672 F.2d 266 | 2d Cir. | 1982
Lead Opinion
The State of New York appeals from a judgment of the United States District Court for the Southern District of New York, Thomas A. Griesa, Judge, granting a petition for a writ of habeas corpus by William John Nelson. Nelson was convicted of murder in the second degree, N.Y. Penal Law § 125.25, in the New York. State Supreme Court on November 3,1976, before Justice Burton Roberts and a jury. He was sentenced to an indeterminate prison term of fifteen years to life.
One of Nelson’s claims in the Appellate Division was that an instruction given by the trial judge containing language concerning a person being’presumed to intend the natural and probable consequences of his acts operated to deprive Nelson of his constitutional rights in violation of the Su
Also, there is a principal [sic] of law upon which you may wish to rely in determining a person’s intent, and that is, a person is presumed to intend the natural and probable consequences of his acts. A person cannot, for example, throw someone off the roof of an apartment building and then say he was merely conducting an experiment in aerial dynamics.
Without undertaking an analysis of the rest of the charge, as required by Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368 (1973), the judge concluded:
Thus the jury was permitted to substitute a presumption of the kind described for its own finding, based on proof beyond a reasonable doubt, that the necessary intent existed for a second degree murder conviction — i.e., a specific intent to cause the death of another person.
Subsequently the judge denied a motion by the District Attorney for New York County for reconsideration on the basis that procedural grounds prohibited Nelson’s being heard in federal habeas with respect to the instruction which had been held to violate his constitutional rights. The State has appealed. We reverse.
The facts leading to Nelson’s conviction were as follows:
On the night of July 31, 1975, a group of some 20 people gathered as was customary on the sidewalk near the front of the Pennington Hotel at 316 West 95th Street in Manhattan and passed the time talking, drinking
Nelson’s response was to tell Douglas “it’s none of your fucking business”. While trying to keep Nelson and Frenchy apart, Douglas touched Nelson, who responded “I’m tired you fuckin’ niggers fuckin’ with me”
Nelson responded by drawing a revolver from his waist. Douglas was close enough to knock aside Nelson’s arm so that Nelson’s first shot struck the ground. In an effort to protect himself, Douglas took a step backward, whereupon Nelson leveled his revolver at Douglas’ chest, and fired twice more. Douglas fell to the ground, unconscious and gasping for breath with two bullet wounds in his chest. He died shortly thereafter.
The trial judge submitted the case to the jury on both a second degree murder charge, which requires an intent to kill, and a first degree manslaughter charge, for
Some pages later the judge turned to the charge of murder in the second degree. After reading the relevant portion of the indictment, he explained the two elements of the crime, causing the death of a person and having the intent to do so. Taking up the second element he explained that “before a person can be convicted of the crime of murder in the second degree you must be convinced beyond a reasonable doubt that he specifically intended to cause the death of Robert Lee Douglas, as opposed to the intent merely to injure him.” He added that “Under the definition contained in the Penal Law, a person acts intentionally with respect to a result when his conscious objective is to cause that result and when his act or acts result from that conscious intent.” After dwelling on the difficulty in determining intent, which is “the secret, silent operation of someone’s mind,” he said that this “can usually be proven only by the facts and circumstances leading up to and surrounding the acts constituting the crime. You have the right, therefore, to determine a person’s intent inferentially from what he did; from what he allegedly said, and from all the evidence and testimony you have concerning the facts and circumstances constituting this case.” (Emphasis added). The judge explained that these facts and circumstances included motive, threats made by the defendant to the victim, the number of shots fired, the location of the wounds on the victim’s body, the distance from which the gun was fired, the testimony of the alleged witnesses to the shooting, and the physical condition of the defendant. Then followed the passage which we have quoted above.
The judge then went on to the subject of intoxication,
The State’s contention that Nelson is not procedurally entitled to invoke federal habeas because of the quoted instructions is a substantial one. Before the court’s charge to the jury Nelson submitted thirty-one requests to charge, including several relating to the issue of intent. His request No. 20 was:
Every sane person is presumed to intend the natural and probable consequences of his acts. However, a specific intent to kill is required as an element of the crime of Murder in the Second Degree, and no inference of such intent may be drawn from the mere proof of the act of shooting the deceased.
