William J. Nelson v. Charles Scully, Warden

FRIENDLY, Before KAUFMAN and OAKES, Judges. Circuit FRIENDLY, Circuit Judge: of appeals State New York from a judgment of the United States District Court for the Southern District of New York, Griesa, Judge, granting Thomas A. petition corpus of for writ habeas William John Nelson. Nelson was convict- degree, ed of murder in the second N.Y. 125.25, Law Penal the New York. State § 3,1976, Supreme on November before Court jury. Justice He Burton Roberts and a prison sentenced indeterminate term years fifteen to life.1 For reasons not record, appearing appeal Nelson’s Division, Appellate Department, First was not decided until October opinion, when that court affirmed without 72 April A.D.2d 956. N.Y.S.2d On 4, 1980, Judge of the New York Jones Appeals appeal. denied leave to N.Y.2d N.Y.S.2d 406 N.E.2d the Appellate One Nelson’s claims in given by Division was that an instruction judge containing the trial con- language cerning being’presumed to intend consequences the natural and operated deprive Nelson of his acts rights in violation of the constitutional Su- manslaughter 1. This was Nelson’s second conviction received a sentence zero eight (Trial years Transcript homicide. In 1968 he had been convicted of decision, passed talking, Manhattan and the time which had come preme Court’s trial, drinking2 listening Mon- to music. Dennis down after the hotel, tana, Bryant, and a L.Ed.2d a resident of the friend others, shoving match (1979). “Teddy” named fell into a On this basis corpus Bryant in which possession filed a for habeas over chair petition sitting. dispute District of soon District Court for the Southern had been That ended Dismissing Teddy the other and several others made Bryant, New York. all and Nelson, Griesa, Judge liquor brought a store and grounds trip nearby asserted to a Nelson, a resident although noting that the state some wine back. also hotel, lengthy joined in his “a dis- the crowd after this. included intent”, quar- writ granted spoke Bryant cussion of because He about latter’s following: Teddy, Bryant him that charge had included rel with told fight forgotten. was over and be should Also, principal is a of law there [sic] However, argument got Nelson into an you may which in determin- wish fight “Frenchy”, a about with hotel is, intent, ing person’s a and that employee, which became loud. Around is to intend the natural and Douglas 11:30 P.M. Alma Cartar and ar- probable consequences per- of his acts. A sat rived next door to the hotel and down to cannot, son for throw someone Douglas, drink some beer. who was ac- off apartment building the roof of an and Nelson, quainted stepped with between Nel- say then he merely conducting was an Frenchy, son and and asked them to “be experiment dynamics. in aerial in front of argue “right cool” and not to Without undertaking analysis an of the rest building.” charge, required by as Cupp 141, 146-47, Naughten, 414 U.S. response Douglas Nelson’s was to tell 396, 400-01, 38 L.Ed.2d 368 your fucking “it’s none of business”. While judge concluded: trying keep Frenchy apart, Nelson and Thus permitted Nelson, was to substitute Douglas responded who touched of the kind described for “I’m fuckin’ fuckin’ with you niggers tired finding, its own beyond based you me” “If ass off me get your and don’t doubt, necessary going cap your I am to bust a ass.” degree tent existed for a second murder answered, “Well, man, Douglas you’re if i.e., intent to cause that, going you go to do ahead and do that.” conviction — the death of person. another responded by drawing a revolver Subsequently denied a motion close Douglas enough his waist. the District Attorney for New York County to knock aside Nelson’s arm so that Nel- for reconsideration on the that proce- basis son’s In ground. first shot struck the grounds dural prohibited Nelson’s being himself, protect Douglas effort took a heard in federal respect habeas with backward, step whereupon Nelson leveled instruction which had been held to violate chest, Douglas’ his revolver fired rights. constitutional ap- The State has ground, Douglas twice more. fell to the pealed. We reverse. gasping unconscious and for breath with leading facts to Nelson’s conviction two in his He died bullet wounds chest. were as follows: shortly thereafter. night

