Hooper v. Perini

• Decision Date: 01 April 1981
• Docket Number: No. 79-3167,79-3167
• Citation: 641 F.2d 445
• Parties: Walter HOOPER, Petitioner-Appellant, v. E. P. PERINI, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 445

641 F.2d 445

Walter HOOPER, Petitioner-Appellant, v. E. P. PERINI, Respondent-Appellee.

No. 79-3167.

United States Court of Appeals Sixth Circuit.

Argued Oct. 3, 1979.

Decided Feb. 17, 1981.

Rehearing Denied April 1, 1981.

Walter Hooper, pro se.

Paul Mancino, Jr., Cleveland, Ohio (Court-Appointed CJA), for petitioner-appellant.

William J. Brown, Atty. Gen. of Ohio, Simon B. Karas and Richard David Drake, Asst. Attys. Gen., Columbus, Ohio, for respondent-appellee.

Before EDWARDS, Chief Judge, and CECIL and CELEBREZZE, Senior Circuit Judges.

EDWARDS, Chief Judge.

This is an appeal from the judgment of a district court in the Northern District of Ohio which denied petitioner Hooper's application for habeas corpus relief under 28 U.S.C. § 2254. Petitioner's claim ¹ is that the state trial judge, in the course of his charge to the jury, committed constitutional error by placing on the defendant the burden of proving by a preponderance of the evidence the defense of self-defense.

The jury in this case returned a verdict of guilty of second degree murder under Ohio Revised Code § 2901.05. This statute in 1973 ² defined second degree murder as purposeful and malicious killing. Since proof of self-defense would clearly negate the malice element, petitioner claims that he has had to carry the burden of proof on an essential element of the offense which should be required of the state.

The District Court cited United States Supreme Court cases including In re Winship, 396 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); and Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). The court appeared to rely primarily on the Patterson case. In Patterson, the Supreme Court upheld the State of New York in placing the burden of an affirmative defense, "extreme emotional disturbance," upon the defendant. The facts in this case would indeed provide appellant a jury issue on the extreme emotional disturbance defense of the Patterson case except for the fact that Ohio law affords no such defense to a second degree murder charge.

The facts in this case show that petitioner is not entitled to the writ and that the District Judge should be affirmed. After a bar brawl on December 22, 1973 between one Salmon and Hooper which had something to do with both whiskey and a bar dancer, the fight was renewed outside the bar. By all accounts, including Hooper's own statement made on the scene to a police officer, Hooper won the fight. The overwhelming evidence showed that Hooper knocked Salmon out, gained possession of Salmon's gun and while Salmon was lying on the ground, shot him through the heart at point blank range. Assuming that the burden of proof instruction was constitutional error, it would be harmless beyond reasonable doubt on these facts. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In addition, in this case there is no showing of "prejudice" as defined by the Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). In Wainwright the Supreme Court dealt with the "prejudice" issue in language which is directly applicable here:

"The other evidence of guilt presented at trial, moreover, was substantial to a degree that would negate any possibility of actual prejudice resulting to the respondent from the admission of his inculpatory statement." Id. at 91, 97 S.Ct. at 2508.

The judgment of the District Court is affirmed.

CELEBREZZE, Senior Circuit Judge, concurring.

Petitioner Hooper did not object at trial to the jury instructions allocating to him the burden of proving the affirmative defense of self-defense by a preponderance of the evidence. Since he failed to comply with Rule 30 of the Ohio Rules of Criminal Procedure which requires a contemporaneous objection in order to preserve the issue for appeal, his threshold task is to satisfy the "cause" and "prejudice" standards of Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977). See Hockenbury v. Sowders, 620 F.2d 111 (6th Cir. 1980). The en banc decision of this court in Isaac v. Engle, 646 F.2d 1122 (6th Cir. 1980) holds that, in situations such as this, the absence of any colorable reason for raising an objection will constitute "cause", and "prejudice" is presumed when the burden of proof is shifted to the defendant when he has produced sufficient evidence to raise the defense of self-defense. As the majority notes, the evidence adduced by Hooper to corroborate his claim of self-defense was grossly inadequate. That failure to present sufficient evidence on the issue of self-defense precludes consideration of petitioner's claim.

Even if Hooper were able to satisfy the Wainwright criteria, the substance of his due process claim is without merit. Petitioner claims that it was a denial of due process for the state to compel him to prove...