Amicus Curiae Brief — Martin v. Ohio

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No. 85-6461

In The Supreme Court Of The United States

OCTOBER TERM, 1985

EARLINE MARTIN, Petitioner

STATE OF OHIO. Respondent

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

MOTION FOR LEAVE TO FILE BRIEF AM/CUS CURIA!

AND

BRIEF FOR OHIO PUBLIC DEFENDER COMMISSION

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

RANDALL M. DANA

Ohio Public Defender

GREGORY L. AYERS

Chief Counsel

Ohio Public Defender Commiss

Fight East Long Street-| Ith Flo

Columbus, Chio 43215

(614) 466-5394

Counsel of Record

RICHARD L. AYNI

MARGERY B. KOOSED

} DEAN CARRO

ppellate Review Of!

School of Law

ie University of Ak

1. Ohio 443

NO. 85-6461

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

EARLINE MARTIN, Petitioner,

vs.

STATE OF OHIO, Respondent.

ON WRiT OF CERTIORARI TO THE

SUPREME COURT OF OHIO

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE AND BRIEF AMICUS CURIAE

The Ohio Public Defender Commission

hereby respectfully moves for leave to file

the attached brief amicus curiae in support

of Petitioner in this case. The consent of

the attorney for the Petitioner has been

obtained. The consent of the attorney for

Respondent was requested but refused.

The interest of the Ohio Public Defender

Commission in this case arises from the fact

that it and other appointed counsel in Ohio

represent many criminal defendants similarly

Situated to Petitioner. The issue raised by

Petitioner of concern to Amicus is Ohio's

requirement that the accused bear the burden

of proving a claim of self-defense by a pre-

ponderance of evidence. Amicus represents

the interests of a large number of Ohio

attorneys who believe that Ohio law on this

issue is in conflict with the Due Process

Clause of the Fourteenth Amendment.

In the instant case, Amicus believes the

resolution of this issue will depend on

whether this Court finds that self-defense

negates any facts necessary to prove the crime

of aggravated murder under Ohio law. See

Patterson v. New York, 432 U.S. 197, 206-207

(1977). While Petitioner's argument broadly

addresses this issue, Amicus believes that

the brief it is requesting permission to file

contains a more detailed analysis of the

pertinent elements of Ohio law and their

relationship to self-defense. Additionally,

the brief amicus curiae contains a discussion

——————

of where the federal courts and other states

stand on this issue, not contained in

Petitioner's brief.

For these reasons, Amicus requests leave

to file the attached brief amicus curiae in

this case.

Respectfully submitted,

RANDALL M. DANA

Ohio Public Defender

GREGORY L. AYERS

Chief Counsel

Ohio Public Defender

Commission

Eight East Long Street-

lith Floor

Columbus, Ohio 43215

(614) 466-5394

COUNSEL OF RECORD

RICHARD L. AYNES

MARGERY B. KOOSED

J. DEAN CARRO

Appellate Review Office

School of Law

The University of Akron

Akron, Ohio 44325

(216) 375-7751

COUNSEL FOR AMICUS CURIAE

OHIO PUBLIC DEFENDER

COMMISSION

lil

CERTIFICATE OF SERVICE

Pursuant to Rule 28.5(b) of this Court,

I, Gregory L. Ayers, a member of the bar of

this Court, hereby certify that on this :

day of July, 1986, three copies of the fore-

going Motion for Leave to File Brief Amicus

Curiae and Brief Amicus Curiae were mailed,

first-class postage prepaid, to JAMES R.

WILLIS, Esquire, Suite 610, Bond Court

Building, 1300 East Ninth Street, Cleveland,

Ohio 44114, Counsel for Petitioner; and to

JOHN T. CORRIGAN, Cuyahoga County Prosecuting

Attorney, Justice Center, 1200 Ontario

Street, Cleveland, Ohio 44113, Counsel for

Respondent. I further certify that all

parties required to be served have been

served. Petitioner Earline Martin's address

is: Ohio State Reformatory for Women, 1479

Collins Avenue, Marysville, Ohio 43040.

GREGORY L. AYERS

Counsel for Amicus Curiae

———

TABLE OF CONTENTS

ARGUMENT ...ccccces errr eee eee ee

Il.

SINCE SELF-DEFENSE IS

CONSTITUTIONALLY PROTECTED

INNOCENT CONDUCT, AN ACCUSED

CANNOT BE REQUIRED TO BEAR

THE BURDEN OF PROOF ON THAT

ISSUE. ccocccccccccccccscccscces

PROOF OF SELF-DEFENSE

NECESSARILY NEGATES SEVERAL

INGREDIENTS OF THE CRIME OF

AGGRAVATED MURDER. ..eceeeneces

A. Mullaney and Patterson

AMALYBIG cccccccccocccceces

B. Self-Defense Negates

Unlawfulness cccccccccccece

C. Self-Defense Negates

Criminal ConGuct .cccccccce

D. Self-Defense Negates the

the Voluntary Act

ROGUIFOEMORE cecccccccccocces

E. Self-Defense Negates Both

General Intent and the

Specific Intent of Prior

Calculation and Design

PAGE

ins General Intent ....cecce 40

2. Prior Calculation and

DOGIGR cccccccocceccecs 43

Ifill. DUE PROCESS REQUIRES THAT THE

STATE BEAR THE BURDEN OF

PROVING BEYOND A REASONABLE

DOUBT THAT THE ACCUSED'S

ACTIONS WERE UNLAWFUL AND NOT

IN SELF-DEFENSE. .ccccccccccces 57

CONCLUSION wcccccccccccccccccsccccccs 63

CERTIFICATE OF SERVICE cccccccccccece 66

TABLE OF AUTHORITIES

CASES:

Addington v. Texas, 441 U.S.

LG, 423 (A979) coceosecseces

Adkins v. Bordenkircher, 674

F.2d 279 (4th Cir. 1982)

Allen v. United States,

Te FS 8£)) ns

Barnes v. United States,

San Gus GEe CEeTee 04666680

Beard v. United States,

1S8 0.8. S50 (1695S) cccccose

Boyd v. United States,

226 U.8. GAG CAGSS? covccecs

Brown v. United States,

Bee Wells Sem CAREA? oeecceese

Cabana v. Bullock, U.S.

, 106 S.Ct. 696, 88

Daltew & Chee? 26660008006

(6th Cir. 1983 cert.

denied, U.S. , 104

S.Ct. 3518 (1984) wccccccces

Cherry v. Jago, 722 F.2d 1296

Coker v. Georgia, 433 U.S.

SEQ (C1977) ccccccccccccsccces

Commonwealth v. Hilbert,

382 A.2d 724 (Pa. 1978)

vii

PAGS

50,52,53,61

Cooper v. North Carolina, 702

F.2d 481 (4th Cir. 1983) ... 23

Enmund v. Florida, 458 U.S.

Fan €CROEED cocceceeceseesees 53

Erwin v. State, 29 Ohio St.

BGG CERO) 206ceeeseeeeeeves 30,38

Filmore v. Insurance Co.,

82 Ohio St. 208, 92 N.E.

Bett) errr rer TrT TTT TTT 26

Francis v. Franklin, 471 U.S.

, 105 S.Ct. 1965, 85

cote a SOE CARES) cocecese 36,50,5l,

, : J

Gourke v. United States,

153 U.S. 183 (1893) cccccccs 10

Graham v. State of Ohio, 98

Ohio St. 77, 120 N.E. 232

TAPED. 66660000660666660060% 28

Griffin v. Martin, 785 F.2d

1172 (4th Cir. 1986) cccccce Pebadeaasbe

Griswold v. Connecticut,

S81 G.8. 679 CASES? cocvceoes 12

Hamilton v. Alvis, 109 Ohio

App. 298, 160 N.E.2d 372

(1959) wccccccccscccvesccccecce 28

Holloway v. McElroy, 632 F.2d

605, cert. denied, 451 U.S.

L028 C19GL) cccccccccccesecs 6,23

In re Winship, 397 U.S. 358

(1970) cccccccccccsccccccecs passim

Isaac v. Engle, 646 F.2d

1129 (6th Cir. 1980),

rev'd on other grounds

sub nom. Engle v. Isaac,

456 U.S. 1001 (1982) ....... 13,43

Johnson v. Bennett, 393 U.S.

a Snee 26#no6e0be6e es o0e 6s 37

Lamb v. Jernigan, 683 F.2d

1332 (llth Cir. 1982),

cert. denied, 460 U.S.

BUSS CAUSSP Seeceseceseceeos 23

Lambert v. California,

Soo U.8. ZED CASTS) ccoccceoece 40

Leary v. United States,

39e U.8. © CA9GS) cccccccces 35

Leland v. Oregon, 343 U.S.

TIO CL9SSZ) coccccccesccccces 21

Leonard v. People, 369 P.2d

2% (COLGCOES LPGE) coccoeces 60

Lester v. State, 121 So.2d

110 (Alabama 1960) ......... 60

Marts v. State, 26 Ohio St.

aan SRT ES 280606866808 866% 28,37,38

McElroy v. Holloway, 632 F.2d

605 (5th Cir. 1980), cert.

denied, 451 U.S. 1028

[SPEED cocceceseeveecessoece 31

McMillan v. Pennsylvania,

ay * , 54 U.S.L.W.

