Lead Opinion
Gerard Harrison fired his .38 caliber pistol six times at a man known as “Valentine” but struck James Cook instead. We issued a writ of certiorari to determine whether the evidence in this case was sufficient to support Harrison’s conviction of attempted second-degree murder. Harrison argues that the evidence was not sufficient to prove the intent element of that crime. For the reasons discussed herein, we agree -with Harrison and hold that, under the theory of “concurrent intent,” the evidence was insufficient to support a finding that Harrison possessed the requisite intent for attempted second-degree murder. We also hold that the doctrine of “transferred intent” does not support the conviction because “transferred intent” may not be applied to prove attempted murder.
I. Background
Harrison engaged in a shooting in Baltimore City on July 27, 2001. As a result of the incident, the State charged Harrison in a nine-count indictment with: (1) attempted first degree murder in violation of Maryland Code, Article 27, Section 411A (b) (1957,1996 RepLVoL);
The facts would be that, on July 27, 2001, in the fifteen hundred block of Clifton Avenue, the victim in this matter, Mr. James Cook, was standing and talking with friends when he was struck in the neck with a bullet. Investigation revealed that [Harrison] and another unknown person were shooting at someone known only to them only as Valentine, and in the course of the shooting, accidentally struck the victim, Mr. Cook.
Your Honor, a witness was identified. He was taken down to the station and shown a photo array. He observed the photo array and picked out [Harrison] who would be identi*484 fied in court here today as Mr. Gerard Harrison to my right, with counsel, as the person he knows as Fats and as one of the shooters. I believe the photo array is already in evidence in the court file from the motions hearing. Situationally, the defendant was advised of his rights. He waived his constitutional rights and he did give a statement that was taped.
I believe that and the advisement of rights are already in the court file as well from evidence and motions hearings. During the statement, [Harrison] advised that he and a person known to him as Twin Shitty began firing on a person that they knew as Valentine. [Harrison] stated that he had one gun and the other person had two guns, stating that he had fired six shots and then they both ran. Found out later that somebody other than their intended target was shot.
[I]f called to testify, the ballistics examiner would have stated that the ballistics evidence recovered from the crime scene was consistent with [Harrison’s] confession and that the ballistics show that there were three different firearms used and they matched the caliber that [Harrison] described. The victim was taken to Sinai Hospital where he was operated on. All events occurred in Baltimore City, State of Maryland. That would be the statement supporting the guilty plea as a Count Two, attempted murder in the second degree and Count Six, use of a handgun in the commission of a crime of violence.
The statements made by Harrison during a police interrogation on August 22, 2001, which were referred to in the agreed-upon facts, were as follows:
[Officer]: Okay and if you could, in your own words again tell me what you know and what happened as far as what you knew in this case.
Harrison: All I know is that me and another ... another dude, a friend of mines walking up on the basketball court and he had two guns, I had one. We just started shooting in the direction of Valentine.
*485 [Officer]: Of Valentine, and why were you all shooting at Valentine?
Harrison: Because he around there selling some dope.
[Officer]: Okay, and was he told something in the past?
Harrison: He was told in the past not to hustle around there.
[Officer]: Okay, and when you all were shooting in the direction of Valentine, what type of gun did you have?
Harrison: I had a .38.
[Officer]: Okay. Now when you all were shooting at Valentine, how many shots did you shoot at him?
Harrison: Six.
[Officer]: So did you have any more shots left?
Harrison: No.
The judge imposed concurrent sentences of twelve years imprisonment for attempted second-degree murder and five years imprisonment for the handgun violation.
The Court of Special Appeals affirmed the convictions. Harrison v. State,
Harrison petitioned this Court for a writ of certiorari and raised two questions, which we have rephrased and combined into one: Is the evidence sufficient to support a conviction of attempted second-degree murder, where Harrison fired six shots at one person, missed that person, but hit another person causing injury and not death?
II. Standard of Review
Our opinion in Moye v. State,
The standard of review for appellate review of evidentiary sufficiency is whether any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. See State v. Albrecht,336 Md. 475 , 478-79,649 A.2d 336 , 337 (1994). We view the evidence in the light most favorable to the prosecution. See id. (citing Jackson v. Virginia,443 U.S. 307 , 319,99 S.Ct. 2781 , 2789,61 L.Ed.2d 560 , 573 (1979) and Branch v. State,305 Md. 177 , 182-83,502 A.2d 496 , 498 (1986)). We give “due regard to the [fact*488 finder’s] finding of facts, its resolution of conflicting evidence, and, significantly, its opportunity to observe and assess the credibility of witnesses.” McDonald v. State,347 Md. 452 , 474,701 A.2d 675 , 685 (1997), cert. denied,522 U.S. 1151 ,118 S.Ct. 1173 ,140 L.Ed.2d 182 (1998) (quoting Albrecht,336 Md. at 478 ,649 A.2d at 337 ).
