Full opinion text
WILKINS, Circuit Judge: The State of South Carolina appeals from the issuance of a writ of habeas corpus, 28 U.S.C.A. § 2254 (West 1977), for convicted murderer Ronald Francis Smart on the ground that a jury instruction on self-defense impermissibly shifted the burden of proof. A panel of this court originally affirmed the issuance of the writ. Smart v. Leeke, 856 F.2d 609 (4th Cir.1988). A majority of the court voted for rehearing en banc, thereby vacating the panel opinion. 4th Cir.R. 35(c). We now reverse and remand for further proceedings. I. Smart was tried in South Carolina state court in 1981 for the murder of two men and two women. In defense of these charges, he presented evidence that one or both of the men killed the women first and he then killed the men in self-defense. The trial court instructed the jury that self-defense was an affirmative defense which Smart had the burden of proving by a preponderance of the evidence. Smart was acquitted of the murder of the women, but convicted of murdering the men. During a separate sentencing phase, the jury further found that the murders had occurred during the commission of larceny with the use of a deadly weapon. And, on the recommendation of the jury, Smart was sentenced to death. On appeal to the South Carolina Supreme Court, Smart acknowledged that the self-defense charge correctly stated then current state law, but requested permission to argue against precedent. S.C.Sup.CtR. 8, § 10. While the court denied the request and affirmed the conviction, it vacated the death sentence due to improper comments by the prosecutor during the sentencing phase of the trial and remanded for resentencing. State v. Smart, 278 S.C. 515, 299 S.E.2d 686 (1982), cert. denied, 460 U.S. 1088, 103 S.Ct. 1784, 76 L.Ed.2d 353 (1983). On remand, Smart waived a jury trial and was sentenced to two terms of life imprisonment. Smart subsequently filed a habeas petition asserting that the self-defense charge improperly shifted the burden of proof in violation of the due process clause. U.S. Const. amend. XIV, § 1. He also contends that the instruction was so contradictory and confusing as to violate due process, relying on Thomas v. Leeke, 725 F.2d 246 (4th Cir.), cert. denied, 469 U.S. 870, 105 S.Ct. 218, 83 L.Ed.2d 148 (1984). Finally, he asserts that jury instructions defining reasonable doubt lessened the government’s burden of proof. The district court found that the self-defense charge unconstitutionally relieved the State of its burden of proving every element of the offense of murder, Martin v. Ohio, 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987), and was so contradictory and confusing as to violate due process under Thomas. Smart v. Leeke, 677 F.Supp. 414 (D.S.C.1987). The court further found that the due process violations were not harmless, Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), and granted the writ, allowing the State the opportunity to retry Smart. The district court obviously thought it unnecessary to address the challenge to the reasonable doubt instructions. In Martin v. Ohio, the Supreme Court held that states may constitutionally require a defendant to affirmatively establish self-defense by a preponderance of the evidence as long as the government is required to prove all the elements of murder beyond a reasonable doubt. Smart argues that placing the burden on him to prove self-defense effectively required him to negate an element of the crime — malice—and thereby impermissibly relieved the State of its burden of proof. Upon consideration of established Supreme Court precedent, including the recent decision in Martin v. Ohio, we conclude that the self-defense charge did not violate due process. II. Murder is defined in South Carolina as “the killing of any person with malice aforethought, either express or implied.” S.C.Code Ann. § 16-3-10 (Law.Co-op.1976). Malice is further defined as the intentional doing of a wrongful act, without just cause or excuse. State v. Foster, 66 S.C. 469, 475-76, 45 S.E. 1, 4 (1903). Self-defense is a complete defense constituting an excuse for the taking of a life. State v. Martin, 216 S.C. 129, 134, 57 S.E. 2d 55, 57 (1949). Pursuant to state law at the time of this trial, a defendant asserting self-defense was required to establish, as was Smart, the following elements by a preponderance of the evidence: (1) [H]e was without fault in bringing on the difficulty. (2) [H]e actually believe[d] he was in imminent danger of losing his life or of sustaining serious bodily injury or that he actually was in such imminent danger of losing his life or of sustaining serious bodily injury. (3) [I]f his defense is based upon his belief of imminent danger, that a reasonable prudent man of ordinary firmness and courage would have entertained the same belief, or if his defense is based upon his being in actual and imminent danger, that the circumstances were such as would warrant a man of ordinary prudence, firmness and courage to strike a fatal blow to save himself from serious bodily harm, or losing his life. (4) He had no other means of avoiding the danger of losing his life or sustaining serious bodily injury than to act as he did in the particular instance. See State v. Davis, 282 S.C. 45, 317 S.E.2d 452 (1984). III. It has never been seriously questioned that the Constitution requires that the burden of proof in a criminal case be placed on the prosecution to establish the guilt of an accused beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361-62, 90 S.Ct. 1068, 1071, 25 L.Ed.2d 368 (1970). The Supreme Court explicitly declared in Win-ship that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Id. at 364, 90 S.Ct. at 1073. Another “long-accepted rule was that it was constitutionally permissible to provide that various affirmative defenses were to be proved by the defendant.” Patterson v. New York, 432 U.S. 197, 211, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281 (1977). But, unlike the reasonable doubt rule, there have been several challenges to the constitutionality of placing a burden on the defendant to prove certain affirmative defenses. In Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), the Court addressed the question of whether due process was violated by a state statute which required a defendant pleading insanity to establish the defense beyond a reasonable doubt. The defendant, who was charged with murder in the first degree, argued that the statute required him to prove his innocence by disproving elements of the crime charged. The Court acknowledged that the jury might have found the defendant mentally incapable of the premeditation and deliberation required to prove first degree murder or the intent essential to both first and second degree murder, but not legally insane. However, the Court concluded that the state was “required to prove beyond a reasonable doubt every element of the crime charged.” Id. at 794, 72 S.Ct. at 1005. Thus, despite some overlap of proof on the mental element essential to the offense and to the insanity defense, a state may constitutionally place the burden of proving the defense on a defendant. In Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), the Court addressed the constitutionality of a Maine law which required a defendant charged with murder to