04-5518-pr Policano v. Herbert

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 August Term, 2004

4 (Argued: July 11, 2005 Final Submission: June 4, 2007

5 Decided: September 19, 2007)

6 Docket No. 04-5518-pr

7 -------------------------------------

8 DAVID POLICANO,

9 Petitioner-Appellee,

10 - v -

11 VICTOR T. HERBERT,

12 Respondent-Appellant.

13 -------------------------------------

14 Before: POOLER and SACK, Circuit Judges, and GARAUFIS, District 15 Judge.*

16 The United States District Court for the Eastern

17 District of New York (John Gleeson, Judge) granted the petitioner

18 habeas corpus relief under

on the ground that

19 the state violated his constitutional right to due process

20 because the evidence of his guilt was insufficient to support his

21 conviction in New York Supreme Court, Kings County for depraved

* The Hon. Nicholas G. Garaufis, of the United States District Court for the Eastern District of New York, sitting by designation. 1 indifference murder under

(2). In an

2 earlier opinion, Policano v. Herbert,

(2d Cir. 2005),

3 this panel concluded that the judgment of the district court

4 should be affirmed. In light of the answer of the New York Court

5 of Appeals to a question of law subsequently certified to it by

6 this Court, as well as other factors, that opinion is withdrawn,

7 and the judgment of the district court is:

8 Reversed, and the case remanded.

9 RHEA A. GROB, Assistant 10 District Attorney (Charles J. 11 Hynes, District Attorney Kings 12 County, Leonard Joblove & Ann 13 Bordley, Assistant District 14 Attorneys, of counsel), 15 Brooklyn, NY, for Respondent- 16 Appellant.

17 Richard Ware Levitt, New York, 18 NY, for Petitioner-Appellee. 19 SACK, Circuit Judge:

20 I.

21 David Policano, acting pro se, brought this application

22 for habeas corpus under

in the United States

23 District Court for the Eastern District of New York. He sought

24 relief from his conviction in New York Supreme Court, Kings

25 County, of depraved indifference murder under N.Y. Penal Law

26 § 125.25(2). The conviction had been affirmed in the state

27 courts by the Appellate Division. People v. Policano,

,

(2d Dep't 2000). His application for

29 permission to appeal that decision to the New York Court of

2 1 Appeals had been denied. People v. Policano,

, 749

,

(2001) (Smith, J.).

3 It was undisputed at trial that Policano had threatened

4 to retaliate against one Terry Phillips after Phillips hit

5 Policano in the head with a metal pipe, sending him to the

6 hospital. On the evening of January 27, 1997, just six days

7 after the incident, at a neighborhood bus stop, Phillips was shot

8 at close range, three times in the head and neck, and once in the

9 leg, killing him. One witness to the event, who knew both

10 Policano and Phillips, testified that he saw Policano at the

11 scene and at the time of the shooting. Although the witness

12 could not see Policano's face at the moment of the shooting, he

13 identified Policano on the basis of his presence there and his

14 clothing. Two other witnesses said they saw a person running

15 from the scene carrying a white bag. They described that person

16 as, inter alia, slender and a dark-skinned black man. Policano

17 was neither. Policano testified in his own defense, among other

18 things, that he was elsewhere at the time of the crime.

19 The trial judge charged the jury, inter alia:

20 As you have become aware during the course of 21 this trial a main issue in this trial is the 22 identification of the defendant, David 23 Palicano [sic],1 as the person who committed 24 the crimes of murder second degree on or 25 about January 27, 1997. The People have the 26 burden to prove to your satisfaction beyond a 27 reasonable doubt not only all of the 28 essential element[s] of the crime as I have

1 The defendant was referred to as "Palicano" throughout the trial transcript, until sentencing.

3 1 instructed you, but also that the defendant, 2 David Palicano, is the person who committed 3 them. 4 Trial Tr. at 561.

5 The court, over the objection of the defendant, who had

6 sought dismissal of the depraved indifference count, instructed

7 the jury at some length as to the elements of depraved

8 indifference murder, under the first count in the indictment,

9 concluding: "On [the] other hand, if you find that the People

10 have not proven beyond a reasonable doubt any one or more of

11 those elements, you must find the defendant not guilty of the

12 crime of murder in the second degree as charged in the first

13 count."

. The court then instructed the jury on count

14 two, intentional murder in the second degree.

.

15 After several hours of deliberation, the jury returned

16 a verdict of guilty on count one, depraved indifference.

at

17 574-75. The jurors were polled,

, and then excused,

18

. They did not render a verdict on count two, the

19 intentional murder count.

