William J. Nelson v. Charles Scully, Warden

OAKES, Circuit Judge

(dissenting):

I respectfully dissent. In ruling on Nelson’s petition for habeas corpus the district court found that the state judge’s instruction on intent “rises to a level of constitutional violation” mandating a grant of the petition. I agree.

I would state the underlying facts a little less colorfully than Judge Friendly’s opinion does, as follows. Robert Douglas died of gunshot wounds suffered on July 31, 1975. According to the State’s three principal witnesses, including the common-law wife of the deceased and two other persons who had spent the evening of the shooting on West 95th Street in Manhattan, a number of people were talking, drinking, and listening to music on West 95th Street during the hot evening hours. At one point late in the evening Nelson, who had been drinking and was described as “excited” and “high,” became involved in a loud quarrel with another man. Douglas attempted to intervene in the argument but Nelson only became more angry and abusive and suddenly drew a revolver. Douglas knocked aside Nelson’s arm, deflecting the first shot, which struck the ground. Douglas then took a step backward. Nelson fired two more shots, both of which hit Douglas in the chest. Nelson fled after the shooting and was arrested early the next morning. At trial there was no defense other than that Nelson had lacked the specific intent to kill required to commit second degree murder. The trial judge submitted the case to the jury on both a second degree murder charge and a first degree manslaughter charge, the requisite intent for manslaughter being “to cause serious physical injury,” N.Y.Penal Law § 125.20.

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. 17 underscored the defense contention that the shooting by itself was insufficient to find the intent to kill necessary to convict him of murder. His Request No. 20 stated:

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.

Moreover, Nelson’s Request No. 30 distinguished intent to inflict serious personal injury without causing death from the specific intent to kill that is an essential element of the crime of murder in the second degree.

The trial judge denied Nelson’s requests to charge relating to intent except to the extent they would be “charged in the Court’s own language.” The court principally charged as follows:

On this issue [of intent] you may wish to examine, for example, what motive there was for the shooting. What threats, if any, the defendant made 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. And the testimony of alleged witnesses to the shooting; the physical condition of the defendant. Also, there is a principle] 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 *274acts. 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. You ask yourself this question: Did William John Nelson have the specific intent to kill Robert Lee Douglas.

While trial counsel was given no opportunity such as counsel are permitted in federal court to review or comment upon the trial judge’s instructions before they were delivered to the jury, he took exception “very strongly” following delivery of the charge to the “extremely prejudicial” aerial-dynamics example in the intent instruction. Ending his colloquy on this instruction, he stated, “I submit that constitutes a direction to the jury to find the defendant guilty of murder in the second degree. I except to that,” In addition he excepted once again to the court’s refusal to give certain of his requested charges, including Request No. 20. The jury returned a verdict of guilty of murder in the second degree.

While the majority opinion does not rest on the State’s first argument — that the petitioner is barred by a procedural default from challenging the court’s charge in a habeas corpus proceeding under, e.g., Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Gruttola v. Hammock, 639 F.2d 922 (2d Cir. 1981)—I must deal with it. The State suggests that Nelson not only failed to object to the passage in the state trial court’s instructions that the district court now has found improper, but actually requested that the trial court include a virtually identical passage in the charge, viz., the first sentence of Request No. 20, “Every sane person is presumed to intend the natural and probable consequences of his acts.”

But Request No. 20 differed markedly in meaning from the judge’s actual instruction. Not only did Nelson not waive his objection to that instruction, but the denial of his Request No. 20 preserved his claim against the judge’s ultimate, different instruction under N.Y.Crim.Proc.Law § 470.-05(2),1 regardless of whether he took exception. Nelson also argues nonetheless that he did take exception, satisfying the contemporaneous-objection rule, because trial counsel fairly presented to the trial judge his objection to the court’s presumption language. In any case, he argues, he presented his objection to the instruction on appeal, and the State opposed his claim on the merits without raising a procedural bar to its consideration.

The State’s second argument, accepted by the majority, is that the instructions on intent fully comported with the requirements of due process when evaluated not in isolation but with reference to whether the jury would understand the correct rule from the charge as a whole. Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978); Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368 (1973). As did the district court, I would answer that those instructions denied Nelson due process by allowing the jury to rely on a presumption of his intent instead of requiring proof beyond a reasonable doubt, in my view this not only violated the rule of Sandstrom v. Montana but also infected the whole trial. While the case is a close one, I am persuaded that the judgment of the district court should be upheld.

