Respondents Brief — Hankerson v. North Carolina

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No. 75-6568

JOHNNIE B. HANKERSON,

Petitioner,

Vv.

THE STATE OF NORTH CAROLINA,

Respondent

BRIEF FOR RESPONDENT

RUFUS L. EDMISTEN

Attorney General

CHARLES M. HENSEY

Assistant Attorney General

Post Office Box 25201

Raleigh, North Carolina 27611

Telephone (919) 829-3316

ATTORNEYS FOR RESPONDENT

PROOF TO BEF PLACED ON

TABLE OF CONTENTS DEFENDANTS IN HOMICIDE

PROSECUTIONS WHO ASSERT

TABLE OF AUTHORITIES... cc cece ew eee iii AFFIRMATIVE DEFENSES OF HEAT

OF PASSION AND SELF DEFENSE

CONSTITUTIONAL PROVISION INVOLVED. .... . l FULLY COMPORTED WITH THE DUE

: PROCESS STANDARDS ANNOUNCED

QUESTION PRESENTED .. +++ + ee eee vee l IN MULLANEY V. WILBUR AND ITS

SUPREME COURT ERRED IN HOLDING

STATEMENT OF THE CASE ...+.-++ eee eee 2 : THIS LAW PROSPECTIVELY INVALID., . .15

HOW THE CONSTITUTIONAL QUESTIONS WERE CONCLUSION ,..... a oa ere

PRESENTED AND DECIDED BELOW ........ 3

CERTIFICATE OF SERVICE .........4e6-. 27

SUMMARY OF ARGUMENTS.....+++s+e+2++ 4

ARGUMENT

I. THE SUPREME COURT OF NORTH

CAROLINA WAS CORRECT _ IN

DECLINING TO APPLY MULLANEY V.

WILBUR RETROACTIVELY BECAUSE

THE INSTRUCTIONS GIVEN BY THE

TRIAL COURT DID NOT

SUBSTANTIALLY AFFECT THE

RELIABILITY OF THE FACT-FINDI"'G

PROCESS. .....- tee eee 2% 5

(A) IN GENERAL. ......2... 5

(B) THE PURPOSE FACTOR... . 8

(D) THE IMPACT FACTOR ... .ll

Il. THE SUPREME COURT OF NORTH

CAROLINA WAS CORRECT _IN

DENYING LIMITED RETROACTIVITY

TO MULLANEY.. . ». + «+ ee eee e 12

lil. THE LAW OF NORTH CAROLINA x

CONCERNING THE BURDEN OF il

TABLE OF AUTHORITIES

Cases

Federal

Adams vy. Illinois,

405 U.S. 278 (1972)

Arsenault v. Massachusetts,

393 U.S. 5 (1908)

Bloom vy. Illinois,

391 U.S. 194 (1968)

Bowe v. City of Columbia,

378 U.S. 347 (1964)

California v. Green,

399 US.

Cupp v. Naughten,

414 US. 141 (1973)

Daniel v. Louisiana,

420 U.S. 31 (1975)

Davis’ v. United States,

160 U.S. 469 (1895)

DeGrott v. United States,

149, (1969) ,

78 F2d, 244, (9th Cir.

Desist v. United States,

394 U.S. 244, (1969)

De Stefano v. Woods,

392 U.S. 631 (1968)

Duncan v. Louisiana,

1935)

e .

391 U.S. 145 (1968), ...

10,

oo 0 06, 7

cvoee 6

a ee ae

oe oe 16

oe ee 25

oe ee 2

cece 6

18, 19, 23

reer B

. 7, 14, 15

ooo o 6 7

ooee «7

Fuller v. Alaska,

393 U.S. 80 (1968)

Griffin v. California,

380 U.S. 609 (1965)

In Re Winship,

397 U.S. 358 (1970)

Ivan V. v. City of New York,

407 U.S. 203 (1972)

Johnson v. New Jersey,

384 U.S. 719 (1966)

Kaiser v. New York,

394 U.S. 280 (1969)

Katz v. United States,

389 U.S. 347 (1957)

Leland v. Oregon,

343 U.S. 790 (1952)

Lemon v. Kurtzman,

411 U.S. 192 (1973)

Linkletter v. Walker,

381 U.S. 618 (1965)

McConnell v. Rhay,

393 U.S. 2 (1968)

Matheson vy. United States,

227 U.S. 540 (1913)

Michigan v. Payne,

412 U.S. 47 (1973)

Morrison vy. California,

291 U.S. 82 (1934)

Mullaney v. Wilbur,

421 U.S. 684 (1975)

. . . . 14

ocoee th %

. . . . o . o . 15

. . . . a . . . 10

i 3, & S, 9 80, a8

12, 13, 16, 17, 18,

20, 21, 25

Stovall v. Denno,

388 U.S. 293 (1967) . « «© © © © ow

Tehan v. Shott,

382 U.S. 406 (1966)... +» «© « »

Williams v. United States,

401 U.S. 646 (1971) « «© we ewe ew eo eo

Winters v. New York,

333 U.S. 507 (1948) . .« «6 «© © © w

State

Commonwealth v. Hawkins,

3 Gray (69 Mass.) 463 (1855) . . « +

Commonwealth v. Noble,

371 Pa. 138, 88 A. 2d 762 (1952). .

Commonwealth v. York,

9 Met (SO Mass) 93 (1845) . 2. 2 6

Evans v. State,

349 A. 2d 300 (Md. App. 1975)...

Everett v. State,

88 Ariz. 293, 356 P. 2d 394 (1960) ,

Shepherd v. Commonwealth,

306 Ky. 121, 206 S.W. 2d 485 (1947)

Spence v. Territory,

13 Ariz. 20, 108 P. 227 (1910) ...,

State v. Barrett,

132 N.C. 1005, 43 S.E. 832 (1903). .

State v. Carland,

oe tea Gee Geen we eee ee

State v. Cook,

263 N.C. 730, 140 S.E. 2d 305(1965)

State

v. Davis,

342 Mo. 594, 116 S.W. 2d 110 (1938) -

v. Dill,

282 S.W. 2d 456 (Mo. 1955) + + «+ » © wo

v. Ellick,

60 N.C. 450 (1864) + + © © © © © we ww

v. Freeman,

275 N.C. 662, 170 S.E. 2d 461 (1969) -

vy. Hankerson,

288 N.C. 632, 220 S.E. 2d 575 (1975) » 9,

15,

v. Harrison,

81 N.M. 623, 471 P. 2d 193 (Ct. App. 1970)

v. Hazlet,

16 N.D. 426, 113 N.W. 374 (1907) ...-s

vy. Johnson,

| ae). | ee

v. Minton,

234 N.C. 716, 68 S.E. 2d 844, 31

A.L.R. 2d 682 (1952). . 2 6 ww wo wo

v. Powers,

98 Ohio App. 365, 129 N.E. 2d 653,

appeal dismissed, 162 Ohio St. 431,

123 N.E. 2d 406 (1954) 2.» © ww wo

vy. Warren,

242 N.C. 581, 189 S.E. 2d 109 (1955), . ,

v. Willis,

i? tee Ge GOP tk ee te ee Oe 8

» + 12

» + 23

» + 19

18, 20

10, 11

16, 17

» 23

. 219

~ 212

;

» =

North Carolina Constitution

N.C. Constitution,

Art. I, Sec. 24. + * 2. © © © * * *& ©

Other Authorities

Annotation,

43 A.L.R. 3d 221 (1972). «© «© » © »

W. Blackstone Commentaries *20]1 .. ++ »

H KALVEN & H. ZEISEL,

THE AMERICAN JURY, 182-90 (1966) .

