St. Pierre v. State

• Decision Date: 17 December 1980
• Docket Number: No. 8126,8126
• Parties: Louis ST. PIERRE, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 1240

620 P.2d 1240

96 Nev. 887

Louis ST. PIERRE, Appellant, v. The STATE of Nevada, Respondent.

No. 8126.

Supreme Court of Nevada.

Dec. 17, 1980.

David Hamilton, Reno, for appellant.

Richard H. Bryan, Atty. Gen., Carson City, Calvin R. X. Dunlap, Dist. Atty. and Edward B. Horn, Deputy Dist. Atty., Reno, for respondent.

OPINION

MANOUKIAN, Justice:

In this appeal, appellant seeks reversal assigning error, inter alia, to alleged prosecutorial and police improprieties occurring prior to as well as during trial, juror irregularities, and the severity of his sentence. Nevertheless, the single issue warranting our consideration and which impels us to order a new trial is whether the jury instruction on self-defense improperly shifted the burden of proof of an essential element of the charge of murder upon the appellant. ¹ We hold that it does, and for the reasons hereinafter expressed, reverse.

Appellant, Louis St. Pierre, had, during the month prior to the instant February 16, 1974 shooting, filed a complaint with the Washoe County Sheriff's Department alleging that Sam Sutphen, Richard Swatzenberg and the decedent, Tom Whitworth, had stolen his lumber. Pursuant to his own investigation, St. Pierre discovered that the wood was located in the back yard of the Swatzenberg's residence. ² The afternoon of February 16, appellant and a business partner, Cleve Clark, informed the Swatzenbergs that their rent would increase from $65 to $165 a month; an increase designed to force the Swatzenbergs to move.

At 5:58 p. m. on February 16, 1974, Officer Balaam of the Washoe County Sheriff's Department, arrived at the Kirkley residence in order to do a follow-up report on the reported lumber theft. Officer Balaam, left the residence at 6:33 p. m. After leaving, Officer Balaam received a radio report that a shooting had occurred. Balaam immediately returned to the crime scene. During the short interval, Thomas Whitworth was shot and killed.

After Officer Balaam's initial departure at 6:33, appellant and Dale Kirkley went into the backyard of a lot neighboring the Swatzenberg residence to estimate the quantity of lumber in the yard. Richard Swatzenberg and Sam Sutphen approached from the other side of the fence and an argument over the wood ensued. Almost simultaneously, Whitworth drove up the Swatzenberg's driveway, jumped out of his car, and ran toward the fence. Whitworth was physically restrained by Swatzenberg before reaching the fence. An argument over the rent increase began. During this argument St. Pierre fired two shots. Swatzenberg testified that the shots were fired at the outstretched hands of Whitworth. Appellant testified that the shots were fired down the fence line as warning shots, an assertion corroborated by the location of the ejected shells from the two shots. The defense maintained that the argument ended when Whitworth left the scene to seek police aid. The state contends that it ended when Whitworth left to obtain a weapon.

Shortly thereafter, the argument was resumed in the street in the front of the trailer where Whitworth was residing. During this argument, Whitworth was shot and killed. There were numerous witnesses to the incident; however, their testimony was conflicting. Two discernible patterns emerged: those who testified that Whitworth raised his hands in a surrender position and began to retreat; and those who testified that Whitworth first threatened St. Pierre and then lunged at him.

Following a protracted jury trial, appellant was found guilty of second degree murder. On appellant's motion we entered an order permitting a bifurcation of this appeal to consider the sole issue of whether the rationale of Mullaney v. Wilbur ³ renders the jury instruction on the burden of proving self-defense unconstitutional. We dismissed the remainder of the appeal without prejudice to reinstate, if appropriate.

Subsequent to our refusal to extend the Mullaney principle to self-defense absent more guidance from the United States Supreme Court, St. Pierre v. State, 92 Nev. 546, 554 P.2d 1126 (1976), the high court did apply the Mullaney rationale to affirmative defenses which negate an essential element of the charged offense. Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 381 (1977). In Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977), the Court authorized the retroactive application of the Patterson rationale.

In March 1977, we ordered the reinstatement of the original appeal. Appellant now contends that in view of Patterson and Hankerson, reversal of St. Pierre's conviction is mandated. On this record, we are constrained to agree.

Instruction no. 16 read: "The burden of proving circumstances which justify or excuse the killing of another is upon the defendant but the defendant need not prove such circumstances beyond a reasonable doubt." This instruction is identical to that given and objected to in Kelso v. State, 95 Nev. 37, 41, 588 P.2d 1035, 1038. In both cases, the now impermissible instruction was proper under Nevada law. In Kelso, we overruled our initial decision in St. Pierre v. State, 92 Nev. 546, 554 P.2d 1126, concerning the given instruction, holding that with respect to the defense of self-defense, the instruction "retains the misleading tendency to impose the burden of proof by a preponderance on the defendant," id. at 43, 588 P.2d at 1040. We reasoned that because self-defense is justifiable, it negates the unlawfulness element of murder. Accordingly, once the accused raises the issue of self-defense and the record contains some evidence of its existence, whatever its source, People v. McEvoy, 33 Ill.App.3d 409, 337 N.E.2d 437 (Ill.App.1975), he cannot be required to shoulder the burden of proving self-defense by any standard as self-defense by its nature, disproves a fact essential to the offense. To shift the burden to the defendant "dilutes the State's own due process burden of proving, beyond a reasonable doubt, every element of the crime charged." Kelso v. State, 95 Nev. at 41, 588 P.2d at 1038, citing Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281. Notwithstanding we there determined that although the instruction was erroneous, it did not require reversal, because of the absence of a showing of either a miscarriage of justice or prejudice to Kelso's substantial rights.

Although respondent ably argues that the procedural default incidental to appellant's failure to object to the questioned jury instruction under the so-called "contemporaneous objection rule" constitutes a waiver of such claim, Stewart v. Warden, 94 Nev. 516, 516, 579 P.2d 1244, 1245 (1978); McCall v. State, 91 Nev. 556, 557, 540 P.2d 95, 95 (1975), Hankerson, through footnote, has seemingly deferred to the states the question of whether reversal is mandated. ⁴ In light of Hankerson's ad hoc approach, and the "closeness" of this case, fundamental fairness requires us to consider the question on its merits.

Utilizing the "cause" and "prejudice" approach in reviewing allegations of error untimely raised, as enunciated in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) and Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), we may, given the proper showing, consider recognized constitutional claims attendant to a procedural waiver. Recognizing that the above rule stems from habeas corpus proceedings, we nevertheless believe that the cases are persuasive authority to adopt the same standard on direct review. Accordingly, to promote judicial economy, finality, and rather than compel a defendant to seek federal habeas corpus relief, we are constrained to apply the above standard of review on direct appeals. See Commonwealth v. Hilbert, 476 Pa. 288, 382 A.2d 724 (1978); Commonwealth v. Lynch, 477 Pa. 390, 383 A.2d 1263 (1978); Squire v. State of Md., 280 Md. 132, 368 A.2d 1019 (1977) where other state courts reach parallel results.

"Cause" for appellant's failure to object is demonstrated by the fact that objection would have been futile as the imposition of the burden of persuasion on a defendant had been upheld by this court on prior occasions. Phillips v. State, 86 Nev. 720, 475 P.2d 671 (1970); White v. State, 82 Nev. 304, 417 P.2d 592 (1966)....