Brooks v. United States
655 A.2d 844
D.C.
1995
Check Treatment

*2 FARRELL, Before FERREN MACK, Judge. Judges, and Senior Associate FARRELL, Judge: Associate of, guilty among appellant A found with counts of assault things, other three (AWIM) armed, while to -3202(a)(1) 22-503, -2403, §§ D.C.Code (1989).1 on is principal His convictions, the trial these to instructing by judge committed intent. of transferred on affirm. We

I. evidence, light viewed government, revealed

favorable to a hand- five or six shots from fired twenty Acklin from ten gun at Jermaine away. Acklin and The shots struck both feet person, legs. A third Leslie German Acklin, Strauss, standing with April was indictment put in fear the shots.2 The assaulting Acklin with charged appellant with charged It further intent to murder him. Strauss, him with German and to murder Acklin. individually, with intent and third as- respect the second With saults, request judge at the juiy princi- “the prosecutor instructed intent, [namely one ple that] of transferred as- one who intends assault person, bystander third saults have committed whatever form deemed to committed had he would have assault he victim.” assaulted the intended court, Kent, appointed M. Elizabeth DC, Washington, appellant. II. Blackmon, Atty., A. Asst. U.S. with

Leslie Holder, Jr., appellant’s claim Atty., and first consider Eric H. U.S. whom insufficient, as a mat- Acker, Eric Asst. evidence John R. Fisher and M. dangerous or or other provides: armed with firearm 1. D.C.Code 22-503 deadly weapon. Whoever assaults another may pun- offense which be commit other under either assaulted 2. Strauss was therefore by imprisonment penitentiary in the shall ished in Robinson defined form criminal years. imprisoned not more than who, sec- 22-2403 defines murder in the were law students D.C.Code and Strauss German 22-3202(a)(l) permits degree. company, investigating an unrelat- were ond Acklin’s university juvenile imprisonment drug up of a punishment of life ed behalf enhanced justice violence" while clinic. for commission of a "crime of law, ter of establish he intended to III. murder Acklin.3 He contends that at most Appellant concedes he committed the evidence general showed that had the separate by firing multiple three assaults (and others) intent to assault Acklin See, e.g., victims, wounding shots at the two. *3 dangerous weapon. disagree. As in States, v. 1288, 642 Ruffin States, Gray v. United (D.C. 585 A.2d 164 (D.C.1994). argues, 1297-98 He that 1991), reasonably rational could find permitting trial erred in appellant to kill intended Acklin. In specific “transfer” intent his to murder Ack- Gray defendant, apparent who had no lin to the act of the two unintend kill, multiple

