*1 SMART, Francis Ronald

Petitioner-Appellee, Commissioner, LEEKE, South D.

William Corrections; Department Carolina Attorney South General

Respondents-Appellants.

No. 87-7737. Appeals, Court

United States Circuit. Fourth Zelenka, Atty. Deputy Chief Donald J. Columbia, S.C., respondents-ap- Gen., for April Argued pellants. 6, 1988. Sept. Decided Blume, (Brack Colum- & Bruck David I. 27, 1988. Rehearing Banc Granted Oct. brief), S.C., petitioner-appellee. bia, PHILLIPS, MURNAGHAN Before Judges. WILKINS, Circuit MURNAGHAN, Judge: Circuit principle of with a presented we are Here Smart Francis Ronald law revisited. South in a court for murder tried and sentenced convicted and was Carolina was af- conviction While the to death. Supreme by the South firmed vacated. Court, sentence the death terms consecutive Resentencing led to two for which The crime imprisonment. life causing charged was death had been Smart justifi- legal excuse wrongfully without cation. pleaded in his defense Smart put sufficient

and introduced in issue. very similar in some case resembles Martin, the case respects Griffin Cir.1986), rehearing en banc (4th F.2d 1172 Cir.1986). (4th F.2d granted, of habeas the writ denial court's district writ had case, though the corpus in that level, was af- panel at the granted been vote divided equally firmed Cir.1986) (4th Circuit, F.2d Fourth having vacated been opinion (the panel for certio- petition A grant). rehearing Supreme States United rari Therefore, pan- no has v. Martin el decision Griffin *2 authority may precedential but be referred crucial confronting us whether, to as an indication of what the law is then is in a South Carolina trial persuasive. 1984, it is found to be wherever before placed an instruction which v. Martin panel at the level the a defendant put who had Griffin finding burden of the absence of self-de- prove by issue the burden to prepon it a beyond fense a reasonable doubt was derance of pro the evidence violated due placed prosecution. cess under the Federal Constitution. Un law, der South Carolina an absence of self- panel decision in Since Griffin anis essential the crime subsequent there have been devel of murder where self-defense has in been opments quite directly which bear case, troduced into the case. Smart’s he presented present issues in the ease. The was tried under making a statute criminal Supreme Court of the United States has any “the person with malice Ohio, announced its decision Martin v. aforethought, express either implied.” 1098, 480 U.S. S.Ct. 94 L.Ed.2d 267 (Law. S.C.Code Ann. 16-3-10 Co-op. § (1987), Supreme and the Court of South 1976). The South Supreme Court Carolina has announced its decision in long has defined “malice” as the intentional Bellamy, State v. 103, 293 S.C. 359 S.E.2d doing act, of a wrongful legal without (1987). justification Foster, or excuse. State v. From Martin v. that, we learn 469, 476, 66 S.C. 45 S.E. (empha ingredients where all the of the crime are supplied). Self-defense, out, sis if made proven, and where the statute does not would legal justification amount to or ex require by prosecution rebuttal of self- cuse. The act wrongful. would not be defense, the self-defense is affirmative in Consequently the absence of by preponderance nature and the burden purposes, must, federal constitutional may evidence on the defense. prior even in 1981 or years, have been Bellamy, State v. From we learn that prosecution beyond established a longer South Carolina self-defense is no guilt reasonable doubt1 for of the crime to seeking affirmative defense. A defendant be established. rely to merely produce on self-defense need may importance evidence It is of utmost which cause a to realize reasonable doubt in the there are presented minds of the as to two different factors presence of that element. here for our 293 S.C. at consideration. One is known crime, 359 S.E.2d at Thereupon 64-65. as the elements of self-de the other is fense enters the proof. burden is burden of In order appreciate assigned prosecution prove factors, ab the difference between the two it is sence of necessary to understand the distinction be principle doubt. That new Wilbur, tween Mullaney v. South Car 421 U.S. olina while it contradict the earli (1975), 44 L.Ed.2d 508 not, er York, subject, itself, law on the Patterson v. New does 432 U.S. render the old law unconstitutional. (1977). In Mul 53 L.Ed.2d 281 Glover, 152, 154, Wilbur, laney 326 S.E.2d Supreme the unanimous cert. 105 Court held prac unconstitutional Maine’s (1985). 85 L.Ed.2d 503 presuming The new tice of requiring malice and applied law is to all cases subsequent tried preponderance Davis, of State v. to the date the evidence that he killed in a sudden heat (1984). Glover, 317 S.E.2d 452 passion adequate 284 S.C. at provocation based on 154, 326 S.E.2d at 151. The instant case in order to reduce intentional homicide was tried well before the In Patter manslaughter. 1984 from murder to son, Davis. decision in Supreme upheld a New York, 1886-1892, (1975); 1. See Patterson v. New 44 L.Ed.2d 508 In re Win (1977); 1068, 1071, Mullaney 53 L.Ed.2d 281 ship, v. 1881, Wilbur, 684, 691-704, distur- emotional make extreme it miti so could allowing a defendant statute York de- the benefited something if manslaughter bance charge of murder gate an af- prove as fendant by a could he legislature was emo extreme defense. he under firmative acted *3 prosecution rea the there was on the for which to cast free not disturbance tional According demonstrating the of or excuse. explanation entirely novel burden sonable be Court, distinction the disturbance. emotional Patterson the of extreme absence on is based Patterson Mullaney 207-08, Patterson, S.Ct. at at 432 U.S. tween law, considera under Maine law contrast, though that Maine fact the In 2325-26. as “malice” Mullaney, specified had in of defendant tion the burden Patter ingredient of murder. essential