The big news today is going to be the Court of Appeals decision on Depraved Indifference Murder. I however, think that Echevarria, 2005 NY Slip Op 09812, is more important to the criminal practioner hence...
In Echevarria the defendant goes to score drugs at the home of acquaintances and kills them while trying to steal their drugs. He is charged with Murder in the First Degree (multiple deaths) and Murder in the Second Degree. The defense argues intoxication.
Without objection, the court charges the jury with both counts. It gives no instruction as to the order with which to consider the counts; a plain error. (See People v Boettcher, 69 NY2d 174 ). Thereafter, the jury announces it has a partial verdict. Wary of the fact that the jury could have considered the lesser charge first, the prosecutor argued that the court should not take the verdict and should order the jury to complete deliberations. (See People v. Fuller,96 NY2d 881 ). The defense attorney told the jury that Fuller was not an issue and asked for the partial verdict. The court agreed.
The jury came back guilty on the Second Degree Murders. Then they were told to deliberate on the remaining charges. No objection by defense counsel. Next day the Murder in the First comes back guilty. Result of course is that the Court of Appeals upholds the verdict.
The law on partial verdicts holds that if the partial verdict comes in on the lesser included count, the higher charge is deemed acquitted. (See Fuller) The defense should have objected to the continued deliberations. However, after arguing that Fuller was not at issue here, counsel would be hard pressed to object. The defense objection may have been a low ball but should have been made anyway. (Yeah that would mean that counsel could never appear before that judge again but...)
The real error came in failing to require the court charge the jury to consider the counts in order; the most serious count first. This is probably the prosecutors burden. If the second degree murder charge was the lesser included of the first degree murder charge, it should have only been reached after the verdict on the first degree charge had been decided. If the jury impasses on the First Degree charge, and goes to the Second Degree charge and thereafter announces it's verdict as partial, the First Degree charge falls whether or not they convict or acquit.
If the Prosecutor fails to ask for the Boettcher instruction and then argues Fuller, defense counsel should argue the prosecutor waived Fuller by failing to ask for the Boettcher instruction. In the case at bar the defendant waived Fuller by arguing it was not at issue here. Of course it is hard to be perfect under the heat of battle. Hence spending a few hours on jury charges prior to trial begining is an important part of trial preparation.
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