                   IN THE SUPREME COURT OF TENNESSEE
                                AT JACKSON
                            (HEARD AT MEMPHIS)



                                       FOR PUBLICATION
                                                         FILED
                                                          April 26, 1999
BRYANT DEWAYNE MILLEN,           )    Filed: April 26, 1999
                                 )                    Cecil Crowson, Jr.
            Appellant,           )                   Appellate Court Clerk
                                 )
                                 )      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 & Reporter
BALLIN, BALLIN & FISHMAN, P.C.
Memphis, Tennessee                   Michael E. Moore
                                     Solicitor General

                                     Daryl J. Brand
                                     Senior Counsel
                                     Criminal Justice Division
                                     Nashville, Tennessee


                                     At Trial:
                                     John W. Pierotti
                                     District Attorney General

                                     Thomas D. Henderson
                                     Assistant District Attorney General
                                     Memphis, Tennessee




                            OPINION



COURT OF CRIMINAL APPEALS
AFFIRMED.                                                ANDERSON, C.J.
         We granted this appeal to determine whether one who intends to kill a specific

person but instead kills an innocent bystander may be convicted of premeditated and

deliberate first degree murder under the common law doctrine of “transferred intent.”1



         The defendant, who intentionally fired several gunshots at a specific person but

inadvertently killed a random victim near the scene, was convicted of premeditated and

deliberate first degree murder. The author of the Court of Criminal Appeals’ opinion

concluded that the trial court properly instructed the jury on the doctrine of transferred

intent under Tennessee law; however, one judge on the three-judge panel concurred in

results only, and the other judge wrote a concurring opinion questioning the application

of transferred intent.



         We conclude that it is unnecessary to resort to the common law doctrine of

transferred intent under our first degree murder statutes. The definition of “intentional”

in the statute does not require the State to prove that the defendant killed the intended

victim. Instead it requires the State to prove that the defendant intended to kill a

person, i.e., that the defendant had a “conscious objective or desire 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 killed

during a defendant’s attempt to perpetrate first degree murder, first degree felony




         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. (Supreme Court Advancing Lega l Education for Students)
project.

         2
           At the time of this offense, first degree murder was defined as the “intentional, premeditated and
deliberate killing of another.” Tenn. Code Ann. § 39-13-202(a)(1) (1991) (now codified 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 intentional “refers to a person who acts intentionally with respect to the nature of the
conduct or to a result 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) (now codified in Tenn. Code Ann.
§ 39-11 -302(a) (1) (199 7)).

                                                        -2-
murder is proven.3 Accordingly, although the trial court erred 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 Dewayne Millen, told friends that he was

tired of harassment from Tony Gray and that if he saw Gray again, he was “going to

blast on him.” According to the evidence, Millen was a member of a gang known as the

“Bloods,” and Gray was a member of a rival gang called the “Crips.” Later that day,

Millen obtained a handgun and ammunition from a friend. He proceeded to the corner

of Graceland and David in Memphis and placed a red bandana around his head and

another over his mouth.



        When a car containing Tony Gray and other passengers proceeded slowly along

Graceland, Millen drew his weapon and ran toward the car firing several shots. One of

the shots struck and killed fourteen-year-old Lanetta King, who had been walking home

from school. Millen fled from the scene and was later found at his father’s home. The

handgun he had used was found buried in the backyard. Millen later confessed to the

shooting.



        The trial court instructed the jury on the elements of premeditated and deliberate

murder and felony murder, both of which had been charged in the indictment. The trial

court also charged the jury that “[u]nder a doctrine known as ‘transferred intent,’ a crime

may be murder although the person killed was not the one whom the accused intended

to kill such as where one shooting at another kills a bystander or third person coming

within ranges.” The jury convicted Millen of premeditated and deliberate first degree

murder.



        3
            At the time of this offense, first degree felony murder was defined as “[a] reckless killing of
another committed in the perpetration of, or attempt to perpetrate any first degree murder, arson, rape,
robbery, burglary, theft, kidnapping or aircraft piracy.” Tenn. Code Ann. § 39-13-202(a)(2) (1991) (now
codified in Tenn. Code Ann. § 39-13-202(a)(2) (1997), the offense no longer includes the element of
“reckle ss”).

