Duffy v. Foltz

• Decision Date: 13 September 1985
• Docket Number: No. 84-1869,84-1869
• Citation: 772 F.2d 1271
• Parties: Paul D. DUFFY, Jr., Petitioner-Appellant, v. Dale E. FOLTZ, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1271

772 F.2d 1271

Paul D. DUFFY, Jr., Petitioner-Appellant, v. Dale E. FOLTZ, Respondent-Appellee.

No. 84-1869.

United States Court of Appeals Sixth Circuit.

Argued June 12, 1985.

Decided Sept. 13, 1985.

Arthur J. Tarnow, argued, Detroit, Mich., for petitioner-appellant.

Timothy A. Baughman, argued, Detroit, Mich., for respondent-appellee.

Before MILBURN, Circuit Judge, and EDWARDS and BROWN, Senior Circuit Judges.

BAILEY BROWN, Senior Circuit Judge.

Appellant, Paul D. Duffy, Jr., appeals the denial of his application for habeas corpus relief by the District Court for the Eastern District of Michigan. Upon consideration, we determine that the district court was in error in denying relief and therefore we reverse.

Duffy was found, upon a plea of not guilty and not guilty by reason of insanity, guilty of rape and kidnapping by a jury in 1974 in a Michigan court. Mich.Comp.Laws Secs. 750.520, 750.349. The Court of Appeals of Michigan affirmed the conviction. People v. Duffy, 67 Mich.App. 266, 240 N.W.2d 771 (1976). The trial court in 1982 denied on the merits an application, in which the instant federal constitutional contentions were first made, for leave to file a delayed motion for a new trial; in the same year the Michigan Court of Appeals denied on the merits an application for a delayed appeal; and in 1983 the Michigan Supreme Court denied an application for leave to appeal. It appears that Duffy has exhausted his remedies (28 U.S.C. Sec. 2254) in the state courts in two separate ways in that the state courts were presented with a fair opportunity to rule on his federal constitutional claims and, in addition, when he filed his habeas petition, there was not any avenue for further review of the instant federal constitutional contentions in the state court system. Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982). Moreover, Duffy need not show "cause and prejudice" as he would be required to show if there had been a procedural default that was a substantial basis for denial of relief, Hockenbury v. Sowders, 620 F.2d 111 (6th Cir.1980), cert. denied, 450 U.S. 933, 101 S.Ct. 1395, 67 L.Ed.2d 367 (1981), or be required to show if the Michigan courts had not had a fair opportunity to correct the claimed federal constitutional error, Fornash v. Marshall, 686 F.2d 1179, 1186 (6th Cir.1982), cert. denied, 460 U.S. 1042, 103 S.Ct. 1439, 75 L.Ed.2d 796 (1983), applying, by analogy, United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). The state does not contend that there was a procedural default or that the state courts did not have such an opportunity.

As reflected by the opinion of the Michigan Court of Appeals, People v. Duffy, 67 Mich.App. 266, 240 N.W.2d 771 (1976), the state had, on the objective facts, a very strong case against Duffy. He bound and at knife point abducted the female victim from her home, after first entering her yard, he testified, looking for a cat, and drove her to an isolated area and raped her. The local police, who had been alerted by the victim's neighbor, spotted Duffy returning the victim to her home and arrested him after a chase. The case was vigorously defended, however, on the basis of an insanity defense.

At trial, after the state's overwhelming proof as to the abduction and rape by Duffy, followed by Duffy's counsel's opening statement to the jury that Duffy would concede that he abducted and raped the victim and that his sole defense would be that of not guilty by reason of insanity, and after Duffy had in his testimony confirmed the victim's version of the facts and at great length testified about a prior rape he had committed for which he was held in a mental institution for five years, and after one of the two psychiatrists who testified in Duffy's behalf had testified that he was indeed temporarily insane at the time of the alleged offense, the trial judge suggested, in the jury's absence, that the jury be instructed that Duffy conceded that he abducted and raped the victim and his sole defense would be that of insanity. Duffy's counsel agreed to this. The state offered no expert testimony to rebut that of the two experts who testified in Duffy's behalf. Without objection, the trial judge did not instruct the jury on the elements of the crimes of rape and kidnapping, instructed that Duffy admitted the acts alleged, and instructed that its alternatives were to find Duffy "guilty as charged" or "not guilty by reason of insanity." Since Duffy had come forward with evidence of his insanity, the trial court also instructed the jury, which the state agrees is in accordance with Michigan law, that the burden was on the state to prove Duffy's sanity beyond a reasonable doubt. As stated, the jury found Duffy guilty of both crimes.

