762 F.2d 1383 (11th Cir. 1985), 83-8028, Brooks v. Kemp

Docket Nº:83-8028.
Citation:762 F.2d 1383
Party Name:William Anthony BROOKS, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent- Appellee.
Case Date:May 31, 1985
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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762 F.2d 1383 (11th Cir. 1985)

William Anthony BROOKS, Petitioner-Appellant,

v.

Ralph KEMP, Warden, Georgia Diagnostic and Classification

Center, Respondent- Appellee.

No. 83-8028.

United States Court of Appeals, Eleventh Circuit

May 31, 1985

As Amended on Denial of Rehearing July 23, 1985.

Opinion on Rehearing July 23, 1985.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Stephen B. Bright, George H. Kendall, Atlanta, Ga., for petitioner-appellant.

Mary Beth Westmoreland, Atlanta, Ga., for respondent-appellee.

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

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

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R. LANIER ANDERSON, III, Circuit Judge:

INTRODUCTION

This case was taken en banc principally to consider two of the several constitutional claims asserted by appellant William Brooks. In Section One of this opinion, we discuss the claim that the instructions on malice at Brooks' trial improperly shifted the burden of proof in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). We conclude that there was a Sandstrom violation, and that the error was not harmless beyond a reasonable doubt. In Section Two of this opinion, we discuss Brooks' claim that the prosecutor's argument during the sentencing phase 1 of his capital trial rendered the sentencing phase fundamentally unfair. We reject Brooks' argument in this regard, and conclude that his sentencing phase was not fundamentally unfair.

In addition to the two issues which this opinion will discuss, Brooks asserted six other constitutional claims: (1) that the failure to grant a change of venue was improper; (2) that the introduction of nonstatutory aggravating circumstances during the sentencing phase of the trial was impermissible; (3) that the trial court restricted the admission of mitigating testimony; (4) that the trial court's instructions on aggravating circumstances were improper; (5) that jurors were improperly excluded because of opposition to the death penalty; and (6) that the district court's denial of an evidentiary hearing was incorrect. The panel declined to grant relief on any of these six issues. Brooks v. Francis, 716 F.2d 780 (11th Cir.1983), vacated for reh'g en banc, 728 F.2d 1358 (11th Cir.1984). With respect to each of these six issues, we reinstate Parts IV, VI, VII, VIII, X and XI of the panel opinion.

Brooks was convicted of armed robbery, rape, kidnapping, and murder by a Muscogee County, Georgia, jury. The evidence established that Brooks abducted Carol Jeannine Galloway from her home, forced her against her will to drive away with him in her yellow Fiat automobile, took her to a secluded area and raped her. All this was established by Brooks' own written confession, and was corroborated by independent evidence. In his confession, Brooks also stated that, after the sexual intercourse and after Galloway had put her clothes back on, she started screaming, and at that point he aimed his pistol at her to make her stop screaming, and that the pistol went off and hit her. Brooks fled at that point, and Galloway bled to death. Additional facts relevant to the two issues discussed in this opinion will be set out later as appropriate.

Brooks was sentenced to death on the murder charge, to life imprisonment on the kidnapping and rape charges, and to 20 years imprisonment on the armed robbery charge.

All convictions and sentences were affirmed by the Georgia Supreme Court on direct appeal. Brooks v. State, 244 Ga. 574, 261 S.E.2d 379 (1979). On writ of certiorari to the United States Supreme Court, the Court vacated the decision of the Georgia Supreme Court insofar as it upheld Brooks' death sentence and remanded the case for further consideration in light of Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). Brooks v. Georgia, 446 U.S. 961, 100 S.Ct. 2937, 64 L.Ed.2d 821 (1980). On remand, the Supreme Court of Georgia reaffirmed the sentence of death. Brooks v. State, 246 Ga.

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262, 271 S.E.2d 172 (1980), cert. denied, 451 U.S. 921, 101 S.Ct. 2000, 68 L.Ed.2d 312 (1981), petition for reh'g denied, 452 U.S. 932, 101 S.Ct. 3069, 69 L.Ed.2d 433 (1981). Brooks sought and was denied collateral relief in the Georgia courts, and the Supreme Court again denied certiorari. Brooks v. Zant, 459 U.S. 882, 103 S.Ct. 183, 74 L.Ed.2d 148 (1982), petition for reh'g denied, 459 U.S. 1060, 103 S.Ct. 482, 74 L.Ed.2d 627 (1982).

