Thomas Mallette v. Charles J. Scully, Superintendent of Greenhaven Correctional Facility

jury’s coverage per affect the ver- television or se legitimate time, rule as a place and dict. regulation. manner Telecasting ongoing proceedings only many is one of methods parties possi- is Seeking the of the views of reporting public to the judicial on ac- exposure pro ble reasons tions, arguably no better a method through adversary argument con is true than conveying others so far as that infor- unlikely. request might Even a for mation is concerned.3 If telecasting is put pressure opposition unfair them lest on thought impinge adjudicatory pro- jury, television be revealed to the which cess in an undesirable fashion per and a se might improper then an A draw inference. rule necessary guard against such party commentary must also fear television effects, passes undesirable Rule 7 constitu- opposition coverage on its to television of a tional muster. trial. It be that in the instant case both General Westmoreland and CBS actu-

ally desired television. It is certain that

neither object. Finally, would dare seeming oppose

fear of television will

likely parties making any induce to avoid arguments against particular it in a

case. decision-making process case-by- of a MALLETTE, Thomas approach, therefore, case in one which Petitioner-Appellant, the claim for television will almost always strong seem arguments against it SCULLY, Superintendent Charles J. usually will be always specu- unstated and Facility, Greenhaven Correctional In practice, case-by-case lative. approach Respondent-Appellee. leaves a trial court to choose al- between lowing assuming position television or as No. Docket 84-2185. adversary, its sole largely and a unin- United Appeals, States Court of formed one at that.. The de result of facto Second Circuit. case-by-case approach may thus be very similar to a jure allowing de rule Argued Oct. 1984. every television in case where demonstra- Decided Dec. 1984. privacy ble reasons for individual do not though exist. Even purports respond it apprehensions about television re-

flected the various actions of the Judicial Canons,

Conference case-by- approach might practice

case give them weight whatsoever. not, course,

It is certainty that a

case-by-case rule is unworkable that it quickly strong

will evolve into a presump- However,

tion favor of television.

reasonable belief that potentially unde-

sirable effects of television cannot be de-

tected, fashion, or detected in timely on a

case-by-case enough basis is justify arguments seeks, however, 3. The marshalled CNN as right to tele- relief CNN is the to telev- ise, superiority vision’s as a reporting including medium recording, video when it chooses judicial proceedings live, daily, are based on to do so and to broadcast as much or as little gavel-to-gavel coverage of an entire trial. The it chooses.

Mallette was indicted for murder in the degree, attempted murder in second degree possession second and criminal of a weapon degree. in the first The first de- gree manslaughter count on which he was was a lesser included offense to convicted degree murder. He was also found second guilty attempted weap- murder and the sufficiency challenge count. The ons is only manslaughter raised as to the convic- tion. Burstein, City, peti- York for Judd New appeared defendant for When sentenc- tioner-appellant. ing, prosecutor asked that the maxi- Petrover, Atty., Asst. Dist. imposed Debra W. mum sentence be because of the Holtzman, (Elizabeth nature of the crimes and Brooklyn, N.Y. Dist. de- fendant, by refusing killer, identify Atty. Kings County, Barbara D. Under- had shown no remorse. Defense wood, counsel Atty., Brooklyn, Asst. Dist. New argued that Mallette should be shown le- York, counsel), respondent-appellee. niency prior because he had no criminal history 29-year-old awas married man NEWMAN, Before CARDAMONE sentencing, with children. At the state tri- DAVIS,* Judges. Circuit judge al took Mallette’s assertion that he reprisal value, feared at face noted but CARDAMONE, Judge: Circuit jury rejected had Mallette's duress appeal judge This is from the denial of claim. The state observed that while corpus have been afraid to relief the Eastern District. De- reveal man’s name: fendant, Mallette, Thomas was convicted Supreme justice New York State Court for man- boy it thwarts and an innocent slaughter degree pas- prior any the first after a ... of 16 with no record of kind senger seated in the front seat of his auto dead. And Mr. Mallette were will- us, ing bring to assist 16-year-old Brooklyn person shot and killed a the other justice very easy find it youth. ap- Defendant would to be raises two issues on claims, first, and lenient. peal. He that his sentence was enhanced because of his refusal judge emphasized The trial that Mallette identify passenger. Second, argues, participant was an active in the homicide evil, since he himself saw no heard no evil and that he had twice driven his car back to spoke no evil that the evidence of in- original shooting the scene of the while his jury tent before the state court was insuffi- passenger attempted kill the other manslaughter cient to convic- youths Finally, the scene. the trial argument persuasive. tion. Neither judge ample oppor noted that Mallette had enhance, judge court trial The State did not tunity escape stopped when later merely leniency refused to show when police. The court also com imposing sentence on defendant. The sec- mented that the defendant had lied when argument ques- ond is flawed because the passenger’s he claimed not to know his tion for the is not whether he heard or identity. true Defendant’s sentence was evil, spoke imposed but whether he had an intent to concurrently on all counts: 7 to years manslaughter do evil. on the and murder * Davis, Honorable Oscar H. United States tion. Circuit Circuit, Judge sitting by designa- for the Federal chased years Martinez—who was on foot and

