White v. Arn

• Decision Date: 09 April 1986
• Docket Number: No. 84-3963,84-3963
• Citation: 788 F.2d 338
• Parties: Louise WHITE, Petitioner-Appellant, v. Dorothy ARN, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 338

788 F.2d 338

Louise WHITE, Petitioner-Appellant, v. Dorothy ARN, Respondent-Appellee.

No. 84-3963.

United States Court of Appeals Sixth Circuit.

Argued Jan. 27, 1986.

Decided April 9, 1986.

Richard L. Aynes, School of Law, The University of Akron, Akron, Ohio, Dean Carro (argued), for petitioner-appellant.

William J. Steele, Asst. Atty. Gen., Columbus, Ohio, Cordelia A. Glenn (argued), for respondent-appellee.

Before KENNEDY and CONTIE, Circuit Judges, and GIBSON, ^* District Judge.

CONTIE, Circuit Judge.

Petitioner Louise White appeals the order of the district court dismissing her petition for writ of habeas corpus filed pursuant to 28 U.S.C. Sec. 2254. White essentially raises one issue, whether the Ohio statute which requires defendants to prove self-defense by a preponderance of the evidence is unconstitutional because it removes from the state its burden to prove every element of a crime beyond a reasonable doubt. For the reasons that follow, we find that the Ohio law is constitutional and we therefore affirm the judgment of the district court.

I.

On November 22, 1979, Thanksgiving Day, White killed her husband, Denver White. At approximately 5:00 p.m. that day White and the decedent were at a local bar. When the decedent expressed a desire to leave, a dispute between the two arose concerning whether White would leave with him. Eventually, the decedent left alone after twice spilling White's drink on her. Upon White's return to their trailer home, the decedent was allegedly violent with White. White left and went to a neighbor's trailer. When she left, she had a handgun in her purse which apparently was the decedent's. While at her neighbor's trailer, White was visibly upset and she discussed the decedent's violence. Another person who was visiting in the trailer examined the handgun and showed White how to operate it.

White then returned to her trailer, purportedly finding the decedent still in a violent state. White claims that the decedent threatened to kill her and approached her wielding a large ash tray. White then shot and killed the decedent, firing the handgun eight times. Seven bullets entered the side or the back of the decedent's body from a distance of two to four feet. The ashtray stand was found near the decedent's head.

The Portage County Grand Jury indicted White on one count of aggravated murder in violation of section 2903.01 of the Ohio Revised Code. ¹ White pleaded not guilty and a jury trial was held on April 14-18, 1980. At trial, White raised the affirmative defense of self-defense. In support of her defense, White testified as to the events the day of the shooting and testified that the decedent had beaten her repeatedly in the past. She described two particular events and the acts of violence committed by the decedent.

The trial court instructed the jury that "[t]he burden of proving the defense of Self-Defense is upon the Defendant, and that burden ... is to establish such affirmative defense by a preponderance of the evidence." White objected to this allocation of the burden of proving self-defense on the basis that it removed from the prosecution its burden of proving a defendant's guilt beyond a reasonable doubt as is required by due process. The jury found White not guilty of aggravated murder but guilty of the lesser included offense of murder in violation of section 2903.02 of the Ohio Revised Code. ² On May 5, 1980, the trial court sentenced White to a prison term of 15 years to life.

White appealed her conviction to the appropriate Ohio appeals court, which affirmed her conviction. State v. White, Case No. 1048 (11th Dist.Ct. of App.1981). White then appealed to the Ohio Supreme Court which dismissed the appeal for lack of a substantial constitutional question. State v. White, Case No. 81-1744 (Ohio S.Ct.1982). Subsequently, White filed a petition for writ of certiorari with the United States Supreme Court. On October 4, 1982, the Court denied the petition. White v. Ohio, 459 U.S. 849, 103 S.Ct. 109, 74 L.Ed.2d 97 (1982).

On April 26, 1984, White filed the instant petition for writ of habeas corpus with the District Court for the Northern District of Ohio. As the sole ground for relief, White claimed the following:

Petitioner's Fourteenth Amendment due process rights to require the state to prove beyond all reasonable doubt were violated when, over her counsel's objection, the state placed the burden to prove that she acted in self-defense upon her.

