Appeal From the United States District Court for the District of New Jersey (Civil No. 2009-72).
Aldisert, Staley and Rosenn, Circuit Judges.
The issue is whether appellant is entitled to habeas corpus relief from his 1971 New Jersey conviction for second degree murder.
Having exhausted his state remedies,*fn1 appellant filed a pro se petition with the district court for a writ of habeas corpus, contending, inter alia, that he was denied due process and equal protection "by the multitudinous use of 'presumptions' and 'presumptive-type' phrases during the trial court's charge to the jury; thereby endangering and depriving the petitioner of his right to be proven guilty beyond a reasonable doubt on all elements...." See generally In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970). The district court dismissed the petition. Civ. No. 2009-72 (D. N.J., Feb. 8, 1974). By judgment order, we affirmed the judgment of the district court. 505 F.2d 731 (3d Cir., Oct. 30, 1974). The Supreme Court vacated and remanded for further consideration in light of Mullaney v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881 (1975). Once again, we affirm.
While the facts were disputed at trial, the following scenario suffices for our purposes. The homicide occurred about 3:00 a.m. on June 5, 1970, in a Bellmawr, New Jersey tavern. Appellant testified that he had spent much of the day before, as well as the fatal morning, bar hopping. Shortly before 3 a.m., appellant became involved in an argument, apparently over a woman; he left the tavern in a huff, returned with a shotgun, made certain threats and brandished a weapon. Thomas Lyons, not the man with whom appellant had quarrelled, approached appellant with arms upraised saying "peace, peace," in an effort to calm him. Appellant pushed Lyons in the chest with the shotgun, which discharged fatally wounding Lyons. Appellant testified at trial that he recalled nothing of his activities during the early morning hours immediately preceding the shooting, that he did not recall going to the Bellmawr tavern, that he had been a frend of Lyons', and that he had not intended to harm him.
In Mullaney, supra, the trial court had instructed that "if the prosecution established that the homicide was both intentional and unlawful, malice aforethought was to be conclusively implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation." 421 U.S. at 686. The Court framed the issue thusly:
The Maine law of homicide, as it bears on this case, can be stated succinctly: Absent justification or excuse, all intentional or criminally reckless killings are felonious homicides. Felonious homicide is punished as murder - i.e., by life imprisonment - unless the defendant proves by a fair preponderance of the evidence that it was committed in the heat of passion on sudden provocation, in which case it is punished as manslaughter - i.e., by a fine not to exceed $1,000 or by imprisonment not to exceed 20 years. The issue is whether the Maine rule requiring the defendant to prove that he acted in the heat of passion on sudden provocation accords with due process.
Ibid. at 691-92. The Court concluded that the state could not, without offending due process, affirmatively shift the burden of proof to the defendant. Ibid. at 701.
Appellant now contends that he falls squarely within the purview of the Mullaney rule.*fn2 Specifically, he points to the following portion of the court's charge to the jury:
Now, Ladies and Gentlemen, the indictment alleges murder of Thomas P. Lyons. So therefore, what is murder? Murder is the unlawful killing of another human being with malice and without reasonable provocation or justifiable cause or excuse. And I'd like to go over that with you.
Murder is the unlawful killing of another. Unlawful killing means that the killing did not occur at the command of or with the permission of the law.
The unlawful killing of another human with malice. What is malice? Well, malice as I have used the word means that there must be a concurrence of an evil meaning mind with an evil doing hand. Malice means either one or both of the following states of mind preceding or coexisting with the act or omission by which death is caused, and it may exist even where that act is unpremeditated: A, an intention to cause the death or grievous bodily harm to any person whether such person is the person actually killed or not; or B, knowledge that the act which causes death will probably cause the death of or grievous bodily harm to some person, whether such person is the person ...