David F. Hagler v. William L. Callahan

764 F.2d 711

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 15, 1985
• Docket: 83-4104
• Status: Published

Opinions

JAMESON, District Judge:

The State of Washington has appealed from the district court’s decision, adopting a magistrate’s recommendation, to grant the petition of David F. Hagler, a Washington State prisoner, for a writ of habeas corpus under 28 U.S.C. § 2254(a). The court concluded that the jury could have improperly convicted Hagler based on a jury instruction declared unconstitutional in Sandstrom v. Montana, 442 U.S. 510, 524, 99 S.Ct. 2450, 2459, 61 L.Ed.2d 39 (1979). We reverse because we find the Sandstrom error harmless beyond a reasonable doubt based on our decision in McGuinn v. Crist, 657 F.2d 1107 (9th Cir. 1981), cert. denied, 455 U.S. 990, 102 S.Ct. 1614, 71 L.Ed.2d 850 (1982).

I. Facts

In 1976 a jury found Hagler guilty of second degree murder in the shooting death of an associate named Leif Eric Ellington. The evidence against Hagler was circumstantial, and he presented an alibi defense. Without objection, the state trial court instructed the jury on intent, giving the Sandstrom instruction: “The law presumes that every person intends the natural and probable consequences of his own acts.” See Sandstrom v. Montana, 442 U.S. 510, 515, 99 S.Ct. 2450, 2454, 61 L.Ed.2d 39 (1979) (holding a similar instruction unconstitutional because a jury could have interpreted it to create a “conclusive” or “burden-shifting” presumption of intent where intent is a necessary element of the crime for the State to prove). Id. at 524, 99 S.Ct. at 2459. Notice of appeal was filed, but neither Hagler nor his trial counsel pursued it.

In 1978 Hagler filed a personal restraint petition¹ in state court challenging the Sandstrom instruction but was denied relief. In 1980 Hagler again challenged the instruction in a second personal restraint petition, and the Washington Court of Appeals certified the case to the Washington Supreme Court. The Supreme Court denied relief because it found that Hagler did not raise lack of intent as a defense at trial and thus failed to demonstrate “that he was actually and substantially prejudiced by the instruction that intent could be presumed.” Matter of Hagler, 97 Wash.2d 818, 650 P.2d 1103, 1109 (1982).²

Having exhausted his state remedies, Hagler filed the present petition in federal district court under 28 U.S.C. § 2254(a). The case was referred to a magistrate who initially recommended denying the petition because the Sandstrom error was harmless beyond a reasonable doubt, relying on McGuinn v. Crist, 657 F.2d 1107 (9th Cir. 1981), cert. denied, 455 U.S. 990, 102 S.Ct. 1614, 71 L.Ed.2d 850 (1982). On reconsideration, however, the magistrate reversed himself and recommended issuing the writ of habeas corpus. Citing Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983), the magistrate found: (1) “[the] issue of intent was never affirmatively conceded;” and (2) “substantial evidence was introduced which could have led a jury to conclude that the homicide, regardless of who did it, was something less than intentional.” These factors, the magistrate concluded, were sufficient to make this case “readily distinguishable from McGuinn v. Crist ” and to compel the conclusion that the Sandstrom error was not harmless beyond a reasonable doubt. The district court adopted the magistrate’s recommendations and issued the writ.

The sole issue before this court is whether the constitutional error in giving the Sandstrom instruction is harmless beyond a reasonable doubt.

II. Connecticut v. Johnson

Since our decision in McGuinn, the Supreme Court, in a plurality opinion, held that the Sandstrom error could be harmless only in “rare situations in which the reviewing court can be confident that [the] ... error did not play any role in the jury’s verdict.” Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 977, 74 L.Ed.2d 823 (1983). The Court, however, decided to “leave it to the lower courts to determine whether, by raising a particular defense or by his other actions, a defendant himself has taken the issue of intent away from the jury.” Id. at 978.

