Charles Edward OWENS, Petitioner-Appellant, v. Gregory MCLAUGHLIN, Respondent-Appellee.
No. 12-12590.
United States Court of Appeals, Eleventh Circuit.
Oct. 24, 2013.
320
Before WILSON and MARTIN, Circuit Judges, and HUCK,* District Judge.
WILSON, Circuit Judge:
Charles Edward Owens, a Georgia state prisoner sentenced to life in prison for malice murder, appeals the district court‘s denial of his
I. FACTUAL BACKGROUND
On August 31, 1981, at approximately 11:00 a.m., Rebecca Heath was found shot dead in the back seat of her green Oldsmobile on Smokey Road in Troup County, Georgia. At the time of her death, Ms. Heath was nine months pregnant with a baby boy. She lived with her husband Larry Heath in Phenix City, Alabama.1 Phenix City sits on the banks of the Chattahoochee River. The Alabama-Georgia line runs right through the river. Troup County, Georgia is roughly 47 miles from the Heaths’ home.
In Georgia, venue is an essential element of the offense, so at Owens‘s trial, the state was required to prove beyond a reasonable doubt that Ms. Heath was killed in a Georgia county. Although Ms. Heath‘s body was found in Troup County, Georgia, Owens argued that there was some evidence to support a determination that the death may have previously occurred in Alabama. Therefore, venue became a hotly contested issue at trial, especially with regard to the instructions on venue given to the jury.
It was the state‘s theory that venue was proper in Georgia because that is, the state argued, where Ms. Heath was killed. At trial, the evidence demonstrated that Larry Heath hired Owens and Gregory Lumpkin to kill Ms. Heath.2 A witness testified that on August 24, 1981, he observed Heath transact some type of business with three men who showed up at Heath‘s work. The men were driving a white Mustang. The witness later identified two of the men as Owens and Lumpkin.
Also at trial, a neighbor of the Heaths testified that on August 31, 1981, he observed a truck and the Heaths’ green Oldsmobile parked on a road near the Heath home in Alabama. The two vehicles were side by side and the occupants appeared to be having a conversation. The time was approximately 7:15 a.m.
At 11:00 a.m. another motorist driving down Smokey Road noticed the green Oldsmobile off to the side of the road. He approached the car to help, observed that the person inside—later identified as Ms. Heath—was not moving, and called the Sheriff‘s Department. The motorist saw two sets of tire tracks. One clearly belonged to the Oldsmobile. The other set of tire tracks showed that a second car had been parked in front of the Oldsmobile. The Sheriff‘s Department responded almost immediately. The responding officer noted that the body was still warm, and based on his experience in the Sheriff‘s Department, determined that Ms. Heath had been dead for no more than two to three hours.
In April 1984, Owens was convicted in Georgia of malice murder and sentenced to life in prison. The next month, Owens moved for a new trial, arguing that the verdict was contrary to the law and strongly against the weight of the evidence. For reasons unknown, this motion was never ruled upon. In February 1985, the state trial court issued an order directing that certain evidence be transferred to Alabama, where Owens had been indicted for the capital murder of Ms. Heath. The Alabama indictment alleged that Ms. Heath was murdered during a kidnapping in the first degree, in violation of
Back to Georgia—Owens filed an amended motion for a new trial in February 2009. It was denied the following June, and on direct appeal, Owens contended that the jury instructions improperly shifted to him the burden of proving venue. Venue was a highly contested issue at his trial, as the parties presented conflicting evidence as to whether Ms. Heath was killed in Georgia or in her home in Alabama. Additionally, Owens claimed that the 25-year delay between 1984 and February 2009 in resolving his motion for a new trial violated his due process rights. Following oral argument, the Georgia Supreme Court affirmed Owens‘s conviction and sentence. Despite noting the problematic phrasing of the jury instruction at issue, the court found that the “charge taken as a whole plainly informs the jury that venue is a material allegation as to each crime charged and that, as such, the [s]tate bears the burden to prove venue as to each crime beyond a reasonable doubt.” Owens v. State, 286 Ga. 821, 693 S.E.2d 490, 495 (2010). As to the motion for a new trial, the court concluded that the 25-year delay did not violate Owens‘s due process rights. Id. at 494.
Owens then filed the instant
The district court‘s denial or grant of a
Owens‘s
[I]dentifies the correct governing legal principle as articulated by the United States Supreme Court, but unreasonably applies that principle to the facts of the petitioner‘s case, unreasonably extends the principle to a new context where it should not apply, or unreasonably refuses to extend it to a new context where it should apply.
