William J. Nelson v. Charles Scully, Warden

672 F.2d 266, 1982 U.S. App. LEXIS 22240

• Court: Court of Appeals for the Second Circuit
• Decided: January 28, 1982
• Docket: 254, Docket 81-2208
• Status: Published

Opinions

FRIENDLY, Circuit Judge:

The State of New York appeals from a judgment of the United States District Court for the Southern District of New York, Thomas A. Griesa, Judge, granting a petition for a writ of habeas corpus by William John Nelson. Nelson was convicted of murder in the second degree, N.Y. Penal Law § 125.25, in the New York. State Supreme Court on November 3,1976, before Justice Burton Roberts and a jury. He was sentenced to an indeterminate prison term of fifteen years to life.¹ For reasons not appearing in the record, Nelson’s appeal to the Appellate Division, First Department, was not decided until October 16, 1979, when that court affirmed without opinion, 72 A.D.2d 671, 421 N.Y.S.2d 956. On April 4, 1980, Judge Jones of the New York Court of Appeals denied leave to appeal. 49 N.Y.2d 1005, 429 N.Y.S.2d 1035, 406 N.E.2d 1089.

One of Nelson’s claims in the Appellate Division was that an instruction given by the trial judge containing language concerning a person being’presumed to intend the natural and probable consequences of his acts operated to deprive Nelson of his constitutional rights in violation of the Supreme Court’s decision, which had come down after the trial, in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). On this basis and others, Nelson filed a petition for habeas corpus in the District Court for the Southern District of New York. Dismissing all the other grounds asserted by Nelson, Judge Griesa, although noting that the state trial judge had included in his charge “a lengthy discussion of intent”, granted the writ because the charge had included the following:

Also, there is a principal [sic] of law upon which you may wish to rely in determining a person’s intent, and that is, a person is presumed to intend the natural and probable consequences of his acts. A person cannot, for example, throw someone off the roof of an apartment building and then say he was merely conducting an experiment in aerial dynamics.

Without undertaking an analysis of the rest of the charge, as required by Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368 (1973), the judge concluded:

Thus the jury was permitted to substitute a presumption of the kind described for its own finding, based on proof beyond a reasonable doubt, that the necessary intent existed for a second degree murder conviction — i.e., a specific intent to cause the death of another person.

Subsequently the judge denied a motion by the District Attorney for New York County for reconsideration on the basis that procedural grounds prohibited Nelson’s being heard in federal habeas with respect to the instruction which had been held to violate his constitutional rights. The State has appealed. We reverse.

The facts leading to Nelson’s conviction were as follows:

On the night of July 31, 1975, a group of some 20 people gathered as was customary on the sidewalk near the front of the Pennington Hotel at 316 West 95th Street in Manhattan and passed the time talking, drinking² and listening to music. Dennis Bryant, a resident of the hotel, and a friend named “Teddy” fell into a shoving match over possession of a chair in which Bryant had been sitting. That dispute soon ended and Bryant, Teddy and several others made a trip to a nearby liquor store and brought some wine back. Nelson, also a resident of the hotel, joined the crowd only after this. He spoke to Bryant about the latter’s quarrel with Teddy, but Bryant told him that the fight was over and should be forgotten. However, Nelson got into an argument about the fight with “Frenchy”, a hotel employee, which became loud. Around 11:30 P.M. Alma Cartar and Douglas arrived next door to the hotel and sat down to drink some beer. Douglas, who was acquainted with Nelson, stepped between Nelson and Frenchy, and asked them to “be cool” and not to argue “right in front of the building.”

Nelson’s response was to tell Douglas “it’s none of your fucking business”. While trying to keep Nelson and Frenchy apart, Douglas touched Nelson, who responded “I’m tired you fuckin’ niggers fuckin’ with me” ³ and “If you don’t get your ass off me I am going to bust a cap in your ass.” Douglas answered, “Well, man, if you’re going to do that, you go ahead and do that.”

