Guy Mason v. Charles R. Balkcom, Warden
669 F.2d 222
5th Cir.
1982
Check Treatment

*2 TUTTLE, Before HILL and A. THOMAS CLARK, Judges. Circuit CLARK, Judge: A. THOMAS Circuit Petitioner, Mason, Guy appeals from the judgment denying district court’s order and petition corpus. a writ of habeas We reverse. January was convicted

of murder and to death after a sentenced Superior trial in the Court of Baldwin County, Georgia.1 On direct and the review,2 mandatory sentence by conviction and sentence were affirmed Court, State, Georgia Supreme Mason v. (1976), 236 Ga. S.E.2d 339 and certio- rari was denied the United States Su- Court, preme Georgia, Mason v. 49 L.Ed.2d 1219 subsequently petitioned Petitioner for a corpus Superior writ of habeas in the County, Georgia. Tattnall The state ha- permit peti- beas action was continued to extraordinary tioner to file an motion for a underlying Georgia’s proce- capital sentencing 1. The facts Mason’s conviction are 2. Under dure, opinion Georgia all set forth issued death sentences must be reviewed Georgia Supreme Ma Court on Mason’s direct Court. Ga.Code Ann. State, 46, 46-47, son v. 236 Ga. 222 S.E.2d 27-2537. § cert. County Superior new the Baldwin that his trial conviction and sentence cannot Following evidentiary hearing, Court. stand one of jurors, prior because the motion was denied on guilt phase trial, conclusion of the appeal, Georgia Supreme Court af On through became newspaper aware accounts extraordinary denial of the firmed the mo had been convicted of mur- State, tion. 239 Ga. Mason der previously; and that his death sen- *3 26, 1978, January (1977). On an S.E.2d 79 tence cannot stand because the record lacks hearing petition on evidentiary commenced a transcript prosecutor’s closing of the ar- er’s state habeas action in the Tattnall gument, portions of provoked objec- County Superior Court. That court denied tion, making impossible a reviewing opin in an habeas relief order and written court to determine whether the July ion on Mason entered prejudicial was unfairly petitioner. to the Hopper, (Super.Ct. Tattnall No. expressed below, For the reasons we re- 13, 1978). Cty., July From the adverse deci doing, however, verse. In so we reach only court, petitioner sion state of the habeas the first because disposition issue its makes prob filed an for a of application certificate (2), (3), (4), (5) resolution of issues un- Georgia able to the cause Su necessary. preme The certificate was Court. denied on October Petitioner was convicted of mur next petition Petitioner filed a for writ der 26-1101(a), under Ga.Code Ann. § corpus of States habeas United Dis- provides: trict for the Middle District of Geor- person A commits when he murder un- gia pursuant to 28 U.S.C. 2254. The dis- § lawfully and with aforethought, malice trict ordered execution either express implied, causes the stayed pending final resolution of the habe- death of being. Express another human as April action. On malice is that deliberate intention unlaw- petition denied the for the writ but fully away to take life fellow stay left intact the of execution. Mason v. creature, is which manifested external Balkcom, F.Supp. (M.D.Ga.1980). capable circumstances proof. of Malice appeals Petitioner now to this court from implied shall be where no considerable petition. the district court’s of denial his provocation appears, all and where Five issues are raised on this Pe- of the circumstances show an (1) titioner contends the trial court’s malignant abandoned and heart. to the jury presump- created a The statute defines murder of to consist tion thereby of intent unconstitu- following (1) unlawfully (2) elements: tionally relieving the of its state burden of causing the death of another human proving essential an element of the crime of (3) with malice aforethought. Holloway v. depriving murder and petitioner of due McElroy, (M.D.Ga. F.Supp. law, process of Malice defined a “deliberate as charge cannot be dismissed harmless er- unlawfully intention” to kill another human ror; (2) trial court’s instructions on Thus, being. because malice is an element voluntary manslaughter impermissibly cre- of murder and deliberate intention to kill is ated a presumption of “deliberate revenge” an part malice, essential to kill intent regard actual an essential element of the crime murder thought processes, depriving thus him of 26-1101(a). under Ga.Code Ann. Under § due process relieving state of its process due clause of the fourteenth (3) proof; that a venireman was