959 F.2d 1237 (3rd Cir. 1992), 90-5120, Rock v. Zimmerman

Docket Nº:90-5120.
Citation:959 F.2d 1237
Party Name:Gary Lee ROCK, Appellant, v. Leroy S. ZIMMERMAN; John F. Nelson, District Attorney of Franklin County.
Case Date:March 24, 1992
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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959 F.2d 1237 (3rd Cir. 1992)

Gary Lee ROCK, Appellant,


Leroy S. ZIMMERMAN; John F. Nelson, District Attorney of

Franklin County.

No. 90-5120.

United States Court of Appeals, Third Circuit

March 24, 1992

Argued April 2, 1991.

Reargued Nov. 13, 1991.

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David Rudovsky (argued), Kairys & Rudovsky, Philadelphia, Pa., for appellant.

John F. Nelson (argued), Office of the Dist. Atty., Chambersburg, Pa., for appellees.

Argued before: MANSMANN and ALITO, Circuit Judges, and O'NEILL, District Judge. [*]



STAPLETON, Circuit Judge:

In this appeal from the district court's denial of relief in a habeas corpus proceeding, 729 F.Supp. 398, Gary Lee Rock asks us to set aside his 1985 Pennsylvania state

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court convictions on two counts of first-degree murder, four counts of attempted murder, and two counts of aggravated assault.

The judge at Rock's trial attempted to explain to the jury, first, that they should determine whether petitioner had a specific intent to kill by examining all of the circumstances surrounding the death of his victims and, second, that they should infer that he did have such an intent only if those circumstances left no reasonable doubt in their minds on the point. Unfortunately, the judge did not confine himself to saying just that; rather, he chose to speak in terms of a "presumption." As the Supreme Court has noted both before and after petitioner's trial, the use of the word "presumption" in a charge to a jury in a criminal case is fraught with constitutional difficulty and should be avoided. The post-trial proceedings in this case demonstrate the wisdom of that proposition. We are persuaded beyond a reasonable doubt, however, that the result would have been no different if the trial judge had followed the distinctly preferable course of speaking solely in terms of the drawing of inferences from the available evidence.

Rock's petition for habeas corpus relief also complains of the trial court's failure to grant a change of venue and of the imposition of graver sentences after his initial sentence was vacated and he was retried. Since we conclude that the sentences Rock is now serving are not constitutionally infirm for any of these reasons, we will affirm the order of the district court.


On July 27, 1977, after setting fire to his cabin and shed, Gary Lee Rock shot and killed Wilbur Brookens and James Cutchall when they came to his aid. He also shot at but failed to kill six members of the Fayetteville volunteer fire department. Although there was conflicting evidence at trial concerning Rock's mental condition on the day of the shootings, there was virtually no dispute about the events of that day and the background of those events.

Rock grew up in Franklin County, Pennsylvania. After a period of service in the Marine Corps, he returned home and, at the time here relevant, lived in a cabin which he had completely renovated in a rural, wooded area. Rock testified that in the months preceding the shootings, he suffered bouts of depression and anger. On at least one occasion, he considered taking his own life. Rock experienced dissatisfaction with his job, which he referred to as "women's work," and frustration over his inability to secure a promotion. He also was despondent over his failure to develop a lasting relationship with a woman.

On the night before the killings, Rock attended a friend's party where he saw a woman whom he had previously dated. Upset over the fact that she was with another man, Rock left the party, sat in his truck, and cried. He eventually drove home and fell asleep on his couch.

Upon awakening, Rock drove to town and purchased forty rounds of .300 calibre rifle ammunition and two boxes of 12-gauge shotgun shells, purportedly for the purpose of groundhog hunting. Rock was an avid hunter and, as a result of his military training, a certified expert marksman. 1 When he returned home, Rock dressed himself in combat boots and fatigues and fired several practice rounds from his scope-equipped, .300 Savage rifle at a paper target affixed to a tree stump behind his house. The target was later found to have had one bullet hole in the upper left-hand corner and four bullet holes within one inch of each other in the target's center. After sighting his rifle, Rock poured gasoline in various rooms of his cabin and shed and set the structures on fire.