rebut a presumption of malice and prove that he acted “in the heat of passion on sudden provocation” in order to reduce a charge of murder to manslaughter. Two degrees of homicide existed under Maine law — murder and manslaughter. Murder was defined as the unlawful killing of a human being with malice aforethought, either express or implied, id. at 686 n. 3, 95 S.Ct. at 1883 n. 3 (quoting Me.Rev.Stat.Ann. tit. 17, § 2651 (1964)), and manslaughter as the unlawful killing of a human being “in the heat of passion, on sudden provocation, without express or implied malice aforethought,” id. (quoting Me.Rev.Stat.Ann. tit. 17, § 2551 (1964)). The jury had been instructed, in accordance with Maine law, “that if the prosecution established that the homicide was both intentional and unlawful, malice aforethought 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, 95 S.Ct. at 1883 (footnote omitted). The Court held that this instruction violated the due process mandate of Win-ship that the prosecution prove beyond a reasonable doubt every fact necessary to constitute the crime charged. After Mullaney a serious question arose as to the constitutionality of requiring a defendant to prove any affirmative defense, except insanity. Many urged, as did the defendant in Patterson, that: [T]he State may not permit the blameworthiness of an act or the severity of punishment authorized for its commission to depend on the presence or absence of an identified fact without assuming the burden of proving the presence or absence of that fact, as the case may be, beyond a reasonable doubt. 432 U.S. at 214, 97 S.Ct. at 2329 (footnote omitted). However, the Court rejected this interpretation and subsequently clarified the holding: “Mullaney ... held that a State must prove every ingredient of an offense beyond a reasonable doubt, and that it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense.” Id. at 215, 97 S.Ct. at 2329. The Court squarely held that Mullaney should be classified as a presumption case, and therefore it offers little, if any, support for Smart on the issue of affirmative defenses. In Mullaney, as in other presumption cases, the state is improperly relieved of the burden of proving an essential element of the crime charged, and the burden is unconstitutionally shifted to the defendant to disprove the element. See, e.g., Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977). However, in affirmative defense cases, as here and in Martin, the state bears the burden of proving beyond a reasonable doubt every element of the crime charged. The defendant is required to prove a separate issue which may or may not overlap with proof of the alleged crime. In Patterson, the Court faced the issue of the constitutionality of requiring a defendant charged with second-degree murder under New York law to prove the affirmative defense of extreme emotional disturbance. As in Maine, the state of New York made a distinction between murder and manslaughter. Second-degree murder required proof that the defendant intentionally killed another person. Patterson, 432 U.S. at 198 n. 2, 97 S.Ct. at 2321 n. 2 (quoting N.Y.Penal Law § 125.25 (McKinney 1975)). Manslaughter was defined as the intentional killing of another person “under circumstances which do not constitute murder because [the defendant] acts under the influence of extreme emotional disturbance.” Id. (quoting N.Y.Penal Law § 125.20(2) (McKinney 1975)). Consistent with New York law the jury was instructed that Patterson had to prove his affirmative defense by a preponderance of the evidence. The Court held that the defense was constitutionally adequate, finding that it was comparable to the insanity defense because “it constitutes a separate issue on which the defendant is required to carry the burden of persuasion.” Id. at 207, 97 5.Ct. at 2325. The Court expressly stated: We ... decline to adopt as a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses.... Proof of the nonexistence of all affirmative defenses has never been constitutionally required; and we perceive no reason to fashion such a rule in this case and apply it to the statutory defense [of extreme emotional disturbance]. Id. at 210, 97 S.Ct. at 2327. IV. More recently, in Martin v. Ohio the Court examined the same question raised here of whether due process is violated by placing upon a defendant, who is charged with murder, the burden of proving by a preponderance of the evidence self-defense as an affirmative defense. Martin argued, as does Smart, that placing the burden on her to prove the affirmative defense imper-missibly required her to negate one of the elements of murder. The Court in Martin rejected this contention and we are compelled to do likewise. A. Martin was convicted of the unlawful act of aggravated murder which is defined under Ohio law as “purposely, and with prior calculation and design, causing] the death of another.” Ohio Rev.Ann. § 2903.01(A) (Anderson 1987). She “did not dispute the existence of [the elements of aggravated murder], but rather sought to justify her actions on grounds she acted in self-defense.” Martin v. Ohio, 480 U.S. at 234, 107 S.Ct. at 1102 (citing State v. Martin, 21 Ohio St.3d 91, 94, 488 N.E.2d 166, 168 (1986)). Under Ohio law, self-defense is an affirmative defense justifying and rendering lawful otherwise unlawful conduct. State v. Davis, 8 Ohio App.3d 205, 456 N.E.2d 1256, 1261 (1982); State v. Morris, 8 Ohio App.3d 12, 455 N.E.2d 1352, 1359 (1982). Pursuant to state law, the burden was placed on Martin to prove the following elements of self-defense by a preponderance of the evidence: (1) [T]he defendant was not at fault in creating the situation giving rise to the argument; (2) [T]he defendant had an honest belief that she was in imminent danger of death or great bodily harm and that her only means of escape from such danger was in the use of such force; and (3) [T]he defendant must not have violated any duty to retreat or avoid danger. Martin v. Ohio, 480 U.S. at 230, 107 S.Ct. at 1100. The Court recognized that self-defense requires proof of an honest belief of imminent danger of death or serious bodily harm and that generally evidence offered to support this element may negate a purposeful killing by prior calculation and design. As Justice Powell stated in his dissent: “Under Patterson, this conclusion should suggest that Ohio is precluded from shifting the burden as to self-defense.” Martin v. Ohio, 480 U.S. at 239, 107 S.Ct. 1105. However, the Court held that it was permissible to require Martin to prove self-defense because “Ohio does not shift to the defendant the burden of disproving any element of the State’s case.” Id. at 234, 107 S.Ct. at 1102. The same must be said here since the cases are fundamentally indistinguishable. While Smart dwells on the fact that malice is defined under South Carolina law as acting wrongfully without justification or excuse and that self-defense constitutes justification and excuse, this distinction is without- meaningful legal significance. There is no fundamental difference between murder under Ohio and South Carolina law even though one expressly includes in its definition of murder the element of malice aforethought — intentional wrongful conduct without just cause or excuse — while the other does not. B. Whatever the merits of this “elemental” analysis, the Court in Martin v. Ohio did not rely solely on that point in upholding the placement of the burden on the defendant to prove the affirmative defense. 