In 2003, a New York jury convicted petitioner-appellee Kevin Langston of felony assault and criminal possession of a weapon in the second degree. 1 New York’s felony assault statute criminalizes actions taken “[i]n the course of and in furtherance of the commission ... of a felony” that cause “serious physical injury” to a non-participant. N.Y. Penal Law § 120.10(4). At trial, the prosecution demonstrated that one of Langston’s accomplices shot and seriously injured NYPD Detective Arthur Marquez during what appears to have been an attempted robbery. Langston was not charged with committing the assault in furtherance of the felony of attempted robbery. Instead, the jury was instructed that to convict Langston of felony assault, it had to find that Langston committed the assault “in the course of and in furtherance of’ the felony of criminal possession of a weapon, a finding the jury implicitly made by finding Langston guilty of felony assault.
Langston, after unsuccessfully challenging the sufficiency of the evidence against him on direct appeal,
see People v. Langston,
BACKGROUND 2
On May 8, 2002, a confidential informant introduced John Robert, an undercover of
When the officers arrived at Junior’s, Langston insisted that the sale take place at a high-rise housing project a few miles away and directed them to 301 Sutter Avenue, the building in which he grew up. Once there, Moultrie, Robert, and Marquez waited outside while Langston entered the building, purportedly to initiate contact with the sellers. Langston testified that he looked for, but was unable to find, his friend E-Town, who had previously agreed to sell Robert and Marquez the weapons and to compensate Langston for his efforts. Langston did, however, make contact with Gamel Cherry, an acquaintance who lived in the building. 3 Langston testified that Cherry agreed to provide the weapons necessary to complete the sale.
After making arrangements with Cherry, Langston returned outside, informed Robert and Marquez that the sellers needed the money up-front, and offered to act as courier for the transaction. Robert rejected this proposal, but agreed to “do the deal” inside the building. Robert, Marquez, and Moultrie then followed Langston into 301 Sutter Avenue where Langston greeted a few people, including Ralph Wyman, who were milling about the lobby. After Robert again refused to prepay, Langston convinced the officers to make their purchase in the sixth floor hallway. On their way up, the elevator stopped on the fifth floor, where Skyler Brownlee was waiting. When the elevator door opened, Brownlee acknowledged Langston, but did not get on the elevator.
On the sixth floor, Langston and Robert continued to argue about the mechanics of the deal. At one point, Cherry entered the hallway from the stairwell and joined in Langston’s unsuccessful efforts to secure prepayment. Cherry demanded that the officers produce identification. After Marquez complied, Cherry, apparently satisfied, told Robert and Marquez that they were “going to get what [they] came ... for” and left the hallway.
While awaiting Cherry’s return, Langston tried to convince Robert to reimburse him for cab fare from Manhattan to Brooklyn. Suddenly, Cherry, Brownlee, and Wyman burst into the hallway with guns drawn and opened fire on the officers. 4 A bullet from the initial volley of shots struck Marquez’s hand, causing permanent damage. Robert and Marquez returned fire before retreating into the stairwell to escape their assailants. Langston, who had been standing next to Robert at the time of the shooting, also fled the scene. Police officers found him inside a nearby train station bleeding from gunshot wounds to his arm and buttocks.
Back-up officers responding to the scene discovered Moultrie lying partially paralyzed on the hallway floor with wounds to his back and face. Crime scene investigators recovered a 9mm handgun, twenty-seven discharged 9mm shells (all of which came from the officers’ weapons), and bal
A grand jury indicted Langston on thirteen counts ranging from attempted murder to attempted criminal sale of a firearm. People v. Langston, Ind. No. 3508 (N.Y. Sup. Ct. Kings Co. 2002). At trial, Langston testified in his own defense. He insisted that he barely knew Cherry and had never met Wyman or Brownlee. While Langston admitted to attempting to arrange a gun sale, he vehemently denied any involvement in plotting a robbery or any knowledge that Cherry, Wyman, or Brownlee possessed weapons other than those offered for sale.
Five counts went to the jury: felony assault, second-degree criminal possession of a .22 caliber handgun, third-degree criminal possession of a .22 caliber handgun, second-degree criminal possession of a 9mm handgun, and third-degree criminal possession of a 9mm handgun. The jury acquitted Langston of the possession charges related to the 9mm handgun, but convicted him of felony assault and second-degree possession of the .22 caliber weapon. As instructed by the trial judge, reaching this verdict required the jury to find, beyond a reasonable doubt, that the assault on Marquez was committed in furtherance of the felony weapon possession.