malice, presence an of the lack of showing 212-16, 2328- at 97 S.Ct. son, 432 U.S. at of the element traditionally an malice was in reasoned The Patterson By 30. the in state.4 of the murder crime had to malice, the state Maine immemorial, malice token, time since same doubt, encompassed beyond a ingredi- been self-defense has lack of or passion of heat of sudden absence the Car- South of of the crime ent at provocation. adequate based olina. hand, the other 2330. On at Carolina, state and South In both term use did not statute York New proof of self- of placed the law has ab therefore, York the in New “malice”; evidence of preponderance by a disturbance emotional extreme of sence South Carolina upon the of murder. definition of part not was aspect of his case on rests prosecutor of at the outset careful was White Justice as elements insofar the matter. point Patterson opinion concerned, is a vital there are of the crime causing person’s a York in New out differ- applicable distinction, namely, made alone so to do an intent with death in the the crime of as to the elements ence afore “Malice murder. of the crime out that sets South Carolina of Ohio laws the crime.” of not an thought 228, 107 Ohio, U.S. apart 198, 97 S.Ct. Patterson, (1987), on the 94 L.Ed.2d S.Ct. therefore, distin was Mullaney, 2320.2 case of Smart hand, instant overruled, in the means by no guished, but Leeke, other. Franklin, Francis case. See Patterson killing, even if In South authority). Mullaney not consti- good (citing does intentional, itself in and of mur- of crime, the crime especially tute (1967)3 when Moreover, time up until crime, it out make order to der. exist- into came in Patterson statute ef- the combined necessary to demonstrate was disturbance ence, emotional extreme lack of Since malice. fect murder. to the crime relevant simply not malice, once aspect is one not constitute of it lack did or the Its through the case has entered York New The crime. of the an element rele- of some by the presentation statute, provid- enacting legislature, prove malice evidence, failure vant the defend- of benefit something new ed from the is fatal doubt beyond a reasonable legislature before. present ant Irrespective of view. point prosecution’s it wished terms make such free to by the rebutted presumed and could just other things 2. In South by proving a only aforethought anis Mullaney "malice way. inAs heat of acted with that he indispensable element essential Patterson, Mulla- provocation. 212- U.S. at passion sudden of murder.” traditional at 2328-29. however ney held that we been, it is might have proceeding mode contrary Patterson, as con- Clause Process Due to the Winship. provo- strued [M]alice, absence in the sense at 2330. Patterson, of that cation, part the definition i.e., malice, provocation, lack Yet crime. subject, of the state law on under In re The state in such a case is excused Winship, 397 25 from absence of self-defense be- L.Ed.2d 368 as an element of the cause that element has not entered the case crime, proved by prose- any way. However, malice must be if it is introduced cution through production reasonable doubt. of credible evi- dence, presumption being malice— things In Ohio are different. The crime true presumption entirely disappears and — murder, under state is made out the matter proved becomes one to be prosecutor he or she shows the disproved by evidence. See State v. Roch- causing purposely prior of death and with ester, 200-01, 72 S.C. at 51 S.E. at 687. design. calculation and In Martin v. teaching that, Winship In re *4 the existence of those elements was not present when there is an proof issue of disputed by prosecutor the defendant. The goes crime, to an element of the the part Ohio is not of his case- proof beyond burden of a reasonable doubt in-chief to demonstrate malice. Without by prosecution. must be assumed the being considered, the of malice matter the by pointed It was prosecution; crime is established the out in the Martin v. Ohio that, burden, under by preponder- defendant has the Ohio “unlawfulness” evidence, of the convincing solely ance of defendant’s actions related the finder constituting acts though of fact that he or she committed and not to the murder, collateral it was of whether excused because of self-de- proper there was or was not intent. fense. The dissenters in Patterson v. New However, Carolina, S.Ct. at (Powell, Brennan, Marshall, South JJ.) York “wrongfulness” may relate to the (Powell, Brennan, defend- and Martin v. Ohio ant’s mens rea and well Blackmun, have to be JJ.) Marshall and would not proven by prosecution beyond a reason- have even allowed distinction the ma- not, however, able doubt. It is necessary made, jorities important but the thing is tangled patch to enter that forestry, that the distinction is here to be made. “legal inasmuch as the absence of cause or negates Self-defense an element of the clearly excuse” encompasses the absence Carolina, crime of murder in South where- of self-defense. See State v. negate as self-defense does not an element (1949)(self- 57 S.E.2d of the crime of murder in Ohio. The conse- legal defense constitutes a excuse for the that, quence case, in the instant federal another).5 constitutional law casts proof the burden of beyond a prosecu- reasonable doubt on the Hence, as the unequivocal- here was tion when the matter has become a factual ly repeatedly instructed that the bur- through one by introduction the defense of den of preponder- some evidence of self-defense. ance of the throughout evidence remained the district court’s important It is not to confuse “elements grant petition of a for a writ of habeas proof.” crime” with “burden of Even retrial, corpus, subject prompt prop- important South there is one limi- er and the issuance of the writ on that tation. proof pros- The is on the condition is affirmed. ecution as to lack of If self-defense. supply