TOR CAPSOD coccscceesoceces 23

Mullaney v. Wilbur, 421 U.S.

GB4 (1975S) cccccccceccsecses

Ohio v. Brooks, 1 Ohio Dec.

Reprint 407 (Cuy. Co.

Common Pleas 1851) .........

Patterson v. New York,

632 GO.8. A997 CAS77) coecesec

People v. Patterson, 39 N.Y.

2d 288, 347 N.E.2d 898

(1976), affirmed sub non.,

Patterson v. New York,

432 U.B. A977 CA9T7) cece ‘on

Powell v. Texas, 392 U.S.

Bae €ADOE? «606006666060 068%

Reed v. State, ll Tex. Ct.

pp. 509 (1882) w.ccccccvees

Rivera v. Delaware, 429 U.S.

877 (1976), appeal dismissed;

351 A.24 SEL ccccccccccecees

Robbins v. State, 8 Ohio St.

[an Pee ptti~etan Suee de eee @

Robinson v. California,

See @.e,. Gen taeenl «eccessees

Sandstrom v. Montana,

S42 O.8. SES CEPIel «60ers

Silvus v. State, 22 Ohio St.

90 (1871), cited with appro-

val in State v. Humphries,

51 Ohio St. 2d 95, 364

B.B.28 L356 CL977) coeocsccsse

passim

Kh)

PAGE

Snyder v. Massachusetts, 291

U.S. 97 (1934), quoted

with approval, Patterson

v. New York, 432 U.S. 197

(AGT coeewesecesoeceoeseses 6

Speiser v. Randall, 357 U.S.

Dae GCROUEY £666604600060640006 58

State v. Carson, 2 Ohio Dec.

Reprint 81 (Hardin Cty.

Care Bee wswéonasduece eecoens 41

State v. Champion, 109 Ohio

t. 281, 142 N.E. 141

C29ZG) coccccccccceseceecece 28

State v. Clifton, 32 Ohio

App. 2d 284, 290 N.E.2d

a SEED 606666400065 %60066 38,42

State v. Cotton, 56 Ohio St.

2d 8, 381 N.E.2d 186

Phy, > rere ee ee 44

State v. Farmer, 156 Ohio St.

214, 102 N.E.2d 11 (1951) .. 25

State v. Hankerson, 288 N.C.

632, 220 S.E.2d 575 (1975),

rev'd on other grounds sub

nom. Hankerson v. North

Carolina, 432 U.S. 233

CST Er 66660606606 660608060868 31

State v. Hardy, 60 Ohio App.

2d 325, 397 N.E.2d 773

Coy, DRPrererrerrrerererrerre 5,40

tate v. Hogan, 63 Ohio St.

202, 58 N.E. 572 (1900) .... 4

PAGE

State v. Humphries, 51 Ohio

St.2d 95, 364 N.E.2d 1354

C2977) cccceeeecessecocsoers 30

State v. Jones, 47 Ohio App.

2d 8, 351 N.E.2d 798

(1975S) coccccsccocoseseesecs 38

State v. Kinnemore, 34 Ohio

App.2d 39 (1972) wwccccccees 32

State v. Lafferty, 309 A.2d

Sy Cis BOE e? «600660600862 19

State v. Martin, 21 Ohio St

3d 91, 488 N.E.2d 166

CoeED 2nb608 0666668006668 66% L5

State v. Melchior, 56 Ohlo

St.2d 15, 381 N.E.2d 195

OF) | eee ee yee 37

State v. Millet, 273 A.2d 504

SE’ Bi) aaerrrrrTrTTTiTrTT 60

State v. Nieto, 101 Ohio St

409, 130 N.E. 663 (1920) 2

State v. Poole, 33 Ohio St.2d

18, 294 N.E.2d 888 (1973)... 48

State v. Rivers, 50 Ohio

App. 2d 129, 361 N.E. 2d

tt Cite see enneeceeee 64

State v. Robbins, 58 Ohio

St.2d 74, 388 N.E.2d 755

ca wEwee a6eoe 6 606606666666 26% 46,

PAGE

State v. Robinson, 48 Ohio

App.2d 197, 356 N.E.2d 725

(1975), affirmed on other

grounds, 47 Ohio St.2d 103,

Jen Bebeoee Ge CASTe? ecseece 42

State v. Robinson, 161 Ohio

es Bae CREE? 6666600606064 32

State v. Stapely, 19 Ohio Dec.

110 (Hamilton Cty. Common

Tames CEs SPUS!) ceceseceeoces 29

State v. Stout, 48 Ohio St.

270, 30 N.E. 437 (1892) .... 27

State v. James Turner,

Wright (Ohio Supreme Court

Decisions) 20 (1831), ques-

tioned, 12 0.S. 436

CAUCE P cS eceesesesenecooecnes 27

State v. Vancak, 90 Ohio St.

At Ghee peenudeeeueuedeens 28

State v. Will, 18 N.c. 13l

cae? 6666 066 66595396 09%80% -

Stoffer v. State, 15 Ohio

St. 47 (1864), overruled

on other grounds, Meade et

al. v. McGraw, 19 Ohio St.

BS CREEP? Seccoeeroeeeseseees 13

Stromberg v. California,

283 U.B. 359 (L931) wccccecs 52

Stump v. Bennett, 398 F.2d

lll (8th Cir. 1978), cert.

denied, 393 U.S. 1001

CLIOSP coccsecseveesosessece 37

,28,40,47

793

Taylor v. State, 21 Ohio C.C.

BOG. GES CAPS) eeocescesecese

Thomas v. Arn, 704 F.2d 865

[SER Che AFSS) coeesessvore

Sarah Thomas v. William D.

Leeke, 725 F.2d 246 (4th

Cir. 1984), cert. denied,

469 U.S. _ , 105 S.Ct. 18,

83 L.E.2d 148 (1984) ....--.

Thompson v. United States,

LSS U.8. 27h CAGB4E) cescccces

United States v. Bailey,

444 U.S. 394 (1980),

quoting Morissette v.

United States, 342 U.S.

246 (1981) ccccccccccccccnes

United States v. Morris, 12

F. 332 (E.D. Ark. 1903)

United States v.

27 Fed. Cas. 78 ‘ ;

Ry. L666) ceccoccccessccsece

Wallace v. United States,

162 U.S. 446 (1896) ........

White v. Arn, 788 F.2d 338

[oem fae. Bower eteeeeneeees

Wray v. State, 5 Ohio C.C.

(N.S.) 43 (1904) cecccccecs

CONSTITUTIONAL PROVISIONS:

Article

Ohio Constitution,

§ l

Article

Ohio Constitution,

§ 4

Ohio Constitution,

§ 20

Article

United States

RRS TERE cceccececeoses

United States

Dns “Ee gas 6baeeeneeees

United States Constitution,

Amendment XIV

STATUTORY PROVISIONS:

General Code § 12400

“eee eeee#e

Stat.

(1964)

- Rev.

pee Sees 66666084664 8 H8e

Stat.

(1969)

Title

ee oeeeeeeee*e#e##e#e#se#e#e®

Rev. Ann.

§ 2651

New York Penal Law,

(McKinney 1975)

§ 125.

Ohio Revised Code, § 2901

Ohio Revised Code,

§ 2901.01

eoeeeesesfevresesee#e#ese#ee#*s#sees###* #

PAGE

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O O O ° O * O O - * ( . yp rH O GA UM W a.

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f, . > @ . > . . J an Voc cdvcacn Yd a.

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ado qd © Ons — Y~Y © @) -r4 +r q@ =<? ) <7 TM OV << uy) H00 Wo '

mov Mm OV momo mo mam oE ~Zmo Mm OV @ wo 4 CL i ~ <7

ON ™N q@ +i ™N Oe N (N Ww) ™~ t vy) A Qoc @ ' O

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+H DO HAD in 2 iW i ~ C) iW) ia > WZ >| riarit QO wv#~ VY) ‘

Cc i @- Cc f f c f v 4 | ‘

PAGE

John A. Bingham, The Argument

of John A. Bingham, Special

Judge Advocate (Washington

BOGS) 2F7L4E coccccccsescccecs 10

I Bishop, A Treatise On

Criminal Law, § 865,

subsection 2, p. 614 (9th

DT Bagegeceddéececocecce 30

II Bishop, A Treatise On

Criminal Law, § 17, 2, p.

a See Ge BEBE) cocecceoces 30

Black's Law Dictionary (Rev.

POUEGe BE. L966) cccccccceces 46

Blackstone, Commentaries on

the Laws of England, 177-

8. Bee, >) rr 30

1 Blackstone, Commentaries on

the Laws of England, Ch. l,

BD. L295 (LIES) ccccce vYTTTTT 9,41

4 Blackstone Commentaries on

the Laws of England, Ch.

Zhe De 269 (LIES) ceccccccce 41

Comment, "Shifting the Burden

of Proving Self-Defense--

With Analysis of Related

Ohio Law," 11 Akron L. Rev.

