Killing Bystander Can’t Be Intended & Accidental

(CN) - A New Yorker who killed a nurse while trying to shoot someone else should not have been convicted on two counts of murder, the state's highest court ruled.

Carol Simon, a 35-year-old nurse, was killed on Dec. 15, 2007, near her Brooklyn home, which was a frequent scene of fights between rival gangs, the New York Daily News reported at the time.

On the day Simon was shot, a group of roughly 11 men had been looking for someone who had assaulted a member of the group.

When Darius Dubarry walked by, someone in the group said, "That's him."

Dubarry and one of the men in the search party, Herburtho Benjamin, began exchanging shots, and evidence showed that it was Dubarry's bullet that killed Simon.

One witness who had spoken before the grand jury tried to duck testifying at the trial because of threats against his family from Dubarry's congregation, the Lek Lekah Israelites. This witness was already in a federal detention center and said he would not testify even if it would cost him more time behind bars.

Over Dubarry's objection, prosecutors read this witness's grand-jury testimony into evidence, stating that Dubarry had left the building, smoked a cigarette and started shooting.

Dubarry testified that Benjamin had started the gunfight. He added that when he was arrested in a Georgia hotel under an assumed name, he was hiding from Benjamin and the rest of the group, whom he believed to be gang members.

The trial court instructed the jury to consider charges of intentional murder and depraved indifference murder, and Dubarry was convicted of both, as well as attempted murder and criminal possession of a weapon.

The Appellate Division upheld the convictions based on Dubarry's different states of mind relating to Benjamin and the bystander.

Reversing Tuesday, the New York Court of Appeals found it erroneous for the trial to charge the intentional and indifferent murder counts conjunctively.

"On the merits, we agree with defendant that, on the facts of this case, the transferred intent theory cannot be employed to convict him twice for the murder of the same victim," according to the lead opinion by Judge Jenny Rivera.

Rivera explained that the transferred-intent theory is used to convict a person in a case like this in which the intended target is not the victim because of "bad aim or some other lucky mistake."

In this case, Dubarry's argument was improperly convicted twice for killing one person.

"Under New York law, defendant is held accountable for the murder he committed, even if it was not the one he set out to complete," she wrote.

The court was split 4-3 on a separate finding - that the admission of the witness's grand-jury testimony violated Dubarry's Sixth Amendment right to confront witnesses against him.

Rivera and the majority saw no evidence of a personal connection between Dubarry and the members of his Israelite congregation who allegedly threatened the witness.

The dissenting justices countered that this "rationale departs from our long-held jurisprudence concerning the admission of grand jury testimony where the People have established to the trial court's satisfaction that the defendant's actions were behind a witness's unavailability."

Though the majority called for a new trial on intentional murder, depraved-indifference murder and attempted murder, the dissent called that latter charge unnecessary.

"The jury found that defendant, without justification and with the intent to cause his death, attempted to cause his death," Judge Eugene Pigott wrote in the dissent.

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