IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
MAY 1999 SESSION
May 26, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
) NO. 02C01-9805-CR-00157
Appellee, )
) SHELBY COUNTY
VS. )
) HON. JOSEPH B. DAILEY,
BILLY B. BROWN, ) JUDGE
)
Appellant. ) (First Degree Murder; Attempted
) Murder)
FOR THE APPELLANT: FOR THE APPELLEE:
A. C. WHARTON, JR. PAUL G. SUMMERS
Shelby County Public Defender Attorney General and Reporter
BETTY J. THOMAS PETER M. COUGHLAN
Assistant Public Defender Assistant Attorney General
201 Poplar Avenue, 2nd Floor Cordell Hull Building, 2nd Floor
Memphis, TN 38103-1947 425 Fifth Avenue North
Nashville, TN 37243-0493
WILLIAM L. GIBBONS
District Attorney General
DAVID C. HENRY
TIM BEACHAM
Assistant District Attorneys
General
201 Poplar Avenue, 3rd Floor
Memphis, TN 38103-1947
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
Defendant, Billy B. Brown, was convicted by a Shelby County jury of
premeditated first degree murder and two counts of attempted first degree murder.
He received concurrent sentences of life with the possibility of parole for first degree
murder and twenty years for each of the attempted murders. The issue in this
appeal is whether the evidence is sufficient to support the conviction for
premeditated first degree murder, and whether the trial court erred in charging the
jury on the doctrine of “transferred intent.” The judgment of the trial court is
AFFIRMED.
FACTS
The state’s proof revealed that the defendant was married to Nicole Burrow;
however, they were estranged. Burrow was dating Jerry Jerome Parker (hereinafter
"Parker") which angered the defendant. Shortly prior to the incident in question, the
defendant told Burrow “if he catch me with [Parker], you know, he was going to hurt
me.”
On the early morning of March 26, 1996, Burrow called defendant’s employer
to make certain that the defendant was at work. Upon ascertaining that he was,
Burrow, Parker, Thomas Parker (Parker’s sixty-three-year-old father), and Thomas
Parker’s friend drove to defendant’s apartment to secure Burrow’s belongings.
Unknown to Burrow, defendant left his employment shortly after Burrow’s phone
call. Upon arriving in the parking lot, they observed the defendant firing at them with
a pistol from the second floor balcony. A neighbor heard the defendant state,
“Nicole, my wife, I’ve got you dead to right.”
Parker exited the vehicle and fled across the street while the defendant fired
at him. Burrow attempted to flee the parking lot in the car. Defendant continued to
fire, and one of the bullets entered the rear window and struck the elder Thomas
Parker in the head. Thomas Parker died as a result of the gunshot wound.
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Other state witnesses observed the defendant firing from the second floor
balcony. No witness testified that they observed anybody in the Burrow vehicle with
any kind of weapon.
The cross-examination of the state witnesses implied that Parker fired first
at the defendant with a sawed-off shotgun. An acquaintance of the defendant,
serving a sentence for aggravated burglary at the time of his testimony, related that
he arrived at the scene shortly after the shooting. He further stated that Nicole
Burrow asked him to take the sawed-off shotgun, which was visible under a car. He
testified he did so and subsequently threw it in a ditch. He further testified that
Burrow told him two days later that Parker had “shot that gun at Billy.”
It was the state’s theory that the defendant was attempting to kill Burrow, but
the bullet struck Thomas Parker. The trial court charged the jury under the doctrine
of “transferred intent,” and the jury convicted the defendant of the premeditated first
degree murder of Thomas Parker.
TRANSFERRED INTENT
Defendant contends the trial court erred in charging the doctrine of
"transferred intent." Accordingly, the defendant argues that the evidence is
insufficient to establish that the defendant intentionally and premeditatedly took the
life of Thomas Parker.
This case is controlled by the recent holding of the Tennessee Supreme
Court in Millen v. State, ___ S.W.2d ___ (Tenn. 1999), which was filed after the trial
of this case. In Millen the defendant was indicted for both premeditated murder and
felony murder. The jury was charged under the doctrine of "transferred intent," and
the jury convicted the defendant of premeditated first degree murder. The court
concluded that it was unnecessary to resort to the doctrine of "transferred intent"
under the first degree murder statute, and such an instruction should not be given.
Id. at ___. The court noted that the most appropriate charge involving an
“unintended victim” is felony murder. Id. However, the court also concluded that
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if the evidence indicates that the defendant, with premeditation, intended to kill a
particular person, then the killing of another, even if not the intended victim, is
premeditated first degree murder. Id. at ___. Although the court found error in
charging "transferred intent," the court affirmed the premeditated first degree
murder conviction. Id. at ____.
Millen requires the same result in the case at bar. The state was required to
prove beyond a reasonable doubt that the defendant intentionally and with
premeditation killed Thomas Parker. Tenn. Code Ann. § 39-13-202(a)(1)(Supp.
1995).1 Premeditation may be inferred from the manner and circumstances of the
killing. State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997). The use of a deadly
weapon upon an unarmed victim and prior declarations by the defendant of the
intent to kill may be indicative of premeditation. State v. Brown, 836 S.W.2d 530,
541 (Tenn. 1992). After viewing the evidence in a light most favorable to the
prosecution, there was more than sufficient evidence for the jury to have found that
the defendant intentionally and with premeditation attempted to kill Nicole Burrow,
but instead killed Thomas Parker. Although the trial court erred in charging the
doctrine of “transferred intent,” the error was harmless. Thus, the evidence is
sufficient to support the conviction of premeditated first degree murder of Thomas
Parker. Tenn R. App. P. 13(e).
CONCLUSION
We, therefore, conclude that the judgment of the trial court should be
AFFIRMED.
1
Millen was decided under the statute that also required proof of deliberation. Tenn.
Code Ann. § 39-13-202(a)(1)(1991). The statute was amended effective July 1, 1995, and
deleted the requirement of deliberation.
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____________________________
JOE G. RILEY, JUDGE
CONCUR:
____________________________
JOHN H. PEAY, JUDGE
____________________________
THOMAS T. WOODALL, JUDGE
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