III. Discussion
“Murder is the killing of one human being by another with the requisite malevolent state of mind and without justification, excuse, or mitigation.” Ross v. State,
To be guilty of the crime of attempt, one must possess “a specific intent to commit a particular offense” and carry out “some overt act in furtherance of the intent that goes beyond mere preparation.” State v. Earp,
Harrison challenges his conviction for attempted second-degree murder, arguing that he did not possess the requisite intent to murder Cook because his target was Valentine. In support of this argument, Harrison relies on the agreed-upon facts, which state that Harrison “accidentally” struck the victim, Cook. Harrison contends that the term “accidentally” characterizes his state of mind at the time of the shooting, thereby nullifying the specific intent to kill the victim and obviating guilt of attempted second-degree murder.
The State responds that the term “accidentally” does not characterize Harrison’s state of mind, but, rather, “accidentally” refers to the fact that the bullets, by accident, hit Cook instead of Valentine, the intended target. The State argues that the facts support the trial court’s determination that Harrison had a specific intent to kill Valentine by shooting six bullets at him. This specific intent to kill, according to the State, should be attributed to Harrison for shooting Cook under two theories: “concurrent intent” and “transferred intent.” As to the theory of “concurrent intent,” the State argues that, by firing six shots to kill Valentine, Harrison intentionally created a “kill zone.” Citing to the considered dicta explicated in Judge Chasanow’s discussion for the Court majority in Ford v. State,
We first dispose of Harrison’s argument that the term “accidentally” in the agreed statement of facts defines his mens rea at the time of the shooting. Harrison’s reliance on that term is not persuasive. The term “accidentally” describes the outcome of Harrison’s act, not his state of mind. Furthermore, in Harrison’s statement to the police, which is incorporated by reference in the agreed statement of facts, Harrison admits that he intentionally fired his handgun at Valentine. When a police officer asked what happened, Harrison replied that he and a friend walked to the basketball court and “just started shooting in the direction of Valentine.” The officer asked why, and Harrison responded, “Because he around there selling some dope .... He was told in the past not to hustle around here.” From this evidence, as well as the agreed-upon statement that Harrison “fired six shots at a person [he] knew as Valentine,” the trial judge reasonably could have inferred that the shooting was no accident. The trial judge’s conclusion that Harrison had a specific intent to kill is supported by the evidence.
Harrison argues, nonetheless, that, even if he did maintain a specific intent to kill, it was directed at Valentine and not at Cook, the one who suffered the injury. Consequently, we must determine whether the necessary specific intent as against Cook could derive from Harrison’s specific intent to kill Valentine; or in other words, does Harrison’s specific intent to kill Valentine satisfy the requisite intent for attempted second-degree murder, when the actual victim (and who alone was named in the indictment) in this case was a bystander? The State contends that the theories of “concurrent intent” and “transferred intent” support its assertion that
A. Concurrent intent
The Court of Special Appeals upheld Harrison’s conviction of attempted murder because a specific intent to murder Cook could be inferred under the theory of “concurrent intent.” Harrison,
In transferred intent, the intended harm does not occur to the intended victim, but occurs instead to a second ... victim. The actual result is an unintended, unanticipated consequence of intended harm. For example, consider a defendant who shoots a single bullet at the head of A, standing with B and C. If the defendant misses A and instead kills B, the defendant’s intent to murder A will be transferred to allow his conviction for B’s murder. The intent is concurrent, on the other hand, when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim’s vicinity.
Id. To further distinguish between the two theories, the Court offered a hypothetical example of the application of “concurrent intent”:
*492 [A]n assailant who places a bomb on a commercial airplane intending to harm a primary target on board ensures by this method of attack that all passengers will be killed. Similarly, consider a defendant who intends to kill A and, in order to ensure A’s death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire or an explosive device devastating enough to kill everyone in the group .... When the defendant escalated his mode of attack from a single bullet aimed at A’s head to a hail of bullets or an explosive device, the factfinder can infer that, whether or not the defendant succeeded in killing A, the defendant concurrently intended to kill everyone in A’s immediate vicinity to ensure A’s death. The defendant’s intent need not be transferred from A to B, because although the defendant’s goal was to kill A, his intent to kill B was also direct; it was concurrent with his intent to kill A.
