Appeals from the Superior Court of the District of Columbia (F-6602-98, F-6329-98) (Hon. Ann O'Regan Keary, Trial Judge)
Before Farrell, Ruiz, and Glickman, Associate Judges.
The opinion of the court was delivered by: Farrell, Associate Judge
These appeals present primarily the issue of whether the transferred intent doctrine, firmly embedded in our jurisprudence, permits a first-degree murder conviction for the shooting death of an unintended victim when the intended victim has also been shot dead. Appellants argue that where the crime intended - here premeditated murder - has actually been committed against the intended victim, the evidence of intent is insufficient to permit a second conviction for first-degree murder. In keeping with strong indications in our prior decisions and unpersuaded that the reasoning appellants urge for limiting the reach of the doctrine applies to the facts of this case, we uphold its application here. We reject appellants' other assignments of error as well, and so affirm their convictions each for two counts of first-degree murder while armed and related weapons offenses.
The essential facts are not in dispute. One of the eventual victims, John McKinney, came upon a group of men playing dice on the corner of Seaton Place and North Capitol Street, N.E. Appellant Thurston was one of the players. McKinney, who was an outsider to the group and the neighborhood, was allowed to join the game briefly, but a short while later a man nicknamed Black Back appeared to strike McKinney, and Thurston "had some words" with him. Apparently frightened, McKinney reached into his shoulder bag, which caused most of the other participants, fearing he had a gun, to take off at a run. Although McKinney produced only a beer from the bag and began to walk away, Thurston continued to holler at him.
As McKinney walked south on North Capitol Street, Thurston told two women nearby to "leave from the corner" because "something was about to happen." One of the women, who had been observing events, understood the target of the threatened "something" to be McKinney and hoped he would "get away." At this point, appellant Lloyd's automobile came "flying through the alley" nearby and parked near the intersection of North Capitol and S Streets. Thurston left the women and joined Lloyd, who exited his car and put on a dark tee-shirt and hat over his clothes. As the two men conferred, Lloyd pulled a gun from his waistband and held it in his right hand. They then hurried together to the intersection, where Thurston pointed south in McKinney's direction and said, "[H]e's down that way." The defendants ran together in that direction.
McKinney meanwhile crossed North Capitol Street and encountered Geneva Hall, to whom he offered to sell food stamps. When Hall showed interest, McKinney put his bag on the ground and rummaged in it. As he stood upright again, Thurston and Lloyd were both "up on him" seven to nine feet away. Lloyd, holding his gun in the "sideways" position, opened fire and struck McKinney three times in the back with hollow-nosed bullets. Two of the bullets passed through McKinney's body into Ms. Hall's body. Both McKinney and Hall died.
Immediately after the shooting, Lloyd ran from the scene and, as he did, removed the dark shirt and hat he had donned minutes earlier. He jumped into a friend's truck and drove or was driven away, but returned to the scene later dressed in the clothes he had worn earlier - without the dark shirt and hat.
Thurston later gave a statement to the police which, as redacted at trial, confirmed that a "dude" had joined the crap game in which Thurston was participating, and got into a dispute with a third participant who then sought Thurston's help. Thurston obliged by securing the help of a fourth person who, after conferring with the others, left the scene briefly but returned with his car. That person retrieved a gun from the car and, accompanied by Thurston, crossed North Capitol Street where Thurston "pointed to [the dude]" and the other man "ran up and shot him."
We consider first appellants' challenge to application of transferred intent. The doctrine, besides being "well entrenched in [the] common law," has been contained "within the body of criminal law for the District of Columbia" ever since "the critical time of Maryland's cession of the District." O'Connor v. United States, 399 A.2d 21, 24-25 (D.C. 1979). In the present case involving charges of first-degree murder, the trial judge instructed the jury on the doctrine as follows:
[I]n an instance where a person purposely and with deliberate and premeditated malice kills one person but by mistake or inadvertence kills another person as well, the law transfers the intent from the object of the intended victim and includes the unintended victim as well.
Thus, if a person directs deadly force at another with the intention of killing him and such killing is premeditated, deliberated and committed with specific intent to kill, and a bystander or another is also killed, the person so committing such offense may be found guilty of murder in the first degree without regard . . . to whether the killing of the ...