Williams v. State

On Reconsideration * CATHELL, Judge. Curtis Maurice Williams, appellant, was convicted by a jury in the Circuit Court for Anne Arundel County of assault with intent to maim Royce Sollers, reckless endangerment, assault and battery, and of the use of a handgun in the commission of a felony. The reckless endangerment and assault and battery convictions were merged into the assault with intent to maim ⁵⁷ conviction prior to sentencing. Appellant was sentenced to concurrent sentences of eight years with two years suspended.

Appellant presents three issues: I. Whether a new trial is required when the judge instructs the jury on transferred intent when the doctrine of transferred intent does not legally apply to the crimes charged.

II

Whether a new trial is required when the judge refuses to instruct the jury on self defense even though the jury reasonably could have concluded that the complainant and his companion threatened the defendant and that he feared they were advancing on him with a concealed gun.

III

Whether a defendant is entitled to a new trial when the judge improperly allowed the prosecution to bolster the trial testimony of a weak witness with a prior written statement that fell under no hearsay exception. The Facts Both appellant and the State have included extensive factual statements in their briefs. We shall recite only those facts that are pertinent to our resolution of the issues presented. Appellant and the victim, Royce Sollers, became engaged in a scuffle as they attempted to break up a fight between two women that had itself arisen out of accusations by Sollers’s sister that appellant’s girlfriend had been “messing around” with Sollers.

Sollers left the scene asserting that he would “jump” appellant. Later, on two occasions, Sollers and his friends confronted appellant, once with sticks and pipes, but no actual contact occurred. There was evidence that on one occasion Sollers said he was going to get his “tool,” which appellant and the others took to mean his gun. Accordingly, appellant bought a handgun that, on the date at issue, was in his “sports bag.” On the day that Sollers was shot, two of appellant’s friends were approached by Sollers and Derrick Jones.

There was some evidence that Jones had one of his hands wrapped in a towel, which he began to unravel as he approached appellant’s ⁵⁸ two friends. At this point, another person left to get appellant, who was changing clothes to play basketball. Appellant then approached the scene and, unseen by them, observed the confrontation between his friends and Sollers and Jones. He testified that Jones was unwrapping something from around his arm as if he had a gun concealed beneath the wrapping.

Williams went to his sports bag, got his gun, and shot Sollers. He initially testified that he meant to shoot Jones but, by accident, hit Sollers. Williams was subsequently charged, convicted, and sentenced as we have indicated. I. Whether a new trial is required when the judge instructs the jury on transferred intent when the doctrine of transferred intent does not legally apply to the crimes charged.

The trial judge instructed the jury as follows: In this case there is a concept called transferred intent. Essentially what that means is that if you have three people, A,B and C, and A intends to shoot C, and either accidentally or in the process shoots B, the point is that the intent follows the bullet. The intent is transferred from C to B, the person who was actually shot. All right?

Appellant argues that the instruction was erroneous and constitutes prejudicial error. He proffers our case of Harvey v. State, 111 Md.App. 401 , 681 A.2d 628 , 1 cert. denied, 344 Md. 330 , 686 A.2d 635 (1996), in support of his argument. In Harvey , we noted Harvey’s argument as to the applicability of transferred intent, an argument essentially the same as appellant’s in this case: ⁵⁹ The appellant’s primary contention is that the doctrine of transferred intent is inapplicable to the crime of assault with intent to murder and erroneously relieved the State of its obligation to prove the required mens rea of a specific intent to kill directed at the actual assault victim, Tiffany Evans. Id. at 406 , 681 A.2d 628 .

