Tweety v. Mitchell

• Decision Date: 10 June 1982
• Docket Number: No. 81-6771,81-6771
• Citation: 682 F.2d 461
• Parties: Fred TWEETY, Jr., Appellant, v. J. P. MITCHELL, Warden, et al., Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 461

682 F.2d 461

Fred TWEETY, Jr., Appellant, v. J. P. MITCHELL, Warden, et al., Appellees.

No. 81-6771.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 5, 1982.

Decided June 10, 1982.

Stephen A. Saltzburg, University of Va. School of Law, Charlottesville, Va., for appellant.

Linwood T. Wells, Jr., Asst. Atty. Gen., Richmond, Va. (Marshall Coleman, Atty. Gen. of Va., Richmond, Va., on brief), for appellees.

Before HAYNSWORTH, Senior Circuit Judge, and MURNAGHAN and ERVIN, Circuit Judges.

ERVIN, Circuit Judge:

This is an appeal from a judgment of the district court dismissing Mr. Tweety's petition for a writ of habeas corpus. Tweety sought habeas relief on the ground that the jury instructions in his state court trial for murder unconstitutionally relieved the state of the burden of proving intent. The district court determined that the Virginia Supreme Court had found that Tweety had not objected to the jury instructions at trial as required by Virginia law and that this failure was a procedural bar to federal habeas corpus relief under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). We affirm because the Wainwright procedural bar may well apply to this petition, and, in any event, the challenged jury instructions were harmless error beyond a reasonable doubt.

I.

On April 26, 1974, Fred Tweety, Jr. was tried in the circuit court of Campbell County, Virginia, and found guilty of first degree murder for the shooting of Louie Alexander Rosser. The shooting occurred on December 30, 1973, at a dance Rosser was supervising. The evidence presented to the jury showed that Tweety went to the dance with a gun in his belt, that he danced inside the building for a short time, and that he subsequently went outside on the porch. Tweety and others began lighting cherry bombs and throwing them in the yard. When Rosser came outside and told Tweety to leave, Tweety shot Rosser.

The Commonwealth's case consisted of two eyewitnesses who testified that Rosser spoke to Tweety but did not hit him, and that Tweety shot Rosser several times, ran a few steps, then turned around and fired more shots at him. All witnesses testified that Rosser had not been seen carrying a gun that night, although several witnesses said Rosser often carried a gun during the day when he was working in the woods.

Tweety's case was one of self defense. One defense witness testified that Rosser first threatened to hit Tweety and then hit him twice on the back of the head with his hand before Tweety shot at him. Tweety testified that Rosser hit him, that he stumbled forward, heard what he thought to be shots (which apparently could have been cherry bombs exploding), then turned around and shot Rosser.

The court instructed the jury, inter alia, that "a man is presumed to intend that which he does, or which is the immediate or necessary consequences (sic) of his act" and that "the law presumes that a person using a deadly weapon to kill another acted with malice, and the burden is thrown upon the person so using a deadly weapon to overcome this presumption." Tweety was found guilty of first degree murder and sentenced to forty years imprisonment.

In Tweety's direct appeal to the Virginia Supreme Court on the ground that there was insufficient evidence for an instruction on first degree murder, his conviction was affirmed in an unpublished opinion. He then filed petition in the United States District Court for the Western District of Virginia for habeas corpus relief on the same grounds, which was also dismissed. The Commonwealth had filed a motion to dismiss on the ground that "instructions to the jury are matters of state law and procedure" only.

On February 17, 1978, Tweety filed a habeas writ with the Supreme Court of Virginia arguing that the jury instructions violated Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), by relieving the prosecution of the burden of proving malice. The Commonwealth again filed a motion to dismiss on the ground that Tweety's failure to object to the instruction at trial violated Virginia's contemporaneous objection rule and precluded consideration of the habeas challenge. The Commonwealth also argued on the merits that the challenged instruction complied with state law and federal due process. The Supreme Court of Virginia denied the writ without stating whether its decision was based on the state procedural bar or on the merits of the petition.

On June 28, 1979, Tweety filed a habeas corpus petition in the federal district court again arguing that the jury instructions violated Mullaney. The Commonwealth this time argued that the petition was repetitive of the one previously filed in district court. The district court held that the petition was not repetitive but denied the petition sua sponte on the state procedural ground that Tweety had failed to make a contemporaneous objection to the alleged erroneous instruction.

