Anselmo Helliger is charged with murder in the second degree (depraved indifference) and manslaughter in the first degree (intent to cause serious physical injury). By the defendant’s own admission and testimony, he came home late, after drinking with friends, and, when criticized by the woman with whom he lived, Diane Murray, he “held her by the neck to push her away”, and shoved her to the bed to “keep her quiet”. Ms. Murray suffered a fractured hyoid bone and died almost immediately. Mr. Helliger admitted causing Ms. Murray’s death, however, two attempts at an allocution as part of a plea to the manslaughter count, urged upon the court by the parties, failed because, on each occasion, Mr. Helliger insisted that he “never meant to hurt her”.
Mr. Helliger is a 58-year-old man who has worked at various times as a cook, welder and electrician. He has no prior criminal history.
At trial, the defendant testified that he was unaware of the risk of death which might follow his actions and, as before, he claimed he never intended to hurt Ms. Murray. Accordingly, four charges were submitted, in the alternative, to the jury: murder in the second degree and manslaughter in the first degree, the two counts contained in the indictment, and, in addition, manslaughter in the second degree (reckless homicide) and criminally negligent homicide, as lesser included offenses. The jury was instructed that it could find the defendant guilty of one, but not more than one, of the submitted offenses.
At the defendant’s request, after two full days of deliberation and repeated declarations of impasse by the jury, the court accepted a partial verdict. The jury found the defendant guilty of criminally negligent homicide. In response to inquiry by the court, the jury reported that it had been unable to agree upon any of the other counts submitted. The People now seek to retry the defendant upon one or more of the unresolved counts. Defendant argues that the “verdict of guilty * * * is deemed an acquittal of every greater offense submitted” (CPL 300.50 [4]; 300.40 [3]), and, therefore, he may not be tried again on the unresolved counts.
COUNTS SUBMITTED IN THE ALTERNATIVE
The two counts charged in the indictment, depraved indifference murder and intentional manslaughter, are “inconsistent
Although the two counts are inconsistent, criminally negligent homicide is, nonetheless, a lesser included offense of both counts charged in the indictment. Criminally negligent homicide is a lesser included offense of depraved indifference murder as charged in the first count of the indictment. (People v Hawkins-Rusch,
Accordingly, the jury was asked to consider four charges in the alternative and a verdict sheet was presented to it containing, in descending order: murder in the second degree, manslaughter in the first degree, manslaughter in the second degree and criminally negligent homicide.
Submission of lesser included offenses not charged in an indictment evolved in common law as an aid to prosecution. (2 Hale, The History of the Pleas of the Crown 301-302 [1736]; 2 Hawkins, Pleas of the Crown 623 [6th ed 1787]; 1 Chitty, Criminal Law 250 [5th Am ed 1847]; Starkie, Criminal Pleading 351-352 [2d ed 1822]; People v Willson,
Over time, however, defendants grew to appreciate the advantage, in some circumstances, of presenting a lesser included offense to the jury. “From the perspective of the accused, submission of a lesser included offense enables the jury to extend mercy by providing a less drastic alternative than the choice between acquittal and conviction of the offense charged”. (People v Green, 56 NY2d, supra, at 433, citing People v Mussenden,
As such, the right to demand submission of a lesser offense belongs to neither side exclusively and may be invoked by the People or the defendant over the other’s objection. (CPL 300.50 [2].) The statute aside, the right of a defendant to demand consideration of a lesser offense has been elevated to a “quasi-constitutional” status. (See, e.g., Beck v Alabama, 447 US, supra, at 637 [1980] [“While we have never held that a defendant is entitled to a lesser included offense instruction as a matter of due process, the nearly universal acceptance of the rule in both state and federal courts establishes the value to the defendant of this procedural safeguard”]; Keeble v United States,
Once the decision is made to submit a lesser offense, the question then arises whether a jury must be instructed to consider the charges in any particular order. There are three traditional “transition” charges or options put to a jury: (a) the “step approach” or “acquittal-first rule” requiring a unanimous jury acquittal of the greater charge before it may proceed to
The acquittal-first rule, logically, favors a prosecution effort to secure conviction upon the greater offense since it precludes any consideration by a divided jury of a lesser offense unless and until all 12 jurors are convinced that the greater offense has not been proven. If a segment of the jury, whether a majority, a minority or even a lone holdout, insists upon “all or nothing” then the result will either be a conviction of the greatest offense submitted or a hung jury and retrial. (See, e.g., Wright v United States,
The unstructured transition charge, on the other hand, may favor the defendant since it invites, or at least permits, a compromise verdict based on sympathy. While an argument can be made that, historically, a jury has the power to impose its own sense of fairness and social conscience in mitigation to arrive at a compromise verdict (see generally, Abramson, We, the Jury 30 [1994] [“(T)hroughout the eighteenth century the prevailing view remained that jurors ‘could ignore judges’ instructions on the law and decide the law by themselves’”]), courts usually instruct juries that they do not have the power to invoke lenity in order to discourage its exercise. (Compare, People v Goetz,
Courts at common law initially followed the acquittal-first approach, perhaps in implicit recognition of the history sur
Thus, by statute, a jury could not avoid resolution of the greater while convicting of a lesser. The Code of Criminal Procedure required a finding of not guilty upon the crime charged before a court could accept a verdict of guilty upon the lesser. The Court of Appeals upheld use of the acquittal-first rule in 1888, shortly after the adoption of the Code of Criminal Procedure, citing section 444 as authority for its imposition. (People v Willson, 109 NY, supra, at 357 [“(I)t was only after they found him not guilty upon that charge that they were authorized, under section 444 of the Code of Criminal Procedure, to find him guilty of any inferior degree of homicide”].) Although grounded in the common law and tradition, the acquittal-first rule was a policy choice established by the Legislature, which, of course, has the power to adopt, reject or modify the Willson rule.
