Criminal Law and Procedure

Abraham Abramovsky

01-09-2006


On Dec. 22, 2005, in People v. Suarez, 2005 N.Y. LEXIS 3431 (2005), the New York Court of Appeals revisited the elements of depraved indifference murder for the fifth time in three years. The Suarez case will likely not be the high court's last decision on this topic, but it is a seminal one, because the court finally struck a balance between the classic definition of depraved indifference to human life and the "objective" definition adopted in People v. Register, 60 NY2d 270 (1983).

Seminal Case

In Suarez, the Court of Appeals distilled its recent depraved indifference jurisprudence into a firm holding that depraved indifference murder can be charged only under certain narrowly circumscribed factual circumstances. In doing so, the court put an end to two decades of ambiguity in the application of the depraved indifference murder statute.

As I have discussed in previous columns,¹ depraved indifference murder was traditionally charged under circumstances where the defendant did not intend to kill but acted with a reckless and wanton disregard for human life. This could occur, for instance, where the defendant drove at high speed on a crowded sidewalk, dropped boulders from a height onto a highway, or fired a gun at a crowd of people. From the first New York depraved indifference murder cases in the 1820s until the Register decision of 1983, this was also the understanding of depraved indifference utilized in New York courts.

In Register, however, the Court of Appeals replaced the traditional element of wanton recklessness with an "objective" approach. Under the Register formula, depraved indifference to human life was treated as "neither the mens rea nor the actus reus" but was based solely on the degree of risk created by the defendant's conduct. After Register, manslaughter in the second degree required reckless disregard of a substantial risk of death, while depraved indifference murder involved reckless disregard of a "very substantial" risk. See Register, 60 NY2d at 277.

Both the dissent in Register and subsequent dissenters warned that the narrowness of this distinction would result in depraved indifference murder becoming a substitute for both manslaughter in the second degree and for intentional murder. The difference between a "substantial" and a "very substantial" risk of death was so fine that nearly any case of reckless homicide could be characterized as depraved indifference murder under the Register definition. Moreover, given that classically intentional conduct such as shooting or stabbing could be characterized as creating a "very substantial" risk of death, the Register formula opened the door for almost any murder case where the evidence intent was ambiguous to be charged under the depraved indifference murder statute.

In a warning that was to prove prophetic, Judge Joseph Bellacosa's dissent to People v. Roe, 74 NY2d 20 (1989) contended that the "obliteration of the classical demarcation between murder and manslaughter in this State" opened the door to strategic use of "twin-count" indictments in which both intentional and depraved indifference murder were charged. This not only prejudiced defendants by labeling them as "depraved," but posed a substantial risk that juries who were uncertain of the defendant's guilt would convict him of depraved indifference murder under the mistaken belief that it was a lesser included offense. See id. at 35-36 (Bellacosa, J., dissenting).

The 'Sanchez' Case

The Court of Appeals' next major examination of depraved indifference murder, and the beginning of the series of cases that culminated in Suarez, occurred in People v. Sanchez, 98 NY2d 373 (2002). In Sanchez, a narrow four-judge majority upheld the Register formula, but the three dissenting judges made a persuasive argument that the 20-year experiment with an objective approach to depraved indifference had failed. Judge Albert Rosenblatt, in particular, noted that Judge Bellacosa's prediction had come true, and that the number of "twin-count" indictments in New York had risen steadily since Roe was decided. Indeed, by 2001, "twin-count" indictments accounted for 56 percent of murder indictments in New York, suggesting that depraved indifference murder charges had become a "tactical weapon of choice" for prosecutors even in cases of clearly intentional homicide. See id. at 401-03 (Rosenblatt, J., dissenting).

Although the Sanchez majority reaffirmed Register, that decision represented the high-water mark of the objective definition of depraved indifference. In two subsequent cases, People v. Hafeez, 100 NY2d 253 (2003) and People v. Gonzalez, 1 NY3d 464 (2004), commanding majorities of the Court of Appeals held that one-on-one shootings or stabbings constituted "quintessentially intentional" conduct that could not support a depraved indifference murder conviction. Although these decisions did not overrule Register, they chipped away at its holding by sharpening the distinction between intent and depraved indifference to human life.

Then, in October 2004, the court decided People v. Payne, 3 NY2d 266 (2004). Like Hafeez and Gonzalez, the Payne decision involved a one-on-one shooting at point-blank range, and the court found that the defendant's conduct was solely consistent with intentional murder. The majority opinion in Payne, however, was written by Judge Rosenblatt, who in addition to reversing the conviction under the facts of the case, made the further statement that "depraved indifference murder may not be properly charged in the overwhelming majority of homicides that are prosecuted in New York." Id. at 269. Moreover, Judge Rosenblatt stated that New York law recognized two "species" of depraved indifference to human life: acts that posed a danger to the public at large, and acts that were directed at a single person but characterized with "uncommon brutality." See id. at 270-71. The majority thus concluded that "a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder," and that "[f]iring more rounds or inflicting more wounds does not make the act more depravedly indifferent, but more intentional." Id. at 271. The majority further characterized the distinguishing element of depraved indifference to human life, not as an objective degree of risk, but "a depraved kind of wantonness." Id. at 272.