                                                     -3-
       On appeal, the author of the Court of Criminal Appeals’ opinion observed that

the transferred intent doctrine, pursuant to which a defendant is no less culpable for

killing an unintended victim, presented “an interesting and novel issue.” He concluded:


       Tennessee’s murder statute defines first degree murder as the
       “intentional, premeditated and deliberate killing of another.” Tenn. Code
       Ann. § 39-13-202 (1991). The Code does not limit the killing to the
       intended victim or that person. Accordingly, we find that Tenn. Code Ann.
       § 39-13-202 (1991) incorporates the doctrine of transferred intent. The
       appellant’s conviction can be sustained provided he intended, with
       premeditation and deliberation, to kill his intended victim.


Although the panel of judges appeared to differ on the application of the transferred

intent doctrine, the appellate court found that the evidence was sufficient to support the

elements of premeditated and deliberate first degree murder and affirmed the

conviction.



       We granted this appeal to consider the viability of the common law doctrine of

transferred intent under Tennessee law.



                                        ANALYSIS

                                      Common Law

       Under the so-called “transferred intent” doctrine, a defendant who intends to kill

a specific victim but instead strikes and kills a bystander is deemed guilty of the offense

that would have been committed had the defendant killed the intended victim. 2

Charles E. Torcia, Wharton’s Criminal Law § 146 (15th ed. 1994); 1 Wayne R. LaFave

& Austin W. Scott Jr., Substantive Criminal Law § 3.12(d) (1986). The doctrine has

been widely applied to all forms of homicide by the majority of courts. See LaFave &

Scott, § 3.12(d) at 399. As one Court has said:


       The common law doctrine of transferred intent was applied in England as
       early as the 16th century. The doctrine became part of the common law
       in many American jurisdictions . . . and is typically invoked in the criminal
       law context when assigning criminal liability to a defendant who attempts
       to kill one person but accidentally kills another instead. Under such
       circumstances, the accused is deemed as culpable, and society is harmed


                                            -4-
        as much, as if the defendant had accomplished what he had initially
        intended, and justice is achieved by punishing the defendant for a crime
        of the same seriousness as the one he tried to commit against his
        intended victim.


People v. Scott, 59 Cal. Rptr. 2d 178, 14 Cal. 4th 544, 927 P.2d 288, 291 (1996)

(citations omitted).



        Although transferred intent has been and continues to be applied by the majority

of courts, the history of the doctrine 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 which the Tennessee Supreme Court considered the doctrine,

Bratton v. State, 29 Tenn. 103 (1849), there was a question as to the defendant’s intent

to shoot and kill the victim while attempting to kill the victim’s husband. The jury was

instructed on the transferred intent doctrine and convicted the defendant of first degree

murder. On appeal, this Court held that transferred intent did not apply under

Tennessee’s first degree murder statute, which then read:


        [A]ll murder which shall be perpetrated by means of poison, lying in wait,
        or any other kind of willful, deliberate, malicious and premeditated killing;
        or which shall be committed in the perpetration of, or attempt 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 existed 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).



        4
           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 Appeals’ cases have upheld a first 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-
       The next significant development in the common law and the statutory law of

transferred intent in this state occurred in Sullivan v. State, 173 Tenn. 475, 121 S.W.2d

535 (1938). The Court upheld the conviction for deliberate and premeditated murder

where the defendant attempted to shoot his brother and accidentally shot and killed his

brother’s wife who was standing nearby. The Court, however, distinguished Bratton by

noting that the legislature had amended the first degree murder statute to state that

“[e]very murder perpetrated by means of poison, lying in wait, or by any other kind of

willful, deliberate, malicious, and premeditated killing, or committed in the perpetration

of, or attempt to perpetrate, any murder in the first degree, arson, rape, robbery,

burglary, or larceny, is murder in the first degree.” Id. at 537. The Court concluded that

this amendment to the first-degree murder statute fixed the “curious anomaly” created

by Bratton, and held:


       It follows that, under the statute as thus amended, when the defendant
       shot and killed [the deceased] while he was attempting to perpetrate or
       commit murder in the first degree upon the body of [his brother] he
       committed murder in the first degree. 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 deliberation and
       premeditation on the part of defendant to take 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 unlawful act directed at a particular person for the purpose of taking his life

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 concurring judge in the Court of Criminal Appeals’ opinion in this case. The

Harper case, however, involved second degree murder. Id. at 934.




