Appeal from the United States District Court for the Eastern District of Wisconsin. No. 80 C 983 -- Robert W. Warren, Judge.
Before CUDAHY and ESCHBACH, Circuit Judges, and SWYGERT, Senior Circuit Judge.
SWYGERT, Senior Circuit Judge. James Lee Lampkins appeals from the district court's denial of his petition for habeas corpus. First, he seeks to distinguish our holding in Pigee v. Israel, 670 F.2d 690 (7th Cir. 1982), cert. denied, 459 U.S. 846, 103 S. Ct. 103, 74 L. Ed. 2d 93 (1982), which held that Wisconsin's standard presumptive intent instruction did not violate Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979). Second, Lampkins argues that Wisconsin's standard party-to-a-crime instruction violates his right to a unanimous jury verdict.
The opinion of the Wisconsin Supreme Court in Lampkins v. State, 51 Wis. 2d 564, 187 N.W.2d 164 (1971), and of the district court, Lampkins v. Gagnon, 539 F. Supp. 359 (1982), set forth the facts surrounding Lampkins' and two codefendants' convictions of armed robbery, attempted murder, and murder arising from a 1968 holdup of a grocery store. During the course of the holdup, Lampkins shot and wounded an employee of the store. After the shot was fired, Lampkins twice asked the employee, "I didn't hit you, did I?" Also, during the course of the holdup, a companion of Lampkins became involved in a tussle with a customer and shot him with a sawed-off shotgun. None of the defendants offered any direct evidence at trial.
We agree with the district court's implicit decision to find meritless defendants' many arguments of procedural default. At the time Lampkins filed this federal habeas petition, it was clear that pursuit of his claims in state court would be futile. See Holland v. State, 91 Wis. 2d 134, 280 N.W.2d 288 (Wis. Sup. Ct. 1979), cert. denied, 445 U.S. 931, 63 L. Ed. 2d 764, 100 S. Ct. 1320 (1980) (non-unanimity aspect of party-to-a-crime instruction does not violate state or federal law); Muller v. State, 94 Wis. 2d 450, 468-69, 289 N.W.2d 570, 582-84 (Wis. Sup. Ct. 1980) (presumptive intent instruction does not violate state or federal law). Any doubt as to futility has been removed by State v. Giwosky, 109 Wis. 2d 446, 452-55, 326 N.W.2d 232, 235-38 (Wis. Sup. Ct. 1982) (unanimity).
Additionally, Lampkins's failure to object at his trial to the jury instructions challenged here does not prevent federal habeas review of his petition. Wisconsin does not apply its contemporaneous objection rule as an absolute bar to challenges to the constitutionality of jury instructions. See Lambert v. State, 73 Wis. 2d 590, 607, 243 N.W.2d 524, 532 (Wis. Sup. Ct. 1976). See also Virgil v. State, 84 Wis. 2d 166, 188-91, 267 N.W.2d 852, 863-66 (Wis. Sup. Ct. 1978) (failure to object to plain errors will not foreclose review); Lee v. State, 65 Wis. 2d 648, 653, 223 N.W.2d 455, 457 (Wis. Sup. Ct. 1974) ("the rule... is not a penalty for oversight or inadvertence"). Most significantly, the Wisconsin Supreme Court in Muller v. State, supra, 94 Wis. 2d at 468, 289 N.W.2d at 579, reached the merits of the presumptive intent instruction challenge although Muller's counsel did not object at trial. See also State v. Giwosky, supra, 109 Wis. 2d at 451 n.3, 326 N.W.2d at 235 n.3 (Although there was no objection at trial, merits of a unanimity challenge to a jury instruction reached.).
We turn first to Lampkins's challenge to Wisconsin's presumptive intent instruction. Lampkins argues that four aspects of his trial distinguish his case from Pigee, supra. First, neither Lampkins nor his codefendants testified or offered any direct evidence. Pigee testified as to his intent and presented other witnesses in support of his theory. See Pigee v. Israel, 503 F. Supp. 1170, 1171 (E.D. Wis. 1980). Lampkins argues that this distinction is critical; the Pigee court indicated that the instruction was permissible in that case because the instruction explicitly indicates that the defendant can rebut the presumption with any evidence of any circumstances, 670 F.2d at 695, and Pigee testified.
We disagree. The crime was a simple one and the evidence was not complex or contradictory. The state's witnesses provided ample testimony supporting Lampkins's theory of the case. Witnesses testified that the killing occurred during a tussle between Lampkins's codefendant and the customer. Others testified that after Lampkins fired the shot, he twice asked, "I didn't hit you, did I?" This testimony provided the evidence of circumstances which rebutted the presumption of intent.It, therefore, removes any possibility that the jury would believe that Lampkins had the burden of persuasion on the issue of intent to kill. See Pigee, 670 F.2d at 695.
Second, Lampkins argues that his jury was more likely to be confused about Wisconsin's rules concerning intent than the Pigee jury. Pigee's jury received only instructions concerning attempted murder. 670 F.2d at 691-92. Lampkins's jury, however, received intent instructions in three different contexts. On the armed robbery count the jury was not given the presumptive intent instruction. On the third-degree murder and conspiracy counts, the jury was given the presumptive intent instruction, but the jury was directed to make an objective determination of whether a particular result is a natural and probable consequence of a particular act. In contrast, on the party-to-a-crime and first-degree murder counts, the jury was given the presumptive intent instruction, but the jury was directed to make a subjective determination whether a particular result is a natural or probable consequence of a particular act.
This argument is also unconvincing. There was no need for the presumptive intent instruction in the armed robbery intent instructions, because the direct evidence supported only that conclusion. However, with respect to the conspiracy, first degree murder, party-to-a-crime and attempted murder counts, a permissive intent instruction was rational as an aid to the jury in weighing circumstantial evidence of intent. See Pigee, 670 F.2d at 695. We do not see the relevance in a Pigee analysis of the distinction between objective and subjective determinations of intended consequences.
A third distinction concerns the fact that the "deliberate acts" language of the presumptive intent instruction was found to be a critical distinction in Pigee. 670 F.2d at 694. Lampkins's jury was instructed that
... [the law] does not require that the intent to take human life shall exist for any particular length of time before the crime is committed or that the killing should have been brooded over, considered or reflected upon for a week, a day, an hour, or even for a minute. There may be no appreciable space of time between the formation of the intent to kill and the act of killing. If sufficient deliberation was had to form an intent to take life and to put that purpose ...