436 Mass. 291 | Mass. | 2002
The defendant was convicted of unlawful possession of a firearm and ammunition, malicious damage to a motor vehicle, and four counts of assault by means of a dangerous weapon. On appeal, he contends that the evidence was insufficient to convict him of all four assaults because the perpetra
1. Facts. Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), the jury could have found as follows. On the evening of April 1, 1998, David Benedict, the defendant and two other companions were standing outside a bar on Main Street in Brockton. Another group of young men drove by in a Honda Accord. Among that group was Daniel Marcellus, who had had previous disputes with both the defendant and Benedict. The defendant’s group gestured at the passing vehicle in a manner that suggested a desire to fight. The vehicle turned around; Marcellus and his companions got out; and ultimately it was decided that Marcellus and the defendant would fight “one on one.” The defendant then removed a gun from his pants. Mar- ■ cellus recognized the gun as one that he had seen Benedict use during a confrontation a few weeks earlier. The defendant wrapped the gun in his sweatshirt, went into the bar or an adjacent alley momentarily, and then returned without the bundled clothing (and presumably without the gun). No one saw Benedict with a gun.
The defendant and Marcellus proceeded with their fight while the others watched. After some period, the two combatants separated. The defendant was “winded” and “tired,” but his friends were encouraging him to resume the fight. He appeared reluctant to do so. At that point, the police arrived. The participants were questioned, but no one was arrested. After the police advised the young men to go their separate ways, Mar-cellus and his group left in their car, with Marcellus seated in the back seat, behind the driver.
Driving along, approximately twenty minutes after the conclusion of the fight, Marcellus noticed another vehicle, an older model blue Chrysler, approaching rapidly. (The same vehicle had been seen at the site of the earlier fight.) The Chrysler pulled alongside, and a hand reached out the rear passenger side window pointing a gun at the Honda. Marcellus described the hand as “light-skinned.” He recognized the weapon as the one that the defendant had possessed at the start of their fight.
A single shot was fired, shattering the rear driver’s side window of the Honda. None of the occupants of the vehicle was hit by the bullet. They were hit by fragments of broken glass. Marcellus looked over at the Chrysler and saw Benedict in the rear driver’s side seat and the defendant in the rear passenger side seat. The driver and the front seat passenger were the other two young men who had been with the defendant at the time of the earlier fight. After the one gunshot, the Chrysler sped away. Marcellus attempted pursuit, but was convinced by his companions to go to the police instead. They proceeded to the police station, where Marcellus told the police that he thought the defendant was the shooter.
At school the next day, Marcellus spoke with the defendant’s girl friend. She told him that Benedict was the shooter, not the defendant. Marcellus heard similar rumors from other classmates. Marcellus then began to doubt his identification of the defendant as the shooter because the hand he had seen holding the gun out the window was “light-skinned,” whereas the defendant was more “dark-skinned.” By the time of his grand jury testimony, Marcellus told the investigating officers that he was not sure of the identity of the shooter, but that it probably was Benedict, not the defendant. At trial, Marcellus testified that what he heard from others concerning Benedict’s identity as the shooter made “more sense” to him, and he opined that it “probably really wasn’t” the defendant who shot at the car. He
2. Intent to batter four victims. The defendant was charged with a separate count of assault by means of a dangerous weapon committed on each of the four occupants of the Honda. The defendant argues that he cannot be found guilty of four counts of assault by means of a dangerous weapon because there was not sufficient evidence of any intent to batter all four alleged victims. Because it would have been physically impossible to hit all four victims with a single shot, he contends that the perpetrator could not have had the intent to batter four people.
Under the common law, an assault may be perpetrated in either of two ways.
Under the attempted battery theory, the Commonwealth must prove that the defendant intended to commit a battery, took some overt step toward accomplishing that intended battery, and came reasonably close to doing so. See Commonwealth v. Musgrave, supra at 520 n.2, quoting Model Jury Instructions for Criminal Offenses Tried in the District Court Department § 5.402 (1988). The defendant concedes, as he must, that a single act can result in multiple convictions if there are multiple victims. “[T]he appropriate ‘unit of prosecution’ for such crimes [of violence] is the person assaulted or killed, not the underlying criminal act.” Commonwealth v. Crawford, 430 Mass. 683, 686-687 (2000), quoting Commonwealth v. Donovan, 395 Mass. 20, 31 (1985). See Commonwealth v. Gordon, 41 Mass. App. Ct. 459, 465 (1996); Commonwealth v. Dello Iacono, 20 Mass. App. Ct. 83, 89-90 (1985).
