Double jeopardy.

• Author: Martoche, Salvatore R.

1. INTRODUCTION

   The Fifth Amendment to the U.S. Constitution declares that "[n]o person shall be ... subject for the same offence to be twice put in jeopardy of life or limb." (1) The rule is simply stated and somewhat intuitive: a person should not be tried twice for the same crime. The lineage of the rule underscores its obviousness: the rule dates back to the twelfth century. (2) Despite its apparent simplicity, application of the rule has not been simple. As with many "rules of law," the devil is in the details. The underlying notion of double jeopardy requires, among other things, an examination of what it means to be placed "in jeopardy." (3) Certainly, it seems self-evident that a person charged with a crime who has gone to trial, faced all the resources of the government, and been acquitted of that crime by a jury of his peers, should rest easy that he or she can never be prosecuted again for that crime. But what of the defendant who has been charged with various crimes, some in the alternative, and was convicted of some crimes, but not others?

   This article will address the question of what happens in New York when two counts are charged in the alternative--specifically, intentional murder and depraved indifference murder--and the jury convicts on one of the counts. In a recent decision from the New York Court of Appeals, People v. Gause, (4) the court held that the defendant's conviction on the depraved indifference murder count amounted to an implied acquittal on the intentional murder count for double jeopardy purposes, and thus, despite overwhelming evidence of the defendant's participation in the crime, defendant was allowed to go free. (5) Unfortunately, this issue appears in several other cases in New York, arising from a combination of the evolving definition of depraved indifference murder and the proclivity of prosecutors to charge a defendant with both intentional murder and depraved indifference murder.

2. PEOPLE V. GAUSE

   Around one o'clock in the morning on January 26, 2002, in Rochester, New York, Timothy Lundy fired two or three bullets at Whitney Morris. (6) A witness testified that after Morris fell to the ground, Derrick Gause repeatedly struck Morris in the head with a metal pipe. (7) Morris sustained three gunshot wounds to his chest, face and neck, and right arm--which could have been caused by either two or three projectiles--and various blunt trauma injuries to his face and head. (8) The police stopped Lundy's vehicle shortly after the incident. (9) Gause was driving the vehicle alone, and there was a blood-stained metal pipe on the floor near the front passenger seat. (10) Subsequent DNA evidence confirmed that it was Morris's blood on the pipe. (11) Gause admitted to the police that the car belonged to Lundy, and that he was at the scene of the crime; however, he denied any participation in the crime. (12)

   Gause was charged with two counts of murder (13)--namely, intentional murder and depraved indifference murder. (14) The People presented proof as described above, and after the People rested, defense counsel made a general motion "to dismiss [both counts of] the indictment ... on grounds that the conviction was not properly entered, as the People had failed to make a prima facie case with respect to intent to kill and causation." (15) Monroe County Court denied the motion (16) and the defendant presented alibi witnesses.

   Defense counsel did not renew his motion for a trial order of dismissal. (17) No lesser included offenses were presented to the jury for consideration. (18) The court instructed the jury:

   In your deliberations, you may consider the charges in any order you wish, thus you may start with either Count 1 or Count 2. However, regardless of which count you consider first, if you should find the defendant guilty of such, you will stop right there and you will not go on to consider the other count. Only if you should find the defendant not guilty of the first count or the second, if that's what you start with, will you then go on to consider the other count. Of course, you may find the defendant not guilty of both counts. (19) The jury convicted Gause of depraved indifference murder and advised the court that it considered the depraved indifference count first. (20) On appeal, Gause argued that the evidence was not legally sufficient to convict him of depraved indifference murder. (21)