Id. at 716-17,
The Ford Court then turned its attention to the facts of Wilson, which, according to the Court, “reached the right result” but for the wrong reasons. Retroactively applying the theory of “concurrent intent” to the facts in Wilson, the Court stated that the jury could have found that the defendant in that case intended to create a “kill zone” by firing multiple bullets and that “everyone in the path” of the bullets were intended targets. Id. at 717-18,
The doctrine of “concurrent intent” also has found favor in several other jurisdictions. For example, using “concurrent intent,” the Supreme Court of California, in People v. Bland,
The Supreme Court of California held that Bland’s convictions for attempted murder could not be premised upon “transferred intent” because, in California, that theory did not apply to attempted murder. Id. at 1117. Nevertheless, the Court concluded that the convictions could rest upon the theory of “concurrent intent.” After quoting Ford at length, the California court stated the facts before it “virtually compelled” an inference that Bland harbored a specific intent to kill all those in harm’s way:
Even if the jury found that [Bland] primarily wanted to kill Wilson rather than Wilson’s passengers, it could reasonably also have found a concurrent intent to kill those passengers when [Bland] and his cohort fired a flurry of bullets at the fleeing car and thereby created a kill zone. Such a finding*494 fully supports attempted murder convictions as to the passengers.
Id. at 1119.
The court in Ruffin v. United States,
In United States v. Willis,
Under a concurrent-intent approach, [the court] infer[s] the intent when the result was the same as that intended or at least a natural and probable consequence of the intended result. As long as the defendant has the requisite intent for the intended crime, the defendant will be responsible for the natural and probable consequences of the act.
Id. at 261. The court held that Willis’ actions were “sufficient to establish that he had the concurrent intent to kill both his aunt and his uncle.” Id. Willis created a “kill zone” by shooting “behind the door in three different spots, moving his pistol randomly between the shots.” Id. Therefore, according to the court, Willis was responsible for the “natural and probable consequences” of his act, including “the death or grievous bodily harm of whoever was behind the door.” Id. at 262.
In concurrent-intent analyses, courts focus on the “means employed to commit the crime” and the “zone of harm around [the] victim.” Ford,
As to the first question, courts have permitted an inference that the defendant created a kill zone when a defendant, like Harrison, fired multiple bullets at an intended target. In Wilson, the defendant and his brother fired “multiple bullets” from two handguns. Ford,
The facts in this case, however, do not permit an inference that Cook, the unintended victim, inhabited the “kill zone” when Harrison’s bullet hit him. Courts that have considered the issue all have relied on specific facts showing the location of the unintended victim either in relation to the intended victim or in relation to the defendant. In Bland, for example, the unintended victims occupied the same car as the intended victim when the defendant fired a hale of bullets at the car. Bland,
In the present case, however, the State’s argument that Cook was in Harrison’s “kill zone” at the time of the shooting lacks adequate support from the evidence. According to the agreed statement of facts, “in the fifteen hundred block of Clifton Avenue, [Cook] was standing and talking with friends when he was struck in the neck with a bullet.” Although this statement shows generally where Cook was standing when he was shot, it and the remaining evidence provide no indication where Cook was in relation to Valentine or Harrison. A fact finder, let alone an appellate court, has no idea, based on this meager evidence, whether Cook stood in Harrison’s direct line of fire, next to the intended victim, or at a distance from Harrison or his target, Valentine. Absent more specific evidence of Cook’s location in relation to the shooter and the intended victim, no inference is permissible that Cook occupied the “kill zone” when he was struck by the bullet. Consequently, we disagree with Court of Special Appeals and conclude that the agreed statement of facts does not provide sufficient evidence to support a finding of “concurrent intent” on the part of Harrison.
This Court and the Court of Special Appeals have heretofore made clear that prosecutors risk acquittal when a not-guilty agreed statement of facts fails to support the legal theory upon which the State relies. See Bruno v. State,
A. Transferred Intent
The State argues that the theory of “transferred intent” also supports the trial judge’s conclusion that Harrison possessed the intent required for attempted second-degree murder. The theory of “transferred intent” has received considerable attention over the years in this Court and the Court of Special Appeals. See, e.g., Poe v. State,
And therefore it is every man’s business to foresee what wrong or mischief may happen from that which he does with an ill-intention, and it shall be no excuse for him to say that he intended to kill another, and not the person killed. For if a man of malice prepense shoots an arrow at another with an intent to kill him, and a person to whom he bore no malice is killed by it, this shall be murder in him, for when he shot the arrow he intended to kill, and inasmuch as he directed his instrument of death at one, and thereby has killed another, it shall be the same offense in him as if he had killed the person he aimed at, for the end of the act shall be construed by the beginning of it, and the last part shall taste of the first, and as the beginning of the act had*499 malice prepense in it, and consequently imported murder, so the end of the act, viz. the killing of another shall be in the same degree, and therefore it shall be murder, and not homicide only.
