Tillman v. Cook, 2:95-CV-731 B.
| Decision Date | 31 August 1998 |
| Docket Number | No. 2:95-CV-731 B.,2:95-CV-731 B. |
| Parties | Elroy TILLMAN, Petitioner, v. Gerald L. COOK, Warden, Utah State Prison and Jan Graham, Utah Attorney General, Respondents. |
| Court | U.S. District Court — District of Utah |
Loni Deland, Michael Sikora, Salt Lake City, UT, for Plaintiff.
J. Federic Voros, Jr., Angela Micklos, Salt Lake City, UT, for Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
On the night of May 25, 1982, Petitioner Elroy Tillman entered the home of Mark Schoenfeld, the new-found lover of Tillman's ex-girlfriend. After quietly crawling into Schoenfeld's darkened bedroom, Tillman signaled to his accomplice to turn on a light, whereupon Tillman hit Schoenfeld several times in the head with an axe. While Schoenfeld was still alive, Tillman set fire to the victim's mattress, and quickly fled the scene.
Soon after his accomplice agreed to cooperate with police officers investigating the homicide, Tillman was charged with first-degree murder. On January 14, 1983, a jury convened in Utah's Third District Court found Tillman guilty of capital murder in violation of Utah Code Ann. § 76-5-202. Six days later, the same jury sentenced Tillman to death by lethal injection. On appeal, the Utah Supreme Court affirmed the conviction and sentence on December 27, 1987. State v. Tillman, 750 P.2d 546 (Utah 1987)(Tillman I).
Tillman then sought a writ of habeas corpus through the Utah court system. The Third District Court denied his petition. On appeal, the Utah Supreme Court affirmed that denial, Tillman v. Cook, 855 P.2d 211 (Utah 1993)(Tillman II), and later denied Tillman's request for rehearing on June 25, 1993. On January 10, 1994, the United States Supreme Court denied Tillman's petition for a writ of certiorari.
On March 8, 1994, Tillman filed a petition for a writ of habeas corpus with this Court under 28 U.S.C. § 2254. That petition was dismissed without prejudice to allow Tillman to fully exhaust his state remedies as required by § 2254.
Tillman's current Petition, filed August 13, 1995, pleads eight grounds for relief. The case was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B). After the matter was fully briefed, the Magistrate Judge held a hearing.
On December 23, 1997, the Magistrate Judge issued a Report and Recommendation, recommending that the Petition be denied. After the Court granted Petitioner an additional 30 days to respond to the Magistrate Judge's Report and Recommendation, Petitioner submitted his Objections to the Report and Recommendation on February 2, 1998. Petitioner objects to each of the Magistrate Judge's recommendations. Respondents submitted a Response to Petitioner's Objections on February 17, 1998.
As noted above, Petitioner Tillman takes issue with every finding and recommendation made by the Magistrate Judge in his Report and Recommendation. In ruling on the Petitioner's objections, the Court has carefully reviewed all aspects of the Report and Recommendation, and finds it to be thorough and well-reasoned.
Because this is a case involving the death penalty, nothing less than the most painstakingly thorough analysis is to be expected. The Court has now carefully examined de novo each legal principal raised by Petitioner's objections. This explanation is provided at the outset of this relatively brief Opinion and Order to allay any question the Petitioner might otherwise have as to the level of scrutiny provided by the District Court in this review.
The Magistrate Judge's Report and Recommendation requires little, if any, amplification or elucidation. The Court finds no legal merit in any of the Petitioner's objections. The objections are virtually identical to the points raised in the Petition itself. The Court adopts the Report and Recommendation in its entirety and without any modification. However, the Court does feel inclined to provide the following additional brief comments on two of the eight grounds for relief.
Petitioner objects to the Magistrate Judge's conclusion that the trial court's reasonable doubt instruction was constitutionally acceptable. Specifically, Petitioner argues that the reasonable doubt instruction denied him of his right to a fair trial under Monk v. Zelez, 901 F.2d 885 (10th Cir.1990).
