by Matt Clarke

In a case of first impression, the Supreme Judicial Court of Massachusetts held that a defendant’s lawful exercise of self-­defense against an assailant may excuse the killing of an unintended victim, such as an innocent bystander. The Court adopted transferred intent self-­defense as part of Massachusetts common-­law homicide jurisprudence, joining the majority of states recognizing the doctrine. However, the Court adopted the doctrine in limited form and declined to extend it as an unconditional bar to liability for bystander harm, holding instead that a defendant may be held criminally liable for involuntary manslaughter if the Commonwealth proves beyond a reasonable doubt that the defendant’s exercise of self-­defense was wanton or reckless so as to create a high degree of likelihood that substantial harm would result to an unintended victim.

Background

On January 28, 2023, Holyoke police responded to 911 calls about gunfire at a local shopping center. Officers arrested defendant Kenneth Jose Santana-­Rodriguez inside a nail and hair salon. The victim, Trung Tran, had been fatally shot once in the chest.

After receiving Miranda warnings, the defendant admitted that he had fired the shot that killed Tran. According to the defendant, an argument and physical altercation erupted inside the salon, and Irving Sanchez threatened him and displayed a firearm. Believing deadly force was imminent, the defendant fired two shots at Sanchez. Police recovered two spent shell casings from the salon floor.

Other witnesses provided accounts that differed in material respects, including whether Sanchez was armed. No witness reported to officers that Sanchez had a firearm, although one observed Sanchez reach toward his waistband moments before the defendant fired.

On May 22, 2023, a grand jury indicted the defendant for murder. A Superior Court judge reported the case to present the following questions of law: “First, assuming the defendant’s version of the facts, is transferred intent self-­defense an available defense in the Commonwealth? Second, if so, does it present a complete defense or only a partial defense?” This interlocutory appeal came before the Supreme Judicial Court after it allowed the Commonwealth’s application for direct appellate review.

Analysis

The Court observed that the case presents an issue of first impression, viz., whether a defendant charged with murder is entitled to assert transferred intent self-­defense to excuse the killing of an unintended victim. Commonwealth v. Pina, 116 N.E.3d 575 (Mass. 2019).

The Court stated that in Massachusetts, murder is defined as an unlawful killing with malice aforethought. Choy v. Commonwealth, 927 N.E.2d 970 (Mass. 2010). A killing is lawful if committed in the proper exercise of self-­defense. Commonwealth v. Williams, 119 N.E.3d 1171 (Mass. 2019). If “carried out properly,” self-­defense constitutes a complete defense. Commonwealth v. Little, 730 N.E.2d 304 (Mass. 2000). But the excessive use of force in self-­defense is a mitigating circumstance that may justify a conviction of voluntary manslaughter. Commonwealth v. Hinds, 927 N.E.2d 1009 (Mass. 2010). The Court added that, where self-­defense is in issue, the Commonwealth bears the burden to prove beyond a reasonable doubt that the defendant did not act in lawful self-­defense. Commonwealth v. Glacken, 883 N.E.2d 1228 (Mass. 2008).

The doctrine of transferred intent is a well-­established theory of criminal liability for the killing of an unintended victim. Pina. Where a defendant purposefully attempts to kill one person but by mistake or accident kills another, the felonious intent transfers from the intended to the unintended victim. Id. The Court observed that in a shootout, lethal intent “follows the bullet.” State v. Gilmore, 562 P.3d 250 (Or. Ct. App. 2024).

Survey of Other Jurisdictions

The Court noted that there are two approaches among courts in other states that have addressed the issue of transferred intent self-­defense.

In Pennsylvania, transferred intent self-­defense operates as a complete defense without exception for reckless or negligent conduct. Commonwealth v. Fowlin, 710 A.2d 1130 (Pa. 1998). In Fowlin, the defendant was blinded by pepper spray and fired at armed attackers inside a nightclub, killing one assailant, wounding another, and wounding a bystander. The Pennsylvania Supreme Court excused the defendant from criminal liability for injuring the bystander, reasoning that a deadly attack does not provide opportunity for “[l]eisurely assessment” of danger posed to others nearby. Notably, the Court observed that Fowlin has been described as “an outlier” by the Kansas Supreme Court. State v. Betts, 514 P.3d 341 (Kan. 2022).

In contrast, most states hold that the justification of self-­defense extends to injury or death of an unintended victim only if not caused by the defendant’s reckless or negligent conduct. Betts (collecting cases and statutes). Georgia has held that transferred self-­defense justification is unavailable “if the accused shot carelessly and in reckless and wanton disregard of the danger resulting to the bystander.” Howard v. State, 834 S.E.2d 11 (Ga. 2019). Kansas concluded that reckless use of force against an innocent bystander “lies outside” statutory immunity for self-­defense. Betts. Maryland decided that firing a weapon toward a building where third parties were present “was so grossly negligent as to constitute criminal negligence.” Ruffin v. State, 268 A.2d 494 (Md. Ct. Spec. App. 1970). Michigan held that the unintended killing of an innocent bystander is not murder if justifiably committed in proper self-­defense but may constitute involuntary manslaughter based on recklessness. People v. Jackson, 212 N.W.2d 918 (Mich. 1973). New York held that a defendant is not criminally liable for unintended injury to a bystander unless caused by negligence or recklessness. People v. Morris, 491 N.Y.S.2d 860 (N.Y. App. Div. 1985). Wyoming concluded that while the general rule excuses a person acting in necessary self-­defense who unintentionally injures a third person, “the rule is not absolute and may not apply if the defendant acted recklessly or negligently.” Holloman v. State, 51 P.3d 214 (Wyo. 2002).

