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Depraved Indifference Murder And Legal Sufficiency


People v. Heidgen

New York Court of Appeals

22 N.Y.3d 267

Decided November 21, 2013

Issue: Whether or not the evidence was legally sufficient to prove depraved indifference murder in each of the three cases that involved driving while intoxicated.

Holding: the Court of Appeals found that the evidence in each case was legally sufficient because each defendant drove in an outrageously reckless manner while intoxicated by alcohol or drugs and caused the death of another person. The Court noted that depraved indifference is a culpable mental state best understood as an utter disregard for the value of human life —- a willingness to act not because one intends harm, but because one simply doesn’t care whether grievous harm results or not.

Facts: Defendants in these three appeals challenge their convictions of depraved indifference murder. Each defendant drove in an outrageously reckless manner while intoxicated by alcohol or drugs and caused the death of at least one other person. We find that the evidence in each of these unusually egregious cases was legally sufficient to support the convictions.

Martin Heidgen met a friend for drinks at a Manhattan bar. When the friend left about three hours later, defendant, who remained at the bar, had already consumed six beers. Later that night, defendant drove to a party at a friend’s house in Merrick. Defendant proceeded to consume several additional alcoholic beverages at the party. Although he appeared to be intoxicated or “buzzed,” defendant was not unsteady on his feet or slurring his words. Defendant left the party after about an hour and a half. It was not only well-known among their group of friends that there would always be a place to stay or a designated driver available if necessary, but one friend testified that she had had a specific conversation with defendant to that effect about a week prior to the party.

 Just before 2:00 am, witnesses saw defendant driving north on the southbound side of the Meadowbrook Parkway. One witness testified that she pulled over when she saw defendant’s headlights coming at her and honked her horn three times.  A second witness testified that, when he saw defendant’s pickup truck approaching, the witness drifted slightly to the left and that “it appeared as if [defendant’s] car was drifting with me.” The witness estimated defendant’s speed at between 70 and 80 miles per hour.

Third witness testified that he had been driving his motorcycle on the northbound side of the Meadowbrook Parkway, when he saw defendant’s vehicle on the wrong side of the road.  Despite the witness’s “loud” motorcycle at his side, defendant only looked straight ahead and appeared “very intent at driving.”

After traveling about 2½ miles on the wrong side of the parkway, defendant crashed head-on into a limousine that was bringing several family members home from a wedding. Both the driver, Stanley Rabinowitz, and seven-year-old passenger, Katie Flynn, were killed on impact. Several other family members sustained grievous physical injuries.

Reverend Steed Davidson testified that he had been driving in the center lane at about 55 miles per hour and that the limousine had just finished passing him on the left when the crash occurred. Davidson testified that he saw defendant’s headlights coming toward him, but was unable to react before impact. Davidson did not see defendant’s vehicle swerve or slow down before the crash.

Defendant was arrested at the scene and transported to the hospital. He smelled of alcohol and was generally characterized as either unresponsive or incoherent by police officers and medical professionals.  The emergency room nurse obtained a blood sample from defendant which revealed a blood alcohol concentration of .28%.

Dr. Closson, a forensic toxicologist, testified.  Dr. Closson testified that the 0.28% reading meant that defendant had approximately 14 drinks in his system at the time of the test, but gave a “conservative estimate” that defendant had consumed at least 20 drinks in all.

The jury was instructed that, when determining whether defendant had acted with depraved indifference to human life, it should consider whether he was too intoxicated to be able to form the requisite mental state. Defendant was convicted after trial of two counts of murder in the second degree, three counts of assault in the first degree and two counts of operating a vehicle while under the influence of alcohol.

The Appellate Division affirmed, finding the evidence legally sufficient to support the conviction. One Justice dissented in part and would have modified to reduce the convictions of murder in the second degree to manslaughter in the second degree. The dissenting Justice granted defendant leave to appeal to this Court and we now affirm.

People v Taylor

Defendant Taliyah Taylor spent most of the evening attempting to record a song she had written in honor of her late father, who had died when she was a child. Unable to recall the last verse of the song, she took Ecstasy at about 6:30 pm in order to help her focus and to feel closer to her father. She also drank one beer and smoked marijuana. A few hours later, defendant left the recording session.  Removed her own clothing. Defendant ran outside, still naked, attempting “to get away from everything, all the problems, all the hate, all the greed.” Over her girlfriend’s vigorous objections, Taylor then took the friend’s car, later explaining that she wanted to drive “as fast as the car would take her.”

