Daniel Lewis Howze v. Ronald C. Marshall, Supt. , 716 F.2d 396 ( 1984 )

BAILEY BROWN, Senior Circuit Judge.

This appeal from the district court’s denial of Howze’s petition for a writ of habeas corpus requires us to determine whether Howze was denied federal due process when, pursuant to Ohio law, the burden was placed upon him at trial to prove by a preponderance of the evidence that he was insane when he committed the robberies which led to his conviction. The district court held that the State of Ohio could constitutionally place the burden of proving the affirmative defense of insanity on Howze, relying upon the decisions in Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), and Krzeminski v. Perini, 614 F.2d 121 (6th Cir.), cert. denied, 449 U.S. 866, 101 S.Ct. 199, 66 L.Ed.2d 84 (1980). We affirm.

I.

The facts are not disputed and need not be discussed in detail due to the nature of the single constitutional issue Howze raises. It is sufficient to note that Howze was tried before a jury in the Summit County, Ohio, Court of Common Pleas and convicted of three counts of aggravated robbery.¹ There was conflicting evidence adduced at trial concerning Howze’s sanity at the time of the robbery. During the pretrial phase Howze had entered pleas of “not guilty” and “not guilty by reason of insanity.”

In submitting the case to the jury, the trial court judge instructed the jury that while the prosecutor bore the burden of proving each and every essential element of the crime charged beyond a reasonable doubt, defendant had the burden of proving the insanity defense by a preponderance of the evidence. The judge also cautioned the jury that it was not to reach the insanity issue unless it first found that the state had proven every element of the charged offense beyond a reasonable doubt.

Howze objected to this jury instruction, stating that the court’s placement of the burden of proving insanity upon him was an unconstitutional deprivation of his right to due process. The essence of Howze’s objection was that his insanity plea, based upon his contention that he acted under an irresistible impulse, negated an element of the crime and thus required that the state prove Howze was not insane when the robberies were committed.

Howze was convicted and is now serving his sentence in a state hospital for the criminally insane. His conviction was affirmed by the Ohio Court of Appeals for the Ninth District. State v. Howze, 66 Ohio App.2d 41, 420 N.E.2d 131 (1979). The Ohio Supreme Court denied Howze’s petition for review and the United States Supreme Court denied certiorari. Howze v. Ohio, 447 U.S. 910, 100 S.Ct. 2996, 64 L.Ed.2d 860 (1980).

In his habeas corpus petition, Howze stated as his sole ground for relief that his rights under the due process and privileges and immunities clauses of the fourteenth amendment were violated when the trial court instructed the jury as stated above. The habeas corpus petition was assigned to a United States Magistrate for the Northern District of Ohio who recommended a decision denying the petition. The district court adopted the Magistrate’s recommendation and denied the petition.

II.

The trial court instructed the jury on the burden of proof that each party was required to bear under Ohio Law. Section 2901.05(A), Ohio Rev.Code Ann. (1978), provides:

(A) Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused.

Except for a brief period from 1976-1978, Ohio has consistently placed the burden of proving an affirmative defense on the defendant. State v. Vargo, 116 Ohio St. 495, 156 N.E. 600 (1927).

Insanity is treated as an affirmative defense in Ohio. State v. Poole, 33 Ohio St.2d 18, 294 N.E.2d 888 (1973); State v. Staten, 18 Ohio St.2d 13, 247 N.E.2d 293 (1969). This court has previously held that, under Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), “so long as a jury is instructed that the state has the burden of proving every element of the crime beyond a reasonable doubt, there is no due process violation” if the state places the burden of proving the affirmative defense of insanity upon the defendant. Krzeminski v. Perini, 614 F.2d at 123 (citation omitted). In Rivera v. Delaware, 429 U.S. 877, 97 S.Ct. 226, 50 L.Ed.2d 160 (1976), dismissing for want of a substantial federal question, 351 A.2d 561 (Del.1976), the Supreme Court in effect approved a decision by the Delaware Supreme Court that, although a Delaware statute included irresistible impulse as an insanity defense, it was not a denial of federal due process to require a defendant to prove insanity. Additionally, as stated, the state trial judge specifically instructed the jurors that they could not reach the question whether Howze met his burden of proving insanity until and unless they concluded that the state proved every element of the charged offense beyond a reasonable doubt.

Since the trial judge explicitly distinguished “the elements of the crime on which the state had the burden of proof from the elements of the affirmative defenses, on which the petitioner had the burden of proof,” Krzeminski v. Perini, 614 F.2d at 124, we find no due process violation. Id.

