Harrison Berrier v. Charles E. Egeler, Warden, State Prison of Southern Michigan at Jackson , 583 F.2d 515 ( 1978 )

EDWARDS, Circuit Judge.

This is a habeas corpus petition where a District Judge in the Eastern District of Michigan, Southern Division, granted petitioner the relief he sought. The facts show that petitioner killed his brother-in-law in his (the petitioner’s) home. He contended that he shot in self-defense. The trial judge, in a confused instruction, told the jury that the defendant had the burden of proof as to self-defense and that he had a duty to retreat, if possible, in his own home.

Appellant was convicted of first degree murder by the jury and sentenced to life imprisonment. The Michigan Court of Appeals vacated the sentence and, under the trial record, resentenced for second degree murder. Petitioner therefore is now serving a 20-40 year sentence.

His present petition contends that his due process rights were violated by the fact that at the trial the judge placed the burden of proof that the killing was in self-defense upon defendant and, in addition, instructed the jury that defendant at the time of the killing was under a duty to retreat in his own home to the degree he could do so safely. This instruction, he asserts, was in violation of Michigan law, People v. Stallworth, 364 Mich. 528, 111 N.W.2d 742 (1961), and federal constitutional law, Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).

The facts as revealed in the state court trial of this case were recited as follows in the opinion of the Michigan Court of Appeals:

The decedent was defendant’s brother-in-law. Animosity existed between them, arising from the fact that decedent had testified against defendant in a prior criminal trial. Defendant testified that about 9:30 on the night of March 30,1970, decedent came to defendant’s home and said to defendant that decedent had heard that defendant was “looking” to kill him. To this defendant replied, “No Joe, you’re not worth it.” Defendant then related that shortly thereafter he and decedent went for a ride, settled their differences, and shook hands.

Defendant returned home and watched TV. He was drowsing about 11:15, when he heard a ruckus at the outside door, and defendant testified that he heard his wife scream, “Look out he’s got a gun or look out, he’s going to kill you.” Defendant said that he grabbed a loaded .22 rifle standing against the wall next to him, stepped through the kitchen door, saw the figure of an unknown man, who appeared to be violent, entering the kitchen. That defendant shot the man and later called the police. Decedent was shot seven times.

During defendant’s direct testimony, he attempted to relate the statement allegedly made by his wife, “He is going to kill you.” The prosecutor objected on the basis of hearsay and was sustained. On appeal, defendant asserts this was reversible error because the statement was admissible as a res gestae statement. We agree with defendant that the statement was admissible as a res gestae statement and that it was error to exclude it. We do not agree that the error was reversible error for the reason that the same statement was twice related to the jury, once in a taped statement by defendant and once during his cross-examination.

The only persons present at the shooting were defendant, his wife, and decedent.

People v. Berrier, 48 Mich.App. 454, 456-58, 210 N.W.2d 506, 507 leave to appeal denied, 390 Mich. 813 (1973).

There has been exhaustion of state court remedies on the issues with which we are presently concerned. But it is clear that the original appeals in the Michigan court system did not center upon the judge’s instructions which concern us now, perhaps because no objection was made to them by appellant’s counsel at trial.

The grounds for the grant of the writ of habeas corpus are effectively set forth in the opinion of District Judge John Feikens, dated November 22, 1976:

Berrier’s allegation is that the trial judge’s instructions to the jury placed upon him the burden of proving his claim of self-defense. This, if shown, amounts to plain constitutional error and warrants the grant of a petition for a writ of habeas corpus.² It is well settled 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.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). The United States Supreme Court [has] recently considered (Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975)) a jury instruction which placed upon the defendant the burden of showing by a fair preponderance of the evidence, that he had acted in the heat of passion and, thus,'without malice aforethought when he fatally assaulted the deceased. The court held, “the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion or sudden provocation when the issue is properly presented in a homicide case.” Mullaney at 705, 95 S.Ct. at 1892 (emphasis added).³ Similarly, a de-

fendant should not have to prove the elements of self-defense. Rather, under the Winship standard, the government should be required to prove beyond a reasonable doubt the absence of the elements of self-defense.⁴

In Berrier’s case the trial judge instructed the jury as to the elements of self-defense — that the defendant may not be the aggressor, that the defendant must reasonably believe that he or another under his protection is in danger of death or great bodily harm, and that there must be no way open for the defendant to retreat safely. (Transcript at 557) . He then gave the correct instruction that a person in his own home need not retreat if assaulted. (Transcript at 558) . The judge then went on to say:

“You are to determine from all of the evidence whether facts constituting such reasonable cause have been established and unless such facts constituting such reasonable cause have been established by the defense in this case you cannot acquit on the ground of self defense . . ..”