Assault & Battery,

6A C.J.S. Sec.115 (1975) 5s 6s + ££ ee

11 Harv. L. Rev. 429 (1976). «ws © wo

The Judge and the Jury,

52 JUDICATURE 328 (1969)

19 NY. L.F. 289 (1973) . «ww we ows

N.C. Gen. Stat. 7A-302) . » «we we we oo

54 NC. L. Rev. 1020 (1976) . . «+ we ee»

N.C. PATTERN INSTRUCTIONS CRIM.

306.10 (Mar. 1975) eae ae oe oe oe ee

Stansbury's North Carolina Evidence,

214, n. 48 (Brandis Rev. 1973), . «. +

27 Syracuse L. Rev. 834 (1976), . . ww os

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No. 75-6568

JOHNNIE B. HANKERSON,

Petitioner,

Vv.

THE STATE OF NORTH CAROLINA,

Respondent

BRIEF FOR RESPONDENT

CONSTITUTIONAL PROVISION. INVOLVED

Constitution of the United States, Amendment XIV:

"All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the state wherein they reside. No state

shall make or enforce any law which shall abridge the privileges

or immunities of the United States; nor shall any state deprive

any person of life, liberty, or property, without due process

of law; nor deny to any person within its jurisdiction the equal

protection of the laws."

QUESTION PRESENTED

Did the Supreme Court of North Carolina deny the

Petitioner due process «f law when it declined to apply

Mullaney v. Wilbur, 421 U.S. 684 (1975) to Petitioner's trial

because it took place prior to June 9, 1975?

STATEMENT OF THE CASE

Petitioner shot Gregory Ashe in the heart on the evening

of September 29, 1974, around 11:00 P.M. He has never denied

the shooting or that there was sufficient evidence developed

by the prosecution to establish this fact.

From the beginning, Petitioner has maintained this

homicide was not unlawful but, rather, it was justified and

excusable because it was done in self defense.

Upon an information, agreed to by Petitioner and

counsel, charging him with second degree murder, Petitioner

was duly prosecuted on this charge at the November 18, 1974,

Session of the Nash County, North Carolina, Superior Court

by the District Attorney in a trial to a jury of twelve. Petitioner

put on a vigorous defense through cross-examination of the

prosecution's witnesses, his own testimony and the testimony

of others.

At the end of all the evidence, the trial judge gave the

jury elaborate instructions on all elements of the crime and

the manner in which the burden of proof was to be allocated.

These instructions were in full accord with the North Carolina

law as it existed at the time of the trial. The trial judge told

the jury it could return one of the three possible verdicts:

Guilty of second degree murder; Guilty of voluntary

manslaughter or Not Guilty.

The jury rendered its unanimous verdict of guilty of

second degree murder in open court.

There is no contention by Petitioner here that the

evidence was insufficient to support the verdict.

Following appropriately determined North Carolina law,

Petitioner was sentenced to not more than 25 nor less than

20 years imprisonment.

Petitioner, upon review by the North Carolina Court of

Appeals, claimed the evidence, as a matter of state law, was

insufficient to take the case to the jury. He also asserted there

were certain errors in the admission of evidence and in the

trial judge's charge on the elements of self defense.

The North Carolina Court of Appeals, in a three to two

decision, rejected Petitioner's contentions and affirmed his

conviction and sentence. Because there was a dissent in the

Court of Appeals, Petitioner had an appeal as a matter of right

to the North Carolina Supreme Court.

Petitioner, upon review by the Supreme Court of North

Carolina, in addition to the matters asserted in the Court of

Appeals, claimed that the trial judge erroneously allocated the

burden of persuasion by requiring him to "satisfy" the jury

on the issue of self-defense. The Supreme Court rejected his

contentions and affirmed his conviction and sentence.

On October 4, 1976, this Court granted Petitioner's

petition for a writ of certiorari to the North Carolina Supreme

Court to review that decision as it related to the question of

the allocation of the burden of proof.

Further detailed statements of the evidence can be found

in Petitioner's Brief and the opinion of the North Carolina

Supreme Court. For the sake of brevity. they will not be

repeated.

HOW THE CONSTITUTIONAL QUESTIONS WERE

PRESENTED AND DECIDED BELOW

Petitioner raised the constitutional issue in a motion filed

with the North Carolina Supreme Court on August 19, 1975,

to amend the record to note additional Exceptions and

Assignments of Error to the trial judge's instructions to the

jury which would present for review additional questions

suggested in the case of Mullaney v. Wilbur, 421 U.S. 684

(1975). The precise question, as stated by Petitioner in his

motion below, was:

"That Mullaney v. Wilbur makes unconstitutional

the North Carolina rule that the Defendant, to

show a justifiable homicide, has the burden of

proof to the satisfaction of the jury to establish

the defense of self-defense."

SUMMARY OF ARGUMENTS

I and Il

THE SUPREME COURT OF NORTH

CAROLINA WAS CORRECT IN DECLINING

TO APPLY MULLANEY V._ WILBUR

RETROACTIVELY BECAUSE THE

INSTRUCTIONS GIVEN BY THE TRIAL

COURT DID NOT SUBSTANTIALLY AFFECT

THE RELIABILITY OF THE FACT-FINDING

PROCESS.

This case does not require automatic retroactivity

because jury instructions relating to the allocation of the

burden of proof of affirmative defenses do not substantially

impair the truth-finding aspect of a criminal trial so as to raise

serious questions about the accuracy of guilty verdicts in past

trials. Rather, the misallocation of this burden raises only a

probability of an incorrect verdict; accordingly, the extent of

the reliance on the former rules and the effect on the

administration of justice can also be considered. When these

other factors are considered, as was done by the North Carolina

Supreme Court, prospective application of the new doctrine

is the correct result. Limited retroactivity to the case because

it was still on direct appellate review is not required.

Ill

THE LAW OF NORTH CAROLINA COMPORTS

WITH THE STANDARDS ANNOUNCED IN

MULLANEY V. WILBUR AND THE SUPREME

COURT OF NORTH CAROLINA ERRED IN

APPLYING THESE STANDARDS

PROSPECTIVELY.

