People v. Thomas

• Citation: 429 N.Y.S.2d 584,50 N.Y.2d 467,407 N.E.2d 430
• Parties: , 407 N.E.2d 430 The PEOPLE of the State of New York, Appellant, v. Elery THOMAS, also known as Thomas Elery, Respondent.
• Decision Date: 05 June 1980
• Court: New York Court of Appeals Court of Appeals

Page 584

429 N.Y.S.2d 584

50 N.Y.2d 467, 407 N.E.2d 430

The PEOPLE of the State of New York, Appellant, v. Elery THOMAS, also known as Thomas Elery, Respondent.

Court of Appeals of New York.

June 5, 1980.

Mario Merola, Dist. Atty. (Kenneth R. Larywon and Timothy J. McGinn, New York City, of counsel), for appellant

Erica Horwitz and William E. Hellerstein, New York City, for respondent.

OPINION OF THE COURT

WACHTLER, Judge.

The defendant was convicted of murder for stabbing and killing a woman and her two children in their Bronx apartment. The Appellate Division reversed and ordered a new trial on the ground that the court's charge on intent violated the Supreme Court's recent decision in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39. The Appellate Division also held that the error was not harmless and was reviewable as a question of law although the defendant had not preserved the point by objecting to this portion of the charge at trial. The People have appealed.

On the afternoon of March 21, 1977 the defendant and a coworker, Dale Turner, went to the defendant's apartment for lunch. Soon after their arrival, the defendant said he was going upstairs "to check on" Deborah Williams, who also resided in the building with her two daughters, aged three and five. When the defendant returned he was crying and he told Turner that "Deborah is dead". Turner called the police. When the police arrived they found Deborah Williams dead in her apartment with a broken knife in her back. They also found that her two daughters had been stabbed but were still alive. The children, however, later died at the hospital. The autopsy confirmed that each of the victims had died as the result of numerous stab wounds to the body and head 25 wounds in the case of one of the children. In each instance the victims' skull had also been fractured.

The defendant initially told the police that he and Deborah Williams were "just friends". Other witnesses, however, later informed the police that the defendant was her lover, had proposed marriage and had keys to her apartment. The investigation also indicated that the defendant was a jealous lover who suspected that she was seeing other men and had said that he would kill her for doing so.

Approximately a week after the killing the police questioned the defendant again. This time, after being advised of his rights, defendant confessed to the crimes and gave the police and prosecutor three statements. He admitted that he had gone to the Williams' apartment at 1:00 a. m. on March 21 to talk to Deborah about her seeing another man. An argument followed, the defendant hit her and, when she turned her back, he stabbed her with a knife and broke the handle. He also punched and kicked her as she fell to the floor. When the children began to cry the defendant went into the next room and stabbed them with a pair of scissors. Returning to the living room he found their mother still alive. She asked why one of the girls was crying and he said that she wanted to come into the room. He then left and stabbed the girl several more times. He said that he remained in the apartment until approximately 4:00 a. m. Before leaving he went around and stabbed the victims again.

At the trial the defendant took the stand, denied his guilt and claimed that the police had tricked and coerced him into making the three confessions. He admitted being in the Williams' apartment earlier that night but testified that he had left before the killings took place.

The court instructed the jury that the defendant was charged with three counts of murder in the second degree, which requires proof of intent to kill (Penal Law, § 125.25, subd. 1). At the defendant's request the court also submitted the lesser included offense of manslaughter in the first degree, which requires proof of intent to inflict serious bodily injury (Penal Law, § 125.20, subd. 1). The court informed the jury, in general terms, that the People had the burden of proving the defendant's guilt beyond a reasonable doubt and that the burden never shifts to the defendant. With respect to the element of intent the court emphasized that this was a matter for the jury to decide, and that in resolving the issue they must consider "the facts and all the surrounding circumstances." The court, however, also stated that "the law says that a person is presumed to intend the natural and probable consequences of his act" and "is presumed to intend that which he actually does."

