Gary TYLER, Petitioner-Appellant, v. C. Paul PHELPS, Director, Department of Corrections and Attorney General of the State of Louisiana, William Guste, Jr., Respondents-Appellees.
No. 79-3093.
United States Court of Appeals, Fifth Circuit.
April 27, 1981.
Sufficiency of Evidence
Consolidated moved for a directed verdict at the close of plaintiffs’ presentation of its case-in-chief and at the conclusion of its defense. It now argues that these motions should have been granted because the evidence was insufficient to support the jury findings in favor of plaintiffs. It is, however, settled that in the absence of a motion for judgment notwithstanding the verdict made at trial this Court cannot examine the evidence for sufficiency....” Delchamps, Inc. v. Borkin, 429 F.2d 417, 418 (5th Cir. 1970). Since Consolidated failed to move for a judgment n. o. v. following the jury‘s verdict, we are without power to consider the merits of its contention. But even if we did have the power to review the sufficiency of the evidence, Consolidated would fare no better. The standard for determining evidentiary sufficiency was articulated by this circuit in Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en banc) (footnote omitted):
On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence-not just that evidence which supports the non-mover‘s case-but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. The motions for directed verdict and judgment n. o. v. should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.
After careful review of the record, we have determined that the jury‘s verdict must be upheld under this standard. Therefore, the judgment of the district court is AFFIRMED.
Abbott J. Reeves, Asst. Dist. Atty., Research & Appeals, Gretna, La., for respondents-appellees.
ON PETITION FOR REHEARING
Before COLEMAN, PECK * and KRAVITCH, Circuit Judges.
* Circuit Judge of the Sixth Circuit, sitting by designation.
KRAVITCH, Circuit Judge.
Appellees’ motion for rehearing is granted. The panel opinion, 622 F.2d 172 (5th Cir. 1980), is vacated in its entirety and the following issued as the opinion of this court.
Gary Tyler, appellant, was convicted of first degree murder in Louisiana state court and sentenced to die. On appeal, the death penalty1 was vacated but the conviction was affirmed, State v. Tyler, 342 So.2d 574 (La.), cert. denied, 431 U.S. 917, 97 S.Ct. 2180, 53 L.Ed.2d 227 (1977). After unsuccessfully pursuing state habeas corpus, Tyler v. Phelps, 353 So.2d 1050 (La.1978), this
At the time of the offense, Gary Tyler was a 16-year-old student at Destrehan High School. The morning of the murder had been marked by general turmoil and racial tensions, and Tyler had been suspended from school. Later in the day he was picked up and taken back to school by a deputy sheriff who suspected he was truant. By the time Tyler and the deputy arrived at the school, the school officials had decided to close the school and send all students home. After being told to go home immediately, Tyler boarded a bus loaded with other students.
Upon leaving the school grounds, the bus was meet with jeering and rock-throwing by the assembled crowd. As the bus proceeded, someone on the bus shot a .45 caliber automatic revolver into the crowd. The bullet struck and killed one boy and grazed another. It was alleged that Tyler shot the pistol and the jury so found in convicting him.
In his appeal to this court, Tyler raises two issues, both of which were raised on direct appeal and in his petition for state habeas:
This case, like Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), involves the constitutionality of a state charge on presumptions. Unlike Sandstrom, however, this case also involves the question of whether habeas corpus relief is available to a defendant who did not object to the charge at trial. Accordingly, this court must determine first whether the charge as given was unconstitutional, and second whether any unconstitutionality must go unredressed because of the rule articulated in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).
Did the Charge on Presumptions Unconstitutionally Shift the Burden of Proof to the Defendant?
In Sandstrom v. Montana, the defendant was charged with deliberate homicide,
At trial, the primary issue was Sandstrom‘s mental state at the time of the homicide. He presented psychiatric testimony from which his counsel argued he had not acted with the requisite mens rea. Pursuant to the state‘s request, the trial court charged the jury that the law presumes that a person intends the ordinary consequences of his voluntary acts. The defendant‘s timely objection was overruled; his conviction was affirmed on appeal to the Montana Supreme Court, but was reversed by the United States Supreme Court.
The Court noted that the charge at issue in Sandstrom is ambiguous; it is unclear whether it is a conclusive (i. e., if you find Sandstrom caused the death of the victim you must find he did so intentionally) or nonconclusive (i. e., if you find Sandstrom caused the death of the victim and if he presents no evidence to the contrary, you must find he did so intentionally) presumption. Accordingly, the Court considered the due process ramifications of both types of presumptions.
