(2d Cir. 1980). Finally, the record does not support a finding of equivocation or vacillation on petitioner's part in the five months which passed from the time petitioner initially asserted his right to self-representation to the start of the second trial.
Accordingly, I find that the petitioner has failed to prevail on this habeas corpus ground.
III. Marshaling Evidence and Jury Instructions
A. Marshaling Evidence
Petitioner challenges the portions of the trial judge's charge which marshaled the evidence presented in the case, arguing that the judge presented only the evidence most favorable to the prosecution.
Under New York Law, when charging the jury, the trial judge must state the fundamental legal principles applicable, but need not summarize the evidence except to the extent necessary to explain the application of the law to the facts of the case. N.Y. Criminal Procedure Law § 300.10(2). The critical issue in reviewing a trial court's marshaling of the evidence is whether the defendant was denied a fair trial. People v. Saunders, 64 N.Y.2d 665, 667, 485 N.Y.S.2d 250, 474 N.E.2d 610 (1984).
In the present case, there is no indication in the record that the petitioner was denied a fair trial as a result of the marshaling of the evidence by the trial judge. See, Johnson v. Scully, 727 F.2d 222 (2d Cir. 1984); Jenkins v. Bara, 663 F. Supp. 891 (E.D.N.Y. 1987). Petitioner claims that while the trial judge's summary of the prosecution's case consumed 14 pages of the trial transcript, the summary of the defense case only took 6 pages. However, the trial court need not give "equal time" to each side, especially considering the fact that the prosecution presented the majority of the evidence. Scully, supra, 727 F.2d at 226-227. Moreover, before marshaling the evidence, the trial judge gave curative instructions stating that he "did not intend to evade into [the jurors] province or infer that such has been established or whether such constitutes the only evidence. Such of course is always yours to do." (T. 2189).
Consequently, I find that petitioner's claim has no merit.
B. Jury Instructions Petitioner has raised several arguments regarding the constitutionality of the jury charge given at trial. Each claim will be discussed separately.
1. Failure to Charge a Lesser Included Offense.
Petitioner's first claim is that he was denied due process when the court refused to submit the charge of second degree manslaughter to the jury as a lesser included offense of second degree murder.
As a general matter, "in order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instruction to the jury on matters of state law, the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law." Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985); see Cupp v. Naughten, 414 U.S. 141, 146, 38 L. Ed. 2d 368, 94 S. Ct. 396 (1973). The standard on a habeas corpus petition is "quite different" from the standard on direct review of proceedings in a federal criminal case. Rogers v. Carver, 833 F.2d 379, 381 (1st Cir. 1987), cert. denied, 485 U.S. 937, 99 L. Ed. 2d 276, 108 S. Ct. 1116 (1988). The habeas petitioner thus has the burden of meeting a very high standard -- "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Naughten, supra, 414 U.S. at 147.
The Supreme Court has held that in capital cases, failure to charge lesser included non-capital offenses, where the evidence warrants such a charge, violates the eighth amendment and the due process clause. Beck v. Alabama, 447 U.S. 625, 627, 65 L. Ed. 2d 392, 100 S. Ct. 2382 (1980). However, the Court left open the question of whether due process requires a lesser included offense instruction in a non-capital case. Id. at 638 n. 14.
The circuits that have considered this issue are divided. The Fifth, Ninth, Tenth and Eleventh Circuits have held that failure to instruct on the lesser included offense does not present a federal constitutional question and therefore will not be considered in a federal habeas proceeding. See, e.g. Valles v. Lynaugh, 835 F.2d 126, 127 (5th Cir. 1988); James v. Reese, 546 F.2d 325, 327 (9th Cir. 1976); Chavez v. Kerby, 848 F.2d 1101, 1103 (10th Cir. 1988); Perry v. Smith, 810 F.2d 1078, 1080 (11th Cir. 1987). Others have held that a due process violation occurs only when the failure to give such an instruction in a non-capital case amounts to so fundamental a defect as to cause "a complete miscarriage of justice." Tata v. Carver, 917 F.2d 670, 671 (1st Cir. 1990); Bagby v. Sowders, 894 F.2d 792, 797 (6th Cir.) (en banc), cert. denied, 496 U.S. 929, 110 L. Ed. 2d 646, 110 S. Ct. 2626 (1990); Nichols v. Gagnon, 710 F.2d 1267, 1272 (7th Cir. 1983), cert. denied, 446 U.S. 940 (1984); DeBerry v. Wolf, 513 F.2d 1336, 1338 (8th Cir. 1975).
