Gary Tyler, Petitioner-appellant, v. C. Paul Phelps, Director, Department of Corrections, Andattorney General of the State of Louisiana,william Guste, Jr., Respondents-appellees, 622 F.2d 172 (5th Cir. 1980)

Gary Tyler, appellant, was convicted of first degree murder in Louisiana state court and sentenced to die. On appeal, the death penalty¹  was vacated but the conviction was affirmed, State v. Tyler, 342 So. 2d 574 (La.), cert. denied, 431 U.S. 917, 97 S. Ct. 2180, 53 L. Ed. 2d 227 (1977). After unsuccessfully pursuing state habeas corpus, Tyler v. Phelps, 353 So. 2d 1050 (La.1978), this 28 U.S.C. § 2254 action was filed. The district court denied relief and the petitioner appeals. We reverse and remand.

At the time of the offense, Gary Tyler was a 16-year-old student at Destrehan High School. The morning of the murder had been marked by general turmoil and racial tensions, and Tyler had been suspended from school. Later in the day he was picked up and taken back to school by a deputy sheriff who suspected he was truant. By the time Tyler and the deputy arrived at the school, the school officials had decided to close the school and send all students home. After being told to go home immediately, Tyler boarded a bus loaded with other students.

Upon leaving the school grounds, the bus was met with jeering and rock-throwing by the assembled crowd. As the bus proceeded, someone on the bus shot a .45 caliber automatic revolver into the crowd. The bullet struck and killed one boy and grazed another. It was alleged that Tyler shot the pistol and the jury so found in convicting him.

In his appeal to this court, Tyler raises two issues, both of which were raised on direct appeal and in his petition for state habeas: first, he contends he was convicted on the basis of an unconstitutional jury charge; second, he contends there is insufficient evidence to convict him of first degree murder.

This case, like Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), involves the constitutionality of a state charge on presumptions. Unlike Sandstrom, however, this case also involves the question of whether habeas corpus relief is available to a defendant who did not object to the charge at trial. Accordingly, this court must determine first whether the charge as given was unconstitutional, and second whether any unconstitutionality must go unredressed because of the rule articulated in Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977).

Did the Charge on Presumptions Unconstitutionally Shift the

Burden of Proof to the Defendant?

In Sandstrom v. Montana, the defendant was charged with "deliberate homicide," Mont.Code Ann. § 45-5-102 (1978), which requires that the homicide be committed purposely or knowingly. The defendant admitted that he killed the victim, but denied that he did so purposely or knowingly.

At trial, the primary issue was Sandstrom's mental state at the time of the homicide. He presented psychiatric testimony from which his counsel argued he had not acted with the requisite mens rea. Pursuant to the state's request, the trial court charged the jury that "the law presumes that a person intends the ordinary consequences of his voluntary acts." The defendant's timely objection was overruled; his conviction was affirmed on appeal to the Montana Supreme Court, but was reversed by the United States Supreme Court.

The Court noted that the charge at issue in Sandstrom is ambiguous; it is unclear whether it is a conclusive (i. e., if you find Sandstrom caused the death of the victim you must find he did so intentionally) or nonconclusive (i. e., if you find Sandstrom caused the death of the victim and if he presents no evidence to the contrary, you must find he did so intentionally) presumption. Accordingly, the Court considered the due process ramifications of both types of presumptions.

Presumptions which act to preclude consideration of an element of the crime conflict with the presumption of innocence and invade the factfinding function of the jury. United States v. United States Gypsum Co., 438 U.S. 422, 98 S. Ct. 2864, 57 L. Ed. 2d 854 (1978); Morisette v. United States, 342 U.S. 246, 72 S. Ct. 240, 96 L. Ed. 288 (1952). The effect of such conclusive presumptions is to relieve the State of its burden of proving beyond a reasonable doubt every element of the crime charged, an unconstitutional result under In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).

Nonconclusive presumptions, which shift only the burden of persuasion to the defendant, are also unconstitutional. Such a presumption was at issue in Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 568 (1975), where the jury had been charged that malice aforethought is an essential and indispensable element of murder, but that if the State proved the homicide was both intentional and unlawful, malice aforethought was to be implied unless the defendant proved by a preponderance of the evidence that he acted in the heat of passion. 421 U.S. at 686, 95 S. Ct. at 1883. The Court in Sandstrom reiterated its Mullaney holding that such nonconclusive, burden-shifting charges are unconstitutional. 442 U.S. at 524, 99 S. Ct. at 2459. See also Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977).

