Clark v. Rose

Decision Date16 March 1984
Docket NumberCiv. A. No. 3:83-0766.
Citation611 F. Supp. 294
PartiesStanley Barham CLARK, Petitioner, v. Jimmy C. ROSE, etc., Respondent.
CourtU.S. District Court — Middle District of Tennessee

Scott Daniel, Murfreesboro, Tenn., for petitioner.

Kymberly Lynn Anne Hattaway, Asst. Atty. Gen., Nashville, Tenn., for respondent.

MEMORANDUM OPINION AND ORDERS

NEESE, Senior District Judge.

The petitioner Mr. Stanley Barham Clark applied pro se to this Court for the federal writ of habeas corpus, claiming that he is in the custody of the respondent-warden pursuant to the judgment of July 27, 1979 of the Circuit Court of Rutherford County, Tennessee in violation of the Constitution. 28 U.S.C. § 2254(a). Annexed to his application is Mr. Clark's affidavit that he is unable to pay the cost of this proceeding or give security therefor and a statement of his belief that he is entitled to redress. 28 U.S.C. § 1915(a). Accordingly, he hereby is

AUTHORIZED to commence and prosecute this proceeding without prepayment of fees or costs or giving security therefor. Id.

The applicant claims he exhausted remedies available to him under the law of Tennessee, 28 U.S.C. § 2254(b), by his direct appeal of his judgment of conviction to the Court of Criminal Appeals of Tennessee, which affirmed such judgment on July 27, 1981, and by applying for permission to appeal farther, which application was denied by the Supreme Court of Tennessee. He contends inferentially that he presented fairly to those Courts his federal claims of violations in his trial of:

—his right not to "be compelled in any criminal case to be a witness against himself," Constitution, Fifth Amendment; Smith v. Estelle, 602 F.2d 694, 704 (5th Cir.1979), reh. den., 606 F.2d 321 (1979), aff'd. sub nom. Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) ("Under the fifth amendment a criminal defendant of course cannot be forced to discuss his alleged crime with anyone who is able to use his statements as evidence against him at his trial");

—his right "to have the Assistance of Counsel for his defence," Constitution, Sixth Amendment; "a major reason underlying the constitutional confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him" Pointer v. State of Texas, 380 U.S. 400, 406-407, 85 S.Ct. 1065, 106910, 13 L.Ed.2d 923 (1965), although a defendant's right "to be informed of the nature and cause of the accusation against him" did not require the state of Tennessee to furnish him with its proof in its original form, Bosley v. State, 218 Tenn. 134, 401 S.W.2d 770, 7711 (1966); and,

—his right not to be deprived by the state of Tennessee "of * * * liberty * * * without due process of law," Constitution, Fourteenth Amendment; Sandstrom v. Montana, 442 U.S. 510, 524, 99 S.Ct. 2450, 24596, 61 L.Ed.2d 39 (1979) ("`A State * * * may not shift the burden of proof to the defendant'" * * * to prove that he lacked the requisite mental-state to commit a deliberate homicide.)

On examination for purposes of preliminary consideration, it thus does not appear plainly from the face of the applicant's petition that he is not entitled to relief in this Court at this time. Rule 4, 28 U.S.C. fol. § 2254. Therefore, it hereby is ORDERED:

1. that the respondent-warden file an answer or other pleading within 43 days herefrom, id., the noticed slow-movement of the mail providing good cause for additional time, 28 U.S.C. § 2243; Rule 81(a)(2), F.R.Civ.P.; and,

2. that the clerk of this Court serve forthwith by certified mail on the respondent-warden (or his successor) and the attorney general and reporter of Tennessee a copy of the petition herein and of this order, Rule 4, supra.

ENTER:

ON MOTION TO FILE ANSWER OUT-OF-TIME ORDERS

I.

The motion of the respondent to file his answer out-of-time hereby is

GRANTED.

II.

It hereby is

ORDERED that counsel for the petitioner1 file within 20 days herefrom2 a brief addressing the issue:

Whether the jury instructions of the trial judge regarding the presumption of malice, see Transcript, vol. 8 at 1086, 1087-1089, were constitutionally deficient under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 39 2450, 61 L.Ed.2d 39 (1979), and, if so, whether such error was harmless.

See Phillips v. Rose, 690 F.2d 79 (6th Cir. 1982) and Engle v. Koehler, 707 F.2d 241 (6th Cir.1983), cert. grant., ___ U.S. ___, 104 S.Ct. 231, 78 L.Ed.2d 224 (1983).

ON THE MERITS

This is an application by a state-prisoner for the federal writ of habeas corpus. 28 U.S.C. § 2254(a). The petitioner Mr. Stanley Barham Clark was convicted on July 20, 1979 in the Circuit Court of Rutherford County, Tennessee of murder in the first and second degrees.1Inter alia,2 Mr. Clark contends that certain instructions given the jury shifted effectively the burden of proving malice, an essential element of the crimes charged, from the prosecution to him, in violation of his right to due process of law, Constitution, Fourteenth Amendment. See Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).3 Under the law of this Circuit, such contention has merit.