The judge denied these requests except to the extent they would be “charged in the Court’s own language.” After delivery of the charge, defendant’s counsel took no objection to the first of the sentences quoted above, namely, that “there is a principal [sic] of law upon which you may wish to rely in determining a person’s intent, and that is, a person is presumed to intend the natural and probable consequences of his acts”, but objected unsuccessfully to the illustration that followed. When Nelson raised the later decided Sandstrom case in his brief in the Appellate Division, the State, in addition to answering on the merits, made the point that he could not be heard to rely on Sandstrom since he not only had not excepted to the presumption charged as Sandstrom had done, but requested it. The case thus falls, the State argues, within Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1976), and Gruttola v. Hammock, 639 F.2d 922 (2 Cir. 1981), holding that federal habeas generally will not lie when the petitioner has failed to make a timely objection required by state law.
Nelson responds that his trial counsel’s objection, although applying literally only to the second sentence, should have been understood as going also to the first; that, apart from this, the denial of his requested charge was sufficient under N.Y.Crim.Proc.Law § 470.05(2); and that in any event it was enough that he raised the point before the Appellate Division, citing in this connection Washington v. Harris, 650 F.2d
The trial judge in Sandstrom had charged baldly:
The law presumes that a person intends the ordinary consequences of his voluntary acts.
The effect of this upon “a reasonable juror”, 442 U.S. at 515, 99 S.Ct. at 2454, would be quite different from Justice Roberts’ telling the jury of a principle of law “upon which you may wish to rely.” To be sure, a trained lawyer possessing the analytical skill of our dissenting brother could parse the instruction as saying that the jury was free to rely or not to rely on the principle of law mentioned by the judge but that if it made the former choice, it would then be compelled to find that Nelson had the necessary intent unless he produced evidence to overcome the presumption. But this is attributing altogether too much legal acumen to the ordinary juror — who had not imbibed Wigmore’s Evidence with his mother’s milk. Evidently it made no such impression on Nelson’s counsel who had himself proposed the presumption language and objected only to the example. This was so extreme that its effect could only have been to lead the jury to choose not to rely on the principle of law in this case. And the judge immediately dispelled any improper effect of the presumption charge by peremptorily directing the jury:
You ask yourself this question: Did William John Nelson have the specific intent to kill Robert Lee Douglas.
Even if we were to look solely at the portion of the charge challenged by Nelson, the only conclusion a reasonable juror could draw was that he must determine from all the evidence, with leave to use the common sense notion that people do indeed intend the natural and probable consequences of their acts, whether or not, in firing two bullets at Douglas’ chest at point blank range, Nelson had the specific intent to kill. In other words, even if we were to look only at this one passage in the charge, we might well conclude that the case is attracted by Ulster County Court v. Allen, 442 U.S. 140, 157-63, 99 S.Ct. 2213, 2224-28, 60 L.Ed.2d 777 (1979), decided a fortnight before Sandstrom and accepted by it, 442 U.S. at 514, 99 S.Ct. at 2454, rather than by Sandstrom itself.