In Harvey , we agreed, as we do here, that the doctrine of transferred intent does not apply when the unintended victim is not killed. We said in Harvey that the classic case of transferred intent “was that in which lethal force was directed toward an intended victim, missed its target, and killed an unintended victim,” id. at 414 , 681 A.2d 628 , and noted: “[t]hat was the context in which the doctrine was hammered out as part of English common law.” Id. We later opined: The business of “transferring” the mens rea of a specific intent to kill from an intended victim to an unintended victim (or, more properly, simply applying it to the unintended victim) becomes far more complex when dealing with inchoate criminal homicides such as assault with intent to murder, attempted murder (in either degree), and attempted voluntary manslaughter. The complexity is illustrated by the approach initially taken by the Court of Appeals in State v. Wilson, 313 Md. 600 [ 546 A.2d 1041 ] (1988); a correction of course by a fragmented Court of Appeals in Ford v. State, 330 Md. 682 [ 625 A.2d 984 ] (1993); and a revisiting of that correction of course by a similarly fragmented Court of Appeals in Poe v. State, 341 Md. 528 [ 671 A.2d 501 ] (1996).

Harvey, 111 Md.App. at 422-23 , 681 A2d 628 . We later noted that initially the Court of Appeals, in State v. Wilson, 313 Md. 600 , 546 A.2d 1041 (1988), had upheld the doctrine of transferred intent in a case in which the unintended victim was shot but did not die. We then discussed in Harvey that five years after Wilson was decided, the Court of Appeals had made, albeit as dicta, a change in course. We stated: ⁶⁰ Five years after Wilson , a four-judge majority in Ford v. State, 330 Md. 682 [ 625 A.2d 984 ] (1993), in dicta to be sure but in extensive and well-considered dicta, effected a massive correction of course.

It reasoned that the Wilson rationale was incorrect and that the transferred intent doctrine should not have been applied by Wilson to any of the inchoate homicides such as attempted murder or attempted voluntary manslaughter or assault with intent to murder. Judge Chasanow argued that the transferred intent doctrine is appropriate for a consummated homicide perpetrated on an unintended victim but has no similar applicability in the case of inchoate homicides. The. Ford majority stated flatly, 330 Md. at 714 [ 625 A.2d 984 ]: We believe Wilson should not have applied transferred intent to attempted murder.

Harvey, 111 Md.App. at 426 , 681 A.2d 628 . We then considered the Court of Appeals’s then most recent case involving transferred intent, Poe v. State, 341 Md. 523 , 671 A.2d 501 (1996), saying: In Poe v. State, 341 Md. 523, 529 [ 671 A.2d 501 ] (1996), the Court of Appeals summarized its earlier statement in Ford: We stated in Ford that transferred intent does not apply to attempted murder. Id. (disapproving application of the doctrine of transferred intent to attempted murder in State v. Wilson, 313 Md. 600 [ 546 A.2d 1041 ] (1988))____ [T]he doctrine of transferred intent does not apply to attempted murder when there is no death.

Poe made it clear, 341 Md. at 530 [ 671 A.2d 501 ], that when the unintended victim is not killed, the transferred intent doctrine will not apply: In Ford , we made clear that if a defendant intends to kill a specific victim and instead wounds an unintended victim without killing either, the defendant can be convicted only of the attempted murder of the intended victim and transferred intent does not apply. This is not true where, as in the case sub judice, the defendant intends to murder one victim and instead kills an unintended victim. ⁶¹ (Emphasis in original; footnote and citation omitted). The concurring opinion of Judge McAuliffe, joined by Judges Rodowsky and Karwacki, took strong exception to the effort to repudiate Wilson . There were four votes, however, for the repudiation.

The same four-to-three split from Ford also resurfaced in Poe v. Slate, with Judge Raker taking up the cudgels laid down by Judge McAuliffe. We are not bound, of course, by a three-judge dissent nor by the dicta of even a four-judge majority. We are persuaded, however, that the majority’s bottom-line conclusion is the sounder position. It is, after all, only with respect to consummated homicide that the law necessarily must concern itself with a notion like transferred intent.

There is a necessity principle at work that is not present when no death has resulted. Harvey, 111 Md.App. at 426-28 , 681 A.2d 628 (footnotes omitted). We then held in Harvey : The unintended victim, Tiffany Evans, was not killed. It was, therefore, error to have instructed the jury on the subject of transferred intent.

