Hallowell v. Keve, Civ. A. No. 75-339.

• Decision Date: 22 April 1976
• Docket Number: Civ. A. No. 75-339.
• Citation: 412 F. Supp. 681
• Parties: William M. HALLOWELL, Petitioner, v. Paul W. KEVE, Director of the Division of Adult Corrections and the State of Delaware, Respondents.
• Court: U.S. District Court — District of Delaware

412 F. Supp. 681

William M. HALLOWELL, Petitioner, v. Paul W. KEVE, Director of the Division of Adult Corrections and the State of Delaware, Respondents.

Civ. A. No. 75-339.

United States District Court, D. Delaware.

April 22, 1976.

L. Vincent Ramunno, Wilmington, Del., for petitioner.

Francis A. Reardon, Deputy Atty. Gen., and George H. Seitz, III, State Prosecutor, Wilmington, Del., for respondents.

OPINION

STAPLETON, District Judge:

In this habeas corpus proceeding, petitioner attacks his state court conviction for second degree murder. First, he maintains that the trial judge deprived him of his rights to trial by jury and due process of law by refusing to charge the jury regarding involuntary manslaughter. Second, petitioner asserts that the court's charge relieved the State of its constitutional duty under Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) to prove an absence of provocation and passion beyond a reasonable doubt.¹

I. THE EVIDENCE AT TRIAL.

The facts necessary to a resolution of the issues currently before this Court can be briefly stated.

In the late afternoon of Sunday, October 3, 1971, petitioner and his wife returned home from an American Legion Hall where they had spent approximately three hours. An argument developed. Fern Hallowell cursed her husband. He asked her to stop. She cursed him again and he slapped her. She left their mobile home and went next door, approximately five feet away, to the mobile home of her daughter and son-in-law, Carol and Fred Ellingsworth.

Shortly thereafter, petitioner went to the Ellingsworth home in order to get his wife to come home. When he arrived, he found not only the Ellingsworths but also Ronald Charest, Mrs. Hallowell's first husband. Charest told petitioner to leave and said something to the effect that any man who would strike a woman was no man at all. This statement, the fact that his wife was discussing personal problems outside the home, and a belief that Charest was interfering where he had no business doing so, angered petitioner. He returned the few steps to his home and took a knife from a drawer. He testified: "I just wanted to bluff him and back him down." Petitioner soon thought better of the idea, however, and laid the knife down on a room divider inside his trailer. He then went back to the Ellingsworth mobile home to get his wife and wound up challenging Charest to a fight.

From this point on the testimony of the eyewitnesses differed to some degree. Petitioner testified that when he arrived unarmed at the Ellingsworths and offered to fight Charest, Charest approached and kicked him several times. This precipitated blows between the two of them and ultimately the throwing by Charest of two articles of furnishings. The last of these was a stool which missed petitioner when he ducked and broke the storm door glass on the Hallowell trailer. Petitioner's account continued:

And that is when I dashed in and grabbed the knife on the room divider and was going to back him down to pull a bluff. And as I made a swipe, it was not at full arm's length, I just went like that (indicating) so as to make him back down more, or scare him more, and he seemed to take a step forward, with his arms up like this (indicating), and after I realized what happened I just stood there. I wanted to say I was sorry, but I couldn't say nothing.

* * * * * *

Q Let's go back to when you got the knife. What was the purpose of getting the knife in the first place?

A Just to pull a bluff, to scare him. I had no intention of contact whatsoever.

Q What was your primary purpose of going to the house originally?

A I wanted to get my wife to come back.

On cross-examination petitioner specifically acknowledged that he had made a "swipe" with the knife in the direction of Charest when they were only a step apart:

Q I think on direct examination you did say you did swipe the knife towards him, is that right?

A I just went like that (indicating), yes.

Q That was part of the bluff, making a lunge towards the other man with an 8-inch knife?

A I did not lunge.

Q Whatever movement it was?

A That is right.

Q Did he leap onto the knife. Is that how he got stabbed.

A He sort of raised his arm and made a step forward with his right foot.

Q One step. That knife must have been pretty close to him if that one step forward got the knife into him far enough to kill him.

A I had no idea I was that close to him. I had no intention of being that close to him.

In his testimony, petitioner expressly denied being intoxicated and nothing else in the record suggests that petitioner's ability to perceive what was going on was in any way impaired.

Carol and Fred Ellingsworth each testified that there had been no physical contact between petitioner and Charest prior to the time petitioner appeared with a knife and that Charest had thrown nothing until after he had been stabbed.