Nelson responded by drawing a revolver from his waist. Douglas was close enough to knock aside Nelson’s arm so that Nelson’s first shot struck the ground. In an effort to protect himself, Douglas took a step backward, whereupon Nelson leveled his revolver at Douglas’ chest, and fired twice more. Douglas fell to the ground, unconscious and gasping for breath with two bullet wounds in his chest. He died shortly thereafter.

The trial judge submitted the case to the jury on both a second degree murder charge, which requires an intent to kill, and a first degree manslaughter charge, for which the requisite intent is to cause serious physical injury, N.Y.Penal Laws §§ 125.25 and 125.20. His charge spreads over 62 typewritten pages. He fully explained that the People had the burden of proving Nelson’s guilt beyond a reasonable doubt. “It never shifts at any time to the defendant at all in any aspect” of the case. “The defendant is never required, no defendant is ever required to disprove anything or to prove anything,” since he “comes into this courtroom shielded by one of the oldest presumptions which we know in our law, the presumption of innocence... . ” This presumption “follows the defendant to the jury room. It is with the defendant until the jury is satisfied beyond a reasonable doubt to the contrary, until the jury excludes every other reasonable hypothesis but that of guilt, and until actually a jury renders a verdict of guilty into court.” It would be hard to think of an instruction which expounded more fully the presumption of innocence and the right of a criminal defendant to have the state compelled to establish every element of the crime beyond a reasonable doubt.

Some pages later the judge turned to the charge of murder in the second degree. After reading the relevant portion of the indictment, he explained the two elements of the crime, causing the death of a person and having the intent to do so. Taking up the second element he explained that “before a person can be convicted of the crime of murder in the second degree you must be convinced beyond a reasonable doubt that he specifically intended to cause the death of Robert Lee Douglas, as opposed to the intent merely to injure him.” He added that “Under the definition contained in the Penal Law, a person acts intentionally with respect to a result when his conscious objective is to cause that result and when his act or acts result from that conscious intent.” After dwelling on the difficulty in determining intent, which is “the secret, silent operation of someone’s mind,” he said that this “can usually be proven only by the facts and circumstances leading up to and surrounding the acts constituting the crime. You have the right, therefore, to determine a person’s intent inferentially from what he did; from what he allegedly said, and from all the evidence and testimony you have concerning the facts and circumstances constituting this case.” (Emphasis added). The judge explained that these facts and circumstances included motive, threats made by the defendant to the victim, the number of shots fired, the location of the wounds on the victim’s body, the distance from which the gun was fired, the testimony of the alleged witnesses to the shooting, and the physical condition of the defendant. Then followed the passage which we have quoted above.

The judge then went on to the subject of intoxication,⁴ and said that this as such was not a defense to a criminal charge, but “you may consider what evidence if any that would show that this defendant was so under the influence of an intoxicant that he was unable to form a specific mental intent to kill Robert Lee Douglas. In this respect, you should consider the testimony concerning the defendant’s alleged acts, his conduct, and his words before, during and after he allegedly shot Robert Lee Douglas.” The judge also stated, “you the jury may, if you find from the testimony that [a] motive existed, consider it along with all the other factors in determining whether or not the defendant intended to kill Mr. Douglas beyond a reasonable doubt.” He instructed that the jury was not to consider Nelson’s flight “in determining his intent when and if he shot the victim, Robert Lee Douglas.” He told the jury that they need not find that the intent to kill existed for any specific period before the firing of the gun, that if “the intent existed for a fraction of a second before the shots were fired, it would suffice. But you must be convinced beyond a reasonable doubt that the intent to kill existed before you can convict a person of the crime of murder. If after considering all of the evidence you find that the People have established the defendant’s intent to cause the death of Robert Lee Douglas beyond a reasonable doubt, you must go on to consider the second element of the crime of murder in the second degree. If you find that the People have not sustained their burden with respect to the element of intent, then you must find the defendant not guilty of the crime of murder in the second degree.”

