So far, all professional discussion I’ve seen about the Zimmerman case has not yet addressed a crucial tactical decision the defense may have to make.
If the case goes to trial—there’s a good chance it won’t survive a preliminary hearing—and if the prosecution and defense put in the evidence we’ve seen so far, there will be no proof of Murder 2. But what about a lesser included offense? In most states, in a Murder 2 case if there is evidence of, say, manslaughter, and the defense requests that judge charge the lesser offense it must be given.
Recall the Jean Harris case in New York, where she fired some five shots in the Scarsdale Diet Doctor’s bedroom, two of which hit him. Indicted for murder, the defense had to decide whether to ask for charges on lesser included offenses, of which there was evidence in the record. For whatever reasons, the defense opted not to. So Harris went to the jury with Murder or nothing—with five shots fired and a dead doctor! What would one expect the jury to do?
Back to Zimmerman. If the evidence is as we know it now, and assuming that there is insufficient evidence of Murder 2, does the defense ask for a charge on lesser included offenses, of which there will be evidence in the record? Say Manslaughter—giving some jurors an opportunity to compromise and find Zimmerman guilty of a homicide even though he is not guilty of Murder 2. Or, as in the Harris case, does the defense go for Murder 2 or nothing, looking for an acquittal but with Travon Martin dead?
The following case sheds some light on the problem.
36 N.Y.2d 467
Court of Appeals of New York.
The PEOPLE of the State of New York, Appellant,
Robert STANFIELD, Respondent.
May 5, 1975.
Henry Mark Holzer and Erika Holzer, New York City, for respondent.
At issue on this appeal is whether the crime of criminally negligent homicide is a lesser included offense of the crime of manslaughter in the second degree.
The defendant was indicted for manslaughter, second degree, for the death by shooting of Thomasina Banks, a woman with whom he maintained a common-law relationship.
There were no other witnesses to the shooting and the People's case was proved almost entirely by the defendant's own oral and written statements, judicially determined to be voluntary or otherwise unobjected to.
The essential facts, as reconstructed from the defendant's statements, are these. The defendant and Thomasina, parents of three girls, at the time maintained separate residences. On January 28, 1969, at about 10:00 P.M., he decided to visit Thomasina.
Before reaching her apartment, he telephoned a friend, Willie Nyland, the boyfriend of Thomasina's sister, and during a lull in the conversation thought be heard Thomasina's voice in the background. He proceeded to her apartment, arriving at about 10:30 or 10:45 P.M., but was told by the children that she was not home. He then walked to a nearby subway station and a short time later met Thomasina there. The two then returned to Thomasina's apartment, each apparently in good spirits.
Thomasina then changed clothes and the two drank some wine. At least two of the children were in the apartment at the time. Together they discussed purchasing a car and Thomasina tried without success to mend her daughter's dress. Thomasina and the defendant were alone in the bedroom, sitting on the bed with the door closed.
The defendant asked whether she had been at Willie's house a short time before. She answered no, explaining that she had been at a friend's. The defendant then said that he had a gun and that he was going to shoot her. He then went to the dresser and took from the drawer a .38 caliber two-shot derringer. The pistol had been purchased about a year and one half before, test fired once at that time and usually was kept at Thomasina's apartment in a loaded condition. The defendant then cocked the hammer and standing very close to Thomasina with the barrel pointed upward at about a 45 degree angle, but in her direction, repeated ‘I'm going to shoot you.’ Thomasina responded, ‘Bob, don't mess with the gun like that’, and then slapped his hand or arm. The weapon discharged, inflicting a mortal wound through the left breast.
The defendant related an unsuccessful attempt to revive her, unsuccessful efforts to telephone for police assistance and a frantic telephone call to his mother in North Carolina, who advised him to contact the police. He then summoned a policeman on foot patrol in front of 120 216 W. 62nd Street.
The statements thereafter made relate that he did not intend to shoot, but only to scare Thomasina; that he cocked the hammer because, being familiar with the weapon, she would not otherwise have been frightened.
Ballistics evidence showed that the weapon discharged about 1 ½ inches from the victim. Expert testimony established that in the fully cocked position, 14 pounds of pressure on the trigger would cause the weapon to discharge, but that even in the uncocked position a sharp enough blow on the hammer could cause it to fire. There was additional testimony that the weapon lacked a trigger guard and that this made it unsafe. A toxological report showed brain alcohol content of 0.075%, indicating that the victim had been drinking.
