The opinion of the court was delivered by
This is а direct appeal by the defendant, Quilan Z. Jones, from his jury conviction of one count of first-degree murder. He was sentenced to life imprisonment.
The 15-year-old defendant went to the Coastal Mart that afternoon to get some chips and soda pop. He was a member of a gang and was dressed in its identifying color. While defendant was in the convenience store, members of a rival gang entered. Defendant later told a friend that they said to him, “What’s up, Cuz?” There was testimony that the greeting directed to a member of a rival gang was disrespectful and “a good way to get injured.” There was substantial evidence of ongoing violent and deadly conflict between defendant’s gang and this rival gang.
A short time later defendant talked to Dale Caine, who was a fellow gang member with defendant in September 1993, in front of a house near the Coastal Mart. Defendant was carrying a gun, a .380, and he said that he shot at some members of a rival gang. He said that they were harassing him in the store, but he did not shoot at them in the store because he was being watched. Then when he was leaving they drove up and showed him they had a gun. Defendant said he crossed the street, looked over at the rival gang members, and started shooting. The rivals returned fire; Caine thought he remembered defendant saying that they shot back one time.
In a taped interview with police, defendant said that while he was in the convenience store a rival gang member came in and made hand signals at him. Defendant “flipped him off.” There were two other rival gang members in a car outside. After he left the store and was in the alley across the street, their car was still in the Coastal Mаrt parking lot. The driver got out of the car and
On appeal, defendant raises two issues. First, he contends the district court erroneously instructed the jury on the transferred intent theory of intentional, premeditated murder. In pertinent part, the information against defendant states:
“[0]n or about the 8th day of September, 1993, A.D., one QUILAN Z. JONES, did then and there unlawfully, intentionally, kill a human being, to-wit: Roger E. Halley, intentionally and with premeditation by shooting him, inflicting injuries from which the said Roger E. Halley did die on September 8, 1993.”
In addition to being instructed on the elements of intentional, premeditated first-degree murder, the jury was instructed as follows: “When a homicidal act is directed against one other than the person killed, the responsibility of the actor is exactly as it would have been had the act been completed against the intended victim.” Defense counsel objected to this instruction on the ground that the evidence did not support it.
On appeal, defendant takes a different approach. Because the only evidence was that Halley was not the intended victim, defendant argues that the only theory of premeditated first-degree murder supported by the evidence is transferred intent. The problem which he identifies is that transferred intent was not spelled out in the information. He argues that thе case should not have been submitted on transferred intent theory because it was not expressly charged, and that the information was broadened by the district court’s instruction on transferred intent. Because trial counsel objected to the transferred intent instruction only on evidentiary grounds, the State complains that defendant is raising a new claim on appeal. Defendant does not address the issue of his raising a new claim on appeal. With regard to the scope of the court’s review, he states only that review of a legal conclusion is unlimited. He never expressly states that the information is defective, nor does he allude to the well-known rules for appellate review of a defect
Defendant does not seem to have settled on the precise nature of his complaint. As a result, some of his arguments seem more relevant to an alleged defect in the information than to an alleged error in instructions. Defendant contends that he was prejudiced because the information did not fully apprise him of the charge. He asserts: “The State’s use of the doctrine of transferred intent subjected Mr. Jones to an entirely different set of facts than he would have faced under the crime charged, the premeditated murder of Rob [sic] Halley.” This assertion is at odds with other statements made in defendant’s brief.
First, defendant recognizes that transferred intent is an accepted principle in the courts of this state. In
State v. Moffitt,
“The fact that the homicidal act was directed against one other than the person killed does not reheve the slayer of criminal responsibility. It is generally held that such a homicide partakes of the quality of the original act, so that the guilt of the perpetrator of the crime is exactly what it would have been had the assault followed upon the intended victim instead of another. (1 Wharton’s Criminal Law and Procedure, Homicide, $193, p. 438.) The same rule applies where the felony murder rule is asserted to sustain a conviction for murder in the first degree or felonious assault.”
“ ‘Under this rule, the fact that the bystander was MEed instead of the victim beсomes immaterial, and the only question at issue is what would have been the degree of guilt if the result intended had been accomplished. The intent is transferred to tire person whose death has been caused, or as sometimes expressed, the malice or intent foEows the buEet.’ 40 Am. Jur. 2d, Homicide § 11, pp. 302-303.”4 Kan. App. 2d at 561 .
