Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: THURSDAY, March 5, 1992 TAG: 9203050331
SECTION: VIRGINIA PAGE: B1 EDITION: METRO
SOURCE: LAURENCE HAMMACK STAFF WRITER
DATELINE: LENGTH: Medium
That apparently was the case last year, when a stray bullet from a shootout between a drug dealer and a teen-ager grazed a passing 4-year-old girl in the head.
But in accusing both the teen-ager and the drug dealer of causing a single bullet wound, prosecutors must now "put a name on the bullet," a Roanoke lawyer argued Wednesday.
Ray Ferris said his client, former high school football star Judge Thomas Jr., "has a due-process right to know" which of several theories prosecutors may employ.
Thomas, 34, is charged with the malicious wounding of Moneka Small, who was caught in the crossfire of a gunfight as she and her mother walked down a street near the Hurt Park housing project the afternoon of Feb. 4, 1991.
In what Ferris called an "extremely unusual" move, prosecutors also charged 17-year-old Clifton Holland - with whom Thomas was exchanging gunfire - under the theory that both were equally culpable, regardless of whose bullet struck the child.
Holland was convicted last year of wounding the girl and was sentenced to eight years in prison. Although prosecutors "never put a name on the bullet" in that case, defense attorney Ferris contended that evidence showed it was the bullet from Holland's gun that struck the child.
But in seeking to prove an identical charge against Thomas, prosecutors may proceed under three theories:
That Thomas committed malicious wounding in the first degree, meaning his bullet hit the child.
That he committed malicious wounding in the second degree, meaning that he did not fire the crucial shot but "aided and abetted" in a shootout that ultimately caused the wound.
Or that he committed malicious wounding under the doctrine of transferred intent, a theory under which he would be equally guilty if he set out to shoot one person - Holland - but instead unintentionally shot another - Moneka Small.
At a hearing Wednesday in Roanoke Circuit Court, Ferris argued that his motion should force prosecutors to tell him which theory they intend to use.
"All of the above," Chief Assistant Commonwealth's Attorney Betty Jo Anthony responded.
"Our intention is to rely on each and all of those theories," Anthony told Judge Diane Strickland. "We are not required to elect at this point."
Although Strickland did not require the prosecution to specify Wednesday what theory will be used, she ordered both lawyers to file briefs on how the doctrine of transferred intent applies to the case.
"Obviously the legal theories will have to be addressed further" at a later hearing, Strickland said.
Anthony said a jury that decides the case could reasonably choose any of the three theories in determining Thomas' role in the shootout. The indictment charging Thomas with malicious wounding does not cite a specific theory, leaving that question for a judge or jury.
But Ferris argued that it is unfair for him to have to prepare a defense based on three possible scenarios. "Tell us what it is that we are accused to have done . . . and how under the law he is responsible for this little girl's injury," Ferris said.
"Whether the commonwealth likes it or not, they've got to put a name on the bullet."
Anthony argued otherwise. Even under the theory of transferred intent, she said, Thomas could be held accountable without firing the crucial shot if, by setting out to maim Holland in a public shootout, he knowingly endangered innocent bystanders.
"As a result of their concert of action - having a shootout on a city street - a little girl was injured," she said.
Small, who was grazed across the temple as she turned to her mother while running from the shots, spent several days in the hospital and has since undergone plastic surgery.
Thomas - who went from his glory days as a star football player at a Roanoke high school to two convictions for dealing cocaine - also is charged with the attempted malicious wounding of Holland.
While lawyers argue the legal points of exactly who fired the bullet in this case, players in Roanoke's frequent street shootings have a different concern - not necessarily the name of who delivers the shot, but who receives it.
In an unrelated malicious wounding case in January, a teen-age witness testified that he dived under a tree as shots broke out on Florida Avenue Northwest.
"Bullets have no names," he said, "so I was getting out of the way."
by CNB