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March 17, 1981

UNITED STATES of America ex rel. John TSIRIZOTAKIS, a/k/a John Alaska, Petitioner,
Eugene LEFEVRE, Superintendent, Clinton Correctional Facility, John J. Santucci, District Attorney, Queens County; Robert Abrams, Attorney General of the State of New York, Respondents

The opinion of the court was delivered by: WEINSTEIN

Petitioner was convicted after a jury trial on June 20, 1974 of murder in the second degree. He was sentenced to an indeterminate term of not less than twenty years nor more than his natural life. The Appellate Division affirmed and leave to appeal to the Court of Appeals was denied.

He maintains that the trial judge's charges on intent and justification impermissibly shifted the burden of proof to the defendant. Since justification and intent were the only issues contested at trial, petitioner alleges that his right to a fair trial under the due process clause of the Fourteenth Amendment was violated.


 The testimony revealed that the petitioner had been in a car with five others, including the deceased, at the time of the shooting. Three of the passengers testified for the prosecution at the trial. One witness testified that while he did not see the shooting, he heard an angry discourse before the killing and saw the gun in petitioner's hands afterwards. This witness stated he heard petitioner say "Forget about what you saw." Transcript at 105. The two other witnesses who were in the car testified that they heard the petitioner say "I killed him before he killed me." Transcript at 191-192. The third witness testified that he also heard the petitioner state "You know why I did it? Because he kidnapped Vogiatzis' (the driver's) little girl and he wanted money for that." Transcript at 255.

 According to still another witness, petitioner later said, "Yes, I killed him because he killed my brother in Greece." Transcript at 462-467. Additional corroborative evidence offered by the prosecution consisted of the testimony of an acquaintance of the petitioner and the deceased. This witness stated that the petitioner admitted killing the deceased because he did not want them to be friends. Transcript at 524.

 The defense consisted of testimony by the petitioner in which he stated that his actions were justified because he feared for his own life and the lives of others in the car. Transcript at 568. He denied making statements in which he admitted killing the deceased. Transcript at 586-587. Both sides offered conflicting evidence as to whether the abrasions on the body of the deceased were caused by fingernails indicating a struggle, Transcript at 617, 620, or by the deceased being pulled across a rough surface after he was dead. Transcript at 27, 31.


 When a trial judge's charge may be interpreted as creating a mandatory presumption that a person intends what he actually does there is an unconstitutional shifting of the burden of proof when intent is an element of the crime charged. Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), Getch v. Hammock, No. CV-80-3633 (E.D.N.Y. filed March 3, 1981). The charge in Sandstrom, "The law presumes that a person intends the ordinary consequences of his voluntary acts," is similar to a portion of the intent charge in petitioner's trial, although the intent charge in question was prefaced by this general statement:

All that the People are required to prove beyond a reasonable doubt is that the defendant formed an intent to kill a human being and, pursuant to that intent, unlawfully caused the death of that person.

 Transcript at 734.

 The complete intent charge stated:

When I mention the word "intent' throughout my charge when appropriate, I mean criminal intent. The law defines the term intentionally as follows, and again, I quote: "A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.' That's the end of the quote.
I again bring to your mind that intent to kill is a necessary element of the crime of murder under this section of the law. You will understand that the intent with which a person commits an act or a crime is seldom, if ever, put into words by that person before the commission of the act.
Crimes are ordinarily secret. A person does not advertise or say beforehand what he intends to do, and so the law says that a person is presumed to intend what he actually does. So, I charge you that intent is a secret, silent operation of one's mind and the mental purpose to do a particular act or to achieve a definite result. From the very nature of things, it may be difficult to ascertain what goes on in a person's mind except by what he says or what he does. We cannot look into a person's mind. Intent is a mental operation, as a rule, known only to the person himself, and the only possible way for human judgment to ascertain or determine the mental operation on the question of intent is by the declaration or acts of the defendant and the reasonable, rational and the fair inferences from these declarations or acts of the defendant and the reasonable rational and the fair inferences from these declarations or acts. So that a person's intent, as a rule, can be proved only by what he says or what he does and the circumstances surrounding the act ...

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