Wilbur v. Mullaney

• Decision Date: 30 April 1974
• Docket Number: No. 72-1348.,72-1348.
• Citation: 496 F.2d 1303
• Parties: Stillman E. WILBUR, Jr., Petitioner, Appellee, v. Garrell S. MULLANEY et al., Respondents, Appellants.
• Court: U.S. Court of Appeals — First Circuit

496 F.2d 1303 (1974)

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

No. 72-1348.

United States Court of Appeals, First Circuit.

Submitted February 20, 1974.

Decided April 30, 1974.

As Amended May 10, 1974.

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

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

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

OPINION ON REMAND

ALDRICH, Senior Circuit Judge.

We are faced again with the duty of considering the propriety, in the light of In re Winship, 1970, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, of imposing upon a defendant indicted for murder, once an unlawful killing had been shown beyond a reasonable doubt, the burden of proving that his conduct met the statutory definition of manslaughter as distinguished from murder, or, as the Maine court, post, put it, of reducing the degree of the crime from murder to manslaughter.

The facts are these. At the trial the state's case against Wilbur, the present petitioner for a writ of habeas corpus, hereinafter defendant, was based upon circumstantial evidence and defendant's pretrial admissions that he had inflicted such severe injuries upon the deceased with his fist and a blunt instrument that death had resulted within a few minutes. Although he did not testify or offer any evidence, defendant's theory of defense, as asserted in his pretrial statement introduced in full by the state, was that although he had struck the deceased, it was in the heat of passion suddenly provoked by an indecent homosexual overture, and that, therefore, he had not acted with malice aforethought, and was guilty of manslaughter, not murder. The court instructed the jury that it was the state's burden to prove beyond a reasonable doubt that the defendant had killed the deceased, and that the killing was intentional and unlawful. It also informed the jury that malice aforethought was an "essential and indispensable element of the crime of murder," but it charged that "malice aforethought may . . . be implied from an unlawful killing" and "is presumed to be present in all homicides until the contrary appears from the circumstances of alleviation to be made out "by a fair preponderance of the evidence" by the defendant."

In In re Winship the Court held that the Due Process Clause requires the state to prove beyond a reasonable doubt "every fact necessary to constitute the crime with which he is charged." 397 U.S. at 364. On appeal from his conviction for murder, the instant defendant took the position that malice aforethought, which he equated with premeditation, was an intent more criminal in character than one formed under circumstances recited in the statute defining manslaughter, post, and that such higher intent was an element of the crime of murder and hence part of the state's burden of proof rather than a matter for him to disprove. The Maine court, however, held that under the law of Maine murder and manslaughter were but a single crime, felonious homicide, manslaughter being a degree thereof; and that the defendant has the burden of proving by a fair preponderance the "reductive factors (sudden provocation and heat of passion)". State v. Wilbur, Me., 1971, 278 A.2d 139, 145. It reasoned that the "policy presumption of malice, bearing as it does not on the guilt or innocence of felonious homicide but only upon the degree of and possible punishment for such homicide, should be accorded such procedural force as is required to make it truly effective" and that it did not anticipate that "Winship will be so extended as to reach the procedural requirements of Conley and Knight post as now interpreted." Id. at 146. On a petition for habeas corpus the district court, and ultimately ourselves, disagreed. Wilbur v. Mullaney, 1 Cir., 1973, 473 F.2d 943.

Thereafter, in State v. Lafferty, Me., 1973, 309 A.2d 647, the Maine court rejected both our interpretation of the Maine law and the propriety of our effort to interpret it, as a result of which the Supreme Court, on petition for certiorari, vacated our judgment and ordered us to give "further consideration in light of Lafferty." 414 U.S. 1139, 94 S.Ct. 889, 39 L.Ed.2d 96 (1974).

