Appeal from an order of the United States District Court for the Southern District of New York, Robert J. Ward, Judge, granting state prisoner's petition for a writ of habeas corpus on ground of constitutionally infirm supplemental instruction. Affirmed as modified.
Oakes, Meskill, and Kearse, Circuit Judges.
The State of New York appeals from an order of the United States District Court for the Southern District of New York, Robert J. Ward, Judge, 534 F. Supp. 980, granting the petition of state prisoner Pedro Arroyo for a writ of habeas corpus on the ground that the state trial judge's supplemental jury charge, that "people are presumed to intend the natural, probable and logical consequence of their acts," unconstitutionally deprived Arroyo of the presumption of innocence, in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). We modify and affirm the order of the district court.
Arroyo was convicted in 1973, after a jury trial in New York State Supreme Court, of one count of attempted murder, three counts of assault, and one count of possessing a weapon. Two versions of the events leading to the charges against Arroyo emerged at the trial. According to the prosecution's witnesses, on April 13, 1972, Arroyo was apprehended by two New York City police officers shortly after leaving the scene of a robbery. He was being returned to the scene of the robbery when he broke free from the officers and ran. He was quickly pursued by a third officer, Raymond Bernard, who attempted to tackle him. Arroyo dodged the tackle, drew a revolver, and fired at Bernard. Bernard had drawn his own handgun and extended his right arm into a firing position. Arroyo's shot, from five feet away, struck and shattered the grip of Bernard's gun, and the spent bullet pierced Bernard's police jacket but not his chest. Bernard returned fire; Arroyo leaped over a car hood and fired at Bernard twice more, missing both times. The police officers eventually wounded Arroyo, who thereupon surrendered.
Arroyo testified that his memory of the events was sketchy because of the injuries he had sustained. He recalled having been accosted by a gun-wielding stranger who had a second gun in his waistband. He stated that he had immediately pushed aside and held the man's gun hand, grabbed the other gun from the man's belt, struck him with that gun, and fled. As he ran, he was shot and wounded. Arroyo testified that he had no recollection of ever firing a gun. Two other defense witnesses also testified that Arroyo had not fired a gun and that all of the shooting had been done by the police officers.
When the trial judge instructed the jury, before discussing any of the charges specifically, she instructed the jury that the prosecution bore the burden of proving every element of every alleged crime beyond a reasonable doubt. As to the attempted murder count, the judge stated that the "intent to cause the death of Raymond Bernard" was an essential element of the crime, and defined intent without using any language that could have been interpreted as shifting the burden of proof.*fn1 The same unobjectionable instruction as to intent was given twice more with respect to other counts. These initial instructions are unchallenged.
Several times during the course of its deliberations, the jury made inquiries of the trial judge. First, it asked to have the testimony of Officer Bernard reread. The second request, made approximately four hours after the deliberations had begun, was for "the law and the interpretation of the [attempted murder] charge." The trial judge repeated, in large part, her initial instructions concerning that count, including the proper instructions on intent. After deliberating for another two hours, the jury returned to ask, "does shooting at a policeman necessarily constitute attempt[ed] murder?" The trial judge responded as follows:
The law which defines murder and attempt mentions only persons as to the elements of that crime, it applies to all persons.
Attempted murder is defined in the law, a person is guilty of attempted murder[,] and I am combining the statute on attempt as well as murder[,] when with intent to cause the death of another person he attempts to cause the death of such person.
(Tr. 808). The jury returned to the jury room, but returned twelve minutes later, some six and one-half hours after it had begun deliberations, with another inquiry, as follows:
We have reached agreements on four charges and divided on the fifth one, to assist us with the latter, we would seek further classification [ sic ] of the words conscious intent.
(Tr. 810). The parties are in accord that the charge on which the jury had not reached agreement ...