On the July a group The trial submitted the case to the some 20 people gathered as customary degree on both a second murder kill, on the sidewalk near charge, requires the front of the Pen- which an intent to nington Hotel at 316 West 95th degree manslaughter Street a first quantity Douglas 2. What what 3. Both Nelson and were black. record does any drinking not disclose. event part immaterial since Nelson was not crowd. requisite degree you which the intent is to cause of murder second must serious be injury, physical Laws 125.25 N.Y.Penal §§ convinced a reasonable doubt spreads and 125.20. His over 62 specifically intended to cause the death typewritten pages. fully explained He Lee Douglas, opposed of Robert the People proving had the Nel- burden merely injure him.” He added guilt beyond son’s “It reasonable doubt. that “Under the definition contained any never shifts time to defendant at Law, intentionally Penal acts any aspect” all in of the case. “The defend- respect objec- to a result when his conscious required, ant is never no defendant is ever tive is cause that result and when his act disprove or to anything prove result from that acts conscious intent.” anything,” since he “comes into this court- dwelling difficulty After on the in deter- room presump- shielded one of the oldest intent, secret, mining “the silent law, tions we our pre- know in operation mind,” of someone’s he said that ” sumption of . pre- innocence... This proven usually only by this “can sumption jury “follows the defendant to the up leading facts and circumstances to and room. It is the defendant until the surrounding the constituting acts the crime. jury beyond is satisfied a reasonable doubt therefore, the right, You have to determine contrary, jury until ev- excludes person’s inferentially intent what he ery other reasonable hypothesis but that of did; said, allegedly from what he and from guilt, until actually jury and renders a testimony all the evidence and you have verdict guilty of into It would be court.” concerning the and facts circumstances con- hard of to think an instruction which ex- stituting (Emphasis added). this case.” pounded fully more in- presumption of judge explained that The these facts and right nocence and criminal defend- motive, circumstances included threats compelled ant to state to establish victim, made the defendant to the every element of the crime rea- fired, number of shots the location of the sonable doubt. on body, wounds the victim’s the distance pages judge Some later the turned to fired, gun from which the was the testimo- charge of murder degree. the second ny alleged shooting, of the witnesses to the reading After portion the relevant of the physical and the condition the defendant. indictment, explained he the two elements passage Then followed the which we have crime, of the causing the death of a person quoted above. and having up do so. Taking explained subject the second element he that “be- The then went person intoxication,4 fore a can be convicted of the crime that and said this as such was Despite repeated pressure support from Nelson’s The evidence counsel, shooting “high” the witnesses to the resisted is at inference that the defendant was page suggestion where, that was intoxicated at Transcript, 422 of the after Trial Godfrey Douglas. the time he killed Witness making just quoted, the statements stated, Spell drinking “I if don’t know he was Bryant’s attention was called to of an if “the intent existed for a fraction of a Division, Appellate his brief in the fired, second before the shots were it would State, answering in addition to on the mer you suffice. But must be convinced its, point made the that he could not be a reasonable doubt that the intent to kill heard to on Sandstrom since he not existed you before can convict a excepted not the crime of considering murder. If after done, charged as Sandstrom had but re all of the you evidence find that the People quested falls, it. The case thus the State have established the defendant’s intent argues, within Wainwright Sykes, v. cause the death of Robert Lee Douglas be- 72, 2497, 53 (1976), U.S. L.Ed.2d 594 S.Ct. yond doubt, a reasonable you go must on to Hammock, (2 and Gruttola v. 639 F.2d 922 consider the second element of the crime of 1981), holding Cir. that gen federal habeas murder degree. in the second If you find erally petitioner will not lie when the has that the People have not sustained their timely objection failed make a respect burden with to the element of in- by state law. tent, then you must find the defendant not guilty of the crime of responds murder the second Nelson that his trial counsel’s degree.” objection, although applying literally only sentence, to the second should have been The State’s contention that Nelson is not first; that, going understood as also to the procedurally entitled to invoke federal ha- this, apart requested the denial of his beas quoted because of the instructions is a charge was sufficient under N.Y.Crim. substantial one. charge Before the court’s 470.05(2); Proc.Law and that in any to the jury § Nelson submitted thirty-one re- quests enough point event it was that he raised the charge, including several relating Division, to the issue of request Appellate citing intent. His before the in this was: Harris, Washington connection 650 F.2d THE COURT: You didn’t know whether he THE WITNESS: Yes. high, you just Transcript felt that? Trial at 422. Yes, THE testify. way WITNESS: because of the he Nelson did not acted. acted, way hollering