TAS CA9TE) ccccccccces TTT 60

Declaration of Independence .. 10

East, Treatise of the Pleas

of the Crown 217 (1803) .... 8

XVil

PAGE

Fletcher, "Two Kinds of Legal

Rules: A Comparative Study

cf Burden of Persuasion

Practices in Criminal Cases,"

77 Yale L.J. 880 (1968) .... 61

O. W. Holmes, Jr., The Common

Law 47, 54 (1881) .......... 5,40,41

LaFave and Scott, Handbook on

Criminal Law, § 53, p. 391

TBPUae 606606606 666608606008 30

Model Penal Code, Comment to

§1.13 (Tent. Draft No. 4,

SUE? 06656640866 04006662308668 36

Model Penal Code § 3.04, p.

7G CAP7E) cocesocceeesceoses 47

Note, "The Constitutionality

of Affirmative Defenses

After Patterson v. New

York," 78 Col. L. Rev. 655

CATO? o606eeeteeseeeeeesees l

Note, "H.B. 1168: The Burden

of Proving An Affirmative

Defense," 5 U. Dayton L.

Rev. GEL CARS e? 066666666006 34

27 Ohio Jur. 2d, Homicide,

S SS, p. G29 (2957) cocccccs 8

27 Ohio Jur. 2d, Homicide,

$ 6, pp. $57-S8 (1987) wcccs 4]

I, Warren on Homicide, § 54,

D. 162 (1914) cecccccccccces 8,24

CL9LE) ccccccccccseceseeceses 8,24

XV1lil

PAGE

I, Warren on Homicide, § 64

[Reese weeneknesoueue awe tse 8,24

I, Warren on Homicide, § 68

[AUeey 6666666646600 6606%%64 8,24

I, Warren on Homicide, § 143,

De GEF CEPASE coosceeceseces 8

I, Warren on Homicide, § 148,

Be GEe CAPES! 00660666660 808 ll

Wechsler & Michael, "A

Rationale of the Law of

Homicide," 37 Columbia L.

Rev. 701 (May 1937) ........ 13

Wharton's Criminal Evidence,

§ 224, p. 479 (13th ed.

BETES 0066656626606 050068468 3

x1x

INTEREST OF AMICUS CURIAE

The Ohio Public Defender Commission was

created by Ohio law in 1976.

Its purpose 1s

to provide, supervise and coordinate lega

State expense for indigen

and other persons. Ohio Revised Code § 120.01

One of primary responsibilities

provide crimina

defendants in felony trials, appeals and po:

convictio! dditional

>4/

The Commission has represented clients

in criminal cases before this Court, the Ohio

Supreme Court, the United States Court of

Appeals for the Sixth Circuit, and the United

States District Courts for the Northern and

Southern Districts of Ohio. The Commission

has also filed amicus briefs in various Ohio

courts in other actions which involved the

rights of criminal defendants.

The resolution of the issue in this case

will directly affect how Commission attorneys

and other members of the criminal defense bar

in Ohio handle cases involving the issue of

self-defense. Also, other Ohio defendants,

Similarly situated to Petitioner, are being

represented by Commission attorneys and will

be directly affected by the outcome.

SUMMARY OF ARGUMENT

Amicus submits that the decision below

is erroneous for three primary reasons.

First, the defense of self-defense esta-

blishes that the actor was engaged in lawful,

innocent behavior. Since In re Winship, 397

U.S. 358 (1970), prohibits the State f

)

requiring a defendant to prove her innocence,

the State of Ohio is barred from burden

her with proving self-defense.

Second, under an elements analysis

stemming from Mullaney v. Wilbur, 421 U.S.

684 (1975), and Patterson v. New York, 432

U.S. 197 (1977), self-defense negates seve

;

elements of

ey)

—— », & i } .. « ~ ~~ a =

requirement of the Ohio Constitution [Articles

IV, $ 20 nd Revised Code § 2941.06]: (3

. . ~ a . . “7 x

6717 a aa) nt R ric >) Cc 4 Qa f

re 4 u 1 s el e 73” [ see e V ise a oqae a J Q ~-* vA 4 ( .. ,

na (Q)\)y ery } intent (nurnoselv ifn nr r

and ,\J/ — + iminal € ae Mus DOS > ee Wl ~hih DLS

nC ln “7. + ate tale a=" “rT ) f >, 7 ~ 7 ’ lo| &

vad a CA LU < A A‘ >A MLL |. see iA. = L — € A . .

959an 2 fy 7 ‘a 7

z a ii * i .

m : 3 . = - - + 5 ‘

lra, iu DI ess I JULI A

tate bear tt burden of proving F j

ra ate ~A 1S A h + + + - or — = Tt «e "+

L.. as< la A it LAC - i = € a —_ - |

‘ a=" mImis £ } “ - < —_— is T

we A Lawiud A

ARGUMENT

SINCE SELF-DEFENSE IS CONSTI-

TUTIONALLY PROTECTED INNOCENT

CONDUCT, AN ACCUSED CANNOT BE

REQUIRED TO BEAR THE BURDEN OF

PROOF ON THAT ISSUE.

The State of Ohio cannot make self-

defense a crime. Any such attempt by the

State violates both its own Constitution! and

several provisions of the Federal

Constitution.

he Article I, Section 1 of the Ohio

Constitution provides, in part:

"All men are, by nature, free and

independent and have certain inalienable

rights, among which are those of enjoying

and defending life . . . and obtaining...

safety" (emphasis added).

Article I, Section 4 states that:

"The people have the right to bear arms for

their defense and security. . ." (emphasis

added).

This latter provision is “intended to

. « - afford the citizen [a] means for his

defense of self and property." State v.

Hogan, 63 Ohio St. 202, 218, 58 N.E. 572,

575 (1900).

First, a command by the state that

whose life is threatened by a felonious

assault should die rather than kill

his

dé

assailant is as unenforceable as it is absurd.

‘. . . the law cannot prevent [self-

defense] by punishment, because a

hreat of death at some future time

an never be a sufficiently

owerful motive to make a man choose

eath now in order to avoid the

h Se" O. W. Holmes, Jr., The

O n Law 47 (1881).

rather than to protect their own lives wi

be a il of L without due proces

ww.

" , ry = Fr ster ty ry ry vy Wm»

; = A ~— A — Ww — ¥ i +

in State v

395 ~

Hardy, 60 Ohio App.2d 325,

1.E.2d 3, 776 (1978), the Court held:

"The Fifth and Fourteenth Amendments to ths

ited States Constitution provide that a

person may not be deprived of his life,

. « « Without due process of law.

bviously, the state may not require and

loes not intend that an individual succum

his attacker and possibly forfeit

r - ~ ~ ~ - mm & q £

T OY T ar leas in se lel er

pel

unusual punishment provision of the Eighth

Amendment. 3 Equally as important, any attempt

to deprive the people of the "right" of self-

defense by making self-defense criminal would

deny them constitutional rights reserved and

pretected by substantive due process under

the Fourteenth Amendment and the rights

reserved to the people under the Ninth

Amendment.

With respect to the Fourteenth Amendment

substantive due process claim, the question

is whether the right is "so rooted in the

tradition and conscience of our people as to

be ranked as fundamental.” Snyder v.

Massachusetts, 291 U.S. 97, 105 (1934), quoted

3. The Eighth Amendment prohibits cruel and unusual

punishment—including punishment that is dispropor-

tionate to the "offense." Coker v. Georgia, 433 U.S.

584 (1977). Punishment for any lawful act, including

self-defense, is both disproportionate and cruel and

anusual. See also Holloway v. McElroy, 632 F.2d 605,

627, n. 35, and 636, n. 49, cert. denied, 451 U.S.

1028 (1981), noting a “plausible argument” could be

made that criminalizing self-defense would violate

the prohibition against cruel and unusual punishment

Wision and/or the due process clause.

with approval,

y ry) - "1% = = ~

{ +> ~

4 ae! A

— » | 1-7

a Kr Ac this

- + 4 i . rs A.A

vy. Martin, 78

banc):

f rma} ~ ~

a ‘ ~ 4 = &

<> om & ae

’ ,

Lausé . .

, * ~ > | >

Sé _

Lii SS » &

;

“+ ms "

Lili «

s -

LU Ww

an iS .

h w

Patterson

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1 +

1é

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rye

Lis

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da A :

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in Griffin

7 ’ ’ 27)

(1975).4 It was (and is) “lawful and

justifiable to resist certain attacks, even

by the death of the assailant, and the party

[was] without blame." East, Treatise of the

Pleas of the Crown 217 (1803).

When courts and commentators

- A

;

self-defense, they speak in terms of the

ieep within American common law, finding its

seeds in English common law. Blackstone

7 " 7 ° - . . :

lescribed three primary and overriding rights

4, Wharton's Criminal Evidence, § 224, 479

24. 1972); I, Warren on Homicide § 54, at

[, Warren, supra, at 163:

"Criminal homicide is the unlawful killing

of a human being . . .” (footnote omitted)

(emphasis added). See also §§ 63, 64, 68

[, Warren, supra, § 143, at 617; 27

Homicide, § 89, at 629 (1957

"It is universally recognized that

not punishable criminally for t

Life of another person when he has bee!

under the necessity

9— doling so, without ar wT

_ + in order

Dart mh Oras

Id.

‘Vv

‘ T

-—~

Fourteenth Amendment, tr

as “the acknowledged right of man...

