted).
Although transferred intent has been and continues to be applied by the majority of courts, the history of the doctrine as part of the common law of Tennessee is, at best, unclear, at least with regard to first degree murder. 4
In the first case in which the Tennessee Supreme Court considered the doctrine, Bratton v. State, 29 Tenn. 103 (1849), there was a question as to the defendant's intent to shoot and kill the victim while attempting to kill the victim's husband. The jury was instructed on the transferred intent doctrine and convicted the defendant of first degree murder. On appeal, this Court held that transferred intent did not apply under Tennessee's first degree murder statute, which then read:
[A]ll murder which shall be perpetrated by means of poison, lying in wait, or any other kind of willful, deliberate, malicious and premeditated killing; or which shall be committed in the perpetration of, or attempt to perpetrate any arson, rape, robbery, burglary, or larceny, shall be deemed murder in the first degree.
Id. at 106. The Court reasoned that to prove murder in the first degree, "it must be established, that there existed in the mind of the agent, at the time of the act, a specified intention to take the life of the particular person slain." Id. at 107-08 (emphasis added); accord Sanders v. State, 151 Tenn. 454, 270 S.W. 627 (1925); Kannon v. State, 78 Tenn. 386 (1882).
The next significant development in the common law and the statutory law of transferred intent in this state occurred in Sullivan v. State, 173 Tenn. 475, 121 S.W.2d 535 (1938). The Court upheld the conviction for deliberate and premeditated murder where the defendant attempted to shoot his brother and accidentally shot and killed his brother's wife who was standing nearby. The Court, however, distinguished Bratton by noting that the legislature had amended the first degree murder statute to state that "[e]very murder perpetrated by means of poison, lying in wait, or by any other kind of willful, deliberate, malicious, and premeditated killing, or committed in the perpetration of, or attempt to perpetrate, any murder in the first degree, arson, rape, robbery, burglary, or larceny, is murder in the first degree." Id. at 537. The Court concluded that this amendment to the first-degree murder statute fixed the "curious anomaly" created by Bratton, and held:
It follows that, under the statute as thus amended, when the defendant shot and killed [the deceased] while he was attempting to perpetrate or commit murder in the first degree upon the body of [his brother] he committed murder in the first degree. And the attempt to commit murder in the first degree upon [his brother] supplies the elements of deliberation and premeditation; so that the State did not have to show deliberation and premeditation on the part of defendant to take the life of deceased.
Finally, in Harper v. State, 206 Tenn. 509, 334 S.W.2d 933 (1960), the Court indirectly commented on the transferred intent doctrine, stating that "[t]he law is that if an unlawful act directed at a particular person for the purpose of taking his life accidentally brings about the death of a third person against whom no injury was intended the party inflicting the act is guilty to the same extent as if he had a specific intention to take the life of the person who was killed." Id. at 936. This language is cited by the concurring judge in the Court of Criminal Appeals' opinion in this case. The Harper case, however, involved second degree murder. Id. at 934.
In our view, the common law history of the transferred intent rule has little application under our modern statutory law. At the time of the offense committed by Millen, first degree murder...
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