THE COURT: The shooting gun? (2 1981), presumption charge by Cir. v. of the peremptorily 451-52 Callahan LeFevre, 70, 73-74, (2 605 F.2d n.6 directing the jury: argued, It can be answer yourself question: ask this Did You Wil- point, first that there was no reason for the liam John have the specific Nelson objection to consider an to the second Douglas. to kill Robert Lee objection constituting sentence as also an if por Even we were to look at the solely objection first —indeed that indi- Nelson, charge challenged tion of the sentence; cated acquiescence in the first juror conclusion a reasonable could request cannot be draw was that he must determine from all objection deemed a sufficient since the last evidence, with leave to use the common sentence the request was wrong under people sense notion that do indeed intend case; the facts of this there is no natural and consequences reason Appellate to believe that Divi- acts, not, or firing their whether two sion in fact considered the Sandstrom Douglas’ point bullets at chest at blank point making Gruttola rather than —thus range, had the intent to Washington pertinent Callahan the deci- kill. words, However, sion of In other if this court. our even we were to look only under view respect to the merits we find it one passage at this we unnecessary pass upon the proce- State’s well conclude the case is attracted objection dural and leave this undeter- Allen, County Ulster 442 U.S. mined. 157-63, 2213, 2224-28, 99 S.Ct. 60 L.Ed.2d fortnight decided a before Sand The trial charged Sandstrom had it, 514, 99 accepted by strom and at baldly: at than by S.Ct. rather presumes The law intends itself. ordinary consequences of his volun- tary acts. However, go we need not and do so jur effect “a reasonable Cupp far. v. Naughten, supra, 414 U.S. or”, would 38 L.Ed.2d dealt with be quite different from Justice Roberts’ “Every witness is telling jury the of principle “upon a of law truth”, speak to the a presumption which sure, you may rely.” wish to To be a ways, could be “overcome” certain some lawyer possessing trained analytical the production the which demanded evi- skill of dissenting our parse brother could 142, by the Id. at dence defense. 94 S.Ct. at the instruction as saying that the jury Supreme 398. The there reversed the Court free rely to or not to on rely principle the grant corpus Ninth Circuit’s to habeas a law by mentioned the if it that ground state on the prisoner the that effect choice, made the former it would then be place of the instruction was to the burden compelled to find that Nelson had nec the innocence, on prove the to his 476 essary intent unless he produced evidence to 1972), (9th reh’g F.2d 845 Cir. en banc de- overcome the presumption. But this is at court, nied 476 by equally divided F.2d tributing altogether legal too much acumen (9th began 845 The Court its to ordinary juror the had not imbibed —who 146-47, by 414 analysis stating, U.S. at 94 Wigmore’s Evidence his milk. mother’s at 400: S.Ct. Evidently it made impression no such on determining In the effect of this instruc- Nelson’s counsel who himself proposed on validity respondent’s tion the con- the presumption language objected viction, accept we at the the well- outset only example. This was so extreme proposition single that established a that its effect could have been lead to judged to struction not be the jury to choose on princi not to the isolation, ple of artificial but must be viewed in law in this And case. immediately dispelled any improper charge. Boyd context of the overall effect

272 States, 104, 107,

v. United question: 271 46 ask itself “this Did U.S. William John (1926).5 70 L.Ed. 857 S.Ct. Nelson have the intent to Rob kill instructing ert Lee Douglas.” After fur referring After Circuit’s con- Ninth respect ther with to intoxication and the clusion that the effect of the instruction flight, irrelevance of Nelson’s place was to on defendant burden innocence, prove again emphasized Court stated that must be twice, gave, “the trial court not once but beyond convinced a reasonable doubt that explicit affirming presump- instructions kill, Nelson had the intent that such declaring obliga- tion of innocence and a conclusion could be reached “after prove guilt tion of the State considering case, all the evidence.” this Id., 147, reasonable doubt.” 414 at U.S. 94 Sandstrom, supra, 442 distinguished as argument Noting S.Ct. at 400. n.7, n.7, U.S. at 518-19 2456 S.Ct. at although Appeals Court of such in- there was simply possibility no that after all given, structions had been “there was no hammering judge, by “[t]he specifically instruction so directed ... have interpreted could the two sets of in cure,” effected 476 F.2d at indicating structions as the presump thought, 414 U.S. at 94 S.Ct. at tion was proof beyond a means analysis “this puts the cart before the reasonable as intent could doubt be satis horse; is not whether the trial fied.” We thus cannot conclude that court failed to isolate cure particular sentences, two offending taking about thir ailing instruction, but father whether the ty deliver, seconds to “so infected the entire ailing instruction itself so infected the trial the resulting conviction violates entire resulting conviction due process.” Cupp v. Naughten, supra, process.” violates due S.Ct. at 400. See Belton U.S. In sharp contrast sparse boiler- States, v. United (D.C. 382 F.2d 154-55 plate instructions on presumption of Cir.1967). innocence and the proof beyond burden of Courts of appeals many confronted in given doubt (U.S. appeals corpus and habeas cases that have App. 34-35), which Supreme Court held emanated from pre-Sandstrom trials have insufficient to cure the problem dealt with the as the district there given, supra, n.7, 518-19 court did they here. Rather made careful n.7, 99 S.Ct. at 2456 given instructions required by Cupp Naughten, inquiry, as subjects those in this which we supra, L.Ed.2d summarized, have already pointed, were whether, taking determine the en emphatic, repeated and detailed. consideration, tire charge into there was judge thoroughly explained the distinction any significant possibility that harm was between the to sustain a Spiegel, See United done. States charge of murder degree, in the second 961, 1979); McInerney v. (5 F.2d 968-70 Cir. distinguished required from that support to Berman, 20, (1 Cir.), 621 F.2d cert. 22-24 a charge manslaughter. of He stressed the denied, 867, 201, 449 101 66 State’s obligation prove beyond to a reason- United States v. Frady, (1980); L.Ed.2d 85 able doubt a specific kill, intent to a “con- 506, Carter v. (D.C.Cir.1980); 636 F.2d 509 objective: scious to cause death.” He listed Jago, (6 1980); facts F.2d 455 n.5 Cir. circumstances jury which the Duckworth, Jacks v. (7 “inferentially” consider in F.2d 485-87 determin- ing intent, Nelson’s Appeals and told The New York Court of jury the that it “should” course, consider these also has the circumstances. followed same sensible Even the offending ended, passage distinguishing and its as we own simi Getch, noted, with a People jury direction to the lar decision in 50 N.Y.2d Boyd followed”, 5. Justice Van Devanter’s remark in ed it and also with what is exceed- alone, an ingly pertinent instruction erroneous if it stood must here. preced- “be taken in connection with what had specific the to kill required intent to commit 407 N.E.2d 425 N.Y.S.2d degree where the second murder. The trial although in a case sub- had mitted both a charged presumption, the made the case on second had degree degree had a murder first throughout it “clear the manslaughter charge, requisite to decide choice and that was for them intent for cause manslaughter being all the circumstances in the case “to serious from physical had met burden of N.Y.Penal Law People injury,” whether the their 125.20. § actually intend- proving that the Before the court’s Nel- Green, People ed result.” N.Y.2d son thirty-one requests submitted 430 N.Y.S.2d N.E.2d including relating several to the issue of (1980). We to be hold that Request intent. His No. 17 underscored the situation here.6 shooting defense contention it- judgment The is reversed with instruc- self was insufficient to find intent petition. to deny tions kill necessary convict him murder. His Request No. stated: OAKES, Judge (dissenting): Circuit Every sane to in- I tend the natural and ruling probable conse- respectfully dissent. on Nel- However, quences of his acts. petition corpus son’s for habeas the district intent to kill is court element of judge’s found that the state instruc- the crime Murder tion on in the Second De- intent “rises to a level of constitu- gree and no inference of such intent mandating grant may tional violation” of the be drawn petition. I from mere of the act agree. shooting deceased. underlying would state the facts a little Moreover, Request Nelson’s 30 distin- less colorfully Judge Friendly’s opinion than guished personal intent inflict serious does, as Douglas follows. Robert died of injury causing from without death the spe- gunshot July wounds suffered on cific kill is an essential ele- According to principal the State’s three wit- ment of the in the crime murder second nesses, including the common-law wife of degree. persons deceased and two other who spent evening shooting of the The requests denied Nelson’s Manhattan, West 95th Street a number to charge relating except to intent people talking, were drinking, and they “charged listen- extent would be ing to music on West 95th during language.” princi- Street Court’s own court The evening hot hours. point pally charged At one late in as follows: evening Nelson, who drinking had been On this issue you wish to [of intent] was described “high,” as “excited” and be- examine, what motive there came involved quarrel in loud with anoth- threats, shooting. was for the What if er man. Douglas attempted to intervene in any, the defendant made to the victim. argument became more The of shots The number fired. location angry and suddenly abusive and drew a on the body. wounds victim’s revolver. Douglas knocked aside Nelson’s distance gun was fired. arm, deflecting shot, the first which struck And testimony alleged witnesses to ground. Douglas step then took the shooting; physical back- condition of ward. shots, Nelson fired two Also, more both of principle] defendant. is a there which hit Douglas in the chest. Nelson fled of law you may wish to shooting after intent, was arrested early determining person’s a and that the next morning. At is, there was no person presumed is to intend the defense other than that Nelson had consequences lacked probable natural and of his light holding, In of our preceding we have no occasion victions See trials it. United to consider ap- whether supra, Sandstrom Spiegel, should States v. 604 F.2d at 969. plied permit so as to collateral attack on con- cannot, objection instruction,

