Rhodes v. Brigano

• Decision Date: 01 August 1996
• Docket Number: No. 95-3615,95-3615
• Citation: 91 F.3d 803
• Parties: Cornell RHODES, Petitioner-Appellant, v. Anthony J. BRIGANO, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 803

91 F.3d 803

Cornell RHODES, Petitioner-Appellant, v. Anthony J. BRIGANO, Respondent-Appellee.

No. 95-3615.

United States Court of Appeals, Sixth Circuit.

Argued March 11, 1996.

Decided Aug. 1, 1996.

Hal Roger Arenstein (argued and briefed), Cincinnati, OH, for Petitioner-Appellant.

Charles L. Wille (briefed), Stuart W. Harris, Asst. U.S. Atty., Office of the Atty. Gen. of Ohio (argued), Columbus, OH, for Respondent-Appellant.

Before: KEITH, MARTIN, and NELSON, Circuit Judges.

BOYCE F. MARTIN, Jr., Circuit Judge.

Cornell Rhodes appeals the district court's denial of his petition for writ of habeas corpus brought under 28 U.S.C. § 2254. In denying Rhodes' petition, the district court held that the jury instructions given at his trial for murder did not unconstitutionally shift the burden of proof to Rhodes on the issue of whether the killing was the product of sudden passion or a sudden fit of rage. For the reasons set forth below, we AFFIRM.

On February 8, 1990, a jury found Rhodes guilty of murder under Ohio Rev. Code § 2903.02(A). The next day, Rhodes was sentenced to fifteen years to life in prison. Rhodes appealed his conviction, alleging that the trial court's jury instructions, which placed upon Rhodes the burden of showing by a preponderance of the evidence the mitigating circumstances of a sudden passion or fit of rage under Ohio Rev. Code § 2903.03(A), violated his right to due process under the Fourteenth Amendment. The state intermediate appellate court reversed Rhodes' conviction, holding that the trial court erred in instructing the jury that Rhodes had the burden of establishing that he killed in a sudden fit of passion or a sudden fit of rage. The state appealed the intermediate court's ruling, and the Ohio Supreme Court, in a 4-3 decision, reversed. State v. Rhodes, 63 Ohio St.3d 613, 590 N.E.2d 261, 265 (1992). Interpreting state statutory law, the court first held that a defendant on trial for murder bears the burden of establishing by a preponderance of the evidence that he was "under the influence of sudden passion or in a sudden fit of rage, either of which was brought on by serious provocation...." Id. 590 N.E.2d at 263 (quoting Ohio's voluntary manslaughter statute codified at Ohio Rev. Code § 2903.03(A)). Reasoning that "voluntary manslaughter [is] a single offense that, under certain circumstances, permits a defendant to mitigate a charge of murder to manslaughter," the court concluded that voluntary manslaughter is an inferior degree of murder. Id.

The court then turned to the specific issue raised by the state's appeal, namely whether the trial court properly instructed the jury by placing upon the defendant the burden of establishing by a preponderance of the evidence that he acted under sudden passion or a sudden fit of rage in defense to the murder charge. Id. 590 N.E.2d at 264. The court relied upon its previous opinion in State v. Muscatello, 55 Ohio St.2d 201, 378 N.E.2d 738 (1978), which interpreted an earlier version of Ohio's manslaughter statute. In Muscatello, the state supreme court held that "the 'mitigating circumstance' of 'extreme emotional stress' was not an element of the crime of voluntary manslaughter." Id. 378 N.E.2d at 739-40. Reviewing the Muscatello decision in Rhodes, the state supreme court explained:

Muscatello is instructive for what it does not say as it is for what it does. Although some would suggest that Muscatello stands for the proposition that the mitigating circumstance "extreme emotional stress" is not an element of an affirmative defense, and thus its equivalent under the current statute, "sudden passion or sudden fit of rage," also does not need to be proven as an element of an affirmative defense, we find no such language in the court's opinion. Indeed, an examination of the court of appeals' decision affirmed in Muscatello substantially contradicts that suggestion: "Emotional stress as a mitigating circumstance is similar to an affirmative defense since it operates as a defense to the higher offenses of aggravated murder and murder. As such, the law in Ohio applicable to affirmative defenses is also clearly applicable to the mitigating factor of emotional stress." [State v. Muscatello, 57 Ohio App.2d 231, 387 N.E.2d 627, 640 (1977) ]. Clearly, the court of appeals directly, and this court by implication, in the respective Muscatello opinions, viewed the law relating to affirmative defenses as applicable to the mitigation of a charge of murder to voluntary manslaughter, and, for that reason, both courts chose not to place the burden of persuasion upon the defendant who sets forth a mitigating circumstance.

