Ricky Eugene Spencer v The State Of Oklahoma

F-2019-588

Filed: Jan. 14, 2021

Not for publication

Prevailing Party: Ricky Eugene Spencer

Summary

Ricky Eugene Spencer appealed his conviction for two counts of Shooting with Intent to Kill. His conviction and sentence were for twenty years in prison for each count, with the sentences running consecutively and a portion suspended. Judge Lumpkin dissented. The case centered around a mistake in jury instructions about intent, which caused the court to reverse the conviction and order a new trial. The error was significant because it misled the jury about what they needed to find to convict Spencer. The evidence suggested he meant to shoot someone but the instructions were unclear, leading to concerns that he might have been judged unfairly.

Decision

The Judgment and Sentence of the district court is VACATED and the case REMANDED to the district court for a new trial. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2021), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• Was there reversible error in the jury instructions regarding transferred intent?
• Did the court fail to edit the transferred intent instruction to conform to the specific offenses charged?
• Was the error in the transferred intent instruction plain or obvious?
• Did the error affect Spencer's substantial rights?
• Was the evidence of intent to kill sufficient to render the instructional error harmless?
• Did the prosecutor's comments during closing argument compound the error in the jury instruction?
• Was a new trial warranted due to the instructional error affecting the fairness of the proceeding?

Findings

• the court erred in the jury instruction on transferred intent
• the error affected Spencer's substantial rights
• the Judgment and Sentence of the district court is VACATED and the case REMANDED for a new trial

F-2019-588

Jan. 14, 2021

Ricky Eugene Spencer

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

JOHN D. HADDEN ROWLAND, VICE PRESIDING JUDGE:

Appellant Ricky Eugene Spencer appeals his Judgment and Sentence from the District Court of Muskogee County, Case No. CF-2016-1165, for two counts of Shooting with Intent to Kill, After Former Conviction of a Felony, in violation of 21 O.S.2011, § 652(A). The Honorable Bret Smith, District Judge, presided over Spencer’s jury trial and sentenced him, in accordance with the jury’s verdict, to twenty years imprisonment on each count.¹ Judge Smith ordered the sentences on Counts 1 and 2 to run consecutively, suspended all but the first ten years on Count 2, awarded credit for time served, and imposed probation terms and conditions on the suspended ten year term on Count 2. Spencer raises seven issues on appeal, one of which challenges the court’s instruction on transferred intent. Because we find that there was indeed reversible error in the jury instructions, we address only that claim and find Spencer’s other claims are moot.

Standard of Review

Spencer admits that he did not challenge the court’s transferred intent instruction below and that our review is for plain error only. Runnels v. State, 2018 OK CR 27, ¶ 18, 426 P.3d 614, 619. He has the burden in plain error review to demonstrate: 1) the existence of an error (i.e., deviation from a legal rule); 2) that the error was plain or obvious; and 3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding. Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. Even where this showing is made, this Court will correct plain error only where the error seriously affected the fairness, integrity or public reputation of the judicial proceedings or represented a miscarriage of justice. Id.; 20 O.S.2011, § 3001.1. We examine each prong in turn.

Analysis

Spencer claims the court mistakenly failed to edit the uniform transferred intent instruction to conform to the offenses charged in his case.² The district court’s transferred intent instruction read:

If you find that the defendant intended to kill/injure/assault Alvonte Morton, and by mistake or accident injured/assaulted Mikayla Cooper and or Laylani Allen, the element of intent is satisfied even though the defendant did not intend to kill/injure/assault Mikayla Cooper and or Laylani Allen. In such a case, the law regards the intent as transferred from the original intended victim to the actual victim.

We need not dwell on the first two prongs of the plain error test. The State admits that the district court committed obvious error when it failed to choose kill and omit injure and assault from the list of intent options in the uniform transferred intent instruction.² The uniform instruction on transferred intent provides:

If you find that the defendant intended to kill/injure/assault [Name of Intended Victim], and by mistake or accident injured/assaulted [Name of Actual Victim], the element of intent is satisfied even though the defendant did not intend to kill/injure/assault [Name of Actual Victim]. In such a case, the law regards the intent as transferred from the original intended victim to the actual victim. Instruction Number 4-11, OUJI-CR(2d)(Supp.1997).³

See Runnels, 2018 OK CR 27, ¶ 19, 426 P.3d at 619 (finding district court’s failure to select applicable mens rea element in transferred intent instruction was error that was obvious). We explained in Runnels that the bolded language within the instruction is intended to signal to the trial court that the instruction must be modified before given to the jury. Id. 2018 OK CR 27, ¶ 20, 426 P.3d at 619. The slash symbol directs the district court to select the alternative(s) that most accurately fits the offenses being tried. Id. Because the transferred intent doctrine directly relates to the relevant mens rea element of this charged offense, shooting with intent to kill, the district court should have chosen kill from the alternatives of kill/injure/assault. The district court’s transferred intent instruction here failed to accurately state the applicable law.

