Brown v. Israel, 77-C-506.
| Decision Date | 17 May 1978 |
| Docket Number | No. 77-C-506.,77-C-506. |
| Court | U.S. District Court — Eastern District of Wisconsin |
| Parties | Cleophus BROWN, Petitioner, v. Thomas R. ISRAEL, Respondent. |
Charles B. Vetzner, Madison, Wis., for petitioner.
Bronson C. LaFollette, Wis. Atty. Gen. by William L. Gansner, Asst. Atty. Gen., Madison, Wis., for respondent.
DECISION and ORDER
This is an action for a writ of habeas corpus. On August 22, 1974, the petitioner was convicted in state court of first degree murder and attempted first degree murder in violation of the Wisconsin statutes. On appeal to the Wisconsin supreme court, the judgment of conviction was affirmed by an equally divided court. Brown v. State, 73 Wis.2d 351, 243 N.W.2d 519 (1976). The petitioner claims that he was convicted and is confined in violation of the due process clause of the Fourteenth Amendment to the United States Constitution. The petition will be granted.
According to the state's testimony at trial, the petitioner, Cleophus Brown, arrived at the apartment of Gloria Mae Nabors, his estranged "common law" wife and mother of his two sons, and found her in bed with Fred Adams, her new boyfriend. With a gun he had brought with him, Mr. Brown fired twice in the direction of Ms. Nabors, but the gun misfired the first time, and the second shot missed her. Mr. Brown fired the gun twice more, killing Mr. Adams.
At trial on the first degree murder and attempted first degree murder charges, the petitioner sought to establish that he was not guilty of a greater degree of homicide than manslaughter. He attempted to testify that he was unaware that Ms. Nabors had a new boyfriend and that at the time of the shooting Mr. Brown had the gun in his possession by reason of circumstances which were unrelated to his visit to Ms. Nabors' apartment. Under Mr. Brown's version of the facts, he was suddenly confronted with his lover's infidelity and "blew up" uncontrollably — a classic paradigm of manslaughter.
The state attempted to establish that the petitioner was guilty of first degree murder with certain evidence of premeditation, including a prior confrontation with Mr. Adams after which the petitioner allegedly made a threat to kill Mr. Adams.
The alleged constitutional error arises from the trial judge's exclusion of portions of the petitioner's testimony and the court's refusal to instruct the jury on manslaughter; only instructions on first and second degree murder were given. Under Wisconsin law, a conviction for first degree murder requires proof of a specific intent to kill. Holmes v. State, 63 Wis.2d 389, 217 N.W.2d 657 (1974). A conviction for second degree murder requires "conduct imminently dangerous to another and evincing a depraved mind, regardless of human life . . .." § 940.02, Wis.Stats. Manslaughter is defined as causing the death of another "without intent to kill and while in the heat of passion." § 940.05(1), Wis.Stats.
In an effort to disprove the charge of first degree murder, the petitioner attempted to testify that he lacked the specific intent to kill Ms. Nabors or Mr. Adams at the time of the offense. The trial court sustained numerous objections to this line of testimony, asserting that a defendant's own subjective testimony concerning the intent behind his acts is inadmissible. On this reasoning, the trial court sustained objections to the following questions posed to the petitioner by his counsel:
"Did you intend to kill Gloria Nabors when you were in that room?" (T. 522).
On cross examination, the petitioner testified that he did not recall any of the details of the actual shooting.
On redirect examination, the petitioner's trial counsel again attempted to put questions to Mr. Brown relative to his intent:
The petitioner argues that the judge's exclusion of the proffered testimony concerning his intent at the time of the offense violated his right to present a defense guaranteed by the Sixth and Fourteenth Amendments, citing Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967).
Some of the "intent" questions put to Mr. Brown were not artfully framed, and objections were properly sustained. However, it is clear, too, that on several occasions the court barred Mr. Brown from answering properly framed questions. The respondent concedes that the trial court's rulings were erroneous under both state law and the United States Constitution but argues that they amount to harmless constitutional error that did not contribute to the verdict. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
The standard for determining whether constitutional error is harmless is set forth in Chapman, supra, 386 U.S. at 24, 87 S.Ct. at 828:
"Before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt."
In addition, the Court stated that the burden is on the state "to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Id. I turn now to the question whether the respondent has met his burden.
For his first argument, the respondent suggests that the effect of the trial court's error in excluding the petitioner's testimony did not completely preclude the petitioner's defense since the trial judge was nevertheless able to determine, sua sponte, that the evidence justified giving an instruction on second degree murder, a lesser-included offense of first degree murder with a penalty greater than manslaughter.
I am not persuaded that the trial judge's determination to give a second degree murder instruction...
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Com. v. Caldron
...did not exceed the one originally agreed, although the prosecutor recommended a stiffer penalty.7 The defendant in Brown v. Israel, 449 F.Supp. 1029 (E.D.Wis.1978), was convicted of murder of one person and of attempted murder of another after a trial in which he was allowed to introduce so......
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