Thursday, December 22, 2005

People v Suarez: First Thoughts

It is beyond clear that the Court of Appeal's per curiam opinion in Suarez is meant to be a practical guide to trial courts dealing with the difficult issues raised by the Court's prior decisions in Gonzalez, Hines, and Payne. In a nutshell: the Court holds that "depraved indifference" murder and intentional murder should almost never be submitted together to the jury--and in a case where the indictment charges both intentional and "depraved indifference" murder, the trial court should dismiss one of counts before giving the case to the jury. From the opinion:

When depraved indifference murder is properly understood, 'twin-count' indictments--charging both intentional homicide and depraved indifference murder--should be rare. Twin-count submissions to a jury, even rarer. For by the time the proof has been presented, it should be obvious in most cases whether or not the evidence establishes 'an intentional [killing] or no other'. Thus, where twin-count indictments are lodged, trial courts should presume 'that the defendant's conduct falls within only one category of murder and, unless compelling evidence is presented to the contrary, dismiss the count that is least appropriate to the facts.'

(People v Suarez, __ NY3d at __.)

Indeed, for purposes of a single-victim homicide (i.e. excluding the "shooting/driving/throwing a grenade into a crowd" scenario),the Court has limited the proper scope of "depraved indifference" murder to two rare factual situations:

[D]epraved indifference murder can also be found in certain unintentional killings involving only a single individual. These limited cases are those in which--although the intent to kill is absent--the defendant's utter depravity in causing the victim's death warrants punishment in excess of that available for manslaughter. [...]

Two fact patterns have recurred over the past four decades of experience under the Revised Penal Law. First, when the defendant intends neither to seriously injure, nor to kill, but nevertheless abandons a helpless and vulnerable victims in circumstances where the victim is highly likely to die, the defendant's utter callousness to the victim's moral plight--arising from a situation created by the defendant--properly establishes depraved indifference murder. [...] Second, . . . the crime is . . . established when a defendant--acting with a conscious objective not to kill but to harm--engages in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim.

(Id. at __.)

I would guess the Court's per curiam opinion will have its (apparently) intended effect of dramatically reducing the charging of "depraved indifference" murder to a rare subclass of murder, and thereby avoid entirely the thorny issues that arise when the jury convicts a defendant of depraved indifference murder where the evidence shows a manifest intent to kill. Of course, the Court is also (quite legitimately) attempting to spare itself the unpleasant task of reversing those "depraved indifference" convictions, and opening the prison gates on intentional killers because prosecutors and trial courts want to have their cake and eat it, too.

One quick nit to pick from the decision: in discussing the difference between "depraved indifference" murder and manslaughter in the first degree, the Court notes:

[S]omeone who intends to cause serious physical injury does not commit depraved indifference murder because the intended victim dies. By definition, "serious physical injury" includes injury "which creates a substantial risk of death, or which causes death". Thus, one who acts with the conscious intent to cause serious physical injury, and who succeeds in doing so, is guilty only of manslaughter in the first degree. Otherwise, every intentional manslaughter would also establish depraved indifference murder--a result plainly at odds with the discrete classification set forth in the statute.

(Id. at ___.)

I strongly disagree with that bolded bit. In fact, it does not take much imagination to think of a fact scenario where a person can intend to cause serious physical injury and ultimately cause death, but not create and disregard a grave risk of death in doing so. For example: suppose Victim owes substantial gambling debts to Defendant. Defendant cuts off Victim's thumb to encourage payment. Unbeknowst to Defendant, Victim has no clotting agents in his blood, and bleeds to death before treatment can be rendered. In that scenario, a conviction for first degree manslaughter is clearly made out: Defendant intended to cause serious physical injury (cutting off the thumb), and death resulted. However, it does not follow that "depraved indifference" murder is made out, because the harm inflicted did not create a grave risk of death, and Defendant did not ignore any such risk by cutting the thumb off.

But the flip-side is also true--in certain situations, a conviction for manslaughter in the first degree and a conviction for depraved indifference murder can be completely consistent. The reason is simple: a person can act with a different mental state for different results. For example: say our Victim owes gambling debts, but this time Defendant cuts off Victim's leg and leaves him bleeding on a busy street corner. Victim dies as a result of his wounds. The Defendant testifies that he had no intent to kill, because then he would never collect his debt. Assume the jury believes Defendant. In that case, a conviction for manslaughter in the first degree is clearly made out: Defendant intended to cause serious physical injury, and death resulted. I would also argue that a conviction for depraved indifference murder is made out, because Defendant, while not intending to cause death, arguably created a grave risk of death by cutting off Victim's leg, and ignored that risk in going ahead with the amputation. I would argue both counts are consistent, both could be submitted to the jury, and the jury could convict on both: as to the outcome of serious physical injury, Defendant acted intentionally; as to the outcome of death, Defendant acted recklessly (by creating the grave risk of death and ignoring it) under circumstances evincing a depraved indifference to human life.

I understand what the Court of Appeals is doing--they are clarifying a messy area of the law and providing (hopefully) clear guidelines for trial courts to follow. However, I think the Court's conclusory holding that every time a defendant intends to cause serious physical injury and death results he "is guilty only of manslaughter in the first degree" ignores that a defendant can have separate, distinct mental states for different distinct results.

Moreover, this distinction between manslaughter in the first degree and "depraved indifference" murder may lead to some counter-intuitive outcomes. Take a fact scenario similar to the one encountered in People v Kibbe (35 NY2d 407). The Court in Suarez held out the facts of Kibbe as the quintessential "depraved indifference" murder; as the Court notes, the defendants in Kibbe "robbed an intoxicated victim and forced him out of a car on the side of a dark, remote, snowy road, partially dressed and without shoes in subfreezing temperatures, where he was struck by a passing truck and killed." (Suarez, __ NY3d at ___.) Fair enough. But change the facts a little, and assume the intoxicated victim was robbed, intentionally stabbed in the thigh and then dumped on the side of the road in subfreezing temperatures, and the victim died of blood loss (with death's arrival hastened by exposure). By the majority's logic in Suarez, this fact pattern can only support a conviction for manslaughter in the first degree (because defendant intentionally inflicted a serious physical injury [the stab wound to the thigh] and death resulted). But this is counter-intuitive, because if the defendant been less evil and not stabbed the victim in the leg before dumping him, then he would be subject to the much more severe criminal sanction of a "depraved indifference" murder conviction. I think this is unnecessarily rigid--why not hold instead that a conviction for manslaughter in the first degree does not necessarily preclude a conviction for "depraved indifference" murder because the relevant mens reas are not mutually exclusive (i.e. two different mens reas for two different results [intentionally causing serious physical injury, recklessly causing death])?

Perhaps this is why the three-judge concurrence notes that "law school hypotheticals are not the stuff of day-to-day criminal courts." (Id. at __.) More on the concurring opinions and Judge Graffeo's dissent soon.