holding it improper to even imply “to the jury that the prosecutor’s office had already made the careful judgment that this case, above most other murder cases, warranted the death penalty”
How later courts described this case
- holding it improper to even imply “to the jury that the prosecutor’s office had already made the careful judgment that this case, above most other murder cases, warranted the death penalty”
- rejecting argument that instruction that “intent may be presumed” cured a mandatory rebuttable burden-shifting instruction as to malice, i.e., intent in the absence of provocation or justification, because “[a]t best, the contradictory instructions as to intent and malice may have confused the jury as to the proper burden of proof”
- finding that arguments based on special and general deterrence are appropriate in light of accepted penalogical justifications for use of death as a punishment
- holding arguments regarding possibility of escape proper because they were "arguments about Brooks' future dangerousness [which] were appropriate inferences from the record before the jury"
Written by the judges who cited it.
The opinion
JAMES C. HILL, Circuit Judge,
specially concurring:
For the reasons stated in my concurrence in Drake v. Kemp, 762 F.2d 1449 (11th Cir.1985), I concur in the judgment of the court. I also observe that the jury instruction given in this case may well have violated Sandstrom v. Montana, 442 U.S. 510 , 99 S.Ct. 2450 , 61 L.Ed.2d 39 (1979), even without what I perceive to be the extension of that ease accomplished by this court in Davis v. Kemp, 752 F.2d 1515 , (11th Cir.1985) (en banc), and by the Supreme Court in Franklin v. Francis, — U.S.-, 105 S.Ct. 1965 , 85 L.Ed.2d 344 (1985).
As I now understand the law, I concur in the conclusion that the instruction was not harmless. I do so in spite of my appreciation of the wisdom of Judge Kravitch’s dissent on this issue.
The dissent reasons that when one who has committed violent rape then produces a pistol, aims it at the victim and pulls back the hammer there can be no conclusion available but that, when the trigger is squeezed and the bullet from the pistol is propelled into the victim, the shooting was intentional. This reasoning is imbedded in the good sense that, long ago, led trial judges to tell juries that a person may be presumed to intend the natural consequences of his or her deliberate acts. Several decades of adroit “lawyering” have brought us to the point where that reasoning may no longer be permitted.
In this case, furthermore, we do not have just that evidence — producing, pointing and drawing back the hammer on the pistol prior to its discharge. The evidence which established that sequence of events, the petitioner’s confession, brought with it petitioner’s contention that, after the deliberate acts in preparation, an unintended accident intervened to cause the discharge. Thus, the words of the petitioner which established his deliberate acts upon which the conclusion of intentional shooting could be based contained also his assertion to the contrary.
*1422 Over the years, jurists have recognized that a conclusion of intent need not be drawn from deliberate acts if the contrary appeared from the evidence. Thus it was that instructions on this subject usually cautioned that the presumption “could be rebutted,” need not be drawn if the defendant produces evidence to the contrary, or other admonitions to the same effect. Yet these were not entirely satisfactory. They implied that the burden shifted to the defendant to produce evidence to the contrary of the otherwise sensible conclusion. Evidence to the contrary might well appear in the prosecutor’s case. The defendant is never required to produce evidence. Yet he has the right to do so. Therefore the jury should not be told that he must rebut; nor should his evidence, should he produce evidence, be excluded from the jury’s consideration. See generally E. Cleary, McCormick on Evidence § 347 (1984).
This was resolved in the instruction so firmly — but, I submit, unwisely — condemned by our predecessor court in Mann v. United States, 319 F.2d 404 (5th Cir.1963), ce rt. denied, 375 U.S. 986 , 84 S.Ct. 520 , 11 L.Ed.2d 474 ; see United States v. Chiantese, 560 F.2d 1244, 1256 (Hill, J. concurring specially). That instruction cautioned the jury that an inference of intent should not be drawn if “the contrary appears from the evidence.” There was no burden upon anyone to produce evidence to the contrary. Any evidence properly admitted, with the defendant being under no duty to produce evidence but fully entitled to do so, might support a contention contrary to the conclusion.
Even in those days, before we began carving many facets on this stone, it would be seen that, in this case, evidence to the contrary of the conclusion of intent was produced, by the state, in the same confession which proved the facts upon which the conclusion might be based. The defendant’s assertion of accidental discharge, after producing, aiming and cocking the loaded pistol, might have been a slender reed, but he was entitled to have the issue thus appearing resolved by the jury.
Judge Kravitch resolves it against the petitioner, presumably by reasoning, as so many other eminent jurists have reasoned, that a person may be presumed to intend the natural and probable consequences of his deliberate acts. If it is unconstitutional to permit a juror to do that, I conclude reluctantly that I may not.
I confess that I find the harm by applying the reasoning of the Mann instruction, and I acknowledge that the Mann instruction, and those like it, are now condemned. I apprehend that if the harm can be found in the reasoning of those instructions, it must a fortiori appear in today’s jurisprudence.