Roy v. Coxon

• Decision Date: 29 June 1990
• Docket Number: D,No. 1260,1260
• Citation: 907 F.2d 385
• Parties: James ROY, Petitioner-Appellant, v. Thomas Michael COXON, Superintendent, Windsor Correctional Facility, and Joseph Patrisi, Commissioner, Vermont Department of Corrections, Respondents-Appellees. ocket 90-2013.
• Court: U.S. Court of Appeals — Second Circuit

Page 385

907 F.2d 385

James ROY, Petitioner-Appellant, v. Thomas Michael COXON, Superintendent, Windsor Correctional Facility, and Joseph Patrisi, Commissioner Vermont Department of Corrections Respondents-Appellees.

No. 1260, Docket 90-2013.

United States Court of Appeals Second Circuit.

Argued April 25, 1990.

Decided June 29, 1990.

William A. Nelson, Montpelier, Vt. (Walter M. Morris, Jr., Defender General, Montpelier, Vt., on the brief), for petitioner-appellant.

Shelley A. Hill, Windsor County State's Atty., White River Junction, Vt., for respondents-appellees.

Before VAN GRAAFEILAND, NEWMAN, and KEARSE, Circuit Judges.

KEARSE, Circuit Judge:

Petitioner James Roy, a Vermont prisoner convicted of assaulting a police officer, appeals from a judgment of the United States District Court for the District of Vermont, Franklin S. Billings, Jr., Chief Judge, denying his petition pursuant to 28 U.S.C. Sec. 2254 (1988) for a writ of habeas corpus alleging that the state trial court's charge to the jury failed to state that the prosecution was required to prove that Roy knew the person he assaulted was a law enforcement officer, an essential element of the offense, thereby depriving him of due process. The district court denied the petition on the ground that, because Roy

had failed to object to the instructions at trial and the Vermont Supreme Court affirmed Roy's conviction on the basis of his failure to object, his habeas petition was barred by his procedural default. On appeal, Roy contends that procedural-default analysis was inappropriate. For the reasons below, we conclude that the district court should have dismissed the petition on its merits.

I. BACKGROUND

A. The State Court Proceedings

Roy was convicted in Vermont state court on, inter alia, one count of assaulting a law enforcement officer and was sentenced to 6-10 years' imprisonment. The events leading to his conviction were described at trial as follows.

On the evening of January 26, 1987, when Roy finished his work for the day, he bought a fifth of whiskey and, according to his own testimony, drank more than half of it. He then decided to drive to the grocery store. At about 10:00 p.m. a local police officer saw Roy's truck going the wrong way on a one-way street. The officer followed the truck onto a two-way road and observed that it was consistently being driven in the center of the road or completely on the wrong side. The officer flashed his driving lights and put on his siren and flashing blue lights in an attempt to get the driver to pull over. Roy did not stop. The officer radioed for assistance, and a state trooper positioned his car as a roadblock; but Roy drove around it. Eventually, one of the officers forced Roy's truck off the road and into a snowbank. Two other officers, including state trooper Rodney Hall, arrived at the scene.

Roy was pulled from his truck, handcuffed with his hands behind him, and placed in the front passenger seat in Hall's car to be taken to police barracks. During this trip, Roy freed himself from his seatbelt and kicked Hall in the head several times, causing the car to plow into a snowbank. Eventually, Roy was subdued. Among the offenses with which he was charged was assault of Hall as a law enforcement officer.

Roy testified in his own behalf, and stated that he never hit or kicked anyone. When he first saw the blue lights behind him, he did not stop because he was afraid of being arrested for driving while intoxicated. After being followed by this car for eight miles, Roy felt an impact on the rear of his truck. He did not realize those bumping his truck were policemen until he was forced off the road. After being pulled from his truck and handcuffed, the next thing he remembered was being thrown into a police cruiser and being driven to the police barracks. He testified that in the cruiser, he was yelling and screaming, "trying to find out what I was charged with."

Seeking to show that he had acted in self-defense, Roy testified that he merely used his feet to fend off blows aimed at his legs. He did not testify that he did not know that the men taking him to the barracks were police officers. To the contrary, with respect to his knowledge as of the time he was pulled from his truck, he testified as follows:

Q. How soon did another police officer arrive?

A. It weren't [sic ] no time at all. There was [sic ] four or five of them there.

Q. And you knew they were police officers?

A. I--yeah, I would guess that they were.

Q. Well, that's not the question. Did you know that they were police officers? They had their uniforms on, the blue lights were on, did you know they were police officers?