The North Carolina law required a defendant in a

homicide prosecution to prove to the "satisfaction" of the jury

his affirmative defense of either heat of passion or self defense.

This standard is not as high as the “preponderence of the

evidence" standard found to be impermissible in Mullaney y.

Wilbur. In actuality, all the North Carolina standard requires

is that the defendant raise a reasonable doubt in the minds

of the jury. The North Carolina standard provides a desirable

and effective means for the trial judge to bring forcefully the

defendant's evidence to the jury so that it will carefully

consider them

ARGUMENT

THE SUPREME COURT OF NORTH

CAROLINA WAS CORRECT IN DECLINING

TO APPLY MULLANEY V._ WILBUR

RETROACTIVELY BECAUSE THE

INSTRUCTIONS GIVEN BY THE TRIAL

COURT DID NOT SUBSTANTIALLY AFFECT

THE RELIABILITY OF THE FACT-FINDING

PROCESS.

The petitioner in his brief argues, in substance, that the

North Carolina Supreme Court erred by refusing to give

automatic retroactive effect to the new constitutional due

process doctrine announced in Mullaney v. Wilbur, 421 US.

684 (1975), which prohibits a state from requiring a defendant

in a criminal prosecution to prove by a preponderance of the

evidence certain affirmative defenses such as heat of passion

on sudden provacation or self-defense. He argues this new

doctrine, because it substantially impairs the reliability of the

fact-finding process, falls within the purview of those cases from

this Court which require automatic retroactivity. This being so,

according to his argument, the balancing test used in other cases

decided by this Court and applied by the North Carolina

Supreme Court should not have been considered controlling

and it was, therefore, error for the North Carolina Court to

have considered the reliance on past decisions and the impact

retroactivity would have on the administration of justice in

North Carolina and other states with similar rules. The State

of North Carolina disagrees with this argument.

IN GENERAL

There appear to be two lines of analysis used by this

Court in reaching a decision as to whether a new constitutional

doctrine will be fully retroactive or merely prospective. One

line states that new rules intended primarily to insure an

accurate determination of facts are automatically to be

enforced retroactively. Conversely, if the major purpose ofthe

new doctrine is perceived not to be to enhance the judicial

truth-finding function, retroactivity is typically denied.

In the other line of analysis, the purpose of the new

rule is not considered dispositive. Rather, a balancing test is

used to examine the probability that past trials have resulted

in inaccurate guilty verdicts.’ Using this approach "(t)he

question whether a constitutional rule of criminal procedure

does or does not enhance the reliability of the fact finding

process at trial is necessarily a matter of degree." The cases

reason that the old rule may not have been the cause of a

guilty verdict and they reject "the premise that every criminal

trial, or any particular trial, was necessarily unfair because it

was not conducted in »ccordance with what we determined

to be the requirements of (the constitution)."> In this line of

cases the question of whether the old rule infected th

fact-finding process is viewed as a "question of probabilities"

and thereby avoids the "automatically retroactive” line of

analysis, Once this analysis is chosen a "balancing approach,”

is used,/weighing three factors: "(a) the purpose to be served

by the new standards, (b) the extent of the reliance by law

enforcement authorities on the old standards, and (c) the effect

on the administration of justice of a retroactive application of

the new standards "° In this line of cases, “the purpose to

| Iwan V. v. City of New York, 407 U.S. 203 (1972) (per

curiam), Williams v. United States, 401 U.S. 646 (1971),

Arsenault v. Massachusetts, 393 US. 5 (1968) (per

curiam)

: eg., Fuller v. Alaska, 393 U.S 80 (1968) (per curiam);

Linkletter v. Walker, 381 U.S. 618 (1965).

3 e.g., Daniel v. Louisiana, 420 US. 31 (1975) (per

curiam); Adams v_ Illinois, 405 U.S. 278 (1972); De

Stefano v. Woods, 392 U.S. 631 (1968) (per curiam)

Johnson v. New Jersey, 384 U.S. 719, 728-29(1966)

Daniel v Louisiana, supra at 32.

Johnson v. New Jersey, supra supra at page 729

Lemon v. Kurtzman, 411 U.S. 192, 199 (1973)

Stovall v. Denno, 388 U.S. 293, 297 (1967)

onnMNS

be served by the new constitutional rule” will not automatically

decide refroactivity, but it is merely "(f)oremost among these

factors."

It is not always clear which line of analysis will be chosen

in a given case. For rules intended primarily and perhaps

solely to insure a more just determination of facts, this Court

has sometimes invoked the "matter of degree" formula rather

than the ostensibly more appropriate "automatically

retroactive" analysis. Such was the result in De Stefano v.

Woods, supra in which it was held the Duncan v. Louisiana,

391 US. 145 (1968) rule, which incorporated the right to a

jury trial for serious criminal offense, non-retroactive. De

Srefano also made Bloom vy. Illinois, 391 «.S. 194 (1968),

which required a right to jury trial for serious criminal

contempts, valid prospectively only. The rationale for holding

a new rule which changes the trier of fact retroactive must

be that a different fact-finder might arrive at a more reliable

result. In denying retroactivity, it was assumed that many

trials by judges were as fair as if tried by juries and the

conclusion was that since the results might have been identical,

an analysis of the other factors affecting retroactivity was in

order. i the other hand, it appears that the "matter of

degree" formula has been ignored in other cases where the trier

of fact might or might not have reached a different result had

the new standard been in force In Jvan V. v City of New

York, surpa, for example it was noted that an obvious

fact-finding purpose was served by substituting the reasonable

10 Desist v. United States, 394 US. 244, 249 (1969)

Cases that seem to belong in one category are often

treated oppositely. Thus McConnell v. Rhay, 393 U.S.

2 (1968) (per curiam), using the absolutist approach, held

the right to counsel at the imposition of a deffered

sentence to be retroactive while the later case of Adams

v. Illinois, supra, using the balancing approach, held the

requirement of counsel at a preliminary hearing to be

non-retroactive

+ 391 US. at 158.

392 US. at 633-34

doubt standard for the preponderance of the evidence test iQ

juvenile proceedings for offenses equivalant to a crime.

Consequently, /van V. disposed of the matter with a recital

of the “automatically retroactive” line of cases.

In the context of the above, therefore, the State of North

Carolina argues that the "“automaticially retroactive" line of

cases do not apply and that the “matter of degree" or

"balancing" line of cases applies because, as noted hereafter,

the new doctrine as to burden of proof for affirmative defenses

may not produce a dramatic improvement in the fact-finding

process.

In this context, the State will now turn to an analysis

of the three factors of purpose, reliance and impact.

THE PURPOSE FACTOR

As both this Court and the North Carolina Supreme

Court have recognized, the purpose of a rule which is deemed

to improve the reliability of the fact-finding process will be

given the greatest weight in the retroactivity consideration.

When it is concluded a new doctrine will improve the fact-

finding process, it will often be given retroactive effect because

it may disclose that an otherwise innocent person was convicted

in the past because the fact-finding process was unreliable.

