People v. Muhammad

959 N.E.2d 463, 17 N.Y.3d 532

Opinions

OPINION OF THE COURT

Graffeo, J.

The primary issue in these appeals is whether the jury verdicts convicting defendants of assault but acquitting them of criminal possession of a weapon are legally repugnant. For the reasons that follow, we hold that the verdicts are valid.

I

People v Muhammad:

Defendant Shahid Muhammad was indicted for attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]), assault in the first degree (Penal Law § 120.10 [1]) and criminal possession of a weapon in the second degree (Penal Law § 265.03 [1] [b]) for allegedly shooting another man several times during a street altercation. The victim, who had known Muhammad for years prior to the shooting, was the only eyewitness. Before trial, defense counsel sought permission to introduce expert testimony on the topic of eyewitness identifications. The trial court denied the request on the basis that the jurors were capable of evaluating the victim’s opportunity to observe the shooter and weigh the significance of his initial failure to identify the gunman to police.

At the conclusion of proof, the judge charged the jury that Muhammad could be convicted of first-degree assault if he “caused serious physical injury to [the victim] by means of a deadly weapon, and that he did so with an intention to cause such serious physical injury” to the victim. On the count of second-degree weapon possession, the jury was instructed that the People had to prove that Muhammad “possessed a loaded firearm. Two. That he did so knowingly. Three. That the gun was operable. Four. That he possessed this firearm with the intent to use it unlawfully against” the victim.

After deliberation, the jury acquitted Muhammad of attempted murder and second-degree weapon possession but found him guilty of first-degree assault. Before the jury was discharged, defense counsel objected to the verdict on the ground that the weapon possession acquittal was repugnant to the conviction for assault. The trial court rejected that argument, stating that the jury was allowed to infer that Muhammad “possessed the gun without a criminal intent, or an intent to use it unlawfully earlier in the evening prior to deciding to shoot” the victim.

The Appellate Division affirmed (66 AD3d 1332 [4th Dept 2009]), holding that the verdict was not repugnant because the trial court’s instructions “ ‘did not preclude the jury from concluding that defendant initially possessed the loaded pistol without intending to use it unlawfully against another, but decided to fire the gun at [the victim] as events unfolded’ ” (id. at 1333, quoting People v Afrika, 291 AD2d 880, 881 [4th Dept 2002], lv denied 98 NY2d 648 [2002]).

A Judge of this Court granted defendant leave to appeal (13 NY3d 940 [2010]).

People v Gregory Hill:

Defendant Gregory Hill was indicted for assault in the second degree (Penal Law § 120.05 [2]) and criminal possession of a weapon in the third degree (Penal Law § 265.02 [1]) for allegedly hitting an acquaintance in the head with a hammer after he became angry when the contents of an ashtray and beer were spilled on his couch. Prior to jury deliberations, the trial court instructed the jurors that to convict Hill of second-degree assault, they had to find that he “caused physical injury to [the victim] by means of a dangerous instrument; and, two, that the Defendant did so with the intent to cause physical injury” to the victim. On the count of third-degree weapon possession, the jurors were charged that the People had to prove that “Hill possessed a hammer; two, that the Defendant did so knowingly; and, three, that the Defendant did so with intent to use such hammer unlawfully against another.”

The jury subsequently issued two notes indicating that their deliberations had resulted in a deadlock and the trial court responded with Allen charges. The jury ultimately found Hill not guilty of third-degree weapon possession but guilty of second-degree assault. Before the jury was discharged, defense counsel objected to the verdict on repugnancy grounds, claiming that Hill could not have intentionally assaulted the victim with a hammer unless he also possessed the hammer with the intent to use it unlawfully against the victim. The trial court disagreed, denied the motion and discharged the jury.

In affirming the judgment (70 AD3d 1487 [4th Dept 2010]), the Appellate Division concluded that the verdict was not repugnant because the trial court’s charge did not preclude the jury from deciding that Hill did not have an intent to use the hammer unlawfully when he initially possessed it. The court found Hill’s other arguments to be meritless.

A Judge of this Court granted Hill leave to appeal (15 NY3d 774 [2010]).

