A unanimous state appeals panel has overturned the murder conviction of Kenneth Minor, who claims he was paid by a motivational speaker to help him commit suicide and make it look like a murder, finding that the jury was given improper instructions about the assisted suicide defense to murder.
The four-judge Appellate Division, First Department, panel Thursday ordered a new trial in People v. Minor, 3651/09. Minor was convicted of second-degree murder and sentenced to 20-years-to-life in April 2011.
Justice Rosalyn Richter, writing for the panel, said that Manhattan Supreme Court Justice Carol Berkman should not have told the jury that murder is “active” and assisted suicide is not, language that is not found in the statute. Richter was joined by Justices Luis Gonzalez, John Sweeny and Darcel Clark.
The case goes back to July 2009, when Jeffrey Locker, who ran a motivational speaking business, was found dead with multiple stab wounds in his car in East Harlem. Locker, who was 52 when he died, had lived with his wife and three children in Long Island.
Police initially believed that Locker was killed in a robbery, but later learned that Locker, who was deeply in debt, had made plans to commit suicide and make it look like a murder so that his family could get his life insurance. Locker had recently bought about $12 million worth of life insurance, and had made a 15-minute call to a funeral home the day before he was stabbed (NYLJ, April 14, 2010).
Minor was arrested after he was caught on camera using Locker’s ATM card. He was charged with second-degree murder.
Minor testified that he met Locker and got into Locker’s car, and that Locker then told him to take a knife out of the glove compartment. Minor testified that, following Locker’s instructions, he held the knife against the steering wheel and Locker repeatedly leaned forward into it. Minor then left the car, with Locker still alive.
Prosecutors did not dispute that Locker had asked Minor to kill him. However, they introduced testimony from a medical expert saying that Locker’s wounds were inconsistent with Minor’s story, and that Minor must have stabbed Locker.
Minor introduced his own medical expert, who testified that his story was plausible.
Minor asserted the assisted suicide affirmative defense. The second-degree murder statute says that it is an affirmative defense when “defendant’s conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide.”
Prosecutors did not argue that Minor’s version of events would be murder, and did not object to the jury being given an instruction about the assisted suicide defense.
In explaining assisted suicide to the jury, Berkman went beyond the statutory language, the panel said. She told them that “if the defendant actively caused [the decedent's] death even with [the decedent's] consent, then that’s not assisted suicide because the consent of the victim is not a defense to murder,” according to the First Department decision. Minor objected to that charge.
During deliberations, the jury asked for more explanation of what “active” meant. Minor objected to giving further instruction, but Berkman disagreed, telling the jury that “active” meant “[d]oing something, carrying out an actual process, or carrying out by involvement, energy or action.”
The jury convicted Minor.
On appeal, Minor argued that Berkman’s instructions misstated the law and that the verdict should be thrown out. The First Department agreed, saying that the jury instruction was “confusing and conveyed the wrong standard.”
“Neither the word ‘active,’ nor its antonym ‘passive,’ appears in the statutory language and thus, by giving this charge, the court added an element that is not part of the defense,” Richter wrote.
“Moreover, although sparse, the legislative history of the current statute supports the view that the assisted suicide defense allows for at least some ‘active’ assistance to one who commits suicide,” Richter added.
She noted that an earlier draft of the 1965 amendment to the Penal Law that created the assisted suicide defense said that assisted suicide must be without “force, duress or deception.” The final law dropped the word “force.”
“Although the legislative history is silent as to why the word ‘force’ was removed, it suggests that the Legislature contemplated some active conduct within the scope of the assisted suicide defense,” Richter wrote.
Furthermore, Richter said, Berkman’s definition of “active,” which included simply “doing something,” was so broad that it made the assisted suicide defense meaningless.
“A person obviously cannot provide assistance to one committing suicide without ‘doing something,’” Richter said.
Richter said that the jury instruction could have led the jury to conclude that even Minor’s version of events was murder, a position that the prosecution did not take.
The error required reversing Minor’s conviction and giving him a new trial, Richter said.
“Under the circumstances, the error in the court’s charge, which was objected to, resulted in significant prejudice to defendant because it essentially gutted his defense,” she said.
Lawrence Fleischer of Gotlin & Jaffe, who represents Minor, could not be reached for comment.
The prosecution is represented by Gina Mignola and Hilary Hassler in the Manhattan District Attorney’s office.
A spokeswoman for the D.A.’s office said the office is reviewing the decision.
@|Brendan Pierson can be contacted at firstname.lastname@example.org.