Respondent and his codefendant, after robbing an intoxicated man
in their car, abandoned him at night on an unlighted, rural road
where the visibility was obscured by blowing snow. Twenty or thirty
minutes later, while helplessly seated in the road, the man was
struck and killed by a speeding truck. Respondent and his
accomplice were subsequently convicted in a New York trial court of
grand larceny, robbery, and second-degree murder. A New York
statute provides that a person is guilty of second-degree murder
"[u]nder circumstances evincing a depraved indifference to human
life, he recklessly engages in conduct which creates a grave risk
of death to another person, and thereby causes the death of another
Although the element of causation was stressed in the arguments
of both defense counsel and the prosecution at the trial, neither
party requested an instruction on the meaning of the "thereby
causes" language of the statute and none was given. The trial
judge, however, did read to the jury the statute and the indictment
tracking the statutory language, and advised the jury that all
elements of the crime charged must be proved beyond a reasonable
doubt, and that a
"person acts recklessly with respect to a result or to a
circumstance described by a statute defining an offense when he
is aware of and consciously disregards a substantial and
unjustifiable risk that such result will occur.
Respondent's conviction was upheld on appeal, the New York Court
of Appeals rejecting the argument that the truck driver's conduct
constituted an intervening cause that relieved the defendants of
criminal responsibility for the victim's death. Respondent then
filed a habeas corpus petition in Federal District Court, which
refused to review, as not raising a question of constitutional
dimension, respondent's attack on the sufficiency of the jury
charge. The Court of Appeals reversed, holding, on the authority of
In re Winship, 397 U. S. 358
that, since the Constitution requires proof beyond a reasonable
doubt of every fact necessary to constitute the crime charged, the
failure to instruct the jury on an essential element as complex as
the causation issue in this case created an impermissible risk that
the jury had not made a finding that the Constitution requires.
Page 431 U. S. 146
The trial judge's failure to instruct the jury on
he issue of causation was not constitutional error requiring the
District Court to grant habeas corpus relief. Pp. 431 U. S.
(a) The omission of the causation instruction did not create a
danger that the jury failed to make an essential factual
determination as required by Winship, supra,
can be no question from the record that the jurors were informed
that the issue of causation was an element which required decision,
and where they were instructed that all elements of the crime must
be proved beyond a reasonable doubt. Pp. 431 U. S.
(b) The opinion of the New York Court of Appeals makes it clear
that an adequate instruction would have told the jury that, if the
ultimate harm should have been foreseen as being reasonably related
to the defendants' conduct, that conduct should be regarded as
having caused the victim's death. There is no reason to believe
that the jury would have reached a different verdict if such an
instruction had been given. By returning a guilty verdict the jury
necessarily found, in accordance with the trial court's instruction
on recklessness, that respondent was "aware of and consciously
disregarded a substantial and unjustifiable risk" that death would
occur. This finding logically included a determination that the
ultimate harm was foreseeable. Pp. 431 U. S.
534 F.2d 493, reversed.
STEVENS, J., delivered the opinion of the Court, in which
BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN, and POWELL, JJ.,
joined. BURGER, C.J., filed an opinion concurring in the judgment,
p. 431 U. S. 157
REHNQUIST, J., took no part in the consideration or decision of the
Page 431 U. S. 147
MR. JUSTICE STEVENS delivered the opinion of the Court.
Respondent is in petitioner's custody pursuant to a conviction
for second-degree murder. The question presented to us is whether
the New York State trial judge's failure to instruct the jury on
the issue of causation was constitutional error requiring a Federal
District Court to grant habeas corpus relief. Disagreeing with a
divided panel of the Court of Appeals for the Second Circuit, we
hold that it was not.
On the evening of December 30, 1970, respondent and his
codefendant encountered a thoroughly intoxicated man named Stafford
in a bar in Rochester, N.Y. [Footnote 1
] After observing Stafford display at least two
$100 bills, [Footnote 2
decided to rob him and agreed to drive him to a nearby town. While
in the car, respondent slapped Stafford several times, took his
money, and, in a search for concealed funds, forced Stafford to
lower his trousers and remove his boots. They then abandoned him on
an unlighted, rural road, still in a state of partial undress, and
without his coat or his glasses. The temperature was near zero,
visibility was obscured by blowing snow, and snow banks flanked the
roadway. The time was between 9:30 and 9:40 p.m.
