Lead Opinion
Walter H. Guthrie, who was convicted of first-degree murder and sentenced to life imprisonment, appeals from the district court’s order denying him a writ of habeas corpus. He attacks the validity of his conviction on the grounds that the jury was unconstitutionally instructed with respect to the elements of the offense and his defenses of intoxication, heat of passion, and self-defense.
Because we think that, read in context, the charge to the jury with respect to the defense of self-defense was constitutionally inadequate, we reverse the order of the district court and direct it to issue the writ
I.
An extensive recitation of the facts is unnecessary, but we begin with a succinct statement of the background of the case.
On October 13, 1970, petitioner, Walter H. Guthrie, hitchhiked a ride with Merle Aul. Guthrie and Aul proceeded to stop at two taverns where they drank beer and whiskey, apparently to exсess. As their journey continued, Aul (according to Guthrie) made homosexual advances which Guthrie rebuffed. Guthrie then formed a plan to escape. He persuaded Aul to stop the car and got out, but when Guthrie
sought to remove his luggage, Aul threatened to shoot him if he left. Aul pulled a gun (later proved to be a harmless starter’s pistol), left the car and advanced on Guthrie. Guthrie, who could not identify the type of gun deployed by Aul, pulled a knife from his pocket and blocked the gun with onе hand, as Aul fired two shots. With the other hand, Guthrie, who testified that he was “scared” and “thought the man was going to kill me,” stabbed and killed Aul.
Guthrie pleaded not guilty by reason of insanity, and also entered a general plea of not guilty under which he asserted the defenses of intoxication, heat of passion, and self-defense. The state has conceded that Guthrie’s version of the incident was sufficient to generate the issue of self-defense.
II.
The jury was charged with respect to the law of homicide and told that it could return a verdict of guilty of first-degree murder, second-degree murder, manslaughter or not guilty. The jury was then told that “murder is . .. the unlawful killing of a human being with malice aforethought,” that “[mjalice is .. . the intentional doing of a wrongful act to another without legal excuse or justification,” and that “[t]he law presumes all unlawful and felonious homicides to be committed with malice aforethought and to constitute murder.”
Having laid down a “presumption” that an intentional killing is malicious and therefore constitutes at least second-degree murder, the trial court went on to explain how that presumption could give way to a conviction for first-degree murder or for manslaughter. The court instructed that “to elevate the presumption of second-degree murder to first-degree murder, [the jury] must find that the State has proved beyond reasonable doubt that the murder was willful, deliberate and premeditated or committed in the perpetration of or attempt to perpetrate a robbery.” Conversely, the court charged that “the burden is on the accused to reduce the presumption of second-degree murder to manslaughter.” (emphasis added).
In charging as to manslaughter, the trial court told the jury that, “[i]n order for the accused to reduce the presumption of second-degree murder to manslaughter, [the accused must show] to the satisfaction of the jury, that the killing was donе in the heat of passion which had temporarily dethroned him of his reason, and which was induced by adequate provocation,” and that “the burden of showing that he lost control of his reason because of sufficient provocation ... is upon the accused.” Further, the jury was told that “a person who uses a deadly weapon such as a knife directed at the vital parts of the body of another person is presumed in law to intend the natural and probable consequenсes of that act.”
Finally, with respect to intoxication, the jury was instructed that while voluntary drunkenness is not a defense to crime, the fact of intoxication may be considered by the jury in determining whether the defendant had the particular motive, purpose or intent which is a necessary element of the crime with which he is charged. In this regard, the jury was further instructed that the accused “must persuade . . . the jury, that ... he was so intoxicated as to be incapable of entertaining the speсific intent or of possessing the mental state which is an essential element of the crime for which he is being prosecuted.”
These instructions need not concern us long because they were found by the district court to violate Guthrie’s constitutional rights, and that conclusion is beyond dispute.
The instructions in the present case included a literal violation of the Sandstrom rule, for they informed the jury thаt one who wields a deadly weapon is “presumed in law” to intend the probable consequences unless he presents sufficient evidence to the contrary. Similarly, the instructions were deficient under Mullaney because they imposed on the defendant the burden of negating criminal intent by proving that he acted under the heat of passion or in a state of extreme intoxication.
Although the district court found that these instructions violated Guthrie’s constitutional rights, it held on the authority of Wilkins v. Maryland,
Judge Hamill [the trial judge], after explaining to the jury the elements of second degree murder, adequately stated how the State could elevate the presumption of secоnd degree murder to first degree. In so doing, he instructed the jury that first degree murder requires proof beyond a reasonable doubt of premeditation and that premeditation exists if “the killing is not the instant effect of impulse, and if there is hesitation or doubt to be overcome, and a choice to be made as a result of thought, however, short * * In other words, he instructed the jurors that premeditation requires some, albeit brief, thought before the act. While Judge Hamill’s instructions did not specificаlly distinguish between premeditation and malice aforethought, and did not define malice aforethought with maximum clarity, his instructions made it sufficiently clear that premeditation and malice aforethought are not synonymous.
