Appendix — Henderson v. Kibbe

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NOV 29 1976

MICHAEL ROGAK, JR..CLERK

APPENDIX

Supreme Court of the United States

OCTOBER TERM, 1976

75-1906

Rosert J. Henperson, Superintendent, Auburn

Correctional Facility, Auburn, New York,

Petitioner,

against

Barry Warren Kisses,

Respondent.

On Writ or Certiorari To THE Unrtep States

Court oF APPEALS FOR THE SEconp CrrcultT

Petition FoR CeRTIERARI Fitep Juty 1, 1976

Certiorari Grantep Octoser 4, 1976

TABLE OF CONTENTS

PAGE

Dees Tee Fo 8 rs PE SEER As EAS 1

a a re a 2

BOTD SS ebhSdsevecccdscoccetantevsveevisteseese 20

Excerpts from State Criminal Trial:

Pretrial Motion to Dismiss the Indictment .... 24

Motion to Dismiss the Indictment at the Close

—-* fk ee errr Pe 29

Renewal of Motion to Dismiss the Indictment at

the Close of the Entire Case ................ 40

Court’s Opening to the Jury .................. 41

Portion of Opening Statement by the People ... 44

Testimony of Michael Blake .................. 46

Portion of Testimony of Deputy Sheriff Terrence

Ree. dec nbs han deamatasetianakensinie® 54

Portion of Testimony of Dr. John Edland, Med-

Be PS iota 5c nc4necceseeices Pakeecas 58

Portion of Testimony of Deputy Sheriff Edward

ER. sn FON Kdecbedantesokaesane eateries 60

Portion of Testimony of Thomas Lauricella,

Stenographer, as to Kibbe and Krall’s State-

Re ee Sods Ga hccwheccckwiescuss

Portion of Testimony of Co-defendant Krall ... 64

Portion of Summation by Kibbe’s Attorney .... 68

ii TABLE OF CONTENTS

PAGE

Portion of Summation by Co-defendant Krall’s -

Attorney ...--cee cece cere ee eeeeeeeeteees

Portion of the Summation by the People ...... 72

Charge to the Jury .......-.-e+eeeeeeeererees 77

Opinion of the Court of Appeals, April 8, 1976, as

Amended, May 5, 1976 ......--+-eeeeeeeeeeees 105

Order of the Court of Appeals, Staying Issuance of

the Mandate, June 1, 1976 .......--+--eeeeeees 121

ee Lr ee wo

= ee

Docket Entries—District Court.

UNITED Si AES DISTRICT COURT

NortTHerN District or New York

75—CV—314

Date

June 30, 1975

July 14, 1975

August 18, 1975

Proceedings

Filed Petition for Writ of Habeas Cor-

pus, together with related papers

Filed State Court Brief

Filed Memorandum-Decision and Order

of Judge Foley (6/27/75) denying

and dismissing the petition for writ

of habeas — and directing that

the petition filed without pay-

ment of fee.

Filed Judgment

Filed Notice of Appeal

Filed Memorandum-Decision and Order

of Judge Foley (7/11/75) denying

ap lication for certificate of prob-

able cause. Motion for leave to

proceed in forma pauperis is

granted to the limited extent of the

notice of appeal

Sent Certified copy of Record on A

to CCA, 2nd Cir. ne

October 16, 1975 Filed receipt for papers sent to C.C.A.

2nd Circuit

Petition.

Petition ror Writ oF Haspeas Corpus

Sir:

Barry Warren Kibbe, relator-petit.oner aforesaid ad-

dressed this Honorable Court for issuance of a Writ of

Habeas Corpus ad subjiciemdum, pursuant to Title 28

U.S.C. 2241 et. seq. (United States ex rel. Lynch v. Fay,

D.C.N.Y., 1960 184 Fed. Supp. 277 et. seq.) on the grounds

that he is in custody contrary to the Constitution, specifi-

cally in violation of the Fourteenth Amendment, whereby

he is held under color of judgment of conviction from a New

York State Court, to wit: Monroe County Court and which

judgment is unconstitutional, more specifically and in detail

established in the annexed affidavit as a Memorandum of

Law.

Arripavit As MeMorANDUM oF Law

Barry Warren Kibbe, relator-petitioner in the above en-

titled action, being duly sworn, deposes and says:

(1) That, he is the relator in the foregoing petition for

Writ of Habeas Corpus;

(2) That, jurisdiction is invoked under Title 28 U.S.C.

Section(s) 2241 et seq. in that;

(a) He is in custody in violation of the Constitution

being confined and held by respondent under color of a

judgment of conviction and sentence entered in a Monroe

County Court, Rochester, New York, on November 30, 1971,

following a trial by jury held from October 27 through

November 5, 1971, on charges alleging the crimes of mur-

der ir. violation of sections 20.00 and 125.25; robbery in

the first degree in violation of sections 20.00 and 160.15;

robbery in the second degree in violation of sections 20.00

and 160.10(1); and grand larceny in the third degree in

violation of sections 20.00 and 155.30(5). Sentence having

oe + ce ee oe

Petition.

been imposed thereon of an indeterminate sentence of im-

prisonment with a minimum of 15 years and a maximum

term of life on the conviction of murder; an indeterminate

sentence of imprisonment with a minimum of 5 years and

a maximum of 15 years on the conviction of robbery in the

second degree ; and an indeterminate sentence of imprison-

ment with a maximum of 4 years on the conviction of grand

larceny third degree. All terms were ordered to run con-

currently, the said proceeding and judgment being had on

a denial of due process of law under the Fourteenth

Amendment; and,

. (b) Timely notice of appeal was filed, motion to appeal

in forma pauperis was granted by the Appellate Division,

Fourth Judicial Department, and in a majority decision

dated April 5, 1973, at 41 A.D. 2d 228 the Appellate Divi-

sion affirmed the convictions of both relator’s. Application

for a Certificate Granting Leave to Appeal to the New

York State Court of Appeals, was granted on May 11,

1973, by the Hon. Matthew J. Jasen, Associate Judge of

the Court of Appeals. On November 27, 1974, the Court

of Appeals affirmed the decision of the Appellate Divi-

sion.

(3) Relator has exhausted all State remedies and, no

other application for relief on the grounds herein has been

sought for in this, or any other Federal Court, prior to

this instant petition; and,

(4) That the violation of relator’s constitutional rights

persist in that, although relator’s constitutional rights have

been violated, relator is still held and confined by respond-

ent; and,

(5) That the Writ of Habeas Corpus should issue, a full

evidentiary hearing should be held to inquire into the al-

legations herein raised (Townsend v. Sain, 372 U.S. 293;

Fay v. Noia, 372 U.S. 391) the Writ should be sustained

Petition.

and relator ordered released from custody on the law and

the facts instant.

STATEMENT OF Facts

At approximately 10:00 p.m. on December 30, 1970

George Stafford was observed sitting with his arms raised

in the middle of the north-bound lane of traffic on East

River Road by Michael Blake, a college student (R. 618),

who was driving his 134 ton truck approximately 50 mph,

which was 10 mph in excess of the authorized speed limit

on that portion of the highway (R. 626, 630).

When Blake initially observed Stafford, he was approxi-

mately 100-200 feet in front of him (R. 622), and at that

point, Blake went into shock, and neither applied his brakes

nor attempted to swerve the truck around the pedestrian

(R. 622). The vehicle struck Stafford and dragged him

approximately 400 feet (R. 623) and as a result of the im-

pact, Stafford was severely injured, and the grill on Blake’s

truck was damaged beyond repair (R. 629).

An ambulance was called to the scene; and as it was

transporting Stafford to the hospital, it was involved in an

accident (R. 634), which required Stafford to be trans-

ferred to a second ambulance which then transported the

decedent to the hospital where he was pronounced dead on

arrival.

Neither defendant was present at the time Stafford was

struck by the vehicle on East River Road, nor was there

any evidence introduced at the trial which inferred that

either defendant placed the decedent in the middle of East

River Road, prior to the accident.

The defendants initial contact with the decedent, George

Stafford, occurred earlier in the day at approximately 6

p.m., at Nick and Corkey’s Tavern on Jay Street in the

City of Rochester (R. 806). Kibbe had stopped in the

Tavern after work and while there, he and his friends were

Petttion.

approached by the decedent who was seeking a ride to

Canandaigua, New York (R. 805).

A friend of Kibbe’s, Don Tiffany had agreed to give Staf-

ford a ride to Canandaigua; but his car wouldn’t start

(R. 1014) and therefore Kibbe and Krall volunteered to

give Stafford the ride (R. 808). The three of them left

the tavern somewhere between 8:30 and 9:30 p.m. (R. 722)

and using Kibbe’s car, they first drove to a couple of bars

on Plymouth Avenue in the City of Rochester (R. 848). In

the first of these bars, the bartender wouldn’t serve Staf-

-—? fe — of them walked across the street to

another ere they had no difficulty in being se

(R. 848, 849). , igegnes

(R. refers to page of trial minutes.)

After leaving this second bar, they proceeded to the

Thruway for the purpose of driving Stafford to Canan-

daigua, but when they reached the Thruway, Stafford

changed his mind and no longer wanted to go to Canan-

daigua (R. 1016). In view of this change, the defendants

started driving back to the city.

To get back to the city, they traveled on Bailey Road to

the intersection of Bailey Road and East River Road where

they turned right and proceeded in a northerly direction

(R. 1017). At this point, Stafford who was seated in the

rear seat, was dozing off and Kibbe who was in the front

passenger seat turned around and slapped Stafford in an

attempt to wake him up and asked him if he was going to

pay them for the ride as he had previously proinised (R.

1017). When asked by Kibbe if he had any more money,

Stafford partially disrobed to show him that he did not

(R. 851-852) and Kibbe, to make sure, searched Stafford’s

pants and boots (R. 833).

When they came to a store at the intersection of East

River Road and River Meadow Drive, Stafford stated that

he wanted to get out of the vehicle and as a result, Krall

Petition.

stopped the car about 75 feet from a store which was open

and across the street from a gas station which was also

open and attended by a serviceman (R. 182, 1060, 1062,

656).

Stafford exited the vehicle and according to the defend-

ant Krall, he had clothes on with the exception of his jacket

and his boots (R. 852). After Stafford left the vehicle, he

fell in the snow and Kibbe got out of the car and helped

him up (R. 1065). Kibbe also advised Stafford to go to the

gas station nearby so he wouldn’t freeze to death in the

cold night (R. 838-39).

The defendants then proceeded to Cliff’s Bar at which

time, Kibbe gave Krall a one hundred dollar bill (R. 1021)

and then Krall drove Kibbe home (R. 828) and Krall,

using Kibbe’s car, went back to Nick and Corkey’s Tavern

in an attempt to change the one hundred dollar bill (R.

829).

INVESTIGATION AT THE SCENE OF THE ACCIDENT

Shortly after the accident, Deputy Sheriff Terrance

Cooper arrived at the scene and made measurements with

respect to the exact location of the body of George Stafford

(R. 29). According to these measurements, the body was

lying 50 feet 11 inches from the Rochester Telephone Pole

No. 215 (R. 646) and according to the deputy, the point of

impact was approximately a quarter mile south of the gas

station which is located near the intersection of River

Meadow and East River Road (R. 625). The deputy testi-

fied that the gas station was lit up (R. 656) but that he

made no attempt to determine if the decedent had walked

any distance to get to the point of the accident (R. 37).

The following morning, at approximately 8:40 a.m.,

Chief Deputy Blodgett arrived at the scene of the acci-

dent (R. 676). Although the Deputy could find no foot-

prints (R. 678), there had been a snowfall the evening

before as well as blowing snow (R. 31) and the road

pavement was at all times clear of snow and ice (R. 621).

Petition.

The deputy found a pair of boots near the scene of the

accident as well as some watchparts and a sock (R. 678-

679). According to Deputy Blodgett, the point of impact

was approximately a quarter mile north of Bailey Road

and the same distance south from the gas station where the

defendant Krall had testified was the point where they

had left the decedent.

QUESTIONING aT THE SHERIFF’s OFFICE

On December 31, 1970, Kibbe was picked up at Nick &

Corky’s Tavern and taken to the Monroe County Sheriff’s

Office by Detective Burton Verhay and brought into the

front parlor at 4:00 p.m. (R. 76). Between 4:00 and 4:18

he was left sitting on a couch and nothing transpired until

4:18 when Detective Nicholas DeRosa read him his rights

from a waiver card (R. 75). He was asked for his identi-

fication and then was asked to empty his pockets, which

he did (R. 79). Two detectives questioned Kibbe and

during the questioning Kibbe was asked if he had a $100

bill in his possession (R. 80). Kibbe produced the bill

— handed it over to the detectives (R. 80). At this point

e was not under arrest, nor had any charges been

against him (R. 86). 6 ont

A stenographer was called and Kibbe was reinterviewed

and a statement taken (R. 81). Co-defendant Krall was

questioned separately (R. 100), and then Kibbe and Krall

were made to confront each other (R. 104) under question-

ing from three detectives (R. 104).

By 7:45 p.m. Kibbe had still not been charged with any

erume (R. 103). Then at 8:30 p.m., Assistant District At-

torney Cornelius arrived to further question Kihbe (R.

770). This time no one advised Kibbe of his rights and

a third statement was recorded. Shortly before eleven

o’clock Kibbe was finally arraigned after being questioned

Petition.

and held for seven hours (R. 106). At no time during

these seven hours prior to the arraignment was Kibbe

arrested or advised that he was going to be held for the

crimes of murder and robbery (R. 108).

Searcu oF Krpse’s Car

The co-defendant Krall had driven Kibbe’s car home on

the evening of December 30, 1970. During the early eve-

ning of December 31, 1970, Detectives Emerson and Cerreto

went to Krall’s home to locate the car (R. 887 )e The car

was parked, according to the detectives, in a position that

blocked the entrance to the apartment house (R. 890).

Neither Detective Emerson nor Detective DeRosa had a

search warrant or Kibbe’s consent to search the vehicle

(R. 917).

As Detective Emerson pushed the car away from the

entrance to the apartment house, he looked down on the

floor board of the car and in the light from a street lamp

he noticed a white envelope (R. 909). The envelope was

wet, its contents were coming out of it; and a pink regis-

tration slip was on top (R. 910). The only light was that

of a street lamp and Detective Emerson testified that he

himself was surprised that he was able to read the name

of George Stafford on the registration slip (R. 966). The

papers and other items in the car were then photographed

and all items, except for a pair of eye-glasses, were re-

moved from the vehicle (R. 892). .

Later, when Kibbe’s car had been towed to the Sheriff’s

garage, Detective Emerson, in the belief that he had for-

gotten a folder in the car (R. 898), returned to the car

together with Detective Verhay. They took photographs of

the eye-glasses and removed them from the vehicle (R.

898). Here, as during the prior search, no search war-

rants had been obtained nor had either of the defendants

given their consent to a search (R. 927).

Petition.

The above items seized from Kibbe’s vehicle were intro-

duced in evidence over defendant’s objections as Exhibits

14, 15, 16 and 17 (R. 949, 974).

Questions Presenrep

I. Whether the defective charge to the jury requires a

reversal of the convictions.

II. Whether the proof adduced at the trial was sufficient

to sustain a conviction for murder.

® o eo

ARGUMENT

Point I

THe Tria Court’s CHARGE TO THE JURY WAS

Derective and Constitutep ReversisLe Error

A. The Charge Failed to Include an Instruction on the

Element of Causation.

As appears from a review of the facts, a key issue in-

volved in the trial below was whether the defendant’s con-

duct caused the desth of George Stafford, which is an

essential element of the crime of murder.

Although the defendant’s placed the decedent in the vicin-

ity of the accident scene, the conduct of Michael Blake as

well as that of the decedent, clearly contributed to the

happening of the accident.

Despite the presence of this crucial issue, the trial judge’s

charge failed to include any reference to the element of

causation other than a reading of the statutory language

contained in section 125.25(2) of the penal law. It was

incumbent upon the judge to define the element of causation

and set forth an instruction on proximate cause as well as

intervening cause. In addition it was essential for him to

Petition.

charge that a verdict of guilty on the murder count required

the jury to find that the evidence proved beyond a reason-

able doubt that the defendant’s counduct was the direct and

proximate cause of the decedents death and that they should

consider the conduct of the decedent as well as that of

Michael Blake in resolving this issue.