any defendant has failed to perhaps credible It tempting would have been evidence whatsoever of simply rest decision on the fact that case simply becomes one where there is no instruction confusing contained elements whatever, proof other, way one stating so on several occasions that the bur- a burden of proof beyond cannot come into den of a reasonable doubt question. In such pre- always and, there is a prosecution rests on the sumption of malice. equal degree repetition, See State v. opposite, Roch- ester, 194, 200-01, 51 S.E. 687 that burden as self-defense is an dispute 5. "There also is no that self-defense his- unlawful otherwise conduct.” Martin v. torically primary justifications is one of the 107 S.Ct. at had “A” of the victims three by the defendant be met affirmative the de- blood; other victim and type of a production through type “O” and Both had “O” blood. fendant possible it is' not the evidence.6 the defend- were found type “A” blood partly ground, comfortably on that rest The he was arrested. ant’s clothes that such indicates v. Ohio police at from the to flee tried defendant enough not to be clear could an instruction escaped for of the crime the scene fn.**. at 1102 jury. mislead his trial. during course of period short rest on need to Moreover, is no there shortly after made taped conversations The what has the basis On ground. arrest, apparently defendant’s the rationales opinion, gone before intoxicated, numer- contained he was while Carolina South Ohio case from the de- statements inconsistent ous distinguishable. clearly case of kill- from an admission ranging fendant crime of definition South only to an admission ing four victims all compelling language includes men in self-defense. killing the two (i.e., lack of prove malice prosecution the two female also stated Foster, 66 S.C. self-defense). See male murdered victims were one.of statutory definition *5 The 45 S.E. testi- introduced government The victims. repudia- requirement of no such contains the male moved had that someone mony its definition.7 in of self-defense tion shot. The they were after bodies victims’ appear does not Therefore, Ohio law while tending to evidence presented also process, due South to violate had fired of the victims that none show burden place the so as to interpreted day killings. of the pistol on the defendant, does. aon of self-defense hand, defendant, intro- other The however, argues, government The Sowell. testimony Dr. Wendell of duced instant charge jury that, gunshot if the of reports even Dr. reviewed Sowell requirements comport with not case conducted did tests which were residue issue not should they the writ had either process, and concluded victims We dis holding a harmless. was the error had been victims or the fired Clark, 106 478 U.S. last time In v. fired since the agree. Rose was when it pistol (1986), 3107-09, 460 hands. The their had washed they S.Ct. harmless used allegedly that the pistols held Supreme Court noted that also male California, by the two Chapman owned killings standard were error previous- 17 L.Ed.2d victims the male S.Ct. One victims. 386 U.S. aof jury instructions murder applicable to convicted ly had been Barnwell, Carolina. South unconstitutionally shifted policeman sen- a life parole from Under regard to intent. other was The persuasion with also The beyond a if, safecracking. is harmless tence Chapman, error relationship be- to the sexual not contribute doubt, it did asserted victims male of the tween obtained. the verdict repul- a cause victim was young female defendant. aggravation sion and In the instant in- had Services of Social Department The men, of two the murders guilty of found al- such report of earlier vestigated an not Myers, but Baxley and Leldon Hardy charges. no filed but leged misconduct Each two women. the murders guilty of is sufficient wounds, Clearly, there gunshot died of had victims refute, defendant’s support, as well suffered had also of them some though of such In view self-defense. assertions introduced government wounds. knife Cir.1984), was convicted defendant (4th Leeke, F.2d 246 See Thomas prior calculation with having “purposely, and rt. ce death another." design, caus[ed] Ann. quoting Rev.Code § 2903.01. evidence, beyond it cannot be said a reason- of placing a burden on the defendant to jury prove able doubt that the error in instruc- certain affirmative defenses. did not contribute to the final tions verdict. Oregon, Leland v. Therefore, the error was not harmless. (1952), 96 L.Ed. 1302 the Court addressed the pro- of whether due is, judgment of the district court cess was violated a state statute which (D.S.C.1987), F.Supp. 414 accordingly, required a pleading defendant insanity to AFFIRMED. establish beyond the defense a reasonable doubt. The who WILKINS, Judge, dissenting: Circuit degree, argued murder the first required that the prove In Martin statute him his by disproving innocence 94 L.Ed.2d 267 the Su- elements of preme charged. Court held that states The Court constitu- acknowl- edged tionally require might defendant to have affirmative- found ly mentally preponder- incapable pre- establish self-defense long ance of the meditation and govern- required evidence as deliberation degree first ment all murder or the the elements intent essential murder to both first and degree reasonable doubt. The second murder, majority attempts legally controlling evade but insane. precedent by distinguishing concluded that the Ohio statu- the state was tory “required aggravated prove beyond definition of murder in- a reasonable every doubt charged.” volved Martin from the of the crime definition of Thus, under Id. at despite South S.Ct. at 1005. Carolina’s statute. *6 overlap some proof The result reached is con- ele- mental ment trary precedent to essential to the offense and our to the insanity defense, I may circuit. therefore a state respectfully dissent. constitution-

