GRACE v. HOPPER
29924
Supreme Court of Georgia
June 25, 1975
234 Ga. 669 | 217 S.E.2d 267
Judgment affirmed. All the Justices concur, except Jordan, Hall and Hill, JJ., who concur in the judgment only.
SUBMITTED APRIL 24, 1975 — DECIDED JUNE 25, 1975.
Thomas J. Killeen, for appellant.
E. Mullins Whisnant, District Attorney, J. Gray Conger, Assistant District Attorney, Arthur K. Bolton, Attorney General, Kirby G. Atkinson, for appellee.
UNDERCOFLER, Presiding Justice.
Appellant was convicted of murder and sentenced to life imprisonment. On appeal this court affirmed with two Justices dissenting. Grace v. State, 231 Ga. 113 (200 SE2d 248). The evidence presented at the trial is set out in that opinion. Appellant‘s sole defense was insanity at the time of the offense.
Appellant then filed this habeas corpus on the grounds that the trial judge‘s instructions on insanity violated his constitutional rights by shifting to him the burden of proof on an essential element of the offense and by relieving the prosecution of its burden of proving every essential element of the offense beyond a reasonable doubt. The judge of the habeas corpus court remanded the appellant to custody and this appeal followed.
The pertinent instructions to the jury were as follows:
“The defendant also sets up as a defense the plea that
“I charge you that although the burden of establishing the insanity or unsoundness of mind at the time of the alleged offense be not successfully carried by the defendant, so as to authorize his acquittal on this ground, it is nevertheless the duty of the jury to consider the evidence touching the alleged insanity in connection with the other evidence in the case; and if, in view of all the evidence, the jury entertains a reasonable doubt of the guilt of the defendant, he should be given the benefit of that doubt and acquitted.”
Specifically appellant complains, “(1) that the charge violated his due process right to have the state bear the full burden of proving beyond a reasonable doubt every element of the charge against him, (2) that it offended his due process right to be tried clothed in the presumption of innocence and unencumbered by any burden of disproving an element of the offense, and (3) that it deprived him of his due process right to be judged by a jury free of confusing, contradictory, and inconsistent instructions.” Held:
In recent years the traditional rules of criminal procedure of various states which shift burdens of proof to the defendant have been challenged as fundamentally unfair and violative of due process. That is primarily the basis of the attack here upon Georgia‘s typical procedure requiring the defendant to produce evidence in support of an insanity defense and to establish it to “the reasonable satisfaction of the jury.” It is argued that the defendant is clothed throughout his trial with a presumption of
These United States Supreme Court cases persuade us that in order to comport with due process the prosecution must carry the burden of proving all critical essential elements of the crime charged against a defendant. However, sanity has not been treated as a
“Nor is this a case in which it is sought to enforce against the states a right which we have held to be secured to defendants in federal courts by the Bill of Rights. In Davis v. United States [160 U. S. 469], we adopted a rule of procedure for the federal courts which is contrary to that of Oregon. But ‘its procedure does not run foul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at the bar.’ Snyder v. Massachusetts, supra, at 105. The judicial judgment in applying the Due Process Clause must move within the limits of accepted notions of justice and is not to be based upon the idiosyncrasies of a merely personal judgment . . . An important safeguard against such merely individual judgment is an alert deference to the judgment of the state court under review.’ Mr. Justice Frankfurter, concurring in Malinski v. New York, 324 U. S. 401, 417 (1945). We are therefore reluctant to interfere with Oregon‘s
Likewise the dissenting opinion, although decrying Oregon‘s rule requiring the defendant to prove his insanity beyond a reasonable doubt, stated at page 804: “This does not preclude states from utilizing common sense regarding mental irresponsibility for acts resulting in homicide — from taking for granted that most men are sane and responsible for their acts. That a man‘s act is not his, because he is devoid of the mental state which begets culpability, is so exceptional a situation that the law has a right to devise an exceptional procedure regarding it. Accordingly, states may provide various ways for dealing with this exceptional situation by requiring, for instance, that the defense of ‘insanity’ be specially pleaded, or that he on whose behalf the claim of insanity is made should have the burden of showing enough to overcome the assumption and presumption that normally a man knows what he is about and is therefore responsible for what he does, or that the issue be separately tried, or that a standing disinterested expert agency advise court and jury, or that these and other devices be used in combination. The laws of the forty-eight states present the greatest diversity in relieving the prosecution from proving affirmatively that a man is sane in the way it must prove affirmatively that the defendant is the man who pulled the trigger or struck the blow. Such legislation makes no inroad upon the basic principle that the state must prove guilt, not the defendant innocence, and prove it to the satisfaction of a jury beyond a reasonable doubt.”