Upon this evidence and without the benefit of a requested charge on criminally negligent homicide [my emphasis], the defendant was convicted of the crime of manslaughter in the second degree.
On appeal, the Appellate Division reversed the conviction on the law and ordered a new trial ‘in which the lesser included crime will be submitted to the jury.’
Subdivision 1 of section 125.15 of the Penal Law, Consol.Laws, c. 40, in pertinent part, provides that a person is guilty of manslaughter, second degree, when he recklessly causes the death of another person. A person is guilty of criminally negligent homicide (Penal Law, s 125.10), when, with criminal negligence, he causes the death of another person. The Criminal Procedure Law (CPL 1.20, subd. 37, Consol. Laws, c. 11—A) provides that (w) hen it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a lesser included offense.
The essential distinction between the crimes of manslaughter, second degree, and criminally negligent homicide is the mental state of the defendant at the time the crime was committed.
In one, the actor perceives the risk, but consciously disregards it. In the other, he negligently fails to perceive the risk. (The result and the underlying conduct, exclusive of the mental element, are the same.
The People contend that the mental elements of the respective crimes are mutually exclusive and that, paraphrasing the definition of a lesser included offense, it is possible to commit the greater without concomitantly committing the lesser offense, and that, hence, the latter is not included in the former.
The argument, conceptually nice and mechanically accurate, is not persuasive. To begin with, the underlying conduct in each, exclusive of the culpable mental state, is the same. And at the outset the People are met with the equally hypertechnical counterargument that the Penal Law provision (s 15.00, subd. 4) which includes within the definition of conduct ‘an act or omission And its accompanying mental state’ (emphasis supplied), is not fully applicable, at least for purposes of what is a lesser included offense under the Criminal Procedure Law definition (CPL 1.20).
But more fundamentally, criminal recklessness and criminal negligence with respect to a particular result—here homicide—may in a particular case, if not hypothetically or definitionally, be but shades apart on the scale of criminal culpability. And the distinction between the two mental states is less clear practically than theoretically. Indeed, the definitional cleavage the People would draw, while theoretically appealing, may be illusory in practical application. Hence it seems manifest that in a practical, if not a literal definitional sense, if one acts with criminal recklessness he is at least criminally negligent. Moreover, negligence may, in a particular case, quickly, even imperceptibly, aggravate on the scale of culpability to recklessness. The principle seems well illustrated here, or at least the jury, if properly instructed, would have been privileged so to conclude.
It is necessary to say whether in this record there was a reasonable view of the evidence that would have supported a finding that the defendant committed the lesser but not the greater offense, thus entitling him to the instruction as requested. (CPL 300.50.)
We think there was. Whether the defendant perceived the risk of harm and consciously disregarded it (manslaughter, second degree) or negligently failed to perceive the risk (criminally negligent homicide) was, we think, on this record for the jury, properly instructed, to say.
When the defendant placed the derringer at Thomasina's breast, he was at least negligent with regard to the risk posed, or so the jury would have been privileged to conclude. Whether when the derringer was cocked and while ‘playing with the gun’, unawareness escalated or should have escalated to awareness of the ultimate risk created—criminal recklessness—was a factual question for the jury, considering all the circumstances including, by way of example, defendant's familiarity with weapons and the safety and other characteristics of this weapon, the interval since he last handled this particular weapon, and the likelihood that it was still loaded.
While it is his perception or nonperception of the risk of harm that governs and not the manner of occurrence of the ultimate harm inflicted, risk creation and risk perception are colored also by how others viewed the situation. Here, notably, the jury could conclude from the evidence that Thomasina viewed the defendant's actions as only ‘messing’ with the derringer, which perception, with other permissible inferences, might support a jury finding of guilty of criminally negligent and not reckless homicide.
Therefore, on the particular facts of this case on which we focus rather than merely superimposing the ‘impossibility’ formula of lesser included offense upon the abstract statutory language, we conclude that criminally negligent homicide is a lesser included offense of manslaughter, second degree, and that the defendant was entitled to the requested instruction.
Our conclusion is buttressed by policy considerations. It seems manifest that there is a benefit to the People—indeed here the Assistant District Attorney at trial argued that criminally negligent homicide is a lesser included offense of manslaughter, second degree—as well as to the defendant in recognizing that the one offense is included in the other. That is especially so where in a particular case, as is illustrated here, the dividing line between the offenses may be factually blurred.
Accordingly, the order of the Appellate Division should be affirmed.
BREITEL, C.J., and GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE, JJ., concur.
What will the Zimmerman defense do?