(Transcript at 559).

This statement implies that the defendant must prove his claim of self-defense. A short time later the trial judge made this confusing statement:

Self-defense in proper cases is the right of every person but it will not justify the taking of a human life unless the jurors shall be satisfied from the testimony first that the Defendant was not the aggressor in bringing on the difficulty, that is, that he was without fault; second, that there existed at the time of the striking of the fatal blow in his mind a present and impending necessity to strike such a blow in order to save himself from death or some great bodily harm; third, that there must have been no way open whereby he could have retreated as it appeared to him at the time to a place of safety and thus have avoided the conflict. Unless you find that all three of these facts are established in this case then the plea of self-defense fails. The burden of proof of all such matters is upon the People to show that the respondent is guilty of the offense charged and the People’s testimony must be such as to satisfy the jurors that the killing was not done in self defense. The burden is not on the Defendant who makes the claim of self defense to satisfy the jury of the truth of his claim.

(Transcript at 560-561).

Here the trial judge did not instruct the jury that a person in his own home has no duty of retreat, a crucial instruction in this case since the testimony showed that the defendant was in his own home when he killed his brother-in-law. This is error under Michigan law. People v. Lenke-vich, 394 Mich. 117, 229 N.W.2d 298 (1975). The judge then went on to imply again that the defendant must establish the elements of self-defense. This mistake is only partially rectified by his final statement relieving the defendant from the burden of satisfying the jury of his claim.

Jury instructions are to be judged as a whole. Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973); United States v. Mattucci, 502 F.2d 883, 888-9 (6th Cir. 1974). However, instructions must not be such as to mislead the jury; they should be consistent and harmonious. Smith v. United States, 230 F.2d 935, 939 (6th Cir. 1956) [“The fact that one instruction is correct does not cure the error in giving another that is inconsistent with it.”] See also United States v. Reid, 517 F.2d 953, 965 (2d Cir. 1975); and cases cited therein.

In this case it is clear that the jury was confused when it began deliberations. After it had deliberated for a short time it asked the court to repeat the “three elements necessary to be present for a self defense decision.” (Transcript at 569). The phrasing of the question indicates that the jury was approaching deliberations with the mistaken assumption that it must decide that the elements of self-defense had been established before returning a not guilty verdict. The trial judge’s answer further misinformed the jury:

Self defense is, in a proper case, a good defense and the right of every person, but it will not justify the taking of human life unless the jurors are satisfied from the testimony of all three of the following things. First, that the Defendant was without fault, second, that there existed in the Defendant’s mind at the time he fired the weapon a present and impending necessity to shoot the decedent in order to save himself or a member of his family from death or some great bodily harm; and, third, that there must have been no way open whereby he could have retreated as it appeared to him at the time to a place of safety and thus have avoided the conflict.

Although the trial judge admonished the jury that this answer was to be taken in conjunction with all of the instructions (Transcript at 571), it is clear that the answer emphasized the erroneous instructions given earlier, repeating the wrong instruction on duty of retreat and again placing upon the defendant the burden of establishing his claim of self-defense. This removes any possibility that the error could be considered harmless beyond a reasonable doubt. See Mullaney, 421 U.S. at 705, 95 S.Ct. 1881 (Rehnquist, J., concurring); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

The court concludes that the trial judge’s instructions on the issue of self-defense denied due process to the defendant and rendered his trial fundamentally unfair in a constitutional sense. Since this conclusion is dispositive of Berrier’s petition, the court declines to consider any of his other allegations.

Perrier v. Egeler, 428 F.Supp. 750, 752-54 (E.D.Mich. 1976).

On review of the appellate record before us, we conclude that appellant’s federal due process rights were violated by failure to place the burden of proof upon the state as to appellant’s self-defense theory. Mulla-ney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). See also People v. Stallworth, 364 Mich. 528, 111 N.W.2d 742 (1961).

