Victory v. Bombard, 260

• Decision Date: 16 January 1978
• Docket Number: D,No. 260,260
• Citation: 570 F.2d 66
• Parties: Albert VICTORY, Petitioner-Appellee, v. Roy BOMBARD, as Superintendent of Greenhaven Correctional Facility, Respondent-Appellant. ocket 77-2075.
• Court: U.S. Court of Appeals — Second Circuit

Page 66

570 F.2d 66

Albert VICTORY, Petitioner-Appellee, v. Roy BOMBARD, as Superintendent of Greenhaven Correctional Facility, Respondent-Appellant.

No. 260, Docket 77-2075.

United States Court of Appeals Second Circuit.

Argued Oct. 13, 1977.

Decided Jan. 16, 1978.

Henry J. Steinglass, Asst. Dist. Atty., New York City (Robert M. Morgenthau, Dist. Atty. for New York County, Peter L. Zimroth and Mark Dwyer, Asst. Dist. Attys., New York City, of counsel), for respondent-appellant.

Henry Winestine, New York City (William E. Hellerstein, New York City, of counsel), for petitioner-appellee.

Before SMITH, MANSFIELD and OAKES, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

This is an appeal from a judgment of the United States District Court for the Southern District of New York, Robert J. Ward, Judge, granting a writ of habeas corpus to a state prisoner on the ground of constitutional error in his conviction for felony murder.

In 1970 Albert Victory was convicted and sentenced for felony murder in the Supreme Court of the State of New York for New York County. Judgment was affirmed without opinion in the Appellate Division, First Department (38 A.D.2d 689, 327 N.Y.S.2d 544 (1971)) and by the New York Court of Appeals, sub nom. People v. Bornholdt, 33 N.Y.2d 75, 350 N.Y.S.2d 369, 305 N.E.2d 461 (1973), cert. denied, 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 109 (1974). A motion for reargument was denied by the New York Court of Appeals on June 15, 1976. Victory applied for a writ of habeas corpus in the United States District Court for the Southern District of New York alleging constitutional deficiencies in the state trial court's ruling on evidence, charge on the elements of the crime and instructions on an affirmative defense. The district court, Robert J. Ward, Judge, granted habeas relief on the claimed deficiency in the charge (432 F.Supp. 1240 (1977)). The State of New York appealed and we assumed jurisdiction under 28 U.S.C. § 2253. We find no error in any of the state court's rulings. Accordingly, we reverse and remand with instructions to deny habeas relief, discharge the writ and dismiss the action.

Evidence at trial, which the jury was entitled to credit, established that on the night of October 6-7, 1968, Victory, driving a car with Robert Bornholdt as passenger, sped through a red light at Fifth Avenue and 54th Street in Manhattan. He was pursued by John Varecha, a New York City police officer, to his destination, Arthur's Discotheque. There Varecha sought to question Victory and Bornholdt. The two suspects assaulted the patrolman. Varecha struck back with his nightstick, drew his gun and told them they were under arrest. Victory and Bornholdt then slowly backed away and drew Varecha into a nearby alley. There Bornholdt drew a gun and fatally wounded Varecha.

Victory was tried for felony murder (N.Y.Penal L. § 125.25(3) (McKinney 1967)) predicated upon the crime of escape in the second degree (id. § 205.10(2)). To convict Victory the jury had to find that Bornholdt and he escaped from custody after Officer Varecha had arrested them for a felony and that the policeman was shot in the course of or in furtherance of this escape. In order to establish that the escape had followed an arrest for a felony, the State attempted to show that Victory had committed an assault in the second degree (id. § 120.05(3)) during the scuffle in front of Arthur's by kicking Varecha in the groin, thereby impairing his physical condition or causing him substantial pain (id. § 10.00(9)).

In his application for habeas relief Victory asserted three constitutional claims: (1) denial of due process because the trial judge failed clearly to instruct the jury that they had to find an escape had occurred before the shooting to convict; (2) denial of the sixth amendment right of confrontation because the trial judge refused to allow into evidence certain documents which could have impeached the testimony of the prosecution's main witness; and (3) denial of due process because the trial judge instructed the jury that Victory had the burden of establishing the proof of an affirmative defense to the charge of felony murder.