In the district court, Duffy made two sets of contentions. The first is that, by his counsel's agreeing to the charge to the jury that Duffy conceded the alleged facts as to rape and kidnapping and that his only defense was that of insanity at the time of the alleged offense and by his counsel's agreeing to the charge that the jury's only verdict alternatives were "guilty as charged" or "not guilty by reason of insanity," he was denied his constitutional right to a jury trial and that he was also denied constitutional due process by the failure of the trial court to instruct the jury on the elements of rape and kidnapping. The second set of contentions is that, under the circumstances presented at the trial, Duffy's conviction was a violation of federal due process because, under the proof as presented, Duffy's sanity became an element of the crime charged and that the jury could not within reason find beyond a reasonable doubt that he was sane at the time of the alleged offense.

I.

As stated, Duffy contends that he was denied a jury trial by his counsel's conceding that he committed the acts as alleged and by the trial court's failure, with Duffy's counsel's agreement, to charge the jury that he might be found "not guilty." He further contends that he was denied due process by the failure of the trial court, with his counsel's agreement, to instruct the jury on elements of the crimes of rape and kidnapping.

It appears to this court that though the foregoing are asserted by Duffy as separate propositions, they raise the same question, which is this: was Duffy deprived of a federal constitutional right to a jury trial and deprived of due process by his trial counsel's conceding, as a trial tactic, that Duffy committed the acts as alleged and contending only that he was "not guilty by reason of insanity."

While, as Duffy asserts, the record does not affirmatively show that Duffy voluntarily and knowingly agreed to stand only on a plea of not guilty by reason of insanity, we note the following. Duffy does not contend that, in making this trial tactic decision, he received ineffective assistance of counsel. Moreover, Duffy does not contend that he did not in fact knowingly and voluntarily agree to this trial tactic. Further, Duffy does not even contend that such was not, under the circumstances, the best, indeed the only, trial tactic available. He simply contends that, in a nutshell, he was unconstitutionally denied a jury trial because the record does not affirmatively show that he agreed to his trial counsel's decision.

If Duffy's counsel had pleaded him guilty, there being no showing on the record that Duffy agreed thereto, we would have a serious question in view of the holding of the Supreme Court in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Moreover, if Duffy's counsel's opening statement, stipulation and argument to the jury were in fact made without his agreement and if such were a functional equivalent of a guilty plea, we would have a serious question under our decision in Wiley v. Sowders, 647 F.2d 642 (6th Cir.), cert. denied, 454 U.S. 1091, 102 S.Ct. 656, 70 L.Ed.2d 630 (1981). But Duffy's counsel did not enter a guilty plea for him, and his opening statement, stipulation and argument did not amount to a functional equivalent of a guilty plea because under Michigan law a plea of "not guilty by reason of insanity" is not a guilty plea and an opening statement, stipulation and argument in support of an insanity defense do not amount to a functional equivalent of a guilty plea. As stated by the Michigan Supreme Court in People v. Martin, 386 Mich. 407, 192 N.W.2d 215, 225 (1971), cert. denied, 408 U.S. 929, 92 S.Ct. 2505, 33 L.Ed.2d 342 (1972):

A plea of not guilty by reason of insanity is not a plea that incriminates. It is just the opposite. It is a special plea in avoidance of the guilty charge.

Accordingly, we conclude that Duffy was not, by use of this trial tactic, deprived of a federal constitutional right to a jury trial or due process.

II.

Duffy's other contention is that, under the circumstances presented here, his sanity was an element of the crime, that the jury could not, on the proof, within reason find beyond a reasonable doubt that he was sane, and therefore his conviction was in violation of federal due process.

A.

In In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), the Court held:

Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly 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.

Id. at 364, 90 S.Ct. at 1072.

Moreover, in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the Court established, in implementing Winship, the standard to be applied in determining whether the evidence in support of a state court conviction was sufficient to satisfy due process: ¹

[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of...