At about 10 p.m., while helplessly seated in a traffic lane
about a quarter mile from the nearest lighted building, Stafford
was struck by a speeding pickup truck. The driver testified that
while he was traveling 50 miles per hour in a 40-mile zone, the
first of two approaching cars flashed its lights -- presumably as a
warning which he did not understand. Immediately after the cars
passed, the driver saw Stafford sitting in the road with his hands
in the air. The driver neither swerved nor braked his vehicle
before it hit Stafford. Stafford was pronounced dead upon arrival
at the local hospital.
Page 431 U. S. 148
Respondent and his accomplice were convicted of grand larceny,
robbery, and second-degree murder. [Footnote 3
] Only the conviction of murder, as defined in
N.Y. Penal Law § 125.25(2) (McKinney 1975), is now challenged. That
statute provides that "[a] person is guilty of murder in the second
"[u]nder circumstances evincing a depraved indifference to human
life, he recklessly engages in conduct which creates a grave risk
of death to another person, and thereby causes the death of
Defense counsel argued that it was the negligence of the truck
driver, rather than the defendants' action, that had caused
Stafford's death, and that the defendants could not have
anticipated the fatal accident. [Footnote 4
] On the other hand, the prosecution argued that
the death was foreseeable, and would not have occurred but for the
conduct of the defendants who
Page 431 U. S. 149
therefore were the cause of death. [Footnote 5
] Neither party requested the trial judge to
instruct the jury on the meaning of the statutory requirement that
the defendants' conduct "thereby cause[d] the death of another
person," and no such instruction was given. The trial judge did,
however, read the indictment and the statute to the jury, and
explained the meaning of some of the statutory language. He advised
the jury that a "person acts recklessly with respect to a result or
to a circumstance described by a statute defining an offense
when he is aware of and consciously disregards a substantial
and unjustifiable risk that such result will occur
such circumstance exists."
App. 89 (emphasis added).
The Appellate Division of the New York Supreme Court affirmed
respondent's conviction. People v. Kibbe,
228, 342 N.Y.S.2d 386 (1973). Although respondent did not challenge
the sufficiency of the instructions to the jury in that court,
Judge Cardamone dissented on the ground that the trial court's
charge did not explain the issue of causation
Page 431 U. S. 150
or include an adequate discussion of the necessary mental state.
That judge expressed the opinion that "the jury, upon proper
instruction, could have concluded that the victim's death by an
automobile was a remote and intervening cause." [Footnote 6
The New York Court of Appeals also affirmed. 35 N.Y.2d 407, 321
N.E.2d 773 (1974). It identified the causation issue as the only
serious question raised by the appeal, and then rejected the
contention that the conduct of the driver of the pickup truck
constituted an intervening cause which relieved the defendants of
criminal responsibility for Stafford's death. The court held that
"not necessary that the ultimate harm be intended by the actor.
It will suffice if it can be said beyond a reasonable doubt, as
indeed it can be here said, that the ultimate harm is something
which should have been foreseen as being reasonably related to the
acts of the accused. [Footnote
The court refused to consider the adequacy of the charge to the
jury because that question had not been raised in the trial
Page 431 U. S. 151
Respondent then filed a petition for a writ of habeas corpus in
the United States District Court for the Northern District of New
York, relying on 28 U.S.C. § 2254. The District Court held that the
respondent's attack on the sufficiency of the charge failed to
raise a question of constitutional dimension and that, without
more, "the charge is not reviewable in a federal habeas corpus
proceeding." App. 21.
The Court of Appeals for the Second Circuit reversed, 534 F.2d
493 (1976). In view of the defense strategy which consistently
challenged the sufficiency of the proof of causation, the majority
held that the failure to make any objection to the jury
instructions was not a deliberate bypass precluding federal habeas
corpus relief, [Footnote 8
rather was an "obviously inadvertent" omission. Id.
497. On the merits, the court held that, since the Constitution
requires proof beyond a reasonable doubt of every fact necessary to
constitute the crime, In re Winship, 397 U.
