Rivera v. Coombe, 1228

• Decision Date: 29 June 1982
• Docket Number: No. 1228,D,1228
• Citation: 683 F.2d 697
• Parties: Edwin RIVERA, Petitioner-Appellee, v. Philip COOMBE, Jr., Superintendent, Respondent-Appellant. ocket 82-2086.
• Court: U.S. Court of Appeals — Second Circuit

Page 697

683 F.2d 697

Edwin RIVERA, Petitioner-Appellee, v. Philip COOMBE, Jr., Superintendent, Respondent-Appellant.

No. 1228, Docket 82-2086.

United States Court of Appeals, Second Circuit.

Argued May 27, 1982.

Decided June 29, 1982.

Daniel Kinburn, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen. of the State of N. Y., Gerald J. Ryan, Asst. Atty. Gen., New York City, of counsel), for respondent-appellant.

Judith L. Turnock, Legal Aid Soc., New York City (William E. Hellerstein, New

York City, of counsel), for petitioner-appellee.

Before LUMBARD, MOORE and OAKES, Circuit Judges.

LUMBARD, Circuit Judge:

In 1974, the petitioner, Edwin "Teddybear" Rivera, stabbed a man in the back and killed him. He was subsequently convicted of first-degree manslaughter after a jury trial in the Bronx County Supreme Court. On February 11, 1982, the Southern District of New York, Ward, J., 534 F.Supp. 980, granted Rivera's petition for a writ of habeas corpus, holding that the trial court's instruction on intent violated Rivera's right to due process of law under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). We disagree and we reverse.

I.

On the evening of February 28, 1974, Guy Keyes, Jr., came up to seventeen-year-old Rosaria "Coochie" Castro in front of the Carvel store on Boston Road in the Bronx. Rivera, then sixteen, was with Coochie. Keyes, a twenty-two-year-old black man, asked her for a cigarette and "a nickel or a dime." She gave him the cigarette but told him she had no money, and Keyes started arguing with her and Rivera. She then asked Rivera to take her back to her grandmother's store, the Aida Superette, located just down the block. Rivera escorted her there but remained outside.

About ten minutes after Coochie returned to the store, Keyes entered the Superette with two other black men. Like Keyes, they were each about six feet tall. Keyes announced "We are looking for trouble." Coochie and her grandmother began yelling at the three men, telling them to get out, "We don't want no trouble." Coochie's brother, John Velez, heard the yelling and came out of the back room of the store to see what the fuss was about. He saw Keyes and the others leaving, and he followed them out to fight with Keyes, taking his shirt off as he went.

As Velez exited the store, Keyes's two companions were holding Keyes back. A crowd (including Rivera) gathered on the sidewalk. Velez demanded that Keyes fight, but his grandmother and Coochie pushed him back into the store before a fight started.

When Velez next looked out the window of the store, Keyes and the other two black men were gone. He saw Keyes running, turning east on 174th Street from Boston Road. A number of people, including Rivera, were following him. ¹ Velez testified that Rivera was about 70-80 feet behind Keyes but that Rivera was "running fast." He lost sight of the chase after everyone turned the corner. Velez never saw Keyes again.

Within about ten minutes, Rivera returned to the Superette. On the way, he saw his friend, Jose Mendez, outside on the street, and told Mendez, "I think I stabbed him in the back." Rivera then entered the Superette, where he displayed a three to four inch knife with a rounded tip and blood on the handle. According to Velez, after showing the knife, Rivera announced, "I think I stabbed him," later adding that it was in the back. Velez also testified that Rivera appeared intoxicated.

At about the same time, Guy Keyes staggered into a liquor store on 174th Street, where he collapsed on the floor. He was taken to a hospital where he died the next day of a single penetrating stab wound four to five inches deep. The knife had entered two and a half inches from the spine on the right side of his back and had traveled down and forward, through the lung, terminating against the spine. The pathologist testified that such a wound could have been caused by an individual running up behind another individual, catching up to him, and plunging a knife like Rivera's in with a downward thrust.

Rivera took the stand in his own defense. He admitted running after Keyes, but denied chasing Keyes with the intent of stabbing him, denied stabbing Keyes, denied ever telling anyone that he had stabbed Keyes, and denied possessing or displaying a knife. He insisted that he followed Keyes only to the corner and had there lost sight of him. Finally, Rivera stated that he had drunk no liquor whatsoever the night that Guy Keyes was stabbed.

