Bush v. Stephenson

Decision Date13 August 1986
Docket NumberNo. 83-479-HC.,83-479-HC.
Citation669 F. Supp. 1322
CourtU.S. District Court — Eastern District of North Carolina
PartiesJames A. BUSH, Petitioner, v. L.V. STEPHENSON, et al., Respondents.

Richard A. Rosen, Director, Criminal Law Clinic, University School of Law, Chapel Hill, N.C., for petitioner.

Richard N. League, Special Deputy Atty. Gen., Raleigh, N.C., for respondents.


JAMES C. FOX, District Judge.

Petitioner, a state inmate, initiated this action seeking the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254, by complaint filed May 10, 1983. This matter is before the court on petitioner's objections to the United States Magistrate's memorandum, which reluctantly recommended dismissing Bush's petition. Extensive and excellent briefs have been filed by both parties to this action and the matter is ripe for disposition.

Petitioner was convicted of first degree murder and sentenced to death in the Superior Court of Onslow County, North Carolina, on May 22, 1975. Bush was represented by counsel at trial, offered evidence, and testified in his defense. On appeal, the North Carolina Supreme Court found no error in either petitioner's conviction or his sentence and affirmed the judgment of the Onslow County Superior Court. State v. Bush, 289 N.C. 159, 221 S.E.2d 333 (1976) (Bush I).1 However, Bush's sentence was subsequently vacated by the United States Supreme Court, Bush v. North Carolina, 429 U.S. 809, 97 S.Ct. 46, 50 L.Ed.2d 69 (1976), on grounds that the North Carolina death penalty statute, as it then existed, was unconstitutional. On remand, a life sentence was imposed by the Superior Court on November 30, 1976.

Petitioner then filed a motion for appropriate relief, pursuant to N.C.GEN.STAT. § 15A-1411 et seq., alleging three constitutional infirmities in his conviction.2 Broadly stated, Bush argued that: (1) the trial court improperly placed the burden upon him to prove the absence of malice; (2) the trial court also improperly placed the burden upon him to prove self-defense; and (3) he received ineffective assistance of counsel because his court-appointed attorneys failed to raise these issues on direct appeal. By order dated April 21, 1981, Superior Court Judge Henry L. Stevens denied petitioner's motion on the merits.

The North Carolina Supreme Court then allowed Bush's petition for writ of certiorari and, on December 7, 1982, filed its opinion affirming the order of the Superior Court. State v. Bush, 307 N.C. 152, 297 S.E.2d 563 (1982) (Bush II). Addressing the malice issue, the Supreme Court found that although the trial court's jury instructions did improperly place the burden of disproving the element of malice on petitioner, see Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), this error was rendered harmless by Bush's conviction of first-degree murder.3 By finding that petitioner had killed the victim with premeditation and deliberation, the Supreme Court determined that the jury necessarily found beyond a reasonable doubt that the killing was not done in the heat of passion, thus ruling out the lesser offense of voluntary manslaughter. 307 N.C. at 161-165, 297 S.E.2d at 569-572.

The Supreme Court further found that the self-defense instruction was also constitutionally infirm. See Mullaney v. Wilbur, supra. However, the court determined that the evidence adduced at trial was insufficient as a matter of law to support an instruction on self-defense. Thus, the court found that the improper instruction was favorable to the petitioner and any error in the charge was harmless. 307 N.C. at 158-161, 297 S.E.2d at 567-569. Finally, because the court found any errors in petitioner's jury instructions to be harmless, it decided that there was no need to address Bush's claim of ineffective assistance of counsel. Id. at 165, n. 4, 297 S.E.2d at 572 n. 4.

Petitioner next filed this petition for writ of habeas corpus, raising essentially the same three constitutional infirmities that he alleged in his motion for appropriate relief. Respondents concede, and upon review of the record the court agrees, that Bush presented these issues as matters of federal constitutional law to the state courts, thereby properly exhausting state remedies in this proceeding. Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed. 2d 3 (1982); Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). In addition, any grounds for dismissal of petitioner's claims due to procedural default were eliminated when the Superior Court of Onslow County and the North Carolina Supreme Court reviewed and decided Bush's constitutional claims on their merits. County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed. 2d 777 (1979). Accordingly, this court may properly determine the merits of the issues raised by petitioner.

Since disposition of the issues at bar requires a detailed understanding of the facts of this case and the trial court's instructions to the jury, a review of both the facts and the charge follows.