Second, defendant states that the only theory of premeditated murder which is supported by the evidence is transferred intent, and he states that it is undisputed that Halley was not the intended target of the bullet. He was well aware of the State’s case against him. In these circumstances, defendant’s claim that the State’s use of the doctrine of transferred intent subjected him to an entirely different set of facts than he would have faced under the crime charged is not credible. The requisite intent for premeditated murder may be transferred, as a matter of law, and in the factual circumstances of this case, that intent must be transferred. Neither should have been a surprise to defendant.
For the same reasons, defendant’s claim that his trial strategy might have differed if the information had spelled out transferred intent has no merit. In addition, the example given in his brief of a possible difference in trial strategy concerns instructions rather than trial strategy. At the time of the instruction conference, defense counsel had heard the evidence, and that, rather than the information, should have been the basis for requested instructions.
Of the Kansas cases cited by defendant, the only one he discusses is
State v. Redford,
“The general rule is that instructions should follow the charges contained in the information and should not be broader than the information. State v. Turbeville,235 Kan. 993 , 997,686 P.2d 138 (1984).
“The facts in this case, however, are similar to those in Turbeville, in which we held the defendant’s substantial rights were not prejudiced by violation of the rule. In Turbeville, die triаl court added the alternative intents ‘to terrorize the victim or another’ or ‘to facilitate flight’ to the aggravated kidnapping instruction. We held because this language was taken directly from the statute and was supported by the evidence presented at trial, the error was harmless. The broadening of die instruction did not charge an additional crime but only stated several different kinds of intent by which aggravated kidnapping could be committed. The charge of aggravated kidnapping under the statute fully advised the defendant of the nature of the charges against him and did not mislead him in preparing his defense.
“It is apparent the court added an additional intent under the statute as in Turbeville. As in Turbeville, there was evidence supporting the additional theory that Redford kidnapped Donna with intent to facilitate die commission of the crime of rape and sodomy. We hold there was error, but it was harmless under the facts of this case.”242 Kan. at 670-71 .
In the present case, as in Redford, there was evidence supporting the intent theory which was stated in the instruction. Here, there was evidence that defendant intended to kill the rival gang member or members but killed Halley instead. The contention that defendant was not fully apprised of the charges already has been discussed and dismissed.
Defendant also argues that his case is different because transferred intent is not mentioned in the first-degree murder statute. He seems to be suggesting that what was harmless error in
Redford
cannot be harmless in this case. We do not agree. As discussed in
Redford,
the statute sets out four distinctive types of intent for which the taking of a person constitutes kidnapping. An information which charged the taking of a person without specifying at least one of the types of intent would not charge the crime of kidnapping because it is the intent which transforms what otherwise might be lawful conduct into a criminal offense. By the same
Defendant states that there are no Kansas cases on point and discusses two out-of-state cases. We find neither case to be on point. He also cites
State v.
Wise,
We next consider if the attempted first-degree murder of a rival gang member or members can be the underlying felony for the felony-murder charge for the death of Roger Halley. Defendant was charged with killing Halley intentionally and with premeditation or, in the alternative, killing Halley while attempting to commit an inherently dangеrous felony, first-degree murder. With regard to the first charge, the statute in effect at the time provided that “[mjurder in the first degree is the killing of a human being committed . . . [intentionally and with premeditation.” K.S.A. 1993 Supp. 21-3401(a). With regard to the alternative charge, K.S.A. 1993 Supp. 21-3401(b) provided that “[mjurder in the first degree is the killing of a human being committed ... in the . . . attempt to commit ... an inherently dangerous felony as defined in K.S.A. 1993 Supp. 21-3436.” K.S.A. 1993 Supp. 21-3436(b) provided in pertinent part that murder in the first degree committed intentionally and with premeditation
"shall be deemed an inherently dangerous felony only when such felony is so distinct from the homicide alleged to be a violation of subsection (b) of K.S.A. 21-3401 ... as to not be an ingredient of the homicide alleged to be a violation of subsection (b) of K.S.A. 21-3401 . . . .”
Both theories were submitted for the jury’s consideration. In addition to being instructed on the elements of the offenses, the jurors were told:
“The State may prove murder in the first degree by proving beyond a reasonable doubt that the defendant killed Roger E. Halley and that such killing was done while attempting to commit murder in the first degree or in the alternative by proving beyond a reasonable doubt that die defendant killed Roger E. Halley intentionally and widi premeditation, as fully set out in diese instructions.”
