Monk v. Zelez

• Decision Date: 25 April 1990
• Docket Number: No. 89-3103,89-3103
• Citation: 901 F.2d 885
• Parties: Solomon MONK, also known as David L. Martin, Petitioner-Appellant, v. Colonel Gordon N. ZELEZ, Commandant, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 885

901 F.2d 885

Solomon MONK, also known as David L. Martin, Petitioner-Appellant, v. Colonel Gordon N. ZELEZ, Commandant, Respondent-Appellee.

No. 89-3103.

United States Court of Appeals, Tenth Circuit.

April 25, 1990.

Stephen A. Armstrong, Fairfax, Va., for petitioner-appellant.

Benjamin L. Burgess, Jr., U.S. Atty., Connie R. DeArmond, Asst. U.S. Atty., Topeka, Kan., for respondent-appellee.

Before McKAY, BARRETT, Circuit Judges, and KANE, ^** District Judge.

PER CURIAM.

Petitioner-appellant Solomon Monk, a former marine corporal incarcerated since 1978 in the United States Disciplinary Barracks at Fort Leavenworth, Kansas, appeals the denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2241. ¹ Monk, who was convicted in a general court-martial of murdering his wife, asserts that his conviction was obtained in violation of his constitutional right to due process of law because (1) the military judge's reasonable doubt instruction impermissibly lessened the prosecution's burden of proof; (2) the military judge gave an incomplete jury instruction on character evidence; (3) the government failed to grant immunity to a material defense witness; (4) he was denied effective assistance of counsel; (5) the military judge refused to allow him to present exculpatory polygraph evidence; (6) the evidence was insufficient to support his conviction and (7) he was denied due process as a result of cumulative errors. We reverse denial of the writ.

Background

On May 17, 1978, a general court-martial at Camp Pendleton, California convicted Monk (then known as David L. Martin) of the murder of his wife, Leslie Martin. The evidence at trial established that Mrs. Martin's body was discovered in the couple's apartment at 7:45 A.M. on February 7, 1978. The cause of death was asphyxiation due to strangulation. Mrs. Martin had a bite mark on her left cheek that was believed to have been inflicted at or near the time of death. The time of death was not established by the prosecution allegedly because the heated water bed on which Mrs. Martin's body was found prevented an accurate assessment from being made.

Monk, then a marine stationed at Camp Pendleton, was not at home when his wife's body was discovered, but was questioned later that morning. He was inspected for bruises and scratches at that time and none were found. Fingernail scrapings and clippings taken at that time also did not reveal any blood, skin tissues or hair from the victim. Monk denied killing his wife.

In the investigation that followed, Monk "passed" several polygraph tests regarding the events of February 7. Monk's upstairs neighbor, Corporal Hodge, who admitted entering Monk's apartment the morning of the murder, was also administered a polygraph test. His test showed deception on all material questions. ²

Monk was subsequently charged with his wife's murder. He pled not guilty to the charge and testified at trial that his wife was asleep when he left for work on February 7. Defense testimony indicated that Monk had left home that day between 5:48 and 5:50 A.M., picked up a Marine colleague at a location five to seven minutes from his home at 5:55 A.M. and proceeded to his duty station. Monk relied on an alibi defense on the basis of this testimony and the testimony of neighbors that a woman was heard screaming in or near his apartment sometime between 5:55 and 6:40 A.M. ³ He also argued that the fact that Mrs. Martin's body was warm to the touch when discovered and that emergency and hospital personnel detected no signs of rigor mortis at that time indicated that she had been killed not long before her body was discovered at 7:45 A.M.

The government's theory of the case was that Monk had lost $100 gambling the night before Mrs. Martin's death and that this loss resulted in an argument that culminated with Monk murdering his wife just before he left for work the following morning. Evidence supporting this theory included a neighbor's testimony that Monk's car might have been parked outside his apartment as late as 5:55 A.M. the morning of the murder and a government expert's conclusion, "to a reasonable dental certainty," that Monk had inflicted the bite mark on Mrs. Martin's cheek. A defense expert contested both this latter conclusion and the methods by which it was reached, however, and particularly the government expert's failure to test whether dental impressions other than Monk's fit the bite mark. The defense expert testified further that ten thousand people's bites, including Monk's and Hodge's, could fit the bite print on Mrs. Martin's cheek. ⁴

Monk's conviction was affirmed by the Navy Court of Military Review, United States v. Martin, 9 M.J. 731 (N.C.M.R.1979), and the Court of Military Appeals, United States v. Martin, 13 M.J. 66 (C.M.A.1982). Both Monk and respondent-appellee Zelez agree that he has exhausted his administrative remedies.

