Sylvester J. Morris, 134-720 v. State of Maryland, 715 F.2d 106

Sylvester J. Morris, 134-720 v. State of Maryland

715 F.2d 106

4th Cir.

1983

Check Treatment

*2 hоuse, er’s where his advised him brother ERVIN, Before HALL and Circuit police. turn himself to the Judges, BUTZNER, Senior Circuit given by The version Mor- shooting Judge. ris at substantially same as ERVIN, Judge: given by Morris to the on police Febru- Sylvester ary 10, J. Morris was convicted in one officer exception: with testi- Maryland state court of first degree murder the day shooting fied that on Mоrris and his was upheld appeal. conviction on thought gun; told “I him that' about I Morris subsequently petitioned the federal the passenger reached under the seat on district court writ corpus, for a gun.” side got which that court denied. cer- We issued a The trial instructed tificate of probable cause and now reverse. to elevate to murder in order the crime degree, the first the state has I. proving beyond a reasonable doubt Morris and wife experiencing his were deceased; the defendant killed severe marital difficulties early 1974 and that he did so willfully, deliberately and living apart. On January Morris and of course with shotgun, fired a wounding his wife and a aforethought. malice jealous. man of whom Morris was also he stated that shotgun discharged claimed acci- dentally. justification, He the absence of excuse or was arrested and released [i]n mitigation, bail.1 some circumstance all charge conviction on the the elements of of assault state of the stemming with intent maliсe. to murder inci- from this appeal dent was reversed because Arizona, 2. SeeMiranda judge gave instruction which relieved a reasonable beyond element of the offense to be committed presumed are homicides The court 364 A.2d at 589-90.' murder in the doubt.” and to be with malice the verdict of reasoned that degree.... sеcond acted that Morris finding was a Finally, charged he premedita- and with deliberately “willfully, doubt find you [i]f facto, therefore, tion;” verdict, “ipso *3 killing that there was an unlawful accident the notion of negated it, to in order that the defendant did The court Id. at 592. doubt.” reasonable is the manslaughter it reduce the crime to murder convictiоn. affirmed the therefore proving of who has the burden defendant denied of The Court Maryland excuse or some circumstance justification, 1980 Morris review. petition Morris’s aby and he must do so mitigation, of cor- writ of habeas for a federal petitioned the evidence. preponderance of court denied. which thе district pus, having We talked about State proof beyond of burden the crime Now in order to reduce

doubt. II. proving of manslaughter, alleged review of On collateral excuse or some circumstance justification, petition habeas jury charge, a ly erroneous defendant, upon the but mitigation is proof standard of еr must meet a “stricter only by preponderance he do that must than infirmity” ... to show [constitutional] of the evidence. a criminal review of required is on direct verdict of first The returned a North Caro v. of Cooper conviction. State murder. 481, (4th Cir.1983). lina, 483 n. 2 702 F.2d that “the offend that show ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍appeal, argued petitioner The must due as to render oppressive instructions denied him constitutional is so ing instruction Wilbur, v. 421 U.S. v. process, citing Mullaney unfair.” Adkins fundamentally 684, 1881, (1975).3 508 390, (S.D.W. 95 44 L.Ed.2d Bordenkircher, F.Supp. S.Ct. 399 517 Special Appeals Cir.1982), Maryland aff’d, (4th 279 Va.1981), cert, errone- 173, the instructions were agreed denied,-U.S.-, 103 S.Ct. ous: The rationale for (1982). 142 74 L.Ed.2d lies instruction, given, higher this standard requiring

