Williford v. Young, Civ. A. No. 84-C-1241.

• Decision Date: 22 March 1985
• Docket Number: Civ. A. No. 84-C-1241.
• Citation: 604 F. Supp. 1173
• Parties: Lennon WILLIFORD, Petitioner, v. Warren YOUNG, Superintendent, Waupun Correctional Institution and Bronson C. La Follette, Attorney General of the State of Wisconsin, Respondents.
• Court: U.S. District Court — Eastern District of Wisconsin

604 F. Supp. 1173

Lennon WILLIFORD, Petitioner, v. Warren YOUNG, Superintendent, Waupun Correctional Institution and Bronson C. La Follette, Attorney General of the State of Wisconsin, Respondents.

Civ. A. No. 84-C-1241.

United States District Court, E.D. Wisconsin.

March 22, 1985.

Michael Yovovich, Asst. State Public Defender, Madison, Wis., for petitioner.

Thomas J. Balistreri, Asst. Atty. Gen., Madison, Wis., for respondents.

DECISION and ORDER

TERENCE T. EVANS, District Judge.

On November 25, 1978, during the early morning hours, Lennon Williford walked into the Racine Police Department and said "I made a mistake ... I shot my wife." Three days later, Williford was charged with first degree murder. In May of 1979, he was tried before a jury and convicted of the charge. Williford appealed and, on September 9, 1980, the Wisconsin Court of Appeals reversed his conviction on one of his claims of error, that the trial court had failed to submit a manslaughter-heat-of-passion option to the jury as a lesser included offense. The State appealed to the Wisconsin Supreme Court and the Supreme Court reversed the Court of Appeals' decision. State v. Williford, 103 Wis.2d 98, 307 N.W.2d 277 (1981).

In November of 1981, Williford filed a collateral attack on his conviction pursuant to § 974.06, Wis.Stats., alleging that the intoxication instruction given in his case impermissibly shifted to him the burden of persuasion on the element of intent. The trial court denied the request for relief and the Wisconsin Court of Appeals, on January 7, 1983, affirmed. The Wisconsin Supreme Court denied review on February 15, 1983. On September 27, 1984, almost six years after he entered the Racine Police Station to admit the shooting, Williford petitioned this court for a writ of habeas corpus.

At the time of the fatal shooting, Lennon Williford and Annabelle Williford were separated; she had filed for a divorce. Like the marriage, the separation was stormy; the couple fought over other women, other men, and money. Annabelle had gone out on the evening of November 24, 1978, and returned home at approximately 1:00 a.m. November 25. In her home were Williford's daughter Wanda and Wanda's son, Annabelle's daughter Dana Fraline, and twin boys who were the children of Annabelle and Williford. Wanda was sleeping on a couch in the living room; the other children were upstairs.

Williford came to the door and Annabelle invited him in. Wanda awoke when he came in and was awake briefly while he was there, but was asleep when the shooting took place. She awoke to the sounds of screaming and gunshots. Dana Fraline awoke and ran downstairs. Wanda saw what had happened and ran to Williford and began hitting him. She asked him why he had shot Annabelle. He did not respond. He left the home, and soon thereafter arrived at the Racine Police Station.

The issues Williford raises in his petition for habeas corpus are (1) that the failure to instruct the jury on the lesser included offense of manslaughter (heat of passion) denied him due process of law; (2) that he was denied the effective assistance of counsel; and (3) that the modified intoxication instruction given at his trial shifted the burden of persuasion on the issue of intent to the defense.

That the trial judge did not instruct the jury on manslaughter, Williford contends, deprived him of due process of law. The propriety of giving a lesser included offense instruction is an issue of obvious importance in any criminal case. It is, however, a matter which is not easily discussed in specific constitutional terms.

In Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), the court held that, in a capital case, if the unavailability of a lesser included offense instruction enhances the risk of an unwarranted conviction, the State is constitutionally prohibited from withdrawing from the jury the option of the lesser included offense. In Nichols v. Gagnon, 710 F.2d 1267, 1271 (7th Cir.1983), the Seventh Circuit declined to extend the rule to non-capital cases:

Although the Court may someday decide to extend the rule of Beck to noncapital cases, we are not inclined to anticipate its doing so.

The Court of Appeals perceived a tension between the important goal of preventing innocent persons from being convicted and the fact that Beck does not deal with a "specific constitutional right," and involves a question more appropriately handled on direct review:

The innocent are not a despised and vulnerable minority who need the protection of the federal courts.

The standard of review on this issue in a habeas proceeding remains the standard articulated in Peery v. Sielaff, 615 F.2d 402 (7th Cir.1979). It is that:

... The failure to instruct on a lesser included offense, even if incorrect under state law, does not warrant setting aside a state conviction unless "failure to give the instruction could be said to have amounted to a fundamental miscarriage of justice." Nichols at 1269.

Here the Wisconsin Supreme Court has determined that the failure to give the instruction is not error as a matter of state law. Presumably, the Wisconsin Supreme Court has the last word on the state law issue. The issue before me is whether the failure to instruct on manslaughter in this case amounted to a fundamental miscarriage of justice. It did not. There is virtually no evidence in the record to support a heat of passion instruction.

The decision of the state judge not to give the manslaughter instruction was made with extreme care. During the conference on jury instructions counsel and the court had somewhat differing memories of what the testimony of Williford showed. The court had the testimony read back so that it was "fresh in their minds." Tr. 388, 390. Williford's own testimony— and he was the only observer—does not justify the instruction. Somewhat secondarily, Wanda testified that when she was briefly awake in the living room with her father and Annabelle, everything was calm, which was why she went back to sleep. She slept until the gunshots awakened her. On that record, it cannot be said that failure to give a manslaughter instruction resulted in a miscarriage of justice. In leaving this issue, however, it is interesting to note that Williford was not left without anything to argue about to the jury. The trial judge did instruct on the LIO of second degree murder. If the jury did not see fit here to move down one peg to second degree, it is doubtful they would have, even if given the option, slid down two to manslaughter. The jury obviously believed that the four shots that Williford pumped into his estranged wife added up to murder one, a conclusion, based on this record, that appears to be inescapable.

Williford next argues in his petition for habeas corpus that he was denied the effective assistance of counsel. The standard to be used in reviewing a sixth amendment ineffective assistance of counsel claim has been recently considered in Strickland v. Washington, ___ U.S. ___, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984):

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the sixth amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Williford claims first that counsel was ineffective because he failed to investigate and find an important witness, Patricia Bell. The witness had been interviewed by the Public Defender's Office, but was not contacted...