Samuel Fulton, No. 127-943 v. Warden, Maryland Penitentiary, Ronald Fitzgerald Robinson, 125759 v. Warden, Maryland Penitentiary

744 F.2d 1026, 1984 U.S. App. LEXIS 18398

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 20, 1984
• Docket: 81 — 6695(L), 82-6040
• Status: Published

Opinions

HARRISON L. WINTER, Chief Judge:

Samuel Fulton and Ronald Robinson were each convicted of first-degree murder in a Maryland court in the early 1970’s. Both asserted alibi defenses. Their convictions arose from entirely separate crimes and their appeals are related only by the legal issue on which they both petitioned for habeas corpus relief.

In 1978, in unrelated actions, Fulton and Robinson each petitioned for a writ of habeas corpus in the United States District Court for the District of Maryland. Both Fulton and Robinson were found to have exhausted their state remedies, and the district court concluded that the instructions in both trials were constitutionally infirm. It is now conceded that the juries which convicted them were erroneously instructed with respect to the burden of proof concerning their defenses of alibi. In both instances, however, the district court concluded that the errors were harmless under the particular circumstances of each case. Both Fulton and Robinson appealed and their cases were consolidated for argument before us.¹ After reviewing the records in both cases, we are convinced that the district court correctly decided both cases. Accordingly, we affirm both judgments.

I.

Samuel Fulton was sentenced to life in prison for the first-degree murder of his wife. The state’s medical examiner placed the time of Mrs. Fulton’s death at between 5:00 a.m. and 11:00 a.m. on February 28, 1973. The time was narrowed further by Mrs. Fulton’s sister, Anrair Clay, who was staying at the Fulton residence. Ms. Clay testified that she saw and spoke with Mrs. Fulton from approximately 7:45 to 8:10 a.m. on the morning of the murder.

Edward Cates, owner of a neighborhood store three blocks from the Fulton’s home, testified that he saw Mr. Fulton for approximately five minutes between 8:30 and 8:45 during the morning of Mrs. Fulton’s death. Cates testified that Mr. Fulton asked for change for the streetcar and told Cates he was late for work.² Cates found nothing unusual in Fulton’s demeanor and testified that he looked “normal”. Fulton now contends that this testimony constituted an alibi, which, absent an erroneous jury instruction, could have created reasonable doubt as to his guilt.

There was uncontroverted evidence at trial that Fulton arrived at his home slightly before 8:30 p.m. on February 27, 1973. Fulton had been separated from his family and residing in another state for the previous two months. Two witnesses present that evening, Anrair Clay and Fulton’s sister Joyce, testified that Mr. and Mrs. Fulton had an argument. Both also testified that Fulton threatened his wife with an axe at one point. The argument subsided, however, and both Fultons later went upstairs to bed together. Anrair Clay, apparently worried about her sister, called upstairs to check on Mrs. Fulton at approximately 11:00 p.m. and later at 5:00 a.m. At both points, Mrs. Fulton indicated that her husband was with her and everything was “all right.” Anrair Clay saw Mrs. Fulton again the next morning from roughly 7:45 to 8:10 a.m. when they were sending their children to school. As Ms. Clay went back upstairs to return to bed, she saw a shape in her sister’s bed that she assumed to be Mr. Fulton. Ms. Clay testified that she slept until approximately 11:55 a.m. and then discovered her murdered sister in the next bedroom. Mrs. Fulton was on her back in bed and had been bludgeoned to death with a blunt instrument eventually determined to be a carpenter’s maul found hidden in a china closet downstairs.

The police, on the basis of the above facts, procured a warrant for Mr. Fulton’s arrest. Mr. Fulton surrendered himself at approximately 10:30 p.m. on February 28. Between 10:40 and 1:30 a.m., Mr. Fulton was examined for physical evidence and interrogated by a police detective. A benzidene test for traces of blood on Fulton’s hands yielded positive results indicating the presence of human blood around the cuticle areas of three fingernails. At trial, however, there was some doubt cast on the accuracy of the test and the qualifications of the individual who administered it. Also, an oral statement voluntarily made during the interrogation was admitted at trial. The statement tended to suggest that Fulton knew the nature of the murder weapon, though the exact contents of the statement were in dispute.

