Warden v. Franklin Brief for Respondent
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August 30, 1984

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Brief Collection, LDF Court Filings. Warden v. Franklin Brief for Respondent, 1984. c8736872-c89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/cdfce70a-275a-46e1-bbd1-62323b3d75da/warden-v-franklin-brief-for-respondent. Accessed July 11, 2025.
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No. 8 1 - 1 5 9 0 IN Till-) SUPREME COURT Ol*' Till: UNITED STATES OCTOBER TERM, 1981 ROBERT FRANCIS, WARDEN, Pel it ion*- r , v . RAYMOND LEE FRANKLIN, Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF FOR RESPONDENT RONALD J . TABAK HUGHES HUBBARD & REED One Wall Street New York, New York 10005 (212) 709-7735 JOHN CHARLES BOGER 99 Hudson Street New York, New York 10013 (212) 219-1900 Counsel for Respondent the questions presented for review 1. Did the trial court's charge to Respondent's jury violate his due process rights as articulated in Sandstrom v. Montana, 442 U .S . 510 (1979), because a reasonable juror could have interpreted it as effectively shifting the burden of per suasion regarding Respondent's intent to kill? 2. Is it harmless error beyond a reasonable doubt, under Chapman v. Cali fornia, 386 U.S. 18 (1967), when an unconstitutional jury charge effect ively shifts the burden of persuasion with respect to an essential element of the alleged offense and that element is the principal, highly-disputed matter at issue? TABLE OF CONTENTS Page THE QUESTIONS PRESENTED FOR REVIEW....................... i TABLE OF AUTHORITIES............... vi COUNTER-STATEMENT OF THE CASE . . 1 A. Evidence At The Guilt- Determination Phase Of The Trial............ 1 13. Respondent's Defense That He Did Not Intend To Kill Claude Collie . . 15 C. The Charge To The Jury................... 18 D. The Eleventh Circuit's Holding................... 22 SUMMARY OF ARGUMENT.............. 2 3 ARGUMENT........................... 28 I. THE JURY CHARGE WAS UNCONSTITUTIONAL BECAUSE A REASONABLE JUROR COULD HAVE INTERPRETED IT AS EFFECTIVELY SHIFTING THE BURDEN OF PERSUASION REGARDING RESPONDENT’S INTENT TO KILL.............. 28 - i i - A. It Is Unconstitutional To Shift The Burden Of Persuasion Regarding Any Element Of A Crime Through The Use Of A Rebuttable Presumption.......... 28 B. The Jury Charge In Respondent's Case Set Forth Rebuttable Presumptions with Respect To A Critical Element Of The Crime: Respondent's Intent To Kill.................3U C. The Charge Here Was Unconstitutional Because A Reasonable Juror Could Have Construed It As Requiring The Respondent To Rebut The Presumptions Through Considerably More Than "Some" Evidence . . . . 32 1. This Court Must Determine How A Reasonable Juror Could Have Interpreted The Instruction . . . . 32 2 . In Making This Determination, It Is Prudent To Examine First The Challe nged Instruct ion Itself.......... Pag* 33 Page 3. Examination Of The Challenged Instruction Here Reveals A Grave Danger That The Charge Was Con strued As Shift ing The Burden Of Persuasion Reg a rd i ng Respondent's Intent To Kill. . . 36 4. When The Charge As A Whole Is Con sidered, It Is Apparent That The Danger Of An Unconstitutional Interpretation Was Actually Intensified, Not Eliminated........ 39 a. The Charge That Criminal Intent Would Not Be Presumed. . . . 40 b. The Instruc tions On Accident. . . . 46 c. Other Aspects Of The Charge As A Whole. . . 51 Page II. THE UNCONSTITUTIONALITY OE THE JURY CHARGE CANNOT PROPERLY BE DEEMED HARMLESS ERROR BEYOND A REASONABLE DOUBT, BECAUSE IT MAY HAVE DISTORTED THE JURY'S CONSIDERATION OE THE CRUCIAL, HIGHLY- DISPUTED ISSUE IN THE CASE......................... 59 A. Sandstroin Error Can Never Be Harmless Where Intent To Kill Is A Disputed Element Of The Alleged Crime.......... 61 B. Even If A Sands from Error Can Sometimes Be Harmless When Intent To Kill Is Disputed, It Was Not Harmless Error Here, Where Intent To Kill Was The Most Critical Issue In The Case. . . . 67 CONCLUSION....................... 7 2 AFFIDAVIT OF MAILING CERTIFICATE OF SERVICE -v- TABLE OF AUTHORITIES C d 0 S l Pages: Bollenbach v. United States, 326 U.S. 607 (1946) ........ 42-43, 50n, 64-65 Callahan v. LeFevre, 605 F.2d 70 (2d Cir. 1979) . . . . 46n Chandle v. State, 230 Ga. 574, 198 S.E. 2d 289 (1973) ..................... 49n Chapman v. California, 386 U.S. 18 (1967).............. 1,25-26 , 60, 61 Connecticut v. Johnson, 460 U.S. 73 (1983).......... 26-27, 60, 65-67 & 66n, 71 Corn v. Zant, 708 F.2d 549 ( 11th Cir. 1983) , cert, denied, 104 S.Ct. 2670 (1984) ................. 54 Cupp v. Naughten, 414 U.S. 141 (1973) ............ 34,35 Dietz v. Solem, 640 F.2d 126 (8th Cir. 1981) . . . . . 68 -v i- Franklin v. Francis, 720 F. 2d 1206 ( 11th Cir. 1983), rehearing denied, 723 F.2d 770 (11th Cir.) (per curiam), cert, granted, 104 S.Ct. 2677 (1984) . . . . C a s e s : Hance v. Zant, 696 F.2d 940 (11th Cir.), cert. denied, 103 S.Ct. 3544 (1983)....................... Hankerson v. North Carolina, 432 U.S. 233 (1977) ........ Pages: 22,27, 35-37, 41,42, 44-45, 53, 54-55, 5Bn, 68 54-55 49-50, 0 3-6 4 In re Hamilton, 721 F.2d 1189 (9th Cir. 1983 )....... 66 In re Winship, 397 U.S. 358 ( 1970)................... 28 Ivan V. v. City of New York, 407 U.S. 203 ( 1972) ( per curiam) ................... 62-63 Johnson v. State, 249 Ga. 621, 292 S.E. 2d 696 ( 1982 )....................... 30 Cases: Pages: Lamb v. Jernigan, 683 F.2d 1332 (11th Cir. 1982), cert. denied, 103 S.Ct. 1276 (1983) ................ 30-31, 44n, 5 5 6 n Leary v. United States, 395 U.S. 6 ( 1969) . ........ 43 Mason v. Balkcoin, 66 9 F •2d 222 ( 5tTTCir. Unit U 1982), cert, denied, 460 U.S. 1016 ( 1983 )........ 31 M i_l Is v. United States , 164 U.S. 644 ( 1897 ) ........ 42 Mu 1 laney v . Wilbur. 4 21 U.S. 684 ( 1975 ) ............ 28 , 30n, 48n Patterson v. Austin. 728 F. 2d 1389 (11th Cir. 1984 ) ....................... 56, 58n- 59n Pat terson v. New York, 4 32 U.S. 197 ( 1977 ) ........ 29,48n Patterson v. State, 239 Ga. 409, 238 S.E.2d 2 (1977 )....................... 44n Ph i11ips v . Rose, 69 0 F.2d 79 (6th Cir. 1982) . . . 46n -vi i i- Cases: Pages: Rogers v. Redman, 457 F. Supp. 929 (D. Del. 1978). . 4 5 Sandstrom v. Montana, 442 U.S. 510 (1979) .......... 1, 24, 26 , 29-30, 32-33, 34-35, 38-39, 43,45 51-52 , 5 6 t« n, 57-58, 6 0 , 61 , 65 & n , 6 7 Skrine v. State, 244 Ga. 520, 260 S.E. 2d 900 (1979) ................... . 5 5 n Smith v. Smith, 454 F.2d 572 (5th Cir. 1971 ) , cert, denied, 409 U.S. 885 ( 1972 )................. 4 3 State v. Ferguson, 91 S.C. 235, 74 S.E. 502 ( 1912)..................... 4 8 n State v. Moore, 237 Ga. 269, 227 S.E. 2d 241 (1976)..................... 49 n State v. Poole, 33 Ohio St. 2d 18, 294 N.E. 2d 888 (1973)................. 4 8 n Cases; Pages; United Brotherhood of Carpenters and Joiners of America v. United States, 330 U.S. 395 '( 1947 ) ...................' . 6 5 United States v. Booz, '451 F .2d 719 (3d Cir. 1971), cert. denied, 414 U.S. 820 ( 1973)........ 52 Constitutional Provisions; Amendment X I V ................. 28 - x- No. 83-1590 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1983 ROBERT FRANCIS, WARDEN, Petit ioner, v. RAYMOND LEE FRANKLIN, Respondelit . ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF FOR RESPONDENT COUNTER-STATEMENT OF THE CASE A. Evidence At The Guilt- Determination Phase Of The Trial Respondent Raymond Lee Franklin ("Respondent"), a 21-year old youth being held in the Cobb County Jail, attempted to escape from the custody of two Cobb County deputies on January 17, L'J79, while undergoing emergency dental treatment along with three other pris oners at a local dentist's office. (Tr. T . 