It is established law in New York that each element of a

erime for which a defendant is indicted should be stated

distinctly and explained to the jury; see People v. Best,

253 App. Div. 491 (3rd Dep’t, 1938), and People v. Lupo,

305 N.Y. 448 (1953).

In People v. Brengard, 265 N.Y. 100, 108 (1934) this

court stated:

The question whether the act constitutes murder in

necessarily one of fact. An obscure or merely prob-

able connection between an assault and death will, as

in every case of alleged crime, require acquittal of the

charge of any degree of homicide. The proximate rela-

tionship must, of course, be clearly proved beyond a

reasonable doubt. A duty rests upon the trial judge so

to instruct the jury and, in the absence of such instruc-

tion or in the event of failure of the necessary proof,

a similar duty would rest wpon a court of review to

reverse a judgment of conviction. (Emphasis added).

(People v. Brengard, supra at p. 108).

The highest courts in other states have also firmly estab-

lished the principle that failure to charge the jury ade-

quately on the causal connection between the defendant’s

acts and the death of the victim is reversible error; People

v. Kerrick, 86 Cal. App. 592 (1927); People v. Bernhardt,

35 Cal. Rptrs. 41 (1964) ; State v. Ramey, 273 N.C. 325, 160

S.E. 2d 56 (1968); State v. Redman, 217 N.C. 483, 8 S.E.

2d 623 (1940); Commonwealth v. Root, 403 Pa. 571, 170 A.

2d 310 (1961) ; People v. Scott, 29 Mich. App. 549, 185 N.W.

Petition.

2d 576 (1971); Stublingbear v. S r

mot Ba ng tate, Okl. Cr., 364 P. 2d

It appears that of the above cases the leading opinion on

proximate cause in a criminal trial is Commonwealth v.

Root, supra. In this case, the defendant had challenged the

decedent to a car race on a public highway and at one point

in the race, the decedent, who was travelling at a high rate

of speed, attempted to pass the defendant, and as he did,

he swerved into an oncoming truck and was killed. The

court, in a lengthy discussion on the nature of proximate

cause in criminal matters held that:

Even if the tort liability concept of proximate cause

were to be deemed applicable, the defendant’s convic-

tion of involuntary manslaughter in the instant case

could not be sustained under the evidence. The opera-

tive effect of a supervening cause would have to be

taken into consideration. .. . But the trial judge refused

the defendant’s point or charge to such effect and he

erroneously instructed the jury that negligence or want

of care (on the part of the deceased) is no defense to

the criminal responsibility of defendant. . . . The supe-

rior court, in affirming the defendant’s conviction in

this case, approved the charge abovementioned, despite

a number of decisions in involuntary manslaughter

cases holding that the conduct of the deceased victim

must be considered in order to determine whether the

defendant's reckless acts were the proximate (i.e. suffi-

ciently direct) cause of his death. ( Emphasis added)

(Commonwealth v. Root, supra at p. 313).

This landmark case in Pennsylvania which sets out the

law of proximate cause in a criminal matter has been fre-

quently cited in Pennsylvania as well as in other jurisdic-

tions. Although the reasoning of the court is centered

primarily upon the concept of proximate cause, the court

in the above cited section, makes clear that it was error for

Petition.

the trial judge to omit an explicit charge to the jury on the

causation issue. The charge in Root thus suffered from

the same defect as the charge in the instant case, and in

both cases the defect constituted reversible error.

B. The Charge Did Not Include a Proper Instruction

on The Defendant’s Culpable Mental State.

Although the trial court read the statutory language of

the murder charge, Section 125.25 of the penal law, and

defined the terms ‘‘recklessness” (R. 1187), “depraved”

and “indifferent” (R. 1188), he failed to set forth the man-

ner in which these terms are interrelated, and did not ex-

plain the application of these terms to the facts of the case

as required by CPL Section 300.10 Sub, (2).

Upon a reading of the above murder charge, a8 well as

the indictment, it is evident that the proper use of these

terms by jurors would require a clarifying instruction by

the judge in order to safeguard against the improper ap-

plication of them to the facts of the case. The confusion

which obviously occurred in the instant case was revealed

by the jury’s request for the indictment (R. Aas *. .

so, we can go over this and get things clear for us.”

In response to this request, the following colloquy oc-

curred outside the presence of the jury (R. 1205):

Mr. Crimi: I think we should give them a written

list of the offenses.

The Court: That isn’t what they want certainly

the murder charge is unusua! and the robbery first

charge is unusual and they want to see what words

are used,

Mr. Beer: I don’t think it would be proper, judge.

I think I have read comments and opinions that the

indictment not being in evidence can not be used or

taken into the jury room.

The Court: It’s the only sensible way in which any

Petition.

jury could read the words of an unusual char ‘

tained in the indictment. wena

. Rather than giving a detailed instruction on the applica-

tion of the “ unusual ” words used in the indictment, the

Judge gave the jury a copy of the indictment without any

further elaboration on the meaning of these words which

~ jury was ones to clarify in their minds.

pproxumately four hours later, the jury again requ

an explanation from the Court as to oy ee aie

the defendant’s, in order that “. . . they will be clear to

us and the laws that pertain to them’’ (R. 1214).

The judge responded by again reading the statutes in-

volved and did not offer a further explanation on any of

the terms or elements of the changes (R. 1214-1218),

. It appears to be settled law in New York that the trial

judge must do more than merely give a statutory definition

and a statement of legal principles as was done in the pres-

ent case.

Judges are also required to comply with

300.10 which provides in pertinent oe cp Aan

The Court must also state the material legal principles

applicable to the particular case and, so far as prac-

ticable explain the application of the law to the facts

but it need not marshal or refer to the evidence to

> greater extent then is necessary for such explana-

ion,

In the context of instructions to the jury and a jury’s

repeated request for clarification, it is important for us to

be reminded of this Court’s statement of principle in Peo-

ple v. Lupo, 305 N.Y. 448 (1953) where it stated:

. It may well be, as urged upon us, that every sen-

tence that the Judge uttered, taken by itself, was an

accurate statement of law, but justice in its proper

Petition.

inistration demand more. A study of the instruc-

on in their entirety, particularly when considered im

the light of the juror’s repeated request for further

enlightenment, reveals that the jury was never given

any clear notion of the only real question before tt—

the elements of the several crimes charged and the al-

ternative verdicts possible. A court’s charge is not

like a corporate indenture, able to be studied at leisure,

valid of all technical recitals are to be found within its

four corners. Rather, it is a means to guide laymen,

in plain and practical fashion, and the discharge of

a solemn responsibility. The charge in the case against

Lupo served no such function and, accordingly, he is

entitled to a new trial. (Emphasis added). (People v.

Lupo, supra at p. 452)

The Judge’s duty to relate the legal principles to the

facts of a given case is more prominent when the charges

are unusual and the jury is obviously confused by them

as was the sitaution in the present case and in Lupo. It is

not unlikely that the jury in the instant case fashioned

their own rules of application regarding the required men-

tal state and rendered a verdict without appreciating the

unexplained legal terms contained in the charges.

D. This Court has Jurisdiction to Review the Defective

Charge and Direct a Reversal of the Convictions.

Although neither defendant objected to the erroneous

charge of the trial court, the Appellate Division Fourth

Department reviewed the sufficiency of the charge in ques-

tion and the majority were of the opinion that the charge

was ‘*. . . sufficient to inform the jury on this subject

(causation) and reversal of the judgments is not required

in the interest of justice.’’ (41 AD 2d at p. 230).

Petition.

This Court has the authority pursuant to CPL Section

470.35 to consider those questions of law considered on

appeal to the Appellate Division which would include the

determination by the Appellate Division that the charge

to the jury was sufficient.

As indicated above, the charge to the jury with respect

to elements of “causation’’ and ‘‘eulpable mental state’’

was Clearly insufficient and confusing as was the purported

instruction on the lesser included offense. Taken as a

whole, the charge was stifled with statutory language and

legalisms and although the trial court recognized the

unusual terms and possible confusion a jury would have

in applying the principles to the facts of the case, it did

nothing to alleviate this confusion other than submitting

a copy of the indictment to the jury.

If a proper instruction were given to the jury, it could

have reasonably concluded that the defendant’s conduct

was not the proximate cause of the decedent’s death.

Pornt II

THe Evmence Appvucen at THE Tria, Was INSUFFI-

CIENT To Sustain THE Convicrion or MURDER.

The petitioner Kibbe was found guilty of murder in vio-

lation of Section 125.25(2) of the New York Penal Law,

in that he ‘‘feloniously and under circumstances evincing

a depraved indifference to human life, recklessly engaged

in conduct which created a grave risk of death to another

person, to wit, George Stafford, and thereby caused the

death of George Stafford.’’

The proof presented during the trial of this case revealed

that the decedent was found sitting in the middle of the

highway with his arms raised and while in that position,

he was struck by a truck weighing 3500 pounds and travel-

ing at a speed of 50 mph. The driver of the truck, Michael

Petition.

Blake, admitted he was speeding and that he froze at the

wheel when he initially observed the decedent. Blake also

testified that he never braked nor swerved the vehicle in

an attempt to avoid striking the decedent. There is no

evidence to indicate that the defendants placed the dece-

dent in the middle of the highway but rather the evidence

tended to show that the decedent was placed by the defend-

ants in the vicinity of the accident and on the shoulder of

East River Road. It was also shown that the decedent was

intoxicated at that time and his boots and pants had been

searched for money before he left the vehicle.

Although the murder statute clearly requires the defend-

ant’s conduct to be the cause of death and the proof pre-

sented revealed that the cause of death was a combination

of the decedent’s conduct as well as that of Michael Blake,

the trial court denied the petitioner’s motions for dismissal

and the Appellate Division affirmed the murder conviction.

The Appellate Division, however, erroneously applied a

tort standard of proximate cause in affirming the convic-

tions:

‘‘In our opinion, the evidence sufficiently shows that

the death was caused by the acts of defendant’s as well

as the acts of Blake. ‘Where separate acts of

negligence combine to produce directly a single injury

each tortfeasor is responsible for the entire result,

even though his act alone might not have caused it.’

Hill v. Edmonds, 26 A.D. 2d 554 (555).’’ (People v.

Kibbe, supra at p. 229.)

In effect, the Appellate Division concluded that the causal

connection between the conduct of the defendant’s and the

death of George Stafford can be properly viewed and

judged by the traditional tort standard of proximate cause

irrespective of the fact that this is a criminal case and not

a civil action involving the issue of negligence.

Petition.

” It has been firmly established that the element of causa-

tion in a criminal case is more rigidly applied than the

standard used in tort cases. This court in People v. Bren-

gard, 265 N.Y. 100 (1934) recognized the difference in

stating at p. 108 ‘‘the proximate relationship must, of

course, be clearly proved beyond a reasonable doubt’’.

In Common Wealth v. Root, 403 Pa 571, 170 A 2d 310

(1961), which was discussed in point 1 above, the court

discussed the differences between tort concepts and crimi-

nal elements and stated:

‘*To summarize, the tort liability concept of proximate

cause has no proper place in prosecutions for criminal

homicide. A more direct causal connection is required

for conviction . . . In the instant case, the defend-

ant’s reckless conduct was not a sufficiently direct cause

of the competing driver’s death to make him criminal

liable therefor.’’ “sy 4

The reason for the Pennsylvania court’s holding appears

clear from an earlier part of its opini i

print 8 Opinion at p. 311 where it

To persist in applying the tort liability ecncept of

proximate cause to prosecutions for criminal homicide

after the marked expansion of civil liability of defend-

ant’s in tort action for negligence, would be to extend

possible criminal liability to persons chargeable with

yt or Aa conduct in circumstances not

generally considered to pre ikeli

ee Ae present the likelihood of a

Similar reasoning was applied b

ula y the Court of Appeals

of Michigan in People v. Scott, 29 Mich. App. 549, 185

N.W. 2d 576 (1971) wherein the court held that there must

be a more direct connection between the criminal con-

Petition.

duct of the defendant and the homicide than is required by

the tort concept of proximate cause.

Although the petitioner is aware that the above Michigan

and Pennsylvania court’s decisions are not binding on this

court, it appears that these cases presented as does the

instant case, an opportunity for the courts to set a limit

on the expausion of negligent conduct in the criminal

sphere. It is respectfully submitted that the reasoning

contained in these opinions is applicable to the i. stant case

and that the Appellate Division’s reliance upon a tort

liability concept was misplaced.

The application of the tort concept of proximate cause

to the fact of this case, would never the less still require

a finding that the petitioner’s conduct was not the proxi-

mate cause of the decedent’s death.

To begin with, the decedent who had apparently con-

sumed a substantial quantity of alcohol had to leave the

area where he was dropped off by the defendants and go

into the highway and sit in the middle of it and wait until

the arrival of an inattentive speeding driver who freezes at

the wheel and fails to attempt to turn or brake is car.

The practice commentary by Denzer and McQuillan (Me-

Kinney’s Consolidated Laws of New York, Book 39, Penal

Law p. 235) refers to the offensive conduct envisaged by

the revision of the Penal Law and it had to be “extremely

dangerous and fatal conduct”. The prior section (Penal

Law § 1040 (2) which is somewhat similar to the present

section was construed in Darry v. People, 10 N.Y. 120

(1854) and People v. Jernatowski, 238 N.Y. 188 (1924) and

in both cases the acts committed were direct and fatal acts.

In People v. Poplis, 30 N.Y. 2d 85 (1972) where the de-

fendant was convicted for murder following the death of a

child who was repeatedly beaten by him, the proof re-

vealed that the death was produced by injuries sustained

in the beatings.

Petition.

Unlike the above cases that have been held to be within

this murder statute, neither defendant committed an act

directed toward the decedent which caused his death. The

death of George Stafford was censed by the combined acts

of the decedent and that of Michael Blake the truck driver,

and the defendant’s conduct was too remote to constitute

murder.

e @ @

ConcLusion

Ir 1s Respectrutty Susmirrep tHat Basep Upon THE

ABOVE, THE JUDGMENT oF ConvicTION AGAINST THE PetI-

TIONER KisBE BE REVERSED AND THAT THE CHARGE OF MURDER

BE Dismissep anp a New TriaL ORDERED ON THE OTHER

Counts ConTAINED IN THE INDICTMENT AGaINnst Him.

ALL or Wuicu 1s Most Respecrrutty PRrayep For.

Opinion and Order of the District Court,

June 27, 1975.

UNITED STATES DISTRICT COURT

NortHERN District or New York

75-CV-

Unirep States or AMERICA, ex rel. Barry Warren Kipse

and Roy A. KRaLL,

Relators,

against

Rosert J. Henperson, Superintendent,

Auburn Correctional Facility,

Respondent.

James T. Fouey, D. J.

MemoranpuM-Decision and ORDER

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-

vieted 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

eoneurrent 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

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

Opinion and Order of the District Court,

June 27, 1975.

1974). Petitioner’s brief in support 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 1970. 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).

Opinion and Order of the District Court,

June 27, 1975.

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 substantialiy 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: ‘‘The 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.

Opinion and Order of the District Court,

Jume 27, 1975.

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. Fotey

United States District Judge

Excerpt from State Criminal Trial—Pretrial Motion

to Dismiss the Indictment.

(3) Mr. Crimi [Kibbe’s attorney]: If the Court please,

Mr. Cornelius and Mr. Beer. Your Honor, there are three

motions that have not yet been disposed of and the first

motion that I want to address myself to the Court is the

motion that I made in relation to the inspection of the

Grand Jury minutes or in alternative to dismiss the indict-

ment on the grounds that there was insufficient legal

testimony before the Grand Jury to support and in par-

ticular the counts dealing with murder and in violation

of the 20 and 125.25 subdivision 2 and robbery in the first-

degree. Subsequent to my assignment to this case, I con-

ducted an investigation which disclosed that on or about

10:10 P.M. in the evening of December 30, 1970, one

George Stafford was seen by a passing motorist to be sit-

ting with his arm upraised in the easterly lane of traffic

and on East River Road, north of Bailey Road and that

subsequently while he was so sitting, another automobile

coming in the same direction, in the lane in which Mr.

