Paprocki v. Foltz

• Decision Date: 01 March 1989
• Docket Number: No. 87-1114,87-1114
• Citation: 869 F.2d 281
• Parties: Terry D. PAPROCKI, Petitioner-Appellant, v. Dale FOLTZ, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 281

869 F.2d 281

Terry D. PAPROCKI, Petitioner-Appellant, v. Dale FOLTZ, Respondent-Appellee.

No. 87-1114.

United States Court of Appeals Sixth Circuit.

Argued Dec. 10, 1987.

Decided March 1, 1989.

Neil H. Fink, John R. Minock (argued), Detroit, Mich., for petitioner-appellant.

Edgar L. Church, Jr. (argued), Asst. Atty. Gen., Lansing, Mich., for respondent-appellee.

Before NELSON and BOGGS, Circuit Judges, and EDWARDS, Senior Circuit Judge.

DAVID A. NELSON, Circuit Judge.

This is an appeal from a district court judgment denying an application for a writ of habeas corpus. The petitioner, Terry D. Paprocki, killed his estranged wife during a struggle in their home. He was charged with murder and stood trial in a Michigan state court. Mr. Paprocki maintained that he had acted in self-defense, but a jury found him guilty of murder in the second degree. His conviction was upheld on appeal. Mr. Paprocki's principal contention in the habeas proceeding is that the state trial court's instructions to the jury were fatally flawed because they could have been interpreted as assigning the defendant the burden of proof on the self-defense issue.

Although self-defense is an affirmative defense in some jurisdictions--in Michigan's neighboring state of Ohio, for example--and although the United States Constitution does not forbid any state from giving the defendant the burden of proof on this issue, see Martin v. Ohio, 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987), the common law of Michigan requires the prosecution to bear the burden of proving the absence of self-defense. Berrier v. Egeler, 583 F.2d 515, 521 (6th Cir.), cert. denied, 439 U.S. 955, 99 S.Ct. 354, 58 L.Ed.2d 347 (1978). Mr. Paprocki now asserts, in effect, that a Michigan conviction obtained under a jury charge inconsistent with Michigan's traditional common law rule must be set aside by the federal courts even though the Michigan courts themselves have decided to let the conviction stand, and even though nothing in the federal constitution prevents Michigan from abandoning its traditional rule in favor of a rule comparable to Ohio's.

Whatever the merits of this assertion, and whether or not Mr. Paprocki's failure to object to the jury instructions contemporaneously gave rise to a procedural bar that forecloses habeas relief in any event, see Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), we are satisfied that the instructions, taken as a whole, pass muster under any application of the Michigan rule that we have authority to enforce. We think the district court was correct in rejecting the instructional error claim, just as we think it was correct in rejecting the claims of prosecutorial misconduct and ineffective assistance of counsel that Mr. Paprocki also advanced. The denial of the writ will be affirmed.

I

Mr. & Mrs. Paprocki were married in 1973. They had two children. On May 10, 1982, after a violent quarrel, Mrs. Paprocki left home with the children and went to Canada. Both parties then instituted divorce proceedings. A Michigan judge awarded Mrs. Paprocki temporary custody of the children, but enjoined her to keep them within the state. Her attorney advised her to bring the children back from Canada. Mrs. Paprocki did so, returning to the marital home on June 22, 1982.

The couple quarreled the next evening, and according to Mr. Paprocki's testimony his wife attacked him with a knife. He claimed that he succeeded in knocking the knife out of her hand, whereupon she poked him in the eye with her fingers and started choking him. He responded by choking her, he testified, but when she failed to release her grip he tried to punch her in the jaw; his aim was off, and he hit her in the throat instead.

Mr. Paprocki ran to a neighbor's house at this point, he testified, and asked that help be summoned. The police arrived 15 or 20 minutes later, but were unable to revive Mrs. Paprocki. Mr. Paprocki was placed under arrest and advised to remain silent. He invoked his right to do so.

The living room showed no signs of a struggle, aside from a broken wine glass. A knife was found in the room, but the police could not obtain fingerprints from it. There were bruises on Mrs. Paprocki's neck but none on her husband's; he had three scratches below his right eye. Police officers testified, without objection, that Mr. Paprocki did not request medical attention and never inquired about the condition of his wife. When told at the police station that his wife had been pronounced dead, Mr. Paprocki said nothing.