A. Yeah.

The trial judge instructed the jury that, in order to find Roy guilty of assaulting Hall as charged, it was required to find beyond a reasonable doubt (1) that at the time in question Hall was a law enforcement officer, (2) that Hall was then engaged in the performance of his lawful duties, and (3) that Roy purposely caused Hall bodily injury. In addition, state law required the prosecution to prove that Roy Roy appealed his conviction to the Vermont Supreme Court, contending, inter alia, that the trial court's failure to instruct the jury that the state was required to prove he knew Hall was a police officer at the time of the assault was error. The Vermont Supreme Court pointed out that state procedure requires contemporaneous objections to claimed errors in the charge, see Vt.R.Crim.P. 30 ("No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict...."), and proceeded to consider whether Roy should be allowed nonetheless to raise this issue under the state's plain-error rule, see Vt.R.Crim.P. 52(b) ("Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."). Rejecting Roy's contention "that the omission of an essential element of the offense from the charge to the jury is automatically plain error warranting reversal," the court distinguished the cases relied on by Roy, noting that they

knew, or had good reason to believe, the person he was assaulting was a law enforcement officer. See, e.g., State v. Galvin, 147 Vt. 215, 217-18, 514 A.2d 705, 707 (1986). Though the court adverted to a similar knowledge element in connection with its instructions on self-defense, it did not tell the jury that it must find that Roy knew Hall was a police officer in order to find Roy guilty. Roy did not object or otherwise call this omission to the attention of the trial court. The jury found Roy guilty of assaulting Hall as charged, and Roy was sentenced as indicated above.

involved circumstances where the trial court informed the jury that an element had been conceded or tacitly admitted by the defendant. A per se rule is justified in such circumstances because the jury is specifically instructed not to consider the element involved. Here, it is possible that other aspects of the charge will cover the omission at least in part. As the United States Supreme Court pointed out in Henderson v. Kibbe, 431 U.S. 145, 155 [97 S.Ct. 1730, 1737, 52 L.Ed.2d 203] ... (1977): "An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law."

....

We thus adopt the familiar plain error standard for omissions of elements of the offense from the charge to the jury. In State v. Duff, [150 Vt. 329, 554 A.2d 214 (1988) ], we stated this standard as follows:

This is one of those "rare and extraordinary case[s]" ... where "the error in the trial court's charge so affects the substantial rights of this [defendant] that we will notice the error on appeal despite the lack of proper objection."

Id. at , 554 A.2d at 219 (quoting State v. D'Amico, 136 Vt. 153, 157, 385 A.2d 1082, 1085 (1978)); see also Henderson v. Kibbe, 431 U.S. at 154 ... ("It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.").

State v. Roy, 151 Vt. 17, 557 A.2d 884, 888 (1989). The Vermont Supreme Court ruled that the trial court's omission did not affect Roy's substantial rights because the evidence was quite strong that Roy knew Hall was a police officer. It concluded that the omission was not plain error and that Roy was therefore precluded from raising that omission on appeal because of his failure to object at trial. Accordingly, the conviction was affirmed.

B. The Present Habeas Proceeding

Roy then commenced the present proceeding in the district court, seeking a writ of habeas corpus on the ground that the omission in the instructions denied him due process. In an Opinion and Order dated December 11, 1989 ("Decision"), the district court concluded that the petition should be denied on the ground of procedural default. The court found that though the Vermont Supreme Court considered Roy's claim as a whole, it did so only in the context of its plain-error analysis and it then rejected the claim because of his failure to comply with the contemporaneous-objection rule. Concluding that this constituted an adequate Noting that the state-law requirement as to knowledge was clearly established prior to Roy's trial, the court found that there was no cause for the failure to object to the omission in the jury charge. Observing that "[t]he record is replete with evidence that defendant knew that the object of his assault was a police officer," Decision at 5, the court also found that the trial court's error did not result in prejudice. Accordingly, the petition was denied. This appeal followed.

and independent state ground for the rejection of Roy's direct appeal, the district court ruled that the federal habeas petition was barred unless Roy could show "cause" for his failure to object and "prejudice" from the error, see Wainwright v. Sykes, 433...