Austin v. Israel

• Decision Date: 03 June 1981
• Docket Number: No. 80-C-1061.,80-C-1061.
• Citation: 516 F. Supp. 461
• Parties: Bobby Earl AUSTIN, Petitioner, v. Thomas R. ISRAEL, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

516 F. Supp. 461

Bobby Earl AUSTIN, Petitioner, v. Thomas R. ISRAEL, Respondent.

No. 80-C-1061.

United States District Court, E. D. Wisconsin.

June 3, 1981.

Bobby E. Austin, pro se.

Bronson C. LaFollette, Wis. Atty. Gen. by E. Gordon Young, Asst. Atty. Gen., Madison, Wis., for respondent.

DECISION and ORDER

MYRON L. GORDON, District Judge.

Bobby Earl Austin has filed a petition for a writ of habeas corpus in which he attacks his state convictions for first degree murder, attempted murder and armed robbery. Relying on Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), Mr. Austin contends that these convictions are unconstitutional because the trial court improperly instructed the jury on the element of intent by stating that the law presumes that one intends the natural consequences of his deliberate acts.

The respondent argues that Mr. Austin may not collaterally attack his convictions in this proceeding because he failed to object to the reading of the instruction at trial and also because he has not exhausted available state court remedies. On the merits, the state maintains that Sandstrom does not mandate a new trial under the circumstances of this case.

I. BACKGROUND

In an opinion affirming Mr. Austin's convictions, the Wisconsin supreme court gave the following account of the events leading to the petitioner's arrest and conviction:

"On July 25, 1975, the defendant smoked marijuana, injected heroin, and drank an undetermined amount of wine and beer. That afternoon he joined a dice game at a local tavern in Racine. Later in the afternoon, Kenny Simmons and Berlyn Funderburg joined the game, and Funderburg began winning consistently. After the defendant found that Funderburg had been playing with loaded dice, he demanded that Funderburg return the money he had lost in the dice game, but Funderburg refused.

"The defendant then went to the home of a friend, took a shotgun, and loaded it. He then returned to the site of the dice game. After demanding but not recovering money there, he traced down Funderburg. Funderburg approached defendant's car. The defendant got out of the car with the shotgun pointed down, and told Funderburg to return the money lost in the dice game. Funderburg took money out of his pocket, and the defendant took it. The defendant then noticed Kenny Simmons, turned and said either `You next Kenny boy' or something to the effect `I'm going to blow you away.' In turning towards Simmons, the defendant either pointed the shotgun upwards or directly at Simmons, and the shotgun discharged. The blast only slightly injured Simmons but killed Willie Wortham, a friend of the defendant's who happened to be standing near Simmons at the time. Later that night the defendant turned himself in to the police." Austin v. State, 86 Wis.2d 213, 216-17, 271 N.W.2d 668 (1978).

At the petitioner's trial, eight witnesses who were present at the shooting testified as to the circumstances surrounding the incident. Only one of these witnesses testified that Mr. Austin stated before firing the weapon, "I'm going to blow you away." Two witnesses testified that the petitioner did not say anything like that; these witnesses stated that they heard Mr. Austin say "you next Kenny boy," or words to that effect. In addition, four witnesses testified that they saw the gun rise in the air as the petitioner turned towards Kenny Simmons and that the gun discharged immediately, while still pointed in the air, without the petitioner having aimed it.

The petitioner testified that, after he obtained money from Mr. Funderburg, he noticed Kenny Simmons "sneaking away." Mr. Austin also stated that as he turned toward Mr. Simmons, he raised the gun into the air, and it discharged. The petitioner further testified that he then left the scene of the shooting and did not learn until later that the shotgun blast had struck two people, killing one and wounding another.

The doctor who performed the post-mortem examination on the body of Willie Wortham testified that the body contained approximately one hundred tiny wounds congested in the upper right side of the body, reaching from the lower portion of the chest to the lower portion of the ear. The doctor testified that the wounds were concentrated in the right side of the chest and the right arm. In addition, Kenny Simmons' doctor testified that Mr. Simmons received two small wounds in the left arm and one wound in the left hand.

