*2 MURNAGHAN, Before HALL and Cir- gave four dollars. Thomas began to Judges, cuit HAYNSWORTH, retreat, Senior heading away from Hunter and Circuit Judge. toward the door. At this point, various accounts di- MURNAGHAN, Judge: Circuit verge. According to witnesses for Thomas, Sarah who was convicted state, ought Thomas turned said “I murder and sentenced to imprisonment life you,” kill and shot four Hunter times. Ac- prosecution in a in the courts of South Thomas, cording to she heard Hunter Carolina, appeals from the order threaten to kill her as she retreated United States District Court for the District dоor. Thomas saw him reach toward Carolina, 547 F.Supp. denying South side, bulge at his which she believed be a
her a writ of habeas corpus. She asserts gun, and shot Hunter three times.1 Thom- the constitutional of her invalidity convic- as’ version of the facts was corroborated on tion the grounds eyewitness, Gloria White. wrongly regarding instructed the burden of proving self-defense. II. that,
Because context, we think read in The trial judge presented to the jury regarding self-de- possible murder, verdicts of fense we constitutionally inadequate, guilty manslaughter, аnd not Af- guilty. reverse the order the district court and ter instructing state had direct to issue the writ unless Thomas is proving guilt beyond every tried anew period within such reasonable doubt, reasonable the court defined the district court fix. manslaughter, and malice. The court charged I. the jury: willful, Thomas was convicted murder Murder is defined as the felonious shooting being Carnell Hunter human October of a with malice passing discrepancy they produced 1. We observe in fired Thomas were regarding Hunter, two accounts number shots death of we need not on a dwell below, parties, fired. Neither the explained nor the court disposition our consideration immaterial to acknowledged or even the conflict. case. Since the shots themselves are relevant aforethought, being that malice Four, either reached a similar conclusion. expressed implied malice or malice. where both the deceased and the defend- is, ant are ground, on common that where judge defined malice as follows: be, both have a right to then the defend- Malice wickedness, is a word suggesting ant must show that she had no other hatred, and a determination to do what *3 safe, reasonably adequate, or obvious one knows to be wrong just without means of escape or way [avoiding] cause or excuse or legal provocation. danger of her life losing sustaining or The court provided two, also apparently serious bodily except harm to act as she interchangeable, definitions of manslaugh- .did. ter, the second of which was the unlawful or felonious of a
human being withоut malice in sudden here, Where the up, defendant sets heat passion upon a legal sufficient the plea of self-defense and undertakes to provocation. present a apparent case of danger which is honestly believed in as a judge then set out the defense of self-defense, justice should in accused con- instructed the jury re- sider all garding surrounding proof burden of circumstances respect to and facts calculated to influence motive. proof self-defense, Burden of I charge Self-defense. Mr. Foreman and mem- you that while in South Carolina bers of the jury, the law of [the South Caroli- State bound to prove every material recognizes na ] the right every person to allegation or claim of the defend indictment be- herself from death or serious bodi- harm; yond every reasonable doubt in order ly this, and to do she may use such conviction, accused, obtain a force as is if she necessary, even to the point of to excuse taking killing by a human words, relying life. In other seek[s] plea self-defense, required self-defense is a complete defense and entitles charge[d] plea one establish such by with an unlawful preponderance homicide to an acquittal greater or or weight a verdict of not guilty evidence, if legal elements of the therefore held to a a plea of self-defense are lesser degree shown to than your the State. [sic] satisfaction by the I you evidence. The told right explicitly that of self-defense rests upon proof on the necessity, beyond every ei- State is rеa- ther actual or reasonably apparent. sonable plea doubt. On the of self-de- order to plea establish the self-defense, fense, the defendant must establish that any homicide the accused plea [in] must the preponderance show four things. First, that she was not greater or weight the evidence. The in fault in bringing about the immediate preponderance or greater weight of the difficulty or the necessity for her taking evidence simply greater means the human life. Obviously, one cannot amount of the truth on that issue. It through fault, bring on a difficulty, demonstrated thinking of an and then claim the defense of self-de- ordinary or merchant you scales. When Second, fense. that at the time she fired plea consider the it starts shot, fatal she believed in good faith initially with the scales level and even. that she was in danger imminent of los- In order for the defendant meet ing her life or sustaining serious bodily required burden of self-defense harm. Imminent means greater immediate —not weight or preponderance past future, or but present. Third, she tip those sсales such belief was reasonable and that a slightly ever so in her favor on that issue reasonably careful and prudent woman, burden; in order to meet the required woman of ordinary firmness and courage tips and if she slight- those scales ever so situated in like circumstances would have ly in her favor on the issue of self-de-
fense,
required
has
(1975),
she
met the
burden of
the Supreme
L.Ed.2d 508
proof.