This right was also recognized in early

Wher rime is committed with

impunity . . . those unprotected

by other sanctions .. . [are

compelled] . . . to rely upon

physical force for the vindication

of their natural rights. There is

no other remedy and no other

security." United States v.

Rhodes, 27 Fed. Cas. 785 (Cir. Ct.

Ky. 1866)./

The right to defend one's self 1s a basic

fundamental right rooted in such basic

documents as the Declaration of Independence,

stating: "that all men are endowed by their

~ . , + ——. - ; : =» 1 ¢ _ . ~

reator with certaln inallenable rights...

6. John A. Bingham, The Argument of John A. Bingham,

Special Judge Advocate (Washington 1865) 13-14,

quoted in Allen, "A Rhetorical Analysis of the

Speaking of John A. Bingham with Emphasis on His Role

in the Trial of the Lincoln Conspirators” (Ph.D

Dissertation, Ohio State University 1963).

7. See also Wallace v. United States, 162 U.S. 446

(1896); Beard v. nited States, 158 U.S. 550, 563

(1895); Thompson v. United States, 155 U.S. 271, 283

(1894); Gourke v. United States, 153 U.S. 183 (1893);

and Allen v. United States, 164 U.S. 492 (1894).

A 7 = 7 — >

ADDea = = LeAad -

ve of life and its voreservatl

- + i & & - ‘ - ~ = Lt + a &

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. : ~~ a 2 re ey a

the first qreat law or nature.

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snse, therefore, as l l justly

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— —— a a

. ce ae

r ,c nner nro -naY ~~ ry 7 c LI

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} s

} “Ff eK ~*.7 ~ +

7 ~ te tad “7 at o wW

a Pak - ‘ a Z 7 >. ia -

ing a Stat Tex

~ x

Lety. Reed Vv. ate, il Tex.

Anr C ) R39 23482869 3 foamnhac :

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United States v. Orris, 1 ;

7 y ~ ca . he -

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WV i ic 3

reason of self-defense, rightful,

not wrongful, i.e., is lawful,

there is no crime." Griffin v.

Martin, 785 F.2d 1183 (Murnaghan,

J.) (pending following rehearing

en banc).

The Ninth Amendment also recognizes that:

"There are additional fundamental

rights, protected from

governmental infringement which

exist alongside those fundamental

rights specifically mentioned in

the first eight constitutional

amendments." Griswold Vv.

Connecticut, 381 U.S. 479, 488

(1965) (per Justice Goldberg).

The right to privacy recognized in

Griswold would be a hollow guarantee if, in

a time of necessity, a person could not defend

herself from unlawful attacks without

subjecting herself to criminal prosecution.

This would be an unconscionable governmental

"invasion of [one's] indefeasible right of

personal security,” Boyd v. United States,

116 U.S. 616, 630 (1886), and would surely

sweep too broadly into an area of constitu-

tionally protected freedom.

Ultimately, the right of self-defense:

I lects a fundamental societ

nerception that in a slituatl

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where one person must ale, it

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oreferable that the innocent part

ee . e " ~ +

the non-aggressor, Survive. Not

} . : * ~ 7 £ Roos =

"The Constitutionality of Arfirm

tive Defenses After Patterson

7 “7 w “~ fm 1 a r .t7 re &

New YOrK, 8 Col. L. Rev. 655, 0

AS Q

) 4 —_

+ “~ > ~ " > 4 ” ~ “ee ha

- 4 - —— y a ‘ “ ~ vv

,Ziatean thea 7 ¢ —— ners

™ _ - » 4 Ad ~

anaerina it. Stoffer v. State,

oe E49 ° 4 T + = : f - roa

Gi, : . it wa | I I i

n > that Sixt rc t J 7e Mer

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state from eliminating t

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istification of self-daertense itr

- eaerimin | c,.7 na - OrTi) 3 rac -

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tate to prove as an element or ct

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-rimes of assault and homicide tn

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a =~ "

exists. Isaac v. Engle, 646 F.

, . » 7 ; ." - ny 4 a é

29, 1140 (6th Cir. 1980) (dl

rev'd on other grounds sub

nom, Engle v. Isaac, 4

As stated by the Fourth Circuit:

" - «+ it is elementary and

fundamental to our jurisprudence

that killing or wounding in self-

defense is simply no crime at all."

Sarah Thomas v. William D. Leeke,

725 F.2d 246, 250, n. 2 (4th Cir.

1984), cert. denied, 469 U.S. ,

105 S.Ct. 18, 83 L.E.2d 148 (1984).

Because self-defense is a

constitutionally protected right, one

exercising that right is engaged in innocent

conduct. To require an accused to bear the

burden of proof upon the issue of self-defense

is to require the accused to prove her

innocence in violation of the principles

enunciated in In re Winship.

II.

PROOF OF SELF-DEFENSE NECESSARILY

NEGATES SEVERAL INGREDIENTS OF THE

CRIME OF AGGRAVATED MURDER.

A. Mullaney and Patterson Analysis

Based upon Patterson and Mullaney, the

analysis appropriate to this case is:

(1) identify the elements of the crime

to be proven;

ub judice

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(4) self-defense does not negate any

elements of the offense with which

Ms. Martin was charged [id.].

The first three grounds for the decision

below are of little consequence. The mere

fact that the jury is instructed that the

State bears the burden of proof onall elements

beyond a reasonable doubt merely brings the

State in conformance with In re Winship.

Thus, this factor simply states the obvious.

Second, this Court has never held that

labeling a defense as an affirmative defense

allows the State to burden the defendant with

proving that defense. Certainly, such a

oroposition would elevate form over sub-

stance, a proposition soundly rejected in

Mullaney v. Wilbur, 421 U.S. at 699. MThis

Court has never adopted a view of the law

that would allow the use of labels to cir-

cumvent a functional analysis. Third, the

characterization of self-defense as a defense

peculiarly within the knowledge of the

defendant cannot justify placing the burden

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determine whether self-defense negates any

of its elements, this Court's decisions in

Mullaney and Patterson also establish that

the way in which those terms are interpreted

by the courts of the state is of importance.

For example, in Mullaney, the defendant

was charged with murder .1° The defendant

claimed first that he lacked the criminal

intent necessary for the crime and second

that the killing occurred in the “heat of

passon," thereby reducing the crime to

manslaughter. Id., at 685. The defendant

was burdened with proving that the killing

occurred in the heat of passion on sudden

provocation to mitigate the murder charge to

manslaughter. Id., at 687. See also Me.

Rev. Stat. Ann. Tit. 17 § 2551 (1964). Had

this Court only looked to the face of the

10. Me. Rev. Stat. Ann. Tit. 17, § 2651 (1964);

Mullaney v. Wilbur, 421 U.S. at 686, n. 3: “whoever

unlawfully kills a human being with malice

aforethought, either express or implied, is guilty

of murder and shall be punished by imprisonment for

life."

Maine murder statute, “heat of passion" would

have borne no relationship to any of the

elements required to be proven. This Court,

however, looked to Maine case law to determine

a more accurate view of the criminal intent

required for a murder conviction. In State

v. Lafferty, 309 A.2d 647 (Me. 1973), the

Maine Supreme Court held that = malice

aforethought was not an element of murder,

disputing an interpretation of Maine law made

by the Court of Appeals for the First Circuit

in originally granting the Writ of Habeas

Corpus. Rather, Lafferty held that a killing

is unlawful and constitutes murder upon proof

"of any deliberate, cruel act, committed by

One person against another, suddenly without

any, or without a considerable provocation.”

State v. Lafferty, 309 A.2d at 665.

Since absence of “heat of passion" was

to be proven by the State, this Court held

that the defendant could not be burdened with

proving that factor. While proof of heat of

passion merely red

ability, the Court nonetheless held that the

State could not burden the defendant with

; n T ~y

proving "heat of passion.” In reaching this

Crucial result, the Court relied heavily upon

A similar approach was taken in Patterson

where the defendant was charged with murder

in the second degree,ll The defendant

admitted the killing but defended on the

ground that he killed during an extreme

emotional disturbance. That defense miti-

gated the crime to manslaughter in the first

degree. In finding that the defendant could

be burdened with proving this defense, this

Court looked to New York case law. Based

upon that review, the Court held that "extreme

emotional disturbance" did not "serve to

ll. New York Penal Law, § 125.25 (McKinney 1975);

Patterson v. New York, 432 U.S. at 198, n. 2: “with

intent to cause the death of another person, he caused

the death of such person... .

Patterson v. New York, 432 U.S. at 206, citing

People v. Patterson, 39 N.Y.2d 288, 302; 347

N.E.2d 898, 383 N.Y.S.2d 573, 582 (1976).

Since this Cour*’.'s prior decisions in Leland

v. Oregon, 343 U.S. 790 (1952), and Rivera

Vv. Delaware, 429 U.S. 877 (1976),

unequivocally allowed the State to burden the

defendant with proving insanity, New York did

no more in Patterson than it was

constitutionally permitted to do. This Court

distinguished the result in Patterson from

that in Mullaney primarily upon the way in

which Maine had defined, in case law, the

necessary elements of murder. Since, under

Maine law, the absence of provocation was an

element of the crime, the State could not

charged.

