Glenn v. Dallman

• Decision Date: 23 August 1982
• Docket Number: No. 81-3519,81-3519
• Citation: 686 F.2d 418
• Parties: Preston GLENN, Petitioner-Appellant, v. William DALLMAN, Superintendent, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 418

686 F.2d 418

Preston GLENN, Petitioner-Appellant, v. William DALLMAN, Superintendent, Respondent-Appellee.

No. 81-3519.

United States Court of Appeals, Sixth Circuit.

Argued May 27, 1982.

Decided Aug. 23, 1982.

Gregory L. Ayers, Franklin County Public Defender, Barbara Slutsky, Columbus, Ohio, for petitioner-appellant.

Richard David Drake, Asst. Atty. Gen., Columbus, Ohio, for respondent-appellee.

Before KENNEDY, Circuit Judge, SWYGERT ^* and PECK, Senior Circuit Judges.

JOHN W. PECK, Senior Circuit Judge.

This appeal from the district court's denial of a state prisoner's habeas corpus petition raises the question whether the state trial court's complete failure to instruct the jury on an essential element of the crime for which petitioner was convicted was harmless error. We conclude that it was not and reverse the judgment of the district court and remand with the directions that the writ issue ordering that the petitioner's conviction be reclassified from aggravated burglary to burglary.

Petitioner was indicted by the Franklin County, Ohio, Grand Jury for the offenses of aggravated burglary, Ohio Rev.Code Ann. § 2911.11 (Anderson), and theft, Ohio Rev.Code Ann. § 2913.02 (Anderson). Petitioner pled not guilty to both charges and was tried before a jury. The state presented evidence from which the jury could find that petitioner and a companion had entered a dwelling house during the morning hours and committed a theft. It was undisputed that no person was present in the home at the time of the unlawful entry and theft. The owner of the house testified that she had been at work and that the other residents of the house had been at school at the time of the crime. There was evidence from which the jury could conclude that the owner of the house had returned to the house within minutes of the burglars' departure.

At the conclusion of the evidence the trial judge instructed the jury that aggravated burglary was the unlawful entry of an "occupied structure" for the purpose of committing a theft offense. Under Ohio law "occupied structure" does not mean that someone is actually present in the building, but rather is used to connote a dwelling place as opposed to a structure not used as a residence. Consequently, the trial judge instructed the jury that an "occupied structure" is a permanent or temporary habitation of any person, whether or not any person is actually present. Petitioner objected to the charge on aggravated burglary on grounds that the charge given omitted an essential element of aggravated burglary. Specifically, petitioner contended that aggravated burglary required as an essential element a finding that a person was either present or likely to be present in the "occupied structure" at the time of the crime. The trial judge concluded that the instruction omitting the requirement of "present or likely to be present" was correct.

The jury found petitioner guilty under the instruction that aggravated burglary was the unlawful entry of a dwelling for the purposes of theft, without any instruction that the state must prove that some person was present or likely to be present at the time of the crime. Petitioner exhausted state remedies challenging his convictions and subsequently brought a habeas corpus petition in federal district court alleging a violation of his Constitutional right to confront adverse witnesses and a violation of due process by the trial court's refusal to instruct the jury on the "likely to be present" element of aggravated burglary. The district court dismissed the petition as to both questions raised, stating that the jury charge appeared correct as a matter of Ohio law. Three months after that dismissal, in another matter, the Ohio Supreme Court held that "present or likely to be present" is an essential element of the offense of aggravated burglary and that failure to instruct the jury on this element would result in a conviction for the lesser included offense of "simple burglary". State v. Wilson, 58 Ohio St.2d 52, 388 N.E.2d 745, appeal dismissed, 444 U.S. 804, 100 S.Ct. 25, 62 L.Ed.2d 17 (1979). Accordingly, while affirming the district court's dismissal of the habeas corpus petition with respect to the confrontation question, this Court remanded the question of failure to instruct on the elements of aggravated burglary to the district court for reconsideration in light of Wilson. 635 F.2d 1183.

