Smart v. Leeke, Civ. A. No. 3:85-0225-15B.

• Court: United States District Courts. 4th Circuit. United States District Court of South Carolina
• Writing for the Court: Donald J. Zelenka, Columbia, S.C., for respondents
• Citation: 677 F. Supp. 414
• Parties: Ronald Francis SMART, Petitioner, v. William D. LEEKE, and The Attorney General of South Carolina, Respondents.
• Docket Number: Civ. A. No. 3:85-0225-15B.
• Decision Date: 30 September 1987

677 F. Supp. 414

Ronald Francis SMART, Petitioner,
v.
William D. LEEKE, and The Attorney General of South Carolina, Respondents.

Civ. A. No. 3:85-0225-15B.

United States District Court, D. South Carolina, Columbia Division.

September 30, 1987.

677 F. Supp. 415

David I. Bruck, Bruck & Blume, Columbia, S.C., for petitioner.

Donald J. Zelenka, Columbia, S.C., for respondents.

HAMILTON, District Judge.

Petitioner, a state prisoner confined by the South Carolina Department of Corrections, has filed the present action seeking habeas corpus relief pursuant to 28 U.S.C. § 2254.¹ Petitioner complains that the trial court's instructions to the jury² on the issue of self-defense violated the Fourteenth Amendment by impermissibly shifting to him the burden of disproving the element of malice, thereby relieving the State of its constitutional duty to prove each element of the crime of murder beyond a reasonable doubt. He also complains that the jury instructions violated the Due Process Clause of the Fourteenth Amendment because they were contradictory and confusing. See Thomas v. Leeke, 725 F.2d 246 (4th Cir.), cert. denied, 469 U.S. 870, 105 S.Ct. 218, 83 L.Ed.2d 148 (1984). Finally, he asserts that the instruction to the jury offering various definitions of reasonable doubt violated the Due Process Clause of the Fourteenth Amendment by impermissibly lessening the State's burden to prove guilt beyond a reasonable doubt. Alternatively, he argues that the reasonable doubt instruction violated the Eighth Amendment requirement of special reliability in the process by which guilt or punishment is determined in a capital case. The matter is currently before the court upon the cross-motions of petitioner and respondents for summary judgment pursuant to Rule 56, Fed.R.Civ.Proc.

In accordance with 28 U.S.C. § 636(b)(1)(B) and this court's order of May 9, 1977 (Local Rule 19.02(b)(2)(C), D.S.C.), outlining the duties and responsibilities of United States Magistrates, the matter was referred to Magistrate Henry M. Herlong, Jr., for a report and recommendation. That report and recommendation, as filed March 23, 1987, is before the court at this time. In his report, Magistrate Herlong recommended that respondents' motion for summary judgment be granted and that petitioner's motion be denied. Petitioner

677 F. Supp. 416

filed objections to the magistrate's report and recommendation on April 1, 1987. Pursuant to 28 U.S.C. § 636(b)(1)(C) the court must make a de novo determination of those portions of the magistrate's report and recommendation to which the petitioner has objected. Camby v. Davis, 718 F.2d 198 (4th Cir.1983). After reviewing the record in this case, the magistrate's report and recommendation, the petitioner's objections thereto and the applicable law, the court concludes that the objections of petitioner are meritorious. Therefore, for the reasons which follow, the court cannot accept the magistrate's recommendation that respondents' motion for summary judgment should be granted

Petitioner was arrested on August 9, 1978, and was thereafter indicted on four counts of murder. Following the appeal of certain pretrial orders the case came to trial in February of 1981. Petitioner asserted the defense of self-defense and was acquitted of two of the murder charges and convicted of the other two. He was initially sentenced to death. The death sentence was vacated and the conviction was affirmed in State v. Smart, 278 S.C. 515, 299 S.E.2d 686 (1982). Subsequently, petitioner was sentenced to two consecutive terms of life imprisonment.³

SELF-DEFENSE INSTRUCTIONS

Petitioner contends that the trial judge's instructions charging the jury that petitioner had to prove self-defense by a preponderance of the evidence unconstitutionally relieved the State of its burden to prove beyond a reasonable doubt all of the elements of the crime charged. Martin v. Ohio, ___ U.S. ___, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987); Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

South Carolina law defines murder as "the killing of any person with malice aforethought, either express or implied." S.C.Code Ann. § 16-3-10 (Law.Co-op.1976). Malice, under South Carolina law, is defined as the intentional doing of a wrongful act, without just cause or excuse. State v. Foster, 66 S.C. 469, 45 S.E. 1 (1903). Alternative definitions of malice under South Carolina law are, "malice is a legal term implying wickedness and excluding a just cause or excuse," State v. Fuller, 229 S.C. 439, 93 S.E.2d 463, 466 (1956) and:

Malice `is a wicked condition of the heart. It is a wicked purpose. It is a performed purpose to do a wrongful act, without sufficient legal provocation; and ... it would be an indication to do a wrongful act which resulted in the death of this man, without sufficient legal provocation, or just excuse, or legal excuse.'