In Monk, the United States Court of Appeals for the Tenth Circuit held that a reasonable doubt instruction given at that criminal trial violated the defendant's constitutional rights. The instruction in Monk defined reasonable doubt as follows:
"Reasonable doubt" means a substantial honest, conscientious doubt suggested by the material evidence or lack of it in the case. It is an honest, substantial misgiving generated by the material evidence or lack of it in this case. It is an honest, substantial misgiving generated by insufficiency of proof or guilt. It is not a captious doubt, nor a doubt suggested by the ingenuity of counsel or court and unwarranted by the testimony, nor a doubt born of a merciful inclination to permit the accused to escape conviction, nor a doubt prompted by sympathy for him or those connected with him. Proof beyond a reasonable doubt means proof to a moral certainty although not necessarily an absolute or mathematical certainty. If you have an abiding conviction of [defendant's] guilt such as you would be willing to act upon in the more weighty and important matters relating to your own affairs, then you have no reasonable doubt.
The Monk court concluded that "taken as a whole," this reasonable doubt instruction did not "accurately convey[] the concept of reasonable doubt to the [jury]." Id. at 893. Using the word "substantial," no fewer than three times, the instruction placed undue emphasis on the magnitude of doubt required for acquittal.
The challenged instruction given at Petitioner Tillman's trial reads as follows:
I have heretofore told you that the burden is upon the State to prove the defendant guilty beyond a reasonable doubt. Now, by reasonable doubt is meant a doubt that is based on reason and one which is reasonable in view of all the evidence. Proof beyond a reasonable doubt is that degree of proof which satisfies the mind and convinces the understanding of those who are bound to act conscientiously upon it. A reasonable doubt is a doubt which reasonable men and women would entertain, and it must arise from the evidence or the lack of the evidence in this case.
If after an impartial consideration and comparison of all the evidence in the case you can candidly say that you are not satisfied of the defendant's guilt, you have a reasonable doubt. But if after such impartial consideration and comparison of all the evidence you can truthfully say that you have an abiding conviction of the defendant's guilt such as you would be willing to act upon in the more weighty and important matters relating to your own affairs, you have no reasonable doubt. A reasonable doubt must be a real, substantial doubt and not one that is merely possible or imaginary.
Report and Recommendation at 7. A comparison of this instruction with the instruction given in Monk reveals obviously different approaches and contexts. The instruction in this case explained the reasonable doubt standard far more thoroughly than did the instruction declared invalid in Monk, and the reference to "substantial doubt" in this case constituted "merely a small part of an otherwise correct burden of proof charge." Monk, 901 F.2d at 893.
Moreover, in Tillman's instruction the substantial doubt language was included only to distinguish reasonable doubt from "possible" or "imaginary" doubt, referring to the "existence rather than magnitude of the doubt." Victor v. Nebraska, 511 U.S. 1, 20, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994). This is significant. The Monk court cited with approval the Fourth Circuit's opinion in Murphy v. Holland, 776 F.2d 470, 477 (4th Cir.1985), vacated on other grounds, 475 U.S. 1138, 106 S.Ct. 1787, 90 L.Ed.2d 334 (1986), explaining that in that case "substantial doubt language did not require reversal [because the] court cautioned [the] jury that conviction requires exclusion of `every reasonable hypothesis but that of guilt' and only used substantial doubt language as a contrast to a `mere possible doubt' that would not prevent conviction." Monk, 901 F.2d at 893 (quoting Murphy, 776 F.2d at 477). The instruction given at Tillman's trial served a similar purpose and had a similar construction. It is therefore consistent with the Tenth Circuit's opinion in Monk.
The Court concludes that "taken as a whole," the instruction "correctly conveyed the concept of reasonable doubt" to the jury. Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954); Monk, 901 F.2d at 893.
Furthermore, as explained in some detail in the Magistrate Judge's Report and Recommendation, subsequent to the Tenth Circuit's Monk decision in 1990, the United States Supreme Court has issued further guidance on the constitutionality of reasonable doubt instructions. In Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994), the Court upheld a trial court's use of an instruction that described reasonable doubt as "an actual and substantial doubt" arising from the evidence. Id. at 18, 114 S.Ct. 1239. The Court explained that mere "reference to substantial doubt" is not "sufficient to render [an] instruction unconstitutional," id. at 20, 114 S.Ct. 1239, concluding that where "the context makes clear that `substantial' is used in the sense of existence rather than magnitude of the doubt," the instruction may indeed "`correctly convey[] the concept of reasonable doubt to the jury.'" Id. at 20, 22, 114 S.Ct. 1239 (quoting Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127,...
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