At trial, Mr. Fulton attempted to create reasonable doubt as to his guilt by suggesting that Mrs. Fulton was actually killed by her paramour, Louis Rosado. Some circumstantial evidence seemed to support this possibility. Approximately ten days prior to her death, Mrs. Fulton resumed a relationship with Rosado, to whom she had previously been engaged. Rosado testified at trial that he was in love with Mrs. Fulton and believed that she intended to divorce her husband and marry him. Rosado had visited Mrs. Fulton every night during the week prior to her death, and he testified that he had spent the night with her on February 26. Furthermore, he had visited Mrs. Fulton at her home at approximately 6:30 or 7:00 on the evening of February 27, shortly before Mr. Fulton arrived. Fulton suggests a possible motive for Rosado might have been jealousy at an apparent reapproachment between the Fultons.³

A second piece of circumstantial evidence suggesting Rosado’s involvement was a Pabst beer can with his fingerprints on it found in the bedroom. Anrair Clay testified that she bought a six-pack of Pabst sometime after 8:30 p.m. on February 27, as there was no beer in the refrigerator at that time. The record is silent as to whether there were other beer cans around the house. The police found both a can of Pabst and a soft drink can on a table in the bedroom. Mr. Fulton’s fingerprints were on the soft drink can. Mr. Rosado’s prints were later identified on the beer can. Rosado testified at trial, however, that he worked from 5:00 a.m. or 5:30 a.m. until around 11:30 a.m. on February 28. At the time, Rosado was employed by the Baltimore City Sanitation Department. No evidence contradicting Rosado’s story was introduced at trial.

II.

Ronald Robinson was convicted of: first-degree murder, assault with intent to murder, attempted robbery with a deadly weapon, and the unlawful use of a handgun. Robinson was sentenced to two life terms and an additional term of years.

The crime Robinson was charged with took place in the Lenox Furniture Store in Price George’s County on November 8, 1972, between 2:00 and 3:00 p.m. Two of the store’s employees were shot to death. A third, Robert Loewy, was shot twice but lived. Mr. Loewy testified at trial that on the day of the crimes, shortly before noon, an individual fitting Robinson’s description entered the store looking for a lamp. At that time, Loewy helped the customer who eventually did decide on a particular lamp. Loewy’s possible in-court identification of Robinson was suppressed. He did, however, identify a sales slip for the lamp which he had written for the customer under the name of “Jeffrey Robinson.” The ticket was signed, however, in the name of “Ronald Robinson.” An FBI handwriting expert later testified that the signature on the sales slip for the lamp had been written by the defendant.

Loewy testified that the same man came back to the store later in the afternoon to return the lamp. Loewy filled out a sales slip for the return of the lamp and the purchase of a reclining chair. With the exchange apparently over, Loewy returned to other matters. After a few moments, the customer returned asking whether the chair could be obtained in a different color. The customer then brandished a revolver and demanded the money in the cash register. He then opened fire, shot three employees, emptied the cash drawer, and fled.

Two other witnesses placed Robinson on the scene. Richard Marcus, a student and part-time employee, began work immediately before the shooting. Marcus, who was not injured, observed the assailant for approximately fifteen minutes and identified Robinson. Staff Sergeant Claude Jefferson, a neuropsychiatric supervisor at Walter Reed Hospital, was also in the store when the assailant entered in the afternoon. Jefferson left before the shooting but identified Robinson as being in the store.

Other circumstantial evidence implicated Robinson. First, the police recovered clothing from Robinson’s home which matched Loewy’s description of the gunman’s clothing. Second, when Robinson was arrested, the police seized a loaded long-barreled .22 caliber revolver from his car, which Robinson then claimed as his own. At trial, a ballistics expert testified that the bullets which hit the victims could have been fired by that gun, but that the bullets were too mutilated, and the rifling too common, to permit positive identification.

Perhaps the most incriminating evidence against Robinson was the positive identification of two of his fingerprints on the scene. One of those prints was taken from the lamp and the other from the store counter.

Immediately after his arrest, Robinson denied ever having been in the Lenox Furniture Store, and also claimed to have been shooting basketball at an indoor recreation center at the time of the killings. However, the manager of the recreation center testified that no one had used the basketball court on the afternoon of February 8.

At trial, Robinson had a different alibi. His story was based on three witnesses. The first was an elderly female relative who testified that Robinson chopped wood for her from shortly after 11:00 a.m. until approximately 3:40 p.m. She also testified that Robinson made a telephone call from her house at 3:40 p.m. while he ate. Finally, she testified that at 4:15 p.m., Robinson went to the Post Office to pick up a check for her.

