Houston v. Dutton

• Decision Date: 28 March 1995
• Docket Number: No. 94-6064,94-6064
• Citation: 50 F.3d 381
• Parties: Richard HOUSTON, Petitioner-Appellee, v. Michael DUTTON, Warden, Tennessee State Penitentiary, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 381

50 F.3d 381

Richard HOUSTON, Petitioner-Appellee, v. Michael DUTTON, Warden, Tennessee State Penitentiary Respondent-Appellant.

No. 94-6064.

United States Court of Appeals Sixth Circuit.

Argued Feb. 1, 1995.

Decided March 28, 1995.

Henry A. Martin, Fed. Public Defender, Federal Public Defender's Office, Nashville, TN, James S. Liebman (argued and briefed), Columbia University School of Law, New York City, and Mark E. Olive, Tallahassee, FL, for petitioner-appellee.

Gordon W. Smith (briefed), Kathy Morante, Asst. Attys. Gen., Charles W. Burson, Atty. Gen., Glenn R. Pruden, Michael Moore (argued and briefed), and Brent Horst (briefed), Office of the Atty. Gen., Nashville, TN, for respondent-appellant.

Before: MERRITT, Chief Judge; GUY and RYAN, Circuit Judges.

MERRITT, Chief Judge.

In this Tennessee death penalty case, the District Court issued a writ of habeas corpus in favor of petitioner Houston, finding seven separate constitutional grounds for setting aside Houston's first degree murder conviction, death sentence, and armed robbery conviction. We uphold the writ on two of the grounds, disagree with the District Court on one of the grounds, pretermit the State's remaining four assignments of error, and reinstate the armed robbery conviction.

The State concedes that the trial court in Knoxville erred in two respects relating to the constitutional requirements of first degree capital murder but claims that the errors were harmless. First, by instructing the jury that it should "presume malice" (a key element of first degree murder) from the killing itself and the use of a gun--neither of which was disputed--the state trial court violated the rule of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) (presumptions that shift burden from State to defendant in criminal proceeding unconstitutional); Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985) (mandatory rebuttable presumption of malice instruction unconstitutional because it shifts burden from State to defendant); and Yates v. Evatt, 500 U.S. 391, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991) (courts not to assume such mandatory rebuttable presumptions are harmless error). Second, by instructing the jury at the sentencing hearing that it should impose the death penalty if it should find the crime to be "heinous, atrocious or cruel" (and not outweighed by any mitigating circumstance), the state trial court violated another line of cases holding that such an instruction is too vague and uninformative to properly guide the jury in reaching a death verdict. Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) (Oklahoma's "heinous, atrocious or cruel" aggravating circumstance too vague to constitutionally channel jury's discretion to impose death penalty); Richmond v. Lewis, --- U.S. ----, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992) (unconstitutional "heinous, atrocious or cruel" aggravator taints sentencing process and requires remand to state court for resentencing).

These two constitutionally invalid instructions require the habeas corpus remedy as ordered by the District Court for the reasons outlined below. The District Court erred, however, in its finding that the evidence of first degree murder offered by the State was insufficient under the Due Process Clause to justify a rational jury in making such a finding. We will discuss the sufficiency of the evidence point first and then the two erroneous instructions before concluding with a section holding that the District Court erred in setting aside the armed robbery conviction.

I. THE SUFFICIENCY OF THE EVIDENCE UNDER JACKSON v. VIRGINIA

As one of the grounds in support of granting Houston's habeas petition, the District Court found insufficient evidence of premeditation and deliberation to sustain a finding of first-degree murder under Tennessee law. Where the sufficiency of the evidence is challenged, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

The evidence is strong, indeed practically undisputed, that Houston, during the course of a robbery, killed the owner of a Knoxville gas station in the bathroom at the rear of the gas station. Houston's sole defense at trial was that the killing was an accident that occurred during the course of a struggle over the gun used in the robbery. Although it is possible that the killing could have occurred as the defendant stated in his confession, the circumstantial evidence supports an inference of premeditation and deliberation.

