concurring:
I concur in the result reached by Judge Murnaghan, but solely on the ground that reversal is required by our decision in Thomas v. Leeke. I, therefore, agree with what Judge Murnaghan has written on pages 1172 through 76 of his opinion. Judge Sneeden has written in dissent that, even if the instructions were contradictory and, therefore, erroneous, those circumstances did not render the trial fundamentally unfair. He has written persuasively, but for the reasons articulated by Judge Murnaghan on pages 1190 through 91 of the opinion, I feel that once we accept that the instructions given at Griffin’s trial were constitutionally infirm under Thomas, we are required to hold that the trial was fundamentally unfair.
I assume, for the sake of analysis, that it may be possible to examine the South Carolina self-defense burden shifting rule against our holdings in Frazier, Guthrie, and Wynn to determine if it violates In re Winship, Mullaney, and Sandstrom as we have interpreted them. I also agree that Adkins, Baker, and Davis from our court, and Engle, Ulster, and Franklin from the Supreme Court, leave open a number of lively questions concerning burden shifting and presumptions in general.1 I do not think it is appropriate, however, to decide here the basic question of whether South Carolina in Griffin’s next trial can constitutionally shift to him the burden of proving self-defense by a preponderance of the evidence. I understand Judge Murnaghan’s concern. In his usual scholarly style, he has canvassed the cases dealing with this current constitutional controversy and provided great insight into possible answers to questions which are conceivably still open.
I agree with much of his legal analysis but disagree with much of his semantic conclusions, especially in regard to the elements of the crime of murder in South Carolina and the consequences of those definitional problems. The appropriate course for this court, however, is to leave those problems for the later day upon which they might arise.- In Thomas, 725 F.2d at 250, we said:
*1193We need not reach the question of whether the due process clause prohibits in all instances the placing on the defendant of the burden of persuasion with regard to self-defense. It is enough, for the purposes of this case, to observe that the court’s instructions regarding the burden of proof were both conflicting and confusing. “Because proof of self-defense constitutes an absolute defense in that it renders the homicide justifiable, any error in the trial court’s instruction concerning self-defense was necessarily prejudicial.” (citation omitted).
I see no compelling reason for a more expansive holding in this case since Thomas is virtually identical in all relevant respects. It is not appropriate to formulate a new and broader constitutional principle when the appeal can be decided on a narrow and settled rule of constitutional law— particularly one which we have so recently established as controlling in this circuit. See Wood v. Georgia, 450 U.S. 261, 264-65, 101 S.Ct. 1097, 1099-1100, 67 L.Ed.2d 220 (1981); Kremens v. Bartley, 431 U.S. 119, 136-37, 97 S.Ct. 1709, 1718-19, 52 L.Ed.2d 184 (1977) (quoting Liverpool, N.Y. & P.S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899 (1885)); United States v. Berberian, 767 F.2d 1324, 1325 (9th Cir.1985).
. Over vigorous dissents, the Supreme Court has twice declined to address the issue of self-defense burden shifting treated by Judge Murnaghan. Moran v. Ohio, — U.S.-, 105 S.Ct. 350, 83 L.Ed.2d 285 (1984); McElroy v. Holloway, 451 U.S. 1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981).