Isaac v. Engle

• Decision Date: 08 February 1980
• Docket Number: No. 78-3488,78-3488
• Citation: 646 F.2d 1122
• Parties: Lincoln ISAAC, Petitioner-Appellant, v. Ted ENGLE, Superintendent Chilicothe Correctional Institute, Respondent- Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1122

646 F.2d 1122

Lincoln ISAAC, Petitioner-Appellant, v. Ted ENGLE, Superintendent Chilicothe Correctional Institute Respondent- Appellee.

No. 78-3488.

United States Court of Appeals Sixth Circuit.

Argued Feb. 22, 1979.

Decided Feb. 8, 1980.

Jay F. McKirahan, Columbus, Ohio, Lincoln Isaac, pro se, James R. Kingsley, Circleville, Ohio, for petitioner-appellant.

William J. Brown, Atty. Gen. of Ohio, Simon B. Karas, Asst. Atty. Gen., (Div. of Criminal Activities) Columbus, Ohio, for respondent-appellee.

Before CELEBREZZE, Circuit Judge, and PHILLIPS and PECK, Senior Circuit Judges.

JOHN W. PECK, Senior Circuit Judge.

The principal issue in this appeal is whether the Due Process Clause limits the selective denial of retroactive benefits of a new statutory interpretation, where denial is based upon failure to comply with a State's contemporaneous objection rule.

In 1975, petitioner Lincoln Isaac was convicted by an Ohio jury of one count of aggravated assault. At his trial, appellant relied on Ohio's affirmative defense of self-defense. The trial court instructed the jury that defendant bore the burden of proving his affirmative defense by a preponderance of the evidence. ¹ This charge accorded with the prevailing law in Ohio, and petitioner made no objection. Subsequently, the Supreme Court of Ohio held that the Ohio legislature had changed the burden of proof for all affirmative defenses in Ohio, including self-defense. Interpreting Ohio Revised Code § 2901.05(A), ² enacted in 1974 (but amended in 1978; see pp. 1127-1128 infra), the court held that when a defendant pleads the affirmative defense of self-defense, he has only the burden of going forward with evidence sufficient to raise the defense, and does not have the burden of establishing the defense by a preponderance of the evidence. State v. Robinson, 47 Ohio St.2d 103, 351 N.E.2d 88 (1976).

In the Ohio court of appeals, petitioner argued that the trial court's jury instruction was erroneous, citing Robinson. That court of appeals affirmed Isaac's conviction, holding that his failure to object at trial waived any error in the jury instructions. An appeal to the Ohio Supreme Court was dismissed sua sponte for want of a substantial constitutional question. State v. Isaac No. 77-412 (Ohio Sup.Ct., July 20, 1977). On the same day that petitioner's appeal was dismissed, however, the Ohio Supreme Court, in another case, held its Robinson decision to be applicable retroactively to all criminal trials held after the effective date of the statute. State v. Humphries, 51 Ohio St.2d 95, 364 N.E.2d 1354 (1977). However, despite that holding, the Court refused to extend the benefits of retroactivity to Humphries because of his failure to object to the erroneous jury charge at trial. Id. at 102, 364 N.E.2d 1354.

After exhausting his state court remedies, Isaac turned to the federal courts for relief, filing a petition for a writ of habeas corpus, asserting that he was entitled to the retroactive application of State v. Robinson, supra, as a matter of federal constitutional law. The district court dismissed the petition on the grounds that appellant had shown neither cause for his failure to object to the jury instructions nor prejudice as a result of the faulty charge. This appeal followed.

As a preliminary matter, we note that the Constitution does not ordinarily require the retroactive application of a new interpretation of a statute. See, e. g., Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969). On the other hand, where the statute pertains to an affirmative defense and the statute is construed to make the absence of the affirmative defense an element of proof of the crime itself a different result is mandated. In such a case, the constitutional doctrine announced in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), requiring the prosecution to prove every element of a crime beyond a reasonable doubt, has application. Berrier v. Egeler, 583 F.2d 515 (6th Cir.), cert. denied, 439 U.S. 955, 99 S.Ct. 354, 58 L.Ed.2d 347 (1978), and the Due Process Clause requires that the new interpretation be applied retroactively. Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977). In State v. Humphries, supra, the Ohio Supreme Court decided to apply State v. Robinson, supra, retroactively as a matter of state law. ³ Accordingly, we need not grapple with the question of whether Ohio was obligated to do so as a matter of due process.

In our view, the single issue in this appeal is whether the decision of the Supreme Court of Ohio to withhold from petitioner the benefits of § 2901.05(A), as established in State v. Robinson, for failure to comply with Ohio's contemporaneous objection rule was a deprivation of due process.