480 U.S. at 234, 107 S.Ct. at 1102. Rather, more importantly, the Court stressed that while the jury was instructed that the defendant carried the burden of proving self-defense by a preponderance of the evidence, it was also instructed that the state was required to prove each element of aggravated murder beyond a reasonable doubt. The Court stated: It would be quite different if the jury had been instructed that self-defense evidence could not be considered in determining whether there was a reasonable doubt about the State’s case, i.e., that self-defense evidence must be put aside for all purposes unless it satisfied the preponderance standard. Such instruction would relieve the State of its burden and plainly run afoul of Winship’s mandate. The instructions in this case could be clearer in this respect, but when read as a whole, we think they are adequate to convey to the jury that all of the evidence, including the evidence going to self-defense, must be considered in deciding whether there was a reasonable doubt about the sufficiency of the State’s proof of the elements of the crime. Id. at 233-34, 107 S.Ct. at 1102 (citations omitted). Justice Powell recognized this reasoning to be the crux of the Court’s holding when he articulated in his dissent: “The Court thus seem[ed] to conclude that as long as the jury is told that the State has the burden of proving all elements of the crime, the overlap between the offense and the defense is immaterial.” Id. at 239, 107 S.Ct. at 1105. Here, the trial judge repeatedly instructed that the State bore the burden of proving each element of the offense charged beyond a reasonable doubt. And importantly, the jury was not restricted from considering the self-defense evidence “in deciding whether there was a reasonable doubt about the sufficiency of the State’s proof of the elements of the crime.” Id. at 234, 107 S.Ct. at 1102. Under the instructions, a verdict of guilty could not be returned unless the State had proven beyond a reasonable doubt every element of the offense charged. And, if Smart established the elements of self-defense by a preponderance of the evidence, he would have been entitled- to an acquittal. Finally, even if the evidence presented on self-defense failed to meet the preponderance standard, it might still have raised a reasonable doubt on the issue of malice. C. In Martin v. Ohio the Court clearly rejected the argument espoused by Smart that simply because one may assert that the definition of murder can be read as overlapping with the elements of self-defense, then the affirmative defense is necessarily unconstitutional. Justice Powell insisted that the clear implication of Patterson was that “when an affirmative defense does negate an element of the crime, the state may not shift the burden.” Id. at 237, 107 S.Ct. at 1104. But, whatever the merits of such a contention, the Court has clearly spoken and its result is binding on our decision today. V. Moreover, the district court decision did not comport with prior circuit precedent. In Thomas v. Leeke, 725 F.2d 246 (4th Cir.), cert. denied, 469 U.S. 870, 105 S.Ct. 218, 83 L.Ed.2d 148 (1984), this court held that a jury charge similar to the one here was unconstitutionally contradictory and confusing. However, under Martin v. Ohio the instruction would no longer be considered unclear and misleading. 480 U.S. at 234-35 n. *, 107 S.Ct. at 1102 n. *. And, as Judge Hall discussed in his dissent in Thomas, 725 F.2d at 252-54, the court has previously upheld as constitutional, under South Carolina law, placement of the burden of proving the affirmative defense of self-defense on a defendant, Maxey v. Martin, 577 F.2d 735 (4th Cir.1978) (Table), as well as under Virginia law, Baker v. Muncy, 619 F.2d 327 (4th Cir.1980); Frazier v. Weatherholtz, 572 F.2d 994 (4th Cir.), cert. denied, 439 U.S. 876, 99 S.Ct. 215, 58 L.Ed. 2d 191 (1978). VI. Historically, the burden of proving all affirmative defenses — “indeed, ‘all circumstances of justification, excuse, or alleviation’ — rested on the defendant_ This was the rule when the Fifth Amendment was adopted, and it was the American rule when the Fourteenth Amendment was ratified.” Patterson, 432 U.S. at 202, 97 S.Ct. at 2323 (citations omitted); see also Martin v. Ohio, 480 U.S. at 235, 107 S.Ct. at 1103. After the federal government assumed the burden of proving the sanity of a defendant, Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895), many jurisdictions placed on the prosecution the burden of proving sanity and disproving other affirmative defenses, even though the ruling of Davis was not constitutionally grounded, Leland v. Oregon, 343 U.S. at 797, 72 S.Ct. at 1006-07. Prior to 1984 Ohio and South Carolina were the only two remaining states which placed the burden of proving self-defense on the defendant. And as the Court further noted, the question of the constitutionality of this practice should not be resolved “by cataloging the practices of other States.” Martin v. Ohio, 480 U.S. at 236, 107 S.Ct. at 1103. Notwithstanding the widespread changes in other states, the Court in Martin v. Ohio found that despite the overlap of proof of murder and self-defense, it was constitutionally permissible to place the burden of proving self-defense on the defendant as long as the state bore the ultimate burden of proving all the elements of murder beyond a reasonable doubt. In light of this clear holding, and the prior precedent of this circuit, Smart’s jury instructions plainly satisfied due process mandates. The issuance of the writ of habeas corpus is therefore reversed. The case is remanded to the district court to address the challenge to the reasonable doubt instructions. REVERSED and REMANDED. . The evidence consisted, in part, of a tape-recorded conversation between Smart and a law enforcement officer after his arrest. Smart also presented two additional defenses in the alternative, contending that the women were acci-dently killed during a fight between himself and the men or that a fourth man killed both the men and women. . At different points during the entire charge, the trial court defined reasonable doubt as "a doubt that it is a substantial doubt”; “a doubt for which a person honestly seeking to find the truth can give reason"; “one where, in search of the truth, you can express reason for your decision”; and “not a weak or slight doubt, but a serious or strong and well-founded doubt as to the truth of the charge.” . In Davis, the South Carolina Supreme Court instructed the trial courts to proceed with a new instruction in self-defense cases. Davis, 282 S.C. at 46, 317 S.E.2d at 453. Although the instruction relieves the defendant of the burden of proving self-defense by a preponderance of the evidence, the state supreme court rejected the defendant’s assertion in Davis that the affirmative defense unconstitutionally shifted the burden of proof as it previously existed. Prior to Davis, the court on at least seven occasions rejected arguments that the affirmative defense was unconstitutional. See State v. Finley, 277 S.C. 548, 290 S.E.2d 808 (1982); State v. Griffin, 277 S.C. 193, 285 S.E.2d 631 (1981); State