II

Defendants contend that the verdicts were legally repugnant because it is impossible to intentionally injure a person with a weapon that a jury has found the accused did not possess with the intent to use unlawfully. Their argument is focused on the intent elements of assault and weapon possession, claiming that it is inconsistent for a jury to find that a defendant did not possess a weapon with an intent to use the weapon unlawfully against another person and, at the same time, determine that a defendant intended to inflict serious physical injury with the weapon. The People, in contrast, adopt the rationale of the Appellate Division and claim that the jury instructions in these cases allowed the jurors to consider the state of mind of the accused at the time the weapon was initially possessed or acquired and before the formation of an intent to use it unlawfully against another.

The issue of repugnant verdicts has long been grappled with by the courts in our nation (see e.g. Dunn v United States, 284 US 390 [1932, Holmes, J.]). The U.S. Supreme Court settled this question for federal courts when it unanimously held that the Federal Constitution does not prohibit a jury from rendering a verdict that is inherently inconsistent (see e.g. United States v Powell, 469 US 57, 63 [1984], citing Harris v Rivera, 454 US 339, 346 [1981] [a jury has the “unreviewable power ... to return a verdict of not guilty for impermissible reasons”]). The Supreme Court has further declined to address repugnancy under its supervisory powers over the federal criminal process because, among other reasons, “[s]uch an individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury’s deliberations that courts generally will not undertake” (Powell, 469 US at 66, quoted in People v Rayam, 94 NY2d 557, 563 [2000]). Hence, federal courts do not review verdicts under the theory of repugnancy.

New York, in contrast, has chosen a more moderate approach that extends better protection against verdicts that are inherently repugnant on the law. Our standard for judging whether a verdict is legally repugnant was articulated in 1981 in People v Tucker (55 NY2d 1 [1981]). We held that “a verdict as to a particular count shall be set aside” as repugnant “only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury” (id. at 4) without regard to the accuracy of those instructions (see id. at 7; see also People v Green, 71 NY2d 1006, 1008 [1988]; People v Hampton, 61 NY2d 963, 964 [1984]). The underlying purpose of this rule is to ensure that an individual is not convicted of “a crime on which the jury has actually found that the defendant did not commit an essential element, whether it be one element or all” (Tucker, 55 NY2d at 6). A person cannot be convicted of a crime if a jury has necessarily decided that one of the essential elements was not proven beyond a reasonable doubt.¹

We recognized in Tucker that a jury “may freely reject evidence and exercise its mercy function” by rendering a verdict that appears to be factually illogical (id. at 8). A jury is therefore free to extend leniency and may decide not to convict a defendant of one or more charges notwithstanding the court’s legal instructions. In light of the difficulty in assessing the basis of jury determinations, we devised a repugnancy test in Tucker that prohibits consideration of the particular facts of the case (Tucker, 55 NY2d at 4, 6-7; see e.g. People v Rayam, 94 NY2d at 561; People v Johnson, 70 NY2d 819, 820 [1987] [a repugnancy claim must be “(e)xamined against the elements of the crimes as charged by the trial court and without regard to the particular facts of the case”]).² Thus, under the Tucker rule, “[t]he instructions to the jury will be examined only to determine whether the jury, as instructed, must have reached an inherently self-contradictory verdict” (Tucker, 55 NY2d at 8; see also People v Trappier, 87 NY2d 55, 58 [1995]).

Tucker is essentially a variant of the “theoretical impossibility” test that is applied in the realm of lesser included offenses (see e.g. People v Davis, 14 NY3d 20, 22-23 [2009]). Under this comparable approach, a verdict is repugnant only if it is legally impossible — under all conceivable circumstances — for the jury to have convicted the defendant on one count but not the other. If there is a possible theory under which a split verdict could be legally permissible, it cannot be repugnant, regardless of whether that theory has evidentiary support in a particular case (see People v Vargus, 79 AD3d 526, 527 [1st Dept 2010], lv denied 16 NY3d 800 [2011]). In this context, the apparently illogical nature of the verdict — as opposed to its impossibility — is viewed as a mistake, compromise or the exercise of mercy by the jury, none of which undermine a verdict as a matter of law (see generally People v Horne, 97 NY2d 404, 413 [2002]; People v Rayam, 94 NY2d at 561-563; People v Goodfriend, 64 NY2d 695, 697 [1984]; People v Tucker, 55 NY2d at 7).