At Tyler's trial, as is relevant here,²  the primary issue was whether Tyler possessed a specific intent to kill or do great bodily harm to more than one person.³  Inasmuch as the facts revealed that Tyler fired a fully loaded pistol only once, the State relied heavily on the statutory presumption that a defendant intends the natural and probable consequences of his acts. La.Rev.Stat. 15:432. The prosecutor stressed this presumption in both opening and closing arguments. The judge then charged the jury:

Presumptions are deductions or conclusions which the law requires the jury to make under certain circumstances in the absence of evidence in the case which leads the jury to a different or contrary conclusion. A presumption continues to exist only so long as it is not overcome or outweighed by evidence in the case to the contrary. But unless and until the presumption is so outweighed, the jury is bound to find in accordance with the presumption.

I charge you with State Special Charge # 1 requested under Presumptions that the defendant intended the natural and probable consequences of his act. (T. 59F) (Emphasis added).

This charge is so similar to the charge in Sandstrom that we can come to no conclusion but that it had the same effect as that ruled unconstitutional by the Sandstrom Court. Accordingly, we hold that Tyler was convicted on the basis of an unconstitutional charge.⁴ Must the Unconstitutionality of the Charge Go Unredressed?

It is undisputed that for a trial error to be reviewable in Louisiana, an objection must be made at the time of its occurrence. La.Code Crim.P. art. 841.⁵  It is also undisputed that Tyler's counsel made no objection to the erroneous charge. Accordingly, in a simplistic and conclusory argument the State asserts that under Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), any error must go unredressed. We disagree.

Initially, we note that the State ignored the threshold question of whether the correctness of a jury charge is reviewable at all, and if so under what standard, by a federal habeas court. An erroneous instruction will support a collateral attack on the constitutional validity of a state court's judgment only if the ailing instruction so infected the entire trial that the resulting conviction violates due process. Henderson v. Kibbe, 431 U.S. 145, 154, 97 S. Ct. 1730, 1736, 52 L. Ed. 2d 203 (1977), quoting from Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 400, 38 L. Ed. 2d 368 (1973). Compare Blenski v. LaFollette, 581 F.2d 126 (7th Cir. 1978) (charge not so uninformative and confusing as to constitute a denial of due process) with Berrier v. Egeler, 583 F.2d 515, 521-22 (6th Cir.), cert. denied, 439 U.S. 955, 99 S. Ct. 354, 58 L. Ed. 2d 347 (1978) (a muddled charge on who had the burden of proof on self-defense so infected the fairness of the trial as to warrant habeas relief). See also Cronnon v. Alabama, 587 F.2d 246 (5th Cir.), cert. denied, 440 U.S. 974, 99 S. Ct. 1542, 59 L. Ed. 2d 792 (1979); Bradley v. Wainwright, 561 F.2d 1200 (5th Cir. 1977); Higgins v. Wainwright, 424 F.2d 177 (5th Cir. 1970); Bonner v. Henderson, 517 F.2d 135 (5th Cir. 1975); Pleas v. Wainwright, 441 F.2d 56 (5th Cir. 1970). Thus, the threshold issue for this court is whether the charge given here so infected the trial as to render it fundamentally unfair. We conclude that it did.

The effect of the charge in this case was affirmatively to shift to the defendant the burden of proof on a critical fact which was in dispute namely, whether Tyler had a specific intent to harm more than one person. Inasmuch as there is very little evidence to support that proposition other than the presumption at issue here, it is folly to argue that the erroneous charge did not affect the central determination of guilt or innocence.

Concluding that the charge affected the fundamental fairness of the trial does not end our inquiry, however. Because Tyler's trial counsel failed to object to the erroneous instruction, we must determine whether the district court was correct in concluding that the procedural default under Louisiana's contemporaneous objection rule bars habeas relief by this court.

Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), admonishes us that absent cause for the procedural default and actual prejudice from the error, principles of comity and federalism prevent federal courts from granting habeas relief to state prisoners whose claim is non-reviewable in state court because of the default. This rule was designed to avoid the perceived effect of Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963), of encouraging "sandbagging" by defense lawyers in the state trial. 433 U.S. at 89, 97 S. Ct. at 2507.