I would first reject the State’s argument that the defense invited the charge as given because the first sentence of Request No. 20 referred to the presumption that one intends the natural and probable consequences of one’s acts. Request No. 20 read as a whole attempts to show that any such presumption is not applicable in this case because “no inference of [specific] intent [to *275kill] may be drawn from the mere proof of the act of shooting the deceased.”2 The requested instruction plainly was meant to take Nelson’s case out of the presumption, not to put his case within it.

I would find that Nelson’s petition is not barred by procedural default, because Nelson’s trial counsel excepted to the “specific intent” charge. It is true that the exception3 refers initially to the aerial-dynamics example, which itself was in my view not innocuous but inflammatory. The State argues that the judge might have understood defense counsel to object only to the example and to acquiesce in the presumption language in the instruction’s preceding sentence. I disagree, however, as I believe that counsel’s objection that the court’s charge “direct[ed] .. . the jury to find the defendant guilty of murder in the second degree” can fairly be read as going to the entire charge on intent: it was the combination of the example, the sentence about presumed intent preceding it, and the omission of requested language favorable to the defense, that amounted to a “direction” to the jury. When viewed together with petitioner’s renewal of Requests Nos. 20 and 30 — which sought a charge on intent that departed from the trial court’s presumption language — petitioner’s objection was properly found by the district court to go to the charge taken as a whole.

The procedural-default cases including Wainwright v. Sykes; Gruttola v. Hammock; People v. Thomas, 50 N.Y.2d 467, 407 N.E.2d 430, 429 N.Y.S.2d 584 (1980), are inapposite because in those cases no objection was made at trial. And the State has not shown that petitioner’s objection at trial was insufficient under New York law. People v. Ross, 21 N.Y.2d 258, 234 N.E.2d 427, 287 N.Y.S.2d 376 (1967), has no bearing here, as it held that a general objection to testimony regarding “conversations” could not preserve a specific objection to the Government’s failure to provide prior notice to the defense of any admissions to be offered, because this specific objection, had it been stated, could have been obviated by a hearing on the voluntariness of those admissions. Here, by contrast, the legal substance of the objection following the charge was quite specific. Moreover, the denial of Nelson’s requested charges was itself enough under New York law, even without an actual exception, to “have protested the court’s ultimate disposition of the matter or failure to rule or instruct accordingly sufficiently to raise a question of law.” N.Y.Crim.Proc.Law § 470.05(2).

Even if I were wrong in the foregoing, Washington v. Harris, 650 F.2d 447, 451-52 (2d Cir. 1981), answers the State’s contemporaneous-objection argument. In Wash*276ington v. Harris the defendant had failed to object at trial to a charge containing the phrase “you may infer that a person intends that which is the natural and necessary and probable consequences of the acts performed by him,” but he did raise the issue in the Appellate Division. The State’s brief in the Appellate Division addressed the merits of Washington’s objection, but did not raise a procedural bar. The Appellate Division affirmed without opinion. Following Callahan v. LeFevre, 605 F.2d 70, 73-74 n.6 (2d Cir. 1979), a case with a similar procedural history, the court held that Washington could challenge the instruction in a federal habeas proceeding, notwithstanding the State’s claim there, for the first time, that such a challenge was barred under Wainwright v. Sykes. The Appellate Division’s affirmance without opinion, the Washington court found, indicated that rather than applying a contemporaneous-objection requirement to bar the claim, it had passed on the merits. 650 F.2d at 452.

I believe a fair reading of the State’s brief before the Appellate Division leads to the same result in this case. Here the State’s brief from pages 50 to 53 addressed the merits of the claim. The only conceivable claim of procedural bar made by the State to the Appellate Division, mentioned by the majority, was at page 54 of its brief, in which the State argued as set out in the margin.4 I do not believe that this language alone permits us to infer that the Appellate Division affirmed on the basis of a procedural default. Nor do I draw such an inference from the fact that the Appellate Division’s affirmance was without opinion, for in both Washington v. Harris and Callahan v. LeFevre the Appellate Division affirmed without opinion although confronted with the same serious constitutional claim.

