Warden v. Franklin Brief for Petitioner

    ■i

NO. 83-1590

IN THE

Supreme Court of the United States
OCTOBER TERM, 1983

ROBERT FRANCIS, W ARDEN,
Petitioner,

v.
RAYM O N D  LEE FRANKLIN,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

vnu THE ELEVENTH CIRCUIT

BRIEF FOR PETITIONER

Please serve:
Susan V. Boleyn 
132 State Judicial Building 
40 Capitol Square, S.W. 
Atlanta, Georgia 30334 
(404) 656-3397

Susan V. Boleyn 
Assistant Attorney General 
Counsel of Record for 

Petitioner

M ichael J. Bowers 
Attorney General
James P. Googe, Jr . 
Executive Assistant 
Attorney General

Marion O. Gordon 
First Assistant 
Attorney General
W illiam B. H ill, Jr . 
Senior Assistant 
Attorney General

iij:
s

ji



!

QUESTIONS PRESENTED

1.
Whether the differences between the instructions on 

intent given in this case and those given to the jury in 
Sandstrom v. Montana, 442 U.S. 510 (1979) are constitu­
tionally significant?

2.
Whether the United States Court of Appeals for the 

Eleventh Circuit misinterpreted and misapplied the 
“ reasonable juror test” set forth by this Court in Sand- 
strom v. Montana, 442 U.S. 510 (1979), in light of the 
prior decision of this Court in Cupp v. Naughten, 414 
U.S. 141 (1973)?

3.
Whether the harmless error rule of Chapman v. Cali­

fornia, 386 U.S. 18 (1967) should apply to any instruc­
tions found to be unconstitutionally burdenshifting in 
this case, so as to require a reversal of the Eleventh Cir­
cuit’s opinion granting federal habeas corpus relief?



TABLE OF CONTENTS

QUESTIONS PRESEN TED .........................
OPINIONS BELOW .......................................
JURISDICTIONAL STATEM ENT. 
CONSTITUTIONAL AND STATUTORY 

PROVISIONS...............................................

Page(s)
. . . .  i 
. . . .  1 
. . . .  2

2

STATEM ENT OF TH E CASE..................................... 3
SUM M ARY OF TH E ARGU M EN T..........................  1U
ARGUMENT 11

THE DIFFERENCES BETWEEN THE
INSTRUCTIONS ON INTENT GIVEN IN
rn  lll S C  ASF AND THOSE GIVEN TO TH E

442 U.S. 510 (1979) ARE CON bl I PU- 
T  ION ALLY SIG N IFICAN T............................ 11

n  THE UNITED STATES COURT OF 
I p P E A l i  FOR TH E ELEVENTH CIR­
CUIT M ISINTERPRETED AND M lb- 
I'ppi |ED TH E “ REASONABLE JUROR 

TEST ’ SET FORTH BY THIS COURT IN 
*A N D Sm )M  V MONTANA,  442 U.S. 510 

09791 IN LIGHT OF TH E PRIOR 
DECISION OF THIS COURT IN CUPP  I • 
NAUGHTEN,  414 U.S. 141 (1973)..................  17

111 t h e  HARMLESS ERROR r u l e  OF 
CHAPMAN V. CALIFORNIA,  38b U.S.
18 (19(17) SHOULD APPLY TO ANY 
INSTRUCTIONS FOUND 10  BE UN- 
n  INSTITUTIONALLY BURDENSHIl* 1-
)n°c m lliiscase, : om rosm m im  
V reversal of the eleven hi 
Iiumrs opinion granting! 

l.TOliEAl, IIA11HAS CORPUS REUHI' - 23
CONC LU S10N................ ............
CERTIFICATE OF SERVICE

28
29

ii

TABLE OF AUTHORITIES
Page(s)

Cases•
Chapman v. California, 386 U.S. 18 (1967) .i, U , 23, 25
Connecticut v. Johnson,------ U.S--------- , 103 S.Ct.

969 (1983)............................................................ .. 2 4 ,/o
Corn v. Zant, 708 F.2d 549 (11th Cir. 1983)................. 19
County Court of Ulster County v. Allen,

442 U.S. 140 (1979).............................................. 15, id

Cupp v. Naughten, 141 U.S. 141 (1973)... .i, 12, 13, 15, 17
Franklin v. Francis, 720 F.2d 1206 (11th Cir. im

1983)........................................................................... ..
Franklin v. Georgia, 447 U.S. 930 (1980)....................... 3
Franklin v. State, 245 Ga. 141, 263 S.E.2d 666

(1980)...................................................................... 3’ ’
Franklin v. Zant, 456 U.S. 938 (1982)...........................  3
Hance v. Zant, 696 F.2d 940 (11th Cir. 1983)..............  19
Henderson v. Kihbe, 431 U.S. 145 (1977)....................... 17
Lamb ,  Jernigan, 683 F.2d 1332 (11th Ch-^1982),

cert, denied------ U .S .------ , 103 S.C .
(1983).............................................................. ia,

Patterson v. Austin, 728 F.2d 1389 (11th Cir. 1984) 21
Sandstrom v. Montana, 442 U.S. 510 (1979)...........passim

Skrine v. Stale, 244 Ga. 520, 260 S.E.2d 909 
(1979)...........................................................................  ’

Statutes Cited:
28 U.S.C. § 1254(1)..............................................................  2
28 U.S.C. § 2254...................................................................  4
O.C.G.A. § 16-5-1.................................................................. 3

iii



NO. 83-1590

IN THE

Supreme Court of the United State*
OCTOBER TERM, 1983

ROBERT FR AN C IM VA RD EN

V.
RAYM OND LEE FRANKLIN,

R espondent.

rvvr p e t it io n  FOR WRIT OF CERTIORARI
COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

BRIEF FOR PETITIONER

This Court having granted a writ of certiorari to review 
the judgment and opinion of the United States Court of 
Appeals for the Eleventh Circuit entered in this proceed­
ing on November 10, 1983, Petitioner, Robert Fiancis, 
prays that the judgment granting federal habeas corpus
relief be reversed.