, 397 U. S. 364
the failure to instruct the jury on an essential element as complex
as the causation issue in this case created an impermissible risk
that the jury had not made a finding that the Constitution
requires. [Footnote 9
Page 431 U. S. 152
Because the Court of Appeals decision appeared to conflict with
this Court's holding in Cupp v. Naughten, 414 U.
, we granted certiorari, 429 U.
Respondent argues that the decision of the Court of Appeals
should be affirmed on either of two independent grounds: (1) that
the omission of an instruction on causation created the danger that
the jurors failed to make an essential factual determination as
required by Winship;
or (2) assuming that they did reach
the causation question, they did so without adequate guidance and
might have rendered a different verdict under proper instructions.
A fair evaluation of the omission in the context of the entire
record requires rejection of both arguments. [Footnote 10
Page 431 U. S. 153
The Court has held
"that the Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is
In re Winship, supra,
at 397 U. S. 364
One of the facts which the New York statute required the
prosecution to prove is that the defendants' conduct caused the
death of Stafford. As the New York Court of Appeals held, the
evidence was plainly sufficient to prove that fact beyond a
reasonable doubt. It is equally clear that the record requires us
to conclude that the jury made such a finding.
There can be no question about the fact that the jurors were
informed that the case included a causation issue that they had to
decide. The element of causation was stressed in the arguments of
both counsel. The statutory language, which the trial judge read to
the jury, expressly refers to the requirement that defendants'
conduct "cause[d] the death of another person." The indictment
tracks the statutory language; it was read to the jurors, and they
were given a copy for use during their deliberations. The judge
instructed the jury that all elements of the crime must be proved
beyond a reasonable doubt. Whether or not the arguments of counsel
correctly characterized the law applicable to the causation issue,
they surely made it clear to the jury that such an issue
Page 431 U. S. 154
had to be decided. It follows that the objection predicated on
this Court's holding in Winship
is without merit.
An appraisal of the significance of an error in the instructions
to the jury requires a comparison of the instructions which were
actually given with those that should have been given. Orderly
procedure requires that the respective adversaries' views as to how
the jury should be instructed be presented to the trial judge in
time to enable him to deliver an accurate charge and to minimize
the risk of committing reversible error. [Footnote 11
] It is the rare case in which an improper
instruction will justify reversal of a criminal conviction when no
objection has been made in the trial court. [Footnote 12
The burden of demonstrating that an erroneous instruction was so
prejudicial that it will support a collateral attack on the
constitutional validity of a state court's judgment is even greater
than the showing required to establish plain error on direct
appeal. [Footnote 13
question in such a collateral proceeding is "whether the ailing
instruction by itself so infected the entire trial that the
resulting conviction violates due process," Cupp v.
414 U.S. at
414 U. S. 147
, not merely whether "the instruction is
undesirable, erroneous, or even universally condemned,'"
id. at 414 U. S.
Page 431 U. S. 155
In this case, the respondent's burden is especially heavy
because no erroneous instruction was given; his claim of prejudice
is based on the failure to give any explanation -- beyond the
reading of the statutory language itself -- of the causation
element. An omission, or an incomplete instruction, is less likely
to be prejudicial than a misstatement of the law. Since this
omission escaped notice on the record until Judge Cardamone filed
his dissenting opinion at the intermediate appellate level, the
probability that it substantially affected the jury deliberations
Because respondent did not submit a draft instruction on the
causation issue to the trial judge, and because the New York courts
apparently had no previous occasion to construe this aspect of the
murder statute, we cannot know with certainty precisely what
instruction should have been given as a matter of New York law. We
do know that the New York Court of Appeals found no reversible
error in this case; and its discussion of the sufficiency of the
evidence gives us guidance about the kind of causation instruction
that would have been acceptable.
The New York Court of Appeals concluded that the evidence of
causation was sufficient because it can be said beyond a reasonable
doubt that the "ultimate harm" was "something which should have
been foreseen as being reasonably related to the acts of the
accused." It is not entirely clear whether the court's reference to
"ultimate harm" merely required that Stafford's death was
foreseeable, or, more narrowly, that his death by a speeding
vehicle was foreseeable. [Footnote 14
] In either event, the court was satisfied
that the "ultimate harm" was one which "should have been foreseen."
