Dick v. Kemp

Decision Date24 November 1987
Docket NumberNo. 87-8000,87-8000
Citation833 F.2d 1448
PartiesDennis DICK, Petitioner-Appellant, v. Ralph KEMP, Warden, Respondent-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Thomas J. McHugh, Jr., Fayetteville, Ga., Robert L. McGlasson, Atlanta, Ga., for petitioner-appellant.

William B. Hill, Jr., Asst. Atty. Gen. of Ga., Atlanta, Ga., for respondent-appellee.

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

Before VANCE, JOHNSON and EDMONDSON, Circuit Judges.

JOHNSON, Circuit Judge:


Dennis Dick is appealing a denial of federal habeas corpus relief. He received a death sentence in 1979 following a conviction for murder and armed robbery. Unsuccessful in his subsequent appeals, Dick v. State, 246 Ga. 697, 273 S.E.2d 124, cert. denied, 451 U.S. 976, 101 S.Ct. 2059, 68 L.Ed.2d 357 (1981), Dick filed a petition for writ of state habeas corpus in 1981. This petition was replaced by an Extraordinary Motion for New Trial, which was denied without a hearing, and the denial was affirmed on appeal. Dick v. State, 248 Ga. 898, 287 S.E.2d 11 (1982). The state petition for habeas corpus was refiled in 1982. The lower court granted a stay of execution for the purpose of holding a limited evidentiary hearing. The Supreme Court of Georgia affirmed the grant of the stay, Zant v. Dick, 249 Ga. 799, 294 S.E.2d 508 (1982), and in later proceedings, the Court also directed the lower court to receive testimony from one of Dick's co-defendants, Chris Hoerner. Dick's writ of habeas corpus was ultimately denied. In April 1984, Dick filed a petition for federal habeas corpus, but in July the district court dismissed the petition without prejudice for Dick to exhaust his claims in state court. By October 1985, Dick had exhausted his state remedies on all claims, and in January 1986, Dick filed again for federal habeas relief, which was denied by the district court in December 1986. This appeal follows.

Dick shot O.C. Rider, a known bootlegger in Dawson County, Georgia, during a robbery undertaken with Chris Hoerner, who received a life sentence, and Billy Webster, who was acquitted by the jury. According to a taped statement made by Dick within twenty-four hours of his arrest, the three men had discussed robbing Rider with no intention of killing him. Hoerner gave Dick a pistol as they entered Rider's trailer. Inside, Dick asked for Rider's money and pointed the pistol at him. Rider resisted handing over his money and instead, as Dick explained, Rider "started towards me and I got scared and I pulled the trigger. I didn't mean to shoot him." Webster grabbed the metal money box before the three left. An investigation of the scene of the crime revealed that Rider's pockets had been emptied. There was a bullet hole in the floor beside Rider, apparently a shot made in addition to the gunshot entry wound behind Rider's left ear that caused his death.

Just as Dick, Hoerner, and Webster stepped out of the trailer, a car with three customers arrived. Dick told the occupants of the car to get out and onto the ground. The customers watched as the three robbers tried to drive off and then stalled after a short distance when their car landed in a ditch. Dick unsuccessfully tried to start the car of the three customers, and then ordered them to run into the woods. He added, "if you look back you are dead." Meanwhile, Hoerner managed to get their own car out of the ditch--and Dick, Hoerner, and Webster finally drove off.

Evidence at the trial indicated that Dick was a chronic alcoholic and was severely intoxicated the night of the killing. Dick's only defense at trial was that because of his intoxicated state, he did not have the requisite mental intent for murder under Georgia law. After his trial, Dick additionally learned that he had been involuntarily drugged when, prior to going to Rider's trailer, Hoerner had secretly put unidentified pills in Dick's beer.

A number of issues have been raised on appeal. While this Court has considered all the issues carefully, the issue on which we base our reversal of the district court can be corrected only by affording Dick a new trial. We therefore do not reach any of the other issues raised in this petition for habeas relief.


Recent developments in the law of the land and of this Circuit provide clear avenues to follow in this case. Beginning with Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), we know that jury instructions which shift the burden of persuasion from the government to the defendant on the issue of intent are unconstitutional. 1 Subsequently, Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), clarified that an accompanying instruction that any presumption of intent to act could be rebutted did not render the unconstitutional instruction constitutional. 2 Then in Rose v. Clark, --- U.S. ----, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), the Supreme Court accepted the notion of harmless error with Sandstrom violations in accordance with the beyond a reasonable doubt standard from Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Chapman held that "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." 386 U.S. at 24, 87 S.Ct. at 828.