Kimbrough v. Sec‘y, DOC, 565 F.3d 796, 799 (11th Cir.2009) (per curiam) (alterations and internal quotation marks omitted).
III. DISCUSSION
Owens raises two arguments on appeal. We address each in turn.
A. Sandstrom Error
We first decide whether the state trial court‘s instructions to the jury improperly shifted the burden of proof to Owens on venue, in violation of the Due Process Clause of the
In Sandstrom, 442 U.S. at 512, 99 S.Ct. at 2453, the trial court instructed the jury that “the law presumes that a person intends the ordinary consequences of his voluntary acts.” At his trial, David Sandstrom admitted that he killed the victim, but argued that he did not do so “purposely or knowingly.” Id. (internal quotation marks omitted). Consequently, he was not guilty of deliberate homicide but of a lesser offense. Id. The jury disagreed and Sandstrom was convicted of deliberate homicide and sentenced to 100 years in prison. Id. at 513, 99 S.Ct. at 2453.
Sandstrom appealed, arguing that the instruction shifted onto him the burden of disproving intent, an element of the crime charged, in violation of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). Sandstrom, 442 U.S. at 513, 99 S.Ct. at 2454. In Sandstrom, the Montana Supreme Court agreed “that these cases did prohibit shifting the burden of proof to the defendant by means of a presumption,” but nonetheless “held that the cases do not prohibit allocation of some burden of proof to a defendant under certain circumstances.” Id. (emphasis in original) (internal quotation marks omitted).
Owens argues that the jury instruction on venue at his trial violated this principle enumerated by Sandstrom. The trial judge, reading verbatim the Georgia statutory provision regarding venue, instructed the jury as follows:
Criminal homicide shall be considered as having been committed in the county in which the cause of death was inflicted. If it cannot be determined in which county the cause of death was inflicted, it shall be considered that it was inflicted in the county in which the death occurred. If a dead body is discovered in this state and it cannot be readily determined in what county the cause of death was inflicted, it shall be considered that the cause of death was inflicted in the county in which the dead body was discovered.
[W]e must consider first, whether the instructions concerned an essential element of the offense with which the petitioner was charged; second, whether the instructions operated to shift the burden of proof; and third, whether any error which might have arisen from the shifting of the burden was harmless in the context of this case.
Davis v. Kemp, 752 F.2d 1515, 1517 (11th Cir.1985) (en banc) (per curiam).
The first question is easily answered: in the state of Georgia, venue is an essential element of the offense. “Venue is a jurisdictional fact, and is an essential element in proving that one is guilty of the crime charged.” Jones v. State, 272 Ga. 900, 537 S.E.2d 80, 83 (2000); see
The state disputes that venue is an essential element as defined in Sandstrom. It acknowledges its burden to prove venue beyond a reasonable doubt and that it is a mandatory part of its case; however, because venue is not a traditional element of guilt, the state says, the jury instruction at issue here cannot amount to a Sandstrom error. See
Having determined that venue is an essential element of the offense, we next determine whether the instruction impermissibly shifted onto Owens the burden of proving it. See Francis v. Franklin, 471 U.S. 307, 315, 105 S.Ct. 1965, 1971, 85 L.Ed.2d 344 (1985). The Georgia Supreme Court has repeatedly held that the instruction given here does not impermissibly shift the burden of proof. See, e.g., Edmond v. State, 283 Ga. 507, 661 S.E.2d 520, 523 (2008) (considering jury instructions as a whole, “it shall be considered” did not impermissibly shift the burden); Napier v. State, 276 Ga. 769, 583 S.E.2d 825, 829 (2003) (holding that Georgia Code section 17-2-2 does not impermissibly shift the burden of proof to the defendant, in part because it instructs “juries to ‘consider‘—rather than ‘presume‘—whether ... venue has been properly laid. In normal usage, ‘consider’ means to contemplate, think about, or reflect upon ...“). Owens‘s Georgia Supreme Court case was no different. See Owens, 693 S.E.2d at 495 (finding no error “where the charge taken as a whole plainly informs the jury that venue is a material allegation as to each crime charged and that, as such, the [s]tate bears the burden to prove venue as to each crime beyond a reasonable doubt“).
It is important to note that while AEDPA does require us to defer to the Georgia Supreme Court‘s interpretation of federal law, see
We have held proper a jury instruction that uses permissive language such as “may infer” and “may consider.” See, e.g., United States v. Cotton, 770 F.2d 940, 946 (11th Cir.1985) (finding no Sandstrom error in instruction that jurors “may infer the defendant‘s intent from the surrounding circumstances” and “may consider it reasonable to draw the inference and find that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted“). But that is not the language we have here. The problem lies with the word “shall.” “Shall” is a word of command; it means “ha[ving] a duty to; more broadly, is required to.”
