Appeal from an order of the United States District Court for the Southern District of New York, Thomas A. Griesa, Judge, granting appellee's petition for a writ of habeas corpus on the ground that the trial court's charge to the jury on the issue of intent contained an instruction that relieved the prosecution of the burden of proving intent to kill in violation of Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979). Reversed.
Before Friendly, Kaufman and Oakes, Circuit Judges.
The State of New York appeals from a judgment of the United States District Court for the Southern District of New York, Thomas A. Griesa, Judge, granting a petition for a writ of habeas corpus by William John Nelson. Nelson was convicted of murder in the second degree, N.Y. Penal Law § 125.25, in the New York State Supreme Court on November 3, 1976, before Justice Burton Roberts and a jury. He was sentenced to an indeterminate prison term of fifteen years to life.*fn1 For reasons not appearing in the record, Nelson's appeal to the Appellate Division, First Department, was not decided until October 16, 1979, when that court affirmed without opinion, 72 A.D.2d 671, 421 N.Y.S.2d 956. On April 4, 1980, Judge Jones of the New York Court of Appeals denied leave to appeal. 49 N.Y.2d 1005, 429 N.Y.S.2d 1035, 406 N.E.2d 1089.
One of Nelson's claims in the Appellate Division was that an instruction given by the trial judge containing language concerning a person being presumed to intend the natural and probable consequences of his acts operated to deprive Nelson of his constitutional rights in violation of the Supreme Court's decision, which had come down after the trial, in Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). On this basis and others, Nelson filed a petition for habeas corpus in the District Court for the Southern District of New York. Dismissing all the other grounds asserted by Nelson, Judge Griesa, although noting that the state trial judge had included in his charge "a lengthy discussion of intent", granted the writ because the charge had included the following:
Also, there is a principal (sic) of law upon which you may wish to rely in determining a person's intent, and that is, a person is presumed to intend the natural and probable consequences of his acts. A person cannot, for example, throw someone off the roof of an apartment building and then say he was merely conducting an experiment in aerial dynamics.
Without undertaking an analysis of the rest of the charge, as required by Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S. Ct. 396, 400-01, 38 L. Ed. 2d 368 (1973), the judge concluded:
Thus the jury was permitted to substitute a presumption of the kind described for its own finding, based on proof beyond a reasonable doubt, that the necessary intent existed for a second degree murder conviction-i.e., a specific intent to cause the death of another person.
Subsequently the judge denied a motion by the District Attorney for New York County for reconsideration on the basis that procedural grounds prohibited Nelson's being heard in federal habeas with respect to the instruction which had been held to violate his constitutional rights. The State has appealed. We reverse.
The facts leading to Nelson's conviction were as follows:
On the night of July 31, 1975, a group of some 20 people gathered as was customary on the sidewalk near the front of the Pennington Hotel at 316 West 95th Street in Manhattan and passed the time talking, drinking*fn2 and listening to music. Dennis Bryant, a resident of the hotel, and a friend named "Teddy" fell into a shoving match over possession of a chair in which Bryant had been sitting. That dispute soon ended and Bryant, Teddy and several others made a trip to a nearby liquor store and brought some wine back. Nelson, also a resident of the hotel, joined the crowd only after this. He spoke to Bryant about the latter's quarrel with Teddy, but Bryant told him that the fight was over and should be forgotten. However, Nelson got into an argument about the fight with "Frenchy", a hotel employee, which became loud. Around 11:30 P.M. Alma Cartar and Douglas arrived next door to the hotel and sat down to drink some beer. Douglas, who was acquainted with Nelson, stepped between Nelson and Frenchy, and asked them to "be cool" and not to argue "right in front of the building."
Nelson's response was to tell Douglas "it's none of your fucking business". While trying to keep Nelson and Frenchy apart, Douglas touched Nelson, who responded "I'm tired you fuckin' niggers fuckin' with me"*fn3 and "If you don't get your ass off me I am going to bust a cap in your ass." Douglas answered, "Well, man, if you're going to do that, you go ahead and do that."
Nelson responded by drawing a revolver from his waist. Douglas was close enough to knock aside Nelson's arm so that Nelson's first shot struck the ground. In an effort to protect himself, Douglas took a step backward, whereupon Nelson leveled his revolver at Douglas' chest, and fired twice more. Douglas fell to the ground, unconscious and gasping for breath with two bullet wounds in his chest. He died shortly thereafter.