Seeing the smoke from the ensuing blaze, Rock's neighbor, Wilbur Brookens, approached the burning home in an apparent attempt to help put out the fire. He

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died when Rock fired a single bullet from the .300 Savage into his heart. Shortly thereafter, Fayetteville Fire Chief James Cutchall approached the blaze. Rock killed Cutchall with a bullet to the head. A fire truck arrived next on the scene and Rock fired several shots through its windshield, wounding two fire fighters and narrowly missing four others.

Armed with his rifle, shotgun, and ammunition for both weapons, and carrying two canteens, Rock fled into the wooded mountains behind his cabin. When the police apprehended him several hours later, he inquired, "How many did I kill?" At trial, Rock disputed the testimony of one officer that Rock also stated at the scene of his capture, "I saw two fall." (Rock testified that he believed that he was shooting at moving objects rather than people.)

These events led to Rock's conviction in 1978 on two counts of first-degree murder and six counts of attempted murder. Judge Eppinger, who presided over the trial, sentenced Rock to life imprisonment terms for each of the murder convictions. He further imposed on Rock a three-to-eight year sentence for one of the attempted murder counts and five suspended sentences for the remaining convictions. The judge directed that the life sentences run concurrently with each other and consecutively with the attempted murder sentence. The Supreme Court of Pennsylvania affirmed the convictions on a per curiam opinion. Commonwealth v. Rock, 430 A.2d 1150, 430 A.2d 1150 (1981).

Rock subsequently succeeded in obtaining federal habeas corpus relief based on a finding that he had received ineffective assistance of counsel during this trial. Rock v. Zimmerman, 586 F.Supp. 1076 (M.D.Pa.1984). At his retrial, Rock conceded that he had fired the shots that killed Brookens and Cutchall and injured the other victims. Thus the critical issue before the jury was whether Rock had the requisite state of mind. Rock's defense was twofold. He asked the jury to find him either (1) not guilty by reason of insanity or (2) incapable by reason of diminished capacity of forming a specific intent to kill and thus guilty only of third-degree murder. The Commonwealth, conversely, argued that Rock's actions--purchasing the ammunition, sighting and scoping his rifle, dressing in combat boots and fatigues, setting fire to his house, waiting for the predictable responses of the victims, and asking how many people he had killed--though irrational, evinced deliberate preparation and thus warranted guilty verdicts of first-degree and attempted murder.

Dr. Tanay, the forensic psychiatrist for the defense, testified that at the time Rock fired his rifle he suffered from a "psychotic episode" or "reactive psychosis." Dr. Tanay opined that because of this mental disease, Rock neither understood "the nature and quality of his acts when he was firing" nor knew that he was doing wrong. Tr. 499-500. After explaining the reasons for these opinions at some length, Dr. Tanay's direct examination concluded with the following question and answer:

Q. Now, Doctor, I ask you if you have an opinion based on a reasonable degree of medical certainty as to whether the cause of the mental disease and defect you have testified to, if Gary Rock had the capacity to form an intent to kill at the time he was firing his rifle?

A. In my opinion, he did not have the capacity to form the intent because of the mental impairment, the mental illness, from which he suffered at the time. The disruption of his mental apparatus precludes the ability to form intent, as I understand that particular legal concept.

Tr. 511-12. At no point in his testimony did Dr. Tanay articulate an opinion or an analysis that would support a conclusion that even if found to be legally sane, Rock might nevertheless have lacked the capacity to form an intent to kill.

Dr. Hume, the prosecution's forensic psychiatrist, agreed with Dr. Tanay that Rock suffered from a mental disease or defect at the time he fired his rifle. Dr. Hume insisted, however, that Rock understood the consequences that would flow from pulling the trigger, that he knew pulling the trigger was wrong, and that he had the mental capacity to form an intent to kill.

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In closing argument, defense counsel initially identified two reasons why the defendant should not be convicted of first-degree murder: the failure of the state to prove sanity and the failure of the state to disprove "diminished capacity." Tr. 640. The entire argument which followed, however, was addressed to the state's alleged failure to prove sanity. In the Commonwealth's closing, the prosecutor tacitly acknowledged the existence of a mental disease or defect, but insisted that Rock's ability to appreciate the consequences of his actions and to distinguish right from wrong had been established beyond a reasonable doubt.

After eight hours of deliberation, the jury asked the trial judge to explain "the difference between...

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