We further explained in Tucker how the repugnancy analysis should operate (see 55 NY2d at 6 n 2). As an example, Tucker cited a case where charge 1 requires proof of elements A, B and C; charge 2 requires proof of elements A, B, C and D. If the jury convicts a defendant on the second charge, thereby finding that all four elements have been proven beyond a reasonable doubt, but acquits on the first charge, the verdict is repugnant since the acquittal “would necessarily involve a finding that at least one of the essential elements of charge 2” — either A, B or C — was not proven beyond a reasonable doubt (id.). As an extension of that hypothetical, if in another case the elements of charge 1 were A, B, C and E (rather than D), an acquittal on that count would not necessarily negate guilt on charge 2 because the jury could have found that element E — which was not an element of charge 2 — was not proven by the People beyond a reasonable doubt, but elements A, B, C and D were. Under the latter scenario, there is no legal repugnancy.

The crimes at issue in Tucker also provide insight into the proper analytical framework to review repugnancy. Tucker was charged with four counts of robbery, one count of grand larceny and one count of criminal possession of a weapon. The jury acquitted him of counts one (robbery while armed with a deadly weapon) and two (use or threatened use of a dangerous weapon), but convicted him of counts three (displaying what appeared to be a handgun), four (being aided by another person actually present) and six (possession of a loaded firearm).³ The trial court’s charge on counts one and two explained that the People had to prove that the firearm was operable, but that element was omitted from the instructions on the weapon possession charge in count six.⁴

We observed that the jury could have found — “however illogically” (55 NY2d at 8) — that the People did not prove operability. Under that theoretical proposition, we reasoned “there would have been no inherent inconsistency in the acquittals on counts 1 and 2, both of which require[d] a finding of operability, and the conviction on count 6,” which did not (id. at 9). Nor was there any inherent inconsistency between the acquittals and the conviction on count three (displaying what appears to be a firearm) because the People were not required to prove operability under the third count and the jury could have found that Tucker failed to prove the affirmative defense that the gun was inoperable (see id.). Consequently, the verdict in Tucker was deemed not repugnant.

We reach a similar conclusion in the two appeals before us. In Muhammad, the jury charge explained that the elements of second-degree weapon possession were (1) possession (2) of a loaded firearm (3) with the intent to use it unlawfully against another; and that the elements of first-degree assault were (1) causing serious physical injury (2) by means of a deadly weapon (3) with the intent to inflict serious physical injury. In Hill, the jury was charged that third-degree weapon possession required (1) knowing possession (2) of a hammer (3) with intent to use it unlawfully against another; and that second-degree assault required (1) causing physical injury (2) by means of a dangerous instrument (3) with the intent to cause physical injury.⁵

Based on the instructions that were given to the juries and viewed from a theoretical perspective without regard to the evidence presented at these trials, it was possible for these juries to acquit defendants of weapon possession but convict them of assault because the former crime contains an essential element that the latter does not: possession. The weapon counts required that defendants physically possess their respective weapons or

exercise dominion or control over them (see Penal Law § 10.00 [8]; § 265.02 [1]; § 265.03 [1] [b]). The assault counts, however, required that defendants injure the victims “by means of’ the weapons (Penal Law § 120.05 [2]; § 120.10 [1]) and that result could have been accomplished without possessing those instruments.⁶ There are many circumstances under which it would be rational for a jury to find that a defendant assaulted someone but did not concomitantly possess a weapon. For example, if an assailant throws someone in front of a moving bus or subway train, he can commit assault without “possessing” the bus or subway.⁷ Other examples of assault without possession of an injury-causing instrumentality include a situation where the People fail to prove that a handgun was operable but show that the accused used it as a dangerous instrument to pistol whip the victim and cause physical injury, or if the accused impaled a person on a weapon without having physical control over it. Hence, in theory, it is possible for a jury to find — without being legally repugnant — that a defendant intentionally caused injury by means of a weapon without also possessing the item. That reasoning controls in these cases.