If however those scales remain
applied the rule of
Winship
reaching its
they
even or if
so
tip
slightly
ever
that,
determination
where a State makes
favor, she
State’s
has not met
the re-
heat-of-passion
on the
of the accused a
quired
proof.
The accused is
guilt,
factor relevant
degree
guilt,
every
entitled
the benefit of
reasona-
the due
clause
requires
prosecu-
ble doubt
arising upon
whole case
tion to bear the burden
on the
issue,
considering
after
the testimony for and
heat-of-passion
„
,
,
,
„
against any
upon by
defense relied
.
S”1'4'
not the
oí the evidenceis
l
’
’
in her favor if you entertain a reasonable ,V'““
„
If
S
(1977) The
hap
dоubt as to
guilt For under those ^dJ81
Pattern
constitutionality
*1*
of a New York
*4
"I**1'
circumstances,
your
it
be
would
sworn
cas4
acquit
duty to
the defendant or to find law
4hi,l>“r-
*!’“*
den
of
of
the
Provm&
guilty.”
the defendant “not
j.
.
..
the affirmative defense of ex
mp
supp
)
asís
le
treme emotional disturbance. That defense
At
charge,
the conclusion of the
Thomas
manslaughter, not,
COuldreduce murder to
trial attorney
timely objection
made a
to
however,
to complete
lead
acquittal. The
the courts
instruction
the
Court,
profess
Patterson
did not
to overturn
proof in
jury,
self-dеfense. The
after it had
it
MuUsney
sought
distinguish
rather
to
it.
begun
deliberations,
its
returned to the Notwithstanding Justice Powell’s compel-
again
was instructed on the K daim
the
majority
Pattersm
did
^f^00111
definitions
manslaughter,
murder
so «on the
language
basis
distinctions in
deliberation,
malice. After further
the jury
that are formalistic rather
than substan
murder,
returned a verdict
guilty
but
221,
tive”, 432
at
at
U.S.
97
2332
S.Ct
accompanied its verdict
awith
recommen
(Powell,
dissenting), Mullaney
J.
must be
dation
leniency.
alive, if
viewed as
not well.
result,
In
its
reaching
the Patterson
HI.
adopt
Court
to
declined
as a constitutional
358,
Winship,
1068,
In re
397
90
U.S.
S.Ct.
imperative, operative country-wide,
that a
(1970),
25
368
L.Ed.2d
for the propo-
stands
disprove beyond
State must
sition that the Due
requires
Process Clause
any
doubt
fact
and all
every
constituting
prove
beyond
state to
a reasonable doubt
culpabil
affirmative defenses related to the
fact
“every
necessary to constitute the
ity
an accused.
crime” with which a
is charged,
defendant
364,
210,
continued effectiveness
in the trial
justifiable,
error
any
re-
homicide
holding that
Due Process Clause
concerning self-defense
court’s instruction
prove beyond
quires
prosecution
Wynn v. Ma
necessarily prejudicial.”
includ-
all of the elements
reasonable doubt
Cir.1979), cert.
448
honey, 600 F.2d
of which
ed in the definition of the offense
denied,
100 S.Ct.
444 U.S.
Id.
charged.”