Gladden,
To these may be added the cases above mentioned, viz. if A. by malice forethought strikes at b. and missing him strikes C. whereof he dies, tho he never bore any malice to C. yet it is murder, and the law transfers the malice to the party slain; the like of poisoning, sed de his supra cap.
Id. at 391,
Thus if one shoots at A and misses him, but kills B, this is murder; because of the previous felonious intent, which the law transfers from one to the other. The same is the case where one lays poison for A; and B, against whom the prisoner had no malicious intent, takes it, and it kills him; this is likewise murder.
Id. at 391-92,
Reflecting upon the viability of the doctrine, Judge O’Donnell also consulted several modern sources, including Clark and Marshall, A Treatise on the Law of Crimes, § 10.06 (6th ed., 1958), which offered this illustration of “transferred intent”:
Whenever an accountable man kills another intentionally, he is guilty of murder with express malice unless the killing is justifiable or excusable, or unless there are such circumstances of provocation as will reduce the homicide to manslaughter. This principle is applied when a man kills one person when he intended to kill another. For example, if a*500 man shoots at one person with intent to kill him, and unintentionally kills another, or sets poison for one person and another drinks it and dies, it is murder with express malice of the person killed, though he is a friend.
Gladden,
Years later, in Wilson, this Court extended the application of “transferred intent” to cover circumstances where the unintended victim suffered injury and not death.
The Court interpreted Gladden as not limiting “the doctrine’s applicability to only cases of completed homicide” but, instead, allowing “transferred intent” to extend “to all situations where a defendant’s intended act (which in all other respects constitutes a crime) ‘affects’ or ‘inflicts harm upon’ an unintended victim.” Id. at 603-04,
The breadth of the Wilson holding was called into question in Ford,
This Court rejected Ford’s argument and held that the evidence was sufficient to support a rational inference of such an intent. Id. at 705,
Within this zone [of peril], many or all occupants of the vehicles would likely be harmed, whether by the rock, the flying glass, or the drivers’ losing control of the vehicle. Under these circumstances, one act, the throwing of a single rock, could foreseeably cause multiple injuries. Where his actions were such that a single act could be expected to cause harm to all the vehicles’ occupants, the jury reasonably concluded that Ford had the specific intent to disable all the vehicles’ occupants, not just a “generalized malevolence.” A defendant can be convicted of multiple specific intent crimes from one act when it can be inferred that he intended to cause harm to more than one victim. Because of the potential for multiple injuries from Ford’s acts, the jury could properly have inferred an intent to disable all the occupants of the vehicles, not just a “generalized malevolence” as Ford contends.
Id. at 707-08,
Although the Court in Ford rested its holding solely on these grounds, Judge Chasanow went a step beyond this analysis to discuss the issue of “transferred intent,” which the Court of Special Appeals had addressed at length in its opinion. Id. at 709,
Three judges disagreed with the rejection of the doctrine of “transferred intent” in attempted murder cases. Judge McAuliffe’s concurring opinion in Ford, joined by Judges Rodowsky and Karwacki, characterized the majority’s discussion of “transferred intent” as “dictum,” attempting to “invalidate a portion of [the] doctrine that [the Court had] recently and specifically approved in [Wilson ].” Id. at 724,
Assume, for example, that the defendant, intending to kill A, shoots and wounds him, but the bullet passes through A and kills B. Under the Court’s theory, I assume the defendant would be guilty of the murder of B, although also guilty of attempted murder or assault with intent to murder A. If A had also died, the Court would hold that the defendant could not be convicted of the murder of B, but only of battery, or*504 perhaps manslaughter. What happens, then, if the defendant is convicted of the murder of B while A is still alive, but A dies of wounds received in the assault within a year and a day of the shooting?
Id. at 726,
The Court revisited the Ford disagreement in Poe v. State,
In Poe, the primary issue was whether the trial court erred “in ruling that the doctrine of transferred intent applies where a defendant intends to kill A, shoots and wounds A, but kills B, an unintended victim, by that same shot.”