Victory argues that the charge to the jury and an instruction which the judge gave in response to a question from the jury were so unclear as to permit the jury to convict Victory on the false assumption that he could be guilty of felony murder if he attempted to escape only after the shooting. A review of the record reveals no support for this contention.

In charging the jury ¹ the trial judge explained several times that it was necessary for them to find that an escape was being committed at the time Varecha was shot in order to convict Victory of felony murder. For example, "the prosecution must show that during the commission or attempted commission of the crime of escape in the second degree, and in the course of and in furtherance of that crime, or the immediate flight therefrom, a defendant caused the death of a person other than one of the participants."

Both the crime of felony murder and the crime of escape in the second degree were submitted. After retiring, the jury asked for a re-reading of the law of escape, and twice for a re-reading of testimony about events prior to the shooting. Later on, the jury asked "As a matter of law, does the fact of flight after the shooting itself establish escape in the second degree after an arrest has been made for felony assault?" The trial judge gave a response to which Victory's counsel excepted, claiming that the response "has definitely left an impression with that jury that the flight after the homicidal act would be sufficient for purposes of making out a felony murder." ² The judge indicated that there was no "categorical" answer to the question posed, carefully stated what the jury would be required to find for a conviction of escape in the second degree, then re-read the statutory definition of felony murder which, as the jury had often heard, requires death be caused in the course of or in furtherance of a predicate crime. The trial judge then re-read the indictment and concluded with further instructions on the crime of escape in the second degree. Although the response might have been more lucid, the trial judge's instruction could not have led the jury to convict for felony murder on the assumption that they could do so if they found that escape occurred only after the shooting. ³ Consequently, we conclude that the district court was in error in finding constitutional error in the charge.

Victory claims that he was denied the sixth amendment right of confrontation because the trial judge refused to allow the introduction of certain documents into evidence.

At trial, Francisco Garcia, the State's main witness, testified that Victory grabbed Varecha by his jacket and kicked him in the groin "very hard . . . lifting the policeman up." Victory's counsel attempted to introduce into evidence notes written by Detective Byrne of statements made by Garcia at the stationhouse shortly after the shooting and a stenographic transcript of an interview with Garcia by Assistant District Attorney Dannett about two hours after Garcia spoke to Byrne. Byrne's notes state: "I (Garcia) jumped on tan guy's (Bornholdt's) back and the tan one struck him & kicked him in the groin." The transcript contains no mention of a kick to Varecha's groin. Victory's counsel claimed that because neither the handwritten notes nor the transcript mentioned that Victory kicked Varecha in the groin, these documents were evidence of "prior inconsistent statements" and attempted to introduce them into evidence as such. The trial judge refused to admit these documents into evidence. ⁴ Prior inconsistent statements may be used to impeach the credibility of a witness, but to admit specific statements the trial judge must be persuaded that they are indeed inconsistent. United States v. Hale, 422 U.S. 171, 176, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1974).

The omissions and variously recorded statements were not necessarily inconsistent with any aspect of Garcia's testimony. "In most circumstances silence is so ambiguous that it is of little probative force." United States v. Hale, supra, 422 U.S. at 176, 95 S.Ct. at 2136. In any case, the failure to admit the notes and transcript into evidence was harmless in light of the support given to Francisco Garcia's trial testimony by other witnesses who testified at trial and by notes taken by Attorney Dannett. Donna Garcia, Francisco's wife, stated that Victory "brought his knee up, and just kicked the policeman in the groin." Theresa Gentry declared that Victory from the front and Bornholdt from the rear were "kicking and punching" Varecha and that "(t)he next thing I noticed (was) that the policeman was all hunched over, doubled over with one hand right across his stomach." Maureen LaGuardia told the jury that Varecha "was like bent over a little" and "his face was contorted in pain." In addition, Dannett's notes, taken before his interview with Garcia, read "pt1 kicked & holding himself in groin." ⁵ We agree with the judge below that any error which may have resulted from the exclusion of Byrne's notes and the transcript was not prejudicial.

Victory contends that he was denied due process because he was required to bear the burden of establishing the proof of an affirmative defense to felony murder. The district court did not pass upon this claim. Following the recent Supreme Court decision in Patterson v. State of New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), this court upheld the constitutionality of a New York statute placing on a defendant the burden of proving as an affirmative defense that the weapon used to commit a robbery was unloaded or inoperative. Farrell v. Czarnetsky, 566 F.2d 381 (...