U.S. ex rel. Castro v. Regan

• Decision Date: 29 October 1974
• Docket Number: No. 74--1486,74--1486
• Citation: 525 F.2d 1157
• Parties: UNITED STATES of America ex rel. Jose R. CASTRO, Appellant, v. Vincent J. REGAN, Superintendent, State Prison, Leesburg, New Jersey.
• Court: U.S. Court of Appeals — Third Circuit

Page 1157

525 F.2d 1157

UNITED STATES of America ex rel. Jose R. CASTRO, Appellant, v. Vincent J. REGAN, Superintendent, State Prison, Leesburg, New Jersey.

No. 74--1486.

United States Court of Appeals, Third Circuit.

Argued Oct. 29, 1974.

Submitted Under Third Circuit Rule 12(6) on Remand from

Supreme Court of the United States on Oct. 24, 1975.

Decided Nov. 24, 1975.

William F. Hyland, Atty. Gen. of N.J., Trenton, N.J., for appellee; Joseph J. Rodgers, Deputy Atty. Gen., Appellate Section, Div. of Crim. Justice, East Orange, N.J., of counsel and on the brief.

William A. Garrigle, Casby, Garrigle & Chierici, Cherry Hill, N.J., for appellant.

Before ALDISERT, STALEY and ROSENN, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

The issue is whether appellant is entitled to habeas corpus relief from his 1971 New Jersey conviction for second degree murder.

Having exhausted his state remedies, ¹ appellant filed a pro se petition with the district court for a writ of habeas corpus, contending, inter alia, that he was denied due process and equal protection 'by the multitudinous use of 'presumptions' and 'presumptive-type' phrases during the trial court's charge to the jury; thereby endangering and depriving the petitioner of his right to be proven guilty beyond a reasonable doubt on all elements . . ..' See generally In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The district court dismissed the petition. Civ.No. 2009--72 (D.N.J., Feb. 8, 1974). By judgment order, we affirmed the judgment of the district court. 505 F.2d 731 (3d Cir., Oct. 30, 1974). The Supreme Court vacated and remanded for further consideration in light of Mullaney v. Wibur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). Once again, we affirm.

While the facts were disputed at trial, the following scenario suffices for our purposes. The homicide occurred about 3:00 a.m. on June 5, 1970, in a Bellmawr, New Jersey tavern. Appellant testified that he had spent much of the day before, as well as the fatal morning, bar hopping,. Shortly before 3 a.m., appellant became involved in an argument, apparently over a woman; he left the tavern in a huff, returned with a shotgun, made certain threats and brandished a weapon. Thomas Lyons, not the man with whom appellant had quarrelled, approached appellant with arms upraised saying 'peace, peace,' in an effort to calm him. Appellant pushed Lyons in the chest with the shotgun, which discharged fatally wounding Lyons. Appellant testified at trial that he recalled nothing of his activities during the early morning hours immediately preceding the shooting, that he did not recall going to the Bellmawr tavern, that he had been a friend of Lyons', and that he had not intended to harm him.

In Mullaney, supra, the trial court had instructed that 'if the prosecution established that the homicide was both intentional and unlawful, malice aforethought was to be conclusively implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation.' 421 U.S. at 686, 95 S.Ct. at 1883. The Court framed the issue thusly:

The Maine law of homicide, as it bears on this case, can be stated succinctly: Absent justification or excuse, all intentional or criminally reckless killings are felonious homicides. Felonious homicide is punished as murder--i.e., by life imprisonment--unless the defendant proves by a fair preponderance of the evidence that it was committed in the heat of passion on sudden provocation, in which case it is punished as manslaughter--i.e., by a fine not to exceed $1,000 or by imprisonment not to exceed 20 years. The issue is whether the Maine rule requiring the defendant to prove that he acted in the heat of passion on sudden provocation accords with due process.

Ibid. at 691--92, 95 S.Ct. at 1886. The Court concluded that the state could not, without offending due process, affirmatively shift the burden of proof to the defendant. Ibid. at 701, 95 S.Ct. 1881.

Appellant now contends that he falls squarely within the purview of the Mullaney rule. ² Specifically, he points to the following portion of the court's charge to the jury:

Now, Ladies and Gentlemen, the indictment alleges murder of Thomas P. Lyons. So therefore, what is murder? Murder is the unlawful killing of another human being with malice and without reasonable provocation or justifiable cause or excuse. And I'd like to go over that with you.

Murder is the unlawful killing of another. Unlawful killing means that the killing did not occur at the command of or with the permission of the law.

The unlawful killing of another human with malice. What is malice? Well, malice as I have used the word means that there must be a concurrence of an evil meaning mind with an evil doing hand. Malice means either one or both of the following states of mind preceding or coexisting with the act or omission by which death is caused, and it may exist even where that act is unpremeditated: A, an intention to cause the death or grievous bodily harm to any person whether such person is the person actually killed or not; or B, knowledge that the act which causes death will probably cause the death of or grievous bodily harm to some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference, whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused.

So then murder is the unlawful killing of another human being with malice which I have explained to you and without reasonable provocation or justifiable cause. Without reasonable provocation or justifiable cause or excuse means that the killing did not occur by accident or in self preservation. When we talk about accident here, we mean that the killing did not occur during the doing of a lawful act in a lawful manner with reasonable care. Thus, an accidental shooting is not an unlawful killing. I do instruct you, however, that the pointing of a shotgun at a person's chest is an assault, and hence that is not a lawful act.

And so again, murder is the unlawful killing of another human being with malice and without reasonable provocation or justifiable cause or excuse. In New Jersey by enactment of the Legislature, the crime has been divided into two degrees, first degree and second degree. And it is presumed that every such unlawful killing of another human being is murder in the second degree. However, before such a presumption arises, an unlawful killing must be established. The mere proof of a killing does not give rise to a presumption of any kind. The law presumes that all unlawful homicides, that is all unlawful killings, are committed with malice unless the lack of malice is affirmatively demonstrated by the evidence.

And so, since I've told you that the Legislature has divided the crime of murder into two degrees, that is first and second degree, we note again the presumption that every unlawful killing of a human being is murder in the second degree.

(Emphasis added.)

We have re-examined the record in the light of Mullaney, cognizant that our review must be of the instructions as a whole. Mullaney v. Wilbur, supra, 421 U.S. at 690--91 n. 10, 95 S.Ct....