Rather, the defendant challenges the sufficiency of the evidence only with respect to the element of intent. He contends that the single shot could not hit all the occupants of the car, and asks us to hold that his intent cannot have exceeded what the laws of physics would permit that single shot to accomplish.
More fundamentally, however, the defendant’s argument erroneously assumes that the intent element requires the Commonwealth to prove an intent to batter each and every one of the victims in order for there to be multiple assaults. That assumption is inconsistent with our treatment of intent in other contexts. We have never required that a defendant’s intent be directed at the precise victim of the crime. Rather, we have long recognized the concept of “transferred intent” in situations where the defendant’s conduct harms a person other than the intended victim. See Commonwealth v. Fisher, 433 Mass. 340, 345-346 (2001), and cases cited.
In most other jurisdictions, the same principle of transferred intent applies to satisfy the element of intent when a defendant harms both the intended victim and one or more additional but unintended victims. See, e.g., United States v. Sampol, 636 F.2d 621, 674 (D.C. Cir. 1980) (evidence sufficient to support two convictions of murder in the first degree where defendant killed two people, even though defendant only intended to kill one of them, noting that “[tjhere are even stronger grounds for applying the principle [of transferred intent] where the intended victim is killed by the same act that kills the unintended victim”); State v. Worlock, 117 N.J. 596, 616-617 (1990) (same); State v. Hinton, 227 Conn. 301, 306-311 (1993) (transferred intent doctrine applicable to support three counts of murder even if defendant only intended to kill one victim); State v. Fennell, 340 S.C. 266, 276 (2000) (where defendant shot and killed intended victim but one bullet struck and seri
Thus, a defendant’s intent is deemed to extend to others
We recognize that, in most of the cases cited above, the unintended victims were actually struck, injured, or killed by the defendant.
There was abundant evidence of an intent to batter at least one person, most likely Marcellus.
Beyond the metaphysics of transferred intent, we note that treating the defendant’s actions as four assaults by means of a dangerous weapon is consistent with the purposes underlying the common law of assault. An attempted but unsuccessful battery is criminal not because it actually harms the victim — indeed, the victim can be completely unaware of the attempt — but rather because it imperils the victim. The conduct here (a shot into a car full of people, fired at point blank range from a passing vehicle traveling at high speed) placed four people in equally grave peril. Limiting the number of convictions to the precise number of victims the defendant intended to hit ignores the additional persons whose lives were placed at risk by the defendant’s attempt to batter his intended victim. The suggestion that they were not victims of any crime, when they all suffered the very peril that the crime of assault by means of a dangerous weapon is intended to address, is contrary to common sense.
Similarly, it would be anomalous to hold that, had the
Therefore, we conclude that there was sufficient evidence to prove four counts of assault by means of a dangerous weapon on a theory of attempted battery.
3. Sufficiency of the evidence as to principal or joint venturer liability. The defendant contends that, in light of Marcellus’s effective retraction of his earlier identification of the shooter, there was not sufficient evidence to convict him as the principal. We agree with the Appeals Court’s analysis on this point. See Commonwealth v. Melton, 50 Mass. App. Ct. 637, 643-646 (2001). Marcellus acknowledged that he had originally identified the defendant as the shooter; he acknowledged that his retraction of that identification was based at least in part on rumor and hearsay from persons who were partial to the defendant; and the jury could have been skeptical of his claimed ability to distinguish subtle differences in skin tone (the ostensible basis for his retraction) when he had seen only the perpetrator’s hand briefly as the car sped by on a foggy night. Meanwhile, there was circumstantial evidence pointing to the defendant as the likely perpetrator. He had the strongest motive to attack Marcellus (hostility from the earlier fight); the weapon used to perpetrate the assaults had been seen in his possession earlier that evening; and he was seated closest to the window from which the shot was fired.
We also agree with the Appeals Court that there was sufficient evidence to submit the case to the jury on the alternative
Judgments affirmed.
The defendant raises no issue with respect to the convictions of unlawful possession of a firearm and ammunition.