Thus, an adequate instruction would have told the jury that, if
Page 431 U. S. 156
ultimate harm should have been foreseen as being reasonably
related to defendants' conduct, that conduct should be regarded as
having caused the death of Stafford.
The significance of the omission of such an instruction may be
evaluated by comparison with the instructions that were given. One
of the elements of respondent's offense is that he acted
at 431 U. S. 148
431 U. S. 149
By returning a guilty verdict, the jury necessarily found, in
accordance with its instruction on recklessness, that respondent
was "aware of and consciously disregard[ed] a substantial and
unjustifiable risk" [Footnote
] that death would occur. A person who is "aware of and
consciously disregards" a substantial risk must also foresee the
ultimate harm that the risk entails. Thus, the jury's determination
that the respondent acted recklessly necessarily included a
determination that the ultimate harm was foreseeable to him.
In a strict sense, an additional instruction on foreseeability
would not have been cumulative because it would have related to an
element of the offense not specifically covered in the instructions
given. But since it is logical to assume that the jurors would have
responded to an instruction on causation consistently with their
determination of the issues that were comprehensively explained, it
is equally logical to conclude that such an instruction would not
have affected their verdict. [Footnote 16
] Accordingly, we reject the suggestion that
the omission of more complete instructions on the causation issue
Page 431 U. S. 157
infected the entire trial that the resulting conviction violated
due process." Even if we were to make the unlikely assumption that
the jury might have reached a different verdict pursuant to an
additional instruction, that possibility is too speculative to
justify the conclusion that constitutional error was committed.
The judgment is reversed.
It is so ordered.
MR. JUSTICE REHNQUIST took no part in the consideration or
decision of this case.
A pathologist testified that the alcohol content in Stafford's
blood was indicative of a "very heavy degree of intoxication." App.
Respondent was sentenced to concurrent terms of 15 years to life
on the murder conviction; 5-15 years on the robbery conviction; and
an indeterminate term of up to four years on the grand larceny
"Let's look at this indictment. Count 1 says, and I will read
the important part. That the defendant,"
"Felon[i]ously and under circumstances evincing a depraved
indifference to human life recklessly engaged in conduct which
created a grave risk of death to another person, to-wit, George
Stafford and thereby caused the death of George Stafford."
"So, you can see by the accent that I put on reaching that, the
elements of this particular crime, and which must be proven beyond
a reasonable doubt."
"* * * *"
". . . [Y]ou are going to have to honestly come to the
conclusion that here is three people, all three drinking, and that
these two, or at least my client were in a position to perceive
this grave risk, be aware of it and disregard it. Perceive that Mr.
Stafford would sit in the middle of the northbound lane, that a
motorist would come by who was distracted by flashing lights in the
opposite lane, who then froze at the wheel, who then didn't swerve,
didn't brake, and who was violating the law by speeding, and to
make matters worse, he had at that particular time, because of what
the situation was, he had low beams on, that is a lot of
anticipation. That is a lot of looking forward. Are you supposed to
anticipate that somebody is going to break the law when you move or
do something? I think that is a reasonable doubt."
"As I mentioned, not only does the first count contain reference
to and require proof of a depraved indifference to a human life, it
proves that the defendant recklessly engaged in conduct which
created a risk of death in that they caused the death of George
Stafford. Now, I very well know, members of the jury, you know,
that, quite obviously, the acts of both of these defendants were
not the only the direct or the most preceding cause of his death.
If I walked with one of you downtown, you know, and we went across
one of the bridges, and you couldn't swim and I pushed you over and
you drowned because you can't swim, I suppose you can say, well,
you drowned because you couldn't swim. But of course, the fact is
that I pushed you over. The same thing here. Sure, the death, the
most immediate, the most preceding, the most direct cause of Mr.
