Cole v. Stevenson, No. 77-0351-HC.

CourtUnited States District Courts. 4th Circuit. Eastern District of North Carolina
Citation447 F. Supp. 1268
Docket NumberNo. 77-0351-HC.
Decision Date14 March 1978
PartiesJames Lewis COLE, Petitioner, v. L. V. STEVENSON, Superintendent, and Attorney General of State of North Carolina, Rufus L. Edmisten, Respondents.

447 F. Supp. 1268

James Lewis COLE, Petitioner,
v.
L. V. STEVENSON, Superintendent, and Attorney General of State of North Carolina, Rufus L. Edmisten, Respondents.

No. 77-0351-HC.

United States District Court, E. D. North Carolina, Raleigh Division.

March 14, 1978.


447 F. Supp. 1269

James Lewis Cole, pro se.

Rufus L. Edmisten, Atty. Gen. of North Carolina, Richard N. League, Asst. Atty. Gen., Raleigh, N. C., for respondents.

ORDER

LARKINS, Chief Judge.

This habeas corpus application was submitted by James Lewis Cole, a state court prisoner who alleges the violation of his Fourteenth Amendment rights. Petitioner entered a not guilty plea to a charge of murder. Upon this plea, he was tried by jury, convicted of second degree murder, and sentenced to imprisonment for a period of from twenty to thirty years. His conviction was upheld by the North Carolina Supreme Court in State v. Cole, 280 N.C. 398, 185 S.E.2d 833 (1971) and a 1975 federal habeas corpus application also proved unsuccessful. Mr. Cole later filed a state postconviction application which was denied without hearing on July 1, 1977. No appeal was taken from this denial.

The instant habeas corpus petition raises two grounds for relief: (1) that the trial judge erroneously placed the burden of proof on petitioner to reduce the charges against him from murder to manslaughter by proving the absence of malice;1 and (2) the trial court erred in placing the burden on petitioner to prove self-defense.2 In

447 F. Supp. 1270
light of the trial transcript,3 both of these issues are clearly raised by the jury instructions and appear constitutionally infirm within the meaning of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1974) and Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977)

The state has answered and moved each of petitioner's claims be dismissed due to fatal procedural defaults. Mr. Cole has replied to the state's answer and brief, and moved the writ be granted. I will first discuss the state's procedural arguments as they relate to the malice and self-defense instructions, leaving arguments addressed to individual claims until later.

Initially, a survey of the case law which gives rise to petitioner's claims appears in order. The Supreme Court first dealt with standards of proof in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1969), by holding that the Due Process Clause requires proof beyond a reasonable doubt when a juvenile is charged with an act which would constitute a crime if committed by an adult. The opinion noted that the "beyond a reasonable doubt" standard is indispensible in impressing upon the trier of fact the necessity of reaching a subjective state of certitude as to the facts in issue; and the prosecution must prove every element of the charged offense beyond a reasonable doubt. 397 U.S. at 364, 90 S.Ct. 1068.

The importance of this standard was amplified in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). There, the State of Maine had required a defendant charged with murder to prove he acted in the heat of passion on sudden provocation in order to reduce a homicide charge to manslaughter. The court concluded that since the prosecution must prove beyond a reasonable doubt every fact necessary to constitute the crime charged, it must also prove the absence of heat of passion which is malice beyond a reasonable doubt. Through footnote n.28 at 701, 95 S.Ct. 1881, the court did allow states to continue requiring defendants to show there is "some evidence" indicating they acted in the heat of passion before requiring the prosecution to negate this element.4

Mullaney also circumscribed the use of presumptions which shift the evidentiary burden onto the defendant for certain facts. Maine distinguished manslaughter from murder by a showing of malice aforethought; yet the prosecution could rely on a presumption of "implied" malice from the commission of an unlawful homicide, and thus require the defendant to show heat of passion or provocation as a defense. Footnote n.31, at 702, 95 S.Ct. 1881, points out that Mullaney does not obviate all procedural presumptions or inferences which require a defendant to introduce evidence contesting the otherwise presumed or inferred facts. But these burden-shifting devices must satisfy more rigorous due process requirements: if a statutory inference, submitted to the jury as sufficient to support conviction, satisfies the reasonable doubt standard (that is, the evidence necessary to invoke the inference is sufficient for a rational juror to find the inferred fact beyond a reasonable doubt) as well as the more likely than not standard, then it clearly accords with due process. Barnes v. U.

