Drake v. Kemp

• Decision Date: 31 May 1985
• Docket Number: No. 83-8047,83-8047
• Citation: 762 F.2d 1449
• Parties: Henry Arthur DRAKE, Petitioner-Appellant, v. Ralph KEMP, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1449

762 F.2d 1449

Henry Arthur DRAKE, Petitioner-Appellant, v. Ralph KEMP, Warden, Respondent-Appellee.

No. 83-8047.

United States Court of Appeals, Eleventh Circuit.

May 31, 1985.

Mary J. Wilkes, Atlanta, Ga., for petitioner-appellant.

Susan V. Boleyn, Asst. Atty. Gen., Paula K. Smith, Staff Asst. Atty. Gen., 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. ^*

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 Henry Drake. In Section One of this opinion, we discuss the claim that the instruction on intent at Drake's 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 Drake's claim that the prosecutor's argument during the sentencing phase of his capital trial rendered the sentencing phase fundamentally unfair. We conclude that the prosecutor's argument did render the sentencing phase of the trial fundamentally unfair.

In addition to the two issues which this opinion will discuss, Drake asserted six other constitutional claims: (1) that new evidence based on the recantation of a key witness against Drake warranted habeas corpus relief; (2) that the use of inconsistent theories in prosecuting Drake and a defendant allegedly involved in the same crimes violated due process; (3) that the prosecution's knowing use of perjured testimony violated due process; (4) that the aggravating circumstance--the offense was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim," Ga.Code Ann. Sec. 17-10-30(b)(7)--was unconstitutionally overbroad and vague as applied to Drake's case, in violation of Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980); (5) that the instructions during the sentencing phase of Drake's trial failed to inform the jury that it need not impose the death penalty even if a statutory aggravating circumstance had been found beyond a reasonable doubt; and (6) that Drake's sentence of death was disproportionate under Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). The panel affirmed the district court's denial of relief on each of these six issues. Drake v. Francis, 727 F.2d 990 (11th Cir.), vacated for reh'g en banc, 727 F.2d 990, 1003 (11th Cir.1984). With respect to issue (5) above, Drake's challenge to the trial court's sentencing instructions, we reinstate Part VIII of the panel opinion. See Drake v. Francis, 727 F.2d at 1000. We decline to reach issues (1), (2), (3), (4), and (6), exercising our discretion not to do so in light of our resolution of the case granting relief on other grounds.

C.E. Eberhart was savagely beaten and stabbed on December 5, 1975, as he worked in his barber shop in Colbert, Georgia. He died a few months later from head wounds without regaining consciousness. A bloody hammer and pocket knife were found on the premises.

Investigation of the crime soon focused on William Campbell and Henry Drake. The two men, along with a woman, had been in Colbert the day of the attack and Campbell was seen lounging near the barber At Drake's trial, the state proceeded on the theory that Campbell could not have committed the murder by himself. The victim, although elderly, was strong, while Campbell was weakened by asthma and emphysema. Campbell was the principal state witness linking Drake to the murder; he repeated the story he gave at his own trial. Drake testified and explained that, on the day of the attack, he had dropped Campbell off at the barber shop and then visited relatives in Colbert. He later returned to pick up Campbell and they drove to Madison, Georgia. This story was corroborated by family members who testified at trial. At the close of the evidence, and after a long deliberation, Drake was convicted of murder and armed robbery.

shop. A search of the house where Drake, Campbell, and the woman lived uncovered a Timex watch belonging to Eberhart in a drawer containing Campbell's clothes. Campbell and Drake were tried in separate trials. Campbell was tried first for murder and armed robbery. At trial, he claimed to have been sitting in the barber shop when Drake entered and attacked Eberhart. Campbell was convicted and sentenced to death.