The trial court sentenced Langston to twenty-five years’ imprisonment on the felony assault count and to a concurrent five-year sentence on the possession count. Brownlee, Wyman, and Moultrie all pleaded guilty to criminal possession of a weapon in the second degree. Brownlee and Wyman were sentenced to ten years’ imprisonment, while Moultrie received a twelve-month sentence. Cherry was tried with Langston, convicted of felony assault, and sentenced to twenty-five years.
On direct appeal, Langston primarily argued that the evidence presented at trial was insufficient to prove that he acted in concert with Cherry, Wyman, and Brown-lee. Langston also insisted that, while he intended to sell weapons, he did not anticipate that the transaction would degenerate into a shootout and, therefore, he should not be held liable for Marquez’s injuries. Langston also argued that the State failed to prove beyond a reasonable doubt that the assault was committed in furtherance of the weapon possession. The Appellate Division of the New York Supreme Court rejected Langston’s claims and affirmed his conviction.
People v. Langston,
After exhausting his state-law remedies, Langston filed a timely petition in the district court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court concluded that the evidence was insufficient to prove the “in furtherance of’ element of felony assault beyond a reasonable doubt and granted Langston’s petition.
Langston v. Smith,
I. Standard of Review
We review the district court’s grant of Langston’s habeas petition de novo.
Jones v. Keane,
II. The Merits
A. Due Process Requirements
Langston argues that his conviction violated the Due Process Clause of the Fourteenth Amendment, which forbids conviction “ ‘except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the defendant] is charged.’ ”
Jackson,
Despite the importance of this constitutional principle, judges must be highly deferential to the jury’s verdict of conviction: courts “view[ ] the evidence in the light most favorable to the prosecution,”
Jackson,
This “standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law.”
Jackson,
B. The Elements of New York Penal Law § 120.10(4)
New York’s felony assault statute characterizes as first-degree assault actions causing serious physical injury that occur “in the course of and in furtherance of the commission ... of a felony.” N.Y. Penal Law § 120.10(4). In so doing, it replaces the intent to injure requirement traditionally associated with the crime of assault with the intent to commit the underlying felony (here, criminal possession of a .22 caliber handgun).
See People v. Snow,
The trial judge instructed the jury that in order to convict Langston of felony assault it had to find four elements beyond a reasonable doubt: (1) Langston either committed or aided and abetted “the crime of criminal possession of a weapon,” (2) Marquez suffered a “serious physical injury,” (3) Langston or another participant caused Marquez’s injury “while in the course of and in furtherance of the commission of criminal possession of a weapon,” and (4) “Marquez was not a participant in the crime.” (Tr. 1124-26.) Langston argues that the evidence at trial failed to establish that Marquez’s injury was caused in furtherance of the weapon possession.
Although the precise boundaries of the “in furtherance of’ requirement remain uncharted, the New York courts have provided sufficient guidance for us to resolve Langston’s petition. Under New York law, “meaning and effect should be given to all [of a statute’s] language, if possible, and words are not to be rejected as superfluous when it is practicable to give to each a distinct and separate meaning.” N.Y. Stat. Law § 231. Therefore, “in the course of’ and “in furtherance of’ “must be construed as two distinct proof elements, each of which has independent meaning.”
People v. Afzal,
No. 3736-07,
As the New York Court of Appeals has repeatedly said, to be guilty of felony assault, the defendant must injure the victim “in the attempted execution of the unlawful end.”
People v. Joyner,
People v. Swansbrough
provides an example. In that case, a jury convicted Tonya Swansbrough of, among other things, felony assault and unlawful imprisonment for her role in an attack on an unarmed woman.
As
Swansbrough
implies, the efficacy of the action taken in furtherance of the underlying felony is irrelevant; the law is only concerned with whether the action was committed with such a design. For example, in
People v. Slaughter
the New York Court of Appeals upheld a felony murder conviction after an imprudently-driven get-away car crashed into another vehicle, killing its occupant, despite the fact that the reckless driving that caused the victim’s death did not, as it turned out, facilitate the defendant’s crime, but actually thwarted his escape and led to his apprehension.
C. Sufficiency of the Evidence
The prosecutor tried this case as a botched robbery. He began his opening statement by arguing that “Langston and the men he was working with never had any intentions of selling any guns. Instead, they planned a robbery. And when that didn’t work they shot [Marquez] and then tried to shoot [Robert].” (Tr. 461.) The prosecutor then reenforced this argument during summation, asserting that “[Langston’s] plan was to lure two people ... into Brooklyn ... have them outnumbered, have them outarmed and then take what they have got.” (Tr. 1091.)