Prejudice by the finder of fact is less inherent under the

North Carolina rules than in Jvan V. or Winship. Presumably

all of the juvenile defendants made eligibile for retrial in /van

V. were again tried before judges. All contested homicide trials

13° Ivan V. held In re Winship, 397 U.S. 358 (1970)

retroactive. In these cases, guilt as to all elements of the

offense was to be arrived at by the preponderance of

the evidence test. The reasonable doubt standard was

never applied and a possible harmless error analysis could

not be considered

In this area, see the comments of Ostrager, Retroactivity

and Prospectivity of Supreme Court Constitutional

Interpretations, 19 N.Y. LF. 289 (1973) and a comment

in 54 N.C. L. Rev. 1020 (1976)

in North Carolina are before juries. !5 The complicated

instructions required by North Carolina law might well, as

Justice Lake suggested in his Gyrcurring opinion in the case,

have resulted in harmless error.*” Unable to follow the shifting

burden in the homicide instructions, juries in the past might

well have heeded the apparently overriding instruction fg

convict only if convinced of guilt beyond a reasonable doubt.

Unwilling to convict without proof beyond a reasonable doubt,

former Juri¢s might have refused to do so thus nullifying the

instruction. 8 An exhaustive study has shown that juries often

disregard the harshness of rules of law especially in judging

self-defense claims.*” The probability of misunderstanding, of

treating to its "satisfaction" to mean "to raise a reasonable

doubt" or of nullification of the former instruction by a jury

seems to be much higher than that of a judge confusing the

standards in pre- Winship cases. Thus, there seems to be a lower

probability that a defendant was wrongfully convicted under

the North Carolina instructions than in the Winship situation

or under the instructions given by the Maine Court in Mullaney.

In summary, as shown above the North Carolina jury

instructions do not demand a "per se" or “automatically

retroactive” result because of the purpose factor.

IS NC. Constitution, Art. I., Sec. 24 "Right of jury trial

in criminal cases. No person shall be convicted of any

crime but by the unaminous verdict of a jury in open

court."

16 288 N.C. at 659-60, 220 S.E. 2d at 594, A. 40. This

analysis is more fully developed in Argument III

following.

See the study on jury perceptions of trial judge's

instructions in Gordon & . merlin, Forensic Psychology;

The Judge and the Jury, 52 JUDICATURE 328, (1969)

18 H. KALVEN & H. ZEISEL, THE AMERICAN JURY,

182-90 (1966) (juries have a higher standard of "beyond

a reasonable doubt" than do judges and are less likely

to convict.

19 Ibid.

THE RELIANCE FACTOR

Until the decision in Mullaney, there was absolutely no

hint from this Court in its prior decisions that the states were

not free to place some burden of proof as to affirmative defense

on a defendant in a criminal trial. The early case of Davis v.

United States, 160 U.S. 469 (1895) was limited to questions

of insanity in criminal prosecutions in federal Courts. The later

case of Leland v. Oregon, 343 U.S. 790 (1952), held that an

Oregon rule placing the burden of proof on the defendant to

prove insanity beyond a reasonable doubt comported with due

process and again explicitedly limited Davis to the federal

courts. And the intervening case of Morrison v. California, 291

U.S. 82 (1934), held that the burden of persuasion on an issue

in dispute may be shifted to the defendant when the

prosecution bas made out a case that “has at least a sinister

significance"~“ so as to justify forcing the defendant to negate

or establish an excuse or explanation for what has been proved.

In Re Winship, did not purport to deal with affirmative

defenses: the due process violation there was the lack of any

reasonable doubt standard in juvenile trials in New York. Until

Mullaney, therefore, the states were free to allocate the burden

of proof in criminal prosecutions in any manner they deemed

wise. In reliance on this fact North Carolina allocated to the

defendant the burden, in homicide prosecutions, of satisfying

the jury as to heat of passion and self defense.

Moreover, as the North Carolina Supreme Court noted

in its opinion, the North Carolina rules have been firmly settled

for well over one hundred yegis and they were firmly rooted

in Common Law procedures.

Ihe State of North Carolina submits that the reliance

factor clearly militates in favor of non-retroactivity.

Accordingly, the North Carolina Supreme Court was entirely

correct in this aspect of its opinion.

20 291 US. at page 90

21 988 N.C. at 654, 220 S.E 2d at 590, A.38.

THE IMPACT FACTOR

The Supreme Court of North Carolina identified, as of

June 30, 1975, 269 inmates in its Department of Corrections

who had been convicted of first degree murder and 728 inmates

who had been convicted of second degree murder. If

Mullaney is held retroactive, potential retrials might be required

in those second degree murder cases where the defendant raised

an affirmatiye defense of either heat of passion or

self-defense.~~ It would not, obviously, apply to those cases

where the defendant entered a guilty plea or relied on any

other defense than heat of passion or self-defense.2* The

Statistics available do not permit identification of the numbers

involved in the suspect category. Retrial of these unknown

numbers would put a considerable burden on the State of North

Carolina.

More significantly, however, would be the impact of a

retroactive application on other states. The North Carolina

Supreme Court, in its opinion, noted that at least fifteen

jurisdictions require the defendant in a homicide prosecution

to carry, fhe burden of persuasion for self-defense or heat of

passion.~~ Two of those fifteen, Ohio and Pennsylvania, and

three others not included in the fifteen, Illinois, Kentucky and

Missouri, put the burden on defendants for one or both issues

22-288 N.C. at 654, 220 S.E. 2d at 591, A. 38.

23 It would seem, in light of the exhaustive analysis of Evans

v. State, 349 A. 2d 300 (Md. App. 1975), that first

degree murder convictions would not be affected by

Mullaney since the elements of premeditation and

deliberation would have been proved beyond a reasonable

doubt and thus render any Mullaney error harmless

beyond a reasonable doubt. 349 A. 2d at 12-20.

North Carolina has never put any burden, other than the

production burden, on the defendant in regard to alibi.

See, e.g. State v. Minton, 234 N.C. 716, 68 S.E. 2d 844,

31 A.L.R. 2d 682°(1952)

25 288 N.C. at 654-55; 220 S.F. 2d at 591, A. 39.

in assault cases. 26 The number of persons who would benefit

from retroactive application of Mullaney in these other states

would thus seem to be higher than in North Carolina, which

has never shifted the burden in assault cases.~’ Futhermore,

if the Mullanev principle is to be extended to other affirmative

defenses, other states, including North Carolina, might face

retrial of large numbers of convicted felons.

The potential impact of a retroactive application of

Mullaney would be great indeed

ARGUMENT

THE SUPREME COURT OF NORTH

CAROLINA WAS CORRECT IN DENYING

LIMITED RETROACTIVITY TO MULLANEY.

