Jones v. Warden, West Virginia Penitentiary

• Decision Date: 17 January 1978
• Docket Number: No. 14010,14010
• Court: West Virginia Supreme Court
• Parties: Roger JONES v. WARDEN, WEST VIRGINIA PENITENTIARY.

Page 914

241 S.E.2d 914

161 W.Va. 168

Roger JONES v. WARDEN, WEST VIRGINIA PENITENTIARY.

No. 14010.

Supreme Court of Appeals of West Virginia.

Jan. 17, 1978.

Concurring Opinions Feb. 2, 24, 1978.

Syllabus by the Court

1. "In a criminal prosecution, the State is required to prove beyond a reasonable doubt every material element of the crime with which the defendant is charged, and it is error for the court to instruct the jury in such a manner as to require it to accept a presumption as proof beyond a reasonable doubt of any material element of the crime with which the defendant is charged or as requiring the defendant either to introduce evidence to rebut the presumption or to carry the burden of proving the contrary." Syllabus point 4, State v. Pendry, W.Va., 227 S.E.2d 210 (1976).

2. The proscription against unconstitutionally shifting the burden of proof in criminal trials from the state to the defendant through the use of presumptions is fully retroactive and may be raised by collateral attack against a final conviction.

Hostler & Shinaberry, Sterl F. Shinaberry, Charleston, for relator.

Chauncey H. Browning, Jr., Atty. Gen., William D. Highland, Charleston, Gregory W. Bailey, Asst. Atty. Gen., Charleston, for respondent.

HARSHBARGER, Justice.

Relator, Roger Jones, seeks a writ of habeas corpus ad subjiciendum saying his conviction on November 29, 1972 for first degree murder, in the Circuit Court of McDowell County, is void as a result of this Court's ruling in State v. Pendry, W.Va., 227 S.E.2d 210 (1976), and the United States Supreme Court's ruling in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977).

The circuit court gave the following instruction, inter alia The court instructs the jury that the law is that a man is taken to intend that which he does, or which is the natural and necessary consequences of his own act; and, therefore, if they believe from the evidence that Roger Dale Jones shot and killed the deceased, Crockett Boothe, by the deliberate use of an instrument likely to produce death, under the circumstances, then the presumption of law, arising in absence of proof to the contrary, is that he intended the consequences that resulted from said use of said deadly instrument.

This instruction is identical to one later declared constitutionally impermissible in State v. Pendry, wherein this Court applied the proscription of Mullaney v. Wilbur against shifting of the burden of proof in criminal trials from the state to the defendant through the use of presumptions.

We said in Pendry :

The instruction is further deficient under Mullaney in that it instructs the jury that there is a presumption of law which attaches to the deliberate use of a deadly weapon, namely, that the defendant intended the consequence that resulted from the use thereof which arises in the absence of proof to the contrary. This instruction told the jury that, when the State has introduced evidence showing Pendry's deliberate use of a deadly weapon, he was presumed to have intended the consequence in the absence of proof to the contrary. This would entitle the jury to accept proof beyond a reasonable doubt of the elements of intent and malice unless there was proof to the contrary. A presumption cannot relieve the State of proving those elements beyond a reasonable doubt. Further, this instruction seems to require Pendry to carry the burden of proving that he did not intend the consequences that resulted from using the deadly weapon. The instruction is therefore defective under traditional West Virginia principles of law and under the Mullaney doctrine, and if there were no other errors in the case, this instruction alone would require reversal. 227 S.E.2d at 223.

However, we concluded:

It is our view that the doctrine of Mullaney, insofar as it affects the burden of proof which is carried by a defendant and insofar as it affects the utilization of "presumptions" (more properly "inferences") in instructions, should be applied to all criminal cases now in trial or appellate process and should not otherwise be retroactive. (Emphasis added.) 227 S.E.2d at 224.

Jones was convicted before Mullaney and Pendry and his case was not at the time of Pendry, in the appeal state. Thus, the issue is whether we are required to overrule our proscription of the application of Pendry to cases in trial or appeal, and make it fully retroactive.

The question of the retroactivity to be accorded Mullaney is addressed by the United States Supreme Court in Hankerson v. North Carolina, supra, decided after Pendry. The Supreme Court of North Carolina had declined to apply Mullaney to trials occurring before the date on which it was decided, June 9, 1975. Hankerson's trial was on November 21, 1974, and he appealed, relying in part on the Mullaney decision.

