Porter v. Leeke

• Decision Date: 28 August 1978
• Docket Number: Civ. A. No. 78-16.
• Court: U.S. District Court — District of South Carolina
• Parties: James R. PORTER, Petitioner, v. Commissioner William D. LEEKE, as Director of the South Carolina Department of Corrections, Respondent.

457 F. Supp. 253

James R. PORTER, Petitioner, v. Commissioner William D. LEEKE, as Director of the South Carolina Department of Corrections, Respondent.

Civ. A. No. 78-16.

United States District Court, D. South Carolina, Rock Hill Division.

August 28, 1978.

Palmer Freeman, Jr., Fort Mill, S.C., for petitioner.

Emmet H. Clair, Katherine W. Hill, Asst. Attys. Gen., Columbia, S.C., for respondent.

ORDER

BLATT, District Judge.

Petitioner in this habeas corpus action was tried on charges of assault and battery with intent to kill, and convicted of the lesser included offense of assault and battery of a high and aggravated nature. The facts surrounding the incident are cogently set out in the opinion of the Supreme Court of South Carolina in State v. Porter, S.C., 239 S.E.2d 641, 642 (1977):

"Appellant, a North Carolina resident, owns land in Lancaster County, South Carolina, where he raises pigs. On September 20, 1975, he drove to Lancaster County investigating a report that two of his pigs had escaped from their pen and in the course of his search, he entered the property of Harry Slagle. Slagle and his guests, including James Moore and Emmett Williams, who were all strangers to appellant, disavowed any knowledge of the missing pigs. Appellant, nevertheless, persisted to return to Slagle's property at least several times despite warnings by Slagle accompanied by threatening gunshots.

Appellant returned to Slagle's home one final time with his son-in-law, Donnie Sanders. This confrontation resulted in an exchange of gunfire in which Moore was severely wounded and Slagle slightly grazed. The prosecuting witnesses testified that appellant initiated the gunfire while the appellant contended that he shot in self-defense only after Slagle began shooting."

After trial, petitioner's motion for a new trial based on after discovered evidence— (the recantation of two prosecution witnesses) —was denied, and such denial was affirmed on appeal. The main issue raised in the habeas corpus petition concerns the trial judge's charge to the jury on self-defense.¹ Two inquiries are relevant to this issue:

(1) Did the trial judge's charge violate federal constitutional standards concerning the shifting of the burden of proof in state criminal prosecutions of an "affirmative defense"?

(2) Did the defendant waive his right to complain of any erroneous instructions by failure to object at trial?

A preliminary consideration in this, as in all federal habeas corpus actions, is the presence of exhaustion of state remedies. Although the petitioner did not raise the Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) issue on direct appeal, the South Carolina Supreme Court has recently held that self-defense is an affirmative defense and that the defendant can be required to prove the defense by a preponderance of the evidence. See, State v. Atchison, S.C., 235 S.E.2d 294, 299 (1977). In view of the recent reaffirmation of this view by the highest court in this state, it would appear to serve no purpose to "require the doing of a futile act, and if it is obvious that the state courts will afford no relief, a petitioner is not obligated to go through a needless state court proceeding", Ham v. State of North Carolina, 471 F.2d 406, 407 (4th Cir. 1973). Therefore, although the "fallout" from Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) intensifies every week, it appears that the South Carolina Supreme Court has authoritatively spoken on the precise issue to be considered here, and no further exhaustion is necessary.

Perhaps no recent series of United States Supreme Court criminal decisions has sparked as much debate, upheaval and actual confusion as Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977); and Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977).