There is additional support for this determination in the Georgia Supreme Court‘s numerous attempts to cure the defective language. For example, in Napier, the court advised future trial courts to refrain from quoting the instructions on venue—Georgia Code section 17-2-2(c)—verbatim. 583 S.E.2d at 829. The court suggested that to avoid confusion, courts should use “may consider” rather than the statutory language “shall consider.” Id. at 829-30. Likewise in Edmond, the Georgia Supreme Court once again noted the problem with the language in Georgia Code section 17-2-2(c) and reiterated the fact that it had “previously set forth the better practice of charging the jury that it ‘may consider’ whether the crime was committed in any county in which the evidence shows beyond a reasonable doubt that it might have been committed.” 661 S.E.2d at 523. Even in Owens‘s Georgia Supreme Court case, the same was true. Citing to Napier, the court stated that “[s]ubsequent to [Owens‘s] trial, we instructed trial courts to refrain from quoting this statutory language verbatim to avoid the potential for juries to construe the charge as shifting the burden of persuasion to the defendant on the issue of venue.” Owens, 693 S.E.2d at 495. The fact that the Georgia Supreme Court recognized that the instruction at issue had the “potential” to confuse juries on who had the burden of proof as to venue is problematic. See Sandstrom, 442 U.S. at 519, 99 S.Ct. at 2456-57 (holding unconstitutional jury instructions that might reasonably have been understood as creating a conclusive presumption).
The state‘s contention that the jury instructions as a whole cured the Sandstrom error is not persuasive either. The state claims that instructions to the jury about the presumption of innocence and that the state was required to prove every element of the offense—venue included—beyond a reasonable doubt amounts to sufficient clarification for the jury.3 But instructions like these are exactly the type of general instructions Francis found inadequate: “Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity.” 471 U.S. at 322, 105 S.Ct. at 1975. A reasonable juror could have incorrectly thought that although the state had the burden of proving venue beyond a reasonable doubt, the fact that the body was found in Troup County was enough to meet that burden. See id.; Sandstrom, 442 U.S. at 518 n. 7, 99 S.Ct. at 2456 n. 7.
But that is not the case here, for we do not have a record that is so “evenly balanced.” O‘Neal, 513 U.S. at 437, 115 S.Ct. at 995. At trial, the prosecution presented substantial evidence to support its theory that Ms. Heath was killed in Troup County, Georgia. The evidence showed that on the morning of August 31, 1981, Owens and Lumpkin drove to the Heaths’ Alabama home, forced Ms. Heath into her green Oldsmobile at gunpoint, drove her to Smokey Road in Troup County, Georgia, where they fatally shot her sometime around 9:00 a.m., and then fled the scene in a Mustang. There were no signs of a struggle, drag marks, or suspicious bloodstains at the Heaths’ home in Alabama. There was also no evidence to suggest that Ms. Heath struggled or that she had been dragged from one location to another. Instead, the evidence overwhelmingly demonstrated that Ms. Heath was killed in the car which was found in Georgia: the police found blood splattered inside the green Oldsmobile, including small amounts of blood on the victim‘s hands, arms, and face, on the front passenger seat, rear seat, and rear floor board, and all over her purse. Blood was also found splattered on the front radio.
Because the record is not “so evenly balanced” as to leave us “in grave doubt as to the harmlessness” of the Sandstrom error, we affirm the denial of relief on this claim. See id.
Owens‘s second argument—that his due process rights were violated because the state court waited 25 years before ruling on his motion for a new trial—also fails. The Supreme Court has never held that there is a constitutional right to a speedy direct appeal in a state criminal case. Nor are we able to find any precedent suggesting that a constitutional violation arises from an untimely ruling on a motion for a new trial. Consequently, we must afford deference to the Georgia Supreme Court‘s determination because it cannot be said that its decision denying Owens‘s motion for a new trial was contrary to, or an unreasonable application of, clearly established federal law. Washington v. Crosby, 324 F.3d 1263, 1265 (11th Cir.2003).
IV. Conclusion
Because we find that any Sandstrom error was harmless, the Georgia Supreme Court‘s decision cannot be said to have “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law.” See
AFFIRMED.
In re Lutz BIEDERMANN and Jurgen Harms.
No. 2013-1080.
United States Court of Appeals, Federal Circuit.
Oct. 18, 2013.