Appendix — Clay E. McElroy Warden v. M. W. Holloway

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Office Supreme Court, US.

80-1637 FILED

MAR 12 (98%

NO. ALEXANDER L STEVAS,

NAS

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

CLAY E. McELROY, Warden,

Petitioner,

Vv.

M. W. HOLLOWAY,

Respondent.

AP” ENDIX

Susan V. BotEyn

Assistant Attorney General

Counsel of Record

ARTHUR K. Botton

Attorney General

RosBErt S. Srusss, II

Executive Assistant

Attorney General

Please serve: Don A. LANGHAM

First Assistant

Susan V. BoLEYn

132 State Judicial Bldg. Attorney General

40 Capitol Square, S.W. Joun C. WALDEN

Atlanta, Georgia 30334 Senior Assistant

(404) 636-3397 Attorney General

M. W. HOLLOWAY,

Petitioner- Appellee,

Clay E. McELROY, Warden,

Respondent- Appellant.

No. 79-3325.

United States Court of Appeals, Fifth Circuit.

Dee. 11, 1980.

The United States District Court for the Middle Dis-

trict of Georgia, 474 F.Supp. 1363, granted habeas relief

to petitioner who had been convicted of voluntary man-

slaughter in state court, and the state appealed. The Court

of Appeals, Randall, Circuit Judge, held that: (1) trial

court’s charge which operated to place burden of per-

suasion on petitioner on issue of self-defense violated

petitioner’s due process rights under United States Con-

stitution and was patently not harmless error beyond

reasonable doubt; (2) decision of United States Supreme

Court announcing new standard of review to be applied

by federal courts in evaluating sufficiency of evidence

supporting those state-court convictions challenged under

habeas corpus statute should be applied to convictions

obtained before date of that decision; and (3) evidence

supporting petitioner’s conviction was insufficient.

Affirmed.

1. Habeas Corpus 45.3(6)

To exhaust state-court remedies for purposes of appli-

cation for writ of habeas corpus in federal district court,

petitioner is not required to petition for certiorari from

the United States Supreme Court after either direct or

collateral appeal in state courts. 28 U.S.C.A. § 2254.

2. Habeas Corpus 30(1)

Despite his failure to raise grounds for habeas relief at

trial or to pursue them on direct appeal, petitioner was

entitled to raise asserted errors in trial court’s charge,

particularly in view of Georgia Supreme Court’s holding

that no state procedural ground should be used to bar

petitioner from asserting his arguments on merits of trial

court’s charge. 28 U.S.C.A. § 2254.

3. Habeas Corpus 30(1)

Where jury found petitioner guilty only of crime of

voluntary manslaughter and necessarily found absence

of malice in acquitting him of murder, any error in in-

structions which petitioner alleged shifted burden of

negating malice to petitioner was harmless, and thus, on

application for writ of habeas corpus, that issue was not

properly before federal district. court or Court of Appeals.

Ga.Code, §§ 26-1101, 26-1102; 28 U.S.C.A. § 2254.

4, Criminal Law 20

“General intent’? means intent in the sense that a

person intends consequences of his voluntary physical

actions.

See publication Words and Phrases for other judicial con-

structions and definitions.

5. Criminal Law 20

“Specific criminal intent’”’ refers to state of mind that is

thought culpable.

See publication Words and Phrases for other judicial con-

structions and definitions.

6. Habeas Corpus 30(1)

Where petitioner charged with malice murder ac-

knowlec ged that he had committed the homicide and that

he had done so intentionally, but pleaded self-defense, any

error in jury instructions on presumption of intent was

harmless beyond reasonable doubt, and thus, on applica-

tion for writ of habeas corpus, that issue was not properly

before federal district court or Court of Appeals. Ga.

Code, §§ 26-601, 26-1102; 28 U.S.C.A. § 2254.

7. Constitutional Law 265

There is no denial of due process in allowing a defen-

dant to admit some essential elements of the crime in order

to put justification into issue. U.S.C.A. Const. Amend. 14.

8. Criminal Law 561(1)

No person should be convicted when there remains

reasonable doubt as to truth of any essential element

included in definition of the crime.

9. Criminal Law 778(2)

Despite state’s characterization of issue as being an

“affirmative defense,” state may not place burden of per-

suasion on that issue upon defendant if truth of the

“defense” would necessarily negate essential element of

crime charged.

10. Criminal Law 778(2)

For those affirmative defenses that are not inconsistent

with essential element of crime charged, state may, but

need not under the Constitution, allocate burden of

persuasion to defendant.

11. Homicide 33

Unlawfulness, including absence of self-defense, is an

essential element of voluntary manslaughter as definea by

Georgia Criminal Code. Ga.Code, §§ 26-1101, 26-1102.

12. Constitutional Law 268(11)

In prosecution whicl resulted in conviction of crime of

voluntary manslaughter as defined by Georgia Criminal

Code, trial court’s charge which operated to place burden

of persuasion on petitioner on issue of self-defense vio-

lated petitioner’s due process rights under United States

Constitution and was patently not harmless error beyond

reasonable doubt. Ga.Code, § 26-1102.

13. Courts 107

Denial of certiorari indicates no views on the merits.

14. Courts 100(1)

In reviewing, under federal habeas corpus statute,

sufficiency of evidence supporting state-court convictions,

federal district courts are bound to apply retroactively

standard announced in decision of United States Supreme

Court holding that applicant is entitled to habeas corpus

relief if it is found that upon the record evidence adduced

at trial no rational trier of fact could have found proof of

guilt beyond a reasonable doubt. 28 U.S.C.A. § 2254.

15. Courts 100(1)

Considerations for determining whether new constitu-

tional doctrine should be applied retroactively are: pur-

pose to be served by new standards; extent of reliance by

law enforcement authorities on old standards; and effect

on administration of justice of retroactive application of

new standards.

16. Courts 100(1)

Foremost among factors for determining whether new

constitutional doctrine should be applied retroactively is

purpose to be served by new constitutional rule, and con-

trolling significance will be given to measure of reliance

and impact on administration of justice only when pur-

pose of rule in question does not clearly favor either retro-

activity or prospectivity.

17. Habeas Corpus 85.5(1)

In evaluating sufficiency of evidence supporting state-

court convictions challenged under habeas statute, Court

of Appeals is bound to consider all evidence in light most

favorable to prosecution. 28 U.S.C.A. § 2254.

18. Habeas Corpus 85.5(1)

In view of overwhelming evidence supporting habeas

corpus petitioner’s contention of self-defense evidence of

element of unlawfulness was insufficient to support con-

viction for voluntary manslaughter. Ga.Code, §§ 26-901,

26-902, 26-1102; 28 U.S.C.A. § 2254.

19. Habeas Corpus 85.5(1)

In evaluating sufficiency of evidence supporting state-

court convictions challenged under habeas statute, Court

of Appeals is to consider circumstantial, as well as direct

evidence, and must assume that jury drew all reasonable

inferences from basic facts to ultimate facts. 28 U.S.C.A.

§ 2254. ;

Appeal from the United States District Court for the

Middle District of Georgia.

Before MORGAN, ANDERSON and RANDALL,

Circuit Judges.

RANDALL, Circuit Judge:

On May 1, 1975, a jury in the Crisp County, Georgia,

Superior Court convicted M. W. Holloway of voluntary

manslaughter for the March 18, 1975 shooting of Joe

Crumbley. At trial, Holloway had admitted the shooting,

but had claimed self-defense. He was sentenced to twenty

years. His conviction was affirmed on direct appeal in the

Georgia courts, and the denial of his subsequent petition

for habeas corpus in the state courts was affirmed by the

Georgia Supreme Court. He then petitioned the federal

district court below for a writ of habeas corpus. That court

granted habeas relief, Holloway v. McElroy, 474 F.Supp.

1363 (M.D.Ga.1979), and the State of Georgia brings

this appeal.

We are presented with two questions: First, was the

burden of persuasion on one or more elements of the

crime of voluntary manslaughter impermissibly shifted to

Holloway in violation of his due process rights under the

United States Constitution? Second, should the standard

so recently announced by the United States Supreme

Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781,

61 L.Ed.2d 560 (1979), be applied in determining the

sufficiency of the evidence upon which he was convicted,

and if so, was that evidence insufficient under the Jackson

standard?

For the reasons set out below, and with some qualifica-

tions, we answer these questions in the affirmative. We

therefore affirm the action of the district court below in

granting habeas corpus relief.

I. FACTUAL BACKBROUND LEADING TO THIS

APPEAL

A. The Trial

Holloway was tried on a charge of malice murder, but

was found guilty only of voluntary manslaughter. The

prosecution’s theory at trial was that Holloway deliberate-

ly, intentionally, and maliciously shot Joe Crumbley

while Crumbley was sitting in his pickup truck at Hollo-

way’s father’s farm near Cordele, Georgia; Holloway then,

according to the prosecution’s theory, attempted to alter

the evidence at the scene to make it consistent with a

story of self-defense. Holloway has consistently main-

tained that he shot Crumbley in ligitimate self-defense as

Crumbley came at him with a knife after the two men

had scuftied. The chief evidence to support the State’s

theory was a series of inconsistencies between Holloway’s

version of the events as related at the trial and in inter-

views with police officers immediately after the shooting.

For reasons that will become obvious later in this opinion,

we proceed to sketch the evidence presented by both sides

at Holloway’s trial on April 30-May 1, 1975; additional

detail is provided in the accompanying footnotes.!

1. The prosecution’s case-in-chief.—The prosecution’s

first key witness was Deputy Sheriff Andrew Martin.

Martin testified that he had driven to Holloway’s father’s

farm at about 3:00 p.m. on the day of the shooting to

answer a report of trouble. Holloway led Martin to

Crumbley’s body, which lay just inside the doorway of the

Holloway house. In response to Martin’s questioning,

Holloway explained that the shooting had occurred after

an argument and fight between Crumbley and himself.

Crumbley had started the fight in a drunken rage, and

when Holloway withdrew the house, Crumbley pursued

him with a knife. Holloway claimed that he had been forced

to shoot in self-defense as Crumbley threatened him with

1 To keep a long opinion from becoming even longer, we omit dis-

cussion of some extremely tenuous circumstantial evidence relevant

only to the prosecution’s hypothesis of malice murder—a theory that

the jury rejected in its implied acquittal on that charge. Insofar as

any of this evidence may be peripherally relevant to the voluntary

manslaughter charge, we take account of it in our review of the suffi-

ciency of the evidence generally. See part III of this opinion, infra,

‘«

the knife after following Holloway into the house.? The

physical evidence at the scene was consistent in most

respects with Holloway’s account of the events.* The two

respects in which the physical evidence was inconsistent

with Holloway’s version of events, as told to Martin on

the scene, had to do with the location of Crumbley’s coat

at the time of the shooting and the ownership of a spread

with which the body was covered. Holloway told Martin

that Crumbley had taken off his own hat and jacket early

in the fight. Other evidence at the trial showed that

Crumbley had been wearing the jacket when the fatal

? Baker testified that when he arrived on the scene, M. W. Holloway

was standing in the yard. When he asked Holloway what the prob-

lem was, Holloway replied, ‘I’ve had trouble with this man.’’ Martin

found Crumbley’s body lying face up inside the doorway of the Hol-

loway house, with his feet outside on the porch.

Martin asked Holloway what had happened, and Holloway told

him the following tale: Crumbley had driven up to the house and

asked Holloway if he could get out to look at a tractor in the yard

that he had talked to Holloway’s father about buying; Holloway

told Crumbley he could get out and look. Crumbley got out of his

truck and started toward the tractor, but turned and said to Hollo-

way, “‘You’re the s. o. b. that tried to kill me awhile back at the

river, at the fishpond.”’ Holloway replied, ““No, you are mistaken,

you get back in the truck and leave.’”’ Then Crumbley pushed Hollo-

way, after which Crumbley took off his hat and jacket and laid them

on the porch rail. Crumbley then hit Holloway again, and Holloway

went into the house and got the pistol. Holloway started back out,

and Crumbley ‘‘came on him with a knife,’ at which point Holloway

shot him. Holloway fired two or three times.

3 Martin testified that after Holloway related the story set out above,

Martin examined Crumbley’s body. He found a bullet wound in

Crumbley’s left shoulder and a one-inch cut on Crumbley’s forehead,

with no blood visible around the cut. Dirt and grass were inside the

back of Crumbley’s trousers. Three other witnesses also testified that

there was little or no blood around the forehead cut. One, however,

acknowledged that while the cut was of a type that would probably

have bled if inflicted while Crumbley was alive, it was possible that

the heavy rains that day had washed most of the blood off of the

area around the forehead wound. Martin also testified that he took

into his possession Crumbiey’s jacket, which was lying on the rail of

shot was fired. Crumbley’s body was covered with a spread

when Martin arrived on the scene; there was testimony

that the spread came from Crumbley’s pickup truck

rather than from the Holloway house, as Holloway

claimed.4 Subsequent investigation positively confirmed

that the gun Holloway turned over to Martin had been

the one used in the shooting, and that the shooting had

been the cause of Crumbley’s death.®

the porch; a hunting knife, which he found on the floor just inside

the door of the house; a scabbard, which he found in the yard; and

a .38 caliber revolver containing three spent cartridges, which Hol-

loway produced voluntarily at Martin’s request.

On cross-examination, Martin testified that it had been raining all

day, and that Holloway was muddy when Martin arrived on the

scene. Holloway’s shirt and undershirt were torn open, and his stom-

ach was scratched. Martin found signs of a scuffle outside the house—

particularly, a broken flower pot, part of which was on the porch

and part of which was in the yard. Martin took a blood sample from

the ground near the rear of the pickup truck on the driver’s side;

lab analysis showed that the blood was canine blood, which was con-

sistent with the fact that the Holloways’ dog had a fresh cut on his

foot. Martin admitted that he found no evidence of a struggle or a

shooting in the area of the truck.

‘ Kate Crumbley, the widow of the deceased, identified a spread that

she claimed she and her husband had used to cover the seat of their

pickup truck; she said that when the truck was returned to her after

the shooting, the spread was not in the truck. Suzanne Black, the

Crumbley’s housekeeper, also testified that she had ridden in the

Crumbley pickup on the day before the shooting, at which time the

spread was lying on the pickup’s seat.

Mrs. Crumbley also testified that, to her knowledge, her husband

did not own a hunting knife and was not carrying one when he left

the house on the day of the shooting. She further testified that in

her conversation with Holloway a few days after his father had been

sent to the Central State Hospital in Milledgeville, Georgia, Hollo-

way had threatened to kill anybody who interfered with his father

or his father’s property. Holloway was carrying a gun and a hunting

knife at the time of that conversation, and appeared dangerous; she

further testified that her husband knew that Holloway regularly

carried a gun, but that she never gave the matter a second thought.

5 A microanalyst from the Georgia State Crime Laboratory testified

that laboratory tests he had run on the gun he was given by the police

The other key witness was Georgia Bureau of Investiga-

tion Agent Jim Baker, who described two interviews he

had conducted with Holloway after the shooting.® In the

initial interview, Holloway told a story very similar to

that which he told Martin.? When confronted with a dis-

and on the bullet removed from Crumbley’s body confirmed that the

pistol had been used in the shooting. He also testified that the car-

bon staining and burns on Crumbley’s jacket indicated that the

muzzle of the gun was either pressed against the jacket or no more

than one inch away when the fatal shot was fired. The jury also

heard from Dr. Fred Thompson, who conducted the autopsy on

Crumbley’s body. Dr. Thompson testified that he had determined

from the autopsy that Crumbley died from a gunshot wound to the

left shoulder. The bullet entered Crumbley’s chest, went through the

left lung, the aorta, and the right lung, remaining in the right chest

space.

6 Baker also testified outside the presence of the jury for the purpose

of determining the voluntariness of Holloway’s statements during

interrogation by Baker and the other officers. This issue is not before

us on appeal. We consider only his testimony before the jury, of

course, in reviewing the sufficiency of the evidence.

7 Baker testified that Holloway told him the following story in an

interview on the day of the shooting: Holloway was staying at his

father’s house when Crumbley drove up. Crumbley yelled to Hollo-

way, asking if he could come up to the porch, and Holloway allowed

him to do so. Crumbley said that he had talked to Holloway’s father

about buying a tractor and asked Holloway if he could look at the

tractor. Then Crumbley said to Holloway, ‘‘You’re the s. o. b. that

tried to kill me back in December.’’ Holloway replied, ‘“‘Well, I don’t

know what you mean, what you are talking about.’’ Crumbley said,

“You know what I mean; you tried to kill me at the fishpond last

December,” and Holloway denied having tried to shoot Crumbley.

Crumbley became very angry, and a fight started between the two

men on the back porch. They fell onto the ground and stayed on

the ground just a second, after which Holloway jumped up and ran

into the house. When Crumbley followed him into the house, Hollo-

way saw a knife in his hand. Crumbley grabbed Holloway and reared

back with the knife, and Holloway was afraid he was going to be

cut. At this point Holloway grabbed a gun from a table by the door.

