Godfrey v. Kemp

• Decision Date: 20 January 1988
• Docket Number: No. 85-8570,85-8570
• Citation: 836 F.2d 1557
• Parties: Robert Franklin GODFREY, Petitioner-Appellee, Cross-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic & Classification Center, Respondent- Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1557

836 F.2d 1557

Robert Franklin GODFREY, Petitioner-Appellee, Cross-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic & Classification Center, Respondent- Appellant, Cross-Appellee.

No. 85-8570.

United States Court of Appeals Eleventh Circuit.

Jan. 20, 1988.

Rehearing and Rehearing En Banc Denied March 1, 1988.

Mary Beth Westmoreland, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellant, cross-appellee.

Ellen Kreitzberg and Gerald I. Fisher, Washington, D.C., for petitioner-appellee, cross-appellant.

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

Before HATCHETT and ANDERSON, Circuit Judges, and GODBOLD, Senior Circuit Judge.

GODBOLD, Senior Circuit Judge:

Godfrey, a Georgia prisoner under death sentence, filed a federal habeas corpus petition in the Northern District of Georgia alleging 19 grounds for relief. The district court granted the writ on three grounds. The court held that (1) Godfrey's conviction was unconstitutionally obtained because a jury instruction shifted to him the burden of proof on the issue of intent; (2) the state would violate the double jeopardy clause if it retries Godfrey and seeks to reimpose the death penalty; and (3) the state would violate Godfrey's right to counsel if at another trial it sought to introduce testimony of a state psychiatrist who examined Godfrey after he asserted an insanity defense. The state appeals from the judgment in favor of Godfrey, and Godfrey by cross-appeal contends the denial of relief on other grounds was error.

It is undisputed that Godfrey killed his wife and his mother-in-law. The Georgia Supreme Court summarized the events surrounding these murders:

On September 5, 1977, appellant's wife left him after he cut some of her clothes off her body with a knife. She moved in with her mother, refused to move back home, and filed for divorce. She also charged him with aggravated assault.

On the morning of September 20, 1977 Appellant, who was employed as a male nurse, told a female nurse that he was getting a divorce and it would all be over on the twenty-first. (The divorce hearing was set for the twenty-second.) On the same day, Appellant's mother-in-law called him at work and told him that Mrs. Godfrey would telephone him that evening. She did call, but would not agree to halt the divorce proceedings for an attempted reconciliation. Mrs. Godfrey called back later and again refused to attempt reconciliation.

Appellant took his single action rifle-shotgun and walked to the mother-in-law's trailer home, in which Mrs. Godfrey, her daughter, and her mother were playing a game around a table. Appellant killed his wife by shooting her in the head, firing through a window. He struck his eleven-year-old daughter on the head with the barrel of the gun as she ran for help. Appellant then shot his mother-in-law, killing her. He then called the Polk County Sheriff's office, identified himself, reported the crimes and gave directions to the trailer. He waited at the scene until a policeman arrived. Appellant told the policeman "they're dead. I killed them," and directed the policeman to the murder weapon which was resting in the branches of an apple tree.

After being arrested and advised of his rights, Appellant was taken to the police station where he told a police officer that he had committed a "hideous crime" which he had thought about for eight years and would do again.

Godfrey v. State, 243 Ga. 302, 253 S.E.2d 710, 713-14 (1979).

At trial Godfrey admitted the killings and relied on the defense of insanity. He introduced the testimony of a psychiatrist who testified that Godfrey had suffered from a "dissociative attack" at the time of the killings, which resulted in his not being able to control his subconscious impulses. The psychiatrist also testified that Godfrey asserted that he did not remember any of the events between the phone call from Mrs. Godfrey and "waking up" in jail the following day. He had given Godfrey an injection of Sodium Amytal--a "truth serum"--but Godfrey could not remember the killings even after receiving this treatment. To counter this testimony the state produced expert witnesses who testified that it was their belief that at the time of the killings Godfrey could distinguish between right and wrong.

