Dietz v. Solem

• Decision Date: 30 January 1981
• Docket Number: No. 80-1550,80-1550
• Citation: 640 F.2d 126
• Parties: Robert DIETZ, Appellant, v. Herman SOLEM, Warden, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 126

640 F.2d 126

Robert DIETZ, Appellant, v. Herman SOLEM, Warden, Appellee.

No. 80-1550.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 14, 1980.

Decided Jan. 30, 1981.

Keith R. Strange, Sioux Falls, S. D., for Robert Dietz, appellant.

Before HEANEY, ROSS and STEPHENSON, Circuit Judges.

ROSS, Circuit Judge.

Robert Dietz, petitioner, appeals the district court's denial of his petition for a writ of habeas corpus. Petitioner alleges that certain jury instructions given by the South Dakota trial court violated the due process clause and denied him a fair trial.

On October 31, 1975, Dietz was convicted of third degree burglary following a jury trial. Dietz appealed his conviction to the Supreme Court of South Dakota, alleging that the evidence was insufficient to support the verdict. The state supreme court affirmed the conviction. State v. Dietz, 264 N.W.2d 509 (S.D.1978).

Petitioner then sought post-conviction relief in state court, alleging that the trial court had erred in giving a circumstantial evidence instruction and an "intent" instruction. The Circuit Court for Turner County, South Dakota, found that Dietz had raised the circumstantial evidence issue on direct appeal and the court would not review the issue. In regard to the "intent" instruction the state circuit court found that the failure of petitioner to object to the instruction either in the trial court or the appellate court barred him from raising the issue in a post-conviction proceeding. After deciding the case on this basis the court then made the casual observation without explanation that even if proper objection had been made, the instruction as a whole did not violate the due process clause. On March 8, 1979, the South Dakota Supreme Court denied petitioner's application for a certificate of probable cause to appeal.

The petitioner then filed his application for a writ of habeas corpus in federal district court. Petitioner alleged constitutional error in the giving of the two challenged instructions. The recommendation of the United States Magistrate that the petition be denied was adopted by the district court.

The first jury instruction to which petitioner objects is instruction no. 9 which provides in pertinent part:

Intent is a quality or condition of the mind. It can seldom be proved and usually is not proved by direct evidence such as a statement of purpose or declaration of intent by the person charged. It must be determined from all the evidence, facts and circumstances in the case and the acts and conduct of the defendant as shown, applying to such evidence, facts and acts and conduct your judgment and experience as men and women. Every sane person is presumed to intend the natural, probable and usual consequences of his own acts unless it appears from the evidence that some other purpose or unexpected consequence was in the mind of the actor at the time.

(Emphasis added.)

Petitioner has challenged this instruction as creating a "burden-shifting presumption" which requires the defendant to disprove an element of the crime, thus relieving the state from its burden of proving each and every element of the crime.

Petitioner also objects to jury instruction no. 10 which provides in pertinent part:

Circumstantial evidence means evidence that proves a fact from which an inference of the existence of another fact may be drawn.

An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established by the evidence.

Petitioner argues that this instruction authorized the jury to infer specific intent. But, as noted by the magistrate, the instruction allowed the jury to infer only facts not elements of the crime. Thus, we find no merit to this argument. Sandstrom v. Montana.

Petitioner argues that instruction no. 9 is a burden-shifting instruction similar to the instruction which was found to violate due process in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). We agree.

The Sandstrom case involved a direct appeal from a murder conviction and the jury instruction at issue stated that " '(t)he law presumes that a person intends the ordinary consequences of his voluntary acts.' " Id. at 513, 99 S.Ct. at 2453. The Supreme Court began its review of the instruction by noting that:

The threshold inquiry in ascertaining the constitutional analysis applicable to this kind of jury instruction is to determine the nature of the presumption it describes. See Ulster County Court v. Allen, 442 U.S. 140, 157-63, 99 S.Ct. 2213, 2225, 60 L.Ed.2d 777 (1979). That determination requires careful attention to the words actually spoken to the jury, see (Ulster County Court v. Allen, supra, 442 U.S. at 157-59, n.16, 99 S.Ct. at 2225), for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction.

