Angel v. Mohn

• Decision Date: 20 March 1979
• Docket Number: No. 14272,14272
• Citation: 253 S.E.2d 63,162 W.Va. 795
• Parties: Lennis Lee ANGEL v. Richard MOHN, Acting Superintendent, West Virginia Penitentiary as successor to Bobby J. Leverette.
• Court: West Virginia Supreme Court

Page 63

253 S.E.2d 63

162 W.Va. 795

Lennis Lee ANGEL v. Richard MOHN, Acting Superintendent, West Virginia

Penitentiary as successor to Bobby J. Leverette.

No. 14272.

Supreme Court of Appeals of West Virginia.

March 20, 1979.

Syllabus by the Court

The doctrine of harmless constitutional error does not operate to cure a constitutionally impermissible instruction which instructs the jury in a criminal case to accept a presumption as proof beyond a reasonable doubt of any material element of the crime charged, or requires the defendant either to introduce evidence to rebut the presumption or to carry the burden of proving the contrary.

__________

George A. Daugherty, Charleston, for petitioner.

Chauncey H. Browning, Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., Charleston, for defendant.

MILLER, Justice:

In this appeal from the Circuit Court of Kanawha County upon the denial of petitioner's writ of habeas corpus, it is claimed that the Circuit Court erroneously applied the doctrine of harmless constitutional error.

The alleged underlying constitutional error was the giving of an instruction presuming first degree murder from the use of a deadly weapon. ¹ In Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), this type of instruction was held to be unconstitutional since it shifted the burden of proof of a key element of the crime from the state to the defendant, a position which this Court followed in State v. Pendry, W.Va., 227 S.E.2d 210 (1976).

The United States Supreme Court, following its unanimous holding in Mullaney, supra, decided Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977), where it found that the effect of a Mullaney -type instruction on the jury " 'Substantially impairs its truth-finding function and so raises Serious questions about the accuracy of guilty verdicts in past trials . . . .' " (Emphasis in original) (432 U.S. at 243, 97 S.Ct. at 2344, 53 L.Ed.2d at 316, quoting from Ivan V. v. City of New York, 407 U.S. 203, 204, 32 L.Ed.2d 659, 661, 92 S.Ct. 1951, 1952 (1972). It therefore decided to make its holding in Mullaney fully retroactive to all cases in which such instructions had been given.

This Court followed the mandate laid down in Hankerson in Jones v. Warden, West Virginia Penitentiary, W.Va., 241 S.E.2d 914 (1978), Cert. denied, --- U.S. ----, 99 S.Ct. 107, 58 L.Ed.2d 125, a unanimous opinion on the issue of retroactivity. In a concurring opinion, two Justices took the position that in an appropriate case the doctrine of harmless constitutional error might be applied to avoid granting relief. They did find in Jones that it "is impossible to apply the harmless error doctrine in the case before us . . . ." (241 S.E.2d at 918)

In an additional concurring opinion, two Justices took the position that the doctrine of harmless error could not apply to a Mullaney-Pendry instruction. This was based on the reason that the doctrine of harmless constitutional error rests upon a finding that " 'the court must be able to declare a belief that (the error) was harmless beyond a reasonable doubt.' Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710 (1967)." (241 S.E.2d at 919). They asserted such declaration could not be made since, under Mullaney and Hankerson, the Court had stated as a matter of law that the constitutionally condemned instruction substantially impaired or cast serious questions upon the truth-finding function represented by the jury's guilty verdict.

In the present case, the lower court reasoned that since this Court appeared to be equally divided on the question of whether the doctrine of harmless constitutional error could apply to a Mullaney-Pendry instruction, it would utilize the doctrine.

We have applied Jones' retroactive principle in several subsequent cases where a Mullaney-Pendry Instruction was involved. In each instance, the Court was unanimous in its holding on this point and no application was made of the doctrine of harmless constitutional error. Edwards v. Leverette, W.Va., --- S.E.2d --- (1979) (No. 14127) (Opinion by Chief Justice Caplan); State v. Laws (State v. Davis) W.Va., 251 S.E.2d 769 (1978) (Nos. 13886 & 13870) (Opinion by Justice Neely); State v. Sanders, W.Va., 242 S.E.2d 554 (1978) (Opinion by Justice McGraw); Kosut v. Leverette, W.Va., 242 S.E.2d 247 (1978) (Per Curiam).

In State v. Kirtley, W.Va., 252 S.E.2d 375 (1978), we recognized that a Mullaney-Pendry instruction given in a case which resulted in a verdict of involuntary manslaughter could be deemed harmless under the doctrine of harmless constitutional error, since it did not relate to the actual verdict. A similar rule was applied in a conviction for voluntary manslaughter in State v. Mason, W.Va., 249 S.E.2d 793 (1978).

In the present case, the jury verdict was for first degree murder without a recommendation of mercy, such that there is a direct correlation between the constitutionally defective instruction and the jury verdict.

Certainly the United States Supreme Court was aware of the doctrine of harmless constitutional error at the time it decided Mullaney, since two Justices, in a concurring opinion, suggested consideration of this doctrine. The majority, however, refused to give any consideration to the doctrine. More importantly, when Hankerson was decided by a unanimous Court, no suggestion was made that the constitutionally defective instruction could be treated as harmless constitutional error. ²

It would be difficult, if not impossible, to fit the condemned Mullaney-Pendry instruction into the doctrine of harmless constitutional error, since such an instruction has been found as a matter of law in Hankerson to substantially impair the truth-finding function of the jury and raise " 'serious questions about the accuracy of guilty verdicts in past trials'." (Emphasis in original) (432 U.S. at 243, 97 S.Ct. at 2344, 53 L.Ed.2d at 316.) The predicate for the doctrine of harmless constitutional error is that it can be stated "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710 (1967).

Obviously, an instructional error which unconstitutionally shifts the burden of proof of an essential element of the crime to the defendant, causing a serious question about the accuracy of the guilty verdict, is not an error that did not contribute to the...