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SIMMONS v. DALSHEIM

UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK


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 approved," refused defense counsel's request to charge and overruled the objection. Transcript at 727. *fn3"

 As noted, Simmons contends, by his instant petition, that his federal constitutional right to a fair trial, which is secured against state infringement by the due process clause of the fourteenth amendment, was violated by the state trial judge's alibi instruction. Simmons argues that this alleged constitutional error requires this Court to vacate the state court's judgment of conviction for first-degree sodomy, first-degree robbery, and criminal possession of a weapon. The State, in opposing Simmons's petition, does not argue that Simmons has either (1) failed to exhaust state remedies with respect to this constitutional claim, see 28 U.S.C. § 2254(b), *fn4" or (2) forfeited his right to present this federal constitutional claim for federal habeas corpus review, see Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). *fn5" Rather, the State confines its opposition to arguing (1) that the state trial judge's alibi instruction did not give rise to error of federal constitutional dimension and (2) that, even if error of constitutional magnitude did occur, the error was harmless in the context of this case and hence cannot form the basis for this Court to grant a petition for a writ of habeas corpus. The Court deals with these two arguments in turn.

 I

 In order to determine whether, by virtue of the state trial judge's alibi instruction, error of federal constitutional dimension occurred at petitioner's trial, the Court must make two distinct inquiries. First, it must consider what burden of persuasion, if any, state law may constitutionally impose on a criminal defendant with respect to the defendant's alibi defense. Second, the Court must determine, upon a consideration of the state trial judge's charge as a whole, whether the jury reasonably could have understood the charge in a fashion inconsistent with these constitutional limits against requiring a criminal defendant to carry a burden of persuasion with respect to his or her alibi defense.

 A

 It is, of course, commonplace under state penal codes that some "affirmative defenses" to criminal liability may only successfully be invoked by a state criminal defendant if he or she carries a particular "burden of persuasion" with respect to the facts necessary to make out the defense. See, e.g., N.Y. Penal Law § 25.00.2. The federal constitutional limitations on the allocation of such burdens of persuasion to state criminal defendants derive from the rule, first enunciated in In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1072, 25 L. Ed. 2d 368 (1970), that a state criminal defendant may not, consistent with the due process clause of the fourteenth amendment, be convicted of a crime except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime. Under this principle, "affirmative defenses" that bring into question or seek to negate an element of the crime charged must, once raised by a state criminal defendant, be disproven by the prosecution beyond a reasonable doubt; that is, a state criminal defendant's constitutional rights are violated if state law requires the defendant to meet any burden of persuasion in order to prevail on such a defense. Patterson v. New York, 432 U.S. 197, 202-05 & n.9, 97 S. Ct. 2319, 2322-2324 n.9, 53 L. Ed. 2d 281 (1977); United States v. Read, 658 F.2d 1225, 1232 (7th Cir. 1981); Holloway v. McElroy, 632 F.2d 605, 624-25 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981); see Mullaney v. Wilbur, 421 U.S. 684, 696-701, 95 S. Ct. 1881, 1888-1891, 44 L. Ed. 2d 508 (opinion of the Court), 705-06, 95 S. Ct. at 1892-1893 (Rehnquist, J., concurring) (1975).

 The defense of "alibi" is plainly an affirmative defense that seeks to negate an element of the crime charged, to wit, the requirement that the defendant must have committed the acts constituting the crime. Rogers v. Redman, 457 F. Supp. 929, 932 (D.Del.1978). Indeed, it has accurately been observed on this basis that all the elements of the crime are called into question, at least indirectly, by an alibi defense. Adkins v. Bordenkircher, 517 F. Supp. 390, 399 (S.D.W.Va.1981), aff'd, 674 F.2d 279 (4th Cir. 1982), cert. requested, 50 U.S.L.W. 3949 (May 24, 1982). Thus, in accord with the previously stated principles, it has consistently been held that a state may not, consistent with the due process clause of the fourteenth amendment, impose on a criminal defendant any burden of persuasion with respect to the defense of alibi. Adkins v. Bordenkircher, 674 F.2d 279, 282 (4th Cir. 1982), cert. requested, 50 U.S.L.W. 3949 (May 24, 1982); Smith v. Smith, 454 F.2d 572, 577-79 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99, 34 L. Ed. 2d 141 (1972); United States v. Booz, 451 F.2d 719, 722-24 (3d Cir. 1971), cert. denied, 414 U.S. 820, 94 S. Ct. 45, 38 L. Ed. 2d 52 (1973); Stump v. Bennett, 398 F.2d 111, 116 (8th Cir.) (en banc), cert. denied, 393 U.S. 1001, 89 S. Ct. 483, 21 L. Ed. 2d 466 (1968); Fulton v. Warden, Maryland Penitentiary, 517 F. Supp. 485, 488 (D.Md.1981); Johnson v. Spalding, 510 F. Supp. 164, 167 (E.D.Wash.1981), aff'd, 669 F.2d 589 (9th Cir. 1982).

