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RIVERA v. COOMBE

February 11, 1982

Edwin RIVERA, Petitioner,
v.
Phillip COOMBE, Jr., Superintendent, Eastern Correctional Facility, and Robert Abrams, Attorney General of the State of New York, Respondents; Pedro ARROYO, Petitioner, v. Everett JONES, Superintendent, Great Meadow Correctional Facility, and Robert Abrams, Attorney General of the State of New York, Respondents



The opinion of the court was delivered by: WARD

The two above-captioned actions were each commenced by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner in 80 Civ. 7447(RJW) (hereinafter referred to as "the Rivera action") is Edwin Rivera, presently in the custody of the Attorney General of the State of New York at Eastern Correctional Facility in Napanoch, New York. Petitioner in 81 Civ. 1280(RJW) (hereinafter referred to as "the Arroyo action") is Pedro Arroyo, presently in the custody of the Attorney General of the State of New York at Great Meadow Correctional Facility in Comstock, New York. Respondents in the Rivera action are Phillip Coombe, Jr., Superintendent of the Eastern Correctional Facility, and Robert Abrams, Attorney General of the State of New York. Respondents in the Arroyo action are Everett Jones, Superintendent of the Great Meadow Correctional Facility, and Robert Abrams, Attorney General of the State of New York. The Court hereinafter refers to all three respondents individually and jointly as "the State." Because the Rivera action and the Arroyo action present very similar factual and legal issues, the Court has determined to deal with both petitions by a single opinion. For the reasons hereinafter stated, both petitions are granted.

BACKGROUND

The procedural histories of the Rivera action and the Arroyo action may be stated in fairly brief fashion. On September 12, 1975, Rivera was convicted, following a jury trial in the Supreme Court of the State of New York, Bronx County, of manslaughter in the first degree, see N.Y.Penal Law § 125.20, and criminal possession of a weapon, see N.Y.Penal Law § 265.01(2). Rivera was sentenced to a prison term on the first-degree manslaughter count of from seven to twenty-one years and was unconditionally discharged on the other count. On October 3, 1977, Rivera's manslaughter conviction was affirmed without opinion by the Supreme Court of the State of New York, Appellate Division, First Department. People v. Rivera, 59 A.D.2d 829, 398 N.Y.S.2d 351 (1st Dep't 1977). The New York Court of Appeals denied Rivera leave to appeal to that court on November 21, 1977. People v. Rivera, 43 N.Y.2d 799, 402 N.Y.S.2d 1037, 373 N.E.2d 299 (1977). Subsequently, on November 28, 1979, the judge who presided at Rivera's state trial denied Rivera's motion, pursuant to N.Y.Crim.Proc. Law § 440.10, to vacate the judgment of conviction for first-degree manslaughter. On February 5, 1980, the Appellate Division denied Rivera leave to appeal the trial judge's denial of this motion. The petition for a writ of habeas corpus that is the subject of today's decision was filed in this Court on December 31, 1980.

 Turning to the Arroyo action, Arroyo was convicted on April 12, 1973, after a jury trial in the Supreme Court of the State of New York, New York County, of attempted murder in the first degree, see former N.Y.Penal Law § 125.30, and four lesser-included counts. Arroyo was sentenced to a prison term on the attempted murder count of from fifteen years to life. He received a sentence of up to seven years in prison on each of the other four counts. These sentences were made concurrent to one another and to the sentence imposed on the attempted murder count. On April 14, 1977, the Supreme Court of the State of New York, Appellate Division, First Department, affirmed Arroyo's conviction for attempted murder, and reversed the conviction on the other four counts on the ground that the counts should have been dismissed upon Arroyo's conviction of the greater-inclusive count of attempted murder. People v. Arroyo, 57 A.D.2d 523, 393 N.Y.S.2d 570 (1st Dep't 1977). The New York Court of Appeals denied Arroyo leave to appeal to that court on May 12, 1977. People v. Arroyo, 42 N.Y.2d 823 at 826, 396 N.Y.S.2d 650, 364 N.E.2d 1344 at 1347 (1977). Subsequently, on May 19, 1980, the judge who presided at Arroyo's state trial denied Arroyo's motion, pursuant to N.Y.Crim.Proc. Law § 440.10, for an order vacating the judgment of conviction for attempted murder. On September 18, 1980, the Appellate Division denied Arroyo leave to appeal the state trial judge's denial of this motion. The petition for a writ of habeas corpus that is the subject of today's decision was filed in this Court on March 15, 1981.

 The petitions filed in the Rivera action and the Arroyo action each challenge the constitutionality of the state trial judge's jury charge on the subject of intent. Specifically, Rivera objects to the judge's instruction that "(a) person is presumed to intend the natural and probable consequences of his act"; Arroyo challenges the judge's instruction that "people are presumed to intend the natural, probable and logical consequence of their acts." The two petitioners argue, on the basis of these essentially identical instructions, that the juries at their trials could well have understood New York law to permit the prosecution to use a constitutionally impermissible method to establish beyond a reasonable doubt the intent necessary to commit the crimes of which they presently stand convicted. Rivera contends that the trial judge's alleged constitutional error requires that he be given a new trial on the first-degree manslaughter count of which he was convicted; Arroyo contends that the trial judge's alleged constitutional error requires that he be given a new trial on the attempted murder count of which he was convicted.

