Christopher A. Burger, Cross-Appellant v. Ralph Kemp, Warden, Georgia Diagnostic and Classification Center, Cross-Appellee , 785 F.2d 890 ( 1986 )

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

. PER CURIAM:

This habeas corpus action, before us for the third time, was remanded by the Supreme Court for our reconsideration in light of Francis v. Franklin, — U.S. -, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), aff'g 720 F.2d 1206 (11th Cir.1983). The facts of the underlying murder case, for which petitioner Burger was sentenced to death, are reported at Blake v. Zant, 513 F.Supp. 772, 788-89 (S.D.Ga.1981). The sole issue now before us is whether the trial court’s jury instruction on intent impermissibly shifted the burden of proof on that issue to the defendant. We hold that the challenged instruction constituted harmless error. In our previous opinions, 718 F.2d 979 (11th Cir.1983), 753 F.2d 930 (11th Cir.1985), we found the other issues presented in Burger’s habeas petition to be without merit. Consequently, we remand to the district court with instructions that the writ be denied.

In Franklin, the petitioner argued that the state trial court erred in giving the following jury instruction:

A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts, but the presumption may be rebutted. A person will not be presumed to act with criminal intention but the trier of facts, that is, the Jury, may find criminal intention upon a consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is prosecuted.

Franklin, — U.S. at-, 105 S.Ct. at 1969-70; 720 F.2d at 1209 n. 2. The Supreme Court agreed with our conclusion that this instruction was constitutionally infirm under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), because a reasonable juror could understand it as creating a mandatory— though rebuttable — presumption of intent shifting the burden of proof on that issue to the defense. — U.S. at-, 105 S.Ct. at 1977; 720 F.2d at 1212. The Court also agreed with our finding that under the circumstances of the case, the Sandstrom error could not be considered harmless. Id.

The jury instruction challenged in this case is virtually identical to the one held unconstitutional in Franklin. After giving the Franklin instruction, however, the court in this case added the following:

A specific intent to commit the crime charged in this indictment is an essential element that the State must prove beyond a reasonable doubt. Intent is always a question for the jury, and is ordinarily ascertained by acts and conduct. Intent may be shown in many ways, provided the jury finds that it existed from the evidence produced before you. It may be inferred from the proven circumstances, or by acts and conduct, or it may be presumed when it is the natural and necessary consequences of the act.

Blake, 513 F.Supp. at 792.

This additional language, taken by itself, appears to be constitutionally unobjectionable; rather than creating a mandatory presumption, it merely instructs the jury that it may presume intent from the natural consequences of an act. The Supreme Court made clear in Franklin, however, that “[ljanguage that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity.” — U.S. at-, 105 S.Ct. at 1975. Thus, whether this additional language sufficed to render the instruction constitutional may depend upon whether the language is viewed as clarifying or merely contradicting the erroneous charge which preceded it.

We need not reach this issue, however, because we conclude that any error in the instruction was harmless. In Franklin the defendant had based, his entire defense on the issue of intent, and “[tjhe facts did not overwhelmingly preclude that defense.” 720 F.2d at 1212. We thus concluded that “[bjecause intent was plainly at issue in [the] case, and was not overwhelmingly proved by the evidence ... we cannot find this error to be harmless.” Id. The Supreme Court agreed. — U.S. at-, 105 S.Ct. at 1977. On the other hand, if intent is not at issue in a case, or if intent is overwhelmingly proved, a Sandstrom error on the element of intent may be found harmless. Davis v. Kemp, 752 F.2d 1515, 1521 (11th Cir.) (en banc), cert. denied, — U.S. -, 105 S.Ct. 2689, 86 L.Ed.2d 707 (1985).¹

In this case, Burger’s sole defense was to put the prosecution to its proof. As the essence of such a defense is to require the state to fulfill its burden as to each element of the offense, it cannot be said that intent was not at issue. Cf id. (defense of non-participation removes intent from issue even without explicit concession). Nevertheless, it is significant that Burger chose not to raise the issue of intent expressly, for this left uncountered the strong implication of intent which was bound to arise from the evidence presented by the state.

The record tends to show that after sexually assaulting their victim, Burger and his co-defendant placed the victim in the trunk of his taxicab. After telling a friend what they had done, they drove to a water-filled pit. Opening the trunk, Burger found that the victim was still alive. With the victim still inside Burger then closed the trunk once more, removed incriminating fingerprints from the vehicle, and drove the car into the pond, jumping out as the car entered the water. The victim died of drowning. Eventually, Burger confessed to the crime, described the incident in great detail, and led authorities to the pit, pointing out where they could find the victim’s body.

Burger’s only argument as to why the Sandstrom error should not be considered harmless in light of the overwhelming evidence from which the jury could infer intent is that he had consumed “four or five pitchers of beer” before the incident. This, he argues, brings his case under our decision in Thomas v. Kemp, 766 F.2d 452 (11th Cir.1985), in which a Sandstrom error on intent was found not harmless where the defendant was intoxicated. In Thomas, however, the defendant affirmatively raised the issue of intent:

Thomas took the stand in his own defense and testified that he had no memory of the incident ... He attributed his lack of memory to pills he ... ingested ____ Thomas’ counsel elicited testimony from the State’s examining psychiatrist that it would be possible for a drug to “overmaster [a] person’s will or impel him to commit a crime,” ... [and] requested and obtained a jury , charge on drug intoxication____

766 F.2d at 455-56. By contrast, Burger raised no intoxication defense. Burger’s counsel mentioned the beers in his opening statement and Burger’s confession referred to them, but the defense made no attempt to argue that the alcohol in any way diminished Burger’s capacity or rendered him incapable of forming an intent to commit the murder.

Under Sandstrom, a jury may never be instructed that intent is or must be presumed. Nevertheless, a case may present circumstances which imply intent so overwhelmingly that a reviewing court may conclude that any reasonable jury would infer intent even without being instructed that it had to do so. This is such a case. We are convinced beyond a reasonable doubt that a reasonable jury would have convicted Burger without having to interpret the jury instructions as creating a mandatory presumption of intent. We therefore hold that any error in the instructions was harmless.

The ease is REMANDED to the district court with instructions that the writ be denied.

1 . We note that the Supreme Court has recently granted certiorari in a case in which it may consider whether a Sandstrom error was harmless. Rose v. Clark, 762 F.2d 1006 (6th Cir.), cert. granted, — U.S. -, 106 S.Ct. 59, 88 L.Ed.2d 48 (1985).