Curfew Davis v. Ralph Kemp, Warden, Georgia Diagnostic and Classification Center, Respondent

752 F.2d 1515, 1985 U.S. App. LEXIS 28069

Opinions

PER CURIAM: *

In 1974, Petitioner Curfew Davis was convicted of murder in Georgia state court and sentenced to death. After an unsuccessful attempt to obtain a writ of habeas corpus in state court, Davis filed this petition for a writ of habeas corpus under 28 U.S.C.A. § 2254 (1976). The district court dismissed the petition without holding an evidentiary hearing. A panel of this court reversed on the ground that petitioner had been sentenced in 1977 before an unconstitutionally composed jury, and remanded for another sentencing proceeding, 721 F.2d 1478 (11 Cir., 1983). We granted the parties’ petition for rehearing en banc. The court now reinstates those sections of the panel opinion in this case which address jury composition (Section I), application of aggravating circumstance “outrageously or wantonly vile, horrible or inhuman” (Section IV), effective assistance of counsel (Section V), petitioner’s statements to police during in-custody interrogation (Section VI), and use of petitioner’s prior convictions (Section VIII). Because we agree with the disposition made by the panel opinion (Section I) as to the 1977 sentencing jury, we grant relief and remand the case to the district court with instructions to require yet another sentencing trial.

I. PROCEDURAL HISTORY

Based on a series of events which occurred in and around LaGrange, Georgia, on July 19, 1974,¹ Curfew Davis, a black male, was charged in the Troup County Superior Court with first-degree murder. The victim was a young white woman who had been temporarily in LaGrange on a work assignment. The trial jury found Davis guilty of the murder charge and, under the Georgia bifurcated trial procedure, recommended that he be sentenced to death. The trial judge entered findings and imposed the death sentence.

Davis appealed to the Supreme Court of Georgia, which affirmed the convictions and the sentence. Davis v. State, 236 Ga. 804, 225 S.E.2d 241 (1976). The United States Supreme Court granted certiorari, vacated the death sentence for a violation of the Witherspoon standards as to one prospective venireperson, and remanded for a new sentencing proceeding. Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976).

After the resentencing proceedings in June 1977 Petitioner was once again sentenced to death. The Supreme Court of Georgia affirmed, Davis v. State, 241 Ga. 376, 247 S.E.2d 45 (1978), and the United States Supreme Court denied certiorari. Davis v. Georgia, 439 U.S. 947, 99 S.Ct. 341, 58 L.Ed.2d 338 (1978).

Davis then brought a petition for a writ of habeas corpus in the Superior Court of Butts County, Georgia. This petition was denied in April 1981. The Georgia Su preme Court denied an application for certificate of probable cause to appeal the judgment of the Superior Court, and the United States Supreme Court denied certiorari. Davis v. Zant, 455 U.S. 983, 102 S.Ct. 1491, 71 L.Ed.2d 692 (1982).

Davis then filed the present petition for writ of habeas corpus in the United States District Court for the Northern District of Georgia. He subsequently filed a motion for an evidentiary hearing. The district court denied both the motion and the petition. A panel of this court reversed, citing the unconstitutional composition of the 1977 sentencing jury, and remanded for a new sentencing trial. This Court granted the petition of both parties for rehearing en banc.

The habeas petition now before us raises issues with respect to petitioner’s 1974 trial and his 1977 resentencing trial.

II. THE SANDSTROM CLAIM

Petitioner claims that, during the 1974 culpability phase of his trial, the trial court’s instructions to the jury on the elements of intent and malice violated his rights under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). In that case the Court held that the judge’s instructions deprived the defendant of due process because they were susceptible of an interpretation which removed from the prosecution the burden of proving every element of the crime beyond a reasonable doubt. To determine whether the judge’s instructions in this case thus infringed the constitutional rights of the petitioner, we must consider first, whether the instructions concerned an essential element of the offense with which the petitioner was charged; second, whether the instructions operated to shift the burden of proof; and third, whether any error which might have arisen from the shifting of the burden was harmless in the context of this case. Lamb v. Jernigan, 683 F.2d 1332, 1336-42 (11th Cir.1982), cert. denied, 460 U.S. 1024, 103 S.Ct. 1276, 75 L.Ed.2d 496 (1983).