Because our repugnancy analysis requires that we review the elements of the offenses as charged to the jury without regard to the proof that was actually presented at trial, we cannot say that the convictions were repugnant. Since a hypothetical jury could have acquitted defendants of weapon possession based on the possession element, it cannot be assumed — as a matter of law — that the juries necessarily found that defendants lacked an intent to use the weapons unlawfully against another.⁸ The acquittals on the weapon possession counts did not inherently negate the intent to cause serious physical injury element of first-degree assault or the intent to cause physical injury element of second-degree assault. Under the Tucker test, we conclude that, based on the instructions that were issued to the juries, the verdicts in these cases need not be invalidated.

Although the Appellate Division reached the correct result, it did not apply the Tucker analysis but instead attempted to reconcile the verdicts based on the proof that was actually presented in these cases. Nevertheless, the Appellate Division’s reasoning demonstrates why we cannot accept defendants’ invitation to assume that these juries were irrational. The Appellate Division believed that the jury charges on weapon possession — which were essentially identical to the charge recommended by the pattern Criminal Jury Instructions (CJI)— allowed the jurors to consider whether defendants had an unlawful intent to use the weapons at the time they were initially acquired or possessed, before they were used unlawfully. And, the parties did not ask for and the trial courts did not charge the expanded intent instruction. If they had, the juries would have been told that it was permissible to convict defendants of weapon possession if the requisite mens rea was formed at any time that the weapons were in their control— including the instant the weapons were used against the victims (see e.g. CJI2d[NY] Culpable Mental States — Intent [“The intent can be formed, and need only exist, at the very moment the person engages in prohibited conduct or acts to cause the prohibited result, and not at any earlier time”]).

Because the jurors were not informed about this principle, it is entirely conceivable that they misunderstood the timing factor of the mens rea requirement and separated the charges into two different temporal periods — weapon possession before the attacks occurred (i.e., prior to the formation of an intent to injure); and assault once the attacks began — instead of realizing that both crimes could have occurred simultaneously and that the intent to use the weapons unlawfully could reasonably be inferred from their criminal use. This would not have been the first time a jury was confused about the continuing nature of a weapon possession offense (see e.g. People v Haymes, 34 NY2d 639, 640 [1974], cert denied 419 US 1003 [1974]). From a practical perspective, the Appellate Division’s approach may very well explain the reasoning of the jurors in these cases. But from a legal standpoint, the question is not whether there was proof that these defendants possessed weapons innocently at some point and later developed an unlawful intent — it is whether a theoretical defendant charged with the same offenses (as framed by the actual jury instruction) could have been guilty of one but not the other.

In the absence of demonstrable legal repugnancy — i.e., a factual finding by the jury that the People necessarily failed to prove an element of a convicted offense — it is simply impossible for us to know why the jurors acquitted defendants of weapon possession (see generally United States v Powell, 469 US at 66). Such sheer conjecture about what actually occurred in the minds of the jurors during deliberations is the reason why our precedent precludes judges from “intruding] into the jury’s deliberative process” (Tucker, 55 NY2d at 7) and requires repugnancy to be analyzed from a theoretical perspective. Jurors are allowed to compromise, make mistakes, be confused or even extend mercy when rendering their verdicts — a principle not acknowledged by the dissent.

Indeed, verdicts of this nature are not uncommon.⁹ This suggests that jurors may need additional guidance in some weapon possession prosecutions. In Hill’s case, for example, the jury may have thought that he possessed his weapon — a common household hammer — for an extended period of time with the intent to use it as a tool rather than as an instrument of harm, and acquitted him on that basis. Even assuming this to be true, however, an initial period of innocent possession, no matter how long in duration, is not determinative of a person’s guilt for weapon possession because a criminal intent can arise moments before the item is used for a criminal purpose — but Hill’s jury may have been unaware of this fact.

