People v. Colville

• Decision Date: 23 October 2012
• Parties: The PEOPLE of the State of New York, Respondent, v. Delroy COLVILLE, Appellant.
• Court: New York Court of Appeals Court of Appeals

20 N.Y.3d 20

979 N.E.2d 1125

955 N.Y.S.2d 799

2012 N.Y. Slip Op. 07047

The PEOPLE of the State of New York, Respondent,

v.Delroy COLVILLE, Appellant.

Court of Appeals of New York.

Oct. 23, 2012.

Charles J. Hynes, District Attorney, Brooklyn (Anthea H. Bruffee and Leonard Joblove of counsel), for respondent.

OPINION OF THE COURT

READ, J.

We hold that the decision whether to seek a jury charge on lesser-included offenses is a matter of strategy and tactics which ultimately rests with defense counsel. At defendant Delroy Colville's trial for second-degree murder, the trial judge agreed with the defense attorney that a reasonable view of the evidence supported his request to submit the lesser-included offenses of first- and second-degree manslaughter to the jury. But contrary to defense counsel's request and repeated statements that, in his professional judgment, the lesser-included offenses should be given to the jury, the judge did not do so because defendant objected. The jury found defendant guilty of murder; we now reverse and order a new trial.

I.

On October 28, 2004, defendant stabbed and killed Gregory Gardner with a chef's knife, which belonged to him, and sliced open the lip of another man, Carl Jones. This violence erupted on the third floor of a single-room occupancy brownstone-type duplex where defendant resided; defendant and the occupants of the four other bedrooms on the third-floor, one of whom was Jones, shared a kitchen and bathroom. In defendant's telling, he was confronted and attacked in the kitchen by Gardner, Jones's guest; and Gardner, a much younger and bigger man, repeatedly pummeled him in the head with a heavy glass ashtray, rendering defendant bloody and nearly unconscious and leading him, in fear for his life, to grab the knife from the kitchen sink counter to protect himself. In the ensuing struggle, as he and Gardner “tumbled all over the place,” defendant stabbed Gardner and cut Jones's lip as he “flashed him off” with the knife.

Jones, his 11–year–old son and Abnor George, another third-floor resident, gave a markedly different account. None of these witnesses was present for the entirety of the encounter between defendant and Gardner. Additionally, Jones's girlfriend, who allegedly suffered a knife wound while trying to protect Gardner from defendant, apparently did not give a statement to the police, and was out of the country during defendant's trial. While there was little dispute that Gardner hit defendant in the head with an ashtray, there was testimony that defendant was the aggressor; that George took the ashtray from Gardner and broke up the fight; that Gardner was headed peacefully to the hallway and down the stairs when defendant ran into his bedroom and emerged with the knife in hand; and that defendant set upon Gardner, plunging the knife into his left side, and injured Jones as he was attempting to wrest the knife away.

Gardner, bleeding profusely and mortally wounded, managed to make his way to the street before collapsing in front of a tree. The police, who arrived almost immediately, followed a trail of blood from Gardner into the building and up the staircase, encountering the injured Jones along the way. Jones identified defendant as the assailant, described what he was wearing and directed the police to the third floor. There, after forcing open the only bedroom door that was locked, they discovered defendant in the closet and arrested him. Defendant insisted that he had acted in self-defense. As the police were escorting him out of the house, defendant pointed out a mailbox in the vestibule, where he had stashed the knife. Later that evening defendant was taken to a hospital and his head wound was closed with seven stitches.

Defendant was subsequently indicted and tried before a jury for the crimes of second-degree murder for the killing of Gardner (Penal Law § 125.25[1] ), and second-degree assault for slashing Jones (Penal Law § 120.05[2] ). The trial record closed with defendant's testimony on the Friday before a three-day holiday weekend. At the conference immediately following, the judge announced his intention to charge justification with respect to the murder count, at the defense attorney's request. The attorney, stating that he had “discussed this with [defendant],” also asked the judge to charge the lesser-included offenses of first- and second-degree manslaughter (Penal Law §§ 125.20, 125.15), adding that he had “told [defendant] that, in [his] view, murder, alone, should not be submitted to the jury.”