The Petitioner argues here that since his case was on

direct appeal as a matter of right on the date that Mullaney

vy. Wilbur was decided the North Carolina Supreme Court should

have given him the benefit of its doctrine and ordered a new

trial. The State disagrees and argues its Supreme Court was

entirely correct in denying limited retroactivity

Initially, it should be noted the case is before this Court,

as it was before the North Carolina Supreme Court, in a

26 Shepherd v Commonwealth, 306, 306 Ky. 121, 206 S.W.

2d 485 (1947); State v. Davis, 342 Mo. 594, 116 S.W

2d 110(1938); State v. Powers, 98 Ohio App. 365, 129

N.E. 2d 653, appeal dismissed, 162 Ohio St. 431, 123

N.E. 2d 406 (1954); Commonwealth v. Noble, 371 Pa.

138, 88 A. 2d 762 (1952). See generally 6A C.J.S.

. Assault & Battery §115 (1975).

27 State v. Warren, 242 N.C. 581, 189 S.E. 2d 109(1955)

28 Several recent commentators have advocated such an

extension. Sec, e.g., 11 Harv L. Rev. 429 (1976) and

27 Syracuse L. Rev. 834 (1976). North Carolina also puts

the burden of proof to the "satisfaction of the jury"

on defendants who assert entrapment, State v. Cook, 263

N.C. 730, 140 S.E. 2d 305 (1965) or mistake of fact

N.C. PATTERN INSTRUCTIONS CRIM. 306 10(Mar.

1975). The numbers in these categories are unknown.

somewhat peculiar procedural posture. The case was tried at

the November 11, 1975, Session of the Nash County, North

Carolina, Superior Court. (A. 1) Judgment was entered by the

trial judge on November 21, 1974. (A. 1) The case was argued

orally in the North Carolina Court of Appeals on May 29, 1975.

(A. 1) At this point in time no one involved in the case could

have known that about two weeks later, on June 9, 1975,

Mullaney v. Wilbur, would be announced establishing a new

constitutional due process standard applicable to the the states

concerning the placement burden of proof as to affirmative

defenses in homicide prosecutions. At the time the case was

tried, appealled, briefed and argued in the first appellate court

level, no error in applying the State allocation of the burden

of proof existed which could have been made the basis of an

exception and assigned as error. So also, there was no federal

constitutional doctrine applicable to the states which would

have required the trial judge to allocate the burden of proof

differently than was actually done in his instructions. Because

of the lack of any overriding federal constitutional standard,

the trial judge correctly applied the longstanding North Carolina

rules and the Petitioner quite properly took no exception

thereto.

The Court of Appeals filed its decision and opinion in

the case July 16, 1975, slightly over a month after the Mullaney

decision was announced on June 9, 1975. The North Carolina

Court of Appeals did not consider the new Mullaney doctrine

in its opinion because no such question was presented to it

by the Petitioner in his brief or in his exceptions’ and

assignments of error set forth in the record before the

Moreover, Petitioner, after the date Mullaney was announced,

never moved before the Court of Appeals for leave to amend

the record to reflect additional exceptions and assignments of

error as to the incorrect allocation of the burden of proof,

and for the opportunity to file additional briefs and oral

argument. Not having the issue before it, the Court of Appeals,

filed its majority opinion along with the dissent by Judge

Arnold on the issue of the sufficiency of the evidence. This

issue was, of course, raised by the Petitioner before that court;

in fact, it was his major contention. The dissent on a question

unrelated to any Mullaney problems was what created the right

of direct appeal to the Supreme Court of North Carolina.

N.C.Gen. Stat. 7A-30(2).

It was only after the Notice of Appeal was filed that

Petitioner, for the first time, on August 19, 1975, moved for

leave to amend the record on appeal to raise Mullaney issues.

(A. 2) The Supreme Court granted this motion on

September 2, 1975, eight days bsfore oral argument on the

case September 10, 1975. (A. 2)

This background, of course, is not determative of the

issue of whether the new doctrine should have been applied

because the case was still on direct appellate review as a matter

of right. The State of North Carolina argues that the later

decisions of this Court in no way require application of new

constitutional doctrines to cases which are still pending on

direct appellate review as a matter of right. Thus in Desist v.

United States, supra, this Court refused to apply the doctrine

announced in Katz v. United States, 389 U.S. 347 (1957), to

petitioner Desist even though his case was still pending on direct

appellate review at the time. Desist gave Katz a completely

prospective operation Rejecting the Petitioner's argument for

limited retroactivity as to him because his case was still pending

on direct appellate review on the date Katz was decided, the

Court noted:

"Petitioners point out that in Linkletter, the only

other case involving the retroactivity of a Fourth

Amendment decision, the Court held Mapp

applicable to every case still pending on direct

review on the date of that decision A similar

approach was adopted in Tehan v. Shott, 382

U.S. 406, with respect to the prospectivity of

Griffin v California, 380 U.S. 609. In Johnson

v. New Jersey, 384 U.S. 719, however, we

abandoned the approach taken in Linkletter and

29 The State has no quarrel with the way the case and issues

were handled in the state appellate process. Manifestly,

Petitioner's counsel probably did not learn of Mullaney

and realize its significance until after the Opinion of the

Court of Appeals was filed. Realizing he had an appeal

as a matter of right, he promptly raised the issue then.

The Supreme Court, anxious to give guidance to trial

judges, seized this case as an appropriate vehicle to do

so.

Tehan and concluded that ‘there are no

jurisdictional or constitutional obstacles’ to the

adoption of a different cut-off point. Id. at 733’. "30

Further in the same opinion, it was noted "(a)ll of the

reasons for making Katz retroactive also undercut any

distinction between final convictions and those still pending

on review.""* and "(n)or can it be sensibly be maintained that

the Court is foreclosed by Linkletter in this case, as it was

not in Johnson, simply ppcause Katz, like Mapp, was a Fourth

Amendment decision."22 To the same effect is Kaiser v. New

York, 394 U.S. 280 (1969). Both of these cases were religg

on by the North Carolina Supreme Court in its opinion.

From these decisions as well as Michigan v. Payne, 412

U.S. 47 (1973), which held it to be error for a state court

to apply a decision of this Court retroactively when later this

ourt determined the decision to be prospective only if seems

clear that even limited retroactivity is not compelled.> These

Same cases would also seem to deny limited retroactive

application of the Mullaney doctrine to the unknown numbers

of other cases which were on direct appeal on June 9, 1975,

in North Carolina.

ARGUMENT

Ill

THE LAW OF NORTH’ CAROLINA

CONCERNING THE BURDEN OF PROOF TO

BE PLACED ON DEFENDANTS IN HOMICIDE

30-394 U.S. at 252.

31 id. at 253.

32 Id. at 253.

33 288 N.C. at 652, 220 SE. 2d at 590, A. 36.

