Raymond Lee Franklin, Petitioner-appellant, v. Robert Francis, Warden, Respondent-appellee, 720 F.2d 1206 (11th Cir. 1984)

Raymond Lee Franklin was convicted in the Superior Court of Bibb County, Georgia, for the murder of Claude Collie and the kidnapping of Carol Heitmuller. He was sentenced to death for murder and to twenty years imprisonment for kidnapping. In this habeas corpus review, we determine that the Superior Court's instructions to the jury shifted the burden of proof on the issue of intent to Franklin and consequently rendered his conviction invalid.

In brief, the facts leading up to Franklin's conviction are as follows. While Franklin was being held in the Cobb County, Georgia, jail for trial on two offenses unrelated to this appeal, he and four other inmates were taken to a local dentist's office for treatment. While at the office, the inmates were handcuffed to a length of chain. Franklin was released from the handcuffs for an injection, and while he was free, he grabbed the gun of one of the two law enforcement officers guarding him. He released the other inmates, seized the dentist's car keys, and escaped, taking the dentist's receptionist, Carol Heitmuller, with him as "protection." When the car keys did not work, Franklin took Ms. Heitmuller into a nearby neighborhood in search of another car. He knocked on Claude Collie's door, and when Collie answered, pointed the gun at him and demanded the keys to his car. Collie slammed the door in Franklin's face, and the gun Franklin was carrying discharged. The bullet traveled through the door and killed Mr. Collie. Franklin then fired a shot up into the ceiling. Meanwhile, Ms. Heitmuller managed to run to a neighbor's house. When Mrs. Collie, who was in the back of the house, heard the shots, she came to the door. Franklin demanded car keys from her. After she, too, fled to a neighbor's house, Franklin ran away. He eluded capture the rest of the day, but was caught that night, shortly after attempting to enter an occupied car in a parking lot.

Franklin was tried and sentenced in the Superior Court of Bibb County.¹  He appealed his conviction and sentence to the Georgia Supreme Court, which affirmed the trial court. Franklin v. State, 245 Ga. 141, 263 S.E.2d 666 (1980). The United States Supreme Court denied certiorari. Franklin v. Georgia, 447 U.S. 930, 100 S. Ct. 3029, 65 L. Ed. 2d 1124 (1980). Franklin thereafter filed a petition for a writ of habeas corpus in the Superior Court of Butts County. The petition was denied in an unreported order, and the Georgia Supreme Court declined to grant a certificate of probable cause to appeal. The United States Supreme Court denied certiorari. Franklin v. Zant, 456 U.S. 938, 102 S. Ct. 1995, 72 L. Ed. 2d 458 (1982). Franklin then petitioned the district court for a writ of habeas corpus. The district court denied his petition, without an evidentiary hearing, and Franklin took this appeal.

Franklin's petition alleged that the state trial court committed constitutional error (1) by refusing to excuse a venireman for cause, (2) by delivering instructions to the jury, at the conclusion of the guilt phase of Franklin's trial, that shifted the burden of proof to the defendant on the issues of intent, malice, and accident, in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), (3) by allowing the state to introduce evidence of nonstatutory aggravating circumstances during the sentencing phase of his trial, and (4) by refusing to admit Franklin's mitigating evidence. The record of Franklin's trial discloses a Sandstrom violation in the intent instruction as a matter of law; therefore, the writ must issue. We need not address petitioner's other claims.

The Sandstrom trial court charged the jury: " [t]he law presumes that a person intends the ordinary consequences of his voluntary acts." Id. at 513, 99 S. Ct. at 2453. Franklin contends that the instruction on intent at his trial²  was sufficiently similar to the instruction in Sandstrom to warrant reversal. The Supreme Court in Sandstrom analyzed the type of challenge Franklin presents in several steps.

The threshold inquiry, according to Sandstrom, is "to determine the nature of the presumption [the jury instruction] describes." Id. at 514, 99 S. Ct. at 2454. This 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 juror could have interpreted the instruction." Id. The State argued in Sandstrom that the trial court's instruction on intent merely created either a permissive inference, or a presumption that shifted to the defendant only the burden of producing "some evidence," leaving the burden of persuasion beyond a reasonable doubt at all times on the State. The Court disagreed, finding that

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 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. at 517, 99 S. Ct. at 2456. The Court noted that even if some jurors may have interpreted the challenged instruction as permissive, since a reasonable juror could have interpreted the presumption as mandatory, the instruction must be analyzed for constitutional purposes as mandatory. The Court stated, " [W]e cannot discount the possibility that Sandstrom's jurors actually did proceed upon one or the other of these [potentially more harmful] interpretations." Id. at 519, 99 S. Ct. 2457.

In the instant case, the judge instructed that

[t]he 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.

This is a mandatory rebuttable presumption, as described in Sandstrom, since a reasonable juror could conclude that on finding the basic facts (sound mind and discretion) he must find the ultimate fact (intent for the natural consequences of an act to occur) unless the defendant has proven the contrary by an undefined quantum of proof which may be more than "some" evidence. Thus, on the intent instruction, this case proceeds to the second stage of the Sandstrom analysis.

