Criminal Punishment for Murder Aggravated by Escape - Essay Example

They were convicted and sentenced for felony murder in the Supreme Court of the State of New York for New York County. Judgment was affirmed without opinion in the Appellate Division. A motion to reargue was denied by the New York Court of Appeals on June 15, 1976.

The victory was tried for felony murder (N.Y.Penal L. § 125.25(3) predicated upon the crime of escape in the second degree (id. § 205.10(2)). To convict Victory the jury had to find that Bornholdt and he escaped from custody after Officer Varecha had arrested them for a felony and that the policeman was shot in the course of or in furtherance of this escape. In charging the jury, the trial judge explained several times that it was necessary for them to find that an escape was being committed at the time Varecha was shot in order to convict Victory of felony murder. http://cases.justia.com/us-court-of-appeals/F2/570/66/3893 For example, "the prosecution must show that during the commission or attempted commission of the crime of escape in the second degree, and in the course of and in furtherance of that crime, or the immediate flight therefrom, a defendant caused the death of a person other than one of the participants." Both the crime of felony murder and the crime of escape in the second degree were submitted. After retiring, the jury asked for a re-reading of the law of escape, and twice for a re-reading of testimony about events prior to the shooting.

"As a matter of law, does the fact of flight after the shooting itself establish escape in the second degree after an arrest has been made for felony assault?" The judge indicated that there was no "categorical" answer to the question posed, carefully stated what the jury would be required to find for a conviction of escape in the second degree, then re-read the statutory definition of felony murder which, as the jury had often heard, requires death be caused in the course of or in furtherance of a predicate crime. The charge to the jury was preceded by many statements to the jury which informed them that they could find Victory guilty of felony murder only if the escape or attempt to escape occurred before the shooting.

The jury was read the indictment which specified that Victory was charged with felony murder in that "while engaged in the commission of the crime of escape in the second degree and in the course of such crime and in the furtherance thereof and in immediate flight therefrom, the defendants caused the death of Patrolman Varecha." The district court followed the recent Supreme Court decision in Patterson v. State of New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), this court upheld the constitutionality of a New York statute placing on a defendant the burden of proving as an affirmative defense that the weapon used to commit a robbery was unloaded or inoperative .

Victory applied for a writ of habeas corpus in the United States District Court for the Southern District of New York alleging constitutional deficiencies in the state trial court's ruling on evidence, charge on the elements of the crime, and instructions on an affirmative. In his application for habeas relief Victory asserted three constitutional claims: (1) denial of due process because the trial judge failed clearly to instruct the jury that they had to find an escape had occurred before the shooting to convict; (2) denial of the sixth amendment right of confrontation because the trial judge refused to allow into evidence certain documents which could have impeached the testimony of the prosecution's main witness; and (3) denial of due process because the trial judge instructed the jury that Victory had the burden of establishing the proof of an affirmative defense to the charge of felony murder. http://bulk.resource.org/courts.gov/c/F2/570/570.F2d.66.77-2075.260.html

The district court, Robert J. Ward, Judge, granted habeas relief on the claimed deficiency in the charge. The State of New York appealed and the United States Court of Appeals, Second Circuit assumed jurisdiction under 28 U.S.C. § 2253. it found no error in any of the state court's rulings and charged the accused with a felony to murder in that "while engaged in the commission of the crime of escape in the second degree and in the course of such crime and in the furtherance thereof and in immediate flight therefrom, the defendants caused the death of Patrolman Varecha.".Accordingly, it reversed and remanded with instructions to deny habeas relief, discharge the writ and dismiss the action. Read More