However, we need not and do not go so far. Cupp v. Naughten, supra, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368, dealt with a charge that “Every witness is presumed to speak the truth”, a presumption which could be “overcome” in certain ways, some of which demanded the production of evidence by the defense. Id. at 142, 94 S.Ct. at 398. The Supreme Court there reversed the Ninth Circuit’s grant of habeas corpus to a state prisoner on the ground that the effect of the instruction was to place the burden on the defendant to prove his innocence, 476 F.2d 845 (9th Cir. 1972), reh’g en banc denied by an equally divided court, 476 F.2d 845 (9th Cir. 1973). The Court began its analysis by stating, 414 U.S. at 146-47, 94 S.Ct. at 400:
In determining the effect of this instruction on the validity of respondent’s conviction, we accept at the outset the well-established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge. Boyd*272 v. United States, 271 U.S. 104, 107, 46 S.Ct. 442, 443, 70 L.Ed. 857 (1926).5
After referring to the Ninth Circuit’s conclusion that the effect of the instruction was to place the burden on defendant to prove his innocence, the Court stated that “the trial court gave, not once but twice, explicit instructions affirming the presumption of innocence and declaring the obligation of the State to prove guilt beyond a reasonable doubt.” Id., 414 U.S. at 147, 94 S.Ct. at 400. Noting the argument of the Court of Appeals that although such instructions had been given, “there was no instruction so specifically directed ... to have effected a cure,” 476 F.2d at 847, the Court thought, 414 U.S. at 147, 94 S.Ct. at 400, “this analysis puts the cart before the horse; the question is not whether the trial court failed to isolate and cure a particular ailing instruction, but father whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.”
In sharp contrast to the sparse boilerplate instructions on the presumption of innocence and the burden of proof beyond a reasonable doubt given in Sandstrom (U.S. App. 34-35), which the Supreme Court held insufficient to cure the presumption charge there given, supra, 442 U.S. at 518-19 n.7, 99 S.Ct. at 2456 n.7, the instructions given on those subjects in this case, which we have already summarized, were pointed, emphatic, repeated and detailed. The judge thoroughly explained the distinction between the intent required to sustain a charge of murder in the second degree, as distinguished from that required to support a charge of manslaughter. He stressed the State’s obligation to prove beyond a reasonable doubt a specific intent to kill, a “conscious objective: to cause death.” He listed facts and circumstances which the jury might “inferentially” consider in determining Nelson’s intent, and told the jury that it “should” consider these circumstances. Even the offending passage ended, as we have noted, with a direction to the jury to ask itself “this question: Did William John Nelson have the specific intent to kill Robert Lee Douglas.” After instructing further with respect to intoxication and the irrelevance of Nelson’s flight, the judge again emphasized that the jury must be convinced beyond a reasonable doubt that Nelson had the intent to kill, and that such a conclusion could be reached only “after considering all the evidence.” In this case, as distinguished from Sandstrom, supra, 442 U.S. at 518-19 n.7, 99 S.Ct. at 2456 n.7, there was simply no possibility that after all this hammering by the judge, “[t]he jury could have interpreted the two sets of instructions as indicating that the presumption was a means by which proof beyond a reasonable doubt as to intent could be satisfied.” We thus cannot conclude that the two offending sentences, taking about thirty seconds to deliver, “so infected the entire trial that the resulting conviction violates due process.” Cupp v. Naughten, supra, 414 U.S. at 147, 94 S.Ct. at 400. See Belton v. United States, 382 F.2d 150, 154-55 (D.C.Cir.1967).
Courts of appeals confronted by the many appeals and habeas corpus cases that have emanated from pre-Sandstrom trials have not dealt with the problem as the district court did here. Rather they made careful inquiry, as required by Cupp v. Naughten, supra, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368, to determine whether, taking the entire charge into consideration, there was any significant possibility that harm was done. See United States v. Spiegel, 604 F.2d 961, 968-70 (5 Cir. 1979); McInerney v. Berman, 621 F.2d 20, 22-24 (1 Cir.), cert. denied, 449 U.S. 867, 101 S.Ct. 201, 66 L.Ed.2d 85 (1980); United States v. Frady, 636 F.2d 506, 509 (D.C.Cir.1980); Carter v. Jago, 637 F.2d 449, 455 n.5 (6 Cir. 1980); Jacks v. Duckworth, 651 F.2d 480, 485-87 (7 Cir. 1981). The New York Court of Appeals also has followed the same sensible course, distinguishing Sandstrom and its own similar decision in People v. Getch, 50 N.Y.2d
The judgment is reversed with instructions to deny the petition.
