Dix v. Kemp, 84-8342

• Decision Date: 05 June 1985
• Docket Number: No. 84-8342,84-8342
• Citation: 763 F.2d 1207
• Parties: Horace William DIX, Petitioner-Appellee, Cross-Appellant, v. Ralph KEMP, Warden, Georgia State Prison, Respondent-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1207

763 F.2d 1207

Horace William DIX, Petitioner-Appellee, Cross-Appellant, v. Ralph KEMP, Warden, Georgia State Prison,

Respondent-Appellant, Cross-Appellee.

No. 84-8342.

United States Court of Appeals, Eleventh Circuit.

June 5, 1985.

Susan V. Boleyn, Atlanta, Ga., for respondent-appellant, cross-appellee.

Joseph M. Nursey, Millard C. Farmer, August F. Siemon, Atlanta, Ga., for petitioner-appellee, cross-appellant.

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

Before TJOFLAT and JOHNSON, Circuit Judges, and DUMBAULD ^*, District Judge.

JOHNSON, Circuit Judge:

Horace William Dix was convicted of murder in 1975 in the Superior Court of Clayton County, Georgia. He later sought post-conviction relief on several grounds, all of which were denied by the state courts. The federal district court granted a writ of habeas corpus on the ground that the state trial court's charge to the sentencing jury did not adequately explain the nature and function of mitigating circumstances. The district court declined to grant relief on any other claim. We hold that the sentencing charge did indeed fail to channel properly the discretion of the jury regarding mitigating circumstances. Furthermore, the trial court's instruction impermissibly shifted the burden of proof to the defendant under circumstances where it could not be considered harmless error. Accordingly, we affirm in part and reverse in part.

The petitioner and his wife, Dixie Jordan, divorced in 1974. One month after the divorce, he came to visit at her house. The two were alone in the house when they began to quarrel. She threw an ashtray at him and he claims to remember nothing about what transpired afterwards. His wife's body, which was found in a bedroom of the house, showed that she had been tortured and stabbed to death.

The trial focused on the sanity of Dix at the time of the killing. ¹ He presented evidence tending to show that he was insane at the time of the killing, including a history of mental disability beginning with a head injury sustained while in the Navy, a pattern of bizarre behavior close to the time of the killing (including his surprise that his wife had not visited him in jail), and the testimony of a psychiatrist who had examined him, Dr. William P. Sapp. The State presented its own expert witness, Dr. Miguel Bosch, who believed that Dix suffered from a mental disorder, a depressive neurosis, which did not relieve him of criminal responsibility for the killing. The jury, after hearing the instructions on malice and intent now challenged on this appeal, returned a guilty verdict. The trial then entered its sentencing phase and the jury heard the instructions from the trial court regarding mitigating circumstances. The jury recommended the death sentence.

I. Jury Instructions Regarding Mitigating Circumstances

In the first of his two extant grounds for requesting habeas corpus relief, ² the petitioner claims that the trial judge's charge to the sentencing jury did not satisfy the requirements of the Eighth Amendment because it failed to give proper guidance regarding the nature and function of mitigating circumstances. The Eighth Amendment does require that the jury consider all mitigating circumstances in determining the appropriate and individualized sentence for a particular defendant. Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Eddings v. Oklahoma 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). As the court explained in Spivey v. Zant, 661 F.2d 464, 471 (5th Cir. Unit B 1981), cert. denied, 458 U.S. 1111, 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1982), a requirement that the jury consider all relevant mitigating evidence would have no meaning at all unless the jury understands how to recognize and evaluate a mitigating circumstance. See also Chenault v. Stynchcombe, 581 F.2d 444 (5th Cir.1978). Therefore, the trial judge at the sentencing phase must give the jury careful instructions to explain the nature and function of mitigating circumstances. ³

The exact contours of such instructions must be decided on a case-by-case basis. No single incantation, such as the use of the words "mitigating circumstances," is necessary in every case. Nevertheless, several recent precedents lead us to conclude that the instructions in this case did not properly guide the jury in its consideration of mitigating circumstances.

In Spivey v. Zant, 661 F.2d 464 (5th Cir. Unit B 1981), cert. denied, 458 U.S. 1111, 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1982), the court stated that in most cases ⁴ a judge must tell the jury "what a mitigating circumstance is and what its function is in the jury's sentencing deliberations." The instruction in that case, which merely authorized the jury to consider all the evidence before them, failed "to communicate to the jury that the law recognizes the existence of facts or circumstances which, though not justifying or excusing the offense, may properly be considered in determining whether to impose the death sentence." Id. at 472 (footnote omitted); see also Goodwin v. Balkcom, 684 F.2d 794, 801-02 (11th Cir.1982), cert. denied, 460 U.S. 1098, 103 S.Ct. 1798, 76 L.Ed.2d 364 (1983).

