Godfrey v. Francis, Civ. A. No. C84-354R.

• Decision Date: 28 June 1985
• Docket Number: Civ. A. No. C84-354R.
• Parties: Robert Franklin GODFREY, Petitioner, v. Robert FRANCIS, Warden, Georgia Diagnostic & Classification Center, Respondent.
• Court: U.S. District Court — Northern District of Georgia

613 F. Supp. 747

Robert Franklin GODFREY, Petitioner, v. Robert FRANCIS, Warden, Georgia Diagnostic & Classification Center, Respondent.

Civ. A. No. C84-354R.

United States District Court, N.D. Georgia, Rome Division.

June 28, 1985.

COPYRIGHT MATERIAL OMITTED

Ellen Kreitzberg, Gerald I. Fisher, Washington, D.C., for petitioner.

Mary Beth Westmoreland, Asst. Atty. Gen., Atlanta, Ga., for respondent.

ORDER

HAROLD L. MURPHY, District Judge.

I. FACTUAL BACKGROUND

This is a death penalty case. On March 9, 1978, a jury in the Superior Court of Polk County found Robert Godfrey guilty of two counts of murder¹ and sentenced him to death.

Based on the evidence adduced at trial the jury was authorized to find that in September of 1977 Godfrey was estranged from his wife. At the time of the shootings she was living in a trailer with her mother and daughter. The trailer was located within one hundred yards from Godfrey's.

On September 20, 1977, the day before a court hearing was supposed to take place on the divorce proceedings filed by Mrs. Godfrey, Robert Godfrey telephoned his wife twice to discuss the possibility of reconciliation. After the second rejection, Godfrey, who had a previous history of alchol-related problems, became quite despondent. He went to a closet, got out a shotgun, loaded it, and walked up to the trailer where his wife was staying. His wife and mother-in-law were in the kitchen playing cards. Godfrey fired once through a rear window killing his wife instantly. He then entered the trailer, striking his daughter with the butt of the gun. Then he fired once more killing his mother-in-law.

Immediately after the shootings Godfrey telephoned the police from the trailer to tell them where he was and what he had done. He then exited from the trailer, placed his gun in a tree, and sat down to wait for the police to arrive. When the police came Godfrey was arrested without incident.

II. PROCEDURAL HISTORY

Following his conviction and sentencing, Godfrey appealed to the Georgia Supreme Court. On direct review the court affirmed his conviction and sentence. Godfrey v. State, 243 Ga. 302, 253 S.E.2d 710 (1979). The United States Supreme Court granted certiorari and vacated Godfrey's death sentence. Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). The Georgia Supreme Court remanded for resentencing. A second sentencing trial was held in the Superior Court of Polk County. Again, Godfrey was sentenced to death. The sentence was affirmed on direct review. Godfrey v. State, 248 Ga. 616, 284 S.E.2d 422 (1981), cert. denied 456 U.S. 919, 102 S.Ct. 1778, 72 L.Ed.2d 180 (1982). Godfrey initiated habeas proceedings in the Superior Court of Butts County. Relief was denied. That decision was affirmed by the Georgia Supreme Court. Godfrey v. Francis, 251 Ga. 652, 308 S.E.2d 806 (1983). After denial of a petition for writ of certiorari in the United States Supreme Court, Godfrey filed a petition for a writ of habeas corpus in this Court.

III. SANDSTROM

Petitioner argues that at the guilt-innocence phase of the trial, the court's charge on intent impermissibly 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). The state responds that when the charge is read as a whole no Sandstrom error can be found to have occurred.

The relevant portion of the instruction reads as follows:

The object of all legal investigations is the discovery of the truth. Rules of evidence are framed with a view to this prominent end seeking always for pure sources and the highest evidence. A crime is a violation of a statute of this state in which there shall be a union or joint operation of acts or omission to act and intention or criminal negligence. 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 acts, but the presumption may be rebutted. A person will not be presumed to act with criminal intention but the trier 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. Every person is presumed to be of sound mind and discretion but the presumption may be rebutted.

The defendant has put in evidence which indicates he was insane at the time of the crime. If this creates in your mind a reasonable doubt as to his sanity the legal presumption of sanity is rebutted and the prosecution must remove that doubt and prove the sanity of the defendant beyond a reasonable doubt.

(TR at 545-46).