276-77).! Each prisoner was secured by a handcuff to an eight-foot length of chain (Tr. T. 277). After another prisoner had seen the dentist, Respondent was released from the chain in the reception area and was escorted to the dental chair (Tr. T. 278-79), 1. Each reference to the transcript of Respondent's state trial held on April 23-26, 1979, in the Superior Court of Cobb County, will be indi cated by the abbreviation "Tr. T.," followed by the number of the referred-to page. 2 where he received X-rays and four or five injections of carbocaine (a drug similar to Novocain) (Tr. T. 302, 310). Respondent was then escorted back to the reception area to wait for the drug to take effect. (Tr. T. 278-79, 310.) As another inmate was being uncuffed to be taken to the dentist's chair, Respondent, who had not been rechained, suddenly grabbed a .357 pistol from the holster of Deputy Kenneth King (Tr. T. 279) and told the deputy to lie face down on the floor (Tr. T. 280). Respondent then stepped into the door way leading to the dental chair and told Sergeant Burris Campbell to lie face-down on the floor. (Tr. T. 297.) At Respondent's direction, the remain ing prisoner was released (Tr. T. 280- 81), Sergeant Campbell's pistol was 3 taken (Tr. T. 297-98), and the offi cers' wallets were seized (Tr. T. 281) Respondent, who had directed Dr Daniel Busch and his dental assistant to lie down on the floor (Tr. T. 313), asked Dr. Busch for his wallet and his automobile keys (Tr. T. 314). After learning that the dentist carried no wallet, Respondent took the dentist's keys from a desk top and left the office with another prisoner. (Tr. T. 282, 314.) As they were leaving, Respondent turned to Carol Heitmuller, Dr. Busch’s dental assistant, took her arm and said, "Get up. you're coming with us, get your purse." (Tr. T. 334 . ) The law enforcement officers, the dentist and Ms. Heitmuller all tes tified that Respondent was in an extremely nervous and agitated state 4 during these events.2 These witnesses also agreed that Respondent, though armed with a .357 pistol (i) never struck or touched anyone during the escape (Tr. T. 290-91 (Dep. King); 304 (Sgt. Campbell); 324 (Dr. Busch)) ex cept when he took Carol Heitmuller's arm (Tr. T. 351), and (ii) never ver- 2. Deputy King recalled that "'[h]e was real -- I've never seen anybody that hyper in my life, to be really scared, you know, he wasn't calm in his actions at all" (Tr. T. 288, quoting the deputy's commitment hearing testimony). Sergeant Campbell observed that Respondent "appeared to be quite nervous" and that "his feet were shaking." (Tr. T. 303.) Dr. Busch agreed that Respondent was "extremely nervous" and "shaky * * * [a]11 over," that his voice "quivered" and that he seemed "frightened". (Tr. T. 322- 24.) Carol Heitmuller, the dental assistant, testified that Respon dent was "extremely nervous" (Tr. T. 332) and that she "had never seen anyone that nervous" (Tr. T. 350, quoting Ms. Heitmuller's com mitment hearing testimony). She also described Respondent as "breathing very heavily, very rapidly." (Tr. T. 350.) 5 bally threatened anyone (Tr. T. 290 (Dep. King); 304 (Sgt. Campbell); 324 (Or. Busch); 351 (Carol Heitmuller) ) . Outside in the parking lot, Respondent located Dr. Busch's automo bile but was unable to find the right key to open the car door. (Tr. T. jjb.) lie then called to Ms. Heitmuller, "'Come on, we're going up the hill.'" (Tr. T. 338.) He let go of her arm, and with the pistol pointed toward her, preceded her to the top of a small embankment behind the parking lot. Ms. Heitmuller then asked for permission to leave. (Tr. T. 352.) Respondent replied, "’Well, I'm not going to hurt you"’ (Tr. T. 352), say ing that he "just needed [her) * * * for protection" (Tr. T. 338). The other prisoner left as Respondent and Ms. Heitmuller then ran 6 across an open clearing and approached John Dempsey, a resident standing in his driveway. Pistol in hand, Respon dent called to Mr. Dempsey to give him a car. (Tr. T. 340, 356.) When Mr. Dempsey "told him I didn't have no car * * * they went on" without stop ping. (Tr. T. 356.) Mr. Dempsey tes tified that Respondent appeared "ner vous" and "frightened" (Tr. T. 361), but Respondent did not threaten or otherwise harm Mr. Dempsey (Tr. T. 352) . Respondent and Ms. Heitmuller soon came to a small frame house belonging to Claude Collie, a 72-year- old retired carpenter. (Tr. T. 368.) Respondent approached the front screen door of the home and "knocked hard" on the screen. When Mr. Collie opened the door, Respondent asked him for his car. 7 (Tr. T. 341.) Collie, who was "a very large man * * * over six feet tall and weigh!ing) over two hundred pounds," (Tr. T. 485), slammed the inner wooden door (Tr. 341). Respondent's .357 pis tol -- which had been held against the screen door approximately 33/4 inches away from the inner door (Tr. T. 453, 514)3 — immediately discharged;4 its 3. According to Richard Earnest, the State's ballistics expert, an exam ination of the gunshot holes in the screen door revealed that, "the muz zle of the gun * * * had to be very close, in close proximity, if not in complete contact with the screen to blow these characteristic type holes into this screen." (Tr. T. 518 . ) 4. Mr. Earnest, the State's ballistics expert, testified that if the ham mer of the .357 pistol had been cocked, it would have discharged under three pounds of trigger pull. If the weapon had not been cocked, it would have required twelve pounds of pressure to discharge. Any weapon discharging under less than five pounds of trigger pres sure, the expert explained, would be deemed to have a "light trig ger". (Tr. T. 526.) 8 1 bullet travelled through the screen door, hit the wooden door frame of the inner door, began to tumble and struck Mr. Collie in the chest area (Tr. T. 453, 488, 490). A moment later, the weapon discharged a second bullet, which passed at a sharply different angle up through the screen door and the glass pane and curtain of the inner door, before entering the ceiling imme diately inside the front door. (Tr. T. 429, 449, 519-20.) Claude Collie mortally wounded in by the first bullet. His wife, Ollie Coll "I been shot" as he ran into an adjacent 375.) As the pistol Respondent let go of Ms. Heitmuller, who fell to the floor his heart and lung (Tr. T. 486-87.) ie, heard him say fell; she quickly bedroom. (Tr. T. d ischarged, Carol Heitmuller. then believed that 9 the second shot had come from inside the house, quickly ran away. (Tr. T. 354.) Respondent, who also thought that someone had shot at him (Tr. T. 465), left the porch. He was standing in front of the yard when he saw Gladys Collie, Mr. Collie's grown daughter. (Tr. T. 367.) Respondent then turned hack toward the Collie home, entered it and pointed his weapon at Gladys Collie. (Tr. T. 363.) She retreated to the kitchen and tried to shut the kitchen door; as Respondent opened it, she ran out the back door through a field to a neighbor's home. (Tr. T. 364 . ) Respondent did not pursue Gladys Collie further. Instead, he approached Mrs. Ollie Collie, holding the gun towards her head. Mrs. Collie testi fied that in demanding her car keys, 10 Respondent stated, "Give me the keys * * * I just might as well kill you." (Tr. T. 376-77.) When Mrs. Collie did not comply with Respondent's demand, he did not restrain her from fleeing out the front door. (Tr. T. 376 . ) Some moments later, a neighbor of the Collies, Liz Howard, having heard gunfire, looked outside and saw Respondent running down a hill through her yard. (Tr. T. 304.) Ms. Howard testified that Respondent "was sort of, you know, staggering from the left and right, just like he didn't know what was happening or what had happened, like he was shocked at what had hap pened" and that he "looked like he was in shock, like he didn't know what had happened." (Tr. T. 388, 390.) 