Petition — Henderson v. Kibbe

7 | Supreme Court, U.S

BFILED *,

OCTOBER TERM, 1975

“75-1906

Rosert J. Henperson, Superintendent, Auburn

Correctional Facility, Auburn, New York,

Petitioner,

against

Barry WarREN Kipsz,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

Louis J. Lerxow1rz

Attorney General of the

State of New York

Attorney for Petitioner

Office and P. O. Address

Two World Trade Center

New York, New York 10047

Tel. No. (212) 488-3385

Samue. A. HimsHow1Tz

First Assistant Attorney General

Marcery Evans REIFLER

Assistant Attorney General

Of Counsel

TABLE OF CONTENTS

SN SIN AS icin Snbn dade ce'nd Sense bees aks Kaur

AAR SE Py i FEEL eee

en SID. 25s Galid's Sheed de bwkweuba cose.

ND I. oc wna ei dendactdwel Gos a0s0e

Statement of the Case ................... bey Sie

i SR ie diet txnke cceenbanhenies te des

Se FD iicslis ch Fe oe kc bids Sondden das wos

ee Fe GE 6 bigs videccedcevies ses

D, Prior State Proceedings ...................

ey WUD WHOUUEID doc vcccdecncebsccigess

Reasons for Granting the Petition for Certiorari ..

A. The Court of Appeals’ refi.sal to evaluate the

challenged jury instruction in the context of

the trial and the entire charge is in direct con-

flict with decisions of this Court and that cir-

EE sink cond wnetnditeen sehalceeneokbnhanene

B. The opinion of the Court of Appeals conflicts

with and undermines the rule that a state

petitioner must show fundamental unfairness

to prevail in a federal habeas corpus proceed-

ee ns ak INS ok bed 6 PUNE GS red 85 0 rds 0c

el eee ae

Appendix B—Amendment to the Court of Appeals

Cie, Mier GO. TET occ cccccecsusess

Appendix C—Opinion of the United States District

Gepeee, aes A Ge nk dec eveccecesas

:

eo Nn PrP OO wOW Ww WN WH

ii TABLE OF CONTENTS

TABLE oF CasEs PAGE

Boyd v. United States, 271 U.S. 104 (1926) ...... 10, 11, 13

Bruton v. United States, 391 U.S. 123 (1968) ....... 10

Buchalter v. New York, 319 U.S. 427 (1943) ........ 9

Byrd v. Hopper, 402 F. Supp. 787 (N.D. Ga. 1975) .. 12

Cool v. United States, 409 U.S: 100 (1972) ........ 12,13

Cupp v. Naughten, 414 U.S. 141 (1973) ....... 8-10, 12, 13

Henderson v. Morgan, —— U.S. ——, 4 U.S.L.W.

ee A SE EE cick ch ans ces cnsaiuedokcenr 10, 11

. Lasenba vy. California, 314 U.S. 219, 236 (1941) ....12,14

Lyons v. Oklahoma, 322 U.S. 596 (1944) ............ 11

Milton v. Wainwright, 407 U.S. 371 (1972) ........ 13

People v. Kibbe, 41 AD2d 228, 342 N.Y.S.2d 386 (4th

Dept. 1973), affd. 35 NY2d 407, 362 N.Y.S.2d 848,

Gs Me CREED Onc Savcecss vbcuuecesds 3, 7,13

Pleas v. Wainwright, 441 F.2d 56 (5th Cir. 1971)... 12

Schaefer v. Leone, 443 F.2d 182 (2d Cir.), cert. den.,

FN, La nn eee er 9,13

United States v. Adreadis, 366 F.2d 423 (2d Cir.

SD ae nda dS 6.4 bok ak eres OUR Pe eka ekks ss 10

United States v. Evans, 484 F.2d 1178 (2d Cir. 1973) 10

United States v. Park, 421 U.S. 616 (1975) ...... 10, 11, 13

United States ex rel. Birch v. Fay, 190 F.Supp. 105

Nn DOE biducddbiens<sscnvkhasas cars 12

United States ex rel. Smith v. Montanye, 505 F.2d

ee Ae i NE ued ek ovens <eevedskcees 9

United States ex rel. Sianbridge v. Zelker, 415 F.2d

ee Ge is SE Ws dene eX occa eusae + cdeei ces 9

Wolff v. Rice, 44 U.S.L.W. 3485 (March 2, 1976) ... 8

STaTUTEs

RE oe 2

N.Y. Crim. Proc. Law § 470.15(3)(c), (6)(a) ........ 7

Bests PORES BG GE bce ccc vcs cccccvccecees 2, 4, 6

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No.

Rosert J. Henverson, Superintendent, Auburn

Correctional Facility, Auburn, New York,

Petitioner,

agaist

Barry WarkeN Kise,

Respondent.

s.

7

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

Petitioner Robert J. Henderson, Superintendent of Au-

burn Correctional Facility, Auburn, New York, prays for

a writ of certiorari to review a judgment of the United

States Court of Appeals for the Second Cireuit, dated

April 8, 1976, which granted respondent Kibbe’s habeas

corpus application to the extent of reversing his conviction

for second degree murder. This decision reversed the

judgment of the United States District Court for the

Northern District of New York, dated June 27, 1975, which

denied the application.

Opinions Below

The opinion of the Court of Appeals is not yet reported

and is reproduced herein as Appendix “A” (la-17a). The

amendment to the judgment and opinion is not yet reported

and is reproduced herein as Appendix “B’’ (18a-19a). The

opinion of the District Court is unreported and is repro-

duced herein as Appendix “C” (20a-23a).

, Jurisdiction

The jurisdiction of this Court is invoked pursuant to

28 U.S.C. §1254(1). The judgment of the Court of Ap-

peals was entered on April 8, 1976. A timely petition for

rehearing or rehearing en banc was denied on May 21,

1976.

Question Presented

1. Did the Court of Appeals err in reversing a state

murder conviction on the basis of an alleged omission in

the jury instruction when the Court did not evaluate the

instruction in the context of the entire proceeding, as re-

quired by fundamental principles of habeas corpus review

as well as prior decisions of this Court.

State Statute Involved

New York Penal Law:

“$125.25 Murder in the second degree

A person is guilty of murder in the second degree

when:

* * @

2. Under circumstances evinciig a depraved indiffer-

ence to human life, he reckless ~ engages in conduct

which creates a grave risk of de to another person

and thereby causes the death of auvther person ;”

3

Statement of the Case

A. Introduction

Petitioner is presently confined pursuant to a judgment

of conviction for the crimes of murder in the secoud de-

gree, robbery in the second degree, and grand larceny in

the third degree, rendered by the Monroe County Court

after a trial by jury. Petitioner was sentenced to 15 years

to life on the murder count, 5-15 years on the robbery

count, and up to 4 years on the grand larceny count. His

conviction was affirmed, with opinion, by the Appellate Di-

vision, People v. Kibbe, 41 A D 2d 228, 342 N.Y.S. 2d 386

[4th Dept. 1973], and the Court of Appeals. 35 N Y 2d

407, 362 N.Y.S. 2d 848, 321 N.E. 2d 773 (1974).

B. The Crime

On December 30, 1970, the victim of this crime, one

George Stafford, was drinking heavily in a Rochester bar

with petitioner and his co-defendant, Roy Krall. Stafford

inquired if anyone would give him a ride and petitioner and

Krall, who had already decided to steal his money, agreed.

Afver another few drinks in another bar, they entered peti-

tioner’s car at approximately 9:30 P.M.

