Opposition — McNulty v. Hawaii

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OF THE |_MICHABL RODAK, JR,,

Anited States

OCTOBER TERM 1978

NO. 78-1489

DONALD ANGUS McNULTY, Petitioner

v.

STATE OF HAWAII, Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF HAWAII

BRIEF FOR RESPONDENT IN OPPOSITION

TOGO NAKAGAWA

Prosecuting Attorney

RICHARD D. WURDEMAN

First Deputy Prosecuting Attorney

City and County of Honolulu

1164 Bishop Street

Honolulu, Hawaii 96813

Attomeys for Respondent

SUBJECT INDEX

EE Oe EE. oi et ae Ee Pe

Eo iia & so bh ee Se ewe RA os oe ere

Argument

The trial court’s failure to give a specific burden of proof

instruction is constitutionally harmless and therefore, defense

counsel’s failure to object to that omission does not amount to

rr eee

Ce Cs ecw che ee Vek Ss «a Rib eet Se ate te Cade ei6 ole

i ~~

TABLE OF AUTHORITIES

Cases

Pages

Corsa v. Anderson

443 F.Supp. 176 (E.D. Mich. 1977) .............. 3, 4, 5, 6, 7

Esposito v. United States

SOO Fe Oe Cr Ge BOT ccc cece ce eves eecenss 5

Government of Virgin Islands v. Cruz

SO ae TE BOE, «5-6 de 6k oe bbb wows caine 5

McMann v. Richardson

397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) ....... 6

Mullaney v. Wilbur

421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) ....... 3,4

Nordeste v. United States

393 F.2d 335 (9th Cir.), cert. denied, 393 U.S. 878 (1968) ... 5

Powell v. Alabama

287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1936) ........... 6

Sheriff v. Wyrick

524 F.2d 186 (8th Cir.), cert. denied, 424 U.S. 923 (1976) ... 6

State v. Kahalewai ;

54 Haw. 28, 501 P.2d 977 (1972) .. ccc ccc cw cer eee 7

State v. Love

285 Minn. 444, 173 N.W.2d 423 (1970) ................ 5

State v. McNulty

60 Haw. — , 588 P.2d 438 (No. 5978, December 28, 1978) . 1,3,4,5

United States v. Conversano

412 F.2d 1143 (3d Cir.), cert. denied, 396 U.S. 905 (1969) ... 5

United States v. Jackson

569 F.2d 1003 (7th Cir.), cert. denied, _. U.S. — , 98 S.Ct.

Sg ee BAe BEET CET 6 cee ew ba ecw seanecsde's 4,5

United States v. Levin

443 F.2d 1101 (8th Cir.), cert. denied, 404 U.S.944 (1971) .. 4

United States v. Rodriguez

446 F.2d 859 (9th Cir. 1971), cert. denied, 404°U.S. 1021 (1972) 5

CONSTITUTIONS

United States Constitution

a re ee a a we we wed ea 2

I So Nod a a ee ge eee Va bee eae eter 2

Iu the Supreme Court

OF THE

Anited States

OCTOBER TERM 1978

NO. 78-1489

DONALD ANGUS McNULTY, Petitioner

v.

STATE OF HAWAII, Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF HAWAII

BRIEF FOR RESPONDENT IN OPPOSITION

OPINION BELOW

The opinion of the Supreme Court of Hawaii, for which

review is sought, is State v. McNulty, 60 Haw. , 088 P.2d

438 (No. 5978, December 28, 1978), and is reprinted in

Appendix A of the Petition.

JURISDICTION

The jurisdictional requisites are set forth adequately in the

Petition. .

2

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment XIV, Section

1: 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 citizens 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.

United States Constitution, Amendment VI: In all criminal

prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the State and district

wherein the crime shall have been committed which district

shall have been previously ascertained by law, and to be

informed of the nature and the cause of the accusation; to be

confronted with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defense.

QUESTIONS PRESENTED

1. Whether this Court should review the decision of a State

Court that has given full consideration to the issues and

decided them accurately?

2. Whether this Court should review the decision of a State

Court that has given full consideration to the issues anc

decided them fairly?

STATEMENT OF THE CASE

The statement of the case has been set forth adequately in

the Petition.

