Stubbs v. Smith

• Decision Date: 02 April 1976
• Docket Number: D,No. 517,517
• Citation: 533 F.2d 64
• Parties: William STUBBS, Appellant, v. H. J. SMITH, Superintendent, Attica Correctional Facility, Appellee. ocket 75-2124.
• Court: U.S. Court of Appeals — Second Circuit

Page 64

533 F.2d 64

William STUBBS, Appellant, v. H. J. SMITH, Superintendent, Attica Correctional Facility, Appellee.

No. 517, Docket 75-2124.

United States Court of Appeals, Second Circuit.

Argued Dec. 11, 1975.

Decided April 2, 1976.

Richard A. Greenberg, The Legal Aid Society, New York City (William J. Gallagher, New York City, of counsel), for appellant.

Rhonda Amkraut Bayer, Deputy Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, of counsel), for appellee.

Before OAKES, VAN GRAAFEILAND and MESKILL, Circuit Judges.

OAKES, Circuit Judge:

This appeal is from a denial of a writ of habeas corpus in respect to a state court conviction for unlawful possession of a loaded firearm. ¹ Appellant seeks to raise the question of the constitutionality of the New York statutory presumption of possession of a weapon based on presence in an automobile where such weapon is found. ² He appeals from an order of the United States District Court for the Western District of New York, John T. Curtin, Judge, denying his petition for the writ. The State contends that the question of constitutionality was not raised either in the district court or in the state courts and that in any event it was waived by failure to object to the charge of the statutory presumption to the jury; the State also suggests that in the light of the evidence the charge of the statutory presumption was at most only harmless error. We affirm.

Appellant was convicted after a jury trial in Monroe County Court, New York, of the crimes of assault in the first degree and unlawful possession of a loaded firearm. He was sentenced as a second felony offender to consecutive terms of imprisonment of 13 to 14 years on the weapon charge and 19 to 20 years on the assault. ³ After the presentation of evidence which will be set forth below, appellant's counsel requested and was granted a charge to the effect that one element of the crime of possession is that the possession has to be knowing. The State then requested and was granted a charge under then § 1899(3) of the New York Penal Law, note 2 supra, that a gun found in a car may be presumed to be possessed by every occupant. ⁴ No objection was taken to the charge of the presumption, and the argument that the statute was unconstitutional was not made on appeal to the Appellate Division, which affirmed the conviction, 30 A.D.2d 777, 292 N.Y.S.2d 375 (1968); reargument was denied, 30 A.D.2d 932, 293 N.Y.S.2d 758 (1968), leave to appeal denied by the New York Court of Appeals, and certiorari denied, 393 U.S. 1108, 89 S.Ct. 918, 21 L.Ed.2d 804 (1969).

The evidence at the Monroe County Court trial was that on March 29, 1966, Mark Wunder, a man with considerable military experience in World War II, heard his dog barking shortly after 9:00 p. m. He let his dog out and, when she continued barking quite a bit, he stepped outside to investigate. As they walked along an arborvitae hedge, the dog sniffing excitedly, Wunder saw a man who was crouched wearing an Army-type parka with a hood. The man stood up and left hurriedly, and Wunder followed him, seeing him with his face illuminated by a street light at about 50 feet. Now at a trot, Wunder yelled for help from his next-door neighbor, a New York detective, Lt. George Reiss, and continued to pursue the prowler, whom he subsequently identified as appellant Stubbs. Stubbs turned, covering the lower part of his face with a dark or black cloth, and told Wunder not to follow him any more. Wunder stopped briefly and then, as he continued to follow, Stubbs turned and fired a gun at him. Wunder then tried "to get distance between us," and heard bullets from a second and a third shot whiz closely by. After noting the direction of Stubbs' flight Wunder ran back to Lt. Reiss's house. Reiss got his own gun, and the two got into an unmarked police car he had at home at the time and drove to where Wunder had last seen appellant. They observed a dark colored 1957 or 1958 Cadillac cruising slowly, with an "LN" license plate, driven by a blond woman with a ponytail. After tailing the Cadillac for some blocks Lt. Reiss took Wunder home to notify the police of his assailant's description. Wunder then got his own licensed pistol and his own car to cruise in search of his assailant. Reiss continued to drive around and, spotting the same Cadillac driving slowly, observed it pull into the driveway at the Mt. Hope Shopping Center. There Reiss saw a figure moving swiftly about five or six feet behind the car going toward the driver's side. The figure was short, stocky and wearing a three-quarter length, dark-colored parka with a hood, thus fitting the description of the prowler given to him by Wunder. The suspect got into the driver's seat and the Cadillac drove directly out in front of Lt. Reiss, who noted that it did have the same license plate that he had previously seen. He radioed in to other police cars requesting assistance to set up a road block. The Cadillac picked up speed with Reiss following 50 to 60 feet back for seven or eight blocks until a police car with its flasher on stopped the Cadillac. Reiss ordered the driver out of the car at gunpoint and placed him under arrest. That man was appellant Stubbs. His blond ponytailed companion, Shirley Miller, was also arrested and later indicted with him. Reiss searched Stubbs immediately, finding a "black kerchief cloth" in his pocket, and then searched the vehicle, finding a .22 caliber revolver loaded with six .22 caliber rounds in a holster in the glove compartment. The Cadillac turned out to be registered to and owned by Stubbs. Also found in the glove compartment was a belt containing cartridges for a .22 caliber revolver; three loops of the belt happened to be empty. One bullet from the belt was test-fired and the cartridges in the belt were of the same ammunition as those in the revolver. Additionally two boxes of .22 long rifle ammunition were found in the glove compartment. The foregoing evidence stood uncontradicted as the defense called no witnesses.

