DocketNumber： 300, Docket 84-2185
Citation Numbers： 752 F.2d 26, 1984 U.S. App. LEXIS 15543
Judges： Newman, Cardamone, Davis
Filed Date： 12/28/1984
Status： Precedential
Modified Date： 10/18/2024
This appeal is from the denial of habeas corpus relief in the Eastern District. Defendant, Thomas Mallette, was convicted in New York State Supreme Court for manslaughter in the first degree after a passenger seated in the front seat of his auto shot and killed a 16-year-old Brooklyn youth. Defendant raises two issues on appeal. He claims, first, that his sentence was enhanced because of his refusal to identify his passenger. Second, he argues, since he himself saw no evil, heard no evil and spoke no evil that the evidence of intent before the state court jury was insufficient to support his manslaughter conviction. Neither argument is persuasive. The State court trial judge did not enhance, but merely refused to show leniency when imposing sentence on defendant. The second argument is flawed because the question for the jury is not whether he heard or spoke evil, but whether he had an intent to do evil.
I
Mallette was indicted for murder in the second degree, attempted murder in the second degree and criminal possession of a weapon in the first degree. The first degree manslaughter count on which he was convicted was a lesser included offense to second degree murder. He was also found guilty of attempted murder and the weapons count. The sufficiency challenge is raised only as to the manslaughter conviction.
When defendant appeared for sentencing, the prosecutor asked that the maximum sentence be imposed because of the nature of the crimes and because the defendant, by refusing to identify the killer, had shown no remorse. Defense counsel argued that Mallette should be shown leniency because he had no prior criminal history and was a 29-year-old married man with children. At sentencing, the state trial judge took Mallette’s assertion that he feared reprisal at face value, but noted that the jury had rejected Mallette's duress claim. The state judge observed that while Mallette may have been afraid to reveal the man’s name:
it thwarts justice and an innocent boy ... of 16 with no prior record of any kind is dead. And if Mr. Mallette were willing to assist us, to bring the other person to justice I would find it very easy to be reasonable and lenient.
The trial judge emphasized that Mallette was an active participant in the homicide and that he had twice driven his car back to the scene of the original shooting while his passenger attempted to kill the other youths at the scene. Finally, the trial judge noted that Mallette had ample opportunity to escape when stopped later by the police. The sentencing court also commented that the defendant had lied when he claimed not to know his passenger’s true identity. Defendant’s sentence was imposed concurrently on all counts: 7 to 21 years on the manslaughter and murder
Appellant then instituted a habeas proceeding in the United States District Court for the Eastern District of New York before Judge Jack B. Weinstein. The district court judge denied defendant’s application for a writ concluding that Mallette failed to raise a constitutional issue that warranted federal intrusion into a state criminal matter.
II
The scenario for this senseless slaying developed as follows. An unidentified corrections officer referred to as “Eddie” and Mallette had met in a Brooklyn bar five or six times before the night of the fatality. Both were residents of Staten Island. After a number of drinks at the same Tollgate Bar on the night of the killing, the two left in Mallette’s green Volkswagen and drove to a park in Brooklyn. They stopped at the corner of Tenth Avenue and 42nd Street. Perez, Martinez and several other youths were sitting on a park bench a few feet away. The youths testified that the occupants of the Volkswagen asked them for cocaine and they responded that they had none and did not know anyone who did. Eddie then summoned Martinez to the car and questioned him again about cocaine. Martinez testified that when he approached the car he observed a gun on Eddie’s lap. When Martinez repeated that he knew of no one selling cocaine, Eddie became abusive. Perez and Jiminez then approached the car to see what was happening. As the two came toward Mallette’s car, Eddie opened fire. Perez cried out: “I’ve been shot.” After Eddie fired three or four more shots, the Volkswagen sped off. Immediately following the shooting of Perez, Mallette made a U-turn and chased Martinez — who was on foot and running — the wrong way up a one-way street, while his passenger fired out the car window at the fleeing youth. After driving once around the park, Mallette then drove back to the same park corner where the youths were now gathered around their wounded friend, Perez. As the car approached, Eddie opened fire again. After this second shooting spree, Mallette and Eddie drove uptown. Mallette testified that Eddie had said that all the kids in that park “deserved what this kid got.” Less than a half hour later, as Perez still was lying in the street with a bullet wound to his stomach, and the other youths were describing the preceding events to police officers, defendant and Eddie returned a third time. When the boys identified the Volkswagen, the police gave chase, but lost defendant’s car. Perez died a few days later.
Later, the same morning, while defendant and his passenger were enroute to Staten Island, a police captain stopped them. When Eddie showed a badge identifying himself as a corrections officer, they were allowed to proceed. The same police officer stopped defendant’s car again a short while later at the entrance to the Verrazano Bridge. Mallette exited the car and produced his license and registration, while his passenger remained seated inside. Mallette said nothing to the captain about the shooting on either occasion. Still later that morning according to Mallette, Eddie threatened to shoot him and his family if he ever said anything about the incident.
