Rogers v. Redman
| Decision Date | 28 September 1978 |
| Docket Number | Civ. A. No. 78-69. |
| Citation | 457 F. Supp. 929 |
| Parties | Will E. ROGERS, Petitioner, v. Walter REDMAN, and Attorney General of the State of Delaware, Respondents. |
| Court | U.S. District Court — District of Delaware |
Julianne E. Hammond of Roeberg & Agostini, P.A., Wilmington, Del., for petitioner.
Francis A. Reardon, Deputy Atty. Gen., Dept. of Justice, Wilmington, Del., for respondents.
Petitioner has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 seeking relief from a judgment of conviction for robbery, attempted rape and assault. He was convicted in the Superior Court of New Castle County. On appeal, the Delaware Supreme Court affirmed the conviction. Rogers v. State, 343 A.2d 608 (Del.Sup.Ct.1975). Petitioner bases his claim for relief on erroneous instructions by the trial court to the jury regarding his alibi defense. Petitioner argues that the trial court's charge respecting the alibi evidence which he offered at trial shifted the burden of proof to him, and thus constituted a denial of due process of law under the Fourteenth Amendment. As a threshold matter, I note that petitioner has exhausted his available state judicial remedies, a prerequisite for this Court to entertain his petition for a writ of habeas corpus. 28 U.S.C. § 2254(b). Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971).
At about 11:30 A.M. on January 9, 1974, Hilda CiMarcone was violently assaulted by a man she described as being black, tall and wearing checked trousers. She testified that she never saw her assailant's face.
As the assailant was leaving the scene of the crime, he was seen by three witnesses. Two of them, Fred and Mark Gamiel, positively identified the petitioner as the assailant. Mark Gamiel testified that the assailant was between 6'2" and 6'4", weighed between 240 and 260 pounds, and wore a ski cap and checked pants. Fred Gamiel testified that the assailant was 6'2" and wore a ski cap. Both of these witnesses testified that they had clear opportunities to view the assailant. Each also independently selected petitioner's photo from a large array shortly after the crime.
At trial, petitioner presented an alibi defense, purporting to place himself at his sister-in-law's home at the time of the assault. The petitioner testified that he was at his sister-in-law's until after noon on January 9, and that he owned neither a ski cap nor checked pants. Although the petitioner's sister-in-law testified that she did not see him from 11:15 A.M. until 1:30 P.M. on January 9, she testified that he did not own checked pants. The petitioner's sister testified that the petitioner was in and out of his sister-in-law's house from 11:15 A.M. until noon, but was not absent for any length of time. She testified that she never saw her brother wear either a ski cap or checked pants. Finally, the petitioner's sister-in-law's son testified that he never saw the petitioner wear any checked pants.
In its rebuttal evidence, the State introduced the testimony of Detective Edward Head, who had arrested petitioner on January 17, 1974. Head testified that on that date petitioner was wearing a pair of checked trousers.
In his instructions to the jury, the trial judge first gave the elements of the robbery charge. He concluded by stating:
With regard to the attempted rape charge, after reciting the essential elements, the trial judge charged:
After considering all of the evidence in the case, you are satisfied beyond a reasonable doubt that Will E. Rogers acted in such a manner as to satisfy the elements of the attempt to commit the crime of rape, then you should find him guilty. If you have a reasonable doubt or if you do not believe he committed the offense of attempted rape, you should find him not guilty.
After reciting the essential elements of the assault count, the trial judge instructed:
At the end of his jury charge, the judge gave the following instructions to the jury regarding the alibi defense.
The defense attorney took exception to this portion of the jury instructions.1
Petitioner claims that by instructing the jury that the alibi defense was an affirmative defense and that the petitioner had the burden of proving his alibi by a preponderance of the evidence, the trial judge committed constitutional error which was not harmless beyond a reasonable doubt.2
This Court's authority to review jury instructions in a habeas corpus proceeding arising out of a State court criminal trial is limited. See Henderson v. Kibbe, 431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1976); Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973); United States ex rel. Harding v. Marks, 541 F.2d 402, 405 (3d Cir. 1976). As the Supreme Court has recently noted, "the burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal." Henderson v. Kibbe, supra 431 U.S. at 154, 97 S.Ct. at 1736. Emphasizing the judiciary's strong interest in preserving the finality of judgments, the Court continued to state that the test "in such a collateral proceeding is `whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process,' Cupp v. Naughten, 414 U.S. at 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368, not merely whether `the instruction is undesirable, erroneous, or even "universally condemned",' id., at 146, 94 S.Ct. 396." Henderson v. Kibbe, supra, 431 U.S. at 154, 97 S.Ct. at 1737. Significantly, the Court also noted that "an omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law." Id. at 155, 97 S.Ct. at 1737.
It is essential, then, to distinguish between undesirable trial error and that sort of egregious error which amounts to a denial of constitutional due process, for "not every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a `failure to observe that fundamental fairness essential to the very concept of justice.'" Donnelly v. DeChristofura, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed. 431 (1974).
In analyzing petitioner's claim, this Court is also mindful of the rule that a jury charge must be viewed as a whole and that no single instruction shall be considered in artificial isolation. United States ex rel. Harding v. Marks, 541 F.2d 402, 405 (3d Cir. 1976); Hallowell v. Keve, 555 F.2d 103 (3d Cir. 1977). The impact of the judge's erroneous instruction on the jury must be evaluated within the context of the entire trial in determining whether it was so prejudicial as to reach a constitutional denial of due process warranting issuance of a writ of habeas corpus.
The trial court instructed the jury, in part, as follows:
Now, it is the Defendant's burden to prove to your satisfaction the defense of alibi and the law reads that affirmative defense of alibi is established by a preponderance of the evidence when the jury is persuaded that the evidence makes it more likely than not that each element of the affirmative defense existed at the required time. Therefore, if you are convinced by a preponderance of the evidence that the Defendant, Will E. Rogers, was not present at the scene of the offense at the time they allegedly were committed, then you must return a verdict of not guilty.
Thus, the trial court's charge did not merely contain an attenuated or delitescent innuendo or implication, suggesting to the jury that the defendant had the burden of proving his alibi defense. Rather, it directly and in unmistakable terms obligated the defendant to prove his alibi by a preponderance of the evidence. If this instruction stood alone as the trial court's only counsel regarding the burden of proof on the issue of the defendant's presence at the scene of the crime, the charge would clearly violate due process. In every criminal case the Fourteenth Amendment imposes on...
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