Patterson v. Austin, 82-8092

• Decision Date: 02 April 1984
• Docket Number: No. 82-8092,82-8092
• Citation: 728 F.2d 1389
• Parties: Roy L. PATTERSON, Petitioner-Appellant, v. Sam AUSTIN, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1389

728 F.2d 1389

Roy L. PATTERSON, Petitioner-Appellant, v. Sam AUSTIN, Respondent-Appellee.

No. 82-8092.

United States Court of Appeals, Eleventh Circuit.

April 2, 1984.

John L. Carroll, Montgomery, Ala., for petitioner-appellant.

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

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

Before RONEY and CLARK, Circuit Judges, and GIBSON ^*, Senior Circuit Judge.

CLARK, Circuit Judge:

In September of 1975, the petitioner, Roy L. Patterson, was tried and convicted in the Superior Court of Crisp County, Georgia, for the murders of J.D. Young and W.R. Haralson, and was sentenced to two consecutive terms of life imprisonment. His convictions were affirmed on direct appeal to the Georgia Supreme Court, a subsequent petition for writ of habeas corpus in state court was denied, and the denial was affirmed on appeal. In June of 1980, Patterson filed an application for federal habeas corpus relief under 28 U.S.C. Sec. 2254 in the Middle District of Georgia. The district court adopted the proposed findings and conclusions of the magistrate and denied the application, and Patterson now appeals that decision to this court. We reverse.

The facts of this case are presented in greater detail in Patterson v. State, 239 Ga. 409, 238 S.E.2d 2 (1977), but may be summarized as follows. On the evening of May 4, 1975, petitioner's brother Joe Patterson had pulled his automobile into a gasoline station in Cordele, Georgia, when he was stopped for a broken headlight by Trooper Young, who also asked that he take an alcohol breath test. The petitioner, who had preceded his brother into the gas station in a separate car, went over to see what the problem was. Young and the petitioner argued (there is some dispute as to how heatedly, T. 1002; 1557-58), after which Trooper Young took Joe Patterson to the Cordele police station for an intoximeter test. Petitioner, accompanied by his wife and baby, followed them there.

When petitioner arrived, he and Young resumed arguing (T. 1391-92). Again, it is unclear whether Young was abusive (T. 1762-63), or Patterson was belligerent (T. 1885; 1891; 2030-31), or both. Young ultimately attempted to handcuff the petitioner (T. 1425); one or the other of them reached for Young's revolver, and a struggle ensued. In the foray, six rounds were fired. Shot one hit no one; the state claims that this round passed through the police station wall (Brief of Appellee at 9), but Patterson insists that it went down and into the floor (T. 1808-09; Brief of appellant at 5). The record is uninstructive on this point. The testimony of firefighters in the next room indicates that shots two through six were fired in rapid succession (T. 1043-44). Shot two hit Young in the head at point blank range. Shot three struck Young in the chest, apparently as he fell to the floor; however, there is some question as to whether he was still standing or had already fallen when the third shot was fired. One expert testified that the third shot was fired from as much as two feet away (T. 1270-71; 1293), which implies that Young had fallen to the floor when shot three was fired, and would explain the bullet found lodged in the floor beneath Young's body (T. 1136; 1306-07). A second expert, however, testified that the third shot was a "muzzle blast" (T. 1212-13), which suggests that Young was still upright when the third shot was fired; if this were the case, the bullet in the floor may have been from the first shot. Officer Haralson, the only policeman present at the Cordele station, was hit in the abdomen by rounds four through six at point blank range, as he ran toward Young and Patterson (T. 1273; 1299). Patterson, along with his brother, wife and baby, left the station in Patterson's car, but was arrested in Cordele later that evening.

At trial, Patterson's jury was instructed as follows, respecting the crime of murder and the element of intent:

As applied to this case in each of its Counts I and II, Murder is defined by Section 26-1101 of the Code of Georgia, as follows:

A person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart.

I charge you that malice is an essential ingredient in murder and it must exist before any homicide can be murder. Malice, in its legal sense, is not necessarily ill will or hatred. It is the unlawful, deliberate intention to kill a human being without justification or mitigation or excuse, which intention must exist at the time of the killing. It is not necessary, however, that this unlawful, deliberate intention should exist for any particular length of time before the killing. Malice may be formed in an instant. Yet if it is in the mind of the slayer at the time of the killing, it is sufficient to constitute murder.

I charge you that to constitute Murder, it is not essential that malice shall exist for any length of time, but it is sufficient if it exists only the moment before the homicide.

I charge you that one may form the intent to kill unlawfully, do the act instantly, regret the deed as soon as it is done, and yet be guilty of Murder.

I charge you that the law presumes every intentional homicide to be malicious until the contrary is established.

I charge you that all men are presumed to intend the natural and proximate consequences of their actions, and when a man kills another by use of means appropriate to that end, he is presumed to have intended that end.

I charge you that a presumption of malice may arise from a reckless disregard for human life. A wanton and reckless state of mind may be the equivalent of a specific intent to kill.

Members of the Jury, I charge you that intent to commit the crime charged in this Indictment in Count I and Count II is an essential element that the State must prove beyond a reasonable doubt. Intent is always a question for the Jury and is ordinarily ascertained by acts and conduct. Intent may be shown in many ways provided the Jury finds that it existed from the evidence produced before them. It may be inferred from the proven circumstances or by acts and conduct, or it may be presumed when it is the natural and necessary consequence of the act.

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. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts, but these presumptions 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 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.

I charge you that an affirmative defense is one that admits the doing of the act charged, but seeks to justify, excuse or mitigate it. With respect to an affirmative defense, unless the State's evidence raises the issues involving the alleged defense, the Defendant, to raise the issue, must present evidence thereon, but once an issue of an affirmative defense is raised, the burden of proof rests upon the State as to such issue as it does with respect to all issues in the case.

I charge you that the law presumes that a person intends to accomplish the natural and probable consequences of his acts. If a person uses a deadly weapon or instrumentality in the manner in which such weapon or instrumentality is ordinarily employed to produce death and thereby causes the death of a human being, the law presumes the intent to kill. This presumption may be rebutted.

I further charge you that a person shall not be presumed to act with criminal intention, but the trier of facts may find such intention upon consideration of the words, conduct, demeanor and all other circumstances connected with the act for which the accused is prosecuted. The burden is upon the State to prove the act alleged to be criminal is, in fact, a criminal act beyond a reasonable doubt. (emphasis added).

Patterson assails the trial court's instruction as potentially burden-shifting and therefore unconstitutional under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). In Sandstrom, a jury instruction delivered at the defendant's murder trial that "the law presumes that a person intends the ordinary consequences of his acts" was held unconstitutional in light of Mullaney v. Wilbur, on the grounds that a reasonable juror could have understood the instruction to shift to the defendant the state's burden of proving the element of intent beyond a reasonable doubt. The Court acknowledged that "some jurors may have interpreted the challenged instruction as permissive, or, if mandatory, as requiring only that the defendant come forward with 'some' evidence in rebuttal" (442 U.S. at 519, 99 S.Ct. at 2456, 61 L.Ed.2d at 48); if those were the only reasonable ways the instruction could be interpreted, it could not operate to shift the burden of persuasion to the defendant, and would consequently pass constitutional muster. The instruction was constitutionally flawed, however, because it was susceptible to either of two additional interpretations:

First, 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...