Gardner v. Forister
Decision Date | 09 April 1979 |
Docket Number | No. C-C-79-014.,C-C-79-014. |
Citation | 468 F. Supp. 761 |
Court | U.S. District Court — Western District of North Carolina |
Parties | Benjamin GARDNER, Petitioner, v. R. C. FORISTER and the State of North Carolina, Respondents. |
No appearance, for petitioner.
Richard N. League, Asst. Atty. Gen., North Carolina Dept. of Justice, Raleigh, N. C., for respondents.
ORDER GRANTING WRIT OF HABEAS CORPUS
In April, 1975, petitioner Benjamin Gardner was convicted of second degree murder for the March, 1974, fatal shooting of James Franklin Poe. Petitioner's conviction was affirmed by the North Carolina Court of Appeals (28 N.C.App. 484, 221 S.E.2d 741 (1976)); the North Carolina Supreme Court denied certiorari (289 N.C. 616, 223 S.E.2d 393 (1976)). In his present petition, Gardner raises four claims: (1) the burden of proof to reduce the crime from second degree murder to manslaughter was unlawfully placed upon him by the trial court in its instructions to the jury; (2) the burden of proving that the killing occurred in self-defense was also unlawfully placed upon him; (3) no Miranda warnings were given to petitioner by officers who took his statement shortly after the shooting; and (4) his trial counsel was ineffective.
Petitioner has exhausted state remedies with respect to his first and second contentions. See Defendant-Appellant's Brief at 15.
At the conclusion of the evidence at petitioner's trial, the court instructed the jury that it had three choices: it could convict petitioner of second degree murder, convict him of manslaughter, or acquit him. The court framed its second degree murder and manslaughter instructions as follows:
In charging the jury on the issue of self-defense, the court gave the following instruction:
Simply stated, petitioner's claim is that these two instructions violate the rule of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), that the State is required to prove every essential element of the crime beyond a reasonable doubt. In Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977), the Mullaney rule was declared to apply retroactively to convictions such as petitioner's. Although the issue was squarely raised by petitioner in his brief to the North Carolina Court of Appeals, that court failed to mention the claim in its disposition of the appeal.
In Mills v. Shepherd, 445 F.Supp. 1231 (W.D.N.C.1978), this court reviewed a virtually identical instruction on malice, as well as a North Carolina trial court's failure to instruct the jury on self-defense. The court stated:
The law of North Carolina continues to be that the elements of malice and unlawfulness are essential to a second degree murder conviction; the North Carolina courts have consistently so ruled. State v. Berry, 295 N.C. 534, 246 S.E.2d 758 (1978); State v. Hankerson, 288 N.C. 632, 220 S.E.2d 575 (1975); State v. Sprinkle, 30 N.C.App. 383, 226 S.E.2d 827 (1976).
As the Court noted in Mills, an instruction placing the burden on petitioner to satisfy the jury of the absence of malice, or that the killing was committed in self-defense, is constitutional error unless the court should find that there was no evidence to support verdicts of either manslaughter or not guilty, or the instruction was otherwise harmless error beyond a reasonable doubt. 445 F.Supp. at 1236-37; accord, Hankerson v. North Carolina, supra at 537, 246 S.E.2d 758 n. 3; Wilkins v. Maryland, 402 F.Supp. 76 (D.Md.1975). Compare Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) ( ). Reference to the facts is therefore necessary.
The record shows that petitioner Gardner was the owner of the Copra, a restaurant and lounge in Charlotte, North Carolina. Petitioner and the decedent, James Poe, were business associates; petitioner had employed decedent as the manager of another lounge with the prospect, according to petitioner, of entering into a partnership at a later time. On Sunday morning, March 3, 1974, James Poe and petitioner were at the Copra lounge with some friends, when they began to quarrel about a $60.00 loan petitioner had made to decedent to help pay for a third person's food stamps. The argument heated up and petitioner demanded the keys to the other lounge. Decedent threw them across the floor. Record on Appeal, pp. 32, 37-39. According to petitioner's testimony, the decedent threatened him after throwing the keys, approached petitioner, and threw the first punch. After the two were locked in struggle, Poe took something out of his pocket with his right hand and raised it above petitioner, who struggled to fend off a blow from that hand. Record on Appeal, pp. 32, 35, 40. Petitioner then reached into his pocket, pulled out a gun, and fired. According to petitioner and according to a statement given to police by a witness to the scuffle, the first shot was not actually directed at Poe. Record on Appeal, pp. 35, 40. Poe continued to come at petitioner; petitioner fired again, striking Poe and causing Poe to fall forward and on top of petitioner, knocking both of them into a booth. With Poe lying on top of him, petitioner fired a third time. Id.
There was a substantial factual dispute as to whether the object decedent had in his hand when he attempted to strike petitioner was a kitchen knife that the decedent had been in the practice of carrying with him. Record on Appeal, p. 36. Petitioner testified that Poe had in fact grabbed the knife. Other witnesses testified to statements,...
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