In spite of Patterson's apparent dilution of the force of Mullaney, recent state and federal court opinions are nearly unanimous in their view that self-defense, while an "affirmative plea", is not a "true" affirmative defense; i. e., while a defendant may be required to raise the issue of self-defense by some evidence, once such issue is raised, the prosecution must prove beyond a reasonable doubt that the crime charged was not committed in self-defense. The rationale behind this view is that since an essential element of most crimes, as defined by statute or common law, is that an act to be criminal must be "unlawfully" done, and since an act done in self-defense is, by definition, "lawful", the prosecution must prove the absence of self-defense in order to prove an essential element of the crime, that is, unlawfulness. The obverse of the statement is more easily stated, viz, to require the defendant to prove self-defense— (lawfulness)—would relieve the prosecution from proving an essential element of the crime charged—(unlawfulness). While a complete litany of the cases requiring the prosecution to disprove self-defense, once raised, would require excessive time and be outdated as soon as written, a sampling of recent opinions amply conveys the moods of courts across the country: Commonwealth v. Collins, 373 N.E.2d 969 (S.Ct.Mass.1978) —when defendant raises issue of self-defense, state must disprove it beyond a reasonable doubt; Commonwealth v. Lynch, 477 Pa. 390, 383 A.2d 1263 (1978); Commonwealth v. Lesher, 473 Pa. 141, 373 A.2d 1088 (1977)—error for judge to charge that "commonwealth did not have to disprove self-defense"; Squire v. State, 280 Md. 132, 368 A.2d 1019 (1977) state concedes that instruction placing burden of proving self-defense on defendant by a preponderance of the evidence violates federal constitutional standards; State v. Columbus, 258 N.W.2d 122 (S.Ct.Minn.1977)—burden on state to satisfy jury beyond a reasonable doubt that the killing was not justified, defendant only has burden of going forward with evidence to support his claim; State v. Rowe, 33 N.C.App. 611, 235 S.E.2d 873 (1977) appeal dismissed, 293 N.C. 364, 237 S.E.2d 851 (1977) instruction placing burden on defendant to prove self-defense violates Mullaney and Hankerson; People v. Banks, 67 Cal.App.3d 379, 137 Cal.Rptr. 652 (3rd Dist. 1976) prosecution must under Mullaney prove the absence of justification, here self-defense, when the issue is properly presented; People v. Allen, 76 Cal.App.3d 748, 143 Cal.Rptr. 164 (3rd Dist. 1978) an instruction requiring the prosecution to disprove self-defense does not have to be given sua sponte, a proper request is needed. Additionally, recent federal cases support the view of the overwhelming majority of state cases, see, e. g., United States v. Jackson, 569 F.2d 1003 (7th Cir. 1978 reh. denied March 6, 1978)—failure to advise jury, if proper objection made, that government must prove that defendant did not act in self-defense is error; United States v. Corrigan, 548 F.2d 879 (10th Cir. 1977)— government must establish beyond a reasonable doubt that defendant did not act in self-defense. In this circuit, recent case law has not been completely lucid as to the prevailing view concerning the scope and particulars of a trial judge's instructions involving self-defense. Compare, Frazier v. Weatherholtz, 572 F.2d 994 (4th Cir. 1978) and Maxey v. Martin, (Unpub. 4th Cir., 76-8265, June 5, 1978), with Cole v. Stevenson, 447 F.Supp. 1268 (E.D.N.C.1978). In Frazier v. Weatherholtz, supra, the Fourth Circuit Court of Appeals upheld the challenged instructions against a due process attack "rather cryptically",² and with a long citation from Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) appeared to take the position that the defendant may indeed be required to retain the burden of proof as to self-defense. However, since the court alternately held that no unconstitutional shifting of burdens of proof was present in the judge's trial instructions in any event—(Id. at 995) —the force of the Frazier v. Weatherholtz precedent is uncertain. In Maxey v. Martin,³supra, the court similarly adopted a two-tier approach, affirming the jury instruction not only because it failed to shift the burden of proof on guilt, but, also, as apparently in line with its view of Patterson v. New York, that the defendant may retain the burden of proof on self-defense. The entire discussion of this principle was, as follows:

"First, petitioner challenges the trial court's instruction which placed the burden on the defendant to establish the affirmative defense of self-defense by a preponderance of the evidence. The court amplified this instruction, however, by explaining:

. . . still if you have any reasonable doubt as to whether or not the plea has been made out, you must give the defendant the benefit of that reasonable doubt and acquit him. Notwithstanding the plea of self-defense, the State must make out every material element in the case and if on the consideration of the entire testimony you have any reasonable doubt of the guilt of the accused, it would be your duty to acquit him.

Read as a whole, the instruction correctly places the full burden of proof of guilt on the State. In Frazier v. Weatherholtz, 572 F.2d 994 (4th Cir., 1978), we held that Mullaney does not reach so far as to require the State to prove the non-existence of all affirmative defenses. See also, Patterson v. New York, 432 U.S. 197 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). Consequently, we find no error in the court's instruction on self-defense." Slip op. at 2-3.

As can thus be seen, the Fourth Circuit has not yet been confronted with a clear cut "shifting of burdens" case—(since in both the above cases, no shifting was found)— and it has not yet been required to unequivocally hold that it is proper to force the defendant to bear the burden of proof on the issue of self-defense. The United States District Court for the ...