amendment, state prove must the exist- improperly excluded service from on the ence of every on than element of a “unmistakably less criminal offense clear” opposition capital indication that his re pun- Winship, automatically impair ishment would L.Ed.2d sentence; ability (4) to consider a death therefore had prove beyond burden to a reasonable doubt neous to be harmless error. Respon- dent, hand, requisite had the on the other first contends that kill. the instructions in did not shift the to the on the Petitioner contends that certain in issue Alternatively, respondent of intent. jury by structions to the the trial position takes the if the prose court had the shift the petitioner, burden to then the dis- by creating pre cution this burden correctly trict court concluded that the er- sumption of his intent to kill. The instruc ror was harmless tions at issue here are as follows: Thus, analysis doubt. our of this issue is charge you presumes I the law twofold: Did the ques- instructions in person accomplish that a intends to peti- tion shift the burden of probable consequences natural and of his tioner on the issue of intent to kill in viola- conduct, person and where a uses a dead- process tion due clause of the four- ly weapon in the manner in which such *4 so, teenth amendment? If can the erro- weapons ordinarily are employed pro- neous be characterized as harmless death, thereby causing duce the death of error a reasonable doubt? being presumes a human the law an in- very This case is similar to Sandstrom v. tention to kill. Montana, charge you you I further that if believe (1979).3 Sandstrom, In the de beyond a reasonable doubt the de- fendant was convicted under Montana law ., weapon fendant . . with the in named homicide,” of “deliberate which the statute indictment, the and with malice afore- “purposely defined knowingly” or thought, expressed implied, either causing the death of another being.4 human ., unlawfully kill the victim . . you and The state “purpose” conceded that weapon believe the used in the manner “intent,” equivalent that proof thus used, used, if likely one was was one to of defendant’s intent kill would suffice to produce death, you then would be autho- “purpose” establish the element. Id. at 521 rized and it your duty would be to convict n.11, & at S.Ct. 2458 & n.11. The trial the defendant of the offense of murder. the jury pre instructed that “the law court, The district relying primarily on person sumes that a ordinary intends the Montana, Sandstrom 99 consequences voluntary of his acts.” The (1979), found that Supreme Court held that this instruction “impermissibly these instructions shifted was unconstitutional because it “had the proof the burden of on the issue of intent effect of the State of the burden kill the defendant or at least removed Winship enunciated in on the crit from the resting the full burden question ical state of mind.” upon it Winship.” under In re 487 F.Supp. Id. at at hold, at 559. The district went on to Sandstrom, argued the state the however, the Supreme Montana Court had exclusive au- thority to pre- determine the effect the Petitioner, course, agrees with the dis- sumption. The supreme state court had trict finding court’s that the charge errone- held that the placed only instruction a bur- ously shifted the burden of to him on den of producing some evidence on the de- the argues fendant, issue of intent to but presumption af- thus the district court incorrectly held the erro- fected going burden of forward 3. When Supreme reasoning conviction was reviewed of the United States Court’s Georgia Supreme Sandstrom, on direct in in which was not decided until Court held that the instructions in State, were not erroneous. Mason v. 236 Ga. 46, 47-48, 222 S.E.2d That 94-5-101, 4. 1947 Mont.Rev.Codes -102 §§ made, however, ruling was (Crim.Code benefit notwithstanding rather than with the evidence the burden of the fact the trial had other instructions persuasion. Court conceded court that cor- rectly proof.5 stated the supreme the final state’s that the state court was authority on the agree with the district court’s conclu- law, but declared that the state under state at issue in sion that instructions authority the final on the court was “not clearly proscription case within the fall an- interpretation jury giv- a have could nounced Sandstrom. Petitioner was con- en the instruction.” U.S. at murder, victed essential element of that, S.Ct. at 2455. The Court then found is intent to kill. The trial court although