Thus, Mullaney and Patterson indicate

that this Court should consider not only the

words contained in the homicide statute, but

also the case law which gives definition and

content to the proscribed cffense. At the

same time, both Mullaney and Patterson demon-

Strate that the ultimate conclusion as to

whether a given defense necessarily negates

an ingredient of the crime which the State

is required to prove is a matter of federal

law upon which this Court must exercise an

independent judgment. As articulated by the

Fourth Circuit:

"The labels attached by the state

legislature or supreme court are

not dispositive . . . and the

federal courts are to employ a

‘functional analysis' aimed at

determining whether the state has

in effect incorporated the absence

of the affirmative defens¢ into the

elements of the crime.

Indeed, as this Court recognized in McMillan

v. Pennsylvania, 0.8. , 54 U.S.L.W.

4709, 4711 (1986): ". .. in certain limited

Circumstances Winship's reasonable doubt

requirement applies to facts not formally

identified as elements of the offense

charged."

B. Self-Defense Negates Unlawfulness

By definition, an act must be “unlawful”

in order to justify the imposition of criminal

sanctions:

"It should be conceded, as an

axiomatic proposition that an

12. Cooper v. North Carolina, 702 F.2d 481, 484

(4th Cir. 1983) [citations omitted]. Accord: Adkins

v. Bordenkircher, 674 F.2d 279, 282 n. 6 (4th Cir.

1982). See also Lamb v. Jernigan, 683 F.2d 1332,

1335-1336 (llth Cir. 1982), and Holloway v. McElroy,

632 F.2d 605, 625, 628 (4th Cir. 1980), cert. denied,

451 U.S. 1028 (1981).

@ 23 «

indictment or information must,

in some manner, charge the

unlawfulness of the defendant's

conduct." Anno., 169 A.L.R. 166

(1947).

Thus, the mere allegation that a crime has

been committed is an allegation of

unlawfulness.

Historically, criminal homicide has been

defined as the "unlawful killing of a human

being . . ." I Warren on Homicide, § 54, p.

163 (1914). See also §§ 63, 64 and 68.

A review of Ohio law demonstrates that

the element of "“unlawfulness" has never

appeared in the Ohio first-degree murder

statute.l3 Yet, Ohio cases have consistently

required proof of unlawfulness in order to

13. Prior to 1880, the statute read as follows:

"That if any person shall purposely, and

of deliberate and premeditated malice, or

in the perpetration or attempt to perpe-

trate any rape, arson, robbery or burglary,

. - or by administering poison or causing

the same to be done, kill another... ."

Revised Statutes of 1854, 269; State v.

Farmer, 156 Ohio St. 214, 218, 102 N.E.2d

ll, 14 (1951); see also Robbins v. State,

8 Ohio St. 131, 175 (1857).

The statute was changed in 1880:

"Whoever, purposely and either of

deliberate and premeditated malice, or by

means of poison, or in perpetrating or

attempting to perpetrate rape, arson, rob~

bery or burglary, kills another... .

See General Code § 12400.

The statute was next changed in 1953:

"No person shall purposely, and either of

deliberate and premeditated malice, or by

means of poison or in perpetrating or

attempting to perpetrate rape, arson,

robbery, or burglary, kill another.”

R.C. § 2901.01 (Page's 1953), Ohio Revised

Code.

The statute reached its present state in 1974,

where two elements (deliberate and premeditated

malice) were replaced and the so-called "felony

murder" aspect was given its own subsection:

"(A) No person shall purposely, and with

prior calculation and design, cause the

- 25 «-

establish the crime of murder.14

From the above, it is evident this

(cont. )

death of another.

"(B) No person shall purposely cause the

death of another while committing or

attempting to commit, or while fleeing

immediately after committing or attempting

to commit kidnapping, rape, aggravated

arson or arson, aggravated robbery or

robbery, aggravated burglary or burglary

or escape.” Ohio Revised Code § 2903.01

(Page's 1974).

MS. Martin was charged with violating R.Cc.

§ 2903.01(A).

14. In Ohio v. Brooks, 1 Ohio Dec. Reprint 407 (uy.

Co. Common Pleas 1851), the court instructed the jury

as follows in a case of first-degree murder:

"(First], murder in the first degree, which

in general is an unlawful killing purposely

and of premeditated malice." Id. at 407

(emphasis added).

For a Civil case that defines murder as an unlawful

killing, see Filmore v. Insurance Co., 82 Ohio St.

208, 214, 92 N.E. 26 (1910).

Likewise, Ohio courts have held:

"The defendant in a hamicide case cannot

be required to establish his defense of

self-defense until the State has

established that the killing by him was an

unlawful killing . .." Taylor v. State,

- 26 -

judicial element of unlawfulness co-existed

with the element of malice. Prior to 1974,

when the element of malice existed, reviewing

courts consistently interpreted the two terms

differently and interpreted each to be

required. Thus, the presence or absence of

"malice" in the relevant statute has no effect

on the requirement of “unlawfulness." The

(cont. )

21 Ohio C.C. Dec. 602, syllabus 2 (1909)

(emphasis added). See also Wray v. State, 5

Ohic C.C. (N.S.) 437, 442 (1904)

(emphasis added).

"Murder in the first degree, he said, is

the intentional unlawful killing, by one

reasonable being of another, in the peace

of the state, of deliberate and premedi-

tated malice" (emphasis added). State v.

James Turner, Wright (Ohio Supreme Court

Decisions) 20, 27 (1831), questioned Fuller

v. State, 12 Ohio St. 431, 436 (1861).

"Tf the ‘intent to kill," under all the

circumstances of the transaction was

justifiable and lawful, for example, if in

lawful self-defense, the legislature could

not be held reasonably to intend to declare

it an offense. It is only where the intent

to kill was unlawful and wrongful that it

should be held to constitute acrime....

State v. Stout, 49 Ohio St. 270, 283-284,

30 N.E. 437, 440 (1892) (emphasis added) .

- 27 «

unlawfulness of the criminal act must always

be proven. Ohio courts have likewise held

that all Ohio citizens have a right to self-

defense which, if established, is a lawful

justifiable act.15

Furthermore, the Ohio Constitution

requires that all indictments allege that the

offense in question was against the "peace

and dignity of the State of Ohio." Article

IV, § 20, Ohio Constitution.1® This is not

a mere matter of form but rather a "clear

allegation that the acts done were unlawful."

Hamilton v. Alvis, 109 Ohio App. 298, 301,

160 N.E.2d 372, 374 (1959). The purpose of

the requirement was to provide:

15. Marts v. State, 26 Ohio St. 162, syllabus 2

(1875); State v. Champion, 109 Ohio St. 281, 284, 142

N.E. 141, 142 (1924); see also Graham v. State of

Ohio, 98 Ohio St. 77, 81-82, 120 N.E. 232, 233 (1918)

("lawful right of self-defense"); State v. Vancak,

90 Ohio St. 211, 214, 107 N.E. 511, 512 (1914); Stoffer

v. State, 15 Ohio St. at 51-52.

16. See also R.C. § 2941.06 and R.C. § 2941.10 (the

fact of the indictment constitutes an allegation that

no legal excuse exists for the act).

= 26 «

"([A] sufficient and uniform

conclusion to the allegations of

fact constituting the charge."

State v. Stapely, 19 Ohio Dec. 110,

111 (Hamilton Cty. Common Pleas Ct.

1908) (emphasis added). See also

State v. Nieto, 101 Ohio St. 409,

428, 130 N.E. 663, 668 (1920)

(Wanamaker, J., dissenting on other

grounds).

In the case at bar, the indictment

against Petitioner Martin contains the speci-

fic allegation that her conduct was "unlawful"

and against the "Peace and Dignity of the

tate of Ohio” (A. 23).

The instructions given in the case at

bar paralleled this common-law view and

required the jury to find that:

"the defendant unlawfully and

purposely and with prior calcul-

ation and design, caused the death

of another..." (emphasis added)

(Transcript at 686, A. 13).

Thus, the State must necessarily admit that

it was required to prove, beyond a reasonable

doubt, that the accused's conduct was

unlawful.

The relevant question, then, becomes

whether self-defense is inconsistent with

- 29 -

unlawful conduct. The case law of Ohio

uniformly recognizes that proof of self-

defense is proof of innocence and hence

inconsistent with guilt. E.g., Silvus v.

State, 22 Ohio St. 90 (1871), cited with

approval in State v. Humphries, 51 Ohio St.

2d 95, 98, 364 N.E.2d 1354, 1357 (1977).17

In his dissent, Judge Jackson of the

Eighth District Court of Appeals indicated

that: "Historically, self-defense has been

considered to negate the unlawfulness ele-

ment" (A. 16) (citations omitted). As Justice

17. In English common law, a distinction was made

between justifiable and excusable homicide.

Blackstone, Commentaries on the Laws of England 177-

178 (1783). Justifiable homicide carried no

penalties, while excusable homicides resulted in the

forfeiture of the slayer's lands. The concept of

forfeiture, being foreign to American law, was

discarded and the distinction between justifiable and

excusable self-defense, however slight originally,

disappeared. I Bishop, A Treatise on Criminal Law,

§ 865, 2, p. 614 (9th ed. 1982); IT Bishop, supra, §

617, 2, p. 471; Erwin v. State, 29 Ohio St. 186 (1876).

