Wilbur v. Mullaney, No. 72-1348.

• Decision Date: 14 February 1973
• Docket Number: No. 72-1348.
• Citation: 473 F.2d 943
• Parties: Stillman E. WILBUR, Jr., Petitioner, Appellee, v. Garrell S. MULLANEY et al., Respondents, Appellants.
• Court: U.S. Court of Appeals — First Circuit

473 F.2d 943 (1973)

Stillman E. WILBUR, Jr., Petitioner, Appellee, v. Garrell S. MULLANEY et al., Respondents, Appellants.

No. 72-1348.

United States Court of Appeals, First Circuit.

Argued January 3, 1973.

Decided February 14, 1973.

Vernon I. Arey, Asst. Atty. Gen., with whom Fernand LaRochelle, Asst. Atty. Gen., was on brief, for appellants.

Peter J. Rubin, Portland, Me., by appointment of the Court, with whom Bernstein, Shur, Sawyer & Nelson, Portland, Me., was on brief, for appellee.

Before COFFIN, Chief Judge, ALDRICH and McENTEE, Circuit Judges.

ALDRICH, Senior Circuit Judge.

Petitioner Wilbur was convicted in the Maine Superior Court of the murder of one Hebert as a result of a beating. Wilbur did not take the stand. The principal evidence against him was his statement to the police, the admissibility of which is not presently controverted, that he did the act. This concession was coupled with an assertion that he had not intended to kill, and that the whole episode was the spontaneous result of anger provoked by a homosexual overture by Hebert. As to this the court placed the burden upon the petitioner. It charged the jury,

"`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, sic, not ? 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 and not murder."

It is common ground that this charge was in accord with what has been the law of Maine for a hundred years. Wilbur did not take exception to the charge at trial. On appeal, however, the Supreme Judicial Court, noting possible constitutional implications, considered and rejected Wilbur's later voiced objection. State v. Wilbur, Me., 1971, 278 A.2d 139.

While the appeal was pending the Supreme Court decided In re Winship, 1970, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. Although the issue there was the limited one whether a state might prove juvenile charges by a preponderance of the evidence rather than by proof beyond a reasonable doubt, the Court concluded with ringing and unmistakable language.

"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." 397 U.S. at 364, 90 S.Ct. at 1073.

In affirming the correctness of the charge which imposed a burden on the defendant, the Maine court concluded with a reference to Winship, but after observing that it had "not overlooked" the implications of that case, dismissed it on two grounds. The court did not believe the Supreme Court would apply it retroactively (an erroneous prophecy, Ivan V. v. City of New York, 1972, 407 U.S. 203, 92 S.Ct. 1951, 32 L.Ed.2d 659), or that it would be "so extended as to reach the procedural requirements of Conley and Knight¹as now interpreted." (Emphasis suppl.). 278 A.2d at 146. After this ruling, which manifestly exhausted his state remedies, Wilbur sought a writ of habeas corpus in the district court. Here he met with success. Wilbur v. Robbins, D. Maine, 1972, 349 F.Supp. 149. The state appeals.

The rationale of the Maine court, expressed at some length in Wilbur, but with perhaps more specificity in State v. Rollins, Me., 1972, 295 A.2d 914,² is that in Maine there is only one crime — "felonious homicide" — which is the intentional and unlawful killing of a human being. When these elements are proved beyond a reasonable doubt, the court states, criminality is established and malice aforethought "functions as a legal formula by which Main law differentiates ultimate punishment classifications (designated under the labels, `murder' and `manslaughter')." 295 A.2d 917. Before us Wilbur characterizes this analysis as an attempt to make "an end run" around Winship. There is nothing wrong with an end run. The question must be whether in doing so the court went offside.

Certainly within broad limits a state court must be the one to interpret its own laws. McMichaels v. Hancock, 1 Cir., 1970, 428 F.2d 1222. We must hold, however, that a totally unsupportable construction which leads to an invasion of constitutional due process is a federal matter.

