State v. Brady

BELL, Chief Judge. In this case, we address whether the doctrine of transferred intent applies to attempted murder when an unintended victim is injured, but not killed. The Court of Special Appeals, in an unreported opinion, held that the doctrine does not apply in that situation. We agree and, therefore, shall affirm.

A. Several shootings occurred on May 3, 1998, in the 5600 block of Lothian Drive in Baltimore City. James Jones (“James”), and Gregory White (“White”) were inside the residence at 5649 Lothian Drive, while JoAnn Lee (“Lee”) and Jonathan Jones (“Jonathan”) were seated in a car outside the residence. The shots were fired into the first floor apartment and also into the car in which Lee and Jonathan were seated. Broken glass from the shattered car windows injured Jonathan, and White, a teenager who was watching television in the apartment, was shot in the legs as he attempted to run upon observing James running through the apartment, followed by two men, who were shooting at him.

Witnesses identified the respondent, Terrell Brady (Brady) as one of the individuals involved in the shootings. Consequently, Brady was arrested and charged, inter alia, with two counts of ⁵⁰⁵ attempted first degree murder, one as to James, the intended victim, and the other as to White, the unintended victim. He was subsequently tried by a jury in the Circuit Court for Baltimore City and convicted of those, and related handgun, charges. At the conclusion of the case and after instructing the jury with respect to attempted murder, the trial court gave the following instruction on transferred intent: “If there is an intent to kill one victim, in the course of the attack on that victim—strike that.

If there is an intent to kill a specific person or victim, in the course of an attack on that intended victim, another person is injured instead, the intent to kill the intended victim may be transferred to the act committed against another victim. It’s known as transferred intent. Let me give you an example of that. I’m a terrible shot, and I intend to kill my court clerk.

I aim, fire, miss her, strike Mr. Walker, the intent to kill my court clerk is transferred from her to Mr. Walker. But ... the intent must be triggered toward a specific person, and the act must be triggered toward a specific person at that time.” During its deliberations, the jury sent the court a note seeking clarification on that issue. Acknowledging that it was “having difficulty with the ‘TRANSFER,’ ” the jury wanted to know, “if one is not the intended victim but becomes the victim, does the law demand the transference of the charge?” The trial judge responded to the question with the following instruction: “The doctrine of transfer intent applies to specific intent to murder. Transfer intent means that if one specifically intends injury to another person, and in an effort to accomplish the injury or harm upon a person, other than—strike that.

Transfer intent means that if one specifically intends injury to another person, and in an effort to accomplish the injury, or harm upon another person, someone other than the person intended to be injured, he is guilty of the same kind of crime as if his aim had been more accurate. The ⁵⁰⁶ fact that a person actually was killed instead of [the] intended victim is immaterial and the only question is what would have been [the] intended victim is immaterial and the only question is what would have been [the] degree of guilt. If the result intended actually had been accomplished, the intent to transfer to the person whose death or harm has been caused. Now that is [the] law in the murder case.

Remember, your [sic] are dealing with an attempt to murder. As to attempt to murder, intent to murder, same principle applies.” Neither the State nor defense counsel objected to this instruction. As indicated, Brady was convicted of the attempted murder charges and the related handgun charges. He was sentenced to consecutive terms of twenty and twenty-five years imprisonment for the attempted murder convictions and five and fifteen years imprisonment for the two handgun convictions.

Brady noted an appeal to the Court of Special Appeals, which, in an unreported opinion, held that the Circuit Court committed reversible error by instructing the jury that the doctrine of transferred intent applied to the attempted murder of White. We granted the State’s petition for writ of certiorari. State v. Brady, 381 Md. 674 , 851 A.2d 594 (2004). We shall affirm.

B. Appellate courts have the discretion to recognize plain error in jury instructions. See Maryland Rule 4-325(e), which provides: “(e) Objection. No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection. Upon request of any party, the court shall receive objections out of the hearing of the jury.