34 Obviously, if Mullaney is held to be retroactive by this

Court, then the Supreme Court of North Carolina would

have been wrong in its prospectively only ruling. In the

decisions to date, however, there is nothing which

requires a holding of limited retroactivity on this case

until a ruling is made deciding the retroactivity or

prospectivity of Mullaney

PROSECUTIONS WHO ASSERT

AFFIRMATIVE DEFENSES OF HEAT OF

PASSION AND SELF DEFENSE FULLY

COMPORTED WITH THE DUE PROCESS

STANDARDS ANNOUNCED IN MULLANEY V.

WILBUR AND ITS SUPREME COURT ERRED

IN HOLDING THIS LAW PROSPECTIVELY

INVALID.

The longstanding rules in North Carolina regarding the

burden of proof imposed on the defendant in affirmative

defenses of heat of passion or self-defense require him to

establish these defenses to the satisfaction of the jury. What

is meant by satisfying the jury has never been clearly defined

although, as developed by the following analysis and recognized

by the Supreme Court of North Carolina in Hankerson, it

has never required proof by a preponderence of the evidence.

The State of North Carolina argues that it merely requires the

defendant to raise a reasonable doubt. If all it requires is that

the defendant raise a reasonable doubt then it would seem to

comport with the due process standards announced in Mullaney

which finds nothing constitutionally impermissible in requiring

a criminal defendant to bear the burden of producing some

evidence sufficient to raise a reasonable doubt.2©

The North Carolina Supreme Court's Construction and

definition of the meaning of the term "satisfaction of the jury"

does not preclude the State of North Carolina from making

this argument.”’ As construed in Hankerson, "(s)atisfying the

jury .. . means a standard no greater and at the same

time one not significantly less than persuasion by a

preponderance of the evidence. Satisfying the jury means that

there must be some evidence offered of all elements of heat

of passion on sudden provocation or of self-defense, as the case

35 288 N.C. at 648, A. 32.

36 421 ‘US. at 703, n. 31

37 Ordinarily, the state court's definition of its law will be

biding, e.g, Winters v. New York, 333 U.S. 507 (1948)

except in extreme circumstances. Bowe v. City of

Columbia, 378 U.S. 347 (1964).

may be, and that this evidence must satisfy or persuade the

jury of the truth of the existence of these provocations - one

which robs ths crime of malice and the other which excuses

it altogether.">® It can be seen that as construed, the concept

requires the defendant to bear the production burden on all

elements of the two affirmative defenses sought to be

established. As construed, it also puts some persuasion burden

on the defendant. It is the extent of the persuasion burden

that is crucial.

The question then becomes did the North Carolina

instructions, by telling the jury that it must be satisfied that

the petitioner acted in the heat of passion on sudden

provocation or in self-defense, impermissibly relieve the

prosecution of its burden of proving malice and unlawfulness

and place this burden of persuasion as to the non existence

of these elements on the Petitioner, To resolve this question,

an examination of what is meant by telling the jury, in

accordance with the long settled North Carolina rule, that it

must be satisfied is required

This language as used in the instructions given here does

not mean the jury must be persuaded by a preponderance of

the evidence that malice does not exist, that the heat of passion

on sudden provocation does exist, or that the elements of

self-defense do exist. The Maine jury instructions found wanting

in Mullaney clearly placed upon the defendant the burden to

show that it is more probable than not, or by a fair

preponderance of the evidence, that the defendant killed in

the heat of a sudden passion. Maine followed the landmark

case of Commonwealth v. York, 9 Met (SO Mass.) 93 (1845).

This Court seems to have regarded this aspect of the Main jury .

instruction as being primarily offensive when it observed: ~

"Under this burden of proof a defendant can be

given a life sentence when the evidence indicates

that it is as likely as not that he deserves a

significantly Iggser sentence. This is an intolerable

38 288 N.C. at 648, A. 32.

39 Mullaney v. Wilbur, supra at 703.

The North Carolina burden of proof on a defendant to

show heat of passion or self-defense is decidedly and

purposefully different in that the quantum of proof is simply

to the "satisfaction" of the jury-not by the greater weight of

the evidence nor beyond a reasonable doubt. State v. Freeman,

275 N.C. 662, 170 S.E. 2d 461 (1969). This standard was not

invented by North Carolina. It was standard recognized by

expositors of the common law:

"(W)e may take it for a general rule that all

homicide is malicious, and of course amounts to

murder, unless where justified by the command

or permission of the law; excused on the account

of accident or self-preservation; or alleviated into

manslaughter, by being either the involuntary

consequence of some act, not strictly lawful, or

(if voluntary) occasioned by some sudden and

sufficiently violent provocation. And all these

circumstances of justification, excuse, oF

alleviation, it is incumbent upon the prisoner to

make out, “to the satisfaction of the court and

jury" (Emphasis supplied): the latter of whom

are to decide whether the circumstances alleged

are proved to have actually existed; the former,

how far they extend to take away or mitigate

guilt. For all homicide is presumed to be

malicious, until the contrary appeareth upon

evidence " 4 W. Blackstone Commentaries *201.

As noted in Mullaney,

"In a landmark case, Commonwealth v York, 9

Met (50 Mass) 93 (1845) Chief Justice Shaw of

the Massachusetts Supreme Judicial Court held

that the defendant was required to negate malice

aforethought by proving by a preponderance of

the evidence that he acted in the heat of

passion.

This Court rejected York's rule for use in federal courts

in Davis v. United States, supra, giving this reason:

Id. at 694.

"We are unable to assent to the doctrine that in

a prosecution for murder, the defense being

insanity, and the fact of the killing with a deadly

weapon being clearly established it is the duty

of the jury to convict where the evidence is

equally~balanced on the issue as to the insanity

of the accused at the time of the killing."

This was precisely the reason given 80 years later in

Mullaney.

North Carolina has never followed York; rather,

proceeding along the lines of the dissent in York and the later

case of Commonwealth v. Hawkins, 3 Gray (69 Mass.) 463

(1855). In State v. Ellick, 60 N.C. 450 (1864) it was held that

a defendant need not make out his affirmative defense or

matters in mitigation beyond a reasonable doubt but simply

to the satisfaction of th® jury In State v. Willis, 63 N.C. 26

(1868) the North Carolina Court considered York and explicitly

rejected that portion of the York opinion which placed the

burden on the defendant to make out his affirmative defense

or matters in mitigation by a preponderance of the evidence,

noting:

"We prefer to stand super antiquas vias, and to

adhere to the rules laid down in the State vy.

Ellick, above referred to In that case the

erroneous statement whicli we had inadvertently

made in the State v. Peter Johnson, (48 N.C. 266

(1855)) that it was incumbent on the prisoner

to establish the matters of excuse or extenauation

beyond a reasonable doubt, is corrected. In it is

also corrected what we consider as erroneous in

the decision of the Court in Commonwealth v

York, that the matters of excuse or extenuation

which the prisoner is to prove, must be decided

according to the preponderance of evidence. It

is more correct to say, as we think, that they

must be proved to the satisfaction of the jury."