II.

Tweety makes his most substantial challenge to the jury instruction "that a man is presumed to intend that which he does, or which is the immediate or necessary consequences of his act." He argues that a reasonable juror could have viewed the instruction as a mandatory presumption which would relieve the Commonwealth of proving beyond a reasonable doubt that Tweety intended to shoot Louie Rosser. Shifting the burden of proof on the intent issue from the Commonwealth to the defendant violates federal due process standards discussed by the Supreme Court in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). In fact, an instruction almost identical to the one Tweety challenges was held to be unconstitutional by the Supreme Court in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). ¹

In Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), however, the Supreme Court held that failure to make a contemporaneous objection to an alleged error in a state criminal trial provides an independent and adequate state ground to preclude federal habeas corpus review absent a showing of just cause or prejudice accompanying a state procedural waiver. ² That rule was applied recently by this court in Dooley v. Sheffer, decided sub nom. Frazier v. Weatherholtz, 572 F.2d 994 (4th Cir. 1978). ³

In Virginia, as in other states, objections must be made at the appropriate time at trial and must be stated with reasonable certainly in order to preserve the alleged error. See Va.Sup.Ct.R. 5:21; Whitley v. Patterson, 204 Va. 36, 129 S.E.2d 19 (1963). Virginia Supreme Court Rule 5:21, however, provides an exception to the state's contemporaneous objection rule by allowing state appellate review of errors not objected to at trial "for good cause shown" or to enable the court "to attain the ends of justice." ⁴ The Virginia Supreme Court has applied these exceptions in the past to prevent a miscarriage of justice. See, e.g., McKeon v. Commonwealth, 211 Va. 24, 175 S.E.2d 282 (1970); Cooper v. Commonwealth, 205 Va. 883, 140 S.E.2d 688 (1965). ⁵

In this case, the Virginia Supreme Court failed to state the basis for its dismissal of Tweety's habeas petition. The Commonwealth argued that the petition should be dismissed because Tweety's counsel failed to make a contemporaneous objection to the jury instruction at trial, or, alternatively, that the instruction did not violate due process. Thus, we are left to speculate whether the Virginia Supreme Court dismissed the case on state procedural grounds which would preclude federal habeas corpus review under Wainwright v. Sykes, supra, or whether the court dismissed the opinion upon consideration of the merits, in which case a review of the merits by this court will be appropriate. ⁶

Our inquiry into what the Virginia Supreme Court was thinking when it summarily dismissed Tweety's habeas corpus petition is aided by that court's decision in Coppola v. Warden, 222 Va. 369, 282 S.E.2d 10 (1981). In that case, Frank Coppola was convicted of capital murder and a number of other offenses on September 26, 1978, at a trial in which the jury was given an instruction concerning a presumption of intention from a person's actions almost identical to the instruction given the jury in this case. After exhausting his appeals, Coppola filed a habeas corpus petition in state circuit court arguing, inter alia, that the jury instruction violated Sandstrom v. Montana, supra. The petition was denied and the Virginia Supreme Court granted an appeal limited to the issue of the constitutionality of the jury instruction. In a per curiam opinion, the Supreme Court held that "the failure of Coppola's counsel to interpose at trial a contemporaneous objection ... precludes review of the instruction at this time." 222 Va. at 371, 282 S.E.2d at 11 (quoting Hankerson v. North Carolina, 432 U.S. 233, 244 n.8, 97 S.Ct. 2339, 2345 n.8, 53 L.Ed.2d 306 (1977)).

Although Coppola may not be binding precedent because it was decided after the Virginia Supreme Court dismissed Tweety's habeas petition in this case, it certainly is a strong indication that the Virginia Supreme Court may well have dismissed Tweety's petition for failure to make a contemporaneous objection to the jury instruction. In any event, we are not prepared to presume that the court dismissed Tweety's petition on the merits simply because the court failed to state the grounds for its decision, ⁷ and we agree with the district court that the Virginia Supreme Court probably dismissed Tweety's state habeas petition for failure to make a contemporaneous objection. ⁸

Even if the Virginia Supreme Court dismissed Tweety's petition on the merits, and even if we assume that the instruction violates Sandstrom v. Montana, supra, and that Sandstrom should be given retroactive effect, the petition should be denied because the error alleged was harmless beyond a reasonable doubt. To determine whether an erroneous jury instruction when...