Thomas v. Leeke
| Decision Date | 12 January 1984 |
| Docket Number | No. 83-6255,83-6255 |
| Citation | 725 F.2d 246 |
| Parties | Sarah THOMAS, Appellant, v. William D. LEEKE, Commissioner; The Attorney General of the State of South Carolina, Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Vance L. Cowden, University of South Carolina School of Law, Columbia, S.C., for appellant.
Donald J. Zelenka, Asst. Atty. Gen., Columbia, S.C. (T. Travis Medlock, Atty. Gen., Columbia, S.C., on brief), for appellees.
Before HALL and MURNAGHAN, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.
Sarah Thomas, who was convicted of murder and sentenced to life imprisonment in a prosecution in the courts of South Carolina, appeals from the order of the United States District Court for the District of South Carolina, 547 F.Supp. 612, denying her a writ of habeas corpus. She asserts the constitutional invalidity of her conviction on the grounds that the jury was wrongly instructed regarding the burden of proving self-defense.
Because we think that, read in context, the charge to the jury regarding self-defense was constitutionally inadequate, we reverse the order of the district court and direct it to issue the writ unless Thomas is tried anew within such reasonable period as the district court may fix.
Thomas was convicted of murder for shooting Carnell Hunter on October 13, 1979 in Columbia, South Carolina. Up to a certain point, the facts are not in dispute. Thomas purchased, through a middleman, a quantity of heroin from the victim Hunter. Believing that the heroin was not of good quality, Thomas sought to reacquire the money she paid for it. Hunter returned some, but not all of the money, and a heated discussion between the two ensued.
Determined to recover the rest of her money, Thomas went into Dell's Lounge in Columbia, where Hunter was drinking with some friends. She had with her a pistol which she had borrowed from Sammy White, to whom she had stated that she was borrowing the pistol for a purpose other than to shoot Hunter. She approached Hunter, and demanded that he return the money. At gunpoint, Hunter smiled and gave her four dollars. Thomas began to retreat, heading away from Hunter and toward the door.
At this point, the various accounts diverge. According to witnesses for the state, Thomas turned and said "I ought to kill you," and shot Hunter four times. According to Thomas, she heard Hunter threaten to kill her as she retreated to the door. Thomas saw him reach toward a bulge at his side, which she believed to be a gun, and shot Hunter three times. 1 Thomas' version of the facts was corroborated by an eyewitness, Gloria White.
The trial judge presented the jury with the possible verdicts of guilty of murder, guilty of manslaughter, and not guilty. After instructing the jury that the state had the burden of proving guilt beyond every reasonable doubt, the court defined murder, manslaughter, and malice. The court charged the jury:
Murder is defined as the willful, felonious killing of a human being with malice aforethought, that malice being either expressed malice or implied malice.
The judge defined malice as follows:
Malice is a word suggesting wickedness, hatred, and a determination to do what one knows to be wrong without just cause or excuse or legal provocation.
The court also provided two, apparently interchangeable, definitions of manslaughter, the second of which was
the unlawful or felonious killing of a human being without malice in sudden heat and passion upon a sufficient legal provocation.
The judge then set out the defense of self-defense, and instructed the jury regarding the burden of proof with respect to self-defense.
Self-defense. Mr. Foreman and members of the jury, the law of South Carolina recognizes the right of every person to defend herself from death or serious bodily harm; and to do this, she may use such force as is necessary, even to the point of taking a human life. In other words, self-defense is a complete defense and entitles one charge[d] with an unlawful homicide to an acquittal or a verdict of not guilty if the legal elements of the plea of self-defense are shown to your satisfaction by the evidence. The right of self-defense rests upon necessity, either actual or reasonably apparent. In order to establish the plea of self-defense, [in] any homicide case, the accused must show four things. First, that she was not in fault in bringing about the immediate difficulty or the necessity for her taking the human life. Obviously, one cannot through her fault, bring on a difficulty, and then claim the defense of self-defense. Second, that at the time she fired the fatal shot, she believed in good faith that she was in imminent danger of losing her life or sustaining serious bodily harm. Imminent means immediate--not past or future, but present. Third, that such belief was reasonable and that a reasonably careful and prudent woman, a woman of ordinary firmness and courage situated in like circumstances would have reached a similar conclusion. Four, where both the deceased and the defendant are on common ground, that is, where both have a right to be, then the defendant must show that she had no other reasonably safe, adequate, or obvious means of escape or way of [avoiding] the danger of losing her life or sustaining serious bodily harm except to act as she did.
