# Curfew Davis v. Walter D. Zant, Warden, Georgia Diagnostic and Classification Center

> Court of Appeals for the Eleventh Circuit · March 6, 1984 · 721 F.2d 1478

URL: https://www.frixlaw.com/law-library/cases/9471461

## Case

- **Full name:** Curfew DAVIS, Plaintiff-Appellant, v. Walter D. ZANT, Warden, Georgia Diagnostic and Classification Center, Defendant-Appellee
- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** March 6, 1984
- **Citations:** 721 F.2d 1478
- **Precedential status:** Published
- **Opinion:** Concurring in part by Kravitch
- **Judges:** Fay, Kravitch, Atkins
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

KRAVITCH, Circuit Judge,
concurring in part and dissenting in part:
I concur in the majority opinion except as to Part III. I respectfully dissent from *1492 Part III, for I conclude that the trial court’s instruction on malice unconstitutionally shifted the burden of proof to petitioner.
In determining whether a particular jury instruction shifted the burden of proof to the defendant, an appellate court must examine “the words actually spoken to the jury” to determine “the way in which a reasonable jury could have interpreted the instruction.” Sandstrom v. Montana, 442 U.S. 510, 514 , 99 S.Ct. 2450, 2454 , 61 L.Ed.2d 39 (1979). Thus where a reasonable juror could have read the charge as creating a mandatory presumption and could have given the presumption conclusive or persuasion-shifting effect, the court must proceed on the assumption that the appellant’s jurors did just that. Id. at 519 , 99 S.Ct. at 2456 .
The first question in this case, then, is whether the trial court’s malice instruction could have been interpreted by a reasonable juror as shifting the burden of proof to petitioner. Our decision in Lamb v. Jernigan, 683 F.2d 1332 (11th Cir.1982), cert. denied, — U.S. —, 103 S.Ct. 1276 , 75 L.Ed.2d 496 (1983), answers this question. There the trial court’s charge stated that “the law presumes that every homicide is malicious until the contrary appears from circumstances of alleviation, excuse or justification, and it is incumbant [sic] upon the accused to make out such circumstances to your satisfaction unless they appear from the evidence produced against him.” The language at issue here is almost identical: “[t]he law presumes it to be malice until the contrary appears from circumstances of alleviation or excuse, or justification and under the laws, it is incumbent upon the Defendant to make out such circumstances satisfactory to the Jury unless they appear from the evidence offered against the Defendant.” As in Lamb , I “cannot escape the conclusion that the above instruction, by itself, could have been read as shifting the burden of proof to the defendant on an essential element of the crime of murder.” Id. at 1341 .
I disagree with the majority’s assertion that the potential for a burden-shifting interpretation was neutralized by the trial court’s subsequent instruction that “while it is true that the law presumes malice when a homicide has been shown, yet that presumption of malice may be rebutted by the Defendant from evidence offered by him, or from evidence offered by the State, or from both.” This statement by no means eliminated the danger of an impermissible interpretation; rather, in reiterating that the defendant had to meet the burden of disproving malice by rebutting the presumption thereof, it exacerbated the problem identified in Lamb . The “curative” language “or from evidence offered by the State, or from both” merely indicated that the defendant could point to evidence adduced by the state in meeting his burden, that is, he did not have to introduce evidence of his own. In any case, the defendant still bore the risk of non-persuasion.
In my judgment, neither the language relied upon by the majority, nor the other instructions at trial distinguish this case from Lamb and “rule out the substantial possibility that the jury interpreted the charge as relieving the state of its constitutional burden of proving malice beyond a reasonable doubt. ‘Accordingly, [petitioner’s] conviction and sentence must be set aside unless the erroneous charge was harmless beyond a reasonable doubt.’ ” Lamb, 683 F.2d at 1341 (quoting Mason v. Balkcom, 669 F.2d 222, 226 (5th Cir.1982)). Insofar as petitioner was tried on a theory of malice murder, not felony murder, the issue of malice was critical to the jury’s determination of guilt. Given that the evidence of petitioner’s participation in the actual killing—primarily his statements admitting presence, with others, when the killing occurred—was not overwhelming, I conclude that the instruction in question was not harmless beyond a reasonable doubt. See Connecticut v. Johnson, — U.S. —, 103 S.Ct. 969 , 74 L.Ed.2d 823 (1983). For these reasons, I would vacate petitioner’s conviction and sentence.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9471461. Public record. Not legal advice.