v. Linder, 276 S.C. 304, 278 S.E.2d 335 (1981); State v. Crocker, 272 S.C. 344, 251 S.E.2d 764 (1979); State v. McDowell, 272 S.C. 203, 249 S.E.2d 916 (1978); State v. Atchison, 268 S.C. 588, 235 S.E.2d 294, cert. denied, 434 U.S. 894, 98 S.Ct. 273, 54 L.Ed.2d 181 (1977); State v. Bolton, 266 S.C. 444, 223 S.E.2d 863 (1976). In State v. Glover, 284 S.C. 152, 326 S.E.2d 150, cert. denied, 471 U.S. 1068, 105 S.Ct. 2147, 85 L.Ed.2d 503 (1985), the court reiterated the constitutionality of the affirmative defense. However, after emphasizing its disagreement with the holding in Thomas v. Leeke, 725 F.2d 246 (4th Cir.), cert. denied, 469 U.S. 870, 105 S.Ct. 218, 83 L.Ed.2d 148 (1984), see discussion infra, the court stated that it had "cured the purported constitutional violation complained of by the Fourth Circuit,” and that “the charge approved in Davis shall be applied in all cases tried subsequent to the date of that decision, so long as contemporaneous objection was made at trial.” Id. at 154, 326 S.E.2d at 151. Finally, in State v. Bellamy, 293 S.C. 103, 359 S.E.2d 63 (1987), the court reversed a murder conviction for failure to comply with the Davis charge. The court refused to address the state’s contention that the charge was constitutionally adequate pursuant to Martin v. Ohio, instead finding that "it does not comport with South Carolina law.” Id. at 105, 359 S.E.2d at 65. . Although not an affirmative defense case, see infra, a discussion of Mullaney is essential to a proper understanding of the development of the law in this area. . The Court reiterated the constitutional permissibility of placing the burden on defendants to prove insanity by dismissing the appeal in Rivera v. Delaware, 429 U.S. 877, 97 S.Ct. 226, 50 L.Ed.2d 160 (1976). . The majority in Martin elected not to cite the Mullaney decision, thereby implicitly questioning its applicability. . The Court previously declined to address the issue in Hankerson v. North Carolina, 432 U.S. at 237 n. 3, 245, 97 S.Ct. at 2342 n. 3, 2346, and State v. Moran, No. 45879, 1983 WL 2712 (Ohio App. Oct. 27, 1983), cert. denied, 469 U.S. 948, 105 S.Ct. 350, 83 L.Ed.2d 285 (1984). . Martin did not dispute that the government proved all the necessary elements of the crime charged, but sought to independently establish a self-defense justification. However, the Court did not rely on the absence of an overlap in those particular circumstances. Martin v. Ohio, 480 U.S. at 234, 107 S.Ct. at 1102. More realistically, only in the rarest case will proof of an honest belief of imminent danger not negate prior calculation and design. Since the Court validated the Ohio scheme under which overlap of proof will exist in virtually all murder cases where self-defense is asserted, there is no logical reason why the South Carolina scheme should be invalidated because there will be overlap in every case where self-defense is asserted to a charge of murder. . In Martin v. Ohio, the Court noted that “all but two of the States, Ohio and South Carolina, have abandoned the common law rule and require the prosecution to prove the absence of self-defense when it is properly raised by the defendant.” 480 U.S. at 236, 107 S.Ct. at 1103. At the time Martin v. Ohio was issued, South Carolina had also abandoned the common law rule. State v. Davis, 282 S.C. 45, 317 S.E.2d 452 (1984). See note 1.
MURNAGHAN, Circuit Judge, dissenting: To me, the issue presented here is essentially simple though before I am through the canvassing of the many authorities some readers may be convinced otherwise. I start with the key definitional distinction. Malice aforethought is an element, an essential ingredient of the crime of murder in South Carolina. Malice aforethought does not enjoy that status in Ohio, or New York. Lack of self-defense equates to malice aforethought. Self-defense in South Carolina is no crime. It is a right. When, as here, the issue of whether or not there is self-defense has been factually injected into the case it becomes one for the jury. As a factual matter going, in South Carolina, to guilt or innocence, it requires the prosecution, as a federal constitutional matter, to prove the absence of self-defense beyond a reasonable doubt. Where malice aforethought is an ingredient the state must prove, even though an affirmative defense may place the burden of production on the defendant to get self-defense into the case in the first place, once the defendant, as is the case here, has raised with some evidence the fact of self-defense, the burden of persuasion must fall, beyond a reasonable doubt, on the prosecution. In other words, in such a case it is error to make the defendant prove the presence of self-defense by a preponderance. The en banc majority tries to escape the force of those principles by going two entirely contradictory ways at once. It asserts that in South Carolina the prosecution must, in a murder case where self-defense has become an issue, first prove guilt beyond a reasonable doubt. Then, South Carolina contends, if a reasonable doubt has not arisen in the jury’s mind, the defendant is given a “second chance” to convince the jury, not beyond a reasonable doubt, but just by a preponderance of the evidence, that self-defense has been made out. As counsel for Smart has aptly pointed out, the resulting overlap, rather too generously characterized as a “second chance,” rather deserves description as a “ball and chain.” How can a jury which has, beyond a reasonable doubt, found no self-defense reasonably turn around and find it proven by a preponderance of the evidence? From a burden on the prosecution of proof beyond a reasonable doubt, South Carolina seeks to shift the casting of the burden onto the defendant by a preponderance of the evidence. The South Carolina prosecutor and the en banc majority seek to justify so shifting the burden to the defendant by citing a case where, unlike here, there would be no “shift to the defendant [of] the burden of disproving any element of the State’s case.” The case “did not require it [the prosecution] to disprove self-defense,” i.e., to prove malice aforethought. Martin v. Ohio, 480 U.S. 228, 231, 234, 107 S.Ct. 1098, 1101, 1102, 94 L.Ed.2d 267 (1987). But, as we shall irrefutably demonstrate, malice aforethought, i.e., lack of self-defense, is an element of the crime of murder in South Carolina, while it is not in Ohio. The situation is aggravated by the hopeless contradictory nature of the instructions. Sandstrom v. Montana, 442 U.S. 510, 517, 99 S.Ct. 2450, 2455, 61 L.Ed.2d 39 (1979) (“We are convinced that a reasonable juror could well have been misled by the instruction given_ We cannot discount the possibility that the jury may have interpreted the instruction in either of two more stringent ways.”); Francis v. Franklin, 471 U.S. 307, 322, 105 S.Ct. 1965, 1975, 85 L.Ed.2d 344 (1985) (“Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity.”); cf Thomas v. Leeke, 725 F.2d 246, 250-51 (4th Cir.), cert. denied, 469 U.S. 870, 105 S.Ct. 218, 83 L.Ed.2d 148 (1984) (“The court therefore had in one breath instructed the jury that the accused had the burden of proving self-defense by a preponderance of the evidence, yet in the other that the prosecution had to prove beyond a reasonable doubt that the killing had been felonious (and therefore unlawful) and with