Respondents Reply Brief — Henderson v. Kibbe

Supreme Court, U. S.

| ED x

IN THE | JAN 14 1977

cape Court of the United.etates, JR., CLERK

OCTOBER TERM, 1976

No. 75-1906

ROBERT J. HENDERSON, Superintendent,

Auburn Correctional Facility,

Petitioner.

BARRY WARREN KIBBE,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR RESPONDENT

SHEILA GINSBERG,

WILLIAM E. HELLERSTEIN,

PHYLIS SKLOOT BAMBERGER

THE LEGAL AID SOCIETY

FEDERAL DEFENDER

SERVICES UNIT

509 United States Courthouse

Foley Square

New York, New York 10007

(212) 732-2971

Attorneys for Respondent

ER aS OLE SE LETS AS EES REIS

Washington. 0.C « CLB PUBLISHERS « LAW PRINTING CO. e (202) 393-0625

(i)

TABLE OF CONTENTS

Page

TABLE OF CASES AND OTHER AUTHORITIES ....... i

RS EE ee re l

IC a re es wir Pe ed 2 or ad 2

|. PROCEDURAL BACKGROUND .............. 2

ae ae le a ee 2

ee 3

eg ya eae ee a aes 6

C. The Challenge to the Element of Cau-

ee Sr pe ae ie ee ae ee 7

RI. ee 8

lI. STATE APPELLATE PROCEEDINGS ........... 9

IV. FEDERAL COURT PROCEEDINGS ............ 10

SUMMARY OF ARGUMENT ...................... 1]

ARGUMENT

THE COURT OF APPEALS CORRECTLY

FOUND THAT THE FAILURE TO INSTRUCT

THE JURY ON A CRITICAL AND COMPLEX

ELEMENT OF A MURDER CHARGE DE-

PRIVED RESPONDENT OF HIS RIGHT TO A

TRIAL IN ACCORDANCE WITH DUE PROC-

ES COE Sn) oe No al 13

I era ec irs hee ee ene 24

TABLE OF AUTHORITIES

Cases:

Andres v. United States, 333 U.S. 740 (1948) ........... 19

Barnes v. United States, 412 U.S. 837 (1973) ........... 17

Bollenbach v. United States, 326 U.S. 607 (1946) ...... 14,15

Bush v. Commonwealth, 78 Ky. 268 (1880) ............ 2]

Boyd v. United States, 271 U.S. 104 (1926) ............ 19

(ii)

Page

Capital Traction Co. v. Hof, 174 U.S. ! re 14,15

Cool v. United States, 409 U.S. 100 (1972) ...--- ee eee 17

Cupp v. Naughten, 414 U.S. 141 Se cxetseeusen 19,20

Dorszynski v. United States, 418 U.S. 424 Pe 11

Fay v. Nola, 372 U.S, 391 (1963) .........eeeeeee: 1

Giaccio v. Pennsylvania, 382 U.S. 399 (1966) .....---+-- 17

Henderson v. Morgan, 96 S. Ct. 2253 (1976) .....--->> 14

Herring v. New York, 422 U.S. 853 (1975) «-. eee eee 18

Herron v. Southern Pacific Co., 283 U.S. 91 (1931).....- i4

In re Winship, 397 U.S. 358 (1970) .....------+- 13,14,24

Leary v. United States, 395 U.S. 6 (1969) ..--.-.-+-+>- 17

Lefkowitz v. Newsome, 420 U.S. 283 (1975)... +++ i]

Mullaney v. Wilbur, 421 U.S. 684 (1975) ......----- 14,17

Patton v. United States, 281 U.S. 276 (1930) ........-- 14

People v. Kibbe, 41 A.D.2d 228 (4th Dep’t 1973) ....-. 9,11

People v. Kibbe, 35 N.Y.2d 407 (1974) ....---- +5555: 10

Peyton v. Rowe, 391 U.S. 54 (1968) ....--- +. eee eres 2

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ..... 10,13

Screws v. United States, 325 U.S. 91 (1945) .....----+-> 17

Speiser v. Randall, 357 U.S. 513 (1958) ...-.--+- +--+ 14

State v. Pell, 140 lowa 655, 119 N.W. 154 (1909) ....... 2)

State v. Preslar, 48 N.C. Rep. 417 (1856) ......-----55 23

Turner v. United States, 396 U.S. 398 (1970) .......--- 17

United States v. Bosch, 505 F.2d 78 (Sth Cir. 1974)...... 17

United States v. Clark, 475 F.2d 240 (2d Cir. 1973)...... 17

United States v. England, 347 F.2d 425 (7th Cir.

1975) (rehearing en banc denied) ......--++++5 14,17

United States v. Howard, 506 F.2d 1131 (2d Cir. ia

PPA Serer rere Ui a RO EOP eee.

(iii)

Page

United States v. Noble, 155 F.2d 315 (3d Cir.

i Cn eet eeeee ta ea bade a clk to oa oes os 14,17

United States v. Ortiz, 422 U.S. 891 (1975) ........... 1]

United States v. Park, 421 U.S. 658 (1975) ........... 19

United States v. Singleton, 532 F.2d 199 (2d Cir.