Under Ohio law, all actions taken in self-defense are

justifiable, lawful acts done without criminal

intent. E.g., Erwin v. State, supra, at 194-199,

See also LaFave & Scott, Handbook on Criminal Law, §

53 at 391 (1972).

Clifford F. Brown, of the Ohio Supreme Court,

noted in his dissent:

"For more than a century, self-

defense has been considered to

negate the element of unlawfulness

which must be present in order to

convict a defendant of aggravated

murder." State v. Martin, 21 Ohio

St.3d 91, 93, 488 N.E.2d 166, 171

(1986) (citations omitted) (A. 45).

The decisions of other state and federal

courts considering this issue have

consistently found self-defense to be

inconsistent with unlawfulness./8

"Self defense annihilates

unlawfulness and malice and

consequently absence of it must be

proven by the prosecution beyond a

reasonable doubt." Griffin v.

Martin 785 F.2d at1182 (Murnaghan,

J.) (pending following rehearing

18. E.g., McElroy v. Holloway, 632 F.2d 605 (5th

Cir. 1980), cert. denied, 451 U.S. 1028, (1981); State

v. Hankerson, 288 N.C. 632, 220 S.E.2d 575 (1975),

rev'd on other grounds sub nom. Hankerson v. North

Carolina, 432 U.S. 233 (1977); Commonwealth v.

Hilbert, 476 Pa. 288, 300, 382 A.2d 724, 731 (Pa.

1978). See also cases outlined in the Appendix to

this Brief at A-l.

en banc) .+9

Indeed, the jury instructions ir

very case inferentially indicated the

Sistency: if the accused was found t

acted in self-defense, then no crime »w

committed and a verdict of not guilty wa

be returned.

In Ohio Revised Code § 2901.05(A),

has adopted its common-law rule requiring

accused to bear the burden of proving a clain

of self-defense. This rule was justified by,

Ohio courts at common law, however, becaus:

every killing was presumed to be unlawful.

See Silvus v. State, 22 Ohio St. 90 (1871);

State v. Robinson, 161 Ohio St. 213 (1954);

State v. Kinnemore, 34 Ohio App.2d 39 (1972).

19. See aiso White v. Arn, 788 F.2d 338, 347, n.

14 (6th Cir. 1986) (Petition for Writ of Certiorari

pending) :

"([iJ£ unlawfulness were a statutory element

of crimes in Ohio, then self-defense would

negate the element and consequently the

burden of proof could not be placed upon

the accused" (emphasis added).

This common-law presumption of

unlawfulness is still a part of Ohio law.

This is evident from the Ohio Supreme Court's

decision in this case. The Court character-

ized the affirmative defense of self-defense

as a “justification for admitted conduct"

which "seeks to relieve the defendant from

culpability rather than negate an element of

the offense charged." Martin, 21 Ohio St.2d

at 94. See also Thomas v. Arn, 704 F.2d 865,

877 (6th Cir. 1983).20

Thus, under Ohio law, unlawfulness

(i.e., a crime) is to be presumed from proof

of the elements of the offense, despite the

fact that the accused may have acted in self-

defense. In other words, a lawful act of

self-defense is presumed to be unlawful unless

20. "{Ohio Revised Code § 2901.05(C)(2)'s] use of

the terms ‘excuse’ and ‘justification’ strongly

implies that a criminal offense has been

committed—-i.e., that all elements of a crime have

been proven beyond a reasonable doubt and that the

perpetrator will be criminally liable unless an

‘excuse’ or 'justification' is presented." But see

fn. 17, supra.

- 33-

the accused establishes his innocence. See

Note, "H. B. 1168: The Burden of Proving An

Affirmative Defense," 5 U. Dayton L. Rev.

441, 458 (1980).

At the same time, Ohio's high court

refuses to acknowledge that self-defense is

inconsistent with the fact that a crime

(unlawfulness) has occurred. See Stata v.

Martin, 21 Ohio St.3d at 94 ("The elements

of the crime and the existence of self-defense

are separate issues"). Indeed, a plea of

self-defense plainly denies, rather than

admits, that a crime has occurred.

Amicus submits that the State of Ohio

cannot have it both ways. Either self-defense

negates the elements of the crime (i.e.,

unlawfulness), as it did at common law, or

it does not. If it does, the State's burden

is clear. See Patterson v. New York, 432

U.S. 197 (1977). If it does not, then the

State should not get the benefit of the common-

law presumption of unlawfulness (i.e., that

a crime has been committed) from the fact

that a killing has occurred; and thereby shift

the burden of proof to the accused to prove

otherwise. See Patterson, 432 U.S. at 215;21

accord, Mullaney v. Wilbur, 421 U.S. 684

(1975) .22

Moreover, Ohio's utilization of this

presumption of unlawfulness violates tra-

ditional due process requirements’ for

presumptions. It satisfies neither the

rational connection test, i.e., the presumed

fact must more likely than not flow from the

proven fact, Leary v. United States, 395 U.S.

6, 36 (1969); or the beyond a reasonable doubt

test, i.e., proven fact must be sufficient

to support inference of presumed fact beyond

a reasonable doubt, Barnes v. United States,

21. "(The State] may not shift burden of proof to

the defendant by presuming [an] ingredient of the

offense upon proof of the other elements [of the

offense] ."

22. Presumption of malice from proof of an unlawful

and intentional killing, unless accused proved he

acted in heat of passion, is unconstitutional.

- 35 -

412 U.S. 837, 843 (1973).23 See Mullaney,

421 U.S. at 702, n. 31. There is simply no

basis in either logic or experience to infer

that an accused acted unlawfully from mere

proof of a killing. See Model Penal Code,

Comment to Section 1.13 (Tent. Draft No. 4,

1955) ("No one can estimate the probability"

that "an intentional homicide .. . was or

was not committed in self-defense"). There-

fore, Ohio's continued reliance upon this

common-law presumption of unlawfulness to

shift the burden to the accused to prove her

act lawful violates due process.

a3 Amicus submits that Onio's presumption of

unlawfulness must satisfy the beyond a reasonable

doubt test as it is a mandatory presumption. See

Francis v. Franklin, 471 U.S. , 85 L.Ed.2d 344,

353 (1985) (mandatory presumption is one jury must

infer if state proves certain predicate facts);

accord, Sandstrom v. Montana, 442 U.S. 510 (1979).

Ohio's presumption of unlawfulness is mandatory

because it is established upon proof of the elements

of the offense even though the defendant may have

acted lawfully in self-defense.

C. Self-Defense Negates Criminal Conduct

It is axiomatic that the State can only

punish criminal conduct. E.g., Robinson v.

California, 370 U.S. 660 (1962); Powell v.

Texas, 392 U.S. 514 (1968). It has been held

since the 1600s that killing another in self-

defense is conduct which is justified--no

crime has been committed. Mullaney v. Wilbur,

421 U.S. at 692. This has always been the

law in Ohio. E.g., Marts v. State, 26 Ohio

St. 162 (1875) (Syllabus 2), cited with

approval, State v. Melchior, 56 Ohio St.2d

15, 21, 381 N.E.2d 195, 199 (1978).

The State of Ohio recognized this

requirement and made allegations of criminal

or unlawful conduct against Petitioner

Martin. Like alibi, e.g., Stump v. Bennett,

398 F.2d 111 (8th Cir. 1978), cert. denied,

393 U.S. 1001 (1968); Johnson v. Bennett, 393

U.S. 253 (1968), and even more so than by

accident, e.g., State v. Rivers, 50 Ohio

App.2d 129, 134, 361 N.E.2d 1363, 1367 (1977),

- 37 «

self-defense establishes that the accused

committed no crime at all. Marts v. State,

26 Ohio St. 162 (1875).

"Killing . . . by one acting in

self defense against an attack by

another is not a crime." State v.

Jones, 47 Ohio App.2d 8, 14; 351

N.E.2d 798, 803 (1975).

Accord, State v. Clifton, 32 Ohio App.2d 284,

290 N.E.2d 921, 922-23 (1972).

Even under the erroneous preponderance

standard, if the jury "finds" self-defense,

there "must be an entire acquittal ...."

Erwin v. State 29 Ohio St. at 199.

In Mullaney, it was found to be

constitutional error to require the accused

to prove a fact which negated only a single

element of the crime and which made a dif-

ference only as to the seriousness of the

offense of which the accused was guilty.

Mullaney should apply to the case at bar a

fortiori, where proof of self-defense would

negate the entire crime and establish complete

innocence.

D. Self-Defense Negates the Voluntary Act

Requirement

The voluntary act element set forth in

R.C. § 2901.21(A) is defined by exception.

R.C. § 2901.21(C)(2) provides that:

"Reflexes, convulsions, body

movements during unconsciousness

or sleep, and body movements that

are not otherwise a product of the

actor's volition, are involuntary

acts.

A claim of self-defense negates the voluntary

act element. Acts while defending one's self

are not a product of the actor's volition.

The reaction to an unlawful attack may very

well be reflexive. Surely, “detached reflec-

tion cannot be demanded in the presence of

an uplifted knife," Brown v. United States,

256 U.S. 335, 343 (1921), and the urge for

self-preservation in the face of imminent

peril may supersede any capacity of the

besieged victim to control her actions. This

is so because actions taken in self-defense

are based upon "the ‘instinct’ for self-

preservation and arise ‘'spontaneously.‘”

- 39 -

Stoffer v. State, 15 Ohio St. at 52-53. In

this sense Ms. Martin's conduct was not

"willed," Holmes, The Common Law 54 (1881),

and cannot be considered a completely

voluntary act within the meaning of Ohio's

statutory requirement.