Reaching the merits, then, while the question is a close one, I agree with the district judge that the instruction given by Justice Roberts was not merely “permissive” as the State claims. The instruction, “there is a principle] of law .. ., and that is, a person is presumed to intend the natural and probable consequences of his acts,” charged the jury on the issue of intent in virtually the same language as in Sandstrom v. Montana. In Sandstrom the jury was charged that “[t]he law presumes that a person intends the ordinary consequences of his voluntary acts.” 442 U.S. at 513, 99 S.Ct. at 2453. The Supreme Court found that a reasonable jury could well have interpreted that instruction as either a conclusive presumption on the issue of intent or as a mandatory presumption that unconstitutionally shifted to the defendant the burden of proving that he lacked the intent to kill required to find deliberate homicide. Id. at 517-19, 99 S.Ct. at 2455-2457. This violated the requirement of In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970), that the State carry the burden of proving beyond a reasonable doubt all of the essential elements of the crime charged. Sandstrom, 442 U.S. at 521, 99 S.Ct. at 2457-58.

The jury instructions in this case, as in Sandstrom, differed from instructions describing what other courts have found to be permissive inferences, which, unlike mandatory presumptions, are generally acceptable in jury instructions. See Ulster County Court v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777 (1979). The instructions at issue in, e.g., United States v. Tecumseh, 630 F.2d 749, 752-54 (10th Cir.) (“you may find, from the use of such weapon, in the absence of explanatory or mitigating circumstances, the existence of the malice which is an essential element of the offense”), cert. denied, 449 U.S. 961, 101 S.Ct. 376, 66 L.Ed.2d 229 (1980), and United States v. Davis, 608 F.2d 698, 699 (6th Cir. 1979) (“It is ordinarily reasonable to infer *277that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted”), cert. denied 445 U.S. 918, 100 S.Ct. 1280, 63 L.Ed.2d 602 (1980), cases on which the State relies, neither stated that the law presumes one fact from another, nor discouraged the jury’s consideration of other evidence.

By contrast, if the jury applied the presumption charged by the court in this case, it could well have understood the undisputed fact that Nelson shot and killed Douglas to have conclusively established the only disputed fact — that Nelson had the intent to kill. See Sandstrom, 442 U.S. at 517, 99 S.Ct. at 2455. The jury then would have been excused from considering all evidence in this case suggesting that Nelson lacked that intent and that he intended only to cause serious bodily harm to Douglas, including evidence that the killing followed a series of heated arguments and that Nelson had been drinking and possibly was “high.” Alternatively, in light of the earlier portion of the intent charge, which suggested other circumstances from which to determine Nelson’s intent, and in light of the trial judge’s various admonitions to consider all the evidence before reaching a verdict, the jury could well have interpreted the charge below to mandate a presumption of intent rebuttable by other evidence. See id. at 517-18, 99 S.Ct. at 2455-2456. Either interpretation would have deprived defendant of due process, the first by relieving the State of its obligation to prove the essential element of intent beyond a reasonable doubt, see id. at 523, 99 S.Ct. at 2458-59, the second by shifting to the defendant the burden of proof on the issue of intent, see id. at 524, 99 S.Ct. at 2459. I therefore would find the charge unconstitutional under Sandstrom.

The majority asserts, however, that the force of Justice Roberts’s improper charge was adequately mitigated, and that the conclusive or rebuttable presumption it described was transformed into a permissive inference, because the judge introduced the inappropriate legal principle as one of which the jury “may wish to rely” rather than one on which it must rely. In my view, a reasonable jury would have gained no such understanding from this polite prefatory remark. It no more invited the jury to make a considered choice whether to employ the burden-shifting presumption than the familiar preface, “you may be interested to learn,” invites a jury to ignore what follows, or the introduction, “may it please the court,” suggests to us that appellate counsel is unconcerned whether we favor his argument.

Examining the trial judge’s language in context, and considering how it would have sounded to a jury, I believe rather that a reasonable juror may well have felt required to employ the conclusive or rebut-table presumption. The prosecutor first suggested the presumption to the jury by using in his summation an example similar to the one later given by the trial judge.5 The judge then restated the presumption, thereby adding his authority to that of the prosecutor. The judge further reinforced the supposed validity and appropriateness of the presumption by denominating it a “principle] of law,” with the attendant weight and authority to be accorded a fundamental legal truth. Finally, the importance of the presumption was augmented by the aerial-dynamics example, which made the issue concrete for the jury and ridiculed the possibility of any defense, and therefore might well have impressed the jury as deeply as any of the preceding language about intent. Accordingly, I would reject the State’s suggestion that the judge’s prefatory phrase sufficiently mitigated the improper instruction that followed.

