Frazier v. Weatherholtz
| Decision Date | 27 February 1978 |
| Docket Number | Nos. 76-1511 and 76-2428,s. 76-1511 and 76-2428 |
| Parties | Steven Franklin FRAZIER, Appellee, v. Glen WEATHERHOLTZ, Sheriff of Rockingham County, Appellant. Edward Allen DOOLEY, Appellee, v. C. C. SHEFFER, Superintendent, and Andrew Miller, Attorney General of the State of Virginia, Appellants. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Linwood T. Wells, Jr., and Jerry P. Slonaker, Asst. Attys. Gen., Richmond, Va. (Anthony F. Troy, Atty. Gen., and Reno S. Harp, III, Deputy Atty. Gen., Richmond, Va., on brief) for appellants in 76-1511 and 76-2428.
Johnson Kanady for appellee in 76-2428.
M. Bruce Wallinger, Harrisonburg, Va., for appellee in 76-1511.
Before FIELD, Senior Circuit Judge, and WIDENER and HALL, Circuit Judges.
In each of these appeals the State of Virginia challenges the grant of habeas corpus relief by the district court based upon its conclusion that the instructions of the trial courts were violative of due process under the Supreme Court's decision in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).
Following oral argument, disposition of these cases was deferred pending the decision of the Supreme Court in Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977), on the issue of the retroactivity of Mullaney, 1 and the decision of the Supreme Court of Virginia in Hodge v. Commonwealth, 217 Va. 338, 228 S.E.2d 692 (1976). Thereafter the cases were consolidated for reargument in the light of Hankerson and Hodge, as well as the Supreme Court's decision in Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977).
The petitioner, Steven Franklin Frazier, was tried in the Circuit Court of Rockingham County, Virginia, upon a charge of first degree murder. The trial court instructed the jury at some length in regard to the presumption of innocence and the prosecution's burden of proving guilt beyond a reasonable doubt. With respect to self-defense the jury was instructed as follows:
The court instructs the jury that where a killing is proved by the use of a deadly weapon, and the accused relies upon the plea of self defense, the burden of proving such defense rests upon the accused; the burden resting upon an accused relying upon the right of self defense is to establish such defense, not beyond a reasonable doubt, nor even by the greater weight of the evidence, but only to the extent of raising in the minds of the jury a reasonable doubt as to whether or not he acted in the lawful exercise of such right. And, in determining whether or not such defense has been established, the jury should consider all of the evidence and circumstances in the case, that for the Commonwealth as well as that for the accused.
The jury found Frazier guilty of voluntary manslaughter and he was sentenced to a five year term of imprisonment.
Frazier filed a petition for a writ of error in the Supreme Court of Virginia contending, inter alia, that the trial court's instruction improperly cast upon him the burden of proof with respect to self-defense. 2 On August 4, 1975, the Virginia court denied the petition and affirmed Frazier's conviction. Thereafter, Frazier filed his petition for habeas corpus in the district court and on March 16, 1976, the court granted habeas corpus relief. In doing so, the district court concluded that the instruction challenged by the petitioner ran afoul of the constitutional principle enunciated by the Court in Mullaney. The court further concluded that Mullaney should be given retroactive effect. 3
When these cases were set down for reargument counsel and the court assumed that the decision of the Supreme Court of Virginia in Hodge v. Commonwealth, supra, would bear significantly upon our disposition of Frazier's case. In Hodge, the court addressed itself to the impact of Mullaney upon the Virginia rule that every unlawful homicide is presumed to be murder of the second degree and that the defendant has the burden of showing circumstances of mitigation or excuse. The court distinguished Virginia's use of presumptions from Mullaney, and concluded that the instruction customarily used by Virginia trial courts in homicide cases does not shift the burden of persuasion to the accused. This reading of the instruction would appear to be compatible with Mullaney and, absent some exceptional circumstances, should be accepted by us. Mullaney v. Wilbur, 421 U.S., at 691, 95 S.Ct. 1881.