acts. A to that but the denial apart- throw off the roof of an someone Request preserved of his No. 20 his claim building say ment and then he was mere- against ultimate, judge’s different in ly conducting experiment dy- in aerial struction under N.Y.Crim.Proc.Law 470.- § yourself question: namics. You ask 05(2),1regardless of whether he excep took specif- Did have the William John Nelson tion. also argues nonetheless that Douglas. ic intent to kill Robert Lee he did exception, satisfying take the con given opportuni- While trial counsel was no temporaneous-objection rule, because trial ty permitted such as counsel are in federal fairly presented counsel the trial court to review or comment the trial objection his to the court’s presumption lan judge’s they instructions before were deliv- guage. any argues, In present he he jury, exception ered to the “very he took objection ed his to the appeal, instruction on strongly” following of the delivery opposed and the State his claim on the to the “extremely prejudicial” aerial-dy- raising merits without a procedural bar to example namics in the intent instruction. its consideration. instruction, Ending colloquy on this argument, second accepted by State’s stated, “I submit that constitutes a di- majority, is that the instructions on rection to the jury to find the defendant fully comported intent require- with the guilty of murder in the second degree. process ments of due when evaluated not in that,” except excepted addition he isolation but with reference to whether the again once give refusal court’s jury would understand the correct rule certain of his requested charges, including from the charge Taylor as a whole. v. Request No. 20. The returned a ver- Kentucky, 436 U.S. 98 S.Ct. guilty dict of of murder in the second de- (1978); Cupp Naughten, L.Ed.2d gree. 141, 146-47, 396, 400-01, While the majority opinion does not rest (1973). L.Ed.2d 368 As did the district on the argument State’s first pe —that court, I would answer that those instruc- titioner procedural is barred default tions denied process by allowing Nelson due from challenging the court’s in a presumption on a of his corpus under, habeas proceeding e.g., Wain requiring proof beyond intent instead of wright Sykes, doubt, my view this not (1977); L.Ed.2d 594 Gruttola v. Ham violated the rule of v. Montana mock, (2d 1981) 639 F.2d 922 must— I but also infected the whole trial. While the deal with it. The suggests State that Nel one, persuaded case is close I am son object passage failed to judgment of the district court should be in the state trial court’s instructions that upheld. the district court now found improper, has but actually requested that the trial court reject argument I would first the State’s virtually include a passage identical the charge given that the defense invited viz., Request first sentence of Request No. 20 because the first sentence “Every sane presumption referred to the that one in- intend the probable natural and conse conse- tends the natural quences of his acts.” quences Request of one’s acts. No. 20 read Request