In more recent years, commentators have noted a “trend away from the step approach” in a number of other jurisdictions,
“Recognition of the lesser included offense instruction as a quasi-constitutional right prompted some state courts to move away from the step approach. These courts feared that structuring jury deliberations would invade the jury’s province as ultimate fact-finder. These courts also feared that this invasion would deny a defendant the benefits of the right to an
“An increasing number of state courts have adopted disagreement instructions * * * [which] do not require juries to reach a conclusion on the charged offenses before considering other offenses.” (Jury Deliberations and the Lesser Included Offense Rule: Getting the Courts Back in Step, op. cit., at 377-378, 381 [citing seven States which had moved to a disagreement or “unable to agree” instruction between 1977 and 1989].)
Similarly, over the same time span, four Federal appeals courts have held that upon a defendant’s timely request an instruction should be given which permits the jury to consider the lesser offense if reasonable efforts to reach a verdict on the greater fail. (United States v Tsanas, 572 F2d 340 [2d Cir], cert denied
BOETTCHER AND THE 1970 REVISION OF THE CRIMINAL PROCEDURE LAW
The New York Court of Appeals has expressed a clear preference and continued support for the acquittal-first instruction. (People v Boettcher,
Moreover, when it repealed the language in section 444 of the old Code of Criminal Procedure, requiring an acquittal on the “charged” or greater count, the Legislature was not entirely silent as to the charge to be given when a lesser offense was submitted. In fact, the Legislature took the unusual step of
CPL 300.50 informs a jury that it may, i.e., is permitted to, render a verdict of guilty with respect to any one offense submitted while eliminating the requirement of a not guilty verdict on the greater charge. It would seem by plain and direct language the Legislature has now provided for an “unable to agree” transition charge. Given the developing trend away from the acquittal-first rule by other State and Federal courts around the date of enactment of the Criminal Procedure Law, this is not necessarily surprising.
Although, the Court in Boettcher noted that “[t]he Commission Staff Notes do not explain why different language was chosen when the Criminal Procedure Law was enacted” (People v Boettcher, supra,
Contemporaneous with the new language for submission, the Legislature also declared, “A verdict of guilty of any such offense is not deemed an acquittal of any lesser offense submitted, but is deemed an acquittal of every greater offense submitted.” (CPL 300.50 [4].) This was simple acknowledgment that the change in procedure would, on occasion, result in “implied acquittals”. (See, Green v United States,
Compare the legislative treatment of inconsistent counts, also presented in the alternative, where a court is directed to instruct 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].) This language is more akin to the provision in the old Code of Criminal Procedure in that the jury must render a verdict of not guilty on one count before the court can accept a verdict of guilty on the other. By contrast, CPL 300.50, governing submission of lessers, allows conviction on “any one of such offenses” but does not require a vote of not guilty as to any other offense. Obviously, in writing CPL 300.50, the Legislature could have retained the language of section 444 of the Code of Criminal Procedure or it could have employed language similar to the new section CPL 300.40 (5), instructing a jury that if it renders a verdict of guilty upon a lesser offense it must render a verdict of not guilty upon the greater. It did neither.
In sum, by repeal of the language relied upon in Willson (supra), by enactment of a clear and mandatory language to be read to a jury in place of the acquittal-first rule, and by enactment of a comprehensive plan to deal with “implied acquittals”, which were anticipated as a probable outcome as a consequence of the change in law, the Legislature affirmatively opted to join the modern trend, followed by other States and Federal courts, permitting a jury to consider lesser offenses even when they fail to agree upon the greater.
