State v. Fennell

• Decision Date: 27 March 2000
• Docket Number: No. 25097.,25097.
• Citation: 531 S.E.2d 512,340 S.C. 266
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. John Bennett FENNELL, Appellant.

340 S.C. 266

531 S.E.2d 512

The STATE, Respondent, v. John Bennett FENNELL, Appellant.

No. 25097.

Supreme Court of South Carolina.

Heard February 1, 2000.

Filed March 27, 2000.

Refiled May 1, 2000.

Assistant Appellate Defender Aileen P. Clare of the South Carolina Office of Appellate Defense, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, and Assistant Attorney General Jeffrey A. Jacobs, all of Columbia, and Solicitor John R. Justice of Chester, for respondent.

ORDER

We withdraw State v. Fennell, Op. No. 25097 (S.C. Sup.Ct. filed March 27, 2000) (Shearouse Adv. Sh. No. 12 at 43). We hereby substitute in its place the attached opinion.

IT IS SO ORDERED.

/s/ Jean H. Toal, C.J. /s/ James E. Moore, J. /s/ John H. Waller, Jr., J. /s/ E.C. Burnett, III, J. /s/ Costa M. Pleicones, J.

WALLER, Justice:

John Bennett Fennell (appellant) was indicted for the murder of one man and the assault and battery with intent to kill (ABIK) of a second man. A jury found him guilty but mentally ill on both charges. He was sentenced to life in prison for murder and twenty years for ABIK. We affirm.

FACTS

Appellant was diagnosed as suffering from paranoid schizophrenia in 1984. Appellant's illness led to the loss of his job as an accountant, a divorce, and his decision to move from Columbia back to Chester County to live with his elderly mother. Appellant joined the Chester Civitan Club and was appointed to oversee its "candy box" program. He was responsible for collecting money from boxes left in stores, replenishing the candy, and making deposits. He took the job very seriously and usually performed it well.

In fall 1996, William R. Thrailkill, the owner of a home remodeling business and a Civitan Club member also involved in the candy box program, and appellant had a dispute about an empty candy box at a local store. The argument angered and upset appellant.

At a Civitan Club meeting at a restaurant about two weeks later, neither appellant nor Thrailkill initially appeared upset. Appellant approached Thrailkill to discuss the candy box matter again as Thrailkill, his son, and other members formed a line at the buffet. Thrailkill refused to discuss it and made a disparaging remark that angered appellant. Appellant immediately left the room and retrieved a .38-caliber revolver from his car. Appellant strode back into the restaurant, declaring he was "going to kill that son of a bitch." He emptied his gun at Thrailkill, striking him with five shots. Thrailkill died at a hospital two months later from complications caused by his injuries.

A stray bullet struck Elihue Armstrong, a semi-retired grocer and barber who was standing nearby, in the right arm and chest. Armstrong survived the injuries. Appellant told a psychiatrist that he did not intend to injure Armstrong.

Appellant moved for a directed verdict on the ABIK charge. Appellant asserted that the State had failed to prove he intended to kill Armstrong, and the doctrine of transferred intent did not apply. The judge denied the motion.

ISSUE

Did the trial judge err in refusing to direct a verdict on the ABIK charge because the doctrine of transferred intent is inapplicable when the intended victim is killed and a stray bullet injures—but does not kill—an unintended victim?

STANDARD OF REVIEW

In considering a motion for a directed verdict, the trial court is concerned with the existence or non-existence of evidence, not with its weight. The case should be submitted to the jury if there is any direct evidence or substantial circumstantial evidence which reasonably tends to prove the guilt of the accused, or from which his guilt may be fairly or logically deduced. State v. Robinson, 310 S.C. 535, 426 S.E.2d 317 (1992). In reviewing the denial of a motion for a directed verdict, the evidence must be viewed in the light most favorable to the State. If there is any direct evidence or substantial circumstantial evidence reasonably tending to prove the guilt of the accused, the appellate court must find that the case was properly submitted to the jury. State v. Venters, 300 S.C. 260, 387 S.E.2d 270 (1990).

DISCUSSION

Appellant contends the trial judge erred in refusing to direct a verdict in his favor on the ABIK charge. The doctrine of transferred intent does not apply because any intent was "fully satisfied" by the death of Thrailkill (the intended victim); therefore, nothing was left to transfer to Armstrong (the unintended victim). Furthermore, appellant argues, the doctrine is inapplicable because the harm appellant intended to inflict on Thrailkill (death) was not identical to the harm inflicted on Armstrong (injury). We disagree.