counts and maximum to wrong running way up one-way York Penal weapons New count. Under —the street, fired § while his out the car on the 70.00, Law the maximum sentence fleeing youth. driving window at the After years. The .81/»to 25 first two counts is park, once around Mallette then drove imposed, the was not maximum sentence park back to the same corner where the because Mallette explained, state youths gathered now their around previous Appellate Division record. friend, ap- wounded Perez. As car Mallette’s conviction affirmed proached, opened again. fire After Eddie appeal. denied Appeals leave Court shooting spree, this second pro- Appellant then instituted a habeas uptown. Mallette Eddie drove testified District ceeding in United States Court had said that all the kids in that Eddie York District of New be- for the Eastern got.” park what this kid Less “deserved Judge B. Weinstein. district fore Jack later, hour Perez than half still was application defendant’s court denied lying street a bullet in the wound to concluding that to Mallette failed for a writ stomach, youths his and the other were issue that warranted raise a constitutional describing preceding police the events to a criminal mat- intrusion into state federal officers, defendant and Eddie returned a ter. boys third time. When the identified the police chase, Volkswagen, gave the lost but II days car. Perez died a few defendant’s slaying this later. The scenario for senseless developed An unidentified cor- as follows. Later, morning, the same while defend- “Eddie” officer referred to as and

rections passenger ant his to and were enroute Sta- Brooklyn in bar had met a five Island, stopped police captain ten a them. night fatality. the times before the six badge identifying When Eddie showed of Staten Island. Af- Both were residents officer, they himself as a corrections were of drinks at the same Toll- ter a number police proceed. to The same offi- allowed night killing, Bar on the of the the gate again stopped cer defendant’s car a short green Volkswagen left in Mallette’s two the while at the entrance to Verraza- later in park Brooklyn. They and drove to a Bridge. no Mallette exited the car and Avenue and stopped at the corner Tenth registration, produced his license and while Perez, and several 42nd Street. Martinez his remained seated inside. Mal- sitting park youths on a bench a nothing captain other to lette said about away. youths feet The testified that shooting few either Still later that on occasion. Mallette, occupants Volkswagen according morning asked Eddie family and his they responded and that threatened to shoot him them cocaine anything he the incident. anyone ever said about they had and did not know none then summoned Martinez did. Eddie who in His Mallette testified his own behalf. again questioned the car and him about posture adopting defense consisted of that when he cocaine. Martinez testified evil, speak hear no “see no no evil gun he the car observed approached Thus, stopped he he his car evil.” testified lap. repeated When Martinez that Eddie’s right corner fatal park at before the cocaine, selling knew of no one Eddie he Perez, shooting of because Eddie wanted Perez and Jiminez then abusive. became to, (Mallette) “did know that he not but hap- was the car see what approached why” Although not it was “did ask.” toward Mal- pening. As the two came wearing night hot Eddie summer was car, opened Perez Eddie fire. cried lette’s only a and trousers Mallette testified shirt Eddie lap “I’ve been shot.” After fired gun out: that not see he did Eddie’s shots, Volkswagen or four more had he was three that Martinez observed because Immediately following straight He that sped “looking off. shoot- ahead.” knew Perez, passenger was a corrections officer. Mallette made a U-turn ing of gun police- type The of a size and Id. 100 S.Ct. at 1363. The defend- was that carry. says argues men he did ordinarily implication” ant “clear questioning hear about language not Eddie Martinez is that a trial this court cannot listening.” cocaine because “he was not sentence enhance the because of defend- Finally, po- cooperate defendant failed inform failure to due fear ant’s to his captain reprisal. he Bradford, lice about In United States v. (2d say anything.” Cir.1981), “didn’t have chance to F.2d explained: we reflecting on Mallette’s credibil- discretion, judge, in his [T]he he ity, knew that had testified that he knew may mitigating into account as a take Eddie; nothing yet, later in the trial about coopera- factor voluntary the defendant’s with an earlier statement confronted when tion with the authorities. Nowhere have made which he described suggested we that the refus- defendant’s friend, Eddie as his Mallette admitted al to cooperate be considered in- was, unwilling Eddie was he knew who creasing the sentence he would otherwise identity. Mallette also to reveal his thing receive. It one extend lenien- he never went back claimed that cy willing coop- to a defendant who Tollgate shooting, after con- Bar government; quite erate with the it is testimony of other flicted with the witness- thing another to administer additional prosecution produced wit- es. hostile punishment to a who defendant who that he and defendant ness testified silence has committed additional of- together Bar Tollgate home from the drove fense. night. Although wit- tragic after the (quoting at 117 Id. United States v. Ra statement, later recanted the he did ness mos, 360, (2d Cir.1978)) 2 572 F.2d n. 363 acknowledge testimony having his once added). (emphasis We must therefore de that Mallette had admitted told detective sentencing termine whether the state court shooting incident to him. the judge enhanced Mallette’s sentence or merely leniency. declined to show him It is