The Court further observed that approximately half of the states have enacted statutes shielding individuals exercising lawful self-­defense from criminal liability for unintended deaths. All provide “a self-­defense privilege extending to unintended harm to an innocent bystander … and do not allow it unconditionally.” Betts. The Court identified three distinct statutory formulations. First, some states provide that homicide is excusable when “committed by accident and misfortune” while doing any “lawful act by lawful means” with “usual and ordinary caution” or without “criminal negligence.” States employing this formulation include California, Florida, Idaho, Mississippi, Missouri, New Mexico, Oklahoma, South Dakota, and Washington. Second, several states provide that transferred intent self-­defense is unavailable if the defendant, while justified in using force against an assailant, nonetheless “recklessly or negligently injures” an innocent third person. States in this category include Arkansas, Delaware, Hawaii, Nebraska, New Jersey, North Dakota, and Wisconsin. Third, five states provide that transferred intent self-­defense is unavailable in a prosecution for the reckless injury or reckless killing of an innocent third person. These states include Arizona, Kentucky, Maine, Tennessee, and Texas.

The Court’s Adoption of Limited Transferred Intent Self-­Defense

The Court agreed with the defendant’s argument that it should follow the majority view under which the “unintended killing of an innocent bystander is not murder if justifiably committed in proper self-­defense” but may qualify as manslaughter. Jackson. The Court provided three reasons for adopting a limited form of transferred intent self-­defense.

First, the Court noted that it has previously recognized that in the context of excessive force, “self-­defense is not an all or nothing proposition.” Commonwealth v. Johnson, 589 N.E.2d 311 (Mass. 1992). Under this framework, self-­defense does not shield a defendant from the consequences of wanton or reckless conduct resulting in the death of a bystander.

Second, adopting the limited approach of transferred intent self-­defense reconciles a person’s right to use deadly force when facing an imminent threat with society’s interest in protecting innocent bystanders. See Barber v. State, 386 P.3d 1254 (Alaska Ct. App. 2016) (recognizing “no ‘transferred’ privilege to attack and injure innocent third parties”). The Court explained, “An assailant assumes the risk of being killed by her victim. A bystander, however, does nothing to trigger the victim’s use of deadly force and cannot be held to have assumed the same risk as the assailant simply by being in the wrong place at the wrong time.” Quoting Barlow, Self-­Defense and Reckless Crimes Against Third Parties: Has New York Forgotten Innocent Bystanders? 22 Colum. J.L. & Soc. Probs. 417 (1989).

Third, the stipulated facts in the present case – the defendant discharging his firearm twice toward Sanchez while Tran stood nearby – fit squarely within the scope of involuntary manslaughter. The Court stated that involuntary manslaughter is “an unlawful homicide unintentionally caused … by an act which constitutes such a disregard of probable harmful consequences to another as to constitute wanton or reckless conduct.” Commonwealth v. Barlow-­Tucker, 223 N.E.3d 1193 (Mass. 2024). The focus is on “the conduct that caused the result … not the resultant harm,” the Court explained. Commonwealth v. Hardy, 123 N.E.3d 773 (Mass. 2019).

The Court rejected the Commonwealth’s position that the standard of care should be the exercise of “ordinary care and caution in responding to the threat.” While acknowledging that many jurisdictions require defendants to exercise “usual and ordinary caution,” the Court reaffirmed that in Massachusetts, “at common law conduct does not become criminal until it passes the borders of negligence and gross negligence and enters into the domain of wanton or reckless conduct.” Commonwealth v. Welansky, 55 N.E.2d 902 (Mass. 1944).

Conclusion

The Court answered the first reported question in the affirmative. That is, where the facts warrant, a defendant may assert transferred intent self-­defense to justify the death of an unintended victim killed during the lawful exercise of self-­defense against an assailant. The Court answered the second reported question by holding that transferred intent self-­defense is a partial defense to murder but does not excuse wanton or reckless conduct.

The Court instructed: “A murder defendant may be held criminally liable for the lesser included offense of involuntary manslaughter if the Commonwealth proves beyond a reasonable doubt that a defendant’s exercise of self-­defense was wanton or reckless so as to create a high degree of likelihood that substantial harm would result to an unintended victim.”

Accordingly, the Court remanded the matter to the Superior Court for further proceedings consistent with its opinion. See: Commonwealth v. Santana-­Rodriguez, 267 N.E.3d 563 (Mass. 2025).  

Editor’s note: Anyone interested in the issue of transferred intent self-­defense is encouraged to read the Court’s full opinion.

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