Neither party contests the finding of the district court that under Georgia law, the elements of malice and intent to kill are essential elements of the crime of murder, which the state is required to prove beyond a reasonable doubt. See also Franklin v. Francis, 720 F.2d 1206, 1210 (11th Cir.1983), cert. granted, — U.S. —, 104 S.Ct. 2677, 81 L.Ed.2d 873 (1984); Lamb v. Jernigan, supra, 683 F.2d at 1336-37. The state argues, however, that both instructions contained sufficient clarifying language to dispel any impression that they relieved the prosecution of its burden of proof.

A. Intent

The trial court gave the jury the following instruction with respect to the element of intent:

Ladies and gentlemen, a crime is a violation of a statute of this state in which there shall be an [sic] union of joint operation of acts or an omission to act, and an intention for criminal negligence. The acts of a person of sound mind and discretion are presumed to be the product of the person’s will, but the presumption may be rebutted. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his act, but the presumption may be rebutted. A person will not be presumed to act with criminal intention, but the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. Every person is presumed to be of sound mind and discretion, but the presumption may be rebutted.

The state argues first that the frequent repetition of the warning that the relevant presumptions “may be rebutted” renders the instruction as a whole sufficiently “permissive” to “pass muster” under Sandstrom. This argument misunderstands both the Court’s opinion in Sandstrom and the application of that opinion to more recent eases by this court.

The Court held in Sandstrom that the language “the law presumes” was suscepti ble to interpretation as a mandatory presumption. Though this presumption could be regarded by the jury as rebuttable,² it was nonetheless unconstitutional, as it shifted the burden of proof to the defendant without specifying the quantum of evidence by which he could rebut the presumption. So long as the jury could conclude that the defendant was required to produce more than “some” evidence in order to rebut the presumption, the instruction impermissibly shifted the burden of proof. Sandstrom v. Montana, 442 U.S. at 517, 524, 99 S.Ct. at 2459.

The same rationale was applied by this Court in Franklin v. Francis, supra, to an instruction which was virtually identical to the one given in the instant case. In Franklin, this court observed that “the problem with the charge on intent here is that the jury was never enlightened as to the nature of the burden of Franklin to rebut the presumption that he intended the killing.” 720 F.2d at 1211. Because the jury could have concluded that Franklin “had to produce more than some evidence that he did not intend to kill,” id., the instruction shifted the burden impermissibly to the defendant.³ The instant instruction falls clearly under the rule established by Sandstrom and applied in Franklin. As it imposes a mandatory (“a person is presumed ... ”), rebuttable (“but this presumption may be rebutted”) presumption, and fails to specify the quantum of proof by which the defendant may rebut that presumption, it possesses the same constitutional defect as the charges’ found constitutionally defective in Sandstrom and Franklin.

The state argues next that the portion of the instruction stating that “a person will not be presumed to act with criminal intention” significantly reduces the likelihood that a jury could misinterpret the instruction. This claim has also been soundly rejected in recent cases decided by this Court.

The question was presented this year in Patterson v. Austin, 728 F.2d 1389 (11th Cir.1984), by an instruction which included both the presumptions challenged by Davis and the instruction offered here as curative by the State. With respect to that charge, this court explained:

Neither did the instruction that criminal intent should not be presumed eliminate the vice Sandstrom condemns. This instruction at best conflicted with the challenged presumption; it did not explain it. At worst, the jury could have made the instructions consistent, interpreting the burden to be on the defendant to rebut the presumption that he intended to kill [the victim], and on the State to show that the killing itself was criminal. Even if the jury believed that the two presumptions conflicted, it would be impossible for us to tell which one they decided to apply, or whether they applied something in between.

728 F.2d at 1394. See also Franklin v. Francis, 720 F.2d at 1212 (same conclusion). The court concluded in both Patterson and Franklin that the challenged instruction unconstitutionally shifted the burden of proof. The same is true of the instant instruction, whose criminal intent provision is more likely to enhance than to correct the jury’s confusion.