The Second Circuit has not yet ruled on this question. Although the issue has been raised in several cases, the court has declined to reach the issue, finding instead that the evidence did not warrant the lesser-included offense charge. See, e.g., Knapp v. Leonardo, 46 F.3d 170, 179 (2d Cir. 1995); Campaneria v. Reid, 891 F.2d 1014, 1022 (2d Cir. 1989), cert. denied, 499 U.S. 949, 113 L. Ed. 2d 471, 111 S. Ct. 1419 (1991); Rice v. Hoke, 846 F.2d 160, 165 (2d Cir. 1988); Harris v. Scully, 779 F.2d 875, 880 (2d Cir. 1985).
It is likewise unnecessary in this case to decide whether the failure to give an instruction as a lesser-included offense presents a constitutional claim. This is because the trial court correctly ruled that the evidence did not warrant the instruction.
It is not disputed that second degree manslaughter is a lesser-included offense of second degree murder. Campaneria, supra, 891 F.2d at 1022; People v. Sullivan, 68 N.Y.2d 495, 501-02, 510 N.Y.S.2d 518, 522, 503 N.E.2d 74 (1986). The question is whether a reasonable view of the evidence would have supported a finding that the defendant committed second degree manslaughter -- recklessly
causing the death of another -- rather than second degree murder -- intentionally causing the death of another. See Rice, supra.
This does not mean, as petitioner contends, that the trial court must be able to exclude every reasonable hypothesis of recklessness. This test was rejected by the New York Court of Appeals in People v. Scarborough, 49 N.Y.2d 364, 426 N.Y.S.2d 224, 402 N.E.2d 1127 (1980). Instead, the court stated the relevant inquiry as follows:
If, on the whole record, there is not some identifiable, rational basis on which the jury could reject a portion of the prosecution's case which is indispensable to establishment of the higher crime and yet accept so much of the proof as would establish the lesser crime, then the lesser included offense may not be submitted.
Id., 49 N.Y.2d at 369-70, 426 N.Y.S.2d at 227. The test is not whether "any view" of the evidence would support a jury's determination that the defendant did in fact commit the lesser, but not the greater, offense; the test is whether a "reasonable view" of the evidence would support such a determination. Id., 49 N.Y.2d at 373, 426 N.Y.S.2d at 229. Thus, "where . . . examination of the record discloses no identifiable basis on which a jury might reasonably differentiate between segments of the proof and 'charging the lesser included offense would force the jury to resort to sheer speculation,'" no charge is required. Id., 49 N.Y.2d at 371, 426 N.Y.S.2d at 228 (quoting People v. Discala, 45 N.Y.2d 38, 43, 407 N.Y.S.2d 660, 664, 379 N.E.2d 187 (1978). "Fundamentally, the jury should not be permitted to choose between the crime charged and some lesser crime where the evidence essential to support a verdict of guilt of the lesser necessarily proves guilt of the greater crime as well." Discala, supra, 45 N.Y.2d at 43, 407 N.Y.S.2d at 664.
Under New York law, the distinction between second degree murder, for which petitioner stands convicted, and the lesser crime of second degree manslaughter is that the former requires an intent to cause death, N.Y. Penal Law § 125.25(1), while the latter concerns merely causing the death of another recklessly. N.Y. Penal Law § 125.15(1). "Thus, a prima facie case of second degree manslaughter in New York entails 'the creation of a substantial and unjustifiable risk; an awareness and disregard of the risk on the part of defendant; and a resulting death.'" Harris v. Scully, supra, 779 F.2d at 880-81 (quoting People v. Licitra, 47 N.Y.2d 554, 558, 419 N.Y.S.2d 461, 463, 393 N.E.2d 456 (1979)).
Here, there is no view of the evidence which could support a conviction of second degree manslaughter but not a conviction of second degree murder. The record established that the victim was found with a bullet wound through the back of his neck which penetrated the body from an inch away (T. 156, 162) Moreover, accomplice Kenneth Stankiewicz testified during the robbery at the gas station, he saw petitioner point a pistol at the victim and say: "This is a stick up . . ." (T. 655). Furthermore, Homer Causer's testimony established that petitioner told him that he had to "waste" the victim (T. 1462).