Revolutionary Belief

It was widely believed that Payne would revolutionize the prosecution of homicides in New York, and the decision was indeed followed by a reduction in the number of "twin count" indictments presented to New York grand juries. However, the majority opinion in Payne was interpreted as being ambiguous because, although its holding did not rest on Register, it also did not explicitly overrule the Register formula. Thus, the departments of the Appellate Division were divided on whether Judge Rosenblatt's discussion of the "species" of depraved indifference established a binding test.

For instance, in People v. Atkinson, 21 AD3d 145, 157-61 (2d Dept. 2005), a panel of the Second Department concluded that Judge Rosenblatt's discussion of the elements of depraved indifference was dicta and that Payne "[did] not . . . effect a substantive change in the law of this State." The Third Department followed Atkinson in People ex. rel. Parsons v. Walsh, 21 AD3d 1169 (3d Dept. 2005), finding that Payne "did not declare a retroactive change in the law but, rather, applied existing case law." In contrast, the Fourth Department in People v. Lawhorn, 21 AD3d 1289 (4th Dept. 2005) found that Payne established a binding test and that a depraved indifference murder conviction could not stand unless it fell within one of the two categories described by Judge Rosenblatt. Thus, the stage was set for the Court of Appeals to decide Suarez.

The Suarez decision in fact involved two companion cases, each involving a one-on-one killing that was prosecuted as both intentional and depraved indifference murder. In the first of these cases, defendant Santos Suarez stabbed his girlfriend three times in the throat, chest and abdomen, fled without summoning medical aid and left her to die. At trial, he testified that the victim had originally lunged at him with the knife and that he had "wrested the knife away and . . . lunged back at her." See Suarez, 2005 N.Y. LEXIS 3431, *3. He was prosecuted on a "twin count" indictment, and the jury acquitted him of intentional murder but convicted him of depraved indifference murder.

In the second case, the defendant, Trisha McPherson, stabbed her former boyfriend during an argument over child support. She told the police that the victim "pushed her . . . [and] then raised his hand as if to hit her," whereupon she pulled a knife out of her purse and stabbed him once in the chest. See id. at *3. She called 911 and requested an ambulance, but the victim bled to death at the hospital. See id. at *4. Like Mr. Suarez, Ms. McPherson was prosecuted on a twin-count indictment and convicted only of depraved indifference murder.

No Depraved Indifference

The Court of Appeals concluded that, on the facts presented, neither Mr. Suarez nor Ms. McPherson could be found guilty of depraved indifference murder. In Ms. McPherson's case, the court was unanimous in reversing the conviction while in Mr. Suarez' case, the decision was reached by a six-judge majority. See id. The greatest significance of the case, however, is that the same six-judge majority explicitly departed from Register and restricted the factual situations under which depraved indifference murder could be charged.

As in the Sanchez dissent, the per curiam majority in Suarez noted that the Register formula had resulted in a "proliferation of the use of depraved indifference murder as a fallback theory under which to charge intentional killers," and that this "reflect[ed] a fundamental misunderstanding of the depraved indifference murder statute." Id. at *7. As a result, the court was "compel[led] . . . for now and for the future to revisit what is unique and distinctive about that crime as defined by the Legislature." Id. In doing so, the majority recognized both that further "guidance" was necessary "to enable prosecutors, juries, trial courts and reviewing courts to function without risk of reversal" and that significant restrictions were necessary in order to prevent further "misapplication of the depraved indifference murder statute." See id. at *7-8.

As a graphic example of the flaws of the Register approach, the court noted that the prosecutors in the Suarez and McPherson cases pointed to precisely opposite facts as evidence of depraved indifference to human life. In Mr. Suarez' case, the prosecution argued that the defendant's flight from the scene without "finishing [the victim] off" proved that he did not intend to kill, and that his depraved indifference to human life was proved by the fact that he "did nothing to save her." See id. at *10. In contrast, the McPherson prosecutors argued that depraved indifference was proved by the fact that she did try to save her victim, because "her very actions in summoning assistance show that she did not intend for the victim to die." Id. at 11. The majority stated that, where it can be argued that "both the rendering of assistance and the failure to render assistance serve to establish depraved indifference, there must be a fundamental misapprehension of the concept of the crime." Id. at *12.