The state’s third argument, that any error was cured by the court’s instruction that the prosecution has the burden of proving every element of a crime beyond a reasonable doubt, is also without merit. This claim was rejected by the Supreme Court in Sandstrom, which held that a general instruction that the prosecution is required to prove each element beyond a reasonable doubt is not “rhetorically inconsistent” with a burden-shifting presumption. 442 U.S. 518-19, n. 7, 99 S.Ct. at 2456-57, n. 7. The general instruction could have been interpreted to suggest, for example, that the presumption was one means by which the prosecution’s burden of proof could be satisfied. Id. See also Patterson v. Austin, supra, 728 F.2d at 1894; Franklin v. Francis, supra, 720 F.2d at 1211-12. The instant instruction, which is identical to the general instruction concerning the burden of proof in the cases cited above, is susceptible to the same interpretation; thus it impermissibly shifts the burden of proof to the defendant.

B. Malice

The trial court’s instruction to the jury on the element of malice reads as follows:

There can be no murder under the laws of this State without malice, either express or implied. The law presumes it to be malice until the contrary appears from the circumstances of alleviation or excuse or justification, and under the laws it is incumbent upon the defendant to make out such circumstances satisfactory to the jury, unless they appear from the evidence offered against the defendant.

Ladies and gentlemen, while it is true that the law presumes malice when a homicide has been shown, yet that presumption of malice may be rebutted by the defendant from evidence offered by him or from evidence offered by the state or from both.

The state argues first that the curative language “or from evidence offered by the state or from both” eliminates any possibility that the instruction may be interpreted as shifting burden of proof on the element of malice. But this language, does not refute the inference that the defendant carries the burden of proof with respect to this element; if anything, it tends to reinforce that inference. What it specifies are the categories of evidence with which the defendant may satisfy that burden: with “evidence offered by him or ... by the state or from both.” The fact that the defendant may have larger pool of evidence on which to draw in order to prove his innocence does not negate the conclusion suggested by the very unequivocal language “the law presumes” that the burden is on the defendant to demonstrate an absence of malice once a homicide has been shown.⁴

The state argues next that the instruction that “the presumption may be rebutted” is sufficient to cure any error engendered by the mandatory language preceding it. In support of this proposition, appellee cites this court’s opinion in Corn v. Zant, 708 F.2d 549 (11th Cir.1983), which upheld as constitutional an instruction which contained both the mandatory presumption and the statement that the presumption may be rebutted. This claim is subject to the same infirmity as the analogous argument raised with respect intent: Sandstrom is concerned with whether the presumption is mandatory, not whether it is rebuttable. Once the jury is instructed that “the law presumes” malice, the burden has been unconstitutionally shifted, unless the instruction specifies the precise quan turn of evidence by which the defendant can refute the presumption against him. The state’s reliance on Corn is, moreover, misplaced. The curative instructions contained in that charge included not only the general instruction on rebuttability, but several instructions which suggested that the presumption concerning malice was permissive rather than mandatory.⁵ Because the instruction in this case contains none of these additional instructions, it is closer to the instruction given in Franklin v. Francis, supra, than to that upheld in Corn. The instruction in Franklin, which contained arguably stronger curative language than that included in the instant instruction,⁶ was struck down because it failed to specify the quantum of evidence by which the defendant was required to refute the presumption against him. 720 F.2d at 1211. The instruction in the instant case, which is possessed of the same defect, requires a similar fate.

Nor is the instruction saved by the state’s final argument, that the general instruction regarding the prosecutor’s burden cured any error. This claim is no more effective with respect to malice than it is with respect to intent. See supra, at 20222023. Because the two presumptions are not necessarily inconsistent, a reasonable juror could still have concluded that the instruction shifted the burden of proof to the defendant. Sandstrom, supra, 442 U.S. at 518-19 n. 17, 99 S.Ct. at 2456-57, n. 17. Thus none of the ameliorative instructions offered by the state cures the unconstitutional shifting of the burden of proof effected by the mandatory presumptions concerning intent and malice; it only remains to be seen whether the error implicit in this shifting of the burden was harmless.

C. Harmless Error

In Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983), four members of the Court suggested that the harmless error doctrine may be per se inapplicable to a Sandstrom error; this absolute rule was not, however, adopted by a majority of the Court. Therefore, under the existing precedent, harmless error can be invoked with regard to a Sandstrom violation.⁷ See also Lamb v. Jernigan, 683 F.2d 1332 (11th Cir.1982), cert. denied, 460 U.S. 1024, 103 S.Ct. 1276, 75 L.Ed.2d 496 (1983).