Holloway said that he was on his knees when he fired. He could not

say how many times he fired, but he believed it was more than one

time. He said he fired in an upward position. After Crumbley fell on

his face, Holloway turned the body over, listened for a heartbeat,

crepancy in his story with regard to when Crumbley took

off his jacket, Holloway this time said that Crumbley

took off the jacket as he came into the house. Holloway

told Baker that he had fired from a kneeling position as

Crumbley loomed over him with the knife; he fired several

times. After an autopsy on Crumbley’s body indicated

that the bullet’s trajectory ranged downward at a forty-

five degree angle from the left shoulder into the right

chest space, Baker again questioned Holloway as to the

position for which he fired the shots, and Holloway again

confirmed that he had begun firing while on his knees.®

Though Baker investigated with some care, he could find

no other evidence inconsistent with Holloway’s claim of

self-defense.!?

and then took off Crumbley’s jacket to check for wounds. Then he

got in his car, drove to a store, and called the sheriff’s office.

8 After relating the narration set out above and in footnote 7, supra,

Baker testified that he hadn’t really gone into any detail with Hollo-

wa: at that first interview on the day of the shooting. But when

Baker confronted Holloway with his earlier statement that Crumbley

took off his own jacket, Holloway thought for a moment and then

said that Crumbley took his jacket off when he came into the house.

He told Baker that he did not see the knife until Crumbley started

to come into the house.

® At this interview, according to Baker’s testimony, Holloway gave

the same story up until the point when the two men began wrestling

on the ground. This time, Holloway said that they exchanged blows,

which he had not mentioned in the interview on the previous day.

Baker asked again about the jacket, and Holloway said that after

Crumbley came in and after they had fought some more, Crumbley

took off the jacket. Holloway said that Crumbley had the knife in

his right hand and had grabbed Holloway with his left hand, when

Holloway reached over for the gun and shot Crumbley. Baker asked

Holloway to demonstrate the exact positions that they had been in;

Holloway demonstrated by getting on his knees, with Baker’s left

hand on Holloway’s shirt and his right hand holding the knife above

Holloway. Holloway was looking up from. his knees when he got the

gun and began firing. ™

10 Baker testified that he had tried to determine the ownership of

the hunting knife, but had had no success. He had nothing to link

2. The defendant’s case-in-chief. —The defense primarily

relied upon M. W. Holloway’s own testimony.!! Hollo-

way contended that Crumbley had started a fight with

it to either Holloway or Crumbley, nor to anyone else, but he had

never tried to check the knife for fingerprints. He also testified that

when he had visited the house on April 9, 1975, with Sheriff Benson,

the district attorney, Holloway’s lawyer, and Holloway, he found the

spread lying inside the door on the floor. On cross-examination, Baker

was unable to confirm or deny whether in an adjoining bedroom,

there was nothing on the bed except a wrinkled electric blanket. He

testified that he had often found that witnesses who have no reason

to lie often tell widely conflicting versions of the same episode. He

agreed that while he, as a trained man, might remember clearly the

details of a traumatic episode, that is not the “normal routine” for

“rank and file people’ who have no special training.

Baker also testified that he had ordered the ballistics tests run to

confirm that the gun given to Deputy Martin by Holloway was the

gun used in the shooting. He had found no evidence indicating that

the shooting had taken place in or near the truck. He also testified

that he had sent to the state crime lab « box containing a “hair

sample” that had been removed from a hammer found in the truck;

lab tests indicated that the sample was plant material, rather than

hair. The crime lab’s analysis of a blood sample from Crumbley’s

body indicated that Crumbley had had a blood alcohol content of

.12% at the time of his death. Finally, Baker confirmed having found

evidence of a scuffle around the porch area.

1 On direct examination, Holloway gave the following explanation

of the prelude to the fight: On March 18, 1975, he was living in his

father’s house, looking out for his father’s property. He was expect-

ing a visit from an insurance adjuster, and when he heard someone

drive up, he stopped reading his newspaper and went to see who it

was. He saw someone get out of a pickup truck. The driver of the

truck staggered, slammed the door of the truck, and began walking

toward the house. Holloway testified that at this time, he did not

recognize Crumbley, since he had only seen Crumbley twice before

in his life. Crumbley reached a tree about 15 to 20 feet from the

porch. He stopped there and looked toward the tool shed at the Hol-

loways’ dog, who was barking. Holloway stood at the window watch-

ing Crumbley for about a minute, and then walked to the door. When

Crumbley saw Holloway, Crumbley walked through the rain to the

porch.

The two men chatted about the tractor for a moment, and then

Crumbley turned to Holloway and said, “You tried to shoot me not

long ago down at the fishpond.”’ Holloway replied, “‘Did I?’ Crumb-

him after cursing him and accusing him of trying to shoot

Crumbley in a previous incident that involved Crumbley’s

unauthorized fishing at a pond on the Holloway prop-

erty.!2 After the men fought in the yard outside the Hollo-

way house for a while, Holloway broke free and retreated

to the house. But Crumbley followed him, brandishing a

hunting knife 183 and ignoring Holloway’s warnings.

Holloway was forced to shoot to save his own life.!4 After

the shooting, he covered Crumbley’s body with a spread

ley said, ‘“‘Yes,” and asked, ‘Do you carry a gun all the time?”

Holloway replied that he did not, that he only carried a gun when

he left the house. Holloway asked, ‘“‘Did you come out here to see

about the tractor or did you come out here to see about the episode

that happened at the fishpond?’’ Crumbley didn’t answer this ques-

tion, but asked if Holloway had a gun on him at that moment, and

Holloway answered that he did not.

12 In explaining the fishpond incident, Holloway testified that he had

been asked by his broth«i James to see if someone was fishing with-

out permission at night. He walked toward the pond with his rifle,

yelling a warning that he was going to start shooting if he didn’t

get an answer from whoever was fishing at the pond. He then found

his nephew, Wilburn Musslewhite, fishing along with Musslewhite’s

brother-in-law. The men argued a moment, and then Holloway turned

to the water, raised his gun, and emptied it into the water. Someone

began shouting at the far end of the pond, and Musslewhite said,

“That’s Uncle Joe, that’s Uncle Joe.’”’ Holloway turned and went

back to the house, where he watched as the intruders left. Holloway

said that while Musslewhite had permission to fish at the pond, he

was supposed to ask Holloway’s permission to fish at night.

13 Holloway testified that at first he couldn’t tell what Crumbley had

in his hand as Crumbley was entering the house, but that he could

tell it was a knife when Crumbley reached down to push aside a

rocking chair that Holloway had thrown in his path.

14 According to Holloway’s testimony, after he told Crumbley that he

was not carrying a gun, Crumbley grabbed him and pushed his back

over the banister of the porch, trying to bend his back over the

banister. Holloway testified that his back would not bend because he

has no hipjoint. Holloway struck Crumbley, knocking him off, and

they fell down inside the porch rail and began wrestling. Crumbley

hit Holloway a couple of times, and Holloway kicked Crumbley in the

that he claimed belonged to him; he then summoned the

head and tried to get loose. Holloway finally went down the steps,

catching Crumbley by the leg and dragging him down after Hollo-

way. They were then on the ground wrestling and exchanging blows

for “maybe a minute or longer, I don’t know exactly how long.”

Holloway got loose and ran back up on the porch.

When Holloway reached the porch, Crumbley grabbed him by the

belt and they began wrestling again. They again fell off the porch,

and began rolling through the mud and water on the ground while

hitting each other. At one point while Holloway was on the ground,

Crumbley grabbed him by the legs and held them up in the air;

Holloway yelled, ‘“That is my crippled leg,’’ to which Crumbley

replied, ‘‘I’ll pull it off and beat your brains out with it.’’ Holloway

called for the family dog, and when the dog ran up, Crumbley kicked

and slapped at it. Holloway kicked Crumbley against the side of the

house, and then pulled him back into a puddle of water while calling

for the dog; but the dog wouldn’t bite. Holloway shoved Crumbley

against the ground and went back up the steps into the house. When

he got inside the door, he turned to see Crumbley coming up the

steps.

There was a platform rocker just inside the door, and Holloway

threw it in front of the door and said, “Joe, don’t come in this house.”’

He saw that Crumbley had something in his hand. Holloway turned

to a table next to the door, and picked up with his left hand the .38

caliber revolver that was lying there under a pair of pajamas. He

turned back to the door to find that Crumbley had shoved the chair

out of the way and was coming through the door. Holloway could

plainly see the knife in Crumbley’s right hand. He reached up and

caught Crumbley’s wrist, but Crumbley turned the knife toward

Holloway’s stomach. Holloway hit Crumbley in the stomach as hard

as he could and tried to push Crumbley back out the door, but his

foot slipped and he went down on one knee. Crumbley was standing

just inside the door threatening Holloway with the knife. Holloway

pointed the gun in Crumbley’s direction and pulled the trigger. The

gun was so close that the powder burned Holloway’s eye. He didn’t

recall how many times he shot, but when he began shooting, he

jerked down Crumbley’s right hand. He felt Crumbley jerk, relax,

and pull away from him. Crumbley staggered back to the doorway,

where he dropped the knife, knelt down on his knees, and then fell

over on his face.

As a result of their scuffle, Holloway had been cut on his chest with

the point of the knife, and his shirt and undershirt were torn open.

There were cuts on his stomach and chest and blood around his shirt

and undershirt; photographs were introduced to document these

assertions.

police.!®

When asked at trial to explain his prior inconsistent

statements to the police officers regarding the jacket, he

said that he didn’t remember much about the jacket —

only that he had taken it off Crumbley after the shooting.

Holloway flatly denied that he had gotten the spread out

of Crumbley’s truck, or that he had ever plotted to kill

Crumbley. He testified that he did not know Crumbley

well enough to recognize him on sight, and that he only

recognized Crumbley when Crumbley accused him of

trying to shoot Crumbley at the fishpond. When asked

why he had shot Crumbley, Holloway replied as follows:

I shot Mr. Crumbley because Mr. Crumbley was trying

to kill me with this knife, trying to stick me with this

knife. I was trying to protect my life; I was trying to

get him off me and the only way I could get him off me

was with that. I tried to push him back; I tried to get

him to leave two or three times.

15 Holloway testified that immediately after the shots were fired, he

watched Crumbley for a moment, and then tried to see if there was

anything he could do for Crumbley. He turned Crumbley over and

pulled off his jacket. He pulled up Crumbley’s shirt, and rolled

Crumbley over and looked at his back, and then at his face. Holloway

didn’t notice a gunshot wound or blood anywhere on the body. He

felt for a pulse and listened for a heartbeat, and also put his ear to

Crumbley’s mouth to see if he could detect breathing. Crumbley’s

breath smelled stale. At this point, according to Holloway’s testi-

mony, he got sick to his stomach from looking at the body and had

the dry heaves. He walked into another room and got a spread off a

bed on which he had been sleeping. He testified that he previously

had found the spread “in some stuff that Daddy had, and I put it

over this electric blanket because the blanket wouldn’t work unless

I had something over it, and that was the bed that I slept on.”’

Evidently, he covered Crumbley’s body with the spread. Then, he

drove to a nearby store and telephoned the sheriff’s office. He then

drove back to the house and waited on the porch until Deputy Sheriff

Martin arrived. When he saw Martin drive up, he stepped into the

yard and waived Martin over.

He testified further that he was physically unable to put

up much of a fight because of a physical disability having

to do with his hip joint. He denied having changed around

any of the physical evidence on the scene, and said that

he never went out to Crumbley’s truck at all. When asked

to account for the inconsistencies between his testimony

at trial and the statements he had given the police officers

after the event, Holloway replied that he had been very

upset and sick on the day of the shooting. He said that he

did not deny that he might have made some inconsistent

statements to the police about the jacket, but said that

he was telling the story at trial as he remembered it.

When asked to explain the path of the fatel bullet, the

following exchange took place between the district at-

torney and Holloway:

Q. Well, can you explain to the Jury in any manner

that you see fit, how Joe Crumbley could have been

shot in the left shoulder and the bullet take a down-

ward trajectory with you on your knees and him

over you?

A. The last shot I fired at Mr. Crumbley, I was up.

Q. Oh, now you remember that you |

A. I said that I was coming up and I had the gun

pointed this way, the way I said it was done, in this

direction, like this, and when I came up, Mr. Crumb-

ley jerked, I felt him when he jerked back.

(Ellipsis in original.) Unfortunately, the court reporter

did not indicate Holloway’s descriptive gestures in the

transcript.

The defense rested, and its motion for a directed verdict

of acquittal was denied. Both sides made closing argu-

ments and the jury was charged.!® During their delibera-

16 See part II-A of this opinion, infra.

tions, the jury asked the court what the various sentences

were for the different offenses as to which they had been

instructed, but the court declined to answer that ques-

tion. After deliberating for over three hours, the jury

returned a verdict of guilty of voluntary manslaughter.

Thus, they impliedly acquitted Holloway of the greater

charge of malice murder and rejected his sole defense of

self-defense. The court then sentenced Holloway to the

maximum allowable sentence for voluntary manslaughter

under Georgia law, twenty years.

B. Holloway’s Direct Appeal in the Georgia Courts

Following his conviction, Holloway appealed to the

Georgia Court of Appeals. He urged that the trial court

had erred in limiting the scope of questioning during the

voir dire examination of the jury venire, and in failing to

excuse some potential jurors who were challenged for

cause. The court of appeals, however, sustained the trial

judge’s action in limiting the questioning, holding that

there was no abuse of discretion because some of the

questions were overbroad; further, Holloway had not used

all of his peremptory strikes, and hence could not com-

plain of having to take any particular juror. Holloway »v.

State, 137 Ga.App. 124, 125(1-4), 222) S.E.2d 898, 899-90

(1975). Holloway also contended that the evidence was

insufficient to support a conviction of voluntary man-

slaughter. Six judges —a majority of the court of appeals —

disagreed, pointing to the discrepancies in Holloway’s

testimony about the bullet’s path and the jacket:

The evidence amply warranted a verdict of guilty of

manslaughter; and further authorized the jury to dis-

believe defendant’s testimony because of being con-

tradicted by prior contradictory statements about

when and who took the jacket off the deceased and as

to whether the shots ranged downward or upward.

Id. at 126(5-6), 222 S.E.2d at 900.

Presiding Judge Braswell Deen, however, wrote a

strong dissent that was joined in by two of the other

judges. Judge Deen first reviewed the evidence presented

at the trial, and concluded:

The inconsistencies in the appellant’s statements con-

cerning the dead man’s coat, the location of the spread

and the position of the deceased when he was shot go to

his credibility and the jury was within its prerogative

to disbelieve him on these points and to find that the

coat was being worn at the time of death, that the

spread came from the truck and that the appellant was

not on his knees when the shot was fired; however, to

sustain a conviction of manslaughter there must have

been evidence to authorize the jury to find that the

appellant shot the deceased, not under circumstances

where there was actual or apparent necessity to do so

to save his own life, but in hot blood engendered by the

deceased’s conduct toward him.

Id. at 129, 222 S.E.2d at 902 (Deen, P. J., dissenting).

Judge Deen determined that the only theory on which the

state could argue that voluntary manslaughter was proved

was cne of mutual combat —7.e., that both men were at

fault and willing to fight because of a sudden quarrel —

but found this theory, and the theory that Holloway was

not acting in self-defense, unpersuasive:

It is true that the only evidence produced by the ap-

pellant to show that the homicide was perpetrated in

self-defense was his own statement and testimony and

that there was expert testimony that the decedent

could not have been shot in the manner alleged. This

does not however disprove that the shot was fired in

self-defense; it merely is some evidence that the appel-

lant was not in the position he claimed when the shot

was fired. By the same token the state relied exclusively

on the statement and testimony of the appellant to

show an essential element of the crime of manslaughter

(here mutual combat), and where no other evidence is

produced to show such element, the evidence does not

authorize a verdict of guilty.

Id. (citing Georgia cases). He also noted that the State

had the burden of proving that Holloway acted in the

heat of sudden passion, and asked the majority this

question:

Where is the evidence to show that the deceased was

killed in any manner other than in self-defense? There

is none. The contradictions in the appellant’: story in

no way disprove his explanation that the shot was fired

in self-defense. To my mind the fact that a defendant’s

story may prove to be contradicted does not remove the

state’s burden to show at least some evidence of “hot

blood.” The fact that the defendant’s explanation may

be contradicted in some respects does not obviate the

necessity for proof of the commission of a crime in

order to sustain a conviction. Here the only evidence

which could possibly be contrary to the appellant’s

statement was the coat, the sheet and the bullet’s

trajectory. ...

It is a woeful day when the state seeks a conviction

of murder on such scant evidence. It is an even sadder

day when a jury returns a verdict of guilty of man-

slaughter based upon so little evidence. But it is per-

haps the most regretful day of all when an appellate

court gives judicial sanction to such a result.

Td. at 132-133, 222 S.E.2d at 903-04 (emphasis in original).

But despite Judge Deen’s dissent, the Georgia Supreme

Court denied Holloway’s application for a writ of certio-

rari.