Two firearms specialists also testified at the petitioner's trial. The state's witness testified that the weapon used by the petitioner fired accurately at a range of thirty to forty feet, using the same ammunition that was used when the shooting occurred. The state's expert also testified that, based on his attempts to reproduce the impact pattern as revealed by the shirt worn by Willie Wortham, the distance between the petitioner and the victims when the shot was fired was between thirty and fifty feet.

The defendant's firearms specialist testified that his tests indicated that the firing range at the time of the shooting was between sixty and eighty feet. Using ammunition of the same type but of a different brand than that fired by the petitioner, the witness found that at sixty feet the impact of the shot was approximately six inches low and to the right of the target. He further testified that, based on his tests, examination of the impact pattern, and the number of wounds sustained by the victims, he believed the center of the shotgun load passed just to the right and above the right shoulder of Willie Wortham. Both experts agreed that the load of ammunition fired by the petitioner contained approximately 250 pellets.

The petitioner also called a psychiatrist who had examined him in a pretrial interview. This witness testified that, in his judgment, the petitioner did not possess the intent to kill at the time of the shooting.

After closing arguments, the trial judge instructed the jury on armed robbery, attempted first degree murder, first degree murder and three lesser included offenses of homicide. The instructions on attempted first degree murder and first degree murder included the following charge:

"When there are no circumstances to prevent or rebut the presumption, the law presumes that a reasonable person intends all of the natural, probable, and usual consequences of his deliberate acts. If one person assaults another violently with a dangerous weapon likely to kill, and the person thus assaulted dies therefrom, then, when there are no circumstances to prevent or rebut the presumption, the legal and natural presumption is that death was intended."

Sometime after they retired to deliberate, the jury requested that the judge re-read the instructions on attempted first degree murder and first degree murder. Over the defendant's objections that the jury should also be re-instructed on the lesser included offenses of homicide, and that the presumptive intent language quoted above is confusing, the trial judge re-read the requested instructions, including the challenged language regarding presumed intent. Shortly thereafter, the jury brought in their verdict.

II. EXHAUSTION OF STATE REMEDIES AND CONTEMPORANEOUS OBJECTION RULE

After the state supreme court affirmed Mr. Austin's convictions on direct appeal, the petitioner filed a motion for post-conviction relief with the state trial court raising the same issue he raises here. Relying on Muller v. State, 94 Wis.2d 450, 289 N.W.2d 570 (1979), which sustained the challenged instruction over constitutional attack, the trial court denied Mr. Austin's motion. The respondent argues that the petitioner must appeal the trial court's adverse ruling before proceeding in this court.

I have previously considered and rejected this contention because such an appeal would be futile. See Ross v. Israel, 503 F.Supp. 131, 133 (E.D.Wis.1980). Since the Wisconsin supreme court has concluded that the challenged instruction does not shift to the defendant the burden of proving lack of intent, no principle of comity or federalism would be served by requiring Mr. Austin to pursue any available state appellate remedy.

The respondent also contends that the petitioner's failure to object to the reading of the instruction at trial insulates Mr. Austin's convictions from constitutional attack in this proceeding. As I held in Ross v. Israel, supra, however, the fact that the state trial court reached the merits of Mr. Austin's post-conviction motion without relying on the state's contemporaneous objection rule means that "the claim may be presented here." Id. at 133. Moreover, the record demonstrates that the petitioner did object to the re-reading of the challenged instruction, but the trial court nevertheless re-read the instruction. Under these circumstances, I find that the interests served by the contemporaneous objection rule have been satisfied and that the rule presents no obstacle to my considering the merits of Mr. Austin's claim.

III. THE MERITS OF THE PETITION

"The threshold inquiry in ascertaining the constitutional analysis applicable to this kind of jury instruction is to determine the nature of the presumption it describes. That determination requires careful attention to the words actually spoken to the jury, for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction." Sandstrom v. Montana, supra, 442 U.S. at 514, 99 S.Ct. at 2454 (citations omitted).

The respondent argues that the challenged instruction merely describes a permissive inference, that is, it allowed but did not require the jury to draw conclusions about Mr. Austin's intent from evidence of his actions. The respondent also maintains that permissive inferences do not shift the burden of proof and therefore pass constitutional muster.

I do not believe that Mr. Israel's interpretation can be sustained. A...