Arnold v. Evatt
| Decision Date | 14 May 1997 |
| Docket Number | No. 95-4019,95-4019 |
| Citation | 113 F.3d 1352 |
| Parties | John D. ARNOLD, Petitioner-Appellant, v. Parker EVATT, Commissioner, South Carolina Department of Corrections; T. Travis Medlock, Attorney General, State of South Carolina, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Edmund Heyward Robinson, Cambridge, Massachusetts; Michael Patrick O'Connell, Assistant Federal Public Defender, Charleston, South Carolina, for Appellant. Lauri J. Soles, Assistant Attorney General, Columbia, South Carolina, for Appellees. ON BRIEF: Charles Molony Condon, Attorney General, Donald J. Zelenka, Assistant Deputy Attorney General, Columbia, South Carolina, for Appellees.
Before RUSSELL, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed by published opinion. Judge RUSSELL wrote the opinion, in which Judge NIEMEYER and Judge MOTZ joined.
In the early morning hours of April 12, 1978, cousins John Arnold and John Plath, who were in their early twenties, along with their respective eleven-year-old and seventeen-year-old girlfriends, Carol Ullman and Cindy Sheets, borrowed a friend's car and went looking for wild mushrooms. During their search they encountered farm worker Betty Gardner as she walked along the side of the road. Gardner hitchhiked a ride with the two couples, who took her to her brother's home. Gardner then asked if the group would take her to work, but they refused and drove off. However, testimony indicated Arnold suggested they go back and kill Gardner because he "didn't like niggers." They then went back, picked Gardner up, and took her to a remote wooded area near a garbage dump.
When Gardner attempted to leave, Arnold told her that she was not going anywhere, kicked her in the side, and knocked her down. Gardner was alternately sexually assaulted, urinated on, stomped, beaten with a belt, hit with a jagged bottle, stabbed with a knife, and choked with a garden hose. All four persons at one time or another participated in physically assaulting Gardner. Testimony also indicated Arnold dragged Gardner into the woods to complete her murder, which he did by strangling her with the garden hose, getting leverage by putting his foot on her neck. Arnold then carved "KKK" into Gardner's body in an attempt to mislead law enforcement. As it turned out, Gardner's body was not found until Sheets' involvement came to light and she provided law enforcement with the location of Gardner's decomposed remains.
Arnold and Plath were indicted in the Beaufort County Court of General Sessions on charges of murder and kidnapping. After a jury trial, they were convicted on February 6, 1979. Both defendants were sentenced to death by electrocution.
Arnold appealed to the South Carolina Supreme Court which affirmed his conviction, but remanded the case for resentencing because of improper prosecutorial argument. 1 At the resentencing trial, the new jury found Arnold guilty of committing the murder while in the commission of kidnapping and recommended the death penalty. In January 1984, the South Carolina Supreme Court affirmed Arnold's death sentence. 2 The United States Supreme Court subsequently denied Arnold's petition for writ of certiorari, with two Justices dissenting based on Arnold's Sixth Amendment claim regarding the jury view of the crime scene. 3 Arnold filed an application for postconviction relief in the Beaufort County Court of Common Pleas in November, 1984. An evidentiary hearing resulted in an order denying his application. Arnold then filed a petition for writ of certiorari to the South Carolina Supreme Court, which the court denied.
In 1988, however, the United States Supreme Court granted a writ of certiorari and remanded the case to the Beaufort County Court of Common Pleas for reconsideration on the issue of the trial court's implied malice instruction. 4 On remand, the court denied the application for post-conviction relief, holding that the malice instruction did not include an impermissible presumption, or alternatively, any error was harmless. Arnold made a number of subsequent motions to amend his application which, following another hearing in 1990, the court denied as meritless or untimely. Arnold appealed the denial of post-conviction relief to the South Carolina Supreme Court. The court concluded that under United States Supreme Court precedent the implied malice instruction was harmless error. 5 The United States Supreme Court denied another petition for writ of certiorari in 1993. 6
On August 31, 1993, Arnold presented a petition for writ of habeas corpus by a person in state custody in the United States District Court for the District of South Carolina. The United States Magistrate Judge, after hearing oral arguments on the petition and all intervening motions, recommended the district court deny the petition. After objections, the United States District Judge entered an order, filed September 29, 1995, adopting the findings of the magistrate and granting the State's motion for summary judgment. Arnold appeals.