 B

 Having set forth the federal constitutional limitations against requiring a state criminal defendant to meet a burden of persuasion in order to prevail on an alibi defense, the Court now proceeds to the second level of its constitutional analysis by inquiring whether the jury charge given at petitioner's trial exceeded these limitations. The standard that this Court must apply in evaluating the constitutional sufficiency of the jury charge given at petitioner's trial is whether, considering the judge's charge as a whole, a reasonable jury could have interpreted the charge in a fashion inconsistent with the Constitution. Sandstrom v. Montana, 442 U.S. 510, 514, 99 S. Ct. 2450, 2454, 61 L. Ed. 2d 39 (1979). *fn6" A charge susceptible of such an interpretation by a reasonable jury so infects the trial of which it is a part that a conviction rendered subsequent to such a charge cannot withstand due process attack, see Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 400, 38 L. Ed. 2d 368 (1973), even if the charge was also capable of being understood by a reasonable jury in a manner that comports with the Constitution. See Leary v. United States, 395 U.S. 6, 31-32, 89 S. Ct. 1532, 1545-1546, 23 L. Ed. 2d 57 (1969). Judgments of conviction must occasionally be vacated or reversed on this theory where the charge contained only one erroneous instruction. See, e.g., Cool v. United States, 409 U.S. 100, 102-03, 93 S. Ct. 354, 356-357, 34 L. Ed. 2d 335 (1972) (per curiam). However, a judgment of conviction will not be rendered constitutionally infirm by one deficient instruction if the charge, when considered as a whole, clearly informs the jury of the correct legal principle. Henderson v. Kibbe, 431 U.S. 145, 153, 97 S. Ct. 1730, 1736, 52 L. Ed. 2d 203 (1977); see Cupp v. Naughten, supra, 414 U.S. at 147, 94 S. Ct. at 400. That is, where there is not "any significant possibility," given the judge's additional instructions, that a reasonable jury could have interpreted the charge as a whole to state a rule of law at odds with the Constitution, a single ailing instruction does not render the charge constitutionally deficient. Nelson v. Scully, 672 F.2d 266, 272 (2d Cir. 1982); see United States v. Robinson, 545 F.2d 301, 306 n.7 (2d Cir. 1976) (no error if trial judge's charge included additional instructions that "(insured)" that the jury understood the correct rule).

 Therefore, the Court is required to engage in a two-step analysis to determine the constitutional sufficiency of the jury charge given at petitioner's trial. First, it must evaluate the trial judge's alibi instruction and decide whether a reasonable jury could have understood this instruction to impose on Simmons a burden of persuasion with respect to his alibi defense. Second, in the event the Court finds the alibi instruction deficient in this manner, the Court is required to review the entire charge and determine whether, notwithstanding the deficient alibi instruction, the charge as a whole clearly informed the jury of the correct legal principle, namely, that Simmons had no burden of persuasion whatsoever with respect to his alibi defense. See generally Rivera v. Coombe, 534 F. Supp. 980, 990 (S.D.N.Y.1982).