Even if the trial judge had made clear by its “you may wish to rely” language that the jury was entitled to choose not to employ the conclusive or rebuttable presump*278tion and instead to determine Nelson’s level of intent based on all the facts of the case, I believe the instruction would still have been impermissible. A jury may not, consistently with In re Winship, be invited to shift to the defendant the burden of proof on an essential element of the crime charged.

I do not find it significant that Sandstrom was decided after the trial in this case. Sandstrom followed a considerable line of cases, including Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), and Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), that held unconstitutional instructions evading the requirement set forth in Win-ship that the State prove every element of a criminal offense beyond a reasonable doubt. In Morissette, for example, the Court, after quoting Judge Andrews in People v. Flack, 125 N.Y. 324, 334, 26 N.E. 267, 270 (1891), stated:

[T]he trial court may not withdraw or prejudge the issue [of intent] by instruction that the law raises a presumption of intent from an act. It often is tempting to cast in terms of a “presumption” a conclusion which a court thinks probable from given facts. . . .
We think presumptive intent has no place in this case. A conclusive presumption which testimony could not overthrow would effectively eliminate intent as an ingredient of the offense. A presumption which would permit but not require the jury to assume intent from an isolated fact would prejudge a conclusion which the jury should reach of its own volition. A presumption which would permit the jury to make an assumption which all the evidence considered together does not logically establish would give to a proven fact an artificial and fictional effect. In either case, this presumption would conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime. Such incriminating presumptions are not to be improvised by the judiciary. . . .

342 U.S. at 274-75, 72 S.Ct. at 255-256 (footnote omitted). Thus Sandstrom was not stating new law. Indeed, “[f]or more than a century, the charge condemned in Sandstrom has been held by [the New York Court of Appeals] to be erroneous as a matter of State law. .. . ” People v. Thomas, 50 N.Y.2d at 473, 407 N.E.2d at 432, 429 N.Y.S.2d at 587, cited in Taylor v. Harris, 640 F.2d 1, 2 (2d Cir. 1981).

I also do not find a different outcome to be suggested by Ulster County Court v. Allen, which was decided shortly before Sandstrom and was certainly not overruled by it. See Sandstrom, 442 U.S. at 514, 99 S.Ct. at 2454. In Ulster County Court, which involved a jury instruction on possession rather than on intent as in this case and Sandstrom, the Court distinguished the “entirely permissive inference or presumption, which allows — but does not require— the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and that places no burden of any kind on the defendant,” 442 U.S. at 157, 99 S.Ct. at 2224, from the “mandatory presumption” which “may affect not only the strength of the ‘no reasonable doubt’ burden but also the placement of that burden [because] it tells the trier that he or they must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the facts.” Id.

In Ulster County Court the trial judge explicitly cautioned the jury that “[t]he presumption or presumptions is [sic] effective only so long as there is no substantial evidence contradicting the conclusion flowing from the presumption, and the presumption is said to disappear when such contradictory evidence is adduced.” See 442 U.S. at 161 n.20, 99 S.Ct. at 2227 n.20. In our case, by contrast, the trial judge followed the “principle] of law” or presumption language with the rather extraordinary example of throwing somebody off a roof. The cautionary instructions the trial judge gave did not have the sweep of the cautionary instructions in Ulster County Court. Justice Roberts did instruct that “you may consider what evidence if any that would show that *279this defendant was so under the influence of an intoxicant that he was unable to form a specific mental intent to kill,” but permission to consider such evidence could not necessarily overcome the presumption 'charged a moment before. One does not have to be nursed on Wigmore to be confused by a judge speaking of a principle of law that one presumes the consequences of his acts. Although the trial judge noted at the end of his instruction on intent that the jury could convict only “[i]f after considering all of the evidence you find that the People have established the defendant’s intent ... beyond a reasonable doubt,” Sandstrom suggests that such a generalized instruction is insufficient to overcome the prejudicial effect of the challenged language in the charge. 442 U.S. at 518-19 n.7, 99 S.Ct. at 2456 n.7. Here, like the Court in Sandstrom, I would “not reject the possibility that some jurors may have interpreted the challenged instruction as permissive, or, if mandatory, as requiring only that the defendant come forward with ‘some’ evidence in rebuttal. However, the fact that a reasonable juror could have given the presumption conclusive or persuasion-shifting effect means that we cannot discount the possibility that [Nelson’s] jurors actually did proceed upon one or the other of these latter interpretations.” Id. at 519, 99 S.Ct. at 2456-57.

