Willie Jordan, Appellee, v. Edward R. Hammock, Chairman of the New York State Board Ofparole, Appellant, 682 F.2d 52 (2d Cir. 1982)

Willie Jordan was apprehended hiding in a closet in another's apartment. By the time of the arrival of the police who were summoned by the apartment dweller, Jordan had removed the lock cylinder from the apartment door, entered the apartment, rifled the drawers, and moved jewelry, photographic equipment, and two television sets around which he had wrapped the electric cords. The state trial judge's jury charge with respect to intent included the following boilerplate presumption language similar to that held unconstitutional in Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979): "(It) is a fundamental rule of evidence that a man is presumed to intend the natural consequences of his acts ...."¹  The jury found Jordan guilty of burglary in the third degree.²  After exhausting state remedies, Jordan sought and was granted a writ of habeas corpus in the United States District Court for the Eastern District of New York, Henry Bramwell, Judge. On the State's appeal we reverse.

We do not decide the question of waiver argued by the State under Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977).³  Nor do we determine whether the charge falls within Sandstrom. We need not reach these questions, because there were no acts from which the "consequences" here at issue naturally flow and from which intent could therefore be presumed. Jordan had concededly entered the apartment after removing the lock cylinder. His counsel urged only that he lacked the intent requisite to a conviction of burglary rather than criminal trespass, i.e., the intent to commit a crime⁴  while in the apartment, N.Y.Penal Law § 140.20 (McKinney 1975), note 2 supra, in this case the crime of larceny, governed by N.Y.Penal Law § 155.05.⁵  Jordan, however, had not as yet "take(n), obtain(ed) or with(e)ld" the property, although apparently he was preparing to do so.

Whether Jordan had the specific intent to commit larceny was the issue and this was a matter as to which the presumption charged by the court could not logically be applied. The "tak(ing), obtain(ing) or withold(ing)" of property is not a "natural consequence" of the "acts"-moving the television sets, photo equipment, and jewelry-that Jordan had already committed in the apartment. With respect to charges such as homicide or attempted homicide, the erroneous presumption is capable of being applied because killing or causing serious physical injury may be the natural physical consequence of, e.g., the act of firing a gun at someone. Here, however, Jordan's commission of future volitional larcenous acts was not the natural consequence of his prior acts. The charge, while therefore irrelevant and confusing, could not have "so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 400, 38 L. Ed. 2d 368 (1973). In short, although the charge might justify reversal by an appellate court reviewing a judgment of conviction, it does not amount to federal constitutional error.

Judgment reversed.