# Respondents Reply Brief — Henderson v. Kibbe

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Reply Brief
- **Published:** January 1, 1977
- **Citation:** 431 U.S. 145

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0188%3A6. Public record. Not legal advice.