Mallette testified in his own behalf. His defense consisted of adopting a posture of “see no evil, hear no evil and speak no evil.” Thus, he testified he stopped his car at the park corner right before the fatal shooting of Perez, because Eddie wanted to, but that he (Mallette) “did not know why” and “did not ask.” Although it was a hot summer night and Eddie was wearing only a shirt and trousers Mallette testified that he did not see the gun in Eddie’s lap that Martinez had observed because he was “looking straight ahead.” He knew that his passenger was a corrections officer.
Ill
The first question presented is whether the trial court impermissibly enhanced defendant’s sentence because of his failure to cooperate due to his fear of reprisal. Mallette argues that the increased sentence violates due process because it bears no relationship to either the actual crime or the offender. He claims that the prosecution’s insistence on his revealing Eddie’s name placed him in the position of choosing between the hard life of long term prison if he refused, and the certitude of reprisal if he cooperated.
In Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980), the Supreme Court held that a defendant’s unexplained lack of cooperation is potentially relevant to his rehabilitation and, thus, may be considered at sentencing. The Court stated that where the failure to cooperate is due to fear of reprisal it would not bear on rehabilitation and “would [merit] serious consideration” by the trial judge. Id. at 559, 100 S.Ct. at 1363. The defendant argues that the “clear implication” of this language is that a trial court cannot enhance the sentence because of defendant’s failure to cooperate due to his fear of reprisal. In United States v. Bradford, 645 F.2d 115 (2d Cir.1981), we explained:
[T]he sentencing judge, in his discretion, may take into account as a mitigating factor the defendant’s voluntary cooperation with the authorities. Nowhere have we suggested that the defendant’s refusal to cooperate may be considered in increasing the sentence he would otherwise receive. It is one thing to extend leniency to a defendant who is willing to cooperate with the government; it is quite another thing to administer additional punishment to a defendant who by his silence has committed no additional offense.
Id. at 117 (quoting United States v. Ramos, 572 F.2d 360, 363 n. 2 (2d Cir.1978)) (emphasis added). We must therefore determine whether the state court sentencing judge enhanced Mallette’s sentence or merely declined to show him leniency. It is doubtful that a “principled distinction may be drawn between ‘enhancing’ the punishment imposed upon the petitioner and denying him the ‘leniency’ he claims would be appropriate if he had cooperated.” Roberts, 445 U.S. at 557, 100 S.Ct. at 1362. Yet, even though the distinction is somewhat illusory, it is the only rule that recognizes the reality of the criminal justice system while protecting the integrity of that system.
Turning to whether the judge did in fact enhance defendant’s sentence, we conclude that the record shows only that the judge declined to show leniency. Whatever indication of enhancement there may be is slight at best. Defendant’s principal argument is that his participation in the shooting was minimal and that nothing in his background justified the heavy sentence. He explained to the judge why he could not cooperate and the judge accepted that claim at face value. Nevertheless, as the state judge explained, the jury had rejected
And if Mr. Mallette were willing to assist us to bring the other person to justice, I would find it very easy to be reasonable and lenient.
This comment merely demonstrates the difficulty of drawing a meaningful distinction between enhancing the sentence and declining to show leniency; it surely does not provide constitutional grounds for reversal. Moreover, the sentence imposed was within statutory limits. In fact, it was not the maximum. The judge expressly and properly considered the gravity of the offense and the need to protect the public. The circumstances of this case are that after the first shooting Mallette drove Eddie back to the scene of the original crime a second time, Eddie opened fire again, and later Mallette drove back a third time. Obviously, a sentencing court could properly find insufficient ground in these circumstances to extend leniency.
IY
The more difficult issue is whether the evidence presented before the jury was sufficient to support a conviction of manslaughter. On a sufficiency question raised in a habeas proceeding, a federal court must assess the historic facts to determine whether the evidence supports the jury verdict. See Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979). The task is to ascertain whether the record evidence on which the trier of fact relied was of sufficient quality to support the verdict. See Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 282, 87 S.Ct. 483, 486, 17 L.Ed.2d 362 (1966). Stated another way, a jury verdict is to be upheld where, taking a view of the case most favorable to the government, there is substantial evidence to support it. See Burks v. United States, 437 U.S. 1, 17, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978); Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). Since it is the trier of fact that weighs the evidence, determines credibility and draws inferences from historic to ultimate facts, a federal court, in analyzing sufficiency, should not “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Woodby v. Immigration and Naturalization Services, 385 U.S. at 282, 87 S.Ct. at 486. The habeas court is not to substitute its view of the evidence for that of the jury. Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. at 2788-89. Instead, it stands in the shoes of the state trial court, and must consider whether a rational trier of fact could properly find or infer that the accused is guilty beyond a reasonable doubt.
