Hardaway v. Withrow
| Decision Date | 30 September 2002 |
| Docket Number | No. 01-1506.,No. 01-1456.,01-1456.,01-1506. |
| Citation | 305 F.3d 558 |
| Parties | Dion HARDAWAY, Petitioner-Appellee/Cross-Appellant, v. Pamela WITHROW, Respondent-Appellant/Cross-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Sanford Plotkin (briefed), Farmington Hills, MI, for Petitioner-Appellee/Cross-Appellant.
Carolyn M. Breen (briefed), Special Asst. Atty. Gen., Wayne County Prosecutor's Office, Detroit, MI, for Respondent-Appellant/Cross-Appellee.
Before NELSON, BOGGS, and NORRIS, Circuit Judges.
This is a habeas corpus case brought by a man convicted in a Michigan court of second degree murder. The petitioner sought federal habeas relief on a variety of grounds, only two of which are of concern to us here. Both of the pertinent claims involve the state trial court's jury instructions.
The first claim turns on whether the trial court did or did not furnish the jury a supplemental instruction on involuntary manslaughter, as opposed to voluntary manslaughter, after the jury asked for copies of the original instructions dealing with second degree murder and voluntary manslaughter. The state appellate court to which the conviction was appealed recognized that it would have been error to give an instruction on involuntary manslaughter, but found that no such instruction had in fact been given.
Rejecting the state court's finding, the federal district court granted habeas relief on the strength of a presumption as to the accuracy of a transcript which indicated that the state trial judge told counsel that he had sent the jury a copy of an "involuntary" manslaughter instruction. As to the petitioner's second claim, which involves an omission (not objected to at trial) in the instruction on second degree murder, the district court denied relief.1 The present appeal and cross-appeal followed.
We shall affirm the judgment of the district court insofar as habeas relief was denied. The granting of a writ of habeas corpus on the first claim was patently erroneous, however, and we shall reverse the grant of the writ.
The petitioner, Dion Hardaway, shot and killed a man named Mario Lenzy in the course of an aborted drug transaction. Mr. Hardaway was tried in the Detroit Recorder's Court on charges that included first degree murder and possession of a firearm in the commission of a felony. Hardaway testified at trial that he had shot Lenzy in self defense. At most, defense counsel argued, Hardaway was guilty of voluntary manslaughter. The prosecution's theory was that Hardaway had killed Lenzy by design-and had intended to kill two other drug buyers as well-in order to facilitate a robbery.
After both sides had rested their cases, the trial judge delivered a jury charge that included instructions on first degree murder and the lesser included offenses of second degree murder and voluntary manslaughter. The transcript of the charge conference that preceded delivery of the instructions shows that the voluntary manslaughter charge was the subject of considerable attention.
Discussion of this charge began when the judge mentioned that he was adding an instruction on "manslaughter," among other things. The following colloquy ensued:
At this point, according to the transcript, the prosecutor presented an argument against the giving of any voluntary manslaughter charge. Counsel for the defendant made a counter argument, contending that such a charge was essential. The court sided with the defendant, referring to a discussion of "imperfect self-defense" in the commentary on the standard form jury instructions and stating that "I think we really need to give voluntary manslaughter based on that."
The verdict form furnished to the jury was consistent with the foregoing discussion. The form gave the jury four options for a verdict with respect to the homicide charge: (1) not guilty, (2) guilty of first degree premeditated murder, (3) guilty of second degree murder, and (4) guilty of voluntary manslaughter.
After the full charge (including the charge on voluntary manslaughter) had been read to the jury and deliberations had commenced, the foreman, whose name was Fred Davis, sent the court a note that resulted in the jury's being brought back to the courtroom. What occurred next is reflected in the transcript as follows:
All right. Does that answer the question, Mr. Davis?
After the jury left the courtroom, defense counsel told the court that one of the jurors had asked to have the manslaughter instruction repeated as well. The prosecutor confirmed the accuracy of this report: "The juror in Seat No. 5 was whispering to the foreperson and asking for the manslaughter instruction, so obviously at least one of them felt like they wanted to listen to that instruction again." The prosecutor and defense counsel agreed that the voluntary manslaughter charge should be repeated, although the prosecutor asked that the first degree murder charge be repeated too.
The trial judge finessed the prosecutor's request by saying that he would wait to see if the jury asked for it:
The court then took a recess, after which the transcript is a blank until the case was called the next day. At that point, after the lawyers identified themselves, the judge noted further jury communications as follows:
2
The phrase "2nd Degree Involuntary Manslaughter" makes no sense, of course. But in the context we have described, it would have made perfect sense for the judge to say "2nd Degree [Murder] and Voluntary Manslaughter." (On some tongues, if not most, the words "and voluntary" are hard to distinguish from "involuntary.") Given the text of the jury's note, as quoted in footnote 2, the logical inference is that if the judge did not mispeak, he was indicating he had sent the jury copies of both the second degree murder instruction and the voluntary manslaughter instruction. That would explain his use of the plural pronoun when he said he had sent "those" in to the jury.
The Michigan Court of Appeals, to which the petitioner appealed his second degree murder conviction, had no difficulty in drawing the logical conclusion. Rejecting an argument to the effect that the trial court erroneously provided an involuntary manslaughter instruction when the jury requested clarification of the crime of voluntary manslaughter, the Court of Appeals said this:
In December of 1998, following the affirmance of his conviction and after the denial of further review by the Michigan Supreme Court, Mr. Hardaway filed his habeas corpus petition in the United States District Court for the Eastern District of Michigan. One of the claims advanced in his petition was couched in these terms:
"PETITIONER WAS DENIED HIS RIGHT TO DUE PROCESS OF LAW WHEN THE TRIAL JUDGE ERRONEOUSLY GAVE AN INVOLUNTARY MANSLAUGHTER INSTRUCTION INSTEAD OF THE APPLICABLE VOLUNTARY MANSLAUGHTER INSTRUCTION WHEN THE JURY ASKED FOR CLARIFICATION ON THE LAW OF MANSLAUGHTER."
The district court granted relief with respect to this claim. In so doing the...
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