malice. Confusion in the minds of the jury was inescapable with a charge that was unequivocally contradictory.”). In Smart’s case, the jury instruction first read: “The defendant is entitled to any reasonable doubt arising in the whole case or in any defenses.” (Emphasis supplied). Within the same charge to the jury, it was instructed: “Because the doctrine of self-defense is an affirmative defense, a defendant will not be entitled to an acquittal on that unless he established by the preponderance, or the greater weight of the evidence, all of the four essential elements of the doctrine.” That is a classic case of contradiction. The case before the Court concerns a man, Ronald Francis Smart, charged with murder. The situation arose when four people, two women and two men, were killed, Smart being the sole survivor of the group. He was acquitted of murder of the women. In the case of the men, he asserted self-defense, not merely through his own testimony, which at common law would not even have been admissible, see generally Ferguson v. Georgia, 365 U.S. 570, 573-75, 81 S.Ct. 756, 758-60, 5 L.Ed.2d 783 (1961), but by evidence from third parties. The en banc majority has focused its attention on the principle of South Carolina state law that, at least in 1981 when South Carolina tried Smart, self-defense in a South Carolina murder case was an “affirmative defense.” The South Carolina prosecutors argue that, insofar as Smart is concerned, self-defense was then, and remains now, an affirmative defense all the way. The doctrine of affirmative defense has been historically of long duration and, while it has been limited, has not been entirely eradicated even by relatively recent developments centering on In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). In re Winship and its application in Mullaney v. Wilbur thus continued the concept of self-defense as an affirmative defense in South Carolina murder trials up to the point of direct conflict with the Supremacy Clause of the United States Constitution. The South Carolina prosecutors of Smart claim that we should carry the doctrine of affirmative self-defense all the way in South Carolina, going beyond the point of conflict with the United States Constitution, though that would impermissibly require assignment to the defendant of the burden of persuasion. South Carolina law erects a presumption of malice from the mere fact of homicide. State v. Rochester, 72 S.C. 194, 200-01, 51 S.E. 685, 687 (1905). Since self-defense equates to lack of malice and malice is an essential element in South Carolina of the crime of murder, it remains a defendant’s burden to inject self-defense into the case in a sufficiently substantial way by introducing probative evidence thereof. By alone pleading, or otherwise merely asserting, self-defense, without an introduction of evidence, the defendant would not shift the burden to the prosecution. Rather his task to secure acquittal on self-defense grounds would remain an affirmative one. He must meet a burden of production. In the absence of probative evidence, the presumption of malice will continue to favor the prosecution. However, with the introduction of some factually probative evidence of self-defense, i.e., the meeting by the defendant of the burden of production, two most significant things, insofar as the affirmative defense of self-defense is concerned, will have occurred. First, the presumption of malice, with the introduction of some evidence, will have altogether disappeared from the case. Rochester, 72 S.C. at 200-01, 51 S.E. at 687. Second, contact by the affirmative defense with conflicting federal law will have taken place. Mullaney v. Wilbur, an opinion by the United States Supreme Court, involved someone charged by Maine with murder. The defendant maintained that his act was not malicious and, therefore, only amounted to manslaughter. In Maine, as in South Carolina, malice is an element of the crime of murder so lack of self-defense is also. Of manslaughter malice is not such an element. A defense labelled affirmative could constitutionally remain so, even upon the defendant’s introducing evidence, if malice did not amount to an element of the crime. However, since malice was such an element, invoking the Supreme Court decision in In re Winship, holding that the prosecution must bear the burden of persuasion on every element of the crime, the United States Supreme Court in Mullaney v. Wilbur forbade the Maine prosecutor from relying on a conclusive implication of malice from intent and unlawfulness (which would continue to apply unless the defendant assumed the burden of persuasion, proving by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation). Instead the Supreme Court required the prosecutor to assume the burden of proving by evidence the lack of passion or provocation, i.e., the presence of malice beyond a reasonable doubt, to sustain the charge of murder, even though Maine law sought affirmatively to place the burden on the defendant. As for the burden of persuasion, the Supreme Court refused to follow Maine’s lead, which tracked the common law, but rather required the prosecutor factually to prove the presence of malice beyond a reasonable doubt. What the Court was saying was that, when dealing with an element of the crime, it was patently incorrect, once evidence had been introduced, once the burden of production had been met, to assert the defendant’s role as one of defense, “affirmative” or otherwise. Rather, at this stage one must speak of “affirmative attack ” and assign the burden to the prosecutor. The burden of persuasion is on the state. The majority seeks comfort in and attempts to rely on Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), but that case, in fact, on the contrary, lends support to, and reinforces the propriety of assignment of the burden of persuasion in Smart’s case to the prosecution. The absence of extreme emotional disturbance for which there was reasonable explanation or excuse was not an element, in New York, of the crime of murder. New York, therefore, was free to assign the burden of showing extreme emotional disturbance to the defendant, and leave it there, even after some evidence had been introduced by the defendant of its presence, since no conflict with federal law had arisen as a consequence. It is in such cases as Patterson v. New York that there can be a permissible overlap whereby the prosecutor, although the jury must be instructed that proof beyond a reasonable doubt rests on the prosecutor for each element of the crime, may properly obtain an instruction that the burden of proof by a preponderance of the evidence is on the defendant (as to any factual aspect not amounting to an element of the crime). It only remains to show that lack of self-defense is an essential element of the crime with which Ronald Francis Smart was charged, and hence something the prosecution had the burden to prove, i.e., persuade beyond a reasonable doubt, once the presumption of malice had evaporated through the introduction of some probative proof of self-defense by the defendant. The South Carolina crime with which Smart was charged is stated to be murder, defined as killing with malice aforethought. South Carolina Code of Laws § 16-3-10. Malice is an essential element of the crime, just as in Mullaney