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Robert G. Lamb v. Marvin Jernigan, Warden, 683 F.2d 1332, 11th Cir. (1982)
Robert G. Lamb v. Marvin Jernigan, Warden, 683 F.2d 1332, 11th Cir. (1982)
2d 1332
James C. Bonner, Jr., Prisoner Legal Counseling Project, Legal Aid and
Defenders Society, University of Ga. School of Law, Athens, Ga., for
plaintiff-appellant.
Susan V. Boleyn, Asst. and counsel of record, Atlanta, Ga., for defendantappellee.
Appeal from the United States District Court for the Middle District of
Georgia.
Before RONEY and KRAVITCH, Circuit Judges, and PITTMAN * ,
District Judge.
KRAVITCH, Circuit Judge:
The sole issue presented by this appeal is whether jury instructions given at
appellant's state court trial violated his right to due process.
A. Facts
2
Appellant was tried for murder in Georgia Superior Court. Evidence introduced
by the prosecution at trial established the following facts. At about midnight on
a Saturday night in March 1978, security officers for a public housing project in
Columbus, Georgia were contacted by a woman living in the apartment
complex about a disturbance in the apartment directly above. When the officers
arrived at her apartment they heard loud noises from above, including a blaring
television and sounds of people arguing and moving around. The officers
knocked on the door of the apartment from which the noise was emanating and
called to the tenant Brady, who replied from inside that he needed help. Fifteen
seconds later appellant opened the door, which had been locked. Inside, the
officers found Brady covered with blood, having sustained multiple wounds
from an ice pick found by the officers in another room. Appellant told the
officers someone had beat Brady.
3
Appellant gave three conflicting stories-two to police prior to trial, and a third
that he related both to the police and on the witness stand. In the first two
statements, he denied having inflicted the wounds that killed Brady; in his third
statement, however, which he reiterated at trial, he described an argument
between himself and Brady after the two had been drinking. A physical struggle
ensued during which appellant allegedly cried for help. He testified that Brady
accused him of stealing some whiskey and of taking Brady's girlfriend and that
eventually Brady attacked him with the ice pick, stabbing him twice. Appellant
stated that he then grabbed the weapon, "begged (Brady) to quit," and started
"slinging" the pick, which he was unable to get out of Brady's hand. He
testified that the two continued to struggle and that he "managed to turn the ice
pick around" and push it back toward Brady. Appellant testified that he had
given the prior false statements to police because he had been scared.
On the basis of this evidence a jury found appellant guilty of murder, rejecting
appellant's claim of self-defense. After being sentenced to life imprisonment
and pursuing an unsuccessful appeal in state court, appellant filed this petition
for habeas corpus in the district court.1 That court denied relief, and this appeal
followed.
B. Constitutional Standard
6
10
11
12
The Georgia Supreme Court explained the state's law governing allocation of
proof on the malice issue in Davis v. State, 237 Ga. 279, 227 S.E.2d 249
(1976):
14
15
16
Id. at 280, 227 S.E.2d at 250. If the instructions concerning malice operated in
accordance with the above statement of Georgia law then they did not violate
the due process clause. 9 While the Georgia Supreme Court is the "final
authority on the weight to be given a presumption under (Georgia) law,"
however, "it is not the final authority on the interpretation which a jury could
have given the instruction(s)" here challenged. Sandstrom v. Montana, 442 U.S.
at 516-17, 99 S.Ct. at 2455. It is our duty independently to scrutinize "the
words actually spoken to (appellant's) jury" to determine "the way in which a
reasonable juror could have interpreted (them)." Id. at 514, 99 S.Ct. at 2454.
17
a. Intent instruction
18
Appellant challenges the state court's intent instruction, which provides that
intent "may be inferred ... from proven circumstances or by the acts and
conduct of the defendant or ( ) may be presumed when it would be the natural
and necessary consequence of the particular acts.10 Appellant argues that
Sandstrom v. Montana, supra, which invalidated a charge stating "(t)he law
presumes that a person intends the ordinary consequences of his acts,"
Sandstrom v. Montana, 442 U.S. at 513, 99 S.Ct. at 2453, is controlling. Even
were the charge in this case identical to that given in Sandstrom, the latter case
would not necessarily compel reversal here, however. It is well established that
"(i)n determining the effect of (an) instruction on the validity of (a) conviction,
... a single instruction may not be judged in artificial isolation, but must be
viewed in the context of the overall charge." Cupp v. Naughten, 414 U.S. 141,
146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). " (T)he question is not
whether the trial court failed to isolate and cure a particular ailing instruction,
but rather whether the ailing instruction by itself so infected the entire trial that
the resulting conviction violates due process." Id. at 147, 94 S.Ct. at 400.