BOETTCHER IN THE COURT OF APPEALS
In People v Boettcher (supra), the Court of Appeals was asked to follow the Tsanas formulation, recently adopted by the Court of Appeals for the Second Circuit, which gave the defendant the right to demand an “unable to agree” transition charge. In Tsanas, the court noted that early consideration of a lesser offense sometimes favors the defense and sometimes favors the prosecution. As such, given the “quasi-constitutional” right of a defendant to call for submission of a lesser, the Tsanas court
The Boettcher Court specifically rejected the Tsanas rule. The Court cited various policy arguments in favor of an acquittal-first instruction.
First, the Court noted that application of the implied acquittal rule would have a “deleterious” effect upon the People. (People v Boettcher, supra,
Secondly, and “more importantly”, the Court elected to “reject Tsanas (supra) and its progeny because they give insufficient weight to the principle that it is the duty of the jury not to reach compromise verdicts based on sympathy for the defendant or to appease holdouts, but to render a just verdict by applying the facts it finds to the law it is charged”. (People v Boettcher, supra,
Nonetheless, not all disagreement upon greater counts arises because jurors improperly inject sympathy into their decision. Logically speaking, there are three possible reasons for disagreement upon the top count: (1) all the jurors are acting rationally and some find the top count is supported by the evidence while others do not; (2) some jurors are acting irrationally or injecting mercy, lenity of sympathy into the case such that they refuse to convict on the top count despite ample support in the evidence; or (3) the evidence only supports a lesser offense but some jurors are acting irrationally or injecting bias, hostility or emotion into the case such that they refuse to acquit on the top count despite flaws in the proof. In reaching its decision in Boettcher (supra), the Court only discussed one of the three causes of disagreement, jury sympathy.
How then should a lower court read and apply Boettcher (supra)? Must a court read an acquittal-first charge to a jury in every case, notwithstanding the repeal of section 444 of the Code of Criminal Procedure? Must a court disregard the mandatory instruction contained in CPL 300.50? Is there a way to reconcile the apparent, or potential, conflict between the statute and controlling precedent?
Upon closer analysis, it is not clear that Boettcher (supra) requires an acquittal-first direction in every case regardless of circumstance. For example, in People v York (
Of course, the York argument is merely the flip-side of the Tsanas ruling. Tsanas (supra) held that the option (to invoke an “unable to agree” transition) belonged to the defense. York (supra) held that the option belongs to the prosecution. Logic would seem to argue against both positions: the option should be with the court, not one of the parties. Just as the determination of whether to submit a lesser rests with the court, not the parties, the determination as to how to submit the charges should be based on reason rather than strategy as well. It would seem that the statute and its history can be reconciled
In Boettcher, the Trial Judge gave an acquittal-first instruction and the Court held, “In the present case, the trial court’s rejection of the defendant’s request to charge, and its instruction to the jury to consider the lesser included offense only upon reaching a unanimous verdict of not guilty of the greater, were correct.” (People v Boettcher, 69 NY2d, supra, at 183 [emphasis added].) The holding approved a trial court’s denial of a defendant’s request for an “unable to agree” transition charge in that case. The holding did not abolish all judicial discretion to grant the request in another, more appropriate, case.
Similarly, the Boettcher Court disapproved “so much of the instruction in 1 CJI (NY) 14.05 as gives the defendant the 'unable to agree’ transition charge option”. (People v Boettcher, 69 NY2d, supra, at 183, n 6 [emphasis added].)
The Court of Appeals itself has not had occasion to instruct whether the acquittal-first instruction must be applied in all cases regardless of circumstance. The statute does not mandate the instruction and policy would only seem to dictate it where it is appropriate to avoid irrational compromise verdicts. (“Nothing contained in article 300 of the Criminal Procedure Law * * * directs the order in which the jury should consider the various offenses submitted to it.” [People v Johnson,
In the present case, the four counts submitted were not distinguishable by acceptance or rejection of proof in support of different facts. The direct evidence in support of each charge was identical — the defendant admitted intentionally grabbing Ms. Murray by the throat and shoving her to the bed. The cause of death went unchallenged. The crimes submitted for consideration were not to be distinguished by juror acceptance or rejection of any fact or piece of evidence offered to them. The critical distinction amongst the charges was in the conclusion to be drawn from the evidence regarding the defendant’s state of mind.
It has been noted that “[t]he doctrine of lesser included offenses is not without difficulty in any area of the criminal law. Its application as to criminal homicides is particularly elusive.” (Fuller v United States, 407 F2d, supra, at 1228.) Although the four charges presented in this case are called lesser included offenses,
“it is not strictly accurate when crimes are differentiated on the basis of the kind of intention the actor must have. For example, proof of an intentional killing does not, in a sense, establish that the actor was reckless. There is more precise analysis in the Model Penal Code § 1.07(4) which defines an offense as included when * * *
“(c) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.” (Fuller v United States, supra, at 1228, n 28.)
