Alexander v. Foltz
| Decision Date | 26 January 1988 |
| Docket Number | No. 87-1003,87-1003 |
| Citation | 838 F.2d 140 |
| Parties | Ernest ALEXANDER, Petitioner-Appellant, v. Dale FOLTZ, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Bret A. Schnitzer, Southfield, Mich., Daniel J. Melican (argued), Detroit, Mich., for petitioner-appellant.
Edgar L. Church (argued), Asst. Atty. Gen., Lansing, Mich., for respondent-appellee.
Before KEITH, MILBURN and NELSON, Circuit Judges.
Put on trial by the State of Michigan, Petitioner was convicted of first degree murder for admittedly having shot and killed a man with whom he had been in a fight after the man made advances to Petitioner's wife. The central issue in the trial was Petitioner's state of mind at the time of the shooting; the State presented evidence tending to show premeditation and malice, and Petitioner presented evidence tending to show he had acted in the heat of passion, in self-defense, or both.
Several highly questionable instructions were included in the trial court's charge to the jury, including an instruction that "the law presumes every man intends the usual consequences which accompany his acts." Counsel for the State conceded, in oral argument before this court, that under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), there was error in the jury charge. (In Sandstrom the Supreme Court disapproved, on federal constitutional grounds, a state court instruction that said "[t]he law presumes that a person intends the ordinary consequence of his voluntary acts.")
Sentenced to life imprisonment, Petitioner applied for a writ of habeas corpus under 28 U.S.C. Sec. 2254. The federal district court denied Petitioner's application, holding that any error in the jury instructions was harmless beyond a reasonable doubt.
We shall reverse the judgment of the district court; it seems to us that a rational juror could well have found, under proper instructions, that the State had failed to prove all the elements of first degree murder beyond a reasonable doubt. Lacking confidence that the jury's verdict would have been the same even with instructions that contained no error, we conclude that Petitioner is entitled to a new trial.
The events out of which the criminal case arose occurred at a Detroit area racetrack on Friday, the 13th of June, 1975. Petitioner drove to the track shortly before the last race to pick up his 22-year-old wife, whom he had left there earlier in the evening. The woman was about three months pregnant.
Parking his car near the racetrack entrance, and leaving the couple's three-year-old son in the vehicle, Petitioner entered the area beneath the grandstand and spotted his wife looking at race results on a television screen. As he started walking toward her, Petitioner testified, three unknown men approached her, and one of them "snatched her by the arm." Petitioner evidently did not hear what was said, but his wife testified that the man asked her "Did you get the last race?" She shook her head and started walking off, as she told the jury, whereupon the man stepped in front of her, grabbed her arm, and said "Why don't you come and help me spend some of this money I won?"
When Petitioner reached the group, according to his wife's testimony, he asked if the men were bothering her. Lacing his words with obscenities, the man who was holding her arm said "What is it to you?" Petitioner replied "That's my wife." Petitioner testified that the man responded "I don't care who she is" and started calling Petitioner "all types of names...."
Eyewitness accounts of what happened next contained some variations, but the jury could easily have concluded that the man knocked Petitioner to the ground one or more times and kicked him while he was down, breaking one of Petitioner's teeth; that Petitioner's wife swung her purse at the assailant; that one of the assailant's companions grabbed the wife around the waist and pulled her away; and that when Petitioner was able to regain his feet, he ran out to his car shouting "Be here when I come back," or "Just give me one minute!"
When he reached the car Petitioner opened the trunk and took out a loaded revolver that he claimed to have purchased for protection while driving a taxi. Thus armed, Petitioner testified, "I went back to look for my wife."
When asked on cross-examination why he had pulled the trigger, Petitioner testified as follows:
A.
Q. "Did you intend to kill this man ... ?"
A. "No, sir."
The man's two companions had a different version of what happened immediately before the shooting; they said that Petitioner shook his gun in the assailant's face and shouted "Hey, what you gonna do now," while Petitioner's wife said "Shoot him, Ernest, shoot him," or "Go ahead, kill him, go ahead and kill him, go ahead and shoot him!" The wife denied having said anything of the sort, and Petitioner testified that he did not remember her saying anything.
Immediately after the shooting, Petitioner testified, his wife asked him about the baby in the car. She then went to the car, while Petitioner stayed behind. Petitioner testified that he became frightened, left the scene of the shooting, and was picked up by his wife in the car. A witness gave the license number to the police, and soon thereafter an officer spotted the car and pulled it over. Petitioner threw the gun out the car window before his arrest, but the police recovered the weapon the next day. Petitioner was brought to trial a few months later.
After the jury had been impaneled, the prosecutor made an opening statement outlining the State's case and suggesting that the evidence would show beyond a reasonable doubt that Petitioner murdered the decedent "feloniously, deliberately, willfully, and with malice aforethought and premeditation...." (See Mich.Comp.Laws Ann. Sec. 750.316, defining the crime of first degree murder in terms that include "any ... kind of wilful, deliberate and premeditated killing....") Counsel for Petitioner reserved his opening statement, contenting himself with a request that the court "instruct the jury that I don't have to prove anything...." The court gave such an instruction.
The prosecutor proceeded to call some 37 witnesses, and presentation of the State's case took approximately a week. Counsel for Petitioner, addressing the jury for the first time since it had been impaneled, then gave an opening statement that framed the main issue thus:
"We'll bring out all the facts we know that happened there and then leave the matter in your hands for your determination as to what, if there was a homicide, the degree, or if there wasn't under the rules of evidence as Judge Roberts will describe them to you and the matter will then be for you to decide whether or not John, 1 or Ernest Alexander had murder in his heart, whether he intended to kill anybody or not." (Emphasis supplied.)
With that, Petitioner was called to the stand; his testimony was followed by that of his wife. The State presented two rebuttal witnesses, after which Petitioner and his wife again testified briefly. Closing arguments followed.
The prosecutor presented a final argument that may fairly be described as concise, logical, and persuasive. Petitioner's counsel, who told the jury that he had been trying cases for more than 50 years, responded with a more discursive argument, summarizing the State's case in considerable detail and urging, again, that the State had failed to prove that Petitioner "had murder in his heart."
Much of the ensuing jury charge was unexceptionable. After explaining that Petitioner was accused of having murdered the decedent feloniously, deliberately, willfully and with malice aforethought and premeditation, the court gave the following instructions on burden of proof and presumption of innocence:
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