On remand the district court recognized that at the time of petitioner's conviction, under Ohio law, aggravated burglary required proof not only of the elements covered by the jury instructions actually given, but also proof that someone either was present or was likely to be present in the dwelling house at the time of the unlawful entry. The district court therefore concluded that the trial court's instruction on aggravated burglary was erroneous in that it omitted the essential element of "present or likely to be present". However, the district court concluded that this error was harmless because the fact that the owner of the dwelling had returned within minutes of the burglar's departure would have prevented a reasonable jury from finding that no person was likely to be present at the time of the crime. The district court again dismissed the petition.

On this appeal, the appellee State of Ohio argues that the district court correctly applied the harmless error doctrine to the question whether the trial court's failure to instruct on an essential element of the crime violated due process. Appellee argues that this Court in Krzeminski v. Perini, 614 F.2d 121, cert. denied, 449 U.S. 866, 101 S.Ct. 199, 66 L.Ed.2d 84 (1980) and again in Hooper v. Perini, 641 F.2d 445 (1981) has established a rule that the only errors in jury instructions in state criminal trials cognizable in federal habeas corpus proceedings are those that may have affected the jury's verdict. The State argues that under this rule it was proper for the district court to examine the record and to determine that if the jury had been instructed on the element of "present or likely to be present", then the jury would have found that element proved beyond a reasonable doubt.

We cannot agree that the harmless error rule was properly applied by the district court in the present case. It is true that the burden on a state prisoner who seeks to collaterally attack erroneous jury instructions by means of a federal habeas corpus petition is a heavy one. As the Supreme Court stated in Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977):

The question in such a collateral proceeding is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process", Cupp v. Naughten, 414 U.S. at 147, 94 S.Ct. at 400, 38 L.Ed.2d 368, not merely whether "the instruction is undesirable, erroneous, or even 'universally condemned,' " id., at 146, 94 S.Ct., at 400.

However, unlike the erroneous instructions of Krzeminski and Hooper, ¹ the error in the present case was the complete and utter failure to inform the jury of an essential element of the crime of which the petitioner was convicted. On the facts of the record before us we must conclude that this failure was a violation of due process.

It is fundamental Constitutional law that no one may be convicted of a crime absent proof beyond a reasonable doubt of every fact necessary to constitute that crime. See, e.g., In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Where a jury sits as the finder of fact in a criminal trial, the court's instructions to the jury concerning the necessary elements of the crime charged are the only means of assuring that the State is put to its burden of establishing every element of the crime. While the stringent test enunciated by the Supreme Court in Henderson may insulate many if not most varieties of erroneous jury instructions in state criminal trials from federal habeas corpus relief, the complete failure to instruct on an essential element of a crime must, in most cases, be an exception. ² An example is this Court's decision in Berrier v. Egeler, 583 F.2d 515 (1978), where a state trial judge's instructions to the jury failed to place the burden of proof of an essential element of a crime on the state. That failure was held to be plain error that so infected the fairness of the trial that it could not be deemed harmless beyond a reasonable doubt. Id. at 522.

Other courts of appeal have reached similar conclusions in cases where federal trial courts failed to instruct juries on the essential elements of various federal crimes. These courts have also gone further and noted that such errors are not made harmless merely because there is overwhelming evidence from which the jury could have found that the government carried its burden had the jury been properly instructed. United States v. King, 521 F.2d 61, 63 (10th Cir. 1975); United States v. Howard, 506 F.2d 1131 (2nd Cir. 1974). See also, Merrill v. United States, 338 F.2d 763 (5th Cir. 1964).

The failure to instruct a jury on an essential element of a crime is error because it deprives the defendant of the right "to have the jury told what crimes he is actually being tried for and what the essential elements of these crimes are." United States v. Natale, 526 F.2d 1160, 1167 (2nd Cir. 1975), citing, United States v. Fields, 466 F.2d 119, 121 (2nd Cir. 1972). This error is not rectified solely because a reviewing court is satisfied after the fact of a conviction that sufficient evidence existed that the jury would or could have found that the state proved the missing element had the jury been properly instructed. As the Second Circuit stated in United States v. Clark, 475 F.2d 240, 248 (1973):

If justice is to be done in accordance with the rule of law, it is of paramount importance that the court's instructions be clear, accurate, complete and comprehensible, particularly...