Nor do we find any conflict between the District Judge’s opinion and more recent Supreme Court cases such as Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), and Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). In Patterson the Court’s opinion clearly recognizes 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.” Patterson v. New York, supra, 432 U.S. at 215, 97 S.Ct. at 2330.

Although there is general language in the trial judge’s charge in this case placing the burden of proof upon the prosecution to establish guilt beyond reasonable doubt, a major portion of the charge consisted of the following:

While I will instruct you further on this point, I will add at this point, so there is no misunderstanding, that, that as the second element of self defense which I have just discussed, that is in the Defendant’s mind there must be a present and impending necessity to shoot the Defendant in order to save himself from death or some great bodily harm. This extends also to protect members of his family toward whom he owes a duty of such protection in a proper case where that is shown.

The right to defend one’s self against danger not of his own seeking, which is a right which the law guarantees to all men and the same right which exists to protect himself, exists also for those depending upon him such as members of his family. In this case the Defendant had the same right to protect his wife or family that he would have had to protect himself in a like situation, though the danger was threatened to his wife, his family or unto himself, if at the time the Defendant shot the deceased, he had reasonable cause to apprehend on the part of the deceased a design to do to himself or to his family great personal injury, and there was reasonable cause for him to apprehend immediate danger of such design being accomplished and to avert such apprehended danger he shot and at the time he did so he had reasonable cause to believe it necessary for him to shoot in the way he did to protect himself and/or his wife and family from such apprehended danger, then and in that case, the shooting was not felonious but was justifiable and you ought to acquit him on the grounds of necessary self defense.

It is not necessary to this defense that the danger should have been actual or real or that the danger should have been impending and immediately about to follow. All that is necessary is that the Defendant had reasonable cause to believe and did believe these facts, but before you acquit on the ground of self defense you ought to believe that the Defendant because of apprehension for himself and/or his family was reasonable. You are to determine from all of the evidence whether facts constituting such reasonable cause have been established and unless such facts constituting such reasonable cause have been established by the defense in this case you cannot acquit on the ground of self defense, but his actions and conduct are to be judged from the circumstances as they appeared to him at that time and if from all the evidence in the case there exists in your mind a reasonable doubt whether the respondent did not in fact kill Joseph Mato-lovich in defense of himself and/or his wife or family, honestly believing his life and/or the life of his wife and family was in jeopardy or that he was in danger of receiving serious bodily injury at the hands of Joseph Matolovich, then it would be your duty to render a verdict of not guilty. It is not necessary to his defense that the danger should have been actual or real, or that the danger should have been impending and immediately about to follow, the actions and conduct of the respondent are to be judged from the circumstances as they appeared to him at the time. One who is suddenly attacked by an adversary is not held to fine distinctions of judgment as to what is in the mind of his adversary or what is his adversary is about to do or to how much force it is necessary for him to use to protect his life or his person from serious harm.

In justification of the offense here charged against him, the respondent has interposed a plea of self defense and under certain circumstances this is a good defense. To make the plea available it must appear that the respondent was without fault on his part, if he himself was the aggressor in the conflict he cannot invoke the doctrine of self defense as an excuse for the killing unless he was at that time in immediate danger of loss of his own life or suffering some grievous bodily injury and there was no retreat open to him and his only safety lay in striking the blow which caused the death of the deceased.

Perhaps even more important is the fact that when the jury in the course of its deliberations sent a note to the judge requesting instructions upon “three elements necessary to be present for a self-defense decision,” the record discloses that the trial judge failed to indicate that the burden of proof on the self-defense issue was on the prosecution and repeated a previously erroneous instruction on the duty to retreat:

THE COURT: Thank you. The record may so indicate. Ladies and gentlemen, I have a note that you handed to the bailiff for my attention which reads as follows: Three elements necessary to be present for a self defense decision. I will rein-struct you on this point since you will have to depend on this verbal instruction, I will ask you to listen carefully.

Self defense is, in a proper case, a good defense and the right of every person, but it will not justify the taking of human life unless the jurors are satisfied from the testimony of all three of the following things. First, that the Defendant was without fault, second, that there existed in the Defendant’s mind at the time he fired the weapon a present and impending necessity to shoot the decedent in order to save himself or a member of his family from death or some great bodily harm; and, third, that there must have been no way open whereby he could have retreated as it appeared to him at the time to a place of safety and thus have avoided the conflict. I will read that again for you.

