Intent to Cause Serious Physical Injury Does Not Preclude Finding of Depraved Indifference

In People v. Wilson (Ct. App. 6/14/2018) (Garcia, J.), the Court of Appeals held that evidence of the defendant’s sustained assaults against his girlfriend over a period of two months, resulting in broken bones, brain injury, and permanent cognitive impairment, was sufficient to support a conviction for depraved indifference assault (Penal Law § 120.10[3]).

The defendant moved in with the victim in January 2011 shortly after meeting her and shortly thereafter began subjecting her to regular, severe physical violence. In August 2011, she suffered a burst blood clot on her ear and visited the hospital, where the doctor noted signs of previous trauma, including bruises that had healed abnormally. In September 2011, the defendant spoke with the victim’s mother and told her the victim was “acting possessed” and “banging her head against the wall.” The victim’s mother cleverly suggested her daughter receive a spiritual blessing with the aim of using the ceremony as a way to check on her daughter. Defendant also spoke with a friend around this time who heard moaning in the background over the phone and told defendant to take the victim to the hospital.

When two clergymen arrived at the defendant’s house at the mother’s insistence, they found the victim lying on a mattress, rocking back-and-forth and moaning incoherently. She was visibly injured and the defendant claimed the injuries were self-inflicted. When told to seek medical attention, defendant replied, “They will blame it on me,” but later agreed. When first responders arrived, they discovered the victim was severely injured. The victim indicated to EMT’s that she was afraid and that defendant had inflicted the injuries.

At the hospital, the victim lapsed into a coma, and she had to be resuscitated and put on a ventilator. An examination showed  she had suffered black eyes, an infected cigarette burn, “cauliflower ear,” broken ribs, a collapsed lung, several broken vertebrae in her neck and back, a fractured orbital bone, a broken nose, a dislocated shoulder, a shattered breast bone, multiple lacerations, and bruises all over her body. A CT scan also revealed a type of brain injury generally caused by “violent force trauma to the head” that is fatal in 90 percent of cases. The 10 percent who survive typically suffer life-long health effects, including physical and cognitive injury.

The trauma surgeon noted that the injuries were in different stages of healing and thus were likely inflicted at different times. He opined that some of the victim’s ribs had been broken within 24-hours of her admission to the hospital and that the breast bone fracture could have been months old given the degree to which it had already healed. He opined that the victim’s injuries could not possibly have been self-inflicted as some were so debilitating that it would have been physically impossible for her to continue injuring herself. According to the expert, the victim would likely have died within hours if not admitted to the hospital. She ultimately spent three weeks in intensive care and currently lives in an assisted-living facility.

The court found that the evidence was legally sufficient to establish the elements of depraved indifference, including (1) recklessness creating a grave risk of death, and (2) a depraved indifference to the victim’s life. The Court stated that depraved indifference requires a showing of “wanton cruelty, brutality, or callousness, combined with an utter indifference as to whether the victim lives or dies.” As with depraved indifference murder, this charge requires proof of a culpable mental state of depraved indifference.

The evidence demonstrated the victim had suffered a “protracted continuous injury pattern over months,” and she experienced scarring, bruising, a dislocated shoulder, a collapsed lung, a broken breast bone, broken ribs, and permanent brain damage. Significantly, the trauma surgeon opined that she would have died within hours if she had not been admitted to the hospital. Moreover, defendant attempted to conceal the injuries, isolated the victim, obstructed those who sought to check on her, and ignored his friend’s advice that the victim needed immediate medical attention.

On appeal, defendant argued that because the evidence showed that he intentionally inflicted the injuries, he could not have possessed the requisite mens rea to support a conviction for depraved indifference assault under P.L. § 120.10(3). The Court rejected this argument, concluding that a defendant could intend to cause serious physical injury while, at the same time, recklessly creating a grave risk that death would result from his or her actions.  The Court reasoned that  it would be inconsistent, for example, to convict a defendant of both intentional and reckless homicide, but stated that a defendant can commit both intentional and depraved indifference assault because there is nothing inconsistent about acting with two different mental states with respect to two different outcomes.

Defendant also argued that the evidence was insufficient because, generally, one-on-one crimes cannot be charged under a depraved indifference theory. The two exceptions to this general rule for depraved indifference murder are situations wherein the defendant (1) abandons a helpless victim in circumstances where the victim is highly likely to die, or (2) engages in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable individual.

The Court rejected this argument and concluded that, first, a jury could reasonably have found that the defendant “”ha[d] a conscious objective not to kill but to harm, [and] engaged in . . . a brutal, prolonged and potentially fatal course of conduct against a particularly vulnerable victim.” The Court noted that the “particularly vulnerable victim” category is not limited to children, contrary to defendant’s contention. Second, the Court concluded that, in any event, depraved indifference assault does not need to fit into one of the delineated exceptions for bringing depraved indifference murder charges in one-on-one killings. The Court reasoned that while circumstances in which a defendant is culpable for depraved indifference murder in one-on-one situations are “exceedingly rare,” this is not the case for depraved indifference assault, where evidence of intent to cause serious physical injury does not necessarily negate the possibility of finding reckless indifference to the victim’s life in the same way that an intent to kill does.

Nevertheless, the Court concluded with words of caution about depraved indifference:

That is not to say evidence of domestic violence automatically supports a verdict of depraved indifference assault in all cases. The People must marshal sufficient evidence to support each element of that crime, including the mens rea for depraved indifference. The defendant must recklessly create a grave risk of death and, in doing so, exhibit wanton cruelty, brutality, or callousness, combined with an utter indifference as to whether the victim lives or dies. The burden is a significant one, but it was met here: when viewed in the light most favorable to the People, the evidence presented the jury with a valid line of reasoning to find defendant guilty of depraved indifference assault.

In other words, prosecutors should not rush to charge depraved indifference assault.  Like its murder counterpart, this form of assault requires proof of a very specific mens rea.

Judge Rivera wrote a separate, concurring opinion, in which she agreed that the evidence was sufficient to support a finding that the defendant was guilty of depraved indifference assault. However, she took issue with the majority’s conclusion that depraved indifference assault cases are less rare than depraved indifference murder cases.

Judge Wilson also wrote separately, concurring in the result, and argued that the simplest way to uphold the defendant’s conviction is to conclude that he acted with different mental states not with respect to separate outcomes but with respect to separate occasions. In other words, Judge Wilson argued that because the victim suffered prolonged abuse on multiple different occasions, the defendant could reasonably be said to have acted with an intent to cause serious physical injury on some occasions and a depraved indifference to human life on other occasions. Judge Wilson argued that this is a much cleaner result than trying to resolve the issue of whether the defendant could have harbored a dual mens rea. (BJD/LC)

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