The flaw in the as “It is of appel- corpus. was thе erroneous allocation to in the nature persuasion corpus lant of the burden of essence of habeas the historical of excuse. Not did this question so proceedings it lies to test beyond a proving pursuant relieve the State of imprisonment lawless reasonable doubt the offense but void.” erroneous merely them is not accidental, by Mullaney, 423, 822, not as mandated Noia, 391, 83 v. 372 S.Ct. Fay U.S. appellant it to assume habe 840, (1963). The use of 9 L.Ed.2d 837 the offense was acci- proving burden of less seri trial error remedy as proscribed by Mullaney. dental as “strong would violate ous dimensions judg finality preserving interest State, 185, A.2d Md.App. Morris v. 33 364 ments, orderly interest as well as the However, 588, (1976). on its relying 589 Kibbe, 431 Henderson v. procedure.” State, Md.App. 32 decision Newkirk v. cert, 13, 1730, 1737 145, 154 13, n. n. 97 S.Ct. denied, U.S. 621, 431 (1976), 363 A.2d 637 omitted). (1977) (citations 52 L.Ed.2d 203 956, 2680, L.Ed.2d 274 97 53 U.S. S.Ct. 509, 455 543-4 Lundy, also Rose v. U.S. See that “the (1977), the court concluded 8, 8, 1198, 1216-1217 & n. 71 n. 102 cured & S.Ct. in the first verdict of murder J., (Stevens, dissenting) (1982) 379 . .. L.Ed.2d indicating the error State con- cannot be declared (some errors which proving every rightful carried its 2339, olina, shortly 53 L.Ed.2d Mullaney 432 97 S.Ct. U.S. was decided after However, Mullaney’s holding applica- trial. 306 retroactively. Hankerson v. North Car- See ble murder,” stitutionally appeal harmless on direct we held that the instructions’ in- nevertheless do not render a trial funda firmity validity did not undercut the mentally unfair). Thus our task on this murder conviction. Id. at 823.6 is not to the harmless error appeal apply at issue in California, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍analysis Chapman U.S. Guthrie had another defect: im- (1967), but S.Ct. properly put self-de- rather the test laid down Henderson v. fense on rejected the defendant. We Kibbe.4 Henderson us to requires deter state’s claim mistake did not rise “ ailing mine ‘whether the instruction by to constitutional stature. itself so infected the entire trial self-dеfense, proven, ” Because if exoner- resulting process.’ conviction violates due any degree culpable ates an accused of (citation Id. 431 at 1737 homicide, first-degree conviction of mur- omitted). Since the state does not contend der in no sense cures self-defense in- before us that the jury charge was free *4 erroneously places struction which the error, from what we must decide is whether burden of the proof on accused. jury’s finding the verdict Morris guilty of at 825. this reasoning, Id. we reversed degree first murder refutes the claim that the denial of the writ corpus. the errors in the instruction on accident “infected the entire trial” so as to it rеnder opinion Guthrie relied on the of the fundamentally unfair.5 Maryland Special of in Court Ev State, 640, Md.App. ans v. 28 349 300

We addressed a similar A.2d question in Guth- Warden, (1975) , aff’d, 197, rie v. 278 Md. 362 A.2d 629 Maryland Penitentiary, 683 (1976) , (4th Cir.1982). Guthrie, reaching F.2d 820 In in this decision. Evans a de- fendant was that degree convicted of first mur- held a bad instruction on defenses of der after instructions which jury mitigation (which go оnly told the to the distinction that person who directs a deadly weapon between manslaughter second organs another’s vital is presumed murder) can be cured a verdict of first by intend the probable consequences and that degree murder. The Evans court went on the defendant dictum, had the burden of in negating to state which this court followed criminal intent by proving Guthrie, extreme intoxi- different result would be cation or heat of passion. Because if the instruction concerned bad “[t]he concerning (for instructions intoxication and justification defense of or excuse ex passion only heat of went to the ample, self-defense), distinction sincе such a defense manslaughter between and second-degree negates degrees elements of both of mur- Chapman Guthrie, however, clear, involved the direct review of a 683 F.2d at 823. It is conviction; Henderson any state criminal awas conflict between the two decisions is Cooper only habeas case. Since Guthrie verbal. were appeals from the denial of the writ of habeas appeals rather than direct from the con- challenges validity 5. Morris also assailed, being the rule of Henderson v. victions Although instructions as to self-defense. we applied, petitioners obligat- Kibbe precluded and the considering are not from this issue ed to show that errors Morris’s failure to raise it at or trial Henderson, Warden, Maryland appeal, “infected the entire trial.” 431 see Guthrie v. direct 154, Penitentiary, 820, U.S. at 97 at 1737. The verdict of (4th S.Ct. 823 n. 3 Cir. 1982) (Maryland permits Guthrie demonstrated first defendants convicted Mullaney Mullaney infirmity ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍v. Wilbur to raise of the intoxication and heat before passion desрite procedural defaults), of instructions did not render the entire claims need we light by showing not reach it in of unfair that the our decision on Morris’s challenge to the accident never needed to decide between man- instruction. murder, slaughter and second might warped decision that have been those considering the effect of the erroneous instructions, instructions. The verdict therefore defeated passion intoxication and heat of petitioner’s attempt employed language to show the existence Guthrie of harmless er- ror, cognizable of a error inapplicable constitutional habeas doctrine we found to this corpus. Cooper. type See of constitutional claim in 110 824-5, that the requires the Constitution quoting

