Locke v. State

¶1concurring in part/dissenting in part:

¶2I concur in the Court’s decision affirming Locke’s convictions for murder and using a vehicle to facilitate the discharge of a firearm (“drive-by” shooting). Because I believe the Legislature intended to allow multiple prosecutions under the “drive-by” statute,11 would affirm Locke’s second conviction for using a vehicle to facilitate the discharge of a firearm.

¶3The majority concludes that Locke cannot be convicted of two counts under Section 652(B) where the elements of the crime are the same and the only difference is the names of the victims. I disagree. The opinion cites by analogy Hunnicutt v. State2 and Trim v. State.3In Hunnicutt we held that only one offense occurred when the defendant purchased a sack which contained more than one contraband item. In Trim we found only one offense where the defendant sold several obscene magazines at one time. Purchasing one sack or making one sale are easily distinguishable from Locke’s behavior in shooting several bullets in rapid succession into an occupied house.

¶4The majority states the “drive-by” provision requires no specific intent to injure or kill and suggests the result might be different were Locke charged with a specific intent crime. On the contrary, Section 652(B) requires that the use of a vehicle facilitate an intentional discharge of a firearm, crossbow or weapon in conscious disregard for the safety of another person or persons. Thus our “drive-by” shooting statute does require specific intent.

¶5Although this specific intent element does not require the intent to . injure or kill, we must interpret this provision in context to determine the Legislature’s intentions. The “drive-by” provision is contained within Section 652, which also prohibits shooting with intent to kill (Section 652(A)) and assault with a deadly weapon (Section 652(C)). The offense of shooting with intent to kill explicitly requires the intent to kill any person. Assault and battery with a deadly weapon does not explicitly require an intent to injure or kill if the weapon or force used is likely to produce death; simple assault requires a willful attempt to injure another,4 simple battery requires only the willful use of force with no intent to injure,5 and assault and *1098injure or kill. battery with a dangerous weapon requires intent to do bodily harm.6 TaHng this category of crimes as a whole, it is clear the Legislature intended to punish willful use of force or violence against another whether or not a defendant has the specific intent to

¶6“Drive-by” shooting, like shooting with intent to kill or assault and battery with a deadly weapon, is indisputably a crime against the person. The Legislature intended to stop persons from using vehicles to aid them in shooting other people, and the focus is on behavior which aids the intentional shooting. Crimes against the person are separate and distinct if they are directed at separate victims. “[I]t has long been part of our jurisprudence that, where crimes against the person are involved, even though various acts are part of the same transaction, they will constitute separate and distinct crimes where they are directed at separate and distinct persons. Temporal and/or spatial proximity or the fact that the weapon used was, or was not, identical, are not material.”7 The majority opinion offers no compelling reason why this well-settled rule should not apply to this particular crime against the person.

¶7The majority holds that although Locke shot over fifteen times and could have injured seven people, he remains hable for only one criminal charge under this statute. This result makes no sense. The Legislature clearly intended this section to impose an additional punishment for dnve-by shootings, not to give defendants a discount rate for shooting into a crowd. Other jurisdictions, interpreting similar provisions, have reached the same conclusion.8 As one California court found:

The primary purpose of the proscription against double punishment ⅛ to insure that the defendant’s punishment will be commensurate with his criminal liability. A defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person.’ ”9

¶8Locke’s actions twice violated Section 652(B), involved separate victims, and were properly prosecuted in two counts. I would affirm both convictions.

¶9I am authorized to state that Judge Charles Johnson joins in this vote.