PORE ee ee Re Oe Pee ene ek Lae 17

United States v. Small, 472 F.2d 818 (3d Cir. 1972). ..... 17

Vachon v. New Hampshire, 414 U.S. 478 (1974) ........ 14

Warden v. Hayden, 387 U.S. 294 (1967) ............. li

Warren v. State, 3 Div. 874, 25 So.2d 51 (Ala.

are eo ar oA Oe a il othe a ee. 21

Statutes:

N.Y. Crim. Proc. Law §470.15(1) and (6)(a)

re a ee ee eee 1]

N.Y. Penal Law §125.25(2) (McKinney 1975) ........ 2,15

N.Y. Penal Law §155.30(5) (McKinney 1975) .......... 2

N.Y. Penal Law, §160.10 (McKinney 1975) ............ 2

Other Authorities:

Beale, The Proximate Cause of an Act, 33 Har. L.

og ARS ANETTA eae 23

Edgerton, Legal Cause, 72 U. Pa. L. Rev. 211

RES AE Pie en ee 23

2 Hale, THE HISTORY OF THE COMMON LAW

RR aE Rae eo ee 15

LaFave & Scott, CRIMINAL LAW (1972) ............ 23

Perkins, CRIMINAL LAW (1969)

——

| Wharton, CRIMINAL LAW AND PROCEDURE

(1957)

IN THE

Supreme Court of the Cluited States

OCTOBER TERM, 1976

No, 75-1906

— =e

ROBERT J. HENDERSON, Superintendent,

Auburn Correctional Facility,

Petitioner,

BARRY WARREN KIBBE,

Respondent

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPLALS FOR THE SECOND CIRCUIT

en ———

BRIEF FOR RESPONDENT

es

QUESTION PRESENTED

Whether the court of appeals correctly found that

the failure to instruct the jury on a critical and

complex element of a murder charge deprived respond-

ent of his right to a trial in accordance with due

process standards.

5

STATEMENT

I.

PROCEDURAL BACKGROUND

On November 30, 1971, respondent was convicted

after a jury trial in Monroe County Court of murder

IN.Y. Penal Law $125,28(2) (MeRinney 1975)),

robbery in the second degree [N.Y Penal Law

8160.10 (McKinney 1975)], and grand larceny in the

third degree [N.Y. Penal Law §155,30(5) (McKinney

1975)], He was sentenced to concurrent terms of 15

years to life imprisonment on the murder conviction,

five to 15 years on the robbery; and an indeterminate

term of up to four years on_ the grand larceny

conviction, |

LE

THE TRIAL

George Stafford died as the result’ of injuries he

sustained when he was hit by a speeding truck driven

by Michael Blake (670? ), Respondent: and his CO-

defendant, Roy Krall, were charged with Stafford's

murder pursuant tu N.Y. Penal Law § 125.25, which

provides in pertinent part:

granted below does not involve

areen

respondent's custody pursuant) to the robbery and larceny

onvictions. but affects only that restraint which flows trom the

191 US, 54 C1408)

'The habeas corpus relict

conviction tor murder, Peyton Rowe

*Numerals in parentheses refer to pages of the trial ap neti

Respondent has filed a copy of the transeript with the Clerk o

the Court.

3

A person is guilty of murder in the second degree

when:

* * *

2. Under circumstances evincing a 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, .. .

A. The Prosecution Case

On December 30, 1970, at approximately 10:10

p.m., Michael Blake, then a junior at the Rochester

Institute of Technology, was driving his 1965 half-ton

Chevrolet pickup truck 50 miles per hour — 10 miles

over the speed limit on East River Road near

Rochester, New York (A.47, 53°). The night was clear

and the road, a two-lane, two-directional roadway, was

dry (A.47, 48), Blake, who was familiar with the road

because he had driven it twice weekly during the prior

year and a half, described it as lightly trafficked (A.49).

As Blake proceeded north on East River Road, he

passed two cars coming south. The first of these

signaled to Blake by flashing its headlights. Ignoring the

signal, Blake did not reduce his speed. After the cars

passed, Blake saw George Stafford sitting in the middle

of the northbound lane with his hands in the air.

Sufford was 100 to 200 feet away when Blake first

saw him, Nonetheless, Blake did not apply his brakes or

ultempt to avoid hitting Stafford by swerving either to

the left into the southbound lane — no cars were

approaching in that lane or to the right onto the

shoulder of the road (A, 49),

Numerals in parentheses preceded by “A” refer to pages of

the Appendix submitted to the Court,

4

The truck hit Stafford still traveling at full speed,

According to Blake, he simply did not have time to

react so as to avoid or diminish the impact. After

hitting Stafford, the truck dragged Stafford’s body

approximately 400 feet,“ Blake thought, and then

continued on some distance until Blake could bring the

truck to a complete stop (A, 47-49), Blake then turned

the vehicle around and drove south in the northbound

lane until he reached Stafford’s body, He testified that

when he saw Stafford, his pants were around his ankles

and his shirt was pulled up around his chest,

The spot where Stafford was fatally injured’ was

approximately one-quarter mile north of the Eust River

Roud and Bailey Road intersection and one-quarter mile

south of an open Sunoco gas station at the junction of

River Meadow Road and East River Road (A, 49-50,

$4-56). Stafford’s shoes were discovered at the side of

the road near the point of impact (A, 60).