During the trial, the parties stipulated that a Postmistress would have testified, had she been called, that she had known Robinson for most of his life, and that at 4:00 p.m. on the day of the robbery, Robinson picked up a check for his “grandmother.” A third witness, Robinson’s seventeen-year-old girlfriend, testified that on the day of the killings, Robinson called her at about 2:30 p.m. and the two spoke until 3:00 p.m. Robinson argues that this testimony, absent an erroneous alibi instruction, could have created reasonable doubt as to his whereabouts during the afternoon in question.

III.

At the close of the Fulton case, the state trial judge gave the following instruction concerning an alibi defense:

The defendant has the burden of proving an alibi defense and must do so by a preponderance of the evidence, not beyond a reasonable doubt. In order to prove an alibi the testimony must cover the whole time in which the crime by any possibility might have been committed and it should be subjected to rigid scrutiny.

A similar instruction was given at the close of the Robinson trial by the state trial judge who presided at it:

Now, the defendant in this case asserts the evidence of an alibi. Now you will understand, ladies and gentlemen, that an alibi is what we call an affirmative defense. It is of course a complete defense if you believe it. Obviously a person who is not at the scene could not complete the crime. We say it is an affirmative defense because this is the one time in this case where the defendant has the burden of proof. It is the only thing in the case as to which he has the burden of proof. On the defense of alibi the defense has the responsibility to satisfy you by a fair preponderance of the evidence that he was not in fact in the store and in fact was somewhere else. Now evidence has been introduced tending to show that the defendant was not present at the time and at the place where these offenses were committed. The defendant may not be convicted of the offenses with which he is charged unless the state proves beyond a reasonable doubt that the defendant was present at the time and place where the offense was committed. If after full and fair consideration of all the facts and circumstances in the evidence you find that the defendant has satisfied the fair preponderance of the evidence concerning this man and that he was in fact somewhere else and not at the scene, then he must be acquitted.

There can be little doubt that both instructions are constitutionally infirm. See In Re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970) (“... 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.”); Patterson v. New York, 432 U.S. 197, 215, 97 S.Ct. 2319, 2329, 53 L.Ed.2d 281 (1977) (a State must prove every ingredient of an offense beyond a reasonable doubt and it may not shift the burden of proof to the defendant); and Sandstrom v. Montana, 442 U.S. 510, 524, 99 S.Ct. 2450, 2459, 61 L.Ed.2d 39 (1979) (a presumption which, although not conclusive, had the effect of shifting the burden of persuasion to the defendant is constitutionally infirm).

The instructions in each of these two trials can be taken to shift the burden of proof as to the element of presence from the prosecution to the defense. The state now concedes constitutional error but argues that, under the facts of each case, the errors were harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In both cases, the district court agreed the errors were harmless. Fulton v. Warden, Maryland Penitentiary, 517 F.Supp. 485 (D.Md.1981); Robinson v. Warden, Maryland Penitentiary, 518 F.Supp. 219 (D.Md.1981).

There are few areas of the law as fraught with uncertainty as analyses of harmless error. There is a threshold question as to whether burden-shifting errors such as these can ever be harmless. Supreme Court precedent has left this question unanswered, and different circuits have resolved the issue in different ways. See, e.g., Lamb v. Jernigan, 683 F.2d 1332, 1341 (11 Cir.1982) (a burden-shifting jury instruction does not require setting aside a defendant’s conviction and sentence if the instruction is found harmless beyond a reasonable doubt); Dietz v. Solem, 640 F.2d 126, 131 (8 Cir.1981) (it is probable that a burden-shifting or conclusive presumption jury instruction is constitutional error in and of itself so that it is unlikely that the jury instruction can ever be harmless).⁴

Recent guidance from the Supreme Court has not been definitive. In Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 976, 74 L.Ed.2d 823, 832 (1983), a plurality of the Court held that a conclusive presumption jury instruction was the equivalent of a directed verdict on the issue and contravened Sandstrom, supra. Four justices agreed that, barring certain delineated exceptions, a Sandstrom violation can never be harmless error. 460 U.S. at 87, 103 S.Ct. at 978, 74 L.Ed.2d at 835. However, Justice Stevens, whose vote was needed to make a majority, expressed the view in his concurring opinion that if the violation was less grievous, a harmless error determination could be made. 460 U.S. at 87, 103 S.Ct. at 978, 74 L.Ed.2d at 835. Similarly, a majority of the Court in United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 1980, 76 L.Ed.2d 96, 106 (1983), held: “Since Chapman the Court has consistently made it clear that it is the duty of the reviewing court to consider the trial record as a whole and to ignore errors that are harmless including most constitutional violations.” Accordingly, we conclude that there is currently no per se rule of reversal for constitutional violations of the type present in Fulton and Robinson.5 In cases involving similar errors, we have always assessed the impact of those errors by carefully considering the record as a whole in each instance. See e.g., Anderson v. Warden, Maryland Penitentiary, 696 F.2d 296 (4 Cir.1982), and Guthrie v. Warden, Maryland Penitentiary, 683 F.2d 820 (4 Cir.1982).

