Frazier v. Weatherholtz

• Citation: 411 F. Supp. 349
• Decision Date: 18 March 1976
• Docket Number: Civ. A. No. 75-0079.
• Parties: Steven Franklin FRAZIER, Petitioner, v. Glen WEATHERHOLTZ, Sheriff, Respondent.
• Court: U.S. District Court — Western District of Virginia

411 F. Supp. 349

Steven Franklin FRAZIER, Petitioner, v. Glen WEATHERHOLTZ, Sheriff, Respondent.

Civ. A. No. 75-0079.

United States District Court, W. D. Virginia, Harrisonburg, Division.

March 18, 1976.

David I. Walsh, Asst. Commonwealth's Atty., Harrisonburg, Va., for Sheriff Weatherholtz.

M. Bruce Wallinger, Harrisonburg, Va., for Mr. Frazier.

MEMORANDUM OPINION

TURK, Chief Judge.

Petitioner Steven Frazier pled not guilty to an indictment charging him with murder and following a jury trial in the Circuit Court of Rockingham County, Virginia was found guilty of voluntary manslaughter for which he was sentenced to five years imprisonment. Petitioner appealed his conviction to the Virginia Supreme Court which on August 4, 1975 denied his petition for a writ of error. In this pro se petition for a writ of habeas corpus petitioner raises the same issues which were presented on direct appeal as well as numerous other claims. One of the issues presented on direct appeal was whether the trial court's instructions to the jury erroneously required the petitioner to carry the burden of proving self defense.¹ This is the only issue in this petition which the court finds to be of potential constitutional significance and thus within the habeas corpus jurisdiction of this court. 28 U.S.C. § 2254. The law has been briefed and argued, and the case is now ripe for disposition. This issue is one of law for which no evidentiary hearing is required.

Briefly and to the extent here pertinent, the evidence at trial was as follows. On the evening of April 5, 1974 the petitioner, the deceased (Gary Breeden) and four other persons traveled in two cars from Arlington County, Virginia where they resided to an old, unused motel owned by petitioner's father near Elkton, Virginia. Some of the members of the group including the deceased were using drugs during the trip and after they arrived around midnight. That evening at the motel Mr. Breeden's behavior, and particularly his sexual advances toward one of the women, became obnoxious to the others. Because Mr. Breeden's behavior did not improve the next morning, the other members of the group decided to abandon their initial plan of spending the weekend and to return home without Mr. Breeden. To this end petitioner had Mr. Breeden drive him to a store to buy some kerosene, with the intent to thereafter direct Mr. Breeden to drive him to Harrisonburg where petitioner would abandon him and later be picked up by other members of the party.

There were no witnesses to the shooting of the deceased other than the petitioner who testified as follows. After the kerosene was purchased and they were driving toward Harrisonburg, the deceased removed a loaded pistol from his pocket and laid it on the seat. When petitioner inquired as to what he planned to do with the pistol, the deceased stated he was going "to shoot things". When the deceased sought to raise the pistol toward petitioner's head, petitioner took the gun away from him and removed the bullets. Petitioner refused Mr. Breeden's demand to return the gun; the deceased stopped the car and both men got out and walked toward the rear of the car. The deceased then said he was going to kill petitioner and petitioner reloaded the gun. The deceased again threatened petitioner and reached inside his coat as if to remove something. Petitioner believed that deceased had another gun and he therefore shot him in order to protect himself. Petitioner then stopped a passing motorist and asked for help stating that the deceased was on drugs and had tried to kill him.

There was evidence concerning the precise cause of death and the direction from which the bullets entered the body of Mr. Breeden. The testimony indicated that one shot was fired after the deceased was on the ground and petitioner had asked two passing motorists for help. Evidence was also presented concerning the violent character of the deceased.

The trial court instructed the jury as to the law in Virginia governing first and second degree murder and voluntary manslaughter. As is apparent from the above summary of evidence petitioner's plea of not guilty was based on the defense of self defense, and it is the jury instructions regarding the law of self defense which present the constitutional issue here.