The events of the evening, leading up to the time

Stafford was left somewhere on the shoulder of East

River Road, began when respondent and Krall met

Stafford at Nick and Corky's Bar in Rochester, New

York (720). According to the bartender, Stafford had

been drinking heavily and was looking for a ride to

Canandaigua, Some time between 8:30 and 9:30 p.m.,

after the bartender had refused to serve Stafford any

more drinks or to cash a $100 bill for him, Stafford

left the bar in the company of respondent and Krall®

(720-724),

* according to the medical examiner, the body showed “skid

marks” that could have been caused by dragging (A. 58).

Sin route to the hospital, the ambulance carrying Stattord

collided with another vehicle and was rendered inoperable, Some

10 minutes later. a second ambulance transported Stafford, who

was by then barely alive, to the hospital (633-634),

‘The bartender remembered that both Kibbe and Krall had

been drinking, too (724).

5

Through the combined custodial statements respond-

ent and Krall gave to the police the day after the

incident, it was revealed that the two agreed to drive

Stafford to Canandaigua; that before they left Roch-

ester they stopped at two other bars, one of which

ugreed to serve them; and that, while en route to

Canandaigua, Stafford changed his mind and decided

that he wanted to return to Rochester (833-854),

Toward that end, Krall, who was driving, turned north

on East River Road, During this part of the trip,

respondent demanded that Stafford give him his money,

and the latter complied. Although respondent slapped

Stafford and, according to Kre'l, they “wrestled” a bit,

no weapons were used in this exchange (827). At one

point, Stafford took off his boots and lowered his

trousers to show that he had no more money (A. 62).

After this episode, according to Krall’s statement,

Statford saw a store and lights on the south side of the

road and asked that respondent and Krall let him out

of the car (828). Krall stopped the car and Stafford got

out on the passenger side and was left on the shoulder

of the road’ (853-854), At the time Stafford got out of

the car, he had pulled his trousers back up to his waist,

but had not put on his boots (A. 62). When respondent

realized that Stafford had forgotten his jacket as well as

his boots, respondent removed them from the car and

placed them on the ground next to Stafford (A. 61).*

"In this regard, the statements were fundamentally

inconsistent with the State's theory of culpability, According to

that theory, Stafford had been abandoned on an isolated part of

the roadway, one-quarter mile from the Sunoco station, close to

the spot where he was hit (677-684),

"While this jacket was never recovered, Chief Deputy

Blodgett, the officer who examined the scene of the accident,

admitted that he did not check the area around the River

Meadow Road intersection and the gas station to determine

whether Stafford had been there (700), Stafford’s personal

papers and eyeglasses were recovered from Kibbe's car (70%),

6

According to his own statement, respondent told

Stafford to get to the gas station so that he would not

freeze (A. 61).

B. The Defense Case

Roy Krall’ testified for the defense, He related how

he and respondent, who had spent the evening drinking

at Nick and Corky's, agreed to drive Stafford to

Canandaigua (1012, 1014). Respondent and Krall sat in

the front seat of the car and Stafford sat in the back

(1016). On the way to Canandaigua, Stafford changed

his mind and decided to return to Rochester, When

Krall turned the car sround in response to this request,

it was approximately 9:20 or 9:25 p.m, (1017).

According to Krall, it was shortly thereafter that

respondent slapped Stafford and asked for his money

(1017). Stafford complied, Then, as the car approached

the lighted East River Road and River Meadow Road

intersection, at which the gas station and a delicatessen

were located, Stafford asked to get out. Krall estimated

that the spot where Stafford alighted from the car was

about 75 feet from the delicatessen which, like the gas

station, was on the southbound side of the roadway

(A. 66, 64-65). Respondent told Stafford to get there

so that he wouldn't freeze, and then Krall and

respondent drove away (1067). Krall specifically denied

that Stafford had been left one-quarter of a mile from

the River Meadow Road intersection (1064),

*Krall was 47 years old at the time of the trial and had no

prior criminal record (1008, 102 4)

C. The Challenge to the Element of Causation

Out of the presence of the jury, trial counsel moved,

at the close of the prosecutor's case, and again after the

defense rested, for a judgment of acquittal, on the

ground that the State had failed to establish causation'®

(A. 29-33, 40). Specifically, counsel argued that re-

spondent and Krall could not “anticipate” the injury to

Stafford because they had deposited him at his request

near the open and lighted gas station and delicatessen

und had left him on the shoulder of the road. Injury

resulted only because Stafford positioned himself in the

middle of the road and the truck driver, who was

speeding, did not attempt to reduce his speed or avoid

hitting Stafford. The motions were denied (A. 39, 40).

In summation, defense counsel argued that it was not

reasonable on these facts to find that respondent or

Krall would “anticipate” the injury to Stafford

(A. 68-70). Counsel made these argui ents, however,

only after reaffirming what the trial judge had already

told the jury in his preliminary instructions: that it was

the judge alone who would instruct the jury on the

law'? (A. 69-71).

The prosecutor, in his summation, addressed the

question of causation, saying, inter alia:

11 pretrial motions counsel had, on similar grounds, sought

to have the murder count dismissed, arguing that the connection

between respondent’s conduct and the injury to Stafford was

“too attenuated” to establish causation (A, 24-25, 27-28).

lin his preliminary instructions, the judge cautioned:

... 1 will charge you or instruct you on the law. ...

* . >

As | will explain to you in detail in my charge as jurors

in the case, you are the sole judges of the facts. | am the

sole judge of the law. You must accept the law as I give it

to you without hesitation or reservation even if you

privately disagree with me.

- (A, 41-42).

8

... Sure, the death, the most immediate, the most

preceeding, 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 middie of

the grill... 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 |

submit to you, members of the jury, that the 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.