 The state trial judge's instruction on how the jury should evaluate the alibi evidence offered by Simmons consisted of an introductory statement that alibi evidence "should be most carefully considered" followed by four sentences that endeavored to inform the jury of the circumstances under which such alibi evidence would require it to reach a verdict of not guilty:

 

(1) If the Defendant's guilt is not established beyond a reasonable doubt by reason of the truth of an alibi, you must acquit him. (2) You must be satisfied as to the truth of the alibi. (3) In other words, if it is sufficient to raise a reasonable doubt by evidence concerning the Defendant's whereabouts at the particular time when the crimes wer (sic) committed, if the jury believes that evidence, that alibi itself entitles him to a verdict of not guilty. (4) It is for you, the jury, to determine whether or not the alibi should be believed.

 Transcript at 703-04. The Court rejects the State's argument that these four sentences plainly did nothing more than inform the jurors (correctly) that they were to acquit Simmons if, upon considering petitioner's alibi evidence together with the rest of the evidence in the case, they were not persuaded beyond a reasonable doubt that Simmons was the perpetrator of the crimes in question. Each of these four sentences states, or reasonably can be understood to state, that an alibi must be "true" or "believed" to be of assistance to a criminal defendant. Since they all predicate the value of alibi evidence on whether it is "believed" or found to be "true" by the jury, each of these four sentences reasonably could have been interpreted by the jury as requiring Simmons to satisfy a burden of persuasion with respect to his alibi defense.

 In reaching this conclusion, the Court recognizes that two of these four sentences (numbers (1) and (3) above) mention the term "reasonable doubt," and rejects the State's contention that a reasonable juror could only have understood these two sentences in a fashion consistent with the Constitution. First, each of these two sentences reasonably could have been understood to state that an alibi defense can only prevail if the defendant's alibi evidence "creates" or "raises" a reasonable doubt as to the guilt of the defendant. Since the presumption of innocence starts the jury off with a reasonable doubt as to the defendant's guilt as a matter of law, a criminal defendant need not present evidence "raising" a reasonable doubt in order to be acquitted. Rather, a criminal defendant is entitled to acquittal merely if, given all the evidence in the case, his or her guilt has not been proven beyond the reasonable doubt that the presumption of innocence afforded the defendant at the outset. Therefore, an instruction that requires the defendant to prove that there is a reasonable doubt that he or she committed the crime unquestionably places a burden of persuasion, albeit small, on the defendant, and hence runs afoul of the constitutional principles set forth in text supra. Accord, Adkins v. Bordenkircher, supra, 674 F.2d at 280-82 (affirming district court's grant of habeas corpus petition where state trial judge instructed jury that "the burden is upon (the defendant) to prove (the defense of alibi), not beyond a reasonable doubt, nor by a preponderance of the evidence, but by such evidence, and to such a degree of certainty, as will when the whole evidence is considered, create and leave in the mind of the jury a reasonable doubt as to the guilt of the accused"). Second, sentences (1) and (3) would have been defective even if they had not required, or it was permissible to require, Simmons to "create" or "raise" a reasonable doubt as to his guilt. Both of these sentences, in conditioning acquittal on the existence of a reasonable doubt as to Simmons's guilt, stated that the reasonable doubt necessary to acquit Simmons could be predicated on his alibi evidence only if this evidence either were found to be "true" or were "believed." The State concedes that sentences (2) and (4) were improper because they instructed the jurors that they could only rely on alibi evidence to acquit if they "believed" the alibi or found that the alibi was "true." Plainly, it was equally improper to tell the jurors in sentences (1) and (3) that, while they should acquit if they found a reasonable doubt as to the defendant's guilt, they could only find such a reasonable doubt on the basis of alibi evidence if they "believed" the alibi or found that the alibi was "true." Accord, People v. Lediard, 80 A.D.2d 237, 241-42, 438 N.Y.S.2d 540, 543 (1st Dep't 1981); People v. Jones, 74 A.D.2d 515, 515-16, 425 N.Y.S.2d 5, 6 (1st Dep't 1980).