The Court unanimously agreed with the result in Poe, but three judges again joined a concurring opinion to voice concerns over the future use of “transferred intent.” Judge Raker, the author of the concurring opinion, took issue with the majority’s “overly broad” assertion that “the doctrine of transferred intent does not apply to attempted murder when there is no death.” Id. at 535,
Judge Raker also presented various policy considerations for the application of the doctrine without regard to whether the unintended victim was killed or merely injured, to include that extended application of “transferred intent” would “ensure proportionate punishment of criminal offenses” and prevent increased difficulty in prosecuting criminals for the harm inflicted on bystanders. Id. at 539,
[A] defendant, A, participates in a drive-by shooting on a public street, intending to kill B, but instead non-fatally injuring B, and non-fatally injuring bystander C. Although A may be convicted of attempted murder of B, it will be difficult to convict A of the attempted murder of C, or of assault with intent to kill C. Without transferred intent,*506 the State will be required to offer separate proof of intent for each victim, e.g., by demonstrating “depraved heart.” While firing a “hail of bullets” at a person on a busy street may be prima facie evidence of a depraved heart, numerous factual situations may arise where it will be difficult to demonstrate recklessness.
Id. at 539-40,
The question now before us is almost identical to the one debated in Wilson, Ford, and Poe: whether “transferred intent” may apply in an attempted murder case, where a bystander has received a non-fatal injury. Citing Ford, the Court of Special Appeals held that the transferred-intent doctrine “[could] not be used to sustain [Harrison’s] conviction” because it did not apply in cases charging attempted murder of an unintended victim. Harrison,
A number of other jurisdictions have rejected the doctrine of transferred intent in relation to the crime of attempted murder of an unintended victim. See, e.g., Ramsey v. State,
The Supreme Court of California extensively discussed the issue of “transferred intent” for attempt crimes in People v. Bland,
Drawing from this Court’s discussion in Ford, the California court examined the potential pitfalls of applying the doctrine to “inchoate crimes,” including the fact that attempted murder does not require a physical injury to the victim. Id. at 1117— 18 (citing Ford,
The world contains many people a murderous assailant does not intend to kill. Obviously, intent to kill one person cannot transfer to the entire world. But how can a jury rationally decide which of many persons the defendant did not intend to kill were attempted murder victims on a transferred intent theory? To how many unintended persons can an intent to kill be transferred? Just as acts with implied malice constitute murder of anyone actually killed, but not attempted murder of others, so, too, acts with the intent to kill one person constitute murder of anyone actually killed, but not attempted murder of others.
The most compelling reason why we reject the doctrine of transferred intent as applied to crimes of attempt is that it is not necessary to make “a whole crime out of two halves by joining the intent as to one victim with the harm caused to another victim,” the purpose for which it was conceived. Ford,
Further, although not in this case, a defendant may be convicted of a crime against an unintended victim with the use of “concurrent intent” and without the use of “transferred intent.” Such a defendant also may be convicted of criminal battery, and as Judge Moylan suggested in Harvey v. State,
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT.
Notes
. When Harrison was charged, Article 27 contained the provisions related to the crimes of which he was accused. Those provisions have since been recodified under the Criminal Law Article.
. Article 27, Section 411A(a) provided: "A person who attempts to commit murder in the second degree is guilty of a felony and on conviction is subject to imprisonment for not more than 30 years.” This provision currently is codified under Maryland Code, § 2-206 of the Criminal Law Article (2002).
. Article 27, Section 12A-1 stated:
(a) Serious physical injury; use of a firearm. — (1) A person may not intentionally cause or attempt to cause serious physical injury to another.
(2) A person may not commit an assault with a firearm, including:
(i) A handgun, antique firearm, rifle, shotgun, short-barreled shotgun, or short-barreled rifle, as those terms are defined in § 36F of this article;
(ii) An assault pistol, as defined in § 36H-1 of this article;
(iii) A regulated firearm, as defined in § 441 of this article; and
(iv) A machine gun, as defined in § 372 of this article.
(b) Penalty. — A person who violates this section is guilty of the felony of assault in the first degree and on conviction is subject to imprisonment for not more than 25 years.
This provision currently is codified under Maryland Code, § 3-202 of the Criminal Law Article (2002, 2003 Supp.).
. Article 27, Section 12A provided:
(a) General prohibition. — A person may not commit an assault.
(b) Violation; penalties. — A person who violates this section is guilty of the misdemeanor of assault in the second degree and on conviction is subject to a fine of not more than $2500 or imprisonment for not more than 10 years or both.
This provision currently is codified under Maryland Code, § 3-203 of the Criminal Law Article (2002).