While Krall drove, petitioner slapped Stafford several

times and took his money. Petitioner made Stafford lower

his trousers and take off his boots to prove that he had no

more money. Stafford was then abandoned on the shoulder

of a rural, two lane road, snow-banked on both sides. Staf-

ford, still partially undressed, was left with his jacket and

boots next to him; his eyeglasses remained in the car. The

temperature was near zero and gusting winds at times ob-

seured visibility, although it was not snowing. The road

was not lighted and there were no nearby houses. The

nearest structure was an open gasoline station approx-

imately one quarter of a mile away on the other side of the

highway.

4

William Blake, operating a pickup truck, was driving

at 50 miles per hour, 10 miles over the speed limit, when

two approaching cars flashed their headlights at him. Im-

mediately thereafter he saw Stafford sitting in the middle

of the road. Blake went into shock and did not have time

to react; he hit Stafford. He stopped to aid Stafford,

who was not wearing his jacket or boots. Stafford died

shortly thereafter of massive head injuries. Tests re-

vealed a high degree of intoxication.

C. The Trial and Charge

Petitioner and his co-defendant were indicted, inter clia,

for murder in the second degree, N.Y. Penal Law § 125.25

(2), which provides that a person is guilty of murder

when:

“2. Under cireumstances evincing a depraved in-

difference to human life, he recklessly engages in con-

duct which creates a grave risk of death to another

person, and thereby causes the death of another per-

son.”

In his opening statement, the prosecutor specifically

argued that defendants’ acts, while not the sole cause of

death, were nonetheless responsible for and a cause of

death. (T. 607-608),* The jury had been instructed by the

judge that the opening statement was to be considered a

preview of what each side intends to prove.

The trial strategy of the defense was:

“. . . to demonstrate that the immediate and culpa-

ble cause of Stafford’s death was Blake’s operation

* Numbers in parentheses preceded by the letter “T” refer to

the state trial transcript. The relevant portions of the trar:cript

have been filed with the Clerk of this Court.

5

of his truck and not the defendants’ conduct.” Court —

of Appeals Opinion, .°

To this end defense counsel conducted a vigorous cross-

examination of Blake and the Medical Examiner (see 7a).

Additionally, counsel had made a pre-trial motion to

dismiss the indictment on the ground of inadequate causa;

tion; the motion was renewed at the close of the prosecu-

tion’s case (see 7a-Sa). The motions were denied.

The trial court instructed the jury that the arguments

of counsel] were “advanced for your help in reaching a fair

and just verdict” and could be followed by the jury as long

as they were based on evidence received (T. 1173). In

his summation petitioner’s counsel repeated and accented

the elements of second degree murder (T. 1094). Co-de-

fendant’s counsel argued that if there were any depraved

indifference to human life it was on the part of Blake, who

“caused” Stafford’s death (T. 1117-1118}. Counsel de-

scribed Blake’s conduct and said “There you have the

cause of death.” (T. 1118). See also T. 1125.

In his summation the prosecutor repeatedly argued that

defendants’ reckless conduct caused Stafford’s death (T.

1132-1134, 1155) and that defendants could have anticipated

the risk of death by a vehicle (T. 1152-1155). He further

argued that these acts caused Stafford’s death even though

there “were not the only, the direct or most preceding cause

of his death” and gave an example of an intervening cause

which would not negate the original actor’s responsibility

for ensuing death (T. 1155-1157).

The jury was then charged by the trial judge. The

Court reread the indictment. The count charging second

degree murder tracked the language of 4 125.25(2) of the

* Numbers followed by the letter “a” refer to the pages of the

appendices annexed hereto.

4

6

‘|

Penal Law (T. 1162). The Court also stated that the jury

could follow the arguments of counsel in reaching its ver-

dict, as long as they were based on evidence received (T.

1173). The Court defined the terms “recklessly,” “de-

praved,” “grave,” and “indifferent” (T. 1187-1189) but did

not specifically define “cause.” The jury was instructed

that to convict the defendants of a crime, “all” elements

of the crime must be proved beyond a reasonable doubt

(T. 1189). Immediately after this instruction, the judge

reiterated the elements of second degree murder (T. 1190).

In briefly summarizing the evidence, the judge pointed to

evidence regarding the “death or running into of George

Stafford in the East River Road by an automobile—truck

or light truck” (T. 1197).

Additionally, upon its own request, the jury was given

a copy of the indictment so it would have all the language

of the various counts before it (T. 1209; see T. 1204-1206).

As previously stated, the indictment followed the language

of the statute. The juige stated:

“This copy of the indictment is given to you only

so you can see what words are used and the different

counts and consider whether the evidence as you find

it has met the burden of proof of which I advised

you.” (T. 1209).

When the jury returned a few hours later and requested

an explanation of all four counts, the Court repeated the

exact language of § 125.25(2) and said:

“All of these factors must coincide to render a per-

son guilty of murder under that section.” (T. 1916)

(emphasis added).

Petitioner was apparently satisfied that the issue of

causation was sufficiently and properly before the jury

since he made no objection to the charge and made no re-

quest for a separate instruction on causation.

D. Prior State Proceedings

Petitioner’s judgment of conviction was affirmed on ap-

peal. Petitioner’s brief to tue Appellate Division did not

challenge the jury charge. Petitioner simply argued that

there was insufficient evidence to support a conviction for

murder in the second degree, contending that the victim’s

death was caused by the truck driver, not petitioner. The

dissenting judge in the Appellate Division sua sponte

raised the issue of the jury charge on causation and held

that he would reverse in the interest of justice (N.Y.

Crim. Proc. Law § 470.15[3][{c], [6])[a]) because the in-

struction was inadequate. People v. Kibbe, supra, 41 A D

2d at 230-233. Because of this dissent the majority con-

sidered the charge in the “interest of justice” and held

the charge adequate although lacking in detail, noting

that petitioner had not objected at trial, made any request

at trial, nor challenged the charge on appeal. Jd. at 230.

The Court of Appeals refused to disturb the Appellate

Division’s discretionary determination that the conviction

would not be reversed in the interest of justice, also noting

that no exception or request with respect to the charge on

causation had been made in the trial court. People v.

Kibbe, supra, 35 N Y 2d at 413-414.

E. Federal Proceedings

Petitioner’s habeas corpus application to the United

States District Court for the Northern District of New

York was denied on June 27, 1975 (20a-23a). As to

the challenge to the jury instructions, the Court held that

the claim did not raise a question of federal constitutional

dimensions (21a).

In a two-one decision dated April 8, 1976, the Court of

Appeals reversing, granting the writ as to the murder con-

8

viction (la-l7a).* The majority of the panel rea-

soned that the failure of a trial court to adequately in-

struct a jury on any element of the crime deprives the

defendant of his right to have the jury apply the reasonable

doubt standard to that element and make a finding that the

proof on that element is sufficient beyond a reasonable

doubt (9a-13a).

The majority did not evaluate the challenged instruction

within the context of the entire charge and the entire trial

as required by this Court’s decision in Cupp v. Naughten,

414 U.S. 141, 147 (1973). Indeed, although Cupp was not

even cited by the Court, the Court specifically disavowed

this approach, since it refused to assess the contested in-

struction in light of the evidence before the jury and the

arguments of counsel, while recognizing that they raised

the issue of causation (7a-Sa, 10a, n.5).

Rather, the Court faulted the trial judge for his failure

to define causation when he defined the other elements of

the crime. The Court speculated that the jury may have

concluded that the issue of causation may not have been

before it or that it could infer causation from the chrono-

iogical sequence of events (10a). Alternatively, even if

the jury were aware of its duty to determine causation, the

majority thought that the instruction was inadequate to the

task because the legal standard was. complex (10a-12a).

The Court reasoned that with a proper instruction as to

intervening and supervening cause, that is, foreseeability,

the jury might have found that petitioner did not foresee

or could not have foreseen that the victim would have been

struck by a truck (13a).