Rhodes, 590 N.E.2d at 264-65. Relying on this understanding of Muscatello, the court stated that "[w]e see no reason to alter the course set forth in Muscatello, and we thus continue to view the law regarding affirmative defenses to be applicable to the proof of mitigation to reduce a charge of murder to manslaughter." Id. 590 N.E.2d at 265. Accordingly, because Ohio's statutory scheme placed upon the defendant the burden of persuasion by a preponderance of the evidence (rather than the lesser burden of production contained in Ohio's earlier affirmative defense statutory scheme), the court held that the jury instructions placing the burden on Rhodes to establish "sudden passion or sudden fit of rage" were proper under Ohio law. Id. Finally, the court addressed whether shifting the burden to the defendant on this issue violated Rhodes' constitutional due process rights under Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), and concluded that it did not.

Rhodes then filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Ohio. The petition was referred to a magistrate judge, who issued a report on November 8, 1994, recommending that Rhodes' petition be denied. On May 19, 1995, the district court issued an order adopting the magistrate's recommendation. Accordingly, the district court denied Rhodes' petition on the reasons set forth in the magistrate's report. The district court also granted a certificate of probable cause to appeal, and Rhodes timely filed an appeal to this Court.

At issue before this Court is whether, as interpreted by the Ohio Supreme Court, Ohio's murder and voluntary manslaughter statutes and the jury instructions given here violated Rhodes' due process rights by unconstitutionally shifting the burden of proof to him on an element of the crime of murder. The jury instructions given by the trial court follow:

The defendant is charged with murder. Before you can find the defendant guilty of murder, you must find that the state has proved beyond a reasonable doubt that the defendant ... purposely caused the death of Annette Akins.

....

A person acts purposely when it is his specific intention to cause a certain result. To do an act purposely is to do it intentionally and not accidentally. Purpose and intent mean the same thing. The purpose with which a person does an act is known only to himself, unless he expresses it to others or indicates it by his conduct. Since you cannot look into the mind of another, you must determine purpose from all the facts and circumstances in evidence.

....

As you consider murder, you may also consider the lesser included offense of voluntary manslaughter. Voluntary manslaughter is knowingly causing the death of another, while the defendant is under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the defendant into using deadly force.

Before you can find the defendant guilty of voluntary manslaughter, you must find that the state has proved beyond a reasonable doubt that ... the defendant knowingly caused the death of Annette Akins.

A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or he is aware that his conduct will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist. Since you cannot look into the mind of another, you must determine knowledge from all the facts and circumstances in evidence.

Being under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the defendant into using deadly force[,] is a mitigating circumstance, which reduces what would otherwise be murder to voluntary manslaughter.

The defendant has the burden of proving by a preponderance of the evidence that he acted while under the influence of sudden passion or a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the defendant into using deadly force.

....

If you find that the state proved beyond a reasonable doubt that the defendant purposely caused the death of Annette Akins, and you find the defendant failed to prove by a preponderance of the evidence that he acted while he was under the influence of sudden passion or in a sudden fit of rage, ... then you must find the defendant guilty of murder.

If you find that the state proved beyond a reasonable doubt that the defendant purposely caused the death of Annette Akins, but you also find that the defendant proved by a preponderance [sic] that he acted while under the influence of sudden passion or a sudden fit of rage, ... then you must find the defendant guilty of voluntary manslaughter.

....

Such passion is a mitigating circumstance, the existence of which reduces murder to voluntary manslaughter. It is not, however, an element of the offense of voluntary manslaughter. If the defendant fails to establish such passion by a preponderance, the state must still prove to you beyond a...