Johnny Ray Bagby v. Dewey Sowders, Warden, Northpoint Training Center ( 1990 )

WELLFORD, Circuit Judge,

concurring:

Judge Norris has set out the procedural background of this case presented to us on appeal from the district court’s denial of Bagby’s petition for a writ of habeas corpus. We are primarily concerned with the trial judge’s refusal to give a requested instruction on the lesser included offense, sexual abuse in the first degree, in addition to the rape instruction in this case. The jury found Bagby guilty of rape as charged.

The district judge, an experienced Kentucky jurist who served many years as a state trial judge, found the controverted instructions “correct as a matter of state law.” He cited Pilon v. Bordenkircher, 593 F.2d 264 (6th Cir.), vacated and remanded on other grounds, 444 U.S. 1, 100 S.Ct. 7, 62 L.Ed.2d 1 (1979), as holding that “failure to give a requested lesser-in eluded offense instruction ... clearly does not rise to the level of constitutional error when the failure was correct as a matter of state law.” 593 F.2d at 267. He noted also that “the highest court of Kentucky expressly held that the state trial court did not err in refusing to give the requested lesser included offense instruction.” I do not find any error in this conclusion.

Shortly after this court decided Pilón, however, the Supreme Court invalidated on due process grounds an Alabama law which forbade the jury to consider a verdict of guilt of a lesser included offense in a capital case when the evidence would have supported such a verdict. Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). See also Hopper v. Evans, 456 U.S. 605, 611, 102 S.Ct. 2049, 2052, 72 L.Ed.2d 367 (1982) (holding that Beck requires that a lesser included offense instruction be given when the evidence warrants such an instruction as a matter of due process in a capital case).

Beck was concerned with imposition of the death sentence and a statutory prohibition which precluded “giving the jury an option of convicting the defendant [charged with capital murder] of a lesser included offense.” 447 U.S. at 628, 100 S.Ct. at 2385. The Supreme Court noted that the challenged Alabama statute involving imposition of a death penalty, was “unique in American criminal law.” Id. at 635, 100 S.Ct. at 2388. It observed further that state courts which addressed the issue “have unanimously held that a defendant is entitled to a lesser included offense instruction where the evidence warrants it.” Id. at 636, 100 S.Ct. at 2389.¹ This was a settled principle of common law not of constitutional significance. The Court concluded in Beck that despite the fact that it had “never held that a defendant is entitled to a lesser included offense instruction as a matter of due process, ... [t]hat safeguard would seem to be especially important in a case such as this ... in which the defendant’s life is at stake.” Id. at 637, 100 S.Ct. at 2389.

The holding in Beck was that the Alabama statute was unconstitutional because it had essentially the same flaws as the North Carolina death penalty statute struck down in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). As observed before, Chief Justice Burger described Beck as holding “that the sentence of death could not be imposed after a jury verdict of guilt of a capital offense, when the jury was not permitted to consider a verdict of guilt of a lesser included noncapital offense, provided that the evidence would have supported such a verdict.” Hopper v. Evans, 456 U.S. 605, 609, 102 S.Ct. 2049, 2051, 72 L.Ed.2d 367 (1982) (emphasis added). “Our opinion in Beck stressed that the jury was faced with a situation in which its choices were only to convict the defendant and sentence him to death or find him not guilty.” Id. at 609, 102 S.Ct. at 2051 (emphasis added).

I am not persuaded that Beck and Hopper, considered in context, may properly be read to hold that in a noncapital case as a matter of constitutional due process requirement, a lesser included offense instruction must be given by a state court.

Since I find no constitutional mandate for including the lesser included offense charge, even if found warranted by the evidence, I would affirm the decision of the district court. I therefore concur in Part III of Judge Norris’ opinion.

Even if I were persuaded that Beck and Hopper, and some decisions of this court,² indicated constitutional due process concerns in this kind of case, I would affirm the decision for the reason that the evidence in this case does not mandate the charge.

I concur also in parts IV and V of the opinion of Judge Norris, and agree that other asserted errors do not mandate a setting aside of Bagby’s conviction.

1 . Martin v. Commonwealth, 571 S.W.2d 613 (Ky.1978), was cited as supporting this proposition. Alabama was noted as following this general rule in noncapital cases "under appropriate circumstances.” 447 U.S. at 637 n. 12, 100 S.Ct. at 2389 n. 12.

2 . To the extent that the dissenters rely on Prather v. Rees, 822 F.2d 1418 (6th Cir.1987), it should be noted that in that case, "[b]oth parties agree that the refusal to give a lesser included offense instruction is a constitutional violation only if the petitioner were entitled to the instruction as a matter of state law.” It is evident that the prosecution in that case for some reason conceded the issue now under consideration; perhaps because it was clear in any event that Prather was not entitled to the lesser included offense instruction under state (and federal) law. I would reaffirm, then, our prior decision in Pilón, supra.