Brooks then filed the instant petition for habeas corpus relief in the United States District Court for the Middle District of Georgia. The district court denied relief. On appeal, a panel of this court granted relief only on the issue involving the prosecutor's argument during the sentencing phase. Brooks v. Francis, 716 F.2d 780 (11th Cir.1983). A petition for rehearing en banc was granted, thus vacating the panel opinion. 728 F.2d 1358 (11th Cir.1984).

SECTION ONE: SANDSTROM ISSUE

I. WAS THERE AN IMPERMISSIBLY BURDEN-SHIFTING INSTRUCTION

UNDER SANDSTROM? 2]

Brooks was charged in a four-count indictment, the first count of which was malice murder. Brooks argues that the trial judge's instruction regarding malice was impermissibly burden-shifting under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). The relevant part of the instruction reads as follows:

The law of the State of Georgia says that 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, the law says, when no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart.

The law, ladies and gentlemen, presumes every homicide to be malicious until the contrary appears from circumstances of alleviation, excuse, or justification, and it is encumbent upon the accused to make out such circumstances to your satisfaction unless they appear from the evidence produced against him.

(Emphasis added). 3 This instruction, which placed upon the defendant the initial burden of disproving malice, is virtually identical to the one found impermissible in the recent en banc case of Davis v. Kemp, 752 F.2d 1515, 1519-20 (11th Cir.1985) (en banc). The analysis employed in our Davis opinion was recently confirmed by the similar analysis used by the Supreme Court in Francis v. Franklin, --- U.S. ----, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). The instruction here is a mandatory rebuttable presumption, as were the instructions found impermissible in Davis and Franklin. Davis, 752 F.2d at 1517-20; Franklin, --- u.s. at ---- - ----, ---- - ----, 105 s.ct. at 1970-1971, 1972-1973. We conclude that the instruction here impermissibly shifted the burden of proof with respect to malice, a necessary element of the murder charge against Brooks.

The state argues that the malice instruction, when read in conjunction with the entire jury charge, did not "so infect the entire trial that the resulting conviction violate[d] due process." Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). The state's argument is a subtle one, and depends upon several building blocks. First, the state correctly notes that malice murder in Georgia is defined as an intentional killing done without

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provocation or justification. Lamb v. Jernigan, 683 F.2d 1332, 1336 (11th Cir.1982), cert. denied, 460 U.S. 1024, 103 S.Ct. 1276, 75 L.Ed.2d 496 (1983). Second, the state argues that there was in this case no hint of provocation or justification, 4 so that the only sub-element of malice which might possibly have been in dispute was intent. Third, the state argues that a separate intent instruction was given, which properly instructed the jury that intent "may be inferred" from all the facts and circumstances. 5 Thus, the state argues that the jurors would have understood the malice instruction to refer to the earlier intent charge for a definition of the intent component of malice; and, the argument continues, the improper burden-shifting presumption in the malice charge would have affected only the sub-issues of provocation and justification, and not the sub-issue of intent.

The problem with the state's argument is that the malice instruction does not either expressly or impliedly refer for a definition of intent to the earlier intent instruction. Moreover, the intent instruction appeared a full six pages prior to the malice instruction.

After a careful review of the malice instruction, in the context of the entire charge including the earlier intent instruction, we cannot discount the possibility that a reasonable jury could have understood the instructions to create an unconstitutional presumption of malice and its intent component. See Franklin, --- U.S. at ----, ---- n. 8, 105 S.Ct. at 1971, 1975 n. 8. 6 As the Supreme Court said in Sandstrom, "we have no way of knowing that ... [the defendant] was not convicted on the basis of the unconstitutional instruction." Sandstrom, 442 U.S. at 526, 99 S.Ct. at 2460; accord, Franklin, --- U.S. at ----, 105 S.Ct. at 1975 n. 8. At best, the contradictory instructions as to intent and malice may have confused the jury as to the proper burden of proof. See Franklin v. Francis, 720 F.2d 1206, 1212 (11th Cir.1983), aff'd, --- U.S. ----, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985) (--- U.S. ----, 105 S.Ct. at 1975: "Nothing in these specific sentences or in the charge as a whole makes clear to the jury that one of these contradictory instructions carries more weight than the other....

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