OPINIONS BELOW
The opinion of the United States Court of Appeals for 

the Eleventh Circuit is reported in Franklin v Francis, 
720 F 2d 1206 (llt li Cir. 1983) and is set forth in the 
Joint Appendix. Also set forth in the Joint Appendix is a 
copy of the Order of the United States Court of *
for the Eleventh Circuit entered on January 9, 1984 
nying Petitioner’s petition for rehearing Also set forth 
in the Joint Appendix is a copy of the Order of the m

nnurt of Anneals for the Eleventh Circuit, dated

1



2

January 30, 1984, denying Petitioner’s suggestion for re- 
t a i n g e n  bone. The opinion of the district ■court ,ieny- 
ing the Respondent’s application for federa habeas 
corpus relief is unreported, but is contained in the Joint 
Appendix.

JURISDICTIONAL STATEMENT

The judgment of the United States Court of Appeab 
for the Eleventh Circuit was entered on '  ’
W83 See Franklinc. Francis, 720 F.2d 1200 (11th Cir. 
1983) A timely petition for rehearing was denied on 
January 9, 1984. (See Joint Appendix). A timely peti- 
S T to  rehearing e» banc was denied on January 30, 
1984. (See Joint Appendix).

This petition for a writ of certiorari was timely filed

for a writ of certiorari was granted by tins Cour on 
June 4, 1984.

CONSTITUTIONAL AND STATUTORY 
PROVISIONS

The United States Constitution, Section I, Fourteenth 
Amendment:

Section I All persons horn or naturalized in the

r n y ^ w 'w ld c r S l l^ b r id g e  t t  Privileg°i o"r"im­
munities of citizens of the Un!\ ^  ^ f ^ ^ p r o p -  
any state deprive any person of life!hkerty, <>r pr°P 
ertv without due process of law; noi deny to any 
person within its jurisdiction the equal protection
of the laws.

3

STATUTORY PROVISION

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

STATEMENT OF THE CASE
Respondent, Raymond Lee Franklin, was indicted1 in 

Cobb County, Georgia, during the January 1 erm of 1979 
for the kidnapping of Carol Heitmuller (Coun ) 
the murder of Claude Collie (Count II). A motion for 
change of venue filed by Respondent was granted and 
Respondent’s trial was conducted in Bibb County, Geor­
gia. Following a jury trial, Respondent was found gui y 
on both counts and received the death penalty for mur­
der and a twenty year consecutive sentence for kidnap­
ping. Respondent pursued his direct appeal to the Su­
preme Court of Georgia which affirmed his convictions 
and sentences in Franklin v. State, 245 Ga. 141, 263 S.L.2d 
666 (1980). This Court denied Respondent s petition for 
a writ of certiorari on June 16, 1980. See Frankhn v. 
Georgia, 447 U.S. 930 (1980).

A petition for a writ of habeas corpus was filed on 
March 27, 1981 in the Superior Court of Butts County, 
Georgia. Following a hearing, the state habeas corpus 
court denied Respondent state habeas corpus relief on 
September 10, 1981. Respondent’s application for a cer­
tificate of probable cause to appeal to the Supreme Court 
of Georgia was denied on November 1, 1981. A petition 
for a writ of certiorari was denied by this Couit 
Franklin v. Zant, 456 U.S. 938 (1982).



4

Respondent filed an application for federal habeas 
corpus relief pursuant to 28 U.S.C. § 2254 in the United 
States District Court for the Middle District of Georgia, 
Macon Division on May 14, 1982. On December 9, 1982, 
the district court denied Respondent’s application for 
federal habeas corpus relief and entered judgment on 
behalf of Petitioner. The district court granted Respon­
dent’s application for a certificate of probable cause to 
appeal on January 4, 1983.

Following briefing and oral argument in the United 
States Court of Appeals for the Eleventh Cam it, * 
panel of that Court entered a decision on November 16, 
1983, directing that the district court’s order denying the 
writ of habeas corpus be reversed and that the district 
court issue the writ, commanding the state to retry 
Respondent within a reasonable time or release him 
from any further restraint resulting from his conviction. 
Franklin v. Francis, 720 F.2d 1206 (11th Cir. 1983).

A suggestion for rehearing and rehearing en banc was 
filed on behalf of the Petitioner. The petition for re­
hearing was denied by order of the United States Court 
of Appeals for the Eleventh Circuit dated January 9, 
1984. (Appendix A). Petitioner’s suggestion for rehear­
ing en banc was denied by order of the United States 
Court of Appeals for the Eleventh Circuit dated January 
30, 1984. (Appendix B). The basis for the granting o 
the writ of habeas corpus was a finding by the panel tha 
the trial court’s charge on intent impermissibly shifted 
the burden of proof to the Respondent in violation of 
the principles set forth by this Court m its decision in 
Sandstrom v. Montana, 442 U.S. 510 (1979). On June 4, 
1984 this Court granted the petition for a wilt o cer­
tiorari and oral argument on the petition was granted at
the same time.

5

A review of the evidence presented at Respondent’s 
trial shows the following:

On the morning of January 17, 1979, Burms Campbell 
and Deputy Kenny King of the Cobb County Sheriff’s 
Department transported four Cobb County jail inmates 
to the dental office of Dr. Daniel Busch for treatment. 
(T. 277, 295). The inmates, one of whom was Respon­
dent, were secured together on a common chain. (T. 277). 
After the first inmate had seen the dentist, returned to 
the lobby and was secured to the chain, Respondent was 
released. (T. 278, 296). Respondent used the restroom, 
received an injection from Dr. Busch to numb his mouth 
and was escorted by Sergeant Campbell back to the 
lobby. (T. 278-296).

The first inmate was released again and escorted to 
the treatment room by Sergeant Campbell. (1 .279 , 297). 
During this time, Respondent grabbed Deputy King’s 
.357 magnum pistol from behind, ordered King to get on 
the floor and told another inmate to get King’s keys. 
(T. 279-280). The remaining two inmates unlocked their 
cuffs and under Respondent’s bidding took King’s and 
Campbell’s wallets and Campbell’s pistol. (T. 281, 286,
298).

