People v. Gause

971 N.E.2d 341, 19 N.Y.3d 390

• Court: New York Court of Appeals
• Decided: June 5, 2012
• Status: Published

Opinions

OPINION OF THE COURT

Jones, J.

In this case, where the defendant’s conviction for depraved indifference murder was reversed on appeal, the issue before this Court is whether, in accord with the principles of double jeopardy, defendant was impliedly acquitted of intentional murder when the jury was instructed to consider intentional murder and depraved indifference murder in the alternative, but that it could return a verdict on only one of the offenses. Because the first jury had a full opportunity to return a verdict on both inconsistent charges, defendant was impliedly acquitted of the other count when the jury convicted defendant of the depraved indifference murder and his second trial for intentional murder twice placed defendant in jeopardy for the same offense.

On January 26, 2002, after a dispute with Whitney Morris at a 7-Eleven in the City of Rochester, defendant and Timothy Lundy followed Morris and his friends to a nearby residence. After a fight between the two groups was defused, defendant and Lundy left. They returned to the residence shortly thereafter, and Lundy shot Morris. Defendant struck the victim on his head with a metal pole as he lay on the ground. The victim died from his injuries.

Defendant was ultimately prosecuted twice for the victim’s death. The original indictment charged defendant with intentional murder in the second degree, depraved indifference murder in the second degree and intentional assault in the first degree.¹ At the close of trial, the court instructed the jury as follows:

“the indictment contains two counts, both of which charge murder in the second degree. There are two separate charges based upon two separate subdivisions of the same statute; that is, two different theories of how the crime was committed. However, under the circumstances of this case, essentially because there is only one death, the defendant may only be convicted of one of the charges and not both. 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.”

The court then defined intentional murder and depraved indifference murder. During deliberations, the jury requested, by jury notes, that the court “[rjepeat the two elements of the first charge (with intent) along with the following instructions for those elements” and whether either charge required defendant to have “swung the pipe” to be guilty. These notes prompted the court to reread the substantive jury charges. The jury subsequently convicted defendant of depraved indifference murder.²

The Appellate Division reversed the judgment of conviction on the ground that the evidence was legally insufficient to support the conviction of depraved indifference murder, dismissed count two of the indictment and ordered a new trial on count one (46 AD3d 1332 [4th Dept 2007]). The court concluded that the “jury never considered the intentional murder count” and, as such, “agree[d] with the People that double jeopardy does not preclude a new trial on that count” (id. at 1333). It further directed that the certificate of conviction “be amended to reflect that the jury did not” acquit defendant of intentional murder (id.).

Defendant was retried and convicted, after a jury trial, of intentional murder in the second degree. The Appellate Division affirmed, holding that its “prior decision is the law of the case” (81 AD3d 1293, 1294 [4th Dept 2011]).

A Judge of this Court granted defendant leave to appeal (17 NY3d 795 [2011]). Defendant contends now, as he did below, that double jeopardy barred the retrial of the intentional murder charge even though the jury verdict had not specifically indicated an acquittal on that count. We agree. Because the first jury had before it counts of depraved indifference murder and intentional murder—inconsistent counts—and it reached a guilty verdict on one, that determination necessarily acquitted defendant of the other crime and, therefore, double jeopardy barred the People from reprosecuting defendant for it.

“No person shall be subject to be twice put in jeopardy for the same offense” (NY Const, art I, § 6; see also US Const 5th Amend). The Double Jeopardy Clauses of our State and Federal Constitutions specifically guard against a defendant twice being tried for the same offense (see Matter of Suarez v Byrne, 10 NY3d 523, 531 [2008]; People v Ferguson, 67 NY2d 383, 387 [1986]). At its core, double jeopardy precludes “the government from prosecuting a [defendant] for the same offense after an acquittal or a conviction;[³] or from imposing multiple punishments for the same offense in successive proceedings” (Matter of Suarez, 10 NY3d at 532).

The United States Supreme Court has long recognized that, there are cases in which “[i]f a conviction might have been had, and was not, there was an implied acquittal” (In re Nielsen, 131 US 176, 190 [1889]). In Matter of Suarez, we remarked that “[t]he implied acquittal bar to reprosecution presupposes that the first jury ‘was given a full opportunity to return a verdict’ on the particular charge that the prosecutor seeks to advance in the second trial” (10 NY3d at 532 [citations omitted]).

