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    Linda Lou Barrier v. Aaron Johnson, Attorney General of The State of North Carolina, Respondent, 840 F.2d 10, 4th Cir. (1988)

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    This document is a court opinion from the United States Court of Appeals for the Fourth Circuit dismissing an appeal from Linda Lou Barrier, a North Carolina inmate seeking habeas corpus relief. The court finds that: (1) the trial court's jury instructions on use of hands as a deadly weapon, while improper, was harmless error; (2) there was sufficient evidence to support Barrier's conviction for second degree murder; and (3) her convictions for both felonious child abuse and second degree murder did not violate double jeopardy. Therefore, the appeals court dismisses Barrier's appeal and affirms the district court's denial of habeas relief.

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    Linda Lou Barrier v. Aaron Johnson, Attorney General of The State of North Carolina, Respondent, 840 F.2d 10, 4th Cir. (1988)

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    This document is a court opinion from the United States Court of Appeals for the Fourth Circuit dismissing an appeal from Linda Lou Barrier, a North Carolina inmate seeking habeas corpus relief. The court finds that: (1) the trial court's jury instructions on use of hands as a deadly weapon, while improper, was harmless error; (2) there was sufficient evidence to support Barrier's conviction for second degree murder; and (3) her convictions for both felonious child abuse and second degree murder did not violate double jeopardy. Therefore, the appeals court dismisses Barrier's appeal and affirms the district court's denial of habeas relief.

    Original Description:

    Filed: 1988-02-17 Precedential Status: Non-Precedential Citations: 840 F.2d 10 Docket: 87-6086

    Original Title

    Linda Lou Barrier v. Aaron Johnson, Attorney General of the State of North Carolina, Respondent, 840 F.2d 10, 4th Cir. (1988)

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    This document is a court opinion from the United States Court of Appeals for the Fourth Circuit dismissing an appeal from Linda Lou Barrier, a North Carolina inmate seeking habeas corpus relief. The court finds that: (1) the trial court's jury instructions on use of hands as a deadly weapon, while improper, was harmless error; (2) there was sufficient evidence to support Barrier's conviction for second degree murder; and (3) her convictions for both felonious child abuse and second degree murder did not violate double jeopardy. Therefore, the appeals court dismisses Barrier's appeal and affirms the district court's denial of habeas relief.

    Copyright:

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    Download as PDF or read online from Scribd
    Download as pdf
    92 views3 pages

    Linda Lou Barrier v. Aaron Johnson, Attorney General of The State of North Carolina, Respondent, 840 F.2d 10, 4th Cir. (1988)

    Uploaded by

    Scribd Government Docs
    This document is a court opinion from the United States Court of Appeals for the Fourth Circuit dismissing an appeal from Linda Lou Barrier, a North Carolina inmate seeking habeas corpus relief. The court finds that: (1) the trial court's jury instructions on use of hands as a deadly weapon, while improper, was harmless error; (2) there was sufficient evidence to support Barrier's conviction for second degree murder; and (3) her convictions for both felonious child abuse and second degree murder did not violate double jeopardy. Therefore, the appeals court dismisses Barrier's appeal and affirms the district court's denial of habeas relief.

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    of 3

    840 F.

    2d 10
    Unpublished Disposition

    NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of


    unpublished dispositions is disfavored except for establishing
    res judicata, estoppel, or the law of the case and requires
    service of copies of cited unpublished dispositions of the Fourth
    Circuit.
    Linda Lou BARRIER, Petitioner-Appellant,
    v.
    Aaron JOHNSON, Attorney General of the State of North
    Carolina, Respondent- Appellees.
    No. 87-6086.

    United States Court of Appeals, Fourth Circuit.


    Submitted Nov. 30, 1987.
    Decided Feb. 17, 1988.

    Linda Lou Barrier, appellant pro se.


    Richard Norwood League, Office of Attorney General, for appellees.
    Before DONALD RUSSELL and ERVIN, Circuit Judges, and
    BUTZNER, Senior Circuit Judge.
    PER CURIAM:

    Linda Lou Barrier, a North Carolina inmate, seeks to appeal the district court's
    denial of habeas relief under 28 U.S.C. Sec. 2254. We deny leave to proceed in
    forma pauperis on appeal, deny a certificate of probable cause to appeal, and
    dismiss the appeal on the reasoning of the district court. Barrier v. Johnson,
    C/A No. 86-986-HC (E.D.N.C. Apr. 16, 1987).