Both Dr. Busch and his assistant, Carol Heitmuller, 
heard a commotion in the lobby when Respondent took 
King’s pistol. (T. 310, 332). They testified that Respon­
dent then appeared in the doorway brandishing a gun 
and directing Dr. Busch to pull the phone out of the 
wall. (T. 313, 333). Respondent ordered them and Ser­
geant Campbell to lie on the floor. (T. 297, 313, 333). 
Ms. Heitmuller further stated that Respondent said he 
was in for life and had nothing to lose. (T. 313). Re­
spondent tore out the other phone in the lobby and asked



6

Dr. Busch for his car keys. (T. 298, 314 334). Either 
Respondent or another inmate got Dr Busch s toys from 
his desk (T. 314, 334). Respondent then told Ms. Heit- 

to leave with him. (T. 298, 314, 334) Responden 
took the dental assistant by her arm with the pistol 
placed against her side and went outside to Dr. Busc 
car. (T. 335). A short while later, King heard tw 
three gunshots. (T. 282, 288).

According to Ms. Heitmuller’s testimony, Respondent 
had trouble finding the right keys to the car on the key 
ring and became upset. (T. 330-337). Respondent told 
the assistant that they were going up the hdl, he and 
Ms. Heitmuller began to run up the bill and through a 
wooded area. (T. 338, 340). Respondent kept the pistol 
pointed at Ms. Heitmuller throughout their journey into 
the woods. (T. 339). At one point, they came upon a 
certain John Dempsey who was standing at the road
near his house and Respondent naked/ 
car (T 340, 356). After Dempsey replied that he didi t 
have one. Respondent and Ms. Heitmuller con ,need 
until they reached the Collie home. ( I .  340 356-357). 
Dempsey stated that he heard two gunshots shortly
thereafter. (T. 357).

Ms Heitmuller testified that upon reaching the Collie 
home’, Respondent knocked on the door and a man opened 
it (T. 340-341). Respondent asked for a car, the ma 
slammed the door and Respondent fired a shot. (1 . 34 ). 
Ms Heitmuller heard the door's glass pane shatter and 
a moan. (T. 341). After hearing a second shot, she started 
running and found refuge in a neighbor s house. (T. 341-
342, 382).

Dempsey stated that tfter hearing the gunshots the 
victim’s wife and daughter came outside screaming that

7

a man had shot Collie. (T. 357). Dempsey then saw 
Respondent run away from the house. (T. 358). Another 
neighbor, Liz Howard, also heard two gunshots and saw 
a man run down the hill carrying a gun and enter the 
woods. (T. 384, 385).

Mrs. Ollie Collie stated that she and her 73 year old 
husband of fifty years were watching television when 
Collie answered a knock at the front door. (T. 374). Mrs. 
Collie went into the bedroom and heard a gunshot. (1 . 
374). She returned to the living room where she saw her 
husband collapse after saying, “ I been shot.”  (T. 375). 
She heard a second shot and called out to her daughter, 
Gladys, who was in her bedroom. (T. 375).

Gladys Collie testified that she heard someone kicking 
the door followed by two gunshots. (T. 363). She went, 
to the living room where she saw her father on the floor, 
then looked out the door and saw Respondent by her 
car. (T. 363). After shouting to Respondent that he had 
killed her father, Respondent came into the house and 
pointed the gun at her head and cocked the hammer. 
(T. 363). Both mother and daughter ran into other rooms 
to escape Respondent who followed Gladys until she ran 
from the house. (T. 363, 375). Mrs. Collie came out to 
the kitchen where Respondent held the gun to her head 
and asked for the car keys. (T. 375, 376). Mrs. Collie 
further stated the Respondent told her he might as wel 
kill her. (T. 375). She went out the front door and 
Respondent left. (1 . 376).

An autopsy performed by Dr. Joseph Burton, Chief 
Medical Examiner in DeKalb and Cobb Counties re­
vealed an entry bullet wound in the victim s left chest. 
(T 485). The bullet had passed through the chest bruis­
ing the left lung, entered the heart sac, then passed into



8

.1 i f  i„mr rr  486) The bullet’s metal jacket had 
“  ' S  I n f t i e L g  but the lead cues —  into 

the victim’s back area where ,t n .  removed, (1 . 486). 
T ,1P .tsvmetrical entry wound, according to Dr. Burton, 
indicated that there was an m tom ahary target between 
the weal>on and tire victim. ( . )■

Ttesnondent was captured shortly after 8:00 p.m on 
January 17 behind .

' ^ L l t n 't Y n d  being seen running^wn^e

^ ^ Ŵ ^!405W(4^2)8 ÔR ^ ^ ° ^ en^  ^57 ^ g n u m  pistol 
was’ found several feet from where Respondent was cap­
tured. (T. 406, 420).

Respondent was advised of his constit^ional righ ^
and made a statement after his capture. (T. 434). l o  
lowing a Jackson v. Denno hearing on Respondent sv o l-  
untarfness in giving the statement the.Court ™ ed  U 
statement voluntary and admtssrble. (T. 434-445). 
statement was presented to the jury. (T. 455).

According to Respondent's statement, Respondent had 
planned an'escape with another inmate known—  
Wee" at the first good opportunity. (T- 462’ 
waiting for Deputy King to secure Respondent to the 
chain at the dental office, Respondent grabbed King s 
gun and told "Pee Wee”  to get the keys, undo the cuffs 
and get Sergeant Campbell’s gun. (T. 463). Respondent 
took the deputies’ wallets. (T. 463) After obtaining he 
dentist's keys, Respondent went to toe  ̂ car with toe 
dental assistant but was unable to find the right y • 
IT 464). Respondent and the assistant ian up 
passed a man who was asked by Respondent for a car.

9

(T  464) The man did not have one, so Respondent and 
the assistant continued to a house where Respondent 
saw some cars. (T. 464).

Respondent told the man at the house to give him 
some car keys, the man slammed the door and the gu 
“ went off,”  according to Respondent. <T. 464) The gu 
“ went off”  again and the Respondent went into the 
house looking-for ear keys. (T  465). R^pondent asked 
an elderly woman inside for keys, but when she said 
she didn't have any, Respondent left and ran through 
the woods (T. 465, 466). He came to a boat in the garage 
whem he hid for several home, after which he returned 
to the dentist office. (T. 466, 467). He knocked on the 
window of a car parked outside Wendy’s but the woman 
drove off. (T. 467). Respondent then went across 
highway where he was caught by police. (T. 467-408).

