Smart v. Leeke
| Decision Date | 06 September 1988 |
| Docket Number | No. 87-7737,87-7737 |
| Citation | 856 F.2d 609 |
| 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 |
Donald J. Zelenka, Chief Deputy Atty. Gen., Columbia, S.C., for respondents-appellants.
David I. Bruck (Bruck & Blume, Columbia, S.C., on brief), for petitioner-appellee.
Before PHILLIPS, MURNAGHAN and WILKINS, Circuit Judges.
Here we are presented with a principle of law revisited. Ronald Francis Smart was tried for murder in a state court of South Carolina and was convicted and sentenced to death. While the conviction was affirmed by the South Carolina Supreme Court, the death sentence was vacated. Resentencing led to two consecutive terms of life imprisonment. The crime for which Smart had been charged was causing death wrongfully without legal excuse of justification.
Smart in his defense pleaded self-defense and introduced sufficient evidence to put self-defense in issue.
The case resembles in some very similar respects the case of Griffin v. Martin, 785 F.2d 1172 (4th Cir.1986), rehearing en banc granted, 795 F.2d 22 (4th Cir.1986). The district court's denial of the writ of habeas corpus in that case, though the writ had been granted at the panel level, was affirmed by an equally divided vote of the Fourth Circuit, 795 F.2d 22 (4th Cir.1986) (). A petition for certiorari to the United States Supreme Court was denied, 480 U.S. 919, 107 S.Ct. 1376, 94 L.Ed.2d 691 (1987). Therefore, the panel decision in Griffin v. Martin has no precedential authority but may be referred to as an indication of what the law is wherever it is found to be persuasive. In Griffin v. Martin at the panel level the burden of finding the absence of self-defense beyond a reasonable doubt was placed on the prosecution.
Since the panel decision in Griffin v. Martin, there have been subsequent developments which bear quite directly on the issues presented in the present case. The Supreme Court of the United States has announced its decision in Martin v. Ohio, 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987), and the Supreme Court of South Carolina has announced its decision in State v. Bellamy, 293 S.C. 103, 359 S.E.2d 63 (1987).
From Martin v. Ohio, we learn that, where all the ingredients of the crime are proven, and where the statute does not require rebuttal by the prosecution of self-defense, the self-defense is affirmative in nature and the burden by preponderance of the evidence may be placed on the defense. From State v. Bellamy, we learn that in South Carolina self-defense is no longer an affirmative defense. A defendant seeking to rely on self-defense need merely produce evidence which may cause a reasonable doubt in the minds of the jury as to the presence of that element. 293 S.C. at 105, 359 S.E.2d at 64-65. Thereupon self-defense enters the case, and the burden is assigned to the prosecution to prove absence of self-defense beyond a reasonable doubt. That new principle of South Carolina law, while it may contradict the earlier law on the subject, does not, of itself, render the old law unconstitutional. State v. Glover, 284 S.C. 152, 154, 326 S.E.2d 150, 151 (1985), cert. denied, 471 U.S. 1068, 105 S.Ct. 2147, 85 L.Ed.2d 503 (1985). The new law is applied to all cases tried subsequent to the date of State v. Davis, 282 S.C. 45, 317 S.E.2d 452 (1984). Glover, 284 S.C. at 154, 326 S.E.2d at 151. The instant case was tried in 1981, well before the 1984 decision in Davis.
The crucial question confronting us then is whether, in a South Carolina trial before 1984, an instruction which placed upon a defendant who had put self-defense in issue the burden to prove it by a preponderance of the evidence violated due process under the Federal Constitution. Under South Carolina law, an absence of self-defense is an essential element of the crime of murder where self-defense has been introduced into the case. In Smart's case, he was tried under a statute making criminal "the killing of any person with malice aforethought, either express or implied." S.C.Code Ann. Sec. 16-3-10 (Law. Co-op.1976). The South Carolina Supreme Court has long defined "malice" as the intentional doing of a wrongful act, without legal justification or excuse. State v. Foster, 66 S.C. 469, 476, 45 S.E. 1, 4 (1903) (emphasis supplied). Self-defense, if made out, would amount to legal justification or excuse. The act would not be wrongful. Consequently the absence of self-defense, for federal constitutional purposes, must, even in 1981 or prior years, have been established by the prosecution beyond a reasonable doubt 1 for guilt of the crime to be established.
