*1 A.2d 984 Maurice Edward FORD Maryland. STATE of Term, Sept. No. 1992. Appeals of Maryland.
Court June 1993. *6 L.
John Asst. Defender E. Kopolow, (Stephen Public Harris, Defender, brief), Baltimore, Public on peti- both for tioner. (J. Curran,
Thomas K. Clancy, Atty. Joseph Asst. Gen. Jr., Gen., brief), Atty. Baltimore, respondent. both MURPHY, C.J.,
Argued ELDRIDGE, before McAULIFFE, RODOWSKY, CHASANOW, KARWACKI BELL, and ROBERT M. JJ.
CHASANOW, Judge. morning 27, 1990, In the early May petitioner, hours of *7 Ford, Maurice Edward three youths and other stood on or next to the Capital Beltway and hurled large landscaping rocks on at vehicles the travelling Beltway. A number of people the vehicles injured significant damage were and was done to vehicles. Ford many apprehended on June 2, 1990, and ninety count indictment ultimately charged him with assault with intent (eight counts), to murder (one count), assault with intent to maim assault with intent counts), to disable (twenty-eight (twen- assault and battery ty-nine counts), of (twen- malicious destruction property A ty-four counts). George’s Prince County Circuit Court jury guilty found Ford of one count of assault to with intent maim, disable, eleven counts of assault with intent to seven- teen counts of assault, assault and of battery, six counts fourteen counts of malicious destruction of property which more, found to have of value and three $300 counts malicious destruction property of value less court, Missouri, J., than The circuit imposed $300. sen- totalling tences thirty-nine years prison with additional suspended terms probation favor of five years to com- upon mence Ford’s release. appealed
Ford to the Court of Special Appeals, which resentencing reversed and remanded for on two of the malicious destruction counts less property worth than Ford
$300, all of the convictions.1 but otherwise affirmed (1992). Upon 603 A.2d Md.App. his Court, granted to this we certiorari to consider petition find relating remaining to his convictions. We no issues and affirm Ford’s convictions. error
I. Facts set forth of the adopt opinion We the facts as Court Special Appeals: morning “In the hours between 2:00 and 3:00 a.m. early Petite, Burgess, Donnell and Ford May John driving rocks at of vehicles south threw a number one Beltway at least vehicle which was travel- Capital that Beltway. north on the Most the vehicles were ing pulled hit over to the side road. Witnesses esti- from 15 to 40 anywhere mated that vehicles were struck Jones’s the first stopped. and then Patricia car was contin- throwing and Jones estimated rock stop after stopped. from 30 45 minutes she ued being one of the rock throwers. He “Ford confessed others rocks from gathered that he and the admitted and then the rocks bridge brought underneath other found on the side of the road. Beltway; rocks were rocks, throwing youths retrieved some of After they again. from the so could throw them Beltway them *8 struck. His Ford admitted that about cars were drunk; for was that he he his actions was explanation trying that he and his cohorts maintained were hurt anyone. incident, throwing large
“After the rock 15 to 20 rocks and observed in the southbound lanes five were had on the side. rocks been used rocks northbound judge two apparently treated counts on which had 1. The trial guilty property $300 destruction of under as Ford of malicious found property guilty malicious had found Ford destruction if it Appeals Special more. The remanded resentenc- Court $300 ing on these counts. landscape underpass the Beltway Livingston Road.
“Several witnesses stated rock throwers worked concert. car Byron Jeffrey’s was hit by two throwers, rocks. After rock passing the he observed figures his rearview mirror three who continued to throw rocks. waving three men Gregory Roddy observed their arms; he rock, slowed down and one threw a hitting his windshield. Blease Garner three walking observed men He south. observed one man rock throw a at another car. As approached, Garner’s car another turned around and a threw rock at Garner’s car. stopped, Garner out of got car, his gave and chase. The men three “started laugh- ing” ran into the woods.
“Others man. only saw one For example, Robert Till- ery driving south when he a saw black male enter from highway the median strip. Believing that the attempting road, man was to cross the Tillery changed lanes. related Tillery that the man took steps two then threw rock through his windshield. Jeanette George observed flagging someone her As down. she slowed, the man rock threw a through windshield of her car.
“The episode resulted in many personal injuries and extensive property damage. The most injured severely Morris, person was Destiny whose skull was fractured she when was struck in the head by a rock. The surgeon shortly who tended to Morris after the incident testified that Morris would died if have she had not received immediate medical attention. As a injuries, result her Morris is expected function permanently on a third or grade fourth level. Morris was riding James Palmer’s when stepped truck three men onto side of the highway and each threw rock. All three rocks went through the windshield. One struck Morris in the head. Miller, truck, John passenger another in Palmer’s re- ceived scratches from breaking glass. The fourth
passenger, Ekberg, scrapes.” Leanne received “little $4,000. damages totaling Palmer’s truck suffered trial, “At the witnesses testified to the results of the throwing rock incident. The windshield of Till- Robert broken, causing damages. car was Elmer ery’s $500 [in] car, Scott, Gloria also a Moody’s by driven received bro- Kelley Moody, ken who was a in passenger windshield. car, jaw suffered a and lost the in her hearing broken right ear. car a rock
“Byron Jeffrey’s by window was broken her in passenger Thompson, breaking hit LaShonda arm $1,300. Damage three to car totaled places. Jeffrey’s rock, a Jeffrey by Baker’s van was dented thrown caus- in ing damages. windshield Julee Robinson’s $680 rock, in resulting damages amounting car was hit aby $400. car, George driving Rodney Marbury’s
“Jeanette was damages which sustained a broken windshield and total- $1,200 $1,400. from Glass entered ing George’s eye her hit rock and lost Marbury by and cut hand. a He in his right eye consciousness. was blinded suffered a broken wrist. her Quintana
“Nora received scratches on face and explod- hands when the windshield David Powell’s car injured. ed. Powell’s shoulder was Powell was unable to damage the total amount of to his car as the provide paid by company, the insurance with the repairs were exception Carolyn Bryant of a deductible. Smith $500 her and face and in her glass received cuts on hands hit a of her car. Damages mouth when a rock window $1,000. Humphrey’s vehicle totaled over Esther Bryant’s car, $1,100 in hit a damages, by sustained was also which car, Bazilio, passenger Humphrey’s Michelle rock. glass. her cut by flying had hand car, Harrison’s driven his “The windshield Steve Amanda, car totaled Damages was broken. sister rear car was hit the left Brannigan’s Robert $125. car also Tonia Wilkins’s received passenger window.
693 side, causing the left rear total large dent on dam- $338 was struck on the of ages. top Blease Garner’s car the roof, shatter, to in causing resulting windshield $835 of car struck in damages. Gregory Roddy’s was windshield, $3,200 causing damages. in Robert Senkel’s rock, in resulting van was hit the windshield a in by $1,600. car, damages Bailey’s Frank his by of driven son Reginald, Reginald’s had broken windshield. forehead glass was into his mouth. The left cut and blew rear struck, causing wheel of Kim Buchant’s was in car $730 damages. door, Torres’s was hit on driver’s Jose car (Footnote in causing damages.” and $400 between $200 omitted).
Ford, 677-80, 90 603 Md.App. at A.2d at 885-86.