The opinion of Leland v. Oregon, supra, further stated at page 800: “It is contended that the instructions may have confused the jury as to the distinction between the state‘s burden of proving premeditation and the other elements of the charge and appellant‘s burden of proving insanity. We think the charge to the jury was as clear as instructions to juries ordinarily are or reasonably can be, and, with respect to the state‘s burden of proof upon all the elements of the crime, the charge was particularly emphatic. Juries have for centuries made the basic
We think it is significant that Leland v. Oregon, supra, was not overruled in In re Winship, supra, or in Mullaney v. Wilbur, supra. On the contrary, in the latter case Justice Rehnquist in a concurring opinion, joined by Chief Justice Burger, stated: “I agree with the court that In re Winship, 397 U. S. 358 (1970), does require that the prosecution prove beyond a reasonable doubt every element which constitutes the crime charged against a defendant. I see no inconsistency between that holding and the holding of Leland v. Oregon, 343 U. S. 790 (1952). In the latter case this court held that there was no constitutional requirement that the state shoulder the burden of proving the sanity of the defendant.
“The court noted in Leland that the issue of insanity as a defense to a criminal charge was considered by the jury only after it had found that all elements of the offense, including the mens rea if any required by state law, had been proven beyond a reasonable doubt. Id., at 792, 795. Although as the state court‘s instructions in Leland recognized, Id., at 794-795, evidence relevant to insanity as defined by state law may also be relevant to whether the required mens rea was present, the existence or nonexistence of legal insanity bears no necessary relationship to the existence or nonexistence of the required mental elements of the crime. For this reason, Oregon‘s placement of the burden of proof on insanity on Leland, unlike Maine‘s redefinition of homicide in the instant case, did not effect an unconstitutional shift in the state‘s traditional burden of proof beyond a reasonable doubt of all necessary elements of the offense. Id., at 795. Both the court‘s opinion and the concurring opinion of Mr. Justice Harlan in In re Winship, supra, stress the importance of proof beyond a reasonable doubt in a
Accordingly, we hold that the charge in the instant case is not violative of due process.
Judgment affirmed. All the Justices concur, except Hall, J., who concurs specially, Hill, J., who concurs in the judgment, and Gunter and Ingram, JJ., who dissent.
ARGUED MAY 12, 1975 — DECIDED JUNE 27, 1975.
James C. Bonner, Jr., for appellant.
HALL, Justice, concurring specially.
That portion of the charge of the trial court which is under collateral attack here was never challenged at the trial of the case nor in Grace‘s direct appeal. After the trial judge concluded his instructions to the jury, he inquired of the defendant‘s counsel if there were any exceptions to the charge. Counsel replied that the words “Preponderance of the evidence” should not have been used with respect to any burden on the defendant to overcome the presumption of sanity. After considerable colloquy, the trial judge overruled the exception. Later that evening he reconsidered, recalled and recharged the jury, and specifically instructed them that he was striking the words “by a preponderance of the evidence.” The record indicates that defendant‘s counsel had no further objections. After conviction, the defendant appealed to
I do not think the charge under attack here places an unconstitutional burden on the defendant under the reasoning of the Supreme Court of the United States in Mullaney v. Wilbur, 43 USLW 4695 (June 9, 1975). However, even if it did, it must be remembered that a “criminal defendant may in a procedural setting implement choices which have the effect of waiving basic constitutional guarantees.” Patterson v. State, 233 Ga. 724, 731 (213 SE2d 612). On waiver of objections to jury instructions see
Even if it be said that Grace did not waive in the trial court his right to object to the insanity instruction, surely
If the question of the construction of the charge here under collateral attack should be reached, Justice Hill and I agree that the charge as a whole did not deprive the defendant of due process of law. I see no error and certainly no error of constitutional proportion. It is in substance the same charge that has been given over the years in Georgia. It is also a very clumsy and prolix one.2 However, it does not shift the burden of proof to the defendant. The Supreme Court of the United States has long held that “instructions to the jury are not to be judged in artificial isolation, but must be viewed in the context of the overall charge. Boyd v. United States, 271 U. S. 104, 107 (1926); Cupp v. Naughten, 414 U. S. 141, 147 (1973).” Mullaney, supra, concurring opinion of Justice Rehnquist. Furthermore, this court has recently turned away from the pernickety and technical appellate court construction of jury charges which was condemned by Pound3 almost seventy years ago. Lavender v. State, 234 Ga. 608.