Stafford was sitting, struck Mr. Stafford and dragged him

some forty-seven feet. Following this, Mr. Stafford was

put on an (4) ambulance and enroute to the hospital that

ambulance was involved in an accident and following that

he was removed into another ambulance and then when he

arrived at the hospital, he was pronounced dead. I was

also given copies of the statements of both defendants,

which I am sure were a part of the grand jury minutes

and the review of those statements, even if we assume at

this point that they were legal and voluntary, could not

support the obligations, in my opinion, of an indictment

charging them with murder and robbery in the first de-

gree. The statement of one of the co-defendants, Krall

disavows any knowledge of any taking of money and any

infliction of serious personal injury upon George Stafford,

disavows any positions of said Stafford in any position

Excerpt from State Criminal Trial—Pretrial Motion

to Dismiss the Indictment.

of danger other than leaving him on the side of the road

and not where he was found, that is, where Mr. Stafford

was seen sitting in the road and thereafter struck by a

Phe that ca statement of defendant Kibbe likewise

isavows any infliction of serious personal injury upon

George Stafford or placing him in the path of 5) traffic

or other area of danger. That from what I have been able

to determine that the grand jury testimony consisted of

the confessions of the defendant and the testimony of the

two motorists who were involved in one fashion or another

in the striking of the decedent while he was sitting in the

highway and the medical examiner’s testimony. The medi-

cal examiner’s testimony would appear to show that the

decedent was badly injured but obviously the injuries were

such that could not be attributed to the defendant’s Kibbe’s

statement that he slapped the defendant slightly and that

injuries would be directly connected with the fact that he

had been, the decedent, had been struck by the one auto-

mobile and possibly had suffered other injuries when

struck while he was on the ambulance going to Strong

Memorial Hospital; also, the autopsy report shows that

the decedent, Mr. Stafford, had approximately 0.25 alcohol

by weight in his blood which although was sufficient to

show that he was intoxicated, it is in my opinion that it is

insufficient to show that he was helplessly intoxicated.

Based on all those facts, Your Honor, (6) I feel that the

grand jury minutes do not support a murder charge

against both of these defendants and in particular the one

I represent, Mr. Kibbe.

The Court: Before proceeding further with the argu-

ment, [ think it should be noted that the District Athena

appears, Mr. Robert Beer, and Mr. Charles Crimi and

their respective clients, Roy Krall and Barry Warrant

Kibbe. Is that the end of your argument?

Mr. Crimi: Yes, Your Honor.

The Court: What do you have to say?

Excerpt from State Criminal Trial—Pretrial Motion

to Dismiss the Indictment.

Mr. Cornelius [Assistant District Attorney]: Your

Honor, I have previously handed to the Court a copy of the

minutes of the grand jury and I submit them to the Court

in opposition to the motion to dismiss the indictment and I

think the minutes speak for themselves and I can’t add

anything to them and I would respectfully submit they do

support the charges in the indictment.

The Court: I have read the grand jury minutes. In

general, what is your claim that these defendants or this

defendant Kibbe has been shown to have committed such

acts so that he can be accused of (7) murder.

Mr. Cornelius: Your Honor, I think that the grand

jury testimony taken as a whole will show that these de-

fendants on the night in question had with them in Mr.

Kibbe’s car, an individual who was; number one, highly

intoxicated. I think that is borne out by the testimony

before the grand jury. An individual who was apparently

so intoxicated that at one point he in fact was refused

service at a bar and that subsequently was driven to a loca-

tion south of Rochester, a rural road, one upon which

vehicles were passing and that this was the proof. I think

further supports the fact that this was an extremely cold

night and I believe the testimony was that it was

around zero and the testimony supports the fact that

the individual by the name of George Stafford, who was

with these two defendants, after being struck and after

money being taken from him, that various articles of

clothing were removed; for example, boots were removed,

the victim’s pants were either removed or lowered and he

was wearing only a shirt or outer shirt and his glasses

were removed and in that (8) condition was placed by the

side of this road where there was traffic, in this zero

temperature and the car drove off. It is the People’s

position that in this intoxicated condition, half clothed,

with no glasses, that this individual, the proof I think

shows that eventually wound up in the road, raising his

Excerpt from State Criminal Trial—Pretrial Motion

to Dismiss the Indictment.

hand, attempting to get help, which I would submit is the

only thing that an individual in that position could do and

should be within, certainly within the knowledge and within

the expectations of the defendant who left him in that

particular position and that in that position he was struck

by a vehicle and killed. I think all of these factors taken

together support the particular section under which they

are charged. The charge is not one of intent to kill as is

the traditional or more customary allegation of murder

nor 1s it one of felony murder, but it is one under a dif.

ferent subdivision that involves conduct which is reckless

in nature and indicates a depraved indifference to human

life and I submit that all these factors which I have men-

tioned, which I think are borne out by the grand jury (9)

testimony, support this particular allegation of murder.

calle hey : a to the point of robbery, what do

is the evide i i

ee nee tending to show guilt of those

Mr. Cornelius: The evidence, Your Honor, of the forcible

theft is evidence again, I think, borne out by the minutes of

the grand jury that at least two $100.00 bills were removed

from Mr. Stafford and one of which was actually removed

by the Sheriff’s department and admitted to by one of the

participants: as coming from the robbery in question. I

think there is also evidence to show that both defendants

admitted in their respective statements to the personnel

from the sheriff’s department that their intent was to rob

“i man when they drove him to that particular location.

i ee Is there anything further you wish to say,

Mr. Crimi: Well, Your Honor, in particular to the

murder count, I, without having had the benefit of reading

the grand jury minutes, from (10) what I was able to

learn from the reading of the statement of both defendants,

this decedent was placed by the side of the road, where in

relation to where he was found is unclear, but at that par-

Excerpt from State Criminal Trial—Pretrial Motion

to Dismiss the Indictment.

ticular point, at least as far as the being in a position to

be hit by a motorist, it is not a proof of that at all in the

grand jury minutes. I think that had they left him in the

middle of the road, where he was found, then we would be

presented with a different case, but having left him and as

I understand it from reading the defendants’ statements,

both of them, having been left on the side of the road in

which apparently he was left more or less on his own

power at that particular point, that ends the activity of

the defendants and its seems to me that it’s highly at-

tenuated to say that they at that time had any kind of an

intent to be deprived and allowing that statute as to

perceive that he was going to wander in the middle of the

road and sit in the middle of the road in the position that

he was when he was struck by a motorist. Although the

District Attorney leans heavily on the fact that (11) this

decedent apparently was intoxicated, by the same token

when you are considering the perception of a substantial

risk, you are also holding the defendants accountable to

what a drunken person might do and a person might have

done anything under the circumstances and he might have

slept along the side of the road or may have walked into

the street or may have done anything which I don’t think

they could really perceive to fall within that statute. It’s

a highly unusual set of facts and to some extent perhaps

bizarre, but I think they are attenuated and I think that

basically the facts are not really there to present it to a

Jury. I might add, Your Honor, the facts are such so that

it would be inflammatory, I think, and in a sense that if

this does go to the jury, I think there is even though there

may not be sufficient facts to sustain it, that there is grave

danger that they might be convicted of this charge. I have

nothing else to add, Your Honor.

The Court: In my opinion, the minutes of the grand

jury are sufficient to warrant this indictment. I therefore

deny your motion.

Excerpt from State Criminal Trial—Motion to Dismiss

the Indictment at the Close of the People’s Case.

(987) (Wheveupon the jury was excused at 3:17 P.M.

and the following transpired in the absence of the jury):

' Mr. Beer [Co-defendant Krall’s attorney]: At this

time, Your Honor, at the close of the People’s case I

move on behalf of the Defendant Roy Krall for a dismissal

for the indictment as to him. I am addressing myself as

to the first count, (988) first of all, in which he is charged

with the crime of murder. 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 defendant 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

To effort tos yaid it because, as he said, he was shocked and

therefore did not apply thet and did not swerve his |

wheels in an effort to avoid this man. Thetefe ndant Roy

Krall was under no obligation to antic'pate a result like

this. There was testimony that near the place where this

incident occurred, as nearly as it can be fixed, there was a

store and a gas station, both of which were open. That on

the occasion of letting the deceased out (989) of the car

the defendant Roy Krall could not be charged with evinc-

ing a depraved indifference to human life under those cir-

cumstances. And, it does seem that the People have not

proven the guilt of the defendant of that crime beyond a

reasonable doubt.

Also then, addressing myself to the second count, the

crime of robbery in the first degree, there has been no proof

in this case that the defendant Roy Krall caused serious

physical injury to Stafford during the course of the com-

mission of the crime of robbery or in immediate flight there-

from. Serious physical injury sustained by Stafford with

or without cause or relationship to the actions of the de-

_—

Excerpt from State Criminal Trial—Motton to Dismiss

the Indictment at the Close of the People’s Case.

fendant was sustained some time after the defendant had

left the area where this incident occurred. Therefore, I

do not see how the count of robbery first degree could hold

up as a matter of law.

I move for a dismissal of those counts of the indictment.

The Court: Just the first two counts?

(990) Mr. Beer: Yes.

Mr. Crimi [Kibbe’s attorney]: First off, Your Honor,

let me say that because I live in mortal fear of what Appel-

late Court do, I keep repeating, and I don’t know whether

they are necessary or not, and I don’t want Your Honor to

take either offense or be annoyed by it, but I keep repeating

my objections to the pre-trial motions. But, it’s only done

as I say, in sort of a fear of the Appellate Courts. So that

my first thing I would like to do is to renew each and every

motion that I made prior to trial as such and leave that in

the record as to that.

Now, I make a motion to dismiss as to the Defendant

Barry Warren Kibbe as to the counts in the indictment and

I would like to speak of count 1, first.

Count 1, Your Honor, is a count which charges Barry

Kibbe with the crime of reckless homicide. This particular

type of homicide deals with a homicide which is brought

about by accidents of individuals without intent. (991) It

has been on the books for a great number of years and has

caused to some degree some legal discussions relative to

its enforcement. When the Code, the Penal Code was re-

codified or changed in 1967 the revisors, at least one set

of revisors’ notes seem to indicate that this Section embody

the law pretty much the way it was prior thereto, prior to

the revision. The law prior to the revision of this particu-

lar section seems to indicate that in order to be guilty of

this crime an individual would have to have a degree of

depravity toward the whole human race and then would

show it by an indiscriminate use of conduct toward any-

Excerpt from State Criminal Trial—Motion to Dismiss

the Indictment at the Close of the People’s Case.

body and without picking out any individual. So that we

find in the old case of Darry -vs- The People, 10 N.Y., 10,

which was way, way back in which the Court of Appeals

said: ‘‘What you needed was either an intent to kill any-

body or you did not need any intent to kill but the act had

to be dangerous to many people.’’ In this particular case

we don ’t these facts. We have the acts, (992) if anything,

are directed entirely to one individual.

Now, the question comes up, and I can’t find any cases

and I will be perfectly honest with the Court, I don’t know

if there has ever been a case that has gone to trial since

1967 and reported, because I was not able to find one. The

question comes up as to whether or not that case, the Darry

case and People -vs- Jernatowski, 238, N.Y., 18, which was

a case where an individual, I think shot into a house and

somebody got killed but again he was not directing it to

anybody, he was really directing his whole fire against a

class of people rather than an individual. The question is

whether or not those cases still pertain since there hasn’t

been a revision.

I think in all fairness that the chances are that part of

it has been retained and part of it hasn’t. I think vour act

of depravity today has to be a type of act which is directed

toward all mankind, but [ think today it’s possible to have

the act in the (993) last analysis be directed against another

person as the statute says. So, I think the first thing we

have to look and see whether or not these acts were acts

which showed a depravity of mind toward all of humanity

in that sense rather than just toward this individual named

Stafford.

Now, in reviewing the proof in the backlight of that—

before I do that, from what I have been able to find out,

there are certain elements that must be proven by the

People, and of course the first one is depravity. I think

in the depravity that conduct must evince a depraved indit-

Sa,

Excerpt from State Criminal £rval—WVotion to Dismiss

the Indictment at the Close of the People’s Case.

ference to human life. Secondly, they must find _—

engaged recklessly in the conduct and not careless “y “

recklessly, that there must have been a grees an

unjustifiable risk which each defendant was aware Ot. a

Now, here is where we get hung up, Your Honor, beca ri

it would seem to be that recklessly means that the wages |

ant has to be aware of a substantial and unjustifiable a

(994) and he must consciously disregard it. And = revie /

ing my notes last night as to the chief testimony here a

the motorist who struck Mr. Stafford, it seems to be rer

is not possible, there is no proof beyond a reasonable ——

that these individuals could have possibly perceived t ~

by leaving an individual by the side of the road, mt

was drunk, that he then would sit in the middle of the .

facing traffic with his hands up, as the witness said. oat .

he’s not lying down or anything. He’s sitting in the ee

of the road with his hands in the air and apparently he A

to walk some distance there and then have a —

exceed the speed limit, freeze at the wheel, not brake, D

swerve and have his attention distracted by an eT

car, and also over and above that, he himself said that “

had at the time the low beam lights on. It seems to be

impose upon any individual the ability to foresee that Yo"

of these things would happen to somebody that they left &

the side of the road is impossible, and I don’t think ew

that it has been proven. Nor for that matter, I don’t aa

this is the law for this case, and I don’t think it really

ld ever be proven.

“Ths pratiend between leaving an individual, even if he

were drunk, even if we accept as true that he was robbed,

and any of the other facts, to say that they could Nesey

what was going to happen as it happened—lI can’t see it.

Because, sure, they could perceive that perhaps he =

have frozen to death, but he didn’t freeze to death. Per-

Excerpt from State Criminal Trial—Motion to Dismiss

the Indictment at the Close of the People’s Case.

haps they could have perceived that he may have stumbled

and wandered into the road and fallen flat on his face, but

that would be in a different fact. Here you have an in-

dividual who was intoxicated and for reasons that we’ll

never know, decided to sit right square in the middle of the

highway with his hands up, and it’s not really a position of

help as much as it might be. Maybe he was ornery, I don’t

know. But at any rate, then you have a car going 50 miles

an hour. No attempt to (996) stop. No braking. No

swerving. The unfortunate motorist froze at the wheel,

he was distracted. He was caught at a time when his low

beam lights were on. All of those things, seems to me,

indicate that this just isn’t the type of charge for this par-

ticular case and I feel that the People have not proven

this. And even if we look at the defendant’s confessions

through the confessions, there are statements in there

where the man tripped and he was helped up. There are

statements there that the car was, that they were left off

near & gas station, near lights. So, it just doesn’t seem to

me that you can say, well prosecution can use only those

parts of the statement which are beneficial to the prosecu-

tion and we have got to disregard those parts which are

not beneficial. They chose to put the statement into evi-

dence. There is exculpatory material in the statement and

I think on this particular point they weigh level.

That is my motion in regard to the first (997) eo t,

that it should be dismissed on the ground that there reauy

is not sufficient proof to have this brought to a jury. And

frankly, I would say that it’s probably a count that should

never have been placed against these defendants because

of its difficulty of being able to be proven. And that is why

it just can’t be proven, because I think the type of case

that this calls for is a type of case where an individual

takes it on himself, is mad at humanity and takes it upon

himself to throw a grenade into a crowd or going down

Excerpt from State Criminal Trial—Motion to Dismis.

the Indictment at the Close of the People’s Case.

Main Street at 90 miles an hour and smashes into a crowd

who is assembled or something like that sort where there

is that depravity of mind toward humaa life.

Now, my second motion, Your Honor, is directed to the

second count of the indictment and there my reveal of the

evidence would seem to indicate that there has been no

proof of any serious physical injury as it is defined in the

Penal Law, the robbery which allegedly took place. Now

of course, there (998) obviously were substantial injuries,

but of course those injuries were all caused by the unfortu-

nate accident that occurred after the alleged robbery.

I think I should say one thing else, Your Honor. We

know that through the circumstances of what happened

that night that there has been an individual who was killed,

and I think that the Court should consider the possibility

that if in case this has not, as I suggested to the Court,

been proven, that the jury could run away with this type

of act, and therefore, I urge, that the murder count be

dismissed and robbery first degree be dismissed.

