Gilbert v. Moore

• Decision Date: 22 January 1998
• Docket Number: 96-13,96-15 and 96-16,Nos. 96-12,s. 96-12
• Citation: 134 F.3d 642
• Parties: Larry GILBERT, Petitioner--Appellee, v. Michael W. MOORE, Director of the South Carolina Department of Corrections, in his official capacity; Charles M. Condon, Attorney General of the State of South Carolina, Respondents--Appellants. J.D. GLEATON, Petitioner--Appellee, v. Michael W. MOORE, Director of the South Carolina Department of Corrections, in his official capacity; Charles M. Condon, Attorney General of the State of South Carolina, Respondents--Appellants. Larry GILBERT, Petitioner--Appellant, v. Michael W. MOORE, Director of the South Carolina Department of Corrections, in his official capacity; Charles M. Condon, Attorney General of the State of South Carolina, Respondents--Appellees. J.D. GLEATON, Petitioner--Appellant, v. Michael W. MOORE, Director of the South Carolina Department of Corrections, in his official capacity; Charles M. Condon, Attorney General of the State of South Carolina, Respondents--Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 642

134 F.3d 642

Larry GILBERT, Petitioner--Appellee, v. Michael W. MOORE, Director of the South Carolina Department

of Corrections, in his official capacity; Charles

M. Condon, Attorney General of the State

of South Carolina,

Respondents--Appellants.

J.D. GLEATON, Petitioner--Appellee, v. Michael W. MOORE, Director of the South Carolina Department

of Corrections, in his official capacity; Charles

M. Condon, Attorney General of the State

of South Carolina,

Respondents--Appellants.

Larry GILBERT, Petitioner--Appellant, v. Michael W. MOORE, Director of the South Carolina Department

of Corrections, in his official capacity; Charles

M. Condon, Attorney General of the State

of South Carolina,

Respondents--Appellees.

J.D. GLEATON, Petitioner--Appellant, v. Michael W. MOORE, Director of the South Carolina Department

of Corrections, in his official capacity; Charles

M. Condon, Attorney General of the State

of South Carolina,

Respondents--Appellees.

Nos. 96-12, 96-13, 96-15 and 96-16.

United States Court of Appeals,

Fourth Circuit.

Argued Dec. 2, 1997.

Decided Jan. 22, 1998.

ARGUED: Charles Molony Condon, Attorney General, Columbia, SC, for Appellants. John Henry Blume, III, Columbia, SC, for Appellees. ON BRIEF: John W McIntosh, Deputy Attorney General, Donald J. Zelenka, Assistant Deputy Attorney General, Robert F. Daley, Jr., Assistant Attorney General, Columbia, SC, for Appellants. Vance L. Cowden, William Lewis Burke, Jr., Department of Clinical Legal Studies, University of South Carolina School of Law, Columbia, SC, for Appellee Gilbert; David P. Voisin, Hilary Sheard, Center for Capital Litigation, Columbia, SC, for Appellee Gleaton.

Before WILKINSON, Chief Judge, and WIDENER, MURNAGHAN, ERVIN, WILKINS, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

Nos. 96-12 and 96-13 reversed, and Nos. 96-15 and 96-16 affirmed, by published opinion. Judge WILKINS wrote the majority opinion, in which Chief Judge WILKINSON and Judges WIDENER, MURNAGHAN, ERVIN, NIEMEYER, LUTTIG, and WILLIAMS joined. Judge HAMILTON joined in the majority opinion except Parts VI A and VI B and wrote an opinion concurring in part and concurring in the judgment. Judge MICHAEL and Judge DIANA GRIBBON MOTZ joined in the majority opinion except Part VI and each wrote an opinion concurring in part and concurring in the judgment.

WILKINS, Circuit Judge:

Half brothers Larry Gilbert and J.D. Gleaton (collectively, "Petitioners") filed petitions for habeas corpus relief ¹ from their South Carolina capital murder convictions and resulting death sentences. See 28 U.S.C.A. § 2254 (West 1994). ² The district court granted the relief sought, holding that the state trial court committed harmful error in instructing the jurors that the element of malice necessary to prove murder under South Carolina law was presumed from the intentional doing of an unlawful act without just cause or excuse and from the use of a deadly weapon. The district court determined, however, that relief was not warranted on the basis of any of the other grounds advanced by Petitioners. The State appealed the decision of the district court to grant the writs on the basis of the unconstitutional burden-shifting instruction. Petitioners cross appealed the refusal of the district court to find that relief was warranted with respect to other issues. A panel of this court affirmed the decision of the district court. See Gilbert v. Moore, 121 F.3d 144 (4th Cir.1997). Thereafter, a majority of the judges in active service voted to rehear these appeals en banc. We now conclude that the unconstitutional burden-shifting instruction was harmless error and that none of the remaining claims pressed by Petitioners provide a basis for habeas relief.

I.