v. Wilbur, and presents in the present situation even a stronger case for requiring a prosecution to show the presence of malice, beyond a reasonable doubt, since the form of malice, namely, the lack of self-defense, is essential to the proof of any crime inasmuch as the failure to negate self-defense when raised in South Carolina should result in a holding that the killing is no crime, while in Maine, insofar as Mullaney v. Wilbur was concerned, the absence of the malice involved, while it foreclosed a finding of murder, merely reduced murder to the lesser crime of manslaughter. It was in South Carolina prior to 1984, and also, to a lesser extent, under current South Carolina and federal Supreme Court doctrine, true that self-defense was and remains today an affirmative defense when, although self-defense has been asserted, no viable evidence has been adduced, and a fortiori when self-defense is not even asserted. However, the scope of the concept in the two jurisdictions, federal and state, prior to 1984, differs. Under federal constitutional law both before and after 1984 as well as state law after 1984, where malice is an element of the crime, self-defense is not, ipso facto automatically a part of every murder case, but rather enters only upon the defendant’s making of an assertion of self-defense, and, even then, not unless the defendant comes forward with sufficient evidence to make it debatable as a matter of fact. Otherwise the presumption of malice, an essential ingredient of the crime, disposes of the matter. When the defense produces some evidence of self-defense, the need for a burden of proof of facts has first arisen and the burden of persuasion is assigned to the prosecutor beyond a reasonable doubt. There being no proof one way or the other on the subject if it is not raised by the defendant, or raised but without evidence being introduced, the situation is an appropriate one for reliance by the prosecution on a presumption. The defense remains an affirmative one. However, equally clearly, upon the defendant’s coming forward with some viable evidence of self-defense, as has been done in Smart’s case, the presumption assigns no role, plays no part. The presumption has nothing to do with the consequent need for a burden of proof. It assigns instead a value only in the case of a complete absence of proof. With the evidentiary introduction of self-defense, the roles, state and federal, divide. While the state of South Carolina, in a case tried in 1981, wishes to continue to make the defense affirmative, to assign the burden of persuasion to the defendant, even after introduction of some evidence probative of self-defense, such an assignment to the defendant of a burden to disprove an element of the crime is constitutionally forbidden. In re Winship came down in 1970; Mullaney v. Wilbur, a habeas corpus case, in 1975. While the en banc majority rests its conclusion on Martin v. Ohio, 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987), supposing that the Supreme Court’s evaluation there contradicts the principle heretofore addressed, that principle, placing the burden of proof beyond a reasonable doubt on the prosecution, in fact, is abundantly supported by Martin v. Ohio and cases explicating Ohio law. In Martin v. Ohio, the crime charged was aggravated murder, defined as a purposeful causing of the death of another with prior calculation and design. The United States Supreme Court in a 5-4 decision opined that the Ohio law did not include malice in defining the crime of aggravated murder, and so left the burden of proof as to self-defense on the defendant. Therefore, if the defendant in Ohio sought to invoke self-defense, he or she could do so only by introducing relevant evidence and then undertaking to meet the burden of proof by a preponderance of the evidence. In Ohio, in short, in the case of the statutory language involved in Martin v. Ohio, self-defense was an affirmative defense all the way to the charge of aggravated murder. A defendant charged with aggravated murder in Ohio, even though successful in meeting the burden of persuasion as to self-defense would remain a murderer though an excused one. In South Carolina, however, like an infantryman in the thin grey line who killed in battle at Fort Sumter, or a Revolutionary soldier shooting a British lobster-back at Cowpens, the defendant would be guilty of no crime. Hence, as a matter of federal constitutional law, absence of self-defense, a form of malice, as an element of the crime in South Carolina must be proved by the prosecution beyond a reasonable doubt. In Ohio, on the contrary, absence of self-defense is not an element of the crime so the self-defense burden of persuasion, in addition to the burden of production, may properly be assigned to the defendant. In Ohio, guilt of the crime remains, punishment for it alone is excused. In short, therefore, clear precedents indisputably lead to the conclusion that the grant of habeas corpus subject to a prompt retrial granted by the district court should be affirmed. The only reason to the contrary advanced by the en banc majority is a supposed one deriving from South Carolina law which loosely, but not too precisely, depends on a definition of “affirmative defense.” That state law, however, is in conflict with the supreme law of the land and must yield thereto. The fact is that a state may define something as an affirmative defense as it pleases, assigning the burden of proof to the defendant, in the absence of evidence or so long as the evidence presented does not tend to show that its opposite is not part and parcel of the definition of the crime. South Carolina may even still render the defense of self-defense affirmative in the sense that a failure by the defendant to produce any sufficient evidence of self-defense would constitute a failure to act affirmatively, to go forward to meet the burden of production. But, in controlling contrast, where sufficient evidence has been mustered by the defense to make the issue of self-defense debatable, the proof of the absence of self-defense — that essential ingredient of the crime of murder in South Carolina— must be assumed by the prosecution beyond a reasonable doubt. South Carolina in this case evidences reluctance to relinquish a state rule that treats, for “affirmative defense” purposes, something which, under federal constitutional law, is no longer classifiable as a defense. It exalts South Carolina law over federal law in case of conflict. However, the Federal Government and the Constitution to which each of the states, and individually every one of us, owes allegiance are supreme and must be followed. For the failure of the en banc majority to do so in this case, I dissent. . The mistake made by the prosecutor and the en banc majority is understandable, but no less erroneous. The approach they adopt apparently is to say that, when someone is accused of murder, he or she may exercise a well-established and time-honored right to do nothing and put the prosecution to its proof. Such an approach in a self-defense case will almost always be forlorn, given the presumption of malice aforethought. Nevertheless, there may exist cases where evidence of self-defense creeps into the prosecution’s case-in-chief or the evidence presented through inherent weakness or