This was the exact conclusion reached

by the Ohio Court of Appeals in State v.

Hardy, 60 Ohio App.2d at 329; 397 N.E.2d at

776 (1978):

"A legitimate act of self defense

is much more a mere reflex action

than one committed voluntarily"

(emphasis added).

E. Self-Defense Negates Both General

Intent and the Specific Intent of

Prior Calculation and Design.

1. General Intent. For crimes which

are considered mala in se, it is generally

recognized that the state must prove both

mens rea and actus reus. See generally Lambert

v. California, 355 U.S. 285 (1975), and Powell

v. Texas, 392 U.S. 514 (1968).

"Criminal liability is normally

based upon the concurrence of two

factors, ‘an evil-meaning mind

[and] an evil-doing hand... .

United States v. Bailey, 444 U.S.

394, 402 (1980), quoting Morissette

v. United States, 342 U.S. 246, 251

(1951).

Or, in the words of Justice Holmes, criminal

liability is founded on "“blameworthiness."

Holmes, The Common Law 50 (1881).24

The Legislature of the State of Ohio

required proof of general mens rea, for the

Legislative Committee Note to R.C. § 2901.22

states that for conviction there must be a

"blame-worthy” mental state--a "guilty state

of mind." Similarly, the Committee Comment

to Ohio Revised Code § 2901 states that an

essential part of any crime must be "a certain

guilty state of mind at the time of his act

or failure."

24. "“(T]Jo constitute a crime against human laws,

there must be first a vicious will, and second, an

unlawful act consequent upon such vicious will.” 4

Blackstone, Commentaries on the Laws of England, Ch.

21, p. 289 (1783), quoted with approval, 27 Ohio Jur.

2d, Homicide, § 6, pp. 557-8 (1957). See also State

v. Carson, 2 Ohio Dec. Reprint 81, 82 (Hardin Cty.

C.P., 1859): "Guilty knowledge is generally, and

criminal intent always, necessary to constitute

» 41 «

A person who acts in lawful self-defense

Cannot be said to have a state of mind which

is either "blame-worthy" or “guilty.” On the

contrary, proof of self-defense would dis-

prove the existence of such a state of mind.

For example, in State v. Clifton, 32 Ohio

App.2d at 286, 287; 290 N.E.2d at 923, the

Court concluded that: "Clearly, one who kills

in self-defense does so without the mens rea

that otherwise would render him culpable of

the homicide."

Judge Whiteside, of the Ohio Court of

Appeals, has found that:

",. .. the existence or nonexistence

of self-defense bears a direct

relationship to the existence or

nonexistence of the required mental

elements of the crime [of aggra-

vated murder]. State v. Robinson,

48 Ohio App.2d 197, 206, 209; 356

N.E.2d 725, 721 (1975) (Whiteside,

concurring), affirmed on other

grounds, 47 Ohio St. 103, 351 N.E.2d

88 (1976).

(cont. )

crime” [jury charge].

As Justice Sweeney noted in his dissent below:

"The affirmative defense of self-defense...

goes to the mens rea of the crime charged,

whether the act committed was indeed a crim-

inal act." State v. Martin, 21 Ohio St.3d at

96 (A. 43-44).

Applying similar reasoning, former Chief

Judge Edwards of the Sixth Circuit found:

"Criminal intent of aggravated

assault and self-defense are, in

my view, completely irrecon-

cilable. To require a defendant

to carry the burden of proof on

self-defense is to require him to

disprove criminal intent”

(footnote omitted). Isaac v.

Engle, 646 F.2d at 1136.

Proof of self-defense negates the mental

element of the crime of aggravated murder.

Burdening Ms. Martin with proving self-

defense deprived her of her Fourteenth

Amendment right to require the state to prove

her guilt beyond a reasonable doubt.

2 Prior Calculation and Design.

Petitioner Martin was convicted of aggravated

murder, under R.C. § 2903.01. A critical

- 43 -

element of this offense is "prior calculation

and design." Saddling the Defendant with the

burden of proving self-defense relieved the

State of its constitutionally mandated burden

of proving this element. The conflict between

the two is irreconcilable.

The Ohio Supreme Court has interpreted

the elements of "prior calculation and design"

to require greater thought and control on the

part of the defendant than the previously

utilized elements of "premeditation and

deliberation."

“Instantaneous deliberation is not

sufficient to constitute prior

calculation and design."

"Where evidence adduced at trial

reveals the presence of sufficient

time and opportunity for the plan-

ning of an act of homicide to

constitute prior calculation, and

the circumstances surrounding the

homicide show a scheme designed to

implement the calculated decision

to kill, a finding by the trier of

fact of prior calculation and

design is justified." State v.

Cotton, 56 Ohio St.2d 8, FGF 2 and

3 of the Syllabus; 381 N.E.2d 186

(1978) .29

Thus, under Ohio law, if the Petitioner

acted solely upon the instantaneous decision

to preserve her own life, that fact would

negate the element of "prior calculation and

design.” This dichotomy between self-defense

and prior calculation and design was aptly

demonstrated by the jury instructions below.

The trial court instructed the jury that

prior calculation and design cannot be found

when a defendant “acts on the spur of the

moment or after momentary consideration of

~ the purpose to kill” (T. 690; A. 14), yet

self-defense demands "an honest belief...

in imminent danger of death or serious bodily

harm" (T. 700; A. 19), a belief that the

defendant is about to be killed or to receive

25. See also Legislative Service Commission Note

to R.C. § 2903.01 (1973).

- 45 «-

acts to escape an imminent threat of death

or serious bodily harm can be grounds for

acquittal. If the imminence of the threat

dissipates, and the defendant is "released

from the danger, ... the right to use force

in self-defense [is] ended" (T. 702; A. 21

Self-defense thus cannot co-exist with prior

calculation and design.

"Acting on the spur of the moment

or after momentary consideration

of the purpose to kill is not

sufficient to constitute the kind

of prior calculation and design

required for aggravated murder."

(T. 690-691; A. 14)

A killing resulting from an instantaneous

eruption of events "is not one with prior

calculation." State v. Robbins, 58 Ohio St.2d

26. “Imminent danger" in this context is further

defined in Black's Law Dictionary (Rev. Fourth Ed.

1968), as "immediate danger, such as must be instantly

met, such as cannot be guarded against by calling for

the assistance of others or the protection of the

law. Or, .. . such an appearance of threatened and

impending injury as would put a reasonable and prudent

man to his instant defense" (emphasis added).

74, 78 (1979) .27 Yet, an act in self-defense

necessarily occurs on the spur of the moment,

arising spontaneously in the face of an

imminent danger. Stoffer v. State, 14 Ohio

St. at 52-53. It is an instantaneous eruption

of events, presenting no opportunity to avoid

the danger. State v. Robbins, 58 Ohio St.2d

at 80. The force used by the defender is

"immediately necessary for the purpose of

protecting [her]self.” Model Penal Code

§ 3.04, p. 478 (1974) (emphasis added).

To prove the element of prior calculation

and design, the prosecution necessarily must

demonstrate that the defendant's act was not

on the spur of the moment (T. 690; A. 14).

27. The trial court further instructed the jury

that prior calculation and design requires "a

definite process of reasoning in advance of the

killing, which . . . must have included a mental plan,

involving studied consideration of the method and the

means with which to kill another." (T. 690; A. 14)

See also Legislative Service Commission Note to R.C.

§ 2903.01 (1983), requiring "studied care in plannina

or analyzing the means of the crime, as well as a

scheme encompassing the death of the victim"

(emphasis added). Prior calculation and design is

wholly incompatible with self-defense.

- 47 «

By obliging the defendant to prove she acted

in the belief that she was “in imminent

danger," about to be killed or to receive

great bodily harm (T. 701; A. 20), the Ohio

trial court demanded that Earline Martin prove

she acted on the spur of the moment. The

trial court's instruction thus required her

to disprove the essential element of prior

calculation and design, and her conviction

is violative of due process.

The Ohio Supreme Court stated that

Appellant did not dispute the existence of

these elements, including prior calculation

and design. This is inaccurate. [In fact,

the Ohio Supreme Court did not independently

analyze the relationship between self-defense

and the elements of offenses.

The Ohio Supreme Court instead attempted

to rely on the characterization of self-

defense in State v. Poole, 33 Ohio St.2d 18,

19, 294 N.E.2d 888, 889 (1973), as a defense

which “admits the facts claimed by the prose-

cution." Such reliance is misplaced. Poole

involved the defense of accident, not self-

defense, to a charge of the first degree under

the previous murder statute, and simply

identified self-defense as such a defense in

passing. State v. Poole, 33 Ohio St.2d at

19, n. 3. More importantly, all of the cases

which Poole cited in support of this

characterization, and Poole itself, were

decided before the element of prior

calculation and design was legislatively

identified and defined. Therefore, Poole

has no relevance in the determination of the

relationship between self-defense and prior

calculation and design.