After stating the presumption of sanity, the trial judge charged that the burden was upon the defendant to
We should always be on guard against “mechanical jurisprudence” which exalts form over substance and remember the cautionary advice of Justice Cardozo that there “is danger that criminal law will be brought into contempt . . . if gossamer possibilities of prejudice to a defendant are to nullify a sentence . . .” Snyder v. Massachusetts, 291 U. S. 97, 122.
As stated by Justice Hall, instructions to the jury are not to be judged in artificial isolation but must be viewed in the context of the overall charge. Cupp v. Naughten, 414 U. S. 141, 147 (94 SC 396, 38 LE2d 368).
At the expense of prolonging this decision, let us view the overall charge in its pertinent parts.
The trial court charged the jury, inter alia, as follows:
“The defendant‘s plea of not guilty challenges and denies every material allegation in this indictment and I charge you that before the state is entitled to a verdict of conviction of the defendant at your hands, the burden is upon the state of proving the defendant‘s guilt as charged beyond a reasonable doubt.
“The defendant enters upon his trial with the presumption of innocence in his favor and that presumption remains with him throughout the trial unless and until it is overcome by evidence sufficiently strong to satisfy you of his guilt to a reasonable and moral certainty and beyond a reasonable doubt. Unless you find such evidence in this case, you would acquit the defendant.”
After defining the meaning of “reasonable doubt” and the meaning of direct and circumstantial evidence, the court continued:
“I charge you, however, that whether dependent upon direct or circumstantial evidence the true test in all criminal cases is not whether the conclusion at which the evidence points may be false but whether or not the evidence is sufficiently strong to satisfy your minds and consciiences to a reasonable and moral certainty and beyond a reasonable doubt of the defendant‘s guilt. If the evidence is not thus strong, it would be your duty to acquit.
“Now, gentlemen, I charge you that a crime under our law is a violation of a statute of this state in which there shall be a union of joint operation of act, or omission to act, and intention, or criminal negligence.”
Next the court charged the jury that a person will not be presumed to act with criminal intent, and instructed them as to the definition of murder with malice aforethought, and as to the definition of express malice.
“Malice is an essential ingredient in murder, as charged in the indictment, and it must exist before the alleged homicide can be murder. Malice, in its legal sense, is not necessarily ill-will or hatred. It is the unlawful, deliberate intention to kill a human being, without justification, or mitigation, or excuse, which intention must exist at the time of the killing . . .
“Now, as to this indictment, gentlemen, I charge you that if you believe beyond a reasonable doubt that the defendant in this county, at any time prior to the return of this indictment, with a weapon or instrumentality named in this indictment, and with malice aforethought, either express or implied, did unlawfully and intentionally shoot Winnie Mae Watson and kill Winnie Mae Watson, as charged in the indictment, and you believe the weapon or instrumentality used, in the manner used, if one was used, was one likely to produce death, then you would be authorized and it would be your duty to convict the defendant of the offense of murder as charged in the indictment. And in that event, the form of your verdict would be, ‘We, the Jury, find the defendant, Hamp Grace, guilty.’
“Now, gentlemen, the defendant contends that he‘s not guilty of the offense charged, and further contends that the state has not shown his guilt of the offense as charged to a reasonable and moral certainty and beyond a reasonable doubt. If from a consideration of the evidence, or from a lack of evidence, you believe these contentions of the defendant to be the truth of the case, or if you believe either of these contentions of the defendant to be the truth of the case, it would be your duty to acquit him, and the form of that verdict would be, ‘We, the Jury, find the defendant not guilty.’
“The defendant also sets up as a defense the plea that he was of unsound mind and irresponsible at the time of the alleged crime. I charge you that under the law of this state every person is presumed to be of sound mind and discretion but the presumption may be rebutted. I charge you further that the acts of a person of sound mind and discretion are presumed to be the product of that person‘s will, but this presumption may be rebutted. And when in
[“By a preponderance of evidence is meant that superior weight of evidence upon the issues involved, which, while not enough to wholly free the mind from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than to the other.“]
“I charge you that although the burden of establishing his insanity or unsoundness of mind at the time of the alleged offense be not successfully carried by the defendant, so as to authorize his acquittal on this ground, it is nevertheless the duty of the jury to consider the evidence touching the alleged insanity in connection with the other evidence in the case; and if, in view of all the evidence, the jury entertains a reasonable doubt of the guilt of the defendant, he should be given the benefit of that doubt and should be acquitted . . .
