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 ...