Asking a jury to agree upon the one mental state which is best proven circumstantially from accepted facts engages a different kind of decision-making than that which normally accompanies submission of lesser included offenses. Logically speaking, “being unaware of a risk” (negligence) is not necessarily included when a person acts with a “conscious disregard of a risk” (recklessness), which, in turn is not necessarily included within “intending a consequence” (acting intentionally). Therefore, finding the appropriate level of culpability in such "a case is not merely a process of elimination whereby the jury considers the charges in descending order based upon the adequacy of proof regarding any one particular element. The Boettcher formulation is best suited for cases where a fact in dispute is the primary distinguishing character
“Lesser included offenses of a single count must be charged in the alternative. The accused by definition cannot be found to have had more than one of the mental states on the kaleidoscope of culpable mental states, and the trier of fact must determine which one is applicable. As we made clear in Green, that rule[
“the jury * * * [is] asked to find one mental state or the other”. (People v Gallagher, supra,
In the case at bar, because the task put to the jury was to “find one mental state or the other”, the court opted to read the statutory charge, as required, without the Boettcher addition.
During the course of deliberations, the jury repeatedly declared that they were unable to agree on some of the higher charges, but could agree on one or more of the lesser charges. In all, seven notes were sent to the court indicating partial agreement on one or more counts, but deadlock on higher charges. On each occasion the jurors were asked to continue deliberations to see if they could agree on the greater charges. Under the particular circumstances of this case, where the dividing issue was selection of the appropriate mental state to be inferred from the same set of facts, at the time, the court did not feel that Boettcher (supra) required an acquittal-first instruction. Rather, the court opted to respect the intelligence and integrity of the jurors by explaining the law, so that the
Further, the jury was informed that the court would only accept a verdict on a lesser if it was firmly convinced that there was, in the words of the statute which was read to them, “no reasonable possibility” of agreement on the greater charges. After several declarations of impasse, a note was sent saying, “We truly believe that we have exhausted all avenues of discussion, and there is no, even remote possibility of reaching a full verdict. (We are however able to reach consensus on at least one of the charges.) * * * At this point none of the jurors believe that they have anything left to say. We can see no purpose in continuing to try to reach a full verdict.”
The court finally accepted the jury’s declaration that no such reasonable possibility existed. The jury had been given full opportunity to consider and return a verdict as to each charge in the indictment. (Contrast, People v Charles,
THE people’s APPLICATION FOR RETRIAL ON THE GREATER OFFENSES
As the court explained to the jury, a conviction on the lesser included offense is deemed to be an acquittal on the unresolved offenses. This elementary proposition is not only required as a matter of State and Federal constitutional law (see, People v Boettcher, 69 NY2d, supra, at 182 [“(A) retrial on the greater offense would be barred under settled double jeopardy principles (Green v United States,
The People maintain that the jury’s announced failure to agree permits reprosecution by reason of an amendment to CPL 310.70, adopted in 1974, allowing continued prosecution where the charge of conviction is not an “offense of higher or equal grade” to the unresolved counts. (CPL 310.70 [2] [b].) Notably, the amendment to CPL 310.70 did not prohibit acceptance of a partial verdict as occurred here. It merely provides for further disposition of unresolved counts after the verdict is taken. In some instances reprosecution is barred, in others it is authorized. As such an argument could be made that criminally negligent homicide is not a lesser included offense of intentional manslaughter, notwithstanding Wall, Stanfield, Green and Trappier (supra). However, even upon such a holding, renewed prosecution would be barred by double jeopardy considerations (see, e.g., United States ex rel. Hetenyi v Wilkins, 348 F2d 844 [2d Cir 1965], cert denied sub nom. Mancusi v Hetenyi,
Accordingly, as explained to the jury before it rendered its verdict, the counts of murder in the second degree and manslaughter in the first degree are deemed to have resulted in an acquittal and are dismissed.
Notes
. “Upon an indictment for any offence consisting of different degrees * ** * the jury may find the accused not guilty of the offence in the degree charged in the indictment, and may find such accused person guilty of any degree of such offence, inferior to that charged” (Rev Stat of NY, part IV, ch I, tit VII, § 27 [1829]).
. As discussed earlier, an argument can be made that the decision to invoke lenity is not necessarily improper (see, United States v Powell,
. The CJI Committee had adopted a Tsanas formulation following the Legislature’s elimination of the Willson language in the Criminal Procedure Law.
. People v Green,