Ronald Francis Smart v. William D. Leeke, Commissioner, South Carolina Department of Corrections Attorney General of South Carolina

873 F.2d 1558, 1989 U.S. App. LEXIS 6172, 1989 WL 43913

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 4, 1989
• Docket: 87-7737
• Status: Published

Opinions

WILKINS, Circuit Judge:

The State of South Carolina appeals from the issuance of a writ of habeas corpus, 28 U.S.C.A. § 2254 (West 1977), for convicted murderer Ronald Francis Smart on the ground that a jury instruction on self-defense impermissibly shifted the burden of proof. A panel of this court originally affirmed the issuance of the writ. Smart v. Leeke, 856 F.2d 609 (4th Cir.1988). A majority of the court voted for rehearing en banc, thereby vacating the panel opinion. 4th Cir.R. 35(c). We now reverse and remand for further proceedings.

I.

Smart was tried in South Carolina state court in 1981 for the murder of two men and two women. In defense of these charges, he presented evidence that one or both of the men killed the women first and he then killed the men in self-defense.¹ The trial court instructed the jury that self-defense was an affirmative defense which Smart had the burden of proving by a preponderance of the evidence.

Smart was acquitted of the murder of the women, but convicted of murdering the men. During a separate sentencing phase, the jury further found that the murders had occurred during the commission of larceny with the use of a deadly weapon. And, on the recommendation of the jury, Smart was sentenced to death. On appeal to the South Carolina Supreme Court, Smart acknowledged that the self-defense charge correctly stated then current state law, but requested permission to argue against precedent. S.C.Sup.CtR. 8, § 10. While the court denied the request and affirmed the conviction, it vacated the death sentence due to improper comments by the prosecutor during the sentencing phase of the trial and remanded for resentencing. State v. Smart, 278 S.C. 515, 299 S.E.2d 686 (1982), cert. denied, 460 U.S. 1088, 103 S.Ct. 1784, 76 L.Ed.2d 353 (1983). On remand, Smart waived a jury trial and was sentenced to two terms of life imprisonment.

Smart subsequently filed a habeas petition asserting that the self-defense charge improperly shifted the burden of proof in violation of the due process clause. U.S. Const. amend. XIV, § 1. He also contends that the instruction was so contradictory and confusing as to violate due process, relying on Thomas v. Leeke, 725 F.2d 246 (4th Cir.), cert. denied, 469 U.S. 870, 105 S.Ct. 218, 83 L.Ed.2d 148 (1984). Finally, he asserts that jury instructions defining reasonable doubt lessened the government’s burden of proof.²

The district court found that the self-defense charge unconstitutionally relieved the State of its burden of proving every element of the offense of murder, Martin v. Ohio, 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987), and was so contradictory and confusing as to violate due process under Thomas. Smart v. Leeke, 677 F.Supp. 414 (D.S.C.1987). The court further found that the due process violations were not harmless, Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), and granted the writ, allowing the State the opportunity to retry Smart. The district court obviously thought it unnecessary to address the challenge to the reasonable doubt instructions.

In Martin v. Ohio, the Supreme Court held that states may constitutionally require a defendant to affirmatively establish self-defense by a preponderance of the evidence as long as the government is required to prove all the elements of murder beyond a reasonable doubt. Smart argues that placing the burden on him to prove self-defense effectively required him to negate an element of the crime — malice—and thereby impermissibly relieved the State of its burden of proof. Upon consideration of established Supreme Court precedent, including the recent decision in Martin v. Ohio, we conclude that the self-defense charge did not violate due process.

II.

Murder is defined in South Carolina as “the killing of any person with malice aforethought, either express or implied.” S.C.Code Ann. § 16-3-10 (Law.Co-op.1976). Malice is further defined as the intentional doing of a wrongful act, without just cause or excuse. State v. Foster, 66 S.C. 469, 475-76, 45 S.E. 1, 4 (1903).

Self-defense is a complete defense constituting an excuse for the taking of a life. State v. Martin, 216 S.C. 129, 134, 57 S.E. 2d 55, 57 (1949). Pursuant to state law at the time of this trial, a defendant asserting self-defense was required to establish, as was Smart, the following elements by a preponderance of the evidence:

(1) [H]e was without fault in bringing on the difficulty.

(2) [H]e actually believe[d] he was in imminent danger of losing his life or of sustaining serious bodily injury or that he actually was in such imminent danger of losing his life or of sustaining serious bodily injury.

(3) [I]f his defense is based upon his belief of imminent danger, that a reasonable prudent man of ordinary firmness and courage would have entertained the same belief, or if his defense is based upon his being in actual and imminent danger, that the circumstances were such as would warrant a man of ordinary prudence, firmness and courage to strike a fatal blow to save himself from serious bodily harm, or losing his life.