Viewing the evidence in the light most favorable to the petitioner together with the other significant proof developed at trial regarding the weapon, the vehicle and petitioner's motive, there is no rational basis on which the jury could have rejected the prosecution's case regarding the second degree murder and accepted the lesser crime of manslaughter in the second degree.
The cases cited by petitioner do not require a different result as they involved capital offenses. Hopper v. Evans, 456 U.S. 605, 72 L. Ed. 2d 367, 102 S. Ct. 2049 (1982); Beck v. Alabama, 447 U.S. 625, 65 L. Ed. 2d 392, 100 S. Ct. 2382 (1980). Furthermore, many of the cases cited by petitioner were decided prior to the New York Court of Appeals 1980 decision in Scarborough, supra, and relied on the old rule that "a refusal to charge a lesser-included crime is warranted only where every reasonable hypothesis but guilt of the higher crime is excluded." People v. Henderson, 41 N.Y.2d 233, 236, 391 N.Y.S.2d 563, 359 N.E.2d 1357 (1976); People v. Shuman, 37 N.Y.2d 302, 372 N.Y.S.2d 60, 333 N.E.2d 363 (1975).
In any event, under the standards applied in the federal habeas cases cited above, the trial court's refusal to charge the jury on manslaughter in the second degree does not amount to so fundamental a defect as to cause "a complete miscarriage of justice." Tata, supra, 917 F.2d at 671. As discussed above, the jury was given an alternative to finding petitioner guilty of second-degree murder. Furthermore, this Court should refrain from issuing a ruling which would have the effect of vacating the highest state court's approval of the procedures followed in the trial of petitioner's case.
Accordingly, it was not a denial of due process for the trial judge to refuse to instruct the jury on second degree manslaughter.
2. Alibi Charge
Petitioner claims that the trial judge's instructions on his alibi defense unconstitutionally shifted the burden of proof to him on this issue and thus denied him due process.
The law in New York is clear:
An alibi is not an affirmative or exculpatory defense which the defendant has the burden of proving . . . Any charge that leads a jury to believe or suggests that a defendant has such a burden, unconstitutionally relieves the People of their burden of proving guilt beyond a reasonable doubt . . . In order to avoid confusion and ensure that the jury understands that the People must always meet their burden of proving that the accused actually committed the crime, an alibi is treated for practical purposes the same as a statutory 'defense' under subdivision 1 of section 25.00 of the Penal Law . . . Thus, the People have the burden of disproving an alibi beyond reasonable doubt, and a Judge must unequivocally state that burden in the jury charge.
People v. Victor, 62 N.Y.2d 374, 377-78, 477 N.Y.S.2d 97, 465 N.E.2d 817 (1984).
Regardless of state practice with respect to instructions on the subject of alibi defense, the issue upon review of a decision on a federal habeas petition is not whether the state court's "instruction is undesirable, erroneous, or even 'universally condemned,'" Naughten, supra, 414 U.S. at 146, but whether "the ailing instruction by itself so infected the trial that the resulting conviction violates due process." Id. at 147.
In Wright v. Smith, 569 F.2d 1188 (2d Cir. 1978), the court acknowledged that certain portions of the alibi charge might have implicated a burden shift and that such implication could have been avoided by inserting passages regarding the People's burden of proof. Nevertheless, the court held that viewing the charge as a whole, "the flaws fell far short of plain error and did not reach a constitutional level warranting issuance of a writ of habeas corpus." Id. at 1194.
In this case, as in Wright, while certain portions of the trial judge's instructions might have implicated shifting of the burden of proof, the alibi charge in its entirety did not violate defendant's due process rights. After beginning the alibi charge, the court clearly advised the jury as to the burden of proof: "You have already been instructed that it is up to the People to prove the defendant's guilt beyond a reasonable doubt and this includes all elements of the crime, including his presence at a stated place and his committing or participating in certain acts at the place at a given time." (T. 2202) (emphasis added).
Accordingly, petitioner's due process claim on this ground must fail.
3. Sandstrom Violations
In Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979), the Supreme Court held that a jury instruction that "the law presumes that a person intends the ordinary consequences of his voluntary acts" violates the defendant's due process rights because it tends to shift the burden of proof to the defendant on the issue of intent.
The petitioner claims that the jury charge on intent and felony murder unfairly shifted the burden of proof to defendant. Each charge will be addressed separately.
The trial judge's instruction on intent stated as follows: