Wilbur v. Robbins

Citation349 F. Supp. 149
Decision Date29 September 1972
Docket NumberCiv. No. 13-3.
PartiesStillman E. WILBUR, Jr., Petitioner, v. Allan L. ROBBINS, Warden, Maine State Prison, and State of Maine, Respondents.
CourtU.S. District Court — District of Maine

Peter J. Rubin (C.J.A. appointment), Portland, Me., for petitioner.

Ferand LaRochelle, Peter W. Culley, Asst. Attys. Gen., Criminal Division, Augusta, Me., for respondents.

OPINION AND ORDER OF THE COURT

GIGNOUX, District Judge.

After a jury trial in the Franklin County, Maine Superior Court, the petitioner, Stillman E. Wilbur, Jr., was convicted of the crime of murder in violation of 17 M.R.S.A. § 2651. He was sentenced to life imprisonment in the Maine State Prison and is presently in respondents' custody serving that sentence. On appeal, the Supreme Judicial Court of Maine affirmed his conviction. State v. Wilbur, 278 A.2d 139 (Me.1971). He has now filed in this Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 et seq. In his present petition, petitioner contends that his conviction was obtained in violation of his federal constitutional rights on a number of grounds, only one of which raises a sufficiently substantial federal constitutional claim to justify further consideration by this Court. This is petitioner's contention that he was denied his Fourteenth Amendment right to due process of law by the trial judge's instructing the jury that if it were satisfied the State had proved beyond a reasonable doubt an intentional and unlawful killing, malice aforethought was "presumed" and the defendant would be guilty of murder, rather than manslaughter, unless he established, by a fair preponderance of the evidence, that he had killed in the heat of passion upon sudden provocation.

The single issue presented is whether in thus placing the burden on petitioner to show, even by a preponderance of the evidence, the absence of malice aforethought, the Court denied him due process of law under the rule of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L. Ed.2d 368 (1970). It is conceded that petitioner has exhausted his available state remedies with respect to this question as required by 28 U.S.C. § 2254(b), and the case has been submitted on the state court record. For the reasons which follow, the Court is persuaded that In re Winship requires that petitioner's conviction be set aside.

At the trial, the State's evidence was that on January 30, 1966 one Claude Hebert was beaten to death by the defendant in Hebert's motel room. In the absence of any eyewitness, the State's case was based upon circumstantial evidence and the defendant's pretrial admissions that he had inflicted such severe injuries upon Hebert with his fists and a blunt instrument that Hebert had died within a few minutes. The defendant did not testify or offer any evidence. The theory of the defense was that, as asserted in the defendant's pretrial admissions, the defendant had killed Hebert in the heat of passion suddenly provoked by an indecent homosexual overture on the part of Hebert and that therefore he had not acted with malice aforethought and was guilty of manslaughter, not murder. The trial judge instructed the jury at length on the difference between murder and manslaughter. He then informed the jury of the State's burden to prove beyond a reasonable doubt that the defendant killed Hebert and that the killing was intentional and unlawful. He also informed the jury that malice aforethought was an "essential and indispensable" element of the crime of murder. Finally, quoting in part from the standard instruction on murder which has been given in this state for over one hundred years,1 he

charged the jury as follows:

"In all cases where the unlawful killing is proved beyond a reasonable doubt, and where there is nothing in the circumstances of the case to explain, qualify or palliate the action, the law presumes it to have been done with malice aforethought. And if the accused, that is the defendant, would reduce the crime below the degree of murder, the burden is upon him to rebut the inference which the law raises from the act of killing, by evidence in defense." It is again, I must say, that he must call witnesses to the stand in defense. But it means that from all the evidence in the case he must be able to satisfy you by a fair preponderance of the evidence that . . . although he killed, and although he killed unlawfully, if such is the case, he killed in the heat of passion upon sudden provocation, as I shall explain hereafter. And if such were your findings, then the respondent, the defendant, would be guilty of manslaughter. So, when the defendant has the burden of going forward with the evidence his burden is not that of proof beyond a reasonable doubt. His burden is only of proof by a fair preponderance of the evidence. By a fair preponderance of the evidence, we mean by the greater weight of the evidence, by evidence which is more satisfying and more convincing than the evidence that seems to bear the other side's point of view of the case. So, if the evidence—well, so if the unlawful killing was proved by the State beyond a reasonable doubt, and if there was nothing in the circumstances to explain anything palliating, then you'd find the defendant guilty of murder, because it would be presumed it would have been done with malice aforethought. However, if the defendant has satisfied you by a fair preponderance of the evidence introduced, that although he caused the death unlawfully of Claude Hebert, yet the act was done in the heat of passion upon sudden provocation, without malice aforethought, then you would find him guilty of manslaughter and not murder.

The trial judge's initial charge and two supplementary charges, given when the jury returned to ask for further instructions, included repeated references to the mandatory nature of the presumption of malice and the burden on the defendant to rebut the presumption in order to "reduce" the homicide from murder to manslaughter.

