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SIMMONS v. DALSHEIM

June 25, 1982

Michael SIMMONS, Petitioner,
v.
Stephen DALSHEIM, Superintendent, Downstate Correctional Facility, Fishkill, New York, and Robert Abrams, Attorney General of the State of New York, Respondents



The opinion of the court was delivered by: WARD

Pro se petitioner Michael Simmons seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Simmons is presently in the custody of the State of New York at the Downstate Correctional Facility in Fishkill, New York. Respondents (hereinafter referred to jointly as "the State") are Stephen Dalsheim, Superintendent of the Downstate Correctional Facility, and Robert Abrams, Attorney General of the State of New York. For the reasons that follow, the petition is granted.

BACKGROUND

 On March 9, 1976, Simmons was convicted, following a jury trial in the Supreme Court of the State of New York, Bronx County, of sodomy in the first degree, see N.Y. Penal Law § 130.50, robbery in the first degree, see N.Y. Penal Law § 160.15, and criminal possession of a weapon, see N.Y. Penal Law § 265.05. Simmons was sentenced to concurrent prison terms on the first-degree sodomy count and the first-degree robbery count of from seven to twenty-one years. He received a one-year sentence on the criminal possession of a weapon count, which sentence was made concurrent to the other two sentences.

 On July 18, 1978, petitioner's conviction on these three counts was affirmed without opinion by the Supreme Court of the State of New York, Appellate Division, First Department. People v. Simmons, 64 A.D.2d 874, 407 N.Y.S.2d 770 (1st Dep't 1978). The New York Court of Appeals denied Simmons leave to appeal to that court on October 13, 1978. People v. Simmons, 45 N.Y.2d 844, 410 N.Y.S.2d 1031, 382 N.E.2d 773 (1978). On March 6, 1980, Simmons filed a petition for a writ of habeas corpus in this Court. This petition was dismissed, by an order dated October 17, 1980, on the ground that Simmons had failed to exhaust his state remedies with respect to the federal constitutional claims raised in his petition. Simmons v. Scully, No. 80 Civ. 1334(LWP) (S.D.N.Y. Oct. 17, 1980) (Pierce, J.). Simmons then returned to state court and applied for a writ of habeas corpus. His application was denied by the Appellate Division, without opinion, in an order dated April 30, 1981. People ex rel. Simmons v. Dalsheim, No. 522 (2nd Dep't Apr. 30, 1981). On June 9, 1981, the New York Court of Appeals denied Simmons leave to appeal the Appellate Division's denial of his application for a writ of habeas corpus. People ex rel. Simmons v. Dalsheim, 53 N.Y.2d 608, 442 N.Y.S.2d 1026, 425 N.E.2d 900 (1981).

 Simmons thereupon returned to this Court, filing the federal habeas corpus petition that is the subject of today's opinion on July 7, 1981. *fn1" He alleges in the present petition that his conviction must be vacated, and a new trial ordered, because (1) the state trial judge's instruction to the jury on Simmons's alibi defense unconstitutionally relieved the prosecution of its burden of proving beyond a reasonable doubt that Simmons was the perpetrator of the crimes charged in the indictment, (2) the evidence presented by the prosecution was constitutionally insufficient to establish beyond a reasonable doubt petitioner's guilt of the crimes charged in the indictment, and (3) the state trial judge committed error of federal constitutional dimension in denying a defense motion to suppress both the prospective in-court identification of Simmons by the victim of the crimes charged in the indictment and testimony as to the victim's previous out-of-court identification of Simmons. While the Court finds that the second and third grounds relied upon by Simmons's petition are without merit, *fn2" it concludes, for the reasons stated in the discussion that follows, that his first claim entitles him to the relief that he seeks.

 DISCUSSION

 Analysis of petitioner's first contention requires a fairly detailed recapitulation of his state trial insofar as it concerned his alibi defense. The victim of the crimes of which Simmons stands convicted was one Milagros Rivera. At Simmons's trial, Rivera testified that, between 7 p.m. and 8 p.m. on December 26, 1973, she was robbed and sodomized, at knifepoint, in an apartment building on University Avenue in the Bronx. She identified Simmons as the man who committed these acts. Six alibi witnesses testified for the defense. All of these witnesses testified that they saw Simmons, during the time period when Rivera testified that the crimes were committed, at or in the vicinity of his home, which was located at 336 East 166th Street in the Bronx.

 The state trial judge, in instructing the jury on the crimes charged in the indictment, told the jury that the prosecution had the burden of proving beyond a reasonable doubt all the elements of each crime with which Simmons was charged. Transcript at 705-08, 715, 717-18, 721, 723. Further, the judge instructed the jury, with respect to each crime charged, that one of the elements that had to be proven beyond a reasonable doubt was that "the Defendant " committed the crime in question. Transcript at 715, 718, 721, 723 (emphasis supplied).

 Elsewhere in his charge, the state trial judge instructed the jury at some length on petitioner's alibi defense. The trial judge began by defining the word "alibi" for the jury:

 
In this case there was evidence offerred (sic) by the Defendant that he was not at the scene at the time of the crimes and that, therefore, he did not participate or take part in any unlawful enterprise or crimes that may have been committed there. That's what we call in law an alibi. That means that this Defendant claims he was at some other place other than where the crime was committed at the time charged.

 Transcript at 703. He then proceeded to instruct the jury on how, in conducting its deliberations, it should evaluate the alibi evidence offered by Simmons:

 
Evidence with relation to alibi should be most carefully considered. If the Defendant's guilt is not established beyond a reasonable doubt by reason of the truth of an alibi, you must acquit him. You must be satisfied as to the truth of the alibi. In other words, if it is sufficient to raise a reasonable doubt by evidence concerning the Defendant's whereabouts at the particular times when the crimes wer (sic) committed, if the jury believes that evidence, that alibi itself entitles him to a verdict of not guilty. It is for you, the jury, to determine whether or not the alibi should be believed.

 Transcript at 703-04.

 After the judge completed his charge, defense counsel specifically excepted to the trial judge's alibi instruction, objecting in particular to the judge's statement that the jury "must be satisfied as to the truth of the alibi." Transcript at 726. Defense counsel requested that the judge instruct the jury that "(if) proof as to an alibi, when taken into consideration with all of the other evidence, raises a reasonable doubt as to the Defendant's guilt, he is entitled to an acquittal." Transcript at 726. The trial judge, commenting that he thought his own alibi instruction was one "that the Appellate Division has ...


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