Accord Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52
L.Ed.2d 203 (1977). The approach mandated by the above cases requires courts
to consider the effect even of patently erroneous instructions in light of the
remainder of the charge and the entire trial. The instructions preceding the one
at issue informed the jury of the presumption of innocence, and the state's
burden of proof beyond a reasonable doubt.11 Moreover the jury was
specifically instructed that intent is an essential element to be determined by it
from the evidence produced at trial. See note 8 supra. Although these prior
instructions were not entirely inconsistent with a conclusive or burden-shifting
presumption, cf. Sandstrom v. Montana, 442 U.S. at 518 n.7, 99 S.Ct. at 2456
n.7, they reduced the likelihood that the jury might misinterpret the following
instruction as such. In any event, the instruction in this case was not identical to
that invalidated in Sandstrom, and we conclude that the differences were
constitutionally significant.11a
19
Initially, we note that the first part of the instruction, which was not present in
Sandstrom, is perfectly sound, constitutionally and otherwise. The import of the
statement that intent "may be inferred ... from proven circumstances or by the
acts and conduct of the defendant" is simply that the jury may rely on
circumstantial evidence in finding intent. In no way does the instruction suggest
that the burden is on the defendant rather than the prosecution or that the
circumstantial evidence need not convince the jury of the defendant's intent
beyond a reasonable doubt. Indeed, the instruction given two paragraphs later
emphasized the applicability of the reasonable doubt standard in the special
context of circumstantial evidence by requiring that facts proven by such
evidence "not only be consistent with the hypothesis of guilt, but shall exclude
every other reasonable hypothesis save that of the guilt of the accused." As to
the second part of the instruction, stating that intent "may be presumed when it
would be the natural and necessary consequence of the particular acts," such
charge was also permissive. Unlike the ambiguous directive-"the law presumes
that ..."-contained in the Sandstrom and Mason instructions, the "may be
presumed" language used here was unlikely to be interpreted by reasonable
jurors as requiring them to draw an inference of intent. Compare Sandstrom v.
Montana, 442 U.S. at 514-15, 99 S.Ct. at 2454; Mason v. Balkcom, 669 F.2d at
225.12 The permissive language would also tend to prevent reasonable jurors
from viewing the presumption, once made, as conclusive or irrebuttable.
Having been told that they might infer intent from certain types of evidence,
reasonable jurors would not likely conclude they were entitled to do so in the
face of convincing contradictory evidence. Finally, even if the instruction could
have been understood as allowing the jury to make an irrebuttable inference of
intent, the term "necessary" limited the acts from which the jury could draw
such inference to those that in its view could not have been performed
unintentionally. We conclude that this instruction was not reasonably
susceptible of an interpretation that relieved the prosecution of its burden of
proving intent beyond a reasonable doubt or otherwise undermined the
factfinding responsibility of the jury.
20
b. Malice instructions
21
The second instruction with which appellant takes issue provides that "(m) alice
shall be implied where no considerable provocation appears and where all the
circumstances of the killing show an abandoned and malignant heart." The
"shall be implied" language in this charge is suggestive of a mandatory
presumption, which might be interpreted either as conclusive or rebuttable.
Further analysis reveals, however, that the evidentiary device created by the
instruction does not fit that mold. The basic or underlying facts from which the
so-called presumption of malice is drawn are not specifically delineated but
rather are referred to in the general terms "circumstances ... show(ing) an
abandoned and malignant heart." Hence, before drawing an inference of malice,
the trier of fact must first conclude that the facts surrounding the killing
indicate that the defendant acted with a "malignant heart." Again such
instruction is really a directive to the jury that the finding of malice must often
be based entirely on circumstantial evidence-that it is not entitled to refuse to
find malice solely because direct evidence of malicious intent is lacking. This
instruction does not expressly relieve the prosecution of proving circumstances
that indicate malice nor reduce such burden to something less than beyond a
reasonable doubt. Considered in isolation the instruction failed to meet the goal
of precision and clarity espoused in the Mullaney and Sandstrom cases. In view
of the strong circumstantial evidence instruction preceding this instruction, see
note 8 supra, however, we cannot conclude that reasonable jurors would have
interpreted the latter as changing the reasonable-doubt burden of proof they
were initially told the prosecution had to meet.