der. 683 F.2d at Evans, at 317.7 approval 349 A.2d “create an inference affirmatively state justifi- or legal malice excuse by disproving dispositive Guthrie is instructions, court’s cation. . .. [T]he self-defense, Like present appeal. “[t]he whole, еrroneously as a relieved considered not, course, is excuse of accident placed the state of of defense but is rather a type affirmative nonpersuasion as to the risk of [Morris] of the central element of an inten negation Guthrie, 683 F.2d at 826. [accident].” Morris, A.2d at 591. killing.” tional 364 requires The fourteenth amendment ver jury’s possibility of proving the state shoulder the burden failure to dict was based in on Morris’s a reasonable doubt all of the ele burden of satisfy improperly imposed Winship, ments of a crime. In re See probable by is rendered more 25 L.Ed.2d 368 U.S. S.Ct. confusing confused —and (1970). necessarily This forbids the state to —order in general after a judge’s instructions: put nеgation the burden of proof, struction on the state’s burden of defendant, one of those elements on the self-defense, judge charged first on requiring way but another then on the definitions of second defendant an element of the disprove murder, Wilbur, murder, malice, man Mullaney offense.8 See finally on the defendant’s slaughter, and proving mitigation, justification, requiring In addition to Morris to *5 acci specific or excuse. No instruction on murder, disprove an element of first essence, dent was In the state’s given. instructions in im jury Morris’s trial focus our atten argument is that we should posed conflicting and inconsistent burdens.9 correct instruction judge’s tion on the trial hand, On the one to secure a conviction the the state’s all the on required properly prove beyond state was to murder, and as elements of first a reasonable doubt the intentional elements jury sume that the followed thereby by of the crime of murder and constitutionally than the im charge rather Morris, implication disprove to accidеnt. inconsistent in permissible logically and hand, required improperly the other to and excuse. justification structions prove by preponderance a of the evidence However, that “when it is well-established disprove accident and to intent. As thereby constitutional infir reviewing charge possibility ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍was created that look at the mity, the court is to would on a jury rely presumption ” charge entirety.’ Cooper, ‘in its intent, arising malicious from defend omitted). this rule (citation at 483 While ant’s failure to prove justifica excuse or tion, to a defend determining usually response the state is invoked had proved beyond single, its case a reasonable doubt. ant’s to concentrate on a ail- desire rejecting argument ap- state, course, may require In on direct 8. The a defendant prove genuine peal, distinguished defense which the Evans affirmative the state court “negative any crime which does not facts of the dictum to “the as limited ‘confession and avoid- prove in ordеr to convict [but] the state is to ‘Yes, type ance’ I did it intentional- defense — separate Patterson constitutes issue.” ly following I did but it for the excusable rea- ” York, 197, 207, New 432 U.S. 97 S.Ct. Morris, respect, son.’ 364 A.2d at 591. With in the Special we do not find the line the Court of cannot, not, present the state does and case justification has drawn between the affirmative defense for contend accident is an self-defense and the excuse of tenable. accident purposes. Patterson negation In both cases the defense is a of a positive positive element of the crime. That Significant in a internal self-contradiction proven by There- element must be thе state. jury charge harmless error since it is cannot be fore, showing negation logical- the burden of its jury impossible followed to be certain that ly Cooper, put cannot be on the defendant. part of the instructions. the correct 702 F.2d at 483.