 The Court therefore concludes that a reasonable juror could indeed have understood the alibi instruction given at petitioner's trial as imposing a burden of persuasion on Simmons with respect to his alibi defense. This conclusion is supported by a great deal of judicial authority. A number of courts have considered the potential burden-shifting effect of alibi instructions nearly identical to the one at issue here. Two judges of this district have considered an alibi instruction indistinguishable from the one given at petitioner's trial. In each case, while a review of the charge as a whole led the judge to conclude that error of constitutional dimension had not occurred, the judge apparently agreed that the challenged instruction itself had a burden-shifting potential. See Brown v. LeFevre, No. 79 Civ. 4315(MJL), slip op. at 6-9 (S.D.N.Y. Aug. 27, 1980) (Brown I ), rehearing denied, slip op. at 5-6 (S.D.N.Y. July 17, 1981) (Brown II ) *fn7" ; Robinson v. Harris, No. 78 Civ. 4256(WCC), slip op. at 14-15 (S.D.N.Y. June 22, 1979). *fn8" During the last three years, the New York state courts have frequently considered language nearly identical to the instruction at issue here, and have consistently held such language to be erroneous on account of its burden-shifting potential. *fn9" See People v. Vasquez, App.Div., 87 A.D.2d 830, 449 N.Y.S.2d 8, 9 (2d Dep't 1982); *fn10" People v. Costales, App.Div., 87 A.D.2d 635, 448 N.Y.S.2d 223, 224 (2d Dep't 1982) *fn11" ; People v. Mays, 84 A.D.2d 553, 553, 443 N.Y.S.2d 174, 174 (2d Dep't 1981) *fn12" ; People v. Cadorette, 83 A.D.2d 908, 908, 442 N.Y.S.2d 137, 138 (2d Dep't 1981) *fn13" ; People v. Acevedo, 83 A.D.2d 813, 814, 442 N.Y.S.2d 56, 57 (1st Dep't 1981) *fn14" ; People v. Bauer, 83 A.D.2d 869, 869, 442 N.Y.S.2d 24, 25 (2d Dep't 1981) *fn15" ; People v. Reed, 83 A.D.2d 645, 646, 441 N.Y.S.2d 518, 519 (2d Dep't 1981) *fn16" ; People v. Carreras, 83 A.D.2d 590, 590, 441 N.Y.S.2d 118, 119 (2d Dep't 1981) *fn17" ; People v. Lediard, 80 A.D.2d 237, 241-42, 438 N.Y.S.2d 540, 543 (1st Dep't 1981) *fn18" ; People v. Lee, 80 A.D.2d 905, 905, 437 N.Y.S.2d 111, 112 (2d Dep't 1981) *fn19" ; People v. Boone, 78 A.D.2d 461, 465-66, 435 N.Y.S.2d 268, 271 (1st Dep't 1981) *fn20" ; People v. Velazquez, 77 A.D.2d 845, 846, 431 N.Y.S.2d 37, 38 (1st Dep't 1980) *fn21" ; People v. Rothaar, 75 A.D.2d 652, 652, 427 N.Y.S.2d 272, 273 (2d Dep't 1980) *fn22" ; People v. Jones, 74 A.D.2d 515, 515-16, 425 N.Y.S.2d 5, 6 (1st Dep't 1980) *fn23" ; People v. Griswold, 72 A.D.2d 778, 778, 421 N.Y.S.2d 400, 401 (2d Dep't 1979) *fn24"

 Having concluded that a reasonable jury could have understood the alibi instruction given at petitioner's trial to impose a burden of persuasion on Simmons with respect to his alibi defense, the Court now proceeds to the second stage of its analysis of the constitutional sufficiency of the state trial judge's jury charge. As previously stated, the Court may not find error of constitutional dimension, and hence must dismiss the petition, if its review of the entire charge demonstrates that, notwithstanding the deficient alibi instruction, the charge as a whole clearly informed the jury that Simmons had no burden of persuasion whatsoever with respect to his alibi defense. The Court begins this stage of its analysis by making two observations. First, once a judge gives an alibi instruction that the jury could reasonably have understood as imposing a burden of persuasion on the defendant with respect to his or her alibi defense, the charge as a whole cannot possibly clearly inform the jury of the correct rule of law, no matter how many accurate instructions on burden of persuasion the judge previously gave or subsequently gives, unless a reasonable jury would necessarily understand the other instructions to be rhetorically inconsistent with the incorrect understanding that the jury reasonably could have obtained from the ailing instruction. See Sandstrom v. Montana, supra, 442 U.S. at 518-19 n.7, 99 S. Ct. at 2456-2457 n.7; Callahan v. LeFevre, 605 F.2d 70, 75 (2d Cir. 1979). Second, even if the charge contained such a necessary rhetorical inconsistency, it may not be said that the charge as a whole clearly informed the jury of the correct legal rule unless the circumstances of the case are such that a reasonable jury would have resolved this inconsistency by rejecting the constitutionally invalid interpretation of the ailing instruction. See Sandstrom v. Montana, supra, 442 U.S. at 525-26, 99 S. Ct. at 2459-2460; Rivera v. Coombe, supra, 534 F. Supp. at 991.

