Hallowell v. Keve

• Decision Date: 22 April 1977
• Docket Number: No. 76-1721,76-1721
• Parties: William M. HALLOWELL, Appellant, v. Paul W. KEVE, Director of the Division of Adult Corrections and the State of Delaware, Appellees.
• Court: U.S. Court of Appeals — Third Circuit

Page 103

555 F.2d 103

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

No. 76-1721.

United States Court of Appeals, Third Circuit.

Argued Jan. 13, 1977.

Decided April 22, 1977.

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

Francis A. Reardon, Deputy Atty. Gen., Wilmington, Del., for appellees.

Before ROSENN and HUNTER, Circuit Judges, and COOLAHAN, Senior District Judge. ^*

OPINION OF THE COURT

COOLAHAN, Senior District Judge.

William M. Hallowell was convicted of second-degree murder in Delaware Superior Court on January 18, 1972. On appeal, the Delaware Supreme Court affirmed his conviction. Hallowell v. State, 298 A.2d 330 (1972). Hallowell subsequently filed a petition pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus in the United States District Court for the District of Delaware. Judge Stapleton denied his petition. Hallowell v. Keve, 412 F.Supp. 681 (D.Del.1976).

Appellant now advances two grounds for appeal from the denial of his petition for habeas corpus. ¹ First, he argues that the District Court erred when it found that the Delaware State trial court did not deny him his rights to a jury trial, presumption of innocence, and due process by refusing to charge the jury on involuntary manslaughter. Second, he claims that the District Court should have found that the trial court's charge relieved the State of its duty under the Constitution as interpreted in 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. For the reasons stated below, we affirm.

The facts of the case are simple and not substantially in dispute. ² On the evening of October 3, 1971, appellant and his wife Fern, returned from an American Legion Hall meeting to their mobile home located in a trailer park. An altercation developed between them. Appellant struck his wife, who ran from the trailer crying. She went next door, about five feet away, to the trailer belonging to her daughter, Carol, and her son-in-law, Fred Ellingsworth. At that time Ronald Charest, Fern Hallowell's first husband, was present in his daughter Carol's trailer.

Appellant, desiring his wife to return home, followed her to the Ellingsworth trailer, swearing profusely as he entered. Carol asked appellant to leave. Charest met appellant at the door declaring that "any man who would strike a woman was no man at all." This statement, together with the thought that Charest and the Ellingsworths were interfering in his personal affairs, angered appellant. He left the Ellingsworth trailer and returned to his trailer, where he took an 8-inch knife from a kitchen drawer intending to return to the Ellingsworth trailer. Appellant testified that he planned to use the knife to "pull a bluff" on Charest. However, upon reflection, he decided not to take the knife with him, and placed it on a divider between the living room and dining area of his trailer.

Hallowell, still angry, returned to the Ellingsworth home intending to challenge Charest to a fight. He entered and found Charest seated on a couch, whereupon he challenged Charest to a fight. He stated that Charest began kicking him, and that they exchanged "blows." He added that Charest threw two objects at him. One, which he could not identify, hit him on the tip of his thumb. The other was a child's stool. When the stool was thrown, it missed appellant but hit the front door of his own trailer, shattering the glass pane. It is not totally clear from the record, but it seems that appellant and Charest had moved outside the trailer at this point. Hallowell returned to his trailer and picked up the 8-inch knife from the divider. He testified that he did not fear that Charest would follow him back to his trailer.

The Ellingsworths testified that Charest never kicked, punched, or threw anything, or otherwise touched appellant before he came back with the knife.

Appellant stated that after he snatched the knife, he started back to the Ellingsworth trailer to scare Charest, and "pull a bluff" on him. It appears that appellant met Charest outside between the two trailers. Hallowell said he had no intention of making contact with the knife, but admitted on cross-examination that he knew the knife was a dangerous instrument.

Hallowell described the stabbing in this fashion:

"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." (Appellant's appendix 33)

On cross-examination appellant repeated that he took a swipe at the victim when they were very close together. The prosecutor said:

"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." (Appellant's appendix 46)

The prosecutor asked him why he wanted to back the victim down in the victim's own daughter's house.