ally place the burden of the de- fense on a defendant. I. Wilbur, In Mullaney It has questioned never been seriously L.Ed.2d 508 the Court requires that the Constitution that the bur addressed constitutionality of a Maine den be prosecution required law which charged defendant guilt beyond establish a reasonable with murder presumption to rebut a Winship, doubt. In re 361- prove malice and that he acted “in heat 1068, 1071-72, 90 S.Ct. 25 L.Ed.2d 368 passion provocation” on sudden in order Supreme explicitly de charge reduce a of murder to man- in Winship clared that “the Due Process slaughter.1 degrees Two of homicideexist- protects against Clause the accused convic ed under Maine law—murder and man- except upon proof tion beyond a reasonable slaughter. Murder was defined as un- every doubt of necessary fact constitute killing being lawful of a human with malice the crime with which he is charged.” Id. at aforethought, express implied, either or id. 364, 90 S.Ct. at 1072. at 686 n. 95 S.Ct. at 1883 n. (quoting Another “long-accepted rule was that it (1964)), Me.Rev.Stat.Ann. tit. § constitutionally permissible provide manslaughter as the unlawful that various affirmative being defenses were to of a “in passion, human the heat of proved by the defendant.” Patterson v. on sudden provocation, express without or York, New implied aforethought,” (quoting malice id. (1977). But, 53 L.Ed.2d 281 unlike (1964)). tit. Me.Rev.Stat.Ann. § rule, the reasonable doubt jury instructed, there have been The had been accordance challenges several to the constitutionality prosecution with “that if the Maine Although technically not proper understanding an affirmative de- essential to a opment of the devel- infra, fense see Mullaney discussion of of the law in this area. in- and the state bears was both the homicide established proving every element of the crime unlawful, malice afore- tentional charged, defendant is but the conclusively implied un- thought was to be may may prove separate issue which or prepon- proved a fair less the overlap proof of the crime. not with in the that he acted of the evidence derance provocation.” passion on sudden heat of Patterson, the Court faced the issue 95 S.Ct. at 421 U.S. at Mullaney, constitutionality requiring a de- omitted). held that (footnote The Court second-degree mur- fendant with process violated the instruction this prove der under New York law to the af- prosecution Winship that the mandate defense of extreme emotional dis- firmative every fact doubt prove beyond Maine, a reasonable As in the state of New turbance. charged. the crime necessary to constitute murder York made a distinction between Second-degree manslaughter. murder considerable Mullaney there was After required proof that the defendant intention- requir- constitutionality as to the doubt Patterson, person. ally killed another any affirmative prove ing a defendant at 2321 n. 2 at 198 n. many defense, insanity,2 because except (McKin- (quoting N.Y. Penal Law 125.25 § Patterson, urged, as did the defendant 1975)). ney Manslaughter was defined as that: person killing of another the intentional may permit the blame- [T]he do not consti- “under circumstances which severity of of an act or worthiness acts tute because [the defendant] its commis- punishment authorized of extreme emotional under the influence or ab- presence depend on sion to Penal (quoting N.Y. Law disturbance.” as- fact without an identified sence of 125.20(2) 1975)). (McKinney Consistent § pres- proving the suming the burden instructed New York law the fact, the case of that ence absence had to his affirm- that the defendant be, a reasonable doubt. preponderance of the by a ative defense York, 432 U.S. at Newv. Patterson held that the defense The Court evidence. omitted). (footnote adequate, finding that constitutionally interpretation and rejected insanity comparable to it was holding: “Mulla- subsequently clarified separate issue on constitutes a “it every must held that a State *7 ney ... carry required is the defendant reason- of an offense ingredient Patterson, 432 persuasion.” the burden of shift the doubt, it and that able 207, The Court at 2325. at 97 S.Ct. by pre- expressly stated: upon proof of ingredient suming that adopt as a constitution- decline We ... 215, offense.” Id. other elements countrywide, operative imperative, al at 2329. rea- disprove beyond a must that a State constituting any every fact Mullaney squarely held that sonable doubt The Court Proof defenses.... affirmative presumption and all as a be classified should de- of all affirmative little, guid of the nonexistence any, if it offers therefore constitutionally never been fenses has defenses. of affirmative on the issue ance reason to perceive no we required; and presumption as in other Mullaney, apply in this case and a rule fashion such improperly relieved cases, the state extreme statutory defense to the [of it proving an essential the burden emotional disturbance]. charged, and the burden unconstitutionally to the S.Ct. at shifted See, e.g., Hanker the element. disprove II. Carolina, 432 U.S. North son v. v. Ohio recently, in Martin (1977). How More raised same cases, examined here Court ever, defense in affirmative Delaware, permis- era v. constitutional reiterated the The Court (1976). sibility placing burden on defendants dismissing appeal insanity by in Riv- (1) process defendant was not is violated fault here of whether [T]he upon creating giving who is placing the situation rise to murder, requirement argument; affirmative defense.3 as an (2) defendant had an honest belief [T]he Smart, placing argued, as does Martin danger she was imminent prove the on her to affirmative the burden great bodily death or harm and that her required impermissibly her to ne- only escape danger means of from such of the elements of murder. The gate one force; in the use of such rejected this contention (3) defendant must not have violat- [T]he compelled to do likewise here. and we any duty danger. ed to retreat or avoid Martin v. A. Likewise, in 94 L.Ed.2d at 272. of the unlawful act Martin was convicted accordance with law South Carolina aggravated is defined un- murder which time, at that instructed “purposely, prior and with der Ohio law as similar Smart was four design, causpng] the death calculation and elements of the evi- 2903.01(A) Rev.Ann. of another.” Ohio § dence: (Anderson 1987). Smart was convicted of (1) bringing was without fault [H]e murder which is defined under South Car- difficulty. “the of anoth- olina law as unlawful (2) actually in im- he was [H]e believe[d] aforethought, express either er with malice danger losing minent his life or of Johnson, State implied,” or sustaining bodily injury serious or that (1987) (citing 352 S.E.2d S.C. actually danger he was in such imminent (Law. Co-op.1976)), Ann. 16-3-10 Code § losing sustaining his life or of serious being further defined as the inten- malice bodily injury. act, doing wrongful just tional without his defense is based his Foster, [I]f cause or excuse. State danger, of imminent that a reason- belief (1903). 45 S.E. prudent ordinary man of firmness able Martin asserted that she acted in self-de courage entertained the would have under Ohio law is an affirma fense which belief, or if his defense is same based rendering justifying law tive being in upon his actual and imminent State v. conduct. ful otherwise unlawful danger, the circumstances were Davis, App.3d 456 N.E.2d ordinary such as would warrant a man of Morris, (1982); App.3d 8 Ohio courage prudence, firmness and to strike 12, 455 N.E.2d Similar a fatal blow to save himself from serious ly, also asserted a com Smart harm, losing bodily his life. constituting jus plete defense an excuse or *8 avoiding He no other means of had tification for murder under South Carolina sustaining danger losing his life or the Martin, 129, 133, v. State law. 216 S.C. 57 bodily injury than to act as he did serious 55, (1949). 57 Pursuant to state S.E.2d particular instance. on Martin to burden was Davis, 282 S.C. 45, State v. 317 S.E.2d See prove following elements of self-de (1984).4 452 by fense of the evidence: 46, Although the previously 317 S.E.2d at 453. declined to address the S.C. at 3. The Court relieves the defendant of the burden Hankerson v. North instruction issue in 3, 245, 3, by preponderance, and self-defense at 237 n. 97 S.Ct. at 2342 n. 2346 27, Moran, (Ohio rejected App. supreme as No. Oct. court the defendant’s State v. 45879 state WESTLAW, 2712], 1983) on 1983 WL Davis that the affirmative sertion in [available 948, 350, denied, proof unconstitutionally cert. 83 shifted the burden of (1984). previously relied L.Ed.2d 285 existed. The court as it holding previous v. Bolton that in State its Davis, Mullaney did the Court hold that Supreme ”[n]owhere requiring South Carolina Court 4. In prove self-defense af a defendant to proceed instructed the trial courts to with a new Davis, process.” firmatively, him due 266 S.C. denies instruction in self-defense cases. 282