C. Holloway’s Habeas Corpus Proceedings in the State

Courts

After the Georgia Supreme Court denied Holloway’s

application for certiorari, Holloway filed an application

for a writ of habeas corpus in the United States District

Court for the Middle District of Georgia, Americus

Division. On June 16, 1977, however, this application

was dismissed without prejudice by the district court

because Holloway had failed to exhaust his state-court

remedies, as required by 28 U.S.C. § 2254(b) (1976). The

court suggested sua sponte that the charge given by the

trial court was ‘“‘notably suspect under the principles of

Mullaney v. Wilbur,” 421 U.S. 684, 95 S.Ct. 1881, 44

L.Ed.2d 508 (1975), and suggested that the issues con-

cerning the trial court’s charge be presented to the state

courts.

[1] Holloway then petitioned the Superior Court of

Baldwin County, Georgia, for habeas corpus relief. That

court denied relief, and the Georgia Supreme Court

granted a certificate of probable cause to appeal. On

appeal, the Georgia Supreme Court affirmed the denial of

Holloway’s state-court habeas corpus petition in a three-

paragraph opinion, which is reproduced below.!7 The

17 The Georgia Supreme Court’s opinion reads in full:

We granted Holloway’s application to review the denial of his

habeas corpus petition in order to consider a “burden-shifting”’

charge on justification. Holloway was indicted for murder, but was

convicted of voluntary manslaughter. The Court of Appeals

affirmed. 137 Ga.App. 124, 222 8.E.2d 898 (1975). His defense at

trial was self-defense. The charge now attacked was neither object-

ed to at trial nor enumerated as error on appeal. Two issues are

presented here: (1) Has the question been waived by the failure to

raise it on direct appeal, and (2) if not, did the charge place an un-

constitutional burden of proof on the defendant? We answer both

questions in the negative and affirm.

1. The state urges that since Holloway did not raise the burden-

shifting issue on his appeal, he has waived the right to raise it on

court first held that despite Holloway’s failure to raise

the burden-shifting issues in his direct appeal or at trial,

he did not waive the right to attack the charge on this

ground in his state habeas corpus proceeding because the

issue involved law developed after his trial.48 Holloway v.

McElroy, 241 Ga. 400(1), 245 S.E.2d 658, 659 (1978). On

the merits of the petition, the court concluded that be-

cause Holloway had no burden of proving anything until

the State had “shown to a moral and reasonable cer-

tainty and beyond reasonable doubt that the defendant

is the intentional slayer,” it was permissible to place upon

habeas corpus. See, e.g., Shoemaker v. Whitlock, 226 Ga. 771, 177

S.E.2d 677 (1970). However, Holloway’s trial occurred on May 1,

1975, prior to our decision in State v. Moore, 237 Ga. 269, 227

S.B.2d 241 (1976), where we held that this court in the future

would not approve burden-shifting charges. Holloway’s trial was .

also prior to Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44

L.Ed.2d 508 (1975), which the Supreme Court, in Hankerson v.

North Carolina, 432 U.S. 233, 97 8.Ct. 2339, 53 L.Ed.2d 306 (1977),

held was fully retroactive. Since the issue involves law developed

after Holloway’s trial, we do not consider the issue waived and

reach its merits. See generally Parrish v. Hopper, 238 Ga. 468, 233

S.E.2d 161 (1977) (Hall, J., concurring specially).

2. The charges on justification complained of by Holloway are

clearly not erroneous. Patterson v. New York, 432 U.S. 197, 97

S.Ct. 2319, 53 L.Ed.2d 281 (1977); Chandle v. State, 230 Ga. 574,

198 8.E.2d 289 (1973). The trial court charged that the defendant

had no burden of proving anything until the state has “shown to a

moral and reasonable certainty and beyend a reasonable doubt

that the defendant is the intentional slayer . . .”’ The burden placed

on the defendant to execuse the homicide is an affirmative defense.

Code Ann. § 26-907. The defendant is not required to negate any of

the elements of the crime which the state must prove to convict.

Under Patterson, supra, where the defendant is required to carry

the burden of persuasion of an affirmative defense, there is no denial

of due process. The habeas trial court correctly denied Holloway’s

petition.

241 Ga. 400, 401, 245 S.E.2d 658, 659 (1978) (footnotes omitted ;

ellipsis in original),

18 See text accompanying notes 22 & 23 infra.

Holloway the burden of persuasion as to justification,

citing Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319,

53 L.Ed.2d 281 (1977). 241 Ga. at 401(2), 245 S.E.2d at

659. Holloway apparently did not petition for certiorari

from the United States Supreme Court after either his

direct or collateral appeal in the state courts, but this is

not required to exhaust state-court remedies. See County

Court of Ulster County v. Allen, 442 U.S. 140, 149 n.7,

99 S.Ct. 2213, 2220 n.7, 60 L.Ed.2d 777 (1979).

D. Habeas Proceedings in the Federal District Court

After the Georgia Supreme Court affirmed the state

court’s denial of Holloway’s petition for a writ of habeas

corpus, Holloway brought this action in the federal district

court below. The State conceded that Holloway had

properly exhausted his state-court remedies, and both

parties agreed that there was no need for an evidentiary

hearing to supplement the record from the trial.

The court below granted habeas corpus relief in a

thoughtful, comprehensive opinion. Holloway v. McElroy,

474 F.Supp. 1863 (M.D.Ga.1979). The court first ad-

dressed the sufficiency of the evidence supporting the

conviction. It began by noting that Jackson v. Virginia,

443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979),

established a new standard of review for federal courts to

use in evaluating the sufficiency of the evidence support-

ing a state-court conviction: “Instead of determining

whether or not here is ‘any evidence’ to support peti-

tioner’s conviction, the court must now go further and

satisy itself that the evidence in the record could reason-

ably support a finding of guilt beyond a reasonable

doubt.’ 474 F.Supp. at 1364-65. The court then cited the

reasoning of Judge Deen’s dissent from the Georgia

Court of Appeals’ decision.!9 The court also noted that

the prosecution’s evidence revealed that Crumbley had a

blood alcohol content of 0.12% at the time of his death,

while 0.10% gives rise to a statutory presumption under

Georgia law 29 that a person was under the influence of

aleohol; the court cited this as evidence supporting

Holloway’s contention that Crumbley began the fight.

The court held:

In this court’s considered judgment this conviction for

manslaughter was not supported by evidence that

would rationally lead to the conclusion of guilt beyond

a reasonable doubt. It must[,] therefore, be set aside.

Id. at 13865 (footnote omitted). The court noted by way of+

footnote that the double jeopardy clause would preclude

Holloway’s retrial since the conviction was being set aside

for insufficiency of evidence. Jd. at 1365 n.1 (citing Burks

v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1

(1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57

L.Ed.2d 15 (1978).

The court continued to a discussion of the trial court’s

charge. It found the charge to be constitutionally defec-

tive on three related bases. First, it held that the trial

court erred in instructing the jury that Holloway was

presumed under Georgia law to intend the consequences

of his acts for purposes of establishing that the shooting

was intentional. 474 F.Supp. at 1366-67. According to the

19 Indeed, the district court specifically incorporated that dissent into

its own opinion and republished it in full as an appendix thereto. See,

474 F.Supp. at 1365, 1370-73.

20 Ga.Code Ann. § 68A-902.1(b)(3) (1980). We note, however, that

this statutory presumption has to do with driving while intoxicated.

In our evaluation of the sufficiency of the evidence, see infra part

III-B, we of course consider the evidence as to the percentage of

alcohol in Crumbley’s blood; we do not, however, rely on this statu-

tory presumption.

district court, this unconstitutionally relieved the prose-

cution of its burden of proving an essential element of the

crime-intent. It based this conclusion on the Supreme

Court’s recent decision in Sandstrom v. Montana, 442

U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

Second, the court held that the trial court erred in

instructing the jury that the law presumed every inten-

tional homicide to be malicious until the defendant had

established the contrary to the jury’s satisfaction. 474

F.Supp. at 1367-69. In the court’s view, this instruction

impermissibly shifted onto the defendant the burden of

persuasion on malice—which was yet another essential

element of the offense—and hence the instruction was

unconstitutional under In re Winship, 397 U.S. 358, 90

S.Ct. 1068, 25 L.Ed.2d 368 (1970); Mullaney v. Wilbur,

421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); Pat-

terson v. New York, 482 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d

281 (1977); and Sandstrom, supra.

Third, the court held that the trial court’s instruction

impermissibly placed upon Holloway the burden of per-

suasion on self-defense. 474 F.Supp. at 1869-70. The court

reasoned that under Georgia law, “‘unlawfulness” was an

essential element of both murder and manslaughter, but

that self-defense and unlawfulness were mutually ex-

clusive propositions:

“{T]o require the defendant to prove self-defense —

(lawfulness) —would relieve the prosecution from prov-

ing an essential element of the crime charged —(un-

lawfulness).”’

474 F.Supp. at 1369 (quoting Porter v. Leeke, 457 F.Supp.

2538, 255 (D.S.C.1978)). The court concluded that under

Georgia law, “the absence of self-defense is an element of

the crime which the prosecution must [prove] beyond a

reasonable doubt.” 2! Jd. Hence, because the charge re-

quired Holloway to establish his defense of self-defense by

a preponderance of the evidence, it unconstitutionally

shifted to Holloway an essential element of the prose-

cution’s case.

Finally, the court determined that these erroneous in-

structions were not harmless error beyond a reasonable

doubt, citing Chapman v. California, 386 U.S. 18, 87

S.Ct. 824, 17 L.Ed.2d 705 (1967). 474 F.Supp. at 1370.

The court ordered the State to release Holloway immedi-

ately after the judgment became final by virtue of either

the State’s failure to appeal, or by affirmance upon

appeal. The court offered to entertain a motion for bail

pending appeal, and counsel for Holloway informed this

court at oral argument that Holloway is now free on bail

pending our decision.

E. Summary of the Issues Before This Court on Appeal

[2] In summarizing the issues with which we are now

presented, perhaps it is best to start by listing "he issues

that are not properly before us. First, there is no question

but that Holloway is entitled to raise as grounds for

habeas relief the asserted errors in the trial court’s charge,

despite his failure to raise those issues at trial or pursue

21 Both the original manuscript of the district court’s opinion and the

reported version in the Federal Supplement use the word ‘disprove’

in place of our bracketed ‘“‘prove”’ in the quote above. It is absolutely

clear from the context, however, that the district court intenced to

say that the prosecution must prove the absence of self-defense--7.e.,

disprove the presence of self-defense—beyond a reasonable doubv. It

would be nonsense to say that the State must always disprove che

absence of —1.e., prove the presence of —self-defense. No party hos

urged such a bizarre construction, and we construe the districi

court’s language as having the meaning expressed in our modified

quotation above.

them on direct appeal. Any doubt that we might other-

wise have as to whether Holloway was barred by a state-

law contemporaneous objection rule or some other inde-

pendent and adequate state-law procedural ground, see

Wainwright v. Sykes, 483 U.S. 72, 97 S.Ct. 2497, 53

L.Ed.2d 594 (1977), has been resolved for us by the

highest authority on Georgia’s procedural law, the Geor-

gia Supreme Court. That court specifically held as a

predicate to affirming the denial of Holloway’s state-

court habeas petition that, in view of the rapid changes

in the law wrought by the United States Supreme Court

since Holloway’s trial in 1975, no state procedural ground

should be used to bar Holloway from asserting his argu-

ments on the merits of the trial court’s charge. Holloway

v. McElroy, 241 Ga. 400(1), 245 S.E.2d 658, 659 (1978).22

“(I]f neither the state legislature nor the state courts

indicate that a federal constitutional claim is barred by

some state procedural rule, a federal court implies no

disrespect for the State by entertaining the claim.”

County Court of Ulster County v. Allen, 442 U.S. 140, 154,

99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979) .(footnote

omitted). We therefore need not decide the question of

whether the facts of this case would otherwise bring it

within the ‘‘cause” and ‘‘prejudice’”’ exceptions to the

rule of Wainwright v. Sykes.?8

22 See note 17 supra & accompanying text.

23 Cf, Tyler v. Phelps, 622 F.2d 172, 176-78 (5th Cir. 1980) (counsel’s

lack of knowledge that trial court’s burden-shifting charge violated

due process constitutes adequate ‘cause’ within the meaning of

Sykes); Berrier v. Egeler, 583 F.2d 515 (6th Cir.), cert. denied, 439

U.S. 955, 99 S.Ct. 354, 58 L.Ed.2d 347 (1978) (magnitude of error

under Michigan law when burden on self-defense impermissibly

placed on defendant rose to level of plain error; thus no Sykes bar on

habeas). But see Cole v. Stevenson, 620 F.2d 1055 (4th Cir. 1980) (find-

ing Sykes bar). See also Hankerson v. North Carolina, 432 U.S. 233,

244 n.8, 97 S.Ct. 2339, 2345 n.8, 53 L.Ed.2d 306 (1977) (suggesting

[3] Next, we agree with the State that another issue

was not properly before the district court, and is not be-

fore us on appeal. One stated ground for the district

court’s decision was that the trial court’s instructions as

to the presumption of malice had relieved the prosecution

of its obligation to prove beyond reasonable doubt every

essential element of the crime of murder. Had the jury

found Holloway guilty of malice murder, the trial court’s

instructions on malice would certainly have been relevant.

But the jury found Holloway guilty only of the crime of

voluntary manslaughter. As the district court pointed

out, 474 F.Supp. 1369 n.4, and as we will discuss in more

detail later in this opinion,?4 voluntary manslaughter is

defined as being a homicide that would be murder but for

the lack of malice; voluntary manslaughter requires

instead that the defendant must have acted “‘solely as the

result of a sudden, violent, and irresistible passion result-

ing from serious provocation sufficient to excite such

passion in a reasonable person,” rather than with malice.

Ga.Code Ann. § 26-1102 (1978). The jury necessarily

found an absence of malice when it impliedly acquitted

Holloway of murder but convicted him of voluntary

manslaughter. Thus, even if the trial court’s instructions

operated to shift the burden of negating malice to Hollo-

way, the jury found that he satisfactorily met that

burden; Holloway is now in no position to complain of

this portion of the charge, since it did not ultimately

that States can insulate past convictions from burden-shifting allega-

tions via contemporaneous objection rule). See generally Project,

Ninth Annual Review of Criminal Procedure: United States Supreme

Court and Courts of Appeal 1978-1979, 68 Geo.L.J. 279, 636-37 (1979).

For an excellent discussion of constitutional jurisprudence in this

area, and the relationship between Mullaney/Patterson and Sykes, see

Cole v. Stevenson, 620 F.2d 1055, 1063-74 (4th Cir. 1980) (Murnaghan,

J., dissenting).

24 See parts II-B & 11-C of this opinion, infra.

work to his detriment. Any error was harmless beyond a

reasonable doubt. See Chapman v. California, 386 U.S. 18,

87 8.Ct. 824, 17 L.Ed.2d 705 (1967); Wynn v. Mahoney,

600 F.2d 448, 450 (4th Cir.), cert. denied, 444 U.S. 950,

100 8.Ct. 4238, 62 L.Ed.2d 320 (1979). Insofar as the

district court’s decision was based on alleged errors in the

portion of the trial court’s charge that dealt with the pre-

sumption of malice, that portion of its opinion must be

regarded as no more than dictum. We are not to be con-

strued as intimating any views whatsoever as to whether

that dictum would have been a correct statement or

application of the law had the facts of the case properly

presented that issue to the district court.2°

[4-7] The same may be said, though for different

reasons, for the portion of the district court’s opinion that

dealt with the trial court’s instruction on the presumption

of intent. General intent 26 is an essential element of all

crimes under Georgia law (except those involving crimi-

nal negligence), see Ga.Code Ann. § 26-601 (1978), but

Holloway has never contended that his shooting of

Crumbley was unintentional-7. e., that he did not intend

the natural and probable consequences of his act. Com-

pare Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450,

61 L.Ed.2d 39 (1979) (holding unconsitutional a pre-

sumption of intent where defendant claimed shooting was

not knowing or purposeful because of personality disorder

25 Compare Mason v. Balkcom, 487 F.Supp. 554 (M.D.Ga.), appeal

docketed, No. 80-7344 (5th Cir. 1980).

26 By “general intent’? we mean intent in the sense that a person

intends the consequences of his voluntary physical actions—e. g., an

‘intentional’ shooting in self-defense. The contrasting term is

“specific criminal intent,’ which refers to a state of mind that is

thought culpable—e. g., premeditation as part of murder, or ‘“‘hot

blood” as part of manslaughter.

aggravated by alcohol; jury could reasonably have

thought presumption was conclusive or placed burden of

persuasion on defendant —either of which would violated

due process). Holloway acknowledged that he had com-

mitted the homicide, and that he had done so inten-

tionally. By pleading only self-defense, he voluntarily

focused the entire determination of his criminal culpa-

bility on a single question—was the homicide justified?

There is no denial of due process in allowing a defendant

to admit some essential elements of the crime in order to

put justification into issue.27 We are convinced that any

error in the jury instructions on the intent issue was

harmless beyond reasonable doubt. Chapman v. California,

supra. Thus, insofar as the district court’s decision was

based on alleged errors in the portion of the trial court’s

charge that dealt with the presumption of intent, that

portion of the district court’s opinion must be regarded as

dictum. We intimate no view as to the correctness of the

district court’s dictum were it to be applied in an appro-

priate case.

Thus, we have remaining before us two questions: First,

could the State require Holloway to establish his self-

defense claim by preponderance of the evidence? Second,

was there sufficient evidence to support Holloway’s

conviction?

