Initial Aggressor Exception Clarified: Manslaughter Conviction Reversed

The Defendant here was charged with murder in the second degree. After he came upon a man hitting his brother in the head with a hammer, he stabbed what became the victim. The Defendant testified that he was in his own home when his ex-wife told him that someone was beating his brother up with a hammer down the block. Defendant testified that he ran onto the victim’s porch, tried to break up the fight, and, in the scurry, stabbed the victim in the chest with a knife.

Procedural History: “The jury acquitted defendant of second degree murder, but found him guilty of manslaughter in the first degree. Supreme Court subsequently sentenced defendant to 25 years in prison, to be followed by five years of postrelease supervision. The Appellate Division unanimously affirmed the judgment of conviction (114 AD3d 1134 [4th Dept 2014]), and a Judge of this Court granted leave to appeal (23 NY3d 1044 [2014]).” Pp. 6.

At issue here was the jury instruction of Justification and whether the initial aggressor exception to the justification defense misstates the applicable law where defendant intervened in an already existing fight. Indeed:

At the charge conference, Supreme Court indicated that it would, at defendant’s request, give a charge on the justification defense. Defendant then specifically requested that the court read the standard criminal jury instruction on justification, but exclude the portion that addressed the initial aggressor rule, because defendant did not “stand in the shoes of anybody initially involved in the fight.” Alternatively, defendant argued that, if an initial aggressor charge “were to be used at all[, it] should indicate the first person to use deadly force, not offensive force.” In contrast, the People asserted that there was “a fair view of the evidence to show that…defendant [was] acting in concert with” his brother and girlfriend, which “makes him accountable as an initial aggressor.”

Pp. 3. (external quotation marks omitted and internal citations preserved).

The court eventually ruled that an altered criminal jury instructions aggressor charge was proper because it was supported by “a reasonable view of the evidence.” Pp. 4. The defendant objected and the court denied the defendant’s request to alter the initial aggressor exception to the jury charge. At trial, during summation, the Court of Appeals characterized the trial prosecutor’s argument that “described the conflict in a manner that made it appear as though defendant was acting in concert with his brother and his girlfriend from the beginning” and that the confrontation was a “three on one.” Pp. 4. Indeed, the Prosecutor described the brothers as accomplices and how the victim was just trying to get everyone to leave. In addition to the justification charge, the Court charged the jury on the initial aggressor rule:

“Notwithstanding those rules that I just explained, the defendant would not be justified in using deadly physical force…if he was the initial aggressor. Initial aggressor means the person who first attacks or threatens to attack…Where there is a reasonable view of the evidence that the defendant initiates non-deadly offensive force and is met with deadly physical force, the defendant may be justified in the use of defensive deadly physical force and…in such cases the term initial aggressor is properly defined as the first person in the encounter to use deadly physical force…A person who reasonably believes that another is about to use deadly physical force upon him need not wait until he is struck or wounded. He may in such circumstances be the first to use deadly physical force so long as he reasonably believed it was about to be used against him…Arguing, using abusive language, calling a person names or the like unaccompanied by physical threats or acts does not make a person an initial aggressor.”

Pp. 5-6 (citing the trial court)

Law: It is well settled that, “[i]n evaluating a challenged jury instruction, we view the charge as a whole in order to determine whether a claimed deficiency in the jury charge requires reversal” (People v. Medina, 18 NY3d 98, 104 [2011]; see People v. Umali, 10 NY3d 417, 426-427 [2008], cert denied 556 US 1110 [2009]). Reversal is appropriate — even if the standard criminal jury instruction is given — when the charge, “read…as a whole against the background of the evidence produced at the trial,” likely confused the jury regarding the correct rules to be applied in arriving at a decision (People v. Andujas, 79 NY2d 113, 118 [1992]; see Umali, 10 NY3d at 427). When the defense of justification is raised in cases involving deadly force, “the People must demonstrate beyond a reasonable doubt that the defendant did not believe deadly force was necessary or that a reasonable person in the same situation would not have perceived that deadly force was necessary” (Umali, 10 NY3d at 425).

The Court of Appeals held that, “[a]s the trial court properly recognized, the justification defense is not available to an initial aggressor except in circumstances not present here (see Penal Law §35.15 [1] [b])….defendant correctly argues that the charge, taken as a whole, was confusing and misleading under the circumstances of this case because the court did not go on to explain the manner in which the initial aggressor rule applies when a defendant intervenes in an on-going struggle to protect a third party who the defendant reasonably believes is being unlawfully beaten.” Pp. 6-7.

Application: In evaluating a more analogous and similar circumstance faced by the Defendant at issue here, the Court of Appeals evaluated the Alter-Ego Rule: ” an intervenor stood in the shoes of the third-party being assaulted and intervened at his own peril that he was acting under a mistaken belief of fact regarding the lawfulness of the beating.” Pp. 7 (citing People v. Young, 11 NY2d 274, 275 [1962]). In evaluating case law and the history of Penal Law Section 35, the Court of Appeals determined that “[t]he failure to give such a supplemental instruction here was not harmless because the evidence does not overwhelmingly demonstrate that defendant was involved in the initiation of the physical confrontation, that he was the first to use deadly physical force, or that he had reason to know who initiated the original conflict.” Pp. 10. The Court of Appeals clarified what instruction should have been given and concluded that the failure to give the supplemental instruction here was not harmless error. Indeed, the intervenor here innocently came to the aid of his brother who he believed was being assaulted.

Conclusion: Reversed and indictment dismissed!

The case is People v. Walker, No. 147, NYLJ 1202740822508, at 1 (Ct. of App., Decided October 27, 2015).

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