Davis v. Kemp, 83-8244

• Decision Date: 24 January 1985
• Docket Number: No. 83-8244,83-8244
• Citation: 752 F.2d 1515
• Parties: Curfew DAVIS, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent- Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1515

752 F.2d 1515

Curfew DAVIS, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent- Appellee.

No. 83-8244.

United States Court of Appeals Eleventh Circuit.

Jan. 24, 1985.

Joseph M. Nursey, Atlanta, Ga., Kenneth J. Rose, Kenner, La., for petitioner-appellant.

Susan V. Boleyn, William B. Hill, Jr., Mary Beth Westmoreland, Asst. Attys. Gen., Atlanta, Ga., for respondent-appellee.

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

Before GODBOLD, Chief Judge, RONEY, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HENDERSON, HATCHETT, ANDERSON and CLARK, Circuit Judges.

PER CURIAM: ^*

In 1974, Petitioner Curfew Davis was convicted of murder in Georgia state court and sentenced to death. After an unsuccessful attempt to obtain a writ of habeas corpus in state court, Davis filed this petition for a writ of habeas corpus under 28 U.S.C.A. Sec. 2254 (1976). The district court dismissed the petition without holding an evidentiary hearing. A panel of this court reversed on the ground that petitioner had been sentenced in 1977 before an unconstitutionally composed jury, and remanded for another sentencing proceeding, 721 F.2d 1478 (11 Cir., 1983). We granted the parties' petition for rehearing en banc. The court now reinstates those sections of the panel opinion in this case which address jury composition (Section I), application of aggravating circumstance "outrageously or wantonly vile, horrible or inhuman" (Section IV), effective assistance of counsel (Section V), petitioner's statements to police during in-custody interrogation (Section VI), and use of petitioner's prior convictions (Section VIII). Because we agree with the disposition made by the panel opinion (Section I) as to the 1977 sentencing jury, we grant relief and remand the case to the district court with instructions to require yet another sentencing trial.

I. PROCEDURAL HISTORY

Based on a series of events which occurred in and around LaGrange, Georgia, on July 19, 1974, ¹ Curfew Davis, a black male, was charged in the Troup County Superior Court with first-degree murder. The victim was a young white woman who had been temporarily in LaGrange on a work assignment. The trial jury found Davis guilty of the murder charge and, under the Georgia bifurcated trial procedure, recommended that he be sentenced to death. The trial judge entered findings and imposed the death sentence.

Davis appealed to the Supreme Court of Georgia, which affirmed the convictions and the sentence. Davis v. State, 236 Ga. 804, 225 S.E.2d 241 (1976). The United States Supreme Court granted certiorari, vacated the death sentence for a violation of the Witherspoon standards as to one prospective venireperson, and remanded for a new sentencing proceeding. Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976).

After the resentencing proceedings in June 1977 Petitioner was once again sentenced to death. The Supreme Court of Georgia affirmed, Davis v. State, 241 Ga. 376, 247 S.E.2d 45 (1978), and the United States Supreme Court denied certiorari. Davis v. Georgia, 439 U.S. 947, 99 S.Ct. 341, 58 L.Ed.2d 338 (1978).

Davis then brought a petition for a writ of habeas corpus in the Superior Court of Butts County, Georgia. This petition was denied in April 1981. The Georgia Supreme Davis then filed the present petition for writ of habeas corpus in the United States District Court for the Northern District of Georgia. He subsequently filed a motion for an evidentiary hearing. The district court denied both the motion and the petition. A panel of this court reversed, citing the unconstitutional composition of the 1977 sentencing jury, and remanded for a new sentencing trial. This Court granted the petition of both parties for rehearing en banc.

                Court denied an application for certificate of probable cause to appeal the judgment of the Superior Court, and the United States Supreme Court denied certiorari.   Davis v. Zant, 455 U.S. 983, 102 S.Ct. 1491, 71 L.Ed.2d 692 (1982)
                

The habeas petition now before us raises issues with respect to petitioner's 1974 trial and his 1977 resentencing trial.