Ford four principle makes assertions of error regarding his convictions. We address each turn.
II. Malicious Destruction Property of For damage rock-throwing his to caused various vehicles, charged Ford counts of twenty-four “malicious destruction of an automobile” under Maryland (1957, 27, Repl.Vol.), Code 1992 Article 111.2 Section 111 § divides the crime malicious destruction of into property degrees two At misdemeanor. the time Ford was charged, provided the statute that the malicious destruction valued at less than property penalty up $300 carried both; to a or 60 days imprisonment fine or $500 malicious destruction of at property greater valued or carried a $300 $2,500 to a or penalty up imprisonment fine three years or both.3 Ford’s indictment not allege did value specifically on any of the twenty-four counts. noted,
2. Unless otherwise
all
to
references
section numbers herein are
(1957,
Maryland
Repl.Vol.),
to
Code
Article 27.
only
clarify
3. Section 111 was amended effective October
to
damage,
that "value" refers
the amount of the
total
not the
value of
damaged property.
Chapter
See
535 of the Acts of 1992. As
amended,
provides:
§
that,
failing
specifically allege
value
Ford contends
the lesser
charged only
the indictment
greater,
or
$300
Therefore, he contends that even
of the crime.
degree
crime
greater
of the
he did not
to submission
object
though
counts
guilty
found
of fourteen
he could
jury,
Ford relies on dictum
Spratt
crime.
greater
of that
State, 315 Md.
(1989), in
A.2d 667
which we said
of-
pursue
the more serious
“if the
wishes
State
fense,
charge
prove
value
specifically
it must
Id.
556 A.2d
greater].”
property,
destroyed
[$300
Spratt
This was dictum
the defen-
because
at 669-70.
*11
offense;
dant there was
greater
charged with
properly
Spratt
in-
failure to
rather,
was the court’s
the issue
find that the defen-
specifically
that it must
struct
to
of
or more
value
convict
property
destroyed
$300
dant
Spratt correctly
Nonetheless,
we think
charge.
on
charging
to
as well.
respect
the law
stated
with
of the
found in our construction
An
can be
apt analogy
342(f)
statute,
divides
theft
342. Section
consolidated
§
and the lesser
theft of
or more
felony
of
$300
theft into
Hagans
theft under
misdemeanor of
$300.
included
(1989),
429, 441,
A.2d
798-99
we
Md.
559
an
property
of the stolen
the value
considered whether
or
a factor
to be
simply
offenses
of the theft
element
held that valuation
We
sentencing purposes.
considered
in the
must set forth
that the State
element of theft
is an
Any person
"(a)
who shall
Violation constitutes misdemeanor. —
any
destroy,
injure,
real
maliciously
deface or molest
wilfully and
guilty of a misde-
property
another shall be deemed
personal
of
or
meanor.
damage
is less than
(b)
$300.
Penalty where amount
—If
defaced,
injured,
destroyed,
or mo-
damage
property
amount of
$300,
person who violates this
than
has a value of less
lested
section,
conviction,
exceeding
subject
or
$500
to a fíne not
is
on
exceeding
days or both.
imprisonment not
damage
greater
is
than
Penalty
amount
(c)
$300.
where
—If
defaced,
injured,
destroyed,
or mo-
damage
property
amount
more,
this
person who violates
or
$300
value of
lested has a
$2,500
conviction,
exceeding
section,
or
subject
a fine not
exceeding
years
or both.”
imprisonment not
(1957,
Supp.),
111.
Repl.Vol.,
§
Art.
Md.Code
charging
placed great emphasis
document We
on valua-
part
know,
tion in
should
long
because
before the
“[o]ne
sentence,
imposition
charged
whether he has been
with a
Id.,
or
felony
a misdemeanor.”
First, agree we with Ford that the indictment did not properly charge malicious destruction in the amount $300 or greater. As we have said: that, clear,
4. We also note as the 1992 revision to 111 makes § see 3, destruction, supra n. the is "value” the amount of the not the total Thus, property. value of the the value of an is entire automobile unless, course, charge irrelevant the the entire vehicle is de- stroyed. “A primary purpose by charging to be fulfilled a docu- ment under is to the Maryland satisfy law constitutional of Article 21 of the Declaration of requirement Rights charged that each with a crime informed of the person be him, first, accusation the crime against by characterizing and, second, so it as to inform the describing accused he specific charged.” conduct with which is State, 323, 336, 1062, (1985) 303 Md. 493 A.2d Jones v. omitted). (citations It is not too require burdensome the crime for properly charge the State which it seeks to the defendant. As we noted in 315 Md. at Spratt, convict 683, 668, Assembly 556 A.2d at the General intended that the crime of malicious destruction of treated as property be single misdemeanor offense with two different classifica the intends to seek sentence tions. Where State for the offense, it should include a value of greater greater $300 in the indictment.
Acknowledging charging a defect document issue, does not resolve the must however. We now ask charge type whether failure value of defect appeal having that Ford can raise on not raised it at trial. 4-252(a)(2) Md. Rule that a raise general, requires party charging related to defects document any objections trial, or else An to this objections. exception waive rule document general charging is where fails “to show charge in the court or to an offense.” Md. Rule jurisdiction 4-252(c). A may any raise such defects at time. Id. party Thus, the issue here is whether the defect in Ford’s charg in nature. ing jurisdictional Previously, document was we said that not all of an offense’s essential elements have charging need set forth in the document. Campbell (1992). Md. 601 A.2d A alleges greater prove then fails it at 5. If the State amount and trial, the factfinder can still convict of the offense of malicious *13 $300, property amounting of to less than which is a lesser- destruction greater the crime. included offense of sufficiently “words that character document that contains the satisfy requirement.” crime jurisdictional ize the will 787, 798, 490 A.2d Md. Williams allege Ford’s document did not (1985). Although charging greater, sufficiently element of or it the value $800 malicious destruction of characterized the misdemeanor of the and to jurisdiction the court property establish at Campbell, As we 325 Md. charge an offense. held 678-74, charging from 501-03, at omission the 601 A.2d of an which serves to aid defendant element document possible juris not a determining penalty maximum was the if is made defect, objection could be no dictional waived trial. indict- Campbell sufficiency issue in was the the At to violate charging conspiracy ment the defendant with in- dangerous controlled substances law. Maryland’s allege object conspiracy, posses- did the of the dictment not claimed Campbell intent to distribute cocaine. sion with he for to violate conspiracy could be sentenced that before law, he must dangerous substance Maryland’s controlled enough him of inform charged specificity have been and how identity dangerous the the controlled substance Otherwise, alleged, the indict- Campbell it to be used. was failing give for ment would be defective jurisdictkmally of the charge permit notice of his determination him the dependent punishment which was applicable penalty, con- See § (punishment offense. underlying for the punishment provid- “shall not exceed maximum spiracy commit”). We conspired ed for offense [defendant] might while indictment well have been defec- noted that tive, because the indict- jurisdictional the defect crime conspiracy. characterized the ment sufficiently 501, 673. had Campbell, Campbell 325 Md. at A.2d at defective, count as conspiracy moved to dismiss never this, From as particulars. had he a bill requested nor indictment, we could held it as from the counts well him of adequately inferred indictment informed that the Moreover, conspiracy charges judge’s he faced. *14 698
instruction properly specific included the of the object con- spiracy, objected and he never to these instructions. Based facts, Campbell’s these we affirmed conviction. case,
In the instant
the jury
both
instructions and the
verdict sheet
included a
specifically
greater
value
than $300.