The defendant concededly did not object to this portion of the charge at trial. Nevertheless he claimed on appeal that the trial court's reference to the "presumption" constituted reversible error. The Appellate Division agreed, relying on Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39, supra in which the Supreme Court held that charging on the "presumption" without qualification violates due process because the jury may reasonably conclude that the presumption is conclusive or that the burden of proof has shifted to the defendant on the element of intent (see, also, People v. Getch, 50 N.Y.2d 456, 429 N.Y.S.2d 579, 407 N.E.2d 425, decided herewith). Here the Appellate Division (at p. 283, 422 N.Y.S.2d at p. 396) held that the court's charge effectively "absolved the People of the duty to prove an essential element of murder in the second degree, viz., intent to kill." The Appellate Division also rejected the People's contentions that the error was harmless and that it was not reviewable because the defendant had not preserved the point by objecting to the charge at trial. With respect to the preservation issue the Appellate Division (at p. 285, 422 N.Y.S.2d at p. 397) stated: "(T)he Court of Appeals has noted 'no exception is necessary to preserve for appellate review a deprivation of a fundamental constitutional right'. (People v. McLucas, 15 N.Y.2d 167, 170, 172, 256 N.Y.S.2d 799, 204 N.E.2d 846; see, also, People v. Patterson, 39 N.Y.2d 288, 383 N.Y.S.2d 573, 347 N.E.2d 898, affd. 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281.)" Accordingly, the Appellate Division reversed on the law.

As a general rule points which were not raised at trial may not be considered for the first time on appeal (CPL 470.05, subd. 2; People v. Robinson, 36 N.Y.2d 224, 367 N.Y.S.2d 208, 326 N.E.2d 784; People v. Gurley, 42 N.Y.2d 1086, 399 N.Y.S.2d 650, 369 N.E.2d 1183; People v. Kibbe, 35 N.Y.2d 407, 413-414, 362 N.Y.S.2d 848, 321 N.E.2d 773; affd. sub nom. Henderson v. Kibbe, 431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203). There is, however, one very narrow exception as we noted in People v. Patterson (supra). In that case we said that no objection is necessary to preserve a point of law for appellate review when the procedure followed at trial was at basic variance with the mandate of law prescribed by Constitution or statute (People v. Patterson, supra, 39 N.Y.2d at pp. 295-296 383 N.Y.S.2d 573, 347 N.E.2d 898; see, also, People v. Michael, 48 N.Y.2d 1, 420 N.Y.S.2d 371, 394 N.E.2d 1134). It is to be noted that in Patterson the defendant challenged the constitutionality of section 125.25 (subd. 1, par. (a)) of the Penal Law which places upon the defendant the burden of proving extreme emotional disturbance as an affirmative defense to murder. We held that this argument could be raised for the first time on appeal. It was noted (39 N.Y.2d at p. 296, 383 N.Y.S.2d at p. 578, 347 N.E.2d at p. 903) that if "the burden of proof was improperly placed upon the defendant, defendant was deprived of a properly conducted trial." We also recognized that the defendant's failure to object was excusable because the statutory practice had previously been deemed valid and had only been called into question by an intervening Supreme Court decision.

In Patterson then the trial court had expressly and unequivocally instructed the jury, as the statute directed, that the burden of proof was on the defendant to prove the affirmative defense. In the case now before us, on the other hand, there is no contention that the court expressly shifted the burden of proof to the defendant or explicitly relieved the People of their burden of proving every element of the crimes charged. Rather it is urged that a portion of the court's charge is capable of being so interpreted and having this effect although, as indicated, the court specifically instructed the jury that the burden was on the People throughout. A claim that the court erred by expressly shifting the burden of proof to the defendant or relieving the People of their obligation to prove the defendant's guilt beyond a reasonable doubt presents a more basic defect, and is potentially more prejudicial, than a contention that a portion of the charge may be interpreted as having this effect. Thus when a court's specific instructions on the burden of proof properly place the burden on the People, a claim that a portion of the charge could, in the particular case, be interpreted as having a contrary effect, does not come within the narrow exception to the rule that objections to the charge must be made at trial where the potential error can be corrected or avoided (People v. Robinson, 36 N.Y.2d 224, 367 N.Y.S.2d 208, 326 N.E.2d 784, supra ).

We recognize that at trial the defendant did not have the benefit of the Sandstrom decision which was announced after the trial was concluded. But Sandstrom did not alter the law of this State. For more than a century, the charge condemned in Sandstrom has been held by this court, to be erroneous as a matter of State law (Stokes v. People, 53 N.Y. 164, 179; People v. Baker, 96 N.Y. 340, 350; People v. Downs, 123 N.Y. 558, 564-568, 25 N.E. 988; People v. Flack, 125 N.Y. 324, 335, 26 N.E. 267; People v. Weiss, 290 N.Y. 160, 171, 48 N.E.2d 306). Thus the defendant's failure to object cannot be excused on the ground that he was confronted at trial with a practice held or deemed to be valid which was only called into...