Appeal from an order of the Eastern District, McLaughlin, J. denying petitioner for a writ of habeas corpus.
Lumbard, Oakes, and Cardamone, Circuit Judges. Oakes, Circuit Judge (concurring).
Carl Payne appeals from an order of the United States District Court for the Eastern District (McLaughlin, J.), dated April 24, 1986, denying his petition for a writ of habeas corpus. On March 30, 1978, Payne was convicted by a jury in New York Supreme Court, Kings County of murder in the first degree, sale of a controlled substance in the third degree, and possession of a controlled substance in the third and fifth degrees. He was subsequently sentenced to a term of twenty-five years to life imprisonment on the murder count and concurrent terms ranging from zero years to life on the other counts. The Appellate Division unanimously affirmed Payne's convictions without opinion, 70 A.D.2d 1063, 417 N.Y.S.2d 153 (2d Dept. 1979), as did the Court of Appeals by published opinion, 52 N.Y.2d 743, 436 N.Y.S.2d 271, 417 N.E.2d 564 (1980).
As he had in the state appellate courts, Payne, in his habeas petition, maintains that he was denied a fair trial by the prosecutor's failure to provide him with a police report recording a prosecution witness's prior inconsistent statement while that witness was testifying and by the trial court's subsequent preclusion of cross-examination about the report when the officer who had written it was testifying. Payne also contends that the trial court -- by twice charging the jury that there was a "fundamental rule of evidence that a person is presumed to intend the natural consequences of his act" -- shifted to him the burden of proof on the issue of intent for the killing, in violation of his right to due process under Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979). In rejecting these claims, the district court found that the untimely disclosed document was duplicative of other material containing the same inconsistent statement and that the jury instructions on the whole were constitutional because they contained language which ameliorated the alleged Sandstrom violation. We affirm.
On the afternoon of August 29, 1977, New York City detective Joseph Taylor and his partner, police officer Roy DeSetto, went to Payne's apartment at 14 Linden Street in Brooklyn in response to a radio report about a man there with a gun. Taylor knocked on the apartment door, announced that the police were present, and was told to wait a moment. The door then partially opened. Peering through the threshold, Taylor was struck down by a close-range shotgun blast to his chest and later died after suffering massive internal hemorrhaging from the shotgun wounds.
DeSetto immediately moved to return fire. He pointed his service revolver through the partially opened door and, in a back-and-forth motion, blindly emptied six shots into the apartment. He then swung the door open, looked inside the small one-room apartment and saw two men escaping through a window and another, crouching behind a bed, moving toward it. Picking up his dying partner's revolver, DeSetto fired six more shots. He saw one of the men flinch, as if hit, as he leapt out the window.
When the shooting ceased and police reinforcements arrived, they discovered one Louis Belgrave on the apartment floor, mortally wounded. A short while later, following a trail of blood leading from an alleyway behind Payne's apartment building, police found Payne, who was bleeding from his foot, in a nearby abandoned basement apartment and arrested him. A search of Payne's apartment disclosed a quantity of cocaine, a handgun, a shotgun and a bill of sale listing Payne as its purchaser.
Payne was subsequently charged with murder in the first and second degrees for officer Taylor's death, N.Y. Penal Law §§ 125.27, 125.25 (McKinney 1975); two counts of possession of a weapon in the fourth degree, arising from discovery of the handgun and shotgun, N.Y. Penal Law § 265.01; and several counts of sale and possession of a controlled substance, the cocaine found in Payne's apartment, N.Y. Penal Law §§ 220.39, 220.16, 220.06.
At Payne's trial, the State called two men who were in Payne's apartment with Payne and Belgrave at the time of the shooting, Ewan Brown and Roy Canton. They testified that they had gone to the apartment several hours before the incident to purchase cocaine from Payne. Shortly after snorting a portion of the purchased narcotic, they heard Taylor's knock. Payne got up from a chair, picked up a nearby handgun and asked "who is it." When Taylor responded,*fn1 Payne told the officer to wait and exchanged the handgun for a shotgun, which he retrieved from his closet. Payne then pumped the shotgun as he walked to the apartment door and pushed the door open with the barrel of the gun. Brown and Canton next heard a loud blast and saw Payne drop the shotgun. As officer DeSetto began to fire, Canton jumped through a window to a roof below, followed by Payne. Brown, who stayed in the apartment, testified that Belgrave, who until then had been lying inertly on a bed, attempted to leap out the window as well but was hit twice as he moved toward it.
Payne took the stand as the only witness in his defense. While conceding on both direct and cross-examination that he owned the shotgun which had been used against Taylor, Payne maintained that it was Belgrave who had shot Taylor. Payne testified that after he heard the knock on his apartment door and asked who it was, Belgrave motioned not to make any noise, volunteered to answer the door, and picked up Payne's shotgun as he went toward it. According to Payne, Belgrave, facing the door, then pointed the gun straight ahead and fired.
On direct examination, in the course of relating his personal history leading up to the incident, Payne stated that while on a visit in Texas in July 1977, he had shot and killed a man after the man stabbed him eight times during a dispute over a bicycle. He also denied selling cocaine to Brown and Canton, stating that the cocaine in his room had been placed there by a neighbor while Payne had been away and that Brown and Canton had simply helped themselves to it. Payne further testified that he had not partaken of the cocaine but had smoked marijuana with his guests at some point before the shooting.
In her summation to the jury, Payne's counsel argued that there was no reason to disbelieve Payne's version of the shooting, mentioning that Payne, who had no prior convictions, had been candid in fully relating the details of his life. Counsel admonished the jury to "remember the physical facts of this case," contending, inter alia, that the size and configuration of Payne's apartment, the number and position of ...