. This was Nelson’s second conviction for homicide. In 1968 he had been convicted of manslaughter and received a sentence of zero to eight years (Trial Transcript 74).
. What and in what quantity the record does not disclose. In any event this drinking is immaterial since Nelson was not part of the crowd.
. Both Nelson and Douglas were black.
. Despite repeated pressure from Nelson’s counsel, the witnesses to the shooting resisted the suggestion that Nelson was intoxicated at the time he killed Douglas. Witness Godfrey Spell stated, “I don’t know if he was drinking or not,” Trial Transcript at 579, and “No, I didn’t see him drinking,” id. at 580. Later, in response to a question from the court, Spell testified, “No, I wouldn’t say he was high,” id. at 586, and gave a similar response regarding the possibility that the defendant was intoxicated, id. at 585.
Witness Dennis Bryant was asked, “Did [Nelson] appear to be intoxicated, perhaps?”, and replied, “I wouldn’t know about all that. But he just was excited, excited enough to shoot the guy." Id. at 417. Nelson’s counsel returned to the point shortly thereafter, and again Bryant responded, “I really don’t know man. I heard [Nelson threaten Douglas]. I don’t know if he was high or not.” Id. at 420.
The only evidence which might support the inference that the defendant was “high” is at page 422 of the Trial Transcript, where, after his making the statements just quoted, Bryant’s attention was called to notes of an interview between him and a Detective Henry shortly after the shooting. This colloquy ended as follows:
THE COURT: Does that refresh your recollection that you said that [the defendant was high] to anybody?
THE WITNESS: No.
THE COURT: Does it refresh your recollection that you felt the defendant was high?
THE WITNESS: It’s possible.
THE COURT: It’s possible?
THE WITNESS: I felt he was high.
Q. You did feel he was high?
A. I felt that way, but I never stated he was high.
*270 THE COURT: You didn’t know whether he was high, you just felt that?
THE WITNESS: Yes, because of the way he acted.
THE COURT: The way he acted, hollering and shooting the gun?
THE WITNESS: Yes.
Trial Transcript at 422.
Nelson did not testify.
. Justice Van Devanter’s remark in Boyd that an instruction erroneous if it stood alone, must “be taken in connection with what had preceded it and also with what followed”, is exceedingly pertinent here.
. In light of our holding, we have no occasion to consider whether Sandstrom should be applied so as to permit collateral attack on convictions at trials preceding it. See United States v. Spiegel, supra, 604 F.2d at 969.
Dissenting Opinion
(dissenting):
I respectfully dissent. In ruling on Nelson’s petition for habeas corpus the district court found that the state judge’s instruction on intent “rises to a level of constitutional violation” mandating a grant of the petition. I agree.
I would state the underlying facts a little less colorfully than Judge Friendly’s opinion does, as follows. Robert Douglas died of gunshot wounds suffered on July 31, 1975. According to the State’s three principal witnesses, including the common-law wife of the deceased and two other persons who had spent the evening of the shooting on West 95th Street in Manhattan, a number of people were talking, drinking, and listening to music on West 95th Street during the hot evening hours. At one point late in the evening Nelson, who had been drinking and was described as “excited” and “high,” became involved in a loud quarrel with another man. Douglas attempted to intervene in the argument but Nelson only became more angry and abusive and suddenly drew a revolver. Douglas knocked aside Nelson’s arm, deflecting the first shot, which struck the ground. Douglas then took a step backward. Nelson fired two more shots, both of which hit Douglas in the chest. Nelson fled after the shooting and was arrested early the next morning. At trial there was no defense other than that Nelson had lacked the specific intent to kill required to commit second degree murder. The trial judge submitted the case to the jury on both a second degree murder charge and a first degree manslaughter charge, the requisite intent for manslaughter being “to cause serious physical injury,” N.Y.Penal Law § 125.20.
