UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: January 16, 1978.
WILLIAM E. WRIGHT, PETITIONER-APPELLEE,
HAROLD J. SMITH, SUPERINTENDENT, ETC., RESPONDENT-APPELLANT
Appeal from a judgment of the Western District of New York, John T. Curtin, Chief Judge, granting a state prisoner's petition for a writ of habeas corpus, and vacating a state judgment convicting him of robbery, on the ground that the trial judge's instructions with respect to his alibi defense denied him due process by shifting the burden of proof on the issue to the defendant. Reversed.
Feinberg, Mansfield and Timbers, Circuit Judges.
MANSFIELD, Circuit Judge:
The sole issue upon this appeal is whether the Western District of New York, John T. Curtin, Chief Judge, properly granted habeas relief to appellee, a state prisoner, on the ground that the trial judge's jury instructions with respect to appellee's alibi defense*fn1 unconstitutionally shifted the burden of proof to him on this issue and thus denied him due process. We hold that the charge did not violate appellee's constitutional rights and accordingly reverse.
On August 3, 1972, following a jury trial in Erie County Court, appellee William E. Wright was convicted of robbery in the first and second degrees in violation of New York Penal Law §§ 160.15 and 160.10. He was sentenced to concurrent, indeterminate terms of 0-15 years on the first degree robbery count, and 0-7 years on the second degree robbery count.*fn2 After exhausting state court remedies with respect to the issue raised here and other issues not relevant to this appeal, Wright, on October 2, 1974, filed a petition for a writ of habeas corpus in the Western District of New York.
At petitioner's state court trial, Ruth Kowles, an employee of the Erie County Department of Social Services, testified that her purse was forcibly taken from her by two black men on the afternoon of November 11, 1971, while she was walking to work. Mrs. Kowles identified petitioner Wright as one of the men who had robbed her, and she further testified that Wright threatened her with a knife during the robbery.*fn3 A co-worker of Mrs. Kowles', Joseph Blantern, testified that he witnessed the robbery from a distance of approximately 30 feet but could not identify either of the assailants.
The defense presented two alibi witnesses at trial, petitioner's wife and sister, who both testified that petitioner was at home with them when the robbery occurred and that, because of an ankle injury sustained a few days before the robbery, he was barely able to walk on the day of the crime. The Wrights lived in an apartment not far from the scene of the robbery and across the street from the Social Services office where Mrs. Kowles worked.
The pertinent excerpts of the trial court's charge to the jury specifically referring to the alibi defense are set out in the margin.*fn4 At the conclusion of these instructions, the court inquired of counsel whether there were any "exceptions or requests." Defense counsel replied that he had no exceptions, but that he did have "some requests." After a colloquy with counsel at the bench,*fn5 the following clarifying instruction was given.
"Counsel has made a request here that I tell you, if you have a - if the alibi witnesses have created reasonable doubt in your mind as to whether or not the defendant committed the crime charged here, you have a duty to acquit. Of course, that is true; if you have a doubt, if you have a doubt as to the guilt of the defendant, you are bound to resolve the doubt in favor of the defendant. I am sure I told you that."
No further request with respect to the subject was made by counsel.
In a thorough opinion, Judge Curtin criticized the charge for not including an unequivocal statement that the government's burden was "to convince the jury beyond a reasonable doubt that the alibi offered by petitioner was not true." Although the charge advised the jury of the state's burden of proving the defendant's guilt beyond a reasonable doubt, Judge Curtin did not consider that language adequate to dispel the suggestion he detected in the portion of the charge expressly dealing with the alibi defense to the effect that petitioner, having asserted an alibi, thereby shouldered the burden of persuading the jury of its truthfulness. From this decision and judgment the state appeals.
The introduction of an alibi defense frequently poses the risk that if the alibi evidence is disbelieved, the defense will backfire, leading the jury to convict because of the failure of the defense rather than because the evidence introduced by the government has satisfied the jury of the defendant's guilt beyond a reasonable doubt. Because of this possibility of confusion on the jury's part, we have, on appeal from federal convictions, held that it is reversible error to refuse a defendant's request to the effect that, even if the alibi witnesses are disbelieved, the burden of proof remains with the government. United States v. Burse, 531 F.2d 1151 (2d Cir. 1976).
"Failure to establish an alibi does not properly constitute evidence of guilt since it is the burden of the government to prove the complicity of the defendant, not the burden of the defendant to establish his innocence. That, however, is a point with which we cannot expect jurors to be familiar." 531 F.2d at 1153.
