Griffin v. Martin, 85-6581

• Decision Date: 28 April 1986
• Docket Number: No. 85-6581,85-6581
• Parties: Theodore GRIFFIN, Appellant, v. George N. MARTIN, III, Warden; Attorney General of the State of S. C., Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1172

785 F.2d 1172

Theodore GRIFFIN, Appellant, v. George N. MARTIN, III, Warden; Attorney General of the State of S. C., Appellees.

No. 85-6581.

United States Court of Appeals Fourth Circuit.

Argued Dec. 3, 1985.

Decided Feb. 27, 1986.

Rehearing En Banc Granted April 28, 1986.

Mary Rose Kornreich, Student Counsel, Appellate Litigation Clinical Program, Georgetown University Law Center (Steven H. Goldblatt, Director, Samuel Dash, Director, Martha J. Tomich, Appellate Law Fellow, Washington, D.C., on brief), for appellant.

Donald J. Zelenka, Chief Deputy Atty. Gen. (T. Travis Medlock, Atty. Gen., Columbia, S.C., on brief), for appellees.

Before MURNAGHAN, SPROUSE, and SNEEDEN, Circuit Judges.

MURNAGHAN, Circuit Judge:

Habeas corpus petitioner, Theodore Griffin, was, on September 30, 1980, convicted of murder in the Court of General Sessions for Richland County, South Carolina. An appeal to the South Carolina Supreme Court was unavailing. ¹ On the filing on April 6, 1983 by Griffin of an application to the United States District Court for the District of South Carolina, Columbia Division, for a federal writ of habeas corpus, the matter was first referred to a magistrate, who, on October 4, 1983, recommended issuance of the writ subject to retrial within a reasonable time.

However, the district judge concluded otherwise. He withheld decision on the magistrate's recommendation pending the result in the appeal in a case, the outcome of which might affect disposition of Griffin's case, namely, Thomas v. Leeke, 547 F.Supp. 612 (D.S.C.1982). The appeal in that case, as a consequence of which a writ of habeas corpus was ordered to issue unless South Carolina were promptly to retry the applicant, was decided on January 12, 1984. Thomas v. Leeke, 725 F.2d 246 (4th Cir.1984). ²

The district court, in the end, determined that Thomas v. Leeke did not control Griffin's case. He refused to issue the requested writ of habeas corpus.

From the time the application for the habeas corpus writ was first before the district court when it was filed on April 6 1983 until the district judge, by an order entered on July 26, 1985, rejected the recommendation of the magistrate, the elapsed time was over two years. The period from the time of publication of the Fourth Circuit opinion in Thomas v. Leeke until July 26, 1985, the date of the district court's denial of the habeas corpus writ, was in excess of a year. ³

Griffin was embroiled in an unfortunate affair of the heart. Lawrence Wilson had gained the affections of Griffin's wife. On April 5, 1980, an occasion arose when Wilson drove up in his car at the home of Griffin's mother-in-law. When Griffin entered the car to talk to Wilson, the two passengers left. A discussion ensued. Griffin emerged from the car, turned around, and shot Wilson three times, fatally wounding him.

Absent the aspects of the case associated with the assertion of self defense and of provocation ⁴ made by Griffin, the evidence was overwhelmingly sufficient to justify, if not, indeed, to compel, the jury verdict of guilty of murder.

Griffin took the stand at the trial. He testified that, after a conversation with Wilson in which there were allusions to the relationship between Wilson and Griffin's wife of three or four weeks duration to which Griffin took exception, he got out of the car, wishing Wilson luck. Griffin further testified that he turned around after emerging from the car to see Wilson reaching under the seat. According to Griffin, he entertained a belief that Wilson kept a sawed-off shotgun under the seat of his car and, fearing it was about to be employed against him, shot Wilson three times. That testimony constituted "some" evidence to establish the existence of self defense. ⁵

Contradicting Griffin's testimony, there were statements that no weapon was found in the car, however, and there was testimony from witnesses gainsaying Griffin's representation that Wilson reached under the seat of the car or displayed any other menacing attitude. However, it is the state of Griffin's mind that controlled. For the purposes of the instant case it is uncontradicted that self defense may exist on appearances, whether accurate in fact or not, which would lead a man of ordinary prudence to conclude that the taking of steps in self defense was necessary. ⁶

I

On those facts, we have two legal areas to enter. The first is immediately dispositive inasmuch as inherent contradiction in the trial court's instructions as to where the burden of proof lies on the issue of self defense requires us to reverse the district court's denial of a habeas corpus writ and to order the petitioner Griffin released unless South Carolina proceeds with reasonable dispatch to retry him. In fairness to the South Carolina judges a) who presided at Griffin's trial and b) who affirmed his conviction, it should be pointed out that their actions, on September 30, 1980 and November 24, 1981, respectively, antedated by several years the decision of Thomas v. Leeke, 725 F.2d 246 (4th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 218, 83 L.Ed.2d 148 (1984), the other case arising from South Carolina which raises essentially the same question as Griffin presents. Thomas held that instructions very similar to those employed at Griffin's trial were so inherently contradictory and confusing as to rise to the level of constitutional infirmity.

