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November 9, 1981

Carl McSHALL, Petitioner,
Robert J. HENDERSON, Superintendent, Auburn Correctional Facility, Respondent

The opinion of the court was delivered by: BRIEANT


Carl McShall, a state prisoner, filed his petition on March 27, 1981 for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. On May 18, 1981, the District Attorney of New York County filed an answer. Petitioner filed his "Traverse to Answer" on September 3, 1981.

 Petitioner has exhausted his state remedies as a result of his direct appeals in the New York State courts, as required by 28 U.S.C. § 2254(b). The petitioner's conviction was affirmed without opinion by the Appellate Division, First Department on September 25, 1980. Leave to appeal to the New York State Court of Appeals was denied on November 10, 1980. In those appeals, petitioner raised the same issues which he raises in this petition. *fn1"

 This Court has been supplied with the brief of the petitioner on appeal before the Appellate Division, and will treat that brief as setting forth petitioner's arguments in this case. The District Attorney of New York County has filed a brief, as well as a copy of the brief of the People before the Appellate Division.

 Petitioner's conviction arises out of the fatal shooting of Richard Spivey after 11:00 P.M. on January 18, 1978, by one "Tony," an otherwise unidentified individual who was not apprehended. After a jury trial, petitioner was convicted of second degree murder as the accessory to the murder of Spivey by "Tony." On March 14, 1979, petitioner was sentenced to an indeterminate prison term of from fifteen years to life which he is currently serving.

 Petitioner raises three arguments in support of his application for a writ of habeas corpus. First, petitioner contends that the prosecution failed to prove that he was guilty beyond a reasonable doubt, because of the failure of the prosecutor to prove that he shared the principal's intent to cause the victim's death. Second, petitioner contends that he was denied his statutory right to have a question posed by the jury, relating to what inferences could be drawn from petitioner's silence after the principal threatened to kill the victim, answered by the trial judge. Third, petitioner contends that he was denied a fair trial when the court, contrary to New York C.P.L. § 270.35, refused to discharge a juror who was claiming "illness" after jury deliberations had begun, and grant a mistrial.

 As to petitioner's first claim, a federal court will grant a writ of habeas corpus to a state prisoner challenging his conviction on the ground of insufficient evidence only if the court, after viewing the evidence adduced at trial in the light most favorable to the prosecution, concludes that no rational trier of fact could have found the petitioner guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). Applying this standard to the instant case, this Court holds that there was sufficient evidence at trial to permit a factfinder to conclude that the petitioner had the requisite intent to commit murder which is sufficient under state law to support the conviction.

 The facts stated below were adduced at trial, mostly as a result of the testimony of the only eyewitness to the murder, Gresalee Coleman, Spivey's common-law wife. Some time after 11:00 P.M. on January 18, 1978, petitioner, accompanied by a second man known only as "Tony," who was never apprehended, went to the Manhattan apartment of Richard Spivey. Ms. Coleman had been acquainted with petitioner for five years. She referred to him by his unusual nickname "Peepsight." She was aware that her consort, the victim of the crime, owed petitioner $ 700. *fn2" Ms. Coleman agreed to let petitioner enter the apartment, but she said that "Tony," whom she did not know, could not enter. Petitioner replied that "Tony" was "all right" and was petitioner's friend. Ms. Coleman then relented and allowed both to enter the apartment.

 Meanwhile Spivey had hidden himself in a closet. Upon entering the apartment petitioner and "Tony" each drew guns. Petitioner asked where Spivey was. Ms. Coleman replied, untruthfully, that Spivey was not at home. Petitioner then searched the closets and discovered Spivey. Petitioner ordered Spivey to get dressed and asked him where petitioner's money was. Spivey said that he didn't have the money because he had just been released from prison but he promised to get it. Ms. Coleman protested on her husband's behalf. Petitioner ordered "Tony" to "shut that bitch up." "Tony" then struck Ms. Coleman with the butt of his gun.

 Ms. Coleman's testimony as to what occurred next was conflicting. On her first day of testimony, she said that "Tony" threatened to kill both her and her husband and then, as petitioner was turning around, "Tony" shot Spivey. On the second day of her testimony Ms. Coleman said that after "Tony" had threatened to kill Spivey, petitioner nodded his head twice. *fn3" Shortly thereafter petitioner and "Tony" left the apartment. Spivey died of his wounds.

 Based on these facts, a rational factfinder could infer that petitioner and Tony went to Spivey's apartment with the intent of collecting the debt by threats of violence or by duress, or to kill Spivey. A factfinder could also infer that when they learned that Spivey could not or would not pay the money, they decided together that "Tony" should kill him. A reasonable factfinder could find that petitioner, by nodding his head, evidenced the requisite specific criminal intent to counsel, command, induce or procure "Tony" to kill Spivey.

 Petitioner is not entitled to a writ of habeas corpus merely because his conviction is based upon circumstantial evidence. Nor does the possible conflict in the testimony of the sole eye witness require that the writ be granted. As long as any competent evidence went to the factfinders from which they could infer guilt beyond a reasonable doubt, the conviction will stand. See Jackson v. Virginia, supra; United States v. Bombard, 423 F. Supp. 1245 (S.D.N.Y.1976). Accordingly, petitioner has not satisfied the Jackson standard.

 Petitioner's second contention is that he was denied his statutory right to have a question of law posed by the jury during deliberations answered by the trial judge. According to New York C.P.L. § 310.30, a jury may request instruction with respect to the law or any other matter "pertinent to the jury's consideration of the case." In response, the court "must give such requested information or instruction as the court deems proper." Determination of the appropriate answer rests within the discretion of the trial court, so long as the answer given does not deprive a defendant of a constitutional right.

 In charging the jury, the trial judge instructed the jury at length in traditional form that for it to find petitioner guilty as an accessory, it must determine beyond a reasonable doubt that he intentionally participated in the murder and that he had the specific criminal intent to murder the deceased. The judge emphasized that petitioner's mere presence when the murder occurred would not, in itself, create criminal liability. After the charge was given, defense counsel twice stated that he found the charge to be "proper," and it was. After some deliberations, the jury requested a clarification of that portion of the charge dealing with possible guilt as an accessory. Defense counsel objected to any elaboration and insisted that the judge merely reread the relevant portion of the initial charge. The judge refused simply to reread the initial ...

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