Although as a Court we are divided on whether the convictions here were valid, we are unanimous in recommending that it would be a better practice for counsel to request and trial judges to add additional language to the jury instructions for weapon possession in multicount indictments. For example, the suggested CJI charge for fourth-degree weapon possession states that “INTENT means conscious objective or purpose ... a person acts with intent to use a (specify) unlawfully against another when his or her conscious objective or purpose is to use it unlawfully against another” (CJI2d[NY] Penal Law § 265.01 [2]). The potential for the jury to misunderstand the nature of the mens rea requirement could be minimized by explaining that the intent element is satisfied if the defendant intended to use the weapon unlawfully against another at any time during the period of possession, including when the weapon was allegedly used for the alleged unlawful act. This language, or some other version of the relevant portion of the expanded intent charge in the CJI, would provide more useful instruction to jurors on the governing principles of law.

We stress that the issue before us is whether the verdicts were legally repugnant, not whether they were factually repugnant. If the juries in these cases had been specifically informed that defendants’ intent at the moment of the attacks was relevant to the weapon possession counts, we might agree that a split verdict would be factually irreconcilable. Where that is true, the trial judge may not be required to accept the verdicts, even if they are not legally repugnant. The parties have not identified anything in the Criminal Procedure Law or our precedent that restricts a trial judge’s discretion to address the jury when a verdict appears to be inconsistent with the evidence presented. If such a concern arises, the judge can point out the apparent inconsistency to the jurors, issue further appropriate instructions and ask them to continue deliberations. But a failure to take such action would not be an abuse of discretion as a matter of law since factual repugnancy — which can be attributed to mistake, confusion, compromise or mercy — does not provide a reviewing court with the power to overturn a verdict under Tucker and its progeny.

III

Defendant Muhammad also contends that the trial court abused its discretion as a matter of law when it denied his motion to present expert testimony on eyewitness identifications because the victim was the only witness who implicated defendant and the identification was not corroborated. The People assert that it was not an abuse of discretion to deny the motion because the primary theory of the defense was not that the reliability of the identification was suspect, but that the victim lied about the identity of the shooter, and as such an expert was unnecessary since the victim had known defendant for many years and had spoken to him shortly before the incident occurred.

As a general rule, it is an abuse of discretion to deny a motion for expert testimony on eyewitness identifications in a case that depends solely on the accuracy of eyewitness testimony if there is no corroborating evidence connecting the defendant to the commission of the charged crime and the proposed testimony satisfies the general criteria for the admissibility of expert proof (see People v Abney, 13 NY3d 251, 267 [2009]; People v LeGrand, 8 NY3d 449, 452 [2007]). Our concern in recent years has arisen from psychological studies that have addressed the potential for misidentification when a person observes an assailant — usually a stranger — for the first time in a highly stressful environment (see People v Santiago, 17 NY3d 661 [2011] [decided today]).

Although Muhammad is a single eyewitness case (see People v Abney, 13 NY3d at 268) with no corroborating evidence (cf. People v Allen, 13 NY3d at 269; People v Young, 7 NY3d 40, 46 [2006]; People v Lee, 96 NY2d 157, 163 [2001]), and the shooter did not have any “unusual or distinctive features or physical characteristics” (People v Abney, 13 NY3d at 268), the victim testified that he knew defendant for over a decade prior to the shooting, spoke to him shortly before the altercation and recognized defendant at the time of the attack (compare People v Allen, 13 NY3d at 262-263 [witnesses had known the defendant from the neighborhood for several months and immediately recognized him during the robbery], with People v Santiago, 17 NY3d at 664 [the defendant and victim were strangers] and People v LeGrand, 8 NY3d at 452-453 [the defendant was not previously known to the witnesses and was not identified until seven years after the crime]). This prior relationship took any issue regarding human memory formation and recollection out of the case, rendering the victim’s ability to perceive his attacker as the only aspect on which expert testimony was even potentially relevant. As the trial judge aptly recognized, an average juror would have been capable of assessing whether a person in the victim’s situation had an adequate opportunity to observe someone he had known for so long. Moreover, the defense never directly challenged the victim’s ability to observe or recall who shot him, but instead sought to characterize his testimony implicating defendant as a lie, thereby further removing the scope of the proposed expert testimony from the issues presented to the jury.