                                             -6-
         In our view, the common law history of the transferred intent rule has little

application under our modern statutory law. At the time of the offense committed by

Millen, first degree murder included:


         (a)(1) An intentional, premeditated and deliberate killing of another; or
         (2) A reckless killing of another committed in the perpetration of, or
         attempt to perpetrate any first degree murder, arson, rape, robbery,
         burglary, theft, kidnapping or aircraft piracy.


Tenn. Code Ann. § 39-13-202 (1991). The authoring judge of the Court of Criminal

Appeals’ opinion determined that the statute did not limit its application to the intended

victim and, in fact, used the term “another” in (a)(1) to encompass any victim. While we

disagree with this broad construction of the statute, we nevertheless conclude that the

first degree murder statutes apply in cases like this one without resort to the common

law doctrine of transferred intent.5



         In our view, prosecuting these “unintended victim” cases as felony murder would

appear to be the most appropriate application of the statute. The plain meaning of the

felony murder statute is that a killing in the course of an attempted first degree murder

is first degree felony murder. If the prosecution establishes that a defendant attempts

to commit the premeditated and deliberate first degree murder of a specific victim but

instead kills an unintended victim, the defendant may be guilty of first degree felony

murder.6 This result is plain from the statutory definition of the crime, without resort to


         5
            It appears that other jurisdictions likewise have found support for the transferred intent doctrine
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 person”); Ariz. Rev. Stat. § 13-203
(1997) (“[i]f intentionally causing a particular result is an element of an offense, and the actual result 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 from that intended or contemplated only in the respect that a different person . . . is injured 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 person, he causes the death of such person or of a third 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 individual or another”); 39
N.Y. Penal Law § 125.27 (McKinney 1998) (“[w]ith intent to cause the death of another person he causes
the death of such person or of a third 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 remaining element under the statute applicable to this case is that the killing be
reckless, an element that is virtually certain to be satisfied if the underlying 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-
the legal fiction of transferring the defendant’s intent from the intended victim to

another.



          The statutes, however, further make clear that a defendant may also be charged,

tried, and convicted of premeditated and deliberate murder as well. The legislature has

broadly defined an “intentional” act as: “a person who acts intentionally with respect to

the nature of the conduct or to a result 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) (emphasis added). A plain reading of this statute as applied to

first degree murder indicates that a defendant’s conscious objective need not be to kill a

specific victim. Rather, the statute simply requires proof that the defendant’s conscious

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 person,

and that he did so with premeditation and deliberation, then the killing of another, even

if not the intended victim (i.e., intended result), is 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 Gray, obtaining a gun and ammunition in advance, proceeding to

the scene where Tony Gray was later present, pursuing the car in which Gray was

riding, and firing several gunshots at the car -- establish that Millen’s conscious

objective was to engage in the conduct as well as to achieve the result of killing Gray.

Moreover, the evidence established that Millen’s intentional conduct was accompanied

by premeditation, i.e., the exercise of reflection and judgment, 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 guilty of

premeditated and deliberate first degree murder, even though he killed an unintended

victim.


Tenn . Code A nn. § 39- 13-202 (a)(2) (19 97).

                                                 -8-
                                      CONCLUSION

       The Tennessee statutes governing first degree murder, as written, apply to

cases in which a defendant intends to kill a specific victim but instead kills an

unintended third party. The most obvious application of the first degree murder statute

is that killing an innocent bystander during an attempt to perpetrate first degree murder

constitutes felony murder. Alternatively, if the defendant kills an innocent bystander,

the evidence may satisfy the elements of intent, premeditation, and deliberation,

particularly given the broad definition of “intentionally,” which 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 the defendant, for which execution shall issue if necessary.



                                          __________________________________
                                          RILEY ANDERSON, CHIEF JUSTICE



CONCUR:

Drowota, Birch, Holder, and Barker, JJ.




                                            -9-