(A. 76).

D. The Charge‘?

Reiterating that it was for the court to instruct the

jury on the law, the trial judge defined such terms as

“felonious.” “knowing,” “depraved,” “indifference,”

“reckless.” and “grave” (A. 83, 89-90). Nowhere did he

define “causation,” nor did he refer to concepts of

superseding cause or foreseeability. Nowhere did he

specifically direct that conviction required a finding

that respondent “caused” Stafford’s death. While the

word “caused” appears in the statute, which the judge

read to the jury, the judge reminded the jurors

immediately thereafter that he had already provided all

the detinitions they needed to comprehend the statute:

“| think | defined for you the different words used in

that section” (A. 91).'?

'2The entire charge appears in the Appendix at A.77-97.

'3Trial counsel neglected to object to the failure to instruct

on causation,

9

ill.

STATE APPELLATE PROCEEDINGS

The Appellate Division considered, sua sponte, the

deficiency in the charge, but concluded, over a strong

dissent,'* that while the charge was lacking in detail,

{[i]n our opinion the charge together with language

of the statutes and indictment and the evidence

were sufficient to inform the jury on this subject

and reversal of the judgments is not required in

the interest of justice.

People vy. Kibbe, 41 A.D. 2d 228, 230 (4th Dep’t 1973).

On the ground that unobjected to errors are outside

the constitutional and statui.ry limitations of its

jurisdiction, the New York Court of Appeals declined

'4The dissent explored the fundamental nature of the defects

in the charge and the necessary effect on the result of the trial,

commenting:

The insufficiency of the charge deprived these defendants

of their fundamental right to a fair trial insofar as these

indictments charge them with murder... .

... The trial court’s instruction on all the elements of the

crimes charged occupies only about seven pages of the

printed record and contains no direction on the issue of

causation. ...

* . *

... In the instant case, the jury, under proper instruction,

could have concluded that the victim’s death by an

automobile was a remote and intervening cause. There are

no statutory provisions dealing with intervening causes —

nor is civil case law relevant in this context. The issue of

causation should have been submitted to the jury in order

for it to decide whether it would be unjust to hold these

appellants liable as murderers for the chain of events which

actually occurred. ...

People v. Kibbe, “i A.D.2d 228, 230-232 (4th Dep't 1973)

(dissenting opinion).

10

to consider the error in the charge on the merits.

People v. Kibbe, 35 N.Y.2d 407, 414 (1974).

IV.

FEDERAL COURT PROCEEDINGS

The United States District Court for the Northern

District of New York (Foley, J.) dismissed the pro se

petition for writ of habeas corpus on the ground,

among others, that the errors in the charge were not

cognizable in a federal habeas corpus proceeding

(A. 21).

The United States Court of Appeals for the Second

Circuit reversed the district court and granted the

petition, one judge dissenting. The majority (Lumbard,

J.) held:

e bizarre circumstances that prompted Kibbe’s

apprehension and conviction for murder present

one of those rare cases in which a habeas corpus

petition pursuant to 28 U.S.C. §2254 genuinely

puts at issue the guilt or innocence of the accused.

See Schneckloth v. Bustamonte, 412 U.S. 218,

250-75, 93 S. Ct. 2041, 2059-72, 36 L.Ed.2d 854,

876-890 (1973) (Powell, J., concurring); Rolls v.

Manson, 503 F.2d 391, 494-99 (2d Cir. 1974)

(Lumbard, J., concurring). We hold that the trial

judge’s instructions permitted the jury, in its

fact-finding process, to disregard Kibbe’s colorable

claim that, as to the murder charge, his actions

had not caused the death of a decedent and thus

violated Kibbe’s constitutional right to have every

element of the crime with which he was charged

proven beyond a reasonable doubt.

(A. 105-106).'5

SUMMARY OF ARGUMENT

The court of appeals held that the trial judge’s failure

to instruct on causation violated due process in that it

1SNot before the Court is the sua sponte holding of the court

of appeals that the absence of objection to the charge did not

constitute a deliberate by-pass. Unanimous on this point, the

court below found that the entire thrust of the defense case had

been to challenge the proof of causation, and consequently,

counsel’s failure to object could be attributed only to

inadvertence. Fay v. Noia, 372 U.S. 391 (1963) (A. 109-112).

The petition for writ of certiorari did not raise this issue, and

petitioner has now affirmatively acknowledged in his brief to the

Court that there is no procedural impediment to respondent’s

habeas corpus claim (Petitioner’s Brief, n. at 8-9). While the State

does not contest the validity of the Second Circuit’s conclusion,

the State’s position is that, since the State Appellate Division has

considered the merits of the issue, there is no by-pass, and it is

not open to the federal courts to deny relief on the grounds of

waiver. Fay v. Noia, supra, 372 U.S. at 439; Lefkowitz v.

Newsome, 420 U.S. 283, 292 n.9 (1975); see also Warden v.

Hayden, 387 U.S. 294, 297 n.3 (1967).

Moreover, by choosing not to present the waiver issue at any

time throughout the proceedings in the federal courts, petitioner

has abandoned all right to have the Court consider the by-pass

issue. See United States v. Ortiz, 422 U.S. 891, 898 (1975);

Dorszynski v. United States, 418 U.S. 424, 431 n.7 (1974). In

any event, without merit is the argument made by the Monroe

County District Attorney that the failure to object at trial

precluded consideration of the error on appeal to the state courts

and should preciude review here (Amicus Brief at 5-6). This

argument simply fails to take into account the plenary

jurisdiction of New York State’s intermediate appellate court [N.Y.

