Lancaster v. Newsome

• Decision Date: 10 August 1989
• Docket Number: No. 88-8347,88-8347
• Parties: Bob Edward LANCASTER, Petitioner-Appellant, v. Lanson NEWSOME, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 362

880 F.2d 362

Bob Edward LANCASTER, Petitioner-Appellant, v. Lanson NEWSOME, Respondent-Appellee.

No. 88-8347.

United States Court of Appeals Eleventh Circuit.

Aug. 10, 1989.

David A. Cook, Decatur, Ga., for petitioner-appellant.

Susan V. Bolevn, Asst. Atty. Gen., Dept. of Law, Atlanta, Ga., for respondent-appellee.

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

Before KRAVITCH and COX, Circuit Judges, and MORGAN, Senior Circuit Judge.

MORGAN, Senior Circuit Judge:

Petitioner, Bob Edward Lancaster, appeals from the district court's denial of his petition for habeas corpus relief. Lancaster was found guilty of murder in the Superior Court of Cobb County, Georgia, in June of 1982, and sentenced to life imprisonment. The Georgia Supreme Court affirmed his conviction and sentence on direct appeal. Lancaster v. State, 250 Ga. 871, 301 S.E.2d 882 (1983).

After three unsuccessful attempts to obtain a writ of habeas corpus in state court, Lancaster filed this petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254. Petitioner, who proceeded pro se in all his state court petitions, was represented by counsel at the federal level. In his federal petition, Lancaster alleged as grounds for relief that (1) the trial court gave unconstitutional burden-shifting jury charges, (2) the prosecution failed to reveal favorable treatment extended to key government witnesses, (3) his counsel was ineffective, (4) the composition of the jury was unconstitutional, and (5) the prosecution failed to reveal that armed robbery charges were pending against a key government witness.

The magistrate issued his report and recommendation that the petition be dismissed. On April 7, 1988, the district court entered an order denying habeas corpus relief. Lancaster v. Newsome, No. 1:87-CV-384-ODE (N.D.Ga. Apr. 7, 1988). Lancaster subsequently filed an application for a certificate of probable cause on May 5, 1988. A notice of appeal was filed May 17, 1988. A panel of this court concluded that while the notice of appeal was untimely as it was filed more than 30 days after the entry of final judgment, the application for a certificate of probable cause clearly evidenced an intent to appeal and was thus construed as a timely notice of appeal. Lancaster v. Newsome, 880 F.2d 362 (11th Cir. 1988) (unpublished opinion). This appeal follows.

FACTS

The district court, in reviewing Lancaster's federal petition for writ of habeas corpus, found the following facts:

According to the testimony at Petitioner's murder trial, Lancaster moved in with his sister, Margaret Lancaster, on February 15, 1980. The next day, Lancaster became involved in an argument with the victim, "Boozie" Baker, his sister's paramour. Everyone except the victim, Petitioner, and Petitioner's nephew, six-year old Tommy Lancaster, left the apartment after the argument began. Regina Higgins, the chief witness in the case, arrived at the apartment shortly thereafter. She testified that Lancaster and Baker were "hollering" at each other when she entered the apartment. Both men were in the kitchen. Higgins testified that she saw Lancaster go upstairs and then return. She noticed that Lancaster had a knife in his right hip pocket when he returned to the kitchen. Tommy Lancaster also testified that he saw the knife. He stated that Petitioner held the knife in his hand close to his right leg as he returned to the kitchen.

According to Higgins, Lancaster then approached Baker; the two men were separated by a small kitchen table. Higgins testified that Lancaster pushed Baker. Baker recovered then lunged toward Lancaster as he reached for a knife on the kitchen table. [In her prior statements, Ms. Higgins waivered [sic] in whether or not Baker reached for a knife. However, this is the version she gave at trial, and it is the version most favorable to Lancaster's claim of self-defense.] Higgins testified that she then saw Lancaster strike Baker in the chest with an upward sweeping motion. Baker staggered, then stumbled out the back door. Lancaster followed him out.

Another witness, Tommy Lee Bryant, who was outside the apartment at the time, testified that he saw Baker run out of the kitchen door with Lancaster in pursuit. Bryant testified that he saw Baker run underneath a clothes line. The clothes line caught Lancaster around the throat, and he fell to the ground. Lancaster then came back towards the apartment, saying "You're dead, mother f--er." The medical examiner testified at trial that Baker died of a single stab wound to the heart.

