# Appendix — Clay E. McElroy Warden v. M. W. Holloway > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1549%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1981 - **Citation:** 451 U.S. 1028 ## Text 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, Vv 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. 1 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. 4 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 5 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 6 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 7 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, ‘« 8 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 ? 9 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 10 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, 11 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 12 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- 13 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 14 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. 16 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. 17 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. 18 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 19 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. 20 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 21 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. 22 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 23 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. 24 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 25 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. 26 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 27 [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. 28 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. 29 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. * 30 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. dl 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. 32 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. 33 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. 34 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. 35 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 36 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 37 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. 38 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 39 (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, 40 [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- 41 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. 42 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 43 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 44 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. 45 ‘ 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. 46 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- 47 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 48 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. 49 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 50 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. —_ 51 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. (c) A person convicted of murder shall be punished by death or by imprisonment for life. Ga.Code Ann. § 26-1101 (1978). 52 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 53 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). 54 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. 56 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. 57 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 58 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 59 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 60 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 61 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1549%3A2. Public record. Not legal advice.