Here, the first jury was given a full opportunity to return a verdict on the intentional murder charge and it impliedly did so when it convicted defendant of depraved indifference murder. Depraved indifference murder and intentional murder in the second degree are inconsistent counts, as “guilt of one necessarily negates guilt of the other” (People v Gallagher, 69 NY2d 525, 529 [1987]; see CPL 300.30 [5]). When these two charges are submitted to the jury in the alternative, a guilty verdict upon one necessarily requires an acquittal upon the other and a jury should be so instructed {see CPL 300.40 [5]).⁴ As the trial court instructed, before the jury were two counts, “two different theories of how the crime was committed,” but it could only convict the defendant of one of the counts. The jury concluded that defendant acted recklessly in the murder of the victim, rather than intentionally. The jury, which sought instruction on both charges, necessarily rejected the theory that defendant intentionally murdered the victim when it convicted defendant of depraved indifference murder. As such, the jury impliedly acquitted defendant of intentional murder. Thus, defendant’s subsequent retrial on the intentional murder charge, after the reversal of his depraved indifference murder conviction, is prohibited under double jeopardy.⁵

In sum, defendant should not have been prosecuted twice for intentional murder in the second degree. Because no charges from the original indictment remain unconsidered, and no lesser included offenses were submitted to the juiy, we are constrained, pursuant to the principles of double jeopardy, to reverse the conviction and dismiss the indictment (see People v Taylor, 15 NY3d 518 [2010]; Matter of Suarez, 10 NY3d at 541; People v Biggs, 1 NY3d 225 [2003]).

Accordingly, the Appellate Division order should be reversed and the indictment dismissed.

1 . The intentional assault charge was dismissed, on motion of the prosecutor, prior to trial.

2 . Lundy was also charged with intentional murder and depraved indifference murder. However, a different jury convicted him of intentional murder. That conviction was affirmed (48 AD3d 1046 [4th Dept 2008]).

3 . The dissent’s reliance upon Blueford v Arkansas (566 US —, 132 S Ct 2044 [2012]) is misguided as the first of two trials concluded in a mistrial. In that case, the first jury deliberated on four charges. The trial court instructed it either to convict the defendant of one of the charges or acquit him of all of them. The jury could not reach a verdict. After the court inquired about the jury’s progress, the foreperson disclosed that the jury had unanimously agreed to acquit defendant of the top two counts, but still needed to resolve the remaining charges. The trial ended in a mistrial, however, as the jury had never reached a verdict. The defendant argued that double jeopardy barred his reprosecution on the top two charges. The United States Supreme Court rejected the defendant’s argument, observing that the “foreperson’s report was not a final resolution of anything” (566 US at —•, 132 S Ct at 2050). The Court explained,

(n. cont’d)

“[t]he jury in this case did not convict [the defendant] of any offense, but it did not acquit him of any either. When the jury was unable to return a verdict, the trial court properly declared a mistrial and discharged the jury. As a consequence, the Double Jeopardy Clause does not stand in the way of a second trial on the same offenses” (566 US at — ,132 S Ct at 2053).

4 . A court may submit to a jury two inconsistent counts in the alternative, if the counts can be supported by legally sufficient evidence, but “must direct the jury that if it renders a verdict of guilty upon one such count it must render a verdict of not guilty upon the other” (CPL 300.40 [5]). Had the jury been instructed under section 300.40 (5), there would be no issue concerning implied acquittal because the jury would have found defendant not guilty of intentional murder. The court’s oversight in failing to give the instruction did not change the underlying principle that conviction of one count entails acquittal of the other.

5 . This case is wholly distinguishable from People v Jackson (20 NY2d 440 [1967]), where the Court rejected the application of implied acquittal to the circumstances of that case. There, the defendant was convicted of common-law murder in the first degree, but the jury was silent as to felony murder. After his judgment of conviction was reversed based upon the voluntariness of his confession, a new trial was ordered, and the defendant was retried on the original indictment. After the second trial, the jury convicted the defendant of felony murder. The Jackson Court concluded that the “defendant was not twice put in jeopardy . . . [for] felony murder” (id. at 453). It rejected the application of implied acquittal in that case because the jury had not necessarily considered the felony murder charge. That case is consistent with this holding as it did not involve inconsistent counts where, statutorily and logically, “guilt of one necessarily negates guilt of the other” (Gallagher, 69 NY2d at 529; see also CPL 300.30 [5]).