Published on:

It is evident that to the extent that the accused man’s memory was clearer


Judgment of the Supreme Court convicting the accused, following a jury trial, of manslaughter and sentencing him to an indeterminate term of imprisonment of from six to eighteen years, is reversed on the law and the matter remanded for a new trial.

The accused was indicted for murder in the second degree, criminal possession of a weapon in the second degree and criminal use of a firearm in the second degree as the result of a fatal shooting. The deceased was a physician who had purchased real property located in Bronx County. The accused was the seller of the parcel of land in question, and, following the transaction, the deceased and the accused became good friends. However, the relationship between the two men deteriorated rapidly after the accused first agreed to sell the deceased man’s one-half of a building but subsequently refused to go through with the deal. The deceased man thereupon instituted a lawsuit to compel specific performance, and, when the parties were unable to settle their differences, the matter proceeded to trial and judgment, the outcome of which was that the accused was directed to sell the property to the deceased. The accused filed a notice of appeal and moved for a stay, which was granted on condition that he files a bond and perfect his appeal by a specified date. All additional settlement discussions were unsuccessful, and, finally, on the day before the bond was due, the dispute erupted into violence. The accused and the deceased became embroiled in a heated altercation during which the accused was apparently punched by the deceased and then threatened by him with further physical injury. In response, the accused removed a loaded gun from the desk in his office and followed the accused downstairs to ascertain whether he had left the premises in which the accused man’s printing business was located. The two men exchanged some more words, and the accused fired three shots at the deceased, one of which struck the latter, fracturing his spine resulting to spinal injury and perforating the spinal cord. All efforts to revive the deceased failed.

At the ensuing trial, the arresting officers described the accused as being dazed and incoherent after the shooting, and, indeed, the accused man’s defense was that he lacked criminal responsibility by reason of mental disease or defect. The psychiatric expert who testified on the accused man’s behalf, stated that at the time of the incident, the accused was suffering from a severe adjustment disorder with anxiety and that this condition significantly impaired his ability to comprehend the consequences of his act or to distinguish the real from the unreal. In the opinion of the accused man’s psychiatric expert, because of a childhood eye injury and the attendant loss of his left eye, the accused lived in constant fear of losing the other eye and becoming totally blind. Therefore, when the deceased had beaten him so severely on the day of the shooting that his glass eye had fallen out and also promised to return and blind him, the accused became so petrified that he ceased to function in a rational manner. In rebuttal, the court called the psychiatrist who agreed that the accused had suffered from an adjustment disorder but, nonetheless, concluded that the accused had possessed the capacity to appreciate the nature and consequences of his act, as well as its wrongfulness. Both psychiatrists concurred that the accused was not psychotic.

In convicting the accused man of manslaughter in the first degree, the jury rejected his claim of lack of criminal responsibility on the ground of mental disease or defect. On appeal, the accused man argues, in part, that the trial court committed reversible error in failing to deliver an instruction to the jury, despite being requested to do so, which is required by the Criminal Procedure Law. According to the provision any statement made by the accused man to a Queens psychiatrist or licensed psychologist during his examination of the accused man shall be inadmissible in evidence on any issue other than that of the affirmative defense of lack of criminal responsibility, by reason of mental disease or defect. The statement shall, however, be admissible upon the issue of the affirmative defense of lack of criminal responsibility by reason of mental disease or defect, whether or not it would otherwise be deemed a privileged communication. Upon receiving the statement in evidence, the court must instruct the jury that the statement is to be considered only on the issue of such affirmative defense and may not be considered by it in its determination of whether the accused man committed the act constituting the crime charged.