Before bringing this action, Monk filed a civil action against the Secretary of the Navy in United States District Court for the District of Columbia. In that action, Monk sought a judgment declaring his conviction and sentence illegal and void, directing the Secretary to vacate his conviction and sentence and requiring the Secretary to grant him an honorable discharge and accumulated back pay and allowances. The district court found that it had jurisdiction over this action and granted summary judgment for Monk on the ground that the reasonable doubt instruction given at Monk's court-martial had deprived him of due process. Monk v. Secretary of Navy, No. 83-1853, slip op. (D.D.C. Oct. 5, 1984). This judgment was reversed by the United States Court of Appeals for the District of Columbia upon its finding that Monk's complaint was in reality a petition for writ of habeas corpus and hence could only be brought against his immediate custodian, the Commandant of the United States Disciplinary Barracks at Fort Leavenworth, in Kansas. Monk v. Secretary of Navy, 793 F.2d 364, 368-69 (D.C.Cir.1986). Monk then filed the present action for habeas corpus relief in the United States District Court for the District of Kansas.

Discussion

Monk claims on appeal that the military judge's instruction concerning the concept of "reasonable doubt," either individually or coupled with numerous other alleged errors, violated his due process rights and thus requires reversal of his conviction. Because we agree that the military judge's reasonable doubt instruction was both defective and violated Monk's constitutional right to conviction only upon proof beyond a reasonable doubt, we reverse on this ground and do not address Monk's other claims of constitutional error.

A. Standard of Review

We review denial of a petition for writ of habeas corpus de novo. Bruni v. Lewis, 847 F.2d 561, 563 (9th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 403, 102 L.Ed.2d 391 (1988). Our review of the military conviction itself is governed by the deferential standard established by the Supreme Court in Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953). In that case, the Court stated that "when a military decision has dealt fully and fairly with an allegation raised in that application [for habeas corpus], it is not open to a federal civil court to grant the writ simply to re-evaluate the evidence." Id. at 142, 73 S.Ct. at 1049. In this circuit, we have interpreted this language to limit our review of military convictions generally to jurisdictional issues and to determination of whether the military gave fair consideration to each of the petitioner's constitutional claims. See Watson v. McCotter, 782 F.2d 143, 144 (10th Cir.), cert. denied, 476 U.S. 1184, 106 S.Ct. 2921, 91 L.Ed.2d 549 (1986); King v. Moseley, 430 F.2d 732, 734-35 (10th Cir.1970). In appropriate cases, however, we will consider and decide constitutional issues that were also considered by the military courts. Mendrano v. Smith, 797 F.2d 1538, 1541-42 & n. 6 (10th Cir.1986); see Wallis v. O'Kier, 491 F.2d 1323, 1325 (10th Cir.), cert. denied, 419 U.S. 901, 95 S.Ct. 185, 42 L.Ed.2d 147 (1974); Kennedy v. Commandant, 377 F.2d 339, 342 (10th Cir.1967).

The record in this case indicates that the Military Court of Appeals considered Monk's claim that the military judge's reasonable doubt instruction deprived him of his right to due process. See United States v. Martin, 13 M.J. 66 (C.M.A.1982). We nonetheless hold that this constitutional claim is subject to our further review because it is both "substantial and largely free of factual questions." Mendrano, 797 F.2d at 1542 n. 6; see Calley v. Callaway, 519 F.2d 184, 199-203 (5th Cir.1975), cert. denied, 425 U.S. 911, 96 S.Ct. 1505, 47 L.Ed.2d 760 (1976). "Consideration by the military of such [an issue] will not preclude judicial review for the military must accord to its personnel the protections of basic constitutional rights essential to a fair trial and the guarantee of due process of law." Calley, 519 F.2d at 203; see Burns, 346 U.S. at 142, 73 S.Ct. at 1048 (plurality opinion); Wallis, 491 F.2d at 1325 (where a military prisoner is in custody by reason of an alleged constitutional violation, "the constitutional courts of the United States have the power and are under the duty to make inquiry.").

In reviewing the reasonable doubt instruction itself, we recognize that this instruction "may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); United States v. McIntyre, 836 F.2d 467, 473 (10th Cir.1987). The purpose of this review is not to determine whether "the instruction is undesirable, erroneous or even 'universally condemned,' " but rather "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Cupp, 414 U.S. at 146, 147, 94 S.Ct. at 400, 401; see Henderson v. Kibbe, 431 U.S. 145,...