Ill “principled may doubtful that a distinction presented ‘enhancing’ drawn question punish The first is whether be between the impermissibly imposed upon petitioner deny trial de- ment the the court enhanced and ing ‘leniency’ of to him the claims be fendant’s sentence because his failure he would cooperate cooperated.” reprisal. appropriate due to his of Mal- if he had fear Rob erts, 557, argues that at lette the increased sentence 445 U.S. 100 S.Ct. at 1362. Yet, though process it even the some violates due bears distinction is relationship only recog either it is the illusory, to the actual crime or what rule that reality prosecu- justice sys the offender. He that the nizes the of the criminal claims revealing protecting integrity on tion’s insistence his Eddie’s tem while the of that placed position choosing system. him in the name long prison the hard life of term if

between Turning judge to the did in whether refused, reprisal and the he certitude sentence, fact enhance defendant’s we con cooperated. only clude that the record shows that the States, judge leniency. In v. 445 U.S. to show Roberts United declined Whatever 552, 1358, (1980), 100 63 there be is S.Ct. L.Ed.2d 622 indication of enhancement Supreme argu slight principal held that a defendant’s at best. Defendant’s the Court unexplained cooperation poten- participation is shoot lack is ment that the tially and, ing nothing relevant to his rehabilitation was minimal and that thus, may sentencing. background heavy justified be considered at the sentence. why explained judge that the the he could not The Court stated where failure He cooperate cooperate accepted reprisal judge is to fear would and the due it Nevertheless, at value. as the not bear on rehabilitation and “would claim face [mer- rejected by judge jury had explained, serious judge. consideration” trial state it]