If the defendant
that the charging
believed
document al-
$300,
only
leged
a value of less than
he
should have
objected
4-325(e).
to the
instructions. Md. Rule
jury
Ford
document,
never contended at trial that the charging
not
value,
stating
charged only
had
malicious destruction under
ample
There was
to raise this
opportunity
objection
$300.
the judge gave
when
instructions on
jury
degrees of
destruction,
malicious
when the verdict sheet was prepared
submission,
or at
time
any
jury
before
retired to
consider the evidence. Ford never raised any objection on
this
acquiesced
issue below and
in the instructions and
objecting
verdict sheet.
not
By
when
circuit court
construed the indictment
to cover
degrees
both
by failing
misdemeanor and
after
object
the court in-
structed
jury,
Ford waived the issue and did
pre-
not
v.
it for appellate
Johnson
serve
review.
310
Md.
681, 684-89,
675,
(1987);
A.2d
Campbell,
531
676-79
325
501-03,
Md. at
III. Assault and Battery Ford next contends that his convictions for assault and Palmer, Bennett, battery James Norma Tillery, Robert and Bryant Nathan should be reversed. He claims these four convictions cannot stand because there no was evi- support dence the record to the four finding alleged anything victims saw or felt touch their bodies or touching, clothes. Without such an offensive Ford con- tends, battery. could find a Even were we that the record does not agree support finding of battery counts, on these four note charged we that Ford was with battery, but with assault and merely each instance not battery, and we find there sufficient sup- evidence
699 chal- on each conviction for assault at least a port lenged counts. closely related but are two battery
Assault Duckett, 306 Md. 510, v. 503, distinct crimes. See State in our (“there single is no crime State (1986) A.2d State, 14 Md.App. Woods battery'''); called 'assault (1972). 627, 631-32, correctly As Ford 288 A.2d a harmful or offensive touch indicates, a includes battery Duckett, ‘any (“ ing. See Md. A.2d at 256 *15 no another, against person used unlawful force ” quoting Kel slight matter how battery,' constitute a will State, 223 Md. 473, 85, (1959) 80, lum v. A.2d 476 162 nature, by its original)). very in An assault (emphasis touching Maryland at all. however, any without occurs “ ‘(1) an to com attempt forms of assault: recognizes two of another in (2) placing mit a an intentional battery ” Snow battery.’ receiving an immediate apprehension State, 612, 617, 1056, (1991) den v. A.2d 1059 Md. 583 321 State, 962, v. 447, 457, (quoting Dixon 488 A.2d 966 302 Md. Criminal Law (2d Perkins, 114 ed. (1985), R. quoting 1969)).6 crimes, are separate
If and two battery assault afoul of might and seem run charge battery” of “assault charging an indictment commis general rule that more offenses in the same count of two or substantive sion State, See, v. e.g., Kirsner duplicitous. is as objectionable State, v. Jackson 538, 1, 5, (1944); 176 36 A.2d 540 183 Md. 401, 282, (1939). This law rule 399, 5 A.2d 283 common Md. Procedure, pro in Rules implicit which Maryland charged in may or more offenses ... be vide “[t]wo document____” Md. separate counts charging of the same added). 4-203(a) 4-203(a) Rule has been (emphasis Rule contexts, meaning. has still a third the word “assault" 6. some crime, statutorily encompass part assault can also When of a defined battery. with intent to murder or completed The crimes of assault maim, include, example, may do not but assault with intent battery. require, actual 700
construed by
Special Appeals
Court
as mandatory,
requiring that two offenses may
charged
only
sepa
State,
61, 65,
rate counts.
v.
Ayre
Md.App.
318 A.2d
828,
(1974) (Orth, C.J.).
The crimes of assault and
however,
battery,
generally
constitute a
recognized common
exception
law
to the rule against duplicitous charges. They
charged
are often
one
Snowden,
count.
supra;
Ireland
State,
328,
(1987);
v.
310 Md.
Because crimes, assault and are battery distinct *16 are they charged when the same count a defendant has option of requesting separate determination of assault and can battery, although only there one sentencing for battery the assault and count. possible One verdict is of guilty battery. intentional, As as the long battery was conviction battery necessarily assault, includes an be cause an of attempted-battery type assault is in the included completed battery. possible Another of verdict guilty assault Upon failing alone. to find the or harmful offensive for a touching necessary battery, the facts may nonetheless find, support, may and factfinder either of type assault: (1) attempt batter, (2) an to or the creation of an apprehen Thus, sion an imminent “on an battery. indictment and one battery may assault be convicted of assault only.” Marshall, A Clark & Treatise The On Law Crimes 10.19, (7th 1967) (citing Hawkins, at 733 ed. Pleas § Gerald, (appellant 2); supra see also c. Crown § and convicted charged battery only and with assault assault). case, charged twenty-nine Ford was with
In this the four counts battery. For counts of assault and Palmer, issue, the were James Ford takes victims which Bennett, and and Bryant, Tillery, Norma Nathan Robert convictions. support to assault there was sufficient evidence case, a rock into the victims’ In each the assailants threw vehicle, and Nor shattering windshield. James Palmer as travelling Destiny in the same ma Bennett were vehicle Morris, severely the head rock was struck who Palmer were cov vehicle injured. occupants Other wife, riding next to glass. Bryant’s Nathan ered with glass when the rock flying covered with shat Bryant, was The that shattered wind tered the windshield. rock right just car entered to the Tillery’s shield of Robert projectile, as he swerved to avoid the steering wheel This con barely supports evidence assault escaped injury. to the four victims. The could have easily victions as attempted found that the assailants commit batteries or at least upon occupants, they the vehicles’ intended apprehension battery. to create the an imminent charged assault, and indictment Ford with so we properly affirm these convictions.
IV. Assault With Intent Disable felony any person, it is a to “assault or Under beat § maim, disfigure such person____”7 with intent or disable charged, provided, At Ford in full: § 7. the time Article etc., shooting, stabbing, assaulting, § Unlawful with intent 386. maim, disfigure prevent apprehension. or disable or to lawful any person unlawfully any person, shoot at "If shall shall *17 any any unlawfully maliciously attempt discharge manner any person, unlawfully or kind of loaded arms at ciously shall and mali- stab, any any person, cut or assault or or wound shall beat maim, person, person, disfigure or disable such or intent prevent any apprehension with intent to the lawful or detainer of 702 found jury that Ford assaulted seven drivers and four
passengers with the intent to disable them.8 Ford argues that there was insufficient evidence to support these convic- tions.
A.
A proper
under
requires
386
spe
conviction
§
cific
maim,
intent to permanently
disfigure, or
disable
State,
victim.
Hammond v.
451,
322 Md.
457-59, 588 A.2d
345,
(1991).
347-48
A specific intent
requires
crime
that the
“
defendant, upon
act,
doing the
have
‘some intent other
than to do the actus reus
thereof...." McBurney
State,
21, 29,
280 Md.
129,
371 A.2d
(1977)
133
(quoting R.
Perkins,
Criminal
Law
(2d
762
1969)).
ed.