(4) He had no other means of avoiding the danger of losing his life or sustaining serious bodily injury than to act as he did in the particular instance.

See State v. Davis, 282 S.C. 45, 317 S.E.2d 452 (1984).³

III.

It has never been seriously questioned that the Constitution requires that the burden of proof in a criminal case be placed on the prosecution to establish the guilt of an accused beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361-62, 90 S.Ct. 1068, 1071, 25 L.Ed.2d 368 (1970). The Supreme Court explicitly declared in Win-ship 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.” Id. at 364, 90 S.Ct. at 1073.

Another “long-accepted rule was that it was constitutionally permissible to provide that various affirmative defenses were to be proved by the defendant.” Patterson v. New York, 432 U.S. 197, 211, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281 (1977). But, unlike the reasonable doubt rule, there have been several challenges to the constitutionality of placing a burden on the defendant to prove certain affirmative defenses.

In Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), the Court addressed the question of whether due process was violated by a state statute which required a defendant pleading insanity to establish the defense beyond a reasonable doubt. The defendant, who was charged with murder in the first degree, argued that the statute required him to prove his innocence by disproving elements of the crime charged. The Court acknowledged that the jury might have found the defendant mentally incapable of the premeditation and deliberation required to prove first degree murder or the intent essential to both first and second degree murder, but not legally insane. However, the Court concluded that the state was “required to prove beyond a reasonable doubt every element of the crime charged.” Id. at 794, 72 S.Ct. at 1005. Thus, despite some overlap of proof on the mental element essential to the offense and to the insanity defense, a state may constitutionally place the burden of proving the defense on a defendant.

In Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), the Court addressed the constitutionality of a Maine law which required a defendant charged with murder to rebut a presumption of malice and prove that he acted “in the heat of passion on sudden provocation” in order to reduce a charge of murder to manslaughter.⁴ Two degrees of homicide existed under Maine law — murder and manslaughter. Murder was defined as the unlawful killing of a human being with malice aforethought, either express or implied, id. at 686 n. 3, 95 S.Ct. at 1883 n. 3 (quoting Me.Rev.Stat.Ann. tit. 17, § 2651 (1964)), and manslaughter as the unlawful killing of a human being “in the heat of passion, on sudden provocation, without express or implied malice aforethought,” id. (quoting Me.Rev.Stat.Ann. tit. 17, § 2551 (1964)). The jury had been instructed, in accordance with Maine law, “that if the prosecution established that the homicide was both intentional and unlawful, malice aforethought was to be conclusively 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 (footnote omitted). The Court held that this instruction violated the due process mandate of Win-ship that the prosecution prove beyond a reasonable doubt every fact necessary to constitute the crime charged.

After Mullaney a serious question arose as to the constitutionality of requiring a defendant to prove any affirmative defense, except insanity.⁵ Many urged, as did the defendant in Patterson, that:

[T]he State may not permit the blameworthiness of an act or the severity of punishment authorized for its commission to depend on the presence or absence of an identified fact without assuming the burden of proving the presence or absence of that fact, as the case may be, beyond a reasonable doubt.

432 U.S. at 214, 97 S.Ct. at 2329 (footnote omitted). However, the Court rejected this interpretation and subsequently clarified the holding: “Mullaney ... held that a State must prove every ingredient of an offense beyond a reasonable doubt, and that it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense.” Id. at 215, 97 S.Ct. at 2329.

The Court squarely held that Mullaney should be classified as a presumption case, and therefore it offers little, if any, support for Smart on the issue of affirmative defenses.⁶ In Mullaney, as in other presumption cases, the state is improperly relieved of the burden of proving an essential element of the crime charged, and the burden is unconstitutionally shifted to the defendant to disprove the element. See, e.g., Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977). However, in affirmative defense cases, as here and in Martin, the state bears the burden of proving beyond a reasonable doubt every element of the crime charged. The defendant is required to prove a separate issue which may or may not overlap with proof of the alleged crime.