Although in Rollins the court stated that "a single underlying criminal entity, `felonious homicide' i. e., intentional and unlawful killing, has been continuously reflected in the law of Maine," 295 A.2d at 918, it conceded that "differences in the wording ... from time to time" had to be taken into account. With deference, we are compelled to conclude that in its review of "wording" the court was unduly selective. To begin with, there is no recognition in Rollins of the fact that the legislature has seen fit, and, apparently has always seen fit, to treat murder and manslaughter separately, in separate sections, and in no apparent way as a single crime with varying sentences. In the 1964 Maine Revised Statutes, Title 17, Chapter 85 is entitled "Manslaughter." The initial section, section 2551, Definition, provides as follows,

"Whoever unlawfully kills a human being in the heat of passion, on sudden provocation, without express or implied malice aforethought, ... or commits manslaughter as defined by the common law, shall be punished by a fine of not more than $1,000 or by imprisonment for not more than 20 years ...."

Chapter 89, Title 17, is entitled Murder. Section 2651, Definition, reads,

"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."

Instead of discussing the statutes, the court in Rollins referred to prior decisions which it said supported its view of a single offense. It indicated, for example, State v. Park, 1963, 159 Me. 328, 193 A.2d 1, as a case involving "reducing the penalty severity of an intentional killing from `murder' to `manslaughter.'" Examination of Park is not supportive. The court there used no such language. On the contrary, speaking through Chief Justice Williamson, it referred to "reducing the crime of murder to that of manslaughter." Interestingly enough, that is the precise language used in Wilbur, in a portion of the opinion, 278 A.2d at 141, where the court's attention was not directed to the necessity of wording that would take the Maine rule out of the reach of Winship implications. We do not think of "reducing the crime" as a paraphrase of "reducing the penalty." Nor did the court in Park think in terms of a single offense. After citing the murder and manslaughter statutes, Chief Justice Williamson continued, "The differences between the two offenses have been set forth by our court in the often cited cases below." (Emphasis suppl.) The court then cited and discussed Conley and Knight, n. 1, ante.

We need not ourselves discuss Conley and Knight. It seems sufficient for present purposes to say that in 1963 the Maine court regarded them as supporting the conclusion that murder and manslaughter were two offenses, and that it was only in 1971, after In re Winship, that the court "now interpreted" them (see ante) otherwise.

The suddenness of this new interpretation is indicated by our own review of the "wording" of prior Maine decisions. In addition to Park, which we must suggest contradicted rather than supported the court, we note three cases which the court did not cite at all. In State v. Merry, 1939, 136 Me. 243, 8 A.2d 143, the court, rather than speaking of degrees of punishment for a single crime embracing both `murder' and `manslaughter' as "labels for purposes of penalty identification," stated that, "in this State degrees of murder have been abolished. The crime is now defined by statute as the unlawful killing of a human being, with malice aforethought, either express or implied."³ (Emphasis suppl.) In State v. Ernst, 1955, 150 Me. 449, 114 A.2d 369, the defendant was convicted of manslaughter after having been charged with murder. In disposing of defendant's objections, not here relevant, the court described manslaughter as a "lesser offense than that concerned in the charge of felony murder." 150 Me. at 464, 114 A.2d at 376. Finally, the distinction based upon separate offenses figured importantly in Collins v. Robbins, 1951, 147 Me. 163, 84 A.2d 536, where the court spoke of manslaughter as a "lesser included offense." This could not mean they were the same offense. The fact that they were separate offenses, the defendant being a minor, raised the jurisdictional questions the court was concerned with.

In all fairness to the court, it is possible to pick and choose language from some of the cases which it did cite to make an argument in favor of its present position. We regard it, however, as a very weak argument. The court's selected citations do not stand alone. Particularly, they do not stand apart from the statutes. We cannot believe that the legislature, if asked to revise the present laws, and being told that it would be but a "procedural" step (see Wilbur, quoted ante), would enact a single statute stating that "all unlawful killings" constitute the crime of murder, and that simply the sentence would...