Self defense is, in a proper case, a good defense and the right of every person, but it will not justify the taking of human life unless the jurors are satisfied from the testimony of all three of the following things. First, that the Defendant was without fault; secondly, that there existed in the Defendant’s mind at the time he fired the weapon, a present and impending necessity to shoot the decedent in order to save himself or a member of his family from death or some great bodily harm; and third, that there must have been no way open whereby he could have retreated as it appeared to him at the time, to a place of safety and thus avoided the conflict.

I trust this will be of assistance to you. The jury is excused in company with the bailiff. You may retire to the jury deliberation room.

(Jury left the Courtroom at 5:13).

THE COURT: I will ask Counsel if they are satisfied with the additional instructions which the Court has just given the jury.

Neither counsel entered any objection to the charge.

We recognize that appellee Berrier emphasizes that Michigan law does not impose a duty to retreat upon one who is threatened in his own home. People v. Lenkev-itch, 394 Mich. 117, 229 N.W.2d 298 (1975); People v. Stallworth, 364 Mich. 528, 535, 111 N.W.2d 742, 746 (1961); People v. Johnson, 75 Mich.App. 337, 254 N.W.2d 667 (1977). It, however, is by no means clear that this aspect of the trial judge’s failure to give a proper instruction would be held to be a federal due process violation in a habeas corpus case. See Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977). As a consequence, we place no reliance upon this clear error in application of Michigan law in our affirmance of the issuance of the writ of habeas corpus.

Under Michigan law proof of the absence of grounds for self-defense is an element of the crime of murder upon which the prosecution must bear the burden of proof.¹ This has been true for many years. One of the clearest statements is found in the leading Michigan case of People v. Coughlin, 65 Mich. 704, 32 N.W. 905 (1887), where the Supreme Court of Michigan said:

CHAMPLIN, J. Respondent was convicted of manslaughter, and sentenced to be confined in the state prison at Jackson at hard labor for the period of 13 years. The circuit judge charged the jury that, in cases where the respondent seeks to justify his acts of killing as done in self-defense, the burden of proof is upon himself to establish the killing to have been done in self-defense. This was error. In civil cases the burden of proof is generally upon the party who affirms the existence of facts necessary to make out his case. In criminal cases, however, the burden of proof is upon the prosecutor to show that the accused is guilty of the offense charged. The charge made against respondent in this case could not be made out unless the testimony should exclude the idea of self-defense beyond a reasonable doubt. Consequently it was incumbent upon the people to show such facts and circumstances as convinced the jury that the killing was not done in self-defense.

People v. Coughlin, supra at 705, 32 N.W. at 905 (emphasis added).

It is perfectly clear, of course, that appellee Berrier in his state court trial did seek “to justify his acts of killing as done in self-defense,” and hence, the burden of proof was upon the prosecution to show that “the killing was not done in self-defense.” The Michigan Supreme Court has adhered to this principle without deviation through a long line of cases: People v. Cathey, 220 Mich. 628, 631-32, 190 N.W. 753 (1922); People v. Asbury, 257 Mich. 297, 298-99, 241 N.W. 144 (1932); People v. Stallworth, 364 Mich. 528, 535, 111 N.W.2d 742 (1961); People v. Jackson, 390 Mich. 621, 626, 212 N.W.2d 918 (1973).

We entertain no doubt that as a matter of federal due process the prosecution must prove beyond reasonable doubt every fact necessary to constitute the crime charged. In re Winship, 397 U.S. 358, 364, 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); Patterson v. New York, 432 U.S. 197, 206, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). In Michigan an element of proof of murder is evidence which negates self-defense, in any case where self-defense is claimed and evidence is offered thereon. See citations in paragraph above. In this posture of the case, we believe that the District Court and this court are controlled by the Fourteenth Amendment as it has been interpreted by the Supreme Court of the United States in In re Winship, supra, Patterson, supra, and Mullaney v. Wilbur, supra.

In this last case, Mr. Justice Powell, writing for a unanimous Court, held as follows:

Not only are the interests underlying Winship implicated to a greater degree in this case, but in one respect the protection afforded those interests is less here. In Winship the ultimate burden of persuasion remained with the prosecution, although the standard had been reduced to proof by a fair preponderance of the evidence. In this case, by contrast, the State has affirmatively shifted the burden of proof to the defendant. The result, in a case such as this one where the defendant is required to prove the critical fact in dispute, is to increase further the likelihood of an erroneous murder conviction. Such a result directly contravenes the principle articulated in Speiser v. Randall, 357 U.S. 513, 525-526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958):

“[W]here one party has at stake an interest of transcending value — as a criminal defendant his liberty — th[e] margin of error is reduced as to him by the process of placing on the [prosecution] the burden ... of persuading the factfinder at the conclusion of the trial . ..”