The defendant
must have “the additional deliberate and conscious purpose
design
or
accomplishing very specific and more remote
State,
Shell v.
result.”
46, 63,
307 Md.
512
358,
A.2d
(1986) (quoting
Smith v.
277, 305,
Md.App.
426, 443,
denied,
cert.
A.2d
(1979)).
We that in finding specific intent “the jury permitted to such draw inferences of intent as are party any offense party may for which the said legally be detained, offender, apprehended every or such every person counselling, aiding abetting guilty such offender shall be of a and, thereof, felony upon punished by conviction confinement penitentiary period eighteen for a less than months nor years." more than ten (1957, Repl.Vol.), Md.Code Art. 386. A § 1991 amendment punishment removed the minimum term of and increased the maxi- years. Chapter (codified mum term to fifteen 234 of the Acts of 1991 (1957, Repl.Vol.), 386). at Md.Code Art. § 8. The also found that Ford assaulted with intent to maim one of Morris, passengers, Destiny the four but merged this conviction was with his conviction of assault with intent to disable Morris.
703
particular
of the
the circumstances
under all
warranted
(3d
854
Boyce,
R.
Criminal Law
R. Perkins &
case....”
(hereinafter
omitted)
Boyce).
Perkins &
1982) (footnotes
ed.
permitted
has
the
Court
often
himself admits that this
Ford
surrounding
the
intent to be inferred from
specific
requisite
intent to
respect to
explained
As we
circumstances.
44, 51,
816,
102 A.2d
819
State, 204 Md.
in
v.
murder Davis
and,
coopera
the
(1954),
subjective
without
intent
“[s]ince
accused,
objectively
directly
cannot be
tion of the
facts
be shown
established
proven,
presence
by
its
must
We have
of its existence.”
permit proper
which
a
inference
recently,
inferences. Most
such
repeatedly permitted
265,
Raines,
582, 606 A.2d
cert. de
v.
326 Md.
State
—
(1992),
390, 121
299
—,
113
L.Ed.2d
nied,
S.Ct.
U.S.
conviction, finding
intent
requisite
upheld a murder
we
aimed and
showed
defendant
to kill when
evidence
window.
a
at an
vehicle’s driver-side
pistol
occupied
fired
269;
State,
591,
v.
238
Taylor
606 A.2d at
see also
Id. at
(“An
424, 433,
595,
(1965)
209 A.2d
600
intent murder
Md.
circumstances,
be inferred
the use
proper
under
may,
human
weapon
a
directed at a vital
deadly
part
48, 53,
State, 238 Md.
B. permitted jury might that a anticipating Perhaps intent, attempts to limit criminal Ford requisite to infer the inference that possible the only that liability by arguing his an intent to disable from his actions was drawn could be an intent to Conceding argument for this drivers. vehicles’ reasons that while drivers, Ford nonetheless disable driver, vehicle must every must have vehicle every insuffi Ford there was Because believes passengers. have that he knew there were finding support evidence to cient vehicles, impossible contends it was he passengers individuals intended to maim disable for him to have present. know were he did not whom however, Appeals believe, Special the Court We record, concluded, that the a review the upon correctly of at presence Ford was aware could have found *20 were victims whom it found passengers the four least LaShonda Rodney Marbury, intent to disable: assault with four Morris. these Destiny Thompson, Kelly Moody, the support jury’s factors would instances, a number present. passengers knew were inference that Ford rational by in a car driven passenger a Marbury was Rodney that, as the car approached He testified George. Jeanette stopped of cars both noticed a number overpass, he road, out into the step someone the road. He saw sides brief, target- twenty-three were argues cars that because In his Ford 9. Morris, victim, injured,” "permanently it Destiny was only one ed and probable” permanent injury is a "natural and be said that cannot fact, whether, after the viewed actions. It is irrelevant result of Ford's question permanent injuries. The is wheth- only victim sustained one permanent intended to cause jury found that Ford could have er the injury in fact suffered. regard such was injury, to whether without perhaps attribut- is injuries were not sustained permanent That more fortune, good but victims’ aim or the able to Ford’s bad dispositive Ford’s intent. if waving his at the trying hand car as the car get to slow brick, down. Marbury was then hit with a from which attack he suffered a wrist sight broken and lost the in his right eye. George Ms. was able to describe the color of the clothing, testify assailant’s that he was short with a slim As build. the car had slowed down and was close enough to the assailant to sufficiently allow Marbury and George observations, to make these could jury have made a rational inference that Ford was enough close to see that a in passenger was the car. Thompson
LaShonda was a in car passenger a driven by Byron She testified that the Jeffrey. person who threw the rock waited the car close until to hit enough and that the rock was thrown at the passenger side the vehicle. Thompson’s arm was in broken three As places. Rodney Marbury, the could have inferred from the testimony positions about the relative of the car and the assailant that assailant knew there passenger was a in he car when threw the rock. was a in
Kelly Moody passenger a car driven by Gloria Although Moody Scott. neither nor Scott could relate any surrounding details that rock-throwing fractured causing her have Moody’s jaw, heart problems and to ear, lose the hearing her other right testimony that the assailants out onto stepped highway and slowed cars hurling down sufficiently before rocks could support the jury’s inference the assailants could a passenger see the Scott car.
Finally, Destiny Morris was passenger pickup truck driven James Palmer. Palmer testified that he saw *21 three step individuals onto the roadway and throw rocks at vehicles on the road. He able to the was describe color of the clothing by worn each individual and their movements along the and the shoulder onto road. He stated that he was about 25 feet from the individuals when he saw them move onto the side of the highway. This testimony sup- the see ports the inference that assailants could the jury’s in his truck. passengers bolstering
Further the to conclude that the jury’s ability passengers assailants see the vehicles’ is testimony could travelling that highway the vehicles were down the groups of two to ten vehicles. From this the testimony, enough could have inferred there backlight that light in the to sufficiently reflected area illuminate the Finally, supported interiors of the vehicles. the a evidence finding that there was an to disable any passengers intent in the vehicle. James Palmer’s that he each testimony saw supports three individuals a rock at his truck an throw the attempting inference that assailants as were disable possible, many people including vehicles as drivers as Thus, well as all any passengers. we the jury believe assailants, included, could have found that the Ford intend- ed to disable vehicles’ passengers.
Ford’s to escape final under attempt culpability if 386 is his contention that even the trier of fact con § car, cludes that he was aware other persons he merely was then rock at hurling people. a a group Ford, this According only “generalized reflects malevo specific lence” and specific intent directed to a victim. Ford’s fails argument to consider the distinct possibility that if threw a rock could Ford disable all of potentially occupants, a car’s it could inferred be that he intended to disable and every person hurling each inside. By large vehicles, rocks through fast-moving windshields Ford created a peril zone extreme inside the vehicles. Within zone, this many all occupants vehicles would likely harmed, rock, be whether flying glass, or the losing drivers’ control of the vehicle. Under these circum stances, act, rock, throwing one of a single could multiple cause foreseeably injuries. Where his actions were single expected such that a act could harm to cause to all occupants, the vehicles’ the jury reasonably concluded that specific Ford had the all intent disable the vehicles’ *22 708
occupants,
“generalized
not
a
A
just
malevolence.”
defen
dant can
convicted of multiple specific
be
intent crimes from
one act when it can
inferred that he
be
intended to cause
State,
harm to more than one victim. See Hall v.
