# FILED
April 26, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE SUPREME COURT OF TENNESSEE AT JACKSON (HEARD AT MEMPHIS)

FOR PUBLICA

TION BRYANT DEWAYNE MILLEN, ) Filed: April 26, 1999 ) Appellant, ) ) ) 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 & Repor ter BALLIN, BALLIN & FISHMAN, P.C. Memphis, Tennessee Michael E. Moore Solicitor General Dary

l J. Brand Senior Counsel Criminal Justice Div

ision Nashville, Tennessee
At Trial: John W. Pierotti District Attorney General Thomas D. Henderson Assistant District A

ttorney General Memphis, Tennessee



## O P I N I O N

COURT OF CRIMINAL APPE ALS AFFIRMED. ANDERSON, C.J.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. ( S upreme C ourt A dvancing L ega l E ducation for S tudents) project.

2 At the t ime of this of fense, fi rst degree murder was def ined as the “ intent ional, premeditated and deliber ate kil ling of

another.”

Tenn. Code Ann. § 39-13- 202(a)(1) ( 1991) (now codif ied 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

intent ional “ refers to a person who acts i ntenti onally with respect

to the nat ure of the conduct or to a result o f the conduct whe n it i s the person’ s conscious object ive or desi re to engage i n the conduct or cause t he result. ” Tenn. Code Ann. § 39- 11-302(a) (1991) (now codifi ed in Tenn. Code Ann. § 39-11 -302(a) (1) (199 7)). -2- We granted this appeal to dete rmine whether one who intends to kill a specific person but instead kills an innocent bystander may be convicted of premeditated and deliberate first degree mur der under the common law doctr ine of “transferred intent.” 1

The defendant, who intentionally fired several gunshots at a specific person but inadvertently kil led a random victim near the scene, was convic ted of premeditated and deliberate first degree mur der. The author of the Court of Cri minal Appeals’ opinion concluded that the trial cour t properly instruct

ed the jury on the doctri ne of transferred intent under Tennessee law; however, one judge on the three-judge panel concu rred in results only, and the other judge wrote a concur

ring opinion questioni ng the application of transferred intent.
We conclude that it is unnecessary to r esort to the common law doctr ine of transferred intent under our first degree murder statutes. The definition of “intentional” in the statute does not requi re the State to prove that th e defendant killed the intended victim. Instead it re

quires the State to prov e that the defendant intended to kill a person , i.e., that the defendant had a “consc ious objective or desi re 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 k illed during a defendant’s attempt to per petrate first degree murder,first degree felony3 At the t ime of this of fense, fi rst degree felony murder was def ined as “[a] reckless ki lli ng of another committed i n the perpetr ation of,or attempt to perpetrat e any fi rst degree murder, arson, rape, robbery, burglary , theft , kidnappi ng or aircr aft pir acy.” Tenn. Code Ann. § 39-13-202(a)(2) (1991)(now codifiedin Tenn. Code Ann. § 39-13-202(a)(2) (1997), the offense no l onger incl udes the element of “reckle ss”). -3- murder is proven. 3 Accordingly, although the trial court er red 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 Dew ayne Millen, told friends that he was tired of harassment from Tony Gray and that if he saw Gray again, he was “goi ng to blast on him.” According to the evidence, Mill en was a member of a gang know n as the “Bloods, ” and Gray wa s a membe r of a rival gang calle d the “Crip s.” Later that day, Millen obtained a handgun and ammunition from a friend. He proceeded t o the corner of Graceland and David in M emphis and placed a red bandana around his head and another over his mouth.
When a car containing Tony Gray and oth er passengers proceeded sl owly along Graceland, Millen drew his weapon and ran tow ard the car firing sev

eral shots. One of the shots st ruck and ki lled fourteen -year-ol d Lanetta King , who had bee n walking home from school. Millen fled from the s cene and was later found at his father’s home. The handgun he had used was found buri ed in the backyard. Mi llen later confessed to the shooting.