motive to fired in shots victims, ed Appellant German and Strauss. range, direction three children at close application asks us to limit of the common striking one. We sustained the convictions by holding law doctrine of intent transferred for assault with to kill intent while armed specific injures intent “when a weapon because range “[t]o fire a at such victim, the intended the doctrine of trans place peril was bound to in the lives of [the] victims,” apply.” ferred In young potential support intent does not and because the argument, this cites defendant’s lethal intent could be the decision of the inferred Id. at 165. Ford v. Appeals Maryland from these Court of in circumstances. State, case, 682, (1993), Gray, present unlike 330 625 A.2d there was at Md. 984 Ford “as marginal urging of a appel persua evidence motive on that we follow Acklin,4 and, part in Gray, lant’s to kill authority interpreting sive the common appellant fired a succession of shots at law Ackl doctrine of transferred in this jurisdiction.”6 in5 In Ford away. Maryland from a short distance This evi court prove was State v. Wil dence sufficient his intent disavowed decision in its earlier son, 600, (1988), murder Acklin. 313 A.2d 1041 Md. 546 requires proof going 3. While an AWIMconviction of "a had heard Acklin to rob was him—a sort kill," States, preemptive malicious intent to Hunter v. United strike. 1048, (D.C.1991); Logan 590 A.2d 1051 v. United States, 664, (D.C.1984), appellant 483 A.2d 676 shots, firing appellant 5. Before addressed concedes, on the facts that if the .(“Are me?”), you looking words to Acklin for proof was sufficed to show his appellant pointed gun Acklin at testified that count, kill as to each sufficient to show began firing. him and "malicious” intent to kill. 4. This was in the form of juvenile defendant as an adult with assault with testimony Hobbs gan, Hobbs, Logan, supra, holding cutorial discretion. lant was juvenile purposes intent to murder. cess rize[s] adult intent to kill because of this court’s decision in intent to commit assault with intent charged with 1991), at the time of the [D.C.Code] " ‘overcharged’ Appellant 16-2301(3)(A), challenge a decision ). 594 A.2d status." As a In Hobbs we properly charged reject Family does prosecution only 16-2301(3)(A) AWIM rather to the [by the his and has 592 A.2d murder, protest broadly Id. at 68-70. Because Division to kill.” United States v. charging shootings, appellant sustained, (D.C.1991) (emphasis government] shot unobjected-to hearsay a crime distinct from "the cognizable [defining as an jurisdiction] adult under seventeen Acklin because he than decision, plain language for assault with abuse of , that he was assault with light charge due to his 'child' for years due Marrow prose- autho appel of Lo pro was old 6. D.C.Code pronouncement law gard supra. presented time of lumbia_’’ preting Appeals Maryland relying on Gladden v. ute.” O'Connor v. United looked to of transferred the time of the cession of bia State_” "whether the District unless consistent common law 109, 1294 n. 9. body [1801] to this court's 111, argument appellant There we found it Maryland’s the law which (1974), 125 F.2d or not the [post-1801] remains in force as of transferred criminal Watkins intent was O'Connor, 399 A.2d at 25. "[T]his 49-301 in Ford we concluded that “the doctrine court in interpretation repealed cession of the District within 33, law for the for assistance ... (1990) "provides decisions of the Maryland court State, 35 Rives, in force contained at Ruffin States, intent_" unnecessary makes was authoritative with re or modified inherited from that 273 Md. has, customarily, District of Colum part 75 v. United 399 A.2d of the common District of Co court's recent U.S.App.D.C. of the law of Maryland the critical previously O’Connor, to decide in inter 21, stat 330 25 all at (if hold)7 In appellant’s November 1992 trial. it did that whenever after concluded deed, its un recognized that the Ford court completed a defendant has ‘“committed con derstanding of intent was against his victim which is as crime Maryland trary prevailing rule greatest culpability serious level of Wilson, supra, that transferred intent by transferring that which could be achieved ” attempted properly support a conviction victim,’ the trans intent to his unintended (or, presumably, assault with intent applied. not be ferred intent doctrine should murder) if that crime had also been even Ford, (quoting People completed against victim.9 See the intended Calderon, Cal.Rptr. Cal.App.3d Earp, 319 also State v. Md. (1991)).8 Ford, therefore, 833, 836 Under (1990) 1227, 1231 (specific required appellant’s intent to murder Aeklin could be “may attempted a ‘transferred’ *4 be only if “transferred” he had killed German or intent, is, as the mens rea of defendant Strauss. will his victim be transferred government argues The at the injury as a an victim who suffers unintended appellant’s threshold that claim of instruction attempt”). Looking of result the defendant’s must error be reviewed under law, therefore, solely Maryland scarcely 52(b) (1994). standards, Super.Ct.Crim.R. judge— to the trial could have been obvious point dispositive. agree, and this find contrary appellant’s intent quite to the —that object Appellant did not to the transferred Aeklin not “transferred” to murder could be instruction, stating twice that he was specific intent complete as to the crimes of so given. He satisfied with the instructions as and Strauss. assault on German accordingly must that the demonstrate both importance, the greater is fact Of “ alleged instructional ‘obvious or error was jurisdiction would have that case law this readily apparent,’” and that it was “‘so serious with at left clearly prejudicial rights substantial [his] trans- Ford’s limitation on question whether jeopardize very integri as to the fairness and intent can be reconciled with this ferred States, ty the trial.’” Harris United 22-503, § interpretation of court’s (D.C.1992) (en banc) 154, 159 & n. 6 charged. appellant was under which (citations omitted); see also Foreman v. Mary- government states before “the (D.C.1993) Ford, Appeals’ decision this land Court (“Both prongs [plain error] standard argument had Court ... not considered satisfied”). enough must be It is this case appeal by appellant in advanced —name- prong to hold that fails first may properly ly, transferred intent whether the test. support a for assault be used to conviction First, assuming that Ma- even Ford —as a victim to murder unintended with intent ryland interpreting decision the common to murder has when an assault with intent authority persuasive completed against be on the the intended law—would also been doctrine, true, prior may That but two limits of the transferred intent victim.”10 con- have have itself to the of this court nonetheless commended decisions 22-503, § mens as judge in this it was decided strued the rea element trial case because Ford, (court’s 625 A.2d at 998. 7. See 625 A.2d at 1004 discussion J., "dictum”) (McAuliffe, of transferred concurring). Interestingly, relied Wilson court had Gladden, heavily supra the same deci- note partly as The Ford court reasoned follows: concluding that trans- looked to sion this court intent makes a whole crime out [T]ransferred part is criminal law ferred intent by joining the intent to one halves supra jurisdiction. See note 6. victim. victim with the harm caused to Another intent does not make two crimes Transferred O'Connor, supra note Apparently, in neither has out of one. Where the crime intended actually re E.D.P., (D.C.1990), nor against the intended been committed expressly applied the doctrine each of which victim, unnecessary is transferred intent intent, charged was the defendant applied against should not be to acts unintend- victim. his intended ed victims. companion Moore, § well as of its 22-501 statute same agreed (assault kill, rob, with intent or commit with the “that neither the lan- offenses), related in a manner consistent with § guage legislative pur- 22-503 nor the doctrine of transferred intent. underlying pose compel its creation an inter- pretation requiring that other offense In Moore v. United against intended must be directed same (D.C.1986) curiam), (per defendant person as the assault.” Id. 1124. A con- victim, convicted of armed of one concluded, trary reading, we Cotten, another, Rowe, and of assault of (§ 22-501).11 the intent rob Cotten On purpose would frustrate 22-503 in challenged the second conviction where, here, a instances defendant as- ground requires 22-501 saults one victim with effectu- person assaulted be the the de- ate commission of another crime fendant rejected intended to rob. We against a clearly second victim. There is “[njeither argument, holding although compelling societal interest in curb- the language legislative of the statute nor its conduct, ing provides such history dispositive” issue, id. the means to do so. “ignore it would common and [the] sense *5 statutory purpose” evident require to identi- Id. at 1125. ty between intended victim of the assault person and actually assaulted. Id. at Neither Moore nor Battle mentioned the Yet, of doctrine intent. plain analysis, purposes for of error each can penalty The increased attendant to an rob, holding ques- assault intent be viewed as statute in opposed with to to a its as assault, simple major is reflective of a stat- tion “transfers” in intent the sense that a utory purpose, punish to an assailant (i.e., rob, specific intent to kidnap, assault potentially whose exposes criminal conduct etc.) person a A for substitutes a greater the assault to a victim risk of harm assault intent to the victim B. Each statute assault accompanied because the so, reasoned, does Moore because of the intent to commit another offense.... heightened exposure of to harm victim B aggravating