What
defendant
L.Ed.2d
question
to answer —or
Court failed
—was
us to deal
requires
how the Constitution
charge
attempted
The trial court
consti-
defense which
with
affirmative
persuasion
both that
and avoidance
merely
not
confession
tutes
defendant,
and that
was on
complete
refutation
but rather
of proving
had
the burden
prosecution
place,
in the first
existence of
crime
claim the
allegation or
“every material
Isaac,
Engle
S.Ct.
U.S.
every
indictment
(1982) provided
doing,
the court
71 L.Ed.2d
so
in order
obtain conviction.”
question
answer the
opportunity
with
the state had
charged
regard
Engle
that Thomas was
defined in
had
acknowledged that a colorable consti-
“willful,
felonious
presented by
argu-
tutional
claim
its
re-
aforethought.”
malice
possi-
raises the
ment that once defendant
manslaughter,
the court used
garding
dis-
bility of
“the State must
*5
inter-
“unlawful”
“felonious” and
terms
of
task of
prove
part
that defense' as
its
used the words
The court later
changeably.
rea, voluntariness,
establishing guilty mens
in
three times
“unlawfully”
“unlawful” or
122,
at
and unlawfulness.”
456 U.S.
At the same
jury.
to the
explaining malice
to an-
S.Ct.
Court declined
time,
the
the
that the
court instructed
however, holding
the
that
question,
swer
elements of self-
prove
accused must
four
of the claim was
consideration
barred
accused,
if she
that “the
and
in
v.
principles
Wainwright
the
articulated
killing by relying upon
to
the
excuse
seek[s]
2497,
Sykes, 433 U.S.
53 L.Ed.2d
S.Ct.
required to es-
plea
the
of
is
(1977).
pre-
of self-defense
the
plea
tablish such
IV.
weight of the evi-
ponderance
greater
or
if
the scales remain even or
dence....
If
question
We need not reach the
of wheth-
favor,
slightly in the
they tip ever so
State’s
the
all
prohibits
er
due
clause
in
required
has
met
the
burden
she
not
placing
instances the
on the defendant of
proof.
with
persuasion
regard
the burden of
enough,
It is
for the purposes
self-defense.
in one breath
The court
therefore had
case,
that
court’s
observe
that the accused had the
instructed the
a
regarding
by prepon-
instructions
self-defense
“Be-
in the other
conflicting
confusing.
yet
were both
and
derance
a
beyond
prosecution
prove
an
that the
had to
cause
of self-defense constitutes
ly extenuating
Anglo-American
circumstances of extreme emo
tradition is the belief that
killing
is
in self-defense is not a crime.
“It
it critical
us to
disturbance
render
tional
that man who
almost an axiom
our law
apply
it
elemen
with care. While
is
Patterson
necessary
him-
kills another
in
defense of
jurisprudence
tary
that
and fundamentаl
our
bodily
is
self from death or even serious
harm
wounding
simply
killing
no
in
self-defense
excused,
acquitted
must
indict-
be
when
all,
same
be said for
crime at
cannot
Beale,
A
As-
ed.”
Retreat From Murderous
suffering
killing by
extreme emotional
one
from
sault,
has been
16 H.L.Rev. 567
That
application of Pat
An automatic
disturbance.
early eighteenth
law
since
cen-
at least
concerning self-defense
terson to a case
tury,
prior
time defendants were
that
type
precisely
of relaxation of
constitute
Beale,
routinely pardoned.
then
convicted but
prosecution-s
re
that
constitutionally impermissi
be
held t0
development
crucial differences
De'
justification
partial-
and the
self-defense
that
had been
the instructions necessarily led to its disre-
(and
unlawful)
gard
felonious
therefore
and with
part.
another
If the jury truly
malice.
in the minds of the jury
prosecution prove
demanded that
Confusion
“un-
inescapable
that was
lawfulness” and “malice”
beyond
reasona-
unequivocally
contradictory.
