Holloway v. McElroy

• Decision Date: 22 August 1979
• Docket Number: Civ. A. No. 78-30-AMER.
• Citation: 474 F. Supp. 1363
• Parties: M. W. HOLLOWAY, Petitioner, v. Clay E. McELROY, Respondent.
• Court: U.S. District Court — Middle District of Georgia

474 F. Supp. 1363

M. W. HOLLOWAY, Petitioner, v. Clay E. McELROY, Respondent.

Civ. A. No. 78-30-AMER.

United States District Court, M. D. Georgia, Americus Division.

August 22, 1979.

Lawrence W. Roberts, Roberts, Roberts & Rainwater, Cordele, Ga., for petitioner.

Arthur K. Bolton, Atty. Gen., John W. Dunsmore, Jr., Asst. Atty. Gen., State of Ga., Atlanta, Ga., for respondent.

OWENS, District Judge:

Petitioner M. W. Holloway having been convicted in Crisp County Superior Court of voluntary manslaughter for the March 18, 1975, killing of Joe Crumbley and having had that conviction and his sentence of twenty years affirmed both on direct appeal, 137 Ga.App. 124, 222 S.E.2d 898 (1975), and after collateral attack and state habeas procedures, 241 Ga. 400, 245 S.E.2d 658 (1978), petitioned this court for a writ of habeas corpus, 28 U.S.C.A. § 2254, alleging that he was unconstitutionally convicted because there is not sufficient evidence to support his conviction for manslaughter and because the trial court's charge to the jury unconstitutionally shifted the burden of proving every essential element of the offense from the prosecution—upon whom it constitutionally rests—to the defendant-petitioner.

I. Sufficiency of Evidence of Guilt.

The standard by which this court must evaluate the evidence in a state criminal trial to determine whether the petitioner has been accorded constitutional due process was recently reformulated by the Supreme Court of the United States in Jackson v. Virginia, ___ U.S. ___, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Instead of determining whether or not there is "any evidence" to support petitioner's conviction, the court must now go further and satisfy itself that the evidence in the record could reasonably support a finding of guilt beyond a reasonable doubt. The question therefore is not a question of the presence of evidence in the record but of the sufficiency of that evidence.

Having carefully read the entire trial transcript in light of this revised standard, it is this court's considered judgment for the reasons well stated by Georgia Court of Appeals Judge Braswell Deen in his dissenting opinion, concurred in by Judges Clark and Stolz, Holloway v. State, 137 Ga.App. 124, 127, 222 S.E.2d 898 (1975) (Deen, J., dissenting), that the evidence in this record could not and does not reasonably support a finding of guilt beyond a reasonable doubt. Judge Deen's opinion is specifically incorporated into this opinion and is attached hereto as an appendix. This court notes that the state's evidence, elicited only through defense cross-examination of the state's witness, the investigating G.B.I. agent, revealed that the deceased victim had a blood alcohol content of 0.12 at the time of death. (R. 162). Under Georgia law 0.10 blood alcohol content gives rise to a presumption that the person was under the influence of alcohol. Ga.Code Ann. § 68A-902.1(b)(3). This fact lends support to the petitioner's version that the victim came to the house intoxicated and began a fight. In this court's considered judgment this conviction for manslaughter was not supported by evidence that would rationally lead to the conclusion of guilt beyond a reasonable doubt. It must therefore, be set aside.¹

II. Trial Court's Instructions.

An even more compelling defect in the petitioner's conviction is found in the trial court's jury charge. The court, as respondent suggested, has considered the trial court's charge as a whole and for reasons hereinafter stated finds it constitutionally defective on three related bases. First, by its liberal use of presumptions the trial court's charge has impermissibly invaded the fact finding function of the jury by conclusively presuming the petitioner to be guilty. Secondly, the instruction effectively relieved the prosecution of the burden of proving each and every element of the crime beyond a reasonable doubt and shifted to the petitioner the burden of disproving his guilt. Finally, the charge impermissibly placed upon the petitioner the burden of proving self-defense.

The critical portions of the charge are as follows:

I charge you every person is presumed to be of sound mind and discretion, but the presumption may be rebutted.

I charge you that 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.