22
23
24
The Mason case recognizes that the harmless error rule may apply to an
unconstitutional, burden-shifting instruction. Where the instruction shifts the
burden on an element that is not at issue in the trial, for example, the error will
be held harmless. Id. at 227. See, e.g., Holloway v. McElroy, 632 F.2d at 61718 (instruction re malice held harmless where defendant convicted of offense
for which malice was not an element; instruction re intent harmless because
defendant never contested intent). The erroneous instruction in this case
concerned malice. Appellant was convicted of murder, of which malice is one
of the essential elements under Georgia law. See text supra at 1336 - 1338.
Moreover although he admitted the killing, appellant contended at trial that he
acted in response to an attack on himself by the victim. Appellant's testimony
indicates his primary defense was that he acted in self-defense and, allegedly,
with provocation.15 Because self-defense and provocation negate malice and the
jury was required to find malice before it could convict appellant16, the
existence of malice obviously was a critical issue at appellant's trial. Even
though the erroneous instruction pertains to an element that was at issue in the
trial, however, it may still have been harmless if the evidence of guilt was so
overwhelming that the error cannot have contributed to the jury's decision to
convict. Mason v. Balkcom, 669 F.2d at 226, 227. We hold that in this case the
evidence of guilt was overwhelming. Appellant was found alone in an
apartment with the deceased on the night of the killing. He gave three
conflicting accounts of the incident to the police, eventually admitting that he
committed the killing. Although he testified that the victim initially attacked
and wounded him with the ice pick, the officers who examined appellant on the
scene testified that they had observed no wounds like those he described.
Moreover, in stark contrast to appellant's testimony that his intent was merely to
prevent the victim from harming him, the state's evidence showed that
appellant stabbed the seventy-two year old victim eleven times and that at least
three of the wounds appellant inflicted would immediately have disabled him.
Without dwelling further on the grisly details surrounding this brutal killing, we
conclude that no reasonable juror could have determined, from the evidence
presented at appellant's trial, that appellant acted out of provocation or selfdefense. Hence, the erroneous instruction was harmless beyond a reasonable
doubt; accordingly, we AFFIRM.
Although it does not appear from the record that appellant raised this claim in
his direct appeal or collateral attacks in state court so as to exhaust his state
remedies, the state apparently conceded in its answer to appellant's habeas
petition that recourse to the state courts would be futile. Further, the state has
not raised lack of exhaustion in this court. The former Fifth Circuit has held that
a state's failure to raise lack of exhaustion in the district court ordinarily
constitutes waiver of the exhaustion requirement. Hopkins v. Jarvis, 648 F.2d
981, 983 n.2 (5th Cir. 1981); Messelt v. Alabama, 595 F.2d 247, 250-251 (5th
Cir. 1979). In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en
banc) this circuit adopted as precedent the decisions of the former Fifth Circuit.
On the authority of the above Fifth Circuit cases, therefore, we hold that the
state has waived the exhaustion requirement and we will address the merits of
appellant's claim
2
None of those cases is entirely dispositive of this case because neither the
specific instructions appellant challenges nor the entire charge given at his trial
are identical to those involved in the above cases
See also Black's Law Dictionary 661 (5th ed. 1979), which includes among the
definitions of malice:
A condition of mind which prompts a person to do a wrongful act willfully, that
is, on purpose, to the injury of another, or to do intentionally a wrongful act
toward another without justification or excuse.
In murder, that condition of mind which prompts one to take the life of another
without just cause or provocation .... It includes not only anger, hatred and
revenge, but also every other unlawful and unjustifiable motive.
(emphasis added). Although, as the Holloway court noted, a legal excuse or
justification such as self-defense negates the "unlawfulness" element of murder,
Holloway v. McElroy, 632 F.2d at 631-35, apparently it refutes the malice
element as well.
The instructions given at appellant's trial are reprinted below, with omissions as
indicated. The specific instructions appellant challenges are italicized
(Introductory instructions describing role and content of indictment and
defendant's plea)
Now, this defendant enters upon the trial of this case with the presumption of
innocence in his favor and that presumption remains with him throughout the
trial of this case, until and unless the State produces evidence in your presence
and hearing, sufficient to convince your minds of the guilt of the accused of the
crime charged in this Bill of Indictment.