The jury returned a general verdict of guilty of first-degree murder.
On appeal, defendant argues that the offense of attempted intentional and premeditated murder of the rival gang member or members will not support the felony-murder charge. Defense
Here, defendant contends that attempted murder of the rival gang member or members is an ingredient of the homicide of Halley and, therefore, is not deemed to be an inherently dangerous felony for the purpose of 21-3436 and 21-3401(b). He states this argument in terms of merger. The court has stated that, when the alleged underlying felony is “an integral part of the homicide,” “it merged therewith and could not serve as the underlying felony.”
State v. Lucas,
The parties generally agree on which Kansas cases pertain to this issue, but they predictably draw different lessons from them. In
State v. Fisher,
In
State v. Leonard,
“Leonard’s one act of driving the semi-truck through the crowd is the basis for both charges. This one act is not separated in time and distance. The оne act caused the killing. Because there was only one act, the elements of the aggravated assault are not distinct from the homicide. The aggravated assault charges merged with the felony-murder charge.”248 Kan. at 431 .
Defendant contends that the same conclusion is inescapable in his case. Echoing the court’s statement in Leonard, defendant asserts: His one act of shooting at the rival gang member(s) is the basis for the underlying felony of attempted first-degree murder of the gang member(s) and for the killing of Halley. The one act is not separated in time and distance, and the one act caused the killing. Because there was only one act, the elements of the attempted murder(s) are not distinct from the homicide. He concludes, thereforе, that the attempted murder(s) merged with the homicide.
The distinction which the State urges this court to make is that in-
Leonard
and Fisher, the victim of the homicide was one of the intended victims of the underlying felony. In the present case, Halley was not an intended victim of the attempted murder(s). The State relies on the three cases also cited by defendаnt:
State v.
Prouse,
■ In Moffitt, the defendant was found guilty of possessing a pistol after conviction of a felony and of using the pistol to commit homicide. Moffitt argued that the felony-murder rule could not be applied to the facts of his case. The court concluded that possession of a pistol after having been convicted of a felony could be the underlying felony for purposes of charging felony murder. In the course of its discussion, the court stated:
“Reference has previously been made to the case of State v. Fisher, supra, which holds in effect that the words ‘other felony’ used in 21-401, supra, refer to some felony collateral to the homicide, and not to those acts of personal violence to the deceased which are necessary and constitute elements of homicide itself. They are merged in it and do not, when consummаted, constitute an offense distinct from homicide.”199 Kan. at 533 .
On the basis of this statement, the State contends that “Moffitt stands for the proposition that when the underlying offense constitutes personal violence to the deceased the underlying offense merges with the homicide and a conviction for felony murder will not he.” (Emphasis added.)
The State finds the same proposition in
Lucas.
In that case, the young victim of child abuse died. Lucas was charged with and convicted of child abuse of the deceased victim and her felony murder based on the underlying felony of child abuse. It was in
Lucas
that
“Clearly, abuse of a child аs defined by K.S.A. 1987 Supp. 21-3609 is a felony inherently dangerous to human fife and no contrary assertion is made herein. Rather, tire issue herein is whether the underlying or collateral felony is so distinct from the homicide as not to be an ingredient of the homicide. If the underlying felony does not meet this test it is said to merge with the homicide and preclude the application of felony murder. Thus, a crime such as second-degree murder may not serve as the underlying felony supporting first-degree felony murder because second-degree murder is one of the lesser included offenses of first-degree murder. Otherwise, all degrees of homicide would constitute murder in the first degree, regardless of the defendant’s intention or premeditation. First-degree premeditated murder (or any lеsser degree of homicide) could, of course, constitute the requisite underlying felony where, for instance, a defendant kills victim B during his or her commission of a homicide on victim A. The homicide of victim A could be the -underlying felony for a felony-murder charge for the death of victim B.” Lucas,243 Kan. at 466 .
As the State notes, the hypothetical example given by the court in Lucas differs from the present case only in the detail, irrelevant to the legal effect, of defendant’s not being successful in killing his intended victim.
In
Prouse,
the defendant was convicted of child abuse of his young daughter and of felony murder for her death from abuse. By the time
Prouse
was before this court, a rehearing had been granted in
Lucas
and the original opinion had been affirmed. Thus, in accordance with
Lucas,
Prouse’s felony-murder and child abuse convictions were reversed and the case was remanded for trial on appropriate charges.
