Smart v. Leeke

• Decision Date: 04 May 1989
• Docket Number: No. 87-7737,87-7737
• Citation: Smart v. Leeke, 873 F.2d 1558 (4th Cir. 1989)
• Parties: Ronald Francis SMART, Petitioner-Appellee, v. William D. LEEKE, Commissioner, South Carolina Department of Corrections; Attorney General of South Carolina, Respondents-Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1558

873 F.2d 1558

Ronald Francis SMART, Petitioner-Appellee, v.William D. LEEKE, Commissioner, South Carolina Department of Corrections; Attorney General of South CarolinaRespondents-Appellants.

No. 87-7737.

United States Court of Appeals Fourth Circuit.

Argued Feb. 7, 1989.

Decided May 4, 1989.

Donald John Zelenka, Chief Deputy Atty. Gen., Columbia, S.C., for respondents-appellants.

David Isaac Bruck, Columbia, S.C., (Bruck & Blume, on brief), for petitioner-appellee.

Before ERVIN, Chief Judge, and RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, CHAPMAN, WILKINSON and WILKINS, Circuit Judges.

WILKINS, Circuit Judge:

The State of South Carolina appeals from the issuance of a writ of habeas corpus, 28 U.S.C.A. Sec. 2254(West 1977), for convicted murderer Ronald Francis Smart on the ground that a jury instruction on self-defense impermissibly shifted the burden of proof.A panel of this court originally affirmed the issuance of the writ.Smart v. Leeke, 856 F.2d 609(4th Cir.1988).A majority of the court voted for rehearing en banc, thereby vacating the panel opinion. 4th Cir.R. 35(c).We now reverse and remand for further proceedings.

I.

Smart was tried in South Carolina state court in 1981 for the murder of two men and two women.In defense of these charges, he presented evidence that one or both of the men killed the women first and he then killed the men in self-defense.¹The trial court instructed the jury that self-defense was an affirmative defense which Smart had the burden of proving by a preponderance of the evidence.

Smart was acquitted of the murder of the women, but convicted of murdering the men.During a separate sentencing phase, the jury further found that the murders had occurred during the commission of larceny with the use of a deadly weapon.And, on the recommendation of the jury, Smart was sentenced to death.On appeal to the South Carolina Supreme Court, Smart acknowledged that the self-defense charge correctly stated then current state law, but requested permission to argue against precedent.S.C.Sup.Ct.R. 8, Sec. 10.While the court denied the request and affirmed the conviction, it vacated the death sentence due to improper comments by the prosecutor during the sentencing phase of the trial and remanded for resentencing.State v. Smart, 278 S.C. 515, 299 S.E.2d 686(1982), cert. denied, 460 U.S. 1088, 103 S.Ct. 1784, 76 L.Ed.2d 353(1983).On remand, Smart waived a jury trial and was sentenced to two terms of life imprisonment.

Smart subsequently filed a habeas petition asserting that the self-defense charge improperly shifted the burden of proof in violation of the due process clause.U.S. Const. amend. XIV, Sec. 1.He also contends that the instruction was so contradictory and confusing as to violate due process, relying on 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 jury instructions defining reasonable doubt lessened the government's burden of proof.²

The district court found that the self-defense charge unconstitutionally relieved the State of its burden of proving every element of the offense of murder, Martin v. Ohio, 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed.2d 267(1987), and was so contradictory and confusing as to violate due process under Thomas.Smart v. Leeke, 677 F.Supp. 414(D.S.C.1987).The court further found that the due process violations were not harmless, Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460(1986), and granted the writ, allowing the State the opportunity to retry Smart.The district court obviously thought it unnecessary to address the challenge to the reasonable doubt instructions.

In Martin v. Ohio, the Supreme Court held that states may constitutionally require a defendant to affirmatively establish self-defense by a preponderance of the evidence as long as the government is required to prove all the elements of murder beyond a reasonable doubt.Smart argues that placing the burden on him to prove self-defense effectively required him to negate an element of the crime--malice--and thereby impermissibly relieved the State of its burden of proof.Upon consideration of established Supreme Court precedent, including the recent decision in Martin v. Ohio, we conclude that the self-defense charge did not violate due process.

II.

Murder is defined in South Carolina as "the killing of any person with malice aforethought, either express or implied."S.C.Code Ann. Sec. 16-3-10(Law.Co-op.1976).Malice is further defined as the intentional doing of a wrongful act, without just cause or excuse.State v. Foster, 66 S.C. 469, 475-76, 45 S.E. 1, 4(1903).