* Petitioner also claimed that certain evidence admitted at trial

should have been suppressed. Assuming arguendo the issue cog-

nizable on habeas corpus (see Wolff v. Rice, 44 U.S.L.W. 3485

{March 2, 1976]), the Court held that it was without merit (3a,

n.1).

i]

The dissent (14a-17a) held that the challenged charge did

not reach constitutional dimensions entitling the petitioner

to habeas corpus relief. Against the background of the

summations and the overall charge, the dissent found that

the jury was plainly aware of the necessity of finding that

petitioner’s conduct was the cause of death, although it

may not have been the only cause. ‘‘In these circumstances

the court’s instruction was sufficient to enable the jury

intelligently to go about its business.’’ (16a). Accordingly,

the absence of a more definitive instruction on the element

of causation did not raise an issue of fundamental fairness

sufficient to reverse a state conviction in a federal habeas

corpus proceeding.

Reasons for Granting the Petition for Certiorari

A. The Court of Appeals’ refusal to evaluate the chal-

lenged jury instruction in the context of the trial and

the entire charge is in direct conflict with decisions of

this Court and that circuit.

Ordinarily, a challenge to a jury instruction given in a

state criminal trial will not be reviewed by the federal

courts. Buchalter v. New York, 319 U.S. 427, 431 (1943);

United States ex rel. Stanbridge v. Zelker, 514 F. 2d 45, 50

(2d Cir. 1975); United States ex rel. Smith v. Montanye,

505 F. 2d 1355, 1359 (2d Cir. 1974); Schaefer v. Leone, 448

F. 2d 182, 184 (2d Cir.), cert. den. 404 U.S. 939 (1971).

The only exception to the rule is a case in which the

fundamental fairness of the entire proceeding was infected

by the contested instruction. E.g. (Cupp v. Naughten

[‘‘Cupp’’], 414 U.S. 141, 147 [1973]), for example, where

the instruction shifted the prosecution’s burden of proof

or undermined the presumption of innocence (see post at

12-13). The exceptional case can be made out only by

analyzing the instruction under the precise standard set

forth by this Court in Cupp. In the instant case the Court

of Appeals failed to make such an analysis.

10

This Court’s mandate in Cupp was clear:

“In determining the effect of this instruction on the

validity of respondent's [state] conviction, we accept

at the outset the well-established proposition that a

single instruction may not be viewed in artificial isola-

tion but must be viewed in the context of the overall

charge. Boyd v. United States, 271 U.S. 104, 107

(1926). While this does not mean that an instruction

by itself may never rise to the level of constitutional

error, see Cool v. United States, 409 U.S. 100 (1972),

it does recognize that a judgment of conviction is com-

monly the culmination of a trial which includes testi-

mony of witnesses, argument of counsel, receipt of ex-

hibits in evidence, and instruction of the jury by the

judge. Thus, not only is the challenged instruction but

one of many such instructions, but the process of in-

struction is but one of many components of the trial

which may result in the judgment of conviction.”

Cupp, 414 U.S. at 147.

Accord, United States v. Park, 421 U.S. 616, 44 L. Ed 2d

489, 502-503 (1975). See Boyd v. United States, 271 U.S.

104, 107 (1926).*

Indeed, the Court of Appeals for the Second Circuit

has enunciated this same rule with regard to its own

appeals. E.g. United: States v. Evans, 484 F. 2d 1178,

1187-1188 (2d Cir. 1973); United States v. Adreadis, 366

F. 2d 423, 434 (2d Cir. 1966). Certainly state convic-

tions cannot be measured by any stricter test on collateral

federal review. Cf. Henderson v. Morgan, —— U.S. ——,

44 U.S.L.W. 4910, 4914 (June 17, 1976) (Rexnouist, J.,

* Conversely, recognition that a jury will consider the entire

proceeding, despite instructions to the contrary, was the basis for

ai holding in Bruton v. United States, 391 U.S. 123

11

dissenting) (“. . . certainly no more stringent a standard

could be applied as a matter of constitutional law on fed-.

eral habeas review of state convictions [than in federal

cases ]”’).

In the instant case the Court of Appeals effectively

disavowed the holding of Cupp (which the majority did

not even cite) since it refused to evaluate the challenged

charge in the context of the entire proceeding but rather

considered it in isolation. This was so despite the Court’s

stated recognition that the defense cross-examination as

well as the summations raised the issue of the cause of the

victim’s death (7a-8a, 10a, n.5).

The issue of causation was raised by the prosecutor in

his opening statement and by both the defense counsel and

the prosecutor in their summations, as well as by the evi-

dence before the jury. Additionally, the jury had the in-

dictment (which tracked the language of the statute) be-

fore it and was instructed by the trial court that it must

find every element against petitioner beyond a reasonable

doubt (ante at 46). Accordingly, had the majority

evaluated the allegedly ailing instruction in light of the

evidence, arguments of counsel, and the overall charge, it

would have been apparent that the jury’s attention was

adequately focused on the necessity of finding that peti-

tioner’s acts caused the victim’s death.* See United States

v. Park, swpra, 44 L. Ed. 2d at 502. As the dissent stated:

“the court’s instruction was sufficient to enable the jury

intelligently to go about its business.” (16a). See Lyons

v. Oklahoma, 322 U.S. 596, 601 (1944) (Specificity of state

* Here, as in Boyd v. United States, supra, 271 U.S. at 107-

108, petitioner’s counsel (whose competency is unchallenged) raised

n» objection to the charge as given and made no requests, nor did

he challenge the charge in his brief to the Appellate Division. The

charge was obviously regarded as satisfactory to put the issue be-

fore the jury.

12

court charge is a matter of state procedure as long as it

fairly raises the issue).

The Court of Appeals’ decision should be reviewed be-

cause it is in direct conflict with this Court’s holdings as

well as its own decisions. The decision establishes bad

precedent for future review of challenged jury instrue-

tions, particularly in federal habeas review of state convie-

tions where the yardstick for measuring due process claims

is fundamental unfairness. See Point B, post.

B. The opinion of the Court of Appeals conflicts with and

undermines the rule that a state petitioner must show

fundamental unfairness to prevail in a federal habeas

corpus proceeding.

The yardstick for measuring a due process challenge to

a state criminal trial is the “failure to observe that funda-

mental fairness essential to the very concept of justice.”

Lisenba v. California, 314 U.S, 219, 236 (1941). The jury

instruction test propounded by this Court in Cupp is pre-

cisely adapted to this end. It requires that the challenged

instruction be evaluated in the context of the whole pro-

ceeding to ascertain if it “so infected the entire trial that

the resulting conviction violates due process.” Cupp, 414

U.S. at 147. See also Pleas v. Wainwright, 441 F. 2d 56

57 (5th Cir. 1971); Byrd v. Hopper, 402 F. Supp. 787, 788

(N.D. Ga. 1975); United States ex rel. Birch v. Fay, 190

F. Supp. 105, 107 (S.D.N.Y. 1961). ;

In fact, those eases which have reached this Court have

involved specifie instructions by the trial judge on the

issues Of presumption of innocence or burden of proof

matters which clearly might affect the fundamental fair-

ness of a criminal trial. In Cupp, the challenged portion

of the charge was a “presumption-of-truthfulness” instrue-

tion which petitioner claimed shifted the State’s burden

to prove guilt beyond a reasonable doubt. 414 U.S. at 142-

145. Similarly, in Cool v. United States, 409 U.S. 100

13

(1972), a charge that an accomplice’s testimony should be

credited if believed beyond a reasonable doubt was chal-

lenged and sustained on the ground that it collided with

the presumption of innocence and lessened the Govern-

ment’s burden of proof. Jd. at 104.°

Since the federal habeas courts review only for viola-

tions of federal constitutional standards and not to re-

try cases de novo (Milion v. Wainwright, 407 U.S. 371,

377 [1972]; Schaefer v. Leone, supra, 443 F. 2d at 184),

the Court of Appeals evaluation of the challenged charge

in “artificial isolation” (Cupp, 414 U.S. at 147) not only

conflicts with this Court’s earlier decisions but also under-

mines fundamental principles of habeas corpus review.