20 II.

21 After appointing counsel to represent Policano and

22 having received briefing and argument, the district court (John

23 Gleeson, Judge) granted Policano's petition for habeas relief.

24 Policano v. Herbert,

,

25 (E.D.N.Y. Sept. 7, 2004) ("Policano I"). In Policano v. Herbert,

26

(2d Cir. 2005) ("Policano II"), an opinion in which

27 we affirmed the judgment of the district court, we summarized:

4 1 "The district court concluded that Policano's petition for habeas

2 corpus must be granted because 'according to the evidence, he

3 intentionally committed [Phillips's homicide] if he committed it

4 at all.' We agree."

-89 (quoting Policano I, 2004

, at *2,

, at *4). In doing

6 so, we concluded that under New York State law,

7 the rule that depraved-indifference murder 8 and intentional murder are mutually exclusive 9 crimes was established well before Policano's 10 trial and state appeal. See [People v. 11 Gallagher,

,

,

(1987)]. 13 Gallagher set forth clearly the standard we 14 apply today, stating in plain language that a 15 defendant has not committed depraved 16 indifference murder if he "acts intentionally 17 in shooting a person to death."

18

.

19 In the course of considering the appeal, we noted that

20 one of the respondent's arguments had been made for the first

21 time before us on appeal -- that the depraved indifference murder

22 charge was buttressed by eyewitness trial testimony to the effect

23 that shortly before the Phillips murder, Policano had shared a

24 "dime [ten dollar] bag" of "crack" cocaine with two other

25 people.2 Applying Gallagher, however, we could not find "any

2 The evidence was contained in testimony elicited in response to questions by Policano's lawyer during the cross- examination of witness Jimmy Sprye, in whose Fort Greene apartment Policano spent part of the evening of the murder.

Q: When they [Policano and a woman] came in, you started smoking crack? A: That's what that day [sic], yeah. Q: How long are you smoking crack before they

5 1 evidence in the record to justify an inference that such an

2 exposure to drugs would have so intoxicated Policano forty-five

3 minutes or more later that he could have shot Phillips three

4 times in the head at close range without meaning to kill him. We

5 therefore reject[ed] the state's argument in this regard."

6 at 91.

7 The mandate in Policano II never issued. Instead, on

8 June 21, 2006, we certified to the New York Court of Appeals

9 principally the following question:

10 On March 30, 2001 (the date on which 11 petitioner Policano's conviction became 12 final), under the law of the State of New 13 York as established by, inter alia, People v. 14 Gallagher,

,

, 15

(1987), where the evidence 16 produced at trial indicated that if the 17 defendant committed the homicide at all, he 18 committed it with the conscious objective of 19 killing the victim, would a jury be permitted 20 to find that the elements of depraved 21 indifference murder were satisfied beyond a 22 reasonable doubt?

left? A: Before they left, I don't know. They had dimes, dime bag. Three people on a dime bag, how much can you, I mean, how much can you smoke? Trial Tr. at 277-78.

6 1 Policano v. Herbert,

(2d Cir. 2006).3 On the

2 same day, based largely on the fact of certification, this Court

3 denied rehearing en banc, Policano v Herbert,

(2d Cir

4 2006) (per curiam), with five judges dissenting from the denial,

5 see

(Raggi, J., joined by Walker, C.J., Jacobs,

6 Cabranes, and Wesley, JJ., dissenting);

(Wesley, J.,

7 joined by Raggi, J., dissenting).

8 III.

9 In Policano v. Herbert,

,

,

10

(2006) ("Policano III"), the New York Court of

11 Appeals responded to our certification. The Court explained that

12 our reliance on both Gallagher and the Court's 2004 decision in

13 People v. Gonzalez,

,

, 775

, 227 (2004), had been mistaken.

15 [At the relevant time,] Gallagher was read as 16 limited to charging procedure. Indeed, we 17 said as much ourselves in [People v. Sanchez, 18

,

,

3 The other questions we certified were: 2. At the time Policano's conviction became final, what were the established elements of depraved indifference murder? 3. Does the interpretation of

(1) and (2) set forth in People v. Payne,

,

,

(2004) and People v. Gonzalez,

,

,

(2004), state the correct interpretation of the law of New York with respect to the elements of depraved indifference murder on the date Policano's conviction became final?