    Barrier's petition raised three challenges to her 1984 conviction of felonious


    child abuse and second degree murder:

    (1) the trial court's instructions on the use of hands as deadly weapons

    (1) the trial court's instructions on the use of hands as deadly weapons
    unconstitutionally shifted to her the burden to disprove malice;

    (2) there was no evidence of malice and therefore insufficient evidence to


    sustain a conviction of second degree murder; and

    (3) her conviction of both felonious child abuse and second degree murder
    violated double jeopardy.

    After considering the state's answer to the petition and Barrier's response, the
    magistrate recommended that relief be denied. The magistrate found no
    constitutional error in the instructions regarding the circumstances under which
    hands or fists are considered deadly weapons. The magistrate found the
    instruction that the law implies malice from the use of a deadly weapon to
    intentionally inflict injury which proximately results in death to be improper,
    but that the error was harmless because the evidence was so dispositive of
    malice that the jury would not have needed to rely on the presumption created
    by the instruction. The magistrate found the evidence adequate to support a
    conviction for second degree murder and deferred to the state court's
    interpretation of its child abuse offense as not merging into the offense of
    murder. The district court adopted the magistrate's recommendation over
    Barrier's objection.

    Under Rose v. Clark, 54 U.S.L.W. 5023 (U.S. July 2, 1986) (No. 84-1974), the
    harmless beyond a reasonable double standard applies on review of state court
    jury instructions which unconstitutionally shifted a burden of proof to the
    defendant on an element of the crime. Upon review of the record, we agree
    with the district court that the evidence of malice was such that we "can say
    beyond a reasonable doubt that the jury would have found it unnecessary to rely
    on the presumption." Rose v. Clark, 54 U.S.L.W. at 5027 (quoting Connecticut
    v. Johnson, 460 U.S. 73, 97 n. 5 (1983) (Powell, J., dissenting)). We note, in
    addition to the reasons given by the district court, that the jury was properly
    instructed as to the state's burden to prove intent to inflict injury and that Barrier
    presented no evidence that she acted in self-defense or in heat of passion upon
    sudden provocation. See Rook v. Rice, 783 F.2d 401 (4th Cir.1985), cert.
    denied, 54 U.S.L.W. 3867 (U.S. July 7, 1986) (No. 85-6834); Davis v.
    Allsbrooks, 778 F.2d 168 (4th Cir.1985). Moreover, we reject the argument
    raised by Barrier on appeal that the district court's analysis of this issue entitles
    her to federal court consideration of claims she has not yet exhausted through
    the state courts.

    We likewise agree with the district court's conclusion that because there was

    sufficient evidence of malice, there was sufficient evidence to support a verdict


    of guilty of second degree murder.
    9

    Finally, we find that the district court properly rejected Barrier's double
    jeopardy claim on the grounds that the state legislature intended to permit
    multiple punishments for child abuse and murder. See Missouri v. Hunter, 459
    U.S. 359, 366 (1983) (double jeopardy clause "does no more than prevent the
    sentencing court from prescribing greater punishment than the legislature
    intended). Section 14-318.4 of the North Carolina Code, establishing the crime
    of felony child abuse, explicitly provides that the offense is "additional to other
    civil and criminal provisions and is not intended to repeal or preclude any other
    sanctions or remedies." The North Carolina Court of Appeals, interpreting a
    parallel misdemeanor child abuse provision, has held that the North Carolina
    General Assembly did not intend child abuse to be a lesser included offense or
    to merge with any other offense, and that it does not merge into second degree
    murder. State v. Mapp, 45 N.C.App. 574, 264 S.E.2d 348 (1980). Although an
    intermediate appellate court may not determine in binding fashion a rule of
    state law, its opinion is persuasive in situations where the highest state court has
    not spoken. Sanderson v. Rice, 777 F.2d 902, 905 (4th Cir.1985), cert. denied,
    54 U.S.L.W. 3563 (U.S. Feb. 24, 1986) (No. 85-6052). We are persuaded that
    the state legislature intended to authorize multiple punishments in this situation
    and that Barrier's double jeopardy claim therefore must fail.

    10

    Finding no error in the district court's denial of habeas relief, we deny Barrier's
    requests for appointment of counsel and for a competency hearing and dismiss
    this appeal. We dispense with oral argument because the facts and legal
    contentions are adequately developed in the materials before the Court and
    argument would not aid the decisional process.

    11

    DISMISSED.

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