 The State, in arguing that the charge as a whole clearly informed the jury at petitioner's trial that Simmons had no burden of persuasion with respect to his alibi defense, points out that the trial judge, subsequent to delivering the defective alibi instruction, continued his discussion of the legal principles that governed the jury's deliberations, and, in the course thereof, correctly defined the term "reasonable doubt," Transcript at 705-07, and correctly told the jury that the prosecution was required to prove every element of the crimes charged beyond a reasonable doubt, Transcript at 707-08. Since petitioner's alibi defense plainly sought to negate an element, (indeed, all the elements) of the crimes with which he was charged, it follows that, to the extent the earlier alibi instruction was susceptible of being understood to impose on Simmons a burden of persuasion with respect to his alibi defense, these later instructions were necessarily rhetorically inconsistent with the alibi instruction. For three reasons, however, the Court is unable to conclude that the jury must have resolved this inconsistency by rejecting the constitutionally invalid interpretation of the alibi instruction, and hence is unable to hold that the charge as a whole clearly informed the jury of the correct legal rule.

 First, the Court is extremely doubtful that the jury, assuming that it understood the judge's alibi instruction to place a burden of persuasion on Simmons, perceived the necessary rhetorical inconsistency between the alibi instruction and the judge's later instructions on the prosecution's burden of persuasion and the meaning of reasonable doubt. The reports are brimming with appellate decisions where criminal convictions were reversed on the ground that the trial judge did not perceive the necessary rhetorical inconsistency between an alibi instruction similar to that given at petitioner's trial and the beyond-a-reasonable-doubt instruction mandated by In re Winship, supra. In light of the fact that literally dozens of state and federal judges have failed, upon considering the matter for the first time, to understand the inconsistency in at once requiring the prosecution to prove all the elements of the crime beyond a reasonable doubt and requiring the defendant to prove his or her alibi by some evidentiary standard or another, it strikes the Court as utterly fanciful to suppose that twelve lay jurors, having heard a burden-shifting alibi instruction and having sometime thereafter heard a proper beyond-a-reasonable-doubt instruction, must surely have recognized that they would violate the beyond-a-reasonable-doubt instruction were they, as directed by the defective alibi instruction, to require the defendant to satisfy a burden of persuasion in order to prevail on his or her alibi defense. For this reason, numerous decisions have held that general instructions correctly defining reasonable doubt and properly requiring the prosecution to satisfy the beyond-a-reasonable-doubt burden of persuasion with respect to every element of the crime are not by themselves sufficient antidotes for an alibi instruction that reasonably could be interpreted as placing on the defendant's shoulders some burden of establishing his alibi. See, e.g., United States v. Fortes, 619 F.2d 108, 124 (1st Cir. 1980); United States v. Burse, 531 F.2d 1151, 1153 (2d Cir. 1976); United States v. Booz, supra, 451 F.2d at 723; Stump v. Bennett, supra, 398 F.2d at 122; Adkins v. Bordenkircher, supra, 517 F. Supp. at 399; Rogers v. Redman, supra, 457 F. Supp. at 933; Dixon v. Hopper, 407 F. Supp. 58, 65 (M.D.Ga.1976).