“The collateral felony must, therefore, be felonious conduct other than the lethal act itself. Thus, a homicide occurring during the commission of an independent felony, such as aggravated robbery, rape, or kidnapping, comes under the felony-murder statute (K.S.A. 21-3401). However, the lethal act itself cannot serve as the independent collateral felony necessary to support a felony-murder conviction. Thus, an aggravated battery (K.S.A. 21-3414) resulting in the death ofthe victim merges into the homicide and cannot serve as the collateral felony for felony-murder purposes. For further illustration, consider the situation where a robber shoots the victim during the commission of an aggravаted robbery. If the victim lives, the robber could be convicted of the two separate felonies he or she committed — aggravated battery and aggravated robbery. If the victim dies as a result of the injuries so received, the robber may still be convicted of two felonies — felony murder and aggravated robbery. However, if the only felonious conduct involved is the cause of the victim’s death, then the doctrine of merger prevents die prosecution from splitting the act into a felony murder and a collateral felony charge. Therefore, an aggravated battery cannot serve as file collateral felony for felony murder. We then held in Lucas that designating an aggravated battery against a child as child abuse does not avoid the mеrger doctrine and result in two independent felonies.” 244 Kan. at 296-97 .
Based on these cases in which the underlying offense merges with felony murder because the intended victim of the underlying offense and the homicide victim are one and the same, the State contends that, when the intended victim of the underlying offense and the homicide victim are different people, the underlying offense is independent and collateral to the homicide. Using language from these cases, the State justifies the rule on the ground that the underlying offense did not involve a personal act of violence to the deceased. It may also be said that this is not a case in which the only felonious conduct is the cause of the victim’s death. Although there is only one physical act, therе are two types of culpable conduct. The attempt to kill A is felonious conduct, and killing B is felonious conduct. See
Prouse,
The State offers the following explanation of the rulings in
Fisher
and
Leonard
within this framework: In those cases, the deceased victim was one of a group of people against whom the violent underlying felonious act was directed, but in neither case was any particular victim identified by the defendant. Thus, it cannot be said that the intended victim of the underlying felony is different from the actual victim, and the merger doctrine would apply. Fisher shot at the tires and gasoline tank of a сar carrying a number of people who were strangers to him, and his shots killed one of
In this regard, this court has expressed several different concerns relative to the felony-murder doctrine. One is the possibility of a defendant’s being charged with two offenses based on the same act. Another is the possibility of a defendant’s being charged with first-degree murder regardless of the degree of homicide supported by the evidence. These concerns underscore this court’s different statements about felony murder. For example, in
Prouse
it was stated that the lethal act “cannot serve as the independent collateral felony necessary to support a felony-murder conviction.”
“Leonard’s one act of driving the semi-truck through the crowd is the basis for both charges. This one act is not separated in time and distance. The one act caused the killing. Because there was only one act, the elements of the aggravated assault are not distinct from the homicide. The aggravated assault charges merged with the felony-murder charge.”248 Kan. at 431 .
In Lucas, the following statеment was made about what could be a single act:
“First-degree premeditated murder (or any lesser degree of homicide) could, of course, constitute the requisite underlying felony where, for instance, a defendant kills victim B during his or her commission of a homicide on victim A. The homicide of victim A could be the underlying felony for a felony-murder charge for the death of victim B.”243 Kan. at 466 .
In the present case, only one count of murder was charged against defendant. He was not charged with an underlying felony. Thus, in this case, neither of the concerns which seem to underlie the court’s statements is present. Defendant was not charged with two offenses based on the same act. Nor was he charged with first-degree murder when there was no evidence of commensurate in
In addition, even if the felony-murder theory were flawed for the reason suggested by defendant, it would not necessitate reversal. Defendant contends that tire district court’s permitting the jury to consider the felony-murder theory is error which requires reversal because it is impossible to tell from the general verdict form on which theory the jury based its finding of guilty of first-degree murder. In the circumstances of this case, however, the same evidence supports either charge, and both charges are first-degree murder. The evidence showed that defendant shot at the rival gang member(s) аnd Mlled a passerby. Under the transferred intent theory, this evidence supports the charge of first-degree intentional, premeditated murder of Halley. Under the felony-murder theory, precisely the same evidence supports the charge of first-degree felony murder of Halley committed in the attempt to commit the intentional, premeditated murder of another. Not being able to determine from the general verdict form on which theory the jury based its verdict, therefore, is immaterial. In order to reach the verdict, the jurors had to agree that the evidence necessary to support either charge had been shown.