To answer the first question, we must determine the

essential components of the crime of voluntary man-.

slaughter under Georgia’s substantive criminal law

27 We are not confronted with, and express no opinion as to, the

question of whether a State could, consistent with the Constitution,

require that a defendant admit general intent in order to assert a

claim of self-defense. Because Holloway voluntarily asserted that the

shooting was intentional, that issue is not before us.

Particularly, we must determine whether the absence of

self-defense is an essential element of the crime, at least

in those instances in which the issue is properly raised. If

it is, then the State violated Holloway’s due process rights

by placing upon him the burden of persuasion on the self-

defense issue, and Holloway is entitled at the least to a

new trial, in which the burden of persuasion on this issue

would be placed upon the prosecution. We urdertake this

analysis in part II of this opinion.

But even if we hold that the State violated Holloway’s

due process rights in placing upon him the burden of per-

suasion on the self-defense issue, we must still address the

question of the sufficiency of the evidence. Holloway

seeks not just his release from prison, but freedom from

retrial. He contends not just that this jury made its

determination under an erroneous charge, but that no

jury when properly charged could have found him guilty

of every necessary element of the offense from the record

evidence adduced at trial. To determine whether he is

entitled to the full measure of relief he seeks, we must

review the sufficiency of the evidence upon which he was

convicted, for were we to find that evidence insufficient,

Holloway would thereafter be entitled to assert the double

jeopardy clause as a bar to his retrial for this killing. As a

predicate to our review of the sufficiency of the evidence,

we must decide whether the standard of review set out in

Jackson v. Virginia is the appropriate one for this court

to use.28 We deal with the sufficiency of the evidence issue,

28 Though we would gladly avoid making unnecessary constitutional

decisions, we cannot avoid answering both questions merely by ad-

dressing the sufficiency of the evidence question first. Obviously,

before we can determine whether there is sufficient evidence on each

essential element of the crime, we must decide exactly what elements

the State must prove in order to obtain a constitutionally valid

conviction.

including the proper standard of review, in part III of

this opinion.

Il. THE BURDEN OF PERSUASION ON THE ISSUE

OF SELF-DEFENSE

A. The Trial Court’s Charge on Self-Defense

Early in its charge, the trial court instructed the jury

as to the definition of malice murder under section 26-

1101 of the Georgia Criminal Code. It then went on to

charge as to the crime of voluntary manslaughter, and

the differences between that crime and malice murder:

the latter crime requires either express or implied malice,

while voluntary manslaughter requires that the killer

have acted solely from a sudden, violent, and irresistable

passion resulting from serious provocation sufficient to

excite such passion in a reasonable person. The trial court

then charged on justification —specifically, through de-

fense of one’s person or habitat. After defining the cir-

cumstances in which justification would exist, the trial

court charged the jury that it should acquit if it found

that Holloway was justified under one or more of the

principles of justification given. In setting out the cir-

cumstances in which an intentional homicide should not

be found to be malicious, the trial court charged:

I charge you further that the law presumes every

intentional homicide to be malicious until the contrary

appears from circumstances of alleviation, of justifica-

tion, of mitigation, or excuse, and the burden is on the

slayer whenever an intentinal homicide has been proved

to make out such circumstances to the satisfaction of the

Jury unless they appear from the evidence produced

against him.

Almost immediately thereafter, it charged as to the

burden of persuasion on the self-defense issue:

I charge you that when a killing is proved to be the

intentional act of the defendant, the presumption of

innocence with which he enters upon the trial is removed

from him and the burden is upon him to justify or miti-

gate the homicide unless the evidence introduced against

him shows justification or mitigation or excuse, but as

I have charged you heretofore, the evidence in justifi-

cation or mitigation or excuse may be found in the

evidence introduced against him. If there be no evi-

dence introduced to show justification or excuse, and if

the evidence introduced shows the homicide com-

mitted as charged in the Indictment, the burden would

then be upon the defendant to show justification or mitiga-

tion or excuse.

Transcript at 253-54 (emphasis added).?9

The district court found that even though the charge

never explicitly allocated the burden of persuasion on the

self-defense issue, the charge as a whole operated to put

the burden of proof on self-defense on Holloway. 474

F.Supp. at 1369-70. This was also the construction given

the charge by the Georgia Supreme Court, see, Holloway

v. McElroy, 241 Ga. 400, 401(2), 245 S.E.2d 658, 659

(1978). We note that because voluntary manslaughter

was defined in terms of circumstances that would other-

wise be murder but for the substitution of ‘‘hot blood”’

for malice, a reasonable juror could well have believed

that the burden was on the defendant to make out to the

jury’s “satisfaction” any circumstances of justification,

mitigation, or excuse on the manslaughter charge, too.

When combined with the other language quoted above —

29 The charge is set out in somewhat more detail in the district court’s

opinion, 474 F.Supp. at 1365-66.

which abolishes the presumption of innocence once an

intentional killing is shown, and requires the defendant to

carry the “burden” on justification, mitigation, or excuse

(without distinguishing between burdens of production

and persuasion) —this inference would be even more

compelling. After considering the entire charge, in addi-

tion to that particularly relevant portion set out above,

we agree with the district court that a reasonable juror

could well have believed from the charge as given that

the burden was on Holloway to establish, by something

approximating a preponderance of the evidence, that the

killing was in self-defense. Thus, once an intentional kill-

ing was shown —as it was in this case by Holloway’s own

testimony —a reasonable juror could have believed that

his duty was to convict even if it was exactly as likely as

not that the killing had been in self-defense. Whether the

resulting conviction would be for malice murder or volun-

tary manslaughter would depend on whether Holloway

had established to the jury’s satisfaction that the killing

was not done with malice, but instead with ‘‘hot blood.”

The State does not seriously contend otherwise, but

instead insists that this allocation of the burden of per-

suasion is constitutionally permissible and in accord with

Georgia law at the time of the trial. Whether the State is

correct in this assertion depends upon the relationship be-

tween self-defense and the unlawfulness requirement in

Georgia’s definition of the crime of voluntary man-

slaughter. Our analysis of this relationship must be per-

formed within the framework established in recent

Supreme Court decisions that construe the requirements

binding upon the States under the due process clause.

B. The Framework for Constitutional Analysis of the

States’ Definition of Crimes and Allocation of Burdens

of Persuasion

1. Inre Winship. —In invalidating a New York statute

that allowed the State to convict juveniles of crimes upon

proof by a preponderance of the evidence, the Supreme

Court explicitly held for the first time in In re Winship,

397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368

(1970), that ‘the Due Process Clause protects the accused

against conviction except upon proof beyond a reasonable

doubt of every fact necessary to constitute the crime with

which he is charged.”’ The Court emphasized that the

long-established adherence to this standard in common-

law jurisdictions reflected ‘‘a profound judgment about

the way in which law should be enforced and justice ad-

ministered.” Jd. at 361-62, 90 S.Ct. at 1071 (quoting

Duncan v. Louisiana, 391 U.S. 145, 155, 88 S.Ct. 1444,

1450, 20 L.Ed.2d 491 (1968)). The Court noted that many

of its previous opinions had assumed that the “beyond

reasonable doubt” standard was required by the Consti-

tution, id. 397 U.S. at 362-63, 90 S.Ct. at 1071-72, and

noted that “{t]he standard provides concrete substance

for the presumption of innocence—that bedrock ‘axio-

matic and elementary’ principle whose ‘enforce cnt lies

at the foundation of the administration of the criminal

law.’ ” Id. at 363, 90 S.Ct. at 1072 (quoting Coffin v.

United States, 156 U.S. 482, 458, 15 S.Ct. 394, 402, 39

L.Ed. 481 (1895)). Among the ‘‘cogent reasons’’ support-

ing the standard’s vital role, said the Court, are its value

in reducing the margin of error through which innocent

persons might be wrongly convicted, and in fostering the

respect and confidence of the community in the integrity

of the criminal justice system. Jd. 397 U.S. at 363-64,

90 8.Ct. 1072-73.

A bare two years later, the Supreme Court held in Jvan

V. v. City of New York, 407 U.S. 208, 205, 92 8.Ct. 1951,

1952, 32 L.Ed.2d 659 (1972) (per curiam), that the rule

announced in Winship was to be given ‘‘complete retro-

active effect.”’

2. Mullaney v. Wilbur. —The Supreme Court was called

upon in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881,

44 L.Ed.2d 508 (1975), to determine whether Wilbur’s

murder conviction in a Maine state court was in violation

in his Winship rights because the burden of proving that

he acted in “heat of passion’? was placed upon him.

Wilbur contended at trial that he had lacked the requisite

criminal intent to be convicted of murder, or alternately

that the killing could be no more than manslaughter since

it occurred in the heat of passion provoked by the victim’s

homosexual assault. The trial court instructed the jury

that, under Maine law, the crimes of murder and man-

slaughter shared the common elements of intent and un-

lawfulness (lack of excuse or justification). The Jury was

instructed that once the prosecution had proven these

elements beyond a reasonable doubt, malice afore-

thought —the additional element necessary to establish

the crime of murder—was to be conclusively implied

unless the defendant proved by a fair preponderance of the

evidence that he acted in the heat of passion on sudden

provocation, in which case a conviction for manslaughter

would be authorized. The trial court emphasized that

malice aforethought and heat of passion were two funda-

mentally inconsistent things, and that by proving the

latter the defendant would negate the former and reduce

the homicide from murder to manslaughter. ;

The Supreme Court first noted that it was bound by the

construction given by state courts to their states’ laws

except in extreme circumstances that were not present in

that case. Jd. at 691, 95 S.Ct. at 1886. The Court cap-

sulized Maine’s law of homicide as follows:

Absent justification or excuse, ali intentional or crimi-

nally reckless killings are felonious homicides. Felonious

homicide is punishable as murder —1. e., by life imprison-

ment—unless the defendant proves by a fair pre-

ponderance of the evidence that it was committed in

the heat of passion on sudden provocation, in which

case it is punished as manslaughter... .

Id. at 691-92, 95 S.Ct. at 1886. The Court noted that,

while at common law the burden of proving heat of

passion rested on the defendant, the large majority of

states had come to require the prosecution to prove be-

yond reasonable doubt the absence of heat of passion.

Id. at 693-96, 95 S.Ct. at 1886-88.

The Court refused the State’s invitation to limit Win-

ship to those facts that, if proved, would wholly exonerate

the defendant:

Maine has chosen to distinguish those who kill in the

heat of passion from those who kill in the absence of

this factor. ... By drawing this distinction, while refus-

ing to require the prosecution to establish beyond a

reasonable doubt the fact upon which it turns, Maine

denigrates the interests found critical in Winship.

Id. at 698, 95 S.Ct. at 1889. The Court noted that Win-

ship had been concerned with substance rather than form,

and pointed out:

Not only are the interests underlying Winship im-

plicated to a greater degree in this case, but in one

respect the protection afforded those interests is less

here. In Winship the ultimate burden of persuasion

remained with the prosecution, although the standard

had been reduced to proof by a fair preponderance of

the evidence. In this case, by contrast, the State has

affirmatively shifted the burden of proof to the de-

fendant. The result, in a case such as this one where the

defendant is required to prove the critical fact in

dispute, is to increase further the likelihood of an

erroneous murder conviction.

Id. at 700-01, 95 S.Ct. at 1890-91. In addressing the

practical consequences of its holding, the Court noted

that Maine itself required the prosecution to prove beyond

reasonable doubt the absence of self-defense; the Court

therefore could “discern no unique hardship on the prose-

cution that would justify requiring the defendant to

carry the burden of proving a fact so critical to criminal

culpability.” Id. at 702, 95 S.Ct. at 1891. The Court con-

cluded by noting that “[uJnder this burden of proof a

defendant can be given a life sentence when the evidence

indicates that it is as likely as not that he deserves a

significantly lesser sentence [under Maine law].”’ Jd. at

703, 95 S.Ct. at 1892 (emphasis in original). For the sum

of these reasons, the Court concluded that Wilbur’s con-

viction could not stand.

In 1977, the Court held that the rule announced in

Mullaney necessarily must be given retroactive effect:

Ivan V. [v. City of New York, 407 U.S. 203, 92 S.Ct. 1951,

32 L.Ed.2d 659 (1972),] controls this case. In Mullaney

v. Wilbur, as in In re Winship, the Court held that due

process requires the States in some circumstances to

apply the reasonable doubt standard rather than some

lesser standard under which an accused would more

easily lose his liberty. In Mullaney, as in Winship, the

rule was designed to diminish the probability that an

innocent person would be convicted and thus to over-

come an aspect of a criminal trial that ‘substantially

impairs the truth-finding function.”

Hankerson v. North Carolina, 432 U.S. 233, 242, 97 S.Ct.

2339, 2344, 53 L.Ed.2d 306 (1977). The Court ended its

opinion, however, with this observation: “Since the issue

of whether due process requires the prosecution to dis-

prove self-defense beyond a reasonable doubt under North

Carolina law was not raised by either party in this case, we

decline to consider it now.”’ Jd. at 245, 97 S.Ct. at 2346.

3. Patterson v. New York. —New York’s statutory defi-

nition of second-degree murder differed somewhat from

the homicide law reviewed by the Court in Mullaney.

Malice aforethought was not an element of the New York

version of the crime; indeed, there was no requirement of

premeditation whatsoever. Instead, all that was required

was for the prosecution to prove that there was an inten-

tional killing. That done, the State allowed a defendant

to raise and prove as an affirmative defense that he acted

‘under the influence of extreme emotional disturbance for

which there was a reasonable explanation of excuse.’ The

Court upheld a conviction under this statute in Patterson

v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281

(1977), while insisting that it was not overruling Mul-

laney. Indeed, Patterson was announced on the very day

that the Court declared Mullaney to be retroactive in the

Hankerson case.

The Patterson Court began by noting:

[I]t is normally ‘‘within the power of the State to regu-

late procedures under which its laws are carried out,

including the burden of producing evidence and the

burden of persuasion,” and its decision in this regard is

not subject to proscription under the Due Process

Clause unless “‘it offends some principle of justice so

rooted in the traditions and conscience of our people as

to be ranked as fundamental.”

Id. at 201-02, 97 S.Ct. at 2322-23 (citing Speiser v. Randall,

357 U.S. 518, 523, 78 S.Ct. 1332, 1341, 2 L.Ed.2d 1460

(1958) ; Leland v. Oregon, 343 U.S. 790, 798, 72 S.Ct. 1002,

1007, 96 L.Ed. 1302 (1952); and Snyder v. Massachusetts,

291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934)).

The Court then described its holding in Leland v. Oregon,

supra, which found no due process violation in an Oregon

rule that insanity must be proved beyond a reasonable

doubt by the defendant. The Patterson Court declined to

reconsider Leland’s vitality. Id., 432 U.S. at 207, 97 S.Ct.

at 2325. Applying a strict procedural due process analysis,

the Court held:

We cannot conclude that Patterson’s conviction

under the New York law deprived him of due process

of law. The crime of murder is defined by the statute,

which represents a recent revision of the criminal code,

as causing the death of another person with intent to

do so. The death, the intent to kill, and causation are the

facts that the State is required to prove beyond a reasonable

doubt if a person is to be convicted of murder. No further

facts are either presumed or inferred in order to con-

stitute the crime. The statute does provide an affirm-

ative defense—that the defendant acted under the

influence of extreme emotional disturbance for which

there was a reasonable explanation—which, if proved

by a preponderance of the evidence, would reduce the

crime to manslaughter, an offense defined in a separate

section of the statute. [¢t is plain enough that if the inten-

tional killing is shown, the State intends to deal with the

defendant as a murderer unless he demonstrates the miti-

gating circumstances.

Id. at 205-06, 97 S.Ct. at 2324-25 (emphasis added). The

Court did not believe that this offended any of the sub-

stantive fairness requirements of the due process clause:

though New York’s placement of the burden of persuasion

on the defendant enhanced the probability that a person

legitimately entitled to the mitigation of punishment

would be penalized unfairly,

[djue process does not require that every conceivable

step be taken, at whatever cost, to eliminate the possi-

bility of convicting an innocent person... .

[I]n each instance of a murder conviction under the

present law, New York will have proved beyond a

reasonable doubt that the defendant has intentionally

killed another person, an act which it is not disputed

the State may constitutionally criminalize and punish.

If the State nevertheless chooses to recognize a factor

that mitigates the degree of criminality or punishment,

we think the State may assure itself that the fact has

been established with reasonable certainty. To recog-

nize at all a mitigating circumstance does not require

the State to prove its nonexistence in each case in which

the fact is put in issue, if in its judgment this would be

too cumbersome, too expensive, and too inaccurate.

Id. at 208-09, 97 S.Ct. at 2326 (footnote omitted). The

Court summarized its holding as follows:

We thus decline to adopt as a constitutional impera-

tive, operative country-wide, that a State must disprove

beyond a reasonable doubt every fact constituting any

and all affirmative defenses related to the culpability

of an accused. Traditionally, due process has required

that only the most basic procedural safeguards be

observed; more subtle balancing of society’s interests

against those of the accused have been left to the

legislative branch. We therefore will not disturb the

balance struck in previous cases holding that the Due

Process Clause requires the prosecution to prove beyond a

reasonable doubt all of the elements included in the defini-

tion of the offense of which the defendant is charged. Proof

of the nonexistence of all affirmative defenses has never

been constitutionally required; and we perceive no

reason to fashion such a rule in this case and apply it

to the statutory defense at issue here.