617 defendant the shift to the does not “Ohio process was that holds majority any element of the disproving burden to on Smart placing the by violated at 107 480 case.” state’s it amounts because self-defense at 94 at negates which or excuse justification legal absence consequently the said here since and must be malice same by the indistinguishable. fundamentally established must cases self-defense rea- the fact that This dwells on doubt. While beyond reasonable state Carolina law under South in Mar- malice is defined analysis contrary to soning is justification acting wrongfully without overlap of that held tin where self-defense constitutes excuse and that or murder and elements proof between excuse, preoccupation this and justification permissi- constitutionally perceive I unwarranted. semantics is with from the state prohibit ble, did not and law which between distinction little on the burden placing is subsumed that unlawfulness provides Rather, fo- the critical the defense. murder and constituting the elements un- jury instructions whether cus was un- pursuant law South Carolina of its constitutionally relieved murder. Like- element of is an lawfulness burden. difference wise, fundamental there is no and South Car- under Ohio between B. in- though expressly olina law even that recognized Martin, Court the ele- of murder in its definition cludes honest of an requires aforethought of malice ment —intentional seri- death or danger of cause or just imminent conduct without wrongful belief generally evi- re- that not. For does bodily harm another ous excuse—while may word a state support gardless this of how offered dence definition, concept of criminal law prior calcula- a basic negate purposeful not constitute does a homicide Powell stated that design.5 As Justice tion unjustified it is unless of murder Patterson, this con- “Under in his dissent: Scott, A. Hand- & W. LaFave unexcused. preclud- that Ohio suggest should clusion (1972). Law 68 on Criminal § book to self-de- shifting the burden from ed 239, 107 S.Ct. fense.” C. However, the 94 L.Ed.2d “elemental” merits to re- Whatever permissible it was held Court Mar- majority of the analysis, prove self-defense quire Martin Circuit,” charge "the the Fourth oí 223 S.E.2d applied all cases shall be approved in Davis, Davis the court between Bolton interim decision, so subsequent to the date of tried arguments that rejected six occasions at least objection contemporaneous made long as unconstitutional. the affirmative 326 S.E.2d Id. at trial." Finally, 290 S.E.2d Finley, 277 S.C. v. See State Bellamy, S.C. v. in State Griffin, 285 S.E.2d (1982); 277 S.C. State v. a murder court reversed S.E.2d Linder, S.C. (1981); v. State comply the Davis for failure conviction Crocker, (1981); State S.E.2d 344, address state’s charge. refused The court McDowell, (1979); S.E.2d 764 constitutionally charge was that the contention adequate (1978); State v. S.E.2d 916 272 S.C. Ohio, instead pursuant to Martin Atchison, cert. 235 S.E.2d comport with South finding “it does *9 105, S.E.2d 359 Id. at law.” 181 150, 152, Glover, S.E.2d will only 326 rarest case realistically, in the In State 5. More 2147, 1068, danger denied, 85 imminent 105 of belief proof of an honest cert. design. Since again (1985), reiterated negate prior court calculation and the 503 not L.Ed.2d scheme under the constitutionality defense. of the affirmative validated Court the the virtually all disagreement in overlap proof will exist However, emphasizing its after asserted, is Leeke, self-defense 725 F.2d cases where holding Thomas v. with the Car- 870, why the South denied, logical reason 105 no Cir.), U.S. is there (4th 469 cert. 246 because be invalidated (1984), scheme should 218, see discussion olina 83 L.Ed.2d self- every where overlap case will be the "cured there had that it infra, court the stated charge of murder. to a is asserted complained violation purported constitutional deciding “in there was a point dence whether rely solely on tin did not sufficiency the on burden doubt the placement the about upholding the affirmative de- the defendant the state’s of the elements Id. 480 U.S. at 107 S.Ct. at U.S. at 107 S.Ct. at fense. 480 crime.” Rather, impor- more L.Ed.2d at at 274. 94 L.Ed.2d that while the stressed tantly, car-

