Davis v. Barber, 87-1736
| Decision Date | 05 August 1988 |
| Docket Number | No. 87-1736,87-1736 |
| Citation | 853 F.2d 1418 |
| Parties | Danny DAVIS, Petitioner-Appellant, v. William N. BARBER, Gordon Faulkner and Lewis Gregory, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
David E. Vandercoy, St. Thomas Univ., School of Law, Miami, Fla., for petitioner-appellant.
Sabra A. Weliever, Indianapolis, Ind., for respondents-appellees.
Before CUDAHY, COFFEY and RIPPLE, Circuit Judges.
Petitioner Danny Davis appeals from a judgment of the district court denying his petition for a writ of habeas corpus. Mr. Davis contends that his due process rights were violated when he was convicted by the state of Indiana of nonsupport of a dependent child, a violation of Ind.Code Sec. 35-46-1-5 (1986). Mr. Davis claims that the state impermissibly shifted to him the burden of proving by a preponderance of the evidence his inability to pay support for his three children. 657 F.Supp. 469. For the reasons set forth in the following opinion, we affirm the judgment of the district court.
Mr. Davis was obligated under a divorce decree, entered on August 10, 1979, to pay child support of $100 per week for his three children. From August 10, 1979 until September 27, 1983, Mr. Davis paid a total of $5,045 in support, but was in arrears in the amount of $16,785. As a result of his failure to meet his obligations under the decree, the state charged Mr. Davis with violating Ind.Code Sec. 35-46-1-5. 1 That statute makes it a felony for a person to knowingly or intentionally fail to provide support to his dependent child. The statute permits an affirmative defense to the charge if the defendant can prove that he was unable to provide support.
At trial, Mr. Davis testified that he had been unable financially to make child support payments because of unemployment. He testified that he had been employed fulltime as an ironworker when the child support order had been entered, but that he then lost his job and had been unable to find employment. His tax returns for the relevant years, which were admitted at trial, revealed the following income:
Year Taxable Income
1979 $21,318
1980 $ 9,043
1981 $ 8,758
1982 $ 9,247
1983 Insufficient Income To File Return
Mr. Davis requested that the Indiana trial court instruct the jury that the state had the burden of proving beyond a reasonable doubt that he could have met his support obligations. This instruction was refused. Instead, the jury was instructed that Mr. Davis carried the burden of proving by a preponderance of the evidence that he was unable to provide support. Mr. Davis objected to this instruction on the ground that (1) the instruction impermissibly shifted the burden of proof to Mr. Davis of negating an element of the crime, and (2) due process precludes conviction for a crime of omission unless the state proves that the defendant had the ability to perform the required act.
After a jury had found him guilty, Mr. Davis filed a timely appeal with the Indiana Court of Appeals, objecting to the jury instructions regarding the burden of proof with respect to his defense of inability to pay. That court affirmed the conviction. It concluded that proof of ability to pay child support is not an element of the offense, and that therefore it was constitutionally permissible to require the defendant to prove inability to pay as an affirmative defense. The Indiana Supreme Court declined further review.
Having exhausted his state remedies, Mr. Davis filed a habeas corpus petition in federal district court. That court denied Mr. Davis' petition. The court began its analysis by noting that "[t]he state may require a defendant to prove an affirmative defense only if the affirmative defense 'does not serve to negative any facts of the crime which the State is to prove in order to convict.' " Davis v. Barber, 657 F.Supp. 469, 471 (N.D.Ind.1987) (quoting Patterson v. New York, 432 U.S. 197, 206-07, 97 S.Ct. 2319, 2325, 53 L.Ed.2d 281 (1977)). In other words, the court concluded that Mr. Davis could not be required to prove inability to provide support if ability to pay is an element of the crime.
The district court then determined that ability to pay is not an element of the offense. In the court's view, while voluntariness is normally an element of a crime under Indiana law, voluntariness is not an element of a crime of omission. Relying on Ind.Code Sec. 35-41-2-1, 2 the court ruled that the state did not have to prove voluntariness when the defendant had a statutory, common law, or contractual duty to perform an act. The court also noted that the nonsupport statute did not contain a voluntariness requirement. Thus, the court said:
The question of ability to pay does not negate any element of the offense of nonsupport of a dependent child as defined by Indiana statute. Instead, it excuses and makes non-criminal an omission that would otherwise be criminal. It is an affirmative defense and, therefore, it was permissible to place on the accused the burden of proving that affirmative defense.