But markedly attempts any No. 20 differed to show that such as a whole meaning judge’s applicable from the actual is not in this case instruc- tion. Not only [specific] did Nelson not waive his “no because inference [to statute, setting disposition 1. That matter or failure to rule or after forth New York’s rule, contemporaneous objection sufficiently accordingly states that to raise a instruct disposi- respect to such of law party who without success has either ex- any regardless of whether ac- failure tion or pressly impliedly sought requested or protest registered. particular instruction, tual thereto ruling or deemed to thereby protested the court’s ultimate procedural-default proof be drawn the mere of The including cases kill] of The shooting the act the deceased.”2 Wainwright Sykes; Gruttola v. Ham requested instruction to plainly was meant mock; Thomas, 467, 407 People v. 50 N.Y.2d of take Nelson’s case out the presumption, N.E.2d 429 N.Y.S.2d 584 are not to it. put case within inapposite objec because in those cases no tion was made at trial. And the has State petition

I would find that Nelson’s is not petitioner’s by procedural default, objection not shown at tri barred Nel- because son’s trial counsel to al insufficient excepted “specific was under New York law. charge. excep- Ross, intent” It is true that People v. 21 N.Y.2d 234 N.E.2d tion3 initially aerial-dynamics refers to the (1967), has bearing 287 N.Y.S.2d 376 no my itself was in view not here, it general objection held that a to but inflammatory. innocuous The ar- State testimony could regarding “conversations” gues understood objection preserve specific object only defense counsel to to the exam- provide to prior Government’s failure notice ple acquiesce presumption and to in the to the defense of admissions be of any language sen- preceding instruction’s fered, specific objection, because this had it however, disagree, tence. I as I believe stated, been could have been obviated objection that counsel’s the court’s hearing the voluntariness of those ad charge .. . the to find the “direct[ed] Here, contrast, legal missions. sub guilty of murder in the second objection following stance of the charge degree” fairly can going be read as Moreover, quite specific. was denial entire on intent: it was the combi- requested charges Nelson’s was itself the example, nation of the sentence about law, enough under New York even without it, presumed preceding intent omis- exception, protested an actual to “have requested sion language favorable to the ultimate disposition court’s the matter or defense, that to a amounted “direction” to rule accordingly failure to or instruct suffi the jury. together peti- When viewed ciently to raise a of law.” N.Y. Requests tioner’s renewal of Nos. 20 and 470.05(2). Crim.Proc.Law § sought 30—which on intent wrong if I foregoing, Even were departed from the trial court’s Washington Harris, 650 language petitioner’s objection F.2d 451-52 prop- was — erly (2d 1981), found go the district court to answers the State’s contem- charge taken as a poraneous-objection argument. whole. In Wash- use, suggested might say, It been has sen- I the second THE COURT: I intended to Request 20, stating my usually tence in infer- I that no I used the one it, use in course, attorney ence of to kill intent can be drawn because the district used shooting “from the mere act it in I didn’t think his summation. it would deceased,” light erroneous of the evi- highlight fair to it. point- dence that Nelson three fired shots at person one I intended use was the range. page blank But the State conceded on hit the head with ham- cannot someone over Appellate 51 of its brief before the division that say, merely swatting I mer be heard language proposed Request No. 20 was fly. at a law,” though “a correct statement of even MR. I submit that constitutes a JACOBSON: contended that an instruction on need guilty to-the find the defendant direction language. not contain that except degree. I murder the second that. except very strongly 3. MR. JACOBSON: it? THE COURT: That is giving example the Court an after MR. JACOBSON: Yes. said that a to intend the requests? Any THE COURT: consequence natural of his acts. my requests with MR. JACOBSON: I renew Immediately that, gave after the Court my following paragraphed in numbers these example extremely prejudicial which I consider charge. request to I should reiterate it think to the defendant. now, briefly. THE COURT: If a throws someone 28, 29, Paragraph 30 and 31. off the roof? request is THE COURT: Your denied. MR. JACOBSON: Yes.