This view may seem to permit state legislatures to

reallocate burdens of proof by labeling as affirmative

defenses at least some elements of the crimes now de-

fined in their statutes. But there are obviously consti-

tutional limits beyond which the States may not go in

this regard.

Id. at 210, 97 S.Ct. at 2327 (emphasis added). The Court

did not, however, attempt to define very precisely where

those limits would be drawn. By way of obvious example

rooted in the Court’s prior precedent, it noted that the

legislatures of the States cannot declare an individual

guilty or presumptively guilty of a crime, and neither

can they command that the finding of an indictment, or

mere proof of the identity of the accused, should create a

presumption of all the facts essential to guilt. /d. (citing

cases) .2°

The Court next went to considerable lengths to distin-

guish Mullaney. ‘‘Mullaney surely held that a State must

prove every ingredient of an offense beyond a reasonable

doubt, and that it may not shift the burden of proof to

the defendant by presuming that ingredient upon proof of

the other elements of the offense.” Jd. at 215, 97 S.Ct. at

2329. But the Court rejected a broader reading. The key

distinction between the two cases, said the Court, was in

the way the States defined the crimes:

Premeditation was not within [Maine’s] definition of

murder; but malice, in the sense of the absence of prov-

ocation, was part of the definition of that crime. Yet

malice, 7. e., lack of provocation, was presumed and

could be rebutted by the defendant only by proving

that he acted with heat of passion upon sudden provo-

cation. In Mullaney we held that however traditional

this mode of proceeding might have been, it is contrary

to the Due Process Clause as construed in Winship.

80 See part II-B-4 of this opinion, infra; see also note 49 infra &

accompanying text.

As we have explained, nothing was presumed or im-

plied against Patterson; and his conviction is not

invalid under any of our prior cases.

Id. at 215-16, 97 S.Ct. at 2329-30.

[8] 4. Where the States are left after Winship, Mullaney,

and Patterson.—These three recent Supreme Court cases

indicate that, in applying the due process clause to the

States’ definition of criminal offenses and allocation of

burdens of persuasion, there are both procedural fairness

and substantive fairness components to the analysis.

Winship makes clear that the States are bound by some

of the deeply ingrained traditions of substantive fairness

from our common-law heritage; one central substantive

value is that no person should be convicted when there

remains a reasonable doubt as to the truth of any of the

essential elements included in the definition of the crime.

To protect this particular substantive value, the Winship

Court confirmed the constitutional necessity of a strict

rule of procedural due process: the Constitution requires

that the burden be placed upon the prosecution to prove

beyond reasonable doubt every element (or ultimate

fact) included in the definition of a crime. There are

certainly other such substantive values protected by the

Constitution: ‘““A normative principle for protecting the

‘innocent’ must take into account not only the certainty

with which facts are established but also the selection of

facts to be proved.” Jeffries & Stephan, Defenses, Pre-

sumptions, and Burden of Proof in the Criminal Law,

88 Yale L.J. 1325, 1347 (1979).

[9] The States, however, are not completely proscribed

from modifying through their legislatures and courts

their criminal laws to reflect changing notions and policies:

They may, within substantive fairness limits whose

boundaries are not yet precisely marked, redefine the

elements of their criminal offenses. In so doing, they may

wish to reallocate burdens of persuasion on those issues

that they remove from the definition of the crime, thereby

converting those issues from elements into matters of

mitigation or enhancement. Yet the States must also

adhere tightly to procedural due process requirements in

order to protect adequately the substantive values with

which they may not tamper—such as the rule that con-

viction may be had only when the essential elements in-

cluded in the definition of the crime have been established

to a high degree of accuracy. Mullaney and Patterson both

articulate one variation on the procedural due process re-

quirement that the Winship Court found necessary to

protect this particular substantive value: despite a State’s

characterization of an issue as being an ‘“‘affirmative de-

fense,” the State may not place the burden of persuasion

on that issue upon the defendant if the truth of the

“defense” would necessarily negate an essential element

of the crime charged.

Furthermore, Mullaney and Patterson indicate that the

federal courts will take a functional approach in deter-

mining what elements comprise a given crime under the

State’s law. In Mullaney, for example, the Court pierced

the Maine Supreme Court’s categorization of its law as

providing for a unitary crime of felonious homicide that

did not require a showing of specific criminal intent to

convict. As the Patterson Court reminded us in discussing

the Maine statute that was at issue in Mullaney, though

Maine claimed that malice was not an essential element

in this crime of felonious homicide, malice in the sense of a

lack of provocation was the sole difference between two

very different degrees of punishment; this being true, the

prosecution could not rely on a presumption to establish

this essential lack of provocation merely because the other

elements of the crime had been established.

In determining whether a State has met these demands

of procedural due process, the federal courts must satisfy

themselves that a State’s characterization of its laws does

not, by refusing to address logical inconsistencies, func-

tionally operate to place the burden of persuasion on an

essential element upon the defendant. At bottom, a

unanimous Court in Mullaney was not persuaded that

Maine really intended to punish all intentional killers

equally, giving no regard to the degree of their specific

criminal intent until each given defendant tried to estab-

lish his lesser culpability because of a less blameworthy

degree of specific criminal intent. In Patterson, however, a

majority 31 of the Court was persuaded that this was

exactly what New York intended to do: “‘It is plain enough

that if the intentional killing is shown, [New York] intends

to deal with the defendant as a murderer unless he demon-

strates the mitigating circumstances.”’ Patterson, 432 U.S.

at 206, 97 S.Ct. at 2325 (emphasis added).

Implicating as it does complex considerations of

federalism and substantive fairness, this functional

analysis of the elements of States’ crimes requires close

calls. Though the proper balance in applying this func-

tional analysis is difficult to achieve, the framework

within which that analysis is to be applied is consistent

with our Nation’s traditions of federalism, while still

31 Justice White’s majority opinion was joined in by Chief Justice

Burger and Justices Stewart, Blackmun, and Stevens. Justice Powell,

who wrote for a unanimous Court in Mullaney, led Justices Brennan

and Marshall in dissent. Justice Rehnquist did not participate in

Patterson.

‘

protecting adequately important values of substantive

fairness to individual defendants.

As we noted above, it is true that within substantive

fairness limits which have not yet been clearly charted,

the States may in good faith modify their criminal laws.

Winship clearly establishes one particular limit on the

States’ power to allocate burdens of persuasion: once the

States have defined their crimes, the burden must be

placed on the prosecution to persuade the factfinder that

every element of the crime has been proved beyond

reasonable doubt. Beyond this, however, Mullaney and

Patterson do not tell us the location of any substantive

limits on the States’ powers to define their crimes or

allocate burdens of persuasion thereunder, but instead tell

us only where those limits are not.

The Patterson Court was confronted with the argument

that Mullaney established a new substantive rule, to the

effect that it would be unconstitutional in all cireum-

stances —as a substantive matter —to place upon a defen-

dant the burden of persuasion on the issue of whether the

killing was the result of provocation.3? But the Patterson

Court refused to read Mullaney as having announced such

a substantive rule. After Patterson, Mullaney can only be

82 Indeed, the argument was phrased even more broadly than this:

Mullaney’s holding, it is argued, is that the State may not

permit the blameworthiness of an act or the severity of punish-

ment authorized for its commission to depend on the presence

or absence of an identified fact without assuming the burden of

proving the presence or absence of that fact, as the case may

be, beyond a reasonable doubt. In our view, the Mullaney hold-

ing should not be so broadly read.

Patterson, 432 U.S. at 214-215, 97 S.Ct. at 2329. The Patterson Court

also put to rest the arguments of some commentators that Mullaney

required the prosecution to prove beyond a reasonable doubt any

fact affecting the degree of criminal culpability. Jd. at 214 n.15, 97

S.Ct. 2329 n.15.

read as a case in which the Supreme Court did not believe

that the State’s procedures afforded adequate regard for

the substantive value that prompted the procedural rule

announced in Winship: Once the Mullaney Court had

determined that malice (lack of provocation) was an

essential element of the crime of murder under Maine

law, it was led to conclude that forcing the defendant to

carry the burden of persuasion on that issue violated pro-

cedural due process, for it made all too likely a defendant’s

conviction when there was still a reasonable doubt about

the truth of an essential element of the crime. Thus,

Patterson reads Mullaney as being no more than a pro-

cedural due process case that protects an established

substantive value.*8

3% The Mullaney doctrine, as re-read by the Paiterson Court, may rep-

resent the outer limits of the rational use of procedural due process

to promote substantive justice. Our notions of substantive fairness

have only limited correlation to the allocation of burdens of per-

suasion :

It would be unconscionable, as Justice Powell suggests [in his

dissent in Patterson], to base liability for murder on proof of

“mere physical contact’? between defendant and deceased. And

Professor Underwood is undoubtably correct in objecting to the

imposition of major felony sanctions following proof of a “trivial

assault.”? [Underwood, The Thumb on the Scales of Justice: Bur-

dens of Persuasion in Criminal Cases, 86 Yale L.J. 1229, 1324

(1977).] Both hypotheticals depict an enormous disparity be-

tween the penalties authorized by law and any proven basis for

subjecting an individual citizen to censure and punishment. We

are all outraged if penal liability is imposed without any element

of blameworthiness or if sanctions bear no proportional relation-

ship to the seriousness of the crime.

The trouble lies in the unspoken assumption that excessive

punishment is somehow a product of shifting the burden of proof.

In fact, use of a burden-shifting defense or presumption does not

necessarily result in excessive punishment, nor does excessive

punishment necessarily involve reallocation of the burden of

proof. Thus, to forbid burden-shifting devices in order to reduce

disparity between proven fault and authorized penalties is a non

sequitur. In point of fact, a constitutional stricture against shift-

ing the burden of proof would not prevent the injustice of un-

Having re-read Mullaney in this manner, the Patterson

warranted or disproportionate criminal punishment. It would

withdraw from legislative choice certain procedural options, but

it ‘ould not address the real evil of substantive disproportionality

in the assignment of criminal penalties.

Jeffries & Stephan, supra, 88 Yale L.J. at 1357-58 (emphasis in orig-

inal). That part of Mullaney which survives Patterson —1. e., the rule

that a State may not place upon the defendant the burden of per-

suasion on an issue that, if established, would necessarily negate an

element of the crime—promotes one substantive value recognized in

Winship in that it decreases the margin of error within which indi-

vidual elements of a crime might erroneously be found to exist. But

a broader reading of Mullaney would not address the real but differ-

ent evils that are postulated in the “horror stories” of Justice Powell

and Professor Underwood.

Various commentators have criticized the Patterson Court for adopt-

ing a mechanical rule that exalts form over substance in analyzing

state law. To some extent, this criticism is unfair. It fails to take

into account that Patterson left intact the functional analysis applied

by the Mullaney Court. Under that analysis, the federal courts are

not bound to accept blindly a State’s characterization of its own law.

Instead, they look to see if the truth of an “affirmative defense’ is

logically inconsistent with the truth of an essential element of the

crime, as the crime’s elements are defined by the State. This means

that the federal courts are not constrained by principles of federalism

to ignore glaring non sequiturs in a State’s characterization of its

substantive criminal law.

Yet to a considerable extent, the Mullaney doctrine, as it survives

after Patterson, is fairly mechanical in its application. The Mullaney

doctrine is one of procedural due process. The substantive value that

it protects is that same value which prompted the Winship rule—z. e.,

it offends our notions of fundamental fairness and is inconsistent with

our shared conception of “innocence” to allow conviction when the

trier of fact retains a reasonable doubt as to the truth of any element

of the crime. The reason that the essential elements of the crime are

deserving of such great emphasis is that the polity, through its legis-

latures and courts, has determined those ultimate facts to be the sine

qua non of criminal culpability; punishment is unjust unless at least

those facts have been established, and therefore the degree of accu-

racy with which those facts are established is one component of sub-

stantive justice. The procedural rules of Winship and Mullaney pro-

tect that substantive value by reducing the margin of error within

which the trier of fact must operate. But this is all that we can ask

of procedural rules—7. e., that they improve accuracy by reducing

margins of error. If a mechanical application of these procedural rules

cannot bring about complete substantive justice, that does not mean

Court was able to assume *4 that there was no substantive

violation in convicting of murder a defendant who, as

likely as not, was acting under extreme emotional distur-

bance. That assumption made, the only remaining task

was to see if New York afforded adequate procedural

respect to the substantive value that the Winship Court

sought to protect. Once the Patterson Court determined

that the absence of extreme emotional disturbance was

not an essential element of the crime, it was led to con-

clude that New York’s procedural practice was constitu-

tional: the truth of the defense did not necessarily negate

any element of the crime. The prosecution was still being

required to prove every essential element of the crime, and

there was no violation of fundamental fairness in inflicting

this punishment upon proof of only those elements. The

particular substantive value that prompted Winship —

i. e., the requirement that the essential elements of the

crime be established with a high degree of accuracy before

a conviction could be obtained—was therefore not

offended, or even implicated, by placing the burden of

persuasion on the extreme emotional disturbance issue

on the defendant.

that there is some flaw in the procedural rules themselves, or that

they should be applied more vigorously or creatively. It means in-

stead that there are components of substantive justice other than the

accuracy with which the trier of fact reaches its conclusions. To ad-

dress the “horror stories’? postulated by Professor Underwood and

others, we must look to analogs—not derivatives— of the substantive

value that prompted Winship and Mullaney. Procedural rules, such

as those having to do with required degrees of persuasion and those

allocating the risk of nonpersuasion, are ill-suited to the task of pro-

tecting those analogous values.

34 “(T]n each instance of a murder conviction under the present law,

New York will have proved beyond a reasonable doubt that the de-

fendant has intentionally killed another person, an act which it is not

disputed the State may constitutionally criminalize and punish.’ Pat-

terson, 432 U.S. at 209, 97 S.Ct. at 2326 (emphasis added).

Bs.

But Patterson leaves open the possibility that there are

substantive fairness values in addition to the one that

prompted the procedural rule of Winship. For example, a

plausible argument could be made that it would violate

other substantive values if a State refused to recognize the

doctrine of self-defense, either as a matter in mitigation

that was not inconsistent with any element of the crime,

or as a matter whose absence was an essential element of

the crime. The Supreme Court has not reached the ques-

tion of whether such a practice would run afoul of sub-

stantive fairness guarantees in the Constitution regard-

less of how the State’s law was structured, and neither

need we.?®

35 Because we announce no new substantive limit on the States’

powers, we need not join the debate as to the proper constitutional

peg from which such a substantive rule would be hung. Some com-

mentators, such as Jeffries & Stephan, see note 33, supra, have looked

to an eighth amendment proportionality analysis. But cf. Rummel v.

Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) (appli-

cation of Texas habitual criminal statute did not result in dispro-

portionate punishment), and cases discussed therein. Justice Powell,

in his dissent in Patterson, suggests that these limits may be found

jn the due process clause.

Whatever the precise limits that may constrain the States, how-

ever, it is clear that they have substantial freedom in defining their

crimes and allocating burdens of persuasion thereunder. States may

establish various excuses and justifications as conditions for total or

partial exoneration from criminal liability. They may, within the

limits of substantive fairness imposed by the Constitution, take a

number of different approaches in defining the elements of their

crimes. They may wish to establish certain “strict liability” crimes,

as for example when they wish to shift by fines an economic burden

to the particular portion of the public that is responsible for a public

danger; for these crimes, they may wish to limit sharply the number

of excuses or justifications available to the defendant. Or, they may

take a middle ground for other crimes, as did the State of New York

with its murder statute, by offering exoneration in whole or part to

defendants who can prove an excuse or justification that is not log-

ically inconsistent with an essentia! element of the crime. Or, for

certain crimes the States may take the opposite extreme from strict

liability by incorporating as an essential element of the crime the

But, as Mullaney makes clear, the federal courts in

guarding the federal constitutional rights of state-court

defandants invoking their protection, will employ a

functional analysis in determining whether the State has

truly excluded the absence of the excuse or justification

from the definition of the crime, as in Patterson, or has

actually and functionally incorporated it as an essential

element of the crime, as in Mullaney. The adjustment

must truly be made in the elements necessary to con-

stitute the crime; merely labeling an issue as an “affirm-

ative defense” in mitigation or exoneration does not, as

Mullaney makes clear, end the analysis.

C. The Absence of Self-Defense as an Element of Voluntary

Manslaughter Under Georgia Law

1. The Georgia Statutes. —Naturally enough, we must

begin our determination of the essential elements of the

crime of voluntary manslaughter under Georgia law with

the pronouncements of the Georgia Legislature. Voluntary

manslaughter is defined in the statutes by reference to the

crime of malice murder. Malice murder is defined as

follows:

A person commits murder when he unlawfully and

with malice aforethought, either express or implied,

causes the death of another human being. Express malice

is that deliberate intention unlawiully to take away the

life of a fellow creature, which is manifested by external

circumstances capable of proof. Malice shall be implied

where no considerable provocation appears, and where

all the circumstances of the killing show an abandoned

and malignant heart.

absence of one or more excuses or justifications. Under Winship, as

interpreted by Mullaney, this requires the prosecution to prove beyond

reasonable doubt the absence of the particular excuse or justification.