Petitioner Martin is not asking this

Court to substitute its own reading of the

term 'prior calculation and design’ for that

of the Ohio legislature or the Ohio courts.

The meaning of the term is evident in both

the Legislative Service Committee notes and

- 49 -

Ohio decisions. The inconsistency between

"prior calculation and design" and self-

defense is evident upon the face of the jury

instructions in the case at bar. Since prior

calculation and design and self-defense so

obviously negate one another, the principles

of Mullaney and Patterson require that the

judgment of the Ohio Supreme Court be

reversed.

Sandstrom v. Montana, 442 U.S. 510

(1979), and Francis v. Franklin, 471 U.S.

__, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985),

also warrant a reversal of Defendant Martin's

conviction. "A jury's verdict cannot stand

if the instructions provided the jury do not

require it to find each element of the crime

under the proper standard of proof." Cabana

v. Bullock, U.S. ___, 106 S.Ct. 696, 88

L.Ed.2d 704, 715 (1986) (citing Sandstrom).

While the jury received general

instructions as to the prosecutor's burden

(T. 676, 686-7, 692-693; A. 6, 12, 15), and

the presumption of innocence (T. 676-677; A.

6-7), the jury was also specifically

instructed that the burden of proof is upon

the Defendant to prove the elements of self-

defense by a preponderance of the evidence

(T. 699-700, 703; A. 19-20, 21). Prior

calculation and design and self-defense are

simply irreconcilable circumstances. Ms.

Martin's jury was thus faced with clearly

contradictory instructions respecting allo-

cation of the burden of persuasion ona crucial

element of the offense, prior calculation and

design. Such “contradictory instructions as

to [an element] create a reasonable likelihood

that a juror understood the instructions in

an unconstitutional manner," Francis v.

Franklin, 105 S.Ct. at 1976, shifting the

burden of proof from the prosecution to

- 51 -

Defendant Martin. 28

Informing the jury at several pcints

28. While Sandstrom and Francis both presented

instances of unconstitutional burden-shifting by

means of a presumption, the same due process test of

"the way in which a reasonable juror could have

interpreted the instruction" Sandstrom v. Montana,

442 U.S. at 514, must apply to jury instructions

which, by other devices, are challenged as having the

effect of relieving the state of the burden of proof

enunciated in Winship. This test applies regardless

of the device used. "It has been settled law since

Stromberg v. California, 283 U.S. 359 (1931), that

when there exists a reasonable possibility that the

jury relied on an unconstitutional understanding of

the law in reaching a guilty verdict, that verdict

mast be set aside." Francis v. Franklin, 105 S.Ct.

at 1976, n. 8. The Stromberg principle clearly

applies to other burden-shifting devices, although

the Court has not yet had an occasion to apply it in

a non-presumption context. The issue was presented

in Patterson. Although this Court concluded its

opinion with the statement that “nothing was presumed

or implied against Patterson,” Patterson v. New York,

432 U.S. at 216, this Court had granted review in the

absence of a presumptive device to consider whether

"burdening the defendant in a New York State murder

trial with proving the affirmative defense of extreme

emotional disturbance as defined by New York law"

offended the constitution. Patterson v. New York,

432 U.S. at 198. The Court sustained Patterson's

conviction as no burden-shifting occurred as to an

element of the crime because the affirmative defense

bore no direct relationship to any element of murder.

Patterson v. New York, 432 U.S. at 201.

The Court's recent opinion in Cabana v. Bullock,

__ U.S. ___, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986),

demonstrates the Court's continued application of the

Stromberg test to all circumstances where jurors may

have been led to unconstitutional, or constitu

- $2 «

that the prosecutor must prove. prior

calculation and design beyond a reasonable

doubt does not cure the due process violation.

These instructions at best contradicted the

allocation to the aGefendant of the burden of

proof on self-defense. See Francis v.

Franklin, 105 S.Ct. at 1975, 1976, and see

also Cabana v. Bullock at 714-715, n. 2. No

instructions were provided the jury that would

lead them to reconcile the conflicting

instructions in a constitutionally permis-

sible manner.

(cont. )

tionally inadequate, decision-making. In Bullock,

the Court used the Stromberg test in ascertaining

whether the capitally sentenced Bullock had been

found by the jury to have actually killed, attempted

to kill or possessed the intent to kill the victim

as required by the Eighth Amendment. See Enmund v.

Florida, 458 U.S. 782 (1982). The Court found that

a “fair-minded juror . . . could have understood [the

jury instructions] to mean that the jury could find

Bullock guilty of capital murder without regard to

his intent." Cabana v. Bullock, 88 L.Ed. 2d at 714.

Bullock involved no presumptions, nor burden-

shifting, yet the Court applied the Stromberg

analysis. That same analysis should apply here to a

non-presumptive, but burden-shifting, instruction.

» $3 -

The burden-shifting was repetitive and

permeated the entire charge. The conflict

was inherent throughout the instructions.

While the jurors were told to resolve

inferences equally consistent with guilt or

innocence in favor of the Defendant (T. 681;

A. 8), they were at the same time specifically

told to convict if the evidence regarding

self-defense was in equipoise (T. 703-704;

A. 21). On these instructions, the jurors

were informed that the state had the burden

to prove prior calculation and design beyond

a reasonable doubt but what the jurors were

not explicitly told was that self-defense

could provide that reasonable doubt. Indeed,

a reasonable juror may well have believed

that Earline Martin had to prove the absence

of prior calculation and design by a

preponderance of the evidence to be

acquitted. 29

Finally, the instructions created

confusion by yet another conflicting duty.

The jurors were instructed: "Before you can

find the Defendant guilty of aggravated

murder, you must find beyond a reasonable

that on or about the 2lst day of July, 1983,

and in Cuyahoga County, Ohio, the Defendant

unlawfully and purposely and with prior

29. The jurors received a written copy of the

instructions (T. 686; A. 11), and therefore had the

opportunity to review them. It is possible that same

jurors may have disagreed with the judge's instruc-

tions that the Defendant must prove her innocence,

i.e., that her act was in self-defense. However, it

is highly unlikely that such disagreement would have

influenced deliberations. The first instruction the

jury received was that it was their sworn duty to

apply the law as given, and that they “are not

permitted to change the law, not to apply your own

ideas of what you think the law ought to be" (T. 673;

A. 4). One of the last instructions the jury received

was that they “not invad[e] [the judge's] area, which

is relative to the law (T. 705; A. 22). The jury was

also repeatedly admonished not to be "swayed or

influenced by considerations such as sympathy” (T.

673; A. 4-5, and see 704; A. 22). Therefore, even

if some jurors were possibly unhappy with the law's

allocation of burden, they were not permitted the

Opportunity to act on those concerns.

= §§ -

calculation and design, caused the death of

another .. ." (emphasis added) (T. 686; A.

12). The jury was told there was a right of

self-defense (T. 702; A. 20-21) and that an

act performed in self-defense is "justified"

(T. 699, 700; A. 19, 20).

Therefore, the jurors were directed that

the prosecution must prove that her act was

unlawful, and yet Ms. Martin had to prove her

act was justified, i.e., lawful. These

instructions are irreconcilable, and a

reasonable juror might well reconcile the two

by placing the burden of proof on the Defendant

to prove her act lawful. This interpretation

offends due process, and this Court cannot,

on this record, be assured this path was not

taken.

IIttl.

DUE PROCESS REQUIRES THAT THE

STATE BEAR THE BURDEN OF PROVING

BEYOND A REASONABLE DOUBT THAT THE

ACCUSED ‘S ACTIONS WERE UNLAWFUL AND

NOT IN SELF-DEFENSE.

It is axiomatic that the State may not

convict and punish an accused for a crime

unless it has proved his guilt beyond a

reasonable doubt. In re Winship, 397 U.S.

358 (1970). This fundamental due process

standard was not met in the instant case.

The State was not required to prove that Ms.

Martin's actions were unlawful and consti-

tuted a crime. On the contrary, Ms. Martin

was required to prove that she acted lawfully

in self-defense.

In Winship, 397 U.S. at 363-364, this

Court identified several vital interests pro-

tected by the reasonable doubt standard: the

liberty and good name of the accused; reducing

the risk of convictions based on factual

error; and commanding the respect and confi-

dence of the community in applications of the

- 87 «

ee |

criminal law. As in Mullaney v. Wilbur, 421

U.S. at 700, these interests are implicated

to a greater degree here. Ms. Martin faced

a life sentence and stigmatization as a

murderer if convicted. If acquitted, she

would be set free. Both the consequences to

Ms. Martin and the community's interest in

seeing only the guilty punished required that

the State prove that she acted unlawfully.

Moreover, requiring Ms. Martin to prove

the critical fact in dispute--whether or not

she acted in self-defense--increased the

likelihood of an erroneous conviction. Id.,

at 701. This Court held in Mullaney that:

"[sluch a result contravenes the

principle articulated in Speiser

v. Randall, 357 U.S. 513, 525-526

(1958):"

'{w]here one party has at stake

an interest of transcending

value--as a criminal defendant

his liberty--th{e] margin of

error is reduced as to him by

the process of placing on the

[prosecution] the burden...

of persuading the factfinder

at the conclusion of the trial

. . -" See also In re Winship,

= $8 -

397 U.S. at 370-372 (Harlan,

J., concurring). Id.