People v. Register

Decision Date29 November 1983
Citation60 N.Y.2d 270,469 N.Y.S.2d 599,457 N.E.2d 704
Parties, 457 N.E.2d 704 The PEOPLE of the State of New York, Respondent, v. Bruce REGISTER, Appellant.
CourtNew York Court of Appeals Court of Appeals
OPINION OF THE COURT

SIMONS, Judge.

Defendant appeals from an order of the Appellate Division which affirmed a judgment entered after a jury trial convicting him of murder in the second degree (Penal Law, § 125.25, subd. 2 [depraved mind murder] ) and two counts of assault in the first degree (Penal Law, § 120.10, subd. 1). The charges arose from a barroom incident in which defendant shot and killed one man and seriously injured two others. He alleges that the evidence was insufficient to support the murder conviction and that the trial court erred in refusing to instruct the jury that it could consider intoxication evidence to negate an element of the crime of depraved mind murder. He also assigns error in rulings during the examination and cross-examination of his expert witness, claiming that the court limited his right to develop psychiatric evidence on the effect of alcohol on his conduct.

There should be an affirmance. The evidence supports the conviction and the court's instructions were correct. Moreover, the court did not abuse its discretion in its rulings during the examination of defendant's expert (cf. People v. Cronin, 60 N.Y.2d 705, 468 N.Y.S.2d 1029, 455 N.E.2d 1270).

The shootings occurred about 12:30 a.m. on January 15, 1977 in a crowded barroom in downtown Rochester. The evidence established that defendant and a friend, Duval, had been drinking heavily that day celebrating the fact that Duval, through an administrative mixup, would not have to spend the weekend in jail. Sometime between 7:00 p.m. and 8:00 p.m., the two men left home for the bar. Defendant took a loaded pistol with him and shortly after they arrived at the bar, he produced it when he got into an argument with another patron over money owed him. Apparently the dispute ended without incident and defendant continued his drinking. After midnight another argument developed, this time between Duval and Willie Mitchell. Defendant took out the gun again, shot at Mitchell but mistakenly injured Lawrence Evans who was trying to stop the fight. He then stepped forward and shot Mitchell in the stomach from close range. At that, the 40 or 50 patrons in the bar started for the doors. Some of the bystanders tried to remove Mitchell to a hospital and while they were doing so, the decedent, Marvin Lindsey, walked by defendant. Lindsey was apparently a friend or acquaintance of defendant although that was the first time he had seen him that night. For no explained reason, defendant turned and fired his gun killing Lindsey.

Defendant did not contest the shootings. In defense, his counsel elicited evidence during the prosecution's case of defendant's considerable drinking that evening and he called as his only witness a forensic psychiatrist who testified on the debilitating effects of consuming alcoholic beverages. The jury acquitted defendant of intentional murder but convicted him of depraved mind murder and the two assault counts.

The murder conviction must be supported by evidence that defendant "[u]nder circumstances evincing a depraved indifference to human life * * * recklessly engage[d] in conduct which create[d] a grave risk of death to another person, and thereby cause[d] the death of another person" (Penal Law, § 125.25, subd. 2). A person acts recklessly when he is aware of and consciously disregards a substantial and unjustifiable risk (Penal Law, § 15.05, subd. 3), but to bring defendant's conduct within the murder statute, the People were required to establish also that defendant's act was imminently dangerous and presented a very high risk of death to others and that it was committed under circumstances which evidenced a wanton indifference to human life or a depravity of mind (see People v. Poplis, 30 N.Y.2d 85, 88, 330 N.Y.S.2d 365, 281 N.E.2d 167; People v. Jernatowski, 238 N.Y. 188, 144 N.E. 497; Darry v. People, 10 N.Y. 120, 148; see, generally, LaFave and Scott, Criminal Law, Depraved-Heart Murder, § 70, pp. 541-545; Gegan, A Case of Depraved Mind Murder, 49 St. John's L.Rev. 417, 447). The crime differs from intentional murder in that it results not from a specific, conscious intent to cause death, but from an indifference to or disregard of the risks attending defendant's conduct.