69
37, 50,
204,
(1986),
516 A.2d
210-11
Md.App.
denied,
cert.
382,
(1987) (Karwacki, J.) (three
308 Md.
C. address an important, We now albeit somewhat collateral, Special issue that the Court of Appeals addressed trial, in the instant case. At the judge also instructed the on the common law doctrine of transferred intent jury that approved this Court Gladden v. 273 Md. (1974). theory
A.2d 176 of transferred intent as expli “ cated in is that ‘the state of mind Gladden which one has upon person when about to commit a crime one is consid ered law to exist and to equally applicable although ” person.’ the intended act affects another Id. Ritz, Murder, (quoting Felony
A.2d at 188
W.
Transferred
Intent,
Law,
Doctrine in
Palsgraf
Criminal
(1959)). The judge
Wash. & Lee L.Rev. 169-71
instructed
if it found Ford assaulted with intent
jury
drivers,
to the
this intent could be transferred
disable the
and, in
to this instruction
objected
Ford never
passengers.
sufficiently
that the evidence
light of our conclusion above
that Ford intended
dis-
determination
supported
vehicles,
in the
we decline
passengers
drivers and
able both
error
to instruction was reversible
unobjected
to find the
*23
State, 328 Md.
doctrine.
Bruce v.
plain
under the
error
See
392,
(1992);
Md.
594, 611,
400
v.
325
616 A.2d
Rubin
588,
677,
(1992). Nonetheless, the
552,
602 A.2d
694
Court
of
length
addressed at some
the issue
Special Appeals
of
of the need to
clarify
transferred intent. Because
of transferred intent to assault with intent to
inapplicability
crimes,
necessary
it is
to
and related
we believe
disable
court’s discussion.
appellate
the intermediate
upon
comment
the doctrine of
Appeals
of
held that
Special
Court
the crimes
apply
transferred intent did not
to
with which
reasons,
For two
we believe the Court
charged.
Ford was
correct that transferred intent does
Special Appeals
of
acknowledge that one
apply
386 offenses. We
§
indications
prior
these reasons
be inconsistent with
may
attempted
intent
applies
this Court that
transferred
assault
intent to murder.
murder and
it is clear that the doctrine of transferred intent
Although
crimes,
general
specific
to both
and
intent
the Court
applies
that there are two
Special Appeals correctly perceived
specific
intent crimes and that transferred intent
types
one of these
“The first
may apply
only
types.
type
those
intent
specific
require
specific
intent crimes are
that
harm____
cause a
The second
are
specific type
type
which,
definition,
in
by statutory
require
specific
those
specific
to cause a
of harm to a
type
specific per
tent
Ford,
685,
(em-
Md.App.
90
at
this latter under it is a crime to “assault or § maim, person, with intent to any disfigure beat disable added). (Emphasis such Professor person____” Perkins type illustrates this of statute with an old Kentucky law “ ‘if provided any person which shall wilfully maliciously shoot at and wound another with an intention to ” him,’ kill he has committed a Perkins felony. Boyce & (quoting 601, 925-26 74 Morgan, Ky. Commonwealth (1876)). statute, 602 this Interpreting Kentucky court “ said, he wilfully maliciously shoots at one with an ‘[i]f another, intention to kill him and he wounds does not violate ” (quoting Commonwealth, statute.’ Id. Hall v. 17 1365, (1896)). Ky.L.Rep. 1366 As the court said Morgan, person “he did not wound the at whom he shot nor ... did he shoot at the he person whom did Morgan, wound.....” 602; Williamson, 591, atKy. see also State v. 203 Mo. (1907); Mulhall, Mo. S.W. State v. (1906) (both construing S.W. 586-87 similar Missouri *24 effect). statute to same The could not analogy be more direct; of the plain statutory language precludes the 386 § application of transferred intent. from these the
Apart statutory grounds, application transferred intent to the crime of assault intent to with is also the nature of the precluded by underlying disable crime. It is a fundamental tenet of criminal that a law rea, requires crime the concurrence of a a completed mens mind, reus, purpose and an actus a bad act. The guilty link transferred intent is to the mental state directed to victim, i.e., kill, maim, an intended the intent to wards the actual harm person, disable that caused to another effect, transferred intent makes a crime person. whole halves. component out two in Maryland discussion of transferred intent must Any focus on which this Court supra, Gladden recognized continuing viability the transferred intent. English traced transferred intent back to its com Gladden support cases it cited heritage early mon law and
711 was intended to enable view that the doctrine conviction of when only defendant of the crime he intended to commit a upon that crime was not committed the intended vict Professor Perkins to make the im.10" quoted The Court point: same
“
injury
person
one intends
of another under
‘[i]f
circumstances
which such a mental element constitutes
rea,
mens
accomplish
the effort
this end he
upon
person other than the one intend-
inflicts harm
ed,, he is
of the same kind
if
guilty
of crime as
his aim had
”
added).
(Emphasis
more accurate.’
been
Gladden,
10. Rex v. him, (“[a]s out of to A. shoots him kill if man malice but misses person and kills B. it is no less a murder than if he had killed the him Hale, intended.”); History Sir Matthew Pleas the Crown 466 ("if (1736) fore-thought missing A. malice strikes at B. and him dies, yet any C. whereof tho he never strikes he bore malice to C. it is *25 murder, slain____"); party and the law transfers the malice to the Sir Blackstone, England on the William Commentaries Laws 200-01 1884) ("Thus him, (Cooley, if one 3d ed. shoots at A. and misses but B., murder; intent, previous kills this is because of the felonious other.”) added). (emphases which the law transfers from one to the all support, Queen 11. Prosser cites the 1576 case of The v. Saunders & 473, Archer, (1576), Eng.Rep. 2 Plowd. in which it was said:
Thus, transferred intent makes a whole crime out joining two halves the intent as to one victim with the harm caused to another victim. Transferred intent does not make two crimes out of one. Where the crime intended has actually committed against been victim, intended transferred intent is unnecessary should hot applied be to acts against unintended victims. The California Court of Appeal point made this clearly when one reversing of two first-degree murder convictions of a defendant who intend ed to kill one victim and also accidentally killed a second Birreuta, victim. People 162 Cal.App.3d 208 Cal. Rptr. (1984). The court said:
“The function of the transferred intent doctrine first [in degree murder is to insure the adequate punish- cases] ment of those who kill accidentally bystanders, innocent failing while to kill their intended victims. But for the doctrine, transferred intent people such could escape pun- murder, ishment for even though they deliberately and premeditatedly killed —because of their ‘lucky’ mistake. The transferred intent doctrine is borne of the sound judicial intuition that such a defendant is no culpable less than a murderer whose aim is good. It insures that such a defendant will not be allowed to defend against murder charge by claiming to have made a mistake of aim identity, poor or the like. killed, the intended however,
When victim is there is no for need such an artificial doctrine. The defendant’s deliberation, premeditation, intent to kill and malice afore- thought are all directly employable prosecution murdering his intended victim. The accidental killing thus may prosecuted as a manslaughter or second said John Saunders gave the Poison with “[T]he Person, the Intent to kill a giving and in the of it he intended that Death should follow. Act, although And when happened Death followed from his it meditated, directly yet another Person than her whose Death he it him, Death, original shall be Murder in for he was the Cause of the him, punished go such should Death not be it would if added). unpunished" (Emphasis *26 ignoring the most degree culpable murder without mental There is danger elements of situation. no that a premeditated killing go unpunished will be treated as a manslaughter because the murder of the intended victim presumably subject prosecution.” will be Id. at at Cal.Rptr. 688-39. Birreuta addressed the crime of first
Although
degree
murder,
is
the crime in
analysis
applicable
its
whatever
If
question.
accurately
transferred intent is
described as
crime,
following
completed
the “intent
the bullet” to make a
the doctrine has no
when the
terminus is
application
bullet’s
and the crime at issue is complete
irrelevant
without invok-
Birreuta,
intent.