31 apparently proceeding, raised argument, a federal duress defendant’s came well threat grounds that the court must assess the historic facts de after Mallette shooting and even after the supports termine whether the evidence and report it obtain opportunity an jury v. Virginia, verdict. Jackson 443 See Although it is police. from the protection 307, 318, 2788, 2781, U.S. 99 S.Ct. 61 merely finding jurors that the were clear (1979). The L.Ed.2d 560 task is to ascer during shooting Mallette’s actions tain whether the record evidence on which finding such not and that coerced the trier relied was of fact of sufficient cooperate, to his there irrelevant refusal quality support the verdict. See Wood judge that the is insufficient indication still and Immigration Naturalization quotes enhanced sentence. Service, 276, 282, 483, 385 U.S. 87 S.Ct. saying: judge 486, (1966). 17 L.Ed.2d 362 Stated another willing to And if Mr. Mallette were assist where, way, a is to upheld verdict be justice, bring person to us to the other taking a case view of the most favorable to easy it to be very find would government, there substantial evi lenient. it. dence See Burks v. United merely demonstrates the dif- This comment 1, 17, 2150, States, 2141, 98 437 U.S. S.Ct. meaningful distinction ficulty drawing (1978); 1 Glasser L.Ed.2d v. United sentence and de- enhancing the between States, 60, 80, U.S. surely clining leniency; to show it does not it is L.Ed. 680 Since the trier of grounds for reversal. provide constitutional evidence, weighs fact determines Moreover, imposed was the sentence within credibility draws from his inferences fact, it was statutory limits. In not facts, court, in toric to ultimate a federal expressly prop- maximum. analyzing sufficiency, should it not “ask gravity of the erly considered the offense it that the at self whether believes evidence public. protect need to guilt the trial a reason established are of this case that after circumstances Woodbyv. Immigration able doubt.” drove Eddie first Services, U.S. Naturalization original crime a to the scene of the back 87 S.Ct. at 486. The habeas court is not to time, again, fire opened Eddie second of the evidence for that substitute its view a third time. Ob- later drove back jury. Virginia, v. 443 U.S. of the Jackson properly could viously, a court 318-19, Instead, it at at 2788-89. in these ground insufficient circum- find court, of the state trial stands the shoes leniency. to stances extend must trier consider whether rational IY properly of fact find infer that could beyond guilty accused a reasonable issue is more difficult wheth Wright 2 Practice doubt.1 See C. Federal presented the evidence before the er § 467 Relevant and Procedure support conviction was sufficient sufficiency question in this manslaughter. state law determines case whether On a judge’s.” judge necessarily the state He felt viewed his in a that of The district court role 1. corpus proceeding say probably to be let different free to he would not have purposes be under feder- jury, despite than it would go these the case his conclusion powers. Although supervisory that was once al true, fact that a rational trier of could have found unequivocally Supreme Court held guilt beyond record evidence a reason- from the 307, 318, Virginia, U.S. S.Ct. Jackson Therefore, petition able doubt. denied the (1979), that stan- 61 L.Ed.2d 560 ground that I don’t think “on substantive corpus a federal habeas dards are identical: granting Despite any there is case for writ.” any there must consider not whether was court inconsistency, we not need remand conviction, support a state-court evidence agree we the result reached after exam- there was sufficient evidence allow a whether ining the court record evidence the state guilt beyond trier of fact to find rational good position proceedings, we are in which Thus, doubt. the district court court. review district as the incorrectly judgment believed that was "not § dence, juror 26; rational the element supra, could have found Wright, supra, C. § of intent satisfied. 