Washington v. Harris, s. 976

• Decision Date: 08 June 1981
• Docket Number: 1358,81-2015,D,Nos. 80-2396,Nos. 976,s. 976,s. 80-2396
• Citation: 650 F.2d 447
• Parties: Bobby WASHINGTON, Petitioner-Appellee-Cross-Appellant, v. David HARRIS, Superintendent of Green Haven Correctional Facility, Respondent-Appellant-Cross-Appellee. ocket
• Court: U.S. Court of Appeals — Second Circuit

Page 447

650 F.2d 447

Bobby WASHINGTON, Petitioner-Appellee-Cross-Appellant, v. David HARRIS, Superintendent of Green Haven Correctional

Facility, Respondent-Appellant-Cross-Appellee.

Nos. 976, 1358, Docket Nos. 80-2396, 81-2015.

United States Court of Appeals, Second Circuit.

Argued April 3, 1981.

Decided June 8, 1981.

Allen H. Saperstein, Asst. Dist. Atty., Bronx County, New York City (Mario Merola Dist. Atty., Bronx County, Steven R. Kartagener, Asst. Dist. Atty., Bronx County, New York City, of Counsel) for respondent-appellant-cross-appellee.

Barry Bassis, The Legal Aid Society, Federal Defender Services Unit, New York City, for petitioner-appellee-cross-appellant.

Before FEINBERG, Chief Judge, VAN GRAAFEILAND, Circuit Judge, and MALETZ, Judge, United States Court of International Trade. ^*

FEINBERG, Chief Judge:

David Harris, Superintendent of Green Haven Correctional Facility, appeals from an order of the United States District Court for the Southern District of New York, John M. Cannella, J., which granted the amended petition of Bobby Washington for a writ of habeas corpus. Washington cross-appeals from an earlier order of the district court denying his initial habeas corpus petition. For reasons appearing below, we vacate the judgment of the district court, and remand the action to that court.

I.

Only a brief recitation of the facts is necessary to clarify the legal questions at issue in this case. For about two years before June 1973, Washington and his family had been harassed and occasionally assaulted by Peggy Mickens; she and Washington had filed criminal complaints against each other during this time. On June 4, 1973, Washington and his wife were standing in front of their apartment in the Bronx, when Mickens approached and attacked Mrs. Washington with a knife. Washington, in his car, took a pistol from the glove compartment, intervened in the struggle between his wife and Mickens, and shot Mickens through the eye. He then wrested Mickens's knife from her, and slashed her repeatedly all over her body. Mickens died, and Washington was indicted for murder. At trial, there was medical testimony that the bullet wound alone would not have caused Mickens to lose consciousness, and that many of the knife wounds inflicted on her were "defensive," being the product of her attempts to ward off Washington's knife attack, or to grab the knife away. There was also eyewitness testimony that after Mickens fell to the ground, Washington leaned over and stabbed her in the throat; Mickens's throat wounds severed her main throat artery and extended back to her backbone. Washington did not testify and called no witnesses on his behalf. His counsel relied on a theory of self defense, see N.Y. Penal Law § 35.15, and argued that since Washington was acting in defense of his wife and himself, his actions were justified.

In November 1975, Washington was convicted in the New York Supreme Court, Bronx County, of murder in the second degree as well as criminal possession of a weapon in the third and fourth degrees. Washington was sentenced to concurrent terms of fifteen years to life and zero to seven years on these convictions. The Appellate Division affirmed without opinion in 1977; leave to appeal to the New York Court of Appeals was denied, as was Washington's pro se petition for a writ of certiorari to the United States Supreme Court.

In 1979, Washington filed a petition for a writ of habeas corpus, alleging that various errors of constitutional dimension occurred at his trial. Judge Cannella denied the writ in a decision reported at 486 F.Supp. 1037 (1980). The district judge later granted Washington a certificate of probable cause, and Washington took an appeal to this court; thereafter, however, on Washington's motion and with the consent of the State, we remanded the case to the district court for consideration of an amended petition for a writ. It was this amended petition that the district judge granted. He concluded that the state trial court had erred in giving unconstitutional and prejudicial instructions to the jury that convicted Washington. This appeal by the State, and the cross-appeal by Washington, followed.

II.