276 given by instruction failed to district that the

ington Harris the defendant had v. object charge containing merely “permis- the Roberts not at trial to a Justice was instruction, “you person that a intends sive” as the State claims. The phrase may infer ., necessary principle] and and is a of law .. that that which is the natural “there and per- is, consequences person presumed the acts is to intend the natu- probable him,” acts,” probable consequences he did raise the issue ral formed and Division. The brief the issue of Appellate charged jury in the State’s on the virtually Appellate language in the Division addressed the the same as in Sand- Washington’s objection, but did v. jury merits strom Montana. the Appellate procedural charged presumes raise bar. The law that that “[t]he opinion. without person ordinary consequences Division affirmed Follow- intends the LeFevre, ing Callahan 605 F.2d 73-74 voluntary v. of his acts.” 442 at 99 (2d 1979), n.6 Cir. a case with a similar Supreme at The S.Ct. Court found 2453. procedural history, the court that held that could well in- jury Washington challenge could the instruction terpreted that instruction as either a con- federal notwith- proceeding, habeas clusive on the issue of intent standing there, the claim for the State’s or a mandatory presumption that uncon- time, first challenge that such a was barred stitutionally shifted to defendant Wainwright Sykes. Appellate under v. The proving burden lacked the intent Division’s opinion, affirmance without to kill to find deliberate homicide. Washington found, court indicated that 517-19, 99 at This Id. at S.Ct. 2455-2457. rather applying than a contemporaneous- requirement Winship, violated the of In re objection claim, requirement to bar the 1068, 1072, 397 U.S. 90 S.Ct. 25 passed merits. at 650 F.2d 452. (1970), L.Ed.2d 368 that the State carry proving beyond burden of a reasonable reading believe a fair of the State’s all of doubt the essential elements of the Appellate brief before the Division leads to Sandstrom, charged. crime 442 U.S. at the same result in this case. Here the 99 at S.Ct. 2457-58. pages State’s brief from 50 to 53 addressed the merits of the claim. The only conceiva- The in this as in instructions procedural ble claim of bar made Sandstrom, from de differed instructions Division, State to the Appellate mentioned scribing what other courts have found to brief, the majority, its page 54 of which, permissive inferences, unlike manda argued in which the State as set out generally tory presumptions, acceptable are margin.4 I do not believe lan- County See instructions. Ulster guage permits alone us to infer that Allen, 140, 157, v. 442 Appellate basis Division affirmed on the (1979). 60 777 in L.Ed.2d procedural Nor do default. I draw such in, e.g., structions at issue United v. States Appel- an inference the fact Tecumseh, (10th Cir.) 630 752-54 F.2d late Division’s affirmance was without find, (“you may weap from the use of such opinion, for Washington in both Harris v. on, explanatory absence of or miti Appellate Callahan LeFevre the Di- circumstances, gating existence of vision opinion although affirmed without malice which is an element of the essential confronted with the same serious constitu- denied, offense”), 961, 101 cert. 449 U.S. tional claim. L.Ed.2d United merits,

Reaching then, Davis, (6th while the States 608 F.2d one, (“It is a I agree 1979) ordinarily close with the reasonable to infer Moreover, offending charge in Sandstrom to intend the natural and given prosecution’s request, consequences Having requested had been of his acts.” strong exception. language, took defendant ob- well have been 512-514, 2453-2454, Sandstrom, jectionable U.S. at defendant S.Ct. at under cannot Here, actually request- complain L.Ed.2d at 44. in fact be heard to given “Every ed that the court under sane here constitutes error Sandstrom. ence, prob because the that a intends natural and introduced knowingly consequences able of acts done appropriate legal principle as one of which omitted”), knowingly cert. denied “may rely” wish to than rather one 1280, 100 S.Ct. 63 L.Ed.2d 602 U.S. view, it rely. my on which must a relies, which nei cases on the State jury gained reasonable would have no such presumes ther the law one fact stated that understanding from polite prefatory this re- another, discouraged jury’s nor the jury no more to mark. It invited the make other consideration of evidence. a to employ considered choice whether the burden-shifting presumption than the fa- contrast, jury pre- if the the By applied “you preface, miliar be interested case, to sumption by the charged court in this learn,” a jury ignore invites to what fol- undisput- it could well understood the have introduction, lows, “may the it Douglas please ed fact that Nelson shot and killed the court,” suggests to the to conclusively appellate have established us that counsel disputed fact —that Nelson had the intent argu- is unconcerned whether we favor his Sandstrom, to kill. at See ment. S.Ct. at The have jury then would Examining the trial judge’s language in been considering excused from all evidence context, and it considering how would have in suggesting this case that Nelson lacked jury, to a I rather sounded believe that a and he intended to juror may well have felt re- bodily Douglas, cause serious harm to quired employ the conclusive or rebut- cluding killing evidence that the a followed presumption. table The prosecutor first arguments series of heated and that Nelson suggested the presumption jury by drinking had “high.” been and possibly was using example summation an similar light portion Alternatively, of the earlier given one later trial by judge.5 the the the intent suggested other judge presumption, The then restated the circumstances from which to determine adding his thereby authority that of the intent, light Nelson’s and in of the trial prosecutor. further reinforced

