# William Anthony Brooks v. Ralph Kemp, Warden, Georgia Diagnostic and Classification Center, Respondent > Court of Appeals for the Eleventh Circuit · July 23, 1985 · 762 F.2d 1383 URL: https://www.frixlaw.com/law-library/cases/9473502 ## Case - **Full name:** William Anthony BROOKS, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee - **Court:** Court of Appeals for the Eleventh Circuit - **Decided:** July 23, 1985 - **Citations:** 762 F.2d 1383 - **Precedential status:** Published - **Opinion:** Concurring in part by Kravitch - **Judges:** III, Godbold, Roney, Tjoflat, Hill, Fay, Vance, Kravitch, Johnson, Henderson, Hatchett, Anderson, Clark, Ro-Ney - **Cited by:** 219 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Vacated on other grounds by Kemp v. Brooks, 478 U.S. 1016 (1986). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9473502 ## How later opinions describe it (automated extraction) - 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 … - 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" - finding that potential prejudicial effect of undesirable prosecutorial commentary was minimized by its brevity ## Opinion text KRAVITCH, Circuit Judge, concurring in part and dissenting in part: I. The Sandstrom Issue The majority holds that the jury instructions impermissibly shifted the burden of proof, violating Brooks’ constitutional rights. I'agree and concur in this portion of the opinion. The majority, however, then concludes that there was not overwhelming evidence of an intent to kill and that the error was not harmless beyond a reasonable doubt under the standards of Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967). Accordingly, it reverses the lower court’s denial of habeas relief, thus requiring a new trial on the issue of guilt. I disagree with this holding. As the majority states, in his confession Brooks admitted that he kidnapped the victim from her home and forced her to drive him to a secluded area where, at gunpoint, he made her disrobe and raped her. When the victim began screaming, Brooks aimed the gun at her and pulled the hammer. According to Brooks, “the gun went off.” He fled, leaving his victim to bleed to death. The majority, relying on language in Davis v. Kemp, 752 F.2d 1515 (1985) (en banc), indicating that the crucial inquiry in determining harmless error in the Sandstrom context is “intent,” concludes that here the evidence of intent is not over *1423 whelming, since at trial Brooks never admitted that he intended to kill. I find this reasoning unpersuasive. Although the Sandstrom instruction related to the murder charge, the jury could not possibly have ignored the evidence that the appellant threatened the victim with a loaded pistol to accomplish the abduction and rape, but that not until she began screaming did he aim the pistol at her and cock it, or “pull the hammer,’’ a preliminary act to firing the weapon. This evidence, although circumstantial and based on Brooks’ confession, nevertheless clearly implies that he pulled the hammer in order to fire the* weapon. The majority insists that I have “presumed intent to kill merely because of the ‘natural and probable consequences’ of Brooks’ acts.” Ante, at p. 1393. On this " point, of course, the majority is correct: “intent,” by its very nature, cannot be proven by direct evidence, unless the defendant expressly states his intent. The constitutional error in this case, however, lies not in the fact that the jury was allowed to presume Brooks’ intent to kill; the Supreme Court has made it clear that permissive presumptions do not violate the Due Process Clause, except where they are patently unreasonable. See Ulster County Court v. Allen, 442 U.S. 140, 157 , 99 S.Ct. 2213, 2224-25 , 60 L.Ed.2d 777 (1979); Francis v. Franklin, — U.S. -, 105 S.Ct. 1965, 1971 , 85 L.Ed.2d 344 (1985). Rather, the error here was that the jury was compelled to presume such intent, ’thus shifting the burden of proof to the defendant. In my opinion, this error was harmless beyond a reasonable doubt because, even absent such an instruction, it would have been impossible for a reasonable jury to have drawn any other inference but that Brooks intended to kill his victim. This case stands in contrast to Francis v. Franklin, — U.S.-, 105 S.Ct. 1965 , 85 L.Ed.2d 344 (1985), in which the Supreme Court affirmed this court’s ruling that a Sandstrom error was not harmless. In Franklin , the defendant admitted that he fired the gun that killed the victim. The defendant testified, however, that the gun “went off” in response to the slamming of a door in the defendant’s face, and that he never intended to fire the weapon. The tangible evidence corroborated the defendant’s claim by establishing that the bullet travelled through the door before killing the victim. In the instant case, as in Franklin , it is undisputed that the defendant fired the gun that killed the victim. All that is missing from Brooks’ confession is the admission that he intended to pull the trigger. Such an explicit admission of intent is unnecessary. Brooks, unlike the defendant in Franklin , never claimed that the gun “went off” in response to a struggle or any other intervening physical event. In fact, Brooks did not even claim that the shooting was an “accident.” Since guns simply do not “go off” by themselves, the only reasonable inference from the evidence is that Brooks did intend to pull the trigger. I have no doubt that the jury would have reached this conclusion with or without the Sandstrom charge. Lamb v. Jernigan, 683 F.2d 1332 (11th Cir.1982), cert. denied, 460 U.S. 1024 , 103 S.Ct. 1276 , 75 L.Ed.2d 496 (1983), also involved a Sandstrom violation in a case of malice murder. There, this court discounted the appellant’s claim of self-defense and found that, although the instruction was burden-shifting, it was harmless in view of the overwhelming evidence of guilt: 1 eleven stab wounds on the victim and no evidence of an assault on the defendant. In my view, the evidence of guilt of malice murder in this case, including intent to kill, is equally as overwhelming as was that in Lamb . Had the trial judge here given a permissive charge, “you may presume,” rather than the unconstitutional mandatory instruction given, I am convinced that the verdict would have been the same. Therefore, the error here meets the *1424 Chapman test that “beyond a reasonable doubt the error complained of did not contribute to the result obtained.” I would affirm the district court’s denial of habeas relief on this ground. Accordingly, I DISSENT from this portion of the majority opinion. II. Prosecutorial Misconduct I join in the dissents of both Judges Clark and Johnson to Section Two of the majority opinion, relating to the prosecutor’s improper closing remarks. . Because in Georgia intent is an essential element of malice murder, evidence of guilt of the charge of malice murder necessarily includes evidence of intent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9473502. Public record. Not legal advice.