Criminal liability normally is based upon the concurrence of two factors: the defendant's criminal intent and the actual, physical act constituting the offense. United States v. Bailey, 444 U.S. 394, 402, 100 S.Ct. 624, 630-31, 62 L.Ed.2d 575 (1980) (cited in McAninch & Fairey, The Criminal Law of South Carolina 1 (1996)). A defendant may not be convicted of a criminal offense unless the State proves beyond a reasonable doubt that he acted with the criminal intent, or mental state, required for a particular offense. State v. Ferguson, 302 S.C. 269, 271, 395 S.E.2d 182, 183 (1990) (required mental state for particular crime may be purpose (intent), knowledge, recklessness, or criminal negligence).

Appellant's first argument is easily resolved. Some have observed, as the prosecutor did at appellant's trial, that "malice follows the bullet." Such explanations, as well as the term "transferred intent" itself, are somewhat misleading. The defendant's mental state, or mens rea, whatever it may be at the time he allegedly commits a criminal act, is contained within the defendant's brain when he commits the act. That mental state never leaves the defendant's brain; it is not "transferred" from the defendant's brain to another person or place. A more apt description might be that the mental state is like a spotlight emanating from its source—the defendant's mind—to its target—the intended victim.

Nor is that mental state in limited supply. The mental state "spotlight" is not extinguished at the moment a bullet strikes and kills the intended victim, such that there is no mental state left upon which to convict an unintended victim who also is injured or killed. See People v. Scott, 14 Cal.4th 544, 59 Cal.Rptr.2d 178, 927 P.2d 288, 292 (1996) ("[c]ontrary to what its name implies, the transferred intent doctrine does not refer to any actual intent that is capable of being `used up' once it is employed to convict a defendant of a specific intent crime against the intended victim"); State v. Hinton, 227 Conn. 301, 630 A.2d 593, 597-98 (1993) (rejecting argument that intent to kill may not be transferred to unintended victim when intended victim is killed); Harvey v. State, 111 Md.App. 401, 681 A.2d 628, 637 (1996) (explaining that the mens rea is an elastic thing of unlimited supply which neither follows nor fails to follow the bullet, but never leaves the defendant's brain).

The more difficult question is the one presented by the facts of this case and appellant's second argument. Is it appropriate to use the doctrine of transferred intent—admittedly a legal fiction—to transfer appellant's alleged mental state with regard to Thrailkill, the intended victim who was killed, to Armstrong, the unintended victim who was injured but not killed? To pursue our analogy, the jury ordinarily may not unilaterally shift the defendant's mental state "spotlight" from one person to another. The jury simply must determine whether that spotlight existed, i.e., was it "on" or "off." The question in this case is whether it is appropriate to allow the jury to place its collective hand upon the "spotlight" of appellant's mental state and adjust the imaginary beam so that it encompasses not only Thrailkill, but also Armstrong in order to convict appellant of ABIK. Answering that question requires consideration of transferred intent cases decided by this Court and the role of the doctrine in our criminal law.

This Court in several cases has held that a defendant may be found guilty of murder or manslaughter in a case of bad or mistaken aim under the doctrine of transferred intent. In the classic case, the defendant intends to kill or seriously injure one person, but misses that person and mistakenly kills another. Although the defendant did not act with malice toward the unintended victim, the defendant's criminal intent to kill the intended victim (i.e., his mental state of malice) is transferred to the unintended victim. "If there was malice in [defendant's] heart, he was guilty of the crime charged, it matters not whether he killed his intended victim or a third person through mistake." State v. Heyward, 197 S.C. 371, 377, 15 S.E.2d 669, 672 (1941) (affirming murder conviction where defendant testified he mistakenly shot and killed police officer who allegedly broke open his front door, believing the officer to be an assassin sent by an angry former employer). See also State v. Gandy, 283 S.C. 571, 324 S.E.2d 65 (1984) (affirming murder conviction where defendant intending to kill one man shot through a closed door, killing unintended victim instead), overruled on other grounds by State v. Lowry, 315 S.C. 396, 434 S.E.2d 272 (1993); State v. Horne, 282 S.C. 444, 447, 319 S.E.2d 703, 704 (1984) (holding that State in future may prosecute defendant for murder of viable fetus when defendant attacks a pregnant woman with malice and in the process kills the fetus, an unintended victim); State v. Williams, 189 S.C. 19, 24, 199 S.E. 906, 908 (1938) (affirming murder conviction where defendant shot at intended victim who was driving a wagon of cotton, but missed him and mistakenly killed the man sitting beside him); LaFave & Scott, Substantive Criminal Law, §...