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Depraved indifference murder, like reckless manslaughter (N.Y. Penal Law § 125.15(1)), is a nonintentional homicide. It differs from manslaughter, however, in that it must be shown that the actor's reckless conduct is imminently dangerous and presents a grave risk of death; in manslaughter, the conduct need only present the lesser "substantial risk" of death. Whether the lesser risk sufficient for manslaughter is elevated into the very substantial risk present in murder depends upon the wantonness of defendant's acts -- i.e., whether they were committed under circumstances evincing a depraved indifference to human life, N.Y. Penal Law § 125.25(2). This is not a mens rea element which focuses upon the subjective intent of the defendant, as it is with intentional murder N.Y. Penal Law, § 125.25(1); rather it involves an objective assessment of the degree of risk presented by defendant's reckless conduct.
Defendant Steven Roe, a 15 1/2-year-old high school student, deliberately loaded a mix of "live" and "dummy" shells at random into the magazine of a 12-gauge shotgun. He pumped a shell into the firing chamber not knowing whether it was a "dummy" or a "live" round. He raised the gun to his shoulder and pointed it directly at the victim, Darrin Seifert, who was standing approximately 10 feet away. As he did so, he exclaimed "Let's play Polish roulette" and asked "Who is first?". When he pulled the trigger, the gun discharged sending a "live" round into Darrin's chest. Darrin died as a result of the massive injuries. Roe was convicted after a bench trial and the Appellate Division unanimously affirmed, holding that the evidence was legally sufficient to establish defendant's guilt. That court concluded, moreover, upon an exercise of its independent factual review power that the verdict was not against the weight of the evidence.
Is the evidence in the record sufficient to support the verdict of Roe’s guilt?
The evidence of the objective circumstances surrounding Roe’s point-blank discharge of the shotgun is sufficient to support a finding of the very serious risk of death required for depraved indifference murder. Because the escalating factor -- depraved indifference to human life -- is based on an objective assessment of the circumstances surrounding the act of shooting and not the mens rea of the actor, the evidence stressed by the dissent concerning defendant's mens rea -- his emotional condition in the aftermath of the killing-- is beside the point. Also without relevance are the dissent's references to defendant's claimed ignorance concerning the order in which cartridges, once loaded in the magazine, would enter the firing chamber. Such lack of knowledge can make no difference when, as is concededly the case here, the shooter knowingly loaded the mix of "live" and "dummy" cartridges with no regard to the order of their insertion into the magazine. The comparable case here is not that of a person, uneducated in use of weapons, who, while playing with a gun that he does not know is loaded, accidentally discharges it; rather, the apt analogy is a macabre game of chance where the victim's fate -- life or death -- may be decreed by the flip of a coin or a roll of a die. It is no different where the odds are even that the shell pumped into the firing chamber of a 12-gauge shotgun is a "live" round, the gun is aimed at the victim standing close by, and the trigger is pulled. The sheer enormity of the act -- putting another's life at such grave peril in this fashion -- is not diminished because the sponsor of the game is a youth of 15. As in Register, where bullets which might kill or seriously injure someone, or hit no one at all, were fired at random into a crowded bar, the imminent risk of death was present here. That in one case the gamble is that a bullet might not hit anyone and in the other that the gun might not fire is of no moment. In each case, the fact finder could properly conclude that the conduct was so wanton as to amount to depraved indifference to human life.