In Francis v. Franklin, ___ U.S. ___, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), the Court conducted a Sandstrom review of a nearly identical charge.² The Franklin Court found that the sentences: "The acts of a person of sound mind and discretion are presumed to be the product of a person's will, but the presumption may be rebutted," and "A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts, but the presumption may be rebutted," could reasonably have been understood by a juror to create a mandatory rebuttable presumption. Id. at 1972-73. The identical sentences appear in the instant charge.

Clearly, however, instructions may not be considered in a vacuum. They must be viewed within the context of the entire charge. Patterson v. Austin, 728 F.2d 1389 (11th Cir.1984). In this regard, the Franklin Court held that the infirmity of this language was not cured by instructions on presumption of innocence, reasonable doubt, nor the charge that "a person will not be presumed to act with criminal intention...." Id. 105 S.Ct. at 1974.³ After a careful review of the instant charge in toto, the Court sees no other aspect of the instructions, either by virtue of other specific instructions or the organization or phraseology of the charge as a whole, as cleansing the offensive language of its constitutional infirmity.

Thus, as in Franklin, the Court finds that this language "undeniably created an unconstitutional burden-shifting presumption with respect to the element of intent." Id. at 1973. A finding that the instruction was unconstitutionally burden-shifting, however, only concludes the first stage of the analysis. It must next be determined whether the error was harmful.

The Supreme Court has not resolved the issue of whether Sandstrom errors are per se harmful. See Francis v. Franklin, ___ U.S. ___, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985); Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983). In this circuit, Sandstrom errors may be deemed harmless in two instances: if the evidence of guilt was overwhelming and if the offending instruction was applied to an element of the crime not at issue at trial. Davis v. Kemp, 752 F.2d 1515, 1521 (11th Cir.1985). In other words, as to the second instance, the Sandstrom violation may be deemed harmless if defendant does not raise lack of intent as a defense, such as where the defense rests on noninvolvement. McClesky v. Kemp, 753 F.2d 877 (11th Cir.1985).

Here, Godfrey's sole defense was premised on insanity. He did not deny committing the acts of which he is accused. Rather, his defense was that the events surrounding the dissolution of his marriage pushed him into a dissociative state — a state in which he claims that he had no conscious control of his actions. Clearly, mens rea was the only issue confronting the jury.

Upon until very recently, the cases in this circuit involving Sandstrom violations in the context of insanity defenses have been few, leaving unsettled the issue of the impact of a credible insanity defense on a Sandstrom error.⁴ Now however, that gap in Sandstrom jurisprudence has been filled. Dix v. Kemp, 763 F.2d 1207 (11th Cir.1985). In Dix, in keeping with the analytical framework articulated in Davis⁵ and McClesky,⁶ the court held that where defendant presents evidence of insanity, criminal intent is at issue rendering the Sandstrom error harmful. The Eleventh Circuit Court of Appeals' decision in Dix follows the conclusions reached by the Sixth and Ninth Circuits. See Engle v. Koehler, 707 F.2d 241 (6th Cir.1983), aff'd by an equally divided court, ___ U.S. ___, 104 S.Ct. 1673, 80 L.Ed.2d 1 (1984) (per curiam); Petition of Hamilton, 721 F.2d 1189 (9th Cir.1983).⁷

As made clear in Dix, there is one more step in the Sandstrom analysis. It must be determined whether the evidence specifically related to intent was so overwhelming as to render the error harmless. Dix v. Kemp supra at 1211. Godfrey presented expert testimony in support of his defense through Dr. William Davis. Davis had treated Godfrey a number of times prior to the shootings and then examined him for this case pursuant to court order. In this Court's view, Davis offered credible testimony in Godfrey's behalf. The state produced two experts who each disputed Davis' diagnosis and conclusions. While the evidence in support of insanity cannot be said to be overwhelming, considering all of the circumstances involved here and the evidence specifically presented on intent, neither can it be said that the evidence of sanity was overwhelming. Therefore, the Sandstrom error was not harmless since the jury could have reached its verdict by relying on the illegal presumption. As a result, Godfrey's conviction must be set aside.

IV. DOUBLE JEOPARDY

As noted earlier, Godfrey was sentenced to death, but the United States Supreme Court reversed this sentence and the case was remanded for further proceedings. Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1979). A resentencing proceeding was held in which the death sentence was again imposed. Godfrey asserts that the Double Jeopardy Clause barred the state from seeking imposition of...