An appellate court, on its own initiative or on the suggestion of a party, may however take cognizance of any ⁵⁰⁷ plain error in the instructions, material to the rights of the defendant, despite a failure to object.” Pursuant to this Rule, in order for an appellate court to exercise plain error review, there must be an “error,” it must be “plain,” and it must be “material to the rights of the defendant.” Maryland Rule 4-325(e). Interpreting Rule 757 h, 1 a predecessor Rule to Rule 4-325, this Court characterized the instances when an appellate court should take cognizance of unobjected to error as “compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial,” State v. Hutchinson, 287 Md. 198, 202 , 411 A.2d 1035, 1038 (1980), and as those “which vitally affect[ ] a defendant’s right to a fair and impartial trial,” State v. Daughton, 321 Md. 206, 211 , 582 A.2d 521, 523 (1990), citing Hutchinson, 287 Md. at 202 , 411 A.2d at 1037-38 , thus excluding the exercise of the discretion “as a matter of course,” id., and errors that are “purely technical, the product of conscious design or trial tactics or the result of bald inattention.” Id. at 203 , 411 A.2d at 1038 . This Court has further explained: “[T]he appellate courts of this State have often recognized error in the trial judge’s instructions, even when there has been no objection, if the error was likely to unduly influence the jury and thereby deprive the defendant of a fair trial. The premise for such appellate action is that a jury is able to follow the court’s instructions when articulated fairly and impartially.

It follows, therefore, that when the instructions are lacking in some vital detail or convey some prejudicial or confusing message, however inadvertently, the ability of the jury to discharge its duty of returning a true verdict based on the evidence is impaired. The responsibility for avoiding such circumstance rests with the trial judge who must advise the jury on every matter stemming from the ⁵⁰⁸ evidence which is vital to its determination of the issues before them.” Id. at 204 , 411 A.2d at 1039 . See Sims v. State, 319 Md. 540, 549 , 573 A.2d 1317, 1321 (1990); Dawkins v. State, 313 Md. 638, 642 , 547 A.2d 1041, 1043 (1988); Squire v. State, 280 Md. 132, 134 , 368 A.2d 1019, 1020 (1977); Dempsey v. State, 277 Md. 134, 142 , 355 A.2d 455, 459 (1976). See also Jones v. State, 379 Md. 704, 713 , 843 A.2d 778, 784 (2004) (holding, citing Hutchinson, 287 Md. at 202 , 411 A.2d at 1038 , that there is no fixed formula for determining when discretion should be exercised, and there are no bright line rules to conclude that discretion' has been abused).

Brady argues in this Court, as he did in the Court of Special Appeals, that the flawed jury instruction was an “error” in that it misstated the doctrine of transferred intent, it was “plain” in that it is “obvious” or “clear,” United States v. Olano, 507 U.S. 725, 734 , 113 S.Ct. 1770, 1777 , 123 L.Ed.2d 508, 519 (1993), and it was “material” because it went directly to the essence of the crime of attempted murder. The Court of Special Appeals agreed, opining: “The error in this case was clearly one of commission. In responding to the jury’s question, the circuit court instructed, in part, that the doctrine of transferred intent that applies in a murder case applies to the crime of attempted murder. In light of the jury’s direct question, we are persuaded that appellant’s right to a fair trial on the charge of attempted murder of White was fundamentally compromised. * * * * “Based on the verdict, it is apparent that the jury discredited [the] appellant’s explanation about what occurred at [the] apartment.

Although the State did not argue that the intent to kill James was transferred to White, we cannot conclude beyond a reasonable doubt that the jury did not transfer the intent to murder James in finding the appellant guilty of the attempted murder of White. Indeed, the jury sent a note asking: ‘[I]f one is not the intended victim but ⁵⁰⁹ becomes a victim, does the law demand a transference of the charge?’ The circuit court should not have instructed the jury that the doctrine of transferred intent applied to attempted murder.” The State argues that the exercise of plain error review by the Court of Special Appeals was inappropriate. It contends that, because Brady did not, at trial, object to the jury instruction at the time, his claim is unpreserved. See Conyers v. State, 354 Md. 132, 167 , 729 A.2d 910, 928-929 (1999).