11 Respondent managed to elude cap ture by the police during the rest of the daylight hours. (Tr. T. 466-67.) At about 8 p.m., he attempted to enter an occupied automobile, but lie did not fire his gun when the occupants drove away. (Tr. T. 393.) Soon thereafter, the police closed in on a fenced area behind a shoe store toward which Respondent had fled. (Tr. T. 405.) Cobb County Police Detective Mike Barfield testified that as he approached, Respondent could be seen with both hands held high in the air, hysterically screaming several times, "'Please don’t shoot me. I didn't mean to hurt nobody. I didn't mean to do it. Please don't kill me. Please don't shoot me.'" (Tr. T. 405, 409.) At the direction of the police, Respon dent lay on his stomach and submitted 12 to arrest. (Tr. T. 405-06.) An arresting officer described Respondent as "very excited and trembling, like running wild." (Tr. T. 414.) Within an hour of his capture, Respondent insisted — against the advice of his two attorneys, who were present (Tr. T. 436-37, 470) — on giv ing the police a full account of the day's events (Tr. T. 459-71). In his statement, Respondent acknowledged that he had planned to escape that morning if possible. (Tr. T. 462.) However, he earnestly maintained he did not deliberately shoot Claude Collie, stat ing : "(A)11 I needed was a car to get away and this old man came to the door and I told him, I said uh, I want your car keys and I just held the gun up and I said, I want your car keys and he slammed the door and the gun went off, I didn't mean to kill nobody. I didn't even know it hit him til (I 13 was) coining in." (Tr. T. 464 . ) One of the interrogating offi cers, Lieutenant Lee Moss, testified that when "telling us about the actual gun going off, the actual firing of the shot, [Respondent’s] voice began to get a little shaky, a little quivering. He did show some emotion at this point." (Tr. T. 474.) Respondent closed his statement by reiterating, "I didn't mean to kill nobody, the gun just, the gun went off but when he slammed the door and the gun went off, I wouldn't hurt nobody for nothing." (Tr. 470.) Defense counsel asked Lieutenant Moss, the officer in charge of the Detective Bureau's Crimes Against Persons Unit (Tr. T. 427), whether he believed that Respondent's statement had been truthful. Having investigated the case thoroughly, ever since 10:00 14 a.m. on the day of the shooting ( id. ), and having observed the Respondent's demeanor while making his statement, Lieutenant Moss replied: "To the best of my knowledge, like I say, there are slight discrepancies but the basic story that he told, I believe is fairly true." (Tr. T. 472 . )5 B. Respondent's Defense That He Did Not Intend To Kill Claude Collie Respondent's principal defense to the malice murder charge was his contention that he never intended to kill Claude Collie. In his opening argument, defense counsel told the jury: "Raymond Franklin expects that the evidence will show that he did not go to Claude Collie's 5 5. At the suppression hearing, Lieutenant Moss testified that after Respondent made his state ment, Moss had told Respondent that Moss would testify "to his truth fulness, which in my opinion the statement depicts. * * (Tr. T. 444 . ) 16 house with the intention of killing anyone." (Tr. T. 273. ) Throughout the State’s case, defense counsel sought to establish by cross-examination (i) that Respondent was extremely shaky and nervous on the day of the escape; (i i) that he was under the influence of drugs that day;6 6. In his January 17, 1979 statement, Respondent informed the police officers that before going to the dentist that day, he had taken at least five drug capsules which had been prescribed and given to him while in jail (Tr. T. 461), and that as a result, he was "very high," not only when he escaped with Carol Heitmuller (Tr. T. 463), but also later, after the shooting (Tr. T. 466). Cobb County Jail physician Dr. William Tryon con firmed that he had prescribed two daily doses of Darvon 65 and Tranx- ene for Respondent in the week pri or to Respondent's escape. (Tr. T. 798-99.) The Chief Medical Exami ner, Dr. Joseph Burton, testified that among the reported patient reactions to Tranxene use are "ner vousness, blurred vision, headache and mental confusion" (Tr. T. 495), and that Darvon can cause "confu sion, anxiety and tremors" when(footnote continued) 16 (iii) that he did not harm anyone else that day who refused to provide him with a car, including Mr. Dempsey and Mrs. Ollie Collie, and (iv) that Claude Collie was killed either when the "light trigger" .357 pistol Respondent was wielding accidentally discharged after Mr. Collie slammed his front door, jarring the weapon, or alternatively, when Respondent nervously pulled the trigger in response to Mr. Collie's sudden action, without any intention of aiming at or of hitting Mr. Collie. At the close of the guilt-determination phase of Respondent's trial, defense counsel (footnote continued from previous page) taken with other drugs (icK). The Medical Examiner also testified that when such drugs are taken together, they can have a "syner gistic effect," (Tr. T. 496), and might therefore affect a user’s judgment and perception and cause hypersensitivity to sound or move ment (Tr. T. 497). 17 argued to the jury that Respondent "did not go to Claude Collie's house to kill him" and that when Mr. Collie slammed the door in Respondent's face, the gun went off accidentally. (Tr. T. 552.) C . The Charge To The Jury The entire charge to the jury lias been reprinted at pages 3a-15a of the Joint Appendix. The charge in cluded the following instructions relating to the crucial question of whether Respondent intended to kill Claude Collie or whether, instead, the killing was an unintended accident: "A crime is a violation of a statute of this State in which there shall be a union of [sic] 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 satisfac torily appears there was no criminal scheme or under taking or intention or criminal negligence. The 18 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 facts, that is, the Jury, may find criminal intention upon a considera tion of the words, conduct, , demeanor, motive and all other circumstances connected with the act for which the accused is prosecuted." (Tr. T. 656; Joint Appendix 8a- 9a. ) * * * * "As to Countil, 1 charge you that the law of Georgia defines murder 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 exter nal circumstances capable of proof. Malice shall be im plied where no considerable provocation appears and where 19 all the circumstances of the killing show an abandoned and malignant heart. "Now, you will see that malice is an essential ingre dient in murder as charged in this indictment in Count II, and it must exist before the alleged homicide can be mur der. Malice in its legal sense is not necessarily ill will or hatred; it is the unlawful, deliberate inten tion to kill a human being without justification or mit igation or excuse, which in tention must exist at the time of the killing." (Tr. T. 657-58; Joint Appendix 10a.) * * * * "Now, as to each count of this indictment, the defendant contends that he is not guilty of the offense charged and further contends that the State has not proved his guilt of the offenses as charged in each count to a reasonable and moral certain ty and beyond a reasonable doubt, and he further con tends as to Count II, the murder, that the homicide was an accident. "I charge you that a person shall not be found guilty of any crime committed by misfortune or accident 20 where it satisfactorily appears there was no criminal scheme or undertaking or in tention of [sic) criminal negligence. An accident, in the eyes of the criminal law, is an event that takes place without one's foresight or expectation; that which takes place or begins to exist without design." (Tr. T. 659; Joint Appendix 11a.) Over an hour after the jury had retired (Tr. T. 661), it returned to the courtroom with the following mes sage: "We need a definition of malice & forethought" (sic). (Tr. T. 662, 821-a.) The jury's foreman also requested "a definition of what they legally term accidental." (Tr. T. 662 Joint Appendix 13a-14a.) The court then repeated its charges on accident and malice. (Tr. T. 662; Joint Appendix 14a.) After ten minutes of additional deliberation, the jury returned with a verdict finding Respon dent guilty. (Tr. T. 663-64.) 21 D. The Eleventh Circuit's Holding The United States Court of Appeals for the Eleventh Circuit agreed with Respondent's contention that there was "a Sandstrom violation in the in tent instruction as a matter of law" and held that the writ of habeas corpus must therefore issue. Accordingly, the Eleventh Circuit found it unnecessary to address Respondent's several other claims. Franklin v. Francis, 720 F.2d 1206, 1208 (11th Cir. 1983), rehearing denied, 723 F.2d 770 ( 11th Cir.) (per cur i am), cert. granted, 104 S. Ct. 2677 ( 19 84 ) . 