Having concluded that there was no procedural bar to this constitutional challenge to the presumption language of the trial judge’s intent charge, and that the charge violated due process, I would not need to consider whether giving the aerial-dynamics example, to which trial counsel unquestionably objected, was itself a conclusive or burden-shifting presumption violating In re Winship and Sandstrom. But I have serious doubts about whether the illustration was constitutionally permissible. I also have doubts, which need not be resolved here, about whether even a permissive inference would have been appropriately charged here. Ulster County Court, 442 U.S. at 165, 99 S.Ct. at 2228, requires a “ ‘rational connection’ ” between the basic facts proved by the prosecution and the ultimate fact presumed, so that the latter is “ ‘more likely than not to flow from’ ” the former. Intent was the crucial, indeed the only, issue in this case and hence I believe we must be wary of allowing the judge to emphasize to the jury, even as a permissive inference, that “a person ... intendfs] the natural and probable consequences of his acts.” An intent to cause bodily harm? Yes. An intent to kill? Not necessarily. See People v. Flack.

Finally, an erroneous jury charge is susceptible to the harmless-error rule, see Sandstrom, 442 U.S. at 526-27, 99 S.Ct. at 2460-61; Washington v. Harris, 650 F.2d at 453-54. The State here, however, has failed to “prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). See United States v. Robinson, 545, F.2d 301, 306 (2d Cir. 1976).

For reasons stated, I would affirm.

. That statute, after setting forth New York’s contemporaneous objection rule, states that

a party who without success has either expressly or impliedly sought or requested a particular ruling or instruction, is deemed to have thereby protested the court’s ultimate disposition of the matter or failure to rule or instruct accordingly sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered.

. It has been suggested that the second sentence in Request No. 20, stating that no inference of specific intent to kill can be drawn “from the mere proof of the act of shooting the deceased,” was erroneous in light of the evidence that Nelson fired three shots at pointblank range. But the State conceded on page 51 of its brief before the Appellate division that the language proposed in Request No. 20 was “a correct statement of law,” even though it contended that an instruction on intent need not contain that language.

. MR. JACOBSON: I except very strongly to the Court giving an example after the Court said that a person is presumed to intend the natural consequence of his acts.

Immediately after that, the Court gave an example which I consider extremely prejudicial to the defendant.

THE COURT: If a person throws someone off the roof?

MR. JACOBSON: Yes.

THE COURT: I intended to use, I might say, the one I usually use in my charge, but I used it, of course, because the district attorney used it in his summation. I didn’t think it would be fair to highlight it.

The one I intended to use was the person cannot hit someone over the head with a hammer and be heard to say, I was merely swatting at a fly.

MR. JACOBSON: I submit that constitutes a direction to-the jury to find the defendant guilty of murder in the second degree. I except to that.

THE COURT: That is it?

MR. JACOBSON: Yes.

THE COURT: Any requests?

MR. JACOBSON: I renew my requests with these following numbers paragraphed in my request to charge. 1 think I should reiterate it now, briefly.

Paragraph 20, 21, 28, 29, 30 and 31.

THE COURT: Your request is denied.

. Moreover, the offending charge in Sandstrom had been given at the prosecution’s request, and the defendant took strong exception. 442 U.S. at 512-514, 99 S.Ct. at 2453-2454, 61 L.Ed.2d at 44. Here, defendant in fact requested that the court charge, “Every sane person is presumed to intend the natural and probable consequences of his acts.” Having requested that language, which might well have been objectionable under Sandstrom, defendant cannot be heard to complain that the charge actually given here constitutes error under Sandstrom.

. The trial judge had intended to use the illustration, “the person cannot hit someone over the head with a hammer and be heard to say, I was merely swatting at a fly,” but he “didn’t think it would be fair to highlight it” after the prosecutor had already used it in summation; as a result, he substituted the aerial dynamics example.