In this stage we must determine whether the alleged burden shift affected an essential element of the state law offense. This question requires recourse to the state statute defining the offense and the state courts' interpretation thereof. O.C.Ga. Sec. 16-5-1 (1982) defines the crime of malice murder:

A person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. Malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.

In Lamb v. Jernigan, 683 F.2d 1332, 1337 (11th Cir. 1982), cert. denied --- U.S. ----, 103 S. Ct. 1276, 75 L. Ed. 2d 496 (1983), we examined the Georgia decisions and concluded that intent to kill and the lack of provocation or justification are both essential elements of malice murder under the Georgia statute. Thus, the intent instruction in this case clearly relates to an essential element of the offense charged.

The Supreme Court's final step in Sandstrom was to determine whether either of the two possible interpretations of the intent presumption (that it was a conclusive presumption or a mandatory rebuttable presumption requiring the defendant to present evidence to the contrary) was constitutional. As the instruction in this case does not establish a conclusive presumption, we look to the Sandstrom analysis of a mandatory rebuttable presumption.

The Supreme Court rejected as unconstitutional a mandatory rebuttable presumption that did not make it plain to the jury that the burden of persuasion as to intent was on the State. The Court reached this conclusion because the jury "could have concluded that upon proof by the State of the slaying, and of additional facts not themselves establishing the element of intent, the burden was shifted to the defendant to prove he lacked the requisite mental state." 442 U.S. at 524, 99 S. Ct. at 2459. The Court found this result to violate the constitutional principles of Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975), in which a jury charge on malice murder allowed the jury to infer malice upon a showing of intentional unlawful homicide, unless the defendant proved by the preponderance of the evidence that he acted in the heat of passion on sudden provocation.³ 

The presumption on intent in this case allowed the same result as did the presumption in Sandstrom. A reasonable jury could have understood the instruction to mean that the burden to prove "no intent to kill" shifted to the defendant once the State showed sound mind, the act of pointing the gun at Mr. Collie, and pulling the trigger, of which the natural and probable consequence was Mr. Collie's death.

The problem with the charge on intent here is that the jury was never enlightened as to the nature of the burden on Franklin to rebut the presumption that he intended the killing. If the jury was persuaded that Franklin had to produce more than some evidence that he did not intend to kill, the burden shifted impermissibly on an element essential for a malice murder verdict.

The trial court's additional charge to the jury, (1) that criminal intent is not presumed and (2) that the burden to show every element of the crime is on the State, did not cure the faulty intent instruction. This charge was present in Sandstrom, and the court commented:

The potential for [the impermissible] interpretations of the presumption was not removed by the other instructions given at the trial. It is true that the jury was instructed generally that the accused was presumed innocent until proved guilty, and that the State had the burden of proving beyond a reasonable doubt that the defendant caused the death of the deceased purposely or knowingly. But this is not rhetorically inconsistent with a conclusive or burden-shifting presumption. The jury could have interpreted the two sets of instructions as indicating that the presumption was a means by which proof beyond a reasonable doubt as to intent could be satisfied.

442 U.S. at 518 n. 7, 99 S. Ct. at 2456 n. 7. The same is true of the general burden allocation instructions here.

Neither did the instruction that criminal intent should not be presumed eliminate the vice Sandstrom condemns. This instruction at best conflicted with the challenged presumption; it did not explain it. At worst, the jury could have made the instructions consistent, interpreting the burden to be on the defendant to rebut the presumption that he intended to kill Mr. Collie, and on the State to show that the killing itself was criminal. Even if the jury believed that the two presumptions conflicted, it would be impossible for us to tell which one they decided to apply, or whether they applied something in between. The only way the charge as a whole could have cured the instruction would have been to explain by what quantum of evidence the defendant must rebut the presumption. If no instruction is given expressly to explain or limit an instruction that otherwise impermissibly shifts the burden of persuasion under Sandstrom, we inevitably face a situation where the reasonable juror could conclude from either one impermissible shift or several conflicting presumptions, some of which are impermissible, that the burden has shifted.

Our inquiry does not end with a finding that an instruction unconstitutionally shifts the burden of persuasion. Before reversing a conviction on the basis of a Sandstrom error, we must evaluate whether the error was harmless. See, e.g., Lamb; Brooks v. Francis, 716 F.2d 780 at 793-794 (11th Cir. 1983). Here, Franklin admitted that he fired the gun and killed Mr. Collie. His only defense was that he did not have the requisite intent to kill. The facts did not overwhelmingly preclude that defense. The coincidence of the first shot with the slamming of the door, the second shot's failure to hit anyone, or take a path on which it would have hit anyone, and the lack of injury to anyone else all supported the lack of intent defense. A presumption that Franklin intended to kill completely eliminated his defense of "no intent." Because intent was plainly at issue in this case, and was not overwhelmingly proved by the evidence (thus constituting harmless error under Lamb), we cannot find this error to be harmless. Accordingly, the district court's order denying the writ of habeas corpus must be reversed. On receipt of the mandate, the district court shall issue the writ, commanding the State to try Franklin within such reasonable time as the district court shall determine or to release him from any further restraint resulting from this conviction.

REVERSED, with instructions.