The state's evidence showed that on November 18, 1974, Mrs. Eva Marshburn returned to her home near Jacksonville, North Carolina, and found the house ransacked and her husband, Kirby W. Marshburn, lying on the floor in a puddle of blood. One of the Marshburn's steak knives and Mr. Marshburn's billfold were on the floor near his body. (R. pp. 10-11) When Mrs. Marshburn looked up from her husband's body she noticed petitioner standing there. According to Mrs. Marshburn, petitioner, after first threatening her, took $3.00 from her, then told her he was not going to harm her, and tied her up. She also testified that he told her that he killed her husband because "... he wouldn't do anything I asked him to do,"4 and that he apologized for tying her up. (R. p. 12). After tying Mrs. Marshburn up, petitioner left the house, taking her car keys and a gun. (R. p. 13).

The state also introduced evidence that, earlier in the same evening, petitioner had taken an automobile from outside a bar at the United States Marine Corps base at Camp Lejeune, North Carolina. Bush, a 20 year old marine, had been drinking beer, lost control of the car, and drove it into a ditch near the Marshburn home. (R. pp. 19-20 and 23-25).

Petitioner's statement, given to Detective Jarman of the Onslow County Sheriff's Department on November 19, 1974, was also introduced into evidence. In that statement, Bush admitted killing Mr. Marshburn after he had received permission from Marshburn to enter his residence to use the telephone to request assistance regarding the car he had driven into the ditch. (R. pp. 25-28). Detective Jarman testified that:

He stated that he started talking to the old man and asked for a drink of water and the old man gave him a drink of water and that they were standing by the sink. He stated that for no reason at all the old man told him to get out and pushed him into the sink and that he then saw a knife and that his hand closed on the knife and he picked it up and stuck it in the old man. He stated that he stabbed the man two or three times and the man fell on the floor.
He stated that he got in the truck and the woman came to the house and went inside and that he went back inside after her. He stated that the woman told him not to kill her and that he said he was not going to kill her and that he asked her for some money and that she only had a little bit and he took $3 and some change from her. He stated that he told the woman that he wasn't going to kill her and that he didn't mean to kill her husband and he asked the lady if she had some rope and she said she did not. He stated that he took some curtain cord and tied her in a chair. (R. p. 26).

On cross-examination, Jarman reiterated that Bush told him that the stabbing occurred only after an argument had started with Mr. Marshburn. (R. p. 27). Both Jarman and Captain Woodward of the Onslow County Sheriff's Department testified that, after his initial reluctance to talk, petitioner cooperated fully and supplied them with information which led to much of the evidence used to convict him. (R. pp. 27-31).

The State introduced additional evidence establishing that the victim died as a result of the stab wounds inflicted by the petitioner (R. pp. 21-22), and further physical and circumstantial evidence connecting Bush with the killing. (R. pp. 18-19, 23-25, and 28-35).

Petitioner, testifying on his own behalf, admitted stabbing Mr. Marshburn. He testified, however, that he went to the Marshburn home only to use the telephone after he had driven the car into the nearby ditch. His description of the events which led to the stabbing is, in pertinent part, as follows:

After I was unable to reach the person I was calling, I had a conversation with the man in the house and as far as I knew there was nobody in the house except me and the man. We were standing in the kitchen having our conversation. Up until that time our relationship had been good and we had just been talking. There were no ill words between us at that time. I asked him for a drink of water and he gave me a glass full of water and we stood there and talked. I was standing inside the kitchen by the sink and the man was standing near me and the door was on the other side of him. The man was talking about some person down the road who owned a wrecker and he said something about there being a "colored boy" down the road who owned a wrecker. Before he got all the words out I corrected him and I said "colored boy?" and I asked him what color the person was. The man did not make any immediate response, it was kind of a delayed response and he stopped for a second and then all of a sudden he started pushing me and telling me to get out. At that time I was standing in front of the sink and the sink was to my back. Mr. Marshburn was standing in front of me and the door that I entered was behind him. I must have been six

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6 cases
  • Porter v. State
    • United States
    • Court of Special Appeals of Maryland
    • 25 Octubre 2016
    ...bodily harm, nor was there any evidence that such a belief would have been reasonable.), habeas corpus granted by Bush v. Stephenson , 669 F.Supp. 1322 (E.D.N.C. 1986), aff'd , 826 F.2d 1059 (4th Cir. 1987) ; State v. Martin , 52 N.C.App. 326, 278 S.E.2d 315 (1981) (Any error in instruction......
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    • North Carolina Supreme Court
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    ...or phrase `implied in law' were used, have consistently been held to have created mandatory presumptions." Bush v. Stephenson, 669 F.Supp. 1322, 1332 (E.D.N.C.1986) (discussing an unconstitutional jury instruction used in a North Carolina first degree murder trial and citing Mullaney v. Wil......
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