As to the third and fourth counts, as to the robbery

second degree, I don’t think at this point it has been

proven beyond a reasonable doubt that there was a feloni-

ous and forceable taking.

And as to the fourth count—as to the last two counts,

I just move to dismiss without argument as to the last

two counts, Your (999) Honor.

The Court: What do you have to say, Mr. Cornelius?

Mr. Cornelius [Assistant District Attorney]: Your

Honor, both arguments seem to be addressed primarily to

the first two counts of the indictment and I will likewise

address my remarks to the first two counts of the indict-

ment.

I disagree with Mr. Crimi’s interpretation of Section

125.25, sub. 2 for a couple of reasons. I don’t believe that

the law provides or the case law under the subdivision 2

Excerpt from State Criminal Trial—Motion to Dismiss

the Indictment at the Close of the People’s Case.

at the present time stands for the proposition that there

has to be an intent or, I should say, an indifference to

human life in general. It seems to be that I have, it’s either

this section or a section very similar to this where this

very thing was discussed and it indicated, if my memory

serves me correctly, that the Section, the new Section,

whatever may have been the law before applies to acting

with depraved indifference to a human life. In other words,

he need not be (1000) so broadly construed as Mr. Crimi

has stated. I think aside, however, from that argument, I

have also been taught that the best evidence of what a sec-

tion or a piece of legislation means is the plain meaning

of the statute. In other words, if the wording is plain, that

it would seem to settle the situation. I think subdivision 2,

I don’t think that can be any more clear. It states under

circumstances evincing a depraved indifference to a human

life he recklessly engages in conduct which creates a grave

risk of death to another person; not on the people,—not

on the person’s—not on a group of people—not a crowd

but to a person. I think the clear meaning, if there was

any doubt about it, I think the clear meaning of the new

section would limit—or need not limit it, but I think it can

apply with acting with depraved indifference to a single

human life in addition to the situation Mr. Crimi men-

tioned of a crowd of people or humanity in general.

As to the argument that the defendants (1001) had not

been brought within the purview of recklessly causing the

death because they could not have possibly perceived or

apprehended that the possibility existed of this man’s de-

mise under the circumstances in which he was unfortu-

nately killed again, I have to disagree with counsel. I think

that the case and the facts and the evidence up to this

point proves more than just dropping a man off, an intoxi-

cated man off in the side of the road and then having him

wander into the roadway as an unforeseen consequence. I

Excerpt from State Criminal Trial—Motion to Dismiss

the Indictment at the Close of the People’s Case.

think there is a lot more, much more indeed to this case,

because we have a situation when not only was the man

intoxicated, the weather was extremely cold. Even the

statements of the defendants, or at least one of them, re-

fers to the fact that it was freezing and said, “You best

get inside or you'll freeze to death.” I think that shows a&

cognizance on their part or at least one of their parts that

it was cold out there and that he better get to someplace.

The area in which he was dropped off, is, I don’t (1002)

think, and the witnesses are all fairly consistent on that,

that at that particular area, it’s an open area, a field, and

that there is a gas station or a store, but it’s about a quar-

ter of a mile north of this particular location. So, logi-

cally, if a man were, as Mr. Crimi stated in a statement,

you better get to the store or gas station before you freeze,

logically, the only way to go would be up the road. Then

in addition to all those factors you have a situation where

this man was not fully clothed. It’s one thing to put an

intoxicated man, rob an intoxicated man and put him on

the side of the road and it’s quite another thing, I think,

to either have him strip down or lower him, apparently

some of his clothes were removed, his jacket was off, and

his boots were off, even though one of the defendants

gratuitously opened the door and placed them back in the

snow. Nonetheless, he was an intoxicated man with his

boots off and then in addition to that fact we have a situ-

ation where we have a man in the case of (1003) Mr. Staf-

ford, according to one of the witnesses, couldn’t see

without his eyeglasses, and I think the People have proved

that in addition to the money that may have been taken

and the other personal property that may have been taken,

his eyeglasses were also taken and they were found sub-

- sequently in one of the defendant’s automobiles. So, I

~ think combined with all those facts you have a situation

where vou have a man who can’t see. I think especially

Excerpt from State Criminal Trial—Motion to Dismiss

the Indictment at the Close of the People’s Case.

under all these facts that I have mentioned and some that

I have not mentioned—unlike Mr. Crimi, I fail to under-

stand how & person could not percieve the risk of death

occurring in the manner in which it did occur. I think that

the awareness of these facts are borne out of the state-

ments of the two defendants. I have already mentioned

that I think at one point Mr. Crimi said in his statement

that I told the man he better get inside or else freeze to

death, both of them admitted that they knew the man was

intoxicated. Kibbe admitted that his clothes were par-

tially off. (1004) So, I think there is enough here based on

their own statements that they were aware of many of the

facts and many of the circumstances.

As to the cause of death, again, I think under the case

law which I forgot to bring with me this afternoon, but

there are a line of cases on the question of causation of

death, and I don’t think the law stands for the proposition

that to be held responsible the person has to be the sole

or only cause of death. But if there is a direct connection

or if there is a proximate cause between the acts or the

actions of the defendant, and the ultimate death, then

that individual is and can be held responsible for the death.

And I think here much of what I already said applies to

that. True, the preceding and direct result of Mr. Staf-

ford’s death was the truck driven by Mr. Blake, but of

course the fact is that Mr. Stafford wound up in the posi-

tion in which he found himself because of the actions of

ww ~ ~ these de- (1005) fendants.

ar as the second count is concerned, the criticism or

the claim has been made that there is no proof of serious

physical injury either during the course of the commission

of the crime or the immediate flight therefrom. My answer

to that is that under the definition of serious physical

injury, that death of a person, that that comes within the

purview of serious physical injury and defined in the Penal

Excerpt from State Criminal Trial—Motion to Dismiss

the Indictment at the Close of the People’s Case.

Law and I think it’s a question of fact whether or not,

assuming that I am correct, that there is the causation,

proof of causation here. I think it’s a question of fact

for the jury then to decide whether or not this man’s death

was caused during the immediate flight from the commis-

sion of the crime. I think that there is sufficient evidence

to present to the jury on that question because we have

testimony that the man left the bar with these two defend-

ants somewhere in the area of 9:30, by their own state-

ments and they went to a (1006) couple of other places

and they went on East Henrietta Road, drivers were

changed and then they went to East River Road where this

incident occurred. We then have testimony that the acci-

dent or death occurred probably about, shortly after 10

o’clock, around 10:10, so I think the time is sufficiently close

to allow the question to go to the jury on the question

of whether or not the causation of death which is, as I say,

rests upon my assumption that my argument is correct,

whether or not that was within the immediate flight of the

robbery or getaway car.

The Court: To sustain the crime of robbery in the

first degree you are depending upon the fact that this

victim was in fact killed and that in itself constitutes

serious physical injury?

Mr. Cornelius: Yes.

The Court: And as part of the charge or the claim, it

seems if I follow your argument, that you argue that he

was killed during the course of the immediate flight (1007)

of the defendants from the crime or from the scene where

the crime was committed?

Mr. Cornelius: That’s correct.

The Court: Not that the actual injuries caused at that

time were serious, I mean, the slapping of the face and so

forth, those are not—those cannot be considered serious

physical injury?

Excerpt from State Criminal Trial—Motion to Dismi

1Ss

the Indictment at the Close of the People’s Case.

Mr. Cornelius: That’s right. Let me say, that is my

argument, or to again repeat, that I think there is suffi-

cient evidence to present to the jury a question of fact

= or not it was within the immediate flight there-

rom.

The Court: Motions made b endan

tively are in all respects denied. ae ee ee:

Mr. Crimi: Exception.

Mr. Beer: Exception, please.

Ex from State Criminal Trial—Renewal of

a to Dismiss the Indictment at the Close of

the Entire Case.

(1090) Mr. Beer [Co-defendant Krall’s Attorney]: At

this time, Your Honor, at the close of the entire case I

renew the motions I made at the end of the People’s case

and at this time, I move for a dismissal of all the counts

of the indictment against the Defendant Roy Krall on the

grounds that in each of these counts the People have failed

to sustain the burden of proof imposed upon them by law

of proving the guilt of the defendant beyond a reasonable

doubt as a matter of law and insufficient evidence to go

to the jury as against the Defendant Krall on any of these

counts.

The Court: Denied.

Mr. Crimi [Kibbe’s Attorney]: Your Honor, I repeat

the same motions I made at the end of the People’s case

or motions I should say at the end of the People’s case

based on the grounds that (1091) there has been a failure

of proof, particularly as to the first count of the indictment

and the second count of the indictment and that the Judge

should dismiss those two counts, Your Honor.

The Court: Denied.

Mr. Crimi: Exception.

Excerpt from State Criminal Trial—Court’s

Opening to the Jury.

(578) The Court: I think there is time for me to give the

preliminary charge this afternoon. Members of the jury,

at this time I am required by law to instruct you generally

concerning your basic functions, duties and conduct and to

acquaint you in a general way with the trial procedure and

certain rules which apply to every juror so that you will

better be able to assess and weigh the evidence as it is

presented and reach a proper verdict. The trial is com-

menced with the selection of the jury, the next step in the

trial is an opening statement by the People, represented by

the district attorney during which he is required by law to

indicate to you what he intends to prove by way of evidence

to support the charges set forth against the defendant.

Subsequent to.that, (579) defense counsel, if they desire,

may also make an opening statement and what counsel for

either party says in an opening statement is not evidence.

You may consider the opening statement as a preview of

what each side intends to prove in the case.

After the opening statement or statements, the district

attorney will call a witness or witnesses who will be ques-

tioned by him. This is called direct examination. After

the district attorney completes his questions, defense coun-

sel will be given an opportunity to question the witness.

This is called cross-examination. After the People have

concluded the calling of their witnesses and the introduction

of any exhibits which are admissible into evidence, the de-

fendant may offer evidence in his defense. After the de-

fendant rests and the People rest, when I say defendant

singular, IT mean each of these two defendants. The de-

fense may make a closing statement following which the

People may make a closing argument. Then, I will charge

you or instruct you on the law and (580) you will retire to

deliberate for the purpose of reaching a verdict. That is

the general outline of the trial procedure. For tle most

Excerpts from State Criminal Trial—Court’s

Opening to the Jury.

part, evidence consists of testimony of witnesses under oath

and exhibits which are received in evidence. Questions in

and of themselves are not evidence, therefore, you cannot

infer any fact from the mere asking of a question. It is

the answer coupled with the question which constitutes evi-

dence. For example, if a witness were asked the question

‘‘You own an automobile?’ and the witness answered

‘‘No,’’? you may not infer from the mere asking of the

question that the witness does own an automobile.

During the course of the trial, either attorney, the district

attorney or defense counsel, may object to a question or

answer on the grounds that it is somehow legally improper

or inadmissible. If I sustain the objection, that means that

I believe the question or the answer was in some manner

improper. Therefore, in the first instance, the question

may not be asked and in the second instance if the answer

(581) has been‘given, it is stricken out and therefore the

answer is no longer evidence in the case. If I overrule the

objection, then it means that the question is proper and I

will permit it to be answered or if already answered, I will

permit the answer to stand as evidence in the case.

Please do not resent the fact that either attorney makes

objections. This is their duty and do not hold it against

either attorney if I rule against him. As I will explain to

you in detail in my charge as jurors in the case, you are the

sole judges of the facts. I am the sole judge of the law.

You must accept the law as I give it to you without hesita-

tion or reservation even if you privately disagree with me.

You must keep an open mind. You must not converse

among yourselves or with anyone else upon any subject

connected with the trial. You must neither offer nor ex-

press an opinion as to the guilt or innocence of the defend-

ant or either of them until I finally give the case to you.

You must not read or listen to any accounts or (582) dis-

cussions of the case in the event that it is reported by

Excerpts from State Criminal Trial—Court’s

Opening to the Jury.

newspapers or other media. You must not visit or view

the premises or place where the events or offenses charged

were allegedly committed or any other premises or place

involved in the case. You must properly report to the

Court any incident within your knowledge involving an

attempt by any person improperly to influence any member

of the jury.

On Monday morning we'll proceed with the next step in

the trial which is the opening statement by the People. We

~ will not recess until Monday morning. Keep in mind I say

Monday, Tuesday is a holiday and Monday we will have

Court as usual. So, we will recess until ten o’clock Monday

morning. In the meantime, please do not discuss this case

among yourselves or with any other person. Report back

— at ten o’clock on Monday morning. You may step

own.

Excerpt from State Criminal Trial—Portion of

Opening Statement by the People.

(607) [Mr. Cornelius, Assistant District Attorney]:

To go back to the first count, for example. I said to

you that the People will prove the circumstances of

evincing a depraved indifference to human life, recklessly

engaged in a conduct which ultimately caused the death

of Mr. Stafford. It will be the People’s position, and

there will be proof here offered by the People, that putting

all these things together the fact that Mr. Stafford was

intoxicated; that he had his money; had his personal

property taken away from him, had his boots off, that all

of these circumstances, putting them together indicate

evincing a depraved indifference to human life and ulti-

mately the vause of death was the accident which resulted

in Mr. Stafford’s death.

I sometimes think it is important not only to say what

the respective parties of the lawsiut will prove, but also

what they will not prove. There will be no allegation in

this case, I think there is no intention on my part here

nor will there be any proof, that there was any intent to

cause the death of Mr. Stafford. (608) In other words,

when the two drove off, but the People will show, how-

ever, what they will prove is that these two men in the

condition that Mr. Stafford was in, and under all these

circumstances, the weather, the clothing, that they evinced

a depraved indifference to human life in leaving the man

in that condition on that road and driving off. And sec-

ondly, that their acts, perhaps it was not the sole cause

of death, because quite obviously, the direct or precedent

agent of the catalyst causing the death was the truck

driven by Mr. Blake. But nevertheless, their acts were

responsible and were a cause, an approximate cause of

the death of Mr. Stafford.

I think one final aspect of the case that I would want

Excerpt from State Criminal Trial—P ortion of

Opening Statement by the People.

to mention, and that is, that I mentioned to you that during

the course of the drive from the City of Rochester out

to the Town of Henrietta, that Mr. Krall, the proof will

show, that Mr. Krall was driving the automobile and Mr.

Kibbe was seated in the front seat. I think the proof

will show that many of (609) the things that happened,

the taking of the money, the clothes being removed or

altered, the boots or so forth, were done by Mr. Kibbe.

However, the evidence will show that Mr. Krall was

driving the automobile and the People will contend, and

if it is the law, I will ask you to consider that anybody

who aids somebody else is equally guilty. So, the proof

will show that while Mr. Krall did not physically engage

in the same act that Mr. Kibbe did, in the sense that he

did remove the boots or took the money and so forth,

nevertheless, having the same intent, the same frame of

mind, the same intent to commit the crime of robbery, that

he aided him by driving the vehicle which ultimately placed

Mr. Stafford in the position where he was placed.

I submit, members of the jury, that upon conclusion of

the evidence that the proof will convince you beyond a

reasonable doubt that the acts of these two men, Mr. Krall

and Mr. Kibbe, were responsible for the loss of a human

life for the circumstances set forth in the first (610)

count of the indictment and also convince you beyond a

reasonable doubt that the crime of larceny as alleged in

the indictment were also committed by the two men who

stand before you.

Thank you.

Excerpt from State Criminal Trial—Testimony

of Michael Blake.

(616) Micnar. W. Biake, called herein as a witness on

behalf of the People, having first been duly sworn, was

examined and testified as follows:

Direct-Examination by Mr. Cornelius [Assistant District

Attorney]:

Q. Your full name is Michael W. Blake? A. Yes, sir.

Q. Mr. Blake, would you state your address? A. I live

at 379 Fairwood Circle, Rochester.

Q. Is that your permanent address? A. No, it is not.

Q. Whereabouts do you come from originally? A. I

come from Martinez, California.

(617) Q. And would you tell the Court and jury what

you are doing in the Rochester area? A. I attend school

at the Rochester Institute of Technology.

