Appeal from an order of the United States District Court for the Eastern District of New York, Thomas C. Platt, J., granting appellee's petition for a writ of habeas corpus on the ground that the state trial court's charge to the jury impermissibly shifted the burden of proof on the issue of intent to the defendant. Reversed.
Before Kaufman and Pierce, Circuit Judges and Haight, District Judge.*fn*
Petitioner Al Mancuso and co-defendants, Dominick Vaccarino and Ronnie Spagna, were indicted for the killing of James Coppola during the course of a burglary of the victim's home on June 28, 1975.*fn1 Mancuso and Spagna were convicted of felony murder (N.Y.Penal Law § 125.25(3)) on May 11, 1978, after a trial before Justice Joseph R. Corso and a jury in the State Supreme Court for the County of Kings. Petitioner was sentenced to a prison term of 25 years to life. Both Mancuso and Spagna appealed their convictions to the Appellate Division, Second Department, which unanimously affirmed on September 17, 1979. 71 A.D.2d 994, 420 N.Y.S.2d 282. On December 4, 1979, leave to appeal to the New York Court of Appeals was denied.
On May 5, 1980, petitioner filed the instant application for a writ of habeas corpus. He alleged that the trial court judge committed error of constitutional dimension in charging the jury, inter alia, that
"Everyone is presumed to intend the natural consequences of his act and unless the act is done under circumstances or conditions that might preclude the existence of such intent, you, the jury, have to find, have a right to find the requisite intent from the proven actions of an individual."*fn2
On July 23, 1981, Judge Platt adopted a Report and Recommendation of U.S. Magistrate John L. Caden which found that the above language impermissibly shifted the burden of proof to the defendant, and ordered the State to either retry the petitioner within ninety days or release him. The State of New York appeals from that order.
At the appellee's trial in the state court the prosecution relied mainly upon the testimony of alleged co-defendant Dominick Vaccarino, Dominick Vaccarino's common-law wife, Susan Heller, and his brother, Carl Vaccarino.
Dominick Vaccarino testified for the prosecution in return for a promise by the District Attorney that he would recommend to the court acceptance of a plea of guilty to manslaughter in the second degree and imposition of a sentence of five years probation in satisfaction of the count which charged felony murder.
At the time of the trial, Carl Vaccarino was incarcerated in New Jersey after a conviction for robbery in that state. He testified herein that the District Attorney had promised to inform the New Jersey authorities of his cooperation, which he hoped would help him obtain an early release on parole.
Several other prosecution witnesses provided testimony as to background information and details surrounding the burglary and killing which took place on June 28, 1975.
At the trial, Dominick Vaccarino testified that he first met one Frankie Tortorella through his brother, Carl, in mid-June of 1975; that about one week later Tortorella approached Dominick and Susan Heller about the possibility of burglarizing the home of Susan's uncle, James Coppola; and that neither Dominick nor Susan agreed to participate.*fn3 He testified further than on June 28, 1975, he saw Tortorella, who told him that he would be sending two men to burglarize Coppola's house. According to Dominick, defendant Mancuso and his co-defendant, Spagna, came to his home later that evening and stated that Frankie had sent them, and that they had just driven past Coppola's house, saw that it was all dark, and thought that it would be a good time to burglarize the house. Dominick Vaccarino agreed to become involved, and left his home with Mancuso and Spagna in a green Gran Torino automobile. Dominick testified to the events which then transpired. He told the jury that he, Mancuso, and Spagna drove to Coppola's house and parked the car at the corner of the block. Mancuso and Spagna left the car after telling Vaccarino to wait in the driver's seat. However, Vaccarino left the car, walked down the block, and hid in the bushes directly across the street from Coppola's house. From there he observed Spagna go to the front door of the house and ring the doorbell while Mancuso hid in the bushes, wearing a ski mask. He testified that Coppola came to the door; Spagna spoke to him, and then he saw the two of them engage in a struggle at the door. Meanwhile, Mancuso ran past them and into the house. In the course of the struggle between Spagna and Coppola, the glass in the storm door broke and Spagna pulled out a pistol and fired one shot into the wall of the house. This bullet apparently did not hit Coppola. Spagna then turned and ran back to the car. At that point, Mancuso, still inside the house, fired at Coppola several times while running toward the door to leave, thereby apparently killing Coppola. When Mancuso reached the car, he and Spagna drove away. Vaccarino also fled and hitchhiked home. He testified that after he arrived at home Tortorella came to see him and they went to a bar in Queens where he saw Mancuso who told Dominick that if he told anyone what had happened he, Susan, and the baby "would be next."
Susan Heller and Carl Vaccarino corroborated details of Dominick Vaccarino's testimony.
Neither Mancuso nor Spagna testified at trial. Spagna presented an alibi defense. Mancuso sought to discredit the prosecution's witnesses, as to their motivation to testify, and with respect to the accuracy of various details of their testimony. Mancuso also presented the testimony of his close friend Frankie Tortorella, who denied that he had seen Vaccarino on June 28, 1975, or that he had been involved in any ...