. Article 27, Section 12A-2 provided in pertinent part:
(a) Creation of substantial risk of death or serious physical injury; penalties.
*482 (1) Any person who recklessly engages in conduct that creates a substantial risk of death or serious physical injury to another person is guilty of the misdemeanor of reckless endangerment and on conviction is subject to a fine of not more than $5,000 or imprisonment for not more than 5 years or both----
(b) Applicable conduct.- — (1) Subsection (a)(1) of this section does not apply to any conduct involving:
(i) The use of a motor vehicle as defined in § 11-135 of the Transportation Article; or
(ii) The manufacture, production, or sale of any product or commodity—
(c) More than one person endangered. — If more than one person is endangered by the conduct of the defendant, a separate charge may be brought for each person endangered.
The provisions prohibiting the crime of "reckless endangerment" presently exist under Maryland Code, § 3-204 of the Criminal Law Article (2002, 2003 Supp.).
. Article 27, Section 36B(d) provided:
Any person who shall use a handgun or an antique firearm capable of being concealed on the person in the commission of any felony or any crime of violence as defined in § 441 of this article, whether operable or inoperable at the time of the offense, shall be guilty of a separate misdemeanor and on conviction thereof shall, in addition to any other sentence imposed by virtue of commission of said felony or misdemeanor.
The current provisions that prohibit the use of a firearm in the commission of a felony or crime of violence reside in Maryland Code, § 4-204 of the Criminal Law Article (2002, 2003 Supp.).
. Article 27, Section 36B(b) provided in relevant part:
Any person who shall wear, carry, or transport any handgun, whether concealed or open, upon or about his person, and any person who shall wear, carry or knowingly transport any handgun, whether concealed or open, in any vehicle traveling upon the public roads or parking lots generally used by the public in this State shall be guilty of a misdemeanor ....
Maryland Code, § 4-203 of the Criminal Law Article (2002, 2003 Supp.) sets forth the current statutory prohibitions against wearing, carrying, or transporting a handgun.
. Article 27, Section 445(d)(1 )(iii) provided: “A person may not possess a regulated firearm if the person: (1) Has been convicted of: ... (iii) Any violation classified as a misdemeanor in this State that carries a statutory penalty of more than 2 years....” The possession of regulated firearms is now governed by Maryland Code, § 5-133 of the Public Safety Article (2003).
. Article 27, Section 445(d)(l)(i) provided: “A person may not possess a regulated firearm if the person: (1) Has been convicted of: ... (i) A crime of violence.... ” The possession of regulated firearms is now governed by Maryland Code, § 5-133 of the Public Safety Article (2003).
Article 27, Section 449(e) stated:
A person who was previously convicted of a crime of violence as defined in § 441(e) of this article or convicted of a violation of § 286 or § 286A of this article, and who is in illegal possession of a firearm as defined in § 445(d)(l)(i) and (ii) of this article, is guilty of a felony and upon conviction shall be imprisoned for not less than 5 years, no part of which may be suspended and the person may not be eligible for parole. Each violation shall be considered a separate offense.
This penalty is now provided for by Maryland Code, § 5-133 of the Public Safety Article (2003).
. The court also held that the trial court correctly denied Harrison’s motion to suppress statements made to police because those statements had not been induced improperly. Harrison,
. Harrison phrased his two questions as follows:
1. Is an intent to kill the named victim a factual and legal prerequisite to a conviction of attempted murder even where the theoiy is one of "concurrent” intent?
2. May a conviction for attempted second-degree murder of an unintended victim be sustained on the theory that stipulated facts could support a finding of concurrent intent to kill the intended and unintended victims where the Statement of Facts in support of the conviction states that the defendant shot the victim accidentally, while aiming at another?
. The question of evidentiary sufficiency is properly before us. After the prosecutor narrated the statement of agreed facts, Harrison made a generalized motion for a judgment of acquittal, which was denied. Had his case been tried before a jury, in order to preserve issues of evidentiary sufficiency on appeal, Harrison would have had to make his motion by "stat[ing] with particularity all reasons why the motion should be granted.” See Maryland Rule 4-324(a); Tull v. State,
In Harrison's case, however, the trial judge acted as the trier of fact; therefore, no particularized motion was necessary. Maryland Rule 8-131(c) requires that, “[wjhen an action has been tried without a jury, the appellate court will review the case on both the law and the evidence.” Maryland Rule 8-131(c). Thus, where a defendant has been convicted in a nonjury trial, preserving the issue of evidentiary sufficiency does not depend on a motion for a judgment of acquittal. See Nicholson v. State,
. Harrison was not charged with the crime of attempted murder against Valentine, Harrison's primary target, and the State has not argued that Harrison's conviction should be sustained on that basis. Accordingly, we need not discuss the efficacy of the evidence in this case with regard to a conviction of attempted second-degree murder against Valentine.