The decision to apply a new rule retroactively or prospectively is essentially one of policy, and is thus a determination to be made by appropriate state action. Once the determination to give retroactive effect to a new rule has been made, however, the benefits of the right conferred may not be withheld arbitrarily. See generally, American Ry. Express Co. v. Kentucky, 273 U.S. 269, 47 S.Ct. 353, 71 L.Ed. 639 (1931); City of Cincinnati v. Vester, 33 F.2d 242 (6th Cir.), aff'd, 281 U.S. 439, 50 S.Ct. 360, 74 L.Ed. 950 (1930).

Respondent insists that the criterion used by the Ohio Supreme Court in State v. Humphries, supra, 51 Ohio St.2d 95, at 102, 364 N.E.2d 1354, to limit the application of State v. Robinson was approved by the Supreme Court of the United States in Hankerson v. North Carolina, supra. In Hankerson, the Supreme Court of North Carolina held that a jury instruction that imposed the burden of proving self-defense upon the defendant was violative of due process under the Supreme Court's decision in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). Hankerson was tried before the date on which Mullaney was decided. Concluding that it was not required to apply Mullaney v. Wilbur retroactively to a conviction that occurred before the date on which the Supreme Court's decision was handed down, the North Carolina court affirmed Hankerson's conviction. The Supreme Court reversed. It held that where a new constitutional rule is designed " 'to overcome an aspect of a criminal trial that substantially impairs its truth-finding function,' " the rule must be applied retroactively. 432 U.S. at 243, 97 S.Ct. at 2345, 53 L.Ed.2d 306; quoting Ivan V. v. City of New York, 407 U.S. 203, 204, 92 S.Ct. 1951, 1952, 32 L.Ed.2d 659, 661 (1972).

The language in Hankerson, supra relied on by respondent in the case at bar, came in partial response to the state's contention that retroactivity would have a devastating effect on the administration of justice. To this argument, the Court replied in a footnote that a State "may be able to insulate past convictions by enforcing the normal and valid rule that failure to object to a jury instruction is a waiver of any claim of error. See, e. g., Fed.Rule Crim.Pro. 30." 432 U.S. at 244 n. 8, 97 S.Ct. at 2345-46 n. 8, 53 L.Ed.2d 306. Ohio has a similar rule. ⁴

The footnote cited by respondent was dictum. The petitioner in Hankerson, like the appellant here, failed to object to the jury instructions at trial. The North Carolina Supreme Court chose to pass on the validity of the instructions, nevertheless. Thus, the question of whether a state may constitutionally utilize its procedural rules to bar the application of a retroactive ruling was not before the Court.

This Court, of course, is not controlled by dicta. Moreover, we need not pass on the question of whether, as a general rule, defendants may be required to raise their objections to jury instructions at trial. We are confronted here with a specific factual situation in which we are required to decide whether the state court's decision in the instant case was arbitrary or capricious. Thus, the test to be applied on this appeal is whether the means selected by the Ohio Supreme Court in Humphries, supra, bear a real and substantial relation to the ends sought to be attained by the use of its procedural rule to deny the benefits of retroactivity to the petitioner. Therefore, we turn to the justification for Ohio's procedural rule that requires a defendant to challenge jury instructions at trial or not at all.

In State v. Williams, 51 Ohio St.2d 112, 364 N.E.2d 1364 (1977), vacated in part sub nom. Williams v. Ohio, 438 U.S. 911, 98 S.Ct. 3137, 57 L.Ed.2d 1156 (1978), handed down on the same day that petitioner's appeal was dismissed, the Supreme Court of Ohio, in paragraph one of the syllabus, ⁵ said:

An appellate court need not consider an error which a party complaining of the trial court's judgment could have called, but did not call, to the trial court's attention at a time when such error could have been avoided or corrected by the trial court.

In the text of the Williams opinion, the court went on to say:

Any other rule would relieve counsel from any duty or responsibility to the court and place the entire responsibility upon the trial court to give faultless instructions upon every possible feature of the case, thereby disregarding entirely the true relation of court and counsel which enjoins upon counsel the duty to exercise diligence and to aid the court rather than by silence mislead the court into commission of error (citation omitted). 51 Ohio.St.2d at 117, 364 N.E.2d at 1367.

Thus, it is clear that the end which the contemporaneous objection rule seeks to achieve is to make trial proceedings as error free as possible. Wainwright v. Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497, 2508, 53 L.Ed.2d 594, 610 (1977). The rule does not assume that a trial court will always avoid or correct the error asserted; if it did, appellate courts would not be needed. But, as State v....