The trial court instruct

ed the jury on the elements of pr emeditated and deliberate murder and felony murder, both of w hich had been charged in the i ndictment. The trial court also c

harged the j ury that “[u]nder a doc trine know

n as ‘transfe rred intent ,’ a crime may be murder although the per son killed was not the o ne whom the accused intended to kill such as wher

e one shooting at another kil ls a bystander or thir d person coming within ranges.” The jury convicted M illen of premeditated and deliber ate first degree murder.-4- On appeal, the author of the Court of Cr iminal Appeals’ opinion obser ved that the transferred intent doctri ne, pursuant to which a defendant i s no less culpable for killing an unintended v

ictim, presented “an inter esting and novel issue .” He concluded:
Tennessee’s murder statute defines fir st degree murder as the “intentional, premeditated and de liberate killing of anoth er.” Tenn. Code Ann. § 39-13-202 (1991). The Code does not limit the killi ng to the intended victim or that per son. Accordingly, we find that Tenn. Code Ann. § 39-13-202 (1991) incorpor ates the doctrine of transferred i ntent. The appellant’s conviction

can be sustained provided he intended, with premeditati on and delibe ration, to k ill his intended victim. Although the panel of judges appear ed to differ on the application of the tr ansferred intent doctrine, the appellate court found that the evidence w as sufficient to support the elements of premeditated and deliberate first degree murder and affirmed the conviction.
We granted this appeal to consider the v iability of the common law doctrine of transfe rred inte nt under Tenness ee law.

ANAL YSIS Common Law Under the so-called “transferred intent” doctrine, a defen dant who intends to kill a specific victim but instead strikes and kills a bystander is deemed guilty of the offe nse that would have been committ ed had the defendant killed the intended v ictim. 2 Charles E. Torcia, Wharton’s Crimi nal Law § 146 (15t h ed. 199 4); 1 W ayne R. La Fave & Austin W. Scott Jr., Substantive Criminal Law § 3.12(d) (1986). The doctri ne has been widely applied to

all forms of homicide by the majo rity of courts. See LaFave & Scott, § 3.12(d) at 399. As one Court has said:
The common law doctrine of transferr ed intent was applied in E ngland as early as the 16th century. The doctrine became part of the common l aw in many American jurisd ictions . . . and is ty pically invoked i n the criminal law context when a

ssigning criminal

liability to a defendant w ho attempts to kill one person but accidentally kills another instead. Under such circumstances, the accused i s deemed as culpable, and society is harmed4 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 Appea ls’ cases hav e upheld a fi rst 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). -5- as much, as if the defendant had acco mplished what he had initially intended, and

justice is

achieved b

y punishin g the defendant for a crime of the same seriousness as the one he tried to comm it against his intended vi ctim. People v. Scott , 59 Cal. Rptr. 2d 178, 14 Ca l. 4th 544, 927 P.2d 288, 291 (1996) (citations omitted).
Although transferred intent ha s been and continues to be applied b y the majority of courts, the history of the do ctrine 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 whi ch the Tennessee Supreme Court consi dered the doctrine, Bratton v. State , 29 Tenn. 103 (1849), there was a question as to the defendant’s i ntent to shoot and kill the vi ctim while attempting to kill the victim’ s husband. The jury was instructed on the transferred intent doctrine and convi cted the defendant of first degree murder. On appeal, this Cour t held that transferred intent di d not apply under Tennessee’s first degree murder statute, which then read: [A]ll murder which s hall be perpetrated by means of poison, lying in w ait, or any other kind of willful, delibera te, malicious a nd premedita ted killing; or which shall be committed in the perpetration of, or at tempt 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 exi sted 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).-6- The next significant dev elopment in the common law and the statutory law of transferred intent in this s tate occurred in Sullivan v. State , 173 Tenn. 475, 121 S.W.2d 535 (1938). The Court upheld the c onviction for deliberate and premeditated murder where the defendant attempted to shoo t his brother and accidentally shot and killed his brother’s wife who w

as standing nearby. The C ourt, however, distinguished Bratton by noting that the legisl ature had amended the first degree mur der statute to state that “[e]very murder per

petrated by means of poison, ly ing in wait, or by

any other kind of willful, deliberate, mal icious, and premeditated kil ling, or committed in the perpetration of, or attempt to perpetrate, any murder in the first deg ree , arson, r ape, rob bery, burglary, or larceny, is murder in the first degree.” Id . at 537. The Court concluded that this amendment to the first-degr ee murder statute fixed the “curious anomaly” created by Bratton , and held: It follows that, under the s tatute as thus amended, when the defendant shot and killed [the deceased] w hile he was attempting t o perpetrate or commit murder in the first deg ree upon the body of [his brother ] he committed murder in the first deg ree. 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 del iberation and premeditation on the part of defendant to tak e 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 unlaw ful act d irected at a par ticula r perso n for the