Moreover, it argues that even if the trial court erred in its instruction, plain error is not warranted because, while discretionary review of plain error may be exercised by the appellate courts if the circumstances are “compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial,” 354 Md. at 171 , 729 A.2d at 931 , there is nothing compelling or exceptional in this case to justify such exercise. To support this argument, the State explains that Brady’s conviction was supportable without resorting to transferred intent, and that the prosecutor did not, in his case, rely on the theory of transferred intent. Furthermore, the State argues that because the judge also instructed the jury on attempted first and second degree murder, and the Court of Special Appeals found that Brady’s conviction of attempted first degree murder was sufficient, the instruction on transferred intent did not prejudice Brady in any way. As the intermediate appellate court recognized and held, and Rule 4-325 confirms, it is fully within the power of the intermediate appellate court to exercise plain error review when there are circumstances that are “compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial.” Conyers, 354 Md. at 171 , 729 A.2d at 931 .

We agree with the Court of Special Appeals that the circumstances in the case sub judice meet those requirements, and reject the State’s arguments that, because the conviction was supportable on other grounds, the additional instruction did not prejudice Brady. We have held previously that the accused is prejudiced when a trial court inaccurately supplies or ⁵¹⁰ omits, in a jury instruction, an element of a charged offense. See Richmond v. State, 330 Md. 223 , 623 A.2d 630 (1993) (holding that plain error existed where trial court instruction on malicious wounding with intent to disable omitted a specific intent instruction); Franklin v. State, 319 Md. 116 , 571 A.2d 1208 (1990) (holding that plain error existed where trial court instructed jury that a specific intent to kill was not required to establish assault with intent to murder); Dawkins v. State, 313 Md. 638 , 547 A.2d 1041 (1988) (holding that plain error existed when the trial court omitted the essential element of knowledge from its instruction defining possession of a controlled substance). See also Vincent v. State, 82 Md.App. 344 , 571 A.2d 874 (1990) (instructing the jury that the offense of malicious shooting with intent to disable was a “crime of violence” that could be used as a predicate offense for the crime of use of a handgun in the commission of a crime of violence was plain error).

This approach has also been used by federal appellate courts. See, e.g., United States v. Perez, 43 F.3d 1131 (7th Cir.1994) (holding that the district court’s instruction to the jury on assault with intent to commit murder that it could convict without finding a subjective specific intent to kill, as long as it found reckless and wanton conduct, was plain error); United States v. Stansfield, 101 F.3d 909 (3rd Cir.1996) (holding that omission from jury instruction of a substantial element was plain error). C. Having determined that the plain error review exercised by the Court of Special Appeals was not an abuse of discretion, we now consider whether the doctrine of transferred intent applies to the crime of attempted murder. It has been well settled in this State since Gladden v. State, 273 Md. 383 , 330 A.2d 176 (1974), that the doctrine of “transferred intent” is the law in Maryland, and that it acts as a substitute for the willfulness, deliberation, and premeditation required to make out a case of murder in the first degree.

In that case, the defendant, in an attempt to kill his intended ⁵¹¹ victim, shot and killed a twelve-year old bystander. The question this Court had to decide was whether the defendant, in that circumstance, was guilty of first degree murder; whether, in other words, the intent he harbored for his intended victim would carry over and attach to the death of his unintended victim. We held that he was and that it did, 273 Md. at 404-405 , 330 A.2d at 188 , joining, in so doing, the “singular unanimity” of the majority of state decisions on the subject, in holding: “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 blow fallen upon the intended victim instead of the bystander.’ Under this rule the fact that the bystander was killed instead of the victim becomes immaterial, and the only question at issue is what would have been the degree of guilt if the result intended had been accomplished.” 273 Md. at 391-392 , 330 A.2d at 180-181 . Focusing specifically on the facts of Gladden’s case and rejecting Gladden’s argument that his intent as to his intended victim could not be transferred, the Court stated: “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 ... conduct proscribed by the law cannot extenuate the offense because he did not kill his supposed enemy. The purpose and malice with which the 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 him for a ⁵¹² crime of the same seriousness as the one 'he undertook to commit.” 273 Md. at 404-405 , 330 A.2d at 188 . The doctrine of transferred intent was expanded to include the offense of attempted first-degree murder in State v. Wilson, 313 Md. 600 , 546 A.2d 1041 (1988). In that case, the defendant shot at Marvin Brown, 313 Md. at 601, 546 A.2d at 1042 , but the bullet struck a third person instead, as a result of which that unintended victim was paralyzed. 313 Md. at 602, 546 A.2d at 1042 . Wilson was convicted of two counts of attempted first degree murder; specifically, attempted murder of both Brown, the intended victim, and of the unintended, now-paralyzed, victim. 313 Md. at 602, 546 A.2d at 1042 .

