*1 SEILER, Appellee, Leroy S. THALACKER, Appellant. A.
John
No. 96-1157. Appeals,
United States
Eighth Circuit. Sept.
Argued 26, 1996. Nov.
Decided 2, 1997. Jan.
Rehearing Denied
At
evidence,
of
close
instructed on three alternative theories of
first degree
felony
murder:
murder while
participating in
injury,
willful
felony murder
participating
while
in
degree
first
burglary,
and
and deliberate murder.
McGrane,
D.
Attorney
Thomas
Assistant
The
general
returned .a
verdict of
General,
Moines, IA,
argued,
appel-
Des
for
degree
first
murder.
lant.
On
direct
Seiler contested the ac-
Volz, argued,
A.
Rapids, IA,
Kaen
Cedar
curacy under
state law of the
fop appellee.
felony
for
committing
a first
degree burglary.2
Supreme
The Iowa
Court
BEAM, HEANEY,
MURPHY,
Before
and
held that the instruction was incorrect under
Judges.
Circuit
Iowa, law because it
physical
omitted the
injury
degree
element
first
burglary.
MURPHY,
Judge.
Circuit
Seiler,
(Iowa
State
N.W.2d
Leroy Seiler
degree
was convicted of first
1983) (en banc). Nonetheless, it affirmed the
imprisonment.
murder and sentenced to life
conviction
holding
after
in-
erroneous
Supreme
After the Iowa
Court affirmed his
struction
prejudicial
was not
because the
conviction,
petition
Seiler filed
for a writ of
could not have failed to find the intentional
corpus
argu-
§
under 28 U.S.C.
infliction of physical injury that
trigger
ing
an error in the
instructions violated
Id. The dissent
process
his due
and Sixth Amendment
objected that
holding
the court’s
in effect
rights.1 The
court conditionally
district
is-
directed a verdict for the state on an issue it
writ,
sued the
and the State of
appeals.
Iowa
obligated
prove
reverse.
We
doubt and that the evidence was insufficient
to overcome the presumption
prejudice.
I.
Id. at 269.
The evidence at trial
showed
Seiler
Seiler then
application
filed an
postcon-
hidden
a tavern to steal the cash on
viction relief. He asserted ineffective assis-
closing.
hand after
The tavern owner had
tance of counsel at trial
and on
result-
him,
discovered
and
the struggle that fol-
ing from the failure of
appellate
trial and
lowed,
grabbed
Seiler
a meat cleaver and
object
counsel to
adequately
to the
in-
struck him. The victim died of numerous
application
denied,
structions. and
injuries,
including
head
two massive skull-
Supreme
the Iowa
Court denied further re-
penetrating
from the
blows
cleaver. He had
view.
profusely
bled
many
and
inju-
suffered
other
ries, including a
multiple
severed thumb and
petition
Seder next filed a
for habeas cor-
samples.
cuts. Blood
matching
pus,
those from
arguing
element,
that the omission of an
Seiler and the
public
victim were found in a
felony
the instruction for
murder while
shower at a hotel across the
committing
street
burglary,
violated
bloody
tavern. Seiler’s
clothes and the mon-
his due
rights.
Sixth Amendment
ey from the
were found
apart-
tavern
asserted that Iowa law
stayed
ment where
night
state to
he committed
a first
murder. Seiler had also been seen
near the
before
murder rule could
tavern at closing time on
night
apply.
§
Iowa
Code
702.11. First
killing.
burglary required proof beyond a reasonable
alleged
1. Seiler also
equal protection
2. Seiler also
constitutionality
contested the
was violated
search
instruction.
warrant
the clothes
money
rejected
argument,
were
found.
Iowa
this
and Seiler has
rejected
argument.
.
State v.
appeal.
abandoned it on
(Iowa 1983) (en banc).
N.W.2d
Instead, the
state remedies.
to exhaust
Seil-
that while
specific
to “a
federal
refer
applicant must
weapon, or inten-
“dangerous
possessed
er
particular constitution-
inju-
right, a
physical
constitutional
recklessly inflict[ed]
tionally or
case, or
provision,
al
federal
713.3.
Iowa Code
ry
any person.”
raising
pertinent federal con-
a state ease
stated:
jury at
The instruction
the state
in a claim before
stitutional issue
*3
un-
Degree Murder
First
considering
In
Trickey,
F.2d
Kelly
courts.”
Doctrine, you are
Felony-Murder
Cir.1988)
(8th
Wyrick, 622
(citing Thomas v.
when
provides that
that the law
instructed
(8th Cir.1980)).
