State v. Brady

• Decision Date: 19 August 1999
• Docket Number: No. 91,951.,91,951.
• Citation: 745 So.2d 954
• Parties: STATE of Florida, Petitioner, v. Bill BRADY, Jr., Respondent.
• Court: Florida Supreme Court

745 So.2d 954

STATE of Florida, Petitioner, v. Bill BRADY, Jr., Respondent.

No. 91,951.

Supreme Court of Florida.

August 19, 1999.

Rehearing Denied December 27, 1999.

Robert A. Butterworth, Attorney General, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, Florida, for Petitioner.

James B. Gibson, Public Defender, and James R. Wulchak, Chief, Appellate Division, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, Florida, for Respondent.

PER CURIAM.

We have for review the decision in Brady v. State, 700 So.2d 471 (Fla. 5th DCA 1997), based on a certified question of great public importance:

CAN A DEFENDANT BE CONVICTED OF ATTEMPTED MURDER OF BOTH THE INTENDED VICTIM AND AN INNOCENT BYSTANDER WHEN THE DEFENDANT HAD NO INTENT TO MURDER THE LATER, BUT THE LATTER IS INJURED DURING THE ATTEMPT ON THE INTENDED VICTIM?

We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution. For the reasons that follow we decline to answer the certified question, and we quash, in part, the decision of the Fifth District Court of Appeal.

Petitioner, Bill Brady, was charged with two counts of attempted first-degree murder and convicted of two counts of attempted second-degree murder. The evidence at trial reflected that Brady fired a single shot at Ricky Mack ("Mack"), intending to murder Mack. The bullet missed Mack, but hit an unintended victim, Toya Harrell ("Harrell"), injuring her in the hand. The incident in question occurred on New Year's Eve while Brady, Mack, and Harrell were in a nightclub.¹ According to Mack's testimony at trial, Mack approached Brady inside the club to ask him about a prior incident. After tapping Brady on the shoulder, Mack asked him why he had shot at Mack several days earlier. Brady responded, "Yeah n, what about it?" and then pulled out his gun and shot at Mack. The bullet missed Mack but hit Harrell in the hand. The jury convicted Brady of attempted second-degree murder of both Mack and Harrell.

On appeal, the Fifth District upheld Brady's conviction of attempted second-degree murder of Mack. However, the court reduced Brady's conviction of attempted second-degree murder of Harrell to aggravated battery because it held that transferred intent could not be used to convict Brady of attempted murder of Harrell where there was no evidence of intent to kill her. Brady, 700 So.2d at 473.²

ATTEMPTED SECOND-DEGREE MURDER

We must look to the law of attempted second-degree murder to determine whether the two convictions here may stand. Although Florida recognizes the doctrine of transferred intent,³ the issue of whether the doctrine applies to the crime of attempted second-degree murder appears to be one of first impression.⁴ The district court did not specifically discuss the issue, and the parties have cited no cases on the issue. Rather, it appears that the district court treated the case as if it involved convictions of attempted first-degree murder, a crime that requires proof of specific intent to kill.

In the instant case, had Harrell been killed rather than injured and the jury found an intent to kill Mack, under Florida law the doctrine of transferred intent clearly would apply to hold Brady responsible for his true culpability-murder. In that situation, transferred intent would connect the mens rea (intent to kill Mack) with the actus reus (physical act of killing Harrell) to form a completed crime. Here, however, Harrell was injured but not killed and, rather than find Brady guilty of attempted first-degree murder as charged, the jury found Brady guilty of attempted second-degree murder.

