Hodge v. Com., No. 751187

• Docket Nº: No. 751187
• Citation: 217 Va. 338, 228 S.E.2d 692
• Case Date: October 08, 1976
• Court: Supreme Court of Virginia

Page 692

228 S.E.2d 692 217 Va. 338 James Butner HODGE
v.
COMMONWEALTH of Virginia. Record No. 751187. Supreme Court of Virginia. Oct. 8, 1976.

Page 693

[217 Va. 339] Robert P. Geary, Highland Springs, for plaintiff in error.

James E. Kulp, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

[217 Va. 338] Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

[217 Va. 339] CARRICO, Justice.

In this homicide case, we consider the impact upon Virginia law of the recent decision of the United States Supreme Court in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). There, the Court declared violative of due process a provision of Maine law which had been embodied in the charge to the jury in the murder trial of the accused, Wilbur. The Maine law in question provided that, upon proof by the prosecution of an unlawful and intentional homicide, malice aforethought sufficient to support a conviction of murder and imprisonment for life was Conclusively implied; to reduce the offense to manslaughter, the accused had the burden of proving by a Fair preponderance of the evidence that he acted in the heat of passion upon sudden provocation.

The Maine law was unconstitutional, the Supreme Court stated, because it 'affirmatively shifted the burden of proof to the defendant' upon 'the critical fact in dispute'--the presence or absence of malice--

Page 694

thus increasing 'the likelihood of an erroneous murder conviction.' 421 U.S. at 701, 95 S.Ct. at 1890. With this burden of proof upon him, the Court opined, an accused 'can be given a life sentence when the evidence indicates that it is As likely as not that he deserves a significantly lesser sentence.' 421 U.S. at 703, 95 S.Ct. at 1892. Such a result was 'intolerable,' the Court concluded, and dictated the holding that 'the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case.' 421 U.S. at 703, 704, 95 S.Ct. at 1892.

[217 Va. 340] In the present case, the defendant, James Butner Hodge, was convicted by jury of second degree murder in the shooting death of Janet Terry Venable, and he was sentenced in accordance with the verdict to a term of ten years in the penitentiary. The record shows that, at the time of the killing, the defendant and Venable had been living together 'off and on' for approximately three and one-half years. On March 26, 1975, the couple spent the evening drinking in various bars and at a friend's home. During the evening, an argument erupted between the defendant and Venable, and the argument continued after they returned to their apartment. Approximately 3:30 a.m. on the 27th, Venable was shot and killed by a blast from the defendant's shotgun, fired at a range of three to ten feet, the charge striking her in the face. Evidence at trial revealed prior threats by the defendant against Venable.

Testifying in his own behalf, the defendant claimed that, during the course of the argument, Venable threw a clock at him and then obtained the shotgun from a corner of their bedroom. He said Venable pointed the gun at him while he was lying in bed, and that when he 'kicked up the cover and grabbed the shotgun,' the weapon discharged, inflicting the fatal wound. He was unable to explain how the gun got 'turned all the way around to shoot (Venable) in the left cheek.'

The trial court instructed the jury that it could find the defendant guilty of murder of the first or second degree or voluntary or involuntary manslaughter, or that it could return a verdict of not guilty. Each of the degrees of homicide was correctly defined, and the instructions made clear that the presence or absence of malice was the factor differentiating murder from manslaughter. Also made clear was the proposition that if the killing resulted from heat of passion upon sudden provocation, the jury could not convict the defendant of an offense greater than manslaughter.

The defendant contends, however, that an instruction of the trial court, No. 17, Infra, embodying the law of Virginia, had the effect of shifting from the Commonwealth the burden of proof on the issue of malice and imposing upon him the affirmative burden of proving that he acted in the heat of passion upon sudden provocation. Virginia law, the defendnat says, presumes [217 Va. 341] that every unlawful homicide is murder of the second degree because malice is presumed from the fact of the killing. The substantive burden of reducing the grade of the offense, the defendant asserts, then is cast upon the accused, and he must disprove malice or suffer conviction of murder. This, the defendant concludes, 'does not meet due process of law standards' for the same reasons the Supreme Court struck down the Maine law and jury charge in Mullaney.

We agree with the defendant that, in Virginia, every unlawful homicide is presumed to be murder of the second degree. We also agree that once the Commonwealth proves an unlawful homicide and establishes the accused as the criminal agent, the presumption of second degree murder arises and he has the burden of showing circumstances of justification, excuse, or alleviation. And we acknowledge that Virginia juries usually are instructed upon the presumption of murder of the second degree arising from an unlawful killing. But we do not agree that Virginia's law and jury instructions suffer the infirmities of the

Page 695

Maine law and jury charge condemned in Mullaney.

Unquestionably, Mullaney and its forebear, In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), stand for the proposition that the Due Process Clause requires the prosecution to 'prove beyond a reasonable doubt every fact necessary to constitute the crime charged.' 421 U.S. at 685, 95 S.Ct. at 1882. Mullaney holds further that in a homicide case the absence of heat of passion is a critical fact required to be so proved by the prosecution when the issue is properly presented. 421 U.S. at 704, 95 S.Ct. 1881. It is clear also that any rule of state law which has the ultimate effect of shifting the burden of persuasion to the accused upon this critical issue is constitutionally infirm. 421 U.S. at 701, 95 S.Ct. 1881.

But neither the Due Process Clause nor Mullaney prohibits the use of presumptions or inferences as procedural devices to shift to the accused the burden of producing some evidence contesting the otherwise presumed or inferred fact. These devices, however, must satisfy certain due process requirements, and the ultimate burden of proof beyond a reasonable doubt must remain upon the prosecution. Mullaney, 421 U.S. at 702--03,...