. The Court stated that "concurrent intent” differs from a "depraved heart” scenario because, under the doctrine of "concurrent intent,” the specific intent to kill can be inferred from the circumstances, whereas a defendant with a “depraved heart” has no specific intent to kill. Ford,
. Since the decision in Ford, the Court of Special Appeals has applied the theoiy of "concurrent intent" in at least one reported opinion, Haney v. State,
Dissenting Opinion
I would affirm the judgment of conviction based on the
I.
This is a “bad aim” case, where the intended victim was not harmed, and the unintended victim was injured, but did not die. Petitioner’s intent to kill the intended victim should be “transferred” to the unintended victim, thereby holding petitioner accountable for the crime he committed against Mr. Cook, the unintended victim.
Petitioner was convicted of attempted second degree murder of James Cook, and a handgun violation. It is not disputed that petitioner fired six shots from his .38 caliber handgun at a person known as Valentine, missed him and instead struck a bystander, James Cook. Attempted second degree murder requires that petitioner had a specific intent to kill. Although petitioner did not in fact have a specific intent to kill Cook, the State did prove beyond a reasonable doubt that he had a specific intent to kill Valentine. I believe that intent is “transferred” to Cook, and the evidence was sufficient to support the verdict under the doctrine of transferred intent.
The majority employs the lack of necessity argument in rejecting the doctrine of transferred intent in the context of an
The majority’s reasoning is incomplete and flawed. First, the majority adds an artificial requirement of death of the unintended victim to the transferred intent doctrine.
II.
Transferred intent is a common law doctrine which has long been a part of the law in Maryland. See State v. Wilson,
After today’s decision, the doctrine of transferred intent will still be a part of Maryland law, albeit more limited in its application. The question arises in this case as to whether transferred intent is applicable when C does not die but is injured. There is an ongoing debate around the country, within the courts and commentators, as to the applicability of the doctrine of transferred intent. Commentators and courts have described the doctrine as “defective,” a “curious survival of the antique law,” and one having no proper place in the criminal law. See Anthony M. Dillof, Transferred Intent: An Inquiry into the Nature of Criminal Culpability, 1 Buff.Crim. L.Rev. 501, 502-03 (1998). Despite the views of detractors, a “roughly equal number of commentators ... have approved of the doctrine and its result.” Id. In my view, the doctrine of transferred intent should apply to the crime of attempted murder, for example, when a person, A intentionally shoots a gun at B, intending to kill B, and because of bad aim or luck, hits but does not kill, or even misses, B, and strikes and injures C. See Poe,
This Court addressed the question of whether transferred intent applies to attempted murder in State v. Wilson, and, noting specifically the split in jurisdictions around the country as to the applicability of transferred intent, we “align[ed] ourselves with the numerous jurisdictions which have applied
Subsequent to Wilson, the doctrine of transferred intent took a sharp and sudden turn, beginning with the dicta in Ford v. State,
The doctrine of transferred intent in Maryland was set out, and judicially embraced, in Gladden. The Court looked at the
“Sir William Blackstone, in 4 Commentaries on the Laws of England (Cooley, 3d ed., 1884), at 201 stated the common law rule to be:
‘Thus if one shoots at A and misses him, but Mils B, this is murder; because of the previous felonious intent, which the law transfers from one to the other. The same is the case where one lays poison for A; and B, against whom the prisoner had no malicious intent, takes it, and it kills him; this is likewise murder.’ ”
“In Clark and Marshall, A Treatise on the Law of Crimes § 10.06 (6th ed., 1958), at 578, the rule is stated as follows:
‘Whenever an accountable man kills another intentionally, he is guilty of murder with express malice unless the Mlling is justifiable or excusable, or unless there are such circumstances of provocation as will reduce the homicide to manslaughter. This principle is applied when a man kills one person when he intended to kill another. For example, if a man shoots at one person with intent to kill him, and unintentionally kills another, or sets poison for one person and another drinks it and dies, it is murder with express malice of the person killed, though he is a friend.’
Although admittedly the doctrine is of ‘ancient vintage,’ we do not agree with the petitioner’s contention that under modern statutory classifications it is a ‘curious survival of the antique law’ requiring its rejection. It has lost none of its patina by its application over the centuries down unto modern times; its viability is recognized by its current acceptance and application.”