from the mental element of an Moreover, intent to commit another crime. Giving language of our statute its appear prosecu- both decisions to envision meaning, full it would be nonsensical to (and C) assaults on and B tions for both A scope involving limit to its situations a since, stated, Moore “it would nonsensi- victim; single particularly, where the as- scope cal to limit to [§ 22-501’s] situations sault on one victim is used to effectuate the victim_”12 involving single 508 A.2d at robbery another at the scene. Accordingly, Superior Id. Battle, aware of Moore and asked to instruct appellant’s on transferred intent as in In Battle v. United easy say not find it would to how that (D.C.1986), applied holding Moore very § differs from the definition of specifically, to 22-503’s multiple to assaults 22-503— rea, kidnap. Rejecting with the to essentially intent the mens which makes the identi- provides: 11. D.C.Code 22-501 Similarly, of B with A. assault intent to rob Battle, Every person any Rodriguez convicted of with assault defendant was convicted of rape, intent or to to to kill commit or commit kidnap two counts of assault to with intent while food, drink, robbery, mingling poison or .first armed. conviction involved assault of The. kill, wilfully or medicine with intent to or kidnap Lisa Vitorino Carlos Vitori- well, water, poisoning spring, or cistern armed. while While the court did not state imprisonment shall be sentenced for not less explicitly that the second involved as- conviction years years. than 2 or more than 15 kidnap sault Carlos Vitorino with Moore, him, out, pointed court’s recital of the facts of the case involved victims A and B, fully supports and convictions armed of A and of that conclusion. 1106, 1112& nn. 3-5 ty to be assaulted immaterial.13 observa- caution that we make these only that the asserted

tions to demonstrate MACK, concurring: Judge, Senior instructing on transferred error readily ap- not have been “obvious concurring opinion. join Judge I Ferren’s judge. parent” In a case where addition, that I em- emphasize, I would court, issue has been raised in the trial Maryland’s deci- Ford1 brace the rationale argue adop- free defendant will remain 8) (as Judge footnote sion Farrell’s recited analysis inapplication tion of not make that “Transferred intent does the transferred intent doctrine a situation Judge out one.” As to Farrell’s crimes (as case) buys arguably in this where construing mens discussion of our cases prosecution specific-intent multiple (1989)2 rea element of D.C.Code price one. The court convictions (decided “common sense and on the basis of directly will then have focus on the rela- tionship intent and the em- statutory purpose”), between transferred I would also evident Battle, statutes construed in Moore su- pattern in those phasize that the factual only pra. in this We decide victim with reflected assaults one cases having preserved appeal, appel- the issue for commission intent to “effectuate” the lant has not demonstrated against a second victim. another crime giving of the transferred intent instruction.14

Affirmed.

FERREN, Judge, Associate with whom MACK, joins, Judge, concurring: Senior *6 join opinion

I the the court but wish emphasize plain that we find error. Although Judge analysis Farrell’s under (1989 Repl.) may have

merit, adopting analysis we not are to- Accordingly, foreclosing are

day. not argument against intent in non- Maryland cases under fatal assault the State, Appeals’ analysis in Ford v. 330 Md. (1993). 682, 625 A.2d 984 See Howard candidly argued only point, recognizing on facts government 13. In Moore theory prohibition would entail construc- 22-501's "includes assault on indictment, which did individual who is on the scene of an intended tive amendment robbery charge specific when the assault done in an effort to to murder German (empha- carry robbery,” 508 at 925 out the Strauss. added), interpretation of sis and the court’s remaining argument, reject appellant's applied "particularly, where the assault statute appeal, that the trial first time on one victim is used to effectuate the supplemental to the judge's instruction (emphasis at 926 another at scene." Id. response to a note error. amounted to added). course, present In the all minimum, appellant, jury, encour- from of the in- victims assaulted were the scene give supplemental aged instruc- killing tended of Acklin. adequately question; that instruction tion guid- request responded jury’s for further government its brief on ance. part Ruffin, appel- argued, in reliance on convictions as to German and Strauss lant’s State, 682, 625 A.2d 984 330 Md. on a of "concurrent sustained (despite Ruffin, intent.” See instructional error on transferred in- assumed tent, necessarily v. United must have found See Moore curiam), 1986) victims). (per and Battle anyway to At oral kill actual argument, abandoned 515 A.2d 1120