Before the court’s charge to the jury Nelson submitted thirty-one requests to charge, including several relating to the issue of intent. His Request No. 17 underscored the defense contention that the shooting by itself was insufficient to find the intent to kill necessary to convict him of murder. His Request No. 20 stated:
Every sane person is presumed to intend the natural and probable consequences of his acts. However, a specific intent to kill is required as an element of the crime of Murder in the Second Degree and no inference of such intent may be drawn from the mere proof of the act of shooting the deceased.
Moreover, Nelson’s Request No. 30 distinguished intent to inflict serious personal injury without causing death from the specific intent to kill that is an essential element of the crime of murder in the second degree.
The trial judge denied Nelson’s requests to charge relating to intent except to the extent they would be “charged in the Court’s own language.” The court principally charged as follows:
On this issue [of intent] you may wish to examine, for example, what motive there was for the shooting. What threats, if any, the defendant made to the victim. The number of shots fired. The location of the wounds on the victim’s body. The distance from which the gun was fired. And the testimony of alleged witnesses to the shooting; the physical condition of the defendant. Also, there is a principle] of law upon which you may wish to rely in determining a person’s intent, and that is, a person is presumed to intend the natural and probable consequences of his*274 acts. A person cannot, for example, throw someone off the roof of an apartment building and then say he was merely conducting an experiment in aerial dynamics. You ask yourself this question: Did William John Nelson have the specific intent to kill Robert Lee Douglas.
While trial counsel was given no opportunity such as counsel are permitted in federal court to review or comment upon the trial judge’s instructions before they were delivered to the jury, he took exception “very strongly” following delivery of the charge to the “extremely prejudicial” aerial-dynamics example in the intent instruction. Ending his colloquy on this instruction, he stated, “I submit that constitutes a direction to the jury to find the defendant guilty of murder in the second degree. I except to that,” In addition he excepted once again to the court’s refusal to give certain of his requested charges, including Request No. 20. The jury returned a verdict of guilty of murder in the second degree.
While the majority opinion does not rest on the State’s first argument — that the petitioner is barred by a procedural default from challenging the court’s charge in a habeas corpus proceeding under, e.g., Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Gruttola v. Hammock, 639 F.2d 922 (2d Cir. 1981)—I must deal with it. The State suggests that Nelson not only failed to object to the passage in the state trial court’s instructions that the district court now has found improper, but actually requested that the trial court include a virtually identical passage in the charge, viz., the first sentence of Request No. 20, “Every sane person is presumed to intend the natural and probable consequences of his acts.”
But Request No. 20 differed markedly in meaning from the judge’s actual instruction. Not only did Nelson not waive his objection to that instruction, but the denial of his Request No. 20 preserved his claim against the judge’s ultimate, different instruction under N.Y.Crim.Proc.Law § 470.-05(2),
The State’s second argument, accepted by the majority, is that the instructions on intent fully comported with the requirements of due process when evaluated not in isolation but with reference to whether the jury would understand the correct rule from the charge as a whole. Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978); Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368 (1973). As did the district court, I would answer that those instructions denied Nelson due process by allowing the jury to rely on a presumption of his intent instead of requiring proof beyond a reasonable doubt, in my view this not only violated the rule of Sandstrom v. Montana but also infected the whole trial. While the case is a close one, I am persuaded that the judgment of the district court should be upheld.
I would first reject the State’s argument that the defense invited the charge as given because the first sentence of Request No. 20 referred to the presumption that one intends the natural and probable consequences of one’s acts. Request No. 20 read as a whole attempts to show that any such presumption is not applicable in this case because “no inference of [specific] intent [to
I would find that Nelson’s petition is not barred by procedural default, because Nelson’s trial counsel excepted to the “specific intent” charge. It is true that the exception
The procedural-default cases including Wainwright v. Sykes; Gruttola v. Hammock; People v. Thomas, 50 N.Y.2d 467, 407 N.E.2d 430, 429 N.Y.S.2d 584 (1980), are inapposite because in those cases no objection was made at trial. And the State has not shown that petitioner’s objection at trial was insufficient under New York law. People v. Ross, 21 N.Y.2d 258, 234 N.E.2d 427, 287 N.Y.S.2d 376 (1967), has no bearing here, as it held that a general objection to testimony regarding “conversations” could not preserve a specific objection to the Government’s failure to provide prior notice to the defense of any admissions to be offered, because this specific objection, had it been stated, could have been obviated by a hearing on the voluntariness of those admissions. Here, by contrast, the legal substance of the objection following the charge was quite specific. Moreover, the denial of Nelson’s requested charges was itself enough under New York law, even without an actual exception, to “have protested the court’s ultimate disposition of the matter or failure to rule or instruct accordingly sufficiently to raise a question of law.” N.Y.Crim.Proc.Law § 470.05(2).
