Gutierrez v. Smith, a curious case of depraved indifference murder.

• Author: Yetter, Michael J.
• Position: Miscarriages of Justice

INTRODUCTION

"And ye shall know the truth, and the truth shall make you free." (1) But what if that truth was that you stabbed someone with the intent to kill them, even though a jury adjudged you not guilty of intentional homicide? Should that truth set you free? In New York, the law treats intentional murder and depraved indifference murder as equally culpable. (2) While in either case the defendant must cause the death of some other person, the mental states necessary to satisfy intentional and depraved indifference murder are quite different. To be guilty of intentional murder a person must act "[w]ith intent to cause the death of another person [and] cause[] the death of such person or of a third person." (3) By contrast, 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." (4)

However, the line between these mental states--and the definition of depraved indifference murder itself--was very blurry in the past. (5) In People u. Register (6) the New York Court of Appeals held that the depraved indifference murder statute contained three elements: 1) a mens rea of "recklessness"; (7) 2) a voluntary act which creates a "grave risk of death to another person"; (8) and 3) objective circumstances (i.e., "under circumstances [evincing] a [depraved] indifference to human life"). (9) Over time this standard proved to be problematic, as it allowed prosecutors to charge both depraved indifference and intentional murder, even in cases where the evidence strongly indicated that the defendant acted intentionally. (10)

Although Register and its progeny required judges and juries to look to the "objective circumstances" surrounding the killing to determine whether the statute was satisfied, (11) there was a period beginning in 2002 and ending in 2006 where the court's interpretation of the statute was unclear, and through several cases the judges on the court brought about a change in the law. (12) Today, "depraved indifference to human life is a culpable mental state," and the court has stated that depraved indifference murder convictions, in the context of one-on-one killings, should be rare. (13)

The evolving nature of New York's depraved indifference murder law not only caused New York state courts difficulty, it has also troubled the federal bench. The question this note addresses is whether the state of disarray surrounding New York's depraved indifference murder law between 2002 and 2006 created winning arguments for federal habeas corpus defendants who had procedurally defaulted in state court.

In Gutierrez v. Smith, (14) Omar Gutierrez asked the United States Court of Appeals for the Second Circuit whether a man, acquitted of intentional murder but convicted of depraved indifference murder, could have his conviction vacated when, under current New York case law, his conduct and mental state were insufficient to constitute depraved indifference murder. (15) Initially, it appeared that the court was listening. (16) On August 31, 2012 the Second Circuit certified two questions to the New York Court of Appeals regarding its construction of New York's depraved indifference murder statute. (17) However, in an odd turn of events, on December 11, 2012, the Second Circuit reversed course and decided that certification was not warranted. (18)

While it acknowledged that Gutierrez had satisfied several procedural requirements, (19) the court compared the case to several other New York depraved indifference murder cases, and ultimately ruled against Gutierrez on the merits. (20) In doing so, the court may have overlooked compelling procedural arguments, including its own precedent, which would have allowed it to avoid reaching the merits. While the Second Circuit may ultimately be correct, and there is no doubt that Gutierrez's argument--that he should go free because he intended to kill his victim--is unsettling, the court's opinion leaves more questions open than it answers.

This note explores Gutierrez's case along with New York's struggle with its depraved indifference murder law. Part I examines the history of New York's ever-malleable murder law from its codification through its application in case law at the Court of Appeals. Part II details the history of Gutierrez's case and his habeas corpus petition at the Second Circuit. Part III explores whether the court could have disposed of the case on procedural grounds. Part IV concludes and offers some remarks on depraved indifference murder law going forward.

1. BACKGROUND LAW

   1. Depraved Indifference Murder Pre-Register

      In New York, "[a] person is guilty of murder in the second degree 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." (21) Those forty-three words were first codified in 1967 (22) and have caused judicial headache ever since.

      The predecessor to the 1967 statute was the Revised Statutes of 1829. That statute defined depraved mind murder as a killing "perpetrated by any act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual." (23) Professor Gegan's 1974 article examined the history of depraved indifference murder law in New York and noted that early interpretations of the 1829 statute focused on the defendant's mental state. (24) A notable example is a jury instruction given by Judge John W. Edmonds, wherein he counseled the jurors that they must find: "not only that the act was imminently dangerous to others ... but they must also find in the prisoner a depraved mind, regardless of human life." (25) As examples of acts which may constitute depraved mind murder, Judge Edmonds's instruction included "firing a gun into a crowd" and "turning loose among [a crowd] a wild and savage animal"; however, neither Judge Edmonds nor other jurists of that time indicated that depraved mind murder was limited to situations involving danger to more than one person. (26)

      Despite these early precedents, the seminal case of the pre-Register period was Darry v. People.27 After killing his wife as a result of beating her over a period of days, Darry was convicted of depraved mind murder, (28) but the Court of Appeals reversed the conviction 3-2, with each judge in the majority writing a separate opinion supporting the proposition that in order for the depraved mind murder subdivision to be satisfied, the defendant's conduct must endanger the lives of more than one person. (29) While the opinion focused heavily on common law principles and the wording of the 1829 Revised Statutes, it defined depraved mind murder too narrowly by categorically excluding certain killings where only one person was endangered. (30)

      As a result, when an almost identical case, People v. Poplis, (31) arose over one century later under the 1967 statute, the Court of Appeals affirmed the defendant's conviction. (32) As noted by Professor Gegan, the court focused on "the prolonged cruelty, the helplessness of the victim, and the betrayal" of the defendant's parental duty toward his victim. (33) "A stronger set of facts could hardly be imagined to support the application of the depraved mind murder provision to a case of violence directed at a single victim." (34) Even so, the Poplis case did not clarify or define the particular circumstances to which the depraved indifference murder statute could be applied when only individuals are endangered.

      Two years later, in People v. Kibbe, (35) the victim was "thoroughly intoxicated" after drinking at a bar, and asked the defendants to give him a ride home. (36) Defendants took the opportunity and agreed, because earlier they had seen the victim "flashing" several one hundred dollar bills and decided to rob him. (37) After taking the victim to another bar for more drinks, the defendants brought the victim back to the car, robbed him, and then threw him out onto the snowy streets, about a half mile from a gas station. (38) The victim, still thoroughly intoxicated, walked into the middle of the street and sat down. (39) At approximately 10:00 p.m., the victim was struck and killed by a pickup truck. (40)

      The defendants were convicted of, among other things, depraved indifference murder. (41) Their main challenge on appeal was causation. (42) The court easily disposed of this argument, finding that the defendants' "despicable course of action" was "a sufficiently direct cause" of the victim's death. (43) While the defendants' conduct was unquestionably despicable and the victim may have been helpless due to his intoxication, there are no other similarities between Kibbe and Poplis. (44) Kibbe, therefore, engendered more confusion and uncertainty regarding the new depraved indifference murder statute than was necessary. The right result may have been reached--in the sense that those defendants deserved to be punished for their crime--but the state of the law was harmed. The stage was thus set for more confusion, and it was not long before the Court of Appeals took the opportunity to act.

   2. Register Changes Depraved Indifference Murder in New York

      In People v. Register the evidence showed that Register and a friend went to a downtown Rochester, New York bar on January 15, 1977. (45) Register brought a pistol with him, and the two proceeded to drink heavily. (46) Early in the evening Register brandished the gun during a dispute with another patron over money. (47) A second argument occurred shortly after midnight between Register's friend and a different patron named Willie Mitchell. (48) Register pulled out his gun and shot, attempting to strike Mitchell...