Q. And what year are you in? A. This is my senior

ear.

: Q. What school are you enrolled in? A. Photography.

Q. Mr. Blake, I ask you to recall back, if you would,

to last December of 1970. Whereabouts were you living

at that time? A. 134 Greenmore Way, Henrietta.

Q. And at that time, Mr. Blake, did you own any type

of vehicle? A. Yes, I did.

Q. Would you tell us what? A. I owned a 1965 Chevro-

let half ton pickup.

Q. Mr. Blake, specifically recalling back to December

of 1970, December 30th, of 1970 can you tell the Court

and jury where you were at approximately 10 o’clock in

the evening of that dav? A. I was at home at 10 o’clock.

Q. And what occurred thereafter? A. I received a phone

call and left home to drop off some (618) photographic

prints ‘» a friend of mine who lives on Scottsville Road.

Q. Wi-* route did you take? A. Leehigh Station Road

to East} -r Road and then right on Kast River Road and

went north on East River Road.

Excerpt from State Criminal Trial—Testimony

} of Michael Blake.

Q. Do you recall what kind of night it wast A. It

was a clear night and it was very cold that night and

there was wind blowing intermittently.

Q. Tell the Court and jury in your own words what

happened after you turned right on East River Road.

A. After I turned right I proceeded north on East River

Road and passed Bailey Read and I saw two cars ap-

proaching me going south on East River Road. When

I saw these cars coming toward me the car in front ap-

peared to be flashing its headlights and then immediately

after I saw him flash his headlights and he passed me I

saw a person sitting in the road, in the middle of my lane

with his hands up on the air like this and I struck this

person and continued on letting him pass underneath my

truck. Then I stopped and got out to look and see if I could

see him and I couldn’t see him because it was too dark.

So, I got back into my truck and I turned it around and

came back southbound in the northbound lane and parked

(619) in front of him so my headlights were shining on

him so I could see him and I turned on my emergency

flashers and went out of my truck and went up to see what

had happened.

Q. Can you tell us what part of your vehicle or truck

came in contact with the individual? A. The center of

the truck, the bumper and the grill.

Q. And do you know approximately how fast you were

going? A. I believe I was going about 50 miles an hour.

Q. After you turned your truck around and exited from

your vehicle, can you describe to us the individual you

observed in the road? A. He appeared to be a middle

aged caucasion. What he was dressed with?

Q. Yes. How was he dressed? A. He appeared to

be wearing a pair of pants that were down around his

ankles. He had skivies on and he had a shirt on that was

pulled up around his chest.

Excerpt from State Criminal Trial—T estimony

of Michael Blake.

(). Could you observe any injuries at that point? A.

Yes, I could. He was bleeding from the head.

(y. What occurred thereafter? A. Apparently the per-

son that had flashed his headlights had come back and other

passers-by were coming along and I requested someone

to get help and somebody left to get (620) an ambulance

and then the ambulance and the police arrived, the Monroe

County Sheriff. And, there was another gentleman that

stopped and he helped me cover up this person that was

laying in the road.

Mr. Cornelius: Your witness.

Cross-Examination by Mr. Beer [Krall’s attorney]:

Q. Did you testify before the grand jury, Mr. Blake?

A. Yes, I did.

Mr. Beer: May I see those, Mr. Cornelius?

Mr. Cornelius: Yes.

Q. Mr. Blake, you say your speed on East River Road

was about 50 miles per hour? A. Yes, I believe so.

Q. And for how long a time had you been on East River

Road before this accident in question? A. Well, from the

time that I turned off of Leehigh Station Road.

Q. And how much time would have elapsed? A. I really

don’t know.

Q. Well, would it be a minute or three minutes or five

minutes or what? (621) A. | would say probably 3 or 4

minutes.

Q. And was the pavement dry? A. Yes, it was.

Q. And the weather was clear? A. Yes.

Q. And while you were going north on East River Road

did you have clear visibility? A. Fairly clear. There was

an occasionally gust of wind that blew snow over the high-

way.

Excerpt from State Criminal Trial—T estimony

of Michael Blake.

Q. But that was not a steady thing? A. No.

Q. There was no snow or ice on the pavement? A. Just

what was blowing over it. ‘

Q. And while you were going up the East River Road

did you have your high beam or low beam lights on? A.

I had my low beams on when the cars approached me. Be-

fore that I had my high beams on.

Q. And how many cars passed by you going in the other

direction before the accident? Do you have any idea? A.

From the time that I turned off—

Q. Yes. A. Well, from the time that I passed Bailey

Road there were only two; before that I don’t recall.

(622) Q. And how far past Bailey Road did this acci-

dent occur? A. It’s about a quarter of a mile.

Q. After you saw this figure in the road did you apply

your brakes? A. No, I don’t recall whether I did. I went

into a kind of a shock as soon as I saw him.

Q. So, to your best knowledge you did not apply your

brakes? A. No.

Q. How far away from him were you when you saw

him? A. I would guess about a hundred feet, two hundred

feet; it’s hard for me to tell because of the cars coming

towards me and how quickly it happened.

Q. Did you attempt to swerve your car in either direc-

tion in an effort to go around this figure? A. I didn’t have

time to react.

Q. Would you place this person as being about in the

middie of the highway? A. No, he was in the center of my

lane.

Q. And what is that a two lane road? A. Yes.

Q. Did you drag this person any distance with your ve-

hiele? A. Yes, I did.

Q. About how far? (623) A. From what I understand it

was about 400 feet.

Q. How far? A. 400 feet is what I recall.

Mr. Beer: No further questions.

Excerpt from State Criminal Trial—T estimony

of Michael Blake.

Cross-Examination by Mr. Crimi [Kibbe’s attorney) ] :

Q. Mr. Blake, had you traveled that road frequently?

A. Well, about twice a week.

Q. Is that the way you go to school? A. No, I don’t.

Q. But about twice a week—how long have you been in

Rochester prior to December 30th, 1970? A. A year and

a half. oa

Q. So, had you lived in that area close to the school

in the year and a half time? A. Yes, I did.

Q. And | take it, Mr. Blake, that you are in Rochester

because you are going to school; isn’t that correct? A.

Yes.

Q. So that twice a week or so you would travel this

particular East River Road; is that correct? A. Yes.

Q. And I believe you testified that this accident took

place (624) north of Bailey Road; is that correct? A. Yes.

Q. You were traveling north; is that correct? A. Yes.

Q. Is there in that area any gasoline station? A. Yes,

there is.

Q. And where is that gasoline station? A. It was about

- a mile or three-quarters of a mile from Bailey Road going

north.

Q. All right. And it would be a shorter distance, would

it not, from where the point of impact was; am I correct?

A. No, I’d say it was about half-way between Bailey Road

and the gasoline station.

Q. I see. So, the gas station would be north of where

the impact occurred? A. Yes.

Q. Would it be on the same side of the street? A.

No, it wonld be on the other side of the street if you

are traveling north.

Q. Did you see the gas station that night at all? A.

Yes, when I parked my car there.

Q. Okay. And how far was the gas station from the

point of impact? (625) A. About a little over a quarter

of a mile.

Excerpt from State Criminal T rial—T estimony

of Michael Blake.

Q. Now, north of the gas station is there another store

there or is there a store there? A. Yes, there is.

Q. And what time was this that this happened? A. 10

in the evening.

Q. And did you see that store there that night while you’

were at the gas station? A. I don’t recail noticing it.

Q. Now, Mr. Blake, you came out into East River via

Leehigh Road? A. Leehigh Station Road.

Q. Leehigh Station Road? A. Yes.

Q. And how far is it from Leehigh Station Road to

Bailey Road? A. Approximately a mile.

Q. I take it the weather was clear as you said and so

I take it that you didn’t have your windshield wipers

going; is that correct? A. That’s correct.

Q. There was no need for windshield wipers? A. No.

(626) Q. As you were proceeding along north and I think

you testified either a hundred or two hundred feet before

you noticed this object on the road; is that correct? A.

Would you repeat that, please.

Q. Strike that question out. How far were you from

this object when you first viewed it through your wind-

shield? A. It’s very difficult for me to estimate because

it was an instantaneous sort of thing when the cars were

coming toward me and then I saw him. It’s very difficult

for me to say how far.

Q. Well, can you try? A. It was somewhere between

one hundred and two hundred feet.

Q. It was about two hundred feet when you first notice

it and I understand your testimony is that you were shocked

by this sight and you don’t recall braking the truck; is

that correct? A. That’s correct.

Q. Now, this was a half ton Chevrolet truck; is that

correct? A. Yes.

Q. Do you know how much this weighs? A. Approxi-

mately 3,500 Ibs.

~ §2

Excerpt from State Criminal Trial—Testimony

of Michael Blake.

Q. And returning now to this object. This object when

you (627) first saw it was not lying flat on the surface of

the road; is that correct? A. Yes.

Q. The object was at least in part standing up: is that

correct? A. He appeared to be sitting.

Q. Sitting, but the other part of his body, if he was sit-

ting, would be visible to you; is that correct? A. Yes.

Q. And was this object sitting facing your truck as it

was coming along or was it facing crosswise? A. He was

facing directly towards me.

Q. So that this object then was sitting im the road fac-

ing the traffic coming north? A. Yes.

Q. I take it, Mr. Blake, that you did not see this object

until after cars passing you coming from the south were

flashing their lights; is that correct?.A. The cars that were

heading south, I saw him immediately after they passed.

Q. Immediately after they passed you? A. Yes, passed

me.

Q. And they were flashing their lights? (628) A. The

first car was, yes.

Q. Well, how many cars passed before you saw the ob-

ject in the road? Two? A. I believe there were two. The

first car passed me— I saw the headlights coming and

immediately after I passed this car I saw this person sit-

ting .n the road. Now, the second car was behind the first

ear, directly behind him. Now, whether he passed me be-

fore I saw him or not, I don’t know.

Q. All right. The second ear, as it passed you, had you

at that time struck the object; if you remember? A. I don’t

know.

@ You don’t know? A. No.

Q. Of course, when you first saw this object in the road,

you were not able to obsefté the clothing or how the eloth-

ing was being worn; could you? A. I could only tell that it

was light colored.

Excerpt from State Criminal Trial—Testimony

of Michael Blake.

Q. I see. It was only after the accident, and only after

the person had been dragged a number of feet that you

were in a position to cbserve that his pants were down at

his ankles and that his shirt was rolled up; is that correct?

(629) A. Yes.

Q. Incidentally, was he wearing light colored clothing?

A. It appeared to me that he was.

Q. You say it appeared to you. You had an opportunity

to see it; did you not? A. After I came back, yes.

Q. Yes. Well, was it light or wasn’t it? A. It appeared

to be. I just—

Q. Okay, Mr. Blake, I take it that you struck this person

almost dead center with your truck; is that correct? A.

Yes, I did. ©

Q. Was there a lot of damage to yourstruck? A. Well,

damage to the grill beyond repair.

Q. And when you struck him he was still sitting, was he,

and facing the truck; is that right? A. Yes.

Q. You traveled that road about twice a week; is that

correct? A. Yes.

Q. For a period of about a year ond a half ; is that cor-

rect? A. Yes.

Q. What is the speed limit there, Mr. Blake? A. At that

point?

(630) Q. Yes. A. 40 miles an hour.

Mr. Crimi: Thank you.

Mr. Beer: No further questions.

Mr. Cornelius: Mr. Blake, you testified with re-

spect to one of Mr. Beer’s questions what you

thought the number of feet was that the person was

dragged. Do you know that of your own personal

knowledge?

A. No.

Mr. Cornelius: I have no further questions.

Mr. Beer: No further questions.

Wiryess Excvsep.

Excerpt from State Criminal Trial—Portion of

Testimony of Deputy Sheriff Terrence Cooper.

(646) “ee

| Assistant District Attorney Cornelius] :

Q. What ype of measyrements did you make?

| Terrence Cooper] :

A. I made a measurement from RTC Pole—Rochester

Telephone pole No, 215. The body was laying 50 feet 11

inches south of the pole and approximately 11 feet 4 inches

from the side of the road in the middle of the highway.

Q. Now, this is telephone pole No. 215? A. Yes, sir.

Q. And where is that telephone pole in relation to Bailey

Road? A. It’s approximately one-quarter of a mile north

of Bailey Road.

Q. And are you also familiar with telephone pole 216?

A. Yes.

Q. Where is pole 216 in relation to pole 215? A. It’s 125

feet south of 215 pole.

Q. So, as you are going northbound there would first be

Bailey Road and then approximately 1 quarter of a mile

pole 216 and then north of that 215? A. Right, sir,

(647) Q. All right. Now, again, if you would, Deputy,

whereabouts in relation to poles 215 and 216 was the body?

-A. It was approximately 50 feet—50 feet 11 inches south

of 215 pole.

Q. Would that be between pole 215 and 216? A. Right,

approximately between.

(649) | Attorney Beer]:

Q. Deputy, what is the speed limit in that area where

the man was found? A. 40 miles an hour, sir.

Q. And was there not a gasoline station some distance

north of the place where the man was found? (650) A. Yes,

sir, some distance north.

Q. How far? A. Approximately half a mile.

{. Wouldn’t it be around four or five hundred feet from

there? A. No, sir, I believe it’s about a half a mile,

Excerpt from State Criminal Trial—Portion of

Testimony of Deputy Sheriff Terrence Cooper.

Q. Do you remember testifying before the grand jury in

this matter, Deputy? A. I remember testifying before the

grand jury, yes.

Q. Do you remember this question being asked and this

answer being given? Top of page 25. ‘‘Q. Specifically,

can you tell us what section of East River Road you went

to with respect to other roads in the vicinity?” Do you

remember that question being asked? A. Yes, sir.

Q. And do you remember this answer being given: ‘‘A.

The area was about a quarter mile north of Bailey Road

and it was approximately four or five hundred feet south

of the Sunoco Station which is on the corner of River

Meadow Heights.” Do you remember that answer? A. |

remember the quarter of a mile, sir, but I don’t remember

the 500 feet.

Q. Isn’t it a facet that there are some stores in the vicin-

ity (651) of where you found that body? A. The stores in

the vicinity are north of the gas station. There’s only one

store there.

Q. And is that store at the intersection of Bailey Road

and Kast River Road? A. No, sir.

Q. Where is it then? A. It’s at the corner of River

Meadow and East River Road.

Q). Is that a grocery store, delicatessen store? A. Yes,

it’s a delicatessen.

Q. And where is this other intersecting road that you

mentioned with reference to where you found the body?

A. It’s just on the other side of the Sunoco station which

is north of that area,

Q. Just 50 feet beyond it or so? A. Probably closer to

90 or 100 feet.

(655) [Attorney Crimi]:

Q. Now, as you are proceeding north from Bailey Road

Excerpt from State Criminal Trial—Portion of

Testimony of Deputy Sheriff Terrence Cooper.

on East River Road, there is north of that a Sunoco Sta-

tion; isn’t that correct? A. Yes, sir.

Q. And that is on the opposite side of the street where

the body was found; the opposite side of the road; isn’t

that correct? A. Yes, sir.

Q. And do you have any recollection now as to how far

that Sunoco station is from the point of impact? A. As

[ stated before approximately a quarter of a mile.

Q. A quarter of a mile. Okay. Did you have occasion

to go in that gas station that night? A. Yes, sir.

Q. Did you talk to anybody in that gas station? A.

Yes, sir, I believe I spoke to the attendant.

Q. So, I take it that the gas station was open; is that

correct? A, Yes, sir.

Q. It’s a Sunoco station; is that correct? A. Yes, sir.

Q. And it’s quite a large station; is it not?

(656) Mr. Cornelius: Objection.

The Court: Sustained.

Mr. Crimi: The station—

Mr. Cornelius: Objection, Your Honor. What

relevancy is this?

Mr. Crimi: Well, the relevancy.—

Mr. Cornelius: Well—

Mr. Crimi: Do you want me to explain what the

relevancy is?

Mr. Cornelius: No.

The Court: I will overrule the objection.

Q. Can you describe it? A. It’s a gas station with two

islands to pump gas.

Q. And it has lights; does it not? A. Yes, sir.

Q. And on the same side of the road and directly north

of that is a supermarket; isn’t that true? A. Yes, sir.