Even if I were wrong in the foregoing, Washington v. Harris, 650 F.2d 447, 451-52 (2d Cir. 1981), answers the State’s contemporaneous-objection argument. In Wash
I believe a fair reading of the State’s brief before the Appellate Division leads to the same result in this case. Here the State’s brief from pages 50 to 53 addressed the merits of the claim. The only conceivable claim of procedural bar made by the State to the Appellate Division, mentioned by the majority, was at page 54 of its brief, in which the State argued as set out in the margin.
Reaching the merits, then, while the question is a close one, I agree with the district judge that the instruction given by Justice Roberts was not merely “permissive” as the State claims. The instruction, “there is a principle] of law .. ., and that is, a person is presumed to intend the natural and probable consequences of his acts,” charged the jury on the issue of intent in virtually the same language as in Sandstrom v. Montana. In Sandstrom the jury was charged that “[t]he law presumes that a person intends the ordinary consequences of his voluntary acts.” 442 U.S. at 513, 99 S.Ct. at 2453. The Supreme Court found that a reasonable jury could well have interpreted that instruction as either a conclusive presumption on the issue of intent or as a mandatory presumption that unconstitutionally shifted to the defendant the burden of proving that he lacked the intent to kill required to find deliberate homicide. Id. at 517-19, 99 S.Ct. at 2455-2457. This violated the requirement of In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970), that the State carry the burden of proving beyond a reasonable doubt all of the essential elements of the crime charged. Sandstrom, 442 U.S. at 521, 99 S.Ct. at 2457-58.
The jury instructions in this case, as in Sandstrom, differed from instructions describing what other courts have found to be permissive inferences, which, unlike mandatory presumptions, are generally acceptable in jury instructions. See Ulster County Court v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777 (1979). The instructions at issue in, e.g., United States v. Tecumseh, 630 F.2d 749, 752-54 (10th Cir.) (“you may find, from the use of such weapon, in the absence of explanatory or mitigating circumstances, the existence of the malice which is an essential element of the offense”), cert. denied, 449 U.S. 961, 101 S.Ct. 376, 66 L.Ed.2d 229 (1980), and United States v. Davis, 608 F.2d 698, 699 (6th Cir. 1979) (“It is ordinarily reasonable to infer
By contrast, if the jury applied the presumption charged by the court in this case, it could well have understood the undisputed fact that Nelson shot and killed Douglas to have conclusively established the only disputed fact — that Nelson had the intent to kill. See Sandstrom, 442 U.S. at 517, 99 S.Ct. at 2455. The jury then would have been excused from considering all evidence in this case suggesting that Nelson lacked that intent and that he intended only to cause serious bodily harm to Douglas, including evidence that the killing followed a series of heated arguments and that Nelson had been drinking and possibly was “high.” Alternatively, in light of the earlier portion of the intent charge, which suggested other circumstances from which to determine Nelson’s intent, and in light of the trial judge’s various admonitions to consider all the evidence before reaching a verdict, the jury could well have interpreted the charge below to mandate a presumption of intent rebuttable by other evidence. See id. at 517-18, 99 S.Ct. at 2455-2456. Either interpretation would have deprived defendant of due process, the first by relieving the State of its obligation to prove the essential element of intent beyond a reasonable doubt, see id. at 523, 99 S.Ct. at 2458-59, the second by shifting to the defendant the burden of proof on the issue of intent, see id. at 524, 99 S.Ct. at 2459. I therefore would find the charge unconstitutional under Sandstrom.