In
ing transferred
where the defendant
managed
complete
against
the crime of murder
his
victim, the court properly
intended
refused to transfer his
another, unintended,
intent
to murder to
victim. Trans-
intent
equally inapplicable
ferred
is
to other circumstances
subject
completed
where the
crime is
as to an
already
victim,
intended
such as
or other crimes that
attempts
can
completed
necessity
physical
without
contact.
crimes
thing
Such
have one
common—where the “bullet”
crime,
up
ends
is
so there is no
superfluous to
need for
the intent to
to link the crime’s
“follow
bullet”
mental
here,
elements. The crime at
physical
issue
assault
disable,
intent to
is such a crime.
with
Because the ele-
(1)
ments of an assault
intent to
are
disable
an assault
disable,
(2)
an intent to
the crime
complete regardless
target.
of whether the
reaches its
projectile
requisite
intent has already
requisite
been formed and the
assault
committed;
already
has
been
no intent need be transferred
complete
a crime.
realize that this conclusion seems at
We
odds with our
Wilson,
State v.
holding
Md.
multiple
towards
who
managed
avoid the
bullets.
Kent,
shots hit and injured
One
Juan
an
Id. 601-02,
innocent bystander.
We believe
should not
applied
have
transferred intent to attempted
First,
murder.12
as we have
noted, the
purpose
transferred intent
is not to multiply
criminal
to
liability,
prevent
but
a defendant who has com
(albeit
mitted all the
elements
a crime
not upon the same
victim) from escaping responsibility for that crime.
If the
charged
murder,
defendant
with attempted
shot at but
victim,
missed the intended
the defendant
still
may
convicted of attempted murder of that
The complet
victim.
victim,
ed crime has
committed on the
been
intended
and the
fiction of transferred intent
would
so much transfer
intent as replicate
apply
victim,
it and
it to another
thus
making multiple specific intent crimes from
single
one
act
intended to injure
person.13
one
facts virtually
On
identical
Wilson,
where the defendant
shot at and missed his
intended victim but hit a seven-year-old boy, the California
Appeal
Court of
concluded that transferred intent is inappli
as a
of assigning
cable
means
liability
attempted mur-
fact,
upon by
12.
one of
the cases relied
Wilson was the California
Neal,
668,
(1950).
People
Cal.App.2d
case of
v.
97
P.2d
218
556
Neal
distinguished
authority”
has since been
in California as "not
for this
proposition
applicability
because the
of transferred
intent had not
Czahara,
1468, 1473,
challenged. People
Cal.App.3d
been
v.
203
250
836,
(1988).
Cal.Rptr.
839
Although
acknowledged
13.
the Wilson Court
it was not at issue in that
case, it also stated in a footnote its belief that transferred intent would
apply
statutory
also
assault with intent
to murder under
12.
§
Wilson,
4,
715 Calderon, People v. 930, Cal.App.3d Cal.Rptr. der. 283 (1991). The court said: against committed crime completed “[The defendant] his intended victim is as serious the greatest which as level could be culpability which achieved transfer- ring victim, obviating that intent to his unintended need the doctrine.” apply
Id. at Cal.Rptr. at 836. The court held “the single is alleged better rule that ‘where act to be an lives, persons’ attempt two intent to kill should be victim, evaluated as to each independently should not be instructed to from transfer intent one to ” Id. another.’ 283 Cal.Rptr. People (quoting at 837 Czahara, 1468, 1474, Cal.App.3d 250 Cal.Rptr. (1988)). Professors Perkins Boyce agree: &
“If, without justification, excuse or D mitigation *28 to kill A intent fires a shot A unexpect- which misses but edly B, inflicts upon a non-fatal D injury is an guilty murder, to commit attempt the attempt was to mur- —but der A trying whom D was kill B to and not who was hit quite accidentally. And so far as criminal law is concerned is there no transfer of this intent from to one the other so as to D guilty attempt make of an to murder B.” &
Perkins at 924-25. Boyce A related reason transferred intent why cannot properly apply to murder attempted derives from the fact that the requires crime of murder attempted no physical injury to in Wilson Although the victim. bystander in fact injured, is not injury an essential attempted element of murder. Assuming an attempted murder scenario where the defendant fires a an shot at intended victim and no are bystanders physically injured, one sees it is virtual- impossible to ly decide whom the defendant’s intent should be transferred. Is the intent to murder transferred everyone path proximity of the bullet? Is the everyone intent transferred to frightened thereby as- There is no rational method for the shot? by saulted intent to murder should deciding how the defendant’s transferred.14
The result in Wilson can best be justified explained intent and is distinguishing between transferred what by Although intent. transferred intent essentially concurrent to convict the Wilsons of should not have been invoked because the crime of bystander murder of attempted complete as to the already primary murder was attempted victim, upheld could been on properly the convictions have intent. of such concurrent We elaborate. basis intent, the intended
In transferred harm does not victim, a occurs instead to second occur to the intended but unintended, The actual result is an unintended victim. For example, of intended harm. unanticipated consequence at single a who shoots a bullet the head consider defendant A, If the A with B and C. defendant misses standing B, intent to murder A will kills the defendant’s and instead conviction B’s murder. The to allow his be transferred hand, concurrent, nature and intent on the other when the victim, attack, are primary while directed a scope of intended to perpetrator can conclude the such that we by harming everyone victim primary ensure harm to an places For assailant who vicinity. example, that victim’s airplane intending on commercial harm a bomb this of attack ensures method target board primary killed. consider a Similarly, will be passengers that all and,A to kill in order to ensure A’s who intends defendant *29 A, B, C, consisting of and death, group aby drives attempted apply to refusal to transferred intent 14. We note that liability for the a defendant criminal no means relieves murder clearly can victims. The defendant be caused to unintended harm primary attempted as victim and some murder to convicted other See, crime, e.g., battery, as as to other victims. such criminal that, Czahara, Cal.Rptr. (suggesting Cal.App.3d at 840 at victim, of assault with defendant could convicted as to unintended occupied statutory firing into vehi- deadly weapon or crime of an a cle). the group weapon explo- attacks with automatic fire or an devastating to kill enough everyone sive device in the has “kill group. intentionally defendant created a victim, zone” to ensure the death his primary and the trier of fact infer from em- may reasonably the method an kill ployed intent to others concurrent to intent kill primary victim. When the his defendant escalated a single mode of attack from aimed A’s bullet head to a device, hail of bullets or explosive an the factfinder can that, infer whether or not the killing defendant succeeded in A, the defendant intended to kill concurrently everyone A’s vicinity immediate to ensure A’s death. The defen- intent B, dant’s need not be transferred A to from because although goal A, defendant’s to kill his kill was intent to direct; B also it was concurrent with his intent kill to A. Where the employed means commit