A county medical examiner testified that Mrs. Paprocki died of manual strangulation. He testified that the body would have to be deprived of oxygen for about three to seven minutes before a person would die from this type of strangulation. Under skillful cross examination, the medical examiner admitted that a brief interruption in the flow of oxygen down the windpipe could bring on a paralysis of the respiratory center, with death following several minutes later. On redirect, however, after reexamining a photograph showing the contusions on Mrs. Paprocki's neck, the medical examiner reiterated his conclusion that death had been caused by asphyxia due to manual strangulation.

In closing argument the prosecutor suggested that Mr. Paprocki's failure to inquire about his wife's condition indicated a lack of concern and showed that he had not acted in self-defense. The prosecutor also argued, without objection, that Mr. Paprocki had physically abused or assaulted his wife in the past, and that she was afraid of him.

The trial court gave a comprehensive and balanced jury charge, stating, among other things, that the jurors should begin their deliberations with the presumption of innocence foremost in their minds; that the burden of proving guilt rests with the prosecution throughout the entire trial and never shifts to the defendant; that every element of the crime charged must be proven by evidence beyond a reasonable doubt; that for the defendant to be guilty of murder in the second-degree, he must have acted under circumstances which did not justify, excuse or lessen the crime; that the elements which the prosecution had to prove beyond a reasonable doubt were that the deceased died in Oakland County on or about June 23 or 24 as a result of having been manually strangled by Mr. Paprocki, and that he was guilty of a crime; that the killing of one human being by another may be entirely innocent, depending on the state of mind with which it is done; that a killing is not murder if it is justified or excused; that the crime of murder may be reduced to voluntary manslaughter under certain circumstances; that one of the defenses raised in this case was that the defendant acted in lawful self-defense; and that when a person acts in lawful self-defense, he is not guilty of any crime.

In further reference to self-defense, the court charged the jury as follows "In considering whether or not the Defendant acted in lawful self defense, you should carefully consider all the evidence in light of the following rules: first, at the time of the act, the Defendant must have honestly believed that he was in danger of being killed or receiving serious bodily harm. If he so believes, he may immediately act in defending himself. Even to the extent of taking human life, if necessary.

"Although it may now turn out that the appearances were false and that he was mistaken as to the extent of the real danger, he is to be judged by the circumstances as they appeared to him at the time of the act. Second, the degree of danger which must be feared is serious bodily harm or death. A person is not justified in killing or inflicting great bodily injury upon another in order to protect himself from what appears to be slight or insufficient injury--insignificant injury. In deciding whether at the time, the Defendant feared for his life or safety, you should consider all the surrounding circumstances. The condition of the parties, including their relative strength. Whether the other party was armed with a dangerous weapon, or had other means to injure the Defendant. The nature of the threat or attack of the other party. Any previous acts of brutality or threats of the other party of which the Defendant was aware.

"Third, the act or acts taken by the Defendant must have appeared to the Defendant at the time to be immediately necessary. A person is justified in using only such an amount of force as may appear necessary at the time to defend himself from danger. In considering whether the degree of force appeared to be necessary, you should consider the excitement of the moment and what alternatives the Defendant knew existed. A Defendant in a state of excitement is not held to fine distinctions of judgment about how much force is necessary for him to use to protect himself."

The jury returned a verdict of guilty of murder in the second-degree, and Mr. Paprocki was sentenced to imprisonment for 20 to 80 years. The Michigan Court of Appeals affirmed the conviction, and the Michigan Supreme Court denied leave to appeal. Mr. Paprocki then brought his habeas corpus action under 28 U.S.C. Sec. 2254. The district court, in the person of Ralph M. Freeman, J., entered a final judgment denying the writ. This appeal followed.

II

The trial court was not asked to give Michigan Standard Jury Instruction 7:9:06, and it did not do so. That instruction, we are told, reads as follows:

"The defendant is not required to prove that he acted in self-defense. The prosecution has the burden of proof of guilt beyond a reasonable doubt, and this includes the responsibility of proving that the defendant was not acting in self-defense."

Although there was no objection to the instructions as given, Mr. Paprocki now contends that the jury should not have been told that self-defense had been "raised" as a defense and should not have been asked to consider "whether or not" ...