There is no question that the evidence presented at trial supported the prosecution’s robbery theory. Had the jury convicted Langston after being asked to de
In contrast to the prosecution’s repeated focus on the alleged attempted robbery, the requirement in the jury charge that the assault be committed in furtherance of weapon possession was wholly ignored. The prosecution’s sole mention of the necessary relationship between Marquez’s injuries and the underlying possession charge occurred in a single sentence during summation:
The part that I want you to cue in on and the part that I want to talk to you about is that Artie Marquez suffered these injuries while Kevin Langston, along with the other young men in this case, jointly, together possessed guns that were loaded and that worked.
(Tr. 1100) (emphasis added). Even here, the prosecutor spoke only of the required temporal relationship between the assault and the weapon possession; he altogether ignored the “in furtherance of’ requirement.
In keeping with this confused approach, the prosecutor presented no evidence tending to show that the officers were assaulted “to further,”
Swansbrough,
The facts of this case are remarkably similar to those in
Swansbrough.
There, the unlawful imprisonment was committed for the purpose of facilitating the assault, rather than the assault being committed to further the unlawful imprisonment,
The District Attorney argues that the purpose of the assault was to further the goal of criminally possessing the guns—in other words, Langston’s accomplices appeared and opened fire in order to prevent the detectives from taking the weapons with which they were committing the assault. Such a scenario strains the bounds of imagination and simply could not be inferred from the evidence presented at trial. Indeed, the District Attorney’s argument gets it exactly backwards — -the criminal possession was committed in furtherance of the assault and attempted robbery, the assault was not committed in furtherance of the criminal possession of the weapons.
Langston v. Smith,
We do not hold that criminal possession of a weapon may never support a felony assault conviction. In circumstances where, unlike here, the continued possession of the weapon underlying the felony assault charge is threatened before the assault takes place, a jury might reasonably infer that the assault was committed to prevent the victim from disarming his assailant (i.e., that the victim was assaulted in furtherance of the assailant’s continued possession). For example, had Marquez responded to a threatened robbery by reaching for Cherry’s gun in an attempt to disarm him, then a jury might reasonably conclude that Cherry caused Marquez’s injuries in furtherance of his continued possession of that weapon.
Unlike that example, however, the evidence offered in this case demonstrated that Cherry, Brownlee, and Wyman ambushed Robert and Marquez. Far from responding to any attempts to disarm them, the gunmen appeared on the scene without warning, immediately opened fire on the officers, and injured Marquez in their initial attack. There was no manifest threat prior to the ambush that might permit a jury to conclude, beyond a reasonable doubt, that the assault was in furtherance of retaining possession of the conspirators’ own weapons. The State effectively concedes as much in its reply brief by providing an example of an assault not in furtherance of possession of a weapon:
[Sjuppose that Individual A had a motive to harm Individual B. And suppose that Individual A [was] walking down the street, armed with a weapon; that individual A happened to see Individual B; and that Individual A took out his weapon and shot Individual B, causing him physical injury or serious physical injury. Under that scenario, Individual A would not be guilty of felony assault, for the simple reason that, under that scenario, there would be no evidence that the shooting was “in furtherance” of the weapon possession.
That example of an ambush on an unsuspecting victim precisely fits the facts of this case.
The State nevertheless argues that the assault was committed in furtherance of retaining possession of the very weapons used in the assault. Unable to rely on any active — or even threatened — attempts to disarm Cherry and his crew, the State speculates that the gunmen “must have concluded that” Robert and Marquez would try to disarm them and, therefore, part of the reason for the shooting was to maintain their possession of the guns. 10
[Langston] didn’t think that Artie Marquez or John Robert were undercover officers who could protect themselves, who could defend themselves, who had guns of their own, who were trained on how to use those guns and use those guns to save their lives. He thought they were crooks. He thought they were gun traffickers, perfect victims of crime.
(Tr. 1089.) All of the evidence presented at trial supports the prosecutor’s own argument that Langston and his fellow conspirators were unaware of the officers’ ability to protect themselves. Robert and Marquez were posing as prospective purchasers, rather than current owners, of handguns. Neither Robert nor Marquez revealed their weapons prior to the shooting. Langston, who testified at trial, never implied that he believed that the officers were armed. There was no evidence that the shooters believed that merely displaying their weapons and demanding the purported purchasers’ money would have put their guns at risk, or that their actions were motivated by anything other than a desire to injure and steal. In sum, there simply was no evidence indicating that Langston and his accomplices saw Robert and Marquez as a threat to their own continued weapon possession or that Cherry, Brownlee, and Wyman opened fire in order to protect the very guns that they used in the attack. 11 We cannot project into the gunmen’s minds those thoughts necessary to sustain the conviction when the evidence presented at trial does not support it and the prosecution’s own summation flatly rejected it.