* * *
Where the defendant sets up, as here, the plea of self-defense and undertakes to present a case of apparent danger which is honestly believed in as a defense, the jury should in justice to the accused consider all the surrounding circumstances and facts calculated to influence motive. Burden of proof in self-defense, I charge you that while in South Carolina [the State ] is bound to prove every material allegation or claim of the indictment beyond every reasonable doubt in order to obtain a conviction, the accused, if she seek[s] to excuse the killing by relying upon the plea of self-defense, is required to establish such plea of self-defense by the preponderance or greater weight of the evidence, and therefore held to a a [sic] lesser degree of proof than the State. I told you explicitly that the burden of proof on the State is beyond every reasonable doubt. On the plea of self-defense, the defendant must establish that plea of self-defense by the preponderance or greater weight of the evidence. The preponderance or greater weight of the evidence simply means the greater amount of the truth on that issue. It may be demonstrated by thinking of an ordinary or merchant scales. When you consider the plea of self-defense, it starts initially with the scales level and even. In order for the defendant to meet the required burden of proof of self-defense by the greater weight or preponderance of the evidence, she must tip those scales ever so slightly in her favor on that issue in order to meet the required burden; and if she tips those scales ever so slightly in her favor on the issue of self-defense she has met the required burden of proof. If however those scales remain even or if they tip ever so slightly in the State's favor, she has not met the required burden of proof. The accused is entitled to the benefit of every reasonable doubt arising upon the whole case after considering the testimony for and against any defense relied upon by the accused. It does not matter whether or not the preponderance of the evidence is in her favor if you entertain a reasonable doubt as to her guilt. For under those circumstances, it would be your sworn duty to acquit the defendant or to find the defendant "not guilty."
(Emphasis supplied)
At the conclusion of the charge, Thomas' trial attorney made a timely objection to the court's instruction on the burden of proof in self-defense. The jury, after it had begun its deliberations, returned to the courtroom and again was instructed on the definitions of murder, manslaughter, and malice. After further deliberation, the jury returned a verdict of guilty of murder, but accompanied its verdict with a recommendation of leniency.
In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), stands for the proposition that the Due Process Clause requires a state to prove beyond a reasonable doubt "every fact necessary to constitute the crime" with which a defendant is charged. 397 U.S. at 364, 90 S.Ct. at 1072. In Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), the Supreme Court applied the rule of Winship in reaching its determination that, where a State makes heat-of-passion on the part of the accused a factor relevant to guilt, or degree of guilt, the due process clause requires the prosecution to bear the burden of proof on the heat-of-passion issue.
The Court, with respect to degree of guilt, retreated from Mullaney in Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). The Patterson court upheld the constitutionality of a New York law which cast upon the defendant the burden of proving, by a preponderance of the evidence, the affirmative defense of extreme emotional disturbance. That defense could reduce murder to manslaughter, not, however, lead to complete acquittal. The Patterson Court, did not profess to overturn Mullaney, rather it sought to distinguish it. Notwithstanding Justice Powell's compelling claim that the Patterson majority did so "on the basis of distinctions in language that are formalistic rather than substantive", 432 U.S. at 221, 97 S.Ct. at 2332 (Powell, J. dissenting), Mullaney must be viewed as alive, if not well.
In reaching its result, the Patterson Court declined to adopt as a constitutional imperative, operative country-wide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused.
432 U.S. at 210, 97 S.Ct. at 2327. 2 At the same time, the Court acknowledged the continued effectiveness of ...
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...thought the charge defective because it, as a whole, was so conflicting and confusing as to be constitutionally infirm. See Thomas v. Leeke, 725 F.2d 246 (4th Cir.) cert. denied, ___ U.S. ___, 105 S.Ct. 218, 83 L.Ed.2d 148 A reasonable juror could have interpreted the charge literally as es......
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