Over the strenuous objection of petitioner's attorney the trial court gave the following instruction regarding self defense:

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 Court further tells the jury that before the accused can rely upon self defense there must be some present peril or something in the attending circumstances indicative of a present purpose by David Gary Breeden to make the apprehended attack. The act so done, or the circumstances thus existing, must have been of such a character as to afford the defendant, Steven Franklin Frazier, reasonable grounds for believing there was a design on the part of David Gary Breeden to do him some serious bodily harm, and that there existed imminent danger of carrying such design into immediate execution. Instruction # 19.

It is petitioner's contention that Instruction # 19 violated his right to due process of law by requiring him to prove that he acted in self defense, as opposed to the state proving the absence of self defense. In considering this constitutional claim the court is mindful that "instructions to the jury are not to be judged in artificial isolation, but must be viewed in the context of the overall charge". Mullaney v. Wilbur, 421 U.S. 684 at 705, 95 S.Ct. 1881 at 1892, 44 L.Ed.2d 508 at 523 (1975) (Rehnquist, J., concurring). The other instructions given by the trial court regarding the law of self defense are set forth in the margin,² but since they do not bear on the issue of who has the burden of proving or disproving self defense, they are not pertinent to the constitutional issue asserted here.

The primary authority for petitioner's challenge to his conviction is the recent case of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). In that case the defendant had been convicted by a jury in Maine of murder. Under Maine law all intentional or criminally reckless killings are felonious homicides, and the defendant must prove by a fair preponderance of the evidence that he acted "in the heat of passion on sudden provocation" in order to reduce the homicide from murder to manslaughter. The issue before the Supreme Court was whether the burden on a defendant to prove "heat of passion on sudden provocation" violated the Fourteenth Amendment due process requirement enunciated in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) that the state must prove beyond a reasonable doubt every fact necessary to constitute the crime charged. The Court rejected the argument that Winship was inapplicable to the case because under Maine law the crime of felonious homicide could be established regardless of the element of "heat of passion on sudden provocation". The court analysed the due process issue, not in terms of Maine's formal definition of the crime of felonious homicide, but in terms of the potential differences to a defendant as a result of a conviction of murder as compared with a conviction for manslaughter and the "societal interests in the reliability of jury verdicts". 421 U.S. at 699, 95 S.Ct. at 1890, 44 L.Ed.2d at 520. By such an analysis the Court reasoned that the liberty interests of the individual and the possibility of an erroneous verdict were as great or greater than in Winship and accordingly concluded that the state must prove the absence of heat of passion beyond a reasonable doubt.

In the course of its opinion the Court stated:

"Nor is the requirement of proving a negative unique in our system of criminal jurisprudence. Maine itself requires the prosecution to prove the absence of selfdefense beyond a reasonable doubt. See State v. Millett, 273 A.2d 504 (1971). Satisfying this burden imposes an obligation that, in all practical effect, is identical to the burden involved in negating the heat of passion on sudden provocation. Thus, we discern no unique hardship on the prosecution that would justify requiring the defendant to carry the burden of proving a fact so critical to criminal culpability." 421 U.S. at 702, 95 S.Ct. at 1891, 44 L.Ed.2d at 521. (footnotes omitted).

On the basis of the Court's reasoning in Mullaney, it is clear to this court that the burden of proving the absence of self defense beyond a reasonable doubt is a burden which, as a matter of constitutional due process of law, must be borne by the prosecution. In Mullaney substantial interests of the individual and society were at stake because of the different consequences resulting from a conviction of murder, as compared with a conviction of manslaughter, whereas in a case such as that at bar involving the burden of proving self defense, these interests are even greater, for what is at stake is the guilt or innocence of the individual.

However the issue in the case at bar is not so neatly presented as that in Mullaney where the burden imposed by the state on a defendant at trial was clear. Although Instruction # 19 does state that the "burden of proving self defense rests upon the accused", this...