467. trier Defendant contends that no rational jury by guilty its verdict found prose- of fact could have concluded that the “intent” on part preceding Mallette’s cution proved the intent to cause seri- shooting of Perez. We must examine the physical necessary ous injury, which is proof to see whether that ultimate fact can manslaughter sustain a conviction of be drawn from the historic facts found in degree. first Mallette concedes that there Examining the record. complex the whole proof support was sufficient his convic- of pieces interrelated of circumstantial evi attempted tion for the murder of Martinez dence we are satisfied that there were suf possession gun pur- because he ficient juror facts from which a could ra sued Martinez with his car and facilitated tionally draw the inference that defendant shooting by Eddie’s second round of driv- requisite had the intent to commit man ing argues Defendant back. there slaughter. These basic facts are estab proof passen- was that he shared his lished: Mallette and Eddie seeking ger’s respect intent with to the initial cocaine at 4 a.m. and at that time Eddie shooting agree. of Perez. We cannot gun had a out lap plain and on his view. gun knew the was there. A ra What we review here is Mallette’s juror tional could infer from these facts intent immediately preceding shooting pair cocaine, get intended to even Specifically, of Perez. whether there was required if it using weapon. Mallette, proof sufficient to find a reason incident, within a few moments of the first Mallette, able doubt that with intent “to drove wrong way his car the down a one- physical injury cause serious to another way street to facilitate Eddie’s person,” person caused the death of such while, Martinez. Within a short he drove person. or a third See N.Y.Penal Law to the scene a second time passen and his § 1975). (McKinney 125.20 To show intent ger again opened youths. fire on the That government prove must what was in subsequent Mallette’s commission of the the mind of the accused. Commentators crime attempted murder occurred soon agree possible that it is seldom present after original intent on which the testimonial or direct evidence of an ac charge of degree second murder is based cused’s separate state of mind. Intent as a provides strong evidence to proof item of does not commonly exist. II ultimate conclusion that he intended “seri § Wigmore (rev. 1979). J. Evidence ed. physical injury” ous youths to these when Thus, whenever intent is an element of a Perez fatally was shot. crime, its existence must be inferred considering the generally govern laws that New York long courts have held human conduct. Because intent is formed that a subsequent defendant’s actions to a in the in secrecy mind and silence and the proper crime are guilt. evidence of his See human mind speed impossi functions at a People 62, Conroy, (1884) v. 97 N.Y. 80 measure, ble (falsehoods determination of whether and escape evasions to the im a deliberate intent was putation formed must be of crime by be considered drawn from all the jury circumstances of the intent); on the People issue of evil case. Circumstantial Pena, 400, evidence of this 410, sub 50 N.Y.2d 429 N.Y.S.2d 406 jective fact is therefore 2 indispensable. (1980)(defendant’s C. N.E.2d 1347 possession § Wright, supra, 411 Circumstan of a knife in paper bag a brown 20 minutes persuasive tial evidence is as as direct evi after incident where victim said defendant each, dence. With triers of pointed bag fact must use himat and threatened to shoot experience their people and events sufficient evidence to find that defendant weigh probabilities. possessed See “dangerous Holland v. Unit instrument” States, 121, 140, 127, ed 348 U.S. robbery). Further, commission of it is an (1954); 99 L.Ed. 150 Wigmore, elementary principle Evi- that defendant’s com-