The gun recovered by police where Respondent was 
captured had two spent shells and four bve: rounds- (T. 
421 502). Crime lab tests revealed that the bullet 
moved from the body had been fired by the .357 magnum 
I t o l  found near Respondent. (T. 516). An examination 
of the screen door to the Collie home showed that the 
gun had been fired with the muzzle close to or next to 
ihe door (T 518). Two bullets had passed through the 
screen door, front door and door curtain, one bullet strik­
ing Collie and the other buffet lodging in the ceiling. 
(T. 429, 520).

Detective Ronnie Baas testified that police searched 
the boat where Respondent had hidden and discovered a 
fresh footprint in the boat and that the boat s canvas 
cover had been moved. <T. 504). Several items were 
found in the boat including a deputy s identificati 
badge and waUet, and Respondent’s Cobb County jail



10

identification bracelet. (T. 505).
The defense rested without presenting any testimony 

or evidence. (T. 533).
Any additional facts will be referred to as necessary 

for a discussion of the issues raised on behalf of 
Petitioner.

SUMMARY OF THE ARGUMENT

1.
The instructions to the jury which were given in this 

when Droperly considered as a whole, are distm 
gfdshable from the instructions found to be 
tionally burdenshifting in Sandstrom v. Montana 442 
U S 510 (1979). The differences between the instructions 

n n his case and those presented to this Court in 
s Z d s  L  v. Montana, 442 U.S. 510 (1979) are const,- 
fu t io n X  significant, so os to prevent the charge from 
having L  effect of improperly shifting the burden of 
proof to the Respondent. Petitioner respectfully submite 
that the holding of this Court in Sand,tro,n .  M onona 
mpra is narrowly drawn and was not intended tom  elude 
instructions of the type presented in this case, whe 
jury is specifically informed that any presumptionsjrre 
rebuttable and that a person is not presumed to act with 
criminal intention. ,

2.
The United States Court of Appeals for the Eleventh 

Circuit misinterpreted and misapplied the reasonable 
iuror test set forth by this Court in Sandstrom ,  Mon­
ona  442 U.S. 510 (1979). Under the analysis utilized by 
the Eleventh Circuit, a charge containing any mandatory 
language would automatically be found to be unconsti-

11

tutionally burdenshifting under Sandstrom v Montana, 
regardless of the content of the remainder of the instruc­
tions given to the jury. Further, under the Eleventh 
Circuit's analysis, it would have to be assumed hat the 
jury applied any allegedly mandatory presumption re 
gardless of the trial court’s charge considered as a whole.

3.
The harmless error rule of Chapman v. California 386 

U.S. 18 (1967), was properly examined by the Umtei 
States Court of Appeals for the Eleventh Circuit but le 
Eleventh Circuit erred in finding that the harmless erroi 
rule did not prohibit the reversal of Respondent s con­
victions. In light of the overwhelming nature of the evi­
dence presented of Respondent’s guilt and the patently 
frivolous nature of Respondent’s defense, it is clear that 
the circumstances of this case provide an appropriate 
setting for the application of the harmless error rule ot 
Chapman v. California, supra.

ARGUMENT
t THir DIFFERENCES b e t w e e n  TH E IN­

STRUCTIONS ON IN TEN T GIVEN IN THIS  
CASECAND THOSE GIVEN TO  TH E  JURY  
IN SANDSTROM V. MONTANA,  442 U.S. oil) 
0979) ARE CONSTITUTIONALLY SIGNIFI­
CANT.

In Franklin v. Francis, 720 F.2d 1206 (llt li Cir. 1983), 
a panel of the United States Court of Appeals for the 
Eleventh Circuit concluded that the trial court s chaige 
on intent given during the guilt-innocence phase of Re­
spondent’s trial impermissibly shifted the burden o proof 
to the Respondent in violation of the principles set for b 
by this Court in Sandstrom v. Montana, 442 U.b. MU



12
(1979). The trial court’s entire charge to the jury during 
the guilt-innocence phase of the trial is set forth in t le 
Joint Appendix. The portion of the charge alleged to be 
unconstitutionally burden-shifting reads as follows:

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 negli­
gence. A person shall not be found guilty of any 
crime committed by misfortune or accident where it 
satisfactorily appears there was no criminal scheme 
or undertaking or intention or criminal neghgence 
The acts of a person of sound mind and discretion ar 
presumed to be the product of a person s mil, but the 
presumption may be rebutted. A person of sound mind 
and discretion is presumed to intend the natural an 
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 facts, 
that is the jury may find criminal intention upon a 
consideration of the words, conduct, demeanor mo­
tive and all of the circumstances connected with the 
act for which the accused is prosecuted.

In considering this charge on direct appeal, the Su­
preme Court of Georgia found the charge to be distin­
guishable from that presented to this Court in Sandstrom 
v. Montana, 442 U.S. 510 (1979), in light of this Court s 
decision in Cupp. v. Naughten, 414 U.S. 141 (1973). See 
Franklin v. State, 245 Ga. 141, 154, 203 S.E.2d 606
(1980).1

a s u n d e r  this Court’s decision in County Court of Ulster County v. 
Allen, 442 U.S. 140 (1979). Shrine v. State, supra at 521.

13

The distinguishing factors noted by the Supreme C ourt 
of Georgia were that the charge in this case properly ex­
plained to the jury that criminal intent is not presumed, 
that the presumptions were rebuttable, and clearly in­
formed the jury that there was no burden on the Re­
spondent to prove anything. Franklin v. State, supra at 
154. Petitioner contends that these distinctions recog­
nized by the Supreme Court of Georgia in its decision 
are constitutionally significant and establish that this 
charge, unlike that presented in Sandstrom v. Montana, 
supra, was not unconstitutionally burdenshifting. I he 
decision of the Supreme Court of Georgia, focusing on 
the language of the trial court’s charge and contrasting 
it with the language utilized in Sandstrom v. Montana, 
supra, is in line with the admonition given by this Court 
in Sandstrom v. Montana, supra, that in determining the 
nature of a presumption, there must be “ . . . careful at­
tention to the words actually spoken to the jury. . 
Sandstrom v. Montana, supra, at 514. Of course, under 
the prior decision of this Court in Cupp v. Naughten, a 
challenged jury instruction must be viewed as a whole in 
order to determine whether or not a defendant’s right to 
due process has been violated. Id. at 146.