Drake was sentenced to death on the murder charge and to life imprisonment on the armed robbery charge. His convictions and sentences were affirmed on direct appeal by the Georgia Supreme Court. Drake v. State, 241 Ga. 583, 247 S.E.2d 57 (1978). Drake then petitioned the United States Supreme Court for a writ of certiorari which was denied. Drake v. Georgia, 440 U.S. 928, 99 S.Ct. 1265, 59 L.Ed.2d 485 (1979). Subsequently, in July 1979, Drake filed a petition for writ of habeas corpus in the Superior Court of Butts County, Georgia. After a hearing on the merits, the court denied relief. The Georgia Supreme Court and the United States Supreme Court both declined to review the denial of the state habeas petition.

Two years later, Drake filed an extraordinary motion for a new trial in the Madison County Superior Court alleging the discovery of new evidence that would prove his innocence. The new evidence was in the form of an affidavit by William Campbell, the prosecution's star witness against Drake, repudiating his previous testimony inculpating Drake. After a hearing, during which Campbell testified substantially to the same facts contained in his affidavit, the trial court denied the motion and the Georgia Supreme Court affirmed. Drake v. State, 248 Ga. 891, 287 S.E.2d 180 (1982). The Supreme Court again denied certiorari. Drake v. Georgia, 457 U.S. 1111, 102 S.Ct. 2915, 73 L.Ed.2d 1322 (1982).

In August 1982, Drake 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. Drake v. Francis, 727 F.2d 990 (11th Cir.1984). A petition for rehearing en banc was granted, thus vacating the panel opinion. 727 F.2d 1003 (11th Cir.1984).

SECTION ONE: SANDSTROM ISSUE

i. was there an impermissibly burden-shifting instruction

under sandstrom ? ¹

Drake was charged with and convicted of armed robbery and murder. Drake argues that the trial judge's instruction regarding intent 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:

Ladies and gentlemen, I charge you that a criminal intent is a material and necessary ingredient in any criminal prosecution. I charge you that the acts of a person of sound mind and discretion (Emphasis added). ² The above emphasized instruction, which amounts to a mandatory rebuttable presumption on the essential element of intent, is virtually identical to the ones found impermissible in the recent Supreme Court case of Francis v. Franklin, --- U.S. ----, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), and in our recent en banc case of Davis v. Kemp, 752 F.2d 1515, 1517-19 (11th Cir.1985) (en banc). The state argues, however, that the trial court's general instruction regarding the state's burden of proof with respect to every element of the crimes charged and the instruction stating that "a person will not be presumed to act with criminal intent ...", was curative of any potentially burden-shifting instruction. See Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973) (jury charge must be read as a whole). This contention must fail in light of Francis v. Franklin which considered substantially identical allegedly curative instructions and nevertheless held the instruction as to intent to be impermissibly burden-shifting. See Franklin, --- U.S. at ----, 105 S.Ct. at 1974-1976; accord, Davis, 752 F.2d at 1517-19.

                are presumed to be the products of a person's will and a person of sound mind and discretion is presumed to intend the natural and probable consequences of his act, but both of these presumptions may be rebutted.    I charge you, however, that a person will not be presumed to act with criminal intent but the trials [sic] of fact may find such intent from consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act to which the accused is here prosecuted.  You are the triers of the facts;  therefore, it is a question of fact solely for your determination as to whether or not there was a criminal intent on the part of the Defendant, considering the facts and circumstances as disclosed by the evidence and deducting the deductions which might reasonably be drawn from these facts and circumstances.  Now, while a criminal intention may be proven in more than one way, the question of whether the Defendant did act with criminal intention is finally and always a question for you, the Jury, to determine
                

After a careful review of the entire jury charge, and employing the analysis set forth by the Supreme Court in Francis v. Franklin, we find that a reasonable juror could well have concluded that Drake bore the burden of proof on the necessary element of intent. The relevant portions of the jury instructions cannot be distinguished from the jury charge in Francis v. Franklin, which we find to be controlling. We thus conclude that the instruction violates Sandstrom.

II. WAS THE SANDSTROM ERROR HARMLESS?

The Supreme Court...