The erosion of the fundamental unfairness standard in

habeas review is an injustice to the federal judiciary as

well as to the States. The decision of the majority opens

the doors of the federal habeas courts to hundreds of

state prisoners who can now claim that the charge in their

trials contained a defective or inadequate instruction on

a material element of the crime, and that accordingly, that

element of the crime was not properly before the jury for

a finding beyond a reasonable doubt. That few of these

petitioners might prevail is of little moment to the courts

who must decide the cases, or to the state attorneys who

must read the transcripts and file a response. Cf. Schaefer

v. Leone, supra, 443 F. 2d at $84.

In the instant case, the lack of detail by the trial court

on the word “cause”, conceded by the state appellate courts

(People v. Kibbe, 41 A D 2d at 230; 35 N Y 2d at 414),

raises at most a question of state law error. In no event

*In United States v. Park, supra, 44 L. Ed. 2d 489 and Boyd

vy. United States, supra, 271 U.S. 104, this Court was acting in its

supervisory authority over the federal courts in reviewing other

types of charges given in federal trials.

14

is this a case in which an error has fatally infected the

trial, “necessarily” preventing a fair trial. Lisenba v.

California, supra, 314 U.S. at 236. The failure of the

Court of Appeals to evaluate the challenged instruction in

the context of the entire trial and its concomitant failure

to analyze for fundamental unfairness in the trial is a dis-

service to the basic principles governing the application of

the Due Process Clause and to the tenets underlying

habeas corpus jurisdiction.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Dated: New York, New York, June 30, 1976.

Respectfully submitted,

Louis J. Lerxowrrz

Attorney General of the

State of New York

Attorney for Petitioner

Samvuet A, Hirspowrrz

First Assistant Attorney General

Marcery Evans REriruer

Assistant Attorney General

of Counsel

la

APPENDIX A

Opinion of the United States Court of

Appeals for the Second Circuit, April 8,

1976.

UNITED STATES COURT OF APPEALS

For tHe Seconp Circuit

+r

No. 554—September Term, 1975.

(Argued January 16, 1976 Decided Apri! 8, 1976.)

Docket No. 75-2128

1).

Barry Warren Kispz,

Petilioner-A ppellant,

—V—-

Rosert J. Henverson, Superintendent,

Auburn Correctional Facility,

Respondent-A ppellee.

Before: 3 eve

Lumsarp, Smita and MansFIELD,

Circuit Judges.

<+-o->-

Appeal from an order of the United States District Court

for the Northern District of New York, James T. Foley,

Chief Judge, denying petition for habeas corpus. Petitioner

claims that trial judge’s incomplete instructions to jury

constitute a denial of due process.

Reversed.

+or

Suema Ginsserc, Esq., New York, New York

(William J. Gallagher, Msq., The Legal Aid

3081

2a

Appendix A.

Society, Federal Defender Servicés’ Unit,

New York, New York, on the brief), for

Petitioner-A ppellant.

BarBara SHore Resnicorr, Assistant Attorney

General, New York, New York (Louis J.

Lefkowitz, Attorney General of the State of

New York and Samuel A. Hirshowitz, First

Assistant Attorney-General, on the brief),

for Respondent-A ppellee.

so

LumBarD, Circuit Judge:

After a jury trial in New York’s Monroe County Court,

Barry Warren Kibbe was found guilty on November 30,

1971 of murder, robbery in the second degree and grand

larceny in the third degree. He brings this appeal from

an order of the Northern District denying his petition for

habeas corpus which was sought, in part, because the trial

judge failed to charge the jury with respect to causation

of death on the murder count. The bizarre circumstances

that prompted Kibbe’s apprehension and conviction for

murder present one of yp re in which a habeas

‘corpus petition pursuant U.S.C, §2254 genuinely

| puts at issue the guilt or innocence of an accused. See

Schneckloth v. Bustamonte, 412 U.S. 218, 250-75 (1973)

(Powell, J., concurring); Ralls y. Manson, 503 F.2d 491,

494-99 (2d Cir. 1974) (Lumbard, J/., concurring). We hold

that the trial judge’s instructions permitted the jury, in

its fact-finding process to disregard Kibbe’s colorable

claim that, as to the murder charge, his actions had not

caused the death of a decedent and thus violated Kibbe’s

constitutional right to have every element of the crime

~ with which he was charged proven beyond a reasonable

3082

3a

Appendix A.

doubt. We therefore grant the writ with respect to the

murder count.’

Kibbe and his codefendant, Roy Krall, met the decedent,

George Stafford, at a bar in Rochester, New York on the

evening of December 30, 1970. Stafford had been drinking

heavily and by about 9:00 p.m. he was so intoxicated that

the bartender refused to serve him further. Apparently

the defendants saw Stafford offer a one hundred dollar

bill for payment, which the bartender refused, At some

point during the evening, Stafford began soliciting a ride

to Canandaigua from the other patrons in the bar. Kibbe

and Krall, who confessed to having already decided to

rob Stafford, offered a ride and the three men left the bar

together. Before starting out for Canandaigua, the three

visited a second bar. When the bartender at this bar also

refused to serve Stafford because of his inebriated condi-

tion, the three proceeded to a third bar, where each was

served additional drinks. or

Kibbe, Krall and Stafford left for Canandaigua in Kib-

be’s car about 9:30 that evening. According to statements

of the defendants, as Krall was driving the car, Kibbe

demanded Stafford’s money and, upon receiving it, forced

Stafford to lower his trousers and remove his boots to

prove he had no more. At some time between 9 :30 and

9:40 p.m., Stafford was abandoned on the side of a unlit,

rural two-lane highway. His boots and jacket were also

placed on the shoulder of the highway; Stafford’s eye-

glasses, however, remained in the car. There was testi-

mony that it was “very cold” that night and that strong

claims writ should issue because certain evidence

obama ous ae violation of the Fourth Amendment pro

scription against unreasonable seizures. Even if Fourth Amendment

claims are cognizable on habeas corpus, a matter presently before the

Supreme Court, see Wolff v. Rice, 44 U.S.L.W. 3485 (U.8. March 2,

1976), we would find this claim to be without merit.

3083

La

Appendix A.

winds were blowing recently failen snow across the high-

way, although the night was clear and the pavement was

dry. There was an open and lit service station in the gen-

eral vicinity, but testimony varied as to its precise dis-

tance from the place where Stafford was abandoned. In

any case, the station was no more than one-quarter of a

mile away.

About half an hour after Kibbe and Krall had aban-

doned Stafford, Michsei Blake, a college student, was

driving his pickup truck northbound on the highway at

50 miles an hour, ten miles per hour in excess of the

posted speed limit. A car passed Blake in a southbound

direction and the driver flashed his headlights at Blake.

Immediately thereafter, Blake saw Stafford sitting in the

middle of the northbound iane with his hands in the air.

Blake testified that he “went into a kind of shock” as soon

as he saw Stafford, and that he did not apply his brakes.

Blake further testified that he did not attempt to avoid

hitting Stafford because he “didn’t have time to react.”

After the collision, Blake stopped his truck and returned

to assist Stafford, whereupon he found the decedent’s

trousers were around his ankles and his shirt was up to

his chest. Stafford was wearing neither his jacket nor

his boots.