The trial judge submitted the case to the jury on both a second degree murder charge, which requires an intent to kill, and a first degree manslaughter charge, for which the requisite intent is to cause serious physical injury, N.Y.Penal Laws §§ 125.25 and 125.20. His charge spreads over 62 typewritten pages. He fully explained that the People had the burden of proving Nelson's guilt beyond a reasonable doubt. "It never shifts at any time to the defendant at all in any aspect" of the case. "The defendant is never required, no defendant is ever required to disprove anything or to prove anything," since he "comes into this courtroom shielded by one of the oldest presumptions which we know in our law, the presumption of innocence...." This presumption "follows the defendant to the jury room. It is with the defendant until the jury is satisfied beyond a reasonable doubt to the contrary, until the jury excludes every other reasonable hypothesis but that of guilt, and until actually a jury renders a verdict of guilty into court." It would be hard to think of an instruction which expounded more fully the presumption of innocence and the right of a criminal defendant to have the state compelled to establish every element of the crime beyond a reasonable doubt.
Some pages later the judge turned to the charge of murder in the second degree. After reading the relevant portion of the indictment, he explained the two elements of the crime, causing the death of a person and having the intent to do so. Taking up the second element he explained that "before a person can be convicted of the crime of murder in the second degree you must be convinced beyond a reasonable doubt that he specifically intended to cause the death of Robert Lee Douglas, as opposed to the intent merely to injure him." He added that "Under the definition contained in the Penal Law, a person acts intentionally with respect to a result when his conscious objective is to cause that result and when his act or acts result from that conscious intent." After dwelling on the difficulty in determining intent, which is "the secret, silent operation of someone's mind," he said that this "can usually be proven only by the facts and circumstances leading up to and surrounding the acts constituting the crime. You have the right, therefore, to determine a person's intent inferentially from what he did; from what he allegedly said, and from all the evidence and testimony you have concerning the facts and circumstances constituting this case." (Emphasis added). The judge explained that these facts and circumstances included motive, threats made by the defendant to the victim, the number of shots fired, the location of the wounds on the victim's body, the distance from which the gun was fired, the testimony of the alleged witnesses to the shooting, and the physical condition of the defendant. Then followed the passage which we have quoted above.
The judge then went on to the subject of intoxication,*fn4 and said that this as such was not a defense to a criminal charge, but "you may consider what evidence if any that would show that this defendant was so under the influence of an intoxicant that he was unable to form a specific mental intent to kill Robert Lee Douglas. In this respect, you should consider the testimony concerning the defendant's alleged acts, his conduct, and his words before, during and after he allegedly shot Robert Lee Douglas." The judge also stated, "you the jury may, if you find from the testimony that (a) motive existed, consider it along with all the other factors in determining whether or not the defendant intended to kill Mr. Douglas beyond a reasonable doubt." He instructed that the jury was not to consider Nelson's flight "in determining his intent when and if he shot the victim, Robert Lee Douglas." He told the jury that they need not find that the intent to kill existed for any specific period before the firing of the gun, that if "the intent existed for a fraction of a second before the shots were fired, it would suffice. But you must be convinced beyond a reasonable doubt that the intent to kill existed before you can convict a person of the crime of murder. If after considering all of the evidence you find that the People have established the defendant's intent to cause the death of Robert Lee Douglas beyond a reasonable doubt, you must go on to consider the second element of the crime of murder in the second degree. If you find that the People have not sustained their burden with respect to the element of intent, then you must find the defendant not guilty of the crime of murder in the second degree."
The State's contention that Nelson is not procedurally entitled to invoke federal habeas because of the quoted instructions is a substantial one. Before the court's charge to the jury Nelson submitted thirty-one requests to charge, including several relating to the issue of intent. His request No. 20 was:
Every sane person is presumed to intend the natural and probable consequences of his acts. However, a specific intent to kill is required as an element of the crime of Murder in the Second Degree, and no inference of such intent may be drawn from the mere proof of the act of shooting the deceased.
The judge denied these requests except to the extent they would be "charged in the Court's own language." After delivery of the charge, defendant's counsel took no objection to the first of the sentences quoted above, namely, that "there is a principal (sic) of law upon which you may wish to rely in determining a person's intent, and that is, a person is presumed to intend the natural and probable consequences of his acts", but objected unsuccessfully to the illustration that followed. When Nelson raised the later decided Sandstrom case in his brief in the Appellate Division, the State, in addition to answering on the merits, made the point that he could not be heard to rely on Sandstrom since he not only had not excepted to the presumption charged as Sandstrom had done, but requested it. The case thus falls, the State argues, within Wainwright v. Sykes, 433 U.S. 72, 97 ...