In Patterson, the Court faced the issue of the constitutionality of requiring a defendant charged with second-degree murder under New York law to prove the affirmative defense of extreme emotional disturbance. As in Maine, the state of New York made a distinction between murder and manslaughter. Second-degree murder required proof that the defendant intentionally killed another person. Patterson, 432 U.S. at 198 n. 2, 97 S.Ct. at 2321 n. 2 (quoting N.Y.Penal Law § 125.25 (McKinney 1975)). Manslaughter was defined as the intentional killing of another person “under circumstances which do not constitute murder because [the defendant] acts under the influence of extreme emotional disturbance.” Id. (quoting N.Y.Penal Law § 125.20(2) (McKinney 1975)). Consistent with New York law the jury was instructed that Patterson had to prove his affirmative defense by a preponderance of the evidence. The Court held that the defense was constitutionally adequate, finding that it was comparable to the insanity defense because “it constitutes a separate issue on which the defendant is required to carry the burden of persuasion.” Id. at 207, 97 5.Ct. at 2325. The Court expressly stated:

We ... decline to adopt as a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses.... Proof of the nonexistence of all affirmative defenses has never been constitutionally required; and we perceive no reason to fashion such a rule in this case and apply it to the statutory defense [of extreme emotional disturbance].

Id. at 210, 97 S.Ct. at 2327.

IV.

More recently, in Martin v. Ohio the Court examined the same question raised here of whether due process is violated by placing upon a defendant, who is charged with murder, the burden of proving by a preponderance of the evidence self-defense as an affirmative defense.⁷ Martin argued, as does Smart, that placing the burden on her to prove the affirmative defense imper-missibly required her to negate one of the elements of murder. The Court in Martin rejected this contention and we are compelled to do likewise.

A.

Martin was convicted of the unlawful act of aggravated murder which is defined under Ohio law as “purposely, and with prior calculation and design, causing] the death of another.” Ohio Rev.Ann. § 2903.01(A) (Anderson 1987). She “did not dispute the existence of [the elements of aggravated murder], but rather sought to justify her actions on grounds she acted in self-defense.” Martin v. Ohio, 480 U.S. at 234, 107 S.Ct. at 1102 (citing State v. Martin, 21 Ohio St.3d 91, 94, 488 N.E.2d 166, 168 (1986)). Under Ohio law, self-defense is an affirmative defense justifying and rendering lawful otherwise unlawful conduct. State v. Davis, 8 Ohio App.3d 205, 456 N.E.2d 1256, 1261 (1982); State v. Morris, 8 Ohio App.3d 12, 455 N.E.2d 1352, 1359 (1982). Pursuant to state law, the burden was placed on Martin to prove the following elements of self-defense by a preponderance of the evidence:

(1) [T]he defendant was not at fault in creating the situation giving rise to the argument;

(2) [T]he defendant had an honest belief that she was in imminent danger of death or great bodily harm and that her only means of escape from such danger was in the use of such force; and

(3) [T]he defendant must not have violated any duty to retreat or avoid danger.

Martin v. Ohio, 480 U.S. at 230, 107 S.Ct. at 1100.

The Court recognized that self-defense requires proof of an honest belief of imminent danger of death or serious bodily harm and that generally evidence offered to support this element may negate a purposeful killing by prior calculation and design.⁸ As Justice Powell stated in his dissent: “Under Patterson, this conclusion should suggest that Ohio is precluded from shifting the burden as to self-defense.” Martin v. Ohio, 480 U.S. at 239, 107 S.Ct. 1105. However, the Court held that it was permissible to require Martin to prove self-defense because “Ohio does not shift to the defendant the burden of disproving any element of the State’s case.” Id. at 234, 107 S.Ct. at 1102.

The same must be said here since the cases are fundamentally indistinguishable. While Smart dwells on the fact that malice is defined under South Carolina law as acting wrongfully without justification or excuse and that self-defense constitutes justification and excuse, this distinction is without- meaningful legal significance. There is no fundamental difference between murder under Ohio and South Carolina law even though one expressly includes in its definition of murder the element of malice aforethought — intentional wrongful conduct without just cause or excuse — while the other does not.

B.

Whatever the merits of this “elemental” analysis, the Court in Martin v. Ohio did not rely solely on that point in upholding the placement of the burden on the defendant to prove the affirmative defense. 480 U.S. at 234, 107 S.Ct. at 1102. Rather, more importantly, the Court stressed that while the jury was instructed that the defendant carried the burden of proving self-defense by a preponderance of the evidence, it was also instructed that the state was required to prove each element of aggravated murder beyond a reasonable doubt. The Court stated:

It would be quite different if the jury had been instructed that self-defense evidence could not be considered in determining whether there was a reasonable doubt about the State’s case, i.e., that self-defense evidence must be put aside for all purposes unless it satisfied the preponderance standard. Such instruction would relieve the State of its burden and plainly run afoul of Winship’s mandate. The instructions in this case could be clearer in this respect, but when read as a whole, we think they are adequate to convey to the jury that all of the evidence, including the evidence going to self-defense, must be considered in deciding whether there was a reasonable doubt about the sufficiency of the State’s proof of the elements of the crime.