Stafford suffered massive head and body injuries as

a result of the collision and died shortly thereafter. An

autopsy revealed a high alcohol concentration of .25% in

his blood. The Medical Examiner testified that these in-

juries were the direct cause of death.

Kibbe and Krall were apprehended on December 31,

1970. They were tried for robhery and for the murder of

Stafford under New York Penal Law §125.25(2) which

provides:

3084

5a

Appendix A.

A person is guilty of murder in the second degree

when:

(2) Under circumstances evincing a depraved in-

difference to human life, he recklessly engages in con-

duct which creates a grave risk of death to another

person, and thereby causes the death of another per-

son.’

- In his charge to the jury, the judge failed to define

or explain the issue of causation as that term is used in

§125.25(2). No mention was made of the legal effect of

intervening or supervenl ause. Nevertheless, de ense

0 take any exception>whatsoever to this

omission. The jury returned guilty verdicts on the charges

of second degree murder, second degree robbery, and

third degree grand larceny. Kibbe was sentenced to con-

current terms of imprisonment of 15 years to life on the

murder conviction, 5 to 15 years on the robbery convic-

tion, and up to 4 years on the grand larceny conviction.

The Appeliate Division affirmed the conviction - find-

ing that there was sufficient evidence that Stafford’s death

was caused by appellant’s acts “as well as by the acts of

Blake.” The court stated that while the trial judge’s charge

concerning causation was “lacking in detail” appellant had

not questioned the sufficiency of the charge on appeal and

no exceptions to or requests for a charge on causation had

been made at trial. People v. Kibbe, 41 App. Div. 2d 228

(4th Dept. 1973). Justice Cardamone dissented on the

ground that the issue of causation should have been sub-

mitted to the jury. The New York Court : Appeals ase

cient evidence of causation and unanimously

ak Ue convictions. People v. Kibbe, 35 N.Y.2d 407

2 Intent to kill is not a requirement under the statute.

3085

6a

Appendix A.

(1974). Although the sufficiency of the charge was argued

before the Court of Appeals, the court held that it was

within the Appellate Division’s discretion to refuse to re-

verse on those grounds.

Kibbe then petitioned for habeas corpus in the District

Court for the Northern District. Judge Foley denied the

petition and, on the question of the jury charge, noted that

the correctness of instructions does not raise a constitu-

tional claim cognizable on habeas corpus.* Appeal to this

court followed.

Deliberate Bypass

The state appellate courts declined to consider the suf-

ficiency of the trial judge’s charge because appellant failed

at trial to take an exception to or make a request for an

instruction respecting causation. Mindful of the limited

role that federal courts must play in reviewing the conviec-

tions of state prisoners, we may inquire further regarding

Kibbe’s claims only if his omission did not constitute a

deliberate bypass of the orderly procedures of the state

courts.* Fay v. Nota, 372 U.S. 391 (1963).

This court has not hesitated to find a deliberate bypass

that precludes federal habeas corpus relief when failure

to make a contemporaneous objection, mandated by the

state’s valid procedural rules, comported with trial strat-

3 Judge Foley cited United States ex rel. Mintzer v. Dros. 403 F.2d

42 (2d Cir. 1967) for this proposition. In that case, however, the

court held only that the specific objecti

: jections there at issu

questions of constitutional dimension. © failed to raise

The interest of the state in protecting its procedural rules seems so

what diminished here by the fact that on this appeal the Attorn a

eral of New York has not even argued or briefed the theory chat | Kibbe

deliberately bypassed his right to object to the trial judge's char Sec

Wright & Sofner, Federal Habeas Corpus for State the The

Allocation of Fact Findi i

pony nding Responsibility, 75 Yale L.J. 895, 961-62

3086

7a

Appendix A.

egy contrived by the defendant and his counsel. See

United States ex rel. Terry v. Henderson, 462 F.2d 1125

(2d Cir. 1972); United States ex rel. Cruz v. LaVallee,

448 F.2d 671 (2d Cir. 1971), cert. denied, 406 U.S. 958

(1972) ; United States ex rel. Schaedel v. Follette, 447 F.2d

1297 (2d Cir. 1971). In Cruz, for instance, where appellant

had failed at trial to object to the admissibility of an alleg-

edly coerced confession, the court determined that it was

the deliberate and consistent trial strategy of the defense

not to question the voluntariness of the defendant’s state-

ment. 448 F.2d at 673. It was found that questioning the

validity of the confession would have conflicted with the

defense tactic of conceding the defendant’s act but assert-

ing the existence of mitigating circumstances. Thus, the

deliberate bypass of a contemporaneous objection precluded

later habeas relief.

This case, however, presents a wholly different situa-

tion. It is clear from the 1300 pages of pre-trial and trial

transcript that the defense strategy was to demonstrate

that the immediate and culpable cause of Stafford’s death

was Blake’s operation of his truck and not the defendants’

conduct. Prior to commencement of trial, Kibbe’s counsel

unsuccessfully moved to dismiss the indictment on the

ground that the grand jury testimony dealing with the

murder count revealed that defendants had left Stafford

off the road and that he had been killed by a collision in

the middle of the highway. Counsel for both Kibbe and

Krall cross-examined Blake extensively on the speed he

was traveling, the weather and road conditions, and his

reactions after he spotted Stafford in front of him. The

attorneys also vigorously questioned the Medical Examiner

to establish that the collision was the immediate cause of

Stafford’s death. At the close of the prosecution’s case,

counsel renewed the motion to dismiss the murder count,

Attorneys for both Kibbe and Krall argued the motion in

3087

8a

Appendix A.

terms of the prosecution’s failure to demonstrate the neces-

sary causation. Krall’s attorney stated:

It’s our contention that the People’s proof has failed

to prove the guilt of the defendant beyond a reasonable

doubt as a matter of law in connection with that count.

The proof had been shown that the cause of death of

this [decedent] was severe injuries sustained through

being struck by an automobile which the driver of

which testified to operating it at a speed of 50 miles

an hour in a 40-mile an hour zone. That he saw this

form on the roadway when a hundred, two hundred

feet away and made no effort to avoid it because, as

he said, he was shocked and therefore did not apply

the brakes and did not swerve his wheels in an effort

to avoid this man. The defendant Roy Krall was under

no obligation to anticipate a result like that.

Kibbe’s attorney joined in the motion with a similar argu-

ment. The motion to dismiss was renewed and denied once

more at the close of the entire ease.

In their summations to the jury, defense counsel again

argued that insufficient proof of causation required a judg-

ment of acquiital on the murder charge. Kibbe’s counsel

maintained that the evidence failed to demonstrate that

Stafford was left in a helpless condition and that some

of the indications of helplessness, e.g., the disarray of his

clothing, may have been caused by the impact of the

collision.

These constant references to causation indicate that

Kibbe sought to convince the court and jury that his

conduct was not the culpable factor in Stafford’s death.

Nevertheless, no objection was taken to the trial judge’s

failure to charge the jury on the question of causation.

In light of the conscions trial strategy of the defense,

3088

9a

Appendix A.

however, we believe that this omission was obviously inad-

vertent and does not constitute a deliberate bypass. See

United States ex rel. Schaedel v. Follette, 447 F.2d 1297,

1300 (2d Cir. 1971). We therefore proceed to consider the

merits of appeliant’s petition.

Error in the Instruction

Kibbe now contends that the question of causation was

a pivotal issue at trial and that the judge’s failure to

instruct the jury with respect to that issue allowed the

jury to convict without finding that every element of the

crime had been proven beyond a reasonable doubt. On

the limited and singular facts of this case, we agree.

In order to satisfy the constitutional requirements of

due process, a criminal conviction must be supported by

proof beyond a reasonable doubt of every fact necessary

to constitute the crime charged. In re Winship, 397 USS.