The burden rests upon the State to prove to your satisfaction beyond a
reasonable doubt every material allegation in this Indictment beyond a
reasonable doubt before you would be authorized to convict the accused of this
crime.
(instructions defining reasonable doubt and discussing credibility of witnesses
omitted)
Now, criminal intent, being an essential element of every crime, is a question of
fact to be determined by you, ladies and gentlemen of the jury, whether such
intent existed in the mind of this defendant at the time of the alleged crime.
Intent may be shown in many ways, provided you find that it existed from the
evidence produced before you during the trial of this case.
It may be inferred, ladies and gentlemen, from proven circumstances or by the
acts and conduct of the defendant or it may be presumed when it would be the
natural and necessary consequence of the particular acts.
Stated simply in laymans language, ladies and gentlemen, criminal intent means
simply the intent to commit an act which the laws of the State of Georgia
prohibit and forbid.
Now, direct evidence is that which immediately points to the question at issue.
Indirect or circumstancial (sic) evidence is that which only tends to establish
the issue by proof of various facts, sustaining by their consistency they (sic)
hypothesis claimed. And I instruct you that in order to warrant a conviction
upon circumstantial evidence, the proven facts shall not only be consistent with
the hypothesis of guilt, but shall exclude every other reasonable hypothesis,
save that of the guilt of the accused.
(instructions on expert testimony omitted)
Now, ladies and gentlemen, in this criminal Bill of Indictment this defendant is
charged with the offense of murder. And I instruct you that the laws of the State
of Georgia says that a person commits murder when he unlawfully, and with
malice aforethought, either expressed or implied, causes the death of another
human being.
Expressed malice is that deliberate intention unlawfully to take away the life of
a fellow creature, which is manifested by external circumstances capable of
proof.
Malice shall be implied where no considerable provocation appears and where
all the circumstances of the killing show an abandoned and malignant heart.
Now, ladies and gentlemen, the law presumes that every homocide is malicious
until the contrary appears from circumstances of alleviation, excuse or
justification, and it is incumbant (sic) upon the accused to make out such
circumstances to your satisfaction unless they appear from the evidence
produced against him.
I charge you ladies and gentlemen that legal malice is not necessarily ill will or
hatred. It is the unlawful intent to kill and person (sic)-to kill a human being
without justification or mitigation, which intention, however, must exist at the
time of the killing as alleged.
Under the law, it is a fixed and deliberate person (sic) in the mind of the slayer
to unlawfully take away the life of a human being under circumstances that the
law would neither mitigate, justify nor excuse.
Under the law, it is not necessary that it would exist for a considerable time.
Under the law, if it should exist for just one moment and if death should insue
(sic) in consequence of such fixed and deliberate purpose, the killing would be
murder.
In legal contemplation, a man may form the intention of doing some act at a
particular instance, commit the act, and regret it as soon as it is done.
Now, ladies and gentlemen, this defendant states that the acts that he committed
were justifiable, that he committed them in defense of his person.
The law of the State of Georgia says thus, that a person is justified in using
force against another when and to the extent that he reasonably believes that
such force is necessary to defend himself against such others (sic) imminent use
of unlawful force. However, a person is justified in using force which is
intended or likely to cause death or great bodily harm only if he reasonably
believes that such force is necessary to prevent death or great bodily injury to
himself.
Now, ladies and gentlemen, if you believe this defendant to be justified in the
homicide of this defendant, it would be your duty to acquit him.
9
The Supreme Court has recognized that inferences that operate to shift only a
low burden of production-and not the burden of persuasion-to the defendant are
constitutionally acceptable if there is a rational connection between the
inference and the underlying facts. See Ulster County Court v. Allen, 442 U.S.
at 157 n.16, 99 S.Ct. at 2225 n.16; Mullaney v. Wilbur, 421 U.S. at 701-02 &
nn.28, 30-31, 95 S.Ct. at 1891 & nn.28, 30, 31. See also Holloway v. McElroy,
632 F.2d at 635 (quoting Hankerson v. North Carolina, 432 U.S. 233, 237 n.3,
97 S.Ct. 2339, 2342 n.3, 53 L.Ed.2d 306 (1979))
10
See first italicized instruction in note 8 supra. In Holloway, supra, the court
declined to rule on an instruction pertaining to the presumption of intent,
holding instead that any error in such instruction was necessarily harmless in
view of the defendant's having acknowledged that the killing was intentional.