3. DEPRAVED INDIFFERENCE MURDER

   The New York State Legislature codified five basic categories of homicide when the Penal Law was revised in 1965. (22) The two categories of concern here are intentional murder in the second degree, (23) and depraved indifference murder in the second degree. (24) Both crimes, and other categories of homicide--intentional manslaughter in the first degree, (25) reckless manslaughter in the second degree, (26) and criminally negligent homicide (27)--are "necessarily meant to prescribe different conduct, [and] are distinguish[able] by the level of blameworthiness attributable to the actor who commits them." (28) In People v. Suarez, the Court of Appeals noted "the number of indictments for depraved indifference murder--often charged in conjunction with intentional murder--ha[d] increased dramatically" in the years leading up to Suarez. (29) The court stated that "[t]he proliferation of the use of depraved indifference murder as a fallback theory under which to charge intentional killers reflect[ed] a fundamental misunderstanding of the depraved indifference murder statute." (30)

   Penal Law section 125.25(2) provides that a person is guilty of depraved indifference murder when "[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person." (31) In Suarez, the court noted that "because the [depraved indifference murder] statute requires 'circumstances evincing a depraved indifference to human life' ... [it] properly applies only to a small, and finite, category of cases where the conduct is at least as morally reprehensible as intentional murder." (32) The important distinction that the court sought to make was that depraved indifference murder and intentional murder were essentially on the same level; that is, depraved indifference murder was not a lesser offense than intentional murder. (33) Instead, the court intended to ensure that depraved murder convictions were limited to those murders intended by the legislature to be different than intentional murders. (34)

   For example, "[t]he use of a weapon can never result in a depraved indifference murder when ... there is a manifest intent to kill." (35) Notably, a "weapon" is not limited to a gun. (36) In Suarez, the defendant used a knife and the court emphasized that a one-on-one shooting or knifing or similar killing can almost never qualify as depraved indifference murder, despite the fact that the defendant in Suarez not only stabbed the victim, but then also failed to seek medical assistance for the injuries he inflicted and instead left the victim to die. (37) The court noted that a killing, whether intentional or unintentional, is not transformed into depraved indifference murder simply because the killer does not summon aid for the victim. (38)

   What then, is a depraved indifference murder? In New York, "[h]istorically, depraved indifference murder had no application at all to one-on-one killings." (39) The notion of "depraved mind" murder required conduct that endangered many people indiscriminately, that is, the defendant did not intend to kill or injure any particular individual, but "had no care for whether the life of any particular person was lost or not." (40)

   The classic examples of what historically constituted depraved indifference murder are the defendant (1) driving at a high rate of speed in a crowded area, or (2) shooting indiscriminately into a crowd. (41) In 1983, all that changed--with People v. Register. (42) In that case, the Court of Appeals used an "objective" approach to the traditional element of wanton recklessness. (43) Thus, the focus of depraved indifference was on the degree of risk created by the conduct, and not the mens rea or the actus rea. (44) After Register, there was a distinction between manslaughter in the second degree (reckless disregard of a substantial risk of death), and depraved indifference murder (reckless disregard of a "very substantial" risk). (45)

   This distinction, however narrow, did not go without criticism; and it produced dissenting opinions, first in Register, and then later in People v. Roe, with the latter written by Judge Joseph Bellacosa. (46) In his Roe dissent, Judge Bellacosa stated his belief that the result reached by the majority "finalizes the obliteration of the classical demarcation between murder and manslaughter," and that this would lead to indictments in which both intentional and depraved indifference murder were charged. (47) Defendants thus would be labeled as depraved, but there existed a possibility that a jury would consider the depraved indifference murder as a lesser-included offense of intentional murder. (48) In fact, Judge Bellacosa's dissent proved prophetic, because that is exactly what happened. Although the Court of Appeals did not intend depraved indifference murder to be used as a lesser-included offense with intentional murder, prosecutors typically charged both--even in cases that involved clear intentional homicide. (49)

   Over several cases, the Court of Appeals clarified the distinction between intentional murder and depraved indifference murder, culminating in People v. Payne. (50) In Payne, the court noted that "depraved indifference murder may not be properly charged in the overwhelming majority of homicides that are prosecuted in New York." (51) Additionally, the court stated that there were two "species" of depraved indifference murders, namely, actions...