This Circuit has had numerous occasions to apply these precepts, most recently in the opinion jointly deciding Bowen v. Kemp and Dix v. Kemp, 832 F.2d 546 (11th Cir.1987) (en banc). With particular reliance on Bowen/Dix and also on Thomas v. Kemp, 800 F.2d 1024 (11th Cir.1986), we conclude that in this case there was a Sandstrom error and that it was not harmless.

In this case, the jury instructions given by the trial judge included the following instruction:

The acts of a person of sound mind and discretion are presumed to be the product of the person's will, but that presumption may be rebutted. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts, but likewise, this presumption may be rebutted .... one voluntarily under the influence of alcohol is presumed to intend the legitimate consequences of his act, and the question is whether he intended the consequences of the act. (Emphasis added.)

This instruction went to proof of the element of intent required for a murder conviction in Georgia. The italicized portion follows verbatim the impermissible instruction used in Francis. Thus, on its face, the instruction in Dick's trial unacceptably shifted the burden of proof from the state to Dick. "[A] reasonable juror could have understood the challenged portions of the jury instruction in this case as creating a mandatory presumption that shifted to the defendant the burden of persuasion on the crucial element of intent...." Francis, 471 U.S. at 325, 105 S.Ct. at 1977.

Having found language that unconstitutionally shifted the burden of proof in this case, we are now required by Rose v. Clark to undergo a harmless error review. If, on the facts of the case, the jury instruction was harmless, then the Sandstrom error would not require a new trial. This Circuit recognizes harmless error in two situations: "(1) where the erroneous instruction was applied to an element of the crime that was not at issue in the trial, or (2) where the evidence as to defendant's guilt was overwhelming." Bowen/Dix; see also Davis v. Kemp, 752 F.2d 1515, 1521 (11th Cir.) (en banc), cert. denied, 471 U.S. 1143, 105 S.Ct. 2689, 86 L.Ed.2d 706 (1985). We must consider both aspects in this case: whether Dick's defense of lack of intent due to involuntary intoxication put the issue of intent squarely before the jury and, if so, whether evidence at trial overwhelmingly showed intent to kill on the part of Dick.

To guide us for the first prong, this Circuit faced a substantially similar case in Thomas v. Kemp, 766 F.2d 452, 454 (11th Cir.1985), vacated and remanded for further consideration, --- U.S. ----, 106 S.Ct. 3325, 92 L.Ed.2d 732, on remand, 800 F.2d 1024 (11th Cir.1986) (affirming result of vacated opinion), cert. denied, --- U.S. ----, 107 S.Ct. 1982, 95 L.Ed.2d 822 (1987). In Thomas, the defendant had proffered drug intoxication as his sole defense. The jury was instructed that if drunkenness or intoxication so impaired Thomas,

as to render him incapable of forming an intent to do the act charged or to understand that certain consequences were likely to result from it, he would not be criminally responsible for the act. Whether that was true or not, it is a question for you and the jury to determine.

766 F.2d at 456. This Court held that this instruction, coupled "with some evidence to support the defendant's argument," put intent "squarely" before the jury. Id.; see also 800 F.2d at 1026. In this case, the judge gave identical instructions to Dick's jury. In addition, Dick presented evidence and testimony supporting his alcoholism and his intoxication on the night of the incident. A fortiori, the jury instruction in this case that violated Sandstrom could not have been harmless on the ground that the element of intent was not at issue. Thomas clearly dictates that it was at issue. Cf. Tucker v. Kemp, 762 F.2d 1496, 1501 (11th Cir.1985) (en banc) (harmless error where defendant's "sole defense was non-participation in killing"), cert. denied, --- U.S. ----, 106 S.Ct. 3340, 92 L.Ed.2d 743 (1986); McCleskey v. Kemp, 753 F.2d 877, 903-04 (11th Cir.1985) (en banc) (harmless error where alibi defense was asserted), aff'd on other grounds, --- U.S. ----, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987); Davis v. Kemp, 752 F.2d at 1521 (harmless error where defense was non-participation).

The state argues that intent cannot be at issue in this case. This argument stems from one of Dick's post-arrest statements about the killing: "[Rider] started...

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