State v. Bryant Dewayne Millen

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
(HEARD AT MEMPHIS)
FOR PUBLICATION
FILED
April 26, 1999
BRYANT DEWAYNE MILLEN, ) Filed: April 26, 1999
) Cecil Crowson, Jr.
Appellant, ) Appellate Court Clerk
)
) SHELBY CRIMINAL
Vs. )
)
) HON. L. T. LAFFERTY JUDGE
STATE OF TENNESSEE, )
)
Appellee. ) No. 02-S-01-9711-CR-00106
For Appellant: For Appellee:
Leslie I. Ballin John Knox Walkup
Mark A. Mesler Attorney General & Reporter
BALLIN, BALLIN & FISHMAN, P.C.
Memphis, Tennessee Michael E. Moore
Solicitor General
Daryl J. Brand
Senior Counsel
Criminal Justice Division
Nashville, Tennessee
At Trial:
John W. Pierotti
District Attorney General
Thomas D. Henderson
Assistant District Attorney General
Memphis, Tennessee
OPINION
COURT OF CRIMINAL APPEALS
AFFIRMED. ANDERSON, C.J.
We granted this appeal to determine whether one who intends to kill a specific
person but instead kills an innocent bystander may be convicted of premeditated and
deliberate first degree murder under the common law doctrine of “transferred intent.”1
The defendant, who intentionally fired several gunshots at a specific person but
inadvertently killed a random victim near the scene, was convicted of premeditated and
deliberate first degree murder. The author of the Court of Criminal Appeals’ opinion
concluded that the trial court properly instructed the jury on the doctrine of transferred
intent under Tennessee law; however, one judge on the three-judge panel concurred in
results only, and the other judge wrote a concurring opinion questioning the application
of transferred intent.
We conclude that it is unnecessary to resort to the common law doctrine of
transferred intent under our first degree murder statutes. The definition of “intentional”
in the statute does not require the State to prove that the defendant killed the intended
victim. Instead it requires the State to prove that the defendant intended to kill a
person, i.e., that the defendant had a “conscious objective or desire to . . . cause the
result. As in the present case, where a defendant, acting with premeditation and
deliberation, kills one person while intending to “engage in the conduct or cause the
result,” first degree murder is proven.2 Moreover, where an innocent bystander is killed
during a defendant’s attempt to perpetrate first degree murder, first degree felony
1
Ora l argu me nt wa s hea rd in th is cas e on M ay 12, 1998 , in Me mp his, S helby C oun ty,
Tenn essee , as part of this Cou rt’s S.C.A.L .E.S. (Supreme Court Advancing Lega l Education for Students)
project.
2
At the time of this offense, first degree murder was defined as the “intentional, premeditated and
deliberate killing of another.” Tenn. Code Ann. § 39-13-202(a)(1) (1991) (now codified in Tenn. Code Ann.
§ 39- 13-2 02(a )(1) ( 199 7), the offe nse no lon ger c onta ins th e elem ent o f “de libera tion”) . The culpa ble
mental state of intentional “refers to a person who acts intentionally with respect to the nature of the
conduct or to a result of the conduct when it is the person’s conscious objective or desire to engage in the
conduct or cause the result.” Tenn. Code Ann. § 39-11-302(a) (1991) (now codified in Tenn. Code Ann.
§ 39-11 -302(a) (1) (199 7)).
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murder is proven.3 Accordingly, although the trial court erred in instructing the jury on
transferred intent, we affirm the judgment of conviction of first degree murder.
BACKGROUND
In June of 1994, the defendant, Bryant Dewayne Millen, told friends that he was
tired of harassment from Tony Gray and that if he saw Gray again, he was “going to
blast on him.” According to the evidence, Millen was a member of a gang known as the
“Bloods,” and Gray was a member of a rival gang called the “Crips.” Later that day,
Millen obtained a handgun and ammunition from a friend. He proceeded to the corner
of Graceland and David in Memphis and placed a red bandana around his head and
another over his mouth.
When a car containing Tony Gray and other passengers proceeded slowly along
Graceland, Millen drew his weapon and ran toward the car firing several shots. One of
the shots struck and killed fourteen-year-old Lanetta King, who had been walking home
from school. Millen fled from the scene and was later found at his father’s home. The
handgun he had used was found buried in the backyard. Millen later confessed to the
shooting.