The majority asserts, however, that the force of Justice Roberts’s improper charge was adequately mitigated, and that the conclusive or rebuttable presumption it described was transformed into a permissive inference, because the judge introduced the inappropriate legal principle as one of which the jury “may wish to rely” rather than one on which it must rely. In my view, a reasonable jury would have gained no such understanding from this polite prefatory remark. It no more invited the jury to make a considered choice whether to employ the burden-shifting presumption than the familiar preface, “you may be interested to learn,” invites a jury to ignore what follows, or the introduction, “may it please the court,” suggests to us that appellate counsel is unconcerned whether we favor his argument.
Examining the trial judge’s language in context, and considering how it would have sounded to a jury, I believe rather that a reasonable juror may well have felt required to employ the conclusive or rebut-table presumption. The prosecutor first suggested the presumption to the jury by using in his summation an example similar to the one later given by the trial judge.
Even if the trial judge had made clear by its “you may wish to rely” language that the jury was entitled to choose not to employ the conclusive or rebuttable presump
I do not find it significant that Sandstrom was decided after the trial in this case. Sandstrom followed a considerable line of cases, including Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), and Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), that held unconstitutional instructions evading the requirement set forth in Win-ship that the State prove every element of a criminal offense beyond a reasonable doubt. In Morissette, for example, the Court, after quoting Judge Andrews in People v. Flack, 125 N.Y. 324, 334, 26 N.E. 267, 270 (1891), stated:
[T]he trial court may not withdraw or prejudge the issue [of intent] by instruction that the law raises a presumption of intent from an act. It often is tempting to cast in terms of a “presumption” a conclusion which a court thinks probable from given facts. . . .
We think presumptive intent has no place in this case. A conclusive presumption which testimony could not overthrow would effectively eliminate intent as an ingredient of the offense. A presumption which would permit but not require the jury to assume intent from an isolated fact would prejudge a conclusion which the jury should reach of its own volition. A presumption which would permit the jury to make an assumption which all the evidence considered together does not logically establish would give to a proven fact an artificial and fictional effect. In either case, this presumption would conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime. Such incriminating presumptions are not to be improvised by the judiciary. . . .
342 U.S. at 274-75, 72 S.Ct. at 255-256 (footnote omitted). Thus Sandstrom was not stating new law. Indeed, “[f]or more than a century, the charge condemned in Sandstrom has been held by [the New York Court of Appeals] to be erroneous as a matter of State law. .. . ” People v. Thomas, 50 N.Y.2d at 473, 407 N.E.2d at 432, 429 N.Y.S.2d at 587, cited in Taylor v. Harris, 640 F.2d 1, 2 (2d Cir. 1981).
I also do not find a different outcome to be suggested by Ulster County Court v. Allen, which was decided shortly before Sandstrom and was certainly not overruled by it. See Sandstrom, 442 U.S. at 514, 99 S.Ct. at 2454. In Ulster County Court, which involved a jury instruction on possession rather than on intent as in this case and Sandstrom, the Court distinguished the “entirely permissive inference or presumption, which allows — but does not require— the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and that places no burden of any kind on the defendant,” 442 U.S. at 157, 99 S.Ct. at 2224, from the “mandatory presumption” which “may affect not only the strength of the ‘no reasonable doubt’ burden but also the placement of that burden [because] it tells the trier that he or they must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the facts.” Id.