Q. And did you observe it that night? A. No, sir, I

can’t say that I did.

Excerpt from State Criminal Trial—Portion of

Testimony of Deputy Sheriff Terrence Cooper.

Q. Now, Deputy, returning to the side of the highway

on which the body was found. Is there not also other (657)

business establishments, I believe it’s a rug company? A.

That is north of the area.

Q. North of the area? A. Yes, sir.

Q. But it’s also between Bailey Road and East Meadow

Road; is that correct? A. It’s almost at the intersection

of River Meadow Road.

Q. So, that there are at least three business establish-

ments between Meadow River Road and Bailey Road; is

that correct? A. Yes, gir.

Q. So, it’s not all farmland; isn’t that correct?

Mr. Cornelius: I object to the form of the ques-

tion. There is no testimony that it was.

Mr. Crimi: Oh, yes. I thought there was.

The Court: Sustained.

Mr. Crimi: Well, excuse me.

The Court: You can have the Deputy describe

the land, if he is able to.

Q. Did you not testify that there was open field territory

there? A. Yes, sir, adjacent to the accident scene.

Excerpt from State Criminal Trial—Portion of

Testimony of Dr. John Edland, Medical Examiner.

(671) Cross-Examination by Mr. Beer (Krall’s attorney) :

Q. Doctor, did you say that the skin on one of the arms

was torn and that the bone was exposed? A. Yes.

Q. Would that finding have been consistent with the

body being dragged along the pavement? A. It looked like

one of the shearing-type injuries where the soft tissue was

actually torn and sheared.

Q. Were there any injuries on there which would indi-

cate that he may have been dragged for some distance?

A. This is difficult to say, Mr. Beer. He does have several

of these skid-like marks over his body. It was very difficult

to say if he was dragged or not. It’s possible,

Q. Do you remember at the grand jury this question

being asked by one of the jurors: ‘‘Q. Was he run over

by the truck? A. It loked like he was struck and then

dragged for some distance.’’ Do you remember that?

A. No.

Q. You said that there was .25 amount of alcohol in the

blood? A. Yes.

(672) Q. Does that indicate a degree of intoxication?

A. A very heavy degree of intoxication, yes.

Q. A high degree of intoxication? A. Yes.

Mr. Beer: That’s all.

Cross-Examination by Mr. Crimi (Kibbe’s attorney) :

The Court: It’s .25%; isn’t?

A. Yes.

By Mr. Crimi:

Q. Dr. Edland, the skid marks, could you describe what

you mean by “Skid marks?” A. These are abrasions, pat-

terned-type of abrasions on the skin that could have been

caused by a tire or possibly by being dragged.

Excerpt from State Criminal Trial—Portion of

Testimony of Dr. John Edland, Medical Examiner.

(673) Q. Now, your findings, I take it, would be consis-

tent, would they not, with an individual being struck by a

truck doing 50 miles an hour; is that correct? A. I can’t

be specific about speed, but it certainly consist of a pedes-

trian being struck by the vehicle.

Q. Do you mean at any speed? A. A reasonable speed;

10, 15, 20, 50. He has a lot of injuries.

Q. Right. (674) A. I couldn’t tell from the injuries

what the speed was.

Q. You couldn’t. Not even from the tremendous amount

of injuries suffered? A. No.

Excerpt from State Criminal Trial—Portion of

Testimony,of Deputy Sheriff Edward Blodgett.

* > *

(694) [Assistant District Attorney Cornelius]:

Q. All right. Approximately. Now, did you have an

opportunity to inspect the area north of pole 215?

[Edward Blodgett] :

A. No, sir.

Q. And where did you find the boots?) A. South of pole

216.

Q. South of pole 216. I’m not clear, Deputy, and I’m

sorry. If I were driving up East River Road in a nor-

therly direction and after I passed Bailey Road, would I

come first to pole 216 or 215% A. I believe 216, sir.

Q. And then driving further north in a northerly diree-

tion I then would come to pole 215; is that correct? A.

Yes, sir.

Q. And again where did you find the boots? Before you

came to pole 216? A. Yes, sir. I found them south of

pole 216.

Q. And that would be closest to Bailey Road? A. Yes,

sir.

Q. Now, in the area of where you found the boots, did

you get an opportunity to look around that particular area

(695) as to contour, et cetera, et cetera? A. Yes, sir.

Q. Can you describe that area to ust A. Well, the area

is a field; there is a slight dip down and out into the field ;

there is a little stump up at the top.

Q. Well, in relation—is there any store or gasoline sta-

tion in and about pole 216? A. No, sir. As I reeall there

is a vacant field across there to the north there is a store,

but 1 don’t know if there is a gas station near there.

Excerpt from State Criminal Trial—Portion of Testi-

mony of Thomas Lauricella, Stenographer, as to

Kibbe and Krall’s Statements to the Police.

(838) [Assistant District Attorney Cornelius]:

Q. Question by Detective Ceretto: “You told him

to get out then without his shoes and pants?” Answer by

Mr. Kibbe: “I forgot to tell him to put the boots back on

and I set them there and he then put the coat back on.”

[Thomas Lauricella]: A. That’s correct.

Q. Question by Detective Ceretto: “Then you took off

and left him there?” Answer by Mr. Kibbe: “Yes.” A.

That’s correct.

Q. Question by Sheriff Skinner: “The man was down on

the ground when you left?” Answer by Mr. Kibbe: “There

was a gas station not far away. I told him to get to the

(839) gas station so he wouldn’t freeze to death because it

was cold.” A. That’s correct.

Q. Question by Sheriff Skinner: “Why did you tell

him?” Answer by Mr. Kibbe: “So he wouldn’t freeze to

death.” A. That’s correct.

Q. Question by Sheriff Skinner: “Why didn’t you take

him?” Answer by Mr. Kibbe: “Because I didn’t want to

get nailed for anything.” A. That’s correct.

Q. Question by Sheriff Skinner: “You didn’t want to get

nailed with the money?” Answer by Mr. Kibbe: “That’s

right.” A. That’s correct.

(844) Q. “So he was pretty intoxicated or drunk?” An-

swer by Mr. Krall: “Yes.” A. That’s correct.

Q. “Whereabouts or what road did you leave him off

of?” Answer by Mr. Krall: “East River Road.” A. That’s

correct.

Q. “What portion of East River Road?” Answer by Mr.

Krall: “What did he say the name was Meadowview. I

don‘t know the names of the streets there.”

(845) A. That’s correct.

Q. ‘When you dropped him off which part of the road

did you drop him off oft’? Answer by Mr. Krall: ‘On the

right hand side.” A. Thet’s correct.

Q. ‘That would be the passenger side of the car?’’

Answer by Mr. Krall: ‘‘Yes.” A. That’s correct.

Q. ‘‘Where did you stop the car?’’ Answer by Mr.

Krall: ‘‘On the side of the road.’ A. That’s correct.

Q. “What was the—were there any cars there at that

time?” Answer by Mr. Krall: ‘‘Yes, there was cars com-

ing from behind us.’”’ A. That’s correct.

Q. ‘‘What about the other direction?’’ Answer by Mr.

Krali: “They were going both ways there weren’t so

meauy.” A. That’s correct.

Q. ‘And you dropped this man off or you helped him off

on the side of the road, is that correct?’’ Answer by Mr.

Krall: ‘‘Yes.’”’ A. That’s correct.

Q. ‘‘Did he have any clothes on when he got out?”

Answer by (846) Mr. Krall: ‘‘Yes.” A. That’s correct.

Q. ‘‘What?’’ Answer by Mr. Krall: ‘That I couldn’t

tell you but I know he had clothes on, it was dark, you

couldn’t see if he wouldn’t have his clothes you have

seen the blur.” A. That’s correct.

Q. “There was no traffic signals or street lights or any-

‘hing like that at that location, is there?” Answer by Mr.

Krall: “Just a store which is about 75 feet from where we

left him.”

(852) Q. Question by Detective Ceretto: “He lowered

his trousers?” Answer by Mr. Kibbe: “Yes, everything.”

A. That’s correct.

Q. Question by Detective Ceretto: “Then you let him

get out of the car with his trousers down?” Answer by Mr.

Kibbe: “No, he had them up.” A. That’s correct.

Q. Question by Detective Ceretto: “How about his

boots?” Answer by Mr. Kibbe: “He forgot them and I

said sat them on the side of the road.” A. That’s correct.

Excerpt from State Criminal Trial—Portion of Testimony

of Thomas Lauricella, Stenographer, as to Kibbe and

Krall’s Statements to the Police.

(854) Q. Question by myself: “Did you see any traffic?”

Answer by Mr. Kibbe: “There was no traffic, no. There

was no traffic at all.” A. That’s correct.

Q. Question by myself: “Were there any street lights

at all?” Answer by Mr. Kibbe: “In the distance.” A.

That’s correct.

Q. Question by myself: “How long were you stopped?”

Answer by Mr. Kibbe: “No.” A. That’s correct.

Q. Question by myself: “Pretty dark there?” Answer

by Mr. Kibbe: “Yes.” A. That’s correct.

Excerpt from State Criminal Trial—Portion of

Testimony of Co-defendant Krall.

(1018) [Attorney Beer]:

Q. Whet happened then? Let us say, what happened

after you got to East River Road?

{Roy Krall]:

A. Well, we came up East River Road quite a little ways

and the man apparently seen some lights of a store.

Mr. Cornelius: I object to that.

The Court: Sustained. ‘‘Apparently seen some

lights,’’ is stricken out and the jury is instructed

to disregard it.

Q. What was said, if anything? A. He just said he

wanted to get off there.

Q. Whereabouts was this? A. At a grocery store or

delicatessen or superette or whatever it was.

(1019) Q. Is that where you stopped the car? A. Yes.

Q. How far would that have been from the store? A.

About 75 feet.

Q. Did you see any gas station around there? A. No,

I didn’t.

Q. Was this on the same side of the street as the store

or across the street? A. Across the street.

(105) [Assistant District Attorney Cornelius]:

Q. And I think that you testified just a minute ago that

you heard Barry ask for money. Now, what is the next

thing you remember after that?

[Roy Krall]:

A. The man said he wanted to get out.

Q. When did that happen? (106 ) A. When we came

to that store on the corner of East River Road and I

think it’s River Meadow Drive.

Excerpt from State Criminal Trial—Portion of

Testimony of Co-defendant Krall.

Q. Is that, by the way, is that where the Sunoco station

is? A. I think it’s right near there.

Q. And so it’s your testimony that it was at that inter-

section that the man asked to get out? A. That’s right.

Q. And as you are heading in a norhbound direction

the Sunoco station would be on your left; isn’t that correct?

A. I believe so.

Q. And the same with the store; isn’t that correct? A.

Yes.

Q. And both of these, both the gas station or the store

or the superette would be north of the intersection? A.

Which intersection?

Q. The intersection of River Meadow and East River

Road? A. No.

Q. Is it on the south side? A. The store is on the north

side and the station is on the south.

Q. All right. Whereabouts in relation then to the gas

station and the store do you say that the man asked to

get out? (106 ) A. Just about directly across from East

River Meadow Drive.

Q. You mean, in the middle of the intersection? A.

No, off to the side of the road.

Q. Was it before you got to the intersection or after?

A. Just before we got to the intersection.

Q. So then, would it be your testimony that this would

be opposite—

The Court: Just a minute please.

(Whereupon a discussion was had out of the

hearing of the Court Reporter.)

The Court: You may continue.

Q. I believe you just testified, Mr. Krall that there came

a@ time when the man asked to get out and he actually

existed just prior to the intersection of River Meadow

Excerpt from State Criminal Trial—Portion of

Testimony of Co-defendant Krall.

to East River Road. Did he get out on the right-hand

side of the road? A. Yes,

Q. Can you describe the area where he got out? In

other words, were there houses there or was there a field

there? What exactly was on the side of the road? A,

On the right side?

Q. Yes. A. I think it was an open field.

(1062) Q. Do you recall whether or not the gas station

was open? A. No, I don’t.

Q. Do you recall whether the store was open? A. Yes,

@. And in fact the man asked to be left at the store; is

that correct? A. Yes.

Q. And this would mean that he would have to walk

across the road to get to the store? A. Yes.

(1085) [Attorney Crimi]: Q. Well, do you recall being

asked concerning where you had dropped off Mr. Stafford?

{Roy Krali] A. Yes.

Q. And do you recall being asked what portion of East

River Road? A. Yes.

Q. And do you recall] exactly how you answered that

question? A. I believe so.

Q. How did you answer? A. I believe I said on the

right-hand side of the street.

Q. All right. Well, did you at that time say in response

to the question: “What portion of East River Road?”

And your answer: “What did he say the name was?

Meadow (1086) View.” Do you recall that? A. Yes.

Q. Now, what did you mean by “He say?” A. I had

asked one of the detectives just before that what the rame

of that road was.

Q. And when had you asked the detective? A. Just be-

fore the question was asked me.

Q. Now, I show you page 19 of Exhibit 25 and you see

Excerpt from State Criminal Trial—Portion of

Testimony of Co-defendant Krall.

that question and answer on there. “In other words, what

portion of East River Road?’’ Answer: “What did he

say the name was? Meadow View? I don’t know the

names of the streets there.” Is that correct? A. Yes.

Q. And you say that when you said ‘‘He” you w re re-

ferring to a detective? <A. Yes.

Q. And that this detective told you the name of the

street, Meadow View? A. Yes. .

Q. And there was a discussion about it before this qnes-

tion was asked? A. Yes.

Q. Now, looking at this page, do you see any record there

(1087) of the discussion between you and a dete*tive rela-

tive to Meadow View? A. No.

Excerpt from State Criminal Trial—Portion of

Summation by Kibbe’s Attorney.

(109, [Mr. Crimi, Kibbe’s Attorney] :

... | would appreciate if you will give me your permission

and indulgence to review the evidence in this case and the

inference that can be drawn from it. Let’s look at this

indictment. Count 1 says and I will read the important

part. That the defendant, ‘‘Feloneously and under cir-

cumstances evincing a depraved indifference to human life

recklessly engaged in conduct which created a grave risk

of death to another person, to wit, George Stafford and

thereby caused the death of George Stafford.” So, you

can see by the aecent that I put on reaching that, the ele-

ments of this particular crime, and which must be proven

beyond a reasonable doubt.

(1107) And then on top of all this, now you have heard

all the evidence, ladies and gentlemen of the jury, you have

listened to it very attentively, you are going to have to

honestly come to the conclusion that here is three people,

all three drinking, and that (1108) these two, or at least my

client were in a position to perceive this grave risk, be

aware of it and disregard it. Perceive that Mr. Stafford

would sit in the middle of the northbound lane, that a

motorist would come by who was distracted by flashing

lights in the opposite lane, who then froze at the wheel,

who then didn’t swerve, didn’t brake, and who was violating

the law by speeding, and to make matters worse, he had at

that particular time, because of what the situation was,

he had low beams on, that is a lot of anticipation. That is

a lot of looking forward. Are you supposed to anticipate

that somebody is going to break the law when you move

or do something? I think that is a reasonable doubt.

Excerpt from State Criminal Trial—Portion of

Summation by Co-defendant Krall’s Attorney.

(1115) [Mr. Beer Co-defendant Krall’s Attorney]:

And I appreciate it because it’s been a long case, and

I just ask you to bear with us a litte longer until we finish

our summations and you have heard the Court’s charge

on the law before you come to any conclusions or opinions

in this matter.

. o . . . .

Now, Mr. Crimi of course has covered some points in the

ease which are common to the whole case, and which

apply to the whole case in his summations on behalf of

his client the Defendant Kibbe. You have heard the

Court’s preliminary remarks on the rules of law which

will apply and which he will instruct you on in more detail

and more carefully in his charge.

(1116) You probably have the counts well in mind since

we have all gone over it. The first count of this indict-

ment charges the defendant Roy Krall whom I represent

with the crime of murder. Now, the Court will instruct you

in more detail as to the law in this count. The accusa-

tion, as you also know that this whole indictment is but

an accusation. It’s easy to accuse. ‘The question is, is

there proof of the accusation? A person can be accused

of anything that comes to mind. The first count of the

(1117) indictment accuses the Defendant Roy Krall of

murder in that he evinced a depraved indifference to human

life. And he recklessly engaged in conduct which created

a grave risk of death to another person, to wit, George

Stafford and thereby caused the death of George Stafford.

