Poe v. State

HARRELL, Judge. On 27 January 1994, appellant, James Allen Poe, was convicted by a jury in the Circuit Court for Cecil County (Cole, J., presiding) of first degree murder of Kimberly Rice and attempted first degree murder of Karen F. Poe. Appellant was sentenced on 18 March 1994 to life imprisonment without parole on the first degree murder count, and thirty years consecutive for the attempted first degree murder count. Appellant filed a timely notice of appeal to this Court.

ISSUES I. Did the court properly deny appellant’s motions for judgment of acquittal?

II

Did the court properly instruct the jury as to the doctrine of transferred intent?

III

Did the court properly instruct the jury as to murder and attempted murder?

IV

Did the court properly instruct the jury as to reasonable doubt? V. Did the court properly instruct the jury as to the substantive evidence value of prior inconsistent statements?

VI

Did the court properly sentence appellant? FACTS Appellant and Karen F. Poe were married for eleven years and had four children. In the spring of 1993, they separated and appellant moved out of their residence at 270 Hopewell Road, Rising Sun, Maryland, leaving Ms. Poe with the four children. After initiating divorce proceedings, Ms. Poe began ¹⁴⁰ co-habitating with her boyfriend, Duane Rice, at 270 Hopewell Road.

Mr. Rice’s two children, Jason and Kimberly, visited him there every other weekend and every other Wednesday. On 9 August 1993, Donna Biggs, Ms. Poe’s half-sister, and her boyfriend, Michael Sponseller, visited Ms. Poe at 270 Hopewell Road and spent the night. At that time, there were six children in the house, Ms. Poe’s four children and Jason and Kimberly Rice. The next day, 10 August 1993, appellant arrived at 270 Hopewell Road sometime between noon and 1:00 p.m. to take his four children fishing or swimming. 1 After the children got into appellant’s car, appellant and Ms. Poe began to argue.

Ms. Poe testified that she did not want him to take the children because she “heard he was going to Florida” and “didn’t like his girlfriend.” She explained that she “wasn’t going to share [her] kids with no other woman.” As the argument progressed, Ms. Poe threatened to call the police to “get him off the property.” Ms. Biggs testified that, at this time, she was sweeping the children’s living room on the ground level in the front of the house when Ms. Poe came inside the house to make a 911 call. 2 Ms. Poe then went back outside and continued arguing with appellant. After a short time, she returned to make another call to the police. Ms. Biggs testified that she looked out the front window and saw appellant “going in the trunk.” She asked Ms. Poe “what was he getting,” to which she responded, “he carries a gun.” Appellant returned to the front of the house with a shotgun. Ms. Biggs explained that “next thing [she knew she looked] up in front of the screen door and [appellant] has got the gun pointed in the house.” Appellant ¹⁴¹ then exclaimed “take this, bitch,” and shot Ms. Poe, who was standing in the center hallway leading to the front door.

Ms. Biggs immediately sought cover behind a chair in the adults’ living room. She testified next that she “peeked out the door” and saw appellant reload the gun. She immediately retreated, crouched behind a nearby couch, and began praying. She then heard another shot and something hit the floor. 3 The four Poe children ran into the house.

Mr. Sponseller went upstairs to get a towel for Ms. Poe, as he “was close enough to see the damage they had done to her.” Ms. Poe met Mr. Sponseller on the stairs and they proceeded to wrap her arm with a towel. As they got to the bottom of the stairs, Mr. Sponseller explained that he heard Ms. Poe state that “Kimberly was shot.” Noticing the extensive injuries to Kimberly, 4 who was lying in the kitchen, Mr. Sponseller called 911. While on the telephone, he witnessed appellant get into his vehicle and drive away. Maryland State Trooper Thomas Beman was one of the officers responding to the scene.

He testified that he observed three holes in the front screen door of the house and exit holes in the back door of the house. Additionally, an empty shell casing was recovered next to the front door. Beman also explained that he found a shotgun in an embankment approximately 450 feet from the front door of the house. Pennsylvania State Trooper John A. Litchko testified that, on 10 August 1993, he stopped appellant in Chester, Pennsylvania.

According to Trooper Litchko, appellant immediately stated that “he didn’t mean to do it, that he loved kids.” While he was being searched, appellant also stated that “he ¹⁴² threw the gun out the window close to the scene.” Appellant was then placed in the police vehicle, whereupon he stated that “|j]t was an accident, [he] didn’t mean to do it. [He] was holding the gun in the air and the gun went off.” In a subsequent statement to Pennsylvania police, appellant explained: I did not mean to hurt anyone. I love them all down there. What happened was that I went to see my wife and kids, who I am separated from at this time. I wanted to visit the kids and she told me to get out of there or she was going to call the police.