III. In re Hamilton

Quoting from Connecticut v. Johnson, this court recently observed that the Sand-strom error might not play a role in a jury’s verdict “where intent was not in issue nor in dispute” at trial. In re Hamilton, 721 F.2d 1189, 1190 (9th Cir.1983). Conversely, the court also held that “[i]f a criminal defendant’s intent is a disputed issue at trial, the reviewing court cannot rationally conclude beyond a reasonable doubt that an unconstitutional Sandstrom instruction given to a jury did not taint its verdict even if substantial evidence of intent exists.” Id. at 1191.³

The Hamilton court announced a two-step inquiry for determining whether the Sandstrom error was harmless. First, the reviewing court must determine whether intent was disputed at trial; if it was, then the error cannot be harmless. If intent was not disputed, then the second step is to determine “whether any ‘reasonable juror could have given the presumption conclusive or persuasion-shifting effect.’ ” Id. at 1192. The second step is simply a restatement of the well-established inquiry in all harmless constitutional error cases, namely whether the reviewing court can say “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). As for the first step, we recognize, of course, that a plea of “not guilty” “controverts the existence of every fact essential to constitute the crime charged.” Davis v. United States, 160 U.S. 469, 485-86, 16 S.Ct. 353, 357, 40 L.Ed. 499 (1895). In this case, however, whether intent was disputed at trial is a more narrow question. It involves a determination of whether, under the special facts of each case, intent was a live issue, the subject of a minimum of dispute as a practical matter to trigger the corrupting impact of the Sandstrom instruction. It is in significant degree determined by the defense presented, the manner of presentation, and the evidence introduced by both parties. See Conway v. Anderson, 698 F.2d 282, 285 (6th Cir.1983).

Beginning the two-step inquiry under the present facts, it is at once plain that intent was not disputed at Hagler’s trial. In reaching this conclusion, we rely on our decision in McGuinn v. Crist, 657 F.2d 1107 (9th Cir.1981), cert. denied, 455 U.S. 990, 102 S.Ct. 1614, 71 L.Ed.2d 850 (1982).

IV. McGuinn v. Crist

In McGuinn v. Crist a Montana jury found McGuinn guilty of deliberate homicide in the shooting death of LaRae Alley. The jury had been given the Sandstrom instruction on intent. The evidence against McGuinn was circumstantial: the victim was shot four times in the head; McGuinn was seen near the murder site at about the time of the murder; he owned a gun and bullets matching the general description of those used in the crime; he gave conflicting testimony while testifying on his own behalf and his testimony was impeached by other witnesses. 657 F.2d at 1108. Most important, McGuinn relied solely on an alibi defense. Id.

In this case Hagler also relied on an alibi defense in the face of circumstantial evidence: the victim was shot three times, twice in the head and once in the abdomen; one of the shots was fired from a distance of 12-18 inches; Hagler was seen with the victim, who was his business associate, shortly before the murder; a gun, belonging to Hagler and matching the description of the weapon used in the shooting, was found in a river not far from the murder scene; witnesses who saw Hagler with the victim shortly before the murder testified that Hagler later requested them to lie to the police.⁴ Like McGuinn, “Hagler’s main defense was that he had not shot Ellington, and was not present when Ellington was shot.”

In McGuinn we held that “[ijnsofar as the jury would beyond a reasonable doubt have reached the same conclusion [on the evidence presented], even absent the disapproved jury instruction, the error complained of here is harmless.” 657 F.2d at 1108. Alternatively, we also pointed out “that a disapproved jury instruction concerning intention in a trial in which the intention of the accused was not an issue is harmless error beyond a reasonable doubt.” Id. Because McGuinn presented an alibi defense and did not dispute intent at trial, we concluded that the Sandstrom error was harmless. Id. at 1109.

Since Hagler similarly relied solely on an alibi defense, it is difficult for him now to contend that his own intent or that of an anonymous assailant was disputed at trial. Nonetheless, he contends, and the district court found, that “substantial evidence was introduced which could have led a jury to conclude that the homicide, regardless of who did it, was something less than intentional.” The “substantial evidence” consists of four undisputed facts: (1) the victim had a bad temper; (2) the victim drank to excess; (3) the victim owned and was known to recklessly handle guns; (4) any shot fired in the victim’s small trailer would necessarily have been fired at close range.

The district court concluded that these facts significantly distinguish this case from McGuinn. We disagree. The facts may tell us something of the victim’s general character, but they say nothing of the assailant’s intent at the time of the murder. Taken together, these facts are simply insufficient to make intent a disputed issue for the purposes of this inquiry. Moreover, the facts most strongly reflecting on intent are undisputed: the victim was shot three times, twice in the head, and one of the shots was fired at point-blank range. As in McGuinn, the defendant’s reliance on alibi and the lack of contrary evidence on intent make it plain that intent was not disputed at Hagler’s trial.⁵

Having found that intent was not contested at trial, the court must next assess the weight of the evidence against the defendant to determine whether we can conclude “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman v. California, 386 U.S. at 24, 87 S.Ct. at 828; Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284 (1969); In re Hamilton, 721 F.2d at 1192. We have already noted that the evidence of intent, though necessarily circumstantial, was uncontradicted at trial. As the court observed in McGuinn, the victim “was shot four times in the head at close range firmly negating any reasonable possibility that the killing occurred as a result of recklessness or negligence.” 657 F.2d at 1108. Here the facts are slightly less egregious, but the victim’s three bullet wounds — two in the head, one in the abdomen, and one of those at point-blank range — lead us to the same conclusion. Judging from the evidence before it and the absence of any mitigating or conflicting evidence, the jury could not possibly have concluded that the murder was other than intentional.⁶ We are convinced that giving the Sandstrom type instruction did not contribute to the jury’s guilty verdict.