447 F. Supp. 1271
S., 412 U.S. 837, 843-46 n.11, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1972)

In Hankerson v. N. C., 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977), the Court gave unanimous retroactivity to Mullaney and stressed that its holding was intended to enhance the fact-finding process. The North Carolina Supreme Court had held that its jury instructions on self-defense violated the Mullaney standard, but reasoned that applying the holding retroactively would have a devastating effect on the administration of justice in the state. These factors, Justice White acknowledged, can be relevant if a new rule represents nothing more than a small advance in the integrity of the fact-finding process, but such was not the case there. The reasonable doubt standard is as substantial a requirement under Mullaney as it was in Winship because it was intended to overcome an aspect of the criminal trial that "substantially impairs its truth-finding function."

The state's answer to the instant petition notes several procedural defenses which were acknowledged by the court in Hankerson as possibly foreclosing retroactive application of the Mullaney doctrine.

The government first argues that, even though Cole had the burden of proof in negating malice, federal habeas corpus review is precluded by his failure to raise the issue on appeal as required by state law. State v. White, 274 N.C. 220, 162 S.E.2d 473 (1968) and Hankerson, supra, 432 U.S. at 244 n.8, 97 S.Ct. 2339 are cited for the proposition that a failure to comply with state procedural requirements as regards objecting to jury instructions bars collateral attack. These citations appear to raise two slightly different lines of argument — the first being an exhaustion requirement, and the second, a procedural default which bars subsequent review.

A review of the procedural history of this case shows the exhaustion argument to be meritless. Although petitioner did not appeal his denial of post-conviction relief, the appeals period for the July, 1977 decision has obviously passed, practicably foreclosing his state remedies. See, Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 9 L.Ed.2d 837 (1967).

The procedural default argument raises a more complex issue. Footnote n.8 in Hankerson, supra, 432 U.S., at 244, 97 S.Ct. at 2436 specifies that a state could minimize the impact of retroactively applying Mullaney by enforcing its "normal and valid" procedural rule "that failure to object to a jury instruction is a waiver of any claim of error." This notation consequently raises the contemporaneous objection rule as discussed in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

There, a defendant made inculpatory statements to police officers which were admitted into evidence. The respondent did not challenge the inclusions on grounds that he had not understood his Miranda warnings, nor did the trial judge sua sponte pass on their admissibility. After failing to raise the issue through state appeals, he filed a federal habeas petition under § 2254 asserting the inadmissibility of his statements because he had misunderstood his Miranda warnings. The court held that the defendant's failure to make timely objection under the Florida contemporaneous objection rule to the admission of his inculpatory statements, absent a showing of "cause" for the noncompliance and some showing of "actual prejudice," barred federal habeas review of his Miranda claim. Davis v. U. S., 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1972) and Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976) were cited as controlling, and the broad "knowing waiver" or "deliberate bypass" language, which had been used in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) to circumvent state objection rules, was apparently rejected in favor of the cause/prejudice test. Justice Rehnquist's opinion does not explicate this cryptic new test, but leaves its precise content to later case development.5

