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 ); driving an automobile along a crowded sidewalk at high speed [*10](see People v Gomez, 65 NY2d 9 ); 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.