The district court then proceeded to reject Mr. Davis' argument that his due process right to fundamental fairness was violated when the state was allowed to prove a crime of omission without being required to prove that Mr. Davis had the ability to act. The court noted that many states have statutes similar to Indiana's that require the defendant to prove inability to pay as an affirmative defense. The court stated that these statutes recognize that it is reasonable to assume that if a person desires to have children, then he or she intends to accept the burdens of parenthood. Id. (quoting State v. Ducey, 25 Ohio App.2d 50, 266 N.E.2d 233, 236 (Ohio Ct.App.1970)). The court said that, "[w]hile it may be a harsh sanction, it is not fundamentally unfair to impose on persons who fail to meet their human and social responsibility to support the children which they, of their own free will, bring into this society." Id. 657 F.Supp. at 472-73. For that reason, the court ruled that the Indiana statute did not offend due process. Id. at 473.
Mr. Davis advances two reasons why Indiana's allocation of the burden of proof on inability to pay violates due process. First, he asserts that ability to provide support is an element of the offense of nonsupport of a dependent child and thus must be proved by the prosecution beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Second, he contends that, regardless of whether ability to pay is an element of the offense as defined by the state, requiring the defendant to prove by the preponderance of the evidence that he was unable to provide support violates principles of fundamental fairness. We shall address each of these submissions separately.
The Supreme Court in In re Winship held that "the Due Process Clause protects the defendant against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." 397 U.S. at 364, 90 S.Ct. at 1073. Mr. Davis contends that Indiana's statute, which requires the defendant to prove inability to pay as an affirmative defense, violates the Winship principle because it shifts the burden of proof to the defendant on an essential element of the crime. The merits of Mr. Davis' claim is controlled by a number of Supreme Court cases which we discuss below.
In Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), the Supreme Court "explicitly acknowledged the link between Winship and constitutional limits on assignment of the burden of proof." Engle v. Isaac, 456 U.S. 107, 133 n. 42, 102 S.Ct. 1558, 1574 n. 42, 71 L.Ed.2d 783 (1982). In Mullaney, the Court addressed the constitutionality of a Maine statute that defined murder as the unlawful killing of a human being " 'with malice aforethought, either express or implied.' " 421 U.S. at 686 n. 3, 95 S.Ct. at 1883 n. 3 (quoting Me.Rev.Stat.Ann. tit. 17, Sec. 2651 (1964)). Under the statute, malice was to be implied from any intentional killing. Id. at 686, 95 S.Ct. at 1883. The defendant could negate this presumption of malice and reduce the crime to manslaughter if he proved by a preponderance of the evidence that the murder was committed in the heat of passion on sudden provocation. The jury was instructed that " 'malice aforethought and heat of passion on sudden provocation are two inconsistent things,' [App.] at 62; thus, by proving the latter the defendant would negate the former and reduce the homicide from murder to manslaughter." Id. at 686-87, 95 S.Ct. at 1883-84. The Court held that this statutory scheme violated due process because it shifted to the defendant the burden of proof on the question of malice. As the Court explained in a later case distinguishing Mullaney:
[M]alice, in the sense of the absence of provocation was part of the definition of that crime. Yet malice, i.e., lack of provocation, was presumed and could be rebutted by the defendant only by proving by a preponderance of the evidence that he acted with heat of passion upon sudden provocation. In Mullaney we held that however traditional this mode of proceeding might have been, it is contrary to the Due Process Clause as construed in Winship.
Patterson v. New York, 432 U.S. 197, 216, 97 S.Ct. 2319, 2330, 53 L.Ed.2d 281 (1977).
In Patterson, the Court considered the constitutionality of a New York statute for second-degree murder. In order to reduce the crime to manslaughter, that statute required the defendant to prove by a preponderance of the evidence the affirmative defense of extreme emotional disturbance. The Court held that this statutory scheme did not violate due process because the New York...
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