The argument now raised by the defendant was not presented below in support of his motion for required finding of not guilty. We therefore review to determine whether there was error and, if so, whether such error created a substantial risk of a miscarriage of justice. Convictions based on insufficient evidence “are inherently serious enough to create a substantial risk of a miscarriage of justice.” Commonwealth v. McGovern, 397 Mass. 863, 867-868 (1986).
The statute sets forth the punishment for the crime of assault by means of a dangerous weapon, but does not define the crime. G. L. c. 265, § 15B (b). Commonwealth v. Slaney, 345 Mass. 135, 138 (1962). Commonwealth v. Musgrave, 38 Mass. App. Ct. 519, 521 (1995), S.C., 421 Mass. 610 (1996). Therefore, we look to the common law for the definition of the crime of assault. Commonwealth v. Slaney, supra.
The defendant concedes that the evidence was sufficient to establish the “immediately threatened battery” form of assault as to all four victims. To establish that form of assault, the Commonwealth must prove that the defendant intentionally engaged in menacing conduct that reasonably caused the victim to fear an imminent battery. Commonwealth v. Musgrave, supra at 520 n.2, quoting Model Jury Instructions for Criminal Offenses Tried in the District Court Department § 5.402 (1988). A single shot in the direction of a group of people is intentionally menacing conduct that can cause each person reasonably to fear an imminent battery.
While the defendant is correct that the single shot could not have hit all four occupants, he is incorrect in his assertion that the single shot could not have hit more than one occupant. The apparent path of the bullet was straight across the back seat, entering at one rear window and continuing out the opposite rear window. Two persons were in that back seat at the time. Both could have been hit by a single bullet traveling along that path. The defendant’s argument, even if correct, would reduce the number of assault convictions to two, not to one.
Here, an intention to harm persons in addition to Marcellus could be inferred from the evidence, notwithstanding the physical impossibility of. hitting all of them with a single shot. While Marcellus was presumably the principal object of the defendant’s vengeance, the jury could infer that the defendant bore ill will to Marcellus’s companions as well. They were affiliated with Marcellus, and all of them had just witnessed the defendant’s unwillingness to continue fighting Marcellus.
A minority of jurisdictions refuse to apply the doctrine of transferred intent if the defendant has succeeded in perpetrating the intended crime on the intended victim. See People v. Birreuta, 162 Cal. App. 3d 454, 460 (1984); Ford v. State, 330 Md. 682, 710-715 (1993). Under that analysis, the doctrine of transferred intent is used only to prevent a defendant from obtaining a windfall due to his own poor aim or other miscalculation, and its sole purpose “is to insure the adequate punishment of those who accidentally kill innocent bystanders, while failing to kill their intended victims.” People v. Birreuta, supra. Thus, as long as the crime is completed against the intended victim, the minority is of the view that “there is no need for such an artificial doctrine” in order to obtain a conviction. Id. Like the majority of courts that have considered the issue, we are not persuaded by this analysis. The doctrine of transferred intent is not simply a pragmatic device to make sure that a culpable defendant does not avoid all prosecution. Rather, it also serves to recognize that everyone injured or killed by the defendant, whether they were the intended object of his intentional crime or not, are in fact victims. The defendant has acted with the requisite intent as to at least one person, but all persons injured or killed are appropriately viewed as victims of that crime. To
The doctrine has been applied to purely attempt crimes in at least one case. See State v. Gillette, 102 N.M. 695, 705 (Ct. App. 1985) (three counts of attempted murder even though defendant only intended to poison one person).
Although the shot was fired into the back seat when Marcellus was in the driver’s seat, Marcellus had been sitting in the back seat at the time the defendant and his companions had seen Marcellus leave the scene of the fight. Driving up rapidly from behind on what some witnesses described as a misty
The passengers in the car advised Marcellus not to follow the defendant’s car because they were afraid that another shot would be fired if Marcellus maintained the pursuit.
The judge did not instruct the jury on transferred intent. There was no objection by either side. The absence of such an instruction did not create a substantial risk of a miscarriage of justice. To the contrary, the absence of an instruction on transferred intent can only help a defendant, as the jury may then mistakenly assume that the Commonwealth has to prove intent specifically directed at each actual victim. An instruction on transferred intent clarifies that the Commonwealth need only prove intent as to one of the victims.