This
ble
ignoring
doubt
would be
the judge’s
has
equated unlаwfulness
“the absence
require
instructions
defendant
Wynn
Mahoney, supra,
prove
self-defense.”
If the jury demanded
at 451. And this Court has also stated
that
prove
that
defendant
aby
self-defense
is wholly
inconsistent with
of the evidence it would
“[s]elf-defense
be
Warden,
Maryland
Guthrie
malice.”
ignoring
the judge’s instructions
Penitentiary,
824 n. 5
prosecution prove
“unlawfulness”
“mal-
Cir.1982).3
ice” beyond a reasonable doubt.4
face
of such
instruc-
conflicting
highlighted by
The confusion is
the real-
tions,
jury’s compliance
with one
might
ization that
the jury
have been left
“Henсe,
quoting
3. The
Court Guthrie continued:
the statute in effect at the time of the
crime,
disprove
2901.05(A).
state must
the evi-
Ohio Rev.Code §
[when
supra,
Guthrie,
quoting
supra,
See also n. 3
dence raises the
to establish the element
issue]
683 F.2d at
n. 5.
The Guthrie court
stated
malice
doubt
re-
disprove
the state
quired by
Winship,
In re
397 U.S.
90 S.Ct.
“(where
issue),”
evidence raises the
(1970).”
reasonable doubt as to afore- trial instructed malice thought could mаn- jury could not convict return verdict *7 slaughter, distinguished or not He guilty. and the offense would manslaughter the crimes murder and manslaughter. reduced to and respective in ac- described their elements solution, however, wholly The unaccepta- is judge cord Carolina law. The South ble. It to a to requiring amounts defendant repeatedly informed the that the State in disprove malice order to reduce her crime had the reason- proving beyond burden a Where, manslaughter. from murder to able doubt all of elements of the mur- Carolina, in South a has state made murder charge. also der He instructed the manslaughter crimes,5 separate the dis- proving by had the that Thomas trict directly court’s solution contradicts the a evidence that she Supreme holding Mullaney. Court’s in As in acted above, noted déspite the Patter- advent of son, Mullaney having gravamen cannot be viewed as The complaint Thomas’s overruled, law, been in particularly an instance which allocates to South Carolina 5. Murder is defined in S.C.Code 16-3-10 § § 16-3-50 (1976). Manslaughter is defined in S.C.Code
253 the defendant self- proving constitute the crime de- [the ” defense by preponderance a Id. charged.’ fendant at 996 (quot- was] Patterson, violates the principles ing of due 432 process. U.S. at 97 S.Ct. at mind, my argument 2324). this meritless. clearly Supreme later, has A few months recognized unpublished Court that a Martin, opinion
state
a
may require
Maxey
defendant
prove
735
(4th Cir.1978),
affirmative
relied
defense.
Court
Patterson
New
Patter-
York,
197, 97
son and Frazier to
a
uphold
432
South Carolina
U.S.
S.Ct.
53 L.Ed.2d
placed
instruction which
(1977),
Supreme
upon
281
rejected
full
Statе the
for
defendant’s
murder
process
due
to a New
challenge
placed upon
the defendant
York
requiring
statute
him
prove by
establishing
a preponder-
preponderance of the evidence the affirma
ance of
evidence. Frazier and Patter-
tive
acting
defense of
under the influence
son were relied on again in Baker v. Muncy,
of extreme
uphold
emotional distress.
(4th
619
327
Cir.1980),
F.2d
where this
ing
statute,
the Court
observed
at
Court held that it was not unconstitutional
common law the burden of
all “af
Virginia
to “cast
upon
accused the
indeed,
firmative
‘all
circum
...
defenses —
burden of proving self-defense.”1
Id. at
stances
justification,
excuse
allevia
331. As
Frazier
Maxey,
the Baker
tion’ —rested on the defendant.”
at
Id.
Court stressed that
the State was not re-
97
(quoting
Blackstone,
S.Ct. at 2323
4 W.
lieved
its obligation
prove
all of the
201).