Other circuits have likewise reversed federal convictions on the ground that the alibi instruction given by the district court inadequately explained the government's burden of proof. See, e.g., United States v. Booz, 451 F.2d 719 (3d Cir. 1971). The safeguard against jury confusion is a careful jury instruction designed to emphasize the fact that the assertion of an alibi does not affect the government's burden of proving guilt beyond a reasonable doubt.*fn6
Regardless of federal or state practice with respect to instructions on the subject of an alibi defense, see People v. Johnson, 37 App. Div. 2d 733, 323 N.Y.S.2d 880 (2d Dept. 1971), the issue upon this review of a decision on a federal habeas petition is not whether the state court's "instruction is undesirable, erroneous, or even 'universally condemned,'" Cupp v. Naughten, 414 U.S. 141, 146, 38 L. Ed. 2d 368, 94 S. Ct. 396 (1970), but whether "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 147. See also United States ex rel. Stanbridge v. Zelker, 514 F.2d 45, 50 (2d Cir. 1975) (state court jury charge is a matter of state law, and alleged errors are not reviewable on federal habeas corpus absent showing that defendant was deprived of a federal constitutional right).
Petitioner's burden in meeting the Cupp v. Naughten standard is particularly heavy for the reason that unlike the situation in Burse, Booz and Johnson, supra, defense counsel neither submitted a proposed alibi charge to the trial court nor objected to the instruction that was given. The Supreme Court recently stated:
"Orderly procedure requires that the respective adversaries' views as to how the jury should be instructed be presented to the trial judge in time to enable him to deliver an accurate charge and to minimize the risk of committing reversible error. It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court." Henderson v. Kibbe, 431 U.S. 145, 154, 52 L. Ed. 2d 203, 97 S. Ct. 1730 (1977). (Footnotes omitted).
Defense counsel at trial merely requested that an alibi charge be given without submitting any suggested text. When asked whether he took exception to the charge that was given, defense counsel unambiguously responded in the negative. Counsel then sought and obtained a clarifying instruction, which essentially tracks the heart of the proposed alibi instruction in the standard federal practice book. See 1 Devitt & Blackmar, Federal Jury Practice and Instructions, supra, n.6.
In support of his habeas petition appellee has cited two portions of the state court's alibi charge that he contends impliedly shifted the burden of proof from the state to him. First, he points to the trial judge's statement, "an alibi defense, if clearly . . . established by unsuspected, believable testimony, is the very best that an innocent man can make," which the New York Appellate Division has held to be reversible error. People v. Johnson, 37 App. Div. 2d 733, 323 N.Y.S.2d 880 (2d Dept. 1971). The state court's rationale is that the phrase "clearly established" suggests that a defendant must prove his alibi, and that the reference to "unsuspected, believable evidence" implies that the alibi must be of a certain persuasive quality to be credible.*fn7
The second alleged defect in the charge involves the following passage:
"If, on the other hand, you find that this was, that he was truly in that apartment, that he wasn't out on the street, that he, of course, if you find that he was in that apartment, and never left that apartment that apartment [sic], that afternoon, around 4:45, then you must find him not guilty."
Petitioner characterizes this portion of the charge as instructing the jury to acquit only if it was persuaded that the alibi was true, and as failing to indicate that the jury could still acquit if it disbelieved the alibi witnesses.
Standing alone, the excerpted portions of the state trial judge's instructions could, as appellee urges and the district court concluded, be construed as shifting to the defendant the burden of proving his alibi defense. Such an implication could obviously have been avoided entirely by adding a specific admonition immediately after each of the quoted passages to the effect that, regardless whether the jury accepted the alibi evidence as credible, the burden remained on the state to establish beyond a reasonable doubt each and every element of the crime and that the jury must acquit if it had a reasonable doubt as to the defendant's guilt after considering the state's evidence and the alibi.
However, defense counsel voiced no exception to these flaws in the charge, which would have alerted the trial judge to the advisability of reemphasizing the state's burden. Counsel limited himself to requesting and obtaining a supplemental clarifying instruction that, if the jury had a reasonable doubt as to the defendant's guilt it had a "duty to acquit" and "to resolve the doubt in favor of the defendant." This apparently satisfied defense counsel and corrected any confusion that might have been created by the court's excerpted prior comments.
The defendant's failure to press for more is readily understandable. The issue was relatively clearcut and simple: whether the state proved beyond a reasonable doubt that the defendant had on November 11, 1971, forcibly taken Ms. Kowles' purse from her while she was out on the street walking to work. Although the trial judge did not refer to the state's burden at the particular points now objected to by appellee, his charge does contain numerous and pervasive references to the state's burden, which are excerpted in the margin.*fn8 Viewing the charge as a whole in the light of the trial record, as we should, Boyd v. United States, 271 U.S. 104, 107, 70 L. Ed. 857, 46 S. Ct. 442 (1926), we are satisfied that, regardless whether certain portions might, standing alone, constitute error as a matter of state law, the flaws fell far short of plain error and did not reach a constitutional level warranting issuance of a writ of habeas corpus.