The trial court instructed the jury on the elements of premeditated and deliberate
murder and felony murder, both of which had been charged in the indictment. The trial
court also charged the jury that “[u]nder a doctrine known as ‘transferred intent,’ a crime
may be murder although the person killed was not the one whom the accused intended
to kill such as where one shooting at another kills a bystander or third person coming
within ranges.” The jury convicted Millen of premeditated and deliberate first degree
murder.
3
At the time of this offense, first degree felony murder was defined as “[a] reckless killing of
another committed in the perpetration of, or attempt to perpetrate any first degree murder, arson, rape,
robbery, burglary, theft, kidnapping or aircraft piracy.” Tenn. Code Ann. § 39-13-202(a)(2) (1991) (now
codified in Tenn. Code Ann. § 39-13-202(a)(2) (1997), the offense no longer includes the element of
“reckle ss”).
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On appeal, the author of the Court of Criminal Appeals’ opinion observed that
the transferred intent doctrine, pursuant to which a defendant is no less culpable for
killing an unintended victim, presented “an interesting and novel issue.” He concluded:
Tennessee’s murder statute defines first degree murder as the
“intentional, premeditated and deliberate killing of another.” Tenn. Code
Ann. § 39-13-202 (1991). The Code does not limit the killing to the
intended victim or that person. Accordingly, we find that Tenn. Code Ann.
§ 39-13-202 (1991) incorporates the doctrine of transferred intent. The
appellant’s conviction can be sustained provided he intended, with
premeditation and deliberation, to kill his intended victim.
Although the panel of judges appeared to differ on the application of the transferred
intent doctrine, the appellate court found that the evidence was sufficient to support the
elements of premeditated and deliberate first degree murder and affirmed the
conviction.
We granted this appeal to consider the viability of the common law doctrine of
transferred intent under Tennessee law.
ANALYSIS
Common Law
Under the so-called “transferred intent” doctrine, a defendant who intends to kill
a specific victim but instead strikes and kills a bystander is deemed guilty of the offense
that would have been committed had the defendant killed the intended victim. 2
Charles E. Torcia, Wharton’s Criminal Law § 146 (15th ed. 1994); 1 Wayne R. LaFave
& Austin W. Scott Jr., Substantive Criminal Law § 3.12(d) (1986). The doctrine has
been widely applied to all forms of homicide by the majority of courts. See LaFave &
Scott, § 3.12(d) at 399. As one Court has said:
The common law doctrine of transferred intent was applied in England as
early as the 16th century. The doctrine became part of the common law
in many American jurisdictions . . . and is typically invoked in the criminal
law context when assigning criminal liability to a defendant who attempts
to kill one person but accidentally kills another instead. Under such
circumstances, the accused is deemed as culpable, and society is harmed
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as much, as if the defendant had accomplished what he had initially
intended, and justice is achieved by punishing the defendant for a crime
of the same seriousness as the one he tried to commit against his
intended victim.
People v. Scott, 59 Cal. Rptr. 2d 178, 14 Cal. 4th 544, 927 P.2d 288, 291 (1996)
(citations omitted).
Although transferred intent has been and continues to be applied by the majority
of courts, the history of the doctrine as part of the common law of Tennessee is, at
best, unclear, at least with regard to first degree murder. 4
In the first case in which the Tennessee Supreme Court considered the doctrine,
Bratton v. State, 29 Tenn. 103 (1849), there was a question as to the defendant’s intent
to shoot and kill the victim while attempting to kill the victim’s husband. The jury was
instructed on the transferred intent doctrine and convicted the defendant of first degree
murder. On appeal, this Court held that transferred intent did not apply under
Tennessee’s first degree murder statute, which then read:
[A]ll murder which shall be perpetrated by means of poison, lying in wait,
or any other kind of willful, deliberate, malicious and premeditated killing;
or which shall be committed in the perpetration of, or attempt to perpetrate
any arson, rape, robbery, burglary, or larceny, shall be deemed murder in
the first degree.