Crim. Proc. Law §470.15(1) and (6)(a) (McKinney 1971)] as

well as the dispositive fact that, in this case, the Appellate

Division actually considered the error in the charge on the

merits. People v. Kibbe, 41 A.D.2d 228, 230 (4th Dep’t 1973).

12

removed that essential and contested element from the

jury’s deliberations and thereby allowed conviction

without the requisite finding of each element of the

crime beyond a reasonable doubt. The State acknowl-

edges that the charge was materially deficient, but

contends that the error was ameliorated by the

summations of counsel and the reading of the statute.

The State’s argument ignores the requirement,

inherent in the right to a jury trial, that the judge

instruct on the law. In this case the judge failed to

explain a complex legal concept. Moreover, his

explicit and repeated caution to the jury that he, alone,

would provide instruction on the law prevented the jury

from looking to counsel to supply what the judge

omitted. The arguments of counsel were of no

assistance in any event, since defense counsel and the

prosecutor presented sharply conflicting theories of

causation, and what the prosecutor argued was legally

incorrect.

Causation was a bitterly contested issue at trial, and

the prejudice in this case is that the jury, without

instruction on concepts of .ndependent intervening

cause, superseding cause, and foreseeability, was with-

Out guidance to resolve the dispute. As the court of

appeals found, the danger here is that the jury may

well have convicted despite acceptance of facts which

legally negated causation.

eg ee Se ee

13

ARGUMENT

THE COURT OF APPEALS CORRECTLY

FOUND THAT THE FAILURE TO _IN-

STRUCT THE JURY ON A CRITICAL AND

COMPLEX ELEMENT OF A MURDER

CHARGE DEPRIVED RESPONDENT OF

HIS RIGHT TO A TRIAL IN ACCORDANCE

WITH DUE PROCESS STANDARDS.

Petitioner chalienges the decision of the court of

appeals that the absence of instruction on a critical and

complex element of the crime deprived respondent of

his due process right to have the jury determine that

element beyond a reasonable doubt. The court below

found that the failure to instruct on “causation,” in

light of respondent’s colorable claim that he had not

caused the death of George Stafford, made this case

one of those “rare” habeas corpus proceedings which

genuinely put in issue the guilt or innocence of an

accused. Schneckloth v. Bustamonte, 412 U.S. 218,

250-275 (1973) (Powell, J., concurring). Perusal of the

entire 1,300 page trial record convinced the majority of

the court of appeals that the deficiency in the charge

left the jury so ignorant of the prerequisites of “legal

cause” that respondent may well have been convicted

despite the jury’s acceptance of the defense case.

Due process mandates that the fact-finding process in

a criminal trial meet minimum standards of accuracy. /n

re Winship, 397 U.S. 358, 361-364 (1970). In an

attempt to reduce the margin of error in critical factual

determinations, and thus protect against unjustified

convictions, the Constitution requires not only that the

14

prosecution meet its burden of proving |Mullanev v.

Wilbur, 421 U.S. 684 (1975); Speiser v. Randall, 357

U.S. 513 (1958)] each and every element of the crime

[Vachon v. New Hampshire, 414 U.S. 478, 480 (1974)}

beyond a reasonable doubt (/n re Winship, supra, 397

U.S. at 364), but also that the fact-finder actually pass

on the sufficiency of the evidence. Headerson v.

Morgan, 96 §S. Ct. 2253, 2260 (1976) (White, J.,

concurring).

...It should hardly need saying that a judgment

of conviction cannot be entered against a de-

fendant no matter how strong the evidence is

against him, unless that evidence has _ been

presented to a jury (or a judge, if a jury is waived)

and unless the jury finds from that evidence that

the defendant’s guilt has been proved beyond a

reasonable doubt. It cannot be “harmless error”

wholly to deny a defendant a jury trial on one or

all elements of the offense with which he is

charged... ./d., 96 S. Ct. at 2260.

To enable jurors to meet their fact-finding obligation,

the trial judge must instruct them on the law and

provide guidance for their analysis of the evidence as it

relates to the crime charged. The judge’s obligation to

instruct the jurors inheres in the very right to a jury

trial. Bollenbach vy. United States, 326 U.S. 607, 615

(1946); Herron v. Southern Pacific Co., 283 U.S. 91, 95

(1931); Patton v. United States, 281 U.S. 276, 288-289

(1930); Capital Traction Co. v. Hof. 174 U.S. 1, 13-14

(1899); United States v. England, 347 F.2d 425, 430

(7th Cir. 1975) (rehearing en banc denied); United

States v. Noble, 155 F.2d 315, 317 (3d Cir. 1946).

“Trial by jury” in the primary and usual sense of

the term at the common law and in the American

constitutions, is not merely a trial by a jury of 12

men... but it is a trial by a jury of 12 men in the

15

presence and under the superintendence of a judge

empowered to instruct them on the law....

Capital Traction Co. v. Hof, supra, i74 U.S. at

13-14.

