Justice v. Hoke

• Decision Date: 10 January 1995
• Docket Number: D,No. 575,No. 94-2280,575,94-2280
• Citation: 45 F.3d 33
• Parties: David Kevin JUSTICE, Petitioner-Appellee, v. Robert HOKE, Superintendent, Eastern Correctional Facility, Respondent-Appellant. ocket
• Court: U.S. Court of Appeals — Second Circuit

Page 33

45 F.3d 33

David Kevin JUSTICE, Petitioner-Appellee, v. Robert HOKE, Superintendent, Eastern Correctional Facility Respondent-Appellant.

No. 575, Docket No. 94-2280.

United States Court of Appeals Second Circuit.

Argued Oct. 6, 1994.

Decided Jan. 10, 1995.

Andrew C. Fine, New York City (Philip L. Weinstein, Legal Aid Soc., of counsel), for petitioner-appellee.

Nancy F. Talcott, Asst. Dist. Atty., of Kings County, Brooklyn, NY (Charles J. Hynes, Dist. Atty., of Kings County, Roseann B. MacKechnie, Richard T. Faughnan, Asst. Dist. Attys., of Kings County, of counsel), for respondent-appellant.

Before: LUMBARD, FEINBERG, and MAHONEY, Circuit Judges.

MAHONEY, Circuit Judge:

Respondent-appellant Robert Hoke, Superintendent, Eastern Correctional Facility, appeals from a judgment entered May 25, 1994 in the United States District Court for the Eastern District of New York, Edward R. Korman, Judge, that granted a writ of habeas corpus to petitioner-appellee David Kevin Justice. Petitioner had been convicted in the Supreme Court of the State of New York, Kings County, of robbery in the first degree and intimidating a witness in the third degree. See People v. Justice, 172 A.D.2d 851, 569 N.Y.S.2d 456 (2d Dep't), appeal denied, 78 N.Y.2d 923, 573 N.Y.S.2d 476, 577 N.E.2d 1068 (1991). The district court held that the jury charge in the state case was constitutionally deficient "because it failed to convey to the jury its obligation to apply the reasonable doubt standard in determining the facts."

We reverse.

Criminal convictions may issue only upon proof beyond a reasonable doubt of every element of the charged offense. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). However, when reviewing a jury charge for constitutional infirmity, we must consider the challenged portion of the charge not "in artificial isolation," but rather "in the context of the overall charge." Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). A constitutional violation occurs only if "[t]here is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard." Victor v. Nebraska, --- U.S. ----, ----, 114 S.Ct. 1239, 1243, 127 L.Ed.2d 583 (1994).

The challenged portion of the charge appears toward the end of the instructions. Earlier, in the general portion of the charge, the jury was told:

In this and in every criminal case, the accused is presumed to be innocent and that presumption remains with him throughout the trial, until and unless, if ever, his guilt is proved beyond a reasonable doubt. That presumption of innocence continues right through the trial. It exists now and accompanies the case into the jury room. It is only overcome where the evidence which you accept and believe convinces you beyond a reasonable doubt that the defendant is guilty. The burden of proving the defendant guilty beyond a reasonable doubt remains upon the prosecution throughout the trial and never shifts to the defendant. No defendant is required to prove his innocence. Each element of any crime submitted to you, as I will define the elements, must be proved beyond a reasonable doubt. The rule of law is that the defendant's guilt as to each and every element of any crime submitted to you by the Court must be proved beyond a reasonable doubt by the prosecution. If this burden is not fulfilled, you must acquit the defendant. If this burden is fulfilled, you may convict the defendant.

....

Concentrate on whether the People have proved to your satisfaction beyond a reasonable doubt each and every element of the charges I am going to give you.

In addition, during the portion of the instructions addressing the specific elements of the crimes charged, the jury was repeatedly reminded that it may convict only after finding that each element was proved beyond a reasonable doubt. After hearing those instructions, the jury was given the challenged portion of the charge:

Very shortly, you're all going to go into that jury room and you will sit down around the table and sort out what you heard, and by following the Court's instructions and applying the tests that I gave you, and very often in cases where there are disputed facts, it's helpful if you zero in on the testimony right away, who do you believe, who do you disbelie[ve], who's hiding, who's telling the truth, who is fudging, who's honest, et cetera. And if you can make those decisions at the beginning of your deliberations, then the case falls into place. Leave the law alone for a moment. I think it's a truism in the law, which is know your facts and the law will almost take care of itself. But, figuratively speaking, you have to sort out the facts. Decide in your own minds who you believe, what happened here, et cetera, and then once you're reconciled and agreed as to the facts, look at the law and see if the People have met their burden beyond a reasonable doubt as to each and every element. That's just a suggestion. You're free to conduct your deliberations in any manner you deem appropriate.

Emphasis added.

The district court regarded the emphasized portion of the foregoing instruction as constitutionally defective "because it...