—_

Ga.Code Ann. § 26-1101(a) (1978) (emphasis added).%6

Thus, on the simplest level of analysis—an independent

exercise in statutory construction —murder would appear

to have three elements. First, the defendant must cause

the death of another human being. But this homicide is

not murder unless there are two other elements: the killing

must be unlawful, and it must be with malice aforethought.

It is, of course, possible that a defendant’s acts may give

rise to other sorts of criminal liability even though both

elements in addition to the killing are not present; but

without a combination of homicide, unlawfulness, and

malice, there can be no murder.

Voluntary manslaughter, in turn, is defined as follows:

A person commits voluntary manslaughter when he

causes the death of another human being, under circum-

stances which would otherwise be murder, if he acts solely

as the result of a sudden, violent, and irresistible passion

resulting from serious provocation sufficient to excite such

passion in a reasonable person; however, if there should

have been an interval between the provocation and the

killing sufficient for the voice of reason and humanity

to be heard, of which the jury in all cases shall be the

judge, the killing shall be attributed to deliberate

revenge and be punished as murder. A person convicted

of voluntary manslaughter shall be punished by im-

prisonment for not less than one nor more than 20

years.

36 The remainder of § 26-1101 relates to the definition of the crime

of felony murder, and the common punishment provision for malice

and felony murder:

(b) A person also commits the crime of murder when in the

commission of a felony he causes the .eath of another human

being, irrespective of malice.

or by imprisonment for life.

Ga.Code Ann. § 26-1101 (1978).

Ga.Code Ann. § 26-1102 (1978) (emphasis added).*7 The

crimes of voluntary manslaughter and malice murder

thus require the identical causation element when the

statutes speak of “caus[ing] the death of another human

being.”’ But the voluntary manslaughter definition also

incorporates part of the murder statute by reference: the

killing must be “under circumstances which would other-

wise be murder.” The difference from murder is that the

act must be ‘“‘solely as the result of a sudden, violent, and

irresistible passion resulting from serious provocation

sufficient to excite such passion in a reasonable person,”

rather than being the result of malice. This ‘‘hot blood”

requirement, as it is sometimes called, is inconsistent with

malice. Because of the “under circumstances which

would otherwise be murder” language, the requirement

of unlawfulness is imported into the definition of man-

slaughter from the definition of murder.

Self-defense is specifically addressed in chapter 26-9

of the Georgia statutes. Ga.Code Ann. § 26-901 (1978)

provides: ‘‘The fact that a person’s conduct is justified

is a defense to prosecution for any crime based on that

conduct.” 88 Section 26-901(a) then refers to section

26-902, which in turn specifies the circumstances in which

self-defense is justified.29 Section 26-903 contains anal-

87 There is a separate statutory provision defining involuntary man-

slaughter, Ga.Code Ann. § 26-1103 (1978).

38 Other justifications besides self-defense include defense of habita-

tion or property; entrapment; coercion; performance of lawful duties;

reasonable discipline by parents of their minor children; and “all in-

stances which stand upon the same footing of reason and justice as

those enumerated in this Chapter.’’ See Ga.Code Aan. § 26-901(a)-(f)

(1978).

39 Defense of person is defined as follows:

(a) A person is justified in threatening or using force against

another when and to the extent that he reasonably believes that

ogous provisions regarding defense of habitat.4%

Section 26-907 puts a gloss on these statutory require-

ments for the use of justification as a defense: ‘‘A defense

based upon any of the provisions of this Chapter is an

affirmative defense.’’ Ga.Code Ann. § 26-907 (1978). The

notes from the committee responsible for revising the

Georgia Criminal Code in 1968 make only this cryptic

such threat or force is necessary to defend himself or a third

person against such other’s imminent use of unlawful force; how-

ever, a person is justified in using force which is intended or

likely to cause death or great bodily harm only if he reasonably

believes that such force is necessary to prevent death or great

bodily injury to himself or a third person, or the commission of

a forcible felony.

(b) A person is not justified in using force under the circum-

stances specified in paragraph (a) of this section if he: (1) ini-

tially provokes the use of force against himself with the intent

to use such force as an excuse to inflict bodily harm upon the

assailant; or (2) is attempting to commit, committing, or fleeing

after the commission or attempted commission of a felony; or

(3) was the aggressor or was engaged in a combat by agreement,

unless he withdraws from the encounter and effectively com-

municates to such other person his intent to do so and the other

notwithstanding continues or threatens to continue the use of

unlawful force.

Ga.Code Ann. § 26-902 (1978).

“ Defense of habitation is defined as follows:

A person is justified in threatening or using force against an-

other when and to the extent that he reasonably believes that

such threat or force is necessary to prevent or terminate such

other’s unlawful entry into or attack upon a habitation; how-

ever, he is justified in the use of force which is intended or likely

to cause death or great bodily harm only if:

(1) The entry is made or attempted in a violent and tumul-

tuous manner and he reasonably believes that the entry is at-

tempted or made for the purpose of assaulting, offering personal

violence to any person dwelling or being therein and that such

force is necessary to prevent the assault or offer of personal

violence; or

(2) He reasonably believes that the entry is made or attempt-

ed for the purpose of committing a felony therein and that such

force is necessary to prevent the commission of the felony.

Ga.Code Ann. § 26-903 (1978).

comment about section 26-907: ‘The purpose of this

section is to make it clear that affirmative defenses are

not merely technical ones which, if not raised at a partic-

ular stage of the proceeding, will be considered as waived.

They are defenses which go to the merits of the case.”

Criminal Law Study Committee, Committee Notes to

Chapter 26-9, reprinted at 10 Ga.Code Ann. 126 (1978). Al-

though this statement is not altogether unambiguous, it

would seem that by contrasting the justification defenses

to those technical ‘‘defenses” that are waived if not pre-

sented at a particular stage of the proceeding—e. g.,

venue—the advisory committee meant only that the

justification issues were not procedural technicalities, but

substantive defenses “which go to the merits.’’ Nowhere

in this chapter, nor at any place in the study committee’s

notes thereto, is there a hint as to the intended allocation

of the burden of persuasion on these defenses.4! Thus, the

statute’s characterization of self-defense as an ‘‘affirmative

defense” tells us nothing about the burden or persuasion

on the self-defense issue once ‘hat issue is properly

raised.

The meaning of the ‘“‘unlawful[ness]’’ language in the

murder statute—and, by reference, in the voluntary

manslaughter statute—is nowhere explicitly set out in

the statutes themselves. The study committee, however,

in discussing changes wrought in prior law by the 1968

recodification, made the following comment:

Thus, the Criminal Code makes no change in the

definitional classification of homicide in Georgia [v. e.,

murder, voluntary manslaughter, and involuntary

manslaughter]. It omits the essentially meaningless

41 Compare Ga.Code Ann. § 26-606 (presumption of sanity); see also

the discussion of insanity in part II-c-2 of this opinion, infra.

ay)

clauses of the former law: ‘‘by a person of sound mem-

ory and discretion” and “‘in the peace of the State.”

The latter is an historic anomaly which need no longer

be retained. Since murder is defined as being unlawful

and since an insane person’s rights and liabilities are

elsewhere established, (Chapter 26-7), the retention of

the clause relating to sanity does not appear necessary.

Id. at 160 (emphasis added). This makes clear that the

word “unlawfully” is not intended as a meaningless

redundancy in the murder statute (and by reference, the

voluntary manslaughter statute). The killing is not un-

lawful because it is murder; rather, part of the reason

that the killing is murder is because it is unlawful.

Neither would it make sense to construe ‘‘unlawfully’’

to refer to acts that are unlawful under some other crimi-

nal statute. Section 26-1101(b) defines the crime of felony

murder —causing the death of another, irrespective of

malice, during the commission of a felony —as an offense

separate and distinct from malice murder.42 Deaths

caused without specific criminal intent, but in the com-

mission of an unlawful act other than a felony (e. g.,

striking a pedestrian while driving drunk) are punishable

as involuntary manslaughter under section 26-1103(a).

The only sensible way to interpret the unlawfulness

requirement of the malice murder statute, then, is to

read it to mean “unjustified and unexcused.” Juctifica-

tion and excuse, in turn, are defined more particularly

elsewhere in the criminal code —a perfectly logical prac-

tice from an organizational standpoint, since justification

and excuse are defenses to many crimes other than the

various forms of homicide. For example, chapters 26-6

and 26-7 deal with various forms of excuse that may, in

42 See note 36 supra.

appropriate circumstances, be grounds for treating as

lawful certain conduct that would otherwise be unlaw-

ful.43 Similarly, chapter 26-9, discussed above, deals with

various forms of justification, of which self-defense is one.

As an abstract matter of statutory construction, then,

we would hold that the most reasonable interpretation of

this statute is that unlawfulness —in the sense of absence

of excuse or justification —is an essential element of the

crime of murder. By incorporation, it is also made an

essential element of the crime of voluntary manslaughter.

Because unlawfulness is an essential element of the crime,

the State would have to shoulder the burden of persuasion

(but not necessarily the burden of production) in seeking

to negate justification or excuse.

But we are not the ultimate expositors of Georgia

law, see Mullaney v. Wilbur, 421 U.S. at 691, 95 S.Ct. at

1886, and the analysis above must be tampered with any

qualifications read into that language by the Georgia

courts, who may find subtleties in the legislative pro-

nouncements that limit their sweep. If the state courts

have narrowed the unlawfulness requirement of the

statute, they have thereby narrowed the elements that

the State must prove in order to obtain a constitutionally

valid conviction.

2. The Georgia courts’ construction of the unlawfulness

requirement. —The State has not cited, and our own re-

search does not reveal, any cases from the Georgia Su-

43 Chapter 26-6, entitled “Criminal Act and Mental State,” contains

sections on the general definition of criminality (violation of statute

plus general criminal intent or criminal negligence), accident, wilfull-

ness, general intent, specific intent, and sanity. Chapter 26-7, entitled

“Responsibility,” contains sections on minimum age, insanity, delu-

sional compulsion, intoxication, and mistake of fact.

preme Court that directly interpret the unlawfulness re-

quirement in either the Georgia malice murder statute or

the voluntary manslaughter statute. However, the State

does not contend that unlawfulness is not an essential

element of both crimes. In arguing in its brief that the

district court was mistaken in holding that the prosecu-

tion was relieved of its burden of proof on all elements of

the crime (an argument with which we agree—see part

I-E of this opinion, supra), the State virtually concedes

the trial court’s error under Georgia law in placing upon

Holloway the burden of persuasion on self-defense:

The flaw in the lower court’s conclusion that when an

individual pleads self-defense he thereby relieves the

state of any burden of proof is that a claim of self-

defense admits the killing, but says that it was done

without any criminal intent. Furthermore, the trial

court’s instructions clearly placed the burden of proof

upon the state, and even when an accused puts forth

evidence of self-defense, the burden is upon the state to

prove beyond reasonable doubt that there was no excuse,

justification or mitigation, since the state still has to show

unlawfulness even though an accused puts forth evidence

of self-defense, and thus the state is still not relieved of the

burden of proving unlawfulness.

Brief for Respondent-Appellant at 25 (emphasis added).

There is also some case law that tends to indicate that

the Georgia courts view unlawfulness as an essential ele-

ment of the two crimes, and that they view unlawfulness

and self-defense as mutually inconsistent alternatives. In

Henderson v. State, 234 Ga. 827, 832(3), 218 S.E.2d 612,

616-17 (1975), the Georgia Supreme Court reversed a

conviction because the trial court had charged that the

burden was on the defendant to establish beyond a reason-

able doubt that he had acted in self-defense. The Georgia

Supreme Court cited Mullaney as the sole authority for the

proposition that this instruction was erroneous. The

Georgia Supreme Court has never overruled or amplified

upon Henderson, and neither has it ever explained why,

if it applies at all to Georgia law on self-defense, Mullaney

would not apply with equal force to instructions that

merely shift the burden to the defendant to prove self-

defense by a preponderance. Henderson, to turn upon

Mullaney, must be based on an implicit acknowledgement

that unlawulness—in the sence of an absence of self-

defense —is an essential element of the crime of murder.

Later opinions of the Georgia Supreme Court, however,

do not allude to the unlawfulness requirement. See, e. g.,

Holloway v. McElroy, 241 Ga. 400, 401(2), 245 S.E.2d 658,

659 (1978).

In Johnson v. State, 137 Ga.App. 740, 224 8.E.2d 859,

vacated, 237 Ga. 276, 227 S.E.2d 345, on remand, 140 Ga.

App. 348, 231 S.E.2d 75 (1976), the Georgia Court of

Appeals examined the relationship between unlawfulness

and self-defense under Georgia law in a thoughtful, per-

suasively reasoned opinion. Johnson has been accused of

murder, but was found guilty of voluntary manslaughter;

his sole contention was that he had acted in self-defense.

The facts of the Jehnson case, then, exactly parrallel those

of the case at bar on this issue. After reviewing the United

States Supreme Court’s holdings in Winship and Mul-

laney, the court of appeals began its analysis of Georgia

law by noting that

[wlhile Mullaney rejects formalism and requires a

pragmatic analysis that looks to the operation of the

law, we must be ultimately guided by the substantive

requirements of our penal statutes as they relate to the

proffered defense.

Id. at 741, 224 S.E.2d at 861. Construing the Georgia

murder and manslaughter statutes, the court then square-

ly held that unlawfulness is an essential element of both

the crimes of malice murder and voluntary manslaughter.

Id. Continuing to an analysis of the relationship between

self-defense and unlawfulness, the court held:

The provisions of Code § 26-902 provide that the use

of force in defense of self is justified under certain cir-

cumstances. Where these circumstances are found to

exist, no penal consequences attach and the actor’s

conduct is therefore lawful. See Hayes v. State, 11 Ga.

App. 371(1), 75 S.E. 523 [(1912)]; Walters v. State, 90

Ga.App. 360, 365, 83 S.E.2d 48 [(1954)]. We thus con-

clude that a finding of self-defense negates the essential ele-

ment of unlawfulness within the meaning of our murder

and manslaughter statutes. For the State to meet its re-

quired burden of proving the element of unlawfulness, it

must therefore prove beyond a reasonable doubt the ab-

sence of justification.

Id. at 741, 224 S.E.2d at 861 (emphasis added). The court

reasoned that this holding was compelled by Mullaney

despite the Georgia Supreme Court’s prior decisions that

placed upon the defendant the burden of persuasion on

self-defense. It interpreted Mullaney to hold that ‘“‘the

determination of whether the State or the defendant has

the burden of persuasion with respect to a particular

defense depends upon whether the truth of that defense

negates an essential element of the crime charged.” Jd. at

743, 224 8.E.2d at 862. The court further concluded that

while section 26-907 denominated self-defense as an affirm-

ative defense, this did no more than place the burden of

production on the defendant. To support this conclusion,

the court cited the definitional section of the criminal

code, section 26-401, which provides in part: ‘‘With

respect to any affirmative defense authorized in this title,

unless the State’s evidence raises the issue invoking the

alleged defense, the defendant to raise the issue, must

present evidence thereon.’’ Ga.Code Ann. § 26-401(a)

(1978), cited at 1387 Ga. App. 745, 224 8.E.2d 863. Based on

this analysis, the court of appeals reversed Johnson’s

conviction.

In a one-sentence opinion, the Georgia Supreme Court

vacated the court of appeals’ holding and remanded for

reconsideration in light of State v. Moore, 237 Ga. 269, 227

S.E.2d 241 (1976), which came out after the court of

appeals’ decision in Johnson. State v. Moore announced a

major shift in Georgia’s criminal jurisprudence. Moore was

convicted of robbery under jury instructions that placed

upon him the burden ot persuasion to establish his as-

serted defense, coercion. The court of appeals, relying on

Mullaney, reversed the conviction, Moore v. State, 137

Ga.App. 735, 736(2), 224 S.E.2d 856, 857-58 (1976), but

was itself reversed by the Georgia Supreme Court. Citing

no authority, the Georgia Supreme Court announced

this rule:

After careful consideration this court has concluded

that the trial courts would welcome a simple straight-

forward rule which can be applied easily and would

lessen the possibility of error. Also we are of the opinion

that the desirability of uniformity in jury instructions

outweighs adherence to a rule which is of doubtful

value, probably makes overly nice legal distinctions

which are difficult for many juries to follow, and so far

as can be discerned has little, if any, influence upon

verdicts reached in particular criminal cases. Therefore

we hold that henceforth charges which place any burden

of persuasion upon the defendant in criminal cases shall

not be given and such charges will be deemed erroneous

and subject to reversal, absent harmless and invited error.

We point out that usual charges on presumptions are

not considered “burden shifting’? charges, nor are

charges that such presumptions may be rebutted. We

reiterate that this conclusion is prospective and applies

only to cases tried after the final date of this decision

[June 29, 1976].

