Garland v. Maggio

• Decision Date: 17 October 1983
• Docket Number: No. 82-3237,82-3237
• Parties: Roy GARLAND, Petitioner-Appellant, v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary, and William J. Guste, Jr., Attorney General of Louisiana, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 199

717 F.2d 199

Roy GARLAND, Petitioner-Appellant, v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary, and William J. Guste, Jr., Attorney General of Louisiana, Respondents-Appellees.

No. 82-3237.

United States Court of Appeals, Fifth Circuit.

Oct. 17, 1983.

Harold J. Lamy, New Orleans, La., for petitioner-appellant.

Abbott J. Reeves, William C. Credo, III, Asst. Dist. Attys., Gretna, La., for respondents-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

ON PETITION FOR REHEARING

Before BROWN and JOLLY, Circuit Judges, and MAHON ^*, District Judge.

E. GRADY JOLLY, Circuit Judge:

In a previous unpublished opinion, 706 F.2d 313 (5th Cir.1983) this panel found that Roy Garland had not exhausted his available state remedies with respect to all of the claims he was asserting. As a result, we remanded the case to the district court for appropriate disposition. See Burns v. Estelle, 695 F.2d 847 (5th Cir.1983). Because we were concerned that the record was incomplete, we informed Garland that if he could provide, in a petition for rehearing, documentation which showed that he had exhausted his available state remedies, we would consider his claims. Garland has made the required showing in a petition for rehearing. We therefore GRANT his petition for rehearing for the purpose of VACATING our prior opinion and substituting the following in its stead.

I.

Roy Garland appeals from a judgment of dismissal entered by the United States District Court for the Eastern District of Louisiana denying his petition for a writ of habeas corpus. The petition asserted three grounds for relief: (1) an unconstitutional jury instruction deprived Garland of a fair trial; (2) Garland was denied effective assistance of counsel during his state trial; and (3) the evidence adduced at the state trial was not sufficient to support Garland's conviction. On appeal, Garland reasserts those grounds. We affirm the district court's denial of relief.

II.

On April 2, 1975, Thomas Burns was murdered in front of his home in Kenner, Louisiana by a man who summoned him to the door of his house and proceeded to shoot him at least five times at close range with a small caliber handgun. The murderer then fled the scene of the crime.

Burns had been dating a woman, Martha White, who had previously been romantically involved with the appellant, Roy Garland. Garland had become aware of Burns' relationship with the woman and, a few days prior to Burns' murder, had threatened to kill him.

Garland was arrested and indicted for Burns' murder. Following a jury trial in the Twenty-Fourth Judicial District Court of Jefferson Parish, Louisiana, Garland was convicted of second degree murder. His conviction was affirmed in State v. Garland, 352 So.2d 699 (La.1977).

Following the filing of an unsuccessful state habeas petition, Garland filed his second petition for writ of habeas corpus in federal district court. ¹ As noted above, he requested relief on the grounds that an unconstitutional jury instruction deprived him of a fair trial, that he was denied effective assistance of counsel during his state trial and that the evidence adduced at his state trial was not sufficient to support his conviction.

The district court referred Garland's petition to a United States Magistrate. The magistrate found that there was no merit to Garland's claims and recommended that Garland's petition be dismissed. The district court approved the magistrate's report and recommendation and entered its judgment dismissing Garland's petition. This appeal followed.

III.

Garland was indicted for second degree murder of Burns in violation of LSA-R.S. 14:30.1 which stated at the time the indictments were issued:

Second degree murder is the killing of a human being:

(1) When the offender has a specific intent to kill or to inflict great bodily harm; or

(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill.

Whoever commits the crime of second degree murder shall be imprisoned at hard labor for life and shall not be eligible for parole, probation or suspension of sentence for a period of twenty years.

Because Garland was not engaged in the perpetration or attempted perpetration of any of the crimes listed in LSA-R.S. 14:30.1(2) when he shot Burns, he could be convicted of second degree murder only if he possessed the requisite intent to kill or inflict great bodily harm. In instructing the jury concerning the nature and character of the crime of second degree murder, the trial court stated:

The law holds that a person is presumed to intend the natural and probable consequences of his own deliberate acts. Consequently, it is murder if a person intentionally assaults another in such a manner as would likely cause death or likely cause serious bodily harm.