The judge, however, expressed the opinion there was “no reasonable view of the evidence ... that would support the elements [of manslaughter], either reckless or intentional.” The prosecutor agreed. After the defense attorney objected, the judge told him to raise the issue again when the trial resumed, noting that he was “not going to say this is written in stone, if you can convince me it's appropriate, but, at this point, I don't see it.” Still, the judge added that he entertained “an inclination” to view second-degree manslaughter as “potentially ... appropriate,” based on defendant's videotape statement to the police, which was shown to the jury, and “certain elements” of his just completed trial testimony. The judge advised that he would have such a charge ready.

The record, which picks up on the following Tuesday, establishes that in off-the-record discussions earlier that morning the judge had agreed to submit both lesser-included offenses to the jury, as the defense attorney requested; the prosecutor had “acquiesce[d]” to charging first-degree manslaughter; and the judge had prepared a verdict sheet that included both first-and second-degree manslaughter. The issue arose on the record again because defendant balked.

The defense attorney recounted that he had “spent the better part” of the three-day weekend “reviewing transcripts, evidence, preparing arguments, doing legal research” since he had indicated on Friday that he “wished lesser included charges to be charged to this jury”; namely, first- and second-degree manslaughter. He then advised the judge that defendant, “if I understand it correctly, does not wish those charges to go to the jury ... [which] represents ... a change of position.” He added that “as the attorney here, I am only ... as the Supreme Court has said, the guiding hand”; and that “[i]t is my opinion as a matter of strategy, trial strategy, and as a matter of sound practice, it is my opinion that lesser includes should be submitted” so as to give the jury latitude. He observed that he was “trying to protect [defendant] here.”

When the judge asked the defense attorney if he was “withdrawing” his request for lesser-included offenses to be given to the jury, the attorney replied “I am checking with the defendant.” At that point, the judge responded that “[i]f that is where we are going, instead of using you, why don't I ask [defendant].” The judge questioned defendant directly and confirmed that he, indeed, did not want the jury to consider manslaughter. Defendant gave no reason for his stance; he simply conveyed a sense of resigned fatalism, lamenting that “[i]f the jury feels that I intentionally caused the death of Mr. Gardner, there is nothing I can do about it,” and declaring that he was prepared for whatever decision the jury might make.

Hearing this, the defense attorney asked to confer with his client again. The judge agreed to give him five minutes, but pointed out that the jury was waiting and that “[w]e have gone through this three times.” The defense attorney countered “I understand, but I view this as so critical.” At that point, the prosecutor jumped in, stating that the People requested a charge of first-degree manslaughter to “protect the appellate record.” The judge, admonishing that he was “going to stop” the prosecutor right there, added “[t]hat is the last we are going to hear about it. I will have [the defense attorney] discuss with [defendant] whether or not he wants to include those lesser included offenses. If he does, we will come back in 5 minutes.” With that, the judge directed the defense attorney to review the proposed charge, which included intentional and reckless manslaughter, with his client.

After the brief recess, the judge twice verified with defendant that he did not want the jury to consider first- and second-degree manslaughter. The defense attorney made clear that he had advised defendant against this course of action, explaining to him “that the punishment for murder exceeds greatly the punishment for the lesser included[s], and I know what my advice would be,” to which the judge interjected “[i]t's actually what your advice was.” The judge, after confirming with defendant yet again that he did not want the jury charged on the lesser-included offenses, advised “[s]o I am taking them out,” and handed down a verdict sheet specifying two crimes only: second-degree murder and second-degree assault.

When the judge asked the defense attorney if he had reviewed the verdict sheet himself and shared it with defendant, the attorney replied affirmatively, and noted that he was “showing the verdict sheet to [defendant] with the two charges” because he “want[ed] to make sure it's satisfactory to him ... [and] to make sure that [he] ha[d] discharged [his] ethical obligation” to his client. The judge reassured him that

“we can't do any more than we have done. We have explained everything. The record is clear. We have included what [defendant] wants included. We have taken [out] what [defendant] wants taken out. The Court was willing to acquiesce to your requests[, but a]t this point, we are going to go with murder 2 and assault 2.”

The judge then asked the defense attorney if he had any objection to the verdict sheet, and the following exchange ensued:

“[DEFENSE COUNSEL]: No. To the verdict sheet as it stands now, it doesn't give the jury all the charges that I requested.

“As...