This court has identified two situations in which harmless error in the case of a Sandstrom violation can be invoked: if the evidence was overwhelming as to the defendant’s guilt⁸ and if the instruction was applied to an element of the crime which was not at issue at the trial.⁹ Lamb, 683 F.2d at 1342. See also Drake v. Francis, 727 F.2d 990, 999 (11th Cir.1984); Spencer v. Zant, 715 F.2d 1562, 1577-78 (11th Cir.1983). The defendant in this case gave a number of inconsistent versions as to his involvement in the murder. Though inconsistent, the predominant theme in all of them was that he had nothing whatsoever to do with the crime. See Davis v. State, 236 Ga. 804, 804-08, 225 S.E.2d 241, 242-43 (1976). Although there was no explicit concession of intent and malice, the main thrust of the defense was non-involvement.

The evidence in this case is overwhelming ¹⁰ that whoever killed the victim did so with intent and malice. The victim died of a .22 caliber pistol bullet in her brain; she also suffered severe fractures to her face and jaw bones, and her clothing had been torn into strips and tied together as if they had been used as bonds to tie her. Davis v. State, supra. Under these circumstances, it is readily understandable why lack of intent was not affirmatively pursued. While the burden of proof with respect to intent and malice remained on the state, it was not a contested issue nor an alternative defense.

As stated by the Sixth Circuit in a recent opinion, Engle v. Koehler, 707 F.2d 241, 246 (6th Cir.1983), aff'd by an equally divided court, — U.S. —, 104 S.Ct. 1673, 80 L.Ed.2d 1 (1984) (per curiam), “the prejudicial effect of a Sandstrom instruction is largely a function of the defense asserted at trial.” That Court of Appeals had divided Sandstrom violations into two categories: those which occur when the defendant claims non-participation in the crime and those when the defendant claims lack of mens rea. Id. In the first category the doctrine of harmless error may be found applicable. Id. The defense presented by Davis was non-participation. The intent of the person or persons committing the crime was not a contested issue. Under these circumstances, the doctrine of harmless error is most appropriate.

CONCLUSION

Although we find a Sandstrom violation in the charge given to the 1974 jury (culpability proceedings), we hold it is harmless error under the particular circumstances of this case.

REVERSED and REMANDED for appropriate relief in accordance with those sections of the panel opinion which have now been reinstated.

Footnotes

*

Concurring in Sections IIA and B of this Per Curiam opinion are: Chief Judge Godbold, Judges Vance, Kravitch, Johnson, Hatchett, Anderson and Clark.

Concurring in Section IIC of this Per Curiam opinion are: Judges Roney, Tjoflat, Hill, Fay, Vance, Henderson and Anderson.

1

. The historical facts are set out in detail in Davis v. State, 236 Ga. 804, 225 S.E.2d 241 (1976).

2

. The Court held that the presumption might be interpreted as irrebuttable, or conclusive, or as rebuttable, 442 U.S. at 516-517, 99 S.Ct. at 2455-56, but because it did not, in either case, exclude the perception on the part of the jury that the defendant would be required to offer more than "some" evidence in order to rebut the presumption, it shifted the burden of proof in violation of the Constitution.

3

. We reject the argument offered by the state that this Court’s opinion in Lamb v. Jernigan, supra, should control with respect to the intent instruction. Notwithstanding the state claims of similarity, there are differences of constitutional stature between the language of the instruction in that case and the language used here. Most notable is the use, in the Lamb instruction, of the language "intent may be presumed" (emphasis added). This language, which clearly signals a permissive presumption, is distinguishable from a mandatory directive ("the law presumes”, "a person is presumed"), such as the one employed in this case. The court in Lamb, moreover, relied on this distinction in upholding the instruction in that case. 683 F.2d at 1340.

4

. Similar language contained in the malice instruction in Lamb v. Jernigan, supra, did not, moreover, prevent that instruction from being struck down as unconstitutionally burden-shifting. Lamb instruction said that the defendant need not demonstrate circumstances rebutting the presumption where such circumstances "appear from the evidence produced against him.” If this instruction, which is even more explicit in relieving the defendant of the burden of proof under certain circumstances, was insufficient to "pass muster” under Sandstrom then the instruction given in the instant case is insufficiently curative.

