Bowen v. Kemp

• Citation: 769 F.2d 672
• Decision Date: 06 August 1985
• Docket Number: No. 84-8327,84-8327
• Parties: Charlie Benson BOWEN, Petitioner-Appellee, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent- Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 672

769 F.2d 672

Charlie Benson BOWEN, Petitioner-Appellee, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent- Appellant.

No. 84-8327.

United States Court of Appeals Eleventh Circuit.

Aug. 6, 1985.

Susan V. Boleyn, Asst. Atty. Gen., and William B. Hill, Jr., Atlanta, Ga., for respondent-appellant.

Paul H. Kehir, Atlanta, Ga. (Court-appointed), for petitioner-appellee.

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

Before FAY and JOHNSON, Circuit Judges, and YOUNG ^*, District Judge.

FAY, Circuit Judge:

Petitioner, Charlie Benson Bowen, was convicted by a jury in Polk County, Georgia, of rape and murder. He was sentenced to life imprisonment for the rape charge and to death for the murder charge. Having exhausted his state court remedies, Bowen filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. Respondent, Ralph Kemp, Warden, Georgia Diagnostic and Treatment Center, appeals the district court's grant of the writ.

Respondent raises three issues on appeal: (1) whether the district court erred in holding that the state trial court's charge to the jury during Bowen's culpability trial improperly shifted the burden of proof on the element of intent, in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and was not harmless beyond a reasonable doubt; (2) whether the district court erred in holding that the prosecutor's closing argument during the sentencing phase of Bowen's trial rendered that phase fundamentally unfair; and (3) whether the district court erred in finding that Bowen was entitled to a new sentencing trial since the sentencing jury was drawn from an unconstitutionally composed traverse jury list. We affirm the district court's jury composition ruling and reverse the district court's rulings on the Sandstrom and prosecutorial argument issues.

I. PROCEDURAL HISTORY

Bowen was indicted in Polk County, Georgia, on charges of raping and murdering a twelve-year old girl. ¹ The trial jury found him guilty on both counts, and, pursuant to Georgia's bifurcated trial procedure, a jury thereafter sentenced him to life imprisonment for rape and to death for murder. On direct appeal, the Georgia Supreme Court affirmed the underlying convictions and rape sentence. The death sentence, however, was set aside and the case was remanded solely for resentencing on the murder conviction. Bowen v. State, 241 Ga. 492, 246 S.E.2d 322 (1978).

In September of 1978, a Polk County jury again sentenced Bowen to death. The Georgia Supreme Court affirmed, Bowen v. State, 244 Ga. 495, 260 S.E.2d 855 (1979), and the United States Supreme Court denied certiorari. Bowen v. Georgia, 446 U.S. 970, 100 S.Ct. 2952, 64 L.Ed.2d 831 (1980).

Bowen then filed a petition for a writ of habeas corpus in the Superior Court of Butts County. The writ was denied, as was his application to the Georgia Supreme Court for a certificate of probable cause to appeal that denial. The United States Supreme Court again denied certiorari. Bowen v. Zant, 455 U.S. 983, 102 S.Ct. 1491, 71 L.Ed.2d 692 (1982).

Bowen thereafter sought habeas relief in the United States District Court for the Northern District of Georgia. An evidentiary hearing was held before the United States Magistrate, who recommended that relief be limited to granting Bowen a new sentencing trial on the murder conviction. The district court agreed on this point, but went further; it also held that (1) the jury charge given during the guilt phase of Bowen's trial impermissibly shifted the burden of proving intent, in violation of Sandstrom, and that this error was not harmless beyond a reasonable doubt, and (2) the prosecutor's closing arguments during the sentencing hearing rendered that phase of Bowen's trial fundamentally unfair.

II(a) THE SANDSTROM ISSUE

Bowen asserts that the following jury instruction impermissibly shifted the burden of proof on the element of intent, in violation of Sandstrom:

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 tryor [sic] of facts, that is you the jury, 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.

We agree.

The Supreme Court, in Franklin v. Francis, --- U.S. ----, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), held that a portion of a jury charge virtually identical to the one at issue here "undeniably created an unconstitutional burden-shifting presumption with respect to the element of intent." Id. at ----, 105 S.Ct. at 1973. The Court also rejected the state's argument, identical to the one advanced by respondent in the instant case, that any technical infirmity in the challenged instruction was sufficiently cured by clarifying language found elsewhere in the charge. Id. at ---- - ----, 105 S.Ct. at 1972-77. "[B]ecause the charge read as a whole does not explain or cure the error, we hold that the jury charge does not comport with the requirements of the Due Process Clause." Id. at ----, 105 S.Ct. at 1977. The district court did not err in finding that the instruction violated Sandstrom.