Presumptions which act to preclude consideration of an element of the crime conflict with the presumption of innocence and invade the factfinding function of the jury. United States v. United States Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978); Morisette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). The effect of such conclusive presumptions is to relieve the State of its burden of proving beyond a reasonable doubt every element of the crime charged, an unconstitutional result under In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
Nonconclusive presumptions, which shift only the burden of persuasion to the defendant, are also unconstitutional. Such a presumption was at issue in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), where the jury had been charged that malice aforethought is an essential and indispensable element of murder, but that if the State proved the homicide was both intentional and unlawful, malice aforethought was to be implied unless the defendant proved by a preponderance of the evidence that he acted in the heat of passion. 421 U.S. at 686, 95 S.Ct. at 1883. The Court in Sandstrom reiterated its Mullaney holding that such nonconclusive, burden-shifting charges are unconstitutional. 442 U.S. at 524, 99 S.Ct. at 2459. See also Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977).
Presumptions are deductions or conclusions which the law requires the jury to make under certain circumstances in the absence of evidence in the case which leads the jury to a different or contrary conclusion. A presumption continues to exist only so long as it is not overcome or outweighed by evidence in the case to the contrary. But unless and until the presumption is so outweighed, the jury is bound to find in accordance with the presumption.
I charge you with State Special Charge #1 requested under Presumptions that the defendant intended the natural and probable consequences of his act. (T. 59F) (Emphasis added).
This charge is so similar to the charge in Sandstrom that we can come to no conclusion but that it had the same effect as that ruled unconstitutional by the Sandstrom Court. Accordingly, we hold that Tyler was convicted on the basis of an unconstitutional charge.5
It is undisputed that for a trial error to be reviewable in Louisiana, an objection must be made at the time of its occurrence.
Initially, we note that the State ignores the threshold question of whether the correctness of a jury charge is reviewable at all, and if so under what standard, by a federal habeas court. An erroneous instruction will support a collateral attack on the constitutional validity of a state court‘s judgment only if the ailing instruction so infected the entire trial that the resulting conviction violates due process. Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977), quoting from Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). Compare Blenski v. LaFollette, 581 F.2d 126 (7th Cir. 1978) (charge not so uninformative and confusing as to constitute a denial of due process) with Berrier v. Egeler, 583 F.2d 515, 521-22 (6th Cir.), cert. denied, 439 U.S. 955, 99 S.Ct. 354, 58 L.Ed.2d 347 (1978) (a muddled charge on who had the burden of proof on self-defense so infected the fairness of the trial as to warrant habeas relief). See also Cronnon v. Alabama, 587 F.2d 246 (5th Cir.), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 792 (1979); Bradley v. Wainwright, 561 F.2d 1200 (5th Cir. 1977); Higgins v. Wainwright, 424 F.2d 177 (5th Cir. 1970); Bonner v. Henderson, 517 F.2d 135 (5th Cir. 1975); Pleas v. Wainwright, 441 F.2d 56 (5th Cir. 1970). Thus, the threshold issue for this court is whether the charge given here so infected the trial as to render it fundamentally unfair. We conclude that it did.
The effect of the charge in this case was affirmatively to shift to the defendant the burden of proof on a critical fact which was in dispute-namely, whether Tyler had a specific intent to harm more than one person. Inasmuch as there is very little evidence to support that proposition other than the presumption at issue here, it is folly to argue that the erroneous charge did not affect the central determination of guilt or innocence.
Concluding that the charge affected the fundamental fairness of the trial does not end our inquiry, however. Because Tyler‘s trial counsel failed to object to the erroneous instruction, we must determine whether the district court was correct in concluding that the procedural default under Louisiana‘s contemporaneous objection rule bars habeas relief by this court.
Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), admonishes us that absent cause for the procedural default and actual prejudice from the error, principles of comity and federalism prevent federal courts from granting habeas relief to state prisoners whose claim is non-reviewable in state court because of the default. This rule was designed to avoid the perceived effect of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), of encouraging “sandbagging” by defense lawyers in the state trial. 433 U.S at 89, 97 S.Ct. at 2507.