237 Ga. at 270(1), 227 S.E.2d at 242 (emphasis added).44

Significantly, Moore was decided before the United States

Supreme Court’s decision in Hankerson v. North Carolina,

432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977), which

held that the rule announced in Mullaney was to be

given full retroactive effect. Since the Moore case,‘

Georgia appellate courts have taken the position that

trial courts should charge that the prosecution must

prove beyond a reasonable doubt that the defendant’s

claim of self-defense is not true. HZ. g., Marshall v. State,

143 Ga.App. 731(2), 240 S.E.2d 176, 178 (1977); Brooks

v. State, 143 Ga.App. 523, 524(4), 239 S.E.2d 207, 208

(1977). Nonetheless, failure to give such a charge has not

always been treated as reversible error if the appellate

court has determined that the instructions as a whole did

not shift the burden of persuasion on the self-defense

“4 Cf. United States v. Chiantese, 560 F.2d 1244 (5th Cir. 1977) (en

banc) (announcing similar prospective-only rule for federal courts as

part of this court’s supervisory powers).

‘** In a murder case decided after Moore but before Hankerson, the

Supreme Court of Georgia adhered to its statement in Moore that

the new rule prohibiting burden-shifting charges was to be applied

prospectively only. The trial court in Davis v. State, 237 Ga. 279

227 S.E.2d 249 (1976), began by charging the jury that it should

acquit if it found that the defendant had proved justification by a

preponderance of the evidence. It continued its instructions, however,

with a non sequitur: “{W]hether or not... justification has been

proved by the preponderance of the evidence the burden of proof

still rests on the State to prove beyond a reasonable doubt that the

defense of justification does not exist before you would be authorized

to convict of either of the offenses which I have defined for you.”

The supreme court held that while this sort of charge was prohibited

in all trials conducted after the date on which Moore was decided, it

was not error to give such a charge at the time Davis was tried. Jd.

at 280(1), 227 S.E.2d at 250.

issue. EL. g., Walston v. State, 245 Ga. 572, 573(2), 266

S.E.2d 185, 187 (1980); Maddox v. State, 241 Ga. 398,

399(1), 245 S.E.2d 654, 655 (1978); McClenton v. State,

150 Ga.App. 573, 574(3), 258 S.E.2d 168, 170 (1979).

[10] It is unclear exactly to what extent the Georgia

Supreme Court expressed disapproval of the court of ap-

peals’ holding in Johnson. The most logical explanation,

however, is that the Georgia Supreme Court did not

disagree with the court of appeals’ analysis of Georgia

law, but merely declined to apply that logic retroactively.

This was indeed the interpretation taken by the court of

appeals on remand, see 140 Ga.App. 348, 231 S.E.2d 75.

In denying a motion for rehearing after its decision on

remand, the court of appeals found that Jvan V. v. City of

New York, 407 U.S. 208, 92 S.Ct. 1951, 32 L.Ed.2d 659

(1972) (holding Winship retroactive), had beeni nter-

preted by the Georgia Supreme Court to allow a prospec-

tive—only rule in Moore; the court of appeals felt itself

bound by the Georgia Supreme Court’s decision on the

retroactivity of Mullaney. Of course, the validity of the

Georgia Supreme Court’s conclusion that Moore could be

completely limited to prospective effect must be regarded

as seriously eroded, if not completely undercut, by the

United States Supreme Court’s holding Hankerson. Inso-

far as Moore was compelled by Mullaney, those principles

in Moore must also be retroactive.46 Because Hankerson

holds that Mullaney must be given full retroactive effect,

46 Of course, insofar as Moore is not compelled by Mullaney, there is

no reason that the rule announced in Moore must be considered retro-

active. For those affirmative defenses that are not inconsistent with

an essential element of the crime charged, the State may—but of

course need not under the Constitution —allocate the burden of per-

suasion to the defendant, as Patterson makes clear. Nothing compels

the State to make retroactive a change in its policy that is not re-

quired by the Constitution.

and because the court of appeals relied on Mullaney for

its conclusion in Johnson, it would appear that the court

of appeals was correct the first time.

At any rate, the action of the Georgia Supreme Court

in vacating Johnson does not persuade us that the Georgia

Supreme Court disagreed with the interpretation placed

on Georgia law by the court of appeals. Though vacated,

the Johnson decision’s logic seems to us compelling evi-

dence of how the Georgia courts would interpret the inter-

relationship between their unlawfulness requirement and

self-defense were they to deal directly with those issues

in a context in which it was clear that there were no

problems of retroactivity.47 We agree with the conclusion

of the district court below that, in the absence of explicitly

contradictory precedent from the Georgia Supreme Court,

the federal courts are bound by Johnson’s logic, if not

directly by its holding. See 474 F.Supp. at 1369 n.5.

The finding that the crime of voluntary manslaughter

includes as an essential element the ingredient of unlaw-

fulness does not, however, end our inquiry. It may be

that the State, through either its legislature or its courts,

has construed unlawfulness to be not inconsistent with

self-defense — effectively reading out of the definition of

the crime that portion of the meaning of unlawfulness

that would be inconsistent with self-defense. We believe

that the Georgia legislature and courts have done exactly

that with a comparable excuse —insanity —that, on its

face, would seem to be inconsistent with the requirement

‘7 The State could argue—but has not—that this is really what the

Georgia Supreme Court did in affirming the denial of Holloway’s

state-court habeas petitioner. We think it would be fanciful to read

this into the Georgia Supreme Court’s opinion, which does not even

mention the unlawfulness requirement of the statute. See note 17

supra.

of unlawfulness. By sharp contrast to the Georgia Legis-

lature’s definition of justification by virtue of self-defense,

the statutory provision on excuse by virtue of insanity,

as definitively interpreted by the Georgia courts, explicit-

ly allocates to the defendant the burden of persuasion, by

means of a presumption, on the issue of his insanity. But

there is more: the Georgia courts have explicitly held that

the absence of insanity is not an element of various crimes

under Georgia law. See Ga.Code Ann. § 26-606 (1978);

Moses v. State, 245 Ga. 180, 263 S.E.2d 916 (1980); State v.

Avery, 237 Ga. 856, 230 S.E.2d 301 (1976); Grace v.

Hopper, 234 Ga. 669, 217 8.E.2d 267 (1975), cert. denied,

423 U.S. 1066, 96 S.Ct. 806, 46 L.Ed.2d 657 (1976);

Johnson v. State, 235 Ga. 486, 220 S.E.2d 448 (1975). See

also Leland v. Oregon, 348 U.S. 790, 72 S.Ct. 1002, 96

L.Ed. 1302 (1952); Grace v. Hopper, 566 F.2d 507, 510

n.6 (5th Cir.), cert. denied, 439 U.S. 844, 99 S.Ct. 139,

58 L.Ed.2d. 139 (1978).

The State has not cited, and our research has not

found, any case from the Georgia courts which holds that

the absence of self-defense has similarly been read out of

the requirement of unlawfulness. On this issue, as on the

initial question of whether unlawfulness is an essential

element of the crime, we are persuaded by the logic of the

Johnson case from the Georgia Court of Appeals. It is

not dispositive that the Georgia courts characterized self-

defense as an affirmative defense on which the burden of

persuasion may be placed upon the defendant. The

Maine Supreme Court did even more than that in Mul-

laney, to no avail. But we need not go so far as to employ

the functional analysis that the Mullaney Court applied

to Maine law,48 for the Georgia courts have never pur-

48 For example, an argument could be made that the mental state

ported to read the absence of self-defense out of the re-

quirement that the killing be unlawful. They have done

nothing more than to assert, without dealing explicitly

with the unlawfulness requirement, that Patterson allows

the prosecution to avoid having to disprove any and all

affirmative defenses. Patterson does not announce so

simple a rule.

D. Our Conclusions Upon Consideration of Georgia Law

[11] In short, in this casc, unlike Patterson, it is em-

phatically not “plain enough that if the intentional killing

is shown, the State intends to deal with the defendant as

a murderer unless he demonstrates the mitigating cir-

sumstances” —here, the absence of unlawfulness. Rather,

it seems to us that unlawfulness—including the absence

of self-defense —is an essential element of the offense. If

Georgia includes within its murder and manslaughter

laws unlawfulness as an element of those crimes, while at

the same time Georgia courts require the defendant to

prove lawfulness by virtue of self-defense, that construc-

tion makes the statutes’ operation run contrary to the

Constitution under Winship and Mullaney. Had the

Georgia Supreme Court plainly construed its murder and

manslaughter statutes so as to delete the unlawfulness

requirement as an element of the crime, at least insofar as

unlawfulness is inconsistent with the justification of self-

defense, or had the Georgia Legislature drafted its statutes

to the same end, we might be compelled to a different

result. But for us to interpret their actions to date as

required for self-defense is logically inconsistent with the require-

ment in the voluntary manslaughter definition that the defendant

have acted solely as the result of a sudden, violent, and irresistible

passion resulting from serious provocation sufficient to excite such

passion in a reasonable person. Because of our conclusions on the

unlawfulness issue, however, we need not reach this question.

having already done so would be straining beyond any

reasonable bounds of legislative or judicial interpretation.

[12] Having decided that the absence of self-defense is

an essential element of the crime of voluntary man-

slaughter, and that the trial court’s charge operated to

place the burden of persuasion on Holloway on this issue,

we are compelled by Winship to conclude that Hollo-

way’s conviction was in violation of his due process rights

under the United States Constitution. We agree also with

the district court that this was patently not harmless

error beyond reasonable doubt, see Chapman v. California,

386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Wynn

v. Mahoney, 600 F.2d 448, 450 (4th Cir.), cert. denied, 444

U.S. 950, 100 S.Ct. 423, 62 L.Ed.2d 320 (1979). This

leads us in turn to the conclusion that Holloway’s further

confinement by the State would be contrary to the Con-

stitution and laws of the United States; hence we affirm

that portion of the district court’s decision that is based

upon the trial court’s allocation of the burden of persua-

sion on the self-defense issue.

We emphasize the relatively narrow impact of our

holding. We do not hold that the prosecution must prove

the absence of self-defense even in those cases in which

the issue is not properly raised; as Mullaney makes clear,

421 U.S. at 701 n.28, 95 S.Ct. at 1891 n.28, States may

require the defendant to produce ‘‘some evidence” to put

the mitigating circumstances in issue. See also Hankerson

v. North Carolina, 432 U.S. at 237 n.3, 97 S.Ct. at 2342

n.3. “Placing the burden of production on the defendant

is an economical way to screen out issues extraneous to

the case at hand and thus to promote efficient litigation.”’

Jeffries & Stephan, supra, 88 Yale L.J. at 1334. We make

no judgment regarding the constitutionality of placing

—

upon the defendant the burden of persuasion on defenses

other than self-defense, as that defense is defined by

Georgia law. Neither does our holding necessarily include

within its scope crimes other than voluntary manslaughter

as defined by Georgia law. Because the Georgia Supreme

Court in State v. Moore disapproved all jury instructions

that act to place any burden of persuasion on the de-

fendant (with some few exceptions, e. g., insanity), the

practical effect of our holding is even further limited.

And, of course, since our decision is based upon Georgia’s

definition of its crimes, a change in those definitions —by

either the Georgia courts or the Georgia Legislature —

might dictate a different result in future cases. But it

implies no disrespect to principles of federalism to hold

the prosecution to strict proof of those essential elements

that are included in the definition of a crime under the

State’s own laws. That is what we do today.

Further, we do not reach the question of whether sub-

stantive notions of fundamental fairness, similar to those

prompting the Supreme Court’s decision in Winship,

would prohibit the States from placing upon the defendant

the burden of persuasion on self-defense.49

49 See Jeffries & Stephan, supra, 88 Yale L.J. at 1366-79 ; Note, The

Constitutionality of Affirmative Defenses After Patterson v. New York,

78 Colum.L.Rev. 655, 672-73 (1978) (suggesting that self-defense is

so critical to the concept of criminal responsibility and has such sub-

stantial effects on a defendant’s liberty that to allow a conviction

where reasonable doubt as to self-defense remains would be incon-

sistent with the fundamental notions of fairness that underlie the

State’s duty to establish criminal liability); Allen, The Restoration of

In re Winship: A Comment on Burdens of Persuasion in Criminal

Cases After Patterson v. New York, 76 Mich.L.Rev. 30, 52 & n. 80,

62 n. 115 (1977) (suggesting that after Patterson, Winship will not

be used to disturb affirmative defenses except when a statute removes

from the definition of a crime those elements that make the crime

serious in the first place—such as the absence of self-defense). See

also Patterson, 432 U.S. at 201-02, 97 S.Ct. at 2322 (recognizing that

III. THE SUFFICIENCY OF THE EVIDENCE

Holloway urges in this court, as he has urged in the

Georgia Court of Appeals, Georgia Supreme Court, and

finally with success in the district court below, that there

is insufficient evidence to support his conviction on the

charge of voluntary manslaughter. For his conviction to

have been valid under Georgia’s substantive criminal law,

the prosecution must have proved beyond reasonable

doubt all of the elements of the crime of voluntary man-

slaughter. We have determined from our reading of

Georgia law, see parts II-B and II-C of this opinion, that

those elements are: (1) an intentional killing, which was

(2) unlawful (in this context, not in self-defense) and (3)

prompted solely as the result of a sudden, violent, and

irresistible passion resulting from serious provocation

sufficient to excite such passion in a reasonable person.

Before proceeding to our review of the evidence, how-

ever, we must first determine the proper standard of

review to be used.

some state practices in defining laws and burdens of proof could be

proscribed under the Due Process Clause if they offend “some prin-

ciple of justice so rooted in the traditions and conscience of our people

as to be ranked as fundamental’’); id. at 228 n. 13, 97 S.Ct. at 2336

n. 13 (Powell, J., dissenting) (suggesting that ‘“‘under other principles

of due process jurisprudence, certain factors are so fundamental that

a State could not, as a substantive matter, refrain from recognizing

them so long as it chooses to punish given conduct as a crime’’);

Jackson v. Virginia, 443 U.S. 307, 324 n. 16, 99 S.Ct. 2781, 2792 n.

16, 61 L.Ed.2d 560 (1979) (rejecting contention that new standard

for habeas review would intrude on power of states to define criminal

offenses because Jackson standard must be applied with explicit ref-

erence to substantive elements of offense under state law; ‘‘[w]hether

the State could constitutionally make the conduct at issue criminal

at all is, of course, a distinct question’).

A. The Standard of Review

[13] The State argues that we should not apply the

standard of review announced by the Supreme Court in

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979). That standard, the State urges,

should not be given “retroactive effect” —7. e., it should

not be applied in reviewing the sufficiency of the evidence

supporting state-court convictions obtained prior to the

date when Jackson was announced. The State urges that

we should instead apply the standard that was used prior

to Jackson. Under that standard, sometimes called the

Thompson “‘no evidence” standard, federal habeas corpus

relief was not available on sufficiency of the evidence

grounds except in those cases in which there was a total

absence of evidence to support a conviction. See, e. g.,

Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624,

4 L.Ed.2d 654 (1960); Eleuterio v. Wainwright, 587 F.2d

194, 196 (5th Cir.) (per curiam), cert. denied, 443 U.S. 915,

443 U.S. 915, 61 L.Ed.2d 879 (1979) ;59 Anderson v. Maggio,

555 F.2d 447, 452-53 (5th Cir. 1977).

The Jackson Court concluded that the “no evidence’

rule was insufficient to protect the constitutional guaran-

tees recognized in In re Winship, 397 U.S. 358, 90 S.Ct.

1068, 25 L.Ed.2d 368 (1970). It therefore announced a

6° For reasons known only the Supreme Court, certiorari was denied

in Eleuterio on the same day—July 2, 1979—that it issued its per

curiam order in Moore v. Duckworth, 443 U.S. 713, 99 S.Ct. 3088,

61 L.Ed.2d 865 (1979), discussed infra. See Project, Ninth Annual

Review of Criminal Procedure: United States Supreme Court and Courts

of Appeals 1978-1979, 68 Geo.L.J. 279, 629 & n. 2748 (1979). It is a

familiar proposition, however, that a denial of certiorari indicates no

views on the merits. See, e.g., Key v. Wise, 629 F.2d 1049, 1055 (5th

Cir. 1980). See generally 16 C. Wright & A. Miller, Federal Practice

and Procedure § 4004, at 510-12 (1977 & 1980 Supp.), and cases

cited therein.

new standard of review to be applied by federal courts in

evaluating the sufficiency of the evidence supporting

those state-court convictions challenged under the habeas

statute, 28 U.S.C. § 2254 (1976):

We hold that in a challenge to a state criminal con-

viction brought under 28 U.S.C. § 2254 —if the settled

procedural prerequisites for such a claim have been

otherwise satisfied —the applicant is entitled to habeas

corpus relief if it is found that upon the record evidence

adducted at the trial no rational trier of fact could have

found proof of guilt beyond a reasonable doubt.

443 U.S. at 324, 99 S.Ct. at 2792. In footnote, the Court

directed that this standard be applied with explicit

reference to the substantive elements of the criminal

offense as defined by state law. Jd. at 324 n. 16, 99 S.Ct. at

2792 n. 16.