ambiguity may not constitute proof beyond a reasonable doubt. If the defendant chooses not to address the issue of self-defense when presenting his or her case, then the burden of proof beyond a reasonable doubt remains on the prosecution. The defendant’s failure at the close of the prosecutor’s case to secure a motion for a direction of acquittal means either that the evidence will support a finding of absence of self-defense beyond a reasonable doubt, or that, because of the presumption of malice aforethought, self-defense has not even entered the case. Nevertheless, the defendant then has the "second chance” of going forward, to quash the presumption of malice by an affirmative defense raising before the jury the self-defense issue. The prosecutor and the en banc majority would say that the defendant who asserts the proposition in court, not having succeeded in the first go-round, when the prosecution had to prove lack of self-defense beyond a reasonable doubt, may reasonably be assigned the burden of proof, here the burden of persuasion by a preponderance of the evidence. That approach, superficially reasonable as it may sound, overlooks that in South Carolina, by whomever and whenever self-defense is raised, the issue is guilt or innocence, which remains one of fact committed to a jury’s determination. When a defendant comes forward under the “affirmative defense,” the court is still at an adjudicatory stage. All the essential elements of guilt are being adjudicated, and a court is simply not free to depart from a beyond-a-reasonable-doubt requirement assigned to the prosecutor to a preponderance of the evidence standard falling on the defendant. All those considerations are outlined in In re Winship, 397 U.S. 358, 359, 361, 90 S.Ct. 1068, 1071, 25 L.Ed.2d 368 (1970), which holds that, despite any attempt to treat a defense as affirmative or to reduce the prosecution’s burden of persuasion from beyond a reasonable doubt to "merely” a preponderance of the evidence (id. at 360, 90 S.Ct. at 1070), such attempt must fail where at issue is "every fact necessary to constitute the crime for which he (the accused) is charged.” Id. at 364, 90 S.Ct. at 1073. The existence of self-defense or absence thereof is certainly such an evidentiary fact. A jury resolution of that issue in the defendant’s favor leads inexorably to an acquittal, a finding of "no crime.” “[I]t is the duty of the Government to establish ... guilt beyond a reasonable doubt. This notion — basic in our law and rightly one of the boasts of a free society — is a requirement and a safeguard of due process of law in the historic, procedural content of ‘due process.’” Id. at 362, 90 S.Ct. at 1071. . Those cases effected a sea change in the common law, including tracking statutory law, as it had developed over the centuries. While the common law had for hundreds of years accepted that self-defense was a vindication and thus, when it was present, self-defense precluded a finding of crime, it had been silent as to who, prosecutor or defendant, had the burden of proving the fact of self-defense or its absence. Courts had, therefore, not surprisingly found it permissible to place the burden of persuasion, at least by a preponderance, on the defendant. In re Winship changed all that, holding that, when an issue of fact going to guilt or innocence is present, while a burden of production, i.e., of going forward, can be placed on the defendant, all burden of persuasion must constitutionally rest with the prosecution. . Article Six, Clause 2 provides: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. The United States Constitution is, at least, as manifestly supreme, if in conflict with state laws, as would be a conflicting federal statutory provision. . South Carolina might even have gone further than I feel it necessary to go with respect to whether self-defense is an affirmative defense. I merely limit the applicability and extent of the doctrine of self-defense as an affirmative defense. I do not seek to eliminate its very existence. South Carolina in an analogous area of the law does, as things turn out, do away with the doctrine entirely. A plea of alibi “had been ... long held” an affirmative defense. State v. Bealin, 201 S.C. 490, 509, 23 S.E.2d 746, 753-54 (1943). But, notwithstanding, in that case it was held: that the so-called "affirmative defense” of alibi is not an affirmative defense at all. It is simply evidence adduced by the defendant to sustain his plea of not guilty; that he did not commit the crime for the reason that he was not at the scene of the crime at the time of the occurrence. The burden was upon the state to prove beyond a reasonable doubt that the defendant was present at the scene of the crime and actually committed it. If the defendant offers evidence which generates a reasonable doubt in the minds of the jury that he was at the scene of the crime ..., he should be acquitted. Id. at 507, 23 S.E.2d at 753-54 (quoting State v. Des Champs, 134 S.C. 179, 181, 131 S.E. 420, 421 (1926)). Failure of the state to prove presence at the scene of the crime beyond a reasonable doubt is fatal to the prosecution’s case where the "accused merely controverts the prosecutions’ [sic] evidence” in an alibi case. Id. at 510, 23 S.E.2d at 755. See also State v. Schrock, 283 S.C. 129, 133, 322 S.E.2d 450, 452 (1984). For essentially the same South Carolina law refusing to classify "accident” as an affirmative defense but, rather, assigning the burden of proof to the prosecution to prove knowledge beyond a reasonable doubt to show intent, see State v. Ferguson, 91 S.C. 235, 244, 74 S.E. 502, 505-06 (1912); State v. McDaniel, 68 S.C. 304, 317-18, 47 S.E. 384, 389 (1904). . Rochester states as follows: But this presumption is not applicable where the facts and circumstances attending the homicide are disclosed in evidence so as to draw a conclusion of malice or want of malice as one of fact from the evidence. Presumptions of this class are intended as substitutes in the absence of direct proofs, and are, in their nature, indirect and constructive. Where the circumstances preceding and attending an act of this character are full, as in the present case, the prisoner is entitled to the benefit of any doubt that may arise, and cannot be deprived of such benefit by any presumption of guilt arising by operation of law from the naked fact of the homicide.... Id. (quoting State v. Coleman, 6 S.C. 185, 186-87 (1875)). Rochester continues: There is no doubt whatever of the isolated proposition that the law presumes malice from the mere fact of homicide, but there are cases as made by the proof to which the rule is inapplicable. When all of the circumstances of the case are fully proved, there is no room for presumption. The question becomes one of fact for the jury, under the general principle that he who affirms must prove, and that every man is presumed innocent until the contrary appears.... Rochester, 72 S.C. at 201, 51 S.E. at 687 (quoting State v. Hopkins, 15 S.C. 153, 156-58 (1881)). See also State v. Henderson, 74 S.C. 477, 479, 55 S.E. 117, 118 (1906); McDaniel, 68 S.C. at 314, 47 S.E. at 387; State v. Jones, 29 S.C. 201, 235-36, 7 S.E. 296, 314 (1888) ("[W]hile the law does presume malice ... yet, when the facts attending the homicide are brought out, there is no room for the