It is of utmost importance to realize that there are two different factors presented here for our consideration. One is known as the elements of the crime, the other is the burden of proof. In order to appreciate the difference between the two factors, it is necessary to understand the distinction between Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). In Mullaney v. Wilbur, the unanimous Supreme Court held unconstitutional Maine's practice of presuming malice and requiring a defendant to prove by a preponderance of the evidence that he killed in a sudden heat of passion based on adequate provocation in order to reduce intentional homicide from murder to manslaughter. In Patterson, the Supreme Court upheld a New York statute allowing a defendant to mitigate a charge of murder to manslaughter if he could prove by a preponderance of the evidence that he acted under extreme emotional disturbance for which there was reasonable explanation or excuse. According to the Patterson Court, the distinction between Mullaney and Patterson is based on the fact that Maine law, under consideration in Mullaney, had specified "malice" as an essential ingredient of murder. Patterson, 432 U.S. at 212-16, 97 S.Ct. at 2328-30. The Patterson Court reasoned that in Maine malice, which the state had to prove beyond a reasonable doubt, encompassed the absence of sudden heat of passion based on adequate provocation. Id. at 216, 97 S.Ct. at 2330. On the other hand, the New York statute did not use the term "malice"; therefore, in New York the absence of extreme emotional disturbance was not part of the definition of murder. Justice White was careful at the outset of the majority opinion in Patterson to point out that in New York causing a person's death with an intent to do so alone made out the crime of murder. "Malice aforethought is not an element of the crime." Patterson, 432 U.S. at 198, 97 S.Ct. at 2320. 2 Mullaney, therefore, was distinguished, but by no means overruled, in the Patterson case. See Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985) ().
Moreover, up until the time (1967) 3 when the statute in Patterson came into existence, extreme emotional disturbance was simply not relevant to the crime of murder. Its proof or the lack of it did not constitute an element of the crime. The New York legislature, in enacting the statute, provided something new of benefit to the defendant not present before. The legislature was free to make such terms as it wished so it could make extreme emotional disturbance something which the benefited defendant was required to prove as an affirmative defense. The legislature was free not to cast on the prosecution the entirely novel burden of demonstrating the absence of extreme emotional disturbance. Patterson, 432 U.S. at 207-08, 97 S.Ct. at 2325-26. In contrast, though Maine law placed the burden on the defendant of showing lack of malice, the presence of malice was traditionally an element of the crime of the murder in that state. 4 By the same token, since time immemorial, malice or lack of self-defense has been an ingredient of the crime of murder in South Carolina.
In both Ohio and South Carolina, state law has placed the burden of proof of self-defense by a preponderance of evidence upon the defendant, and the South Carolina prosecutor rests his case on that aspect of the matter. However, insofar as elements of the crime are concerned, there is a vital distinction, namely, the applicable difference as to the elements of the crime in the laws of Ohio and South Carolina that sets apart Martin v. Ohio, 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987), on the one hand, and the instant case of Smart v. Leeke, on the other.
In South Carolina, the killing, even if intentional, in and of itself does not constitute a crime, especially the crime of murder. In order to make out a crime, it is necessary to demonstrate the combined effect of killing with malice. Since lack of self-defense is one aspect of malice, once self-defense has entered the case through presentation by the defense of some relevant evidence, the failure to prove malice beyond a reasonable doubt is fatal from the prosecution's point of view. Irrespective of the state law on the subject, under In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), as an element of the crime, malice must be proved by the prosecution beyond a reasonable doubt.
In Ohio things are different. The crime of murder, under state law, is made out by the prosecutor when he or she shows the causing of death purposely and with prior calculation and design. In Martin v. Ohio, the existence of those elements was not disputed by the defendant. The prosecutor in Ohio is not required as part of his case-in-chief to demonstrate malice. Without the matter of malice being considered, the crime is established by the prosecution; the defendant...
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