358, 364 (1970). It is the essence of a fair trial and of

the right to jury trial that the jury apply the reasonable

doubt standard to determine those issues of fact that bear

on the elements of the offense, see United States v. Screws,

325 U.S. 91, 107 (1945); United States v. Hayward, 420

F.2d 142 (D.C. Cir. 1969), and presumably it is in accor-

dance with this mandate that New York requires the trial

judge to state to the jury “the material legal principles

applicable to the particular case, and, so far as practicable,

explair the application of the law to the facts... .

N.Y.C.P.L. $300.10 (McKinney 1971). See People v. Walk-

er, 198 N.Y. 329, 334 (1910) (every essential element of a

crime presents a question of fact for the jury’s exclusive

determination).

In this case, by the language of the statute, the state

was bound to prove to the jury beyond a reasonable doubt

that appellant evinced a depraved indifference to Staf-

3089

10a

Appendix A.

ford’s life, recklessly engaged in conduct that created a

grave risk of Stafford’s death, and thereby caused Staf-

ford’s death. The court scrupulously instructed the jury

with respect to the meaning of “recklessly”, “depraved”,

“grave”, and “indifferent” as used in Penal Law §125.25(2).

The omission of any definition of causation, however, per-

mitted the jury to conclude that the issue was not before

them or that causation could be inferred merely from the

fact that Stafford’s death succeeded his abandonment by

Kibbe and Krall.

Even if the jury were aware of the need to determine

causation,® the court’s instruction did not provide th ols

necessary to that task. The possibility that jurors, as lay-

men, may misconstrue the evidence before them makes

mandatory in every case instruction as to the legal stan-

dards they must apply. See United States v. Burse, Docket

5 The trial judge made brief mention of the term “causation” in his

charge when he stated: “You will not consider either (first degree man-

slaughter or second degree manslaughter) unless you feel that these

defendants or either of them, was guilty of causing the death of George

Stafford recklessly.” This instruction, however, was given in the context

of explaining the relation between reckless conduct and manslaughter

rather than in the context of a definition of causation. In fact, by

emphasizing “recklessly”, the judge may have implied that the jury

could assume causation and had only to determine whether recklessness

was involved.

The above recounting of numerous instances in which the defe.se

attempted to shift responsilility for Stafford’s death away from appel-

lant suggests that the jury may have been aware of the necessity of

finding that appellant's conduct was the cause of that death. The mo-

tions to dismiss for failure of the prosecution to demonstrate causation,

however, were made outside the presence of the jury; although the de-

fense also raised the cavsation question in summations, Kibbe’s counsel

began his summation by noting that his remarks did not constitute evi-

dence and that the trial judge alone was responsible for instructing

the jury reyarding the law. In the absence of an instruction concerning

causation, the jury was unlikely to make the inference that it was to

determine the question of causation from hearing the statute read and

from listening to the defense exumination of witnesses. In any event,

there was no detailed definition of causation commensurate with the

definitions of other terms in the statute.

3090

lia

Appendix A.

No. 75-1388 (2d Cir. Mar. 8, 1976), slip op. at 2509. Error

in the omission of an instruction is compounded where

the legal standard is complex and requires that fine dis-

tinctions be made. That is most assuredly the situation

in this case. It has been held that where death is produced

by an intervening force, such as Blake’s operation of his

truck, the liability of one who put an antecedent force into

action will depend on thie difficult determination of whether

the intervening force was a sufficiently independent or

supervening cause of death. See W. LaFave & A. Scott,

Criminal Law 257-63 (1972) (collecting cases).6 The few

6 The complexity of the definitios of legal causation in ange ot

Scott, supra, demonstrates that an explanation of the concept of inter-

vening and supervening cavse would have been not mesely helpful =

contended by Judge Mansfield), but essential to the jury’s mage on

here. Given the proper standard for causation, the jury could “0

found that Blake had been so reckless as to absolve defendants of lega

responsibility for Stafford’s death: | .

As might be expected, courts have tended to distinguish eases in

which the intervening act was a coincidence from those in whieh

it was a response to the defendant’s prior action. An intervening

act is a coincidence when the defendant's act merely put the victim

at a certain place at a certain time, and because the vietim was

so located it was possible for him to be acted upon by the inter-

vening cause. The case put earlier in which B, after being fired

upon by A, changed his route and then was struck by lightning is

an illustration of a coincidence. However, it is important to note

that there may be a coincidence even when the subsequent act is

that of a human agency, as where A shoots B and leaves him lying

in the roadway, resulting in B being struck by C’s car; or where

A shoots at B and causes him to take refuge in a park, where B

is then attacked and killed by a gang of hoodlums.

By contrast, an intervening act may be said to be a reaponse to

the prior actions of the defendant when it involves a reaction to the

ereated by the defendant.

“i ae tho Giatinaiien is not carefully developed in many

of the decided cases—it may be said that a coincidence will break

the chain of legal cause unless it was foreseeable, while a response

will do so only if it is abnormal (and, if abnormal, also unfore-

seeable).

* os .

This kind of accident must be distinguished from a somewhat

Aifferent situation, as where A, with intent to kill B, only wounds

3091

12a

Appendix A,

cases that provide similar factual circumstances suggest

that the controlling questions are whether the ultimate

result was foreseeable to the original actor and whether

the victim failed to do something easily within his grasp

that would have extricated him from danger.’

The New York appellate courts applied these standards

and found that there was sufficient evidence to uphold the

convictions. We have no reason to doubt that conclusion,

There was evidence that Kibbe and Krall left Stafford

near traffic and in an intoxicated condition without eye-

glasses or sufficient clothing on a winter evening, and all

of this could be considered to determine causation. The

sufficiency of the evidence, however, is not the subject of

our inquiry. Our sole concern is whether the jury was

adequately instructed in order to make the same finding

beyond a reasonable doubt. As this function was within

B, leaving him lying unconscious in the unlighted road on a dark

night, and then C, driving along the road, runs over and kills B.

Here (’s act is a matter of coincidence rather than a response to

what A has done, and thus the question is whether the sulsequent

events were foreseeable, as they undoubtedly were in the above

illustration.72

73 People v. Fowler, 178 Cal. 657, 174 P. 892 (1918). Perhaps

if C were driving in a reckless way, A would not he liable. If A

in the Fowler case had merely an intent to injure, but not to kill,

A would be guilty of manslaughter; but no doubt A, having put B

in an unconscious or helpless position on a dark road, has an affir.

mative duty to act to pull him off the road, and failure to act

under the circumstances where A knows death is substantially cer

tain to occur (or even where he realizes there is a very high risk

though no certainty of such death) should make him guilty of

murder of the intent to kill (or of the depraved heart) variety.

Without a proper definition of causation, the jury, if it considered

causation at all, could have found that Blake's conduct, no matter how

reckless, could merely supplement and not supervene defendants’ cul-

pability.

7 See State v. Preslar, 38 N.C. Rep. 417 (1856) (deliberate choice of

victim to forego place of safety exonerates defendant of liability for

victim's subsequent death from exposure).

3092

13a

Appendix A.

the exclusive province of the jury, the appellate hapetay

may not substitute their own findings for the jury’s ng

sible failure to consider the issue. See United States v.

