Drinkwater v. Gagnon
Decision Date | 11 September 1981 |
Docket Number | No. 80-C-996.,80-C-996. |
Parties | Willie Lee DRINKWATER, Petitioner, v. John R. GAGNON and Attorney General of the State of Wisconsin, Respondents. |
Court | U.S. District Court — Eastern District of Wisconsin |
Waring R. Fincke, Shellow & Shellow, Milwaukee, Wis., for petitioner.
Bronson C. LaFollette, Wis. Atty. Gen. by Mary V. Bowman, Asst. Atty. Gen., Madison, Wis., for respondents.
DECISION and ORDER
In his petition for a writ of habeas corpus, Willie Lee Drinkwater challenges his convictions for armed robbery and attempted murder, party to a crime, on the grounds that the trial court improperly instructed the jury that it could presume the crucial element of intent from Mr. Drinkwater's acts. The Supreme Court found a similar instruction unconstitutional in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).
The respondents raise several arguments to support the convictions, including the claim that Sandstrom does not mandate the granting of the writ under the circumstances of this case, that Sandstrom should not be applied retroactively, and that the petitioner failed to object to the instruction at the time of trial.
Mr. Drinkwater's convictions were affirmed by the Wisconsin supreme court in Drinkwater v. State, 73 Wis.2d 674, 245 N.W.2d 664 (1976). The court gave the following account of the circumstances that led to Mr. Drinkwater's conviction:
At trial, several eyewitnesses testified to the above events. The guns seized at the time of the arrest were excluded from evidence by the trial judge. Mr. Drinkwater chose not to testify and presented no witnesses in his behalf. The jury found him guilty on both counts. The trial judge sentenced him to an indeterminate term of not more than twenty-five years for the crime of attempted murder, consecutive to a sentence Mr. Drinkwater was already serving at the time of the sentencing, and twenty-five years for the crime of armed robbery, consecutive to the sentence for attempted murder and the earlier sentence. Mr. Drinkwater's petition states that he is currently confined at the Fox Lake correctional institution.
The respondents contend that the petitioner's failure to object to the instruction regarding the presumption of intent at the time of trial constitutes a waiver of this argument and bars this petition. A similar contention was considered and rejected by Judge Terence Evans in Pigee v. Israel, 503 F.Supp. 1170, 1172 (E.D.Wis.1980) (Pigee I); aff'd on reconsideration, Pigee v. Israel, No. 80-C-704 (E.D.Wis., filed February 3, 1981) (Pigee II); accord, Campbell v. Prast, No. 80-C-1003 (E.D.Wis., filed June 26, 1981); Austin v. Israel, 516 F.Supp. 461, 464 (E.D. Wis.1981); Ross v. Israel, 503 F.Supp. 131, 133 (E.D.Wis.1980); see Ulster County Court v. Allen, 442 U.S. 140, 153, 99 S.Ct. 2213, 2222, 60 L.Ed.2d 777 (1979). I share Judge Evans' view, and I reject the respondents' argument.
The petitioner bases his argument on the following crucial language in the instructions read at trial.
Answer to petition, filed March 3, 1981, Exh. H, p. 6.
I have previously found the use of this language when instructing the jury to be unconstitutional. Austin, supra; accord, Harris v. Israel, 515 F.Supp. 568 (E.D.Wis., 1981) (Reynolds, C. J.); Dreske v. Wisconsin Department of Health & Social Services, 483 F.Supp. 783 (E.D.Wis.1980) (Reynolds, C.J.); Adams v. State, 92 Wis.2d 875, 289 N.W.2d 318 (Ct.App.1979), reversed 95 Wis.2d 529, 290 N.W.2d 872 (1980); see Muller v. Israel, 510 F.Supp. 730 (E.D.Wis.1981) (Warren, J.); but see Pigee I, supra; Muller v. State, 94 Wis.2d 450, 289 N.W.2d 570 (1980). As I stated in Austin:
Id., at 467.
The respondents contend that even if the use of the above-quoted instruction is unconstitutional under Sandstrom, the petition at bar should be denied because: (1) Sandstrom should not be applied retroactively, and (2) the error in giving the instruction was harmless beyond a reasonable doubt. An additional issue is present; after the briefing schedule was completed in this case, the court of appeals for this circuit upheld the use of an Indiana jury instruction that bears a resemblance to the one found unconstitutional in Austin. Jacks v. Duckworth, 651 F.2d 480 (7th Cir. 1981).
The issue of retroactivity was considered in Austin; I determined that Sandstrom must be applied retroactively. Austin, supra, at 468; accord, Harris, supra, at 571-572. Accordingly, I reject the respondents' first ground. In addition, I believe that I need not address the issue of the continued vitality of Austin in light of the Jacks decision, for I am persuaded that under the circumstances of this case the use of the instruction was harmless error.
Use of the presumption instruction is harmless error if the question of intent was not an issue at trial. Ross, supra, 503 F.Supp. 131; Genova v. Buehler, No. 80-C-802 (E.D.Wis., filed March 4, 1981); see Hoppe v. Israel, 516 F.Supp. 965 (E.D.Wis., 1981). In Austin, I also reasoned that "it may be appropriate to find harmless error if there is strong evidence of intent and the only evidence to the contrary is the defendant's own incredible assertions of a lack of intent." Austin, supra, at 468, citing United States v. Bohlmann, 625 F.2d 751, 753 (6th Cir. 1980) (per curiam).
The petitioner contends that harmless error is never applicable in cases of this type. For support, he quotes Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), which states: "Our cases have indicated that failure to instruct the jury on the necessity of proof beyond a reasonable doubt can never be harmless error." Id., at 320 n.14, 99 S.Ct. 2781 at 2790, citing Cool v. United States, 409 U.S. 100, 93 S.Ct. 354, 34 L.Ed.2d 335 (1972). Jackson addressed an entirely different issue than that at bar. In addition, the jury at Mr. Drinkwater's trial was repeatedly instructed that they had to be satisfied of his guilt beyond a reasonable doubt. They were also instructed at least twice that the government had to meet that burden on all the elements of the crime. See Answer, Exh. H, pp. 4, 17. Thus the quoted section of Jackson has no bearing on this case.
The issue at bar is whether the use of the presumption instruction was harmless error despite its constitutional infirmity. That is an accepted analysis in cases of this type. See, e. g., United States v. Bohlmann, supra; Krzeminski v. Perini, 614 F.2d 121, 124 (6th Cir. 1980); United States v. Reeves, 594 F.2d 536 (6th Cir. 1979); United States v. Durham, 512 F.2d...
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