3

ARGUMENT

THE TRIAL COURT’S FAILURE TO GIVE A SPE-

CIFIC BURDEN OF PROOF INSTRUCTION IS CON-

STITUTIONALLY HARMLESS AND THEREFORE,

DEFENSE COUNSEL’S FAILURE TO OBJECT TO

THAT OMISSION DOES NOT AMOUNT TO INEF-

FECTIVE REPRESENTATION.

The jury instruction which is the subject of this appeal is

one which omitted a specific burden of proof instruction on

the presecution’s burden of disproving self-defense. The in-

struction, as a whole, did charge the prosecution with the

burden of proving every element of the crime charged beyond a

reasonable doubt. State v. McNulty, 60 Haw. , 588 P.2d

438, 442, n.5 (1978). As such, this instruction is of a

fundamentally different and distinct constitutional category

than the instructions in Mullaney v. Wilbur, 421 U.S. 684, 95

S.Ct. 1881, 44 L.Ed.2d 508 (1975) and Corsa v. Anderson, 443

F.Supp. 176 (E.D. Mich. 1977), cases on which the Petitioner

relies.

In Mullaney v. Wilbur, a Maine statute required a defendant

charged with murder to prove that he acted ‘‘in the heat of

passion on sudden provocation.” 421 U.S. 684. In its instruc-

tions to the jury, the trial court in Mullaney v. Wilbur stated

that if the prosecution established that the homicide in

question was both intentional and unlawful, malice afore-

thought 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. Id. at 686.

(Emphasis supplied.) In Corsa v. Anderson, the jury instruction

charged that if a man assaults another person with a deadly

weapon, “the law presumes that such person so assaulting

intended to take life....’”’ 443 F.Supp. at 177. Like the

instruction in Mullaney v. Wilbur, the instruction in Corsa v.

Anderson had the effect of proving one of the elements of the

crime charged, to wit, the intent to kill. In both cases, the

4

defendant had to disprove a presumption of guilt as to an

element of the crime charged — malice aforethought and the

intent to kill, respectively.

No such constitutional infirmity as requiring the defendant

to prove his innocence appears in the jury instructions in the

present case. The general instruction charged: ‘‘The burden is

upon the prosecution to prove the accused guilty beyond a

reasonable doubt of every material element of the crime

charged ....’’ State v. McNulty, 60 Haw. , 588 P.2d at

442, n.5. The general instruction did not create a presumption

of guilt as to any element of the crime charged and

consequently did not place Petitioner in a position of having to

prove his innocence. United States v. Levin, 443 F.2d 1101,

1107 (8th Cir.), cert. denied, 404 U.S. 944 (1971). Neither did

the instruction expressly put the burden of proving self-defense

on the Petitioner. Jd. In comparison to the constitutional

proportions of the jury instructions in Mullaney v. Wilbur and

Corsa v. Anderson, the jury instruction in the present case is of

a much lesser magnitude. Insofar as the present jury instruction

is of a fundamentally different and distinct constitutional

category, the Petitioner has mistaken this case to be of equal

constitutional proportions as that of Mullaney v. Wilbur.

1. THE TRIAL COURT’S FAILURE TO GIVE A SPE-

CIFIC BURDEN OF PROOF INSTRUCTION IS CON-

STITUTIONALLY HARMLESS.

In United States v. Jackson, 569 F.2d 1003 (7th Cir.), cert.

denied, US. , 98 S.Ct. 3096, 57 L.Ed.2d 1137

(1978), the Court considered whether the failure of a United

States District Court to give the exact jury instruction

challenged on appeal here amounted to plain error. In deciding

that it did not constitute plain error, the Seventh Circuit

looked to the following factors: (1) the trial court did read a

self-defense instruction to the jury, thereby presenting the

defendant’s theory of the case to the factfinder; (2) defense

counsel in closing argument stated that the prosecution had the

5

burden of proving the absence of self-defense beyond a

reasonable doubt; (3) and the evidence of guilt was overwhelm-

ing. 569 F.2d at 1010.