Now, there is the accusation. It’s not evidence, but each

word of that accusation has to be borne in mind by you

and weighed carefully and you have got to see whether

——

Excerpt from State Criminal Trial—Portion of

Summation by Co-defendant Krall’s Attorney.

each word of that accusation has been borne out by proof

as against the Defendant Roy Krall. I don’t think you

will find there is any proof, to say nothing of proof of

guilt beyond a reasonable doubt, that the Defendant Roy

Krall showed any depraved indifference to human life

on the night of December 30th, 1970. The proof shows

that if there was any depraved indifference to human life,

any depraved conduct, it was on the part of that motorist

who caused the death of George Stafford and of which

nothing was apparently made as far (1118) as we know of

that kind of conduct. And he testified on the witness

stand that his speed was that of 50 miles an hour. That

he saw the man in the road when he was 100 to 200 feet

away. That he made no effort to avoid the accident by

applying his brakes or by swerving his wheels. There

you have the cause of death, ladies and gentlemen, there

you have, if any, if there was any depraved indifference

to human life, vou have it right there and not on the head

of Roy Krall.

. ° . * * .

(1125) But evidently, that’s the choice the prosecution

has made in trying to show that this man was so intoxi-

cated that the fact of his intoxication, the reason from that,

and I ask you the reason, that he should not have been left

out of the car at the side of the road and to ask you to

reason further from that, that because he was let out of the

ear at the side of the road, that the Defendant Krall was

bound to anticipate that he would be struck by a car, struck

and killed by a car; that’s what they’re asking you to con-

vict the defendant or murder based on that kind of evi-

dence. The testimony is uncontradicted that he was left

out near a place where people were, where there was a gas

station and a store across the street from it. That they

had every reason to suppose that he would make his way

over there.

. . +

Excerpt from State Criminal Trial—Portion of

Summation by Co-defendant Krall’s Attorney.

(1129) But I feel that after you have carefully reviewed

all the evidence to which you have already carefully lis-

tened and taken the instructions on the law from the Court

as to the law that applies to these facts as you will find

them to be, you will find that the proof has fallen far, far

short of convicting the Defendant Roy Krall of any of

these crimes as I have outlined them to you here for the

reasons which I have stated and that each one of you will

have (1130) no hesitation about to sticking to a verdict an

opinion of not guilty on behalf of Roy Krall.

Thank you.

Excerpt from State Criminal Trial—Portion of

Summation by the People.

(1130) The Court: Proceed.

Mr. Cornelius [Assistant District Attorney]: Judge

Ogden, Mr. Crimi, Mr. Beer, members of the jury, my

colleagues have made reference to the indictment which

charges these two defendants with certain crimes and

because the indictment although it (1131) is no proof of

any of the facts, alleged therein or because the indictment

is the charge and is really ultimately the charges or con-

tains the charges upon which you will ultimately ?¢'-berate,

I shall likewise refer to it.

The indictment contains four counts. The first count

is the charge of murder; the second count is the crime of

robbery in the first degree and the third crime is the count

of robbery in the second degree and the fourth count is the

crime of grand larceny in the third degree. Rather than

go through each one of these counts separately and pri-

marily because Mr. Beer and Mr. Crimi I think spent a

good deal amount of time during their summations, their

respective summations, discussing count No. 1, with your

permission I would like to also do the same, because I

think that much of what I have to say with respect to the

first count of the indictment would apply and would

encompass anything that I could say about count 2, count

3 or count 4, (1132) because basically, it’s the same fact

situation we are talking about.

The first count of the indictment, as we have mentioned

and has been read to you on the voir dire and it has been

mentioned to you in the summations of defense counsel,

charges the defendants with the crime of murder, feloni-

ously and under circumstances evincing a depraved in-

difference to human life. Just think about that for a

minute. Circumstances «vincing a depraved indifference

to human life in that they recklessly engaged in conduct

which created a grave risk of death to another person and

Excerpt from State Criminal Trial—Portion of

Summation by the People.

thereby caused the death of that other person. As I men-

tioned on my opening, the word recklessly has a legal

definition and Judge Ogden will probably charge you the

legal definition of recklessly. When I said to you that the

People will sustain their burden of proof and prove that

these defendants not only acted unde’ circumstances evinc-

ing a depraved indifference to human life but also acted

(1133) recklessly in causing the death of Mr. Stafford, I

said to you that by that term I meant that we would prove

that these two defendants were aware of and consciously

disregarded a substantial and unjustifiable risk that death

would result. I listened from about 11:30 on until about

12:30 this morning, or this afternoon, I should say, to my

colleagues who, and I think I must have heard it at least

a dozen times, Mr. Cornelius wants you to believe this and

and Mr. Cornelius wants you to believe that and Mr. Corne-

lius wants you to believe this. Members of the jury, the

only thing that I ask from you as an attorney represent-

ing the People of this State is that in judging the facts

as you find the facts to be that you bring to bear a good

common sense, your good judgment that you have acquired

in your respective lives and birng it to bear and apply it

to the facts of this case as you have heard it and then

ask yourselves, has a crime been proven with respect to

each one of these (1134) counts; with respect to the first

count of the indictment ask yourself, based upon the facts

that have been proven here as a person of good common

sense, based upon the law that Judge Ogden will give you,

did the circumstances here and the acts of these defend-

ants evince a depraved indifference to human life? And

did they act recklessly and caused the death of Mr. Staf-

ford? With your permission, I would like to, as I say,

that is the only thing I’m going to ask you, but with your

permission I would like to go through which I think one

of the defense counsels did, 1, 2, 3 and 4 and list some of

Excerpt from State Criminal Trial—Portion of

Summation by the People.

the facts in this particular case, and in each instance, and

with respect to each fact and as you add the facts together

ask yourselves: Has this evinced a depraved indifference

to human life? Does this constitute recklessly within the

meaning of the law?

(1152) Well, I think it was Mr. Crimi who said, he said,

how can you expect these two men to have anticipated that

this man would get out in the middle of the road, sitting

down in the road and getting struck by a car? I think it

was Mr. Krall who was asked: ‘‘Where did you stop the

car?” And he answered: “On the side of the road.” Ques-

tion: “Were there any cars there at that time?” And he

answered: ‘‘Yes, there were cars coming from behind us.”

Well, if you accepted my theory or my argument up to now,

you now have a man, a very intoxicated man and the de-

fendants know he is very intoxicated, he’s been robbed, he

not only has no money, he has no identification, nothing on

his person. You have him without (1153) his boots, with

his pants around his ankles, let out on the side of the road,

in a dark area with an open field to the east of him which

means if he was helped or if he is trying to get help or if

he is going to walk to a gas station or to walk to a store,

the only way is up the road or across the road and it’s 4

degrees out, and these defendants know that there are

other cars on that road. Does this evince a depraved con-

dition to human life? Well, members of the jury, if there

are any questions about whether these acts constitute and

evince a depraved condition to human life, if there is any

doubt that these acts amount to reckless conduct—there is

one other fact that I haven’t mentioned yet, because you

take an intoxicated man, Mr. Stafford’s condition, with his

pants around his ankles and unfortunately, I can’t agree

with Mr. Crimi, I don’t know how many of you have chil-

dren, somehow their diapers come off or their pants come

Excerpt from State Criminal Trial—Portion of

Summation by the People.

trousers are down who is intoxicated and it’s cold—it’s

down and you can see them try to walk, but a man whose

trousers are (1154) down who is intoxicated and it’s cold

— it’s freezing, and he doesn’t have his boots on, and he

can’t see because they have taken his glasses. Again, I

refer to the testimony of Mrs. Mammano who knew this

man, who livei with this man. She wasn’t married to him.

She lived with tim. She knew him like a wife would know

her husband. The first thing that this man did every morn-

ing was put on his glasses. He couldn’t see without his

glasses. You can examine them. You can look at the

strength of them.

So, I submit, members of the jury, the circumstances

here are little more than Mr. Beer or Mr. Crimi

would have you believe, because you have a man, and I

will repeat it for the last time, you are probably getting

tired of hearing it, a man who was drunk, a man who had

been robbed, a man who had his trousers around his

ankles, a man who had his boots taken off, a man who was

out there in 4 degree weather with an open field and a

man who can’t see, what is he gonna do? (1155) What is

he gonna do? He’s probably going to do the same thing

that he did. He certainly isn’t going to walk eastward

across the snow across the field. So, he went into the road

and along comes a truck and that’s the end of Mr. Stafford.

These acts constitute and evince a depraved condition to

human life. I will leave that up to you. You now become

the judges of that.

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

this first count, and also ac.ually in regard to the second

count. As I mentioned not only does the first count con-

tain reference to and require proof of a depraved indiffer-

ence to a human life, it proves that the defendant reck-

lessly engaged in conduct which created a risk of death in

that they caused the death of George Stafford. Now, I

Excerpt from State Criminal Trial—Portion of

Summation by the People.

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

obviously the acts of both of these defendants were not the

only (1156) the direct or the most preceding cause of his

death. If I 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 be-

cause 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 northbound lane. Sure,

that’s the most direct cause of death. But how did he get

there? Or to put it differently, would this man be dead

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

I submit to you, members of the jury, that the (1157) acts

of these two defendants did indeed cause the death of Mr.

Stafford. He didn’t walk out 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.

Excerpt from State Criminal Trial—

Charge to the Jury.

(1162) The Court: Members of the jury, a grand jury

of the County of Monroe has indicted these two defendants

by an indictment reading as follows: “The People of the

State of New York against Roy A. Krall and Barry

Warren Kibbe. First count: The grand jury of the

County of Monroe by this indictment accuse the defendants

Roy A. Krall and Barry Warren Kibbe of the crime of

murder in violation of Sections 20.00 and 125.5, sub. 2 of

the Penal Law of the State of New York (1163), com-

mitted as follows: The defendants on or about December

30th, 1970 in the County of Monroe, State of New York,

feloniously and under circumstances evincing a depraved

indifference to human life, recklessly engaged in conduct

which created a grave risk of death to another person, to

wit, George Stafford, and thereby caused death. Second

count: The grand jury of the County of Monroe by this

indictment accuse the defendants of the crime of robbery

in the first degree in violation of Section 20.00 and 160.15,

sub. 1 of the Penal Law of the State of New York com-

mitted as follows: The defendants at the same time and

place set forth in the first count of the indictment feloni-

ously and forceably stole property, to wit, a sum of United

States currency and other personal property from George

Stafford, and -vhen in the course of the commission of the

crime or the immediate flight therefrom, the defendants

seriously endangered George Stafford who was not a

participant in the (1164) crime. Third count : The grand

jury of the County of Monroe by this indictment further

accuse the defendants of the crime of robbery in the

second degree in violation of Sections 20.00 and 160.10

sub. 1 of the Penal Law of the State of New York com-

mitted as follows: The defendants at the same time and

place set forth in the first count of this indictment feloni-

ously and forceably stole property, to wit, a sum of United

Excerpt from State Criminal Trial—

Charge to the Jury.

States currency ad other personal property from George

Stafford, and when each defendant was being aided by

another person, to wit, the other defendant who was

actually present. Fourth count: And the grand jury of

the County of Monroe by this indictment further accuse

the defendants of the crime of grand larceny in the third

degree in violation of Section 20.00 and 150.30, sub. 5 of

the Penal Law of the State of New York committed as

follows: The defendants at the same time and place set

forth in the first count of this indictment feloniously stole

property, to wit, a (1165) sum of United States currency

and other personal property from the person of George

Stafford.”

The indictment is no proof or evidence whatever of the

guilt of these defendants or either of them of the crime

or crimes charged. It must not be used by you as any

proof of their guilt whatever. Your verdict, whether it

be guilty or not guilty is dependent and must follow only

the evidence produced here in this courtroom by the wit-

nesses who have appeared before you. When I refer to

evidence, I mean oral as well as written exhibits received

in evidence are included as a part of the evidence.

This indictment is rather an accusation of wrongdoing

on the part of a named person. That accusation is made

by a hody of the citizens of the County of Monroe and is

no proof whatever of the guilt of these defendants or

either of them of the crime or crimes charged.

In that connection, members of the jury, (1166) I point

out to you, and I ask you to consider the evidence in this

light, any statement made, if you find it was a true state-

ment in accordance with the rules of law which I will af-

terwards give to you, and a voluntary statement can be

used as evidence only, and I repeat, only, against the per-

son making that statement and not against the co-defend-

ant or any other person. If A says B did this, that or

Excerpt from State Criminal Trial—

Charge to the Jury.

the other thing in A’s statement, that statement and what-

ever its contents are cannot in any fashion be used

against B. It’s only what A says that he did that you

may consider and then only as against A. In other words,

whatever is contained in a statement of either of these

defendants if believed and if given freely and voluntarily

can be used as evidence only against the person the de-

fendant making the statement and not against his co-

defendant.

Before I get further into the charge I think it proper

to compliment all of the attorneys upon not only the way

in which (1167) they have handled the introduction of

evidence, examination and cross-examination and in their

summaries, the arguments they have made to you why

you should find or believe a certain way, but in their con-

duct of the case. I believe, and it is my opinion that that

ccnduct of all these attorneys, all three of them has been

not only gentlemanly, it has been thorough and in every

way they have protected zealously the rights of their re-

spective clients.

These defendants appear before you presumed to be

innocent. They do not have to offer any evidence tend-

ing to prove or disprove their innocence. They don’t

have to do anything. They are presumed to be innocent

and that presumption of innocence surrounds and protects

them throughout the trial and until you, by your verdict,

if such be your verdict, have found one of them or either

of them otherwise. The burden of proving the defendants

or each of them guilty of each or any of the crimes (1168)

charged beyond a reasonable doubt is always upon the

People of the State of New York represented by the Dis-

trict Attorney. The People must prove each defendant

guilty beyond a reasonable doubt before you, by your

verdict, can find him guilty.

a A a lit

Excerpt from State Criminal Trial—

Charge to the Jury.

In this case, each of the two defendants is accused of

four separate crimes. In your deliberations and the verdict

that you will return, separate the defendants and consider

each one as a separate case and as to each defendant

consider whether he is guilty or not guilty of each of the

charges for which he has been indicted. That is, each de-

fendant will be found guilty or not guilty of each of the

four accused crimes.

A reasonable doubt is not a mere whim nor a mere guess

nor a mere surmise nor is it a subterfuge to which resort

may be had by a juror to avoid doing an unpleasant and

disagreeable duty. The words beyond a reasonable doubt

do not mean that the (1169) People, the prosecution, must

establish the guilt of the defendant to an absolute certainty

or to a mathematical certainty or beyond per adventure or

beyond every imaginable, every conceivable, every possible

doubt. A reasonable doubt is an actual doubt of which you

are conscious after going over in your minds the entire case

giving consideration to all of the testimony and every part

of it. If you then feel uncertain that the defendant is guilty

and such uncertainty is reasonable and you feel that a

reasonable man in any matter of like importance would

hesitate to act because of such a doubt as that of which you

are conscious, that is a reasonable doubt and the defendant

is entitled to the benefit of it. A reasonable doubt is such a

doubt as a reasonable man may entertain after a careful

and honest review and consideration of the evidence. It

must be founded on reason and must survive the test

of reasoning or the mental process of ( 1170) a reasonable

examination.

If all the reasonable evidence in this case does not con-

vince you as to the guilt of each of the defendants of the

crime or crimes charged and if, at the end of your delibera-

tions, there is still left in your minds a lack of certainty, a

Excerpt from State Criminal Trial—

Charge to the Jury.

doubt based upon the evidence or lack of evidence in this

case for which doubt you could give a sound reason if called

upon to do so as to the guilt of the defendant of the crime

charged, then, and in that event you should give to the

defendant the benefit of that reasonable doubt and

therefore find him not guilty.

Credible testimony is simply that testimony which you

find to be true, believable which has the ring of sincerity,

probability about it. It is the kind of testimony which

would cause you to take action in a matter of like impor-

tance effecting yourselves. From all of the testimony re-

ceived here use your own good judgment and determine

what you believe; that is credible (1171) testimony.

