Walker v. Endell

• Decision Date: 23 September 1987
• Docket Number: No. 86-4230,86-4230
• Citation: 828 F.2d 1378
• Parties: Scott A. WALKER, Petitioner-Appellant, v. Roger ENDELL, Director, of the Alaska Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1378

828 F.2d 1378

Scott A. WALKER, Petitioner-Appellant, v. Roger ENDELL, Director, of the Alaska Department of

Corrections, Respondent-Appellee.

No. 86-4230.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 4, 1987.

Decided Sept. 23, 1987.

William P. Bryson, and Walter Share, Anchorage, Alaska, for petitioner-appellant.

David Mannheimer, Asst. Atty. Gen., Anchorage, Alaska, and Ronald W. Lorensen, Acting Atty. Gen., Juneau, Alaska, for respondent-appellee.

Appeal from the United States District Court for the District of Alaska.

Before FLETCHER, BOOCHEVER and NORRIS, Circuit Judges.

FLETCHER, Circuit Judge:

Scott Walker filed this habeas petition claiming that the following errors violated his right to due process: requiring him to prove duress by a preponderance of the evidence; failing to instruct the jury on the

meaning of recklessness, proof of which negates the duress defense; and instructing the jury to view "accomplice testimony" with distrust. He also claimed that punishing him cumulatively for robbery and two kidnappings, which arose out of the same transaction, violated the double jeopardy clause; and that sentencing him to a lengthy prison term was the equivalent of sentencing him for murder, a charge of which he was acquitted, in violation of his fifth and sixth amendment rights. The district court, adopting the recommendation of the magistrate, denied the petition. We affirm.

FACTS

On May 13, 1981, Walker, along with Dale Willhite and Timothy Hopkins, entered the Anchorage home of Mildred Walatka and her son, Herbert Oakley. According to Walker, the group's intent was to steal a coin collection, which Walker knew to be in the residence. Each of the three codefendants was armed. Walker stated that he was surprised when Oakley answered the door, so as prearranged he feigned car problems, planning to leave without further incident. Walker testified that Hopkins then changed the plan and they remained in the house. It was uncontroverted that while the burglars were in the house, Willhite drew his gun, and ivory and jewelry were taken.

At gunpoint, Walatka and Oakley were then forced into their own car. With Walker driving, the five went to Walatka's bank, where she was forced to remove $600 from her account. Again with Walker at the wheel, the burglars took Walatka and Oakley away from the city, where both were shot to death. Walker assisted in hiding the bodies after the homicides.

At trial, Walker claimed that all of his actions after the feigned telephone call in the Walatka residence were motivated by a fear for his own safety and that of the two victims. He testified that he knew Hopkins had killed an accomplice when he "chickened out" in a prior burglary. Walker further testified that they were armed only because Hopkins had said a contract had been taken out on their lives. He denied shooting either Oakley or Walatka, and testified that he intended for them to remain unharmed. Willhite, who was granted immunity in return for testimony against Walker, also testified that Hopkins changed the plan by drawing his gun, and that Willhite feared Hopkins.

Walker was tried on charges of theft, burglary, robbery, two counts of kidnapping, and two counts of murder. At trial, he admitted the theft and burglary charges, and was convicted on both. The jury apparently accepted some, but not all of his controverted testimony, because he was found not guilty on either count of murder, but was convicted of robbery and both counts of kidnapping.

Judge Buckalew sentenced Walker to a cumulative term of 89 years in prison. The Alaska Court of Appeals affirmed in a published opinion, Walker v. State, 674 P.2d 825 (Alaska Ct.App.1983). After the Alaska Supreme Court chose not to exercise its discretionary review, Walker filed this petition for habeas corpus, challenging the kidnapping and robbery convictions.

DISCUSSION

I. Duress

Walker contends that by requiring him to prove duress by a preponderance of the evidence, the trial court and the Alaska statute, A.S. 11.81.440(a), impermissibly shifted the burden of proof on intent, in violation of due process. Due process requires that the prosecution prove every element of a crime beyond a reasonable doubt. Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). If a defense negates an element of the crime, rather than mitigates culpability once guilt is proven, it is unconstitutional to put the burden of proof on the defendant. Takacs v. Engle, 768 F.2d 122, 125 (6th Cir.1985). The issue, then, is whether proof of duress necessarily entails disproof of the intent elements of the crimes of robbery and kidnapping under Alaska state law.