On July 17, 1977, Ralph Stoudemire was working alone in his South Congaree, South Carolina service station. High on illegal drugs, Petitioners entered the station, shot and stabbed Stoudemire, and committed robbery. Stoudemire died a short time later. Petitioners subsequently were convicted of capital murder and sentenced to death. The South Carolina Supreme Court affirmed Petitioners' convictions, but vacated their sentences and remanded for resentencing. See State v. Gilbert, 273 S.C. 690, 258 S.E.2d 890, 894 (1979). On remand, a second jury sentenced Petitioners to death. The South Carolina Supreme Court affirmed the sentences, and the United States Supreme Court denied certiorari. See State v. Gilbert, 277 S.C. 53, 283 S.E.2d 179, 182 (1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 863 (1982). Thereafter, Petitioners sought post-conviction relief (PCR) from their convictions and sentences in state court. The state PCR court denied relief. The South Carolina Supreme Court and the United States Supreme Court denied certiorari.

In late 1984, Petitioners filed § 2254 petitions in the district court. In May 1985, a magistrate judge recommended granting the State's motion for summary judgment as to all claims. In June 1988, the district court initially adopted the recommendation of the magistrate judge, granting summary judgment to the State and dismissing the petitions. Petitioners timely filed motions seeking to have the court vacate or reconsider its judgment and to permit them to amend their petitions. In August 1991, the district court vacated its earlier order, granted Petitioners' motions to amend their petitions, and remanded the proceedings to the magistrate judge with instructions to hold the matters in abeyance for 60 days to permit Petitioners to pursue additional state-court remedies.

Petitioners then returned to state court, filing second PCR petitions. The state court initially dismissed as successive all except two of the grounds because they had been, or should have been, raised in the first PCR actions, and it conducted an evidentiary hearing with respect to the two remaining claims--Petitioners' assertion that the trial court committed reversible error by instructing the jury that malice is presumed from the intentional doing of an unlawful act without just cause or excuse and from the use of a deadly weapon, see Yates v. Evatt, 500 U.S. 391, 397, 111 S.Ct. 1884, 1889-90, 114 L.Ed.2d 432 (1991), and their claim that the State deprived them of their Sixth Amendment right to a jury composed of a fair cross section of the community by systematically removing black prospective jurors from the venire, see Swain v. Alabama, 380 U.S. 202, 222-28, 85 S.Ct. 824, 836-40, 13 L.Ed.2d 759 (1965). The state PCR court concluded that these claims provided no basis for relief, ruling in pertinent part that the challenged jury instruction was unconstitutional but harmless and that the Swain claim was successive. The South Carolina Supreme Court denied certiorari. While these proceedings were pending in July 1992, the district court granted the State's motion to expedite the federal proceedings and to waive exhaustion as to the remaining issues pending in state court.

On August 26, 1996, the district court held that Petitioners were entitled to habeas relief. ³ The court ruled that the challenged jury charge constituted a mandatory presumption that shifted the burden of proof on the issue of malice from the prosecution to Petitioners in violation of the Fourteenth Amendment and that the error was not harmless. The court determined, however, that the remaining grounds for relief pressed by Petitioners lacked merit.

II.

Petitioners' principal claim is that an instruction to the jurors during the guilt phase of their capital trial shifted the burden of proof on the element of malice from the prosecution to them in violation of the Due Process Clause of the Fourteenth Amendment, which requires that the State prove each element of a charged offense beyond a reasonable doubt. See Yates v. Evatt, 500 U.S. 391, 400-01, 111 S.Ct. 1884, 1891-92, 114 L.Ed.2d 432 (1991). We conclude that although the challenged instruction is unconstitutional, the error was harmless.

Under South Carolina law, " '[m]urder' is the killing of any person with malice aforethought, either express or implied." S.C.Code Ann. § 16-3-10 (Law.Co-op.1985) (emphasis omitted). And, malice is a "wrongful intent to injure another and indicates a wicked or depraved spirit intent on doing wrong." State v. Johnson, 291 S.C. 127, 352 S.E.2d 480, 481 (1987) (per curiam); see also State v. Glenn, 492 S.E.2d 393, 398 (S.C.Ct.App.1997) ("Malice is the doing of a wrongful act intentionally and without just cause or excuse."). Although an unjustified or inexcusable specific intent to kill constitutes malice, a specific intent to kill is not required. See State v. Foust, 325 S.C. 12, 479 S.E.2d 50, 51 & n. 2 (1996).

In its popular sense, the term "malice" conveys the meaning of hatred, ill-will, or hostility toward another. In its legal sense, however, as it is employed in the description of murder, it does not of necessity import ill-will toward the individual injured, but signifies rather a general malignant recklessness of the lives and safety of others, or a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief; in other words, a malicious killing is where the act is done without legal justification, excuse, or extenuation, and malice has been frequently substantially so defined as consisting of the intentional doing of a wrongful act toward another without legal justification or excuse.

State v. Heyward, 197 S.C. 371, 15 S.E.2d 669, 671 (1941) (internal quotation marks omitted).

Before the jury retired to deliberate Petitioners' guilt, the trial court gave the jury what was at the time a standard instruction on the element of malice, charging that "malice is implied or presumed from the willful, deliberate and intentional doing of an unlawful act without just cause or excuse" and from the use of a deadly weapon. J.A. 2275-76. Although the trial court also instructed the jurors that the presumption...