The error was obviously prejudicial in that the State was thereby erroneously relieved of its obligation, on the charge of assault with intent to murder, to prove the required mens rea of a specific intent to kill Tiffany Evans. The conviction for assault with intent to murder must be reversed. Id. at 433-34 , 681 A.2d 628 . The Court of Appeals denied certiorari in Harvey .

The question posed by the State in its petition for certiorari in that case was the identical issue the State now asks us to reconsider: Did the Court of Special Appeals incorrectly find that the trial court erred in instructing the jury regarding the doctrine of transferred intent where the intended target was not hit and the victim, an innocent bystander, was shot but not killed? The State, citing to the Court of Appeals’s cases decided before Ford and Poe, asks us to reconsider the holding in Harvey . We considered those prior cases in Harvey . We ⁶² analyzed the Court of Appeals’s cases of Ford and Poe and interpreted them so as to prohibit the theory of transferred intent unless the unintended victim is killed.

The Court of Appeals declined to take certiorari in Harvey . To the extent that Ford’s or Poe’s holding was dicta, we have elevated it to a holding that the Court of Appeals has declined to review. Accordingly, we shall not reconsider it. It is the law.

We hold, therefore, that the giving of the transferred intent instruction was prejudicial error and will vacate appellant’s conviction for assault with intent to maim. In Harvey , we also noted that because we were reversing the assault with intent to murder conviction, there was nothing into which the reckless endangerment conviction could merge, and thus we declined to consider whether the trial judge should have merged those counts into the more serious offense. In the case sub judice, the trial judge merged the reckless endangerment and assault and battery convictions into the assault with intent to maim conviction that we are vacating. On remand, the trial court shall have to reconsider sentences on the reckless endangerment and assault and battery convictions.

II

Whether a new trial is required when the judge refuses to instruct the jury on self defense even though the jury reasonably could have concluded that the complainant and his companion threatened the defendant and that he feared they were advancing on him with a concealed gun. We perceive that the trial judge gave sufficient instructions. We explain. Maryland Rule 4-325(c) provides that a “court need not grant a requested instruction if the matter is fairly covered by instructions actually given.” The trial court instructed the jury: You have heard evidence that the defendant acted in defense of another person or persons.

The defense of others is a defense and you are required to find the defendant not guilty if all of the following four factors are present. ⁶³ These factors must be present for that defense to apply: the defendant actually believed that the person/defendant was in immediate and imminent danger of bodily harm; the defendant’s belief was reasonable; the defendant used no more force than was reasonably necessary to defend the person¡defendant in light of the threatened or actual force; and the defendant’s purpose in using force was to aid the person/defendant or persons/'defendant,. [Emphasis added.] As can be seen from the instruction itself, the trial judge expanded the “defense of others” instruction to include appellant. Moreover, the evidence indicated that appellant was primarily acting in the defense of his friends. He testified as to why he shot at Jones and Sollers: A I was scared for Prince and Jamal, because I knew Prince for four years and Jamal for eight. Q What did you think Derrick was going to do with whatever he had?

A I thought he was going to try to kill them. Q And why did you think that? A Because Royce had — he had said, you know, he was gonna come back, and he was gonna shoot us, and he was gonna get us, and all this, and I was scared for them. He was expressly asked why he had fired at Jones.

He responded: “[T]he first thing that popped in my mind was he’s gonna shoot them. I thought he was gonna shoot them and I wanted to shoot him first so my friends won’t be injured.” He responded affirmatively at another point that he had been scared “for Prince and Jamal,” his two friends. Prior to the above testimony, on direct examination, appellant testified: Q At the point where you came around the corner the second time with the gun, did you think that Derrick had any type of weapon? A To me there was no doubt in my mind that he had some kind of weapon. ⁶⁴ Q What weapon did you think he had?

A I thought he had a gun. Q And how were