the crime against primary victim victim, create a zone harm around that the factfinder can infer reasonably that the in- defendant tended that all harm to who are anticipated zone. This situation is distinct from the “depraved heart” situa- tion may because the trier fact infer the actual intent to kill lacking which a “depraved heart” scenario.15 Wilson, then, the jury could have found from the nature an attack intent Kent murder concurrent with the intent murder Brown. Where the Wilsons Brown, specifically to kill attempted intended to do so by firing multiple from two handguns, bullets they could have intended “kill zone” around Brown akin to the automatic weapon explosive or attack described above. The factfinder could conclude that the Wilsons intended kill "Depraved 15. heart” situations occur when the defendant no has specific 738, 743, intent to kill. See Robinson 307 Md. (1986) (“ ‘[d]epraved any A.2d require heart’ murder does specific injure. or general intent to kill [It] must be based on recklessness; charge dangerous act on which the is based must be persons, any particular to a number of but person.”); not directed at Perkins, (2d 1969) R. ("depraved Criminal Law 36 ed. heart” exists (Footnotes injure”). “even if there was no actual to kill intent omitted). *30 Kent, their the path direct of bullets. the
everyone victim, in the direct line obviously was Wilsons5 bystander permitted finding the concurrent intent of fire and evidence essence, the In we everyone path to kill in the bullets. right result, although no still reached the we believe Wilson There longer adopt its was sufficient evidence explanation. attempted for murders of to convictions the both support intent Kent, theory. via transferred but Brown on The evidence should instead sufficiency of the be based the bystand- concurrent intent murder the inference the shots fired multiple er that could drawn from Kent towards both victims. Jeopardy Estoppel
Y. Collateral —Double that, his motions for judg- Ford claims because Finally, relat- granted as certain counts acquittal ments of were victims, the court allowed ing improperly certain trial go to the relating jury. counts other victims to similar form of double estoppel jeopar- on the collateral Ford relies subsequent that the convic- argument, claiming this dy for Fifth Jeopardy Clause tions violated both Double Maryland common law. Amendment and Swenson, 436, 445, 90 In 397 U.S. S.Ct. Ashe (1970), Court held Supreme 25 L.Ed.2d cases of collateral criminal estoppel the federal rule that Fifth guarantee against in the Amendment’s incorporated Ashe, four armed men robbed six jeopardy. double poker. The defendant was indict playing were others who He for victims. robbery ed tried one six charge, robbery but then indicted acquitted of this The poker game robbery. Supreme another victim of ac that the jury from record when Court determined evidence,55it on “insufficient the defendant based quitted perpe defendant was not one had that the concluded held the doctrine of collateral trators. Court Amendment, Fifth prohibit as incorporated estoppel, in the first of ultimate fact decided ed retrial of this issue charge integral robbery to a conviction another trial and 442-43, in a trial. subsequent 1193-94, Id. at 90 S.Ct. at L.Ed.2d at 475. *31 common
Maryland
recognizes
law also
the col
estoppel
lateral
form of
jeopardy.
double
This common law
estoppel “prevents
collateral
litigating
State from
second time an issue of ultimate fact where there has
already been a final determination of that
issue in the
State,
383, 398,
accused’s favor.” Cousins v.
277 Md.
354
825, 834,
denied,
1027,
A.2d
429
652,
cert.
U.S.
97 S.Ct.
50
(1976)
Ashe).
(citing
L.Ed.2d 631
“The collateral estoppel
form of
is not
jeopardy
double
based on two
being
offenses
same,
on
charges
but
two criminal
having a common
necessary
component.”
factual
Apostoledes
State,
v.
323
456, 463,
1117,
Md.
(1991).
593 A.2d
1121
It may apply both
to subsequent trials and within the same trial. Brooks v.
State,
146, 155,
299 Md.
981,
472
(1984).
A.2d
986
Ford
relies on
552,
307
Wright
(1986),
Md.
then to send case to which convicted defen- decided dant). Wright we applying held that collateral
estoppel
question
critical
whether the
principles, “[t]he
at
close of
case
trial court’s action
the State’s
constitut
“
resolution,
not,
‘a
or
or
ed
correct
of some
all of
”
Wright,
charged.’
factual elements
the offense
Sanabria v. United
A.2d
(quoting
Md. at
at 1166
States,
54, 71,
2170, 2183, 57
98 S.Ct.
L.Ed.2d
487 U.S.
(1978))
omitted).
(other
analysis
citations
focuses
the fact finder did find must have found. Aposto
what
ledes,
Ford of assault intent to disable on the counts with acquittal he finding a necessarily in a vehicle was certain victims any the crime against intent to commit specific lacked the he claims that Specifically, in that vehicle. victims aggra- respect to counts acquittal with judgments Bennett, vated assault Norma Leanne Ekberg, on and John Miller have his precluded should conviction on the same charge Morris, respect with to Destiny who sat between Bennett Ekberg the front seat of the truck.
A careful the trial judge’s reasoning, examination of however, that these judgments acquittal shows did not fact, resolve an fact ultimate favorable Ford. found judge that the had made explicitly prima State out respect passengers case with in the Miller facie truck, but was concerned that the jury might overreach on confusing transferred intent. potentially theory judge stated:
“I on have to err the side respect of caution with to those type Court, and the charges defendant before the State out although prima has made case facie respect with to their at this I juncture, evidence have a great overreaching concern about respect to the doctrine of transferred ... and intent out taking [these going change ... is not anything because the counts] already defendant’s statement this (Empha- case.” added). sis
Thus, the judge’s ruling did not resolve favor Ford’s “an ultimate issue” preclude factual which would his conviction charges similar as to might other victims. One even that, by counts, conclude dismissing these judge trial actually protected Ford from potentially erroneous convic- *33 tions. attempt burden, an to ease the the jury’s judge merely charges eliminated the he felt surplusage. were
Ford turns next from intra-vehicle issues counts of relating occupants different vehicles. He claims that judge granted because trial motions for of judgments acquittals of assault with intent to disable as to passengers vehicles, in he some could not be convicted of same in passengers crime with other respect Specifical cars. ly, acquittal aggravated he claims his assault of Michelle Bazilio, Peoples, Pongee Johnson, in passengers Dontue vehicles, three separate necessarily negated his intent to Thompson, passen- and LaShonda Marbury Rodney disable he contends that Similarly, other vehicles. gers two of assault with intent to disable acquitted he because drivers, not he could be convicted three of the vehicles’ the drivers of seven other intent to disable assault with vehicles. this suc- Appeals charge answered Special
The Court
think,
and,
correctly:
quite
we
cinctly
action
throwing
separate
by
of rock
was a
“Each instance
therefore,
action
and,
separate
supported
each
appellant,
alone,
reason
For
that
individualized consideration.
alleging
on some counts
acquittal
a motion for
granting
all the
implicate
did not
at
attacks on other vehicles
necessary
support
and evidence
separate behavior
on other counts.”