This approach to the omitted specific burden of proof jury

instruction involves a much more detailed analysis of the

record than as set forth by Petitioner in his Petition. A jury

instruction on self-defense was given. State v. McNulty, 60

Haw. , 588 P.2d at 442. A strong case that evidence of

guilt is overwhelming could be made. And, although not part of

the record, it is possible to ascertain whether or not defense

counsel in his closing statement at trial mentioned the State’s

burden of disproving self-defense.

In line with the ruling in United States v. Jackson above,

the following courts have consistently refused to find plain

error in cases where a specific burden of proof instruction

relating to the accused’s interposed defense was omitted

without objection: Government of Virgin Islands v. Cruz, 478

F.2d 712, 717 — 18 (3d Cir. 1973); United States v. Rodriguez,

446 F.2d 859, 860 (9th Cir. 1971), cert. denied, 404 U.S. 1021

(1972); Esposito v. United States, 436 F.2d 603, 604, (9th Cir.

1970); United States v. Conversano, 412, F.2d 1143,

1148 — 49 (3d Cir.), cert. denied, 396 U.S. 905 (1969);

Nordeste v. United States, 393 F.2d 335, 33S — 40 (9th Cir.),

cert. denied, 393 U.S. 878 (1968); State v. Love, 285 Minn.

444, 449 — 52, 173 N.W.2d 423, 426 — 27 (1970 .

2. A CLAIM OF INEFFECTIVE COUNSEL PREDI-

CATED ON DEFENSE COUNSEL’S FAILURE TO

OBJECT TO A CONSTITUTIONALLY HARMLESS

BURDEN OF PROOF INSTRUCTION IS NOT WELL

TAKEN.

The approach taken by the United States District Court for

the Eastern District of Michigan in Corsa v. Anderson, supra, to

the claim of ineffective counsel for failure to object to a jury

instruction, is inapposite to the present case and therefore, not

persuasive. The jury instruction in that case did in fact violate

6

the defendant’s constitutional presumption of innocence. It

was plain error for the trial court to give that instruction. In

view of the important constitutional right at stake, a claim of

ineffective counsel could logically be predicated on counsel’s

failure to object to that instruction.

Unlike Corsa v. Anderson, ihe jury instruction in the

present case, with the omitted specific burden of proof

instruction, was constitutionally harmless. It is therefore

illogical to predicate a claim of ineffective counsel on defense

counsel’s failure to object to it. Insofar as the facts in Corsa v.

Anderson are inapposite to the present case, the reasoning of

that court is likewise not applicable.

3. THE DECISION OF THE HAWAII SUPREME COURT

IS FAIR AND JUST.

The constitutional right to the assistance of counsel in a

criminal case is satisfied only when such assistance is ‘‘effec-

tive.” Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed.

158 (1936). “Effective’’ counsel does not mean errorless

counsel but counsel whose assistance is ‘‘within the range of

competence demanded of attorneys in criminal cases.”

McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441,

1449, 25 L.Ed.2d 763 (1970). Even if it was error for trial

counsel to waive his objection to the specific burden of proof

instruction, that error was harmless.

Petitioner’s final basis for asserting ineffective assistance of

counsel is trial counsel’s failure to call the victim’s former

attorney to testify as to the victim’s violent propensities. The

decision to call a witness in a criminal trial, however, is a

matter peculiarly within the judgment of counsel and, accord-

ingly, will rarely be second-guessed on appeal. Sheriff v.

Wyrick, 524 F.2d 186, 190 (8th Cir.), cert. denied, 424 U.S.

923 (1976).

Viewing the record as a whole, defense counsel’s conduct at

trial did not fall below that standard of ordinary competence

demanded of attorneys in criminal cases. State v. Kahalewai, 54

a i lll

7

Haw. 28, 501 P.2d 977 (1972). In balancing defense counsel’s

actions against the competing interests in the administration of

criminal justice, the Hawaii Supreme Court has reached a fair

and just result.

CONCLUSION

The Hawaii Supreme Court accurately and fairly decided

the issues in this case. Inasmuch as the Petitioner retains no

separate federal grounds upon which to petition this Court, the

Petition for Writ of Certiorari should be denied.

Respectfully submitted this 16th day

of April, 1979.

TOGO NAKAGAWA

Prosecuting Attorney

J. LEO McCORMICK, JR.

Deputy Prosecuting Attorney

Attorneys for Respondent

State of Hawaii