Shannon v. Manson

• Decision Date: 13 June 1984
• Docket Number: Civ. No. H-82-477.
• Citation: 596 F. Supp. 558
• Parties: Paul S. SHANNON v. John R. MANSON, Commissioner of Corrections (Raymond Lopes, Successor).
• Court: U.S. District Court — District of Connecticut

596 F. Supp. 558

Paul S. SHANNON v. John R. MANSON, Commissioner of Corrections (Raymond Lopes, Successor).

Civ. No. H-82-477.

United States District Court, D. Connecticut.

June 13, 1984.

Brian J. Wholey, Hartford, Conn., for petitioner.

Arnold M. Schwolsky, Asst. State's Atty., Hartford, Conn., Carl Schuman, Asst. State's Atty., Appellate Div., Wallingford, Conn., for respondent.

RULING ON MAGISTRATE'S RECOMMENDED DECISION ON PETITION FOR A WRIT OF HABEAS CORPUS

CLARIE, Senior District Judge.

The petitioner Paul S. Shannon ("Shannon" or "petitioner") is currently serving a life sentence in the Connecticut Correctional Institution at Somers, Connecticut, having been found guilty by a jury of second degree murder. He was convicted almost fifteen years ago, on December 3, 1969, of the murder of Francis X. Fenton ("Officer Fenton"), an off-duty Hartford police officer. This petition comes before the Court on the recommended ruling of United States Magistrate F. Owen Eagan, filed February 6, 1984, in which the Magistrate represents to the Court that the writ should be granted on the basis of a constitutionally defective jury charge. According to the Magistrate's ruling, a portion of this charge impermissibly shifted the Government's burden of proof on the issues of intent and malice aforethought to the defendant. The Magistrate further recommends to this Court that the State of Connecticut be ordered to release the petitioner or, in the alternative, to grant him a new trial within sixty (60) days.

The State filed a timely objection to the Magistrate's recommended ruling on February 21, 1984 and requested that the Court reverse said recommendation and deny the suggested relief. Having carefully reviewed the complete, 654 page trial transcript, together with the judge's 51 page jury charge, and all other relevant memoranda and papers, the Court finds that the jury charge, taken as a whole, did not unconstitutionally create a conclusive presumption on the issue of intent or malice aforethought, or otherwise shift the burden of proof on said issues. The petitioner has suffered no prejudicial error or any lack of due process. The challenged technical defects, if any existed, were cured by other language contained in the charge. This fact becomes clear upon examination of both the context in which the challenged instructions were given and the entire charge. Moreover, even if it were to be assumed for academic reasons that the technical defects were not entirely cured by the charge read as a whole, the Court finds that, in this instance, the error was harmless in light of the facts adduced in this case.

Jurisdiction

Shannon applied for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. That statute provides that a person in state custody may apply to a federal judge for relief if said petitioner claims that his custody violates either the federal Constitution, federal laws or federal treaties. 28 U.S.C. § 2254(a). This statute further provides an exhaustion requirement, which states:

"An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a state court shall not be granted, unless it appears that the applicant has exhausted the remedies available in the courts of the State." Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971).

The exhaustion requirement specifies that the petitioner must have, before appearing in federal court, fairly presented to an appropriate state court the same federal claims that he wishes to present to the federal court.

Shannon, the petitioner here, initially filed his habeas application in the state court. After a full hearing, it was denied on August 27, 1981.¹ Subsequently, on October 30, 1981, Shannon applied to the state court for certification to the Connecticut Supreme Court. The present federal action was filed on May 13, 1982; initially, the federal proceedings were stayed to allow the petitioner enough time to return to the state court and move for certification to the State's highest appellate court. A formal denial of certification to the Connecticut Supreme Court was entered on March 11, 1983.

Both the Connecticut habeas judge and the United States Magistrate found that Shannon had not directly appealed his conviction after the original trial. However, since he was relying upon Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), a case decided ten years after his trial, Shannon's only available avenue of redress was, and remains, a collateral attack on his conviction; hence, both courts concluded that the petitioner had not deliberately by-passed the direct appeal procedure. See Fay v. Noia, 372 U.S. 391, 418-20, 83 S.Ct. 822, 837-39, 9 L.Ed.2d 837 (1963) and Klein v. Harris, 667 F.2d 274, 285-86 (2d Cir.1981). The Court finds that the petitioner has now exhausted all his state remedies and that the matter is properly before this Court.