judge’s various admonitions to consider all supposed validity appropriateness the and the verdict, evidence reaching before a the presumption by denominating of the it a interpreted could well have charge law,” “principle] of attendant below presumption a mandate of intent weight authority a be accorded fun- by rebuttable other evidence. id. at See legal Finally, truth. the impor- damental 517-18, 99 at 2455-2456. inter- Either the presumption augmented tance of was pretation have deprived would defendant of by aerial-dynamics due process, first relieving the State the jury made the issue concrete for obligation prove its ele- essential defense, possibility any ridiculed doubt, ment of intent a reasonable impressed well therefore 2458-59, see id. at at deeply any preceding as as of the lan- by shifting second Accordingly, I guage about intent. would intent, burden proof on the issue of see reject the State’s suggestion id. at 99 S.Ct. at 2459. I therefore judge’s prefatory phrase sufficiently miti- would find the unconstitutional un- gated improper instruction that fol- der Sandstrom. lowed. asserts, however,

The majority force made improper charge of Justice Roberts’s Even if had clear was mitigated, adequately “you may rely” language the con- its wish to and that clusive or rebuttable describ- was entitled not to em- it to choose ed permissive into ploy presump- transformed infer- conclusive or rebuttable highlight 5. The trial had it would be fair to it” after intended to use illus- think tration, summation; prosecutor already “the cannot hit someone over it in used result, say, dynamics the head with hammer I and be heard to aerial substituted the merely swatting fly,” example. at but he “didn’t 274-75, determine Nelson’s level S.Ct. at 255-256 tion and instead to (footnote omitted). Thus Sandstrom was all the I of intent based on facts of the Indeed, stating new law. more would have been “[f]or believe the instruction still century, than a condemned not, impermissible. jury may A consistent- has been held New Sandstrom York [the ly Winship, be to shift to with In re invited Appeals] erroneous as burden of on an the defendant ”. People matter of State law. v. Thom- .. charged. essential element crime as, 50 N.Y.2d at N.E.2d at significant do not find that Sand- Harris, in Taylor cited N.Y.S.2d strom was decided after the trial (2d 640 F.2d case. followed considerable do not also find a different outcome cases, including line of v. Morissette United suggested v. by County Ulster Court States, 342 72 96 S.Ct. L.Ed. U.S. Allen, which shortly was decided before Wilbur, (1952), Mullaney 421 and U.S. certainly Sandstrom and was not overruled (1975), S.Ct. L.Ed.2d 508 by Sandstrom, it. See at held unconstitutional instructions Court, at 2454. County In Ulster evading requirement the set forth Win- posses- which involved a instruction on ship prove that the every State element of sion rather than on intent as in this case a beyond criminal offense a reasonable Sandstrom, distinguished the the Morissette, doubt. In the “entirely permissive presump- inference or Court, quoting Judge after Andrews Peo- tion, which require— allows —but does not Flack, ple v. 125 N.Y. 26 N.E. the trier of fact to infer the elemental fact stated: proof by prosecutor from the of the basic places any one and that burden of no kind trial court not or withdraw [T]he defendant,” the 442 U.S. prejudge the issue instruc- [of intent] “mandatory from the presumption” tion that presumption the law raises a of “may only which strength affect not the of intent from act. It tempting an often is the ‘no reasonable doubt’ burden but also to cast in of a “presumption” terms placement of that burden [because] conclusion which court thinks they tells the trier that he or must find given from . . . facts. fact, fact elemental basic We presumptive think intent has no at least unless the has come for- place in this case. A presump- conclusive ward with some to rebut the pre- evidence tion testimony could not overthrow Id. sumed connection between facts.” would effectively eliminate intent as an In Ulster County Court trial ingredient of presumption the offense. A explicitly pre- cautioned the that “[t]he permit require would but not sumption presumptions is effective [sic] jury to assume intent from an isolated long so no there is substantial evi- fact prejudge would a conclusion which flowing contradicting dence the conclusion the jury should reach of volition. its own and the presumption, presumption A presumption which permit would disappear contradictory such said when jury to assumption make an which all the evidence is See 442 adduced.” U.S. at 161 evidence together considered does not n.20, case, by In 99 S.Ct. at 2227 n.20. our logically give proven establish would contrast, the trial followed the “prin- fact an artificial fictional effect. ciple] presumption language of law” or either presumption this would con- extraordinary example with the rather of flict with overriding presumption of throwing somebody off roof. The cau- innocence with which the law endows the tionary judge gave instructions the trial did accused every and which extends to ele- in- sweep cautionary not have the ment of the crime. incriminating Such County structions in Ulster Court. Justice presumptions are not to be improvised “you may did consider Roberts instruct that the judiciary. . . . any what evidence if that would show that presumed, ultimate fact that the this so under the influence so latter is defendant was “ ” to form intoxicant that was unable likely ‘more than not flow from’ kill,” but permis- mental intent crucial, former. Intent indeed the sion to such evidence could not consider only, hence I issue case and believe necessarily overcome allowing be wary we must the judge to 'charged a before. moment One does as a emphasize jury, permissive even have to on Wigmore be nursed to be con- inference, that “a ... intendfs] speaking fused a judge principle of a probable consequences natural of his law that presumes consequences one bodily acts.” An intent to cause harm? his acts. Although noted at necessarily. Yes. An to kill? Not the end of his instruction on intent that the People See Flack. could convict after consider- “[i]f jury charge an erroneous Finally, sus ing all you of the evidence find that rule, ceptible to the harmless-error see People have in- established defendant’s Sandstrom, 526-27, 442 U.S. at 99 S.Ct. at doubt,” tent beyond ... Sand- 2460-61; Harris, Washington v. 650 F.2d at strom suggests such a generalized here, however, 453-54. State has struction is insufficient to overcome the “prove failed a reasonable doubt prejudicial challenged effect lan- complained error of did not con guage charge. at 518-19 the verdict Chapman tribute to obtained.” n.7, Here, 99 S.Ct. at 2456 n.7. like California, 824, S.Ct. Sandstrom, Court in I reject would “not (1967). 17 L.Ed.2d 705 See United possibility jurors may that some have inter- 545, F.2d Robinson, (2d States preted challenged instruction permis- as sive, or, if mandatory, requiring the defendant come forward with stated, For reasons affirm. would However, ‘some’ evidence in rebuttal. fact juror that a giv- could have