interpret- the instruction could be jury presumes instructed the that “the law state, suggested ed manner person to accomplish that a intends interpreted could also be in two more strin- probable consequences natural and of his gent ways, passed neither of which consti- person a conduct” and that “where uses tutional muster: weapon deadly thereby causing . . . First, well have presumes reasonable could of a human the law death interpreted the as “conclu- asserting an intention to kill.” In self-de- sive,” is, presump- fense, technically required to admit the all, tion at rather presumptions. as an irrebuttable facts activated these direction court to once find intent We believe could interpreted facts triggering convinced of the either impermissible ways sumption. Alternatively, jury may described in Therefore, we interpreted as a Sandstrom. hold that instruction di- *5 challenged the rection of instructions relieved State of upon proof to find the Georgia of its prov- constitutional burden of voluntary (and defendant’s their actions every ing element of the crime of consequences), murder “ordinary” unless the de- a beyond reasonable Accordingly, doubt. proved contrary by fendant the some petitioner’s conviction and sentence must be quantum proof may of well have charge set aside unless the erroneous considerably greater been than “some” beyond harmless effectively shifting evidence—thus the persuasion on the element of a federal constitutional “[BJefore intent. harmless, be error can held the court must 517, 99 442 U.S. at S.Ct. at The Court 2456. be able declare a belief that it was harm held that of either these two interpretations beyond less a doubt.” Chapman reasonable would have California, 18, “the of the 24, 824, v. 386 87 U.S. S.Ct. of proof State the burden of in 828, enunciated 17 In determining Winship petition on the critical harmless, of whether such an ques error is the er’s state of mind . . . and that the instruc might tion is whether the error con represents tion therefore constitutional er to the tributed conviction. Id. at 87 ror,” 442 at U.S. at 827. It S.Ct. at is conceivable that an error potential interpretations example, The for these of For if satisfied. the conclusive, jury the was not removed the viewed were as the could although other instructions at It the trial. is true have believed that intent must be doubt, generally proven beyond proof the was instructed a reasonable of presumed voluntary slaying ordinary the accused innocent until its the and conse proven guilty, quences proof beyond and that the State had the constituted of intent Wilbur, proving beyond Mullaney burden of v. Cf. doubt, defendant that the caused the death of 421 U.S. 703 n. 95 S.Ct. purposely knowingly. (1975) (“These procedural the deceased or . . . de rhetorically (in require presumption) But this not with vices inconsistent the case burden-shifting presumption. a conclusive or . . the trier of conclude . fact the interpreted prosecution The could have two burden sets has met its with indicating respect presumed by having . . . fact sumption satisfactorily facts.”). awas means be- other established yond n.7, a reasonable doubt at as to intent could be S.Ct. at 2456 n.7. petitioner’s only be harm- The as that involved here could defense to such cer- charges thereby a reasonable doubt under was self-defense. less He Indeed, tain circumstances. killing controverted expressly in Sandstrom stated premeditation unlawful done with and Supreme. free on the Montana Court was not and deliberateness. issue was error issue. to consider the harmless remand per kill” se “intent it was Al- at at 2461. killing petition- lawfulness burden-shifting might be though charge respect er’s intentions with thereto. circumstances, given appropriate harmless judge clearly of the trial Since however, this is not such a case. imposed on unlawfulness, premeditation proving might Constitutional error be held beyond a deliberateness reasonable doubt doubt, beyond a reasonable only disputed and these were the in issues guilt is example, where the evidence of so finds that the errone- overwhelming that the error could ous was harmless a rea- contributing been factor in sonable doubt.... See, Harrington to convict. e.g., California, F.Supp. Apparently, at review, L.Ed.2d The case under raising believed self-defense however, cannot Al be so characterized. having the defendant admitted the intent though it is clear that shot and analysis to kill. This is too broad. When victim, he killed he claimed