Rock v. Coombe, 369
| Decision Date | 02 December 1982 |
| Docket Number | No. 369,D,369 |
| Citation | 694 F.2d 908 |
| Parties | Gerald Jerome ROCK, Petitioner-Appellant, v. Phillip COOMBE, Jr., Superintendent, Respondent-Appellee. ocket 82-2211. |
| Court | U.S. Court of Appeals — Second Circuit |
Alan C. Lippel, New York City, for petitioner-appellant.
Julie R. Fischer, Asst. Dist. Atty., Brooklyn, N.Y. (Elizabeth Holtzman, Dist. Atty., Kings County, Barbara D. Underwood, Jane S. Meyers, Asst. Dist. Attys., Brooklyn, N.Y., on brief), for respondent-appellee.
Before TIMBERS, KEARSE, and PIERCE, Circuit Judges.
Petitioner Gerald Jerome Rock, a New York State prisoner convicted of second-degree murder, appeals from a final judgment of the United States District Court for the Eastern District of New York, Jack B. Weinstein, Chief Judge, dismissing his petition for a writ of habeas corpus which contended, inter alia, that the trial judge's instructions to the jury, once in the main charge and twice in supplemental charges, that "a man is presumed to intend the natural consequences of his act," unconstitutionally shifted to Rock the burden of proof on the issue of intent. See Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Although Rock had exhausted his state remedies as to this Sandstrom claim, his petition also presented other claims as to which he had not exhausted his state remedies. The district court dismissed the Sandstrom claim on its merits.
On this appeal we allow Rock to withdraw and abandon his unexhausted claims to comply with Rose v. Lundy, --- U.S. ----, 102 S.Ct. 1198, 71 S.Ct. 379 (1982). On the merits of the Sandstrom claim, we affirm the judgment of the district court.
In September 1975 Rock was convicted in New York State Supreme Court, Kings County, after a jury trial, of second-degree murder and was sentenced to a term of imprisonment of twenty years to life. The indictment charged that Rock, acting in concert with other persons, had intentionally caused the death of one James Gibbs, Jr., by striking, hitting, and beating him. At trial the State presented the testimony of four of Rock's acquaintances who were present at or participated in the attack on Gibbs. All four testified that Rock had hit Gibbs on the head repeatedly with a hammer. A hammer had been recovered by police at the scene of the crime, and the medical examiner testified that the cause of Gibbs's death had been a stab wound to the heart and massive injuries to the face and skull.
In defense, Rock contended that he had not caused Gibbs's injuries or death. He testified that he had never joined the melee in which Gibbs was attacked, that he had not had a hammer, and that he had never hit Gibbs or anyone else. Rock called as a witness his cousin Jerry Brown, who was then already imprisoned for the murder of Gibbs. Brown testified that it was he, and not Rock, who had hit Gibbs with the hammer.
Notwithstanding his defense of nonparticipation, Rock requested the trial judge to instruct the jury on the crime of first degree manslaughter, a lesser-included offense within the crime of murder. Insofar as is pertinent to this case, a manslaughter charge under N.Y. Penal Law Sec. 125.20 (McKinney 1975) requires proof of intent to cause serious injury but, unlike a murder charge under N.Y. Penal Law Sec. 125.25 (McKinney 1975), does not require proof of intent to cause death. 1 The judge gave the requested instructions on manslaughter as an alternative to the second-degree murder count.
The court informed the jury that "[p]roof of intent to kill is a necessary element of the crime [of murder]," (Tr. 586), and instructed as follows on the element of intent:
Intent is the operation of the mind whereby a person aims to obtain the desired natural consequences or effect of his act. Intent is the state of mind with which an act is done, and it involves the use of the will. As we say, a mental operation cannot be photographed. It is silent and invisible to the human eye, but the intent of a person maybe [sic] ascertained from his conduct or speech or from a combination of both, and it is a general rule that a man's actions and outward manifestations reveal an expression of his mind, and it is not always by word alone that a man expresses his intention. It is a fundamental rule of evidence that a man is presumed to intend the natural consequences of his act, unless the act is done under circumstances or under conditions which preclude the existence of such an intent.