The State’s contention that Nelson is not procedurally entitled to invoke federal habeas because of the quoted instructions is a substantial one. Before the court’s charge to the jury Nelson submitted thirty-one requests to charge, including several relating to the issue of intent. His request No. 20 was:

Every sane person is presumed to intend the natural and probable consequences of his acts. However, a specific intent to kill is required as an element of the crime of Murder in the Second Degree, and no inference of such intent may be drawn from the mere proof of the act of shooting the deceased.

The judge denied these requests except to the extent they would be “charged in the Court’s own language.” After delivery of the charge, defendant’s counsel took no objection to the first of the sentences quoted above, namely, that “there is a principal [sic] of law upon which you may wish to rely in determining a person’s intent, and that is, a person is presumed to intend the natural and probable consequences of his acts”, but objected unsuccessfully to the illustration that followed. When Nelson raised the later decided Sandstrom case in his brief in the Appellate Division, the State, in addition to answering on the merits, made the point that he could not be heard to rely on Sandstrom since he not only had not excepted to the presumption charged as Sandstrom had done, but requested it. The case thus falls, the State argues, within Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1976), and Gruttola v. Hammock, 639 F.2d 922 (2 Cir. 1981), holding that federal habeas generally will not lie when the petitioner has failed to make a timely objection required by state law.

Nelson responds that his trial counsel’s objection, although applying literally only to the second sentence, should have been understood as going also to the first; that, apart from this, the denial of his requested charge was sufficient under N.Y.Crim.Proc.Law § 470.05(2); and that in any event it was enough that he raised the point before the Appellate Division, citing in this connection Washington v. Harris, 650 F.2d (2 Cir. 1981), and Callahan v. LeFevre, 605 F.2d 70, 73-74, n.6 (2 Cir. 1979). It can be argued, in answer to the first point, that there was no reason for the judge to consider an objection to the second sentence as constituting also an objection to the first — indeed that the objection indicated acquiescence in the first sentence; that the request to charge cannot be deemed a sufficient objection since the last sentence of the request was wrong under the facts of this case; and that there is no reason to believe that the Appellate Division in fact considered the Sandstrom point — thus making Gruttola rather than Washington or Callahan the pertinent decision of this court. However, under our view with respect to the merits we find it unnecessary to pass upon the State’s procedural objection and leave this undetermined.

The trial judge in Sandstrom had charged baldly:

The law presumes that a person intends the ordinary consequences of his voluntary acts.

The effect of this upon “a reasonable juror”, 442 U.S. at 515, 99 S.Ct. at 2454, would be quite different from Justice Roberts’ telling the jury of a principle of law “upon which you may wish to rely.” To be sure, a trained lawyer possessing the analytical skill of our dissenting brother could parse the instruction as saying that the jury was free to rely or not to rely on the principle of law mentioned by the judge but that if it made the former choice, it would then be compelled to find that Nelson had the necessary intent unless he produced evidence to overcome the presumption. But this is attributing altogether too much legal acumen to the ordinary juror — who had not imbibed Wigmore’s Evidence with his mother’s milk. Evidently it made no such impression on Nelson’s counsel who had himself proposed the presumption language and objected only to the example. This was so extreme that its effect could only have been to lead the jury to choose not to rely on the principle of law in this case. And the judge immediately dispelled any improper effect of the presumption charge by peremptorily directing the jury:

You ask yourself this question: Did William John Nelson have the specific intent to kill Robert Lee Douglas.

Even if we were to look solely at the portion of the charge challenged by Nelson, the only conclusion a reasonable juror could draw was that he must determine from all the evidence, with leave to use the common sense notion that people do indeed intend the natural and probable consequences of their acts, whether or not, in firing two bullets at Douglas’ chest at point blank range, Nelson had the specific intent to kill. In other words, even if we were to look only at this one passage in the charge, we might well conclude that the case is attracted by Ulster County Court v. Allen, 442 U.S. 140, 157-63, 99 S.Ct. 2213, 2224-28, 60 L.Ed.2d 777 (1979), decided a fortnight before Sandstrom and accepted by it, 442 U.S. at 514, 99 S.Ct. at 2454, rather than by Sandstrom itself.