As already noted, in that portion of the charge dealing 
with the principle of intent, the language of the charge 
was distinguishable from that presented to this Corn t in 
Sandstrom v. Montana. Unlike the jury in Sandstrom v. 
Montana, supra, the jury in this case was not only told 
that the acts of a person of sound mind and discretion 
are presumed to be the product of a person’s will, but 
also were informed that the presumption may be re­
butted. (See Joint Appendix). The jury was not only 
told that a person of sound mind and discretion is pre-



14

sumed to intend the natural and probable consequences 
of his acts, but was also told that the presumption may 
be rebutted. (See Joint Appendix). Immediately follow­
ing the challenged portion of the charge on intent, the 
jury was specifically informed that :

A nerson will not be presumed to act with criminal 
intention but the trier of facts, that is, the Jury, may 
find criminal intention upon a consideration of the 
words, conduct, demeanor, motive and all of the 
circumstances connected with the act for which the 
accused is prosecuted.

Therefore, if careful attention is paid to the actual 
words spoken to the jury, it can be seen that the jury 
was clearly informed, even in the challenged portion of 
the trial court’s instructions on intent, that both of the 
presumptions were rebuttable and that a person would 
not be presumed to act with criminal intention. 11ns is 
a significant distinction from^the instruction reviewed by 
this Court in Sandslrom v. Montana, supra.

Additionally, examining the trial court’s charge as a 
whole, there were additional significant instructions for 
the jury’s consideration including standard charges on 
the burden of proof being upon the State to establish 
Respondent’s guilt beyond a reasonable doubt. (See Joint 
Appendix). A standard charge on the presumption of 
innocence existing in favor of the Respondent (See Joint 
Appendix) and the definition given to the jury of a 
“ crime” as being a union of a joint operation of act or 
omission to act and intention or criminal negligence, (bee 
Joint Appendix). Following the trial court’s charge on 
intent, during the portion of the charge on malice also 
an essential element of the crime of murder under Geor­
gia law, the jury was told that, “ the accused is not re­

15

quired to produce evidence of mitigation, justification or 
excuse on his part to the crime of murder. (See Joint 
Appendix).

It should be noted that in the initial portion of the 
trial court’s instructions to the jury, the court stated,
« . and I charge you further that there is no burden
on the defendant to prove anything. The burden is on 
the State.”  (See Joint Appendix).

Therefore, simply on the face of the instructions, read 
as a whole as required by Cupp v. Naughtm supra, the 
language of the challenged presumption was distinguish­
able from that presented to this Court in Sandstrom v. 
Montana, supra. Unlike the jury in Sandstrom v Mon­
tana, supra, the jury in this case was clearly told that 
the burden was not on the defendant to prove anything 
but that they could infer certain matters from the evi­
dence based on the presumptions, or these presumptions 
might be rebutted from the evidence presented. See Sand- 
stroin v. Montana, supra, at 515.

Petitioner urges this Court to limit its holding in 
Sandstrom v. Montana, supra, to cases involving the 
clearly mandatory language utilized in Sandstrom v. Mon­
tana, supra, where no clarifying instructions were given, 
even considering the charge as a whole. Petitioner urges 
this Court not to extend the holding in Sandstrom v. 
Montana, supra, so as to require a finding that a jury 
charge is unconstitutional if a presumption is charged 
concerning an essential element of the offense, but the 
jury is also informed that these presumptions are re­
buttable and that a person is not presumed to act with­
in criminal intention.

As this Court noted in County Court of Ulster County



1G

„ Allen, 442 U.S. 140, 15G (1979), “ inferences and pre­
sumptions are a staple of our adversary system of fact­
finding.”  And this Court went on to note that the most 
common type of inference or presumption is the permis­
sive type which allows, but does not require the trier ot 
fact to infer an elemental fact from proof by the prose­
cutor and places no burden on a defendant. Id. at 157. 
Due to the additional language contained in this charge, 
Petitioner submits, as is argued more fully infra, tha 
due to the language of the trial court’s charge as a who e, 
including language not contained in the trial courts 
charge to the jury in Sandstrom v. Montana, supra, that 
the trial court’s instructions in this case were permissive 
in nature and therefore, not constitutionally intolerable. 
As will also be argued more fully, infra, Petitioner con­
tends that some “ mandatory”  language in the form of 
such phrases as “ are presumed” does not necessarily 
render a charge unconstitutionally burdenslnftmg, when 
the jury is specifically informed that the presumptions 
are rebuttable, that a person is not presumed to act with 
criminal intention, and where there have been general 
instructions clearly informing the jury of the btate s 
burden of proof as to each essential element of the crime 
and the defendant’s presumption of innocence.

Petitioner urges this Court to find that the differences 
in the instructions given on intent in this case, as com­
pared to those given in Sandstrom v. Montana, supra, are 
constitutionally significant so as to require a reversal of 
the finding by the United States Court of Appeals for the 
Eleventh Circuit that the charge on intent impermissibly 
shifted the burden of proof to the Respondent in viola­
tion of Sandstrom v. Montana, supra.

17

TT TH E UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT M ISIN TER­
PRETED AND M ISAPPLIED TH E REA­
SONABLE ^JUROR TE ST” SET FORTH BY 
THIS COURT IN SANDSTROM V- MON­
TANA  442 U.S. 510 (1979), IN LIGII1 OF 
THE PRIOR DECISION OF ™ 1S1p1° <?ILTvIN 
CUPP V. NAUGHTEN,  414 U.S. 141 (1973).

Petitioner contends that the United States Court of 
Appeals for the Eleventh Circuit in its decision in Frank­
lin v. Francis, supra, improperly refused to consider t le 
trial court’s charge as a whole, as is required under Cupp 
v Naughten, 414 U.S. 141 (1973). In Cupp v. Naughten, 
supra, this Court specifically held that challenges to por­
tions of a trial court’s instructions to the jury must not 
be viewed in “ artificial isolation” , but rather, must be 
viewed in light of the instructions as considered as a 
whole. Id. at 146-147. This Court m Cupp. v. Naughten, 
supra, also noted:

The question is not whether the trial court failed to 
isolate and cure a particular ailing instruction bu 
rather whether the ailing instruction by itself so n 
fected the entire trial that the resulting conv.ctio
violates due process. Id at 147, 94 S Ct. at 41^ 
Accord, Henderson v. Kibbe, 431 U.S. 145, 154, Ji 
S.Ct. 1730, 1736 (1977).