Stafford's death was the motor vehicle. . . . But how did he get
there? Or to put it differently, would this man be dead had it not
been for the acts of these two defendants? And I submit to you,
members of the jury, that the acts of these two defendants did
indeed cause the death of Mr. Stafford. He didn't walk out there on
East River Road. He was driven out there. His glasses were taken
and his identification was taken and his pants were around his
41 App.Div.2d at 231, 342 N.Y.S.2d at 390. He added:
"There are no statutory provisions dealing with intervening
causes -- nor is civil case law relevant in this context. The issue
of causation should have been submitted to the jury in order for it
to decide whether it would be unjust to hold these appellants
liable as murderers for the chain of events which actually
occurred. Such an approach is suggested in the American Law
Institute Model Penal Code (see
Comment, § 2.03, pp. 133,
134 of Tentative Draft No. 4)."
at 231-232, 342 N.Y.S.2d at 390. The dissent did
not cite any New York authority describing the causation
instruction that should have been given.
35 N.Y.2d at 412, 321 N.E.2d at 776. The New York court
"We subscribe to the requirement that the defendants' actions
must be a sufficiently direct cause
of the ensuing death
before there can be any imposition of criminal liability, and
recognize, of course, that this standard is greater than that
required to serve as a basis for tort liability. Applying these
criteria to the defendants' actions, we conclude that their
activities on the evening of December 30, 1970 were a sufficiently
direct cause of the death of George Stafford so as to warrant the
imposition of criminal sanctions. In engaging in what may properly
be described as a despicable course of action, Kibbe and Krall left
a helplessly intoxicated man without his eyeglasses in a position
from which, because of these attending circumstances, he could not
extricate himself, and whose condition was such that he could not
even protect himself from the elements. The defendants do not
dispute the fact that their conduct evinced a depraved indifference
to human life which created a grave risk of death, but rather they
argue that it was just as likely that Stafford would be
miraculously rescued by a good [S]amaritan. We cannot accept such
an argument. There can be little doubt but that Stafford would have
frozen to death in his state of undress had he remained on the
shoulder of the road. The only alternative left to him was the
highway, which, in his condition, for one reason or another,
clearly foreboded the probability of his resulting death."
at 413, 321 N.E.2d at 776.
Cf. Humphrey v. Cady, 405 U. S. 504
405 U. S. 517
Fay v. Noia, 372 U. S. 391
372 U. S.
-428, 372 U. S.
"The omission of any definition of causation, however, permitted
the jury to conclude that the issue was not before them or that
causation could be inferred merely from the fact that Stafford's
death succeeded his abandonment by Kibbe and Krall."
". . . The possibility that jurors, as laymen, may misconstrue
the evidence before them makes mandatory in every case instruction
as to the legal standards they must apply. . . . Error in the
omission of an instruction is compounded where the legal standard
is complex and requires that fine distinctions be made. That is
most assuredly the situation in this case. It has been held that
where death is produced by an intervening force, such as Blake's
operation of his truck, the liability of one who put an antecedent
force into action will depend on the difficult determination of
whether the intervening force was a sufficiently independent or
supervening cause of death. See
W. LaFave & A. Scott,
Criminal Law 257-263 (1972) (collecting cases). The few cases that
provide similar factual circumstances suggest that the controlling
questions are whether the ultimate result was foreseeable to the
original actor and whether the victim failed to do something easily
within his grasp that would have extricated him from danger."
534 F.2d at 498-499 (footnotes omitted).
In dissent, Judge Mansfield reasoned that the arguments of
counsel, the reading of the statutory definition of the crime, and
the general instructions made it clear to the jury that they had to
find beyond a reasonable doubt that defendants' conduct was a
direct cause of Stafford's death, and that the death was not
attributable solely to the truck driver. Even though instructions
on intervening cause might have been helpful, Judge Mansfield
concluded that the omission was not constitutional error.
"In determining the effect of this instruction on the validity
of respondent's [state] conviction, we accept at the outset the
well established proposition that a single instruction to a jury
may not be judged in artificial isolation, but must be viewed in
the context of the overall charge. Boyd v. United States,
271 U. S.
, 271 U. S. 107
this does not mean that an instruction by itself may never rise to
the level of constitutional error, see Cool v. United
States, 409 U. S. 100
(1972), it does
recognize that a judgment of conviction is commonly the culmination
of a trial which includes testimony of witnesses, argument of
counsel, receipt of exhibits in evidence, and instruction of the
jury by the judge. Thus, not only is the challenged instruction but
one of many such instructions, but the process of instruction
itself is but one of several components of the trial which may
result in the judgment of conviction."
