Berrier v. Egeler

• Citation: 583 F.2d 515
• Decision Date: 06 November 1978
• Docket Number: No. 77-1100,77-1100
• Parties: Harrison BERRIER, Petitioner-Appellee, v. Charles E. EGELER, Warden, State Prison of Southern Michigan at Jackson, Respondent-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 515

583 F.2d 515

Harrison BERRIER, Petitioner-Appellee, v. Charles E. EGELER, Warden, State Prison of Southern Michigan

at Jackson, Respondent-Appellant.

No. 77-1100.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 13, 1977.

Decided Aug. 8, 1978.

As Amended Oct. 5, 1978.

Certiorari Denied Nov. 6, 1978. See 99 S.Ct. 354.

Frank J. Kelley, Atty. Gen. of Michigan, Robert A. Derengoski, Sol. Gen., Thomas L. Casey, Asst. Atty. Gen., Lansing, Mich., for respondent-appellant.

Arthur J. Tarnow, Detroit, Mich., for petitioner-appellee.

Before EDWARDS and ENGEL, Circuit Judges, and GRAY, ^* Senior District Judge.

EDWARDS, Circuit Judge.

This is a habeas corpus petition where a District Judge in the Eastern District of Michigan, Southern Division, granted petitioner the relief he sought. The facts show that petitioner killed his brother-in-law in his (the petitioner's) home. He contended that he shot in self-defense. The trial judge, in a confused instruction, told the jury that the defendant had the burden of proof as to self-defense and that he had a duty to retreat, if possible, in his own home.

Appellant was convicted of first degree murder by the jury and sentenced to life imprisonment. The Michigan Court of Appeals vacated the sentence and, under the trial record, resentenced for second degree murder. Petitioner therefore is now serving a 20-40 year sentence.

His present petition contends that his due process rights were violated by the fact that at the trial the judge placed the burden of proof that the killing was in self-defense upon defendant and, in addition, instructed the jury that defendant at the time of the killing was under a duty to retreat in his own home to the degree he could do so safely. This instruction, he asserts, was in violation of Michigan law, People v. Stallworth, 364 Mich. 528, 111 N.W.2d 742 (1961), and federal constitutional law, Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).

The facts as revealed in the state court trial of this case were recited as follows in the opinion of the Michigan Court of Appeals:

The decedent was defendant's brother-in-law. Animosity existed between them, arising from the fact that decedent had testified against defendant in a prior criminal trial. Defendant testified that about 9:30 on the night of March 30, 1970, decedent came to defendant's home and said to defendant that decedent had heard that defendant was "looking" to kill him. To this defendant replied, "No Joe, you're not worth it." Defendant then related that shortly thereafter he and decedent went for a ride, settled their differences, and shook hands.

Defendant returned home and watched TV. He was drowsing about 11:15, when he heard a ruckus at the outside door, and defendant testified that he heard his wife scream, "Look out he's got a gun or look out, he's going to kill you." Defendant said that he grabbed a loaded .22 rifle standing against the wall next to him, stepped through the kitchen door, saw the figure of an unknown man, who appeared to be violent, entering the kitchen. That defendant shot the man and later called the police. Decedent was shot seven times.

During defendant's direct testimony, he attempted to relate the statement allegedly made by his wife, "He is going to kill you." The prosecutor objected on the basis of hearsay and was sustained. On appeal, defendant asserts this was reversible error because the statement was admissible as a res gestae statement. We agree with defendant that the statement was admissible as a res gestae statement and that it was error to exclude it. We do not agree that the error was reversible error for the reason that the same statement was twice related to the jury, once in a taped statement by defendant and once during his cross-examination.

The only persons present at the shooting were defendant, his wife, and decedent.

People v. Berrier, 48 Mich.App. 454, 456-58, 210 N.W.2d 506, 507 Leave to appeal denied, 390 Mich. 813 (1973).

There has been exhaustion of state court remedies on the issues with which we are presently concerned. But it is clear that the original appeals in the Michigan court system did not center upon the judge's instructions which concern us now, perhaps because no objection was made to them by appellant's counsel at trial.