As the United States Court of Appeals for Hie Eleventh 
Circuit noted in Lamb v. Jernigan, 683 F.2d ^ 32 , 1339
(11th Cir. 1982), cert, denied, ------ U.S. b.Ut.
1276 (1983), Cupp. v. Naughten, supra and Henderson v. 
Kibbe, supra, mandate that in reviewing these instruc­
tions that courts “ . . . Coasider the effect even of pat­
ently erroneous instructions in light of the remainder of



18

the charge and the entire trial.” Id .1 Instead of review­
ing the trial court’s instructions as a whole, or determin­
ing whether or not a reasonable juror would interpret 
these instructions as containing a mandatory or permis­
sive presumption, the United States Court of Appeals for 
the Eleventh Circuit simply delineated what it found to 
be a burdenshifting instruction on intent and then stated 
that permissive language contained in the instructions 
considered as a whole did not “ cure the allegedly man­
datory rebuttable presumption contained in one phrase 
of the trial court’s instructions to the jury. Franklin v. 
Francis, supra, at 1211-1212. Petitioner contends that in 
ignoring the trial court’s charge as a whole in making the 
threshold determination of whether or not a mandatory 
presumption had been created, the United States Couit 
of Appeals for the Eleventh Circuit rendered inoperable 
the “ reasonable juror standard” set forth by this Couit 
in Sandstrom v. Montana, supra.

In so doing, the decision of the United States Court of 
Appeals for the Eleventh Circuit not only conflicted with 
numerous Georgia decisions finding such a chaige to be 
constitutionally permissible under this Court s decision 
in Sandstrom v. Montana, supra, such as Shine v. State, 
supra, but the decision also conflicted with other deci­
sions rendered by the United States Court of Appeals foi 
the Eleventh Circuit, including Lamb v. Jernigan, 683 
E.2d 1332, 1337 (11th Cir. 1982), cert, denied,---- - U.S.

2 In Lamb v. Jernigan, supra, the trial court charged the jury that 
intent “ may be presumed when it would be the natural and neces­
sary consequence of the particular acts.”  The Eleventh Circuit found 
that the instruction “ was not reasonably susceptible of an interpre­
tation that relieved the prosecution of its burden of proving intent 
beyond a reasonable doubt or otherwise undermined the fact finding 
responsibility of the jury.”  Lamb v. Jernigan, supra, at 1340.

19

> 103 S.Ct. 1276 (1983); Hance v. Zant, 696 F.2d 940 
(11th Cir. 1983); and Corn v. Zant, 708 F.2d 549 (11th 
Cir. 1983), cert, denied May 29, 1984.

Petitioner contends that the Court in Franklin v. Fran­
cis, supra, took an improper approach in light of Sand­
strom v. Montana, by highlighting language which might 
have the effect of a mandatory presumption and then 
determining that because there was “ conflicting lan­
guage”  allegedly making it impossible for the court to 
tell which presumption was applied, the charge was thus 
impermissibly burden shifting. Petitioner contends that 
the proper approach under the “ reasonable juroi test 
set forth by this Court in Sandstrom v. Montana, supra, 
was to review the trial court’s charge as a whole to de­
termine whether or not the challenged instruction had a 
“ mandatory effect” . In this case, Petitioner contends 
that a review of the challenged instruction in light of 
the trial court’s charge as a whole leads inexorably to 
the conclusion that no mandatory presumption was cre­
ated by means of the challenged language, but rather, 
any alleged mandatory effect contained in these phrases 
considered in artificial isolation, was dispelled by the 
other instructions which clearly informed the jury that 
the presumptions were rebuttable and that the Respon­
dent would not be presumed to act with criminal in­
tention.

The “ reasonable juror test”  set forth by this Court in 
Sandstrom v. Montana, supra required that the nature of 
a presumption be determined by the manner in which a 
reasonable juror would have interpreted the instruction, 
based on a review of the actual words spoken to the jury. 
Far from applying this test, the United States Court of 
Appeals for the Eleventh Circuit simply isolated the



20

mandatory language of “ is presumed” , without regard 
to the phrase informing the jury that the presumption 
was rebuttable and found that it would have to be as­
sumed that the jury applied the presumption, regardless 
of the content of the remainder of the instructions given 
to the jury. Instead of applying a “ reasonable juror 
standard” , it appears that the United States Court of 
Appeals for the Eleventh Circuit was actually applying 
one of two standards to the instructions; standards at 
opposite ends of the spectrum. First, it appears that the 
United States Court of Appeals for the Eleventh Circuit 
was assuming that regardless of the content of the charge 
as a whole, that any juror might view the charge as man­
datory because of the mandatory phrases contained there­
in and therefore, the charge was burdenshifting. The 
“ any juror”  approach assumes that any mandatory lan­
guage would automatically be considered as burden- 
shifting by jury members. At the opposite end of the 
spectrum, the approach utilized by the Eleventh Circuit 
appears to incorporate a “ no juror”  standard, i.e., a 
standard in which the court assumes that no juror could 
have made the fine legal distinctions required to resolve 
any conflicting language contained in the charge and 
therefore, if there is any mandatory language, the charge 
must be found to be burdenshifting. Under either form 
of analysis, utilized by the United States Court of Ap­
peals for the Eleventh Circuit, a charge containing any 
mandatory language would thus be impermissibly bur­
den shifting under Sandstrom v. Montana, because it 
would have to be assumed that the jury applied the man­
datory presumption, regardless of the content of the re­
mainder of the instructions given to the jury.

Utilizing the “ reasonable juror” test, Petitioner sub-

21

mits that unlike the finding made by this Court in Sand- 
stroni v. Montana, supra at 515, it is not clear that a rea­
sonable juror could easily have viewed this instruction 
as mandatory, considering the instructions as a whole.

