431 U.S.

145
97 S.Ct. 1730
52 L.Ed.2d 203

Robert J. HENDERSON, Superintendent, Auburn

Correctional Facility, Petitioner,
v.
Barry Warren KIBBE.
No. 75-1906.
Argued March 1, 1977.
Decided May 16, 1977.

Syllabus
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 seconddegree murder when "(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 person." 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 circumstances 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, 90 S.Ct. 1068, 25 L.Ed.2d 368, 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. Held : The trial judge's failure to instruct the jury on
the issue of causation was not constitutional error requiring the District
Court to grant habeas corpus relief. Pp. 153-157.
(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, where there 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. 153-154.
(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. 154-157.
534 F.2d 493, reversed.
Lillian Zeisel Cohen, New York City, for petitioner.
Sheila Ginsberg, New York City, for respondent.
Mr. Justice STEVENS delivered the opinion of the Court.

Respondent is in petitioner's custody pursuant to a conviction for seconddegree 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.
2

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.1 After observing Stafford display at least two $100 bills,2 they 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 40mile 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.

Respondent and his accomplice were convicted of grand larceny, robbery, and
second-degree murder. 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 degree" when "
(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 person." (Emphasis added.)

Defense counsel argued that it was the negligence of the truckdriver, rather
than the defendants' action, that had caused Stafford's death, and that the
defendants could not have anticipated the fatal accident.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 therefore were the cause of death.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 or that such
circumstance exists." App. 89 (emphasis added).
6

The Appellate Division of the New York Supreme Court affirmed respondent's
conviction. People v. Kibbe, 41 App.Div.2d 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 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."6

The New York Court of Appeals also affirmed. 35 N.Y.2d 407, 362 N.Y.S.2d
848, 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 it was "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."7 The court refused to
consider the adequacy of the charge to the jury because that question had not
been raised in the trial court.

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,8 but rather was an "obviously inadvertent" omission. Id., at 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.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368, 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.9
10

Because the Court of Appeals decision appeared to conflict with this Court's
holding in Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368, we
granted certiorari, 429 U.S. 815, 97 S.Ct. 55, 50 L.Ed.2d 74.

11

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.10

12

* (1) 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 charged." In re Winship,
supra, 397 U.S., at 364, 90 S.Ct., at 1073. 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.

13

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 had to be decided. It follows that the objection predicated on this
Court's holding in Winship is without merit.

II
14

(2) 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.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.12
15

(3, 4) 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.13 The 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. Naughten, 414 U.S., at 147,
94 S.Ct., at 400, 38 L.Ed.2d 368, not merely whether "the instruction is
undesirable, erroneous, or even 'universally condemned,' " id., at 146, 94 S.Ct.,
at 400.

16

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 seems remote.

17

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.

18

(5) 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.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 the 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.
19

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 "recklessly," supra, at 148, 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"15 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.

20

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.16 Accordingly, we reject the suggestion that the omission of more
complete instructions on the causation issue "so 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.

21

The judgment is reversed.

22

It is so ordered.

23

Mr. Justice REHNQUIST took no part in the consideration or decision of this

case.

24

Mr. Chief Justice BURGER, concurring in the judgment.

25

I concur in the judgment, but I find it unnecessary to resolve the question of

New York criminal law considered by the Court, at 155-157, ante. 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, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965).
26

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.S. 391, 83 S.Ct. 822, 9
L.Ed.2d 837 (1963); Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31
L.Ed.2d 394 (1972). These cases, however, involved post -trial omissions of a
technical nature which would be unlikely to jeopardize substantial state
interests. Mid -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 forgo making an objection or exception which might
prevent the error from ever occurring." Mullaney v. Wilbur, 421 U.S. 684, 704,
95 S.Ct. 1881, 1892, 44 L.Ed.2d 508 n. (1975) (REHNQUIST, J., concurring);*
see Estelle v. Williams, 425 U.S. 501, 513-514, 96 S.Ct. 1691, 1697, 48
L.Ed.2d 126 (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.

27

The "deliberate bypass" doctrine of Fay v. Noia, supra, should not be extended
to midtrial 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.

A pathologist testified that the alcohol content in Stafford's blood was

indicative of a "very heavy degree of intoxication." App. 58.

Tr. 723.

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 conviction.

"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." App. 68.

"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 ankles." Id., at 75-76.

41 App.Div., 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)." Id.,
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.
7

35 N.Y.2d, at 412, 362 N.Y.S.2d, at 851-852, 321 N.E.2d, at 776. The New
York court added:
"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." Id., at 413, 362 N.Y.S.2d, at
852, 321 N.E.2d at 776.

Cf. Humphrey v. Cady, 405 U.S. 504, 517, 92 S.Ct. 1048, 1056, 31 L.Ed.2d
394; Fay v. Noia, 372 U.S. 391, 427-428, 438-439, 83 S.Ct. 822, 842-843, 848849, 9 L.Ed.2d 837.

"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 truckdriver. Even though instructions on intervening
cause might have been helpful, Judge Mansfield concluded that the omission
was not constitutional error.
10

"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.
104, 107, 46 S.Ct. 442, 443, 70 L.Ed. 857 (1926). While 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, 93 S.Ct. 354, 34 L.Ed.2d 335 (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, 146-147, 94
S.Ct. 396, 400.

11

Allis v. United States, 155 U.S. 117, 122-123, 15 S.Ct. 36, 38, 39 L.Ed. 91;
Harvey v. Tyler, 2 Wall. 328, 339, 17 L.Ed. 871; see, e. g., Lopez v. United
States, 373 U.S. 427, 436, 83 S.Ct. 1381, 1386, 10 L.Ed.2d 462.

12

In Namet v. United States, 373 U.S. 179, 190, 83 S.Ct. 1151, 1156, 10 L.Ed.2d
278, 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, 108,

46 S.Ct. 442, 443, 70 L.Ed. 857.

13

The strong interest in preserving the finality of judgments, see, e. g.,

Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (Powell, J.,
concurring); Schneckloth v. Bustamonte, 412 U.S. 218, 256-266, 93 S.Ct. 2041,
2062-2067, 36 L.Ed.2d 854 (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.

14

35 N.Y.2d, at 412-413, 362 N.Y.S.2d, at 851-852, 321 N.E.2d, at 776. The

passage of the opinion quoted in n. 7, supra, emphasizes the obvious risk of
death by freezing, suggesting that defendants need not have foreseen the precise
manner in which the death did occur.

15

Supra, at 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) (McKinney
1975).

16

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):
"A, with intent to kill B, only wounds 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. Here C's act is a matter of coincidence rather than a response to
what A has done, and thus the question is whether the subsequent events were
foreseeable, as they undoubtedly were in the above illustration."
Such an instruction would probably have been more favorable to the
prosecution than the instruction on recklessness which the court actually gave.

This is not a case such as Mullaney, where the State's highest court ruled on the
defendant's claim even though he failed to rise the issue at trial. Rather, as the
Court notes, ante, at pp. 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 trial court.