I went to my car and got out my 12-gauge shotgun and I accidentally fired it into the house. I don’t know what I hit. I just heard them start yelling and I was scared so I jumped into my vehicle and took off____ Two hours later, appellant made a second statement concerning the incident. He explained that after Ms. Poe threatened to call the police, he retrieved the gun from his vehicle to dispose of it so that “he [would not] be caught with a shotgun.” He changed his mind, however, and was about to return the gun to the vehicle when he “tripped over his feet and the shotgun [discharged].” When questioned by police about the discrepancies between his first and second statements, appellant responded: “Whatever.

She wasn’t going to let me see the kids and what’s the use of living if you can’t see your kids.” DISCUSSION Although appellant presents issues I and II as one argument in his brief, we shall consider each issue separately to facilitate our discussion. I. ' Appellant contends that the circuit court improperly denied his motions for judgment of acquittal. He argues that “[n]o substantive evidence was adduced that the appellant saw Kimberly Rice, or that he had any intention to harm.” In his brief, however, appellant concedes that “the evidence, in the ¹⁴³ light most favorable to the State, would be that the appellant intentionally fired at his wife.” Consequently, appellant has waived his sufficiency claim as to attempted murder of Ms. Poe. Therefore, we discuss only appellant’s argument challenging the sufficiency of the evidence to convict him of murder in the first degree of Kimberly Rice.

The State, however, argues that appellant failed to preserve this issue for appeal. Specifically, the State contends that appellant, at the close of the State’s case, made a motion for judgment of acquittal only as to the attempted first degree murder charge, and not the first degree murder charge. Moreover, argues the State, at the close of all the evidence, appellant renewed his motion for judgment of acquittal, but again only as to the attempted first degree murder charge. Therefore, the State contends that “any issue regarding [appellant’s] motion for judgment of acquittal as to the charges related to Kimberly Rice is not properly before [this] Court.” We agree.

At the close of the State’s case, counsel for appellant argued insufficiency of the evidence only as to the attempted first degree murder charge, but made no argument on the first degree murder charge. Counsel for appellant stated: [COUNSEL FOR APPELLANT]: I want to make a motion and argue on the point of first degree attempted murder of Karen Poe. I don’t believe there is any evidence produced that I heard that would support all the elements of premeditation, intention to kill, premeditation. [COUNSEL FOR APPELLANT]: I wanted to make that argument on that. I think that is the only one I really have a point on.

One other point, I wanted to bring up the fact, if going on transferred intent for attempted murder to murder— As explained in Fraidin v. State, 85 Md.App. 231, 244 , 583 A.2d 1065 , cert. denied, 322 Md. 614 , 589 A.2d 57 (1991), “[i]n a jury trial, the only way to raise and to preserve for appellate review the issue of the legal sufficiency of the evidence is to ¹⁴⁴ move for a judgment of acquittal on that ground.” As appellant failed to make any motion for judgment of acquittal on the murder count, he has waived his sufficiency argument on appeal. 5 II. Appellant next argues that the circuit court improperly instructed the jury as to the doctrine of transferred intent. Appellant contends that “[t]he commission of the elements of the crime on [Karen Poe] does not allow for the multiplication of that intent to [Kimberly Rice] through the doctrine of transferred intent.” The State suggests, however, that appellant’s failure to object to the circuit court’s reinstruction on transferred intent “indicated that the instruction eventually met with his approval.” Therefore, argues the State, appellant failed to preserve his challenge to the transferred intent instruction. We shall first discuss the State’s preservation argument, and then, as necessary, address the merits of appellant’s claim.

Failure to Preserve At the close of all the evidence, the trial judge indicated that he intended to give a transferred intent instruction to the jury. Counsel for appellant promptly objected, arguing that transferred intent could not be properly applied to this case. Notwithstanding this objection, the trial judge instructed the jury on transferred intent and its application to the facts of the instant case. 6 After the jury was instructed, counsel for appellant again objected to the transferred intent instruction. Counsel then made the alternative argument that the verdict sheet be altered to reflect whether the jury ¹⁴⁵ considered the doctrine of transferred intent in making its determination.