'Suarez' Rules

The Suarez court therefore set down firm rules about what depraved indifference murder is — and, just as importantly, what it is not. First, the court held that depraved indifference to human life must be evaluated "irrespective of what the actor does or does not do after inflicting the fatal injury" and must be determined solely by the circumstances surrounding the fatal act itself. See id. It then held that, in order to adequately distinguish depraved indifference murder from manslaughter or intentional murder, it could only be charged under "a few rare circumstances." Specifically, in cases involving one-on-one killings, these circumstances include abandonment of a vulnerable victim to likely death under circumstances of "utter callousness to the victim's mortal plight," or brutal and prolonged courses of conduct that "intensify or prolong a victim's suffering." See id. at *17-19. If "comparable facts are not shown," a jury is "foreclosed as a matter of law from considering depraved indifference murder . . . [as a] result of a one-on-one confrontation." See id. at *19.

The majority also held that, where the defendant was accused of causing danger to the general public rather than a single person, only classic acts of depraved indifference would support a murder conviction. See id. at *20-21. The defining characteristic of depraved indifference, under Suarez, is therefore "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." Id. at *20. Thus, the Suarez court unequivocally "depart[ed] . . . from the Register formulation" and "[made] clear that the additional requirement of depraved indifference has meaning independent of the gravity fo the risk." Id. at *22-23.

New York Law Has Changed

In light of Suarez, it is now indisputable that New York law has changed. In contrast to Payne, in which the majority opinion was ambiguous enough that two departments of the Appellate Division could characterize it as consistent with Register, the Suarez court explicitly narrowed the Register formula. Moreover, it also made a significant procedural change, by mandating that trial courts "presume that the defendant's conduct falls within only one category of murder" and dismiss the count "least appropriate to the facts" prior to jury deliberations. Id. at *24. Therefore, the court took both substantive and procedural steps to minimize the risk that "twin-count" indictments would be used tactically and that juries would use depraved indifference murder as a compromise verdict in close cases.

Remaining Issues

While Suarez is a seminal case, several issues remain to be decided, most notably whether its holding should be applied retroactively on collateral review. This issue was raised in a three-judge concurrence that welcomed the per curiam opinion but argued that Register "should be explicitly overruled." See id. at *28 (G.B. Smith, J., concurring). In making this argument, however, the concurring judges also observed that "[w]e expect, or at least hope, that the rule embodied in this [decision] . . . will be applied prospectively" because "[d]efendants who committed vicious crimes but who may have been charged and convicted under the wrong section of the statute are not attractive candidates for collateral relief." Id. at *29.

This dicta, while understandable, may well be open to debate. Traditionally, New York Court of Appeals decisions that narrow the elements of a crime have been applied retroactively on collateral review. For instance, in People v. Hill, 85 NY2d 256, 262-63 (1995), the Court of Appeals held that the Ryan rule requiring knowledge of drug quantity must be applied retroactively because a contrary conclusion "would result in a person's guilt even though one of the elements of the crime had not been established." The fundamental consideration in deciding whether to give retroactive application to new rules of criminal law is the defendant's right to be convicted only if the prosecution proved the elements of the crime. In past cases, this has, as a regrettable necessity, resulted in certain defendants who might be considered "unattractive" being set free.

Mistaken Belief of Mercy

In addition, and just as importantly, many of the defendants wrongly convicted under the Register formula may not have "committed vicious crimes" at all. The reported cases suggest that many of "twin count" indictments that result in depraved indifference murder convictions present significant mitigating circumstances, most often conflicting evidence of self-defense. Indeed, both the Suarez and McPherson cases were of this type. As Judges Bellacosa and Rosenblatt noted, juries who do not fully accept the defendant's claims but believe there are mitigating circumstances may convict of depraved indifference murder on the mistaken belief that they are extending mercy. If not for Register, many of these defendants would never have been convicted of murder, but would instead have been acquitted or convicted of some lesser charge for which they have already served a substantial number of years in prison.

Now that the Court of Appeals has corrected its mistake in Register, the New York courts owe these defendants a second look. In some cases, the record may indeed show a crime sufficiently brutal to qualify as depraved indifference murder, but at the very least, these wrongly convicted defendants deserve an opportunity to relitigate their cases in court on the merits.

Abraham Abramovsky is a professor at the Fordham University School of Law and the director of the Fordham University International Criminal Law Center. Jonathan I. Edelstein, an attorney in private practice, assisted in the research and preparation and writing of this column.

Endnotes:

1. See, e.g., Abraham Abramovsky, "Depraved Indifference to Human Life," NYLJ, Nov. 30, 1993, p.3; Abraham Abramovsky, "Depraved Indifference and the Incompetent Doctor," NYLJ, Nov. 8, 1995, p.3; Abraham Abramovsky, "Depraved Indifference to Human Life," NYLJ, Dec. 27, 1995, p.3; Abraham Abramovsky, "Re-Evaluating Depraved Indifference Under New York Law," NYLJ, June 24, 2003, p.3; Abraham Abramovsky, "'People v. Payne': Another Nail in 'Register's' Coffin," NYLJ, Dec. 15, 2004, p.3; Abraham Abramovsky, "Prosecutorial Abuse of Depraved Indifference Murder Charges," NYLJ, Sept. 2, 2005, p.3.