jury was instructed D. self-defense proving ried the burden In clearly rejected the the Court evidence, it was preponderance of majority that argument espoused was that the state also instructed simply assert aggravated mur- each element murder in particular definition of The Court reasonable doubt. beyond der overlapping the ele- can be read as stated: self-defense, ments of then the affirmative jury if the quite different It be would necessarily unconstitutional. evi- that self-defense had instructed been impli- Powell insisted that the clear Justice in deter- considered could be dence cation of Patterson was that “when was a reasonable mining whether there negate an element affirmative defense does case, i.e., that state’s about doubt crime, may not shift the the state put aside must be Id. 480 U.S. at 107 S.Ct. at burden.” it satisfied the purposes unless for all But, 94 L.Ed.2d at 277. whatever instruc- standard. Such contention, the Court has merits of such a of its relieve the state burden tion would binding clearly spoken and result its Winship’s man- plainly run afoul today. our decision in this case could date. The instructions respect, when read in this but be clearer whole, they adequate as a we think III. convey jury that all of Moreover, ignores precedent going to evidence, including the evidence on sev reiterated of this circuit which has considered in decid- must be constitutionality plac eral occasions a reasonable ing whether there on a proving ing the burden sufficiency the state’s about doubt emphasizes the va and instead crime. elements of the proof of the panel decision in cated Griffin 233-34, 107 480 U.S. at (4th Cir.), reh’g en banc F.2d 1172 omitted). (citations Justice L.Ed.2d at 274 (4th Cir.1986) (denial granted, F.2d 22 reasoning to recognized Powell by an corpus affirmed relief of habeas holding he articu crux of the Court’s denied, court), cert. equally divided “The thus lated his dissent: L.Ed.2d 691 long that as as to conclude seem[ed] applicability (1987), questionable that the has