 Analysis of the respective contentions of Rivera and Arroyo requires a fairly detailed recapitulation of their state trials insofar as these trials concerned the issue of intent. The first-degree manslaughter charge against Rivera involved the stabbing death of one Guy Keyes. Keyes died of a knife wound in the back that he apparently received during an altercation on 174th Street in the Bronx. At his trial, Rivera admitted that he, along with a number of other individuals, had participated in an argument with Keyes. He further admitted that he had been among a crowd of people that chased Keyes down 174th Street. However, Rivera denied that he had pursued Keyes with the intent of stabbing him, Transcript at 624, and denied that he had stabbed Keyes, Transcript at 596-97.

 The state trial judge charged the jury on second-degree murder, first-degree manslaughter, and criminal possession of a weapon. In so doing, (1) he told the jury that the prosecution had the burden of proving beyond a reasonable doubt all the elements of each crime with which Rivera was charged, Transcript at 820-21, 828, 830-31, (2) he instructed the jury that an essential element of the crime of second-degree murder is "that the defendant formed the intent to kill the deceased herein," Transcript 821 (emphasis supplied), and (3) he further instructed the jury that an essential element of first-degree manslaughter is "that the defendant had an intent to cause Guy Keyes, Junior, serious physical injury," Transcript at 828 (emphasis supplied). In defining the word "intent," as he used it in the latter two instructions, the state trial judge made the following statement:

 
I shall now define intent for you. A person is presumed to intend the natural and probable consequences of his act. Criminal intent is an intent to do knowingly and wilfully that which is condemned as wrong by the law. A criminal intent may be inferred from all the circumstances of the case. It need not be established by direct proof. To constitute the crime there must not only be the act but also the criminal intent and these must occur, the latter being equally essential with the former. The existence of criminal intent constitutes a question of fact for determination by you and the burden of showing intent, the intent with which a crime has been committed rests upon the prosecution to establish it by evidence beyond a reasonable doubt. So where the law requires that the People must establish a specific or certain intent on the part of one charged with the commission of a crime, the law does not expect or require for obvious reasons that intent must be proved by directed (sic) proof to an absolute certainty or with mathematical precision. Intent, I mean criminal intent, is always an essential element to the commission of the crime such as we have here and it may be proved by direct evidence or it may be proved from circumstances surrounding the transaction or the act itself, or it may be proved by a combination of both. What is intent? Intent is a frame of mind of the perpetrator of the act at the time he commits it. You must probe the mind. You may say to yourself how are we to determine what a man's intentions are. Well members of the jury, we can only determine that by his acts, by his conduct, by what he says and by what he does. You should consider what he allegedly did, what means he allegedly employed, the type of instrument allegedly used, if any, the part of the body allegedly attacked, and all the circumstances. And from these surrounding circumstances you are to determine the intention of the defendant at the time.
 
Under our law every person is presumed to intend the natural and inevitable consequences of his own voluntary acts and unless such acts were done under circumstances which would preclude the existence of such intent, the jury has a right to infer from the results produced, the intention to effect such result. The intent formed, is a secret and silent operation of the mind and its physical manifestations, the accomplishment of the thing determined upon. The individual whose intent is sought to be ascertained may remain silent of (sic) if he speaks, may probably will if he has a crime to hide, speak untruthfully, and thus the mind is compelled from necessity to refer to the act and the physical manifestations of the intent exhibited by the results produced as the safest if not the only proof of the fact to be ascertained. A person acts intentionally with respect to or result to conduct (sic) described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.

 Transcript at 821-24 (emphasis supplied).

 Turning to the Arroyo action, the attempted murder charge against Arroyo concerned a gunshot wound received by one Raymond Bernard, a member of the New York City Police Department. Bernard was wounded while attempting to stop a burglary that was in progress at a music store on Third Avenue in Manhattan. At his trial, Arroyo admitted that he had been in the vicinity of the music store on the day in question and that he had taken a gun from one of the police officers who accosted him on that day. However, he testified that he had no recollection of ever firing that gun. Transcript at 630. Sue Lydia Pratts, a witness to the shooting, testified that Arroyo never had a gun at all and that all of the shooting was done by police officers. Transcript at 597-98.

 The state trial judge charged the jury on attempted murder and four lesser-included counts. In so doing, she told the jury that the prosecution had the burden of proving beyond a reasonable doubt all the elements of any crime with which Arroyo was charged, Transcript at 762, and she instructed the jury that an essential element of the crime of attempted murder is that "the defendant ... (acted) with intent to cause the death of Raymond Bernard," Transcript at 759 (emphasis supplied). In defining the word intent, as she used it in this instruction, the state trial judge made the following statements:

 
What is intent; under our law a person acts intentionally with respect to attempting to cause the death of another person when the alleged perpetrator's conscious objective is to cause such death.... (Of) course, we all recognize that an intention is a subjective matter and it depends on the operation of an individual's mind none the less it is possible to make a finding of intention based on objective actions of the alleged perpetrator; in fact, this is the only method that we can use in determining intention since we cannot get into the mind of the alleged perpetrator. Therefore, in your deliberation, you may use the defendant's objective action as a determining factor in deciding whether or not he acted intentionally.
 
You may also refer to all the other evidence which may indicate intent or not indicate intent. The Penal Law of the State of New York defines intentionally as follows: a person acts intentionally with respect to a result or conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct....
 
....
 
... What is intent, again I will define intent and intentionally to you, the Penal Law of the State of New York that a person acts intentionally with respect to a result or conduct described by a statute defining an offense when his conscious objective is to cause the result or engage in a conduct (sic).
 
....
 
... I have described intent and intentionally for you and defined them under our Penal Law, again, I repeat, a person acts intentionally with respect to a result or the conduct described by the law defining an offense when his conscious objective is to cause a result or engage in the conduct .... The law recognizes that intent is the subjective matter therefore, it allows you to base your finding of intention on any objective ...

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