I charge you that a person will not be presumed to act with criminal intention, but the trier of facts, and that's 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. (R. 251-52).

* * * * * *

I charge you further that the law presumes every intentional homicide to be malicious until the contrary appears from circumstances of alleviation, of justification, of mitigation, or excuse and the burden is upon the slayer whenever an intentional homicide has been proven to make out such circumstances to the satisfaction of the Jury unless they appear from the evidence produced against him. If, however, the proof, if there be any, that shows the homicide itself discloses that the homicide was done without malice, this presumption that the homicide is malicious does not exist, but if the accompanying proof, if there be any, does not disclose that the killing was done without malice, then it is incumbent upon the slayer to show that it was done without malice.

I charge you, however, that this presumption which arises against the slayer where an intentional homicide is shown does not arise against the defendant unless it be first shown to a moral and reasonable certainty and beyond a reasonable doubt that the defendant is the intentional slayer. Unless it appears beyond a reasonable doubt and to a moral and reasonable certainty that this defendant is the intentional slayer, this presumption does not arise in this case and has no application to the case.

I charge you that when a killing is proved to be the intentional act of the defendant, the presumption of innocence with which he enters upon the trial is removed from him and the burden is upon him to justify or mitigate the homicide unless the evidence introduced against him shows justification or mitigation or excuse, but as I have charged you heretofore, the evidence in justification or mitigation or excuse may be found in the evidence introduced against him. If there be no evidence introduced to show justification or mitigation or excuse, and if the evidence introduced shows the homicide committed as charged in the Indictment, the burden would then be upon the defendant to show justification or mitigation or excuse.

(R. 253-254). (Emphasis supplied).

A. Trial Court erred in instructing that the petitioner is presumed to intend the consequences of his acts.

On June 18, 1979, the United States Supreme Court decided Sandstrom v. Montana, ___ U.S. ___, 99 S.Ct. 2450, 61 L.Ed.2d 39. That decision has been called to the attention of counsel, commented upon by counsel and considered by this court in reaching its conclusion on this issue. In Sandstrom, the defendant was tried in state court for murder; he admitted killing the victim but defended on the ground that he lacked the mental capacity to have "purposely and knowingly" killed her. The petitioner was nevertheless convicted of deliberate homicide, and the conviction was affirmed by the Montana Supreme Court. On certiorari to the United States Supreme Court, the petitioner challenged the constitutionality of the trial court's instruction that "the law presumes that a person intends the ordinary consequences of his voluntary acts." ___ U.S. at ___, 99 S.Ct. at 2453, 61 L.Ed.2d at 44.

The proper analysis of the nature and effect of presumption according to the Court "requires careful attention to the words actually spoken to the jury . . . for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable jury could have interpreted the instruction." Id. ___ U.S. at ___, 99 S.Ct. at 2454, 61 L.Ed.2d at 45. The Court rejected the state's argument that the charge merely created a permissible inference, holding that a reasonable juror might well have viewed the instruction as mandatory. The Court also rejected the argument that the instruction though mandatory merely shifted the burden to the defendant to produce "some evidence" to rebut the presumption that he intended the ordinary consequences of his voluntary acts. The court noted that the jury was never told that the presumption could be rebutted by some evidence, or even that it could be rebutted at all.

A reasonable jury could well have interpreted the presumption as "conclusive," that is, not technically as a presumption at all, but rather as an irrebuttable direction by the court to find intent once convinced of the facts triggering the presumption. Alternatively, the jury may have interpreted the instruction as a direction to find intent upon proof of the defendant's voluntary actions (and their "ordinary" consequences), unless the defendant proved the contrary by some quantum of proof which may well have been considerably greater than "some" evidence—thus effectively shifting the burden of persuasion on the element of intent.

Id. ___ U.S. at ___ _ ___, 99 S.Ct. at 2456, 61 L.Ed.2d at 46-47.

Similarly in the case at hand the trial court instructed the jury that a "person is presumed to be of sound mind and discretion;" that "the acts of a person of sound mind and discretion are presumed to be a product of the person's will;" and that "a person . . . is presumed to intend the natural and probable consequence of his acts, but the presumption may be rebutted." The sum of these three propositions is a presumption...