In our prior opinion we were influenced by the fact that separate statutes defined murder and manslaughter;¹ and by references in State v. Knight, 1857, 43 Me. 11, 33, to murder and manslaughter as "offenses . . . which import different degrees of criminality, and are punished with different degrees of severity," and in State v. Conley, 1854, 39 Me. 78, 88 to manslaughter as "wanting" "all the elements of murder." We now recognize that the separateness of the statutes is not deemed of any ultimate significance by the Maine Supreme Judicial Court and that both Knight and Conley, in addition to the language which earlier impressed us, contain language looking to the unitary nature of the crime embracing both murder and manslaughter, which language the Maine court deems controlling.

That the distinction between separate crimes and degrees of a single crime has not always been clearly conveyed is revealed in the charge given to the jury that convicted Wilbur. The trial court, after announcing that it would "describe the elements of the crimes of murder and manslaughter," which it then did,² concluded as follows:

"Now I have given you the general definitions of the crimes of murder and manslaughter with some further explanations; quoting largely, using largely the language of our court . . . from which you can see clearly the definitions of the two offenses."

Nevertheless, we now take as a given that there is "a single crime, unlawful (felonious) homicide." Lafferty, ante, 309 A.2d at 663 (Emphasis in orig.). We believe we may have erred in focussing in our previous opinion upon the structure of the Maine law, concededly an internal matter, Memorial Hospital v. Maricopa County, (2/26/74) 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306; instead of upon the consequences, from the standpoint of the defendant, in order to ascertain whether they were of constitutional proportions; or, as the Lafferty court put it, to see that state law as definitively interpreted "trespasses on no federally guaranteed constitutional rights." 309 A.2d at 662. The question is more properly put: does the fact that Maine regards murder and manslaughter as a single crime, denominated felonious homicide, but differing in degree, avoid Winship's strictures protecting "the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged" within the Court's intendment?

We start with a consideration of the measure of the difference effected by the concept of "reductive factors" of provocation and heat of passion as to which defendant has the burden. Under Maine law "malice aforethought" is not to be thought of as a general equivalent of premeditation. The term is "not a designation of any subjective state of mind existing as a fact." Lafferty, ante, 309 A.2d at 664, quoting State v. Rollins, Me., 1972, 295 A.2d 914, 920. (Emphasis in orig.) Whether a killing has taken place with the subjective intention that death result (i. e., "a `premeditated' killing," Lafferty, 309 A.2d at 670, Wernick, J., concurring) or death has been caused without any specific subjective intent but by reckless or brutal conduct, "malice aforethought," "a fictional, metaphysical term of art" applicable to both acts, may be "extinguished by the fact that heat of passion upon sudden, adequate provocation spawned the conduct." Id., 672. Such facts (heat of passion, causation, sudden and adequate provocation) do not eliminate criminality but are "the facts legislatively assigned in advance to bind a judge's sentencing discretion" (id., at 667) and "mitigate the blameworthiness of the criminality." Id. at 671. Yet there is no question but that what is required to extinguish "malice aforethought" are factual matters.³ The contention is that, not being addressed to disproof of criminality but to proof of lesser blameworthiness, the placing of the burden on an accused to prove such factual matters falls beyond the reach of Winship.

In determining the constitutionality of a state statute (we draw no distinction between statutory and court-made law) the Court said in St. Louis Southwestern Ry. Co. v. Arkansas, 1914, 235 U.S. 350, at 362, 35 S.Ct. 99, at 102, 59 L.Ed. 265,

"Upon the mere question of construction we are, of course, concluded by the decision of the state court of last resort. But . . . we must regard the substance, rather than the form, and the controlling test is to be found in the operation and effect of the law as applied and enforced by the state."

As recently as In re Gault, 1967, 387 U. S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, where the state court had construed its statute as providing that certain proceedings were not even criminal, the Court disregarded that conclusion, holding that from the substantive, and hence constitutional standpoint they must be regarded as criminal. It said, at pp. 49-50, "To hold otherwise would be to disregard substance because of the feeble enticement of the `civil' label-of-convenience." 387 U.S. at 49-50. See also Duncan v. Louisiana, 1968, 391 U.S. 145, 88 S.Ct....