Id. at 233-34, 107 S.Ct. at 1102 (citations omitted). Justice Powell recognized this reasoning to be the crux of the Court’s holding when he articulated in his dissent: “The Court thus seem[ed] to conclude that as long as the jury is told that the State has the burden of proving all elements of the crime, the overlap between the offense and the defense is immaterial.” Id. at 239, 107 S.Ct. at 1105.

Here, the trial judge repeatedly instructed that the State bore the burden of proving each element of the offense charged beyond a reasonable doubt. And importantly, the jury was not restricted from considering the self-defense evidence “in deciding whether there was a reasonable doubt about the sufficiency of the State’s proof of the elements of the crime.” Id. at 234, 107 S.Ct. at 1102.

Under the instructions, a verdict of guilty could not be returned unless the State had proven beyond a reasonable doubt every element of the offense charged. And, if Smart established the elements of self-defense by a preponderance of the evidence, he would have been entitled- to an acquittal. Finally, even if the evidence presented on self-defense failed to meet the preponderance standard, it might still have raised a reasonable doubt on the issue of malice.

C.

In Martin v. Ohio the Court clearly rejected the argument espoused by Smart that simply because one may assert that the definition of murder can be read as overlapping with the elements of self-defense, then the affirmative defense is necessarily unconstitutional. Justice Powell insisted that the clear implication of Patterson was that “when an affirmative defense does negate an element of the crime, the state may not shift the burden.” Id. at 237, 107 S.Ct. at 1104. But, whatever the merits of such a contention, the Court has clearly spoken and its result is binding on our decision today.

V.

Moreover, the district court decision did not comport with prior circuit precedent. In Thomas v. Leeke, 725 F.2d 246 (4th Cir.), cert. denied, 469 U.S. 870, 105 S.Ct. 218, 83 L.Ed.2d 148 (1984), this court held that a jury charge similar to the one here was unconstitutionally contradictory and confusing. However, under Martin v. Ohio the instruction would no longer be considered unclear and misleading. 480 U.S. at 234-35 n. *, 107 S.Ct. at 1102 n. *. And, as Judge Hall discussed in his dissent in Thomas, 725 F.2d at 252-54, the court has previously upheld as constitutional, under South Carolina law, placement of the burden of proving the affirmative defense of self-defense on a defendant, Maxey v. Martin, 577 F.2d 735 (4th Cir.1978) (Table), as well as under Virginia law, Baker v. Muncy, 619 F.2d 327 (4th Cir.1980); Frazier v. Weatherholtz, 572 F.2d 994 (4th Cir.), cert. denied, 439 U.S. 876, 99 S.Ct. 215, 58 L.Ed. 2d 191 (1978).

VI.

Historically, the burden of proving all affirmative defenses — “indeed, ‘all circumstances of justification, excuse, or alleviation’ — rested on the defendant_ This was the rule when the Fifth Amendment was adopted, and it was the American rule when the Fourteenth Amendment was ratified.” Patterson, 432 U.S. at 202, 97 S.Ct. at 2323 (citations omitted); see also Martin v. Ohio, 480 U.S. at 235, 107 S.Ct. at 1103. After the federal government assumed the burden of proving the sanity of a defendant, Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895), many jurisdictions placed on the prosecution the burden of proving sanity and disproving other affirmative defenses, even though the ruling of Davis was not constitutionally grounded, Leland v. Oregon, 343 U.S. at 797, 72 S.Ct. at 1006-07. Prior to 1984 Ohio and South Carolina were the only two remaining states which placed the burden of proving self-defense on the defendant.⁹ And as the Court further noted, the question of the constitutionality of this practice should not be resolved “by cataloging the practices of other States.” Martin v. Ohio, 480 U.S. at 236, 107 S.Ct. at 1103.

Notwithstanding the widespread changes in other states, the Court in Martin v. Ohio found that despite the overlap of proof of murder and self-defense, it was constitutionally permissible to place the burden of proving self-defense on the defendant as long as the state bore the ultimate burden of proving all the elements of murder beyond a reasonable doubt. In light of this clear holding, and the prior precedent of this circuit, Smart’s jury instructions plainly satisfied due process mandates. The issuance of the writ of habeas corpus is therefore reversed. The case is remanded to the district court to address the challenge to the reasonable doubt instructions.

REVERSED and REMANDED.

1 . The evidence consisted, in part, of a tape-recorded conversation between Smart and a law enforcement officer after his arrest. Smart also presented two additional defenses in the alternative, contending that the women were acci-dently killed during a fight between himself and the men or that a fourth man killed both the men and women.