The district court judge, pursuant to local rule, submitted the case to a magistrate for recommendation. The magistrate prepared an extensive opinion recommending that the petition be denied. On November 2, 1984, the district court adopted the opinion and dismissed White's habeas petition. This timely appeal followed.

II.

A. Introduction

The focus of this habeas claim, whether Ohio may constitutionally place the burden of proving self-defense on the accused, often has been the subject of judicial discussion during the past decade. A brief historical explanation is necessary to put the present status of this issue in perspective. Prior to 1974, Ohio followed the common law tradition of allocating to defendants the burden of proving affirmative defenses by a preponderance of the evidence. State v. Seliskar, 35 Ohio St.2d 95, 298 N.E.2d 528 (1973). On January 1, 1974, however, a restructured Ohio Criminal Code became effective. In 1976, the Ohio Supreme Court interpreted the new statute concerning affirmative defenses, section 2901.05(A) of the Ohio Revised Code. ³ State v. Robinson, 47 Ohio St.2d 103, 351 N.E.2d 88 (1976). The Court observed that a majority of states had abandoned the common law approach in favor of requiring that the prosecution disprove any affirmative defense raised by the evidence in a given case. Id. at 108-09, 351 N.E.2d 88. The Court then determined that the Ohio legislature intended to adopt the majority rule in enacting section 2901.05(A), and accordingly held that in Ohio, a defendant asserting an affirmative defense only had the burden of going forward with evidence sufficient to create an issue as to that defense. Id. at 110-13, 351 N.E.2d 88. Robinson was given retroactive effect to the effective date of section 2901.05(A) in State v. Humphries, 51 Ohio St.2d 95, 364 N.E.2d 1354 (1977). Section 2901.05(A) was amended, however, effective November 1, 1978, to reinstate the common law rule requiring the defendant to prove an affirmative defense by a preponderance of the evidence. ⁴ This amended version of section 2901.05(A) was in effect at the time of White's trial. Accordingly, our analysis focuses on the constitutionality of that statute's allocation of the burden of proving affirmative defenses, and in particular, whether the statute's requirement that White prove self-defense by a preponderance of the evidence unconstitutionally removed from the prosecution its burden of proving all the elements of murder as defined in Ohio beyond a reasonable doubt.

As a final introductory comment, we note that the issue of whether Ohio may constitutionally place the burden of proving self-defense on the accused was the underlying substantive issue in Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). ⁵ The Court observed that the issue presented a "colorable" and "at least a plausible" constitutional claim. Id. at 122, 102 S.Ct. at 1568. However, because the defendants asserting the claim failed to preserve the claim before the state courts, the principles set forth in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), barred the Court's consideration of the claim in a habeas proceeding. Accordingly, the Court did not reach the merits of Isaac's case. We have no such problem here, as White raised her present claim before the state courts on direct appeal. Since there has been no procedural default, and there exists no binding precedent, ⁶ we are free to decide this claim on its merits.

B. Winship, Mullaney and Patterson

White argues that under In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and its progeny, 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), Ohio's allocation of the burden of proving self-defense is unconstitutional. Winship recognized the broad principle 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." Winship, 397 U.S. at 364, 90 S.Ct. at 1072.

The Supreme Court elaborated on this issue process requirement in Mullaney. At issue in Mullaney was a Maine rule which required a defendant charged with murder to prove that he acted in the heat of passion on sudden provocation in order to reduce the charge to manslaughter. The defendant in Mullaney was charged with murder, which the Maine statute defined as the unlawful killing of a human being "with malice aforethought, either express or implied." Mullaney, 421 U.S. at 686 n. 3, 95 S.Ct. at 1883 n. 3. The trial court instructed that if the prosecution established the killing was intentional and unlawful, "malice aforethought was to be 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. The trial court emphasized that heat of passion was inconsistent with malice aforethought and accordingly proof of heat of passion negated the element of malice aforethought. Id. at 686-87, 95 S.Ct. at 1883. The Supreme Court held that the Maine presumption unconstitutionally shifted to the defendant the burden of proving an essential element of the crime of murder in violation of the Winship rule that the prosecution bears the burden of proving all elements of a crime. Accordingly, Mullaney stands for the proposition that the...