In response to this argument, the trial judge, although refusing to alter the verdict sheet, agreed to tell the jury that “if they’re going under transferred intent, they’re going to have to infer that he intended to kill her.” The jury was then given further instruction accordingly. 7 Counsel for appellant responded, “That’s better.” The State contends that appellant’s failure to except to this last reinstruction was indicative of an acceptance and approval of the amended instruction used. See Collins v. State, 318 Md. 269, 284 , 568 A.2d 1 cert. denied, 497 U.S. 1031 , 110 S.Ct. 3296 , 111 L.Ed.2d 805 (1990). We disagree. It is clear from the record that the trial judge’s reinstruction on transferred intent was in lieu of altering the verdict sheet, as requested by appellant, to indicate whether the jury considered the doctrine of transferred intent in making its determination.

While appellant’s apparent acquiescence to this instruction could be construed as a failure to preserve appellant’s objection to the verdict sheet, it does not waive his right to argue on appeal the correctness of the trial judge’s transferred intent instruction. Therefore, appellant’s objection to the trial judge’s instruction on transferred intent was properly raised and preserved for our review. The Doctrine of Transferred Intent Appellant argues that the trial judge’s instruction to the jury on transferred intent was error because “the intent of the attempted murder on Karen Poe could not also be transferred as the intent in the murder of Kimberly Rice.” The State contends that the doctrine is applicable and was properly expounded to the jury by the trial judge. The jury was instructed as follows: Basically, the intent follows the bullet.

If I intend to kill ... Karen in this case, and my mark’s not good, or bullet goes through, and I kill somebody else, and they die instead ¹⁴⁶ of Karen, that’s still first degree murder on the second one because the law does not protect a person who has bad aim or is unfortunate enough to have the bullet go through the first. That is called transferred intent. The intent follows the bullet____ Of course, first degree murder you have to have a fully-formed purpose ... to kill.

It’s not the intent to commit serious bodily harm in that sense, that would be transferred, but it would be on the second degree verdict. If you would find, basically, from the evidence beyond a reasonable doubt that Defendant would otherwise be guilty of murder in the first degree or second degree on Karen, and by chance hit [Kimberly], then he is still guilty of first or second degree on [Kimberly]. I’m going to read—where a person intends to kill one person but instead kills another person—to put it a different way, where the deceased, Kimberly, is not the intended victim, the law is such as homicide partakes the quality of the original act. The guilt of the accused is exactly what it would have been had the shot been fired at the intended victim, instead of the person actually killed.

The fact that the person actually killed was killed instead of the intended victim is immaterial. The only question is what would have been the degree of guilt if the result intended had actually been accomplished. The intent is transferred to the person whose death has been caused; that’s another way of saying—some people say that the intent follows the bullet. The person is not protected because they have a bad aim or the bullet goes through one, hits another one.

If we find from the evidence—if you find from the evidence beyond a reasonable doubt that the Defendant would have been otherwise guilty of first degree of Karen Poe, you will have a verdict in the first degree. If you determine from the evidence beyond a reasonable doubt that he would otherwise be guilty of first degree of Karen Poe, and you find Kimberly died as a result of the bullet striking her, ¹⁴⁷ fired by the Defendant, then you must find the defendant guilty of first or second degree murder. Basically, if you do not find him guilty of assault with intent to murder in the first degree of Karen Poe, then you are— do not find—then there would be nothing to transfered [sic] to Kimberly____ On second degree, you technically—only difference there would be if you find that he is not guilty of attempted second degree on Karen Poe, you may or may not have transfer of intent because there you could have the intent to kill and the intent to inflict serious bodily harm, if you find him not guilty of attempted murder, because you might find intent was to inflict serious bodily harm—but that part would not transfer, second degree on Kimberly ... if you find him not guilty. The transferred intent doctrine is a legal fiction established to attribute liability to a defendant who, intending to kill one person, mistakenly kills another instead.

See Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 3.12(d) (1986 & 1995 Supp.). The purpose of the rule is to ensure the adequate punishment of those who accidentally kill innocent bystanders, while failing to kill their intended victims. Id. The transferred intent doctrine is “borne of the sound judicial intuition that such a defendant is no less culpable than a murderer whose aim is good.” People v. Birreuta, 162 Cal.App.3d 454 , 208 Cal.Rptr. 635, 639 (1984).