Dr. Edland was called as a witness to testify as to the

death and the cause of death of George Stafford. He is

what we classify as an expert witness. His testimony is

that of an expert and is received from him, who by reason

of training, experience and study, has been shown qualified

to express an opinion on subject which we laymen are not

usually familiar. Such testimony, except whereas to a

present or past fact is opinion testimony. And considering

opinion testimony and the weight to be given to it, consider

the qualifications such as study, training. and experience of

the witness expressing the opinion in his opportunity for

observation and a similation of the facts upon which his

opinion is based.

You are the sole judges of the facts. In reaching your

conclusions as to what facts have been proven beyond a

reasonable doubt vou will use your own recollection, not

that of either counsel or of myself. .

(1172) I cali to your attention that if you can not re-

member what the testimony was or if there is any kind of

a dispute about what the testimony was you are at liberty

to ask the Reporter to read that testimony to you.

You are also the sole judges of the credibility of the

Excerpt from State Criminal Trial—

Charge to the Jury.

witnesses. In reaching a conclusion as to what weight you

will give to the testimony of any witness you may take

into consideration his demeanor, his manner of testifying,

his relationship to the case or the parties, the motive, if

any, the witness may have for testifying truthfully or

falsely and the probability of the story told by the wit-

ness. You may call to your aid the knowledge you have

acquired in your every day life in sizing up people and

in deciding whether or not they are telling the truth. If

you find that any witness has wilfully testified falsely as

to any material fact, you may disregard the entire tes-

timony of that witness. You (1173) may, if you wish,

give credence to so much of his testimony as you find

corroborated or substantiated by other credible testimony.

During the course of the triai it was necessary that I

make some rulings upon objections or upon the admission

or exclusion or striking of testimony from the record.

Disregard those rulings in their entirety. Do not use

them to the prejudice of any party to this lawsuit. Yon

will follow, however, the rulings whereby certain testi-

mony was stricken from the record and you are instructed

to disregard it. Follow those rulings consciousl-.

The arguments of counsel are advanced for your help in

reaching a fair and just verdict. Where the arguments

are based upon any evidence received in this lawsuit, not

necessarily evidence that you find to be credible or upon

inference reasonable to be drawn from that evidence, those

arguments you may follow. If the arguments are not

based upon any testimony received in this (1174) lawsuit

or upon inference reasonable to be drawn from that tes-

timony, disregard them in their entirety.

If, in the course of your deliberations, the question of

punishment or possible punishment attended upon a ver-

dict of guilty should arise, I charge you, members of the

jury, punishment or possible punishment is no part and

Excerpt from State Criminal Trial—

Charge to the Jury.

must be no part of your deliberations. That follows logi-

cally. You are to decide what the true facts are. You are to

apply to them the law which the Court has given to you

and upon both the facts and that law decide whether the

People have met their burden of proof. Decied whether

the defendant, each of the defendants is guilty or not guilty

of each of the crimes charged. If, and only if your ver-

dict against either defendant on any charge be one of

guilty, then the Court and the Court alone has the duty

and responsibility of imposing punishment. So, punish-

ment is no part of and can be no part of your deliberations.

(1175) These crimes or the crimes charged all require

an intent on the part of the perpetrator to consummate

the respective crimes. Intent is a frame of mind of a de-

fendant at the time he commits the act. Murder. Rob-

bery. Larceny. You may wonder how you are to deter-

mine what a man’s intent is? You can only determine

that by his acts and conduct; by what he does and by

what he says. Sometimes, as you are well aware, acts

speak louder than ~vrords. Ordinarily, a person intends

the natural consequences of his act. It is for you to de-

termine the defendants’ intent, if any, from all of the

evidence in this case. In that connection, you may con-

sider what each defendant did; what means he e:nployed;

the surrounding circumstances; the condition .of the peo-

ple involved; the time of day or night; his manner of

clothing and anything of that nature received here in evi-

dence surrounding the transactions set forth during the

course of this trial. That intent is an essential element

of the crimes of which (1176) each of these defendants is

charged.

Some of the facts, and I’m not going to detail them, they

have been adequately and fully covered by counsel in their

summations, and by the evidence itself, but circumstan-

tial evidence has been offered to prove some of the facts.

Excerpt from State Criminal Trial—

Charge to the Jury.

Evidence is direct and positive when the very facts in dis-

pute are communicated by those who have the actual know!l-

edge of them by means of their senses. Circumstantial

evidence is the proof of collateral facts and differs from

direct and positive proofs in that it never proves directly

the fact in questioin. In other words, direct or positive

evidence as the term is commonly used, means statements

by witnesses, directly probative of one or more of the

principals or res gestae facts of the case while circumstan-

tial evidence puts before you facts which alone or with

others are in some degree, but indirectly probative of one

or more of those principles or res gestae facts and from

which one or more of those principle facts (1177) may

properly be inferred. Circumstantial evidence means

proof by circumstances surrounding the transaction. In

a given case there is furnished direct proof of certain

facts and circumstances from which you may infer other

connected facts which usually and reasonably follow ac-

cording to the common experience of mankind. The infer-

ence may not be based upon conjecture, supposition, sug-

gestion, speculation or upon another inference. The facts

from which the inference are to be drawn must be estab-

lished by direct proof. If you can infer from the proven

facts a conclusion that is as consistent with innocence as

with guilt, such evidence may not be used as proof of

guilt or, by its very nature, it does not meet the require-

ment of proof of guilt beyond a reasonable doubt. When

there are two inferences which can be drawn from circum-

stantial evidence, one leading logically to the conclusion

of guilt, and the other leading logically to the conclusion of

(1178) innocence, then the circumstantial evidence has no

weight or value and it is your duty to ignore it. In deter-

mining whether a fact has been proven by circumstantial

evidence there are two general rules to be observed. One,

the hypothesis or inference of delinquency or guilt should

Excerpt from State Criminal Trial—

Charge to the Jury.

flow naturally from the facts proved and be consistent

with them all. Two, the evidence must be such as to exclude

a moral certainty every hypothesis or inference but that

of the guilt of the defendant of the offense imputed to

him. Or, in other words, the facts proved must all be

consistent with and point not only to his guilt but they

must be inconsistent with his innocence.

Section 60.45 of the Criminal Procedure Law reads as

follows: “Evidence of a written or oral confession, ad-

mission or other statement made by a defendant with re-

spect to his participation or lack of participation in the

offense charged may not be received in evidence against

him in a criminal pro- (1179) ceeding if such statement

was involuntarily made. A confession, admission or other

statement is involuntarily made by a defendant when it is

obtained from him, (a) By any person, by the use or

threatened use of physical force upon the defendant or

another person, or by means of any other improper con-

duct or undue pressure which impaired the defendant 8

physical or mental condition to the extent of underlying

his ability to make a choice whether or not to make a state-

ment or (b) By a public servant engaged in law enforce-

ment activity or by a person then acting under his direction

or in cooperation with him; (1) By means of any promise

or statement of fact which promise or statement creates a

substantial risk that the defendant might falsely incrimi-

nate himself or (2) In violation of such rights as the

defendant may derive from the constitution of the state or

of the United States.”

Section 60.50 of the same law reads as (1180) follows:

“A person may not be convicted of any offense solely upon

evidence of a confession or admission made by him without

additional proof that the offense charged has been com-

itted.”

In this case, members of the jury, if you find that the

Excerpt from State Criminal Trial—

Charge to the Jury.

statement, admission or confession of the defendant was

voluntarily made, was a free expression of his will in ac-

cordance with the rules which I’m about to give to you, you

must also, before you can convict that defendant of any of

these crimes, find some additional evidence that the offense

charged has been committed. Now, in this case, as far as

the robbery is concerned, just to point to one piece of the

evidence that has been offered, one of these defendants

showed a hundred dollar bill in a bar after the alleged

offense. That may be some evidence that the offense oc-

curred and that the hundred deilar bill was taken from the

victim of the robbery. I just use that by way of illustra-

tion of what I mean by (1181) some additional evidence

that the offense charged has been committed. Naturally,

there are other bits, pieces of evidence, and I do not pre-

tend to detail them all. When I say there are, there have

been received in evidence additional facts from which you

may find that the offense charged has been committed.

In addition to the confession or the statement or the

admission, there is proof of circumstances which although

they may have an innocent construction are nevertheless

calculated to suggest a commission of crime, and for the

explanation of which the confession furnishes a key, the

statute is complied with. It is not necessarily that such

additional evidence should be sufficient to convict a defend-

ant independent of the confession or statement. The ques-

tion is whether there is any evidence in addition to the

confession or statement reasonably tending to prove the

crime and thus corroborate the confession.

(1182) Now, referring to the confession or statement

or admission by whatever name it’s called itself, I charge

you as follows: If you determine that it was a confession,

the statement or admission offered here, and this refers to

each of the statements, and if you determine that the de-

fendant mafle it, that is, the respective defendant made

Excerpt from State Criminal Trial—

Charge to the Jury.

the statement attributed to him, and if you determine that

it is true, if you determine that it is accurate, before you

may use it you must find that it is voluntary and the

prosecution has the burden of proving that it was a

voluntary confession. The defendant merely comes

forward with the suggestion that it was involuntary or he

may not offer any proof at all, that is his privilege. But

the burden is upon the prosecution to show that it was

voluntary. A confession, even if true and accurate, if in-

voluntary may not he used. If you say it was involuntarily

obtained it goes cut of the case. If you find it was

voluntarily made, the weight of it is (1183) for you to

determine. I am submitting to you as a question of fact

to determine whether or not (a) This statement was made

by the defendant, the respective defendant. (b) Whether

it was a voluntary statement or a confession. And (c)

Whether if voluntary, it was true and accurate. That

decision is yours. Should you decide that it is voluntary,

true, and accurate, you may use it and give it the weight

you feel that you should give it. If you should decide that

it is involuntary, exclude it from the case and do not con-

sider it at all. In that event, you must go to the other

evidence in the case to see whether or not the guilt of the

defendant, and I refer to each of the defendants, was

established to your satisfaction outside of the confession

or the admission beyond a reasonable doubt. If you should

determine from the evidence that the defendant made this

confession or statement, the confession or statement at-

tributed to him, and that it was a true confession, then if

you also decide (1184) that it was gotten by influence or

fear produced by threats or that it was coerced in any

fashion, mentally or physically, reject it. I repeat to you:

The burden of proving beyond a reasonable doubt the ac-

euracy, truth and the voluntariness of the confession

always rests upon the prosecution.

Excerpt from State Criminal Trial—

Charge to the Jury.

There has been some reference to intoxication, and I

charge you, members of the, jury, intoxication is the state

or condition which inevitabiy follows from taking excessive

quantities of an intoxicant. Intoxication implies undue or

abnormal exitation of the passions, or feelings or the im-

pairment of the capacity to think and act correctly and

efficiently. It suggests the loss of the normal control of

one’s feelings. The intoxication need not be to the extent

of depriving the accused of all power of volition or of all

inability to form an intent.

I think from the evidence that you may find it proper

to consider intoxication both as to each of these defendants.

Each of whom (1185) in the statement, if you find that

can be used in evidence, said that he had been drinking

quite a while before the three of them, Stafford, Krall and

Kibbe left Nick and Corky’s bar. And also, in connection

with the Defendant Krall’s testimony that he had 10 or

12 drinks of intoxicants the day that he is alleged to have

made a statement to the Sheriff’s represeutatives. I think

it is proper for you to also consider the question of in-

toxication in connection with the condition of the deceased

George Stafford only as one of the factors, mind you.

There is also another rule of law that the exclusive

possession of the fruits of a crime, if wnexplained or

falsely explained justifies the inference of guilt. This

rule is applicable to all kinds. In that connection, I call

to your attention the testimony that one of these defend-

ants, after the alleged crime exhibited or displayed a one

hundred dollar bill in a bar. I believe there was some

testimony in the statement of the (1186) other that he had

produced—was there or was there not?

Mr. Cornelius: Yes.

The Court: That he produced a one hundred dollar bill

in the Sheriff’s Office. They are relevant or that testimony

may be relevant only because of the other testimony from

Excerpt from State Criminal Trial—

Charge to the Jury.

the witness Herbert Stern that the deceased George

Stafford on the day in question, December 30th, 1970 had

been at his law office and by way of a retainer had paid

Mr. Stern two, one hundred dollar bills. That upon a

change of mind Mr. Stern returned the same bills to Mr.

Stafford, two, one hundred dollar bills. They were re-

turned some time around noon or the early afternoon of the

day in question.

I have already pointed out to you that if you find these

alleged statements or confessions voluntary and true and

accurate, if you see fit in accordance with a law which I

have given to you to use them at all, they can only be

used against the (1187) defendant making the particular

statement. The statement of one defendant cannot be used

against the other in any way whatever. It is no evidence

against the co-defendant.

In connection with the crimes charged | define certain

phrases or words to you as follows: Section 20.00, sub.

10 of the Penal Law defines serious physical injury as

follows: ‘Serious physical injury means physical injury

which creates a substantial risk of death or which causes

death or serious and protracted disfigurement, protracted

impairment of health or protracted loss or impairment of

the function of any bodily organ.’’

Recklessly has been defined in Section 15.00 of the same

law as follows: ‘‘A person acts recklessly with respect

to a result or to a circumstances described by a statute

defining an offense when he is aware of and consciously

disregards a substantial and unjustifiable risk that such

result will occur or that such circumstance exists. (1188)

The risk must be of such nature and degree that disregard

thereof constitutes a gross deviation from the standard of

conduct that a reasonable person would observe in the

situation, a person who creates such a risk that is unaware

Excerpt from State Criminal Trial—

Charge to the Jury.

thereof solely by reason of voluntary intoxication also acts

recklessly with respect thereto.

Section 15.25 of the same law reads as follows: ‘‘Intoxi-

cation is not as such a defense to a criminal charge but in

any prosecution for an offense, evidence of intoxication of

the defendant may be offered by the defendant whenever it

is relevant to negative an element of the crime charged.’’

‘‘Feloneously means unlawful, illegally with criminal

intent.’’

“Knowingly means with knowledge, consciously, intelli-

gently, wilfully, intentionally.”

‘‘Immediate means present, at once, without delay, not

deferred by any in value of time.’’ I give you that defini-

tion in (1189) connection with the phrase immediate flight.

Consider whether the flight of this defendant or each of

them was immediate.

‘*Depraved has been defined as to Exhibit contempt for.”’

A depraved mind has been defined as ‘‘An inherent defi-

ciency of moral sense and reptitude.’’ It is also defined as

a ‘‘ Highest grade of malice.’’

‘Grave is serious. The opposite of trivial or inconse-

quential.’’

Indifferent has been defined as, ‘‘Disinterested, without

care or consideration for the consequences of the act.”

In this case, members of the jury, before either of these

defendants can be convicted of any of the crimes charged,

all of the elements of that crime must be proven beyond a

reasonable doubt.

Homicide is defined in Section 125.00 of the Penal Law

as follows: ‘‘Homicide means, conduct which causes the

death of a person under circumstances constitution murder,

manslaughter first degree, or manslaughter (1190) in the

second degree.’’ Under the first count of this indictment

each of these defendants is charged with murder. Section

Excerpt from State Criminal Trial—

Charge to the Jury.

125.25 of the Penal Law reads as follows ‘‘A person is

guilty of murder when, (2) under circumstances evincing &

depraved indifference to human life he recklessly engages

in conduct which creates a grave risk of death to another

person. And thereby causes the death of another person.

I think I defined to you the different words used in that

section.

The indifference to human life is the indifference to the

life of George Stafford. And not to the life of the public

in general. It’s indifference to the human life of George

Stafford. You will note that section requires proof of

recklessly engaging in conduct, because the section refers

to reckless acts on the part of the defendant and only for

that reason, I charge you manslaughter in the second degree

and manslaughter in the first degree. You will not con-

sider either (1191) of these crimes unless you feel that

these defendants or either of them, was guilty of causing

the death of George Stafford recklessly. But, they do not

come within the provision of 125.25, sub. 2.

Manslaughter in the first degree is defined in Section

125.20 as follows: ‘‘A person is

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