Ill in this case on instructing In equally applica- it is charge, of a ing section murder, . the trial of first elements here. ble proof correctly placed court Morris’s trial “in beyond state to show on the an un accept “willfully, killed his wife reasonable doubt that Morris vite[d] law,” with and of deliberately and Cooper, view of the constitutional aforethought.” Specifi- course with malice reaching this view in apply F.2d at and rea- properly defined cally, the trial court we have dis a verdict. For the reasons doubt, that the state had explained sonable rendered cussed, we conclude that this error material to proof every establish fact unfair, and entitles the trial a reason- guilt beyond of the defendant Morris to habeas relief. doubt, defined the terms properly able and deliberate, mal- willful, premeditation, III. aforethought.1 ice judgment reverse the court’s We district at trial was that he had Morris’ defense issue remand the case with directions to Common sense accidentally. killed his wife subject the writ to retrial within a reasona- accident and malice аre mutu- dictates that the district period prescribed by ble to be fact, an accident is the ally exclusive. In court. resulting act very antithesis of a deliberate No consequences. in foreseen and intended REMANDED. REVERSED AND concerning accident was specific instruction By re- given, requested. nor was one HALL, Judge, dissenting: murder, of first turning a verdiсt conclu- agree majority’s I cannot with the found that jury, my opinion, clearly in this case its burden of sion that the instructions the state had sustained doubt a fair trial. Morris was reasonable deprived Morris of willful, deliberate, in a killed the deceased of first murder and the convicted words, premeditated manner. other charge on this judge’s instruсtions Morris’ of accident jury rejected theory true that in instruct- adequate. It is that the state had neces- and was satisfied to the lesser of- ing respect *6 rea- this defense sarily disproved murder and man- degree fenses of second doubt.2 sonable re- slaughter, judge erroneously the trial of malice and presumption ferred tо I can conclude the defendant the burden of placed upon not on the erroneous rely Morris’ case did circumstances. How- proving mitigating degree to second respect instructions with view, ever, in these errors were cured The evidence my manslaughter. murder and verdict supports jury’s verdict of first murder. jury’s overwhelmingly the instruсtions Therefore, and I am satisfied I must dissent. (4th Cir.1982), instructions, Penitentiary, 683 F.2d 820 As his the trial land following correctly appeal. dispositive indi- defined the elements of Morris’ cating portion majority distinguishes an intent to kill: of the Guthrie entirely applicable design specific purpose, I find or decision which “Willful” is a judge’s in- the full the trial intent to kill. “Deliberate” mеans Morris’ claim. kill; knowledge purpose murder and man- conscious on second structions design or erroneously means that slaughter allocated to the de- had intention to kill must have come before the intoxi- on issues of fendant length killing by appreciable of time— Nevertheless, passion. this and ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍heat of cation reflection and con- time sufficient for some adequately held that had been court matter, upon kill or choice to sideration charged murder and that as to first not to kill and for formation of a definite passion in- and heat of erroneous intoxication is, enough purpose kill —that time to be jury’s cured verdict structions were dеliberate. majority, I find Unlike the first murder. controlling holding portion of the Guthrie majority opinion 2. The concludes case. in the instant Warden, Mary- v. Court’s decision in Guthrie the errors confusing so were not trial as to render not so infect Morris’

did fun-

his conviction for I would Accordingly,

damentally unfair. judgment, deny-

affirm the district court’s relief. for habeas

ing petition Morris’ MANUFACTURING, INC.,

GAMEWELL Appellant, corporation, SUPPLY, INC., Aeronca,

HVAC

Inc., Appellees.

No. 82-1533. Appeals,

United States Circuit.

Fourth Jan.

Argued 9, 1983. Aug.

Decided 14, 1983.

Rehearing Sept. Denied Southfield, (J. Wartell, Mich.

C. Robert Hauser, Weiner, Weiner, Wartell & Laevin Roth, Southfield, Mich., brief), appel- lant. *7 Charlotte, (Charles D. N.C. Myers,

James Bell, Barnhardt, III, Elderkin, P. John J. Gibson, Charlotte, N.C., on Seltzer, Park & brief), appellees. for CHAPMAN, Cir- PHILLIPS and Before FIELD, Judges, cuit Senior Judge. PHILLIPS, Circuit DICKSON

JAMES Judge: Supply, HVAC filing against

After suit Aeronca, Inc., infringe- Inc., patent Inc. ment, Manufacturing, Gamewell