purpose of takin g his l ife 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 concurrin g judge in the Court of C riminal Appeals’ opinion i n this case. The Harper case, however, inv

olved second degree murder

. Id. at 934.5 It appears that othe r juri sdicti ons likewi se have found support for the t ransferred i ntent doct rine 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 per

son ”); Ari z. Rev. St

at. § 13-203 (1997) (“[ i]f i ntenti onally causing a part icular result i s an element of an off ense, and the act ual resul t 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 f rom that int

ended or contemplate d only i n the respect that a different person
. . . is inj ured 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 per son, he causes the dea th of such person or of a thi rd 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 indivi dual or anot her ”); 39 N.Y. Penal Law §

125.27 (McKinney

1998) (“[w] ith i ntent to cause the death of another person h e causes the death of such person or of a thi rd 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 re maining element under the statut e applicabl e to thi s case is that the kil ling be reckless, an el ement that is virtual ly cert ain to be satisfied if the un derlyi ng 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. -7- In our view, the common law history of the transferred intent rule has little application under our modern s tatutory law. At th e time of the offense committed by Millen, first degree mur der included: (a)(1) An intentional, premeditated and deliberate killing of ano ther; or (2) A reckless kil ling of another committed in the perpetration of, or attempt to perpet rate any f irst degre e murder , arson, r ape, rob bery, burglary, theft, kidnappi ng or aircraft piracy

. Tenn. Code Ann. § 39-13-202 (1991). The authoring judge of the Cour t of Criminal Appeals’ opinion determined that the statute did not limit its application to the intended victim and , in fact , used th e term “an other” in (a)(1) to e ncompas s any victim . Whi le we disagree with this

broad construction of the statute , we nevertheless c onclude that the first degree murder statutes apply in cases like this one without resor t to the common law doctrine of transferre d intent. 5
In our view, prosecuting these “unintended victim” cases as felony murder would appear to be the most appropriate ap plication of the statute. The plai n meaning of the felony murder statute is that a killing in the cour

se of an attempted first degree murder is first degree felony mur der. If the prosecution establi shes that a defendant attempts to commit the premeditated and deliber ate first degree murder of a spec ific victim but instead kills an unintended v ictim, the defendant may be guil ty of first degree felony murder. 6 This result is plain from the statutory definition of the crime, without resort toTenn . Code A nn. § 39- 13-202 (a)(2) (19 97). -8-

the legal fiction of transferri ng the defendant’s intent from the inten ded victim to another.

The statutes, however, further make clear that a defendant may also be charged, tried, and convicted of premedi tated and deliberate murder as w ell. The legislature has broadly defined an “intentiona l” act as: “a person w ho acts intentionally w

ith respect to the nature of the conduct or to a res ult 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) (emphas is added). A plain reading of this statute as applied to first degree murder indicates that a defendant’s con scious objective need not be to kill a specific victim. Rathe r, the statute simply r equires proof that the defendant’s c onscious 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 pe rson, and that he did so with pre meditation and deliberation, then the killing of another, ev en if not the intended victim ( i.e., intended result), i s 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 Gr ay, obtaining a gun and ammunition in advance, proceedi ng to the scene where Tony Gray was later present, pur

suing the car in whi ch Gray was riding, and firing sev

eral gunshots at the car -- establish that Mill en’s conscious objective was to engage in the conduct as well as to achiev e the result of killing Gray. Moreover, the evidenc

e established that Millen’s intentional conduct was accompanied by premeditation, i.e., the exercise of reflection and j udgment, 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 guil

ty of premeditated and deliberate first degree murder, even thoug h he killed an unintended victim.-9- CONCLUSION The Tennessee statutes governi ng first degree murder, a s written, apply t

o cases in which a defendant int ends to kill a specific v ictim but instead kills

an unintended third party. The mos t obvious application of the fir st degree murder statute is that killing an i nnocent bystander during an attempt to perpetrate first deg ree murder constitutes felony murder. Alternatively, if the defendant kills an innocent bystander, the evidence may satisfy the elements of intent, premeditation,and deliberation, particularly gi

ven the broad definition of “int entionally,” whic

h 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 th e defen dant, f or which exe cution sh all issue i f necess ary.

__________________________________ RILEY ANDERSON, CHIEF JUSTICE

CONCUR: Drowota, Birch, Holder, and Barker, JJ.