Ronald Francis Smart v. William D. Leeke, Commissioner, South Carolina Department of Corrections Attorney General of South Carolina

PHILLIPS, Circuit Judge,

dissenting:

I fully agree with the central point of Judge Murnaghan’s powerful and comprehensive dissenting opinion and with the result he would reach. I write separately only because of reservations about some of its peripheral observations and their possible implications for future applications in this important and difficult area. In particular, I have doubts about its “no-crime”/“excused-crime” distinction as a basis for deciding whether burdens of persuasion may properly be placed on defendants. Maj. op. at 1568 & n. 22. Attempting such a distinction seems of doubtful utility to the overall analysis, but were I to attempt the distinction that I assume is intended, I would describe it as that between “no crime because criminal conduct not proven” and “no crime because conduct otherwise criminal excused or justified.” See Patterson v. New York, 432 U.S. 197, 206, 97 S.Ct. 2319, 2325, 53 L.Ed.2d 281 (1977). Furthermore, I have reservations about portions of the extended discussion, at 1566, n. 1, of the interrelationship of burdens of proof, presumptions, and jury instructions in cases of this type. Cf. Davis v. Allsbrooks, 778 F.2d 168, 177-83 (4th Cir.1985) (Phillips, J., concurring specially) (analyzing comparable proof/presumption/jury-instruction scheme under North Carolina homicide law).

These points of doubt are, however, peripheral to the central point of Judge Mur-naghan’s dissent and do not prevent my complete agreement with it. In order to emphasize that, I summarize here the core of the agreement.

As South Carolina has defined the crime here charged, the defense of “self-defense” to it, and the interrelation of the two, the crime includes an element, “malice aforethought,” as to which “self-defense” is simply a factual negation rather than a true “affirmative defense” which excuses or justifies by “confession and avoidance.”

Under controlling Supreme Court precedents, the technical distinction between these two types of “defenses” to criminal charges determines whether the burden of persuasion as to a particular “defense” may constitutionally be placed upon a defendant. The question whether it is the one or the other type is determined by parsing state law to identify the elements of the crime and the nature of the defense and asking the question whether the “defense” merely negates one of those elements, hence the conduct defined as criminal, or instead legally excuses or justifies that conduct (wholly or partially) for reasons independent of the elements making up the conduct. If by this analysis a “defense” is of the latter type, it is an “affirmative defense” and the burden of persuasion to establish it may constitutionally be placed upon a defendant who properly asserts it. Martin v. Ohio, 480 U.S. 228, 233, 107 S.Ct. 1098, 1102, 94 L.Ed.2d 267 (1987) (“self-defense” justifies rather than negates conduct otherwise “aggravated murder” as defined by Ohio); Patterson v. New York, 432 U.S. at 206-07, 97 S.Ct. at 2325 (“extreme emotional disturbance” partially excuses rather than negates conduct otherwise “murder” as defined by New York); cf Leland v. Oregon, 343 U.S. 790, 799-800, 72 S.Ct. 1002, 1008, 96 L.Ed. 1302 (1952) (“insanity” negates no element of murder as defined by Oregon; burden to prove it may therefore be placed on defendant). If by this analysis, however, the “defense” merely negates factually an element of the crime, it is unavoidably not an “affirmative defense,” and the burden of persuasion to establish it may not constitutionally be placed upon a defendant. Mullaney v. Wilbur, 421 U.S. 684, 697-99, 95 S.Ct. 1881, 1888-90, 44 L.Ed.2d 508 (1975) (“heat of passion on sudden provocation” merely negates factually “malice afore-thought” element of murder as defined by Maine); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970).

As Judge Murnaghan’s opinion conclusively demonstrates, as South Carolina defines “murder,” “self-defense” under that state’s law falls in the Mullaney factually negating category rather than the Martin, Patterson, Leland “affirmative defense” category of “defenses,” so that the burden of persuasion to establish that “defense” could not constitutionally be placed upon the petitioner in this case.

Chief Judge ERVIN has asked to be shown as joining in this dissent.