While we think that the instruction challenged by Frazier passes constitutional muster under Hodge and Mullaney, we find it unnecessary to rest our decision on that basis, since in our opinion Patterson v. New York, supra, is dispositive of this case. In Patterson the Court went to some lengths to point out the limited contours of Mullaney and held that the mandate of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), was satisfied when the state proved beyond a reasonable doubt "every fact necessary to constitute the crime with which (Patterson was) charged." 432 U.S., at 206, 97 S.Ct., at 2324. The Court then affirmed the continuing validity of Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), and upheld the constitutionality of the New York law which cast upon the defendant the burden of proving his affirmative defense of "extreme emotional disturbance" by a preponderance of the evidence. In doing so the Court stated:
We thus decline to adopt as a constitutional imperative, operative country-wide, that a State must disprove beyond reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused. Traditionally, due process has required that only the most basic procedural safeguards be observed; more subtle balancing of society's interests against those of the accused have been left to the legislative branch. We therefore will not disturb the balance struck in previous cases holding that the Due Process Clause requires the prosecution to prove beyond reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged. Proof of the non-existence of all affirmative defenses has never been constitutionally required; and we perceive no reason to fashion such a rule in this case and apply it to the statutory defense at issue here.
432 U.S., at 210, 97 S.Ct., at 2327.
Long before Winship, the universal rule in this country was that the prosecution must prove guilt beyond reasonable doubt. At the same time, the long-accepted rule was that it was constitutionally permissible to provide that various affirmative defenses were to be proved by the defendant. This did not lead to such abuses or to such widespread redefinition of crime and reduction of the prosecution's burden that a new constitutional rule was required. This was not the problem to which Winship was addressed. Nor does the fact that a majority of the States have now assumed the burden of disproving affirmative defenses for whatever reasons mean that those States who strike a different balance are in violation of the Constitution. (Footnotes omitted).
432 U.S., at 211, 97 S.Ct., at 2327.
Since the trial court's instruction on self-defense in Frazier's case was well within the limits of Patterson, the district court erred in concluding that it was constitutionally infirm. Accordingly, the judgment of the district court granting habeas corpus relief is reversed.
The petitioner, Edward Allen Dooley, was tried in the Circuit Court of Bedford County, Virginia, upon a charge of second degree murder. The trial court charged the jury on the prosecution's burden of proving guilt beyond a reasonable doubt and, in accordance with Virginia law, instructed the jury as follows:
The Court instructs the Jury that:
(a) Every unlawful homicide is presumed to be murder in the second degree.
(b) In order to reduce an unlawful homicide from murder in the second degree to manslaughter or excusable homicide, the burden is upon the defendant.
(c) It is your duty to consider all of the testimony, no matter by whom introduced, and ascertain therefrom if the defendant is guilty or innocent, and if guilty, of what offense.
The jury found Dooley guilty of second degree murder.
Dooley's petition for a writ of error was denied by the Supreme Court of Virginia on April 19, 1974. A subsequent petition for a writ of habeas corpus was denied by the Circuit Court of Bedford County, and on June 24, 1975, his appeal from that ruling was dismissed by the Supreme Court of Virginia. Dooley then filed his petition for habeas corpus in the district court, charging among other things, that the instructions of the trial court improperly placed upon him the burden of proof in violation of the principle of due process expressed in Mullaney. The district court agreed with Dooley on the Mullaney issue and granted habeas corpus relief.
Dooley's petition came on for consideration subsequent to the Virginia court's decision in Hodge. The district judge did not question the distinction drawn in that case between the Virginia instructions and those in Mullaney, but observed that the instructions in Dooley's case imposed "without further elaboration, a burden upon the accused to reduce the crime from murder in the second degree to manslaughter," and that as a whole they did not clarify the point at which such a burden attached nor distinguish it from the ultimate burden resting upon the State. Accordingly, he concluded that "(t)he distinction between the burden of going forward and the ultimate burden of proof, drawn in Hodge, supra, is not made in these instructions, and thus does not serve to cure this misplacing of the ultimate burden of proof."
Based upon our examination of the instructions in their entirety we are also inclined to question whether they square with Hodge or comport with...
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