Commentaries
The Court concluded
essential elements of murder.
that “once the facts
a crime
constituting
are
established
doubt
reasonable
recently,
Cooper
Most
v. State of
...
the State
refuse to sustain thе
Carolina,
North
F.2d
Cir.1983),
affirmative
defense
unless demonstrat
panel,
Fourth Circuit
which included one
ed by a preponderance of the evidence.”
of the majority members in the instant
Id. at
S.Ct.
case, upheld a jury
placed
instruction which
upon
defendant
the burden of proving
This
applied
Court has
Patterson in sever-
insanity.
appeal,
On
argued
the defendant
al cases involving laws which
place
bur-
by failing
the jury
instruct
to con-
den of proving self-defense
de-
sider evidence about his mental illness with
Weatherholtz,
fendant.
In Frazier v.
regard
specific
each
element of the al-
(4th Cir.1978),
we determined that
crime,
leged
effectively
forced
because the
of Virginia
State
considered
prove
him to
absence
those elements.
self-defense an affirmative
it was
This Court held that because an instruction
not unconstitutional
to require the defend-
on the State’s
overall burden of
ant to bear the burden of proof. Although
given along with the general instruction on
the Frazier
Virginia
Court addressed a
stat-
mental illness the jury
was not con-
ute,
its holding is equally aрplicable in
stitutionally infirm.
Carolina,
South
because the decision is
based on
Virginia—
the Federal —not
cases clearly
These
establish that South
Constitution. The Court cited Patterson
Carolina’s rule
requiring
defendant
for the proposition that due
prove self-defense
violate
does not
the de-
satisfied “when
state proved beyond
rights.
fendant’s constitutional
In the in-
‘every
necessary
fact
judge properly
stant
the trial
instruct-
*8
Patterson,
agree
1. The
“may
Court’s full statement
reads:
“[w]e
New York court
refuse to
that self
insanity
dеfense is an affirmative defense un-
un-
sustain
affirmative defense of
Virginia
may,
prin-
der
less demonstrated
of the
law and
State
under
York,
ciples
set forth in Patterson v.
New
evidence." 432 U.S. at
cast
the elements crime from had the burden of
State on of the affirmative defense
elements proof. Thomas had
addition, reminded jury was repeatedly carried the burden State The due element of the crime.
on each more. require clause does not
process majority’s con- agree do I with the
Nor Thomas found
clusion that because murder, for request but added in- it was
leniency, confused my mind, the recommenda-
struction. likely have leniency just
tion for could as upon the belief that jury’s
been based that, fate, conse- deserved his victim mercy some should be accorded
quently,
defendant. returning a
By verdict had sustained
jury indicated the State
its burden of doing, necessarily In so
doubt.
rejected Thomas’s claim of self-defense. decision-making
Second-guessing the jury’s dangerous judicial game, is a intrudes guesswork action based such Foret, Sr., se. pro P. Clarence the domain of jury. Roussel, pro Earl J. se. I convic- Accordingly, uphold the would tion. Crais, Hahnville, La., defend- R. Jack
ant-appellee. Sr., FORET, and Earl J. P. Clarence JOHNSON, GEE, POLITZ, and Before Roussel, Plaintiffs-Appellants, Judges. Circuit WILSON, Sheriff, St. Connell Charles PER CURIAM: Parish, Louisiana, Charles State Foret, in sil- having bid Appellant $2.80 Defendant-Appellee. requir- property on a foreclosed ver dimes No. 83-3237 $80,000.00under Lou- minimum bid of ing a Summary Calendar. law, refusal of complains to us of the isiana Appeals, States Court United prop- to deed foreclosing authority Fifth Circuit. of his him and of the dismissal erty to argu- His by the district court. complaint Jan. 1984. ment, gold coin and silver Rehearing Denied Feb. the United legal tender constituted frivolous, having States, hopeless *9 finally the United States rejected been