The jury found Godfrey guilty on two counts of murder and one count of aggravated assault. The jury sentenced him to death. The Georgia Supreme Court affirmed the conviction and sentence. 253 S.E.2d 710 (1979). The U.S. Supreme Court reversed the death sentence. Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). The Georgia trial court again sentenced Godfrey to death, and the Georgia Supreme Court again affirmed. Godfrey v. State, 248 Ga. 616, 284 S.E.2d 422 (1981). The U.S. Supreme Court declined to consider Godfrey's case again. Godfrey v. Georgia, 456 U.S. 919, 102 S.Ct. 1778, 72 L.Ed.2d 180 (1982). Godfrey then filed a habeas corpus petition in the state trial court, which, after a hearing, denied relief. The Georgia Supreme Court affirmed, Godfrey v. Francis, 251 Ga. 652, 308 S.E.2d 806 (1983), and the U.S. Supreme Court again declined review, Godfrey v. Francis, 466 U.S. 945, 104 S.Ct. 1930, 80 L.Ed.2d 475 (1984). Godfrey then filed the present federal habeas petition.

The district court granted the writ. Godfrey v. Francis, 613 F.Supp. 747 (N.D.Ga.1985). The court ruled that the jury charge improperly shifted to Godfrey the burden of proof on the issue of intent in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) and that this error was not harmless beyond a reasonable doubt. It ruled that, if the state retries Godfrey, the double jeopardy clause and the Fourteenth Amendment bar reimposition of the death sentence. It also held that the conviction and sentence must be vacated on Sixth Amendment grounds. The court concluded that statements made by Godfrey to a state psychiatrist and introduced at his trial were taken in violation of Godfrey's right to counsel because the state had conducted the examination before Godfrey was able to consult with his attorney. The state raises all of these issues on appeal.

The district court denied several grounds for relief asserted by Godfrey, and he raises these issues by cross-appeal. He asserts that both the grand jury and the traverse jury were constitutionally infirm under the Fifth, Sixth, and Fourteenth Amendments because the procedures used in selecting them discriminated on the basis of sex and race; that he was denied a trial by an impartial jury because the trial judge failed to dismiss for cause jurors who were biased in favor of imposing the death penalty; that the judge dismissed some jurors for cause even though sufficient cause had not been shown; that because the Georgia Supreme Court failed to conduct a meaningful proportionality review the imposition of the death sentence was arbitrary and capricious; that involuntary statements were improperly admitted; and that exclusion of jurors who unalterably opposed the death penalty at the guilt/innocence stage violated his right to an impartial jury.

We affirm the holdings of the district court on the Sandstrom issue and on the double jeopardy issue. We reverse the district court on the right to counsel issue concerning the statements made by Godfrey to the psychiatrist. The consequences are that the writ must be granted because Godfrey's conviction was unconstitutional; that, if the state retries Godfrey, any effort to re-impose the death penalty would violate the double jeopardy clause; and that the state may constitutionally introduce the psychiatrist's testimony at a new trial. Some of the issues raised by Godfrey's cross-appeal are mooted by our decision on the foregoing issues; the others we reject.

I. Sandstrom Issue

The district court held that the jury charge violated Godfrey's constitutional rights under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), because it impermissibly shifted to him the burden of proof on the issue of his intent to commit the murders. This claim was properly before the district court because the state habeas court had rejected it on its merits. 308 S.E.2d at 810-11. It is now properly before this court.

Godfrey asserts, and the district court ruled, that the following language in the charge violated his constitutional right that the state must prove beyond a reasonable doubt every element of the offense charged:

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.... Every person is presumed to be of sound mind and discretion but the presumption may be rebutted.

Both this circuit and the Supreme Court have evaluated this language in light of the mandates of due process and have concluded that this instruction does not comport with due process because it impermissibly shifts to the defendant the burden of proof on the issue of intent. Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985); Bowen v. Kemp, 769 F.2d 672 (11th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 3337, 92 L.Ed.2d 742 (1986); Thomas v. Kemp, 766 F.2d 452 (11th Cir.1985), vacated on other grounds, --- U.S. ----, 106 S.Ct. 3325, 92 L.Ed.2d 732, on remand, 800 F.2d 1024 (11th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1982, 95 L.Ed.2d 822 (1987); Davis v. Kemp, 752 F.2d 1515 (11th Cir.) (en banc), cert. denied, 471 U.S. 1143, 105 S.Ct. 2689, 86 L.Ed.2d 706, 707 (1985). Fairly read, the charge allowed the state to prevail on the issue of intent by relying on a presumption rather than proving beyond a reasonable doubt that Godfrey had the requisite intent. An unbroken line of authority condemns this instruction as...