In this regard, Petitioner respectfully directs this 
Court’s attention to the interpretation of the “ reason­
able juror”  standard made by Senior Circuit Judge Floyd 
R. Gibson in his dissenting opinion in Patterson v. Austin, 
728 F.2d 1389 (11th Cir. 1984). In Patterson v. Austin, 
supra, the trial court’s charge on intent was alleged to 
be unconstitutionally burdenshifting under Sandstrom v. 
Montana and a panel of the court so found.' In his dis­
senting opinion in Patterson v. Austin, supra, Senior Cir­
cuit Judge Gibson commented on the decision of the 
United States Court of Appeals for the Eleventh Circuit 
in Franklin v. Francis, supra, and stated

“ However, I would disagree with Franklin if it is 
interpreted to mean instructions that a presumption 
‘may be rebutted’ and that ‘a person is not pre­
sumed to act with criminal intention’ are wholly ir­
relevant to the determination of whether a reason­
able juror would vie/w the overall instruction as 
containing a permissive as opposed to mandatory 
presumption on intent. 1 think a ‘reasonable juror’ 
would evaluate those instructions right along with 
other instructions directing that intent ‘may be’, but 
not ‘miist be’ presumed.”  A major difficulty I have 
with the approach taken by the majority is that it 
sets such an amorphous standard for what “ a rea­
sonable juror” would think as to deprive the term 
“ reasonable”  of its well understood meaning. 1 find 
it incredible that the “ reasonable juror”  the ma-

* A suggestion for rehearing en banc has been filed on behalf of the 
Respondent in Pallerson v. Austin, supra and is presently pending 
in the United States Court of Appeals for the Eleventh Circuit.



22

iority speaks of would even be able to ascertain the 
critical distinction between an instruction which 
mandates “ an inference on intent and one which 
merely ‘permits’ an inference on intent, bee band- 
shorn, 442 U.S. at 527-28, 99 S.Ct. at 2461 (Rehn- 
quist J, concurring). Presumably, the majority would 
agree that the instruction found objectionable here 
would have been constitutional had the references 
to ‘presume’ been preceded by the qualifying term 
‘may’ . See Franklin v. Francis, 723 l1 2d 770 (11th 
Cir. 1984) (percuriam; denying rehearing en banc).
I believe that a juror who could seize the signifi­
cance of this distinction would also recognize the 
overriding importance of the last and twice given 
instruction that “ a person shall not be presumed to 
act with criminal intention, but the trier of facts 
may find such intention upon consideration of words, 
conduct, demeanor and other circumstances con­
nected with the act for which the accused is prose­
cuted” .

Petitioner respectfully submits that the approach taken 
by Senior Circuit Judge Gibson in his dissenting opinion 
is correct and that the sophisticated distinctions placed 
on a “ reasonable juror”  by the United States Court of 
Appeals for the Eleventh Circuit undermine the test as 
set forth in Sandstroin v. Montana, supra, so as to find 
unconstitutional charges which wore never contained 
within the narrow confines of this Court’s original deci­
sion in Sandstrom v. Montana, supra. Rather, Petitioner 
submits that the trial court’s instruction as a whole, 
clearly meets the “ reasonable juror” test set forth in 
Sandstrom v. Montana, supra, and that if the United 
States Court of Appeals for the Eleventh Circuit had 
properly applied this test, habeas corpus relief would not 
have been granted by that Court.

23

III. TH E HARMLESS ERROR RULE OF CHAP- 
M AN  V. CALIFORNIA,  386 U.S. 18 (1967) 
SHOULD APPLY TO ANY INSTRUCTIONS 
FOUND TO BE UNCON STITU TION ALLY 
BURDENSHIFT1NG IN THIS CASE, SO AS 
TO REQUIRE A REVERSAL OF TH E ELEV­
ENTH  C IR C U IT ’S OPINION G RAN 11N G  
FEDERAL HABEAS CORPUS RELIEF.

In Connecticut v. Johnson, ------  U .S .------ , 103 S.Ct.
969 (1983), this Court was equally divided with respect 
to whether or not the harmless error test of Chapman v. 
California, 386 U.S. 18 (1967) can be applied to alleged 
Sandstrom violations and, if so, under what circumstances 
the harmless error test will be utilized. In the decision o 
the United States Court of Appeals for the Eleventh 
Circuit in Franklin v. Francis, supra, the court squarely 
reached the harmless error issue based on precedent with­
in the circuit as contained in Lamb v. Jerniyan, 683 F.2d
1332, 1337 (11th Cir. 1982), cert, denied,------ U.S----------,
103 S.Ct. 1276 (1983). Petitioner contends that although 
the Eleventh Circuit properly reviewed the evidence to 
determine if harmless error would prevent the reversal 
of Respondent’s conviction based on a finding that there 
had been Sandstrom error in the case, the Eleventh Cir­
cuit incorrectly held that, “ because intent was plainly at 
issue in this case, and was not overwhelmingly proved 
by the evidence (thus constituting harmless error undei 
Lamb), we cannot find this error to be harmless.”  Frank­
lin v. Francis, supra, at 1212.

With respect to whether or not the harmless error rule 
should be applied to cases in which Sandstrom violations 
have been found, Petitioner submits that where there is 
overwhelming evidence as to a defendant’s guilt, the 
harmless error rule of Chapman v. California, is properly 
applicable. In footnote 13 of the plurality opinion in



24

Connecticut v. Johnson, supra the Court quoted an article 
from the Rutger’s Law Review for the proposition that, 
“ the pivotable concept of Sandstrom is that the possi­
bility that the jury reached its decision in an impermis­
sible manner requires reversal even though the jury may 
also have reached the same result in a constitutionally 
acceptable fashion.” Connecticut v. Johnson, supra, at 
977, n. 13. Petitioner submits that when there is over­
whelming evidence of a criminal defendant’s guilt, the 
possibility is removed that the jury reached its decision 
based solely on the mandatory or conclusive presump­
tion, rather than on the nature of the evidence.