The Supreme Court reversed the North Carolina Court's limited, prospective application of the Mullaney rule, reasoning:

In Mullaney v. Wilbur, as in In re Winship (397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)), the Court held that due process requires the States in some circumstances to apply the reasonable-doubt standard of proof rather than some lesser standard under which an accused would more easily lose his liberty. In Mullaney, as in Winship, the rule was designed to diminish the probability that an innocent person would be convicted and thus to overcome an aspect of a criminal trial that "substantially impairs the truth-finding function."

. . . (W)e have said that the question of whether the purpose of a new constitutional rule is to enhance the integrity of the factfinding process is a question of "degree," . . . and when the degree to which the rule enhances the integrity of the factfinding process is sufficiently small, we have looked to questions of reliance by the State on the old rule and the impact of the new rule on the administration of justice in deciding whether the new rule is to be applied retroactively. (Citations omitted.) But we have never deviated from the rule stated in Ivan V. ¹ that " '(w)here the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule (is) given complete retroactive effect.' " (Citation omitted.) 432 U.S. at 242, 97 S.Ct. at 2344, 53 L.Ed.2d at 315, 316.

Respondent, in the action before us, argues that Hankerson may be interpreted restrictively to hold that Mullaney need only be applied to all cases involving criminal convictions not yet final at the time Hankerson was written. This harmonizes with and mandates no departure from the retroactivity provision set forth in Pendry. Respondent also notes footnote 8 in the Hankerson opinion ² and argues that Jones did not interpose a Mullaney -based objection at trial and therefore cannot now raise a collateral attack on the bad instruction.

We believe Respondent's argument incisively ferrets out the ambiguities in the Hankerson opinion and may be a technically viable means of avoiding its full impact. But we decline to use that method of insulating past criminal convictions from the ambit of Mullaney, Pendry, and Hankerson. Safeguarding the integrity of the factfinding process must take priority over procedural concerns such as whether a trial lawyer could perceive future United States Supreme Court rulings and object to acts or instructions on the basis of constitutional infirmities yet unborn. ³

The United States Supreme Court, in Mullaney and Hankerson, has said that the duty of the state to prove beyond a reasonable doubt every element of a crime is so significant and fundamental as to go to the very heart of the factfinding process; and that where that duty has been avoided, trials in which the avoidance occurred have been illegal. Other courts have found that where a constitutional right is determined to exist which is fundamental and essential to a fair trial, the decision applies retroactively and may be raised by habeas corpus or other special post-conviction proceedings by anyone who has likewise been unconstitutionally treated. See United States ex rel. Craig v. Myers, 329 F.2d 856 (3d Cir. 1964): United States ex rel. Durocher v. LaVallee, 330 F.2d 303 (2d Cir. 1964), cert. den. 337 U.S. 998, 84 S.Ct. 1921, 12 L.Ed.2d 1048. See also, Annot., 10 A.L.R.3d 1371 (1966).

We find that the spirit and language of Hankerson mandates that the Mullaney principle set forth in Pendry be fully retroactive. To the extent that Pendry limits its own retroactivity to those cases pending appeal or in trial at the time it was decided, it is overruled.

Writ awarded.

NEELY, Justice, concurring:

I concur in the majority's holding that the rule of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), incorporated in our case of State v. Pendry, W.Va., 227 S.E.2d 210 (1976), is fully and completely retroactive, extending even to permit collateral attack upon convictions not in the process of direct appellate review at the time Pendry or Mullaney were decided. This is justified exclusively because the United States Supreme Court has determined that the primary purpose of the new constitutional rule set forth in Mullaney is "to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials." Hankerson v. North Carolina, 432 U.S. 233 at 243, 97 S.Ct. 2339 at 2345, 53 L.Ed.2d 306 (1977) quoting Ivan V. v. City of New York, 407 U.S. 203 at 204, 92 S.Ct. 1951, 32 L.Ed.2d 959 (1972). We are of course bound to follow the dictates of Hankerson in determining the retroactivity of Mullaney and Pendry in West Virginia.

Making Mullaney completely retroactive poses...