Henderson v. Kibbe, No. 75-1906

• Court: United States Supreme Court
• Writing for the Court: STEVENS
• Citation: 97 S.Ct. 1730,431 U.S. 145,52 L.Ed.2d 203
• Docket Number: No. 75-1906
• Decision Date: 16 May 1977
• Parties: Robert J. HENDERSON, Superintendent, Auburn Correctional Facility, Petitioner, v. Barry Warren KIBBE

431 U.S. 145 97 S.Ct. 1730 52 L.Ed.2d 203 Robert J. HENDERSON, Superintendent, Auburn Correctional Facility, Petitioner,

v.

Barry Warren KIBBE.

No. 75-1906. Argued March 1, 1977. Decided May 16, 1977. Syllabus

Respondent and his codefendant, after robbing an intoxicated man in their car, abandoned him at night on an unlighted rural road where the visibility was obscured by blowing snow. Twenty or thirty minutes later, while helplessly seated in the road, the man was struck and killed by a speeding truck. Respondent and his accomplice were subsequently convicted in a New York trial court of grand larceny, robbery, and second-degree murder. A New York statute provides that a person is guilty of second-degree murder when "(u)nder 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." Although the element of causation was stressed in the arguments of both defense counsel and the prosecution at the trial, neither party requested an instruction on the meaning of the "thereby causes" language of the statute and none was given. The trial judge, however, did read to the jury the statute and the indictment tracking the statutory language, and advised the jury that all elements of the crime charged must be proved beyond a reasonable doubt and that a "person acts recklessly with respect to a result or to a circumstances described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur." Respondent's conviction was upheld on appeal, the New York Court of Appeals rejecting the argument that the truck driver's conduct constituted an intervening cause that relieved the defendants of criminal responsibility for the victim's death. Respondent then filed a habeas corpus petition in Federal District Court, which refused to review, as not raising a question of constitutional dimension, respondent's attack on the sufficiency of the jury charge. The Court of Appeals reversed, holding, on the authority of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, that since the Constitution requires proof beyond a reasonable doubt of every fact necessary to constitute the crime charged, the failure to instruct the jury on an essential element as complex as the causation issue in this case created an impermissible risk that the jury had not made a finding that the Constitution requires.

Page 146

Held : The trial judge's failure to instruct the jury on the issue of causation was not constitutional error requiring the District Court to grant habeas corpus relief. Pp. 153-157.

(a) The omission of the causation instruction did not create a danger that the jury failed to make an essential factual determination as required by Winship, supra, where there can be no question from the record that the jurors were informed that the issue of causation was an element which required decision, and where they were instructed that all elements of the crime must be proved beyond a reasonable doubt. Pp. 153-154.

(b) The opinion of the New York Court of Appeals makes it clear that an adequate instruction would have told the jury that if the ultimate harm should have been foreseen as being reasonably related to the defendants' conduct, that conduct should be regarded as having caused the victim's death. There is no reason to believe that the jury would have reached a different verdict if such an instruction had been given. By returning a guilty verdict the jury necessarily found, in accordance with the trial court's instruction on recklessness, that respondent was "aware of and consciously disregarded a substantial and unjustifiable risk" that death would occur. This finding logically included a determination that the ultimate harm was foreseeable. Pp. 154-157.

534 F.2d 493, reversed.

Lillian Zeisel Cohen, New York City, for petitioner.

Sheila Ginsberg, New York City, for respondent.

Page 147

Mr. Justice STEVENS delivered the opinion of the Court.

Respondent is in petitioner's custody pursuant to a conviction for second- degree murder. The question presented to us is whether the New York State trial judge's failure to instruct the jury on the issue of causation was constitutional error requiring a Federal District Court to grant habeas corpus relief. Disagreeing with a divided panel of the Court of Appeals for the Second Circuit, we hold that it was not.