The grounds for the grant of the writ of habeas corpus are effectively set forth in the opinion of District Judge John Feikens, dated November 22, 1976:

Berrier's allegation is that the trial judge's instructions to the jury placed upon him the burden of proving his claim of self-defense. This, if shown, amounts to plain constitutional error and warrants the grant of a petition for a writ of habeas corpus.² It is well settled that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). The United States Supreme Court (has) recently considered (Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975)) a jury instruction which placed upon the defendant the burden of showing by a fair preponderance of the evidence, that he had acted in the heat of passion and, thus, without malice aforethought when he fatally assaulted the deceased. The court held, "the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the Absence of the heat of passion or sudden provocation when the issue is properly presented in a homicide case." Mullaney at 705, 95 S.Ct. at 1892 (emphasis added).³ Similarly, a defendant should not have to prove the elements of self-defense. Rather, under the Winship standard, the government should be required to prove beyond a reasonable doubt the absence of the elements of self-defense.⁴

2. See generally, Note: Affirmative Defenses and Due Process: The Constitutionality of Placing a Burden of Persuasion on A Criminal Defendant, 64 Georgetown Law Journal 871 (1976).

3. For additional authority that the burden of proof should never shift to the defense in a criminal case, See, e. g., Smith v. Smith, 454 F.2d 572 (5th Cir. 1971), Cert. denied, 409 U.S. 885, 93 S.Ct. 99, 34 L.Ed.2d 141 (1972) (alibi defense); Trimble v. Stynchcombe, 481 F.2d 1175 (5th Cir. 1973) (alibi defense); Cool v. United States, 409 U.S. 100, 93 S.Ct. 354, 34 L.Ed.2d 335 (1972) (exculpatory accomplice testimony); Dixon v. Hopper, 407 F.Supp. 58 (M.D.Ga.1976) (alibi defense); Stump v. Bennett, 398 F.2d 111 (8th Cir.), Cert. denied, 393 U.S. 1001, 89 S.Ct. 483, 21 L.Ed.2d 466 (1968) (alibi defense); United States v. Ambrose, 483 F.2d 742 (6th Cir. 1973) (entrapment); United States v. Sennett, 505 F.2d 774 (7th Cir. 1974) (insanity defense). Contra, Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952) (no constitutional right to an instruction that government must prove sanity).

4. The court notes that this is also the rule in Michigan. People v. Stallworth, 364 Mich. 528, 111 N.W.2d 742 (1961).

In Berrier's case the trial judge instructed the jury as to the elements of self-defense that the defendant may not be the aggressor, that the defendant must reasonably believe that he or another under his protection is in danger of death or great bodily harm, and that there must be no way open for the defendant to retreat safely. (Transcript at 557). He then gave the correct instruction that a person in his own home need not retreat if assaulted. (Transcript at 558). The judge then went on to say:

"You are to determine from all of the evidence whether facts constituting such reasonable cause have been established and unless such facts constituting such reasonable cause have been established by the defense in this case you cannot acquit on the ground of self defense . . .."

(Transcript at 559).

This statement implies that the defendant must prove his claim of self-defense. A short time later the trial judge made this confusing statement:

Self-defense in proper cases is the right of every person but it will not justify the taking of a human life unless the jurors shall be satisfied from the testimony first that the Defendant was not the aggressor in bringing on the difficulty, that is, that he was without fault; second, that there existed at the time of the striking of the fatal blow in his mind a present and impending necessity to strike such a blow in order to save himself from death or some great bodily harm; third, that there must have been no way open whereby he could have retreated as it appeared to him at the time to a place of safety and thus have avoided the conflict. Unless you find that all three of these facts are established in this case then the plea of self-defense fails. The burden of proof of all such matters is upon the People to show that the respondent is guilty of the offense charged and the People's testimony must be such as to satisfy the jurors that the killing was not done in self defense. The burden is not on the Defendant who makes the claim of self defense to satisfy the jury of the truth of his claim.

(Transcript at 560-561).

Here the trial judge did not instruct the jury that a person in his own home has no duty of retreat, a crucial instruction in this case since the testimony showed that the defendant was in his own home when he killed his brother-in-law. This is error under Michigan law. People v. Lenkevich, 394 Mich. 117, 229 N.W.2d 298 (1975). The judge then went on to imply again that the defendant must establish the elements of self-defense. This mistake is only partially rectified by his final statement relieving the defendant from the burden of satisfying the jury of his claim.

Jury instructions are to be judged as a whole. Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973); United States v. Mattucci, 502 F.2d 883, 888-9 (6th Cir. 1974). However, instructions must not be such as to...