en the presumption persua- conclusive or

sion-shifting means effect that we cannot

discount possibility jur- that [Nelson’s]

ors actually did proceed upon one or the

other of interpretations.” these latter Id. 99 S.Ct. at 2456-57.

Having pro- there was no Yaasmyn In the Matter of D. concluded cedural bar to this challenge constitutional FULA, Appellant. to the presumption language of the trial Docket 82-6001.

judge’s violated process, due I would not need to Appeals, States Court of United consider giving aerial-dynamics whether Second Circuit. example, to which trial unquestion- counsel Argued 1982. Jan. ably objected, was itself a conclusive burden-shifting presumption violating In re Decided Feb.

Winship and But I Sandstrom. have seri-

ous doubts about whether the illustration

was constitutionally permissible. I also doubts, which need not be resolved

here, about permissive whether even a

ference would appropriately have been

charged Court, here. Ulster County

U.S. at “ requires ” ‘rational connection’ between the basic proved

facts prosecution and the notes not,” “No, Transcript Trial and I Henry interview and between him a Detective Later, drinking,” didn’t see him id. at 580. shortly shooting. colloquy after the This ended response court, Spell ato from the as follows: testified, “No, say high,” I wouldn’t he was id. your THE COURT: that recol- Does refresh gave response regarding and a similar you that lection that said defendant was [the possibility that the defendant was intoxicat- anybody? high] to ed, id. at 585. THE WITNESS: No. asked, Bryant Witness Dennis was “Did [Nel- your it THE COURT: Does refresh recollec- intoxicated, appear perhaps?”, son] and you high? that tion felt defendant was replied, “I wouldn’t know about all that. But possible. THE WITNESS: It’s excited, just enough he was excited to shoot possible? THE COURT: It’s guy." Id. at 417. Nelson’s re- counsel high. he THE WITNESS: I felt was shortly thereafter, point turned high? You did feel he was Q. again Bryant responded, really “I don’t know way, I but I he was A. felt that never stated Douglas]. man. I heard threaten [Nelson high. high don’t know if he was or not.” Id. at 420. charge, “you Every to a criminal but sane presumed not a defense may any that consider what evidence if tend the natural and conse- would show that this defendant was so un- However, quences of his acts. a specific der the influence of an intoxicant that he intent to kill is as an element of a specific unable to form mental intent of Murder in crime the Second De- Douglas. respect, to kill Lee In this Robert gree, no inference of such intent you testimony should consider the concern- be drawn from the the act mere acts, ing alleged his con- the defendant’s shooting the deceased. before, duct, during and his words and after requests except The denied these Douglas.” Lee allegedly shot Robert they “charged extent would be stated, may, if “you also language.” delivery Court’s own After you testimony find from the motive [a] defendant’s counsel took no ob existed, along with all consider the other jection quoted to the first of the sentences determining factors in whether or not the above, namely, principal that “there is a Douglas intended to kill Mr. be- you may of law wish to yond [sic] a reasonable doubt.” He instructed intent, determining person’s not to consider Nelson’s is, flight “in determining his intent when and intend the victim, if he shot the Lee Douglas.” Robert probable consequences natural and of his He told the they need not find acts”, objected unsuccessfully that the any specif- intent to kill existed for illustration that followed. When Nelson period ic firing gun, before the raised the later decided case in

Case Details

Case Name: William J. Nelson v. Charles Scully, Warden

Court Name: Court of Appeals for the Second Circuit

Date Published: Jan 28, 1982

Citation: 672 F.2d 266

Docket Number: 254, Docket 81-2208

Court Abbreviation: 2d Cir.