33 in its majority with the view that evi- is admissible subsequent of a crime mission jury reasonably dis- permitted and dence to con- previous to establish intent for and that there is material clude reasonable doubt tinct crime the evidence Place, defendant, prior People v. relevant to the issue. See existed in the mind of the (1899) (evi- 584, 598, crime, 576 intent to cause the N.Y. 52 N.E. an serious the de- physical injury that defendant assaulted that resulted when his auto- dence an axe was agree victim’s father with shot the passenger ceased victim. mobile intent proof permissibly as of her earlier sentencing judge admitted de- applies partic- daughter). This rule kill the of clined to reduce the sentence because proved is re- ularly the transaction where unwillingness to name his the defendant’s indict- on which the to the transaction lated companion. is based. See charged crime for the ment 1. State mind of of defendant. 217-18, Buchalter, 289 N.Y.

People v. evidence established that prosecution’s The (1942) (evidence earlier 45 N.E.2d passenger, drove his petitioner Mallette for crime to show intent admissible crime officer, away from a bar in the corrections Harris, People v. N.Y. charged); early morning hours. It was inferable that (1954) (defendant’s demean- 118 N.E.2d purchase cocaine. they both intended calls after the or, telephone inquiries passenger pistol lap, The had a on his his intent at competent evidence of murder it The where was observable Mallette. time). concedes his Here the defendant corner, stopped at a street car attempted murder count for the intent inquired youth park on a passenger to the earlier part of and related it was whether he had cocaine or knew bench found Mallette was for which transaction could where it be obtained. When manslaughter. guilty of no, youth passenger said asked him to have disbe- trier fact could A rational come to the car and continued the conver- testimony that he did not Mallette’s lieved passenger became abusive in sation. not look- gun because was see Eddie’s youth’s language, and two of he was not listen- ing, did not hear because approached point the car. At that friends the crime report did not ing, and open car passenger fired shots out the speak. A rational no chance to he had window, friends, youth’s hitting one disregarded that testimo- have juror could subsequently died from the wound. who conclude, self-serving. We ny merely Thereafter, engaged in a series of. the car therefore, jury rationally and that a could kept group, it near the maneuvers that the two friends have inferred that properly additional shots. This fired criminal enter- engaged a common was the for the subsequent conduct basis cocaine and were armed and prise to obtain charge conviction of Mallette on a jury’s bodily harm in the grievous to do prepared degree, in the second attempted murder search. of their course issue is challenged. is not which permitted the whether the evidence order dis- Accordingly, we affirm the manslaughter offense. convict for the corpus petition. missing defendant’s of subse- There is no doubt evidence NEWMAN, Judge, Circuit dis- O. JON prior prove quent conduct admissible concurring part: senting part con- subsequent state of mind. Mallette’s from driving positions the car to challenging a duct corpus petition This habeas then knew passenger, whom he for which his conviction and sentence state court youths, could and fired one shot at the manslaughter poses two close had first-degree creates, I ac- subsequent shots did fire concerning ascertainment of a questions possibility throughout that knowledge, of mind. One issue concerns person’s state inflict seri- evening he an intent to defendant; had mind the the the state of of the anyone whom his physical injury ous the state of mind of the other concerns might the course of encounter passenger I sentencing judge. respectfully disagree possibility is seeking cooperation cocaine. But that so ant’s with the authorities and unsupported by administering remote the evidence and so punishment additional be cause of a reasonably cooperate. the record that it cannot be refusal United by jurors beyond Bradford, (2d found a reasonable States 645 F.2d 115 Cir. 1981). I do not description majority’s doubt to have been an accurate share the view that this distinction prior of Mallette’s state of mind to the illusory,” first “somewhat though I acknowledge shooting. charged that Mallette was not with doubts about the matter have been felony significantly nor convicted of murder. The crime ex pressed. cocaine, States, Roberts v. purchasing robbery unlike United 552, 4, 1358, U.S. 557 n. against person, other 1362 n. crimes the is not one inherently partici- acknowledge creates a risk that a L.Ed.2d 622 I doubts, basis for such since it is obvious pant will accomplish shoot someone to that the defendant who cooper refuses to objective. criminal Even if it is assumed greater ate often receives a sentence than pistol lap that Mallette saw the on the defendant, under otherwise similar cir passenger, chargeable he was at most cumstances, cooperates. course, who Of knowledge passenger might with that his every that is true of defendant whose sen defense, weapon example, use the for if greater tence is than that of a defendant potential drug seller tried to steal the mitigating circumstances. But the is passenger’s money. Nothing in this record sue in such cases is not whether one de could have alerted Mallette to the risk that higher another’s; fendant’s sentence is than might become so hostile in it is whether he has been impermissibly the course of a conversation strang- with a punished. That would occur if the sentenc er that he would indiscriminately start ing judge started out with a tentative sen shooting through open car window. tence in appropriate mind as for the of The majority cites ruling cases subse- fense and the offender and then decided to quent conduct admissible on the element of adjust the tentative upward sentence be issue, however, intent. The is whether the impermissible cause of some factor. But permit admissible evidence suffices to the defendant who cooperate does not has according requisite verdict burden of complaint no cause for if he receives the proof. pertinent A more precedent from judge’s sentence, though tentative even the New York People Belle, courts is v. La tentative sentence would adjust have been 18 N.Y.2d 276 N.Y.S.2d ed downward if he cooperated. had View (1966), N.E.2d 727 in which the evidence ing the issue in way manifestly puts a was held insufficient to a convic- premium on what was in judge’s mind premeditated murder, tion for though even in formulating the However, sentence. un defendant, evidence showed that like the state of mind of a defendant in a present who had been at the scene of the case, criminal it is not necessary that the crime, helped perpetrator dispose state of mind of a sentencing judge be body attempted and had to remove beyond ascertained a reasonable doubt. It evidence of the crime. reviewing sufficient court can have The jury was entitled to disbelieve Mal- confidence, giving considerable lette when he testified that he drove the deference to the explanation articulated ear, after the shooting, duress, first under the sentence sentencing judge, responding to the gun- commands of his the sentence adjusted upward was not be wielding passenger. But I agree cannot impermissible cause anof agree factor. could reasonably find majority with the that we are entitled to a reasonable doubt that Mallette intended conclude that this did not occur in this case. first to occur. 2. State mind the sentencing judge. This recognized Circuit has the dis- taking

tinction between into account as a

mitigating factor at a defend-

Case Details

Case Name: Thomas Mallette v. Charles J. Scully, Superintendent of Greenhaven Correctional Facility

Court Name: Court of Appeals for the Second Circuit

Date Published: Dec 28, 1984

Citation: 752 F.2d 26

Docket Number: 300, Docket 84-2185

Court Abbreviation: 2d Cir.