 Second, even if the Court were able to state with a reasonable degree of confidence that the jurors must have recognized the necessary rhetorical inconsistency between the defective alibi instruction and the judge's later correct instructions on reasonable doubt and the prosecution's burden of persuasion, the Court would still not be able to conclude that the jury proceeded to ignore the defective alibi instruction. To be sure, such a conclusion might be possible in a given case, for example, where the later instructions on reasonable doubt and the prosecution's burden of persuasion either followed "immediately after" the defective alibi instruction or specifically referred back to that instruction. In such a case, it is reasonable to conclude that the later instructions had an overriding effect in the jurors' minds, and thus eliminated any significant possibility that the jurors would interpret the defective alibi instruction in a constitutionally impermissible fashion. See United States v. Fortes, supra, 619 F.2d at 124; Wright v. Smith, 569 F.2d 1188, 1192 (2d Cir. 1978); Johnson v. Spalding, supra, 510 F. Supp. at 168. Here, however, the judge's correct instructions on reasonable doubt and the prosecution's burden of persuasion were given a good time after, and in no way referred back to, the judge's alibi instruction. *fn25" Since the alibi instruction was more specific than the later general instructions on reasonable doubt and the prosecution's burden of persuasion, the Court sees no reason to conclude that the jurors, assuming they interpreted the alibi instruction to impose a burden of persuasion on Simmons and perceived the necessary rhetorical inconsistency between the alibi instruction and the later instructions, proceeded to discard the alibi instruction in favor of the later instructions when they deliberated on the alibi defense. See Adkins v. Bordenkircher, supra, 517 F. Supp. at 399.

 Third, the Court observes that defense counsel made a timely objection to the trial judge's alibi instruction (which objection was overruled) and timely requested that the trial judge give a different alibi instruction (which request was refused). The Court is well aware that there are at least three decisions in this Circuit in which claims similar to petitioner's were rejected on the ground that, even assuming the challenged alibi instruction had burden-shifting potential, the charge as a whole clearly informed the jury of the correct legal rule as to the prosecution's burden of persuasion. See Wright v. Smith, supra, 569 F.2d at 1193-94; Brown II, supra, slip op. at 5; Robinson v. Harris, supra, slip op. at 15. However, in each of these cases the petitioner had failed to make a timely objection to the alibi instruction of which he was now complaining in federal court, meaning, in the reviewing court's view, that the petitioner faced a particularly heavy burden in arguing that the ailing alibi instruction so infected the entire trial that his resulting conviction violated due process. *fn26" See Wright v. Smith, supra, 569 F.2d at 1192; Brown II, supra, slip op. at 6; Robinson v. Harris, supra, slip op. at 15. Therefore, these three cases are properly distinguished from the instant case because, in each of these cases, the court reviewed the charge under a standard significantly less favorable to the petitioner than the standard that this Court is required to apply in reviewing the charge given at Simmons's trial. Accord, Lopez v. Curry, 454 F. Supp. 1200, 1207-08 (S.D.N.Y.), aff'd, 583 F.2d 1188 (2d Cir. 1978). Since these three decisions do not control the Court's determination whether the charge given at petitioner's trial, when considered as a whole, clearly informed the jury of the correct rule of law regarding the prosecution's burden of persuasion with respect to his alibi defense, the Court adheres to its conclusion, based on the reasoning previously expressed, that a reasonable juror could have considered the charge in its entirety and concluded that Simmons was required to satisfy a burden of persuasion in order to prevail on his alibi defense.

 In sum, the Court concludes that a reasonable juror could have understood the alibi instruction given at petitioner's trial to impose a burden of persuasion on Simmons with respect to his alibi defense. The Court is unable to find, upon reviewing the judge's charge as a whole, that the jury at petitioner's trial was clearly informed, notwithstanding the defective alibi instruction, of the correct rule of law as to whether Simmons bore any burden of persuasion with respect to his alibi defense. The judge at petitioner's trial thus committed error of federal constitutional dimension in charging the jury on the alibi defense. This error requires that petitioner's conviction of first-degree sodomy, first-degree robbery, and criminal possession of a weapon be vacated unless the error can be found harmless, a question to which the Court adverted earlier and now returns.