I.

On the cold, rainy night of December 30, 1978, Mr. Charles Browning and his companion Ms. Joy Faulk were shot to death at near point-blank range while they sat in the cab of Mr. Browning's pickup-truck in a rural area of Rutherford County, Tennessee. Ms. Faulk's two young daughters Mitzi and Michelle, ages 6 and 3, respectively, were with their mother at the time of the shooting and were found afterward wandering along a roadway in search of assistance. The petitioner, a former live-in boyfriend of Ms. Faulk who had threatened to kill her if he ever caught her with another man, was charged with two counts of murder in the first-degree. His trial began on July 16, 1979 and was presided over by the Honorable William S. Russell.4

The Court of Criminal Appeals of Tennessee characterized the case against Mr. Clark as substantially circumstantial5 and involving " * * * a somewhat complicated domestic situation. * * * " State of Tennessee, appellee, v. Stanley Barham Clark, appellant, unpublished opinion of February 27, 1981 in no. 79-106-II. Such appellate Court summarized the evidence thusly:

* * * The former husband of Joy Faulk, one of the victims, is the stepbrother of Shirley Browning the wife of the other victim. Joy Faulk and Charles Browning were involved in a relationship which had considerably agitated defendant. Prior to taking up with Browning, Joy Faulk and Clark had lived together. Their cohabitation was apparently a stormy one. After they separated he became very upset because she was dating other men, including Browning. This homicide occurred on the night of December 30, 1978. Shortly after 9:00 on that night, a police officer observed a brown, or brownish colored pickup truck pursuing a red pickup truck in the general vicinity of the homicide scene. The brown truck was subsequently identified as the property of defendant. The red truck was owned by Charles Browning. An hour or two later the bodies of Browning and Joy Faulk were discovered in the truck which was parked in the driveway of Mrs. Faulk's former brotherin-law. Mitzi Faulk, six-year-old daughter of Joy Faulk, and her three-year-old sister, were passengers in Browning's truck at the time of the homicide. She told witnesses, and testified, that defendant, who was known as "Clicker" had followed them into the driveway of Jeff Faulk and shot her mother and Charles Browning. The murder weapon, a .25 caliber pistol, had been borrowed by defendant from a friend, Terry Hill, a few days before the shooting occurred. He told Hill the pistol had been stolen. Sometime later, it was found by the roadside near defendant's home. While police officers were searching for him on the night of the homicide, they encountered him in his pickup truck near the driveway to his home. He fled, resulting in a high speed chase for some distance before he was apprehended.
* * * * * *

Ib., at 1-2.

II.

The trial-judge instructed the jury6 that in order to find the petitioner guilty of murder in the first degree, the State must have proven beyond a reasonable doubt inter alia:

* * * That the killing was malicious: That is, that the Defendant was of the state of mind to do the alleged wrongful act without legal jurisdiction or excuse. If it is shown beyond a reasonable doubt that the alleged victims were killed, the killing is presumed to be malicious in the absence of evidence which would rebut the implied presumption. Emphases provided here. * * *
* * * * * *

Transcript, pp. 1084-1085. As to the lesser-included offense of murder in the second-degree, the jury was instructed that the State must have proven beyond a reasonable doubt inter alia that the killing "was malicious" and that malice "is an essential ingredient" of second-degree murder. Ib., at 1086. Additionally, the trial judge charged:

* * * * * *
All homicides are presumed to be malicious in the absence of evidence which would rebut the implied presumption. Thus, if the State has proven beyond a reasonable doubt that a killing has occurred, then it is presumed that the killing was done maliciously. But this presumption may be rebutted by either direct or circumstantial evidence, or by both, regardless of whether the same be offered by the Defendant, or exists in the evidence of the State.
Likewise, if a deadly weapon is handled in a manner so as to make the killing a natural or probable result of such conduct, then there is raised a presumption of malice sufficient to support a conviction of murder in the second degree unless it is rebutted by other facts and circumstances. * * *
* * * * * *
The question of whether the alleged killing was done with malice is for you to determine from the
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    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • August 13, 1986
    ...in the federal district court, which, upon review, held the malice instruction was unconstitutional under Sandstrom. Clark v. Rose, 611 F.Supp. 294 (M.D.Tenn.1983). The district court went on to find that the error could not be deemed harmless because Clark had "relied upon a mens rea defen......
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    • United States Supreme Court
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    ...find that the error could not be deemed harmless because respondent had "relied upon a mens rea defense" in contesting his guilt. 611 F.Supp. 294, 302 (1983). The Court of Appeals for the Sixth Circuit affirmed.4 The court agreed that the malice instruction was unconstitutional under Sandst......
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    • March 23, 1987
    ...not be harmless because respondent defended on the ground that he lacked the requisite intent to commit the crime. Clark v. Rose, 611 F.Supp. 294, 299-302 (M.D.Tenn.1983). This court affirmed in an unpublished opinion. Clark v. Rose, 762 F.2d 1006 (6th The Supreme Court reversed, holding th......
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