Walker argues that an element of the crimes of robbery and kidnapping is "criminal intent," and that duress is merely the flip side of this element. His argument takes two courses: he argues, first, that under Alaska law, criminal intent is an element of the crimes, and second, that, even if criminal intent is not acknowledged as an element by the Alaska law, due process requires that criminal intent be established by the government. We reject both arguments.

Under Alaska law, a person commits robbery if he uses or threatens to use immediate force with the intent to prevent or overcome resistance to the taking of property or with the intent to compel a person to deliver property. A.S. 11.41.510. A person commits kidnapping if he restrains another with the intent to hold the person for ransom, use the person as a shield, inflict physical injury upon the person, interfere with the performance of a governmental function, or facilitate the commission of a felony. A.S. 11.41.300(a)(1). An alternative provision for the crime of kidnapping defines the crime without reference to a specific intent element. A.S. 11.41.300(a)(2). Alaska, however, does not require the state to prove a "criminal intent."

Opinion differs as to whether duress generally prevents the mens rea required for criminal culpability. United States v. Mitchell, 725 F.2d 832, 835 (2d Cir.1983). The Court of Appeals of Alaska held in Walker's appeal that under Alaska law, duress does not preclude an intent to commit the crime, but rather is only a justification for conduct that otherwise would be criminal. Walker, 674 P.2d at 828-29. Under this statutory scheme, we conclude that placing the burden to prove duress on Walker was constitutional. By referring to the term, "criminal intent," Walker confuses the notions of objective and motive. The statutes prohibit particular action undertaken with a particular objective. For example, kidnapping is established if a defendant restrains another with the conscious objective of inflicting physical injury. But the reason that the defendant has this objective involves the separate issue of motive. Thus, a defendant can restrain another with the intent to inflict injury, in the sense that he knows that his actions will lead to injury or that his purpose is to cause injury, but act in this manner in order to comply with the demands of another. Because Alaska does not consider duress to be the negation of specific intent, duress may, consistent with due process, be treated as an affirmative defense.

Walker further argues that due process requires that Alaska adopt the view that criminal intent is an element of every crime, and that even if Alaska deems duress to be consistent with specific intent, it is necessarily inconsistent with criminal intent. The Supreme Court, in Martin v. Ohio, --- U.S. ----, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987), in considering the constitutionality of imposing a burden on defendants to prove self-defense, rejected the argument that states may only proscribe conduct performed with criminal intent. Id. 107 S.Ct. at 1103. Other circuits that have considered whether due process prohibits placing the burden on the defendant to prove duress have held that because society's notions of criminal law, as implemented by the " 'doctrines of actus reus, mens rea, insanity, mistake, justification, and duress,' " are constantly changing, constitutionalizing any formula, and thereby divesting the states of authority, would be inappropriate. Mitchell, 725 F.2d at 835 (quoting Powell v. Texas, 392 U.S. 514, 536, 88 S.Ct. 2145, 2156, 20 L.Ed.2d 1254 (1968)); see also Davis v. McCotter, 766 F.2d 203, 204 (5th Cir.1985). ¹ We therefore find that due process does not require the prosecution to prove absence of duress.

II. Failure to Define Recklessness

Walker alleges that the court's failure to define recklessness, proof of which prevents a defendant from using duress as a defense, violated due process. We must first address a procedural issue. Walker did not object to the court's instruction at the trial level, but did raise the issue before the state appellate court. Normally, failure to comply with a state's contemporaneous objection rule ² bars habeas review unless the petitioner can show cause for the failure and actual prejudice flowing from the error. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). If, however, a state appellate court overlooks the procedural default and considers the objection on the merits, the cause and prejudice requirement does not apply. Huffman v. Ricketts, 750 F.2d 798, 800-01 (9th Cir.1984); see also County Court of Ulster County v. Allen, 442 U.S. 140, 154, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979) ("[I]f neither the state legislature nor the state courts indicate that a federal constitutional claim is barred by some state procedural rule, a federal court implies no disrespect for the State by entertaining the claim."); Mullaney v. Wilbur, 421 U.S. 684, 688 n. 7, 95 S.Ct. 1881, 1884 n. 7, 44 L.Ed.2d 508 (1975) (reviewing habeas petition on the merits because on direct appeal Maine Supreme Judicial Court waived procedural default and...