Tucker v. Kemp

• Decision Date: 31 May 1985
• Docket Number: No. 83-8466,83-8466
• Parties: Richard TUCKER, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent- Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1496

762 F.2d 1496

Richard TUCKER, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent- Appellee.

No. 83-8466.

United States Court of Appeals Eleventh Circuit.

May 31, 1985.

Opinion on Denial of Rehearing July 23, 1985.

Joseph M. Nursey, Millard Farmer, Kenneth Rose, Atlanta, Ga., for petitioner-appellant.

Susan V. Boleyn, Asst. Atty. Gen., William B. Hill, Jr., Atlanta, Ga., for respondent-appellee.

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

Before GODBOLD, Chief Judge, RONEY, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HENDERSON, HATCHETT, ANDERSON and CLARK, Circuit Judges. ^*

R. LANIER ANDERSON, III, Circuit Judge:

INTRODUCTION

This case was taken en banc principally to consider two of the several constitutional claims asserted by appellant Richard Tucker. In Section One of this opinion, we discuss the claim that the instructions on intent at Tucker's trial 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). We conclude that there was a Sandstrom error, but that the error was harmless beyond a reasonable doubt. In Section Two of this opinion, we discuss Tucker's claim that the prosecutor's argument during the sentencing phase of his capital trial rendered the sentencing phase fundamentally unfair. We reject Tucker's argument in this regard, and conclude that his sentencing phase was not fundamentally unfair.

In addition to the two issues which this opinion will discuss, Tucker asserts four other constitutional claims: (1) that the prosecutor's comment on Tucker's silence violated his rights under the Fifth, Eighth and Fourteenth Amendments; (2) that trial counsel's failure to investigate and prepare for trial denied Tucker his right to effective assistance of counsel; (3) that the trial court's failure to instruct the jury on confessions as required by state law, when considered in conjunction with the admission of contradictory, disputed and uncounseled confessions, violated Tucker's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments; and (4) that Tucker was denied his right to an evidentiary hearing in the district court below. The panel affirmed the district court's denial of relief on issues (1) and (3) above, and also on Tucker's claim that he was denied effective assistance of counsel at the guilt/innocence phase of his trial. Tucker v. Francis, 723 F.2d 1504 (11th Cir.), vacated for reh'g en banc, 728 F.2d 1358 (11th Cir.1984). With respect to these issues, we reinstate the panel opinion. See Parts III and VI of the panel opinion and that portion of Part IV concerning ineffective assistance of counsel at the guilt/innocence phase. 723 F.2d at 1508-16, 1517-18.

The panel did not reach the issues of whether an evidentiary hearing should have been held in the district court or whether Tucker's trial counsel was ineffective at sentencing, see 723 F.2d at 1516, 1518 (Parts IV and VII), because the panel granted relief on another sentencing phase Tucker was convicted of kidnapping with bodily injury and murder by a Butts County, Georgia, jury. The evidence presented at trial tended to show that Tucker's victim, a 55-year old woman, was kidnapped and forced to drive to a secluded area. The victim was then robbed and clubbed to death with an iron pipe. Her body was then stripped of all clothing and the clothing was burned. The partially decomposed nude body was not discovered until five days later. Additional facts relevant to the two issues discussed in this opinion will be set out as appropriate.

issue and remanded for a new sentencing hearing. Since our resolution of this case does not require that Tucker receive another sentencing hearing, the two issues not reached by the panel are no longer moot. Thus, we remand the case to the panel for resolution of those two issues.

Tucker was sentenced to death both on the murder charge and on the kidnapping with bodily injury charge. His convictions and sentences were affirmed by the Georgia Supreme Court on direct appeal. Tucker v. State, 245 Ga. 68, 263 S.E.2d 109 (1980), and the United States Supreme Court denied Tucker's petition for writ of certiorari. Tucker v. Georgia, 449 U.S. 891, 101 S.Ct. 253, 66 L.Ed.2d 119 (1980). In May 1981, Tucker filed a habeas corpus petition in the Superior Court of Butts County, Georgia, which was denied. A second habeas corpus petition in the same court was denied in January 1982. The Supreme Court again denied certiorari. Tucker v. Zant, 459 U.S. 928, 103 S.Ct. 238, 74 L.Ed.2d 188 (1982).

