683 F.2d 1332 (11th Cir. 1982), 81-7468, Lamb v. Jernigan

Docket Nº:81-7468.
Citation:683 F.2d 1332
Party Name:Robert G. LAMB, Plaintiff-Appellant, v. Marvin JERNIGAN, Warden, Defendant-Appellee.
Case Date:August 23, 1982
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1332

683 F.2d 1332 (11th Cir. 1982)

Robert G. LAMB, Plaintiff-Appellant,


Marvin JERNIGAN, Warden, Defendant-Appellee.

No. 81-7468.

United States Court of Appeals, Eleventh Circuit

August 23, 1982

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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 defendant-appellee.

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.

  1. Facts

    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.

    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.

    The medical evidence introduced by the prosecution showed that Brady sustained eleven wounds. Although the state's medical expert testified that in his opinion a wound in Brady's heart caused his death, he identified two other wounds, both in Brady's lungs, each of which alone could have caused death and would have disabled the victim almost immediately upon perpetration. The officers who arrested appellant

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    at the scene of the killing testified that the only injury they observed to appellant's body was a scratch on his right arm. The shirt appellant was wearing was stained with blood that tests indicated was the same type as the victim's; no evidence of appellant's blood type was admitted.

    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.

  2. Constitutional Standard

    Appellant contends the trial court's instructions on intent and malice impermissibly shifted the burden of proof to the defense. In several recent cases the Supreme Court has addressed the constitutionality of instructions claimed by defendants to be burden-shifting. See Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); Ulster County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979); Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). The former Fifth Circuit also has addressed this issue in recent cases, three of which concern the Georgia murder statute under which appellant was convicted. See Mason v. Balkcom, 669 F.2d 222 (5th Cir. 1982); Tennon v. Ricketts, 642 F.2d 161 (5th Cir. 1981); Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981). 2 Foregoing the opportunity to expatiate upon the above precedents, 3 we briefly outline the method they establish for analyzing cases of this kind. The Mullaney and Patterson cases indicate that a critical component of our task is to ascertain whether the facts the defendant claims he is required to prove negate an essential element of the state law offense. Mullaney v. Wilbur, 421 U.S. at 696-701, 95 S.Ct. at 1888-1890; Patterson v. New York, 432 U.S. at 205-07, 210, 215-16, 97 S.Ct. at 2324-25, 2329-30. See Sandstrom v. Montana, 442 U.S. at 520-21 & n.10, 99 S.Ct. at 2457 & n.10; Holloway v. McElroy, 632 F.2d at 624-35. If we conclude that the facts in issue are "elements necessary to constitute the crime," id. at 628, we must then determine the nature of the presumption or inference 4 described by the challenged instructions. Sandstrom v.

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    Montana, 442 U.S. at 514, 99 S.Ct. at 2454. See Ulster County Court v. Allen, 442 U.S. at 156-63, 99 S.Ct. at 2224-27. Ultimately, the constitutionality of the evidentiary device will turn on whether it "undermine(s) the factfinder's responsibility at trial, based on evidence adduced by the state, to find the ultimate facts beyond a reasonable doubt." Id. at 156, 99 S.Ct. at 2224. The first part of our inquiry-i.e. ascertaining the role of the facts at issue in the definition of the crime-requires a functional analysis of the state statute and cases. Holloway v. McElroy, 632 F.2d at 625, 628. The effect of the presumption on the allocation of proof, however, is not to be determined by reference to state courts' interpretation of the criminal statute but instead depends solely on "the way in which a reasonable juror could have interpreted the (challenged) instruction." Sandstrom v. Montana, 442 U.S. at 514-19, 99 S.Ct. at 2454-56.

  3. Application of Standard to This Case

    1. Did instructions concern essential element of offense ?

    The instructions challenged by appellant pertain to the existence of intent and of malice in the context of prosecution for murder under Georgia law. Ga.Code Ann. § 26-1101(a) (1978) defines the offense of murder as follows:

    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.

    In Holloway, the court construed this murder statute as establishing three elements for the offense of murder: (1) homicide; 5 (2) malice; and (3) unlawfulness. Holloway v. McElroy, 632 F.2d at 628. Accord Mason v. Balkcom, 669 F.2d at 224. It interpreted the "malice" element, which distinguishes murder from the lesser offense of voluntary manslaughter, to mean simply intent to kill in the absence of provocation. 6 See Holloway v. McElroy, 632 F.2d at 629. Although the Holloway court did not so state, Georgia cases indicate that circumstances comprising justification, including self-defense, also negate the existence of malice. E.g., Felts v. State, 244 Ga. 503, 260 S.E.2d 887, 888-89 (1979) Patterson v. State, 239 Ga. 409, 238 S.E.2d 2, 7 (1977). 7 The Fifth Circuit's interpretation

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    of the statute as making malice one of the essential elements of murder coincides with the Georgia Supreme Court's construction of the act. See, e.g., Tucker v. State, 245 Ga. 68, 263 S.E.2d 109, 111, cert. denied, 449 U.S. 891, 101 S.Ct. 253, 66 L.Ed.2d 119 (1980); Davis v. State, 237 Ga. 279, 227 S.E.2d 249, 250 (1976). In Mason v. Balkcom, 669 F.2d at 224, the court held not only that malice is an essential element of murder in Georgia, but that intent to kill, because it is an essential part of malice, is also an essential element of murder. We conclude that malice, including both the intent component and the lack of provocation or justification, is an essential element of murder under Ga.Code Ann. § 26-1101(a) that Mullaney and its progeny require the state to prove beyond a reasonable doubt.

    2. Did instructions operate to shift burden of proof ?

    We must now scrutinize the instructions on malice that were given at appellant's trial to determine how they allocated the burden of proof. Appellant contends that three of the instructions created a mandatory presumption, arising from the state's showing that a homicide was committed, that it was committed with malice. 8 Such presumption could be negated, appellant insists,

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    only where the defense proves the existence of factors, such as provocation or self-defense, that are inconsistent with malice. Appellant argues, therefore, that this case is controlled by Mullaney v. Wilbur, 421 U.S. at 684, 95 S.Ct. at 1882 (1975) (invalidating instruction that required defendant to prove provocation to reduce...

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