This Court reversed the Court of Special Appeals, which had refused to apply the doctrine of transferred intent, believing it applied only to crimes involving or requiring a general intent. 313 Md. at 602, 546 A.2d at 1042 . Noting that Gladden had established the doctrine of transferred intent in Maryland, id. at 603, 546 A.2d at 1043 , and that “the very crime to which the doctrine was applied in Gladden was first degree premeditated murder, unquestionably a specific, intent crime,” id. at 604, 546 A.2d at 1043 , it rejected the intermediate appellate court’s rationale. Accordingly, this Court opined that the doctrine’s applicability “extended to all situations where a defendant’s intended act (which in all other respects constitutes a crime) ‘affects’ or ‘inflicts harm upon’ an unintended victim.” Id. In so doing, we aligned ourselves with numerous other jurisdictions holding that the transferred intent doctrine applies to attempted murder.

Id. at 607-609 , 546 A.2d at 1045 , citing People v. Neal, 97 Cal.App.2d 668 , 218 P.2d 556 (1950), People v. Humes, 78 Ill.App.3d 255 , 33 Ill.Dec. 797 , 397 N.E.2d 130 (1979), Norris v. State, 275 Ind. 608 , 419 N.E.2d 129 (1981), State v. Thomas, 127 La. 576 , 53 So. 868 (1910), State v. Gillette, 102 N.M. 695 , 699 P.2d 626 (1985). Thus, this Court concluded that it was unnecessary for the State to show that the defendant’s malice was directed against ⁵¹³ the injured party in order to prove an attempted murder charge. It explained, referencing Gladden : “In Maryland, criminal attempt requires a specific intent to commit the crime attempted. The Court of Special Appeals interpreted this requirement to mean that the crime of attempted murder requires a specific intent to kill the victim named in the indictment.

We disagree. To be sure, attempted murder is a specific intent crime. However, the intent required is merely the intent to kill someone. ❖ * * “[I]t is clear that the only difference between the crime of attempted murder and completed first degree (specific intent to kill) murder is that in the former the victim survived whereas in the latter the victim died. Moreover, the criminal conduct required to constitute an attempt to commit murder must be defined in terms of the conduct required to constitute the completed crime.

In other words, a defendant such as Wilson, in order to be guilty of an attempted first degree (premeditated) murder, must harbor the same mens rea as that required for a completed murder. “Murder is homicide committed with malice aforethought. Gladden, supra, 273 Md. at 403 , 330 A.2d at 187 . In Wilson’s case, the State proved the malice element by establishing Wilson’s specific intent to kill Marvin Brown. Therefore, since under our decision in Gladden[,] Wilson would have been guilty of premeditated murder had the unintended victim ... died, the elements of attempted murder were satisfied when [the victim] survived.” 313 Md. at 605-606, 546 A.2d at 1043-1044 (footnote and some citations omitted).

The Wilson holding was called into question with the filing of our decision in Ford v. State, 330 Md. 682 , 625 A.2d 984 (1993). In Ford , this Court, albeit in dictum, 2 stated that ⁵¹⁴ Wilson should not have applied transferred intent to attempted murder. 330 Md. at 714, 625 A.2d at 999 . Ford was convicted in the Circuit Court for Prince George’s County of, inter alia, eleven counts of assault with intent to disable, resulting from his participation in a scheme whereby traffic on the Capital Beltway was caused to slow and large rocks were thrown at cars, which resulted in sever damage to the cars and injury to the occupants of the cars. 330 Md. at 689, 625 A.2d at 987 . At trial, the judge instructed the jury that if it found that Ford had assaulted with an intent to disable the drivers of the cars, then this intent could be transferred to the passengers. 330 Md. at 708-709, 625 A.2d at 996-997 .

Ford did not object to this instruction, and this Court concluded that the