22 SUMMARY OF ARGUMENT Respondent's principal defense to the charge of malice murder was that he did not intend to kill the victim. The defense, which was supported by numerous facts in the record, was that the decedent died either because Respondent's pistol discharged acciden tally when the decedent unexpectedly slammed his front door or because Respondent nervously pulled the trigger in response to the sudden door-slam- mi ng . In its instructions at the close of the guilt-determination phase, the trial court charged Respondent's jury that a person "is presumed to intend the natural and probable consequences of his acts but the presumption may be rebutted" and that a person's acts "are presumed to be the product of the per 23 son's will, but the presumption may be rebutted." (Tr. T. 656; Joint Appendix 8a-9a.) Since nothing in the charge as a whole indicated the quantum of proof that would be necessary to rebut these presumptions, a reasonable juror could have construed the charge as requiring the Respondent to rebut the presumptions by considerably more than "some evidence." Hence, the jury charge was unconstitutional under Sandstrom v. Montana, 442 U.S. 510 (1979), in that it effectively shifted the burden of persuasion regarding Respondent's intent to kill. Petitioner repeatedly points out that the presumptions here were rebut table, but the Sandstrom holding makes it clear that the rebuttability of a presumption does not make the presump tion constitutional. Petitioner also 24 points to several other portions of the charge. However, none of them pre vented the charge as a whole from being unconstitutional, because none of them indicated what nature of rebuttal was required to defeat the presumptions. Moreover, the charge's thrice-repeated instruction that it must "satisfactori ly" appear that there was no intent in order for the jury to conclude that the killing was an accident (Tr. T. 656, 659, 662; Joint Appendix 8a, 11a, 14a) actually increased the likelihood that a reasonable juror would believe that Respondent had the burden of persuasion regarding his intent to kill. Since the unconstitutional charge here related to the overriding factual issue in the case, which was highly disputed, the error was not harmless under either view of Chapman 25 v. California, 386 U.S. 18, 22 24 (1967), enunciated in Connecticut v. Johnson, 460 U.S. 73 (1983). The Johnson plurality's view that Sandstroin error can only be harmless when intent (i) is not at issue, (ii) has been conceded, or (iii) has no bearing on the offense in question, _id. at 87, is consistent with this Court's past consideration of constitutional errors affecting the very core of the truth finding function. But even if the approach of Johnson's dissent is followed, the error here was clearly not harmless, because the evidence was not "so dispositive of intent that a reviewing court can say beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption." Id., 460 U.S. at 97 n. r> (Powell, J ., dissenting) (citation 26 omitted). The Johnson dissent's test cannot be met because: "[T)he events adduced at trial showed clearly that Franklin fired the shot that went through the door and killed Claude Collie. The evidence also showed that the shot coincided with Collie's slamming the door in Franklin's face. Franklin was said to have been quite nervous. Though he had the opportunity to injure others he did not. The only substantial question put to the jury was Franklin's in tent. The presumptions con tained in the instructions on intent were thus extremely important to the outcome of the trial. * * *" Franklin v. Francis, supra, 723 F.2d at 772. 27 ARGUMENT I . THE JURY CHARGE WAS UNCONSTITUTIONAL BECAUSE A REASONABLE JUROR COULD HAVE INTERPRETED IT AS EFFECTIVELY SHIFTING THE BURDEN OF PERSUASION REGARDING RESPONDENT'S INTENT TO KILL A. It Is Unconstitutional To Shift The Burden Of Persuasion Regarding Any Element Of A Crime Through The Use Of A Rebuttable Presumption________ The Fourteenth Amendment to the United States Constitution requires as a matter of due process that the State prove the existence of every element of a criminal offense beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970). Hence, a jury charge which shifts the burden of persuasion with respect to any element of a criminal offense violates a criminal defendant's Fourteenth Amendment rights. Mullaney v . Wilbur, 421 U.S. 684, 701, 703-04 (1975). As this Court has repeatedly recognized, this constitutional princi- 28 in jury charges: "Mullaney surely held that a State must prove every ingre dient of an offense beyond a reasonable doubt, and that it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other ele ments of the offense." Patterson v. New York, 432 U.S. 197 , 215 ( 1977 ) . Indeed, in Sandstrom v. Montana, 442 U.S. 510, 517, 521 (1979), this Court specifically held that a jury charge which could reasonably have been construed as setting forth a rebuttable presumption that the defendant intended the ordinary consequences of his acts was unconstitutional. This Court held that where a presumption is rebuttable, the constitutional problem arises because: "(T]he jury may have inter preted the instruction as a direction to find intent upon proof of the defendant's vol untary actions (and their pie applies to the use of presumptions 29 '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 bur den of persuasion on the ele ment of intent." ^d. at 517 (emphasis in original).7 B. The Jury Charge In Respondent's Case Set Forth Rebuttable Presumptions With Respect To A Critical Element Of The Crime: Respondent's Intent To Kill________ Respondent was accused of malice murder. Under Georgia law, intent to kill is a necessary element of malice murder. Johnson v. State, 249 Ga. 621, 622 , 292 S . E.2d 696, 698 ( 1982); Lamb v . Jernigan, 683 F.2d 1332, 1336-37 7. The unconstitutional jury charge in Mullaney v. Wilbur, 421 U.S. 684 (1975), also involved a rebuttable presumption. The Mullaney jury was instructed that it had to imply an element of the crime, malice afore thought, unless the defendant re butted that implication by demon strating through a fair preponder ance of the evidence that he had acted in the heat of passion on sudden provocation. Id. at 686. 30 (11th Cir. 1982), cert, denied, 103 S. Ct. 1276 (1983); Mason v. Balkcom , 669 F.2d 222, 224 (5th Cir. Unit B 1982), cert. denied, 460 U.S. 1016 (1983). At Respondent's trial, intent to kill was the principal matter at issue. As set forth in detail above (see pages 4-18, supra), Respondent's attorney elicited substantial evidence and argued vigorously to the jury that Respondent had no intention of killing, or even shooting at, Mr. Collie. However, the jury was charged that: "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 proba ble consequences of his acts but the presumption may be rebutted." (Tr. T. 656; Joint Appendix 8a-9a.) 31 This instruction clearly set forth rebuttable presumptions relating to Respondent's intent to kill, the crucial issue in the case. According ly, as in Sandstrom v. Montana, 442 U.S. 510, 520-21 (1979): "(T)he question before this Court is whether the chal lenged jury instruction had the effect of relieving the State of the burden of proof enunciated in Winsh ip on the critical question of [Respon dent's] state of mind." C. The Charge Here Was Unconstitutional Because A Reasonable Juror Could Have Construed It As Requiring The Respondent To Rebut The Presumptions Through Considerably More Than "Some" Evidence_____ 1. This Court Must Determine How A Reasonable Juror Could Have Interpreted the Instruct ion_______________ Whether or not the challenged jury instruction was unconstitutional "depends upon the way in which a rea 32 sonable juror could have interpreted the instruction." Sandstrom v. Montana, 442 U.S. 510, 514 (1979). If a reasonable juror could have given the presumption a persuasion-shifting effect, such as by requiring the Respondent to prove his lack of intent to kill "by some quantum of proof which may well have been considerably greater than 'some' evidence," ĵ d. at 517, the instruction was unconstitutional. Id. at 524. 2. In Making This Determination, It Is Prudent To Examine First The Challenged Instruction Itself__________ Before finally determining that the challenged instruction could, in deed, have been interpreted as effec tively shifting the burden of persua sion regarding Respondent's intent to kill, the Court must consider that instruction in the context of the 33 charge as a whole. Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). However, it. is obviously prudent to review the challenged instruction itself first, because that review may make it appar ent that there is no possible consti tutional problem. Thus, as in Cupp v. Naughten itself, an initial look at the challenged instruction may obviate an examination of the remainder of the charge. Id. at 148-49. In other cases, such as Sandstrom, the initial review reveals a serious possibility that the challenged instruction may have had an unconstitutional effect. In such cases, it is necessary to con sider the challenged language in the context of the charge as a whole, to determine whether the potential uncon stitutional interpretations of the pre sumption were "removed by the other 34 instructions given at the trial." Sandstrom v. Montana, 442 U.S. 510, 518 n. 7 (1979). The Eleventh Circuit reviewed the challenged instruction here in pre cisely the same manner that this Court reviewed the challenged instructions in Cupp, supra, and Sandstrom, supra. The Eleventh Circuit looked first at the challenged language itself. Finding that the challenged instruction might be construed in an unconstitutional burden-shifting way, Franklin v. Francis, supra, 720 F.2d at 1209-11; 723 F.2d at 770-71, the Eleventh Cir cuit went on to consider in extraordi nary detail all other portions of the charge. The Eleventh Circuit carefully considered whether any other portion(s) of the charge, when read together with the challenged language, eliminated the 35 possibility that a reasonable juror could have interpreted the charge as shifting the burden of persuasion regarding Respondent's intent to kill. Franklin v. Francis, supra, 720 F.2d at 1211-12; 723 F.2d at 771-72. Hence, there is no basis for Petitioner's attack on the Eleventh Circuit's mode of analysis (Pet. Br. 17-20).® 3. Examination Of The Challenged Instruction Here Reveals A Grave Danger That The Charge Was Construed As Shifting The Burden Of Persuasion Regarding Respondent's Intent To Kill Upon first examining the chal lenged instruction and then looking at the charge as a whole to determine whether the jury was ever "enlightened" regarding the nature of the presump tion, the Eleventh Circuit concluded: "The presumption on intent in this case allowed the same result 8. References to "Pet. Br. ____" are to the pages in the Brief For Peti tioner, dated July 30, 1984. 36 as did the presumption in Sandstrom. A reasonable jury could have understood the instruc tion 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 conse quence 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 mal ice murder verdict." Jd., 720 F.2d at 1211. Respondent submits that the Eleventh Circuit's conclusion is mani festly correct. The jury was instruc ted that Respondent's acts "are pre sumed" to be the product of his will and that he "is presumed to intend the natural and probable consequences of his acts," and that both presumptions 37 "may be rebutted." (Tr. T. 656; Joint Appendix 8a-9a.) There were no ifs, ands, buts, or maybes regarding whether these presumptions were to be applied in the absence of sufficient rebuttal. Thus, these presumptions plainly called tor a finding of intent to kill unless they were sufficiently rebutted. Yet, one can look from one end of the charge to the other without finding any instruction regarding how much rebuttal of these presumptions was necessary. Accordingly, the rebuttable in tent presumption here presented the same grave danger that the second pos sible interpretation of the presumption in Sandstrom was held to present: "(Tjhe jury may have inter preted the instruction as a direction to find intent upon proof of the defendant's vol untary actions (and their 'ordinary' consequences), unless the defendant proved the contrary by some quantum of proof which may well have 38 been considerably greater than 'some' evidence -- thus effectively shifting the bur den of persuasion on the ele ment of intent." Sandstrom v. Montana, 442 U.S. 510, 517 (1979) (emphasis in original). This Court specifically held in Sandstrom that under the foregoing pos sible interpretation, in which the in struction was construed as creating a rebuttable presumption, the charge was unconstitutional. 2^* at 521, 524. Hence, Petitioner is flatly incorrect in his repeated attempts to distinguish this case from Sandstrom on the ground that the presumption here was rebuttable (Pet. Br. 10, 13-14, 15, 16, 19, 20). 4. When The Charge As A Whole Is Considered, It Is Apparent That The Danger Of An Unconstitutional Interpretation Was Actually Intensified, Not Eliminated Petitioner has pointed to vari ous other aspects of the charge which 39 he claims eliminated any potential for an unconstitutional interpretation of the charge as a whole. As demonstrated below, those portions of the charge do not eliminate the danger of an uncon stitutional interpretation, and other instructions actually increased the risk that the jury would construe the charge as a whole as effectively shift ing the burden of persuasion regarding Respondent's intent to kill Mr. Collie. a. The Charge That Criminal Intent Would Not Be Presumed Petitioner maintains (Pet. Br. 14, 15, 16, 19) that the challenged rebuttable presumption was not uncon stitutional because the charge immedi ately went on to say that criminal in tent would not be presumed but could be found based on the defendant's overt acts and the surrounding circumstances. (Tr. T. 656; Joint Appendix 9a.) In 40 evaluating Petitioner's contention, it is important to consider wh ich element of the malice murder charge was affect ed by the criminal intent charge. If the jury construed the "crim inal intent" instruction as referring to Respondent's intent to kill Mr. Collie, then, as the Eleventh Circuit held, the criminal intent instruction "at best conflicted with the challenged presumption; it did not explain it." Franklin v, Francis, supra, 720 F.2d at 1212. The jury was first instructed that if the Respondent is of sound mind and discretion, his acts "are pre sumed," rebuttably, to be the product of his will and that he "is presumed [rebuttably) to intend the natural and probable consequences of his acts" -- under circumstances where a natural and probable consequence of Respondent's 41 acts was Mr. Collie's death. (Tr. T. 656; Joint Appendix 8a-9a.) If the immediately following instruction on criminal intent was construed as mean ing that intent to kill "will not be presumed," then there would be a direct conflict within a single paragraph of the charge. The jury, under that con struction, was charged in rapid succes sion both that there _is a presumption of intent and that there will not be a presumption of intent. In the face of that inconsisten cy, there would be no way of knowing "which one they decided to apply, or whether they applied something in be tween," so the charge must be held un constitutional. Franklin v. Francis, supra, 720 F.2d at 1212. Accord, Mills v. United States, 164 U.S. 644, 649 (1897); Bollenbach v. United States, 42 326 U.S. 607, 613-14 (1946); Smith v. Smith, 454 F.2d 572, 578 (5th Cir. 1971), cert. denied, 409 U.S. 885 (1972); Rogers v. Redman, 457 F. Supp. 929, 932-33 (D .Del. 1978). As this Court reiterated in Sandstrom: "'(I]t has long been settled that when a case has been submitted to the jury on al ternative theories the uncon stitutionality of any of the theories requires that the conviction be set aside. See, e .g., Stromberg v. California, 283 U.S. 359 (1931).' Leary v. United States, 395 U.S., at 31-32." Sandstrom v. Montana, 442 U.S. 510, 526 (1979) (cita- t ions omitted). In any event, there is an alter native way of construing the instruc tion on criminal intent such that it "is not rhetorically inconsistent with" the immediately-preceding presumptions. See Sandstrom, supra, 442 U.S. at 518- 19 n. 7. In view of the charge's later instructions that "malice is an essen 43 tial ingredient in murder as charged" and that malice "is the unlawful, de liberate intention to kill a human being without justification or mitiga tion or excuse" (Tr. T. 658, Joint * 9 Appendix 10a) (emphasis supplied), the jury could have concluded, correctly, that under Georgia law intent to kill does not suffice to establish criminal intent. To satisfy the criminal in tent, or malice, element, the jury must also find beyond a reasonable doubt that the killing was unlawful, i.e., without justification, mitigation or excuse.9 Thus, as the Eleventh Circuit held : 9. This potential interpretation by the jury is in full accordance with Georgia law. See Patterson v. State, 239 Ga. 409, 416-17, 238 S.E.2d 2, 8 (1977); Lamb v. Jernigan, 683 F.2d 1332, 1337 (11th Cir. 1982 ), cert, denied, 103 S.Ct. 1276 (1983). 44 "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." Frank 1 in v . Francis, supra, 720 F.2d at 1212. Under this interpretation, the State had the assistance of the unconstitu tional presumption in proving the necessary element of intent to kill although not in also proving that the killing was without mitigation, justification or excuse. Since the criminal intent instruction did not prevent the challenged presumption from being "a means by which proof beyond a reasonable doubt as to intent could be satisfied," the jury charge was uncon stitutional. Sandstrom v. Montana, 442 U.S. 510, 518-19 n. 7 ( 1979) . 45 b. The Instructions On Accident Other instructions in the charge, viz., those concerning acci dent, actually intensified the danger that the jury would construe the chal lenged presumption instruction as hav ing effectively shifted to the Respon dent the burden of persuasion regarding the intent to kill.10 * The jury was charged three times that: "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 in tention or criminal negli gence." (Tr. T. 656, 659, 662; Joint Appendix 8a, 11a, 14a. ) 10. In reinforcing the danger of an unconstitutional interpretation of the challenged instruction, the instructions on accident here were akin to portions of the charges in Phillips v. Rose, 690 F.2d 79, 81 (6th Cir. 1982) and Callahan v. LeFevre, 605 F.2d 70, 74-75 (2d Cir. 1979). 46 This instruction was first given imme diately before the challenged presump tion instruction. (Tr. T. 656; Joint Appendix 8a.) It was repeated near the end of the charge, where it was pre ceded by the statement that the Respon dent "contends as to Count II, the mur der, that the homicide was an acci dent." (Tr. T. 659; Joint Appendix 11a.) And it was given again near the end of the jury's deliberation, when the jury requested "a definition of what they legally term accidental." (Tr. T. 662; Joint Appendix 14a.) A reasonable juror could have construed this thrice-repeated instruc tion as reinforcing the burden-shifting effect of the rebuttable presumption, by requiring the Respondent to satisfy the jury that the killing was not in tentional. The accident instruction 47 was easily susceptible of that inter pretation, since the only party having any interest in persuading the jury that it "satisfactorily appears there was no * * * intention" was the Respon dent. Indeed, the trial court's pre fatory statement that accident was the Respondent's contention (Tr. T. 659? 11. As revealed by the very words of the accident charge, a showing that an accident had occurred would necessarily have negated the existence of intent to kill, an element of the crime. Indeed, the concept that accident negates in tent to kill has been recognized in other states. See, e,g. State v. Poole, 33 Ohio St.2d 18, 20, 294 N.E.2d 888, 890 (1973)? State v. Ferguson, 91 S.C. 235, 244, 74 S.E. 502, 505 (1912). Since the accident charge here was suscep tible of being construed as plac ing on the defendant the burden of persuasion regarding a defense whose existence negatives an essential element of the crime, the charge as a whole was uncon stitutional. See Patterson v. New York, 432 U.S. 197, 206-07 (1977)? Mullaney v. Wilbur, 421 U.S. 684, 706 (1975) (Rehnquist, J., concur ring) . 48 Joint Appendix 11a) served to emphasize the Respondent's motivation in that regard. Accordingly, a reasonable jur or, having repeatedly heard the acci dent charge, may well have been rein forced in the belief that the Respon dent effectively bore the burden of persuasion regarding his intent to kill.12 Cf. Hankerson v. North Carolina, 432 U.S. 233, 238 (1977) (referring to the North Carolina Supreme Court's holding "that a burden 12. While until 1976, Georgia defend ants bore the burden of persuasion regarding the accident defense, Chandle v. State, 230 Ga. 574, 198 S.E. 2d 289 (1973), in 1976 the Georgia Supreme Court barred the Georgia courts from shifting the burden of persuasion with respect to any affirmative defense. State v. Moore, 237 Ga. 269, 270-71, 227 S.E. 2d 241, 242 (1976). Yet, in Respondent's 1979 trial, the judge continued to use the statutory definition of accident. That definition had not been amended since 1976, and thus reflected Georgia's prior burden-shifting policy. 49 to 'satisfy' the jurors of a fact is not 'significantly less' than a burden to persuade them of the fact by a preponderance of the evidence.") Indeed, the likelihood that the accident charge aggravated the burden- shifting effect of the intent presump tions was increased by its repetition. This misleading instruction was repeated for the third time during the jury's deliberation (when the jury specifically asked for a definition of accident), particularly magnifying the possibility of burden-shifting.13 c. Other Aspects Of The Charge As a Whole_________________ The other portions of the charge to which Petitioner refers (Pet. Br. 13 13. See Bollenbach v. United States, 326 U.S. 607, 612-13 (1946) ("When a jury makes explicit its diffi culties a trial judge should clear them away with concrete accura cy."). 50 14-15) do not eliminate the possibility that a reasonable juror could have con strued the charge as a whole as shift ing the burden of persuasion regarding Respondent's intent to kill. Standard charges regarding the burden of proof and the presumption of innocence were also present in Sandstrom. Here, as in Sandstrom, those charges did not remove the potential for unconstitutional interpretation, since the jury could have construed the charge "as indicat ing that the presumption was a means by which proof beyond a reasonable doubt as to intent could be satisfied." Sandstrom v. Montana, 442 U.S. 510, 518-19 n.7 (1979). For the same reason, the introductory instruction that, unlike the State, the defendant had no burden to prove anything (Tr. T. 656; Joint Appendix 8a) did not 51 eliminate the potential for unconstitu tional interpretation. Ijl. ; accord, United States v. Booz, 451 F.2d 719, 723-24 (3d Cir. 1971), cert, denied, 414 U.S. 820 (1973) (potential for con fusion regarding the burden of per suasion, arising from inadequate charge regarding alibi defense, was not eliminated by general charge that the burden of proof never shifts from the government). In defining a crime as requiring both an act "and intention or criminal negligence" (Tr. T. 656; Joint Appendix 8a), the charge not only did not remove the potential for an unconstitutional interpretation, Sandstrom, supra, 442 U.S. at 518-19 n.7; it increased the likelihood of an unconstitutional interpretation, by suggesting (as did the accident charge) that either intent 52 to kill or criminal negligence was an element of malice murder.H Finally, the instruction that the accused need not "produce evidence of mitigation, justification or excuse" (Tr. T. 658; Joint Appendix 10a) also failed to eliminate the potential for an uncon stitutional interpretation. As the Eleventh Circuit held, that instruc tion : "referred to the malice part of the charge. Franklin ar gued that he did not intend to kill Claude Collie. The dam aging presumption, that a per son is presumed to intend the natural and probable conse quences of his acts, was not mitigated by the correct mal ice charge." Franklin v. Francis, supra, 723 F.2d at 772 (emphasis supplied). While Petitioner, without any discussion, asserts that three other 14 14. As discussed at pages 30-31, supra, intent to kill is an essen- tia1 element of malice murder under Georgia law. 53 Eleventh Circuit decisions demonstrate that the Eleventh Circuit did not prop erly evaluate the charge as a whole here (Pet. Br. 18-19), even a cursory review of those cases reveals that their differing outcomes were due to the different natures of the various charges. Thus, in Corn v. Zant, 708 p.2d 549 (11th Cir. 1983), cert. denied, 104 S. Ct. 2670 (1984), the charge specifically indicated that the defendant was not required to show cir cumstances negating either intent or malice and that the malice presumption did not arise until intent was proven beyond a reasonable doubt. Franklin v. Francis, supra, 723 F.2d at 771-72 (per curiam decision joined in by Judge Hill, who had previously joined in the Corn decision). In Hance v. Zant, 696 F. 2d 940, 953 (11th Cir.), cert. 54 denied, 103 S. Ct. 3544 (1983), and in Lamb v. Jernigan, 683 F.2d 1332, 1339- 40 (11th Cir. 1982), cert, denied, 103 S. Ct. 1276 (1983), the charges that intent "may be inferred" or "may be presumed" were patently permissive.15 Franklin v. Francis, supra, 723 F.2d at 770-71. Accordingly, insofar as the consistency of the Eleventh Circuit's other decisions could possibly be relevant to this Court's determination, this Court should have renewed confidence in the Eleventh Circuit's ability to distinguish the charge as a whole in this case from the charges as a whole in other cases.16 15. Elsewhere in Lamb, a true rebut table presumption was held to be unconstitutional. I_d. at 1341. 