Several previous opinions of this court have raised the

question of whether Jackson should be applied in review-

ing convictions obtained before the date on which Jackson

was announced. In those cases, however, we have found

the evidence sufficient to support the conviction even if

the stricter Jackson standard of review was applied; thus,

we have reserved the question for a case in which the

application of the Jackson standard made a difference in

the outcome. See Sims v. Hopper, 603 F.2d 581, 582 (5th

Cir. 1979); Pate v. Wainwright, 607 F.2d 669, 670 (5th

Cir. 1979); Tyler v. Phelps, 622 F.2d 172, 178 (Sth Cir.

1980); Preacher v. Estelle, 626 F.2d 1222, 1224-25 (5th

Cir. 1980). Cf. Parrish v. Wainwright, 614 F.2d 1028, 1029

(5th Cir. 1980) (assuming arguendo that the Jackson

standard should be used in reviewing the sufficiency of

the evidence to sustain a parole revocation). But see

Reese v. Wainwright, 600 F.2d 1085, 1089-90 (5th Cir.),

cert. denied, 444 U.S. 983, 100 S.Ct. 487, 62 L.Ed.2d 410

(1979) (applying Jackson standard without reservation to

pre-Jackson conviction); Llewellyn v. Stynchcombe, 609

F.2d 194, 196 (5th Cir. 1980) (same).

We think that the State fundamentally misconceives

that the Jackson Court was doing. Jackson announces a

new standard of collateral review.5! It does not affect in

any way the obligations of the prosecutors or state trial

courts: the standard of proof to which they are bound is

that laid down in Winship, and that standard was made

fully retroactive in Ivan V. v. City of New York, 407 U.S.

203, 92 S.Ct. 1951, 32 L.Ed.2d 659 (1972) (per curiam).

Jackson, in contrast to, for example, Winship, does not

lay down a new rule that is to govern proceedings in the

criminal trial courts. The Jackson standard requires

nothing new of the States; nor does it say that they have

erred in their past practices. As the Jackson Court pointed

out,

5! We note in passing that Jackson may have profound practical im-

plications for state-court standards of direct review as well: can it

make sense to apply on direct appeal some standard less strict than

that announced in Jackson, with the inevitable result that the losing

defendant-appellant will immediately seek the benefits of the Jack-

son standard on habeas? The Georgia appellate courts, we note, have

begun applving the Jackson standard on direct as well as collateral

appeal. See, e.g., Blair v. State, 245 Ga. 611, 613(3), 266 S.E.2d 214,

217 (1980) (citing and applying Jackson standard on direct appeal) ;

Walston v. State, 245 Ga. 572, 573(1), 266 S.E.2d 185, 186-87 (1980)

(same); Phelps v. State, 245 Ga. 338, 339, 265 S.E.2d 53, 55 (1980)

(same); Balom v. State, 245 Ga. 367, 368, 265 S.E.2d 21, 22 (1980)

(same). Cf. United States v. Booty, 621 F.2d 1291 (5th Cir. 1980),

modified on petition for rehearing, 627 F.2d 762 (5th Cir. 1980) (sug-

gesting that “‘manifest miscarriage of justice” standard may no longer

be valid on direct appeal from federal conviction, but finding suffi-

cient evidence even under a stricter standard). But cf. Chin v. United

States, 622 F.2d 1090, 1093 n. 4 (2d Cir. 1980) (Jackson has no bear-

img on review of federal convictions). Of course, we are not con-

cerned in this case with standards of review on direct appeal, state

or federal; hence, we express no opinion on that matter, and reserve

it for a case in which it is properly raised.

[alpplication of the Thompson standard to assess the

validity of a criminal conviction after Winship could

lead to absurdly unjust results. . . . Such results would

be wholly faithless to the constitutional rationale of

Winship.

443 U.S. at 320 n. 14, 99 S.Ct. at 2790 n. 14. Were we to

limit our use of the Jackson standard to only those con-

victions obtained after the date Jackson was handed

down, we would intentionally be “wholly faithless to the

constitutional rationale of Winship” in order to reach an

“absurdly unjust result”? by recognizing only the right

protected by the Thompson standard—the right to be

free from a ‘“‘wholly arbitrary deprivation of liberty”’ if

the conviction is “based upon a record wholly devoid o:

any relevant evidence of a crucial element of the offense.”

Id. at 314, 99 S.Ct. at 2786. We decline to adopt such a

perverse approach.

Moreover, other cases from this circuit and elsewhere

indicate that a decision of the Supreme Court which

announces a new standard of collateral review in habeas

corpus should be applied to convictions obtained before

the new standard of collateral review was announced.*2

52 For example, the Supreme Court held in Stone v. Powell, 428 US.

465, 481-82, 96 S.Ct. 3037, 3046, 49 L.Ed.2d 1067 (1976), that “where

the State has provided an opportunity for full and fair litigation of a

Fourth Amendment claim, the Constitution does not require that a

state prisoner be granted federal habeas corpus relief on the ground

that evidence obtained in an unconstitutional search or seizure was

introduced at his trial.’’ Stone thus affected the standards of habeas

review even more drastically than Jackson, for it eliminated —rather

than expanding the contours of—an entire class of claims. When

presented with a claim that Stone should not be applied to bar habeas

review of a conviction obtained before Stone, the Tenth Circuit noted

that “[t]raditional notions of retroactivity appear inapplicable to the

situation now confronting us.’’ Chavez v. Rodriguez, 540 F.2d 500,

502 (10th Cir. 1976). The Chavez court continued:

Nevertheless, in our opinion, it is clear that Stone is applicable

to the instant habeas proceedings. Nowhere in its opinion does

Significantly, the State has not cited, and our research

has not revealed, any case from any other circuit in which

the question of Jackson’s “retroactivity” is even men-

tioned —though one would expect that in the few months

since Jackson was announced the bulk of the convictions

reviewed by those courts on habeas would have been

obtained before Jackson.

But we need not speculate further as to whether the

Jackson standard should be applied to convictions ob-

tained before the date of that decision. The Supreme

Court has indicated by its own actions the answer to that

question. In Pilon v. Bordenkircher, 444 U.S. 1, 100 S.Ct.

7, 62 L.Ed.2d 1 (1979) (per curiam), the Court granted

certiorari in a case in which the Sixth Circuit Court of

Appeals had applied the Thompson “‘no evidence’’ stan-

dard just a few months before Jackson was announced.

The Court vacated and remanded, saying:

It is thus beyond dispute that the District Court and

Court of Appeals applied an incorrect and inadequate

constitutional test in resolving the petitioner’s due process

claim that his state-court conviction rested on insufficient

the Supreme Court limit Stone to prospective application only.

Had the district court granted habeas corpus relief in this case,

we would be compelled by Stone to reverse the district court’s

decision.

Id. When presented with the same sort of claim, the Ninth Circuit

pointed out:

The holding of Stone v. Powell enunciated no new formulation

of the exclusionary rule. It simply holds that the purposes of

that rule are not served by allowing one who has fully and fairly

litigated a Fourth Amendment claim in a state court to reargue

the question in a federal habeas corpus action. No police conduct

heretofore unlawful has been legitimated.

Bracco v. Reed, 540 F.2d 1019, 1020 (9th Cir. 1976). The same analy-

sis was applied in this circuit. See Jordan v. Estelle, 551 F.2d 612

613 (5th Cir.), cert. denied, 434 U.S. 957, 98 S.Ct. 485, 54 L.Ed.2d

316 (1977); George v. Blackwell, 537 F.2d 833, 834 (5th Cir. 1976)

(assuming without discussion that new rule should be applied).

evidence. Although it is quite possible that the evidence

against the petitioner will survive a challenge under the

correct constitutional standard, he is entitled to have

his application for habeas corpus considered under that

standard.

Id., 444 U.S. at 2, 100 S.Ct. at 8 (emphasis added).

Similarly, in Moore v. Duckworth, 443 U.S. 713, 99

S.Ct. 3088, 61 L.Ed.2d 865 (1979) (per curiam), the

Court granted certiorari to consider a decision of the

Seventh Circuit in which the Thompson standard had

been used. The Court, citing Jackson, agreed with the

petitioner that the circuit court erred in using the Thomp-

son standard. The Court did not, however, remand for

reconsideration in light of the Jackson decision, because it

was clear from the record that there was sufficient evi-

dence even under the stricter Jackson standard. Accord-

ingly, the Court affirmed the action of the circuit and

district courts below in denying habeas relief. See also

Leonard M. v. California, 443 U.S. 914, 99 S.Ct. 3105, 61

L.Ed.2d 878 (1979) (vacating 85 Cal.App.3d 887, 149

Cal.Rptr. 791 (1978), and remanding for further con-

sideration in light of Jackson); Blake v. Thompson, 444

U.S. 806, 100 S.Ct. 27, 62 L.Ed.2d 19 (1979) (vacating

595 F.2d 1222 (6th Cir. 1979), and remanding for further

consideration in light of Jackson); 47 Tenn.L.Rev. 456,

474-75 & n. 91 (1980).

[14] We thus think it absolutely clear that this court

and the federal district courts are bound to apply the

Jackson standard in reviewing under 28 U.S.C. § 2254 the

sufficiency of the evidence supporting state-court con-

victions —regardless of whether that state-court convic-

tion was obtained before or after the date of the Jackson

decision. We so hold.*

53 Even were we to apply traditional retroactivity analysis to the

standard announced in Jackson, we are confident that we would reach

the same result. The considerations for determining whether a new

constitutional doctrine should be applied retroactively are three: (1)

the purpose to be served by the new standards; (2) the extent of

reliance by law enforcement authorities on the old standards; and

(3) the effect on the administration of justice of a retroactive appli-

cation of the new standards. Brown v. Louisiana, US. ;

, 100 S.Ct. 2214, 2219, 65 L.Ed.2d 159 (1980) (plurality opinion,

but three dissenting Justices agreed with statement of standards, 7d.

at , 100 S.Ct. at 2225). See also, e. g., Hankerson v. North Caro-

lina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977); Ivan V. v.

City of New York, 407 U.S. 203, 92 S.Ct. 1951, 32 L.Ea.2d 659 (1972).

Foremost among those factors is the purpose to be served by the

new constitutional rule, Brown, US. at ___, 100 S.Ct. at 2219,

and controlling significance will be given to the measure of reliance

and the impact on the administration of justice only when the pur-

pose of the rule in question does not clearly favor either retroactivity

or prospectivity, zd.

‘‘Where the major purpose of the new constitutional doctrine is

to overcome an aspect of the criminal trial that substantially

impairs its truth-finding function and so raises serious questions

about the accuracy of guilty verdicts in past trials, the new rule

has been given complete retroactive effect. Neither good-faith

reliance by state or federal authorities on prior constitutional

law or accepted practice, nor severe impact on the administra-

tion of justice has sufficed to require prospective application in

these circumstances.”’

Brown, U.S. at ___., 100 S.Ct. at 2219-20 (quoting Williams v.

United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388

(1971), and citing three cases in accord).

As to the first factor, the Jackson Court itself noted: ‘The question

whether a defendant has been convicted upon inadequate evidence

is central to the basic question of guilt or innocence.” 443 U.S. at

307, 99 S.Ct. at 2782. Jackson is predicated on the need to protect

adequately the values articulated in Winship, and Winship itself was

declared to have full retroactive effect in Ivan V. v. City of New York,

supra. The purpose served by the Jackson standard is a compelling

one that clearly favors retroactive application. Like Winship and

Mullaney, Jackson was designed ‘‘to diminish the probability that an

innocent person would be convicted and thus to overcome an aspect

of a criminal trial that ‘substantially impairs the truth-finding func-

tion.’ ’’ Hankerson, 432 U.S. at 242, 97 S.Ct. at 2344.

Further, there can have been no reasonable, good-faith reliance by

law enforcement authorities, or by the States generally, on the con-

B. Sufficiency of the Evidence Under the Jackson Standard

(15, 16] The district court concluded after applying the

Jackson standard that the evidence supporting Hollo-

way’s conviction was insufficient. Though we cannot say

there is ‘‘no evidence” under the former standard of review

dictated by Thompson, our independent review of all the

record evidence under the Jackson standard leads us to

agree with the district court.*4

tinued existence of the Thompson standard. Jackson in no way adds

anything new to the trial process that Winship had not already

required.

Finally, while it is difficult to predict with any degree of accuracy

the effect on the administration of justice that is likely to follow from

the standard of review dictated by Winship and announced in Jack-

son, we note that the new Jackson standard expands the contours

of the prior habeas standard under Thompson, but it does not create

an entirely new class of cases cognizable on federal habeas corpus.

443 USS. at 332, 99 S.Ct. at 2796.

54 The State contends that the district court misinterpreted Jackson

to mean that it should satisfy itself of proof beyond reasonable doubt.

Though such a standard of review, if actually used by the district

court, would not comport with the rule announced in Jackson, see

443 U.S. at 318-19, 99 S.Ct. at 2789, and would in fact invade the

province of the fact-finder at trial, whose responsibility it is to draw

inferences and make credibility choices, it is by no means clear from

the district court’s opinion that it used such a standard. The court

held: ‘In this court’s considered judgment this conviction for man-

slaughter was not supported by evidence that would rationally lead

to the conclusion of guilt beyond a reasonable doubt.” 474 F.Supp.

at 1365. The court’s ‘‘considered judgment’? may have been with

regard to the legal sufficiency of the evidence under the Jackson

standard. In any event, because we are dealing with the sufficiency

of the evidence as a matter of law, we are in equally as good a posi-

tion to examine the record evidence on this issue as the court below

—or any habeas court, for that matter. We have made our own in-

dependent examination of the record, and our conclusions therefrom

are based not on our own sentiments about Holloway’s guilt or inno-

cence; rather, we have viewed the evidence in the light most favorable

to the prosecution in reaching the conclusion that no rational trier of

fact could have found guilt beyond reasonable doubt on every ele-

ment of the crime of manslaughter. It thus does not matter if the

district court misread the Jackson rule.

“a=

ié

[17] We begin by noting that we are bound, under the

Jackson standard, to consider all of the evidence in the

light most favorable to the prosecution. This is appro-

priate because it gives ‘‘full play to the responsibility of

the trier of fact fairly to resolve conflicts in the testimony,

to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts.” 443 U.S. at 319, 99

S.Ct. at 2789.

[18, 19] One element of the crime is unlawfulness—

here, the absence of self-defense. We conclude, after re-

viewing the evidence in the light most favorable to the

prosecution, that no reasonable factfinder could have

found the absence of self-defense beyond a reasonable

doubt based on the record evidence adduced at trial.

There was overwhelming evidence supporting Holloway’s

contention of self-defense. The circumstancial evidence 55

55 The State conceded at oral argument that all of the evidence sup-

porting the conviction was circumstantial in nature. Georgia law pro-

vides that “[t]o warrant a conviction on circumstantial evidence, the

proved facts shall not only be consistent with the hypothesis of guilt,

but shall exclude every other reasonable hypothesis save that of the

guilt of the accused.’’ Ga.Code Ann. § 38-109 (1974). This stricter

standard is not required by the Constitution, see Jackson, 443 U.S.

at 326, 99 S.Ct. at 2793, nonetheless, a plausible argument could be

made that the State would be denying a defendant of the process

due him under state law were it to obtain a conviction that was

based entirely on circumstantial evidence which did not meet this

more rigorous standard. It is unclear to what degree such state-law

protections should be incorporated into the federal courts’ review of

the sufficiency of the evidence when the state-law standards are more

rigorous than federal constitutional requirements. Cf. Llewellyn v.

Stynchcombe, 609 F.2d 194, 196 (5th Cir. 1980) (Georgia evidentiary

requirement of independent corroboration of an accomplice’s testi-

mony in conspiracy trial not controlling upon collateral review by a

federal court); Anderson v. Maggio, 555 F.2d 447, 451 (1977) (viola-

tion of state evidentiary rules justifies habeas relief only when evi-

dence is ‘‘material in the sense of a crucial, critical, highly significant

factor” and violation of state evidentiary rules results in a denial of

fundamental fairness). Because of our disposition under the Jackson

standard, we need not consider whether Holloway could demand the

stricter standard of § 38-109 on federal habeas.

cited by the State as supporting a finding of the absence

of self-defense consists of discrepancies between Hollo-

way’s story as told to the interviewing officers and his

testimony at trial on three points: the trajectory of the

bullet, the ownership of the spread, and the location of

the jacket. As Judge Deen said in dissent in Holloway’s

direct appeal:

The inconsistencies in [Holloway’s] statements con-

cerning the dead man’s coat, the location of the spread

and the position of the deceased when he was shot go

to his credibility and the jury was within its prerogative

to disbelieve him on these points and to find that the

coat was being worn at the time of death, that the

spread came from the truck and that [Holloway] was

not on his knees when the shot was fired... .

137 Ga.App. at 129, 222 S.E.2d at 902. But under the

particular circumstances of this case, we do not believe

that any rational factfinder could take these inconsis-

tencies as a sufficient base upon which to pile inference on

top of inference to reach beyond reasonable doubt the

ultimate conclusion that the shooting was not in self-

defense. We reach this decision after giving due regard to

the fact that, under Jackson, we are to consider circum-

stantial as well as direct evidence, and that we are to

assume that the jury drew all reasonable inferences from

basic facts to ultimate facts.°® Because we hold that there

56 We point out, however, that because the trial court instructed the

jury that the burden of persuasion was on Hol

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