The instructions concerning intoxication and heat of passion went only to the distinction between manslaughter and second-degree murder. They did not touch on first-degree murder, the offense of which Guthrie was convicted. We therefore conclude that the erroneous intoxication and heat of passion instructions, standing alone, were harmless beyond a reasonable doubt.
We are thus brought to the remaining instruction — that relating to self-defense — the constitutional validity of which Guthrie also challenges. His principal contention is that this charge unconstitutionally placed on him the burden of proving self-defense when, under Mullaney, the burden was on the state to disprove it beyond a reasonable doubt.
The charge given was:
If you find that the defendant in this case had reasоnable ground to believe, and did in fact believe, that he was in imminent danger of suffering serious injury, or death, at the hands of the deceased at the time he killed him; and if you further find that any reasonable and prudent person similarly situated, with all the attending circumstances, would have believed that he was in imminent danger of suffering serious bodily injury, or death, at the hands of the deceased, then the defendant would be entitled to be acquitted.
The district court did not rule on the validity of this charge. It expressed the view that the instruction “could perhaps have conveyed to the jury that Guthrie had the burden of proving self defense,” but it held that any such error was cured by the verdict of first-degree murder.
We disagree with the district court that a verdict of first-degree murder returned after proper instruction as to the elements of that crime renders harmless an invalid instruction on self-defense. The reason for our disagreement is well expressed in Evans v. State,
If a fair reading of the instructions indicates that the “presumption of malice,” in that broader and unqualified form, operated to relieve the State of its burden of ultimate persuasion on the issue of non-justification and/or non-excuse (where either is a fair issue in the case), Mullaney v. Wilbur will require a reversal regardless of the degree of felonious homicide on which the conviction was had. Unlike the situation dealt with where the only issue in the case affected by the presumption was mitigation and the only advantage the defendant was denied wаs the possible lowering of murder in the second degree to manslaughter, the harm on the issues of presumed non-justification and presumed non-excuse operates across the entire spectrum of culpability. If the defendant had had the*825 benefit of a fair allocation of the burden of persuasion on these issues, he might well have been found not guilty totally and not simply guilty to a lesser degree. Self-defense, for example, would relieve one of guilt for a premeditatеd and deliberated killing as well as for a killing in hot blood. Id. at 317 (emphasis added, footnote deleted).6
Because self-defense, if proven, exonerates an accused of any degree of culpable homicide, conviction of first-degree murder in no sense cures a self-defense instruction which erroneously places the burden of proof on the accused. See Wynn v. Mahoney,
The language of the charge with respect to the burden of proof is relatively neutral. We do not accept Guthrie’s argument that the phrases “[i]f you find,” “if you further find,” and “then the defendant would be entitled,” standing alone, unmistakably placed the burden of proof on Guthrie. It is not without significance, however, that the trial court probably intended for the burden to be on Guthrie, because that was the law of Maryland at the time Guthrie was tried, see Squire v. State,
In thus being instructed as to two affirmative defenses that the burden of proof was on Guthrie, the jury likely understood the same burden to be applicable to the defense of self-defense in the absence of a specific chargе to the contrary. As we have said, under the Maryland law in effect at the time that Guthrie was tried, now changed, the rule was that the jury should have been told that the burden of establishing the defense rested on Guthrie; and we think that, when the instruction about self-defense is read in the context of the entire charge, the jury was effectively told just that.
As Maryland points out, the jury was told at least five times that the burden was upon the state to prove every element of
Accordingly, we reverse the judgment of the district court and remand the case with directions to issue the writ unless Guthrie is retried within such reasonable period as the district court may prescribe.
REVERSED AND REMANDED.
Notes
. Petitioner’s original petition to the district court included various claims unrelated to the jury instructions, viz., that the indictment was faulty, that petitioner was held incommunicado, and that the prosecutor failed to prove motive. Maryland’s answer pointed out that petitioner had exhausted state remedies only as regards the jury instructions. In a subsequent memorandum in support of the pеtition, petitioner acknowledged nonexhaustion as to the other claims and expressly abandoned them. The district court proceeded to adjudicate petitioner’s challenge to the jury instructions without referring at all to the abandoned claims.
Approximately eight months after the district court rendered its decision and one month after this appeal was argued, the Supreme Court adopted a rule of “total exhaustion” in Rose v. Lundy, - U.S. -,
Section III-C of the Rose opinion notes that a prisoner “can always amend the petition to delete the unexhausted claims, rather than returning to state court to exhaust all of his claims.” - U.S. at -,
Section III — C of the Rose opinion, upon which we rely, commanded only a plurality. None of the remaining five Justices, however, took a striсter view of the exhaustion requirement than did the plurality. No Justice took issue with the proposition that a prisoner who presents a mixed petition may amend it to exclude unexhausted claims.