16. The Petitioner also cites the Georgia Supreme Court's decisions in this case and in Skrine v. State, 244 Ga. 520, 260 S.E.2d 900 (1979). In both cases, the (footnote continued) 55 Petitioner also relies upon (Pet. Br. 21-22) the dissenting opinion of a visiting senior judge in Patterson v. Austin, 728 F.2d 1389, 1396-98 (11th Cir. 1984) (Gibson, J., dissenting). Judge Gibson was unwilling to hold a charge unconstitutional because he doubted that a reasonable juror could distinguish between a mandatory presumption and a permissive inference. Id. at 1397. But that view merely reveals Judge Gibson’s apparent disa greement with Sandstrom itself. The Sandstrom holding was premised on the (footnote continued from previous page) Georgia Supreme Court relied heavily on the rebuttabi1ity of the presumptions — a factor which, as discussed at pages 29- 30, 38-39, supra, does not make a charge constitutional. As this Court recognized in Sandstrom, supra, a state supreme court "is not the final authority on the interpretation which a jury could have given the instruction." 442 U.S. at 516-17. 56 danger that the jury might construe an ambiguous charge unconstitutionally, even though a constitutional • interpre tation was also possible. This Court held: "We do not reject the possi bility that some jurors may have interpreted the chal lenged instruction as permis sive, or, if mandatory, as requiring only that the defendant come forward with 'some' evidence in rebuttal. However, the fact that a reasonable juror could have given the presumption conclu sive or persuasion-shifting effect means that we cannot discount the possibility that Sandstrom's jurors actually did proceed upon one or the other of these latter inter pretations. And that means that unless these kinds of presumptions are constitution al, the instruction cannot be adjudged valid." Sandstrom v. Montana, 442 U.S. 510, 519 57 (1979) (citations and footnote omitted) . ^ 17. Moreover, Judge Gibson would disagree with the Eleventh Cir cuit's decisions in this case only to the extent that they could be construed as viewing the rebutta- bility of the presumptions and the criminal intent instruction as "wholly irrelevant" in a consider ation of the charge as a whole. 728 F.2d at 1397. The Eleventh Circuit's decisions in Franklin hardly deemed those aspects of the charge irrelevant. The Eleventh Circuit considered those portions of the charge in depth. Indeed, it particularly stressed the fact that in the present case (unlike Patterson), the crucial disputed issue was intent to kill, not malice. Franklin v. Francis, supra, 720 F.2d at 1212; 723 F.2d at 772. In any event, Judge Gibson's ultimate view of the holding in the instant case is far from clear. His dissent states that the Patterson charge as a whole was more akin to the charges found constitutional in Corn, supra, and Lamb, supra, than to the Franklin charge. 728 F.2d at 1397. Judge Gibson also refers to other instructions in Patterson's charge which were not present in the Franklin charge, viz., that intent "may be inferred" or "may be pre sumed." I d . And he stresses that the correct criminal intent(footnote continued) 58 1 1 . THE UNCONSTITUTIONALITY OF THE JURY CHARGE CANNOT PROPERLY BE DEEMED HARMLESS ERROR BEYOND A REASONABLE DOUBT, BECAUSE IT MAY HAVE DISTORTED THE JURY'S CONSIDERATION OF THE CRUCIAL, HIGHLY-DISPUTED ISSUE IN THE CASE As demonstrated above, the charge in this case was unconstitu tional, because a reasonable juror could have construed it as shifting the burden of persuasion regarding Respon dent's intent to kill, which is an essential element of malice murder. The remaining issue is whether this (footnote continued from previous page) instruction in Patterson related to the defendant's primary defense -- his lack of malice -- and was repeated at the end of the instruction. _Id. Here, in con trast: (i) Respondent's primary defense was his lack of intent to kill and (ii) the charge which was repeated at crucial moments was the misleading charge on accident, which increased the likelihood of an unconstitutional shift of the burden of persuasion regarding the crucial intent-to-kill issue. 59 constitutional error was harmless beyond a reasonable doubt, under the standard set forth in Chapman v. California, 386 U.S. 18, 22-24 (1967). Respondent submits that a Sandstrom error can never be harmless when intent to kill is a disputed element of the alleged crime. But even if that view is not accepted and the Court applies instead the test enunciated by the dissent in Connecticut v. Johnson, 460 U.S. 73, 97-99 (1983) (Powell, J., dis senting), the Sandstrom error here can not properly be deemed harmless beyond a reasonable doubt, because the error may have distorted the jury's consider ation of the most crucial, highly-dis puted issue in this case. 60 A. Sandstrom Error Can Never Be Harmless Where Intent To Kill Is A Disputed Element Of The Alleged Crime________________ In Chapman v. California, 386 U.S. 18 (1967), this Court recognized that the violation of constitutional rights which are "basic to a fair tri al" can "never be treated as harmless error," id. at 23 (footnote omitted), but that harmless error analysis may be used with respect to "unimportant and insignificant" constitutional viola tions, jld. at 22. Where the constitu tional error directly relates to the truth-finding function of a trial, the very core of a fair trial has been affected. Thus, under the Chapman standard, such an error can never be harmless. When the constitutional error shifts the burden of persuasion on an essential element of the alleged 61 offense, and when the facts regarding that element are in controversy, the centerpiece of the truth-finding function — the jury — is prevented from functioning properly. In that situation, the unconstitutional charge prevents the jury from deciding the case in a proper manner, thereby sabotaging the trial's truth-finding function. Hence, an unconstitutional burden-shifting instruction relating to a contested element of the alleged crime can never be a harmless error. The foregoing conclusion is con sistent with this Court's decisions in cases in which the factfinder has applied an unconstitutional legal stan dard. This Court has consistently rec ognized that such unconstitutionality severely distorts the truth-finding function. Thus, in Ivan V. v. City of 62 New York, 407 U.S. 203, 205 (1972) (per curiam), in which the finder of fact used an unconstitutional preponder- ance-of-the-evidence standard, this Court recognized that: "(T)he major purpose of the constitutional standard of proof beyond a reasonable doubt announced in Winship was to overcome an aspect of a criminal trial that substan tially impairs the truth-find ing function * * In Hankerson v. North Carolina, 432 U.S. 233, 242 (1977), where (as here) the jury was instructed to apply an unconstitutional burden-shifting pre sumption, this Court emphasized that: "In Mullaney v. Wilbur, as in In re Winship, the Court held that due process requires the States in some circumstances to apply the reasonable-doubt standard of proof rather than some lesser standard under which an accused would more easily lose his liberty. In Mullaney, as in Winship, the rule was designed to diminish the probability that an inno cent person would be convicted and thus to overcome an aspect 63 oE a criminal trial that 'sub stantially impairs the truth finding function."' Where the truth-finding function has been substantially impaired, such as through the use of a burden-shifting presumption bearing on a controverted fact issue, the constitutional