7 1

(2002)] when we concluded 2 that strong proof of intent did not foreclose 3 the jury from finding recklessness and 4 depraved indifference. Even though the 5 defendant in Sanchez pressed arguments of 6 legal insufficiency based on Gallagher, the 7 Sanchez majority did not mention Gallagher. 8 Id. at 600 (internal citations altered and omitted). At the time

9 the defendant's conviction became final, it was People v.

10 Register,

,

,

(1983),

11 cert. denied,

(1984), -- not Gallagher -- that

12 governed the legal sufficiency of the evidence needed to

13 establish guilt for depraved indifference murder. Policano III,

14

. The formulation of the law established by

15 Register "remained static through [the Court's] decision in

16 [Sanchez]."

. Sanchez therefore "reaffirmed

17 Register."

The Court also explained that by the time of its

18 2004 post-Sanchez decision in Gonzalez, on which we and the

19 district court had relied, the relevant law had begun to change.

20

. Gonzalez, like Gallagher, therefore did not reflect

21 the applicable law for purposes of Policano's petition.

22 The Court of Appeals explained further:

23 [I]t has never been permissible in New York 24 for a jury to convict a defendant of depraved 25 indifference murder "where the evidence 26 produced at trial indicated that if the 27 defendant committed the homicide at all, he 28 committed it with the conscious objective of 29 killing the victim" (in the words of the 30 first [and principal] question). As 31 discussed at some length, however, under 32 Register -- and until we started to recast 33 "under circumstances evincing a depraved 34 indifference to human life" post-Sanchez -- 35 where both intentional and depraved

8 1 indifference murder were charged in one-on- 2 one shootings or knifings, these counts were 3 submitted to the jury for it to sort out the 4 defendant's state of mind unless there was 5 absolutely no evidence whatsoever that the 6 defendant might have acted unintentionally. 7 That a defendant's acts virtually guaranteed 8 the victim's death did not, in and of itself, 9 preclude a guilty verdict on a theory of 10 depraved indifference. To the contrary and 11 as the dissenters in both Register and 12 Sanchez vociferously protested, under the 13 Register formulation the very facts 14 establishing a risk of death approaching 15 certainty and thus presenting compelling 16 circumstantial evidence of intent -- for 17 example, a point-blank shooting of the victim 18 in the head -- likewise demonstrated depraved 19 indifference. This was the law of the State 20 of New York at the time defendant's 21 conviction became final. 22

.

23 The Court of Appeals continued, 24 As the People point out, the jurors heard 25 evidence that defendant ingested crack 26 cocaine approximately 45 minutes before 27 shooting Phillips, and that the final shot to 28 his helplessly prone victim hit his thigh, 29 not a vital organ. Although there was 30 certainly reason to believe that defendant 31 may have borne a grudge against Phillips, 32 there is considerable doubt that he acted 33 with premeditation or sought out Phillips to 34 seek revenge (a factual distinction between 35 this case and Gonzalez bearing on intent); 36 the violence here seems to have erupted 37 spontaneously after a chance encounter on the 38 street. Defendant shot Phillips in the head 39 and neck three times at a range of three to 40 five feet in a public place, an urban bus 41 stop. And most critically of all, we had not 42 yet decided any of our cases cutting back on 43 Register. We had not yet even decided 44 Sanchez, which ratified Register's continued 45 authority.

9 1

.4

2 IV.

3 "[A] federal court is prohibited from granting the

4 [application for habeas corpus] unless the state court's

5 adjudication 'resulted in a decision that was contrary to, or

6 involved an unreasonable application of, clearly established

7 Federal law, as determined by the Supreme Court.'" Brown v.

8 Greiner,

(2d Cir. 2005) (quoting 28 U.S.C.

9 § 2254(d)). As we have interpreted this standard, "we decide not

10 whether the state court correctly interpreted the doctrine of

11 federal law on which the claim is predicated, but rather whether

12 the state court's interpretation was unreasonable in light of the

13 holdings of the United States Supreme Court at the time." Id.

14 "[I]n a challenge to a state criminal conviction brought under 28

. . . the applicant is entitled to habeas corpus

16 relief if it is found that upon the record evidence adduced at

17 the trial no rational trier of fact could have found proof of

18 guilt beyond a reasonable doubt." Jackson v. Virginia,

307, 324 (1979). The operative Supreme Court holding at the time

20 Policano's conviction became final was In re Winship,

358 (1970), which announced a constitutional rule, as interpreted

22 by Jackson, "that the Due Process Clause of the Fourteenth

4 To paraphrase our observation about the district court's use of post-conviction New York State case law, the Court of Appeals used Sanchez as a means of understanding the applicable law as it existed at the time of Policano's trial and appeal. See Policano II,

