Jeromy J. WILLIS, Senior Airman
U.S. Air Force, Appellant
Crim. App. No. 31173
United States Court of Appeals for the Armed Forces
Argued February 4, 1997
Decided July 7, 1997
For Appellant: Major Carol L. Hubbard
Jay L. Cohen, Colonel David W. Madsen, and Captain Todi S. Carnes (on brief); Lieutenant Colonel Kim L. Sheffield.
For Appellee: Major LeEllen Coacher (argued); Colonel Theodore J. Fink and Lieutenant Colonel Michael J. Breslin (on brief); Major Jane M.E. Peterson.
Military Judge: J. Jeremiah Mahoney.
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
On mixed pleas, appellant was found guilty of premeditated murder, attempted murder (3 specifications), desertion (2 specifications), disobeying a superior commissioned officer (2 specifications), escape from confinement, resisting apprehension, wrongful appropriation, assault, aggravated assault, carrying a concealed weapon, and breaking restriction, in violation of Articles 118(1), 80, 85, 90, 95, 121, 128, and 134, Uniform Code of Military Justice, 10 USC §§ 918(1), 880, 885, 890, 895, 921, 928, and 934, respectively.
The general court-martial at Shaw Air Force Base, South Carolina, sentenced appellant to a dishonorable discharge, confinement for life, total forfeitures, and reduction to the lowest enlisted grade. The convening authority approved the sentence. The Court of Criminal Appeals affirmed the findings and sentence. 43 MJ 889 (1996).
We granted review of the following issue:
Appellant was initially charged with the attempted premeditated murder of his wife, Marie, as well as several other offenses. Upon learning that his wife and his aunt, Wilma Plybon, were planning to testify against him at an Article 32, UCMJ, 10 USC § 832, hearing, appellant formulated an elaborate plan to kill them.
On the day of the scheduled Article 32 hearing, appellant entered the base legal office building, observed his aunt and uncle in the office of Captain (Capt) Hatch, the Chief of Military Justice, and then went in search of his wife. Upon locating his wife, appellant shot and killed her. He then went back to Capt Hatch’s office, where the occupants were by this time aware of the nearby shooting. Appellant's uncle, Terry Plybon, was holding the door closed, so appellant was only able to see into the office through about a 6-inch gap. Appellant could see Capt Hatch at his desk and decided to shoot him (he missed). Appellant knew his aunt was behind the door, so he then tried to shoot, through the 6-inch gap, behind the door where he believed she was standing.
Appellant pleaded guilty to the attempted murder of Terry Plybon, Wilma Plybon, and Capt Hatch. He now challenges the providence of his guilty plea to the attempted murder of his uncle, Terry Plybon. The judge advised appellant that the elements of the attempted-murder charges were as follows:
Secondly, that act was done with intent
to commit a specific offense under the
UCMJ, namely murder.
Third, that the act amounted to more
mere preparation. In other words, it was
a direct movement towards the actual
commission of the offense of murder; it
wasn't just some preparatory step towards
MJ: Do you understand that your plea
of guilty would admit they're correct?
ACC: Yes, your Honor.
ACC: And from this point on my memory is a little hazy, but from reading the witness' statements -- the witness' statements, I assume that after I fired that round, I must have taken my hand around behind the door and tried to fire a shot -- or several shots to where I thought my aunt, Wilma Plybon was, and in doing so, I -- it -- it -- if my weapon -- if my nine millimeter had not jammed, I probably would have shot her husband Terry Plybon as well. I didn't have the intent but I did endanger him at that time. And from reading the witness' statements -- witness' statements, they said that I squeezed the trigger three times in an attempt to shoot him.
MJ: And you're satisfied that's correct, that you, in fact, did that?
MJ: Okay. Well, in other words, based upon what they stated they observed, you're convinced that that's the way it happened?
Criminal conduct requires a mens rea and actus reus. See, e.g., United States v. Anzalone, 43 MJ 322 (1995); United States v. Sicley, 6 USCMA 402, 407, 20 CMR 118, 123 (1955). The specific intent to commit a crime plus an act beyond mere preparation are required to support a conviction for attempt under Article 80. There are various degrees of mensrea: for example, the intent to commit a crime, reckless misconduct, or negligent misconduct. As with the degrees concerning the mental state, there are various degrees of consequences or results when there are crimes against the person: for example, death, serious bodily harm, and battery. The question of criminal liability when there has been an injury or killing of an unintended victim has bedeviled the commentators1/ and the courts.2/ Suffice it to say, where there is, as in this case, an intent to kill and an act designed to bring about the desired killing, the defendant is responsible for all natural and probable consequences of the act, regardless of the intended victim.
We have observed that a court may find specific intent to kill from the "high risk of homicide" accompanying a defendant's actions and an inference that the defendant "intend[ed] the natural and probable consequences of ... [his] acts...." United States v. Roa, 12 MJ at 211. In Roa, we held that the military judge applied the wrong mens rea standard under Article 118(3).As to mens rea under Article 80, there must have been a specific intent to kill.
The concurrent-intent theory is best explained in Ford v. State, 625 A.2d 984, 1000 (Md. 1993), where that court explains that "intent is concurrent . . . when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim's vicinity." See alsoRuffin v. United States, 642 A.2d 1288, 1298 (D.C. 1994). Concurrent intent does not apply when the intent to commit a specific act is unrelated to the results or is too remote in its occurrence to have any bearing on the actor's state of mind.
Under a concurrent-intent approach, we infer the intent when the result was the same as that intended or at least a natural and probable consequence of the intended result. As long as the defendant has the requisite intent for the intended crime, the defendant will be responsible for the natural and probable consequences of the act.
Appellant’s admitted actions are sufficient to establish that he had the concurrent intent to kill both his aunt and his uncle. Appellant believed his aunt was located behind the door in the room. He was also aware that his uncle was somewhere in the room because he had seen him there earlier. Appellant tried to shoot behind the door in three different spots, moving his pistol randomly between shots.
Appellant asserts he did not have the intent to "kill" his uncle. However, by shooting behind the door, appellant created a killing zone. The natural and probable consequence of appellant’s actions was the death or grievous bodily harm of whoever was behind the door. Thus, we conclude that appellant's shooting into the occupied room together with the necessary intent to kill Wilma Plybon was sufficient for the military judge to accept his guilty plea to the attempted murder of Terry Plybon. We need not delineate here the outer limits of concurrent intent or transferred intent but limit our holding to a conclusion that appellant's pleas, under the facts of this case, are provident.
The decision of the United States Air Force Court of Criminal Appeals is affirmed.
Chief Judge COX and Judges GIERKE and EFFRON concur.
1/R. Perkins & R. Boyce, Criminal Law 921 (3d ed. 1982); J. Dressler, Understanding Criminal Law 108 (1987); W. LaFave & A. Scott, Jr., Substantive Criminal Law § 3.5(c) at 309 (1986); § 2.03, ALI Model Penal Code, reprinted in ALI Model Penal Code and Commentaries 253 (1985).
2/See Harvey v. State, 681 A.2d 628 (Md. App. 1996); People v. Fernandez, 673 N.E.2d 910 (N.Y. 1996); State v. Abeyta, 901 P.2d 164, 174 (N.M. 1995); People v. Burrage, 645 N.E.2d 455, 462 (Ill. App. 1994); and State v. Rodriguez-Gonzales, 790 P.2d 287, 288 (Ariz. App. 1990).