Mason v. Balkcom

Decision Date01 March 1982
Docket NumberNo. 80-7344,80-7344
Citation669 F.2d 222
PartiesGuy MASON, Petitioner-Appellant, v. Charles R. BALKCOM, Warden, Respondent-Appellee. . Unit B *
CourtU.S. Court of Appeals — Fifth Circuit

James C. Bonner, Jr., University of Georgia School of Law, Prison Legal Counseling Project, Athens, Ga., for petitioner-appellant.

William B. Hill, Jr., Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before TUTTLE, HILL and THOMAS A. CLARK, Circuit Judges.

THOMAS A. CLARK, Circuit Judge:

Petitioner, Guy Mason, appeals from the district court's order and judgment denying his petition for a writ of habeas corpus. We reverse.

In January 1975, petitioner was convicted of murder and sentenced to death after a jury trial in the Superior Court of Baldwin County, Georgia. 1 On direct appeal and the mandatory sentence review, 2 petitioner's conviction and sentence were affirmed by the Georgia Supreme Court, Mason v. State, 236 Ga. 46, 222 S.E.2d 339 (1976), and certiorari was denied by the United States Supreme Court, Mason v. Georgia, 428 U.S. 910, 96 S.Ct. 3225, 49 L.Ed.2d 1219 (1976).

Petitioner subsequently petitioned for a writ of habeas corpus in the Superior Court of Tattnall County, Georgia. The state habeas action was continued to permit petitioner to file an extraordinary motion for a new trial in the Baldwin County Superior Court. Following an evidentiary hearing, the motion was denied on March 18, 1977. On appeal, the Georgia Supreme Court affirmed the denial of the extraordinary motion. Mason v. State, 239 Ga. 538, 238 S.E.2d 79 (1977). On January 26, 1978, an evidentiary hearing commenced on petitioner's state habeas action in the Tattnall County Superior Court. That court denied habeas relief in an order and written opinion entered on July 13, 1978. Mason v. Hopper, No. 76-218 (Super.Ct. Tattnall Cty., July 13, 1978). From the adverse decision of the state habeas court, petitioner filed an application for a certificate of probable cause to appeal to the Georgia Supreme Court. The certificate was denied on October 3, 1978.

Petitioner next filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Georgia pursuant to 28 U.S.C. § 2254. The district court ordered petitioner's execution stayed pending final resolution of the habeas action. On April 7, 1980, the district court denied the petition for the writ but left intact the stay of execution. Mason v. Balkcom, 487 F.Supp. 554 (M.D.Ga.1980). Petitioner now appeals to this court from the district court's denial of his petition.

Five issues are raised on this appeal. Petitioner contends (1) that the trial court's instructions to the jury created a presumption of intent to kill, thereby unconstitutionally relieving the state of its burden of proving an essential element of the crime of murder and depriving petitioner of due process of law, and that the erroneous charge cannot be dismissed as harmless error; (2) that the trial court's instructions on voluntary manslaughter impermissibly created a presumption of "deliberate revenge" without regard to petitioner's actual thought processes, thus depriving him of due process by relieving the state of its burden of proof; (3) that a venireman was improperly excluded from service on the jury on less than an "unmistakably clear" indication that his opposition to capital punishment would automatically impair his ability to consider a death sentence; (4) that his conviction and sentence cannot stand because one of the jurors, prior to the conclusion of the guilt phase of the trial, became aware through newspaper accounts that petitioner had been convicted of murder previously; and (5) that his death sentence cannot stand because the record lacks a transcript of the prosecutor's closing argument, portions of which provoked objection, making it impossible for a reviewing court to determine whether the argument was unfairly prejudicial to the petitioner.

For the reasons expressed below, we reverse. In so doing, however, we reach only the first issue because its disposition makes resolution of issues (2), (3), (4), and (5) unnecessary.

Petitioner was convicted of murder under Ga.Code Ann. § 26-1101(a), which provides:

A person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. Express 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.