The due process clause of the fourteenth amendment requires that the state 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). Therefore, the state bore the burden of proving beyond a reasonable doubt that Garland possessed the requisite intent to kill or inflict great bodily harm when he shot Burns. Garland contends that the foregoing instruction relieved the state of its burden and violated his due process rights.

In the Supreme Court's decision in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), the instruction that "[t]he law presumes that a person intends the ordinary consequences of his voluntary acts" was adjudged violative of the due process clause of the fourteenth amendment. The first sentence of the instant jury instruction is substantively indistinguishable from that which was adjudged constitutionally unsound in Sandstrom. It follows that the instant instruction was constitutionally unsound. ²

A plea of "not guilty" places all elements of the charged crime into issue, Davis v. United States, 160 U.S. 469, 488, 16 S.Ct. 353, 358, 40 L.Ed. 499 (1895), thereby forcing the state to establish every element beyond a reasonable doubt. In re Winship, supra. Under most circumstances, a Sandstrom instruction effectively relieves the state of its constitutional burden of proving the element of requisite intent.

Assignments of error predicated upon Sandstrom instructions, however, have been subjected by this circuit to the harmless error test as pronounced in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See Healy v. Maggio, 706 F.2d 698 (5th Cir.1983); United States v. Fricke, 684 F.2d 1126, 1129 (5th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1250, 75 L.Ed.2d 480 (1983); Mason v. Balkcom, 669 F.2d 222, 226 (5th Cir.1982) cert. denied, --- U.S. ----, 103 S.Ct. 1260, 75 L.Ed.2d 487 (1983). Application of a "harmless error" analysis to a Sandstrom instruction, therefore, poses the question of whether, given the record evidence, the state's release from its constitutional burden could have contributed to the conviction. Phrased differently, a Sandstrom instruction can be deemed harmless if no rational juror could have concluded from the record evidence that the perpetrator of the crime lacked the requisite intent. Healy v. Maggio, 706 F.2d at 701-02; U.S. v. Fricke, 684 F.2d at 1129.

The corrupting effect of a Sandstrom instruction depends upon the nature of the defense, if any, made at the trial. Where a defense of non-participation in the criminal act is urged at trial, the effect of a Sandstrom instruction as a factor upon which the verdict was based may diminish, particularly where the conduct or nature of the crime, as evidenced by the record, firmly negates any reasonable possibility that the perpetrator of the crime, whoever it may have been, lacked the requisite intent. U.S. v. Fricke, 684 F.2d at 1129; McGuinn v. Crist, 657 F.2d 1107 (9th Cir.1981) cert. denied, 455 U.S. 990, 102 S.Ct. 1614, 71 L.Ed.2d 850 (1982); United States v. Winter, 663 F.2d 1120, 1143-45 (1st Cir.1981).

In the instant case, the defense of non-participation was advanced at trial: Garland denied having shot Burns. As discussed infra, the evidence was sufficient to prove beyond a reasonable doubt that Garland shot Burns. The pertinent inquiry, therefore, is whether a rational factfinder might have concluded that Garland, once identified as the perpetrator, lacked the requisite intent to commit second degree murder had not the erroneous instruction been given.

The inference of intent is inescapable from the evidence produced concerning the nature of the criminal act. The proximity of the perpetrator to the victim, the deadliness of the weapon utilized, the repetitious firing of the weapon, the flight following the act, and other circumstances surrounding the shooting of Burns, demonstrate beyond any doubt whatsoever that it was neither a negligent nor a reckless act. Upon such evidence, no rational juror could have possibly concluded that the person who shot Burns lacked the requisite intent to kill him or inflict great bodily harm. Therefore, the Sandstrom instruction given by the trial court must be considered harmless beyond a reasonable doubt.

IV.

Garland's claim of ineffective assistance is based on his trial counsel's failure (1) to file a motion to suppress evidence obtained by search warrants supported by affidavits which contained an intentional misrepresentation by the affiants; (2) to file a motion to suppress evidence seized from Garland's vehicle which were beyond the scope of the search warrant; (3) to have the state conduct a preliminary hearing; (4) properly to investigate and prepare for trial; (5) to obtain evidence that the state's principal witness had previously perjured herself in a previous judicial hearing, and (6) to object to a...