Id. at 106. The Court reasoned that to prove murder in the first degree, “it must be
established, that there existed in the mind of the agent, at the time of the act, a
specified intention to take the life of the particular person slain.” Id. at 107-08
(emphasis added); accord Sanders v. State, 151 Tenn. 454, 270 S.W. 627 (1925);
Kannon v. State, 78 Tenn. 386 (1882).
4
Although this Cou rt has ne ver exp ressly held th at the doc trine of trans ferred inte nt applies to
first degree murder, we note that Court of Criminal Appeals’ cases have upheld a first degree murder
conviction under th e doctrine . State v. Fa ir, No. 02C01-9403-CR-00055 (Tenn. Crim. App., Nov. 15,
1995). O ther cas es have affirme d seco nd deg ree m urder co nvictions u nder the doctrine. See Harper v.
State , 206 Te nn. 509, 3 34 S.W .2d 933 ( 1960); State v. Sum me rall, 926 S.W .2d 2 72, 2 75 (T enn . Crim .
App. 19 95).
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The next significant development in the common law and the statutory law of
transferred intent in this state occurred in Sullivan v. State, 173 Tenn. 475, 121 S.W.2d
535 (1938). The Court upheld the conviction for deliberate and premeditated murder
where the defendant attempted to shoot his brother and accidentally shot and killed his
brother’s wife who was standing nearby. The Court, however, distinguished Bratton by
noting that the legislature had amended the first degree murder statute to state that
“[e]very murder perpetrated by means of poison, lying in wait, or by any other kind of
willful, deliberate, malicious, and premeditated killing, or committed in the perpetration
of, or attempt to perpetrate, any murder in the first degree, arson, rape, robbery,
burglary, or larceny, is murder in the first degree.” Id. at 537. The Court concluded that
this amendment to the first-degree murder statute fixed the “curious anomaly” created
by Bratton, and held:
It follows that, under the statute as thus amended, when the defendant
shot and killed [the deceased] while he was attempting to perpetrate or
commit murder in the first degree upon the body of [his brother] he
committed murder in the first degree. And the attempt to commit murder
in the first degree upon [his brother] supplies the elements of deliberation
and premeditation; so that the State did not have to show deliberation and
premeditation on the part of defendant to take the life of deceased.
Id.
Finally, in Harper v. State, 206 Tenn. 509, 334 S.W.2d 933 (1960), the Court
indirectly commented on the transferred intent doctrine, stating that “[t]he law is that if
an unlawful act directed at a particular person for the purpose of taking his life
accidentally brings about the death of a third person against whom no injury was
intended the party inflicting the act is guilty to the same extent as if he had a specific
intention to take the life of the person who was killed.” Id. at 936. This language is
cited by the concurring judge in the Court of Criminal Appeals’ opinion in this case. The
Harper case, however, involved second degree murder. Id. at 934.
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In our view, the common law history of the transferred intent rule has little
application under our modern statutory law. At the time of the offense committed by
Millen, first degree murder included:
(a)(1) An intentional, premeditated and deliberate killing of another; or
(2) A reckless killing of another committed in the perpetration of, or
attempt to perpetrate any first degree murder, arson, rape, robbery,
burglary, theft, kidnapping or aircraft piracy.
Tenn. Code Ann. § 39-13-202 (1991). The authoring judge of the Court of Criminal
Appeals’ opinion determined that the statute did not limit its application to the intended
victim and, in fact, used the term “another” in (a)(1) to encompass any victim. While we
disagree with this broad construction of the statute, we nevertheless conclude that the
first degree murder statutes apply in cases like this one without resort to the common
law doctrine of transferred intent.5
In our view, prosecuting these “unintended victim” cases as felony murder would
appear to be the most appropriate application of the statute. The plain meaning of the
felony murder statute is that a killing in the course of an attempted first degree murder
is first degree felony murder. If the prosecution establishes that a defendant attempts
to commit the premeditated and deliberate first degree murder of a specific victim but
instead kills an unintended victim, the defendant may be guilty of first degree felony
murder.6 This result is plain from the statutory definition of the crime, without resort to
5
It appears that other jurisdictions likewise have found support for the transferred intent doctrine
within the ap plicable sta tutory langua ge gove rning first de gree m urder an d its elem ents. See, e.g., Ala.
