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People v. Suarez-Oh the Thoughts I'd be Thinkin', I Could Be Another Lincoln...

I felt a bit dizzy after my first review of of People v. Suarez, 2005 N.Y. Slip Op. 09811, the case decided  on December 22, 2005 in which the Court of Appeals offered "clarification" regarding the state of mind required for depraved indifference murder.  In my opinion, the logical flow of this opinion was somewhat circular and the Court's multiple definitions and examples of "depraved indifference murder" were anything but clear.  Nevertheless, the following is my attempt to clarify the Court's "clarification".   And, this is a long post, folks, so bear with me.

Two separate convictions for depraved indifference murder were appealed, and the Court concluded that neither constituted depraved indifference murder.  The first death resulted from a domestic dispute wherein the accused was alleged to have stabbed his girlfriend three times.  He then fled the scene without calling for assistance and she bled to death.  The second death also resulted from a domestic squabble during which the accused allegedly stabbed her boyfriend in the chest, which ultimately resulted in his death.  She immediately called 911 and then fled the scene.

The Court sought to provide guidance to the lower courts and prosecutors regarding the appropriate standard for depraved indifference.  The Court stated that:

We therefore make clear that depraved indifference is best understood as an utter disregard for the value of human life — a willingness to act not because one intends harm, but because one simply doesn't care whether grievous harm results or not. Reflecting wickedness, evil or inhumanity, as manifested by brutal, heinous and despicable acts, depraved indifference is embodied in conduct that is "so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy" as to render the actor as culpable as one whose conscious objective is to kill (Russell, 91 NY2d at 287 [internal quotation marks and citation omitted])[FN8]. Quintessential examples are firing into a crowd (see e.g. People v Jernatowski, 238 NY 188 [1924]); driving an automobile along a crowded sidewalk at high speed [*10](see People v Gomez, 65 NY2d 9 [1985]); opening the lion's cage at the zoo; placing a time bomb in a public place; poisoning a well from which people are accustomed to draw water; opening a drawbridge as a train is about to pass over it; dropping stones from an overpass onto a busy highway.

The Court repeatedly advised that the mens rea of depraved indifference is rarely found in one-on-one murders and set forth the two primary situations wherein only one person is killed as a result of depraved indifference murder:

1) where the defendant does not intend to either kill or seriously injure another, but abandons a helpless, vulnerable victim in circumstances where the person is likely to die (such as robbing an intoxicated person and leaving him partially dressed on the side of a remote road in subfreezing weather thus resulting in his death when he was then hit by a truck), and

2)  where the defendant, acting with the intent to harm but not kill, "engages in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim" (such as beating a child repeatedly over a period of time thus resulting in the child's death). 

Another example offered by the Court that resulted in only one person's death was firing a gun at point blank range without knowing whether the bullet was a "live" or "dummy" round.

The Court advised that: 

Depraved indifference murder was never meant as a fallback crime enabling courts and juries to avoid making these difficult decisions. We therefore make clear that the statutory provision that a defendant act "[u]nder circumstances evincing a depraved indifference to human life" constitutes an additional requirement of the crime — beyond mere recklessness and risk — which in turn comprises both depravity and indifference, and that a jury considering a charge of depraved indifference murder should be so instructed...

Finally, the Court also stated that contrary to its previous holding in People v. Register, 60 N.Y.2d 270 (1983), "the additional requirement of depraved indifference has meaning independent of the gravity of the risk", and as a result, twin-count indictments should be rare, and twin-count submissions to a jury even rarer.

There is a very in depth and thorough discussion of this case over at Indignant Indigent that was posted by Eric on December 22 and I highly recommend that you read it.  However, I do disagree with one aspect of Eric's analysis.  In the second half of his post, Eric stated that he disagreed quite strongly with the Court's conclusion that: 

[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.

Eric disagreed with the bolded portion and offered a number of examples that would support his contention that "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."

However, in my opinion, each of the examples offered by Eric would fall under the second enumerated situation set forth above (in the 6th paragraph), wherein only one person is killed as a result of torture at the hands of the defendant.  In the examples offered by Eric, the victim loses a leg or thumb.  In my mind, chopping off a leg or thumb rises to the level of torture, and thus the defendant would be guilty of depraved indifference murder, contrary to Eric's assertion. 