The instant habeas corpus petition was filed in the United States District Court for the Middle District of Georgia in November 1982. The district court denied relief. On appeal, a panel of this court granted relief only on the issue involving the prosecutor's argument during the sentencing phase. Tucker v. Francis, 723 F.2d 1504 (11th Cir.1984). A petition for rehearing en banc was granted, thus vacating the panel opinion. 728 F.2d 1358 (11th Cir.1984).

SECTION ONE: SANDSTROM ISSUE

i. was there an impermissibly burden-shifting instruction

under sandstrom ? ¹]

Tucker was charged in a two-count indictment, the first count of which was malice murder and the second count of which was kidnapping with bodily injury. Intent is an essential element of both charges. Tucker argues that the trial judge's instruction regarding intent was impermissibly burden-shifting under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). The relevant part of the jury charge reads as follows:

Members of the Jury, I give you certain definitions taken from the laws of the State of Georgia. A crime is a violation of a Statute of this State in which there shall be a union of joint operation of act or omission to act and intention or criminal negligence. [sic]. 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 fact, 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.

(Emphasis added). ² The above emphasized instruction, which amounts to a mandatory rebuttable presumption on the essential element of intent, is identical to the ones After a careful review of the entire jury charge, and employing the analysis set forth by the Supreme Court in Francis v. Franklin, we find that a reasonable jury could well have concluded that Tucker bore the burden of proof on the necessary element of intent. The relevant portions of the jury instructions in this case cannot be distinguished from the jury charge in Francis v. Franklin, which we find to be controlling. We thus conclude that the instruction violates Sandstrom.

                found impermissible in the recent Supreme Court case of Francis v. Franklin, --- U.S. ----, 105 S.Ct. 1965, --- L.Ed.2d ---- (1985), and in our recent en banc case of Davis v. Kemp, 752 F.2d 1515, 1517-19 (11th Cir.1985) (en banc).  The state argues, however, that the general instruction regarding the state's burden of proof with respect to every element of the crimes charged and the instruction stating that "[a] person will not be presumed to act with criminal intention ...", was curative of any potentially burden-shifting instruction.   See Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973) (jury charge must be read as a whole).  This contention must also fail in light of Francis v. Franklin which considered almost identical allegedly curative instructions and nevertheless held the instruction as to intent to be impermissibly burden-shifting.   See Franklin, --- U.S. at ----, 105 S.Ct. at 1974-1976;  accord, Davis, 752 F.2d at 1517-19
                

II. WAS THE SANDSTROM ERROR HARMLESS?

The Supreme Court has left open the question whether a Sandstrom error can ever be harmless. Francis v. Franklin, --- U.S. at ----, 105 S.Ct. at 1977. However, our en banc court in Davis recently reaffirmed for this circuit that a Sandstrom error, like most other errors of constitutional magnitude, can be held harmless beyond a reasonable doubt. Davis v. Kemp, 752 F.2d at 1520-21; see also McCleskey v. Kemp, 753 F.2d 877, 902-03 (11th Cir.1985) (en banc). Davis identified two situations where harmless error analysis is appropriate: (1) where the evidence of the defendant's guilt was overwhelming; and (2) where the instruction concerned an element of the crime not in issue at trial. ³ Davis, 752 F.2d at 1521 (citing Lamb v. Jernigan, 683 F.2d 1332, 1342 (11th Cir.1982), cert. denied, 460 U.S. 1024, 103 S.Ct. 1276, 75 L.Ed.2d 496 (1983)).

Turning first to the second portion of the Davis harmless error analysis, Tucker argues that his intent was at issue by virtue of the fact that he claimed non-participation in the killing. Although Tucker did not put on any evidence at trial, his sole defense was non-participation in the killing. It is clear that the crux of Tucker's defense was that Willie Lee Mahone, not he, was the perpetrator of the killing. Tucker presented his non-participation defense, not by establishing direct evidence of Mahone's guilt, but by attempting to undermine the credibility and expertise of the state's witnesses through rigorous cross-examination. Tucker's defense attorneys, in their closing arguments, attempted to convince the jury that a reasonable doubt had been raised as to Tucker's participation in the killing.

The Davis case emphasized that the nature of the defense at trial is an important factor in the harmless error analysis. Davis, 752 F.2d at 1521. In Davis, as...