The court contend that the court did not improperly decline to give a mandated charge since defense counsel did not ask for the statutory instruction but, rather, one contained in a textbook indicating that such an instruction might be appropriate in some circumstances. In that regard, the court urge that the failure of defense counsel to refer specifically to the statutory provision is fatal to the accused man’s position. The prosecution asserts that when the accused man’s attorney requested the charge he did so, on the basis of the inculpatory nature of the accused man’s statements to the psychiatrists and not because of the requirement of the Criminal Procedure Law and the constitutional protection against self-incrimination. When a litigant on appeal claims that a trial error has occurred, the court argue, he must advance a theory that was raised at trial. Consequently, the accused has not preserved for appellate review his objection to the court’s failure to give the instruction in question. The court, moreover, point to the slight variation between the statutory language and that of the charge demanded by the defense counsel which provides that the psychiatric testimony may not be considered by the jury in its determination of whether the accused committed the act constituting the crime charged while the textbook charge employs the phrase whether the accused committed the crime charged. Finally, the prosecution contends that even should the court decide that the accused properly preserved the issue for appeal and that the trial court should have charged the jury in the proposed manner, the error was harmless. In the view of the prosecution, the evidence of the accused man’s guilt was overwhelming; the accused conceded that he had shot the deceased man; he had not met his burden of demonstrating his mental incapacity; and there is no likelihood that, but for the alleged error, the jury’s verdict would have been other than what it was.

However, an examination of the wording of the Criminal Procedure Law clearly shows that the provision contains a mandatory directive that the court must instruct the jury. The direction, further, is not conditional upon the accused man’s request that it be delivered; the statute obligates the trial court to charge the jury that the statement made by an accused to a psychiatrist during his examination is to be considered only on the issue of the affirmative defense and not with respect to whether the accused committed the act constituting the crime charged. Failure by the court to comply with a statutory mandate presents an issue of law for appellate review even where counsel may have consented to the procedure. In the instant situation, the accused man’s lawyer did not, of course, agree. The accused man’s counsel specifically asked for the charge, and it is irrelevant that he did not cite the statutory provision or that the language in the requested instruction varied slightly from the words used in Criminal Procedure Law. Further, since the trial court was required to follow the statutory directive, the court’s refusal to give the charge herein cannot be deemed harmless error.

Compounding the error which occurred is that in the absence of the limiting instruction, the jury very likely did, in fact, consider the psychiatric testimony as proof of the underlying offenses charged against the accused. The reason is that the accused man’s account at trial was at variance in certain significant respects from the accused man’s psychiatric expert’s testimony concerning his conversations with the former. Thus, at the trial, the accused exhibited lapses in memory. He could not, for example, recall removing the weapon from his desk and loading it; he saw faces which he did not recognize the faces that belonged to two of the accused man’s employees and didn’t remember much of anything until he stood on the porch with the gun in his hand, calling the deceased not to return. Indeed, his recollection of the circumstances surrounding the shooting was rather hazy although he did admit to firing his weapon three times in quick succession and observing the deceased stumble and fall down into his car. The accused man’s psychiatric expert, on the contrary, indicated that the accused might have been more aware of what was happening at the time of the incident than he acknowledged at trial. According to the accused man’s psychiatric expert, the accused had stated that after he was beaten by the deceased, his implant was half out, he could feel blood, he thought he was hemorrhaging. He kept thinking that his assailant was coming back and he can’t take another beating. He then went for his gun because he had a gun in a holster in his desk, in his office, in his building in the Bronx; that he had bought three or four years earlier for his own protection. He took the gun and he went downstairs to stop the deceased from coming back.

It is evident that to the extent that the accused man’s memory was clearer during his private interviews with his psychiatric expert than it was when he was on the stand (at the psychiatric interviews, he did recall getting his gun); the statements made by the accused were certainly inculpatory. A limiting charge to the jury that the statements were not admissible for purposes of determining whether he had committed the crimes of which he was accused was, therefore, imperative. Finally, it is noted that it was also error to permit the prosecutor to interrogate the accused regarding an alleged prior incident. Not only was information concerning the matter obtained as a direct result of the accused man’s examination by the court’s psychiatrist and then used by the district attorney to attack the accused man’s credibility, which was improper in itself, but the prosecution was allowed to question the accused without first ascertaining whether there was a factual basis for the prior purported misconduct and without the court delivering any instruction to the jury as to how this testimony could be viewed. At any rate, the incident was simply too remote in time to be probative of the accused man’s credibility, and the possibility of prejudice to the accused was so high as to outweigh any evidentiary value.

Death due to misunderstanding is one of the worst things that could happen between friends. The law has grave punishment for this crime if proven.

If you are trying to consider filing a lawsuit, consult New York City Medical Malpractice Attorney together with a New York Personal Injury Lawyer. You can also call the New York City Injury Attorneys and the NYC Spinal Injury Lawyers to provide you with the most reliable legal advice.

Contact Information