“The question of insanity is a question of fact, as I have said, to be determined by you. If you believe that the defendant committed the act charged against him in this bill of indictment, but that at the time of its commission, he was mentally incapable of distinguishing between right and wrong in relation to that act, then you should acquit him. Likewise, if you have a reasonable doubt as to this, you should give the defendant the benefit of that doubt and acquit him.”
On recharge, the trial judge expressly struck from the charge those portions quoted above which appear in brackets, and instructed the jury not to consider those portions as part of the charge.
In my view, the charge, plus recharge, placed the burden upon the state to prove the defendant‘s guilt, including intent, beyond a reasonable doubt. In my view, the jury was instructed that if they entertained a reasonable doubt as to the defendant‘s guilt, including sanity, he was entitled to the benefit of that doubt and should be
INGRAM, Justice, dissenting.
The majority‘s reliance upon Justice Rehnquist‘s concurring opinion in Mullaney v. Wilbur, supra, to sustain Leland v. Oregon, supra, in support of its conclusion is misplaced. A careful reading of the majority opinion written by Justice Powell in Mullaney makes it clear that the ratio decidendi of Leland has been eviscerated by In re Winship, 397 U. S. 358, and the majority opinion in Mullaney.
Winship and Mullaney require the prosecution to prove beyond a reasonable doubt every element of the crime charged against a defendant. Indeed, Mullaney dramatically emphasizes the limitation imposed upon the states in dealing with the decisional foundation of Winship. As noted by Justice Powell, writing for the majority, “Moreover, if Winship were limited to those facts that constitute a crime as defined by state law, a state could undermine many of the interests that decision sought to protect without effecting any substantive change in its law. It would only be necessary to redefine the elements that comprise different crimes, characterizing them as factors that bear solely on the extent of punishment. . . Winship is concerned with substance rather than . . . formalism. The rationale of that case requires an analysis that looks to the ‘operation and effect of the law as applied and enforced by the State,’ St. Louis S.W. R. Co. v. Arkansas, 235 U. S. 350, 362 (1914) and to the interests of both the state and the defendant as affected by the allocation of the burden of proof.”
This leads us to consider the operation and effect of insanity in the criminal law as applied and enforced in Georgia. Does a finding of insanity under Georgia law negate an element of the crime? I submit that it does because one cannot have insufficient mental capacity to distinguish between right and wrong but nevertheless
We need only look to several illustrative Georgia cases for clarification of the legal effect of a finding that an accused was insane at the time of commission of the act charged against him. At least as early as 1868, this court said: “It is, in all crimes one of the ingredients of the offense that there shall be a joint operation of act and intent, and an insane person cannot, in a legal sense, have any intent. Indeed, in murder, soundness of mind, in the perpetration of the act, is a part of the definition of the crime.” Long v. State, 38 Ga. 491, 507. (Emphasis supplied.)
The language of Long leaves no reasonable doubt in my mind that we are dealing with an element of the crime and that insanity and criminal intent cannot simultaneously coexist in the same human mind.
Long v. State was quoted with approval by this court in Handspike v. State, 203 Ga. 115 (45 SE2d 662) (1947). It is true that in these earlier decisions, this court approved the practice of placing the burden on the defendant to prove his insanity by a preponderance of the evidence rather than upon the state to prove the defendant was sane. In fact, most of the older cases do not even discuss the implications of shifting this burden to the defendant. But it must be remembered that all of these cases were decided long before Winship and its progeny which have made clear that shifting the burden of proof to the defendant to require him to disprove an element of the crime violates the Due Process Clause.
Chief Judge Benjamin Harvey Hill, of the Court of Appeals of Georgia, was sorely troubled with placing the burden of proof on the defendant in 1911. In Wilson v. State, 9 Ga. App. 274, 286 (70 SE 1128), he wrote this in an assault with intent to rape case on appeal from Cobb Superior Court: “I am not unmindful of the repeated decisions of the Supreme Court that all persons are presumed to be of sound mind, and that the burden is upon the accused to rebut this inference of sanity by a preponderance of evidence. Carter v. State, 56 Ga. 463; Carr v. State, 96 Ga. 284 (22 SE 570); Danforth v. State, 75 Ga. 614 (58 AR 480). This rule is not, however,
I note also this issue subsequently raised its head in this court in 1918 when counsel for a defendant in a murder case argued the trial court erred in not charging the jury that if they entertained “a doubt on the whole showing, including the question of insanity,” they should give the benefit of the doubt to the defendant. Counsel‘s argument was that the failure to charge this principle deprived the defendant of the benefit of the reasonable doubt doctrine on the question of intent. This court found no error because the trial judge had charged the jury that they should not convict unless the state proved all material allegations of the indictment beyond a reasonable doubt “and that the existence of and the ability to form a criminal intent was a material element in the case.” (Emphasis supplied.)