The offense of attempted second-degree murder does not require proof of the specific intent to commit the underlying act (i.e., murder). See Gentry v. State, 437 So.2d 1097 (Fla.1983)

. In Gentry, we held that the crime of attempted second-degree murder does not require proof of the specific intent to kill. Although the crime of attempt generally requires proof of a specific intent to commit the crime plus an overt act in furtherance of that intent, we reasoned: "If the state is not required to show specific intent to successfully prosecute the completed crime, it will not be required to show specific intent to successfully prosecute an attempt to commit that crime." Id. at 1099. To establish attempted second-degree murder of Harrell, the state had to show (1) that Brady intentionally committed an act which would have resulted in the death of Harrell except that someone prevented him from killing Harrell or he failed to do so, and (2) that the act was imminently dangerous to another and demonstrated a depraved mind without regard for human life. See Standard Jury Instructions in Criminal Cases, 697 So.2d 84, 90 (Fla.1997).

Based on Gentry and the evidence presented at trial as outlined above, it would appear that a jury could reasonably conclude that Brady intentionally committed an act imminently dangerous to others, including Mack and Harrell, without regard for human life which would have resulted in death had the bullet fatally struck either Mack or Harrell. That is, by intentionally firing a deadly weapon in close proximity to both Mack and Harrell, the defendant intentionally committed an act that, had death resulted, would have constituted second-degree murder as to either Mack or Harrell. The attempt as to Mack appears clearer under evidence indicating that Mack was the intended target. However, because Harrell was in close proximity we also believe a jury could reasonably conclude, under the evidence, that the "act imminently dangerous to others" requirement of the second-degree murder statute would also be met by the proof submitted. Hence, there is no need to resort to the doctrine of transferred intent to the extent the facts in this case support a conviction of attempted second-degree murder of Mack and Harrell.

Our conclusion is strengthened by the jury instructions given by the trial judge in this cause. As part of the instruction on attempted first-degree murder, the court instructed the jury: "If the person aims or shoots a firearm at another person but instead misses and hits a different person, the law transfers the intent to shoot from the person who was aimed at to the person who was actually hit." However, no instruction on transferred intent was given as to the lesser included offenses, including the lesser offense of attempted second-degree murder. Of course, as we have noted above, we have not required specific intent to be proven for attempted second-degree murder. See Gentry, 437 So.2d at 1097

. Thus, it appears that the jury convicted Brady on two counts of attempted second-degree murder without resort to the doctrine of transferred intent. Under our analysis and holding in Gentry that would be lawful.

Accordingly, we decline to answer the certified question, quash the district court's decision and remand for further proceedings consistent herewith.

It is so ordered.

HARDING, C.J., and SHAW, WELLS, ANSTEAD and PARIENTE, JJ., concur.

OVERTON, Senior Justice, concurs in result only.

1. The opinion below did not relay the following facts. Rather, these facts are taken directly from the record in this case.

2. The court held that transferred intent could be used to transfer Brady's general intent to shoot Mack "to satisfy the `intentionally causing bodily harm' requirement of aggravated battery as against Harrell." Id. As for the attempted murder conviction, however, the court below relied on People v. Chinchilla, 52 Cal.App.4th 683, 60 Cal.Rptr.2d 761 (1997), in noting that had the issue been whether the "defendant attempted to murder multiple victims, then such intent is not subject to transfer but rather such intent should be independently evaluated as to each victim." Brady, 700 So.2d at 473. As one commentator notes:

If, without justification, excuse or mitigation, D with intent to kill A fires a shot which misses A but unexpectedly inflicts a non-fatal injury upon B, D is guilty of an attempt to commit murder,—but the attempt was to murder A whom D was trying to kill and not B who was hit quite accidentally. And so far as the criminal law is concerned there is no transfer of this intent from one to the other so as to make D guilty of an attempt to murder B. Hence an indictment or information charging an attempt to murder B, or (under statute) an assault with intent to murder B, will not support a conviction if the evidence shows that the injury to B was accidental and the only intent was to murder A.

Rollin M. Perkins & Ronald N. Boyce, Criminal Law 925 (3d ed.1982) (footnote omitted); see also Lt.-Col. LeEllen Coacher & Capt. Libby Gallo, Criminal Liability: Transferred and Concurrent Intent, 44 A.F. L.Rev. 227 (1998).

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). 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.

The state cites to State v. Wilson, 313 Md. 600,...