. 10 1 Amendment protects a defendant in a criminal case against

2 conviction 'except upon proof beyond a reasonable doubt of every

3 fact necessary to constitute the crime with which he is

4 charged.'" Jackson, 443 U.S. at 315 (quoting Winship,

). Our review is therefore to determine whether the state

6 court adjudication is contrary to, or an unreasonable application

7 of, the Winship rule as interpreted by Jackson on a petition for

8 a writ of habeas corpus. "[A] petitioner bears a very heavy

9 burden in convincing a federal habeas court to grant a petition

10 on the grounds of insufficiency of the evidence." Fama v. Comm'r

11 of Corr. Servs.,

(2d Cir. 2000).

If the issue to be decided today were whether, under

14 the facts as we understood them at the time of our decision in

15 Policano II or as the district court understood them at the time

16 of its decision in Policano I, we now would be required, in light

17 of the New York Court of Appeals decision in Policano III, to

18 reverse the district court's grant of Policano's application for

19 habeas relief, the answer, for us, would not be an easy one. We

20 are still not convinced, despite the evidence relating to "crack"

21 ingestion, the shot to the thigh and other circumstances of the

22 crime, that the record as we understood it at the time of

23 Policano II,

, included what amounts to

24 evidence that Policano might have acted unintentionally, Policano

25 III,

.

11 1 That question, however, is now moot. A rereading of

2 the trial record reveals that in addition to the evidence of

3 Policano's crack usage prior to Phillips's death, Policano

4 himself testified that he had been at a methadone clinic the

5 afternoon of the murder, Trial Tr. at 387; that late the same

6 afternoon or during the evening he "used" "three [or] four" bags

7 of heroin, id. at 390; and that he consumed some alcohol that

8 night, too, id. at 406.5 In light of this testimony, in addition

9 to the well-accepted principle of New York penal law that

10 voluntary intoxication can negate the mens rea of intent but not

11 recklessness, see

("[E]vidence of

12 intoxication of the defendant may be offered by the defendant

13 whenever it is relevant to negative an element of the crime

5 Curiously, the respondent never called this testimony to our attention, or, for that matter, to that of the district court or the New York Court of Appeals. To our dismay, we did not discover it except upon further review of the trial transcript after Policano III was decided. It is for that reason that it is not reflected in our opinion in Policano II, or, we suppose, in the opinion of the district court in Policano I, our colleagues' dissent from denial of en banc review, or the Court of Appeals's decision in Policano III. We solicited and received supplemental briefing on the implications, if any, of this evidence on our deliberations. We are permitted to consider the other evidence at trial as to Policano's drug use as part of our de novo review of "the record evidence adduced at the trial." Jackson, 443 U.S. at 324; see also United States v. Espaillet,

(2d Cir. 2004) (reversing the district court's judgment of acquittal notwithstanding the verdict "[a]fter searching the record"); United States v. Walker,

(2d Cir. 1999) ("In considering [a sufficiency of the evidence] challenge, we review all of the evidence presented at trial. . . ."), cert. denied,

(2000). 12 1 charged."); see also Register,

(affirming trial

2 court's decision to instruct the jury as to effect of voluntary

3 intoxication on an intentional murder count but not depraved

4 indifference murder); N.Y. Penal Law 15.05(3) ("A person who

5 creates [a substantial and unjustifiable] risk but is unaware

6 thereof solely by reason of voluntary intoxication also acts

7 recklessly with respect thereto."), we cannot say that no

8 rational juror could have found beyond a reasonable doubt that

9 Policano acted unintentionally. See Jackson, 443 U.S. at 324. A

10 reviewing court "faced with a record of historical facts that

11 supports conflicting inferences must presume -- even if it does

12 not affirmatively appear in the record -- that the trier of fact

13 resolved any such conflicts in favor of the prosecution, and must

14 defer to that resolution." Id., at 326. We therefore vacate our

15 opinion in Policano II and reverse the judgment of the district

16 court.

17 CONCLUSION

18 For the foregoing reasons, the order of the district

19 court granting petitioner's

habeas corpus

20 application and ordering him released from custody is reversed,

21 and the case is remanded to the district court with instructions

22 that it enter an order denying the petitioner's application for

23 habeas corpus. The order of this court denying a stay with

24 respect to that portion of the district court's order releasing

13 1 the petitioner from custody shall be vacated forthwith, and the

2 stay as to that portion of the order shall be granted forthwith

3 pending the issuance of the mandate in this appeal.

14