Warden v. Franklin Brief for Respondent

    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