Justice Ivan Warner charged the jury on the elements of second-degree murder, first-degree manslaughter, and misdemeanor weapon possession. The relevant instruction here concerns intent, which Justice Warner defined as follows:

I shall now define intent for you. A person is presumed to intend the natural and probable consequences of his act. Criminal intent is an intent to do knowingly and wilfully that which is condemned as wrong by the law. A criminal intent may be inferred from all the circumstances of the case. It need not be established by direct proof. To constitute the crime there must not only be the act but also the criminal intent and these must occur, the latter being equally essential with the former. The existence of criminal intent constitutes a question of fact for determination by you and the burden of showing intent, the intent with which a crime has been committed rests upon the prosecution to establish it by evidence beyond a reasonable doubt. So where the law requires that the People must establish a specific or certain intent on the part of one charged with the commission of a crime, the law does not expect or require for obvious reasons that intent must be proved by directed proof to an absolute certainty or with mathematical precision. Intent, I mean criminal intent, is always an essential element to the commission of the crime such as we have here and it may be proved by direct evidence or it may be proved from circumstances surrounding the transaction or the act itself, or it may be proved by a combination of both. What is intent? Intent is a frame of mind of the perpetrator of the act at the time he commits it. You must probe the mind. You may say to yourself how are we to determine what a man's intentions are. Well members of the jury, we can only determine that by his acts, by his conduct, by what he says and by what he does. You should consider what he allegedly did, what means he allegedly employed, the type of instrument allegedly used, if any, the part of the body allegedly attacked, and all the circumstances. And from these surrounding circumstances you are to determine the intention of the defendant at the time.

Under our law every person is presumed to intend the natural and inevitable consequences of his own voluntary acts and unless such acts were done under circumstances which would preclude the existence of such intent, the jury has a right to infer from the results produced, the intention to effect such result. The intent formed, is a secret and silent operation of the mind and its physical manifestations, the accomplishment of the thing determined upon. The individual whose intent is sought to be ascertained may remain silent or if he speaks, may probably will if he has a crime to hide, speak untruthfully, and thus the mind is compelled from necessity to refer to the act and the physical manifestations of the intent exhibited by the results produced as the safest if not the only proof of the fact to be ascertained.

Justice Warner followed this with an instruction concerning the difference between the intent required for murder and manslaughter, explaining that second-degree murder requires proof of intent to kill and first-degree manslaughter requires proof of intent to cause serious bodily injury. He also charged the jury at length on reasonable doubt and the presumption of innocence, emphasizing that "(t)he burden of establishing the guilt of the defendant beyond a reasonable doubt rests upon the prosecution and that burden never shifts."

Rivera did not object to the charge on intent.

The jury acquitted Rivera of second-degree murder, N.Y.Pen.L. § 125.25, and convicted him of first-degree manslaughter, N.Y.Pen.L. § 125.20(1), and misdemeanor possession of a weapon, N.Y.Pen.L. § 265.01(2). On September 12, 1975, the court sentenced Rivera to a prison term of seven to twenty-one years. He is presently free on parole.

Rivera's conviction was affirmed without opinion, 59 A.D.2d 829, 398 N.Y.S.2d 351 (1st Dep't 1977), and leave to appeal to the New York Court of Appeals was denied, 43 N.Y.2d 799, 402 N.Y.S.2d 1037, 373 N.E.2d 299 (1977). On November 28, 1979, Justice Warner denied in a written opinion Rivera's post-conviction motion to vacate the judgment. Stating that "the real issue at the trial was not actually one of intent to kill, but rather, whether or not Edwin Rivera had committed the crime at all," Justice Warner held that the charge on intent did not impermissibly shift the burden of proof to the defendant. Leave to appeal was denied by the Appellate Division. Rivera filed his petition for a writ of habeas corpus on December 31, 1980.

On February 11, 1982, the district court granted the writ and vacated the conviction, finding that the charge on intent shifted the burden of proof to Rivera in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). First, it found that portions of the charge could have been understood by the jury as requiring rather than merely permitting a finding of intent to commit serious bodily injury once the jury found that Rivera committed an act the natural and probable consequence of which was serious bodily injury (i.e., that Rivera stabbed Keyes in the back). Second, even though the charge contained other language indicating that a finding of intent was permissive and not mandatory, the court could not say that the charge as a whole "clearly informed the jury of the...