Lord Hale, in his treatise on the common law,

extolled the virtues of a jury trial largely because of the

active superintendence and guidance of the trial judge:

Another excellency of this trial is this: that the

judge is always present at th ‘ime of the evidence

given in it. Herein he is able, in matters of law

emerging upon the evidence, to direct them, and

also, in matters of fact, to give them great light

and assistance, by his weighing the evidence before

them, and observing where the question and knot

of the business lies, and by showing them his

opinion even in matter of fact, which is a great

advantage and iigit to laymen. And thus, as the

jury assist the judge in determining the matter of

fact, so the judge assists the jury in determining

points of law, and aiso very much in investigating

and enlightening the matter of fact whereof the

jury are the judges....{Jury trial] has the

advantage of the judge’s observation, attention,

and assistance, in point of law by way of decision,

and in point of fact by way of direction to the

jury.

2 Hale, THE HISTORY OF THE COMMON LAW 147,

156 (Sth ed. 1794).

Indeed, the Court has held that the jury’s ability to

perform its function is dependent upon the discharge of

the judge’s duty to provide essential guidance through

‘a lucid statement of the relevant legal criteria.”

Bollenbach vy. United States, supra, 326 U.S. at 612.

The trial judge in this case failed completely to

provide the required instructions. Nowhere in_ the

charge is there the explicit direction, mandated by the

penal law provision, that a conviction for murder

requires a finding that respondent’s actions “‘caused”

the death. N.Y. Penal Law §125.25(2) (McKinney

16

1975). Nor is the legal concept of causation ever

defined. Analysis of the remainder of the charge

convinced the court below that nothing that followed

the omissions mitigated the deficiency: indeed, what did

appear was found to have aggravated the error. For

example, the definitions of ‘depraved, “‘indif-

ference,” “human life,” “reckless,” and “grave,” the

other terms in the statute, highlighted the absence

of any definition of causation, and suggested its

irrelevance to the deliberations (A. 113). In_ this

context, the subsequent caveat accompanying the

recitation of the statute — that all the operative terms

had already been defined — could function only to

convey the mistaken impression that causation was not

in the case.'®

Based on the extent of the deficiency in the charge

and the complexity of the element omitted, the court

of appeals was compelled to conclude that the charge

was void of instruction on causation. And when, as

here, the error is one of total omission, there is no

room for conjecture about what the jury understood

from conflicting or ambiguous instructions. In the

absence of any judicial direction, the jury simply had

no way of knowing that causation was an element for

their determination.

This error was particularly prejudicial here. This

“bizarre” case, as the court of appeals characterized it

(A. 105), is dramatically distinct from the usual

situation in criminal cases, where the causal relationship

is so clear and direct as not to be in issue: for example,

1©This misconception was no doubt reinforced, the court of

appeals found, in the brief instruction on manslaughter which

made passing reference to “cause,” but emphasized the element

of “recklessness,” implying again that causation could be

assumed while recklessness was still to be determined (A. 113

n.5).

17

conviction for murder when the defendant intentionally

slew the victim, or conviction for arson when the

defendant put a lighted match to the building. Here, on

these “singular” facts (A. 112), the causal connection

was sharply contested, and its resolution was deter-

minative of the outcome of the murder charge. In this

context, the court of appeals found that the failure of

the judge’s charge to provide any inst uction on

causation precluded the jury’s consideration of that

pivotal element of the crime and violated respondent's

right to due process. Screws v. United States, 325 U.S.

91, 106-107 (1945); United States v. Singleton, 532

F.2d 199, 206-207 (2d Cir. 1976); United States v.

Howard, 506 F.2d 1131 (2d Cir. 1974); United States

v. Small, 472 F.2d 818, 819 (3d Cir. 1972); United

States v. England, supra, 347 F.2d at 430; United

States v. Noble, supra, 155 F.2d at 316-317; see also

Mullaney v. Wilbur, supra, 421 U.S. at 705-706

(Rehnquist, J., concurring); Cool v. United States, 409

U.S. 100 (1972); Giaccio v. Pennsylvania, 382 U.S. 399,

403-404 (1966); cf Barnes v. United States, 412 U.S.

837 (1973): Turner v. United States, 396 U.S. 398, 419

(1970); Leary v. United States, 395 U.S. 6, 36 (1969)

(direction to find an essential fact by mean> of faulty

thought process is violative of due process)."’

'7The error is so fundamental to the fairness of the

proceeding and to the defendant’s constitutional right to a jury

trial that it mandates reversal of the conviction, despite the

absence of objection by counsel. United States v. Singleton, 532

F.2d 199, 207 (2d Cir. 1976); United States v. Howard, 506

F.2d 1131, 1134 (2d Cir. 1974); United States v. Clark, 475

F.2d 240, 248-251 (2d Cir. 1973); United States v. Smail, 472

F.2d 818, 819 (3d Cir. 1972). This would be so even were

counsel affirmatively to agree to the deficient charge. United

States v. Bosch, 505 F.2d 78, 79-82 (Sth Cir. 1974).

if justice is to be done in accordance with the rule of law

it is of paramount importance that the court’s instructions

be clear, accurate, complete and comprehensible, particu-

larly with respect io the essential clements of the alleged

crime that must be proved by the government beyond a

reasonable doubt.

at 248. United States v. Clark, supra, 475 F.2d at 248.

18

Il.

