# FILED
May 26, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON MAY 1999 SESSION

STATE OF TENN ESSEE, ) ) NO. 02C01-9805-CR-00157 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. JOSEPH B. DAILEY, BILLY B. BROWN, ) JUDGE ) Appellant. ) (FirstDegree Murder; Attempted ) Murder)

FOR THE APPELLANT : A. C. WHARTON, JR. Shelby County Public

Defender BET TY J. THO MAS Assistant Public Defender 201 Poplar Avenue, 2nd Floor Memphis, TN 38103-1947 FOR THE APPEL LEE : PAUL G. SUMMERS Attorney General and Repor ter PET ER M . CO UGH LAN Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General DAVID C. HENRY TIM BEAC HAM Assistan t District Attorneys General 201 Poplar Avenue, 3rd Floo r Memphis, TN 38103-1947

OPINION FI LED:

AFFIRMED
JOE G. RILEY, JUDGE2 O P I N I O N
Defend ant, Billy B. Bro wn, was convi cted by a Sh elby Count y jury o f premeditated first degree murder and two counts of attemptedfirst degree murder. He received concurrent sentences of life w ith the possibility of parole for first degree murder and tw ent y years for each of the attempted murders. The issue in this appeal is whether the evi dence is sufficient to support the conviction for premeditated first degree murder, and w hether the trial court erred in charging the juryon the doctrine of “transferred intent.” The judgmen t of the trial court is AFFIRMED

.
FACTS

The state’s p roof reve aled tha t the def endant wa s married to Nicole B urrow; however, they were estrang ed. Burrow was datingJerry Jerome Parker (hereinafter "Parker") which angered the defendant. Shortly prior t o the incident in question, the defendant told Burrow “if he catc h me with [Parker], y

ou know, he was goi ng to hurt me.” On the early morning of Marc h 26, 1996, Burrow called defendant’ s employer to make certain that the defendant was at work. Upon ascertaining that he was, Burrow, Parker, Thomas Parker (Parker’s sixty-three-year-old father), and Thomas Parker’s f riend drove to defendant’s apartment to secure Burrow’s belongings. Unknown to Burrow, defendant left his employ ment shortly after Burrow ’s phone call. Upon arriving

in the parking lot, they

observed the defendant firing a t them with
a pistol from the second floor balc ony. A neighbor heard th e defendant state , “Nicole, my wife, I’ve got you dead to right.” Parker exited the vehicle and fled across the street while the defendant fired at him. Burrow attempted to flee the parking lot in the car. Defendant continued to fire, and one of the bullets entered the rear w indow and struck the elde r Thomas Parker in the head. Thomas Parker died as a result of the gunshot wound.3 Other state witnesses observ ed the defendant firing from the s econd floor balcony. No witness testified that they observ ed anybody in the Burrow vehicle with any kind of weapon. The c ross-examination of the state witnesses implied that Parker fired f irst at the defendant with a sawed- off shotgun. An ac quainta nce of the defendant, serving a sentence for

aggrava ted burglar

y at the tim e of his testimony, related that he arrived at the sce ne sh ortly after the shooting. He further stated that Nicole Burrow asked hi m to take

the saw ed-off shotgun, which was visible under a car. He testified he did so and subsequently threw it in a ditch.He further test ified that Burrow told him two days later that Parker had “shot that gun at Billy.” It was the state’s theory that the defendant was attempting to kil l Burrow, but the bullet struck Thomas Parker. The trial court chargedthe jury under the doctr ine of “transferred intent,”

and the jury convic

ted the defendant ofthe premeditated first degree murder of Thomas Parker.

TRANSFERRED INTENT

D efenda nt contends the trial court er red in charging the doc trine of "transferred intent." Accordingly, the d efendant argues that the evidence is insufficientto establish that the defendant intentionally and premeditatedly took the life of Thomas Parker. This case is controlled by the recent holding of the Tennes see Su preme Court in Millen v. State , ___ S.W.2d ___ (Tenn. 1999), which was fil ed after the trial of this case. In Millen the defendant was indicted for both pr emeditated murder and felony murder. The jury was

charged under

the doctrine of "transferred intent," and the jury convicted the defendant of premeditated f irst degree murder. T he court concluded that it was unne cessary t o resort to the doctrine of "tr ansferred intent" under the first degree

murder statute, and such an ins truction should not be given. Id

. at ___. The court noted that the most appr opria te charge involvi ng an “u nintended victim” is felony murder. Id. However, the court also con cluded tha t1 Millen was decided under the statute that also required proof of deliberation. Tenn. Code Ann. § 39-13-202(a)(1)(1991). The statute was amended effective July 1,1995, and deleted the requirement of deliberation. 4 if the ev idence indicates that the defendant, with preme ditation, intended to kil l a par ticular

person, then

the killi ng of another,even if not the intended v ictim, i s premeditated first degr ee mu rder. Id

. at ___. Although the court found error in
c harging "transferred intent," the court affirmed the premeditated first degre e murder conviction. Id

. at ____. Millen requires the

same result in the case at bar. The state was req uired to prove beyond a reasonable doubt that the defendant intent ional ly and with premeditation k il led Thomas Parker. Tenn. Code Ann. § 3 9-13-202(a)(1)(Supp. 1995). 1 Premeditation may be inferred from the manner and circumstances of the killing. State v. Bland , 958 S.W.2d 651, 66 0 (Tenn. 1997). The use of a deadly weapon upon an unarme d victim and prior decl arations by the defendant of the intent to kill may be i ndicative of premeditation. State v. B rown , 836 S.W.2d 530, 5 41 (Tenn. 1992). After view ing the evidence in a l ight most favor able to th e prosecution, there was more th an suff icient evi dence f or the jur y to have found that the defendant intentionally and w ith premeditation attempted to kill Nicole Burrow, but instead killed Thomas Parker. A lthough the trial court erred in charging the doctrine of “transferred intent,” the error was harmless. Thus, the evidence is sufficientto support the conviction of premeditated first degree murder of Thomas Parker. Tenn R. App. P. 13(e)

.
CONCLUSION
We, therefore , concl ude that the judgment of the trial court should be AFFIRMED

.5 ____________________________ JOE G. RILEY, JUDGE

CONCUR:

____________________________ JOHN H. PEAY

, JUDGE

____________________________ THOMAS T. WOOD

ALL, JUDGE