Appellant first argues that Washington failed to exhaust his state remedies on the issue of the jury instructions, and that the district judge therefore erred in reaching the merits of that issue. The jury instructions in dispute related to the question of intent, which is a necessary element of the crimes of murder in the second degree and criminal possession of a weapon in the fourth degree. ¹ In instructing the jury with respect to the issue of intent in general, the state trial court said:

On the question of intent, you may infer that a person intends that which is the natural and necessary and probable consequences of the acts performed by him and unless the act was done under circumstances to preclude the existence of such intent, you have a right to find from the results produced an intention to effect it.

Later, in instructing the jury with respect to the charge of murder, the trial court reminded the jury of his earlier instruction and further stated that:

(O)n the subject of intent, I charge you that you may consider the condition of the alleged victim, and the number and type of wounds allegedly inflicted as well as any of the other surrounding circumstances you adduce from the evidence in this case which you determine have been proven by evidence beyond a reasonable doubt.

The judge also charged the jury regarding manslaughter, and in the course of this instruction said:

I have already instructed you on the subject of intent. You will recall, intent is a mental operation and can be proved only by facts and circumstances surrounding the acts.

Our law says a person intends that which is the necessary and natural consequence of any act performed by him.

Finally, with respect to the charge of criminal possession of a weapon in the fourth degree, the trial court instructed the jury as follows:

You will observe that intent is an essential element of this crime. You will recall my instruction to you on intent; that it is a mental operation that can be proved only by the facts and circumstances surrounding the act; and a person intends that which is the necessary and natural consequences of any act he performs.

Washington's trial counsel took no exceptions to any of these instructions. Appellant argues that this failure to object at trial prevented the New York Court of Appeals from ever considering the propriety of the instructions, and therefore constituted an incomplete exhaustion of state remedies that now bars Washington from presenting this issue in a federal habeas petition. Appellant cites Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971), and Wainwright v. Sykes, 433 U.S. 72, 87-90, 97 S.Ct. 2497, 2506-08, 53 L.Ed.2d 594 (1977), as support for his position.

This argument is not persuasive. In Callahan v. LeFevre, 605 F.2d 70 (2d Cir. 1979), a case with a procedural history nearly identical to that of the present case, ² this court was presented with a jury instruction that arguably denied a criminal defendant a fair trial, by "remov(ing) the element of intent and the defense of justification from the jury's consideration," id. at 73. We held that the instruction could be challenged in a federal habeas proceeding, even though no objection to that instruction had been raised at trial, so long as the issue was properly raised in the Appellate Division. Id. at 73 n.6. Of course, if the result in Callahan v. LeFevre were inconsistent with Picard v. Connor or Wainwright v. Sykes, we would not follow Callahan. But there is no such inconsistency. Picard v. Connor directs federal courts to require that state prisoners "normally exhaust available state judicial remedies before (the courts entertain) petition(s) for habeas corpus," 404 U.S. at 275, 92 S.Ct. at 512. Wainwright v. Sykes held that when a state criminal defendant failed to challenge the validity of his confession at trial, thereby waiving state appellate review of the issue, federal habeas review of that issue was barred as well, absent a showing of "cause" for the failure to timely challenge the confession, and of actual "prejudice" arising from its admission at trial. Wainwright v. Sykes was based on the principle of comity; the Court reasoned that federal courts should not undercut the valuable contemporaneous-objection requirement adopted by many states. This reasoning would apply to the present case only if it were established, first, that New York actually had a contemporaneous-objection requirement for claims such as the one Washington now advances, and, secondly, that this requirement was actually enforced by the state courts themselves. On the record before us, we cannot conclude that these prerequisites are both satisfied.

New York has long had a contemporaneous-objection requirement for most claims asserted on appeal. But it is well established that "no exception is necessary to preserve for appellate review a deprivation of a fundamental constitutional right." People v. McLucas, 15 N.Y.2d 167, 172, 256 N.Y.S.2d 799, 204 N.E.2d 846 (1965). In People v. Patterson, 39 N.Y.2d 292, 383 N.Y.S.2d 573, 347 N.E.2d 898 (1976) decided while Washington's state appeal was pending the New York Court of Appeals construed the exception described in McLucas to apply to a defendant's contention, not raised at trial or before the Appellate Division, that the instructions given to his jury had improperly shifted the burden of proof onto him on an important jury question. The Patterson court held that "the error complained of (went) to the essential validity of the proceedings conducted below," and therefore held the defendant's contention to be reviewable as "a question of law." Thus, when the Appellate Division affirmed Washington's conviction in 1977, Patterson represented...