- 160 U.S. at 484 (Emphasis added)

63 N.C. at 29

Although there has been language in several of the later

North Carolina cases to the contrary, Stansbury's North

Carolina Evidence § 214, n. 48 (Brandis Rev. 1973), e.g., State

v. Freeman, supra, it has held that the burden on the defendant

is not by the preponderance of the evidence, State v. Barrett,

132 N.C. 1005, 43 S.E. 832 (1903), nor any greater standard,

State v. Freeman, supra. State v. Carland, 90 N.C. 668 (1884),

holding to the contrary, erroneously purported to follow Willis

and was overruled sub silentio in State v. Barrett, supra.

In Barrett the judge's instruction on burden of proof was

basically that used in Maine. Although reversing for other

errors, this aspect of the charge was strongly criticized as not

in accord with prior cases, the court saying:

"(T)he prisoner must satisfy the jury, neither

beyond a reasonable doubt nor yet by a

preponderance of testimony, but simply satisfy

them, of the existence of facts and circumstances

which mitigate the offense or which make good

a plea of self-defense."

"Satisfying" the jury of the existence of certain facts

therefore does not mean that defendant must prove their

existence by a preponderance of the evidence.

Accordingly, the crucial difference between the jury

instructions given here and those given in Maine which were

struck down in Mullaney are: upon proof beyond a reasonable

doubt of an assault with a deadly weapon resulting in death,

and the unlawfulness of the killing, and evidence of all elements

of heat of passion on sudden provocation a jury under the

Maine instructions would be required to return a verdict of

guilty of murder unless it could find affirmatively by a

preponderance of the evidence that the killing was done in the

heat of passion on sudden provocation; whereas under the

approved instructions in North Carolina even if no such

affirmative finding was made the jury could not return a verdict

of guilty of murder in the second degree unless the State, aided

by the inference of malice arising from the use of a deadly

weapon, proved malice beyond a reasonable doubt. Thus it can

be concluded that the defendant's burden to "satisfy" the jury

” 132 N.C. at 1013.

of the jury of the existence of heat of passion taken in the

context of the entire instruction means only that the evidence

of heat of passion on sudden provocation must be sufficient

to raise a reasonable doubt in the minds of the jury as to the

existence of malice. This conclusion is required in order to give

appropriate effect to those portions of the instructions which

unequivocally and repeatedly place upon the State the burden

to prove malice beyond a reasonable doubt. Likewise inasmuch

as the State here was required to prove the absence of

justification or excuse, i.e., unlawfulness beyond a reasonable

doubt, the defendant's burden to "satisfy" the jury of the

existence of self-defense means only that the evidence of

self-defense must be sufficient to raise a reasonable doubt as

to the existence of unlawfulness.

While the terminology of these instructions may allocate

some burden of persuasion to defendant it does not follow

that the allocated burden is therefore constitutionally

impermissible. This Court recognized in Mullaney v. Wilbur,

supra, n. 20, that the North Carolina rules have "blurred the

distinction between" the production burden and the persuasion

burden. Any so called blurring does not arise from failure to

recognize the difference between producing evidence and

persuading the jury but rather from the constitutional

insignificance of the distinction between requiring a defendant

to produce evidence which is capable of belief by a jury and

which tends toward innocence or mitigation (tacitly approved

in Mullaney), and requiring him to persuade a jury that there

is a "doubt based on reason and common sense arising out

of some or all of the evidence that has been presented, or lack

of evidence as the case may be, as to any fact necessary to

constitute (his) guilt."

While there may be words in the instruction such as "if

you find that the defendant acted .. . in self-defense, he

would not be guilty" and "the defendant must satisfy you"

which, isolated, might seem \o place some burden of proving

affirmatively the presence of self-defense or heat of passion,

when placed in contex of other pertinent provisions of the

instructions, they do not. See Cupp v. Naughten, 414 U.S. 141

(1973). Cupp arose from an Oregon criminal prosecutionin

which the defendant put on no evidence. Twice the court

charged that the defendant was presumed innocent until proven

guilty beyond a reasonable doubt. The judge also charged on

an Oregon permissive inference that witnesses were presumed

to speak the truth. Defendant claimed this latter instruction

impinged unconstitutionally on the presumption of innocence

and the prosecution's burden of proof beyond a reasonable

doubt. In rejecting the claim this Court said:

"Certainly the instruction by its language neither

shifts the burden of proof nor negates the

presumption of innocence accorded under Oregon

Law. It would be possible perhaps as a matter

of abstract logic to contend that any instruction

suggesting that the jury should believe the

testimony of a witness might in some tangential

respect ‘impinge’ upon the right of the defendant

to have his guilt proved beyond a reasonable

doubt. But instructions bearing on the burden of

proof, just as those bearing on the weight to be

accorded different types of testimony and other

familiar subjects of jury instructions, are in one

way or another designed to get the jury off dead

center and to give it some guidance by which to

evaluate the frequently confusing and conflicting

testimony which it has heard. The well-recognized

and long-established function of the trial judge

to assist the jury by such instructions is not

emasculated by such abstract and conjectural

emanations from Winship." Id. at 148-149.

So in this case, even if those challenged portions of the

instruction, in isolation, may "as a matter of abstract

logic . . . impinge on the right of the defendant to have his

guilt proved beyond a reasonable doubt," taken in context of

the full charge they are designed simply, and constitutionally,

to guide the jury in evaluating whether the State has proven

guilt beyond a reasonable doubt. It was this aspect of the

North Carolina instructions which were not fully considered

by its Supreme Court in its opinion.

Not only do these instructions comport with the Due

Process Clause of the Fourteenth Amendment, they also

enunciate principles that are supported by compelling policy

considerations. The reasonable doubt standard in criminal cases

is erected in favor of the life and liberty of innocent defendants.

To place no burden on a criminal defendant charged with

homicide to raise even a reasonable doubt as to the existence

of malice or unlawfulness upon proof that he intentionally shot

another person which shooting proximately resulted in that

person's death would be to favor death to the victim and

injustice to the State. This is so because a homicide victim

can never himself shed light on the circumstances surrounding

the killing. One can think of no rule which would more

inevitably lead to undersirable results that one which requires

instructing a jury that it must acquit a homicide defendant

who produces some evidence of mitigation or justification

whether or not that evidence is enough or "satisfies" it that

there is a reasonable doubt as to malice or unlawfulness. Giving

the defendant the burden of raising a reasonable doubt is an

approved rule in a number of jurisdictions. DeGrott v. United

States, 78 F2d, 244, 251 (9th Cir. 1935) (synthesizing Davis

v. United States, supra, and Matheson v. United States, 227

U.S. 540 (1913)); Spence v. Territory, 13 Ariz. 20, 108 P.