verdicts
guilty
698,
Finally, judge by attacks on the cars driven flowing from charges all These included malicious and Patricia Jones. Tonia Wilkins battery upon and assault and of the vehicles destruction Jones, Mazacapa. Kim Ma- Wilkins, passenger, and Jones’ Jones, neither Wilkins nor who testify zacapa did rocks. Ford contends that anyone throwing testify, did saw perpetrators to see the warranted occupants’ if failure these should judgments acquittal then acquittal, judgments charges involving on all two granted have been likewise testify they also did not that occupants other vehicles whose rocks. throwing anyone saw trial, however, clear at that made judge
The unique. vehicles and Jones facts made Wilkins rocks, and Patricia by first to hit vehicle was Jones the rocks came she did not see where testified Jones ruled The court might rock throwers be. from or who make one inference could that, testimony, this from State, and stated: to the and one favorable of Ford favor Although to the runner.” go ties my courtroom “But the colors the rock throwers had identified persons other *34 those identifications they wearing, were were actions occurring Thus, incident. judge after Jones the trial opined jury speculate that the would have that the same rock throwers threw at Jones’ car. Accordingly, judge granted the motion as to all of the counts concerning Jones’ car. The judge’s reasoning distinguished trial the Jones Thus, vehicle from the others. there ruling was no Ford’s favor on an ultimate fact that would collaterally estop convictions on other counts.
Wilkins’ was perhaps unique vehicle even more than the vehicle, Jones because Wilkins did not realize at all that her by that, car had been hit a rock. She testified at trial as she drove on the she heard a Beltway, “big thump on my side of the car.” kept driving She and did not notice the dents on her until car the next morning. She never ob- Thus, any served rock throwers. the evidence as to Wil- kins’ vehicle was the In granting weakest of all. judgments acquittal on charges relating vehicle, to Wilkins’ court again reasoning based its its unwillingness to let overreach. There finding was no of ultimate fact favor, in Ford’s an merely attempt but judge trial sort out complicated charges and to treat the defendant fairly. Since there nowas resolution of an ultimate fact in favor, Ford’s estoppel collateral principles impli- were not cated. affirm the judgment We Special Court of on these and Appeals preceding counts.
JUDGMENT THE OF COURT OF SPECIAL APPEALS AFFIRMED. IN COSTS THIS COURT AND IN THE COURT OF BE SPECIAL APPEALS TO PAID BY PETI- TIONER.
McAULIFFE, KARWACKI, JJ., RODOWSKY and concur.
McAULIFFE, Judge, concurring. result,
I concur in the join opinion the Court’s except as to the dictum concerning the doctrine of trans- intent, ferred found Part IV C. *35 the failed the preserve
The Court holds that defendant to the about transferred alleged instructing error of intent, event, any and that in the evidence was sufficient to on support grounds. the convictions other The Court then of dictum to discuss the doctrine of trans- proceeds by way intent, portion to invalidate a of that ferred and doctrine approved and in recently specifically that we State v. Wil- 600, (1988). 1041 son, 313 Md. 546 A.2d that the cannot the Court states doctrine Specifically, 1) specific crime to cause a apply: requiring to a intent and, 2) to a the specific specific person; of harm where type against crime intended has been committed the actually Contrary suggestion intended to the of the majori- victim. of the the first limitation the use doctrine was not ty, Wilson, 313 at 606 n. approved Although in Md. 3. first is not the limitation the of the validity, part dubious Rather, opinion. that this' I am prompts Court’s dictum concerned the Court’s unnecessary, my opinion and ill-advised, acceptance the second limitation.
The
cites three decisions of
Court
California Courts
of the
A
Appeal
support
second limitation.
California
Carlson,
the
37
by
majority, People
case
cited
v.
349,
(1974),
112
321
Cal.App.3d
Cal.Rptr.
appears
case,
In that
defendant killed his preg-
the
the
contrary.
wife
circumstances sufficient to
a find-
support
nant
under
Although
the
have
ing manslaughter.
may
defendant
kill
no
the
his
had
intention
unborn child
wife
he
court found that
crimi-
carrying, the California
would be
fetus
his wife’s death and the death of the
nally liable for
The
of transferred intent.
at 325.
under
doctrine
Id.
by
adopted
approved
rationale of the
case was
Carlson
Lovett,
90
Michigan
People
v.
Appeals
the Court of
357,
(1979).
1989, 169, 283 N.W.2d
360
In
Mich.App.
referred to
of the cases
of California
two
Supreme Court
Carlson,
although
by
majority,
stating
cited
the rule of transferred intent
in cases
it had approved
homicides,
applica-
had not considered
involving
court
unin-
where
the intended and the
tion of the doctrine
both
725
Hunter, 49
People
v.
killed or
injured.
were
tended victims
(1989).
367, 379,
P.2d
Cal.Rptr.
Cal.3d
applicabil-
have taken a different view
Other courts
both the
of transferred intent where
of the doctrine
ity
or killed.
injured
victims were
intended and unintended
Worlock, (1990),
569 A.2d
State
N.J.
the defendant’s
Jersey rejected
of New
Supreme Court
the rationale of the Califor-
that it should follow
argument
here.
court said:
upon by
majority
nia courts relied
designs the death of
contemplates or
When a defendant
served
another,
of deterrence is better
purpose
*36
knowing
the
or
responsible
that defendant
for
holding
unintended as well as the
murder of the
purposeful
Hence,
argument
defendant’s
reject
intended victim.
we
killing
prevents
the successful
of the intended victim
that
of that
intent
to an unintended victim.
the ‘transfer’
Id. at 1325. The New
court also noted that federal
Jersey
applied
principle
likewise
the
of transferred
courts have
the
by
in
where the intended victim is killed
intent
cases
United
victim, citing
the unintended
same act that kills
621,
(D.C.Cir.1980),
v. Sampol,
636 F.2d
States
Weddell,
v.
767,
(8th
United States
567 F.2d
769-70
Cir.
denied,
cert.
1977),
436 U.S.
98 S.Ct.
56 L.Ed.2d
Id.
(1978).
the
of
Recently,
Supreme Court
Delaware stated: “We
adopt
Jersey Supreme
the view announced
the New
Robinson v.
State Worlock....”
in
Court
(Del.Supr.1992) (unpublished).
The element of intentional causation not if the result is outside the intention or actual established of the defendant unless: contemplation (1) actual result differs from that intended or be, in respect as the case that contemplated, may only affected____ injured a different ... is or person The Delaware statute tracks essentially Del.C. 262. § (1962). Penal 2.03 the Model Code § The Court’s announced limitation the doctrine of newly likely interesting transferred some present intent Assume, defendant, that in- problems. example, him, A, to kill shoots and but the tending wounds bullet I A and kills B. Under the Court’s passes through theory, B, guilty the defendant would murder of assume murder or although guilty attempted also assault with died, If A also intent murder A. had Court would hold that the defendant could be convicted B, only battery, perhaps manslaughter. murder but then, if the is convicted of the happens, What defendant alive, still A dies murder of B A is but of wounds while within and a year day received the assault shooting? far in attempt the Court too its my judgment, goes
limit the utilization of doctrine of transferred intent I excise dictum from the simply criminal cases. would opinion. KARWACKI, JJ., join this opinion.
RODOWSKY
Court of June 1993.