Considering first the “prejudice” prong, we find Tyler was prejudiced by the improper jury charge. As discussed above, the error was sufficiently egregious to convince us that Tyler was denied a fundamentally fair trial. See Harris v. Spears, 606 F.2d 639 (5th Cir. 1979); Freeman v. Georgia, 599 F.2d 65 (5th Cir.), cert. denied, 444 U.S. 1013, 100 S.Ct. 661, 62 L.Ed.2d 641 (1980); Berrier v. Egeler, 583 F.2d 515 (6th Cir.), cert. denied, 439 U.S. 955, 99 S.Ct. 354, 58 L.Ed.2d 347 (1978); Collins v. Auger, 577 F.2d 1107 (8th Cir. 1978), cert. denied, 439 U.S. 1133, 99 S.Ct. 1057, 59 L.Ed.2d 96 (1979); Sincox v. United States, 571 F.2d 876 (5th Cir. 1978); Bromwell v. Williams,
We must then address the second prong to ascertain whether both prejudice and cause existed so as to bring this case within the exception of Wainwright v. Sykes. At the habeas hearing in state court,7 Tyler‘s trial attorney was asked his reasons for not objecting at trial to the charge now challenged. The following dialogue ensued:
Q: Mr. Williams, you recall during the trial when these arguments that I just indicated to you were made on the question of presumptions?
A: I don‘t recall during the trial when they were made. I mean, all of that looks familiar, and I‘m taking your word that it‘s a copy from the record of the case.
Q: Certainly.
A: But I don‘t have an independent recollection of when during the trial and what dates and specific things about that.
Q: Do you recall the judge‘s charge on the question of presumptions to the jury?
A: No.
Q: I take it, then, that the fact that you had not objected either to the argument or the jury charge is not based upon any trial tactic which you were using.
A: Mr. Peebles, I don‘t recall whether I objected or not. And if I did not object, I really don‘t have an independent recollection of why or why not. I‘ll have to simply depend on the record.
We can hardly conclude, based upon this dialogue, that failure to object was a deliberate trial tactic, a sufficient showing under Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Neither, however, can we conclude that this demonstrated the cause required by Sykes.8 Nor has Tyler‘s counsel before this court voiced any explanation of the failure to object.9 Hence, the requisite showing of cause has not been made, and under the rule as set forth in Sykes we are precluded from granting habeas relief.10
Tyler next contends that there is insufficient evidence to sustain his conviction for first degree murder under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Although Tyler‘s trial was in 1975, this court has held that Jackson is to be applied retroactively. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980).
Jackson held that the “no evidence” rule of Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960), is inadequate to protect a defendant from misapplications of the reasonable doubt standard constitutionally necessary for a criminal conviction, 443 U.S. at 320, 99 S.Ct. at 2790. In order to adequately protect a defendant from such a misapplication, a federal habeas court which is presented with a sufficiency of the evidence claim, must, assuming procedural prerequisites have been satisfied, grant the relief sought if on the record evidence adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt. 443 U.S. at 324, 99 S.Ct. at 2792.
Applying this test to the facts of this case, we cannot say Tyler is entitled to relief. Gary Tyler fired a .45 caliber pistol into a crowd of people. A rational fact finder could conclude that firing a pistol into a crowd of people evidences an intent to kill or do great bodily harm to more than one of those assembled. Because Tyler‘s Jackson claim goes only to the question of his intent and since a rational trier of fact could conclude he possessed that intent, Tyler cannot succeed on his Jackson claim.
The judgment is AFFIRMED.
COLEMAN, Circuit Judge, concurring:
The majority opinion correctly states in the last paragraph that “Gary Tyler [age 16] fired a .45 caliber pistol into a crowd of people;” that “A rational fact finder could conclude that firing a pistol into a crowd of people evidences an intent to kill or do great bodily harm to more than one of those assembled.”
It is hardly to be doubted that anybody of average intelligence could disagree with such an obvious fact. That being so, and as a matter of the common sense upon which jurors generally rely, I would not say that the giving of the challenged instruction rendered Tyler‘s trial fundamentally unfair. Tyler was in a place of safety, in a school bus with other children. He was not under attack and could not have been in any fear of death or great bodily harm. He was old enough to know what a .45 bullet would do when fired into a crowd at close range. Yet, he wantonly fired. I believe that without the challenged instruction the verdict on intent would have been the same. The sad facts were more than enough, without relying on legalisms to establish a belief from the evidence beyond a reasonable doubt.
I agree with all else in the opinion and with the result.
This is a collateral attack and Tyler has already escaped the death penalty to which he was originally sentenced. Leaving him to serve a prison sentence for taking a young life, as he did, is not a miscarriage of justice.