Howard, 506 F.2d 1131, 1134 (2d Cir. 1974). There was

evidence that Kibbe and Krall abandoned Stafford near

an open and lit service station and that although Stafford

was intoxicated he was not helpless. It also appeared that

Blake was less than diligent in the operation of his motor

vehicle. If the jury had been cognizant of the proper legal

standards, this evidence, if believed, could have injected

an element of reasonable doubt into the jury’s delibera-

tions as to whether defendants foresaw or could have

foreseen that about one-half hour after they abandoned

Stafford he would be struck in the middle of a highway

lane by the driver of a speeding truck who failed to react

in such a way to avoid a collision. ji

We are convinced that the trial judge’s incomplete in-

structions took a necessary determination of causation

of death from the jury and thereby deprived appellant of

his right to due process. See United States ex rel. Smith

v. Reincke, 239 F. Supp. 887 (D. Conn.), aff'd, 354 F.2d 418

(2d Cir. 1965); cert. denied, 384 U.S. 993 (1966). See also

United States v. Singleton, Docket No. 75-1114 a Cir.

Feb. 13, 1976); United States v. Hines, 256 F.2d 561, 564

(2d Cir. 1958). Since the error in the instruction reaches

constitutional dimensions, it may be corrected on habeas

corpus:—HKentomv- Gill, 155 F.2d 176 (D.C. Cir. 1946). We

are therefore compelled to grant the writ with respect to

the murder conviction.

14a

Appendix A,

Mansrietp, Circuit Judge ( Dissenting) :

With clue respect I must dissent because in my view the

deficiency in the trial judge’s instruction regarding causa-

tion did not reach constitutional dimensions entitling the

petitioner to federal habeas relief. See Cupp v. pas Po

414 U.S. 141, 146 (1973); Schaefer v. Leone, 443 F.2d

182 (2d Cir. 1971). 3 |

| There was ample evidence to support a finding by the

jury beyond a reasonable doubt that the defendants were

guilty of murder in violation of N.Y. Penal Law §125.25(2)

The proof was clear that the defendants evidenced a do.

praved indifference to human life and that they recklessly

engaged in conduct which not only created a grave risk

of death to the victim, George Stafford, but was a direct

cause of his death. See People v. Kibbe, 35 N.Y.2d 407

362 N.Y.S.2d 848 (1974). On a dark, cold night (tempera

ture 4°) the defendants placed their intoxicated victim

into their automobile, drove away, robbed him and left

him on a highway, with his boots off. his pants down

off, and stripped of eyeglasses he needed to be able to

focus. They deserted him at a point about a quarter of

a mile from the nearest shelter, a gasoline station located

on the other side of the highway. It was readily fore-

seeable that in his condition Stafford might he struck

and killed by a motorist, which is what happened.

The jury was well aware that it had to find hevond

a reasonable doubt that the defendants’ conduct was a

direct cause of Stafford’s death and that death was not

attributable solely to the ~1otorist. In his summation the

prosecutor argued repeatedly that although the immediate

or direct cause of the victim’s death was the conduct of

the motorist who struck him, the reckless conduct of the

defendants was a substantial producing cause of his death

because they were “bound to anticipate that he would be

3094

15a

Appendix A.

struck by a car, struck and killed by a ear” and “these

two defendants were aware of and consciously disregarded

a substantial and unjustifiable risk that death would re-

sult.” In his summation one defense counsel conversely

argued that the cause of death was not his client’s con-

duct but that of the motorist.

Against this background the trial judge instructed the

jury that a person is guilty of murder in violation of

§125.25 when “under circumstances evincing a depraved

indifference to human life he recklessly engages in con-

duct which creates a grave risk of death to another per-

son. And thereby causes the death of another person.”

(Emphasis added). Furthermore he instructed the jury

that it could not consider the alternate crimes of man-

“There is one other aspect that I'd like to talk about on this

first count, and also actually in regard to the second count. As I

mentioned not only does the first count contain reference to and

require proof of a depraved indifference to a human life, it proves

that the defendant recklessly engaged in conduct which created a

risk of death in that they caused the death ~i George Stafford.

Now, I very well know, members of the jury, you know, that quite

obviously the acts of both of these defendants were not the only

the direct or the most preceding cause of his death. If 1 walked

with one of you downtown, you know, and we went across one

of the bridges and you couldn't swim and I pushed you over and

you drowned because you can’t swim, I suppose you can say, well,

you drowned because you couldn’t swim. But of course, the fact

is that I pushed you over. The same thing here. Sure, the death,

the most immediate, the most preceding, the most direct cause of

Mr. Stafford’s death was the motor vehicle, the truck driven by

Mr. Blake that hit him right square, the middle of the grill, I

think he said, that Mr. Stafford was seated or I forget how he

described him, he’s not standing up, or at least he’s on his knees

or he is sitting down with his hands up in the middle of the north-

bound lane. Sure, that’s the most direct cause of death. But how

did he get theref Or to put it differently, would this man he dead

had it not been for the acts of these two defendants? And I

submit to you, members of the jury, that the acts of these two

defendants did indeed cause the death of Mr. Stafford. Ie didn’t

walk ont there on East River Road. He was driven out there. His

glasses were taken and his identification was taken and his pants

were around his ankles.” (Tr. 1155-57).

3095

1

16a

Appendix A.

slaughter in the first degree or manslaughter in the sec-

ond degree “unless you feel that these defendants or

either of them, was guilty of causing the death of George

Stafford recklessly.”

No exception was taken hy defense counsel to the charge

as thus given by the court, and no question was raised as

to the sufficiency of the charge on defendants’ appeal to

the Appellate Division, see People v. Kibbe, 41 App. Div.

21 228, 342 N.Y.S.2d 386 (4th Dept. 1973). The adequacy

of the instruction was first raised by the dissenting opin-

ion of one justice of the Fourth Department.

Although it might have been helpful to the jury to have

a more definitive instruction on the element of causation, in-

cluding an explanation of the concepts of proximate, super-

seding, and intervening causation, I cannot agree with the

majority that such a detailed instruction was constitu-

tionally required or that the failure to give it permitted

“the jury to conclude that the issue was not before them.”

We are not here dealing with such fundamental unfairness

as failure to advise the jury that the defendant was pre-

sumed to be innocent or the substitution by the court in

its instruction of a preponderance-of-the-evidence for a

reasonable doubt standard, see In re Winship, 397 U.S.

358 (1970). Here the jury plainly was made aware by

the summations of the necessity of finding that the defen-

dants’ conduct was the cause of the victim’s death even

though it may not have been the only cause. In these cir-

cumstances the court’s instruction was sufficient to enable

the jury intelligently to go about its business. It was read-

ily apparent to the jury, without detailed instructions on

the subject, that it could not find the defendants guilty if

death was attributable entirely to some intervening force

which supevseded the defendants’ recklessly indifferent

conduct. As the New York Court of Appeals unanimously

concluded in affirming the conviction, the evidence was

3096

overwhelming that the

their intoxicated r

ness and 4° weather,

glasses, was the direct

17a

Appendix A. A

defendants’ conduct in depositing

obbery victim on the highway in dark-

partially clothed and without eye-

cause of his death.

- nts do not dispute the fact that their con-

inn pers a depraved indifference to a ba .

which created a grave risk of death, but ra “¢ vd

argue that it was just as likely that Staffor Pager

be miraculously rescued by a good samaritan. Wec

not accept such an argument. There can be little doubt

but that Stafford would have frozen to death in his

state of undress had he remainded on “se pang

i to him was

_ The only alternative left

wor a which in his condition, for one =o ”

a. clearly foreboded the probability 4 . A. .

sulting death.” 35 N.Y.2d at 407, 362 N.Y.S.2d a ,

he idea that on such a record they

tional right by the brevity of the

Their trial was a fair one.

I cannot subscribe to t

were denied any constitu

court’s charge on causation.

18a

APPENDIX B

Amendment to the Court of Appeals Opinion,

May 4, 1976.

UNITED STATES COURT OF APPEALS

Seconp Circuit

At a Stated Term of the United States Court of Appeals,

in and for the Second Circuit, held at the United States

Court House, in the City of New York, on the 4th da‘ of

May, one thousand nine hundred and seventy-six.