Whether the risk of defendant's conduct was of the type condemned by the Penal Law was to be decided by the trier of the facts aided by appropriate instructions (People v. Licitra, 47 N.Y.2d 554, 419 N.Y.S.2d 461, 393 N.E.2d 456, citing People v. Haney, 30 N.Y.2d 328, 333 N.Y.S.2d 403, 284 N.E.2d 564; People v. Angelo, 246 N.Y. 451, 159 N.E. 394). The jury's proper role, as the Appellate Division found, was to make a qualitative judgment whether defendant's act was of such gravity that it placed the crime upon the same level as the taking of life by premeditated design (90 A.D.2d 972, 973, 456 N.Y.S.2d 562; see, also, People v. Le Grand, 61 A.D.2d 815, 402 N.Y.S.2d 209, cert. den. 439 U.S. 835, 99 S.Ct. 117, 58 L.Ed.2d 130; ALI Model Penal Code, § 210.2, subd. [1], par. [b], comment, at pp. 21-22 [1980] ). It had to determine from the evidence if defendant's conduct, though reckless, was equal in blameworthiness to intentional murder.

The evidence in the record supports the verdict. Defendant's awareness of and indifference to the attendant risks was established by evidence that he entered a crowded bar with a loaded gun, he said that he was "going to kill somebody tonight", or similar words, several times, and he had brought the gun out in the bar once before during the evening only to be told to put it away. Ultimately, he fired the gun three times in the "packed" barroom, conduct which presented a grave risk of death and did in fact result in the death of Marvin Lindsey. His conduct was well within that defined by the statute (see Penal Law, § 125.25, subd. 2; § 15.05; People v. Jernatowski, 238 N.Y. 188, 144 N.E. 497, supra; Hechtman, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 39, Penal Law, § 125.25, p. 399; LaFave and Scott, Criminal Law, Depraved-Heart Murder, § 70, p. 543).

At the conclusion of the evidence and after the charge, defendant requested the court to instruct the jury on the effect of intoxication (see Penal Law, § 15.25). The court complied with the request when discussing the intentional murder and assault counts, but it refused to charge the jury that it could consider defendant's intoxication in determining whether he acted "[u]nder circumstances evincing a depraved indifference to human life" in causing the death of Marvin Lindsey. The court held that the mens rea required for depraved mind murder is recklessness and that subdivision 3 of section 15.05 of the Penal Law precludes evidence of intoxication in defense of reckless crimes because it provides that "[a] person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly". That ruling is assigned as error by defendant. He contends that depraved mind murder contains a different or additional element of mental culpability, namely "circumstances evincing a depraved indifference to human life", which elevates defendant's conduct from manslaughter to murder and that this additional element may be negatived by evidence of intoxication (see Penal Law, § 15.25).

The Penal Law does not expressly define the term "element". However, it does set forth what the "elements" of an offense are and identifies them, as does the common law, as a culpable mental state (mens rea ) and a voluntary act (actus reus ) (Penal Law, § 15.10). Both are required in all but the strict liability offenses (id.). Consistent with that provision, the statutory definition of depraved mind murder includes both a mental element ("recklessly") and a voluntary act ("engaging in conduct which creates a grave risk of death to another person") (see Penal Law, § 125.25, subd. 2; §§ 15.05, 15.10). Recklessness refers to defendant's conscious disregard of a substantial risk (Penal Law, § 15.05, subd. 3) and the act proscribed, the risk creating conduct, is defined by the degree of danger presented. Depraved mind murder resembles manslaughter in the second degree (a reckless killing which includes the requirement that defendant disregard a substantial risk [Penal Law, § 125.15, subd. 1; § 15.05, subd. 3] ), but the depraved mind murder statute requires in addition not only that the conduct which results in death present a grave risk of death but that it also occur "[u]nder circumstances evincing a depraved indifference to human life." This additional requirement refers to neither the mens rea nor the actus reus. If it states an element of the crime at all, it is not an element in the traditional sense but rather a definition of the factual setting in which the risk creating conduct must occur--objective circumstances which are not subject to being negatived by evidence of defendant's intoxication.

The view is supported by an analysis of the statutory development of the crime. Because of an inability to quantify homicidal risks in precise terms, the Legislature structured the degree of risk which must be present in nonintentional killings by providing that in a depraved mind murder the actor's conduct must present a grave risk of death whereas in manslaughter it presents the lesser substantial risk of death (see, also, Penal Law, § 15.05, subd. 4 [criminal negligence, a failure to perceive a substantial risk] ). The phrase "[u]nder circumstances evincing a depraved indifference to human life"...

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