II. THE SANDSTROM CLAIM

Petitioner claims that, during the 1974 culpability phase of his trial, the trial court's instructions to the jury on the elements of intent and malice violated his rights under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). In that case the Court held that the judge's instructions deprived the defendant of due process because they were susceptible of an interpretation which removed from the prosecution the burden of proving every element of the crime beyond a reasonable doubt. To determine whether the judge's instructions in this case thus infringed the constitutional rights of the petitioner, we must consider first, whether the instructions concerned an essential element of the offense with which the petitioner was charged; second, whether the instructions operated to shift the burden of proof; and third, whether any error which might have arisen from the shifting of the burden was harmless in the context of this case. Lamb v. Jernigan, 683 F.2d 1332, 1336-42 (11th Cir.1982), cert. denied, 460 U.S. 1024, 103 S.Ct. 1276, 75 L.Ed.2d 496 (1983).

Neither party contests the finding of the district court that under Georgia law, the elements of malice and intent to kill are essential elements of the crime of murder, which the state is required to prove beyond a reasonable doubt. See also Franklin v. Francis, 720 F.2d 1206, 1210 (11th Cir.1983), cert. granted, --- U.S. ----, 104 S.Ct. 2677, 81 L.Ed.2d 873 (1984); Lamb v. Jernigan, supra, 683 F.2d at 1336-37. The state argues, however, that both instructions contained sufficient clarifying language to dispel any impression that they relieved the prosecution of its burden of proof.

A. Intent

The trial court gave the jury the following instruction with respect to the element of intent:

Ladies and gentlemen, a crime is a violation of a statute of this state in which there shall be an [sic] union of joint operation of acts or an omission to act, and an intention for criminal negligence. 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 act, but the presumption may be rebutted. A person will not be presumed to act with criminal intention, but the trier of facts 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. Every person is presumed to be of sound mind and discretion, but the presumption may be rebutted.

The state argues first that the frequent repetition of the warning that the relevant presumptions "may be rebutted" renders the instruction as a whole sufficiently "permissive" to "pass muster" under Sandstrom. This argument misunderstands both the Court's opinion in Sandstrom and the application of that opinion to more recent cases by this court.

The Court held in Sandstrom that the language "the law presumes" was susceptible The same rationale was applied by this Court in Franklin v. Francis, supra, to an instruction which was virtually identical to the one given in the instant case. In Franklin, this court observed that "the problem with the charge on intent here is that the jury was never enlightened as to the nature of the burden of Franklin to rebut the presumption that he intended the killing." 720 F.2d at 1211. Because the jury could have concluded that Franklin "had to produce more than some evidence that he did not intend to kill," id., the instruction shifted the burden impermissibly to the defendant. ³ The instant instruction falls clearly under the rule established by Sandstrom and applied in Franklin. As it imposes a mandatory ("a person is presumed ..."), rebuttable ("but this presumption may be rebutted") presumption, and fails to specify the quantum of proof by which the defendant may rebut that presumption, it possesses the same constitutional defect as the charges' found constitutionally defective in Sandstrom and Franklin.

                to interpretation as a mandatory presumption.  Though this presumption could be regarded by the jury as rebuttable, 2 it was nonetheless unconstitutional, as it shifted the burden of proof to the defendant without specifying the quantum of evidence by which he could rebut the presumption.  So long as the jury could conclude that the defendant was required to produce more than "some" evidence in order to rebut the presumption, the instruction impermissibly shifted the burden of proof.   Sandstrom v. Montana, 442 U.S. at 517, 524, 99 S.Ct. at 2459
                

The state argues next that the portion of the instruction stating that "a person will not be presumed to act with criminal intention" significantly reduces the likelihood that a jury could misinterpret the instruction. This claim has also been soundly rejected in recent cases decided by this Court.

The question was presented this year in Patterson v. Austin, 728 F.2d 1389 (11th Cir.1984), by an instruction which included both the presumptions challenged by Davis and the instruction offered here as curative by the State. With respect to that charge, this court explained:

Neither did the instruction that criminal intent should not be presumed eliminate the vice Sandstrom condemns. This instruction at best conflicted with the challenged presumption; it did not explain it. At worst, the jury could have made the instructions consistent, interpreting the burden to be on the defendant to rebut the presumption that he intended to kill [the victim], and on the State to show that the killing itself was criminal. Even if the jury believed that the two presumptions conflicted, it would be impossible for us to...