"Q. Back him down in his own daughter's house?

A. Well, just make him go off to the side, because I didn't want to fight any more.

Q. If you didn't want to fight any more, Mr. Hallowell, why didn't you go back in your trailer and shut the door?

A. I don't know, sir." (Appendix 45-46)

Charest later died from the stab wound.

After appellant stabbed Charest, he apparently reentered the Ellingsworth trailer. Fred Ellingsworth ordered him out at gun point. Hallowell returned to his trailer, washed the blood off the knife, called his attorney, and awaited the arrival of the police. He testified that he had been drinking earlier at the American Legion Hall, but denied being intoxicated. The District Court found that there was nothing in the record to indicate that he was unable to perceive events or otherwise failed to understand the nature of his acts.

The jury returned a verdict of second-degree murder, and the judge sentenced Hallowell to life imprisonment.

Hallowell appealed his conviction to the Delaware Supreme Court, which rejected his claim that the trial court's refusal to charge the jury on involuntary manslaughter was error. Normally jury instructions in State trials are matters of State law. United States ex rel. Stanbridge v. Zelker, 514 F.2d 45, 50 (2d Cir. 1975), cert. denied, 423 U.S. 872, 96 S.Ct. 138, 46 L.Ed.2d 102 (1975). However, they are reviewable by a federal court on collateral attack where the instruction violates specific federal constitutional standards imposed on the States through the due process clause of the Fourteenth Amendment. Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). On collateral attack, the District Court found no constitutional infirmity in the trial judge's refusal to charge as requested. Appellant alleges that the District Court erred in this finding.

Appellant states that his primary defense at trial was his lack of subjective intent to kill Charest. He testified that he never intended to touch the victim with the knife. He merely intended to back the victim down, scare him, and "pull a bluff" on him. He claims that he never lunged with the knife. Hallowell's position is that this testimony was sufficient to warrant a charge of involuntary manslaughter. The trial judge not only refused to charge the jury as appellant requested, but he specifically instructed the jury that they were not to consider involuntary manslaughter. Appellant argues that this instruction essentially eliminated his primary defense and, consequently, deprived him of his presumption of innocence, his right to a jury trial, and his right to due process of law.

The Delaware Supreme Court found, as a matter of State law, that 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." Hallowell v. State, supra, 298 A.2d at 332. ³ Appellant's own testimony demonstrates that he was engaged in an unlawful act, i. e., taking a "swipe" at the victim with a knife, in itself tending to great bodily harm. ⁴ Hallowell testified that when he went to the Ellingsworth trailer the second time, he intended to challenge the victim to a fight and not merely to retrieve his wife. He stated that when he ran away from the fight, he was not afraid of being pursued. Once safely back in his own trailer, he decided to return to the Ellingsworth trailer "to back (the victim) down" with the knife, which he testified he knew was a dangerous weapon. He admitted taking a "swipe" with the knife at the victim, though he said he did not realize that he was close to him at the time.

Even if the jury were to have believed that Hallowell lacked the intent to kill Charest, his own testimony would not support, under Delaware law as interpreted by its highest court, a finding of involuntary manslaughter. The District Court correctly noted that only where a State court's interpretation of its own law appears to be an "obvious subterfuge to evade consideration of a federal issue," Radio Station WOW, Inc. v. Johnson, 326 U.S. 120, 129, 65 S.Ct. 1475, 1480, 89 L.Ed. 2092 (1945); see also, Ward v. Love County, 253 U.S. 17, 40 S.Ct. 419, 64 L.Ed. 751 (1920); Terre Haute & I. R. Co. v. Indiana ex rel. Ketcham, 194 U.S. 579, 24 S.Ct. 767, 48 L.Ed. 1124 (1904), will a federal court re-examine the State court's determination. Here there has been no such evasion; therefore, this Court is bound by the Delaware Supreme Court's interpretation of Delaware law. Mullaney v. Wilbur,supra, 421 U.S. at 691, 95 S.Ct. 1881; Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948); Murdock v. City of Memphis...