The evidence supports the following propositions of fact. Houston approached Stanley Balsinger's Gulf station in Knoxville with a loaded .38 caliber revolver. That weapon killed Balsinger, an unarmed victim. Each of the victim's three wounds hit areas of the body likely to produce death--the face, the heart, and the vital organs of the mid-section. Although there is conflicting testimony in the record regarding the existence of powder burns on the mouth wound, the state's pathologist said that there were no such burns on the mouth. This supports an inference that the mouth wound was inflicted first, from a distance. The evidence indicates that the face wound was not fatal, but would certainly have incapacitated Balsinger, rendering him helpless. The powder burns around the two other wounds to the heart and mid-section indicate that the shots were fired at point-blank range. In contrast to Houston's testimony that he ran away from the shooting after an extended struggle, Kenneth Hill, a witness who did not see or hear the shots, testified that he watched Houston walk calmly away from the area of the service station restroom back to his car. The defendant's calm demeanor after the shooting can be inferred from the testimony that he went back to his hotel room, deliberately reloaded his gun, had three beers, took a shower, attempted to destroy the evidence of the crime by washing away the victim's blood from his stained clothing, asked his girlfriend for sex, and then went out for dinner, driving by the murder scene on his way to Kentucky Fried Chicken to see whether there was any police activity. When viewed as a whole, the defendant's activities after the murder further support an inference that he premeditated and deliberated about killing Stanley Balsinger after robbing him. They allow the jury to reject the defendant's theory that this was a spur of the moment robbery which ended in an extended, deadly struggle over a gun.

Under Jackson, the entire record is to be reviewed and all reasonable inferences must be drawn in favor of the State. From these circumstances, a rational fact finder could have inferred beyond a reasonable doubt that Houston, notwithstanding testimony that the gun accidentally went off in a scuffle, thought about killing Balsinger in advance and did in fact do so after robbing him. Under the standards accepted in Tennessee in 1980, Houston had sufficient time to premeditate and deliberate about the killing of Stanley Balsinger. The evidence, viewed in the light most favorable to the State, is sufficient to allow a rational jury to find that Houston deliberately and premeditatedly killed Stanley Balsinger in order to eliminate the only eyewitness to his crime and to prevent his own arrest.

In Houston v. State, 593 S.W.2d 267 (Tenn.), cert. denied, 449 U.S. 891, 101 S.Ct. 251, 66 L.Ed.2d 117 (1980), the original state opinion in the direct appeal of this case, the majority affirmed Houston's conviction for first degree murder, finding explicitly that premeditation and deliberation could be inferred from the circumstances of the murder, including the evidence of multiple gunshot wounds. In State v. Brown, however, the Tennessee Supreme Court held that evidence of repeated blows was no longer sufficient evidence alone from which to infer premeditation. The Brown Court explained that repeated blows "can be delivered in the heat of passion, with no design or reflection." 836 S.W.2d 530, 542 (Tenn.1992). This holding is unsurprising because it is a rare killing where the only circumstantial evidence available is multiple gunshots. In Bass v. State, the Tennessee Supreme Court said:

While willful killing with a deadly weapon is not a sufficient basis for an inference of premeditation and deliberation, it is seldom that the evidence in a case of homicide is restricted to no more than these bare facts and it is commonly the case that the jurors have before them other circumstances from which they may infer the existence or the want of mental elements of premeditation and deliberation.

191 Tenn. 259, 231 S.W.2d 707, 711 (1950).

Citing Brown, the District Court held that under Tennessee law the mere fact that the victim had multiple gunshot wounds is an insufficient basis from which a jury may infer premeditation and deliberation. The District Court concluded that "[t]he State's evidence fell short as a matter of law of the constitutional minimum needed to convince a rational juror beyond a reasonable doubt that the killing was premeditated and deliberate." See Memorandum of Federal District Court, Joint Appendix at 1184. The District Court's holding, based on the constitutional insufficiency of the evidence at Houston's trial, if upheld, would mean that under normal circumstances a retrial of Houston for murder would be barred by the double jeopardy clause of the Fifth Amendment ("nor shall any person be subject for the same offence be twice put in jeopardy of life or limb".).

Brown, however, should not be applied this way in this federal habeas appeal. Although Brown discussed the precedent set in Houston, it did not overturn his conviction. It overruled Houston only "to the extent that the...