Self-defense is a complete defense constituting an excuse for the taking of a life.State v. Martin, 216 S.C. 129, 134, 57 S.E.2d 55, 57(1949).Pursuant to state law at the time of this trial, a defendant asserting self-defense was required to establish, as was Smart, the following elements by a preponderance of the evidence:

(1)[H]e was without fault in bringing on the difficulty.

(2)[H]e actually believe[d]he was in imminent danger of losing his life or of sustaining serious bodily injury or that he actually was in such imminent danger of losing his life or of sustaining serious bodily injury.

(3)[I]f his defense is based upon his belief of imminent danger, that a reasonable prudent man of ordinary firmness and courage would have entertained the same belief, or if his defense is based upon his being in actual and imminent danger, that the circumstances were such as would warrant a man of ordinary prudence, firmness and courage to strike a fatal blow to save himself from serious bodily harm, or losing his life.

(4)He had no other means of avoiding the danger of losing his life or sustaining serious bodily injury than to act as he did in the particular instance.

SeeState v. Davis, 282 S.C. 45, 317 S.E.2d 452(1984).³

III.

It has never been seriously questioned that the Constitution requires that the burden of proof in a criminal case be placed on the prosecution to establish the guilt of an accused beyond a reasonable doubt.In re Winship, 397 U.S. 358, 361-62, 90 S.Ct. 1068, 1071, 25 L.Ed.2d 368(1970).The Supreme Court explicitly declared in Winship that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."Id. at 364, 90 S.Ct. at 1073.

Another "long-accepted rule was that it was constitutionally permissible to provide that various affirmative defenses were to be proved by the defendant."Patterson v. New York, 432 U.S. 197, 211, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281(1977).But, unlike the reasonable doubt rule, there have been several challenges to the constitutionality of placing a burden on the defendant to prove certain affirmative defenses.

In Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302(1952), the Court addressed the question of whether due process was violated by a state statute which required a defendant pleading insanity to establish the defense beyond a reasonable doubt.The defendant, who was charged with murder in the first degree, argued that the statute required him to prove his innocence by disproving elements of the crime charged.The Court acknowledged that the jury might have found the defendant mentally incapable of the premeditation and deliberation required to prove first degree murder or the intent essential to both first and second degree murder, but not legally insane.However, the Court concluded that the state was "required to prove beyond a reasonable doubt every element of the crime charged."Id. at 794, 72 S.Ct. at 1005.Thus, despite some overlap of proof on the mental element essential to the offense and to the insanity defense, a state may constitutionally place the burden of proving the defense on a defendant.

In Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508(1975), the Court addressed the constitutionality of a Maine law which required a defendant charged with murder to rebut a presumption of malice and prove that he acted "in the heat of passion on sudden provocation" in order to reduce a charge of murder to manslaughter.⁴ Two degrees of homicide existed under Maine law--murder and manslaughter.Murder was defined as the unlawful killing of a human being with malice aforethought, either express or implied, id. at 686 n. 3, 95 S.Ct. at 1883 n. 3(quotingMe.Rev.Stat.Ann. tit. 17, Sec. 2651(1964)), and manslaughter as the unlawful killing of a human being "in the heat of passion, on sudden provocation, without express or implied malice aforethought,"id.(quotingMe.Rev.Stat.Ann. tit. 17, Sec. 2551(1964)).The jury had been instructed, in accordance with Maine law, "that if the prosecution established that the homicide was both intentional and unlawful, malice aforethought was to be conclusively implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation."Id. at 686, 95 S.Ct. at 1883(footnote omitted).The Court held that this instruction violated the due process mandate of Winship that the prosecution prove beyond a reasonable doubt every fact necessary to constitute the crime charged.

After Mullaney a serious question arose as to the constitutionality of requiring a defendant to prove any affirmative defense, except insanity.⁵ Many urged, as did the defendant in Patterson, that:

[T]he State may not permit the blameworthiness of an act or the severity of punishment authorized for its commission to depend on the presence or absence of an identified fact without assuming the burden of proving the presence or absence of that fact, as the case may be, beyond a reasonable doubt.

432 U.S. at 214, 97 S.Ct. at 2329(footnote omitted).However, the Court rejected this interpretation and...