Later cases have noted that a trial court does not fulfill its responsibility simply by informing a jury that it may consider mitigating circumstances. Morgan v. Zant, 743 F.2d 775 (11th Cir.1984); Finney v. Zant, 709 F.2d 643 (11th Cir.1983); Westbrook v. Zant, 704 F.2d 1487 (11th Cir.1983). The words "mitigating circumstances," while they have meaning to most jurors, still do not adequately communicate the precise nature or function of that concept in the context of a sentencing trial. Mere reference to the possible consideration of mitigating circumstances does not tell a jury "why the law allows such a consideration and what effect a finding of mitigating circumstances has on the ultimate recommendation of sentence." Westbrook v. Zant, 704 F.2d at 1503.

The trial judge in this case gave the following instruction at the sentencing trial regarding mitigating circumstances:

You are authorized to consider all of the facts and circumstances[,] if you find any, in extenuation and mitigation of punishment. You are also authorized to consider all of the facts and circumstances, if you find any, regarding the gravity of the offense and your knowledge of the personal background of the defendant as shown to you by the evidence.

This instruction could be taken as a proper explanation of the nature of mitigating circumstances. Yet, it might have left the jury confused about the nature of mitigating circumstances, for first it mentions mitigating circumstances and then it says "you are also authorized to consider..." (emphasis added). A juror could have concluded from this that the facts and circumstances discussed in the second sentence were separate and distinct from the mitigating circumstances introduced in the first sentence.

Further, and most importantly, the instruction did not explain the function of a mitigating circumstance. The charge never set forth the reasons that a mitigating circumstance might be significant and never explained that mitigating circumstances could lead a jury to recommend mercy. The courts in Morgan and Westbrook both stressed that the failure to explain the function of mitigating circumstances was a serious shortcoming that rendered the instructions "hollow." 743 F.2d at 779; 704 F.2d at 1503. Likewise in this case, the court's charge left the jury without proper guidance in its sentencing deliberations, which amounted to a violation of the Eighth and Fourteenth Amendments. The district court properly granted habeas corpus relief on this ground.

II. Sandstrom Claim

The petitioner also takes issue with the jury charge given at the liability stage of the trial regarding malice and intent. ⁵ He claims that it impermissibly shifted the burden of proof to him in contravention of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). The familiar instructions used by the trial court in this case have been considered in previous cases of this court and violate the proscriptions of Sandstrom in a number of ways.

These instructions establish a mandatory presumption: they go beyond simply authorizing a jury to draw inferences and state that "the law presumes." ⁶ They ask the jury to presume criminal intent from the use of a deadly weapon, as in Mason v. Balkcom, 669 F.2d 222 (5th Cir. Unit B 1982), cert. denied, 460 U.S. 1016, 103 S.Ct. 1260, 75 L.Ed.2d 487 (1983), and to presume that an intentional killing is malicious unless evidence of justification or mitigation shows otherwise, as in Lamb v. Jernigan, 683 F.2d 1332, 1341 (11th Cir.1982), cert. denied, 460 U.S. 1024, 103 S.Ct. 1276, 75 L.Ed.2d 496 (1983). As in Francis v. Franklin, --- U.S. ----, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), the instruction states that the acts of a person of sound mind and discretion "are presumed" to be the product of the person's will. The jury was not told that they had a choice or that they might infer the conclusion. Id. at ----, 105 S.Ct. at 1971 (quoting Sandstrom v. Montana, 442 U.S. 510, 515, 99 S.Ct. 2450, 2454, 61 L.Ed.2d 39 (1979)).

While the instructions duly note that the defendant may rebut any presumptions against him, they do not describe how he could go about making such a rebuttal. There is no mention of the quantum of evidence necessary to rebut the presumption. Because of this omission, the jury could have concluded that Dix had to produce more than "some" evidence to rebut the presumption. ⁷ Davis v. Kemp, 752 F.2d 1515 (11th Cir.1985) (en banc). As the Supreme Court recently held in Francis v. Franklin, --- U.S. ----, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), the statement that a presumption "may be rebutted," when combined with mandatory language such as "the law presumes," could indicate to a reasonable juror that the defendant bears...