Appeal from the dismissal of a petition for writ of habeas corpus by United States District Court for the Southern District of New York, Whitman Knapp, Judge. Held, failure to give instructions on lesser included offenses not error where evidence did not reasonably support a conviction on lesser offenses. Affirmed.
Lumbard, Oakes, and Pratt, Circuit Judges.
Joseph Rice appeals from a judgment of the United States District Court for the Southern District of New York, Whitman Knapp, Judge, dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1982). Rice sought to have set aside a 1980 judgment of the Supreme Court, New York County, James Leff, Judge, convicting him of murder in the second degree, N.Y. Penal Law § 125.25 (McKinney 1987), and assault in the first degree, N.Y. Penal Law § 120.10 (McKinney 1987). He claimed that the trial court erred by failing to instruct the jury on the lesser included offenses of manslaughter in the first degree and manslaughter in the second degree. Judge Knapp concluded that no reasonable view of the evidence adduced at trial supported instructions on the lesser included offenses. We agree and affirm the dismissal of the petition.
In November of 1979, Joseph Rice lived with Kim Morris in his mother's apartment at One Arden Street in Upper Manhattan. Rice was eighteen years old and Morris nineteen. On the morning of November 27, 1979, Rice and Morris had an argument and exchanged blows. Rice left the apartment, followed soon after by Morris. She was wearing only her bathrobe, and her leg was bleeding.
Rice and Morris walked north on Nagle Avenue. Gregory Santiago, Juan Acosta, and Eugene DiSalvo were standing in front of a store on Nagle Avenue between Thayer and Dyckman Streets, approximately one block from Rice's apartment. They noticed Morris's unusual appearance and started laughing and talking loudly. When one of them called Morris a "bitch," Rice approached them and said, "I know you ain't calling my wife a bitch. What the f are you looking at?" Rice and DiSalvo argued and exchanged harmless punches. Neither man had a weapon. Rice then said, "I will be back," and ran toward his apartment building. Morris followed and was climbing the interior stairway to the apartment as Rice was descending. He ordered her to go "straight up" to the apartment and that he would see her later.
A few minutes later, Rice returned to Nagle Avenue. DiSalvo and Santiago had crossed the street and were now standing in front of a candy store. Rice said, "There is going to be no more fist fighting." He removed a gun from his pocket and, standing fifteen to twenty feet away from DiSalvo, fired five shots, striking DiSalvo three times, twice in the arms and once in the back of the head. Rice then ran down Nagle Avenue toward his apartment building. Acosta, who had picked up a three-foot long aluminum pipe he kept hidden near the candy store, and Santiago ran after Rice. Rice ran into his apartment building but before he could remove his key and shut the inner vestibule door, Acosta had forced his way into the lobby. Acosta hit Rice with the pipe. When Acosta tried to hit him a second time, Rice shot him at close range. The bullet passed through Acosta's neck and lodged in his shoulder. Rice tried to fire the gun two more times, but the ammunition had been exhausted so the gun simply clicked twice. Rice then disappeared inside the building. Santiago removed the keys from the vestibule door lock and gave them to a police officer who had arrived to investigate the shooting. DiSalvo died later that day of his wounds. Acosta recovered. The next day, Rice surrendered to the police. At a line-up held that afternoon, Santiago identified Rice as the man who had shot DiSalvo and Acosta.
Rice was tried before a jury in New York Supreme Court on charges of murder in the second degree, attempted murder in the second degree, assault in the second degree, and criminal possession of a weapon in the second and third degrees. Santiago and Acosta testified that Rice was the man who had exchanged words and blows with DiSalvo just prior to the shooting, and who then five minutes later returned and shot DiSalvo and Acosta. Defense counsel vigorously cross-examined Acosta about his ability to identify the perpetrator. Kim Morris likewise testified that Rice was the person who had fought with DiSalvo. She also stated that Rice was protective of her.
Police Officer John V. Tobin, who was one of the first police officers to come to Nagle Avenue after the shooting, described DiSalvo's condition when he found him on the floor of the candy store. Detective Martin J. Joseph described the three bullet shells he found in the wall of the candy store, and also testified that two of the keys from the set which Santiago had removed from the vestibule door opened the top and bottom of the door to Rice's apartment. The set of four keys was not introduced into evidence. Detective Joseph and other police officers explained that the keys were incorrectly classified as investigatory evidence and, pursuant to property clerk procedures, were destroyed. Defense counsel extensively cross-examined Detective Joseph, focusing in particular on his response to a telephone caller who claimed that the black male who had committed the shooting was in the apartment building at One Arden Street. Joseph testified that he went to the building and encountered a black male who Joseph soon determined was not the perpetrator. Dr. Solaman Rivera testified that when Acosta arrived at Jewish Memorial Hospital shortly after the shooting, he was in shock, bleeding profusely from a neck wound, and very Iethargic. Dr. Beverly Leffers, an associate medical examiner for the City of New York, testified that DiSalvo had one gunshot wound in the back of his head and two in his right arm and testified that the head wound proved fatal. Rice did not testify, and the defense did not call any other witnesses.
At the completion of the evidence, the trial judge told counsel that with respect to the Acosta shooting and in particular with respect to count two-attempt to commit murder in the second degree -- he intended to instruct the jury on the lesser included offense of assault in the first degree. Neither side requested additional instructions. Defense counsel's summation focused on the issue of identification. He suggested that Gregory Santiago's alcoholism and Juan Acosta's drinking greatly impaired their ability to identify the man responsible for the shooting. He added that the prosecutor had never asked Acosta to participate in a line-up identification. In response, the prosecutor reviewed the evidence linking Rice to the shooting, including the testimony of Morris, Santiago, and Acosta that Rice was the person who had exchanged verbal and physical blows with DiSalvo just prior to the shooting and the testimony of Santiago and Acosta that Rice was the man who shot DiSalvo and Acosta. The prosecutor added:
I suggest to you that under those circumstances the only reasonable conclusion is that the person who shot DiSalvo was the defendant.
[He] obviously had a motive to kill him. He was angry. An impulsive type person. He had two fights in the previous ten or fifteen minutes. This time it was with a gun.
After the State had completed its summation, and after a brief recess, the defense counsel requested that the trial judge instruct the jury on the lesser included offense of manslaughter in the first degree and manslaughter in the second degree. Observing that the district attorney had stated in his summation that the defendant was angry and impulsive, defense counsel claimed the evidence supported a conclusion that the defendant acted in the "heat of passion." The prosecutor objected, contending that a request for jury instructions must be made before ...