error may well have caused the jury to engage in a different kind of review of the facts and therefore to have reached a different conclusion than if it had been charged properly. In view of that possibility, a harmless error holding would be inconsistent with "the place of importance that trial by jury has in our Bill of Rights," because such a holding could only be based on a sub stitution of: "the belief of appellate judges in the guilt of an accused, however justifiably engendered by the dead record, for ascertainment of guilt by a jury under appropriate judi cial guidance, however cumber- 64 some that process may be." Bollenbach v. United States, 326 U.S. 607 , 615 ( 1946 ) . Indeed, "(n)o matter how strong the evidence may be" with respect to the controverted issue: "There is no way of knowing here whether the jury's ver dict was based on facts within the condemned instructions * * *. A failure to charge correctly is not harmless, since the verdict might have resulted from the incorrect instruction." United Brother hood of Carpenters and Joiners of America v. United States, 330 U.S. 395, 408-09 (1947).18 Hence, there is strong justifi cation for the view of the plurality in Connecticut v. Johnson, 460 U.S. 73, 87 (1983), that a Sandstrom error can never properly be deemed to have been harmless where intent (i) was at issue, 18. As the quotation from Sandstrom on pages 57-58, supra, indicates, there is no way to know whether a Sandstrom error affected the jury's deliberations. 442 U.S. at 519. 65 (ii) was not admitted and (iii) had a bearing on the offense for which the defendant was convicted. Accord, In re Hamilton, 721 F.2d 1189, 1191 (9th Cir. 1983 ) . I9 In Respondent's case, the con stitutional error was not harmless under the Johnson plurality's view, because intent to kill certainly was at issue, was not admitted, and had a 19 19. It is also more efficient to apply an automatic rule that comes into play whenever the facts regarding the particular element of the crime were at all at issue than to have this and other courts engage in their own reviews of the strengths and weaknesses of the evidence as a whole. In Connecticut v. Johnson, the dissenting justices were concerned that there might "be facts and circumstances not apparent from the record before us," and hence would have remanded the case to the Connecticut Supreme Court. 460 U.S. at 102 (Powell, J., dissenting). Yet, that would inefficiently have added still another layer of judicial review of the evidence. 66 bearing on malice murder, the offense for which Respondent was convicted. As discussed at pages 15-18, supra, Respondent's intent to kill was the principal matter at issue. B. Even If A Sandstrom Error Can Sometimes Be Harmless When Intent To Kill Is Disputed, It Was Not Harmless Error Here, Where Intent to Kill Was the Most Critical Issue In the Case________________ Respondent submits that even under the standard articulated by the dissent in Connecticut v. Johnson, supra, the Sandstrom error here was not harmless beyond a reasonable doubt. The evidence here simply was not: "so dispositive of intent that a reviewing court can say beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption." Ld., 460 U.S. at 97 n.5 (Powell, J., dis senting) (citation omitted). The Johnson dissent's standard cannot be met where, as here: 67 "The presumptions contained in the instructions on intent were * * * extremely important to the outcome of the trial." Franklin v. Francis, supra, 723 F.2d at 772. Accord, Dietz v. Solem, 640 F.2d 126, 131 (8th Cir. 1981). The Eleventh Circuit's conclu sion that the error here was not harm less is obviously correct, in view of the numerous facts, summarized at pages 2-18, supra, on the basis of which properly-charged jurors could have had a reasonable doubt regarding Respondent's intent to kill.20 Among these facts are the following: 20. Petitioner's brief asserts that the defense case was "patently frivolous" (Pet. Br. 27). But Petitioner cannot explain why, if that was so, the jury found it necessary to interrupt its delib erations in order to hear instruc tions on malice aforethought and accident. (Tr. T. 662; Joint Appendix 13a-14a.) 68 Respondent, although armed, never struck anyone during his escape (Tr. T. 290-91, 304, 324), never ver bally threatened anyone as he made his escape from the dentist's office (Tr. T. 290, 304, 324, 351), told Ms. Heitmuller (the dental assistant) that he was not going to hurt her (Tr. T. 352), and went on without stopping when one resident said he did not have a car (Tr. T. 356) — all just before Respon dent went to the Collie home. When Mr. Collie suddenly slammed the inner front door, the pistol -- which had been held against the front screen door -- dis charged once, hitting the wooden door, tumbling, and then fatally striking Mr. Collie. When it discharged again a moment later, both Respondent and Ms. Heitmuller believed that that shot came from inside the house. (Tr. T. 354, 69 465.) That shot travelled at a differ ent angle and lodged in the ceiling. (Tr. T. 341, 429, 449, 453, 488, 490, 518-20.) Then, after Mrs. Collie re fused his demand for car keys, Respon dent did not restrain her from fleeing the house out the front door. (Tr. T. 375-76.) Immediately thereafter, Respondent, who had been extremely ner vous and shaky that morning (Tr. T. 288, 303, 322-23, 332, 350), "looked like he was in shock, like he didn't know what had happened" (Tr. T. 390). Respondent repeatedly stated to the police that he did not intentionally shoot Mr. Collie (Tr. T. 405, 464, 470), and Lieutenant Moss, the princi pal investigating police officer, tes tified that he believed Respondent's account to be truthful except for some minor discrepancies (Tr. T. 472). 70 Any fairminded observer would have to recognize that the evidence of intent to kill here was tremendously weaker than in the situations described by the dissenters in Connecticut v. Johnson, 460 U.S. 73 , 98-99 s, n. 7 (1983) (Powell, J., dissenting) (Harm less error in the following situations: an execution-style slaying; repeated stabbings by a gang which also slit the victim's throat; shots in the head, preceded by beating the victim, wrap ping a wire around the victim's neck and stuffing a towel in his mouth; and strangling the victim until informed that her pulse had ceased). Hence, even if there are cases in which "no rational person could doubt intent to murder," jtI. n. 7, Respondent's case is surely not one of them. 71 Conclusion For all the reasons set forth above, Respondent respectfully requests that this Court affirm the judgment of the Eleventh Circuit. Dated: August 30, 1984 Respectfully submitted, RONALD J. TABAK HUGHES HUBBARD & REED One Wall Street New York, New York 10005 (212) 709-7735 JOHN CHARLES BOGER 99 Hudson Street New York, New York 10013 (212) 219-1900 Counsel for Respondent AFFIDAVIT OF MAILING I, RONALD J. TABAK, counsel of record for Raymond Lee Franklin, Respondent herein, and a member of the Bar of the Supreme Court of the United States, hereby certify that on the 30th day of August, 1984, within the time permitted for filing, I caused to be deposited in the United States mail, with first-class postage prepaid, forty copies of the foregoing Brief Of Respondent, properly addressed to the Clerk of the Supreme Court of the United States. Ronald J. Tabak Subscribed and sworn to before me this 30th day of August, 1984, at New York, New York. / Notary Public J *M £ S H. OLUCK tfutary P j l Iic , State ol New York No. 24-4736W2 0,3llfied in Kings County Ccffl’lcate filed in New York County Owntni^Mon Expires March 30. CERTIFICATE OF SERVICE I, RONALD J. TABAK, counsel of record for Raymond Lee Franklin, Respondent herein, and a member of the Bar of the Supreme Court of the United States, hereby certify that on the 30th day of August, 1984, in accordance with the rules of the Supreme Court of the United States, I served upon the Petitioner the foregoing Brief Of Respondent, by causing three copies of the same to be deposited in the United States mail with proper address and with adequate postage prepaid to: Susan V. Boleyn, Esq., Assistant Attorney General, 132 State Judicial Building, 40 Capitol Square, S.W., Atlanta, Georgia 30334. -&.M l Ronald J. Tabak Hughes Hubbard & Reed One Wall Street New York, New York 10005 (212) 709-7735