II(b) HARMLESS ERROR

The Supreme Court has not yet determined "whether an erroneous charge that shifts a burden of persuasion on essential element of an offense can ever be harmless." Id. We recognize, however, that four members of the Supreme Court have suggested that a jury instruction violating Sandstrom cannot be considered harmless error except in "rare situations." Connecticut v. Johnson, 460 U.S. 73, 87, 103 S.Ct. 969, 977, 74 L.Ed.2d 823 (1983) (plurality opinion). Since this position has yet to command a majority of the Court, we continue to apply the harmless error analysis in the Sandstrom context, as we do with most other errors of constitutional significance. See Tucker v. Francis, 762 F.2d 1496, 1501 (11th Cir.1985) (en banc); Davis v. Kemp, 752 F.2d 1515, 1521 (11th Cir.1985) (en banc).

The Davis Court fleshed out the contours of the harmless error inquiry as it relates to a Sandstrom violation. Davis recognized that this circuit has identified two situations where the harmless error rule can be invoked. Harmless error analysis is proper "if the evidence was overwhelming as to the defendant's guilt and if the instruction was applied to an element of the crime which was not at issue at the trial." Id; accord, Tucker, 762 F.2d 1502; Brooks v. Francis, 762 F.2d 1383, 1390 (11th Cir.1985) (en banc). Davis further states that with respect to the first situation, the court's analysis should "focus on whether evidence of intent, rather than the more inclusive issue of guilt, is overwhelming." Tucker, 762 F.2d 1502 (emphasis in original) (citing Davis, 752 F.2d at 1521 & n. 10). In this regard, the nature of the defense asserted at trial may be an important factor. See Brooks, 762 F.2d 1390.

A reading of Davis and its progeny reveals that when a court focuses on the degree of evidence of intent, it should examine the evidence without reference to the particular defendant. In other words, the court should examine the evidence as if the allegedly criminal conduct had been performed by some anonymous actor. For example, in Davis, where the defense essentially was non-involvement, the Court examined the circumstances of the victim's death and concluded "that whoever killed the victim did so with intent and malice." Davis, 752 F.2d at 1521. In Tucker, another non-involvement defense case, the Court reasoned that the evidence was overwhelming that whoever killed the victim did so intentionally because "the victim died of one crushing blow to the skull by a blunt instrument." Tucker, 762 F.2d 1503. A similar tack was taken in Brooks, a case in which the defendant asserted accident as his defense. In holding the Sandstrom violation to be not harmless beyond a reasonable doubt, the Brooks Court emphasized that the evidence of intent was not overwhelming because of the manner in which the victim was killed. Brooks, 762 F.2d 1391-93 & n. 14.

Using this approach, we conclude that the evidence of intent to kill Sheila Denise Young, the victim in this case, was overwhelming. The child's nude body was found beside a bloodied mattress in a vacant house. She had been stabbed fourteen times about the face, chest, and abdomen, and died because of loss of blood. Her death obviously was not the result of accident, mistake, or negligence, but rather was the result of an "intentional" act.

Moreover, Bowen, in a very real sense, conceded the issue of intent. In discussing those "rare situations" where the Connecticut v. Johnson plurality might employ the harmless error rule, Justice Blackmun stated [A] Sandstrom error may be harmless if the defendant conceded the issue of intent. See, e.g., Krzeminski v. Perini, 614 F.2d 121, 125 [6th Cir.], cert. denied, 449 U.S. 866 [101 S.Ct. 199, 66 L.Ed.2d 84] (1980). See also Washington v. Harris, 650 F.2d 447, 453-54 [2d Cir.1981], cert. denied, 455 U.S. 951 [102 S.Ct. 1455, 71 L.Ed.2d 666] (1982). In presenting a defense such as alibi, insanity, or self-defense, a defendant may in some cases admit that the act alleged by the prosecution was intentional, thereby sufficiently reducing the likelihood that the jury applied the erroneous instruction as to permit the appellate court to consider the error harmless.

Connecticut v. Johnson, 460 U.S. at 87, 103 S.Ct. at 978 (emphasis added). Bowen's sole defense at trial was insanity; he never denied that he repeatedly stabbed Sheila Denise Young. By relying exclusively on an unsound mind defense, Bowen effectively conceded...