Because these appeals arise from petitions for writs of habeas corpus, a strict harmless error analysis is not wholly appropriate. Morris v. Maryland, 715 F.2d 106 (4 Cir.1983). “On collateral review of an allegedly erroneous jury charge, a habeas petitioner must meet ‘a stricter standard of proof than is required on direct review of a criminal conviction.” Id., at 108, citing Cooper, supra n. 4, 702 F.2d at 483 n. 2. In Morris we recognized that the nature of habeas corpus proceedings requires application of the standard of proof delineated in Henderson v. Kibbe, 431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977):

... our task on this appeal is not to apply the harmless error analysis of Chapman v. California, 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] (1967), but rather the test laid down by Henderson v. Kibbe. Henderson requires us to determine ‘whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process’ Id. at 154, 97 S.Ct. at 1736 (citations omitted)

715 F.2d at 108. There are errors that cannot be considered harmless on direct review but are nevertheless insufficient to render a trial so unfair as to justify use of the habeas corpus remedy.⁶ Thus, we must ascertain whether the instructional errors at issue in Fulton and Robinson rendered the trials fundamentally unfair, a more demanding standard to be satisfied than that required by the usual harmless error test.

IV.

Apparently not appreciating the difference in approach required in direct and collateral attack established in Henderson, supra, the district court in both Fulton and Robinson used the less demanding harmless error analysis. Nevertheless, in both instances the district court found the errors harmless beyond a reasonable doubt. After carefully examining the record in each case, we agree. Not only did the errors at issue not render the trials fundamentally unfair, they were harmless as well.

A. Fulton

Fulton’s contention reduces itself to the assertion that his presence in Cates’ store for approximately five minutes out of a possible three-and-one-half hours during which the crime could have been committed might have created reasonable doubt as to his presence. We are persuaded that this is not really a question of an alibi. Assuming Fulton was in Cates’ store on the morning of the murder, this establishes nothing more than that Mr. Fulton was three blocks away from the scene of the murder for five of the two-hundred-ten minutes during which the crime could have been committed. Indeed, as Cates’ testimony was uncontroverted at trial, there is every reason to believe the jury accepted it completely.

The real importance of Cates’ testimony is to lend some support to the defense theory that Mrs. Fulton’s paramour, Louis Rosado, was the culprit. Fulton attempts to convert what is really circumstantial evidence in support of an alternative theory into an “alibi” that was unconstitutionally tainted. Fulton’s argument is that, absent the erroneous instructions, the jury could have attached more weight to Cates’ testimony and might then have concluded that Rosado returned to the house after Fulton left and committed the murder. The structure of this argument reveals why the jury instruction could have had no adverse impact. There was no alibi defense for the instructions to taint, but only an alternative theory which was supported by Cates’ uncontroverted testimony and Rosado’s fingerprint on a beer can of uncertain origin.

We are unable to see how a jury instruction misallocating the burden of proof for an “alibi” was harmful to Fulton. The concept of an alibi is defined within the instruction as necessarily “covering] the whole time” in which the crime could have been committed. By the terms of the instruction, the jury would conclude, as we do now, that an alibi is simply not involved here. The circumstantial evidence implicating R,osado could have created reasonable doubt but it was not an alibi. Cates’ testimony simply does not account for Fulton’s whereabouts for the overwhelming majority of the time during which the murder could have been committed, especially because for the short period that it does cover, it establishes Fulton to have been only three blocks away from the murder scene.