F.2d
[sic]
when
a
person commits
by force or
performed
burglary is
proeedurally de-
argues
The state
Seiler
will of the other.
process and Sixth Amend-
the due
faulted
claims are not
because those
that
ment claims
instructed
You are further
adequa-
regarding
his claim
equivalent to
felony.
is a forcible
Iowa
burglary instruction under
law
cy of the
re-
this instruction
contended
Seiler
appeal.
in his direct
Seiler
raised
all elements of
proving
the state of
lieved
effectively
the consti-
raised
that he
contends
took an
doubt and
beyond a reasonable
crime
citing
case
claims
tutional
away from the
of the crime
element
a fair trial. He
stating he was
denied
found that the error
The district court
the Iowa Su-
the dissent shows
contends
rights to
jury instruction violated
the constitutional
aware
preme Court was
of
trial,
these
and that
a fair
questions.
harmless. The
were not
violations
writ of habeas
conditionally issued the
court
appeal that the
argued in his direct
Seiler
com-
state to either
ordering the
corpus,
the neces-
improperly instructed on
jury was
retry
six-
Seiler within
proceedings
mence
for conviction
sary
under
law
Iowa
custody.
ty days
him
or release
committing a first
felony murder while
of
Seiler contended
pro-
arguing that
appeals,
Seder
state
burglary instruction could
caused
claims
cedurally
his constitutional
defaulted
him
of the lesser
jury to find
appeal he
raised
in his direct
degree burglary
offense of second
included
in-
concerning
law issues
of
even
convict him
but still
concedes
The state
struction.
degree bur-
Iowa law a second
incorrect,
but asserts
instruction was
underlying crime for
glary cannot be
instructions
the context of other
§ 702.11. He
felony murder.
Iowa Code
Seiler’s constitutional
error did not violate
ju-
instructing the
improperly
concluded
any con-
argues also that
rights. The state
they
to find
rors on the elements
light of
was harmless in
stitutional violation
deprived him of
fair
concerning the
overwhelming evidence
trial.
physical injury.
intentional infliction
cited Jack-
court
In his state
II.
307, 318-19, 99
Virginia, 443 U.S.
son v.
(1979).
2788-89,
consid
61 L.Ed.2d
may
court
Before a district
Jackson,
held
petitioner
corpus petition, the
er a habeas
required a federal
Amendment
remedies.
U.S.C. Fourteenth
must exhaust state
the record evi-
2254(b).
examine whether
satisfy
re
To
the exhaustion
guilt
reasonably support
“fairly pres
must
dence could
quirement,
petitioner
sufficiency
reviewing the
to the state courts
ent” the federal claims
at
any
petition.
opportunity to
give the state the
correct
regard-
any issues
prisoners’ federal The Court did
address
alleged violations of its
—
—,
constitutionality
instructions.
ing
Henry,
rights. Duncan v.
opinion,
part
to a
—,
did refer
865 Seiler
however,
general state-
curiam).
contained- a
Presenting
(per
similar
necessity
proper
instrac-
ment
right is
about
state claim to the federal
insufficient
(1990),
tions
reasonable doubt for all elements of
because there is not a reasonable
318-19,
a crime.
Id. at
III. examined whether the error in the in petition his corpus, for habeas prejudicial. Seil structions was a state When argued er error the first bur court has not reviewed on direct glary instruction violated his harmless, whether a constitutional error was rights because the state did not have this court examines the error to determine prove all elements of the beyond crime it beyond whether “was harmless a reason reasonable doubt Lockhart, and Sixth Amendment able v. doubt.” 998 F.2d Orndorff rights (8th 1426, Cir.1993). because it took an element 1430 The record is away crime novo, from the The state con reviewed de and the is issue “whether incorrect, cedes the instruction was but possibility” there is reasonable argues there was no constitutional violation contributed the conviction. v. Williams Boyde 370, California, 380, Clarke, (8th v. 1529, Cir.1994). 494 U.S. F.3d 1541 40 1190, 1197-98, 108 heavy L.Ed.2d 316 The state proving has burden in act intentional that Seiler’s found reasonable harmless an error Moreover, even death. victim’s caused the whether test is not Id. The doubt. did challenged instruction though the support a convic sufficient evidence requirement spell out specifically Rather, is harmless an error Id.