On these facts, we hold that it was not an abuse of discretion as a matter of law for the trial court to deny defendant’s request for expert testimony.

IV

As a final matter, defendant Hill maintains that Supreme Court erroneously denied his motion to suppress evidence that was obtained during a warrantless search of his home and in a vestibule outside of his abode. The court found that defendant consented to the police officers’ entry into his apartment, that statements he made to them were voluntary and that he had no reasonable expectation of privacy in the vestibule. The Appellate Division affirmed, concluding that exigent circumstances justified the search.

The Appellate Division’s rationale for affirming the denial of the motion to suppress was improper. We recently reiterated that, under CPL 470.15 (1), an appellate court cannot affirm an order “on a ground not decided adversely to the appellant by the trial court” (People v Concepcion, 17 NY3d 192, 195 [2011]). Because the suppression court did not deny the motion on the ground that there were exigent circumstances, that issue was not decided adversely to defendant and it could not be invoked by the Appellate Division. As a result, this matter is remitted to that court for consideration of the suppression issues that were properly raised but not determined by it.

Accordingly, in People v Muhammad, the order of the Appellate Division should be affirmed. In People v Hill, the order of the Appellate Division should be modified by remitting to that court for further proceedings in accordance with this opinion and, as so modified, affirmed.

Footnotes

1

. The remedy for this type of error is dismissal of the repugnant conviction (see e.g. People v Hampton, 61 NY2d at 964; People v Carbonell, 40 NY2d 948, 948-949 [1976]).

2

. This precedent refutes the dissent’s assertion that Tucker “does not mandate that we evaluate the elements of a crime charged in the abstract” (dissenting op at 553). Indeed, Tucker itself rejected a repugnancy approach that would allow a court to examine the entire record in favor of a test that considers only the elements as charged to the jury (see People v Rayam, 94 NY2d at 561). This erroneous premise infects the dissent’s entire rationale.

3

. Count five, charging grand larceny, was not considered by the jury because it was a lesser included offense of the first four counts.

4

. Operability was therefore akin to the hypothetical “element E” in the preceding paragraph.

5

. Both defendants raised a repugnancy claim before the jurors were discharged (see e.g. People v Carter, 7 NY3d 875, 876 [2006]). The preservation requirement is important because if a trial court finds that an announced verdict is repugnant, it may explain the inconsistency to the jurors and direct them to reconsider their decision (see CPL 310.50 [2]; People v Loughlin, 76 NY2d 804, 806 [1990]).

6

. See e.g. People v Galvin (65 NY2d 761, 762 [1985]).

7

. Contrary to the dissent’s suggestion (see dissenting op at 552), our point is not that these situations would never result in a weapon possession charge, but that it is theoretically possible for a person to injure another “by means of’ a weapon without necessarily possessing it.

8

. Cf. People v Loughlin (76 NY2d at 806-807 [convictions of criminally negligent homicide and vehicular assault meant that the jury necessarily found that the defendant killed a victim with criminal negligence and drove while intoxicated for purposes of determining that an acquittal on vehicular manslaughter was repugnant to the vehicular assault conviction because the jury could not find that the defendant both did and did not drive under the influence]).

9

. See e.g. People v Francois (85 AD3d 813, 814 [2d Dept 2011]); People v Gross (71 AD3d 1526, 1526-1527 [4th Dept 2010], lv denied 15 NY3d 774 [2010]); People v Malave (52 AD3d 1313, 1314 [4th Dept 2008], lv denied 11 NY3d 790 [2008]); People v Bennette (23 AD3d 489 [2d Dept 2005]); People v Sackes (11 AD3d 364, 365 [1st Dept 2004], lv denied 4 NY3d 748 [2004]); People v Afrika (291 AD2d 880, 881 [4th Dept 2002], lv denied 98 NY2d 648 [2002]); People v Mabry (288 AD2d 326 [2d Dept 2001], lv denied 97 NY2d 706 [2002]); People v Fuller (200 AD2d 498 [1st Dept 1994], lv denied 83 NY2d 871 [1994]).