V. Conclusion

The court concludes that this case is controlled by our decision in Me Guinn v. Crist. Having found that intent was not contested at trial and that giving the Sand-strom instruction did not contribute to the guilty verdict, we conclude that the error complained of was harmless error beyond a reasonable doubt. Accordingly, the order of the district court granting the petition for a writ of habeas corpus is reversed.

REVERSED.

1 . “A personal restraint petition requires the court to adjudicate whether the petitioning prisoner is presently detained in violation of either the United States Constitution or the Constitution of the State of Washington.” In re Myers, 91 Wash.2d 120, 587 P.2d 532, 533 (1978), cert. denied, 442 U.S. 912, 99 S.Ct. 2828, 61 L.Ed.2d 278 (1979).

2 . The State premises two of its contentions on the findings of the Washington Supreme Court. First, the State argues that the federal district court, like the state court, should have imposed a threshold burden on the petitioner to show (1) cause for his failure to object to the instruction at trial and (2) prejudice resulting from the instruction. Second, the State contends that the district court failed to accord the findings of the state court the presumption of correctness to which they are entitled under 28 U.S.C. § 2254(d). See Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981). Since we reverse on the basis of our decision in McGuinn v. Crist, we do not reach these two contentions.

3 . Hamilton had been convicted in state court of mitigated deliberate homicide of his mother. The case was remanded for a review of the record to determine whether intent was in fact a disputed issue at Hamilton’s trial. In re Hamilton is factually distinguishable from the instant case. As this court noted in its opinion: "Hamilton contends that intent was very much at issue. He asserts that he did not know what he was doing, that he did not recall the act, and that he did not knowingly or purposely kill his mother. Hamilton also presented psychiatric testimony as to his rather bizarre relationship with his mother as well as his history of alcoholism and blackouts from drinking relatively small amounts of alcohol. He also presented psychiatric testimony that at the time of the killing he suffered from a schizophrenic reaction and was subject to psychological stress with severe distortion of judgment and perception."

4 . For a more detailed statement of the facts see Matter of Hagler, 650 P.2d at 1105-1106. The court concluded, inter alia, that nothing in the record suggests that the victim's death was “unintentional." Id. 1106.

5 . Petitioner also argues, and the district court found, that "[t]he issue of intent was never affirmatively conceded.” As is clear from our decision in McGuinn, however, no affirmative concession is required of the defendant to render an element of the crime undisputed. 657 F.2d at 1108-09. The Supreme Court did not require an affirmative concession in Connecticut v. Johnson when it left the lower courts free to determine "whether, by raising a particular defense or by his other actions, a defendant himself has taken the issue of intent away from the jury.” 103 S.Ct. at 978. Even though it was clear in Hamilton that the defendant did not affirmatively concede the issue, we remanded the case to the district court to determine, “after an independent review of the state court record," whether intent was contested at trial. 721 F.2d at 1192. See also Engle v. Koehler, 707 F.2d 241, 246 (6th Cir.1983), aff’d.,-U.S.-, 104 S.Ct. 1673, 80 L.Ed.2d 1 (1984) (equally divided court); Conway v. Anderson, 698 F.2d 282, 285 (6th Cir.), cert. denied, 462 U.S. 1121, 103 S.Ct. 3092, 77 L.Ed.2d 1352 (1983) (“the corrupting effect of a Sandstrom instruction is to a great extent a function of the defense, if any, interposed at trial.”)

6 . In denying Hagler’s petition for restraint, the Supreme Court of Washington, after reviewing the evidence, likewise noted that Hagler had not raised lack of intent as a defense at trial, and that nothing in the record suggests that the victim's death was not intentional. Matter of Hagler, 650 P.2d at 1109. Accordingly, assuming that it was error to give the challenged instruction, the court was satisfied from its "review of the records” that Hagler was not prejudiced by the assumed error. Id. 1105.