In Ulster County Court the trial judge explicitly cautioned the jury that “[t]he presumption or presumptions is [sic] effective only so long as there is no substantial evidence contradicting the conclusion flowing from the presumption, and the presumption is said to disappear when such contradictory evidence is adduced.” See 442 U.S. at 161 n.20, 99 S.Ct. at 2227 n.20. In our case, by contrast, the trial judge followed the “principle] of law” or presumption language with the rather extraordinary example of throwing somebody off a roof. The cautionary instructions the trial judge gave did not have the sweep of the cautionary instructions in Ulster County Court. Justice Roberts did instruct that “you may consider what evidence if any that would show that
Having concluded that there was no procedural bar to this constitutional challenge to the presumption language of the trial judge’s intent charge, and that the charge violated due process, I would not need to consider whether giving the aerial-dynamics example, to which trial counsel unquestionably objected, was itself a conclusive or burden-shifting presumption violating In re Winship and Sandstrom. But I have serious doubts about whether the illustration was constitutionally permissible. I also have doubts, which need not be resolved here, about whether even a permissive inference would have been appropriately charged here. Ulster County Court, 442 U.S. at 165, 99 S.Ct. at 2228, requires a “ ‘rational connection’ ” between the basic facts proved by the prosecution and the ultimate fact presumed, so that the latter is “ ‘more likely than not to flow from’ ” the former. Intent was the crucial, indeed the only, issue in this case and hence I believe we must be wary of allowing the judge to emphasize to the jury, even as a permissive inference, that “a person ... intendfs] the natural and probable consequences of his acts.” An intent to cause bodily harm? Yes. An intent to kill? Not necessarily. See People v. Flack.
Finally, an erroneous jury charge is susceptible to the harmless-error rule, see Sandstrom, 442 U.S. at 526-27, 99 S.Ct. at 2460-61; Washington v. Harris, 650 F.2d at 453-54. The State here, however, has failed to “prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). See United States v. Robinson, 545, F.2d 301, 306 (2d Cir. 1976).
For reasons stated, I would affirm.
. That statute, after setting forth New York’s contemporaneous objection rule, states that
a party who without success has either expressly or impliedly sought or requested a particular ruling or instruction, is deemed to have thereby protested the court’s ultimate disposition of the matter or failure to rule or instruct accordingly sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered.
. It has been suggested that the second sentence in Request No. 20, stating that no inference of specific intent to kill can be drawn “from the mere proof of the act of shooting the deceased,” was erroneous in light of the evidence that Nelson fired three shots at pointblank range. But the State conceded on page 51 of its brief before the Appellate division that the language proposed in Request No. 20 was “a correct statement of law,” even though it contended that an instruction on intent need not contain that language.
. MR. JACOBSON: I except very strongly to the Court giving an example after the Court said that a person is presumed to intend the natural consequence of his acts.
Immediately after that, the Court gave an example which I consider extremely prejudicial to the defendant.
THE COURT: If a person throws someone off the roof?
MR. JACOBSON: Yes.
THE COURT: I intended to use, I might say, the one I usually use in my charge, but I used it, of course, because the district attorney used it in his summation. I didn’t think it would be fair to highlight it.
The one I intended to use was the person cannot hit someone over the head with a hammer and be heard to say, I was merely swatting at a fly.
MR. JACOBSON: I submit that constitutes a direction to-the jury to find the defendant guilty of murder in the second degree. I except to that.
THE COURT: That is it?
MR. JACOBSON: Yes.
THE COURT: Any requests?
MR. JACOBSON: I renew my requests with these following numbers paragraphed in my request to charge. 1 think I should reiterate it now, briefly.
Paragraph 20, 21, 28, 29, 30 and 31.
THE COURT: Your request is denied.
. Moreover, the offending charge in Sandstrom had been given at the prosecution’s request, and the defendant took strong exception. 442 U.S. at 512-514, 99 S.Ct. at 2453-2454, 61 L.Ed.2d at 44. Here, defendant in fact requested that the court charge, “Every sane person is presumed to intend the natural and probable consequences of his acts.” Having requested that language, which might well have been objectionable under Sandstrom, defendant cannot be heard to complain that the charge actually given here constitutes error under Sandstrom.
. The trial judge had intended to use the illustration, “the person cannot hit someone over the head with a hammer and be heard to say, I was merely swatting at a fly,” but he “didn’t think it would be fair to highlight it” after the prosecutor had already used it in summation; as a result, he substituted the aerial dynamics example.