Defendant contends that no rational trier of fact could have concluded that the prosecution had proved the intent to cause serious physical injury, which is necessary to sustain a conviction of manslaughter in the first degree. Mallette concedes that there was sufficient proof to support his conviction for the attempted murder of Martinez and possession of the gun because he pursued Martinez with his car and facilitated Eddie’s second round of shooting by driving back. Defendant argues that there was no proof that he shared his passenger’s intent with respect to the initial shooting of Perez. We cannot agree.
What we review here is Mallette’s intent immediately preceding the shooting of Perez. Specifically, whether there was sufficient proof to find beyond a reasonable doubt that Mallette, with intent “to cause serious physical injury to another person,” caused the death of such person or a third person. See N.Y.Penal Law § 125.20 (McKinney 1975). To show intent the government must prove what was in the mind of the accused. Commentators agree that it is seldom possible to present testimonial or direct evidence of an accused’s state of mind. Intent as a separate item of proof does not commonly exist. II J. Wigmore Evidence § 242 (rev. ed. 1979). Thus, whenever intent is an element of a crime, its existence must be inferred by considering the laws that generally govern human conduct. Because intent is formed in the mind in secrecy and silence and the human mind functions at a speed impossible to measure, a determination of whether a deliberate intent was formed must be drawn from all the circumstances of the case. Circumstantial evidence of this subjective fact is therefore indispensable. 2 C. Wright, supra, § 411 (1982). Circumstantial evidence is as persuasive as direct evidence. With each, triers of fact must use their experience with people and events to weigh probabilities. See Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954); Wigmore, Evidence, supra, § 26; C. Wright, supra, § 467.
The jury by its guilty verdict found “intent” on Mallette’s part preceding the shooting of Perez. We must examine the proof to see whether that ultimate fact can be drawn from the historic facts found in the record. Examining the whole complex of interrelated pieces of circumstantial evidence we are satisfied that there were sufficient facts from which a juror could rationally draw the inference that defendant had the requisite intent to commit manslaughter. These basic facts are established: Mallette and Eddie were seeking cocaine at 4 a.m. and at that time Eddie had a gun out and on his lap in plain view. Mallette knew the gun was there. A rational juror could infer from these facts that the pair intended to get cocaine, even if it required using a weapon. Mallette, within a few moments of the first incident, drove his car the wrong way down a one-way street to facilitate Eddie’s shooting at Martinez. Within a short while, he drove to the scene a second time and his passenger again opened fire on the youths. That Mallette’s subsequent commission of the crime of attempted murder occurred soon after the intent on which the original charge of second degree murder is based provides strong evidence to support the ultimate conclusion that he intended “serious physical injury” to these youths when Perez was fatally shot.
New York courts have long held that a defendant’s actions subsequent to a crime are proper evidence of his guilt. See People v. Conroy, 97 N.Y. 62, 80 (1884) (falsehoods and evasions to escape the imputation of crime may be considered by the jury on the issue of evil intent); People v. Pena, 50 N.Y.2d 400, 429 N.Y.S.2d 410, 406 N.E.2d 1347 (1980) (defendant’s possession of a knife in a brown paper bag 20 minutes after incident where victim said defendant pointed bag at him and threatened to shoot is sufficient evidence to find that defendant possessed a “dangerous instrument” in commission of robbery). Further, it is an elementary principle that defendant’s com
A rational trier of fact could have disbelieved Mallette’s testimony that he did not see Eddie’s gun because he was not looking, did not hear because he was not listening, and did not report the crime because he had no chance to speak. A rational juror could have disregarded that testimony as merely self-serving. We conclude, therefore, that a jury could rationally and properly have inferred that the two friends were engaged in a common criminal enterprise to obtain cocaine and were armed and prepared to do grievous bodily harm in the course of their search.
Accordingly, we affirm the order dismissing defendant’s habeas corpus petition.
. The district court judge viewed his role in a habeas corpus proceeding to be different for these purposes than it would be under his federal supervisory powers. Although that was once true, the Supreme Court unequivocally held in Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979), that the standards are identical: a federal habeas corpus court must consider not whether there was any evidence to support a state-court conviction, but whether there was sufficient evidence to allow a rational trier of fact to find guilt beyond a reasonable doubt. Thus, the district court judge incorrectly believed that his judgment was "not necessarily that of the state judge’s.” He felt free to say that he probably would not have let the case go to the jury, despite his conclusion that a rational trier of fact could have found guilt from the record evidence beyond a reasonable doubt. Therefore, he denied the petition “on the substantive ground that I don’t think there is any case for granting the writ.” Despite this inconsistency, we need not remand because we agree with the result reached after examining the record evidence of the state court proceedings, which we are in as good a position to review as the district court.