However, we need not and do not go so far. Cupp v. Naughten, supra, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368, dealt with a charge that “Every witness is presumed to speak the truth”, a presumption which could be “overcome” in certain ways, some of which demanded the production of evidence by the defense. Id. at 142, 94 S.Ct. at 398. The Supreme Court there reversed the Ninth Circuit’s grant of habeas corpus to a state prisoner on the ground that the effect of the instruction was to place the burden on the defendant to prove his innocence, 476 F.2d 845 (9th Cir. 1972), reh’g en banc denied by an equally divided court, 476 F.2d 845 (9th Cir. 1973). The Court began its analysis by stating, 414 U.S. at 146-47, 94 S.Ct. at 400:

In determining the effect of this instruction on the validity of respondent’s conviction, we accept at the outset the well-established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge. Boyd v. United States, 271 U.S. 104, 107, 46 S.Ct. 442, 443, 70 L.Ed. 857 (1926).⁵

After referring to the Ninth Circuit’s conclusion that the effect of the instruction was to place the burden on defendant to prove his innocence, the Court stated that “the trial court gave, not once but twice, explicit instructions affirming the presumption of innocence and declaring the obligation of the State to prove guilt beyond a reasonable doubt.” Id., 414 U.S. at 147, 94 S.Ct. at 400. Noting the argument of the Court of Appeals that although such instructions had been given, “there was no instruction so specifically directed ... to have effected a cure,” 476 F.2d at 847, the Court thought, 414 U.S. at 147, 94 S.Ct. at 400, “this analysis puts the cart before the horse; the question is not whether the trial court failed to isolate and cure a particular ailing instruction, but father whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.”

In sharp contrast to the sparse boilerplate instructions on the presumption of innocence and the burden of proof beyond a reasonable doubt given in Sandstrom (U.S. App. 34-35), which the Supreme Court held insufficient to cure the presumption charge there given, supra, 442 U.S. at 518-19 n.7, 99 S.Ct. at 2456 n.7, the instructions given on those subjects in this case, which we have already summarized, were pointed, emphatic, repeated and detailed. The judge thoroughly explained the distinction between the intent required to sustain a charge of murder in the second degree, as distinguished from that required to support a charge of manslaughter. He stressed the State’s obligation to prove beyond a reasonable doubt a specific intent to kill, a “conscious objective: to cause death.” He listed facts and circumstances which the jury might “inferentially” consider in determining Nelson’s intent, and told the jury that it “should” consider these circumstances. Even the offending passage ended, as we have noted, with a direction to the jury to ask itself “this question: Did William John Nelson have the specific intent to kill Robert Lee Douglas.” After instructing further with respect to intoxication and the irrelevance of Nelson’s flight, the judge again emphasized that the jury must be convinced beyond a reasonable doubt that Nelson had the intent to kill, and that such a conclusion could be reached only “after considering all the evidence.” In this case, as distinguished from Sandstrom, supra, 442 U.S. at 518-19 n.7, 99 S.Ct. at 2456 n.7, there was simply no possibility that after all this hammering by the judge, “[t]he jury could have interpreted the two sets of instructions as indicating that the presumption was a means by which proof beyond a reasonable doubt as to intent could be satisfied.” We thus cannot conclude that the two offending sentences, taking about thirty seconds to deliver, “so infected the entire trial that the resulting conviction violates due process.” Cupp v. Naughten, supra, 414 U.S. at 147, 94 S.Ct. at 400. See Belton v. United States, 382 F.2d 150, 154-55 (D.C.Cir.1967).