In Winship, the Supreme Court held that proof of a criminal charge beyond a reasonable doubt is constitutionally required. The Court stated:

Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. Id. at 364, 90 S.Ct. at 1073.

The Maine court recognized the implications of Winship, but declined to apply it to the case on, it appears, two grounds. First, it saw "no occasion to anticipate" that Winship would be applied retrospectively. State v. Wilbur, supra, 278 A.2d at 146. Second, it felt that Winship would not be "so extended" as to reach the presumption of malice arising from an intentional and unlawful killing since "no burden is imposed upon defendant until the State has first convinced the jury beyond a reasonable doubt that defendant is guilty of a voluntary and intentional homicide," and the issue at that point "is no longer guilt or innocence of felonious homicide but rather the degree of the homicide." Idem.

As to the first ground upon which the Maine court declined to apply Winship, the Supreme Court has since eliminated any doubt as to the retrospective application of Winship. In Ivan V. v. City of New York, 407 U.S. 203, 92 S.Ct. 1951, 32 L.Ed.2d 659 (1972) (decided six days after oral argument in this case), the Court squarely held that Winship was to be given complete retroactive effect. As the law now stands, therefore, and as it applies to petitioner, his conviction for murder can be upheld only if "every fact necessary to constitute the crime with which he is charged" was proved beyond a reasonable doubt.2

The second ground upon which the Maine court distinguished Winship was based upon its conclusion that the crime with which petitioner was charged was "felonious homicide," and that malice aforethought was not an essential ingredient of that crime, but merely determined the degree of the offense. The term "felonious homicide," however, has never appeared in the Maine criminal statutes. Under the Maine statutory scheme an unlawful killing may be either murder or manslaughter. The statutory definition of murder is:

Whoever unlawfully kills a human being with malice aforethought, either express or implied, is guilty of murder and shall be punished by imprisonment for life. 17 M.R.S.A. § 2651. (Emphasis supplied.)

The statutory definition of manslaughter, insofar as presently relevant, is:

Whoever unlawfully kills a human being in the heat of passion, on sudden provocation, without express or implied malice aforethought, . . . shall be punished by a fine of not more than $1,000 or imprisonment for not more than 20 years. . . . 17 M.R.S.A. § 2551. (Emphasis supplied.)

The Maine statutes thus define two separate and distinct crimes of murder and manslaughter, each with its own elements and sentence. Malice aforethought is made the distinguishing element of the offense of murder, and it is expressly excluded as an element of the offense of manslaughter. For a person to be guilty of murder, malice aforethought, either express or implied, must be found. State v. Merry, 136 Me. 243, 247 (1939)3. It is undeniably an essential element of the crime of murder and as such, under the rule of In re Winship, must be proved by the prosecution beyond a reasonable doubt.

The Maine court also sought to justify the presumption of malice as reflecting "the public interest in the administration of justice" and as recognizing "the practical impossibility in a vast number of cases of meeting a mere suggestion of sudden provocation and heat of passion by negating proof beyond a reasonable doubt." State v. Wilbur, supra, 278 A.2d at 1454. But the Supreme Court has made clear the limited circumstances in which a presumption in a criminal case can pass constitutional...

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11 cases
  • Cole v. Stevenson, 78-6211
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 5, 1980
    ...to September 29, 1972, the date on which the Mullaney concept emerged from the womb in Judge Gignoux's decision in Wilbur v. Robbins, 349 F.Supp. 149 (D.Me.1972). 27 From September 29, 1972 on, there was some basis, at least, for holding that there was waiver, because the possibility of suc......
  • Engle v. Isaac, 80-1430
    • United States
    • United States Supreme Court
    • April 5, 1982
    ...States v. Braver, 450 F.2d 799 (CA2 1971) (inducement), cert. denied, 405 U.S. 1064, 92 S.Ct. 1493, 31 L.Ed.2d 794 (1972); Wilbur v. Robbins, 349 F.Supp. 149 (Me.1972) (heat of passion), aff'd sub nom. Wilbur v. Mullaney, 473 F.2d 943 (CA1 1973), vacated, 414 U.S. 1139, 94 S.Ct. 889, 39 L.E......
  • Honeycutt v. Mahoney, 82-6427
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • January 10, 1983
    ...remained on the prosecution throughout, was not handed down until September 29, 1972, some eight months later. Wilbur v. Robbins, 349 F.Supp. 149 (S.D.Me.1972). The court of appeals affirmance took place only on February 14, 1973, 1 over a year after the appeal had been decided in Cole, but......
  • Burko v. State, 278
    • United States
    • Court of Special Appeals of Maryland
    • January 7, 1974
    ...to include citations not present in Wilkins, i. e. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) and Wilbur v. Robbins, 349 F.Supp. 149 (D.Me.1972), aff'd sub nom. Wilbur v. Mullaney, 473 F.2d 943 (1st Cir. 1973). The Winship case holds at 364 of 397 U.S., at 1073 of 90 ......
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