Defendant drove on Forest Avenue in Staten Island at speeds between 80 and 90 miles per hour, without headlights, on the wrong side of the road, and struck a pedestrian. Defendant, who was wearing her seat belt, did not slow down, sound her horn or make any attempt to swerve. Without slowing, defendant continued driving in the lane for oncoming traffic ran a red light and struck a vehicle that was stopped at that light, injuring the vehicle’s occupants. Defendant’s car then flipped over, before coming to rest in a parking lot.

Bystanders helped defendant from the vehicle and she began jumping up and down, chanting “money, power, and respect.” When the police arrived at the scene, defendant tried to drive away in an unattended squad car, but was stopped and arrested.  The emergency medical personnel generally characterized defendant as alert and coherent, though under the influence of drugs or alcohol. A blood test performed after midnight showed the presence of methylenedioxyamphetamine (MDA)[FN4] in a concentration that indicated defendant was still actively under the influence of the drug.

The jury was instructed that it could consider whether defendant was too intoxicated to be capable of forming the mental state of depraved indifference. Defendant was convicted of murder in the second degree.

People v McPherson

Defendant Franklin McPherson left a nightclub with his cousin, his girlfriend and one of her friends, and began arguing with his girlfriend in the parking lot. He was apparently upset that he had lost something and was seen searching through the trunk of his car. Witnesses then heard several gunshots and defendant drove away with his cousin in the car.

Defendant’s car was seen driving west in the eastbound lanes of the Southern State Parkway at speeds of about 70 to 75 miles per hour. He traveled about five miles in the wrong direction, passing eight “wrong way” signs and the backs of 21 large signs that could only be read by eastbound drivers. Witnesses testified that cars were veering out of defendant’s way but that defendant made no attempt to brake or to avoid other vehicles.

Defendant crashed head-on into a Jeep without slowing down, killing the Jeep’s driver, Leslie Burgess, instantly. Defendant was placed under arrest and his blood alcohol content was measured at 0.19%.

The jury was instructed that it must consider whether defendant was intoxicated to such a degree that he was incapable of forming the mental state of depraved indifference.

Defendant was convicted of murder in the second degree, vehicular manslaughter in the first degree, aggravated driving while intoxicated, operating a motor vehicle while under the influence of alcohol, criminal possession of a weapon in the second degree and criminal possession of a controlled substance in the seventh degree.

Legal Analysis:

Depraved Indifference

People v Feingold (7 NY3d 288, depraved indifference is a culpable mental state. That mental state “is best understood as an utter disregard for the value of human life —- a willingness to act not because one intends harm, but because one simply doesn’t care whether grievous harm results or not”.  Circumstantial evidence can be used to establish the necessary mens rea.

Cases involving a depraved indifference to human life are highly fact-specific and dependent upon the individual defendant’s particular mental state —- a factor that may be extremely difficult to establish. Indeed, intoxicated driving cases in general, although clearly examples of dangerous behavior are not thought of as “quintessential” cases of depraved indifference.  Recognizing that “it is important that law enforcement and prosecutors have the tools necessary to properly charge and convict [those] who have committed a DWI resulting in personal injury or death”, the legislature has enacted the aggravated vehicular homicide and assault statutes (Penal Law §§ 125.14, 120.04-a), which provide for enhanced punishment of those individuals who cause death or serious physical injury while operating a motor vehicle while intoxicated, when, for example, the individual has a blood alcohol content of at least 0.18. These statutes, however, do not foreclose the possibility of prosecution for depraved indifference murder where egregious circumstances warrant that charge, as they do here.

“A verdict is legally sufficient when, viewing the facts in a light most favorable to the People, there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt”. The reviewing court must “marshal competent facts most favorable to the People and determine whether, as a matter of law, a jury could logically conclude that the People sustained its burden of proof”.