2 . At different points during the entire charge, the trial court defined reasonable doubt as "a doubt that it is a substantial doubt”; “a doubt for which a person honestly seeking to find the truth can give reason"; “one where, in search of the truth, you can express reason for your decision”; and “not a weak or slight doubt, but a serious or strong and well-founded doubt as to the truth of the charge.”

3 . In Davis, the South Carolina Supreme Court instructed the trial courts to proceed with a new instruction in self-defense cases. Davis, 282 S.C. at 46, 317 S.E.2d at 453. Although the instruction relieves the defendant of the burden of proving self-defense by a preponderance of the evidence, the state supreme court rejected the defendant’s assertion in Davis that the affirmative defense unconstitutionally shifted the burden of proof as it previously existed. Prior to Davis, the court on at least seven occasions rejected arguments that the affirmative defense was unconstitutional. See State v. Finley, 277 S.C. 548, 290 S.E.2d 808 (1982); State v. Griffin, 277 S.C. 193, 285 S.E.2d 631 (1981); State v. Linder, 276 S.C. 304, 278 S.E.2d 335 (1981); State v. Crocker, 272 S.C. 344, 251 S.E.2d 764 (1979); State v. McDowell, 272 S.C. 203, 249 S.E.2d 916 (1978); State v. Atchison, 268 S.C. 588, 235 S.E.2d 294, cert. denied, 434 U.S. 894, 98 S.Ct. 273, 54 L.Ed.2d 181 (1977); State v. Bolton, 266 S.C. 444, 223 S.E.2d 863 (1976).

In State v. Glover, 284 S.C. 152, 326 S.E.2d 150, cert. denied, 471 U.S. 1068, 105 S.Ct. 2147, 85 L.Ed.2d 503 (1985), the court reiterated the constitutionality of the affirmative defense. However, after emphasizing its disagreement with the holding in Thomas v. Leeke, 725 F.2d 246 (4th Cir.), cert. denied, 469 U.S. 870, 105 S.Ct. 218, 83 L.Ed.2d 148 (1984), see discussion infra, the court stated that it had "cured the purported constitutional violation complained of by the Fourth Circuit,” and that “the charge approved in Davis shall be applied in all cases tried subsequent to the date of that decision, so long as contemporaneous objection was made at trial.” Id. at 154, 326 S.E.2d at 151.

Finally, in State v. Bellamy, 293 S.C. 103, 359 S.E.2d 63 (1987), the court reversed a murder conviction for failure to comply with the Davis charge. The court refused to address the state’s contention that the charge was constitutionally adequate pursuant to Martin v. Ohio, instead finding that "it does not comport with South Carolina law.” Id. at 105, 359 S.E.2d at 65.

4 . Although not an affirmative defense case, see infra, a discussion of Mullaney is essential to a proper understanding of the development of the law in this area.

5 . The Court reiterated the constitutional permissibility of placing the burden on defendants to prove insanity by dismissing the appeal in Rivera v. Delaware, 429 U.S. 877, 97 S.Ct. 226, 50 L.Ed.2d 160 (1976).

6 . The majority in Martin elected not to cite the Mullaney decision, thereby implicitly questioning its applicability.

7 . The Court previously declined to address the issue in Hankerson v. North Carolina, 432 U.S. at 237 n. 3, 245, 97 S.Ct. at 2342 n. 3, 2346, and State v. Moran, No. 45879, 1983 WL 2712 (Ohio App. Oct. 27, 1983), cert. denied, 469 U.S. 948, 105 S.Ct. 350, 83 L.Ed.2d 285 (1984).

8 . Martin did not dispute that the government proved all the necessary elements of the crime charged, but sought to independently establish a self-defense justification. However, the Court did not rely on the absence of an overlap in those particular circumstances. Martin v. Ohio, 480 U.S. at 234, 107 S.Ct. at 1102.

More realistically, only in the rarest case will proof of an honest belief of imminent danger not negate prior calculation and design. Since the Court validated the Ohio scheme under which overlap of proof will exist in virtually all murder cases where self-defense is asserted, there is no logical reason why the South Carolina scheme should be invalidated because there will be overlap in every case where self-defense is asserted to a charge of murder.

9 . In Martin v. Ohio, the Court noted that “all but two of the States, Ohio and South Carolina, have abandoned the common law rule and require the prosecution to prove the absence of self-defense when it is properly raised by the defendant.” 480 U.S. at 236, 107 S.Ct. at 1103. At the time Martin v. Ohio was issued, South Carolina had also abandoned the common law rule. State v. Davis, 282 S.C. 45, 317 S.E.2d 452 (1984). See note 1.