The statute defines murder to consist of the following elements: (1) unlawfully (2) causing the death of another human being (3) with malice aforethought. Holloway v. McElroy, 474 F.Supp. 1363, 1368 (M.D.Ga.1979). Malice is defined as a "deliberate intention" unlawfully to kill another human being. Thus, because malice is an element of murder and deliberate intention to kill is an essential part of malice, intent to kill is an essential element of the crime of murder under Ga.Code Ann. § 26-1101(a). Under the due process clause of the fourteenth amendment, the state must prove the existence of every element of a criminal offense beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The prosecution therefore had the burden to prove beyond a reasonable doubt that petitioner had the requisite intent to kill.

Petitioner contends that certain instructions given to the jury by the trial court had the effect of relieving the prosecution of this burden by creating a presumption of his intent to kill. The instructions at issue here are as follows:

I charge you that the law presumes that a person intends to accomplish the natural and probable consequences of his conduct, and where a person uses a deadly weapon in the manner in which such weapons are ordinarily employed to produce death, thereby causing the death of a human being the law presumes an intention to kill.

I further charge you that if you believe beyond a reasonable doubt that the defendant ..., with the weapon named in the indictment, and with malice aforethought, either expressed or implied, did unlawfully kill the victim ..., and you believe the weapon used in the manner used, if one was used, was one likely to produce death, then you would be authorized and it would be your duty to convict the defendant of the offense of murder.

The district court, relying primarily on Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), found that these instructions "impermissibly shifted the burden of proof on the issue of intent to kill to the defendant or at least removed from the prosecution the full burden resting upon it under In re Winship." 487 F.Supp. at 559. The district court went on to hold, however, that the erroneous charge was harmless beyond a reasonable doubt.

Petitioner, of course, agrees with the district court's finding that the charge erroneously shifted the burden of proof to him on the issue of intent to kill, but argues that the district court incorrectly held the erroneous charge to be harmless error. Respondent, on the other hand, first contends that the instructions in question did not shift the burden of proof to the petitioner on the issue of intent. Alternatively, respondent takes the position that if the charge did shift the burden to petitioner, then the district court correctly concluded that the error was harmless beyond a reasonable doubt. Thus, our analysis of this issue is twofold: (1) Did the instructions in question shift the burden of proof to the petitioner on the issue of intent to kill in violation of the due process clause of the fourteenth amendment? (2) If so, can the erroneous charge be characterized as harmless error beyond a reasonable doubt?

This case is very similar to Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). 3 In Sandstrom, the defendant was convicted under Montana law of "deliberate homicide," which the statute defined as "purposely or knowingly" causing the death of another human being. 4 The state conceded that "purpose" was equivalent to "intent," and thus that proof of defendant's intent to kill would suffice to establish the "purpose" element. Id. at 521 & n.11, 99 S.Ct. at 2458 & n.11. The trial court instructed the jury that "the law presumes that a person intends the ordinary consequences of his voluntary acts." The Supreme Court held that this instruction was unconstitutional because it "had the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of petitioner's state of mind." Id. at 521, 99 S.Ct. at 2458.

In Sandstrom, the state argued that the Montana Supreme Court had exclusive authority to determine the effect of the presumption. The state supreme court had held that the instruction placed only a burden of producing some evidence on the defendant, and that the presumption thus affected only the burden of going forward with the evidence rather than the burden of persuasion. The Supreme Court conceded that the state supreme court was the final authority on the effect of a presumption under state law, but declared that the state court was "not the final authority on the interpretation which a jury could have given the instruction." 442 U.S. at 516-17, 99 S.Ct. at 2455. The Court then found that, although the instruction could be interpreted in the manner suggested by the state, it could also be interpreted in two more stringent ways, neither of which passed constitutional muster:

First, a reasonable jury could well have interpreted the presumption as "conclusive," that is, not technically a presumption at all, but rather as an irrebuttable direction by the court to...

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