David C. SPICER, Petitioner-Appellant, v. Christine GREGOIRE; Tana Wood, Superintendent, Respondents-Appellees.
No. 98-35884.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 9, 1999. Memorandum Filed Sept. 8, 1999. Order Filed Oct. 19, 1999.
194 F.3d 1006
The corollary of the above reasoning is that the exclusionary rule should not bе applied where the violation is the fault of the officers. If there is no error on the part of the judiciary, the good-faith exception is inapplicable. Stated differently, the good-faith exception is not relevant where the violation lies in the execution of the warrant, not the validity of the warrant. Under such circumstances, suppression will presumably deter future violаtions and the exclusionary rule serves its purpose. In Gantt‘s case, the officers erred in the execution of a warrant, a subject wholly within their province. There is no allegation that the wаrrant was invalid or that the magistrate committed an error. The good-faith exception is not relevant.
VII. Conclusion
The agents violated
Thomas M. Kummerow, Michael Mittlestat, Seattle, Washington, for the petitioner-appellant.
Thomas J. Young, Daniel Judge, Assistant Attorney General, Olympia, Washington, for the respondents-appellees.
Before: LAY,1 GOODWIN and MCKEOWN, Circuit Judges.
ORDER
GOODWIN, Circuit Judge:
Appellant‘s request for publication is GRANTED. The memorandum disposition filed September 8, 1999, is redesignated as an authored opinion by Judge Goodwin.
GOODWIN, Circuit Judge:
Dаvid C. Spicer appeals from the district court‘s denial of his petition for writ of habeas corpus under
I.
Spicer was convicted of second-degree rape for threatening, binding, and raping S.M. on the morning of November 19, 1984. Evidence of the crime included bruising on S.M.‘s upper arm and reddening of her wrists, a roll and used pieces of duct tape found in the bedroom (along with black residue on S.M.‘s wrists), and semen in S.M.‘s rectum. S.M.‘s neighbor also testified that soon after the rape had occurred, S.M. ran to her house, told her of the incident, and appeared to be in a distraught emotional state.
Spicer filed a direct appeal in the Washington court of appeals, which affirmed the conviction citing the Washington Supremе Court‘s decision State v. Camara, 113 Wash.2d 631, 781 P.2d 483 (1989) (en banc). Spicer then filed a motion to the Washington Supreme Court for discretionary review, which was denied.
On November 24, 1997, Spicer filed his federal petition for a writ of habeas corpus. In his habeas petition, Spicer raised a single issue: whether the jury instruction that placed on him the burden of proving consent violated due process. The matter was referrеd to a magistrate judge, who wrote a Report and Recommendation to deny the petition. The report concluded that the state court‘s rejection of Spicer‘s claims was not contrary to clearly established federal law, and even if it were, such an error was harmless. In due course, the district court denied the petition and granted Spicer‘s certificate оf appealability.
II.
The standard for determining whether habeas relief should be granted in a
III.
Spicer contends that the jury instruction placing on the defense the burden of proving consent2 in a rape case violated federal due process. See Martin v. Ohio, 480 U.S. 228, 237, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987) (requiring State to prove beyond rеasonable doubt all facts necessary to constitute crime charged). Spicer asserts that by requiring him to show consent, the court impermissibly shifted a burden of proof that should have remainеd with the prosecution. Patterson v. New York, 432 U.S. 197, 206-07, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1979) (holding that while State may allocate to defendant burden of proof of affirmative defense, such as extreme emotional disturbance in murder prosecution, it cannot require defendant to prove defense which negates element of crime); see Martin, 480 U.S. at 233, 107 S.Ct. 1098. In second-degree rape cases,3 the prosecution has the burden of proving “forcible compulsion”4 beyond a reasonable doubt. Because consent appears to negate the element of “forcible compulsion” rather than provide an excuse (i.e., affirmative defense) for admitted illegal conduct, the State‘s requirement—that Spicer demonstrate that consent did in fact exist—seems to violate his constitutional right to due process.
The State, on the other hand, argues that the Washington legislature and courts have replaced nonconsent with “forcible compulsion” as the relevant element required for a rape conviction, so requiring Spicer to prove consent does not impinge on his due process rights. See Camara, 781 P.2d at 487 (holding that Washington legislature had removed nonconsent as element required for rape conviction, and, in light of Martin, State сould shift burden of proving consent to defendant as affirmative defense).5 Because nonconsent and “forcible compulsion,” the State asserts, are overlapping, but not exact counterparts, the court may require the defendant to prove consent as an affirmative defense but leave the responsibility of proving “forcible compulsion” to the State.
We need not reach the constitutionality of the jury instruction, however, because even assuming that it was constitutionally defective, the error would be harmless, for it did not have a “substantial and injurious effect or influence in determining the jury‘s verdict.” Brecht, 507 U.S. at 637, 113 S.Ct. 1710; see also Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 1833-36, 144 L.Ed.2d 35 (1999) (holding that giving jury instruction that omits element of offense is not structural error
We affirm the district court‘s denial of habeas relief, on the grounds that even if the state trial court had given the jury a constitutionally defective instruction, that error was harmless.
AFFIRMED.
McKEOWN, Circuit Judge, concurring:
Although I concur in the result reached by the majority, I am not entirely convinced that Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), answers the question here, i.e., whether harmless error review applies to a claim that the jury instructions inappropriately shifted the burden to the defendant to disprove an element of the offense. I do not believe, however, thаt this case requires further analysis of the review standard because the denial of Spicer‘s habeas petition can be affirmed on the ground that the state court decisions at issue arе not “contrary to” or “an unreasonable application of” “clearly established Federal law.”