tion. degree burglary, injury for physical properly consid actually and if “what overwhelmingly showed ‘so evidence decision-making process was ered in during the injuries physical suffered have victim decision overwhelming’ that pool- awith beaten had been burglary. He fac the invalid absent even the same been a meat repeatedly struck 391, Evatt, stick 500 U.S. (citing v. Yates tor.” a severed many cleaver, cuts L.Ed.2d 1884, 1893-94, 114 404-05, 111 S.Ct. skull- from massive 62, thumb, had died McGuire, and he 502 U.S. (1991)); v. Estelle con- injuries. The (1991) penetrating head 482, 116 475, L.Ed.2d 72, 112 S.Ct. physical infliction the intentional cerning be examined must (faulty instruction over- was so during the injury and the a whole of the instructions context the whole context 570, given Clark, whelming that record); Rose v. evidence, any of a error and the 3109, 460 instructions 3101, challenged in- nature (entire be reviewed should beyond a reasonable structions was whether determine Hasting, doubt. harmless); States United n. n. *5 the reverse conditional Accordingly, we (1983) (“Chapman mandates 96 remand corpus and a writ of grant of prior to the entire consideration judgment can be vacated. so er for constitutional reversing a conviction ...”). may be harmless rors that dissenting. HEANEY, Judge, Circuit theo- three alternative jury considered the court on the district would affirm I and returned degree murder first ries of opin- thorough well-reasoned of its basis not does guilty. Seiler verdict of general district court’s agree with each I ion. premedi- complain about the (1) exhausted conclusions, namely partici- felony while or murder tated murder respect to the remedies with state injury. er- The harmless a willful pating in (2) the petition, corpus in his habeas claim the incorrect whether is ror therefore issue felony faulty instruction commit- while murder instruction of a constitutional to the level rose murder contributed burglary ting (3) subject to harmless- violation, is the error conviction. analysis, and that contends Therefore, respectfully dissent. harmless. prevented it fol- instructed trial court offense of considering lesser included lows: fails but his second totality of the to consider 17No. Instruction overwhelming tions and intentionally during struck victim was person commits provides The law it could jury was burglary. The instructed Degree he in the Second Murder if burglary Seiler killed find first implied express or with either another kills participating in while victim aforethought. malice Jury other.” against will of the “force De- in the First However, it is Murder de- 16, to all applied addition, if, in he: gree, theories, jurors informed gree murder premedi- deliberately, and Willfully, mur- guilty of first find Seiler person. kills another tation find reasonable they must circumstances, howev- several There are intentionally vic- struck the that Seiler Murder er, becomes where re- tim, causing his death. Since Degree. it must First guilty, verdict of general turned One circumstance is the so-called “Felo- doubt that instruction 28 inwas error and ny That Doctrine.” is one presented where the error was to the state —Murder person kills another with malice afore- court. thought felony. [*] type (cid:127) Other instructions further of First [*] participating [*] Degree [*] Murder. in a forcible [*] explain [*] one. The Due accused Moreover, the error against proves Process Clause a criminal conviction unless awas a reasonable doubt protects an every fact necessary
Instruction No.
for the
crime with which
charged.
accused is
In re Winship, 397
In considering
Degree
First
un-
Murder
358, 364,
1068,
U.S.
1072-73,
Doctrine,
Felony
der the
you are
—Murder
(1970);
L.Ed.2d 368
see also Sullivan v. Lou
provides
instructed that the law
that when
isiana,
275, 277,
508 U.S.
2078,
113 S.Ct.
person
[sic] a
commits
when the
2080,
(1993);
The trial court’s instructions authorized tion. The instruction violated Seder’s to find guilty the defendant process rights-and to a fair finding based on de- trial. fendant perpe- committed murder in the tration of a burglary. The court did not I agree with both the district court and the define or tell the only first- majority that faulty the effect of the degree burglary would enhance the offense jury’s subject tion on the verdict is to harm- first-degree murder, despite timely analysis. less error appropriate inquiry objection defense pointing out the error. for this court is set in Chapman forth v. holding This equivalent court’s is the of California, a directed verdict the State on an issue for (1967): whether the state has obliged the State was proved that the harmless reasonable doubt. majority reasonable doubt. The finds that (McCormick, J., at 268-69 dissenting) the error was in light harmless of “the totali- added). Thus, (emphasis ty there can be no instructions and the over- to re- directions court with to the district inten- victim
whelming evidence trial a new to the state Maj. mand it burglary.” during the tionally struck properly-instructed the extent that To Op., supra of Seiler’s on majority relies proper- that a strong belief own
guilt and its Seil- convicted have jury would
ly-instructed error. grave er, it commits this issue. directly on spoken has Court in a facing this court question , Sheldon, MYERS, Allen David Chris Jr. analysis, Strohbehn, D. and Kurtis that occurred whether, a trial Appellants, would verdict error, guilty without rendered, but whether been surely have in this actually rendered guilty McVay, verdict HUNDLEY, Ruth Jim Thomas to the er- surely Nichols, unattributable Emmett, Helling, Debbie John hypothe- so, Sally must be Welder, That ror. Anderson, Ron Mike never that was verdict guilty size fact Halford, Appellees. inescapable the how matter rendered —no No. 95-3901. might be— verdict support findings to guarantee. jury-trial violate Appeals, States United 2081- Sullivan, 113 S.Ct. at Eighth Circuit. U.S. at added). jury explicitly Had the (emphasis 12, 1996. Sept. Submitted its verdict based 27, 1996. Nov. sufficient evidence Decided certainly would be there However, as jury’s verdict. support nor stands, state court neither the whether the I know majority nor premeditat- believed have It would felony murder. ed murder prepared to have matter simple
been permitted that would form verdict finding each separate
jury to make that, -I cannot conclude Failing
instruction. *7 did this doubt that
beyond reasonable felony- on the erroneous verdict base its instructions.
murder accepts the majority totality light of disagree. The I jury instructions. argument is that basis for possible missing 28 are 17 and supplied when are however, remains, fact together. The
read find permitted in the first guilty of per- burglary that was committed of anoth- against the will
formed force jurors’ minds read the We cannot
er. of that missing elements
supply
tion. to affirm
Thus, hesitate matter remand court and would