# Petition — Henderson v. Kibbe > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0188%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 431 U.S. 145 ## Text 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- 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0188%3A1. Public record. Not legal advice.