Howze contends that Patterson v. New York, Krzeminski v. Perini, and all other prior Supreme Court or Sixth Circuit cases addressing similar legal issues are distinguishable and are therefore inapplicable because none were directly concerned with the irresistible impulse prong of an insanity defense. Ohio’s definition of legal insanity was set forth in the syllabus² to State v. Staten, as follows:

In order to establish the defense of insanity where raised by plea in a criminal proceeding, the accused must establish by a preponderance of the evidence that disease or other defect of his mind had so impaired his reason that, at the time of the criminal act with which he is charged, either he did not know that such act was wrong or he did not have the ability to refrain from doing that act. (Emphasis added).

The definition is similar to that recommended by the American Law Institute:

A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of the law. Model Penal Code § 4.01 (Official Draft, 1962).

Both these definitions combine two tests— “right and wrong” and “irresistible impulse.” Howze’s contention is that, because proof of irresistible impulse disproves an element of the crime of aggravated robbery, requiring a defendant to prove irresistible impulse is tantamount to requiring that the defendant negate an element of the offense. If Howze is correct, this would be a denial of due process under Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Under Ohio law, however, proof of irresistible impulse does not negate an element of aggravated robbery.

As Howze points out in his brief, the trial court, in charging the jury as to the elements of aggravated robbery, stated that the burden was on the state to prove that Howze:

1. knowingly obtained or attempted to obtain property of some value;

2. for the purpose of depriving the owner of that property;

3. through the use of a deadly weapon. Brief for Appellant at 12. Section 2901.22, Ohio Rev.Code Ann, provides:

(A) A person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature.

(B) A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist.

Thus, Howze contends that a person who acts under an irresistible impulse does not act purposely and knowingly.

In State v. Howze, the Ohio appellate court in Howze’s direct appeal stated that “the burden complained of by defendant is not one directed to an essential element of the crime charged but, rather, to the question of defendant’s criminal volition — to his actions as a ‘free agent’ under the law.” Id. 66 Ohio App.2d at 46, 420 N.E.2d 131. The court later continued: “It is obvious that one may commit a purposeful act not knowing it to be wrong, or commit such a purposeful act, even though the actor knows the act to be wrong, but lacks the ability to refrain from doing it. Id. See also State v. Poole. Thus, the Ohio courts have concluded that Ohio’s “statutory emplacement of the burden of proof upon [Howze] ... is not violative of [Howze’s] rights under the Fourteenth Amendment....” State v. Howze, 66 Ohio App.2d at 46, 420 N.E.2d 131. There is no doubt that in this case we should follow the interpretation of Ohio law by the Ohio court for, as the Supreme Court has stated: “This Court, however, repeatedly has held that state courts are the ultimate expositors of state law .. . and that we are bound by their constructions except in extreme circumstances ...." Mullaney v. Wilbur, 421 U.S. at 691, 95 S.Ct. at 1886 (footnote omitted). Moreover, and aside from the holding of the Ohio court on direct appeal, it appears clear to us that a person acting under an irresistible impulse could well be acting “knowingly” and with “purpose.”

Howze also contends that his defense of insanity negated the “voluntary act” requirement for criminal liability found in Ohio Rev.Code Ann. § 2901.21(A). Section 2901.21(A) states in part that a person is not guilty of an offense unless his liability is based on conduct which is voluntary. While “voluntary act” is not defined, section 2901.21(C) defines involuntary acts as “[r]eflexes, convulsions, body movements during unconsciousness or sleep, and body movements that are not otherwise a product of the actor’s volition.” This court has recently held that, under Ohio case law, there is no support for the claim that self-defense negates the “voluntary act” requirement of section 2901.21. Thomas v. Am, 704 F.2d 865 (6th Cir.1983). We similarly find no authoritative support for Howze’s contention that his irresistible impulse claim negated the “voluntary act” requirement.

We therefore conclude that requiring Howze to prove that he acted under an irresistible impulse did not require him to disprove an element of the crime.

Accordingly, the decision denying Howze’s petition for a writ of habeas corpus is Affirmed.

1 . These charges grew out of a single incident involving the robbery of a grocery store and two persons there.

2 . The rule in Ohio is that the precedent in each case is to be found in the syllabus rather than in the text of the opinion. Cassidy v. Glossip, 12 Ohio St.2d 17, 231 N.E.2d 64 (1967).