The trial court's implied malice instruction, which caused the United States Supreme Court to remand this case eight years ago, continues to be the subject of appeal. At the guilt phase of Arnold's trial, the trial court instructed the jury that murder is "the killing of any person with malice aforethought either expressed or implied." The trial court explained that malice may be expressed "as where one makes previous threats of vengeance or where one lies in wait or other circumstances which show directly that the intent to kill was really entertained," or may be implied from the willful, deliberate and intentional doing of any unlawful act without just cause or excuse, or from the use of a deadly weapon. Based on United States Supreme Court precedent, the South Carolina Supreme Court determined that the implied malice portion of the court's instruction denied Arnold his due process right by erroneously shifting the burden of proof as to malice from the prosecution to the defendant. 7 We agree and now examine whether the error was harmless.
In Yates v. Evatt, the Supreme Court held that an implied malice instruction substantially similar to the one given by Arnold's trial court was constitutional error subject to harmless-error analysis. 8 The harmlessness standard for habeas review of constitutional error is whether the error "had substantial and injurious effect or influence in determining the jury's verdict." 9 Therefore, Arnold must establish "actual prejudice" as a result of the implied malice instruction in order to obtain habeas relief. 10 The reviewing court, according to Yates, need not find that the jury was totally unaware of the erroneous presumption. Instead, it must only determine the error was unimportant in relation to the other evidence considered by the jury independently of the erroneous presumption. 11 In making such a determination, the reviewing court must: (1) ask what evidence the jury actually considered in reaching its verdict; and (2) weigh the probative force of that evidence as against the probative force of the erroneous presumption standing alone. 12
Rather than "conduct a subjective inquiry into the jurors' minds" to discover what evidence the jury considered, the reviewing court should analyze the instructions given to the jurors and apply the customary presumption that the jurors followed the instructions in making their decision. 13 Throughout the jury charge on malice at Arnold's trial, the trial court reminded the jurors to base their determination of malice on all the evidence presented, that any malice presumption was rebuttable, and that malice must be established beyond a reasonable doubt. The defendants presented some evidence tending to rebut malice, including Plath's testimony that he and Arnold did not participate in the murder. Thus, as in Yates, the jury was "free to look beyond the unlawful presumption and consider all the evidence on malice." 14
Having determined that the jury considered the entire record, the next question is whether the evidence was so overwhelming that the jury would have found malice beyond a reasonable doubt absent the erroneous presumptions. 15 The South Carolina Supreme Court cited fourteen pieces of evidence tending to show express malice on the part of Arnold. 16 Arnold argues that this evidence supports the predicate facts of the erroneous presumptions, decreasing the probative force of the evidence, and that the solicitor made references to the implied malice instructions in his closing arguments, increasing the probative force of the erroneous presumptions standing alone. Arnold fails, however, to tip the scales sufficiently in his favor. Put simply, this case reeks of express malice and any reasonable jury, notwithstanding the implied malice instruction, would have found malice beyond a reasonable doubt. We hold that the implied malice instruction was harmless error.
Arnold claims the solicitors' closing arguments at his guilt and resentencing trials were improper and prejudicial.
Arnold initially raised the issue of the solicitor's guilt-phase comments in his Third Amended Application for Post-Conviction Relief, which the state court dismissed as untimely. As a general matter, federal habeas corpus review is unavailable where a prisoner has defaulted his federal claim in state court pursuant to a state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." 17 Arnold presents no evidence of cause and prejudice and is unable to allege a fundamental miscarriage of justice. Instead, Arnold argues that South Carolina's practice of in favorem vitae review, wherein the state appellate court searches...
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