State v. Judge, 208 S.C. 497, 38 S.E.2d 715, 719 (1946) (emphasis added), quoting, State v. Heyward, 197 S.C. 371, 15 S.E.2d 669 (1941) quoting with approval, State v. Gallman, 79 S.C. 229, 60 S.E. 682 (1908).

Consequently, to establish the crime of murder under South Carolina law, the state must prove two elements: (1) a killing, and (2) the killing was caused by the intentional and wrongful act of the accused without legal justification or legal excuse.⁴ Petitioner states that: "It can readily be seen from these basic features of South Carolina law that where a defendant pleads self-defense to a charge of murder, he is in reality

677 F. Supp. 417

simply denying one of the facts necessary to establish the offense — namely, that he acted without legal excuse when he killed the deceased. For this reason, petitioner submits that the jury instructions in his case which required him to prove by a preponderance of the evidence that he acted in self-defense had the inescapable result of relieving the prosecution of the burden of proving every element of the offense of murder, as that crime is defined under the law of South Carolina." Petitioner's Petition for Writ of Certiorari to the Supreme Court of South Carolina, pp. 8-9 (Incorporated by reference in the present habeas corpus petition). Respondents submit that the self-defense instruction in this case "was not burden-shifting in violation of In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) nor confusing in violation of Thomas, supra." Respondents' Amended Motion for Summary Judgment, p. 6. They direct the court's attention to the fact that the trial court informed the jury "that they had to find that the State had proved every element of murder, including malice beyond a reasonable doubt. (Tr. p. 2009)." They also call the court's attention to the trial court's jury instruction that: "`The defendant is entitled to any reasonable doubt arising in the whole case or in any defenses.' (Tr. 2009, 11. 20-21)." Id. (emphasis added by respondents). Respondents also note that South Carolina has consistently held that self-defense is an affirmative defense to the crimes of murder and manslaughter. State v. Glover, 284 S.C. 152, 326 S.E.2d 150 (1985).⁵ The South Carolina Supreme Court has also held that placing the burden of self-defense upon the defendant does not violate due process. State v. Bolton, 266 S.C. 444, 223 S.E.2d 863 (1976); State v. Linder, 276 S.C. 304, 278 S.E.2d 335 (1981)

The magistrate reviewed the parties' contentions and determined that the recent case of Martin v. Ohio, supra, resolved the argument concerning the burden of proof. Martin held that the Ohio procedure requiring defendants to prove self-defense by a preponderance of the evidence did not violate due process. Under the applicable Ohio law, aggravated murder was defined as, "`purposely and without prior calculation and design causing the death of another.'" Martin, 107 S.Ct. at 1100 (citation omitted). In upholding the Ohio practice the Court rejected the petitioner's contention that the elements of aggravated murder and self-defense impermissibly overlap and run afoul of In Re Winship, supra, and Patterson, supra. The Court stated Ohio "did not exceed its authority in defining the crime of murder as purposely causing the death of another with prior calculation or design," nor did it seek to shift to the defendant the burden of proving any of the elements of the crime. Martin, 107 S.Ct. at 1102. Additionally, the Court noted that the jury instructions were "adequate to convey to the jury that all of the evidence, including evidence going to self-defense, must be considered in deciding whether there was a reasonable doubt about the sufficiency of the state's proof of the elements of the crime." Id. The Court summarized by stating:

We are thus not moved by assertions that the elements of aggravated murder and self-defense overlap in the sense that evidence to prove the latter will often tend to negate the former. It may be that most encounters in which self-defense is claimed arise suddenly and involve no prior plan or specific purpose to take life. In those cases, evidence offered to support the defense may negate a purposeful killing by prior calculation and design, but Ohio does not shift to the defendant the burden of disproving any element of the state's case. When the prosecution has made out a prima facie case and survives a motion to acquit, the jury may nevertheless not convict if the evidence offered by the defendant raises

677 F. Supp. 418

any reasonable doubt about the existence of any fact necessary for the finding of guilt. Evidence creating a reasonable doubt could easily fall far short of proving self-defense by a preponderance of the evidence. Of course, if such doubt is not raised in the jury's mind and each juror is convinced that the defendant purposely and with prior calculation and design took

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