Thus, the winds of the present controversy have been blowing for many years. The basic due process difficulty inherent in requiring the defendant to disprove a fact essential to conviction has concerned some lawyers and judges for years. The full implications of it are now placed sharply in focus by these recent decisions of the U. S. Supreme Court and they require that we confront the present issue consistent with the due process standards enunciated in these decisions and in our own state law.
It is inconceivable to me that any court today would seriously entertain the notion that the defendant can be made to disprove the criminal act with which he is charged. Likewise, the defendant cannot be made to disprove the criminal intention with which he is charged.
Perhaps, it can be argued that proof of act and proof of intent should not be subject to the same burden standard. After all, intent is typically considered a fact peculiarly within the knowledge of the defendant whereas the act itself is not. Can this distinction be used to justify a different standard and allocation of the burden of disproving intent to the defendant? Justice Powell answers this question in Mullaney with this observation, “And although intent is typically considered a fact peculiarly within the knowledge of the defendant, this does not, as the court has long recognized, justify shifting the burden to him. See Tot v. United States, 319 U. S. 463, 469 (1943); Leary v. United States, 395 U. S. 6, 45 (1969). Nor is the requirement of [the state] proving a negative unique in our system of criminal jurisprudence . . . Thus, we discern no unique hardship on the prosecution that would justify requiring the defendant to carry the burden of proving a fact so critical to criminal culpability.”
These words were written to strike down the State of Maine‘s requirement that a defendant charged with murder prove that he acted in the heat of passion on sudden provocation in order to reduce the homicide to manslaughter. That holding points inescapably to the due process infirmity of Georgia‘s requirement that a defendant charged with murder, as in the present case, prove he lacked the necessary intent to commit the crime of murder. The defendant Grace admitted the act, but denied the criminal intent to commit murder in this case.
I would hold that when the defendant introduced evidence showing he lacked sufficient mental capacity to form the necessary criminal intent to commit murder, an issue arose as to the defendant‘s sanity and the burden was upon the state to prove the defendant‘s sanity in order to prove his criminal intent.
The issue of the defendant‘s sanity (criminal intent) was the only real issue in the trial of this murder case. That issue went to the jury with the instruction that it was up to the defendant to prove he was insane. I do not believe this instruction can be reconciled with the requirement of
Finally, I would add this postscript: Every appellate judge knows some give and take in language is sometimes required to gain a majority vote on a court composed of members conscientiously divided on critical issues. Thus, a majority opinion written by one judge is often a composite view and is representative of several views held by those who join the majority opinion. It may not go as far as the author would have it go but it may nevertheless disapprove of the principles of decision in a case that cannot be overruled without losing one or more concurring judges.
I think this is basically what may have happened in Mullaney by the different treatment given Leland v. Oregon in the majority opinion written by Justice Powell and in the concurring opinion written by Justice Rehnquist. Although the votes of Chief Justice Burger, who joined the concurring opinion, and Justice Rehnquist were not needed for a majority, we have no written opinion by another justice. Thus, we know from the decision only that the remaining justices joined the majority opinion.
I do not believe a majority of the members of the U. S. Supreme Court can hold there is no constitutional requirement for the state to shoulder the burden of proving the sanity of the defendant, in a Georgia case where the defendant‘s insanity negates mental capacity to form a criminal intent, without compromising the reasoning in Winship and Mullaney. Even if they were to do so, my present opinion is that a different result would still be required by the Georgia Constitution and statute law as explained in the dissents in Grace v. State, 231 Ga. 113 (200 SE2d 248). I am not persuaded that the accused would receive an unfair advantage by our recognition of the due process obligation of the state to carry this burden of proof. See Coker v. State, 234 Ga. 555. I dissent from the majority opinion approving the jury charge given in this murder case, as it placed the burden on the defendant to prove the only fact in issue in the trial of the case.