The mere fact that Langston and his accomplices had reason to believe that Robert and Marquez were criminals does not change this calculation. “[I]t could not seriously be argued that such a ‘modicum’ of evidence could by itself rationally support a conviction beyond a reasonable doubt.”
Jackson,
However, even after giving the state court the appropriate deference, we can think of no reasonable application of Jackson that would permit affirmance of Langston’s conviction. 13 The prosecution presented no evidence to support its theory that Langston’s accomplices acted in furtherance of their continued possession of the very weapons that they used to ambush Robert and Marquez. As a result, the jury would have had to rely on pure conjecture to establish an element of the offense beyond a reasonable doubt. Insofar as the state appellate court found otherwise, its ruling unreasonably applied Jackson v. Virginia.
CONCLUSION
Although both
Jackson v. Virginia
and 28 U.S.C. § 2254(d)(1) dictate deferential standards, this is one of the rare cases where no reasonable jury could conclude
Notes
. "A person is guilty of criminal possession of a weapon in the second degree when, with intent to use the same unlawfully against another, [he] possesses a loaded firearm.” N.Y. Penal Law § 265.03(1)(b).
. Because we are conducting constitutional sufficiency review, we present "the evidence in the light most favorable to the prosecution.”
Jackson v. Virginia,
. The jury need not have credited Langston’s testimony that the arrangement with Cherry was impromptu, and was entitled to infer that Langston and Cherry had been working together from the start, as Langston implied to the undercover “purchasers.”
. At trial, the government alleged that a fourth individual, Leonard Barber, also participated in this assault. Barber was tried separately and acquitted of all charges.
. A different district court judge denied habeas relief to Cherry, who made arguments similar to Langston’s.
See Cherry v. Walsh,
No. 09-CV-1452,
. Langston's argument that the State waived its entitlement to section 2254(d) deference is unpersuasive. Even if we assume that this standard of review is waivable, the State’s ambiguous statements to the district court, when reviewed in context and in conjunction with its pre- and post-hearing submissions, cannot reasonably be construed as a waiver. Cf. 28 U.S.C. § 2254(b)(3) ("A State shall not be deemed to have waived the exhaustion requirement ... unless the State, through counsel, expressly waives the requirement.”).
. See, e.g., N.Y. Penal Law § 125.25(3) ("Acting either alone or with one or more other persons, he commits or attempts to commit [one of ten enumerated violent felonies] and, in the course of and in furtherance of such crime or of immediate flight therefrom, he, or another participant, if there be any, causes the death of a person other than one of the participants.”).
. New York's felony murder statute, like its felony assault statute, uses the “in furtherance of” language.
See
N.Y. Penal Law § 125.25(3). As a result, New York’s felony murder jurisprudence provides useful guidance in interpreting the felony assault statute.
See People v. Spivey,
. While
Swansbrough
held, in the alternative, that "because [the trial court] should have dismissed the unlawful imprisonment count under the merger doctrine, there was no underlying felony to serve as the basis for a felony assault,” it did so only after first concluding that any unlawful imprisonment was not committed in furtherance of the assault.
. At times, the State appears to argue that, because both the assault and the possession were in furtherance of the attempted robbery, they must have been in furtherance of each other as well. This claim rests on the logical fallacy that one of two independent efforts to bring about the same end necessarily aids the other. In furtherance of preparing for a successful vacation one might both stop the mail and pack a suitcase. Although both of these actions further the success of the planned vacation, it cannot be inferred that the pack
. Indeed, it makes no sense to infer that the gunmen acted in furtherance of the possession of the weapons used to shoot Marquez when those weapons were taken from a place of complete safety and brought to the sixth floor where they were displayed and fired. No reasonable jury could find, beyond a reasonable doubt, that Cherry, Brownlee, and Wyman took their guns out from wherever they were stored, burst through the hallway door, and began firing on the unsuspecting officers in order to retain possession of those very guns.
. Nor is there merit to the State’s alternative theory, that the assault was committed in furtherance of the possession, not of the guns used in the assault, but of the weapons that the officers initially intended to buy. The State argues that the jury may have believed that Langston and his accomplices feared that Robert and Marquez would lose their patience, locate the four 9mm handguns that they had come to purchase, and try to take them by force, and that, to prevent that from
. Nor does the Appellate Division’s single-sentence rejection of Langston’s argument provide us with such an explanation. The totality of the state appellate court's analysis is contained in the conclusory statement that "[t]he people also established by legally sufficient evidence that the defendant was guilty of assault in the first degree.”
People v. Langston,