jury is told Mullaney v. Wilbur.6 crime, the over proving all elements of (4th Leeke, F.2d 246 In Thomas v. the defense is the offense and lap between cert. Cir.), immaterial.” Id. this court held one here charge to the jury similar here as a Reading jury instructions contradictory and unconstitutionally judge re- whole, the trial it is clear that majority ac confusing. state bore the that the peatedly instructed Martin, the instruction knowledges, under element of the of- burden of each unclear and longer no be considered would reasonable doubt. fense And, Judge Hall discussed misleading. not restrict- importantly, the And Thomas, at 252- 725 F.2d in his dissent considering self-defense evi- ed from *10 ing applicability. its elected not to cite the 6. The Martin decision, thereby implicitly question- Mullaney

619 prov- of the ultimate burden bore upheld con previously has court 54, the beyond a law, of ing the elements all Carolina stitutional, under South light of clear this doubt. proving of the burden of placement precedent of this prior holding, on self-defense of affirmative plainly Martin, circuit, F.2d instructions 735 Smart’s defendant, Maxey v. 577 The is- under Vir process mandates. Cir.1978) (Table), as well as satisfied (4th Muncy, 619 corpus F.2d 327 should of v. habeas of writ Baker suance ginia Weatherholtz, v. Cir.1980); Frazier (4th vacated. therefore Cir.), 439 cert. (4th 994 F.2d 572 191 (1978).