If you conclude that the defendant committed the acts charged, then you must decide whether or not from all of the established facts, speech, conduct and actions by the defendant, [h]e intended to effect the commission of this crime.
Under the Penal Law, the word "intentional" is defined as follows: "A man acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such results or to engage in such conduct."
Now whether an intent to kill was formed is something that you must determine from all of the circumstances of this case. In connection with the element of intent to kill, you may consider the demeanor, the conduct and the action of the defendant surrounding the commission of the alleged acts as disclosed by the evidence.
(Tr. 586-88; emphasis added.) The italicized language forms the basis for Rock's Sandstrom claim. In describing the elements of manslaughter, the court also stated that "[i]t is not only the act; it is the intention that controls." (Tr. 592.)
Throughout his main charge the trial judge instructed the jury as to the nature of the prosecution's burden of proof. He repeatedly stated that the State had the burden of proof (e.g., Tr. 581, 589-90, 592, 596), that its burden was to establish Rock's guilt beyond a reasonable doubt (e.g., Tr. 581, 582, 584, 589, 593, 596, 611), and that the State bore this burden with respect to each and every element of the crime (e.g., Tr. 589, 590, 592, 596), including expressly the element of intent (Tr. 589). The judge stated that the defendant was presumed innocent unless and until the State carried its burden of establishing guilt beyond a reasonable doubt. (Tr. 581, 593, 611.) The court reminded the jury that the jury was the trier of the facts. (Tr. 596-97.)
There was no objection to the intent portion of the court's instructions. Indeed, following the jury's departure, Rock's attorney stated, "The first thing I would like to do is to compliment Your Honor on what I consider to be a fair and decent and objective charge." (Tr. 612.)
The jury retired to deliberate on July 14, 1975, at 1:42 p.m. At 4:18 it returned to the courtroom with a request for a reading of the testimony of two witnesses: John Finley (one of the four who had testified that Rock repeatedly hit Gibbs with a hammer) and Jerry Brown (who had testified that he, and not Rock, had hit Gibbs with the hammer). After hearing the reading, the jury resumed its deliberations at 5:15.
At 9:30 p.m. the jury returned to the courtroom with another request, this time for "a reading of the Medical Examiner's testimony and that portion of the Judge's charge dealing with intent." (Tr. 620-21.) With respect to intent, the court responded as follows:
I told you previously that intent is the operation of one's mind; and in effect, intent is that state of mind with which an act is done and it involves the use of the will; and, of course, the intent of the person cannot be ascertained by any X-rays. It can be ascertained from the conduct or speech of an individual or from a combination of both, that is, the facts and circumstances surrounding the alleged act. That is what you would look to toward determining what the intention of a person is.
I told you that intent is an element of both counts of the indictment. Under the first count of the indictment it is necessary for the People to establish that it was the intention of the defendant acting in concert to cause the death of the deceased[,] that is, to kill the deceased.
Under the second count of the indictment there is no intent to kill but an intent to cause serious physical injury. And that would be under--I used the term "second count of the indictment." It is not actually the second count of the indictment. It is a lesser included offense of the first count of the indictment which is murder.
Does that satisfy the request or shall I continue further?
In regard to intent, I may add as I told you previously that a person is presumed to intend the natural consequences of his act unless the act was done under any circumstances or conditions which would preclude the existence of such an intent.
Intention, as I defined it, is, of course, a question of fact for you to determine within the legal guidelines that I am giving you. And again, intent is something that you have to determine from the circumstances of the case, from the speech and conduct of the defendant and others who allegedly--and the defendant and the surrounding circumstances attending the alleged crime.
And, in effect, keep in mind an intent is trying--I'm trying to give it in as clear-cut and layman language as I can--a person acts intentionally that is, performs an act intentionally when his conscious objective is to cause such result or to engage in such conduct.
And that is basically what the law defines as intent.
And again I advise you that it is a...
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