Petitioner acknowledges, as he obviously must, that

an error in a jury instruction can violate due process

(Petitioner’s Brief at 10-11), and that the instruction

here was deficient. However, the major thrust of

petitioner’s challenge to the decision below is that the

deficiencies in the charge were compensated for by

arguments of counsel. The court of appeals considered

this theory and properly rejected it (A. 113 n.5).'8

In the instant case, the jury was specifically and

repeatedly cautioned by the trial judge, as well as by

counsel, that the judge alone would instruct on the law

and the jury had to accept the law as the judge

explained it.'? So cautioned, the jurors were in no

position to look to counsel for legal guidance, even

assuming they were aware of the defects in the judge’s

charge. Moreover, assistance by counsel was not a

possibility here, since each side argued different and

conflicting legal theories.?° At best, the jurors would be

'®OFf course, the arguments of counsel are important — in fact,

constitutionally mandated [Herring v. New York, 422 U.S. 853

(1975)] — but it does not follow, ipso facto, that they supplant

the judge’s charge. Just as the judge cannot substitute for

counsel, counsel cannot substitute for the judge.

This warning was initially given in the judge’s preliminary

instructions (A. 41, 42), and was repeated by him in his main

charge (A. 83), as well as by counsel in his summation (A. 69,

71).

The prosecutor urged the jury simply to determine

responsibility by a sine qua non test: “[W]ould this man be dead

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

submit to you members of the jury, that the 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....” (A. 76). In contrast, defense counsel argued that

respondent and his co-defendant were not responsibile since they

did not “perceive” the risk and could not be expected to

anticipate that Blake would be driving over the speed limit and

that Stafford would place himself in the middle of a lane of

oncoming traffic (A. 68, 70).

19

confused as to which theory was correct. See Andres v.

United States, 333 U.S. 740, 765-766 (1948) (Frank-

furter, J., concurring). Certainly, it ill behooves

petitioner to argue that the prosecutor's summation, in

which he argued to the jurors an erroneous and

misleading theory of law, provided sufficient

guidance.?' _

The weakness of petitioner’s argument is illustrated

by the fact that in none of the cases upon which he

relies are the arguments of counsel found to be

adequate remedy for deficiencies in the judge’s charge.

See United States v. Park, 421 U.S. 658, 674 (1975);

Cupp v. Naughten, 414 U.S. 141, 148-149 (1973);

Rovd v. United States, 271 U.S. 104, 107 (1926). In

each of these cases, the Court found corrections for the

claimed errors within the confines of the charge itself.

In fact, Cupp v. Naughten, supra, upon which

petitioner places his primary reliance, is demonstrative

only of the principle that a charge to the jury can be

self-correcting. In Cupp, the defendant challenged an

instruction on the presumption of truthfulness, claiming

that the charge violated the presumption of innocence

and reduced the prosecutors burden of proof. In

rejecting this claim, the Court noted that the charge

contained complete and accurate statements on the

presumption as well as the burden of proof, and the

only question presented was whether one erroneous

statement, which by its own language was not in

conflict, nonetheless impliedly nullified the remainder

of the instruction that was correct. The Court then

210f course, in the context of the facts of this case, the “but

for” test is wholly insufficient to resolve the question of

causation. Perkins, CRIMINAL LAW at 722-723 (1969); see infra

at 20-23.

20

refused to grant relief on an “error” which, only as a

matter of “abstract” logic, “tangentially .. . impinged”

on the defendant’s rights. Cupp v. Naughten, supra, 414

U.S. at 148.

In contrast, the charge in this case contained no

corrective statements to neutralize the error of

omission. Significantly, the gap did not pertain to

matters of “abstract” logic, but instead to the essence

of the jurors’ function: determination of the facts

necessary to convict.

Nonetheless, indulging for the moment petitioner’s

hypothesis that the jury ignored the omissions in the

charge and, undaunted, perceived the importance of

finding causation, the deficiencies in the charge were

still fatal to the deliberations and the hypothesis fails to

aid petitioner’s case. The court of appeals noted that

the concept of legal cause is extremely complex,

requiring “that fine distinctions be made,” for example,

between “intervening” and “supervening” cause

(A. 114). Unfortunately, the jury of laymen had no

way of ap, reciating this complexity. Absent direction

from the trial judge, the jurors were left to conclude, as

the prosecutor indeed argued they should, that

respondent was guilty of murder if, but for his act of

abandoning Stafford on East River Road, Stafford

would not have died.

While a finding that respondent’s conduct was a

cause sine qua non of Stafford’s death is relevant to

analysis of the causation problems this case presents, it

is the beginning, not the end, of the inquiry. Stafford

was killed not when respondent left him on _ the

shoulder of the road, but when, some 40 minutes later,

21

Blake’s truck, an independent intervening force,”?

struck him.??

Here, the determination of whether respondent's

conduct was a sufficiently direct cause of Stafford’s

death to make him criminally liable required analysis

and application of the concept, beyond the ken of a

jury functioning without specific instructions, that

respondent’s liability could be precludec by an

independent superseding cause.** Bush v. Common-

wealth, 78 Ky. 268, 270-272 (1880); 1 Wharton,

CRIMINAL LAW AND PROCEDURE §200 (1957).?°

The court of appeals held that controlling questions are

“whether the ultimate result was foreseeable to the

original actor and whether the victim failed to do

something easily within his grasp that would have

extricated him from danger” (A. 115-116): 1 Wharton,

an independent intervening cause is defined as “one which

operates upon a condition produced by an antecedent, but is in

no sense a consequence thereof.”’ Perkins, CRIMINAL LAw,

supra, ai 722.