Courts of appeals confronted by the many appeals and habeas corpus cases that have emanated from pre-Sandstrom trials have not dealt with the problem as the district court did here. Rather they made careful inquiry, as required by Cupp v. Naughten, supra, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368, to determine whether, taking the entire charge into consideration, there was any significant possibility that harm was done. See United States v. Spiegel, 604 F.2d 961, 968-70 (5 Cir. 1979); McInerney v. Berman, 621 F.2d 20, 22-24 (1 Cir.), cert. denied, 449 U.S. 867, 101 S.Ct. 201, 66 L.Ed.2d 85 (1980); United States v. Frady, 636 F.2d 506, 509 (D.C.Cir.1980); Carter v. Jago, 637 F.2d 449, 455 n.5 (6 Cir. 1980); Jacks v. Duckworth, 651 F.2d 480, 485-87 (7 Cir. 1981). The New York Court of Appeals also has followed the same sensible course, distinguishing Sandstrom and its own similar decision in People v. Getch, 50 N.Y.2d , 429 N.Y.S.2d 579, 407 N.E.2d 425 (1980), in a case where although the judge had charged the presumption, he had made it “clear throughout that the jury had a choice and that it was for them to decide from all the circumstances in the case whether the People had met their burden of proving that the defendant actually intended the result.” People v. Green, 50 N.Y.2d 891, 893, 430 N.Y.S.2d 267, 268, 408 N.E.2d 675, 676 (1980). We hold that to be the situation here.⁶

The judgment is reversed with instructions to deny the petition.

1 . This was Nelson’s second conviction for homicide. In 1968 he had been convicted of manslaughter and received a sentence of zero to eight years (Trial Transcript 74).

2 . What and in what quantity the record does not disclose. In any event this drinking is immaterial since Nelson was not part of the crowd.

3 . Both Nelson and Douglas were black.

4 . Despite repeated pressure from Nelson’s counsel, the witnesses to the shooting resisted the suggestion that Nelson was intoxicated at the time he killed Douglas. Witness Godfrey Spell stated, “I don’t know if he was drinking or not,” Trial Transcript at 579, and “No, I didn’t see him drinking,” id. at 580. Later, in response to a question from the court, Spell testified, “No, I wouldn’t say he was high,” id. at 586, and gave a similar response regarding the possibility that the defendant was intoxicated, id. at 585.

Witness Dennis Bryant was asked, “Did [Nelson] appear to be intoxicated, perhaps?”, and replied, “I wouldn’t know about all that. But he just was excited, excited enough to shoot the guy." Id. at 417. Nelson’s counsel returned to the point shortly thereafter, and again Bryant responded, “I really don’t know man. I heard [Nelson threaten Douglas]. I don’t know if he was high or not.” Id. at 420.

The only evidence which might support the inference that the defendant was “high” is at page 422 of the Trial Transcript, where, after his making the statements just quoted, Bryant’s attention was called to notes of an interview between him and a Detective Henry shortly after the shooting. This colloquy ended as follows:

THE COURT: Does that refresh your recollection that you said that [the defendant was high] to anybody?

THE WITNESS: No.

THE COURT: Does it refresh your recollection that you felt the defendant was high?

THE WITNESS: It’s possible.

THE COURT: It’s possible?

THE WITNESS: I felt he was high.

Q. You did feel he was high?

A. I felt that way, but I never stated he was high.

THE COURT: You didn’t know whether he was high, you just felt that?

THE WITNESS: Yes, because of the way he acted.

THE COURT: The way he acted, hollering and shooting the gun?

THE WITNESS: Yes.

Trial Transcript at 422.

Nelson did not testify.

5 . Justice Van Devanter’s remark in Boyd that an instruction erroneous if it stood alone, must “be taken in connection with what had preceded it and also with what followed”, is exceedingly pertinent here.

6 . In light of our holding, we have no occasion to consider whether Sandstrom should be applied so as to permit collateral attack on convictions at trials preceding it. See United States v. Spiegel, supra, 604 F.2d at 969.