447 F. Supp. 1272

Unlike Florida, North Carolina has a "qualified" collateral objection rule which requires an objection to be lodged against an erroneous jury instruction at trial or the error is deemed waived on appeal. See, Wooten v. Cagle, 268 N.C. 366, 150 S.E.2d 738 (1966) and Dale v. Dale, 8 N.C.App. 96, 173 S.E.2d 643 (1970). Yet this rule does not adhere in cases where the judge's charge contains errors of law, which are presumptively prejudicial.6 North Carolina Rules of Appellate Procedure, Rule 10(a); and See, 2 Stansbury, North Carolina Evidence § 211 (Brandis Rev. 1973). Illustrative of this exception to the general rule are State v. Johnson, 227 N.C. 587, 42 S.E.2d 685 (1946) and State v. Gause, 227 N.C. 26, 40 S.E.2d 463 (1946) where the North Carolina Supreme Court reviewed on appeal challenges to jury instructions which were incorrect as a matter of law and not objected to at trial.7 It therefore appears, in this case, that Mr. Cole was not required by North Carolina procedure to object to an error in order to raise the error on appeal.

Through its citations of State v. White, supra, and Hankerson, supra, the state apparently argues that, although a...

To continue reading

Request your trial
10 practice notes
  • State v. Barfield, No. 12
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • November 6, 1979
    ...beyond a reasonable doubt the existence of a factor which mitigates the degree of criminality or punishment. See Cole v. Stevenson, 447 F.Supp. 1268 (E.D.N.C.1978). In light of the foregoing discussion, we hold that the North Carolina death penalty is constitutional. Although defendant has ......
  • Cole v. Stevenson, No. 78-6211
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 5, 1980
    ...to the facts of this case, and that even if Wainwright did apply, its cause and prejudice exception had been met. Cole v. Stevenson, 447 F.Supp. 1268 (E.D.N.C.1978). The court went on to state that the procedural default in this case was the defendant's failure to appeal the denial of State......
  • Holloway v. McElroy, Civ. A. No. 78-30-AMER.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Georgia
    • August 22, 1979
    ...and then leave it to the accused to prove that unlawfulness and malice aforethought were lacking from his actions. In Cole v. Stevenson, 447 F.Supp. 1268 (E.D.N.C.1978), a case precisely on point, the district court held unconstitutional North Carolina's burden-shifting charge which is the ......
  • In re Kravitz
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • June 5, 1979
    ...law reveals that the federal courts are not in complete accord as to the content to be given "this cryptic new test." Cole v. Stevenson, 447 F.Supp. 1268, 1271 Some courts have held that incompetence of trial counsel would satisfy the "cause" prong of the test. E. g., Sincox v. United State......
  • Request a trial to view additional results
10 cases
  • State v. Barfield, No. 12
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • November 6, 1979
    ...beyond a reasonable doubt the existence of a factor which mitigates the degree of criminality or punishment. See Cole v. Stevenson, 447 F.Supp. 1268 (E.D.N.C.1978). In light of the foregoing discussion, we hold that the North Carolina death penalty is constitutional. Although defendant has ......
  • Cole v. Stevenson, No. 78-6211
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 5, 1980
    ...to the facts of this case, and that even if Wainwright did apply, its cause and prejudice exception had been met. Cole v. Stevenson, 447 F.Supp. 1268 (E.D.N.C.1978). The court went on to state that the procedural default in this case was the defendant's failure to appeal the denial of State......
  • Holloway v. McElroy, Civ. A. No. 78-30-AMER.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Georgia
    • August 22, 1979
    ...and then leave it to the accused to prove that unlawfulness and malice aforethought were lacking from his actions. In Cole v. Stevenson, 447 F.Supp. 1268 (E.D.N.C.1978), a case precisely on point, the district court held unconstitutional North Carolina's burden-shifting charge which is the ......
  • In re Kravitz
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • June 5, 1979
    ...law reveals that the federal courts are not in complete accord as to the content to be given "this cryptic new test." Cole v. Stevenson, 447 F.Supp. 1268, 1271 Some courts have held that incompetence of trial counsel would satisfy the "cause" prong of the test. E. g., Sincox v. United State......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT