Walter Hooper v. E. P. Perini

641 F.2d 445

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 1, 1981
• Docket: 79-3167
• Status: Published

Opinions

EDWARDS, Chief Judge.

This is an appeal from the judgment of a district court in the Northern District of Ohio which denied petitioner Hooper’s application for habeas corpus relief under 28 U.S.C. § 2254. Petitioner’s claim¹ is that the state trial judge, in the course of his charge to the jury, committed constitutional error by placing on the defendant the burden of proving by a preponderance of the evidence the defense of self-defense.

The jury in this case returned a verdict of guilty of second degree murder under Ohio Revised Code § 2901.05. This statute in 1973² defined second degree murder as purposeful and malicious killing. Since proof of self-defense would clearly negate the malice element, petitioner claims that he has had to carry the burden of proof on an essential element of the offense which should be required of the state.

The District Court cited United Statés Supreme Court cases including In re Winship, 396 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); 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). The court appeared to rely primarily on the Patterson case. In Patterson, the Supreme Court upheld the State of New York in placing the burden of an affirmative defense, “extreme emotional disturbance,” upon the defendant. The facts in this case would indeed provide appellant a jury issue on the extreme emotional disturbance defense of the Patterson case except for the fact that Ohio law affords no such defense to a second degree murder charge.

The facts in this ease show that petitioner is not entitled to the writ and that the District Judge should be affirmed. After a bar brawl on December 22, 1973 between one Salmon and Hooper which had something to do with both whiskey and a bar dancer, the fight was renewed outside the bar. By all accounts, including Hooper’s own statement made on the scene to a police officer, Hooper won the fight. The overwhelming evidence showed that Hooper knocked Salmon out, gained possession of Salmon’s gun and while Salmon was lying on the ground, shot him through the heart at point blank range. Assuming that the burden of proof instruction was constitutional error, it would be harmless beyond reasonable doubt on these facts. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In addition, in this case there is no showing of “prejudice” as defined by the Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). In Wainwright the Supreme Court dealt with the “prejudice” issue in language which is directly applicable here:

“The other evidence of guilt presented at trial, moreover, was substantial to a degree that would negate any possibility of actual prejudice resulting to the respondent from the admission of his inculpatory statement.” Id. at 91, 97 S.Ct. at 2508.

The judgment of the District Court is affirmed.

1 . Petitioner relies primarily upon Berrier v. Egeler, 583 F.2d 515 (6th Cir. 1978). Berrier is quite a different case both factually and legally. Michigan law has always placed the burden of proof of disproving self-defense on the state whenever a defendant raised the issue. The trial judge in the Berrier case failed to place the burden on the state.

2 . Ohio Revised Code § 2901.05 provides:

No person shall purposely and maliciously kill another. Whoever violates this section, except in the manner described in sections 2901.01, 2901.02, 2901.03, and 2901.04 of the Revised Code, is guilty of murder in the second degree and shall be imprisoned for life.