Tennon v. Ricketts
| Decision Date | 10 April 1981 |
| Docket Number | No. 79-3305,79-3305 |
| Citation | 642 F.2d 161 |
| Parties | Hugh H. TENNON, III, Petitioner-Appellee, v. Dr. James RICKETTS, Warden, Respondent-Appellant. . Unit B |
| Court | U.S. Court of Appeals — Fifth Circuit |
Susan V. Boleyn, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellant.
C. B. King, Albany, Ga., for petitioner-appellee.
Appeal from the United States District Court for the Middle District of Georgia.
Before GODBOLD, Chief Judge, and HATCHETT, Circuit Judge, and MARKEY *, Chief Judge.
In this case the State of Georgia appeals the grant of 28 U.S.C. § 2254 habeas relief to Hugh H. Tennon, III, convicted of murder and sentenced to life imprisonment. At issue is whether the Georgia trial court's instruction to Tennon's jury shifted the burden to Tennon to prove his innocence in violation of the due process clause of the fourteenth amendment. Relying on Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), we hold that the trial court's charge unconstitutionally shifted the burden of persuasion to Tennon on the issue of self-defense and that this unconstitutional shift was not harmless error. Accordingly, we affirm the decision of the district court that Tennon must receive a new trial.
A Georgia grand jury indicted Tennon for the murder of a police officer. Tennon was Tennon testified in his own defense. He stated that he was arrested for selling newspapers without a permit; that the officer then unnecessarily forced him into the police car. Tennon testified that, in the car, the officer made racially abusive remarks and struck him in the face without provocation. Tennon further testified that a struggle ensued, at which point the officer drew his handgun; that he and the officer fought over the gun and "the gun started shooting." In essence, Tennon testified that the shooting was either in self-defense or accidental.
tried and convicted of murder. At his jury trial, the prosecution proved that the officer had taken Tennon into custody for distributing the newspaper Muhammad Speaks without a city permit. The officer placed Tennon in the passenger side of his police car and headed towards the police station. After driving a few blocks, according to the prosecution, Tennon grabbed the officer's handgun and shot him five times, fatally wounding the officer. The prosecution's case rested on a witness who testified that he saw Tennon taken into custody and on another witness who said he saw a man flee from the car after it stopped. This witness could not identify the man that fled.
The Georgia trial court instructed the jury as to Tennon's presumption of innocence and the prosecution's burden to prove each and every element of the crime of murder beyond a reasonable doubt. The court defined murder, instructed as to the lesser included offense of voluntary manslaughter, and instructed as to self-defense. The court's instructions to the jury included the following disputed portion.
Members of the Jury, a crime is a violation of a statute of this State in which there shall be a union of joint operation of act, or omission to act, and intention, or criminal negligence.
I charge you every person is presumed to be of sound mind and discretion, but the presumption may be rebutted.
I charge you that 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 acts, but the presumption may be rebutted.
I charge you that a person will not be presumed to act with criminal intention, but the trier of facts, and that's the jury, 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.
I charge you further, that the law presumes every intentional homicide to be malicious until the contrary appears from circumstances of alleviation, of justification, of mitigation, or excuse, and the burden is upon the slayer whenever an intentional homicide has been proved to make out such circumstances to the satisfaction of the jury unless they appear from the evidence produced against him. If, however, the proof, if there be any, that shows the homicide itself discloses that the homicide was done without malice, this presumption that the homicide is malicious does not exist, but if the accompanying proof, if there be any, does not disclose that the killing was done without malice, then it is incumbent upon the slayer to show that it was done without malice.
I charge you, however, that this presumption which arises against the slayer where an intentional homicide is shown, does not arise against a Defendant unless it first be shown to a moral and reasonable certainty, and beyond a reasonable doubt, that the Defendant is the intentional slayer. Unless it appears beyond a reasonable doubt, and to a moral and reasonable certainty, that this Defendant is the intentional slayer, this presumption does not arise in this case and has no application to this case.
I charge you that when a killing is proved to be the intentional act of the defendant, the presumption of innocence with which he enters upon the trial is Tennon was convicted of murder and sentenced to life imprisonment. Tennon's conviction and life sentence were upheld in Tennon v. State, 235 Ga. 594, 220 S.E.2d 914 (1975), cert. denied, 426 U.S. 908, 96 S.Ct. 2231, 48 L.Ed.2d 833 (1976).
removed from him and the burden is upon him to justify or mitigate the homicide unless the evidence introduced against him shows justification or mitigation or excuse, but as I have charged you heretofore, the evidence in justification or mitigation or excuse may be found in the evidence introduced against him. If there be no evidence introduced to show justification or excuse, and if the evidence introduced shows the homicide committed as charged in the Indictment, the burden would then be upon the defendant to show justification or mitigation or excuse. (Emphasis added.)
After exhausting state remedies, Tennon petitioned for federal habeas corpus relief, but lost on appeal in Tennon v. Ricketts, 574 F.2d 1243 (5th Cir. 1978), cert. denied, 439 U.S. 1091, 99 S.Ct. 874, 59 L.Ed.2d 57 (1979), as to his contention that he had timely complained of unconstitutionally composed grand and petit juries. There, a panel of this court remanded Tennon's petition for reconsideration of claims which the district court had not decided. In his original habeas petition, Tennon had also asserted that the trial court's instruction to the jury violated his constitutional rights by unconstitutionally shifting to him the burden of proving an essential element of the crime of murder. On remand, the district court granted Tennon habeas relief on the basis of Holloway v. McElroy, 474 F.Supp. 1363 (M.D.Ga.1979), a case in which the same district court had found unconstitutional an identical jury instruction given by the same Georgia state court as in Tennon. The district court reasoned that Tennon merited relief because:
(a)s in Holloway, the instruction permits the jury to presume the element of intent from the proof of facts which are insufficient to establish the crime. See Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Furthermore, the instruction impermissibly shifts the burden of proof of every element of the crime from the prosecution. See Sandstrom, supra; Mullaney v. Wilbur, 421 U.S. 674, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). Accordingly, Holloway controls the decision in this case and for the reasons stated therein the charge is unconstitutional. All that remains to be determined is whether the charge, under the facts of this case, is harmless error beyond a reasonable doubt.
There is no way for this court to conclude that the charge was harmless beyond a reasonable doubt. By no means did the prosecution present an overwhelming case for guilt. There were no witnesses to what occurred in the automobile other than Tennon who testified that the homicide was accidental or in self-defense to Sergeant Watson drawing his revolver. Of particular significance is the uncontradicted fact that Sergeant Watson wore his revolver on his left side making it difficult for the petitioner, sitting at Watson's...
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