Concept

Wrong Victim Cases

Premeditation, deliberation

Wrong Victim Cases

The premeditation analysis so far has assumed that the person the defendant meant to kill is the person who died. Shots miss, however, and the question then becomes whether the cool, reflective state of mind that would have made the killing of the target first degree murder follows the bullet to the bystander it actually hits. By the great weight of authority it does: a defendant who aims at B with a premeditated and deliberate intent to kill, and who misses B and accidentally kills C, is guilty of the first degree murder of C.¹ The rule applies the bad-aim principle that governs ordinary intent-to-kill murder, under which a defendant who unjustifiably aims a lethal blow at B and kills C instead is guilty of murdering C even though no harm to C was ever intended.² Premeditation adds nothing new to that principle. It travels with the intent, so the degree of murder for C is the degree that would have attached had B died.

The reason appears once you ask where culpability sits in a premeditated killing. It sits in the mind the defendant brought to the act: the intent to take a human life and the cool reflection that preceded the decision. A stray bullet changes who is hit and leaves that mind exactly as it was. If liability dropped to second degree whenever the shot went astray, the degree of the crime would turn on marksmanship, so the accurate shooter would face the heaviest punishment and the poor shot would be rewarded for a lapse of skill that has nothing to do with the planning. The Oregon Supreme Court in State v. Murray reasoned along these lines when it affirmed a first degree conviction for killing a bystander during an attempt on another person's life, because the defendant showed the same malignity and recklessness in the one event that would have been shown in the other, and the consequences to society are just as fearful.³

California's decision in Suesser applied the same logic to a mistaken-identity version of the problem. The defendant fatally shot a man whom the defendant took to be Allen, a person the defendant had deliberately and with premeditation intended to kill.⁴ The defendant asked for an instruction that malice must exist toward the person actually killed, so that the offense would be at most second degree murder, but the trial court told the jury that the defendant was guilty of the same degree of murder as if Allen had been the one killed, and on review the court held that the common law doctrine of transferred intent survived the enactment of California's murder statute.⁵ The holding matters for degree in particular: the unintended victim's death carries the degree of murder that the intended victim's death would have carried.

The label transferred intent can mislead, because nothing is literally moved from one person to another. It is shorthand for the principle that liability for the unintended victim is the same as it would have been had the defendant killed the intended one.⁶ That reading explains why the intent is not used up by the killing: in People v. Scott the court reaffirmed that a defendant who shoots at one person, misses, and kills another is guilty of the intentional killing of the person who died and also of the attempt on the target.⁷ The Model Penal Code ratifies the traditional rule in section 2.03(2)(a), which treats a purposely or knowingly caused result as established even when the actual result differs from the one contemplated only in that a different person was injured, so that the offender need intend to kill only some person and not a particular one.⁸

Hypothetical Illustration

The shooter spends several days planning to kill a rival, buys a rifle for the purpose, and waits outside the rival's house. The shot misses the rival and kills a neighbor walking past. The planning shows a premeditated, deliberate intent to kill the rival, and that state of mind attaches to the neighbor's death, so the shooter is guilty of first degree murder of the neighbor.⁹

Change one fact: the shooter and the rival quarrel on the porch, and in a sudden burst of anger the shooter grabs a pistol and fires at the rival, killing the neighbor. The intent to kill the rival was real but arose without cool reflection. The shooter answers for the neighbor's death as if the rival had died, which is second degree murder in a jurisdiction that divides the offense by premeditation.¹⁰

Change it once more: the shooter is cleaning a rifle with no thought of harming anyone, the weapon discharges accidentally, and the neighbor dies. No intent to kill anyone existed, so there is nothing to carry over and the intent-based route to first degree murder is unavailable. Any homicide liability would have to rest on a different mental state, such as recklessness.

The three versions show what the rule does and does not reach. The fact that moved the answer in the first twin was the quality of the intent toward the intended victim, because the degree follows the mind the defendant brought to the attempt on that person. The fact that moved the answer in the third was the absence of any intent to kill, because a mental state that never existed cannot be carried to anyone. The doctrine also has a limit in the kind of harm involved. An intent to kill one person fills the place of an intent to kill another person, but it does not stretch across categories of harm: a defendant who throws a stone at a person and unintentionally breaks a window is not guilty of malicious damage to the window.¹¹

On an exam stem, the first task is to find the premeditation as to the person the defendant aimed at, using the planning, motive, and manner evidence discussed earlier, and then to attach the same degree to the bystander. A stem in which the weapon discharges by accident presents no intent to kill anyone, so the wrong-victim rule has nothing to work with. Jurisdictions follow the rule by the great weight of authority rather than unanimously, so an answer should state it as the majority position.

Wrong Victim Cases

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