Facts

In order to fairly consider the legal issues raised by the petitioner relating to criminal intent and malice, it is essential to summarize the factual circumstances relating to this homicide. These facts are clear and undisputed. On March 27, 1969, at about 9:30 p.m., Officer Fenton, off duty in plain clothes, was at the Edgewood Grill on Homestead Avenue, in Hartford, talking to John R. Panchuck, the owner.

The testimony discloses that at that time, Shannon, a construction foreman, sometimes referred to as "Blackie," was very upset because he had learned that his girl friend, Lynn Franco, a married woman, was trying to break off her relationship with him. (Petitioner's Exhibit 1, Court Transcript, at 288) (hereinafter, "Tr., at ___"). Shannon had been advancing funds to pay her rent and buy groceries for her, but she seemed now not to want anything more to do with him. (Tr., at 291). He was also angry with John Panchuck because the latter had recently reneged on a promise to co-sign a loan for Shannon so that he could purchase a car. (Tr., at 325). In the past, he had borrowed a car from his friend, Martin Burke, to pick up Lynn Franco to transport her to work, take her shopping or drive over to her house in the evening. (Tr., at 321-3). Panchuck's change of heart frustrated and angered Shannon.

On the afternoon of March 27, 1969, Shannon went to the Edgewood Grill after completing his day's work. There he consumed several drinks of alcoholic beverages and competed with some other men in the barroom in playing a video type skill machine. He left there around 7:15 p.m., but returned after 9:00 p.m. During that year, 1969, Shannon had purchased a .38-caliber revolver. He had represented to others that the gun was hot (had been stolen) and that he kept it at home under the mattress. (Tr., at 297). On that evening when he went to the grill, he carried this gun in a pocket of the windbreaker jacket he was wearing.

Officer Fenton had been shopping for Easter gifts for his children that day and stopped at the grill for a drink on his way home. He lived only about four houses away. When Fenton saw the owner, Panchuck, seated at the bar, he said "I want to show you this John," referring to an Easter basket especially made for his children. (Tr., at 154-5). Officer Fenton brought over his shopping bag to show Panchuck the Easter bunny and some of the gifts he had purchased. Officer Fenton was standing alongside Panchuck, displaying the novelty of his purchases, when Shannon entered the grill. The latter proceeded to walk down to the end of the bar, where he ordered a drink. A friend of Shannon's, Robert Veilleux, paid for it. (Tr., at 261).

All of a sudden, Shannon called out to the grill owner, "Panchuck, I want you outside." Just as Panchuck started to get up from the bar stool, Officer Fenton observed a .38-caliber revolver in Shannon's right hand. Fenton, whom Shannon knew to be a police officer, advanced around Panchuck, so as to shield the latter, and asked Shannon for possession of his gun. (Tr., at 224). Officer Fenton said something to the effect of, "Let me have the gun, you don't want to use this." Shannon said, "You keep out of this you lousy cop. This is none of your business." (Tr., at 156). Shannon raised the revolver, aimed it at the officer and fired once. The officer winced, grabbed his side momentarily and dropped to the floor. (Tr., at 225-226). Shannon pointed his gun at Panchuck and said, "I want you." (Tr., at 239). Fenton hurriedly picked himself up off the floor, took off his raincoat and threw it in a booth. The officer then proceeded to approach Shannon, who backed toward a rear room. As he did so, he asked Officer Fenton, "Do you want some more?" (Tr., at 157) and pulled the trigger three times. (Tr., at 264). The gun misfired each time. As the officer came within arm's length, Shannon, holding the revolver in his right hand, pistol-whipped Fenton on the side of the face, causing the officer to reel around and fall. (Tr., at 225). At this point, Shannon fired a fifth time. Although the testimony differs as to exactly when Shannon pulled the trigger: some witnesses testifying that the fifth shot was fired after Fenton was on the floor; others that it was fired shortly after he was pistol-whipped in the face. This final shot was the fatal shot. It hit the officer in the chest and eventually killed him. (Tr., at 233).

Officer Fenton, however, did not die the very instant that this bullet ripped into his chest. When he fell the second time, Officer Fenton's face struck the floor and he rolled over onto his side. (Tr., at 159). While Officer Fenton, now bleeding to death, struggled to get to his feet, Shannon walked over to him and said, "Shut up copper," and kicked him viciously, (Tr., at 185), expressing anger as he did so. (Tr., 194-196). When Shannon kicked Officer Fenton, he warned him, "Stay down you lousy cop." Fenton then moved no more. (Tr., at 157).

Oliver Foote, the cook and bartender at the Edgewood...