Before the trial codefendant Shirley Miller pleaded guilty to possession of a weapon as a misdemeanor and received a one-year prison term. Prior to imposition of sentence on appellant Stubbs on October 7, 1966, he spoke on his own behalf and objected to the fact that he had been convicted of possession of a weapon when "no evidence shows it belonged to him, or he knew of its existence, when another person has pleaded guilty to the ownership and possession of the same .22 caliber revolver," a fact which the jury never knew. The court denied his "motion."

In the federal district court the instant pro se habeas corpus petition stated that there was

no evidence submitted that the petitioner knew anything about this firearm in his car, (and) the trial judge still failed to inform the jury that the petitioner had a codefendant, and went on to charge the jury on the illegal possession count as if the petitioner was in the car by himself.

Appointed counsel in the district court raised two issues. ⁵ We are concerned here only with the substance of one of them: whether the use of the presumption of possession where a codefendant has already pleaded guilty to possession of the weapon is a violation of due process.

Appellant argues here that the New York statutory presumption, which has been held to be constitutional by the New York courts in the past, ⁶ is irrational or arbitrary and hence unconstitutional under the test of Leary v. United States, 395 U.S. 6, 36, 89 S.Ct. 1532, 1548, 23 L.Ed.2d 57, 81 (1969). The State alleges that this issue was never presented to the district court and that we may not therefore review it here. See United States ex rel. Springle v. Follette, 435 F.2d 1380, 1384 (2d Cir. 1970), cert. denied, 401 U.S. 980, 91 S.Ct. 1214, 28 L.Ed.2d 331 (1971). More specifically, the State contends that the argument below as to the unconstitutionality of the statutory presumption was narrowly limited to the question whether use of the presumption is a denial of due process where a codefendant has pleaded guilty to possession. It is true, and appellant concedes, that greater emphasis was placed in the court below on the context of the codefendant's plea than has been placed here; the State itself concedes, however, that appellant's assigned counsel urged the district court that "the use of the presumption of possession in (appellant's) case was prejudicial and in violation of his constitutional right to due process of law." In light of the substance of appellant's pro se petition, see Ham v. North Carolina, 471 F.2d 406, 407 (4th Cir. 1973), and the language of Judge Curtin's consideration of appellant's due process claim, we reject the State's argument that the issue here is a new one and hence unreviewable.

In his opinion below Judge Curtin first disposed of the claim that the exception to the presumption under § 1899(3)(a) should have applied, see note 2 supra, by holding that since possession need not be exclusive or actual but may be joint and constructive, Shirley Miller's guilty plea could not be equated with actual possession "upon her person" as required by the § 1899(3)(a) exception. Going on to evaluate the presumption "from a constitutional standpoint," Judge Curtin cited the test of Barnes v. United States, 412 U.S. 837, 843, 93 S.Ct. 2357, 2361, 37 L.Ed.2d 380, 386 (1973):

(I)f a statutory inference submitted to the jury as sufficient to support conviction satisfies the reasonable-doubt standard (that is, the evidence necessary to invoke the inference is sufficient for a rational juror to find the inferred fact beyond a reasonable doubt) as well as the more-likely-than-not standard, then it clearly accords with due process.

This reliance upon Barnes indicates that the district court did indeed consider whether § 1899(3) conformed to the general constitutional criteria for due...