Holloway v. McElroy, 632 F.2d at 618. In this case, although appellant
admitted the killing, it is unclear whether he raised a defense based on lack of
intent. The evidence indicated he had been drinking on the night of the killing,
and he testified at trial that he was "tore up" and "in a state of confusion" at the
time of the incident. Since the record does not contain the arguments of
counsel, we cannot be sure the defense theories did not include lack of intent.
Cf. Mason v. Balkom, 669 F.2d at 228 (Hill, J., specially concurring). Nor has
appellant acknowledged intent to kill in this habeas action. Hence we must
address the validity of the intent instruction
11
See note 8 supra. Compare id. with Tennon v. Ricketts, 642 F.2d at 162-63
(instructions provided presumption of innocence removed when state shows
intentional killing); Holloway v. McElroy, 632 F.2d at 619 (same)
11a We realize that language in the recent opinion of Hearn v. James, 677 F.2d
841 (11th Cir. 1982) suggests that an almost identical instruction may be
invalid under Sandstrom. Id. at 843. The Hearn panel did not decide this issue,
however, because the defendant in Hearn had been convicted of an offense to
which the challenged instruction did not apply rendering any possible error in
the instruction harmless. See id. Hence, the Hearn panel's intimation that such
instruction might be unconstitutional is dictum, which is not binding on the
court.
12
Although ideally an instruction such as this should explicitly inform the jury
that it is only permitted-and not obligated-to draw the inference described, e.g.,
United States v. Ross, 626 F.2d 77, 79-80 (9th Cir. 1980); United States v.
McRae, 593 F.2d 700, 705 (5th Cir. 1978), cert. denied, 444 U.S. 862, 100
S.Ct. 128, 62 L.Ed.2d 83 (1979), perfection is not the constitutional standard
13
The charges in those cases, in addition to language very similar to the malice
instruction at issue, included a paragraph stating that once the prosecution
proves the defendant intentionally killed the victim "the presumption of
innocence with which he enters upon the trial is removed from him and the
burden is upon him to justify or mitigate the homicide...." Tennon v. Ricketts,
642 F.2d at 162; Holloway v. McElroy, 632 F.2d at 619. Such instruction
combined with one like that at issue even more obviously than the latter
instruction by itself shifted the burden to the defendant to prove factors
inconsistent with malice
14
application of the harmless error rule in this context. They hold simply that
where the jury is allowed or required to draw an invalid presumption, the
presence in the record of evidence sufficient to support the presumed facts is
not dispositive. See Leary v. United States, 395 U.S. 6, 31-32, 89 S.Ct. 1532,
1545-1546, 23 L.Ed.2d 57 (1969). This does not mean that a burden-shifting
instruction may not be considered harmless where evidence in the record
overwhelmingly establishes guilt. Where the evidence is merely sufficient, the
jury conceivably could have acquitted the defendant had the erroneous
instruction not been given. Where the evidence is overwhelming, however,
such that the court concludes that no reasonable juror could have voted in favor
of acquittal, the jurors' possible erroneous reliance on an unconstitutional
presumption cannot prejudice the defendant. Finally, we note that the former
Fifth Circuit has already resolved the question of the applicability of the
harmless error rule to burden-shifting instructions. See Mason v. Balkcom, 669
F.2d 222, 227 (5th Cir. 1982); United States v. Sutton, 636 F.2d 96, 98 (5th Cir.
1981). See also Nelson v. Solem, 640 F.2d 133, 136 (8th Cir. 1981); United
States v. Harrigan, 586 F.2d 860, 863 (1st Cir. 1978)
15
The evidence the defense introduced was extremely weak on both provocation
and self-defense, and it is difficult to determine from that alone what the
defense's main theories were. Moreover, because the record does not contain
counsels' summation, we can only surmise what arguments the defense attorney
likely made. Appellant's brief suggests that his defense was provocation. The
trial court's charge, however, contains an instruction on self-defense but no
specific instruction on provocation. See note 8 supra. The facts do not indicate
that appellant requested a charge on provocation; hence it appears he relied
primarily on self-defense in attempting to negate malice
16
Appellant was charged with murder only, and the court did not instruct the jury
on the lesser offense of voluntary manslaughter