Cupp v. Naughten, 414 U. S. 141
414 U. S.
Allis v. United States, 155 U.
, 155 U. S.
-123; Harvey v.
2 Wall. 328, 69 U. S. 339
see, e.g., Lopez v. United States, 373 U.
, 373 U. S.
In Namet v. United States, 373 U.
, 373 U. S. 190
the Court characterized appellate consideration of a trial court
error which was not obviously prejudicial and which the defense did
not mention during the trial as "extravagant protection." See
Boyd v. United States, 271 U. S. 104
271 U. S.
The strong interest in preserving the finality of judgments,
see, e.g., Blackledge v. Allison, ante
p. 431 U. S. 83
(POWELL, J., concurring); Schneckloth v. Bustamonte,
412 U. S. 218
412 U. S.
-266 (POWELL, J., concurring), as well as the
interest in orderly trial procedure, must be overcome before
collateral relief can be justified. For a collateral attack may be
made many years after the conviction when it may be impossible, as
a practical matter, to conduct a retrial.
35 N.Y.2d at 412-413, 321 N.E.2d at 776. The passage of the
opinion quoted in n
emphasizes the obvious risk of death by freezing,
suggesting that defendants need not have foreseen the precise
manner in which the death did occur.
at 431 U. S. 149
In charging the jury on recklessness the trial judge quoted the
statutory definition of that term in N.Y. Penal Law § 15.05(3)
In fact, it is not unlikely that a complete instruction on the
causation issue would actually have been favorable to the
prosecution. For example, an instruction might have been patterned
after the following example given in W. LaFave & A. Scott,
Criminal Law 260 (1972):
with intent to kill B,
leaving him lying unconscious in the unlighted road on
a dark night, and then C,
driving along the road, runs
over and kills B.
act is a matter of
coincidence rather, than a response to what A
and thus the question is whether the subsequent events were
foreseeable, as they undoubtedly were in the above
Such an instruction would probably have been more favorable to
the prosecution than the instruction on recklessness which the
court actually gave.
MR. CHIEF JUSTICE BURGER, concurring in the judgment.
I concur in the judgment, but I find it unnecessary to resolve
the question of New York criminal law considered by the Court,
at 431 U. S.
-157. In my view, the federal court was precluded
from granting respondent's petition for collateral relief under 28
U.S.C. § 2254 because he failed to object to the jury instructions
at the time they were given. By that failure, he waived any claim
of constitutional error. This was precisely why the New York Court
of Appeals refused to consider respondent's belated claim. Cf.
Henry v. Mississippi, 379 U. S. 443
This Court has held that, under certain circumstances, a
defendant's failure to comply with state procedural requirements
will not be deemed a waiver of federal constitutional rights unless
it is shown that such bypass was the result of a deliberate
tactical decision. See Fay v. Noia, 372 U.
(1963); Humphrey v. Cady, 405 U.
(1972). These cases, however, involved
-trial omissions of a technical nature which would be
unlikely to jeopardize substantial state interests.
trial omissions such as occurred in this case, on the
other hand, are substantially different.
"It is one thing to fail to utilize the [state] appeal process
to cure a defect which already inheres in a judgment of conviction,
but it is quite another to forego making an objection or exception
which might prevent the error from ever occurring."
Mullaney v. Wilbur, 421 U. S. 684
421 U. S. 704
n. (1975) (REHNQUIST, J., concurring); * see Estelle
v. Williams, 425 U. S. 501
425 U. S.
-514 (1976) (POWELL, J., concurring). Thus, by
failing to object to the jury charge, respondent injected into the
trial process the very type of error which the objection
requirement was designed to avoid. Federal courts may not overlook
such failure on collateral attack.
The "deliberate bypass" doctrine of Fay v. Noia, supra,
should not be extended to mid-trial procedural omissions which
impair substantial state interests. I would simply hold that the
United States District Court was barred from examining the
substance of respondent's constitutional claim, and rest our
reversal of the Court of Appeals on that ground.
* This is not a case such as Mullaney,
State's highest court ruled on the defendant's claim even though he
failed to raise the issue at trial. Rather, as the Court notes,
at 431 U. S. 150
the New York Court of Appeals here expressly refused to rule on the
adequacy of the charge because respondent failed to object in the