+,

vv

Barry Warren Kissz,

Petitioner-A ppellant,

v.

Rosert J. Henperson, Superintendent,

Auburn Correctional Facility,

Respondent-A ppellee.

sé.

vv

It is hereby ordered that the motion made herein by

counsel for the appellant by notice of motion dated April

27, 1976 to amend the judgment of this court to include a

provision that the writ is granted unless petitioner is re-

tried within sixty (60) days from the date the judgment

is filed be and it hereby is granted.

It is further ordered that the opinion of this court is

amended to replace the last sentence of the majority

19a

Appendix B.

opinion with the following:

“The writ is granted as to any detention arising from

the murder conviction, unless retrial of the petitioner

on said murder charge is commenced within 60 days

from the date of the filing of this order.”’

/8/

J. Edward Lumbard

/s8/

J. Joseph Smith

/s/

Walter R. Mansfield

Cireuit Judges

20a

APPENDIX C

Opinion of the United States District Court,

June 27, 1975.

UNITED STATES DISTRICT COURT

NorTHERN District or New Yorx

75-CV-

+

od

Unirep States or America, ex rel. Barry WarreN Kippe and

Roy A. Krau,

. Relators,

against

Rosert J. Henverson, Superintendent,

Auburn Correctional Facility,

Respondent.

+

.

James T. Fouey, D. J.

MemoranpuM-Decision and OrpEerR

Petitioner Kibbe in this habeas corpus proceeding with

a title joining Krall who was convicted and sentenced with

him is an inmate of Auburn Correctional Facility. After

a jury trial in Monroe County Court, petitioner was con-

victed of Murder in violation of N.Y. Penal Law, § 125.25,

subd. 2; Robbery in the second degree; and Grand Larceny

in the third degree. Under judgments of conviction

entered November 30, 1971, petitioner was sentenced to

concurrent terms of 15 years to life on the Murder con-

viction; 5 to 15 years on the Robbery conviction; and an

indeterminate term up to 4 years on the Grand Larceny

one. The conviction was affirmed on appeal, opinions being

written both by the Appellate Division (41 A.D.2d 228, 4th

21a

Appendia C. .

Dept. 1973), and the Court of Appeals (35 N.Y. 2d 407,

1974). Petitioner’s brief in suppori of this petition is

practically verbatim from his brief filed in the Court of

Appeals, as indicated by the points of counsel found in

the official New York Court of Appeals report at pp. 407-

408, and compared with the brief filed in this federal court,

beginning on p. 10.

The facts are set forth in detail by Judge Gabrielli in his

opinion for the Court of Appeals, but shall be summarized

again. Petitioner and a codefendant agreed to take the

victim from a bar in Rochester to Canandaigua on a cold

night in December 19° *. The victim was very intoxicated.

Petitioner and his codefendant partially undressed the

victim, George Stafford, stole his money and then left him

on the side of a lonely country road. A driver of a truck

later that night saw the victim sitting in the northbound

lane with his hands up in the air and could not stop the

truck in time and ran Stafford down causing his death.

Judge Gabrielli (p. 411) stated that the basic challenge in

the New York Court of Appeals was to the murder con-

viction questioning whether the acts of defendants “caused

the death of another” as required by statute.

Petitioner’s first point is that the trial court’s charge to

the jury was defective, in that it failed to include an in-

struction on the element of causation and on petitioner’s

mental state. Both State appellate opinions reviewing the

conviction discussed this point carefully. Both noted there

were no exceptions or requests to charge on the cause of

death issue by defense counsel. The correctness of a charge

fails to raise a question of federal constitutional dimen-

sions. United States ex rel. Mintzer v. Dros, 403 F.2d 42

(2d Cir. 1967). Where there is no showing that alleged

errors in the charge were such as to deprive defendant

of a federal constitutional right, the charge is not re-

viewable in a federal habeas corpus proceeding. Cupp v.

Naughten, 414 U.S. 141 (1973).

22a

Appendix C.

The second point urged by petitioner is that the evidence

at the trial was insufficient to sustain the conviction for

murder. Federal habeas corpus it is settled may not be

used to test the sufficiency of the evidence. United States

ex rel. Morton v. Mancusi, 393 F.2d 482 (2d Cir. 1968) ;

cert. denied, 393 U.S. 927 (1968); United States ex rel.

Sadowy v. Fay, 284 F.2d 426 (2d Cir. 1960).

The third point is that the court erred in denying peti-

tioner’s motions to suppress evidence (a $100 bill) and

items seized from petitioner’s vehicle. Errors in the admis-

sion or exclusion of evidence at a state trial form no basis

for habeas corpus relief unless there is evident deprivation

of a fundamentally fair trial and that has not been shown

here. United States ex rel. Green v. McMann, 268 F. Supp.

529 (S.D.N.Y. 1967); United States ex rel. Santiago v.

Follette, 298 F. Supp. 973 (S.D.N.Y. 1969). There is

nothing offered of substance to indicate that there was not

sufficient support for the State Court rulings that the $100

bill and items seized from the vehicle were other than

voluntarily given or taken with consent and not illegally.

The trial court’s refusal to grant petitioner a trial

separate from his codefendant is within the court’s discre-

tion. There was no violation of the Bruton rule that could

be considered prejudicial because petitioner’s codefendant

Krall testified at the joint trial. Bruton v. United States,

391 U.S. 123 (1968). It is not claimed the statements or

confessions were not substantially the same or inconsistent.

See United States ex rel. Duff v. Zelker, 452 F.2d 1009 (2d

Cir. 1971), cert. denied, 406 U.S. 932 (1972); United States

ex rel. Ortiz v. Fritz, 476 F.2d 37 (2d Cir. 1973).

The final point is entitled: “Th. Court erred in not

suppressing all or some of the petitioner’s statements either

/as a product of a primary illegality or as not being made

after proper advice or after a valid waiver.’’ Point V, pp.

29-30, of petitioner’s application casts doubt upon any con-

tention that the principles of Miranda v. Arizona, 384 U.S.

23a

Appendia C.

436 (1966), were violated. There was a waiver form in-

volved and also oral warnings. Words which convey the

substance of the Miranda warning are sufficient. United

States v. Vanterpool, 394 F.2d 697, 698-99 (2d Cir. 1968).

United States v. Lamia, 429 F.2d 373, 376-77 (2d Cir. 1970),

cert. denied, 400 U.S. 907. Further, Judge Gabrielli in his

opinion and Appellate Division Justice Henry stated flatly

the statements of the petitioner and his codefendant were

voluntary.

From my review of the state opinions and records fur-

nished me, plaintiff fails in this respect to establish by

convincing evidence that the factual determination of

voluntariness made in the State courts is erroneous.

LaVallee v. Delle Rose, 410 U.S. 690 (1973) ; United States

ex rel. Allen v. LaVallee, 411 F.2d 241, 244 (2d Cir. 1969).

There is no showing of circumstances of the type that do

give concern, such as prolonged questioning, physical abuse,

lack of food or water, that might warrant finding the

admissions and confessions were involuntary. There was

adequate hearing under People v. Huntley, 15 N.Y. 2d 72

(1965), and there is no evident reason why the presumption

of correctness should not apply. 28 U.S.C. 2254(d) ; United

States ex rel. Rivera v. Follette, 395 F.2d 450 (2d Cir.

1968); United States ex rel. Coleman v. Mancusi, 423 F.2d

985 (2d Cir. 1970).

In my judgment the State trial and appellate determina-

tions were fairly and carefully made and I am content to

accept them. The petition shall be filed without payment

of fee and is denied and dismissed for the foregoing

reasons.

It is so Ordered.

Dated: June 27, 1975

Albany, New York.

/s/ James T. Fouey

United States District Judge