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Smith v. State12/22/2000
t makes no difference whether the intended victim is missed; hit and killed; or hit and only wounded). Several jurisdictions have held that the doctrine of transferred intent is applicable when a defendant kills an intended victim as well as an unintended victim. See, e.g., State v. Fennell, 340 S.C. 266, 531 S.E. 2d 512 (2000); Ochoa v. State, __ Nev. __, 981 P.2d 1201, 1205 (1999); Mordica v. State, 618 So. 2d 301, 303 (Fla.Dist.Ct.App. 1993); and State v. Worlock, 117 N.J. 596, 569 A.2d 1314, 1325 (1990).
".... If Living intended to kill Jennifer, his specific intent would transfer to the killing of Melissa." __ So. 2d at __.
Accordingly, the appellant's contention is based on the incorrect assumption that the prosecution is required to prove subjective intent to kill as to each victim: that is not required by law. Moreover, the pertinent instructions in this case follow the pattern jury instructions, which, in turn, reflect the statutory scheme. See also Dobyne v. State, 672 So. 2d 1319, 1341-42 (Ala. Crim. App. 1994) (approving similar instructions against the claim that the trial court's instructions permitted a capital conviction even if the appellant had no specific intent to kill one of the two victims), aff'd, 672 So. 2d 1354 (Ala. 1995). In addition, we note that the appellant's theory at trial was that he did not have the intent to kill as to any of the victims. In fact, he characterized his defense in his brief: "His defense, stated from the witness stand and articulated by counsel in argument, was that he did not intend their deaths." (Appellant's brief, p. 64.) His argument that he may have had the intent to kill as to one victim and no intent for any additional victim is presented for the first time on appeal. We further note that the only reasonable theory supported by the evidence, indeed supported by overwhelming evidence, was that the appellant intended to kill each victim. Finally, the jury's verdict erases any ambiguity: each juror determined that the appellant intentionally killed each of the three victims. Based on these considerations, we find no plain error.
The appellant also argues that because three persons were killed, the trial court's instructions that the prosecution must prove that at least two, as opposed to all, were murdered during one scheme or course of conduct allowed for a verdict that was not unanimous. He argues that all 12 jurors should have been required to determine whether the element of intent was present as to the same two victims.
The court was confronted with a similar issue in Wilson v. State, [Ms. CR-97-2569, November 19, 1999] __ So. 2d __, __ (Ala. Crim. App. 1999), aff'd, [Ms. 1990733, June 23, 2000] __ So. 2d __ (Ala. 2000):
" he appellant contends that the trial court did not instruct the jury that it had to unanimously find that he committed the capital offense. He argues that, to find him guilty of the capital offense charged, the jury had to find that he intentionally killed two of the decedents. ... e contends that the trial court should have instructed the jurors that they had to unanimously find that he intentionally killed the same two decedents to support a capital conviction. Because the appellant did not present this argument to the trial court, we review it for plain error. See Rule 45A, Ala.R.App.P.
"The trial court's instruction on the capital offense was almost identical to the pattern jury instruction on the capital murder of two or more people pursuant to a single scheme or course of conduct. `A trial court's following of an accepted jury instruction weighs heavily against any finding of plain error.' Price v. State, 725 So. 2d 1003, 1058 (Ala.Cr.App. 1997), aff'd, 725
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