In this factual setting, the trial judge agreed to charge the jury on voluntary manslaughter, but declined a defense request to charge on involuntary manslaughter.

Petitioner was sentenced to life imprisonment.

II. THE FAILURE TO CHARGE ON INVOLUNTARY MANSLAUGHTER.

On appeal to the Supreme Court of Delaware, petitioner argued that, given his testimony that he had no intention of hurting the victim, the conviction might have been for involuntary manslaughter if the jury had been instructed regarding that crime. Petitioner adds that the trial judge not only erred in failing to give such an instruction but made matters worse by expressly telling the jury that this was not a case of involuntary manslaughter. This advice effectively removed from jury consideration what petitioner maintains was his primary defense — i. e., that he had no subjective intention of killing or injuring Charest.

The Supreme Court of Delaware held that under Delaware law involuntary manslaughter is the unintentional "killing of another without malice while engaged in the doing of an unlawful act, not in itself felonious or tending to do great bodily harm." (emphasis in original) Del., 298 A.2d 330, 332 (1972). Noting that in petitioner's own version of the facts, his intentional "act clearly was one which tended to do great bodily harm," the court held that the trial judge did not err in failing to permit the jury to consider involuntary manslaughter. The court went on to explain that the malice required to convict a defendant of second degree murder is "rebuttably presumed" from an act "which tends to do great bodily harm." Although it could be argued that the possible rebuttal referred to by the court relates to evidence tending to show absence of a subjective intent to kill or seriously injure, it seems clear from the context that the court referred instead to evidence of justification (legal authorization), excuse (self-defense), or mitigation (heat of passion). Thus, the Delaware Supreme Court in petitioner's case interpreted Delaware law as holding that subjective intent to kill or seriously injure is not a necessary element of the crime of second degree murder.²

In the absence of extraordinary circumstances not here present,³ the highest court of a State is the final arbiter of questions regarding the law of its state. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). Since under Delaware law as interpreted by the highest court of the State, the intentional doing of an act tending to do great bodily harm is inconsistent with a finding of involuntary manslaughter, there was no need to charge the jury on that offense. The Constitution does not require a judge to charge on an issue which is not fairly presented by the evidence in the case. Pavkovich v. Brierley, 360 F.Supp. 275 (W.D.Pa.1973), aff'd. 493 F.2d 1401 (3rd Cir. 1974); Kregger v. Bannan, 170 F.Supp. 845 (E.D.Mich.1959), aff'd. 273 F.2d 813 (6th Cir. 1960). It follows that petitioner's conviction must stand unless it can be said that these substantive rules of Delaware law somehow violate substantive due process. Petitioner cites no authority in support of his argument that they do and I perceive no basis for so concluding.⁴

III. MULLANEY v. WILBUR.

Four principal questions are presented for decision:

1. Should this Court decline to entertain the Mullaney-based challenge because petitioner has not squarely presented that issue to the Supreme Court of Delaware?

2. Should the Mullaney decision be applied retroactively to petitioner's case?

3. If applicable, does Mullaney dictate that petitioner's conviction is constitutionally infirm?

4. Assuming Mullaney is applicable and renders petitioner's conviction infirm, what remedy should be afforded petitioner?

Because of the conclusions which I reach, I need address only the first and third of these questions.

A. Exhaustion Of State Remedies.

Respondent suggests, at the outset, that this Court should decline to consider petitioner's attack based on Mullaney v. Wilbur because the Supreme Court of Delaware concededly has not considered the applicability of the rule of that case in the specific context of petitioner's case.

Time and time again this Court has held that considerations of comity require dismissal of habeas corpus petitions when the petitioner has failed to avail himself of his state remedies. The exhaustion doctrine, however, precludes federal review only when a petitioner's state remedy is both "adequate and available". 28 U.S.C. § 2254; Preiser v. Rodriguez, 411 U.S. 475, 493, 93 S.Ct. 1827, 1838, 36 L.Ed.2d 439, 452 (1973). Accordingly, where it is clear from existing decisions of a State Supreme Court that pursuit of a state remedy would be futile, exhaustion is not required. Mott v. Dail, 337 F.Supp. 731 (E.D.N.C.1972).

In Fuentes v. State, Del., 349 A.2d 1 (1975), the Supreme Court of Delaware held that the Mullaney case rendered unconstitutional a Delaware statute relating to homicide under "extreme emotional distress",⁵ but expressly declined to apply ...