Lancaster v. State, 250 Ga. at 871-72, 301 S.E.2d 882.

Lancaster's defense at trial was self-defense. The defense presented no evidence but instead relied on the cross-examination of the state's witnesses to assert this defense. Petitioner, who had voluntarily turned himself in to the authorities, did not testify at trial, nor did he make a statement to the police concerning the events surrounding Baker's death.

DISCUSSION

A. Burden-Shifting Jury Charges

Petitioner's first argument is that the trial court's charge to the jury impermissibly shifted to petitioner the burden of proof and persuasion on the issue of intent. Lancaster contends that the burden-shifting jury charges given at his trial were the exact charges found unconstitutional in Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). Specifically, petitioner challenged in the state habeas corpus court the following language:

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.

To assist jurors in the difficult task of determining what a defendant intended during the commission of a crime, some courts have utilized mandatory presumptions in their instructions on intent. See, e.g., Sandstrom v. Montana, 442 U.S. 510, 513, 99 S.Ct. 2450, 2453, 61 L.Ed.2d 39 (1979) ("the law presumes that a person intends the ordinary consequences of his voluntary acts"); see, e.g., Franklin, 471 U.S. at 311, 105 S.Ct. at 1969-70 ("acts of a person of sound mind and discretion are presumed to be the product of the person's will"). The Supreme Court in Sandstrom and Franklin held that such jury instructions unconstitutionally removed from the government the burden of proving every element of the crime beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). The Court reasoned that these instructions deprived a criminal defendant of due process because the charge may have been interpreted by the jury as shifting the burden of proof on intent--an essential element of the crime--to the defendant, thereby undermining his constitutional right to be presumed innocent. Sandstrom, 442 U.S. at 524, 99 S.Ct. at 2459. And as the Court clarified in Franklin, an accompanying instruction that any presumption of intent to act "may be rebutted" did not render the unconstitutional instruction constitutional. Franklin, 471 U.S. at 316-17, 105 S.Ct. at 1974.

The lesson of Franklin is clear--a mandatory rebuttable presumption concerning the issue of intent is impermissible under the Due Process Clause. We agree with petitioner that the intent instruction in this case created a mandatory rebuttable presumption which is virtually identical to the charges condemned in Sandstrom and Franklin. Since intent is clearly an element of malice murder under Georgia law, see O.C.G.A. Sec. 16-5-1 (1988), a presumption which in the mind of a reasonable juror could have relieved the state of its duty to prove every element of the offense beyond a reasonable doubt was constitutionally impermissible. Reviewing the instructions as a whole, we also conclude that the constitutionally infirm jury instruction was not unambiguously corrected by other language appearing in the charge. ¹

Until recently, the question of whether Sandstrom errors could be harmless had not been authoritatively resolved. In Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), the Supreme Court held that the harmless error standard of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ² applies to jury instructions that violate Sandstrom and Franklin. The Court in Rose v. Clark clearly instructed the court in reviewing a Sandstrom error not to set aside an otherwise valid conviction "if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt." 478 U.S. at 576, 106 S.Ct. at 3106 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986). ³

Having found language that unconstitutionally shifted the burden of proof in this case, we are now required by Rose v. Clark to undergo a harmless error review. If, on the facts of the case, the erroneous jury instruction was harmless, then the Sandstrom error would not require a new trial. In applying harmless error analysis to Sandstrom violations, this court has identified two situations where the harmless error doctrine can be invoked: "(1) where the erroneous instruction was applied to an element of the crime that was not at issue in the trial, or (2) where the evidence as to the defendant's guilt was overwhelming." Bowen v. Kemp and Dix v. Kemp, 832 F.2d 546 (11th Cir.1987) (consolidated en banc). Under the first situation, a Sandstrom error on intent may be harmless where intent to kill is conceded by the defendant or otherwise not put in issue at trial. See, e.g., Tucker v. Kemp, 762 F.2d 1496, 1501 (11th Cir.1985) (en banc), cert. denied, 478 U.S. 1022, 106 S.Ct. 3340, 92 L.Ed.2d 743 (1986) (erroneous instruction on intent harmless where defendant's "sole defense was non-participation in killing"). Under the second prong of...