IV. proving all of

Historically, the burden “indeed, circum- ‘all affirmative defenses — MARIETTA In re MARTIN excuse, allevia- justification, stances CORPORATION, defendant_ This tion’ —rested Appellant. Amendment Fifth when the rule was rule the American it and was adopted, Plaintiff, America, STATES UNITED was rati- Amendment the Fourteenth when 202, 97 S.Ct. Patterson, at fied.” also Mar- see omitted); (citations at 2322 POLLARD, C. William 1103, 94 at tin, at Defendant-Appellee. govern- the federal at After L.Ed.2d proving the the burden ment assumed No. 87-3648. v. United Davis sanity of a Appeals, States United 353, 40 L.Ed. 469, 16 S.Ct. States, Circuit. Fourth under- also many jurisdictions sanity dis- proving the burden took 8, 1988. April Argued defenses, even affirmative other proving 6, 1988. Sept. Decided not consti- ruling of Davis though the Oregon, grounded, Leland Banc tutionally Rehearing Rehearing 1006. Prior 797, 72 S.Ct. at 14, 1988. Oct. Denied only two were the Carolina and South Ohio the burden remaining states proving further the Court And as asserting it.7 constitutionality

noted, “by resolved not be should practice other States.” practices

cataloging the U.S. at widespread changes

Notwithstanding the found states,

in other of murder overlap of despite constitutionally it was the burden place permissible long as 1103, L.Ed.2d U.S. at "all but two Court noted 7. In issued, South time Martin At 275-76. States, have aban- and South law common abandoned had also require the rule and law common doned the Davis, S.E.2d rule. of self-defense absence prosecution to note See by the defendant.” properly raised it