Id. at 514, 99 S.Ct. at 2454.

The Supreme Court found that a reasonable juror could have interpreted the Sandstrom instruction as either "an irrebuttable direction by the court to find intent once convinced of the facts triggering the presumption" or "a direction to find intent upon proof of the defendant's voluntary actions * * * unless the defendant proved the contrary * * * thus effectively shifting the burden of persuasion on the element of intent." Id. at 517, 99 S.Ct. at 2455. Conclusive presumptions or burden-shifting presumptions, the court stated, must be analyzed under such cases as In re Winship, 397 U.S. 358, 364, 90 S.Ct. at 1068, 1072, 25 L.Ed.2d 368 (1970) which " 'hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.' " Sandstrom v. Montana, supra, 442 U.S. at 520, 99 S.Ct. at 2457.

The Supreme Court emphasized that a conclusive presumption "would 'conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime,' and would 'invade (the) factfinding function' which in a criminal case the law assigns solely to the jury." Sandstrom v. Montana, supra, 442 U.S. at 523, 99 S.Ct. at 2459, citing Morissette v. United States, 342 U.S. 246, 275, 72 S.Ct. 240, 255, 96 L.Ed. 288 (1952) and United States v. United States Gypsum Co., 438 U.S. 422, 446, 98 S.Ct. 2864, 2878, 57 L.Ed.2d 854 (1978). Next, the Court noted that "(a) presumption which, although not conclusive, had the effect of shifting the burden of persuasion to the defendant, would have suffered from similar infirmities." Sandstrom v. Montana, supra, 442 U.S. at 524, 99 S.Ct. at 2459.

The case of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) was cited as addressing such a constitutionally deficient instruction. In Mullaney the trial court had instructed the jury that "if the prosecution established that the homicide was both intentional and unlawful, malice aforethought was to be implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation." Sandstrom v. Montana, supra, 442 U.S. at 524, 99 S.Ct. at 2459. The instruction was held to violate the defendant's due process rights because it shifted the burden of proof to him on the issue of whether he acted in the heat of passion upon sudden provocation.

In conclusion, the Supreme Court held that "Sandstrom's jury may have interpreted the judge's instruction as constituting either a burden-shifting presumption * * * or a conclusive presumption (and) either interpretation would have deprived defendant of his right to the due process of law * * *." Id. at 524, 99 S.Ct. at 2459. The Supreme Court also noted that the question of whether the unconstitutional instruction could be deemed harmless error under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) had not been reached by the state courts. Sandstrom v. Montana, supra, 442 U.S. at 520, 99 S.Ct. at 2457. Thus, the Supreme Court left open the question of harmless error for consideration on remand. Id. at 527, 99 S.Ct. at 2461.

Retroactive Application of Sandstrom.

The United States Magistrate refused to apply the Sandstrom decision retroactively in the absence of a specific command. Instead, the magistrate applied the case of Moore v. United States, 375 F.2d 877 (8th Cir.), cert. denied, 389 U.S. 844, 88 S.Ct. 92, 19 L.Ed.2d 110 (1967) which held that an instruction similar to the one now at issue did not constitute "plain error." This case is no longer the law post Sandstrom.

While it is true that not all decisions have retroactive force, the Supreme Court in Hankerson v. North Carolina, 423 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977) held that the decision in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), was to be given retroactive application. In light of the fact that the Sandstrom decision heavily relied on Mullaney and addressed a due process claim almost identical to Mullaney, we hold that Sandstrom must be applied retroactively. As was stated in Hankerson :

" 'Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilt verdicts in past trials, the new rule (is) given complete retroactive effect.' "

Hankerson v. North Carolina, supra, 423 U.S. at 243, 97 S.Ct. at 2345, citing Ivan V. v. City of New York, 407 U.S. 203, 204 (1972).

Standard of Review.

In contrast to the Sandstrom decision which involved a direct appeal, this case involves a request for habeas corpus relief.

Recently this court noted that "as a general rule, improper jury instructions do not form a basis for habeas corpus relief." Brouilette v. Wood, 636 F.2d 215 at 218 (8th Cir. 1980). See also Davis v....