On the evening of December 30, 1970, respondent and his codefendant encountered a thoroughly intoxicated man named Stafford in a bar in Rochester, N. Y.¹ After observing Stafford display at least two $100 bills,² they decided to rob him and agreed to drive him to a nearby town. While in the car, respondent slapped Stafford several times, took his money, and, in a search for concealed funds, forced Stafford to lower his trousers and remove his boots. They then abandoned him on an unlighted, rural road, still in a state of partial undress, and without his coat or his glasses. The temperature was near zero, visibility was obscured by blowing snow, and snow banks flanked the roadway. The time was between 9:30 and 9:40 p. m.

At about 10 p. m., while helplessly seated in a traffic lane about a quarter mile from the nearest lighted building, Stafford was struck by a speeding pickup truck. The driver testified that while he was traveling 50 miles per hour in a 40-mile zone, the first of two approaching cars flashed its lights presumably as a warning which he did not understand. Immediately after the cars passed, the driver saw Stafford sitting in the road with his hands in the air. The driver neither swerved nor braked his vehicle before it hit Stafford. Stafford was pronounced dead upon arrival at the local hospital.

Page 148

Respondent and his accomplice were convicted of grand larceny, robbery, and second-degree murder.³ Only the conviction of murder, as defined in N. Y. Penal Law § 125.25(2) (McKinney 1975), is now challenged. That statute provides that "(a) person is guilty of murder in the second degree" when "(u)nder 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." (Emphasis added.)

Defense counsel argued that it was the negligence of the truckdriver, rather than the defendants' action, that had caused Stafford's death, and that the defendants could not have anticipated the fatal accident.⁴ On the other hand, the prosecution argued that the death was foreseeable and would not have occurred but for the conduct of the defendants who

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therefore were the cause of death.⁵ Neither party requested the trial judge to instruct the jury on the meaning of the statutory requirement that the defendants' conduct "thereby cause(d) the death of another person," and no such instruction was given. The trial judge did, however, read the indictment and the statute to the jury and explained the meaning of some of the statutory language. He advised the jury that a "person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists." App. 89 (emphasis added).

The Appellate Division of the New York Supreme Court affirmed respondent's conviction. People v. Kibbe, 41 App.Div.2d 228, 342 N.Y.S.2d 386 (1973). Although respondent did not challenge the sufficiency of the instructions to the jury in that court, Judge Cardamone dissented on the ground that the trial court's charge did not explain the issue of causation

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or include an adequate discussion of the necessary mental state. That judge expressed the opinion that "the jury, upon proper instruction, could have concluded that the victim's death by an automobile was a remote and intervening cause." ⁶

The New York Court of Appeals also affirmed. 35 N.Y.2d 407, 362 N.Y.S.2d 848, 321 N.E.2d 773 (1974). It identified the causation issue as the only serious question raised by the appeal, and then rejected the contention that the conduct of the driver of the pickup truck constituted an intervening cause which relieved the defendants of criminal responsibility for Stafford's death. The court held that it was "not necessary that the ultimate harm be intended by the actor. It will suffice if it can be said beyond a reasonable doubt, as indeed it can be here said, that the ultimate harm is something which should have been foreseen as being reasonably related to the acts of the accused." ⁷ The court refused to consider the adequacy of the charge to the jury because that question had not been raised in the trial court.

Page 151

Respondent then filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of New York, relying on 28 U.S.C. § 2254. The District Court held that the respondent's attack on the sufficiency of the charge failed to raise a question of constitutional dimension and that, without more, "the charge is not reviewable in a federal habeas corpus proceeding." App. 21.

The Court of Appeals for the Second Circuit reversed, 534 F.2d 493 (1976). In view of the defense strategy which consistently challenged the sufficiency of the proof of causation, the majority held that the failure to make any objection to the jury instructions was not a deliberate bypass precluding federal habeas corpus relief,⁸ but rather was an "obviously inadvertent" omission. Id., at 497. On the merits, the court held that since the Constitution requires proof beyond a reasonable doubt of every fact necessary to constitute the crime, In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368, the failure to instruct...