Id. at 392,
State v. Wilson followed, and applied Gladden. The Wilson Court determined that the doctrine of transferred intent was
Next came Ford, the basis of the majority’s holding. In my view, the Ford opinion, as it relates to transferred intent, is no longer, if it ever was, of persuasive value. In that case, a bare majority of the Court, in pure dicta, and in what the Court conceded was a “somewhat collateral issue,” Ford v. State,
Notably, Judge Chasanow, writing for the majority, did not limit the gratuitous discussion to the applicability of transferred intent to completed homicides, but went on to state that transferred intent did not apply where the crime against the intended victim was “complete.” The Court stated as follows:
“The underlying rationale for the doctrine also suggests that transferred intent should apply only when, without the doctrine, the defendant could not be convicted of the crime at issue because the mental and physical elements do not concur as to either the intended or the actual victim.”
Id. at 711,
Three judges of the Court disagreed with this reasoning. Judge McAuliffe, joined by Judges Rodowsky and Karwaeki, concurred in the result, yet declined to join the court’s dicta pertaining to transferred intent. In particular, Judge McAuliffe, characterizing the Court’s limitation of the doctrine as unnecessary and ill-advised, rejected the majority’s statement that the doctrine of transferred intent could not be applied,
Under the Ford rationale, where the intended and unintended victims died, the doctrine of transferred intent is not applicable because the intended crime was completed. Ford relied heavily on People v. Birreuta,
The next significant case in Maryland to address transferred intent was Poe v. State. Again, in pure dicta, rejecting transferred intent to attempted murder, Judge Chasanow, writing for the majority, explained, and without admitting as much, backpedaled from the Ford rationale that transferred intent would apply only to cases where the intended crime was not completed. Instead, calling Poe “a classic case of transferred intent,”
In a student note, Poe v. State: The Court of Appeals of Maryland Limits the Applicability of the Doctrine of Trans
I reiterate my predication in Poe:
“If the majority’s opinion is interpreted to preclude any use of the doctrine of transferred intent in attempted murder prosecutions, the effect of the decision will be to substantially increase the difficulty of prosecuting criminals for the harm inflicted on innocent bystanders. ... Without transferred intent, the State will be required to offer separate proof of intent for each victim, e.g., by demonstrating ‘depraved heart [or concurrent intent].’ While firing a ‘hail of bullets’ at a person on a busy street may be prima facie evidence of a depraved heart, numerous factual situations may arise where it will be difficult to demonstrate recklessness.”
. The theory underlying the doctrine of transferred intent was well stated in the case of People v. Scott,
"The legal fiction of transferring a defendant’s intent helps illustrate why, as a theoretical matter, a defendant can be convicted of murder when she did not intend to kill the person actually killed. The transferred intent doctrine does not, however, denote an actual ‘transfer’ of ‘intent’ from the intended victim to the unintended victim. Rather, as applied here, it connotes a policy — that a defendant who shoots at an intended victim with intent to kill but misses and hits a bystander instead should be subject to the same criminal liability that would have been imposed had he hit his intended mark. It is the policy underlying the doctrine, rather than its literal meaning, that compels the conclusion that a transferred intent instruction was properly given in this case.”
Id. at 292 (citations omitted).
. Today the Court criticizes the use of transferred intent in attempted murder by stating that the charge does not require the victim to suffer physical injury, and thus, the doctrine could result in an endless number of attempted murder charges against a defendant. See maj. op. at 507-08. This is not a necessary conclusion. As I have previously noted, "the correct interpretation is that transferred intent should not apply to attempted murder if no one is injured.” Poe v. State,
. The doctrine of transferred intent is not limited to killings. See e.g., State v. Thomas,
. Almost every jurisdiction has rejected the Ford v. State,
. The doctrine of transferred intent is one form of imputed liability. Professor Paul H. Robinson, in his law review article, Imputed Criminal Liability, 93 Yale L.J. 609 (1984), explains as follows:
"The definition of an offense describes the elements normally required to hold an actor liable for the offense; it is that offense's paradigm for liability. Despite the absence of required elements of the definition, an actor may be held liable for the offense if a doctrine serves to impute the absent elements. Such a doctrine does not alter the definition of an offense but rather provides an alternative means of establishing the required elements, or at least an alternative means of treating the defendant as if the required elements were satisfied. For the most part, the principles underlying imputation reflect concerns beyond those of the offense at hand. A single doctrine of imputation may apply to a range of offenses or to all offenses. As a group, instances of imputed liability play as significant a role in criminal law theory as do general defenses.”
Id. at 675.