230Qn the prosecutor’s theory of liability, an innocent motorist

who discharges a hitchhiker subsequently killed in a_ traffic

accident has caused the latter’s death.

*This concept was lost on the prosecutor, who revealed in his

summation (A, 76) the failure to distinguish between dependent

intervening causes, which cannot be superseding [State v. Pell,

140 lowa 655, 119 N.W. 154, 158 (1909); see also Warren v.

State, 3 Div. 874, 25 So.2d 51, 53 (Ala. 1946)] and independent

intervening causes, which can be. Perkins, CRIMINAL LAW,

supra, at 723.

2Sin Bush, the victim died of scarlet fever contracted from a

doctor who was called to minister to the gunshot wounds

inflicted by the defendant. Although the defendant's action was

a causa sine qua non of the death by disease, the Kentucky

Court of Appeals held that the jury could find that the disease

was the supervening cause, excusing the defendant’s liability.

22

CRIMINAL LAW AND PROCEDURE, supra, §200:

Perkins, CRIMINAL LAW, at 725-727 (1969).

The circumstances surrounding respondent’s actions

are susceptible to a finding that the injury that

eventually befell Stafford was not foreseeable. There

was evidence at trial that respondent left Stafford. at

the latter’s request,?® not more than 75 feet from an

open and lighted gas station and store.?” The roadway

which was two lanes wide, was described as lightly

trafficked.?* Stafford was deposited on the shoulder of

the road and told by respondent to get to the gas

Station.

Significantly, Stafford was not injured on the side of

the road where he had been left. He was struck by

Michael Blake’s truck because, in part, he placed

himself in an upright position in the center of the

northbound lane of traffic. In addition, Stafford was hit

because Blake was driving faster than the speed limit

allowed. Moreover, Blake had failed to heed a clear

signal from an oncoming motorist warning him to slow

dowa. Finally, although the night was clear, the road

dry, and Blake, who was familiar with the road, had

approximately 200 feet in which to react. he si

failed to do so. eRe

~~ ;

| This is certainly evidence that Stafford, despite his

inebriated condition, was alert enough to perceive a place of

safety and that respondent could reasonably believe that Stafford

was capable of getting to it.

When Stafford left the car, he was wearing his pants and a

shirt, and respondent gave him his shoes and jacket. Stafford’s

subsequent state of undress, as described by Blake, was clearly

the result of Stafford’s being dragged by the truck (A. 52-53).

28

Indeed, the road was so lightly trafficked that Blake, the

truck driver who fatally injured Stafford, felt secure in returning

to the spot where he had hit Stafford by drivi

northbound lane. y driving south in the

23

Certainly respondent was entitled to have the jurors

evaluate the foreseeability of injury in light of both

Stafford’s conduct?® and Blake’s. LaFave & Scott,

CRIMINAL LAW, 257-263 (1972). This is especially

true in light of the defense argument that respondent

had left Stafford near the open gas station and that

Stafford had chosen to walk in the opposite direction.*°

29wWhile usually the contributory negligence of the victim is

not to be considered on the question of criminal causation,

where that negligence is a substantial factor as compared to the

actions of the accused, it is not to be disregarded. Perkins,

CRIMINAL LAW, supra, at 703.

Despite the fact that respondent’s action of leaving Stafford

on the side of the road subjected him to the danger of exposure

or of being hit by a passing vehicle, if, before injury, Stafford

had made his way to a position of apparent safety, respondent

would not have been legally responsible for Stafford’s death.

State v. Preslar, 48 N.C. Rep. 417, 423 (1856), see also Beale,

The Proximate Cause of an Act, 33 Harv. L. Rev. 633, 651

(1920); Edgerton, Legal Cause, 72 U. Pa. L. Rev. 211, 239-240

(1924).

In State v. Preslar, supra, 48 N.C. Rep. 417, the defendant

beat his wife severely and turned her out of the house at night.

She subsequently died of exposure. However, the evidence in the

case established that the wife had made her way safely to her

father’s home but, for reasons of her own, decided not to enter

his house at night and chose instead to sleep outside. The North

Carolina Court of Appeals held that because the victim had

arrived at a place of safety but did not avail herself of it, the

harm caused by the defendant’s conduct had come to a halt, anu

he was therefore not guilty of murder.

This logic applies with equal force to the defense contention

in this case that respondent left Stafford near the gas station. if

Stafford. for reasons of his own, decided not to seek accessible

shelter at the gas station but instead chose to remain on the road

where he walked approximately one-quarter of a mile before

being hit, respondent’s actions were not sufficient cause of

Staftord’s death.

24

Based on the unique facts and circumstances in this

case, the court of appeals granted the writ because of

its concern thai the Omissions in the instructions

permitted the jury to convict despite the belief of

evidence which should have resulted in a conclusion

that respondent was not guilty of murder. The

omissions deprived respondent of his due process right

to a fair trial. Jn re Winship, supra, 397 U.S. at 364.

CONCLUSION

For the foregoing reasons, the judgment of the court

of appeals should be affirmed.

Respectfully submitted.

SHEILA GINSBERG.

WILLIAM E. HELLERSTEIN,

PHYLIS SKLOOT BAMBERGER

THE LEGAL AID SOCIETY

FEDERAL DEFENDER

SERVICES UNIT

509 United States Courthouse

Foley Square

New York, New York 10007

(212) 732-297]

Attorneys for Respondent