We turn now to the third prong, namely whether the error affected Spencer’s substantial rights. The Court in Runnels held this same instructional error did not affect the defendant’s substantial rights because the evidence in that case showed that the victim’s death resulted from mistaken identity rather than transferred intent. Id. 2018 OK CR 27, ¶¶ 22-23, 426 P.3d at 619-20. Because the doctrine of transferred intent was inapplicable in that case, we held error in the transferred intent instruction did not affect the defendant’s substantial rights and was otherwise harmless given the strong evidence of intent to kill. Id. 2018 OK CR 27, ¶ 24, 426 P.3d at 620. That is not the case here. Unlike Runnels, Spencer’s case falls squarely within the doctrine of transferred intent. Under the prosecution’s theory, Spencer acted with intent to kill Alvontey Morton, but because of bad aim he instead shot two bystanders. The district court’s transferred intent instruction mistakenly allowed the jury to find that Spencer had the intent to kill the bystanders based only upon a pre-existing intent to injure or assault Morton. In other words, the jury could have found that an intent to injure or assault Morton transferred to and became an intent to kill the two bystanders. Because the instruction allowed the jury to convict on lesser proof than required, we find that the error affected Spencer’s substantial rights. Id. 2018 OK CR 27, ¶ 22, 426 P.3d at 619 (A ‘substantial right’ is a matter of substance as distinguished from a matter of mere form.)

Although Spencer has established the commission of a plain error, the State maintains reversal is not required because the evidence of intent to kill was so overwhelming and strong that lowering the bar for proving the same was harmless and did not result in a miscarriage of justice. We disagree for four reasons.

First, the record shows not all jurors readily agreed about the proof. The jury sent out four questions during deliberations, including one asking what to do if eleven jurors had made up their minds and one remained undecided. Conviction was not the foregone conclusion the State asserts.

Second, the evidence showed that Spencer was armed, that he was arguing with Morton, and that he threatened to open fire before in fact opening fire in the direction of a number of bystanders. He fired numerous times and continued to fire as bystanders ran for cover and the car he was in drove away. The State points to two witnesses, whose credibility was dubious, who testified that Morton fired first and that Spencer was acting in self-defense. In the State’s view, this evidence supports a finding that Spencer surely intended to kill Morton, a lethal threat, rather than merely scare or injure him.

While a jury could certainly find that Spencer possessed an intent to kill from this evidence, it is not the only logical inference one might draw. As we have noted, shooting into a crowd is not necessarily synonymous with intent to kill and, in homicide cases, such conduct is often cited as an example of depraved mind second degree murder rather than malice aforethought murder in the first degree. Bench v. State, 2018 OK CR 31, ¶ 76, 431 P.3d 929, 954-55, cert. denied, 140 S.Ct. 56 (2019).

Third, we observe that the error was compounded in this case by the State. The prosecutor highlighted the erroneous instruction and argued its erroneous possibilities regarding intent during closing argument:

But the doctrine of transferred intent is clear, clear, clear. He doesn’t have to want to kill anyone else. He just has to want to shoot. And my proposition to you is the minute you’re shooting that gun, you’re intending to kill someone. Isn’t that – why else are you shooting a gun at someone, unless you want to kill them? And the doctrine of transferred intent is absolutely clear. If you find the defendant intended to kill, injure, or assault Alvontey or Mikayla, by the mistake or accident – and by mistake or accident injured/assaulted Mikayla Cooper and/or Laylayni Allen, the element of intent is satisfied, even though the defendant didn’t intend to kill, injure, assault Mikayla Cooper. Injure, assault. So even if he didn’t intend to injure Mikayla, he wanted to injure or assault Alvontey, the element is met. In such a case the law regards the intent as transferred from the original intended victim to the actual victim. It’s clear. Real well settled.

And lastly, while the district court accurately instructed the jury on the elements of shooting with intent to kill, that instruction did nothing to cure the erroneous transferred intent instruction. For these reasons, we cannot find the instruction error, especially when considered in light of the prosecutor’s argument, was harmless in this case. 20 O.S.2011, § 3001.1. To hold otherwise would represent an improvident and unwarranted expansion of Runnels.

DECISION

The Judgment and Sentence of the district court is VACATED and the case REMANDED to the district court for a new trial. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2021), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Footnotes:

1. Under 21 O.S.Supp.2015, § 13.1, Spencer must serve 85% of his sentence of imprisonment before he is eligible for parole consideration.
2. Instruction Number 4-11, OUJI-CR(2d)(Supp.1997).
3. 20 O.S.2011, § 3001.1.
4. 21 O.S.Supp.2012, § 701.7(A); 21 O.S.Supp.2006, § 645; 21 O.S.Supp.2007, § 652.
5. Runnels U. State, 2018 OK CR 27, 426 P.3d 614, 627 (Kuehn, J., dissenting at II 4-8).
6. Levering v. State, 2013 OK CR 19, I 6, 315 P.3d 392, 395.
7. Runnels U. State, 2018 OK CR 27, 426 P.3d 614.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 652(A) - Shooting with intent to kill
• Okla. Stat. tit. 21 § 13.1 - Parole eligibility
• Okla. Stat. tit. 20 § 3001.1 - Plain error review
• Okla. Stat. tit. 21 § 701.8 - Specific intent crimes of physical harm
• Okla. Stat. tit. 21 § 645 - Depraved mind second degree murder
• Okla. Stat. tit. 21 § 701.7(A) - Intent to kill

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Runnels U. State, 2018 OK CR 27, 426 P.3d 614
• Hogan v. State, 2006 OK CR 19, 139 P.3d 907
• Bench v. State, 2018 OK CR 31, 431 P.3d 929
• Levering v. State, 2013 OK CR 19, 315 P.3d 392