presumption, and the state must prove the malice from the facts and circumstances attending the homicide, without any aid from the artificial presumption. Of course, this, like all other facts, must be proved beyond a reasonable doubt, and not merely by the preponderance of the evidence.”). . "Mullaney surely held that a State must prove every ingredient of an offense beyond a reasonable doubt....” Patterson v. New York, 432 U.S. 197, 215, 97 S.Ct. 2319, 2329, 53 L.Ed.2d 281 (1977). See infra note 15 demonstrating that in South Carolina, malice is an essential ingredient of murder. See also Guthrie v. Warden, Maryland Penitentiary, 683 F.2d 820, 824 n. 5 (4th Cir.1982), where Judge Winter had this to say: "Self-defense is wholly inconsistent with malice” when malice is an element of murder. . “After reading the statutory definitions of both offenses [murder and manslaughter], the [Maine trial] court charged that ‘malice aforethought is an essential and indispensable element of the crime of murder,’ without which the homicide would be manslaughter.” Mullaney v. Wilbur, 421 U.S. at 686, 95 S.Ct. at 1883. See Patterson v. New York, 432 U.S. at 212-213, 97 S.Ct. at 2328. . Recasting the presumption as a permissible inference, once it has vanished, qua presumption, through the introduction by the defendant of some evidence, see State v. Peterson, 287 S.C. 244, 247, 335 S.E.2d 800, 802 (1985), does not significantly aid the prosecution in the present case, for an inference is still a factual matter, unlike a presumption, which is a rule of law, and, therefore, must, with all factual matters in the case, meet the proof-beyond-a-reasonable-doubt standard. Franklin, 471 U.S. at 318, 105 S.Ct. at 1973. . Federal law of homicide, dealing with the killing of a federal agent, would reach the same result even while referring to self-defense as "an affirmative defense on which the defendant bears the burden of production_' [H]owever, once the defendant has met the burden of production, the government must satisfy the burden of persuasion and must negate self-defense beyond a reasonable doubt.” United States v. Alvarez, 755 F.2d 830, 842 n. 12 (11th Cir.1985), cert. denied, 474 U.S. 905, 106 S.Ct. 274, 88 L.Ed.2d 235 (1985) (emphasis supplied); cf. Frank v. United States, 42 F.2d 623 (9th Cir.1930). . See in this connection note 20, 421 U.S. at p. 695, 95 S.Ct. at p. 1888 and note 31 at pp. 702-03, 95 S.Ct. at pp. 1891-92 of Mullaney v. Wilbur for an exposition of the distinction between requiring the defendant to produce some probative evidence and casting on him the burden of persuading the factfinder. Judge Wilkinson has demonstrated why there was error in instructing that Smart bore the burden of proving by a preponderance the presence of self-defense (a burden of persuasion) in Davis v. Allsbrooks, 778 F.2d 168, 173 (4th Cir.1985): A burden of production shift, however, does not affect that requirement in any way. The defendant need not meet any persuasion burden at all, but instead must only introduce some evidence to dissipate the presumption and require the state to prove the element of the crime beyond a reasonable doubt. Indeed, as stated in the Annotation, Homicide: Modem Status of Rules as to Burden and Quantum of Proof to Show Self-Defense, 43 A.L.R.3d 221, 225 (1972): It is submitted that most, if not all, of the confusion in this area of the law could be eliminated if the term "burden of proof" were stricken from our legal vocabularies and replaced by two more precise terms, such as "burden of persuasion” and “burden of producing evidence.” . "[T]he New York statute involved no shifting of the burden to the defendant to disprove any fact essential to the offense charged since the New York affirmative defense of extreme emotional disturbance bears no direct relationship to any element of murder." Patterson v. New York, 432 U.S. at 201, 97 S.Ct. at 2322. . In Patterson v. New York, Justice White for the majority held that in New York causing a person’s death with an intent to do so alone made out the crime of murder. Id. at 205, 97 S.Ct. at 2324. It was also opined that “[mjalice aforethought is not an element of the crime.” Id. at 198, 97 S.Ct. at 2321. . Maine’s choice to make malice an element of the crime in Mullaney v. Wilbur, also made by South Carolina in Smart v. Leeke and, by contrast, New York’s constructing its statute in Patterson v. New York not to make absence of extreme emotional disturbance for which there was reasonable explanation or excuse an element of the crime is the controlling consideration here. The United States Supreme Court has had this to say: “Our opinions suggest that the prosecution’s constitutional duty to negate affirmative defenses may depend, at least in part, on the manner in which the State defines the charged crime.” Engle v. Isaac, 456 U.S. 107, 120, 102 S.Ct. 1558, 1567, 71 L.Ed.2d 783 (1982). “The applicability of the reasonable-doubt standard ... has always been dependent on how a State defines the offense that is charged in any given case.” Patterson v. New York, 432 U.S. at 211 n. 12, 97 S.Ct. at 2327 n. 12. .Holloway v. McElroy, 632 F.2d 605, 624-25 (5th Cir.1980), cert. denied, 451 U.S. 1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981): The States, however, are not completely proscribed from modifying through their legislatures and courts their criminal laws to reflect changing notions and policies: they may, within substantive fairness limits whose boundaries are not yet precisely marked, redefine the elements of their criminal offenses. In so doing, they may wish to reallocate burdens of persuasion on those issues that they remove from the definition of the crime, thereby converting those issues from elements into matters of mitigation or enhancement. Yet the States must also adhere tightly to procedural due process requirements in order to protect adequately the substantive values with which they may not tamper — such as the rule that conviction may be had only when the essential elements included in the definition of the crime have been established to a high degree of accuracy. Mullaney and Patterson both articulate one variation on the procedural due process requirement that the Winship Court found necessary to protect this particular substantive value: despite a State’s characterization of an issue as being an “affirmative defense,” the State may not place the burden of persuasion on that issue upon the defendant if the truth of the "defense” would necessarily negate an essential element of the crime charged. The assertion that placing the burden of proof as to lack of self-defense here on South Carolina will require every state, in every affirmative defense case, to prove the negative thus has the hollow ring of debased coinage. In considering whether Mullaney v. Wilbur or Patterson v. New York afforded the basis for deciding a case concerning enhanced punishment for visible possession of a firearm, the Supreme Court of the United States in McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), rested its decision on the following: Section 9712, which comes into play only after the defendant has been convicted of an enumerated felony, neither provides for an increase in the maximum sentence for such felony nor authorizes a separate sentence; it merely requires a minimum sentenc