The opinion of the court was delivered by: DUFFY
KEVIN THOMAS DUFFY, D.J.:
Arthur Cauley was convicted on January 31, 1978, after a jury trial in New York State Supreme Court, New York County, with Russell R. Leggett, Judge, presiding, of attempted murder of a police officer, assault first degree, two counts of possession of a weapon and dangerous instrument and appliance as a felony, attempted assault in the first degree, assault in the second degree, robbery in the first degree, robbery in the second degree, burglary in the second degree, kidnapping in the second degree, and coercion in the second degree. Mr. Cauley appealed the conviction challenging the constitutionality of the charge to the jury. His conviction was upheld in the New York State Courts. All state remedies have been exhausted in accordance with 28 U.S.C. § 2254.
Cauley bases his petition on one segment of the roughly 150 page charge to the jury:
As to intent, I'm going to charge you that a person is deemed to intend the natural consequences of his actions, and you have a right to find such intent from results reproduced by his actions.
However, if the act was done under circumstances or conditions that preclude the existence of such an intent you have the right to find that the produced results was unintentional.
Tr. 887-88. The petitioner contends that these instructions unconstitutionally shifted the burden of proof on intent to him, and thus are proscribed by the tenets of Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979).
In Sandstrom the trial judge instructed the jury that "the law presumes that a person intends the ordinary consequences of his voluntary acts." 442 U.S. at 513. The Supreme Court held that this instruction, in effect, impermissibly shifted the burden of proof on the issue of intent. It established a presumption of intent, leaving it to the defendant to rebut. This violated the defendant's due process rights because the jury might convict a defendant without finding that the government proved the element of intent beyond a reasonable doubt. The Second Circuit recently laid out a two-step process by which the petitioner's Sandstrom claim may be evaluated: first, examine whether a particular portion of the charge runs afoul of Sandstrom ; and second, examine whether in the context of the charge as a whole, the defect was "cured." Rock v. Coombe, 694 F.2d 908, 915 (2d Cir. 1982).
The first determination is clear. The state trial judge's language in isolation violates the proscriptions of Sandstrom. Unlike several charges that have passed muster under Second Circuit scrutiny, the prohibited language -- "a person is deemed to intend the natural consequences of his act" -- was not followed-up within the same sentence by ameliorative language. See, e.g., Rivera v. Coombe, 683 F.2d 697 (2d Cir. 1982) ("unless such acts were done under circumstances which would preclude the existence of such intent . . . ."); Mancuso v. Harris, 677 F.2d 206 (2d Cir. 1982) (same); Washington v. Harris, 650 F.2d 447 (2d Cir. 1981), cert. denied, 455 U.S. 951, 102 S. Ct. 1455, 71 L. Ed. 2d 666 (1982) (same). Instead, the mitigating language appears in the next sentence and not in the same sentence as the constitutionally infirm language.
The use of "preclude" also is particularly troublesome. "If, to avoid the presumption, the circumstance must preclude the presumed intent, it would appear that intent need not be proven beyond a reasonable doubt." Rock v. Coombe, at 915 n.6 (emphasis in original). Therefore, I find that the particular portion of the jury charge cited by petitioner violates Sandstrom.
A more difficult question is whether the charge taken as a whole cures the defect or impermissibly shifts the burden of proof on intent. See Cupp v. Naughten, 414 U.S. 141, 146-47, 38 L. Ed. 2d 368, 94 S. Ct. 396 (1973). For the three reasons that follow, I find that the charge, as a whole, was constitutionally proper.
First, language immediately preceding the improper portion unequivocally states that it is the government's burden to prove intent beyond a reasonable doubt. The relevant portion of the charge reads:
Intent is a matter of operation of a person's [mind] or the mental state existing in the attempting of the commission of the crime that is alleged against him. In other words, did there exist a copable [sic] state of mind?
We cannot get within the Defendant's mind or discover just what lies there with respect to his actions, so therefore, we are limited to the external indications of his thinking, the thoughts, and the intentions he actually had as indicated by the things he said and did, and the means employed in doing it.
You need not find that intent to cause death was formed at any specific time or even that it existed at all before. It actually existed when the incident occurred, but if you find such intent beyond a reasonable doubt, before you can bring in a verdict of guilty as to each count [sic]. I'm going to proceed to instruct you now on the nature and ...