Thus, we find nothing in Rose to indicate that an appellate court must direct dismissal of a mixed petition where the petitioner abandoned all unexhausted claims early in the case and the district court considered only an exhausted claim and ruled on the matter before Rose was decided. Indeed, a contrary view would undermine the Rose Court’s concern for еfficient judicial administration. Dismissal here would, without a doubt, lead the petitioner to file an amended petition — as he has an unquestioned right to do. The district court would thus be required to adjudicate this case a second time. Since there is no reason to believe that the district court would change its opinion of the case, we would expect to face a second appeal months hence. The policies which prevailed in Rose do not call for such a burdеnsome exercise in paper shuffling.
The manner in which petitioner proceeded in this case may entail a significant cost to him. By going forward on his exhausted claims, he may have forfeited the right to revive his withdrawn claims in a subsequent habeas petition. See Rose, - U.S. at -,
. Indeed, Maryland concedes the invalidity of the instructions сoncerning heat of passion and directing a deadly weapon at a vital part of the body of another.
. Mullaney was given retroactive effect in Hankerson v. North Carolina,
At oral argument, counsel for Maryland suggested that the jury instructions, if erroneous, did not constitute plain error and therefore that petitioner’s failure to object to the instructions at trial bars us from considering this case. This argument lacks merit, for thе Maryland courts have repeatedly held that Maryland’s plain error rule does not preclude a defendant convicted before Mullaney v. Wilbur, supra, was decided from mounting a Mullaney challenge to the jury instructions rendered by the trial court, notwithstanding that the instructions prompted no objection at trial. See State v. Evans,
. Because malice is an element of second-degree murder in Maryland, the state must disprove mitigating factors such as intoxication or heat of passion when they are issues fairly raised by the evidence. State v. Evans,
. Just as the holding of Patterson v. New York,
. The Maryland Court of Appeals approved this specific holding and overruled contrary precedents. State v. Evans,
. If the charge on self-defense was only ambiguous, United States v. Corrigan,
. The same is true of the charges relating to the presumption that one who wields a deadly weapon intends the probable consequences and that an intentional killing is presumptively malicious and thus presumptively second-degree murder. In each instance the jury was told that the defendant had the burden of disproving intent and malice.
. It has been argued (1) that, since the instructions on the mitigation defenses came after the self-defense instruction, they could not have affected the jury’s undеrstanding of the burden of proof as to self-defense; and (2) that the risk of jury confusion was cured by the general charge as to the state’s burden of proof, which came after the self-defense instruction but made no specific reference to the self-defense issue. We note that these arguments are logically inconsistent: If the subsequent instructions as to mitigation could not influence the jury as regards the self-defense claim, then how may a subsequent generalized burden-of-proоf charge be deemed to do so? We reject both arguments, however, for reasons more important than faulty logic. The first argument assumes that the jury could clearly recall the sequence of instructions during its deliberations — an assumption we regard as fanciful. Both arguments view portions of the charge in isolation and thereby contravene the well-established principle that jury instructions are to be read as a whole. Finally, both arguments rest on the mere hope that the flawed instructions did not actually taint the jury’s understanding. But a trial error of constitutional magnitude may be excused only if it is harmless beyond a reasonable doubt.
Dissenting Opinion
dissenting:
The trial judge in this case did not give the jury any instructions on the burden of proof of self-defense, yet the majority reads the instructions “as a whole” as casting that burden on Guthrie. I cannot agree that the instructions would in any way have led the jury to conclude that Guthrie had the burden of proof of self-defense, and therefore, I dissent.
The majority emphasizes that the trial judge “probably intended for the burden to be on Guthrie because that was the law of Maryland at the time Guthrie was tried.” At 825. I cannot fathom the majority’s reliance on the trial judge’s silent intentions. The jury certainly would not have known about the state of the law on self-defense until the judge gave his instructions. Unless the jurors in this case were telepathic, they would never have known that the judge may have meant to burden Guthrie with proof of self-defense.
As further support for its conclusiоn, the majority considers the judge’s instructions on the defenses of mitigation, and states,
In thus being instructed as to two affirmative defenses that the burden of proof was on Guthrie, we think that the jury, in the absence of a specific charge to the contrary, undoubtedly understood the same burden to be applicable to the defense of self-defense.
Slip Op. at 825.
This conclusion is flawed for two reasons: First, the self-defense instructions were given before the instructions on the other mitigating defenses, so, at the time the jurors heard the self-defense instruction, they could not possibly have been influenced by the instructions on mitigation. Secondly, immediately after reading the instruction on self-defense, the judge reminded the jury that the state must prove the defendant guilty beyond a reasonable doubt. Considering this sequence of the instructions, there is no reason to conclude
In sum, the majority decision is concocted from strained facts and pure fiction. Accordingly, I would uphold the conviction.