Code § 13A-6 -2(a) (19 94) (“[a] pe rson co mm its the crim e of m urder if . . . [w]ith inten t to cause the death
of another person, he caus es the death of that person or of another person”); Ariz. Rev. Stat. § 13-203
(1997) (“[i]f intentionally causing a particular result is an element of an offense, and the actual result is not
within the int entio n or c onte mp lation of the pers on, th at ele me nt is e stab lished if . . . [t]he actu al res ult
differs from that intended or contemplated only in the respect that a different person . . . is injured or
affecte d”); Ky. Rev . Stat. Ann. § 507.020 (Michie 1 990) (“[a] p erson is guilty of mu rder wh en . . . [w]ith
intent to cause the death of another person, he causes the death of such person or of a third person”);
720 Ill. Com p. Stat. 5/9-1 (a) (199 3) (“[a] pers on . . . com mits first d egree m urder if, in pe rform ing the ac ts
which cause the death . . . he either intends to kill or do great bodily harm to that individual or another”); 39
N.Y. Penal Law § 125.27 (McKinney 1998) (“[w]ith intent to cause the death of another person he causes
the death of such person or of a third person”). See also Model Penal Code § 2.03(2)(a) (1962). Other
jurisdictions simply ap pear to re tain the co mm on law do ctrine. See, e.g., Poe v. S tate, 671 A.2d 501 (Md.
1996).
6
The only remaining element under the statute applicable to this case is that the killing be
reckless, an element that is virtually certain to be satisfied if the underlying predicate felony is attempted
first degre e mu rder. Mo reover, the reckles s elem ent is no lon ger con tained in first d egree fe lony mu rder.
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the legal fiction of transferring the defendant’s intent from the intended victim to
another.
The statutes, however, further make clear that a defendant may also be charged,
tried, and convicted of premeditated and deliberate murder as well. The legislature has
broadly defined an “intentional” act as: “a person who acts intentionally with respect to
the nature of the conduct or to a result of the conduct when it is the person’s conscious
objective or desire to engage in the conduct or cause the result.” Tenn. Code Ann.
§ 39-11-302(a) (1991) (emphasis added). A plain reading of this statute as applied to
first degree murder indicates that a defendant’s conscious objective need not be to kill a
specific victim. Rather, the statute simply requires proof that the defendant’s conscious
objective was to kill a person, i.e., “cause the result.” In short, if the evidence
demonstrates that the defendant intended to “cause the result,” the death of a person,
and that he did so with premeditation and deliberation, then the killing of another, even
if not the intended victim (i.e., intended result), is first degree murder.
Here, as the Court of Criminal Appeals concluded, the evidence was clearly
sufficient to support the elements of the offense. Millen’s actions -- expressing his
intent to “blast” Tony Gray, obtaining a gun and ammunition in advance, proceeding to
the scene where Tony Gray was later present, pursuing the car in which Gray was
riding, and firing several gunshots at the car -- establish that Millen’s conscious
objective was to engage in the conduct as well as to achieve the result of killing Gray.
Moreover, the evidence established that Millen’s intentional conduct was accompanied
by premeditation, i.e., the exercise of reflection and judgment, and deliberation, i.e., a
cool purpose. Tenn. Code Ann. § 39-13-201 (1991). Analyzing the evidence in this
case under the statutes as written therefore demonstrates that Millen was guilty of
premeditated and deliberate first degree murder, even though he killed an unintended
victim.
Tenn . Code A nn. § 39- 13-202 (a)(2) (19 97).
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CONCLUSION
The Tennessee statutes governing first degree murder, as written, apply to
cases in which a defendant intends to kill a specific victim but instead kills an
unintended third party. The most obvious application of the first degree murder statute
is that killing an innocent bystander during an attempt to perpetrate first degree murder
constitutes felony murder. Alternatively, if the defendant kills an innocent bystander,
the evidence may satisfy the elements of intent, premeditation, and deliberation,
particularly given the broad definition of “intentionally,” which includes the conduct or
result. Such is the case here.
The Court of Criminal Appeals’ judgment is affirmed. Costs of appeal shall be
paid by the defendant, for which execution shall issue if necessary.
__________________________________
RILEY ANDERSON, CHIEF JUSTICE
CONCUR:
Drowota, Birch, Holder, and Barker, JJ.
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