 II

 The Supreme Court has imposed narrow limitations on the ability of a reviewing court to conclude that a federal constitutional error committed during a criminal trial was "harmless." Some constitutional rights are so basic to a fair trial that their infraction may never be treated as harmless error. Holloway v. Arkansas, 435 U.S. 475, 489, 98 S. Ct. 1173, 1181, 55 L. Ed. 2d 426 (1978). Those federal constitutional violations that do not fall in the category of infractions that demand "automatic reversal" may be deemed nonprejudicial in a given case, but only if the reviewing court is able to declare a belief that the violation in question was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705 (1967); Forman v. Smith, 633 F.2d 634, 642 (2d Cir. 1980), cert. denied, 450 U.S. 1001, 101 S. Ct. 1710, 68 L. Ed. 2d 204 (1981).

 The Supreme Court has not yet decided whether an error such as occurred at petitioner's trial may ever be declared harmless. However, many lower courts have held that burden-shifting alibi instructions may be subjected to harmless-error analysis. See, e.g., Robinson v. Warden, Maryland Penitentiary, 518 F. Supp. 219, 222-23 (D.Md.1981); Fulton v. Warden, Maryland Penitentiary, supra, 517 F. Supp. at 489; Rogers v. Redman, supra, 457 F. Supp. at 934-35; Wright v. Smith, 434 F. Supp. 339, 348 (W.D.N.Y.1977), rev'd on other grounds, 569 F.2d 1188 (2d Cir. 1978). But see, e.g., Graham v. Maryland, 454 F. Supp. 643, 651 (D.Md.1978) (charge that is reasonably susceptible of being understood to impose burden of persuasion on defendant with respect to his alibi defense may never be found harmless). This Court joins what it views to be the substantial weight of authority and holds that an error such as occurred at petitioner's trial may, in an appropriate case, be declared harmless.

 In order to conclude that Simmons was not prejudiced by the federal constitutional violation that occurred at his trial, the Court must, as noted, be able to declare a belief that this violation was harmless beyond a reasonable doubt. Chapman v. California, supra, 386 U.S. at 24, 87 S. Ct. at 828. Since the success or failure of an alibi defense normally depends upon the credibility of the defendant's alibi witnesses as compared to the credibility of the prosecution's identification witnesses, it is plain that an erroneous alibi instruction may be found harmless only in a rare case. Two courts have found an error such as occurred at petitioner's trial harmless because the prosecution introduced independent evidence that powerfully corroborated the testimony of the prosecution's identification witnesses. See Robinson v. Warden, Maryland Penitentiary, supra, 518 F. Supp. at 223 (defendant's fingerprint found at the scene of the crime); People v. Cadorette, supra, 83 A.D.2d at 908, 442 N.Y.S.2d at 138 (defendant, in conversations with the police, revealed knowledge of non-public details of the crime). A third court has found an error such as occurred at petitioner's trial harmless because the defendant's alibi witness testified merely that he saw the defendant a few blocks from the scene of the crime for five minutes during the three-hour period within which the crime was committed. See Fulton v. Warden, Maryland Penitentiary, supra, 517 F. Supp. at 489. These three decisions, which are, as far as the Court's research has disclosed, the only occasions where a burden-shifting alibi instruction has been found harmless, involved facts far different from the instant case. The only evidence linking Simmons with the crime was the identification testimony of Rivera, the victim of the crime. Petitioner's six alibi witnesses testified that they saw Simmons for the entire period during which the crime occurred. The prosecution's effort to impeach these witnesses diminished their credibility somewhat, but not so far as to permit a conclusion by this Court that their testimony was incredible beyond a reasonable doubt. Under circumstances such as these, where petitioner's guilt or non-guilt depended entirely on the credibility of his alibi witnesses relative to the credibility of Rivera's identification testimony, there is no way that the Court can find beyond a reasonable doubt that the evidence against Simmons was so overwhelming as to exclude a reasonable possibility that the trial judge's erroneous alibi instruction contributed to the jury's verdict. As a result, the Court may not find this error to have been harmless.

 CONCLUSION

 Simmons has shown that the judge at his state trial committed error of federal constitutional dimension in instructing the jury on the subject of his alibi defense. The Court is unable to find this error to have been harmless beyond a reasonable doubt. Accordingly, the petition for a writ of habeas corpus is granted. Simmons is entitled to a new trial on the crimes of which he was convicted; he shall be released from custody if not retried within sixty (60) days of the date of this opinion.

 It is so ordered.


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