See also In re Winship, 397 U.S., at 370-372, 90 S.Ct. 1068 (Harlan, J., concurring). Mullaney v. Wilbur, supra, 421 U.S. at 700-01, 95 S.Ct. at 1890.

Nor do we believe that the error in this charge can be ignored because of the failure of counsel to enter objection to it. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). While normally under Michigan law the absence of objection may preclude appellate review of a claimed error, nonetheless, when any charge omits an essential element of a crime, reversible error may be found. People v. Liggett, 378 Mich. 706, 148 N.W.2d 784 (1967); People v. Townes, 391 Mich. 578, 218 N.W.2d 136 (1974); People v. Peoples, 75 Mich.App. 616, 255 N.W.2d 707 (1977); People v. Dorrikas, 354 Mich. 303, 316, 92 N.W.2d 305, 307 (1957).

Like the District Judge, we find no bar to habeas relief in this case because appellant’s trial counsel made no objection to the state judge’s instructions at the time of trial. The magnitude of the error in this trial would make it cognizable in a habeas proceeding as plain error even where no objection had been made before the trial court. United States v. Buffa, 527 F.2d 1164 (6th Cir. 1975).

We recognize that the test for habeas relief is even more difficult for a petitioner to overcome. Thus, the Supreme court has said:

The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court’s judgment is even greater than the showing required to establish plain error on direct appeal. The question in such a collateral proceeding is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process,” Cupp v. Naughten, 414 U.S., at 147 [94 S.Ct. 396, 400, 38 L.Ed.2d 368], not merely whether “the instruction is undesirable, erroneous, or even ‘universally condemned,’ ” id., at 146, 94 S.Ct. [396] at 400.

Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977). (Footnote omitted.)

Nonetheless, we conclude that the error here went to the central issue of guilt or innocence and infected the fairness of the trial itself.

A federal habeas court has made its own independent determination of this petitioner’s federal claim that he is detained pursuant to a final judgment of a state court, in violation of the United States Constitution. The Supreme Court has recently noted that this principle has not been disturbed by recent cases. See Wainwright v. Sykes, supra, 433 U.S. at 87, 97 S.Ct. at 2506-07.

Finally, we reject.the argument of the State Attorney General on behalf of the warden that despite all that has been said above, the error should be deemed harmless beyond reasonable doubt within the rule of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Here the jury’s inquiry recited by the District Judge clearly shows its preoccupation with the self-defense issue.

The judgment of the District Court is affirmed.

2 See generally, Note: Affirmative Defenses and Due Process: The Constitutionality of Placing a Burden of Persuasion on A Criminal Defendant, 64 Georgetown Law Journal 871 (1976).

3 For additional authority that the burden of proof should never shift to the defense in a criminal case, see, e. g., Smith v. Smith, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S.Ct. 99, 34 L.Ed.2d 141 (1972) [alibi defense]; Trimble v. Stynchcombe, 481 F.2d 1175 (5th Cir. 1973) [alibi defense]; Cool v. United States, 409 U.S. 100, 93 S.Ct. 354, 34 L.Ed.2d 335 (1972) [exculpatory accomplice testimony]; Dixon v. Hopper, 407 F.Supp. 58 (M.D.Ga.1976) [alibi defense]; Stump v. Bennett, 398 F.2d 111 (8th Cir.), cert. denied, 393 U.S. 1001, 89 S.Ct. 483, 21 L.Ed.2d 466 (1968) [alibi defense]; United States v. Ambrose, 483 F.2d 742 (6th Cir. 1973) [entrapment]; United States v. Sennett, 505 F.2d 774 (7th Cir. 1974) [insanity defense]. Contra, Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952) [no constitutional right to an instruction that government must prove sanity],

4 The court notes that this is also the rule in Michigan. People v. Stallworth, 364 Mich. 528, 111 N.W.2d 742 (1961).

1 . In Michigan murder is defined by common law rather than by statute.