The final issue raised by the defendant is whether the district court should have instructed on the lesser included offenses of intentiоnal second-degree murder and voluntary manslaughter. The district court instructed the jury on second-degree uninten
Defendant contends that the district court breached its affirmative duty to instruct on all lesser offenses for which there is evidence on which he might be convictеd. He contends that instructions on intentional second-degree murder and voluntary manslaughter also should have been given. The State insists that there was no evidence to support those instructions. The district court’s duty to instruct on lesser included offenses “does not arise unless there is evidence supporting the lesser offense.”
State v. Patterson,
Defendant is aware that instructions on lesser included offenses of felony murder often are not required. In
State v. Strauch,
"When murder is committed during the commission of a felony, the rule requiring instructions on lesser included offenses does not apply. The felonious conduct is held tantamount to die elements of deliberation and premeditation which are otherwise required for first-degree murder. It is only when the evidence that the underlying felony was cоmmitted is weak, inconclusive or conflicting that instructions on lesser included offenses may be required. Under the facts of this case, it is held: The evidence on the charge of aggravated criminal sodomy was neither weak, inconclusive, nor conflicting and the trial court properly denied defendant’s requested instructions on the lesser included offenses for the alternative charge of felony murder.”
Strauch “was charged with premeditated first-degree murder and in the alternative felony murder, with the underlying felony being aggravated criminal sodomy.”
In the present case, it was not specified whether the lesser included offense instructions were for the charge of premeditated murder or the alternative charge of felony murder. Nor do we know whether defendant was convicted of premeditated or felony murder.
Defendant contends that it is implicit in the district court’s instructing on the lesser included offenses of unintentional second-degree murder and involuntary manslaughter that the instructions were required because evidence that the underlying felony was committed was weak, inconclusive, or conflicting. It is equally reasonable to infer that the instructions were intended to be for the charge of premeditated murder. If so, the general rule with regard to lesser included offense instructions rather than the rule for felony-murder charges should apply.
K.S.A. 1993 Supp. 21-3402 defines second-degree murder as follows: “Murder in the second degree is the killing of a human being committed: (a) Intentionally; or (b) unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.” The jury was instructed on subsection (b). Defendant contends that the evidence warranted an instruction on subsection (a). This court has stated that “[t]he duty of the trial court to instruct on the lesser included offense is applicable only when the evidence introduced at the trial is such that the defendant might reasonably have been convicted of the lesser offense.”
State v. Dixon,
The State argues that premeditation is evident in the evidence singled out by defendant. We agree. According to the State, in its version of the incident, defendant considered shooting the rival gang member(s) in the convenience store, but refrained from doing so because he was being watched. He left the store, walked across the street, set down his soda pop, and prepared to shoot. In this version as well, the shooting was premeditated and intentional. In
K.S.A. 1993 Supp. 21-3403 provides in pertinent part: “Voluntary manslaughter is the intentional killing of a human being committed: . . . (b) upon an unreasonable but honest belief that circumstances existed that justified deadly force under K.S.A. 21-3211, 21-3212 or 21-3213 and amendments thereto.” Defendant contends that an instruction parallelling subsection (b) of 21-3403 was warranted by the evidence in this case. It is his contention that the jury could have found that he believed the rival gang members’ use of force was imminent even though the belief would have been unreasonable. The evidence he relies on is that he was outnumbered by members of a rival gang, that they were engaging in provocative and disrespectful сonduct toward him, that the rival gangs recently had engaged in deadly conflict, and that they showed him a gun. The State counters that neither of their versions of events supports an instruction that defendant killed upon an unreasonable but honest belief that deadly force was justified. In the State’s version, defendant was not only the aggressor who fired the first shots, he also used deadly force after any perceived threat had been dissipated. We do not find that this evidence reasonably would support a finding that defendant honestly, but unreasonably, believed that the circumstances in which he fired the shots justified deadly force. In defendant’s version, he was acting in self-defense. If he was acting in self-defense, his belief that circumstances existed that justified deadly force would not be unreasonable.
Affirmed.