Appeal from denial of petition for a writ of habeas corpus by the United States District Court for the Eastern District of New York, Eugene H. Nickerson, J. Appellant claims that failure of state trial court to inform appellant of intent to charge jury on lesser included offense violated constitutional rights and that his guilt was not proven beyond a reasonable doubt. Judgment affirmed. Judge Newman concurs in the result in a separate opinion.
Feinberg, Chief Judge, Friendly and Newman, Circuit Judges. Newman, Circuit Judge, concurring in the result.
Cyril Edwards appeals from a judgment of the United States District Court for the Eastern District of New York, Eugene H. Nickerson, J., denying Edwards's petition for a writ of habeas corpus under 28 U.S.C. § 2254. After a trial in the state court in September 1979, the jury acquitted Edwards of intentional murder, but found him guilty of the lesser included offense of manslaughter in the first degree. The jury also found him guilty of felony murder predicated on robbery or attempted robbery. He was sentenced to concurrent prison terms of 15 years to life and 12 1/2 to 25 years. His conviction was affirmed without opinion by the Appellate Division, 83 A.D.2d 994, 443 N.Y.S.2d 698 (2d Dep't. 1981), and leave to appeal was denied by the New York Court of Appeals, 55 N.Y.2d 750 (1981). Edwards challenges his detention on the grounds that at his trial in the New York Supreme Court, he was deprived of his Sixth Amendment rights and was denied due process. For the reasons given below, we affirm the judgment of the district court.
Appellant Edwards was tried in connection with the death by stabbing of Jorge Ferriera in Brooklyn in November 1977. Appellant's first trial ended in a hung jury.*fn1 At his second trial, the prosecution's case rested in large part on the testimony of George Robinson, who was the only witness to implicate Edwards directly. Robinson testified substantially as follows: On the evening of November 4, he, Ferriera and two other individuals, known to Robinson only by their "street names," were selling marijuana in Martin Luther King Park in Brooklyn. A car with three people in it drove up and someone from inside the car called for Robinson and his group to come over. When none of the group did, the three people left the car and approached Robinson's group. Robinson was able to identify two of the individuals as appellant Edwards and his brother, Jackie. Robinson further testified that appellant questioned the Robinson group as to whether they had broken into a "reefer house," a place where marijuana was sold. When Robinson's group denied involvement in the break-in, appellant asked, "Why did you do it," pulled out a kitchen knife and stabbed Ferriera. At this point, Robinson and the two others "panicked," and ran toward the park exit leaving Ferriera behind. When Robinson looked back, he saw appellant going through Ferriera's pockets and the other two assailants stabbing him. Robinson also saw appellant throw his knife toward a fence in the park.
Robinson admitted that he did not report the incident to the police for some two months and did so only after he was arrested in Queens in connection with a burglary and questioned about various incidents in Brooklyn. Until this time, Robinson testified, he was unaware of Ferriera's death. Robinson also testified he was on probation for assault at the time of the killing and that he was serving a four-year sentence for possession of stolen property at the time of his testimony. However, Robinson stated that he had received no promises in return for his testimony and that he had been unaware that the Brooklyn District Attorney's Office had asked for the lowest possible bail on the stolen property charge.
Robinson's testimony was corroborated in certain aspects and contradicted in others by Robert Kelly, Jr., the other eyewitness. Kelly, a New York City corrections officer, was also in the park on the evening of the stabbing. Kelly testified substantially as follows: A group of about five young people left a pre-1970 model car and approached "a couple" of individuals. One of the latter group ran away as his companion was punched and beaten up. As the crowd dispersed and the attacked man fell to the ground, Kelly saw something thrown toward a park fence and heard the sound of "metal hitting metal." When he reported this to the investigating officers, a knife was recovered at the scene. Kelly was unable to identify any of the assailants.
Appellant's first argument on appeal is that the trial court violated his due process rights when it denied him the Sixth Amendment right "to be informed of the nature and cause of the accusation" against him. The precise claim is that the trial court's failure to inform defense counsel that it would charge the lesser included offense of manslaughter prevented counsel from appropriately addressing such a charge. Judge Nickerson rejected this argument on the merits and also ruled that even if there had been error in this regard, it was harmless. Although we by no means suggest that Judge Nickerson's rulings were incorrect, we do not reach those issues because we believe that appellant's failure to object to the charge waived his right to raise the claim in federal court.
Section 300.10-4 of the New York Criminal Procedure Law (McKinney 1982)*fn2 requires a court to inform the parties prior to summation of all counts and offenses charged in the indictment which the jury is to consider. This section incorporates Section 300.30-1 of the New York Criminal Procedure Law (McKinney 1982),*fn3 which defines "submission of a count" as including submission of a lesser included offense. See also People v. Richards, 67 A.D.2d 893, 894, 413 N.Y.S.2d 698 (1st Dep't. 1979); People v. Hendy, 64 A.D.2d 407, 410, 409 N.Y.S.2d 736 (1st Dep't. 1978).
However, New York also has a contemporaneous objection rule which requires that an objection or exception to "a ruling or instruction" be lodged at the time of such ruling or instruction or "at any subsequent time when the court had an opportunity of effectively changing the same." N.Y. Crim. Proc. Law § 470.05-2 (McKinney 1971).*fn4 In People v. Wachs, 93 A.D.2d 846, 461 N.Y.S.2d 73 (2d Dep't 1983), the trial court sitting as the trier of fact did not state prior to summation that it would consider the lesser included offense for which the defendant was ultimately convicted. Wachs held that since the defendant failed to object or apply for relief from the verdict from the trial court, he failed to preserve the error in law for appellate review. See id. at 847. The court also held that in view of the overwhelming evidence of guilt, reversal as a matter of discretion in the interest of justice under N.Y. Crim. Proc. Law § 470.15 (McKinney 1971) was not warranted. See also People v. Thomas, 50 N.Y.2d 467, 471-74, 429 N.Y.S.2d 584, 407 N.E.2d 430 (1980).
It is undisputed that in this case appellant did not object to the state trial judge's instruction on the lesser included offense of manslaughter. If the Appellate Division did affirm on procedural grounds, then habeas review is precluded since there was an adequate and independent state ground for affirming the conviction, unless appellant can show cause for failure to object and prejudice from the alleged constitutional violation. See Wainwright v. Sykes, 433 U.S. 72, 87-91, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977). However, Judge Nickerson noted that in the absence of a written opinion by the Appellate Division, it was difficult to tell whether that court affirmed the conviction because of Edwards's procedural default or whether the court affirmed on the merits.
Our recent decision of Martinez v. Harris, 675 F.2d 51 (2d Cir.), cert. denied, 459 U.S. 849, 103 S. Ct. 109, 74 L. Ed. 2d 97 (1982), clarified the law in this circuit on this point. In Martinez, the defendant claimed that the trial judge's supplemental charge to the jury violated his due process rights. The defendant, however, failed to object at trial and the Appellate Division affirmed without opinion. Martinez considered the issue of "how to interpret the silence of that court" when the prosecutor argued for affirmance both on procedural grounds and on the merits to the state appellate court. Id. at 54. We there held that in such circumstances "we feel justified in assuming that the Appellate Division does not exercise its discretion under [the 'interests of justice ' section in N.Y. Crim. Proc. Law § 470.15 (McKinney 1971)] and decide a case solely on the merits of a claim, unless it says so." Id. at 54 (footnote omitted); see also Phillips v. Smith, 717 F.2d 44, slip op. at 6234-35 (2d Cir. 1983); Johnson v. Harris, 682 F.2d 49, 51 (2d Cir.), cert. denied, 459 ...