Franklin v. Francis, 83-8022

• Decision Date: 09 January 1984
• Docket Number: No. 83-8022,83-8022
• Citation: 723 F.2d 770
• Parties: Raymond Lee FRANKLIN, Petitioner-Appellant, v. Robert FRANCIS, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 770

723 F.2d 770

Raymond Lee FRANKLIN, Petitioner-Appellant, v. Robert FRANCIS, Warden, Respondent-Appellee.

No. 83-8022.

United States Court of Appeals,

Eleventh Circuit.

Jan. 9, 1984.

Ronald J. Tabak, John Charles Boger, New York City, for petitioner-appellant.

Susan Boleyn, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

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

ON PETITION FOR REHEARING

(Opinion November 16, 1983, 11th Cir., 1983, 720 F.2d 1206).

Before TJOFLAT and HILL, Circuit Judges, and SIMPSON, Senior Circuit Judge.

PER CURIAM:

The state's petition for rehearing is denied with the following observations:

The state cites Lamb v. Jernigan, 683 F.2d 1332 (11th Cir.1982), cert. denied --- U.S. ----, 103 S.Ct. 1276, 75 L.Ed.2d 496 (1983), for the proposition that the differences between the impermissible presumption instruction in Sandstrom v. Montana 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and the instruction we found impermissible in the panel opinion were "constitutionally significant." We do not read Lamb as supporting this argument; in Lamb the challenged jury instruction on intent was not mandatory. The charge in Lamb simply stated, "[I]ntent ... may be inferred ... from the proven circumstances or by the acts and conduct of the defendant or may be presumed when it would be the natural and probable consequence of the particular acts." 683 F.2d at 1339 (emphasis added). We noted in Lamb that both parts of this instruction were permissive:

[T]he first part of the instruction, which was not present in Sandstrom, is perfectly sound, constitutionally and otherwise. The import of the statement that intent "may be inferred ... from proven circumstances or by the acts and conduct of the defendant" is simply that the jury may rely on circumstantial evidence in finding intent. In no way does the instruction suggest that the burden is on the defendant rather than the prosecution or that the circumstantial evidence need not convince the jury of the defendant's intent beyond a reasonable doubt.... As to the second part of the instruction, stating that intent "may be presumed when it would be the natural and necessary consequence of the particular acts," such charge was also permissive. Unlike the ambiguous direction--"the law presumes that ..."--contained in the Sandstrom and Mason [v. Balkcom, 669 F.2d 222 (5th Cir. Unit B 1982), cert. denied --- U.S. ----, 103 S.Ct. 1260, 75 L.Ed.2d 487 (1983) ] instructions, the "may be presumed" language used here was unlikely to be interpreted by reasonable jurors as requiring them to draw an inference of intent.

Id. at 1339-40 (emphasis in original). In contrast, at Franklin's trial, the judge instructed the jury that "the acts of a person ... are presumed to be the product of the person's will ... a person ... is presumed to intend the natural and probable consequences of his acts." As in Sandstrom, this instruction gives the jury no option whether to apply it, and is thus mandatory.

Sandstrom analysis involves classifying an instruction as permissive or mandatory, and rebuttable or irrebuttable. Permissive presumptions are generally acceptable as long as there is a rational connection between the inference and the underlying facts. County Court of Ulster County v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 2224-5, 60 L.Ed.2d 777 (1979). The same is true of only a few mandatory presumptions: "To the extent that a presumption imposes an extremely low burden of production--e.g., being satisfied by 'any' evidence --it may be well that its impact is no greater than that of a permissive inference, and it may be proper to analyze it as such." Id. at 157 n. 16, 99 S.Ct. at 2225 n. 16 (emphasis added), cited in Lamb 683 F.2d at 1338 n. 9. The challenged instructions at Franklin's trial created mandatory rebuttable presumptions that placed the burden on Franklin to rebut them by more than "some" evidence, see Sandstrom, 442 U.S. at 517, 99 S.Ct. at 2456, and were therefore not constitutionally permissible.

The state next argues, citing Lamb and Corn v. Zant, 708 F.2d 549 (11th Cir.1983), that if the instructions did shift the burden to Franklin to prove that he lacked intent to kill, other language in the instructions cured the defect. We note first that while the Lamb panel indicated that other instructions "reduced the likelihood that the jury might misinterpret the [intent] instruction," 683 F.2d at 1339, the panel did not discuss whether the other instructions would be sufficient to cure a defective instruction. Rather, the panel decided that the instruction was not mandatory and therefore not defective. Id. at 1339-40.

In Corn, the panel did decide that other instructions cured a defective intent instruction. However, in addition to the other instructions given in Franklin's case, that we discussed in the panel opinion, Corn's jury heard a charge "replete with cautious explanations that refute Corn's claim that an irrebuttable presumption weighed against him." 708 F.2d at 559. The court quoted some of these instructions, id.,...