Because the paramour theory as well as the uncontroverted circumstantial evidence supporting it was before the jury, the record suggests that the jury duly considered the possibility that Rosado was the true culprit. The jury was properly instructed that the state bears the burden of proof to show beyond a reasonable doubt that Fulton committed the murder. There is no suggestion that the instructions imposed some burden on Fulton to prove someone else was guilty. Thus, there is every reason to believe that the jury considered the evidence about Rosado for what it was worth and still found Fulton guilty beyond a reasonable doubt. They could have reached this conclusion by any number of reasonable routes: that Fulton killed his wife before he got to Cates’ store, that Fulton went back after visiting the store and then killed his wife, that Rosado’s fingerprints were on a beer can that had been around for days, or that Rosado’s uncontroverted testimony that he was at his job with the Sanitation Department for the entirety of the time the murder could have been committed exculpated him.

On the unique facts presented here, we conclude that the erroneous alibi instruction did not infect the entire trial so as to render it fundamentally unfair. Henderson, supra. Accordingly, we affirm the judgment denying habeas corpus relief.

B. Robinson

Unlike the Fulton case, Robinson actually involves an alibi. Several individuals testified at trial that Robinson was at a different place during the time the robbery and murders at the Lenox Furniture Store were committed. Nevertheless, on the basis of uncontroverted physical evidence, we conclude the instructional error was harmless or at least failed to render the trial fundamentally unfair.

Robinson’s alibi at trial was that he was chopping wood for an elderly relative. This alibi was untrue beyond any reasonable doubt. Two fingerprints were recovered from the scene of the crime. The first was taken from the store counter, the second was taken from the lamp returned by the “customer”, soon to become armed robber, immediately before the shooting. The fingerprints are conclusive and what they prove is corroborated by all the eyewitness identifications, the ballistics reports, the inconsistencies in alibis presented at interrogation and at trial, and the handwriting identification on the sales slip. Moreover, the record is simply barren of any explanation, plausible or implausible, for how Robinson’s fingerprints appeared at the scene of a robbery and brutal murder when he was presumably chopping wood. Robinson was in the store; the alibi was a fabrication beyond any conceivable doubt.

For an erroneous alibi instruction to render a trial fundamentally unfair, there must be some articulable possibility that the alibi could be true. To hold otherwise would elevate procedure over substance to an extent where this review would be governed by a per se rule that does not admit of flexibility. Believing that no per se rule exists, and that the alibi here was unquestionably fabricated, we also affirm this judgment denying habeas corpus relief.

AFFIRMED.

1 . After argument, we stayed our decision pending that of the Supreme Court in Koehler v. Engle, No. 83-1, believing that the Supreme Court would discuss the harmless-error test as it relates to burden-shifting jury instructions. Koehler was decided March 26, 1984 by an equally-divided court. — U.S. -, 104 S.Ct. 1673, 80 L.Ed.2d 1 (1984), affirming 707 F.2d 241 (6 Cir.1983). No opinions were filed.

2 . The evidence showed that Fulton was unemployed at the time of the murder.

3 . Rosado testified that he was not aware that Mr. Fulton would be returning home on February 27 and that he first became aware of Fulton’s return when he heard that Fulton was being sought for the murder of his wife.

4 . A dictum in Cooper v. State of North Carolina, 702 F.2d 481, 483 (4 Cir.1983) is to the effect that a jury charge which compels or even invites jurors to accept an unconstitutional view of the law can never be harmless error. The dictum cites Sandstrom, supra, 442 U.S. 526, 99 S.Ct. 2460, as authority, but a close reading of Sandstrom shows that the point was expressly not decided. In any event, the statement in Cooper is unquestionably dictum and not binding on this panel.

5 . As recognized in n. 1, supra, the Supreme Court has even more recently been unable to resolve the issue of whether Sandstrom -type burden-shifting instructional errors can ever be harmless. Koehler, supra, n. 1, presented precisely that issue. However, an equally divided Court affirmed the decision granting habeas corpus relief without opinion. Yet another opportunity to resolve the issue is presented in Francis v. Franklin, 720 F.2d 1206 (11 Cir.1983), cert. granted, — U.S. ——, 104 S.Ct. 2677, 81 L.Ed.2d 873 (1984). In light of the delays already caused by our abortive attempt to obtain clarification and the possibility that Francis might not resolve the issue, we have decided not to delay disposition of these appeals further.

6 . Rose v. Lundy, 455 U.S. 509, 543-4 & n. 8, 102 S.Ct. 1198, 1216 & n. 8, 71 L.Ed.2d 379 (1982) (Stevens, J. dissenting) (some errors which cannot be declared harmless on direct appeal nevertheless do not render a trial fundamentally unfair).