I would be very interested in hearing other's thoughts on that issue.  Comments are welcome, as always, on that issue, as well as any others.

Comments

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wdegraw

Props to you both (I'm lumping in IndigentIndigent) for thoughtful and spirited analysis of this decision. I will only add that I was most struck by this passage from the decision:

Whether because jurors conclude that anyone who would intentionally take a life is depraved, or because they mistakenly believe that depraved indifference murder is a lesser offense than intentional murder and are reluctant to convict of the "most serious" charge, the availability of a depraved indifference murder count has led juries to convict of that charge even though the evidence did not support it (cites ommitted).

As the court noted, unlike in a shooting case or in the classic depraved indifference scenarios (as also pointed out by IndigentIndigent, ie shooting into a crowd, etc.) the act of merely sticking another person with a pointy object does not in and of itself prove an intent to kill. (Of course there are variations - like multiple plunges, bigger knives, etc.) Nevertheless, if the victim dies and intent evidence is equivocal, prosecutors can (and should!) argue that the defendant committed DI murder because, in substance, why else would someone stick a knife into someone else unless they were depravely indifferent to that person's life?

Practically speaking, I have a "hunch" that prosecutors do rely on jurors to hold the defendant accountable for murder - despite less than clear evidence of intent - and will "fall back" on DI murder as a de facto lesser included, particularly in stabbing cases.

That being said, Indigent's examples regarding the thumbs versus the legs were right on - in a purely academic sense, but I think that the forest here is a lot clearer than the trees.


Eric

I should have been more clear in my post--my thumb and leg amputation scenarios were only meant to address the mens rea problem. In order to have depraved murder, you need both a reckless mens rea AND the killing has to objectively occur under circumstances evincing a depraved indifference to human life. I agree with Nicole that an argument can be made that the amputation scenarios MIGHT get you there for depraved murder on the "circumstances evincing a depraved indifference bit" (although I am not sure cutting off a thumb is any more morally repugnant that stabbing someone in the neck), but you never get there unless the mens rea as to the killing is reckless. Not every act of torture creates a substantial and unjustifiable risk of death, even when injury is inflicted. My only point was one the per curiam opinion seems to gloss over without discussion--it seems reasonably that one can (by the same act) intend one result and be reckless as to another, i.e. in the case of a single stabbing, why can't the jury decide that a defendant intends to cause one outcome (serious physical injury for manslaughter 1st) and be reckless as to another (creating and disregarding substantial risk of death for depraved indifference)? Then I realize I am a defense attorney and probably should not be making this argument (because if employed it can salvage [at least on the mens rea end of the analysis] a depraved indifference murder count).

Wdegraw's point is well taken as well--I think it is fun to throw this stuff out there, but it really is a law-school hypothetical exercise. The Court's decision is a practical one, meant to stop twin indictments from being submitted.

All that said, Nicole's point is well-taken--the Court is covering itself coming and going in an attempt to get trial judges to stop submitting both intentional and depraved indifference murder to the jury. On the one hand, the Court is holding that an intentional act (stabbing or shooting) can almost never establish a reckless mens rea, and even if it does establish a reckless mens rea, the Court severely narrowed those factual situations that will support the objective "circumstances evincing a depraved indifference to human life" element.

Nicole Black


Eric, I enjoyed your thorough and insightful analysis of this case and agree that the Court's primary goal was to cover its hypothetical derriere while at the same time providing a workable formula for prosecutors and ADAs with the end goal of reducing the number of twin-count indictments. And, I agree that the Court's "formula" leaves a bit to be desired and has some holes in it.

I do think, however, that the torture prong may be used by ADAs more frequently post-Suarez by viewing it more expansively in an effort to get around the Court's attempt to limit twin-count indictments. In my experience (and yours as well, I'm sure!), prosecutors can be quite inventive if they feel that the occasion calls for it.

And, as Wdegraw acknowledged, it's more than likely that many prosecutors submitted the twin-count indictments in an effort to avoid a conviction for the lesser included charge of manslughter where the jury might conclude that the mens rea was not intentional. I expect that ADAs will be hard-pressed to give up that appealing fall back option, despite the Court's clear mandate to do otherwise.

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