When viewed in the light most favorable to the People, there was legally sufficient evidence to support Heidgen’s convictions for depraved indifference murder. The jury could have determined that defendant was unhappy and self-destructive. Heidgen drove the wrong way on the highway for over two miles without reacting to other drivers coming at him, car horns, or wrong way signage. Perhaps most significantly, more than one witness testified that defendant appeared to follow, or track, the headlights of oncoming vehicles. Based on this evidence, the jury could have found that, despite defendant’s intoxication, he perceived his surroundings. The jury could have reasonably concluded that defendant drove, knowing that he was on the wrong side of the road and with an appreciation of the grave risks involved in that behavior. One who engages in what amounts to a high speed game of chicken, with complete disregard for the value of the lives that are thereby endangered, is undoubtedly an individual whose culpability is the equivalent of an intentional murderer.

The evidence is likewise legally sufficient to support Taylor’s conviction for depraved indifference murder. Taylor buckled her seat belt and set out to drive as fast as she could go. She proceeded at speeds in excess of 80 miles per hour on a local road, without lights, at times on the wrong side of the street. Her statements to police revealed that she had perceived at least some of the obstacles in her path, notably the pedestrian victim prior to striking him. Taylor’s behavior was obviously frenzied,but it is also clear that she was aware of her surroundings.

In McPherson, the depraved indifference argument arises in the context of an ineffective assistance of counsel claim. Under these circumstances, even if a reasonable defense lawyer might have questioned whether a motion to dismiss on this basis was “a clear winner,” he or she could not have reasonably determined that the argument was “so weak as to be not worth raising”. Defense counsel should have moved to dismiss the charge of depraved indifference murder.

Nonetheless, defendant failed to establish that he received ineffective assistance of counsel. In evaluating an ineffective assistance of counsel claim, we have looked to the fairness of the proceedings as a whole, or whether defendant received meaningful representation. We have recognized that “a defendant’s showing of prejudice [is] a significant but not indispensable element” in determining whether the standard of meaningful representation was achieved

Here, a motion to dismiss would not have been successful.

Perhaps the most difficult aspect of all of these cases is whether there was sufficient evidence that the defendants were aware of and appreciated the risks caused by their behavior —- specifically, as to Heidgen and McPherson, that they knew they were driving on the wrong side of the parkway and proceeded regardless. However, as noted above, each jury rejected the conclusion that the defendant was too intoxicated to form the requisite intent. Despite defendants’ seemingly inexplicable behavior, the People simply are not required to provide a motive for their conduct. Rather, depraved indifference can be proved circumstantially. Here, in each case, a rational jury could have found that the defendant, emboldened by alcohol or drugs, appreciated that he or she was engaging in conduct that presented a grave risk of death and totally disregarded that risk, with catastrophic consequences.

One of Heidgen’s additional arguments merits further discussion. He asserts that his blood was illegally drawn without his consent or a warrant, and should have been suppressed. The suppression court found that it was unnecessary to obtain defendant’s consent before drawing his blood because it would have been impossible to do so, given his complete disorientation. This finding was undisturbed by the Appellate Division.

Defendant also maintains that the police should have obtained a warrant before drawing his blood and that, under recent United States Supreme Court precedent, they were required to do so (see Missouri v McNeely, 569 US , 133 S Ct 1552 [2013]). In McNeely, the Supreme Court held that the natural dissipation of alcohol from the blood does not constitute a per se exigency justifying an exception to the warrant requirement of the Fourth Amendment.

Unlike the defendant in McNeely, Heidgen did not refuse to consent to the blood test. His blood was taken pursuant to a statutory presumption of consent to chemical testing that applies to all persons who operate vehicles within the state (see Vehicle and Traffic Law § 1194 [2][a]). Although defendant raised several arguments at the suppression hearing concerning the validity of his blood test —- whether the blood had been drawn by a licensed professional nurse, whether it was drawn within the statutory time limits and whether he was capable of consent —- the current argument was not one of them. In the midst of an argument that Heidgen should have been asked for his consent, counsel at one point stated that, “they should have called the district attorney’s office, or certainly secured a warrant, and they didn’t.” This in no way amounts to an argument that the drawing of defendant’s blood while he was incapacitated, under a statutory presumption of consent, violated his Fourth Amendment rights. Under the circumstances, we find the current argument unpreserved for our review.

Stephen Preziosi is a criminal appeals lawyer in New York City’s Times Square.  His firm handles both New York Criminal Appeals and Federal Criminal Appeals throughout the nation.