Considering first the "prejudice" prong, we find Tyler was prejudiced by the improper jury charge. As discussed above, the error was sufficiently egregious to convince us that Tyler was denied a fundamentally fair trial. See Harris v. Spears, 606 F.2d 639 (5th Cir. 1979); Freeman v. Georgia, 599 F.2d 65 (5th Cir.), cert. denied, --- U.S. ----, 100 S. Ct. 661, 62 L. Ed. 2d 641 (1980); Berrier v. Egeler, 583 F.2d 515 (6th Cir.), cert. denied, 439 U.S. 955, 99 S. Ct. 354, 58 L. Ed. 2d 347 (1978); Collins v. Auger, 577 F.2d 1107 (8th Cir. 1978), cert. denied, 439 U.S. 1133, 99 S. Ct. 1057, 59 L. Ed. 2d 96 (1979); Sincox v. United States, 571 F.2d 876 (5th Cir. 1978); Bromwell v. Williams, 445 F. Supp. 106 (D. Md. 1977). But see Blenski v. LaFollette, 581 F.2d 126 (7th Cir. 1978).

Though "cause" was undefined in the Sykes opinion, subsequent decisions have given meaning to the term. Several courts have indicated that ineffective counsel, short of that necessary to make out a Sixth Amendment claim, will satisfy the "cause" prong.⁶  See Collins v. Auger, 577 F.2d 1107, 1110 n.2 (8th Cir. 1978) (dictum), cert. denied, 439 U.S. 1133, 99 S. Ct. 1057, 59 L. Ed. 2d 96 (1979); Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978) (en banc), cert. denied, 440 U.S. 974, 99 S. Ct. 1542, 59 L. Ed. 2d 793 (1979); Jiminez v. Estelle, 557 F.2d 506, 511 (5th Cir. 1977) (dictum). We agree with the sentiment expressed in Collins v. Auger, 577 F.2d 1107, 1110 n.2 (8th Cir. 1978), cert. denied, 439 U.S. 1133, 99 S. Ct. 1057, 59 L. Ed. 2d 96 (1979), that a lack of knowledge by trial counsel that the actions of the trial judge constituted a due process violation is sufficient cause for failure to object.⁷ 

We find this definition of the "cause" element of Sykes to be completely consistent with the policies stated by the Sykes Court. By not binding a defendant to obvious mistakes by his trial counsel we are not permitting counsel to sandbag, but only giving relief to defendants when the erroneous, nontactical decisions by counsel result in prejudice.

As in Jiminez v. Estelle, 557 F.2d 506 (5th Cir. 1977), this could be a case where rigid application of the Sykes rule will run afoul of the Supreme Court's admonition that Sykes is not to be applied in such a way as to result in a miscarriage of justice. 433 U.S. at 91, 97 S. Ct. at 2508. Because the district court applied the improper legal standard in determining "cause,"⁸  it is unknown whether a rigid application of Sykes will result in a miscarriage of justice. Accordingly, we will remand the case for a reconsideration of the "cause" element of the Sykes rule. It may well be that although Tyler's trial counsel was sufficiently competent overall to have provided effective assistance of counsel for purposes of the Sixth Amendment, his decision not to object to the charge was not a competent decision.⁹  If so, then the "cause" prong of Sykes will be satisfied and the writ of habeas corpus must be granted. If not, then the district court is directed to determine whether a miscarriage of justice will result from application of the rule.

Application of Jackson v. Virginia

Tyler next contends that there is insufficient evidence to sustain his conviction for first degree murder under Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Assuming for purposes of argument that Jackson v. Virginia is to be applied retroactively, we find that Tyler is not entitled to habeas relief on that basis.

Jackson held that the "no evidence" rule of Thompson v. Louisville, 362 U.S. 199, 80 S. Ct. 624, 4 L. Ed. 2d 654 (1960), is inadequate to protect a defendant from misapplications of the reasonable doubt standard constitutionally necessary for a criminal conviction, 443 U.S. at 320, 99 S. Ct. at 2790. In order to adequately protect a defendant from such a misapplication, a federal habeas court which is presented with a sufficiency of the evidence claim, must, assuming procedural prerequisites have been satisfied, grant the relief sought if on the record evidence adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt. 443 U.S. at 324, 99 S. Ct. at 2792.

Applying this test to the facts of this case, we cannot say Tyler is entitled to relief. Gary Tyler fired a .45 caliber pistol into a crowd of people. A rational fact finder could conclude that firing a pistol into a crowd of people evidences an intent to kill or do great bodily harm to more than one of those assembled. Because Tyler's Jackson claim goes only to the question of his intent and since a rational trier of fact could conclude he possessed that intent, Tyler cannot succeed on his Jackson claim.¹⁰ 

The judgment is REVERSED and the case REMANDED for further proceedings not inconsistent with this opinion.