As Mr. Justice Powell noted in his dissenting opinion 
in Connecticut v. Johnson, supra, “ contrary to the plu­
rality’s assumption, a Sandstrom-type presumption does 
not operate independently of the evidence. The jury 
must look to the evidence initially to see if the basic 
facts have been proved before it can consider whether it 
is appropriate to apply the presumption.”  Id. at 982. 
This statement by Mr. Justice Powell recognizes the pri­
mary function of the jury as a fact finder. Petitioner 
respectfully submits that the jury looks to the evidence 
to determine what facts have been proven by the State, 
and only if there are shortcomings in the evidence does 
a reasonable juror look to the presumption to determine 
if a second set of facts can be assumed based on proof 
of an initial set of facts. Petitioner submits that just as 
in determining whether or not there has been a Sand­
strom violation, a “ reasonable juror”  test must be applied 
in the harmless error arena also, so that it must be as­
sumed that jurors act reasonably by reviewing the evi­
dence as a whole, and then determining in what manner, 
if any, the State’s proof is lacking. As Mr. Justice Powell

25

noted in his dissenting opinion in Connecticut v. Johnson, 
in order to apply the presumption that a person intends 
the natural and necessary consequences of his acts, a 
jury must examine the facts and circumstances to deter­
mine what actions the defendant took, i.e., the character 
and quality of his acts, so that the natural and necessary 
consequences of the act can be determined. Id. at 983.

As the plurality opinion in Connecticut v. Johnson, 
supra stated, in footnote 14, the conceptualization of a 
fair trial includes an implicit understanding that the jury 
has understood and applied the law to all material issues 
in the case. Connecticut v. Johnson, supra at 977, n. 14. 
Therefore, it must be assumed that the jury is reason­
able, i.e., that it did not operate so as to eliminate from 
its consideration any of the material issues in the case, 
but rather examined all the evidence and determined, in 
light of the State’s burden of proof and the defendant’s 
presumption of innocence, whether or not the evidence 
supported the verdict. In other words, it must be as­
sumed that the jurors reviewed all the evidence in the 
case and determined whether or not the evidence was 
sufficient. Therefore, the operation of even a conclusive 
presumption would not prevent the jury from consider­
ing any evidence, but rather would merely affect the in­
ferences that could be drawn from the basic facts pre­
sented. Therefore, Petitioner urges this Court to find that 
the harmless error rule is applicable in cases in which a 
Sandstrom violation has been found.

With respect to the application of the harmless error 
rule of Chapman v. California, supra, to the facts of this 
case, Petitioner submits that, contrary to the holding of 
the Eleventh Circuit, the evidence of Respondent’s guilt 
was overwhelming. First, the evidence does not establish,



(is was found by the United States Court of Appeals for 
the Eleventh Circuit, that Respondent fired the first shot 
due to the slamming of the door. When Respondent 
asked the victim for ids car, the victim slammed the door 
to his home, then Respondent fired a shot. (T. 341). A 

.second gunshot followed. (T. 341-342, 382). Following 
the two shots, Respondent entered the home of the vic­
tim and chased the victim’s wife and daughter, with 
Respondent telling the victim’s wife he might as well 
'kill her. (T. 363-375).

Respondent’s only defense was that the gun “ went off” 
when the man slammed the door. (T. 464). Petitioner 
submits that this defense was patently frivolous and the 
fact that the two shots were fired, one of which killed 
Mr. Collie, clearly establishes Respondent’s intent to kill 
the victim, especially when viewed in light of the fact 
that immediately following the killing of Mr. Collie, 
Respondent informed the victim’s wife that he might as 
well kill her.

Respondent’s statement made after his capture and 
after having been advised of his constitutional rights was 
ruled to be voluntary and admissible and was presented 
to the jury at Respondent’s trial. (T. 434-445, 455). Ac­
cording to Respondent’s statement, Respondent told the 
victim, Mr. Collie “ to give him some car keys, the man 
slammed the door and the gun ‘went off.’ ” (T. 464). 
According to Respondent, the gun “ went off” again and 
Respondent went into the house looking for the victim’s 
car keys. (T. 465). The Respondent asked the victim’s 
wife, who was inside the house, for the keys, but when 
she said she didn’t have any, Respondent left and ran 
through the woods. (T. 465, 466). An examination of the 
screen door to the Collie home indicated that the gun

26 27

had been fired with the muzzle close to or next to the 
door. (T. 518). Two bullets had passed through the screen 
door front door, and door curtain, one bullet having 
struck the victim and the other bullet having lodged in 
the ceiling. (T. 429, 520). The defense rested without 
presenting any testimony or evidence. (T. 533).

Petitioner submits that the evidence was overwhelm­
ing as to Respondent’s guilt, in light of the two bullets 
fired in the direction of the victim, one of which killed 
him, and in light of Respondent’s actions immediately 
following the killing of the victim, i.e., threatening the 
victim’s wife and daughter, as well as in light of the pat­
ently frivolous nature of Respondent’s defense. For these 
reasons, Petitioner submits that this Court should re­
verse the decision of the United States Court of Appeals 
for the Eleventh Circuit finding that the harmless error 
rule did not preclude a reversal of Respondent’s convic­
tion based on an alleged Sandstrom violation.



28

CONCLUSION

For all of the above and foregoing reasons, Petitioner 
respectfully submits that the decision of the United States 
Court of Appeals for the Eleventh Circuit granting Re­
spondent federal habeas corpus relief should be reveised 
and that Respondent’s convictions and sentences should 
be upheld.

Respectfully submitted,

M ichael J. Bowers
Attorney General

James. P. Googe, Jr.
Executive Assistant Attorney General

Marion O. Gordon
First Assistant Attorney General

W illiam B. Hill, Jr .
Senior Assistant Attorney General

Susan V. Boleyn 
Assistant Attorney General

Please serve:
Susan V. Boleyn 
132 State Judicial Building 
40 Capitol Square, S.W. 
Atlanta, Georgia 30334 
(404) 656-3397

29

CERTIFICATE OF SERVICE
I, Susan V. Boleyn, a member of the Bar of the Supreme 

Court of the United States and counsel of record for the 
Petitioner, hereby certify that in accordance with the 
Rules of the Supreme Court of the United States, 1 have 
this day served a true and correct copy of this Brief for 
the Petitioner on counsel for the Respondent by deposit­
ing three copies of same in the United States Mail with 
proper address and adequate postage to:

Mr. Ronald J. Tabak 
Hughes, Hubbard & Reed 
1 Wall Street
New York, New York 10005
Mr. John Charles Boger 
99 Hudson Street 
New York, New York 10013

day of July, 1984.

i4___________________________Susan V. Boleyn 
Assistant Attorney General

This 3 ^ 1