In Griffin's case, at the conclusion of the trial, the jury received the customary instruction that, presumed innocent throughout the trial, he remained so until proven guilty, with the requirement on the prosecution being proof of guilt of the crime beyond a reasonable doubt. The trial judge further instructed the jury that murder constituted the unlawful or felonious killing of any person with malice aforethought, either express or implied. ⁷ Moreover, the instructions to the jury went on to state "that malice is presumed from the willful, deliberate, intentional commission of a felony," murder being a felony, an unlawful act without just cause or excuse. The instructions continued: "malice means the doing of a wrongful act intentionally without just cause or excuse," and that malice "is presumed from the use of a deadly weapon." ⁸ The presumption of malice was explained to be rebuttable, with the jury "from all the evidence to determine whether or not malice has been proven in this case beyond a reasonable doubt" with "the burden ... upon the State to prove malice by evidence satisfying [the jury] beyond a reasonable doubt."

With respect to self defense, the trial judge charged that "a person has a right to act in self defense" but that it "is an affirmative defense" and that the defendant was bound to prove it "by the greater weight or the preponderance of the evidence." That instruction was elaborated by an explanation that "if the defendant has failed to make out any one of the four elements of self defense, then his plea of self defense fails because he has to prove all four of them by the greater weight or the preponderance of the evidence." ⁹ Then, at the conclusion of the charge, a general reasonable doubt instruction was repeated specifically directed at self defense. ¹⁰ The instructions were objected to, but the objections were overruled, and the conviction of Griffin followed.

In Thomas:

The trial court attempted to charge the jury both that the burden of persuasion of self-defense was on the defendant, and that the prosecution had the burden of proving "every material allegation or claim of the indictment beyond every reasonable doubt in order to obtain conviction." ... At the same time, the court instructed the jury that the accused must prove four elements of self-defense, and that "the accused, if she seek[s] to excuse the killing by relying upon the plea of self-defense, is required to establish such plea of self-defense by the preponderance or greater weight of the evidence.... If the scales remain even or if they tip ever so slightly in the State's favor, she has not met the required burden of proof."

725 F.2d at 250. The Thomas court concluded:

The court therefore had in one breath instructed the jury that the accused had the burden of proving self-defense by a preponderance of the evidence, yet in the other that the prosecution had to prove beyond a reasonable doubt that the killing had been felonious (and therefore unlawful) and with malice. Confusion in the minds of the jury was inescapable with a charge that was unequivocally contradictory.

725 F.2d at 250-51. To like effect is Francis v. Franklin, --- U.S. ----, 105 S.Ct. 1965, 1975-77, 85 L.Ed.2d 344 (1985).

We do not perceive a viable distinction between Thomas and Franklin, on the one hand and Griffin's case on the other. Consequently, the result must be the same. Griffin, like Thomas, must, absent prompt retrial and reconviction, be accorded the benefit of a release which the writ of habeas corpus provides. ¹¹

In Thomas v. Leeke, we stopped, having traversed the one area of contradictory instructions. We concluded that:

We need not reach the question of whether the due process clause prohibits in all instances the placing on the defendant of the burden of persuasion with regard to self-defense. It is enough, for the purposes of this case, to observe that the court's instructions regarding the burden of proof were both conflicting and confusing. "Because proof of self-defense constitutes an absolute defense in that it renders the homicide justifiable, any error in the trial court's instruction concerning self-defense was necessarily prejudicial." Wynn v. Mahoney, 600 F.2d 448 (4th Cir.1979), cert. denied, 444 U.S. 950, 100 S.Ct. 423, 62 L.Ed.2d 320 (1979).

725 F.2d at 250. My colleague, Judge Sprouse, displaying a commendable disinclination to decide any more than is necessary, goes no further. ¹² Normally, I too would avoid the proliferation of what might prove only to be dicta.

II

It...