that acted self-defense, claiming one does not neces- in self-defense after he saw the victim sarily admit intent to but rather admits bring pistol. reach into her bosom and aout killing occurred. As the undisputed The evidence was at the brief, points out in one can shoot kill time of the victim had a hand self-defense, in shoot to wound in self-de- gun person. eyewitness on her testi One fense, self-defense, frighten shoot to he saw fied that the victim reach under her reactively even shoot self-defense with pull pistol peti sweater and out a before specific purpose. raising The mere *6 began shooting. eyewit tioner Another clearly self-defense does not establish that ness, however, testified that the victim’s the defendant had the intent to kill. That hands were down her when the side petitioner’s intent to kill was an issue in evidence, shooting occurred. far from This evident trial is made the district court’s guilt, being overwhelming in favor of statement that “controverted very dispute, in fact much in we cannot .. . only done with say that presumption unconstitutional see premeditation and deliberateness.” We a contributing was not factor in meaningful “pre- distinction between to dispute peti resolve the against specific meditation and deliberateness” and tioner. petitioner’s intent. A critical issue in trial specific he had the to was whether intent unconstitutional, An burden-shifting prov- and the state had the burden of might instruction also be held ing beyond a this intent it where shifts the burden on element an re- We the instructions hold that See, e.g., is not at issue in the trial. might lieved the state of this burden well Reeves, (6th United States 594 F.2d to conviction have contributed Cir.), cert. U.S. be dismissed as harmless and thus cannot district Therefore, the district court be error. must court, taking that the approach, this found reversed. challenged be instructions were harmless because, disposition preced- in its In view of our yond doubt issue, view, per ing to kill se at issue in we need not reach the other issues was not petitioner. trial. The district court stated raised here For reasons expressed opinion, judgment in this that: not in record. is an im- the district court REVERSED Summation part of portant likely to the district court trial. It would be case is REMANDED pointed proceedings petitioner’s attorney not inconsistent out that further the evidence was consistent with intent opinion. with this frighten the victim or to disable to him aggression. from further No matter HILL, special- Judge, concurring Circuit failed, might such an have de- ly: have fendant was entitled to it asserted. I we agree that must reverse this asserted, know. were cannot If it it reasons. my differ in been, would under Montana, Sandstrom v. charge, faced with a (1979), compels 61 L.Ed.2d was invalid. So the error has not been holding impermis- instruction shown harmless intent, sibly shifted the Therefore, I concur. non, petitioner. say vel This is from a defendant’s actions intent; might not draw inference of it is

just prosecutor cannot use defendant,

sumption against presumed in-

nocent, to foreclose the issue.

I what adopt judge would

wrote on harmlessness but for one omission appear from the Intent record. does not In re CHICKEN ANTITRUST LITIGA noted, Judge been in As issue. Owens POULTRY, TION AMERICAN et prove intention does not to kill suffice al., Appellants. required prove case. The State is No. 80-7808. “. . . deliberate intention to kill a human excuse, justification or Appeals, miti- United States Court gation.” apparently The case put Fifth Circuit.* jury for decision was whether or not excuse BUnit justification present. The erroneous instruction relate did not to that issue and proper no harm to its I resolution. disagree

respectfully with part

panel’s opinion, referring to the defense of defense,

self says, “. . . we cannot

say that unconstitutional *7 contributing not a factor in the dispute against peti- to resolve

tioner.” The resolution of the self defense

claim petition- would be the same whether

er’s frighten. intent was wound or

Nothing appears suggest before us to questioned the existence of

intent to kill claimed self defense. How-

ever, does everything appear us. before procedure

Under unfortunate in use in then

Georgia1 the of defense counsel * arguments 9(1) I am advised counsel’s Fifth Circuit Former Section of Public part such cases now are recorded and made Law 96-452 — October of the record.