The Court of Appeals recognized the continuing viability of transferred intent in Maryland common law in Gladden v. State, 273 Md. 383 , 330 A.2d 176 (1974). In that case, Gladden fired several shots without hitting his intended victim, Siegel. Instead, one of the bullets struck and killed Nixon, a twelve-year-old boy who was seated on the living room couch of his nearby home. At trial, the jury was instructed that if they found that “the Nixon child died as a result of a bullet or bullets striking him fired by this defendant, then you should find the defendant guilty of murder in the first degree.” Id. ¹⁴⁸ at 385-86 , 330 A.2d 176 .

Gladden was convicted of first degree murder and appealed. The Court of Appeals explained that “upon the application of the principles of common law and the overwhelming weight of judicial authority, ... the doctrine of ‘transferred intent’ is the law of Maryland and that the mens rea of a defendant as to his intended victim will carry over and affix his culpability when such criminal conduct causes the death of an unintended victim.” Id. at 405 , 330 A.2d 176 . Thus, the Court concluded: Where, as here, there was evidence that the conduct of the petitioner, Gladden, in a reprobated state of mind, was willful, deliberate and premeditated toward Siegel, the mens rea for murder in the first degree was established, notwithstanding that the decedent was an unintended victim. All the elements of an intentional first degree killing were present.

His responsibility for the commission of conduct proscribed by the law cannot extenuate the offense because he did not kül his supposed enemy. The purpose and malice with which shots were fired are not changed in any degree by circumstances showing that they did not take effect—because of bad aim—upon Siegel. Gladden’s culpability under the law and the resultant harm to society is the same as if he had accomplished the result he intended when he caused the death of the innocent youngster. The punishment is imposed in accordance with the culpability of the accused under the law and justice is served by punishing Mm for a crime of the same seriousness as the one he undertook to commit.

Id. at 404-05 , 330 A.2d 176 (footnote omitted). In State v. Wilson, 313 Md. 600 , 546 A.2d 1041 (1988), the Court addressed the specific issue of whether the doctrine of transferred intent applies to the criminal offense of attempted first degree murder. In that case, the Wilson brothers became involved in a dispute with Marvin Brown. Brown fled the scene after the Wilsons threatened to pistol-whip him.

Both Wilsons then fired several shots towards Brown, who was able to avoid being hit. One of the errant shots hit Juan ¹⁴⁹ Kent, an innocent bystander, causing paralysis and brain damage. The Wilsons were charged with, inter alia, attempted first degree murder of both Brown, the intended victim, and Kent, the unintended victim. The Wilsons were convicted on both counts and appealed their conviction of attempted murder of Kent.

The Court of Appeals affirmed, holding that “the doctrine of transferred intent applies to the crime of attempted murder and that the mens rea or specific intent of a defendant as to his intended victim will carry over and determine his culpability when such criminal conduct causes injury to an unintended victim.” Id. at 609 . In essence, the Court sanctioned the application of transferred intent where the crime committed against the intended victim was the same as that committed against the unintended victim. In Ford v. State, 330 Md. 682 , 625 A.2d 984 (1993), the Court disagreed with Wilson and refined and narrowed the application of the doctrine of transferred intent. In that case, Ford was charged in a ninety count indictment with, inter alia, assault with intent to disable, Md.Code Ann., Art. 27, § 386 (1992 Replacement Volume & 1994 Supp.), for hurling large landscaping rocks at vehicles travelling on a high speed, interstate highway.

The trial judge instructed the jury that if it found that Ford assaulted with intent to disable the drivers, this intent could be transferred to the passengers. The Court of Appeals, however, held that “the application of transferred intent to the crime of assault with intent to disable is ... precluded by the underlying nature of the crime.” 8 Id. at 710, 625 A.2d 984 . The Court explained: It is a fundamental tenet of criminal law that a completed crime requires the concurrence of a mens rea, a guilty mind, and an actus reus, a bad act. The purpose of transferred ¹⁵⁰ intent is to link the mental state directed towards an intended victim, i.e., the intent to kill, maim, or disable that person, with the actual harm caused to another person.

In effect, transferred intent makes a whole crime out of two component halves. Id. The Court concluded that the doctrine should only apply when, without transferred intent, “the defendant could not be convicted of the crime at issue because the mental and physical elements do not concur as to either the intended or the actual victim.” Id. at 711 , 625 A.2d 984 . “Where the crime intended has actually been committed against the intended victim, transferred intent is unnecessary and should not be applied to acts against unintended victims.” Id. at 712 , 625 A.2d 984 (citing People v. Birreuta, 162 Cal.App.3d 454 , 208 Cal.Rptr. 635 (1984) (transferred intent not applied where defendant intended to, and did, kill one victim, and also accidentally killed a second unintended victim)).