227 (1910); Everett v. State, 88 Ariz 293, 356 P. 2d 394

(1960); State v. Dill, 282 S.W. 2d 456 (Mo. 1955); State v

Harrison, 81 N.M. 623, 471 P. 2d 193 (Ct. App. 1970); State

v. Hazlet, 16 N.D. 426, 113 N.W. 374 (1907); see annot., 43

A.L.R. 3d 221 (1972), especially §§ 3(f) and 4(b).

The preponderence of the evidence test used by Maine

and a number of other jurisdictions required the jury, in the

event their minds were evenly balanced between conviction and

acquittal, to convict. This was the _ constitutionally

impermissible part of the Maine instructions. By contrast the

North Carolina standard allows the jury to acquit in the equally

balanced situation Conceivably, it could also result in acquittals

when the balance might be tipped slightly in favor of the

prosecution but not so far as to pass the beyond a reasonable

doubt burden that is required to be repeatedly placed on the

prosecution by the North Carolina law By having no precise

definition of the amount of evidence required to satisfy it, the

jury is free to weigh the defendant's evidence in any manner

it chooses; it is never required to find the defendant's evidence

must preponderate or be evenly balanced to that opposed to

it before any acquittal can result.

The same is true when the jury is told they can acquit

if the prosecution has not proved its case beyond a reasonable

doubt. Again, the jury is left free to give whatever weight it

deems appropriate to the evidence produced by the defendant

in its sole and unbridled discretion It seems there is nothing

constitutionally impermissible in allowing juries or other

fact-finders great lattitude in applying the "less than a

reasonable doubt" standard nor in requiring defendant to

produce sufficient evidence to raise a reasonable doubt. In any

criminal trial conducted in North Carolina, the jury is always

told the prosecution must prove its case beyond a reasonable

doubt and that it must acquit if the prosecution fails to carry

this burden. It is only in a fairly limited number of trials

(homicide of less than first degree) that the "satisfaction"

standard even comes into a trial. Thus, if the wide discretion

allowed to the jury in all cases other than less than first degree

homicide prosecutions comports with all due process notions,

then surly similar wide discretion given to the jury by the

"satisfaction" test would also pass constitutional muster.

Moreover, a rule of law which requires the trial judge

to affirmatively instruct on the defendant's evidence so that

the "satisfaction" test can be stated and applied benefits the

defendant. First, the defendant's evidence is recapitulated and

restated to the jury just before they retire to deliberate so that

it is fresh on their mind Second, they are told affirmatively

that the law requires them to consider this evidence and that

it cannot be ignored. Merely instructing that the prosecution

must prove its case beyond a reasonable doubt or that an

acquittal must be granted if the jury has a reasonable doubt

puts the focus and emphasis on the prosecution's evidence or

lack thereof and tends to relegate the defendant's evidence to

a secondary role. In its deliberations, the jury may well ignore

the defendant's evidence in its efforts to discern whether the

prosecution's evidence meets the reasonable doubt standard.

Thirdly, the jury is told it merely has to be satisfied by the

defendant's evidence with no mention being made of any

further requirement. Satisfaction is a word of ordinary usage

as opposed to a word of art (such as "malice" or "reasonable

doubt") whose meaning is clear to most people who would

be sitting as jurors. Thus they are given a comprehensible

standard to apply when considering the defendant's evidence.

As a practical matter, unless the jury or other fact-finder is

satisfied from the defendant's evidence of the truth of the

existence of all the elements of either heat of passion or

self-defense (regardless of whatever formula the trial judge uses

in his instructions) guilt will be found. Thus, in the final

analysis, mere semantical differences in a trial judge's

instruction result in few, if any, changes in ultimate result.

The State of North Carolina feels that the longstanding

instructions requiring the jury to be "satisfied" fully comported

with federal due process. The "fine tuning" of due process

notions done by this Court in Mullaney involving rules in Maine

should not work to invalidate North Carolina's markedly

different rules. Until this Court, which is the only body which

can authoritatively declare the reach of its decisions, says

directly and unequovicably that North Carolina's rule violates

due process as recently redefined in Mullaney, the North

Carolina Supreme Court's interpretation and application of

Mullaney is not dispositative of the question. Therefore, the

State of North Carolina urges this Court to examine the

applicability of the Mullaney standards to this state.

Furthermore the North Carolina Supreme Court, in its

haste to remove any constitutionally suspect rules from its law,

may have overlooked the recent admonitions from this Court

of "the importance of allowing the States to experiment and

innovate especially in the area of criminal justice." and "that

neither the Constitution as orginally drafted, nor any

amendment, nor indeed any need, dictates that we must haye

absolute uniformity in the criminal law in all the States":

By adopting the "satisfaction" test, which seemingly has

worked well in North Carolina for over one hundred years,

this state has in fact innovated and experimented. In all this

time, this approach was never questioned. Mullaney has not

questioned North Carolina's approach; rather, striking down a

Maine rule which could have never survived even a moment's

scrutiny by the North Carolina Courts.

For all of the above reasons, therefore, it is most

earnestly submitted that the North Carolina Supreme Court

erroneously perceived the sweep of Mullaney and thereby

incorrectly applied it invalidate, albeit prospectively, a

constitutionally acceptable standard.

44 California v. Green, 399 US. 149, 171 (1969) (Chief

Justice Burger concurring.)

CONCLUSION

To date, the decided cases of this Court do not require

an automatically retroactive application of the new due process

standards as to allocation of the burden of proof on the

affirmative defenses of heat of passion on sudden provocation

and self-defense. The three factor analysis of purpose, reliance

and impact should be used to resolve the retroactivity question,

when this is done, the reliance and impact factor outweigh the

purpose factor and thereby require a prospective only

application of the new due process standard.

In no event do the decided cases demand a lhmited

retroactive application to the case because it was still on direct

appellate review as a matter of right.

Finally, the Supreme Court of North Carolina may have

been in error by holding that the new standard, even

prospectively, had any application to the existing North

Carolina Rules

For these reasons, therefore, the State of North Carolina

feels that the decision of its Supreme Court refusing to apply

Mullaney retrospectively in any manner was entirely correct.

The State further feels that the Mullaney doctrine should have

never been applied since its rules fully comported with the new

standard

Respectfully submitted,

RUFUS L. EDMISTEN

Attorney General

Webs Wn

CHARLES M. HENSEY

Assistant Attorney General

Post Office Box 25201

Raleigh, North Carolina 27611

Telephone (919) 829-3316

ATTORNEYS FOR RESPONDENT

CERTIFICATE OF SERVICE

I hereby certify that I am admitted to practice law before

the Supreme Court of the United States; that I have served

copies of the within BRIEF FOR RESPONDENT by depositing

three copies of same in the United States Mail at Raleigh, North

Carolina, addressed to: Lawrence G. Diedrick, P. O. Box 2626,

Rocky Mount, North Carolina 27801, first class postage

prepaid.

This the \5* day of December, 1976.

Meas M. HENSEY

Assistant Attorney General

COUNSEL FOR THE STATE OF

NORTH CAROLINA, RESPONDENT

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