Criminal Law: Conviction of Depraved Indifference Murder May Be Upheld Despite Acquittal on Intentional Murder for Point Blank Shooting

Can a point blank shooting logically result in an acquittal of intentional murder and, yet, form the basis for a conviction of depraved indifference murder? Apparently, yes. In People v Carter, the Third Department tackled this strange issue.

Following an evening of alcohol consumption, the defendant began jawing with another bar patron, when defendant repeatedly hit-on said patron's female companions. Ultimately, defendant was escorted out of the bar. When the patron later left the bar with his companions, defendant was standing outside. Defendant then pulled out a gun and fired eight shots -- at point blank range -- at the patron. Four of the bullets fired struck the victim, killing him. Miraculously, no one else was hit. Following a jury trial, defendant was acquitted of intentional murder, but was convicted of depraved indifference murder.

Due to the fact that defendant failed to preserve the issue of whether the evidence supported only an intentional murder charge and, not a depraved indifference charge, the Court did not reach it. The Court did, however, address the weight of the evidence issue. Defendant argued that point blank shooting of an individual could only be intentional murder.

The Court disagreed. But before it did, it pointed to the fact that the presence of third persons is insufficient to convert an intentional homicide directed at a particular person into depraved indifference murder unless the others are actually endangered. The Court also noted that the greater number of shots fired, the more likely it becomes that there was an intent to kill (i.e. intentional murder). Although the circumstances of this case certainly cut in favor of the defendant, the Court, nevertheless, held that the jury's conclusion in this case was rational.

While the Court obviously acknowledged that the jury could have concluded that this was intentional murder, due to the fact that defendant had an argument with the victim, waited outside the bar and fired eight shots at him, hitting him with four bullets, it also concluded that the jury could have rationally concluded that the killing of the victim was not intended by the defendant, but rather the product of his depraved indifference. To rationally reach that conclusion, the jury would have had to conclude that defendant was intoxicated, was lying in wait outside the bar in hopes of being allowed back in to consume more alcohol, that a friend handed him a gun while he was waiting outside the bar and that he wildly shot the gun as a show of bravado, not intending to harm anyone. Practically speaking, this is a stretch, as common sense would tell us that anyone that waits outside a bar awaiting an individual he had just argued with (to the point of being thrown out of the establishment), pulled out a gun and, at point blank range, fired eight shots, killing the victim and harming no one else, intended to kill said victim.

In addition to leaving this case scratching your head, one should probably come away with this: weight of the evidence arguments are extremely difficult to win.