5

. The instruction in Corn also noted that the accused "may" show circumstances to negate intent, “but he is not required to do so”; that he “may” show that the killing was done without malice, "but he is not required to do so”; that "if such evidence produced against the accused, if there be such, discloses that the homicide was done without malice, then this presumption that homicide is malicious does not exist”; and that "this presumption ... does not arise against the slayer unless it be first shown to a moral and reasonable certainty and beyond a reasonable doubt the defendant was the intentional slayer.”

Despite the more potent curative instructions included in that charge, it appears that the court in Corn upheld the instruction by applying a standard which was different than that developed in Sandstrom and employed in the later cases decided by the Court. The Court in Sandstrom held that whether the defendant's right had been infringed depended on how a reasonable juror “could have interpreted the instruction." 442 U.S. at 514, 515, 517, 519, 524, 99 S.Ct. at 2454, 2455, 2456, 2459. The Court held it to be irrelevant that a juror could have drawn a permissible inference, if the instruction also allowed a juror to draw an impermissible inference. Id. at 519, 99 S.Ct. at 2456. The Court in Com begins by articulating this standard, 708 F.2d at 558, but inexplicably declines to apply it. The Com panel reached its conclusion based on what it believes a reasonable juror would do, or did in fact do, id. at 559, 560; it does not ask that a reasonable juror could have concluded, given the language of the instruction. This analysis also departs from this Court’s opinions in Lamb v. Jernigan, 683 F.2d at 1338-40, Franklin v. Francis, 720 F.2d 1210-12, and Patterson v. Austin, 728 F.2d at 1394, which applied the Sandstrom standard. Corn also appears to be the only case in this Circuit to suggest that an impermissible instruction may be cured simply by the inclusion of a statement that the presumption created by the instruction is rebut-table. 708 F.2d at 559.

6

. The Franklin instruction states: “it is not encumbent [sic] upon the accused to prove an absence of malice if the evidence for the prosecution shows facts which may excuse or justify the homicide. The accused is not required to produce evidence of mitigation, justification or excuse on his part to the crime of murder. Whether mitigation, justification or excuse is shown by the evidence on the part of the state, it is not required of the accused to prove an absence of malice if the evidence for the State showed facts which may excuse or justify the homicide.” 720 F.2d at 1209. This curative instruction, which is ambiguous as to whether the defendant is obliged to make a showing of extenuation when this showing has not been made by the State, seems weaker than the curative instruction given in Corn and stronger than that given in the instant case.

7

. The harmless error doctrine stems from Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The inquiry made is whether a court may say "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id., at 24, 87 S.Ct. at 828.

8

. Numerous courts have applied harmless error when the evidence of the guilt of the defendant was overwhelming. See e.g., United States v. Fricke, 684 F.2d 1126, 1129 (5th Cir.1982); Tweety v. Mitchell, 682 F.2d 461, 465 (4th Cir.1982).

9

. Other courts have held that if a criminal defendant’s intent is not a disputed issue at trial, then harmless error may be invoked. See, e.g., Conway v. Anderson, 698 F.2d 282, 285 (6th Cir.1983); Petition of Hamilton, 721 F.2d 1189 (9th Cir.1983); United States v. Winter, 663 F.2d 1120, 1144-45 (1st Cir.1981). Cf. Redding v. Benson, 739 F.2d 1360, 1364-65 (8th Cir.1984) (failure to properly instruct on a material element of a crime does not warrant automatic reversal).

10

. Although some opinions talk in terms of overwhelming evidence of guilt, (which will obviously always include the necessity of overwhelming evidence of intent), the analysis in the text makes it clear that the crucial inquiry relates to whether or not there is overwhelming evidence of intent. See Connecticut v. Johnson, 460 U.S. at 86, 103 S.Ct. at 977 (Blackmun, J.) and at 90, 96, 97, 99, 101, 103 S.Ct. at 979, 982, 983, 984, 985 (Powell, J.). The jury in this case concluded that Davis was the killer, and that conclusion could not have been affected by the erroneous instruction. Thus overwhelming evidence that Davis was the killer is not required.