Weyman H. House, Jr. v. Bob L. Lavoie, Warden, Dodge County Correctional Institute

PER CURIAM:

Weyman H. (“Bunky”) House, Jr. was convicted of murdering Michael Bradley Tumipseed in Georgia and sentenced to life imprisonment. The sole issue on appeal from a denial of federal habeas corpus relief is whether the state trial court’s instruction to the jury shifted the burden of persuasion to the defendant on malice and intent, in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).¹ Although the Georgia Supreme Court held there was no Sand-strom violation, reading the charge as a whole,² there is a substantial argument to the contrary. The district court held it was unnecessary to decide whether the challenged instruction was “burden-shifting” because even if so, it would be was harmless error under Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). We affirm.

Although the issue had been in doubt, the Supreme Court in Rose v. Clark clearly instructed the court in reviewing a Sand-strom error to apply Chapman v. California,³ and not set aside an otherwise valid conviction “if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.”⁴ In a case such as this, the full record is examined to see if the evidence is so dispositive of intent that a reviewing court can say beyond a reasonable doubt that “ ‘the jury would have found it unnecessary to rely on the presumption.’ ”⁵

There is no problem in reaching that conclusion in this case. The defense against the murder charge at trial was self-defense. The defendant admittedly intended to shoot the victim, fired five shots at him at close range, and hit the victim in his head, shoulder and side. Although the defendant testified he did not intend to kill the victim, he did intend to stop him.⁶ He fired four quick shots, and then, because he thought he had missed, fired a fifth shot. He started to run but then saw the victim fall. He repeatedly told the jury that he was acting in self-defense.⁷

From this evidence, it is clear beyond a reasonable doubt that once the jury resolved the contested issue of self-defense against the defendant, the jury would have found it unnecessary to rely on the erroneous presumption in deciding the issues of intent and malice.

This controlling evidence occurred at the end of this scenario: Defendant, “Bunky” House, and the victim, Mike Turnipseed, had been friends since childhood, and had occasionally lived together since the victim’s discharge from the Marine Corps. On the latest occasion, the two friends lived together with Janet Hembree and her two young sons.

In November, 1982, Mike was evicted from their joint apartment by the landlord, apparently for “fussing and fighting.” He returned surreptitiously on a regular basis, including January 12, the day he was killed. On that day Janet and the defendant had bought a bottle of liquor and returned to the apartment where they were joined by Mike. After having drunk the entire bottle together, the defendant went to sleep in his bedroom while Janet and Mike left to visit friends, returning about midnight.

Janet testified that as she returned to her bedroom to pack a suitcase for a stay in the hospital, Mike entered the defendant’s room on three occasions. Leaving defendant’s room and sitting on her bed, Mike told Janet that the defendant had just cocked his pistol at him. A few seconds later, the defendant was standing in the doorway. Without comment, he aimed the pistol with both hands and shot the victim who was still sitting on the bed. Janet testified that the first shot struck the victim in the side. Frightened, she ran from the room and heard the remaining shots as she fled the scene and went for help.

Defendant’s account varies only slightly from this account. He stated that shortly before the shooting Mike had come into his room and harassed him while he lay in bed recovering from their drinking binge earlier in the day. He recounted how Mike inexplicably accused him of pulling back the hammer of the gun the defendant was known to keep under his pillow. Whereupon, the victim was to have said, “You can let it down. I’m not going to jump on you or nothing.” Still lying in bed, he and Mike had a heated conversation.

Soon afterwards, defendant got up to go to the bathroom and placed the pistol in the back pocket of the pants he was still wearing. When he emerged, defendant saw Mike sitting on the bed in the next room. No words were exchanged, but the victim according to defendant “jumped up and reached in his pocket and started toward me." Defendant fired four shots in rapid succession, and after a brief period, one last shot.

Because defendant relied upon a theory of self-defense to justify his acts he did not contest his intent to shoot the victim. In his own words, “I was looking straight at him. I reached in my pocket and got out the gun and fired.” At a distance of less than a dozen feet he fired the gun until he could fire it no more. While defendant testified that until the victim fell over he was unsure he had even hit him, only one shot went awry, three hit the victim in the chest or side, and one in the head. While he thought the victim was going to tackle him, according to defendant’s own testimony, the victim never advanced more than one step toward him, and after the fifth shot, fell over on the same bed he had been sitting on when the incident began.

Asked why he had fired more than once, defendant explained that he was never sure he had hit the victim. Asked then why he fired the fifth time, defendant responded that the victim “stood back up, ... and I didn’t think I’d even slowed him, you know, even hit him, and I fired — I only had one shot left, and I fired the last time.”

By pleading self-defense, House put before the jury the credibility of his account of the threat he felt and the reasonableness of his reaction to it. Once the jury rejected the credibility of the self-defense theory, a theory that hinged almost totally on defendant’s own testimony, the case fell squarely within the Supreme Court’s characterization that:

In many cases, the predicate facts conclusively establish intent, so that no rational jury could find that the defendant committed the relevant criminal act but did not intend to cause injury.

Rose v. Clark, 478 U.S. at —, 106 S.Ct. at 3108, 92 L.Ed.2d at 472 (citing Lamb v. Jernigan, 683 F.2d 1332, 1342-43 (11th Cir.1982), cert. denied, 460 U.S. 1024, 103 S.Ct. 1276, 75 L.Ed.2d 496 (1983)).

Left with the opinion that the erroneous instruction was harmless beyond a reasonable doubt, the district court correctly denied habeas corpus relief on the Sand-strom issue.

AFFIRMED.

1 . The petition to the district court raised four additional allegations which are not the subject of appeal:

whether the applicant was denied due process and a fair trial by

1. the introduction of prejudicial evidence (grounds (a), (b));

2. restrictions on his right to cross-examine state’s witness Hembree (ground (e)); and

3. the Court’s refusal to permit him to introduce evidence regarding the victim’s character (ground (c)).

Magistrate’s Report & Recommendation at 2, House v. Lavoie (No. C86-591A).

2 . House v. State, 252 Ga. 409, 314 S.E.2d 195 (1984).

3 . 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, 24 A.L.R.3d 1065 (1967).

4 . Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (citations omitted).

5 . Rose v. Clark, 478 U.S. 570, —, 106 S.Ct. 3101, 3105, 92 L.Ed.2d 460, 469 (quoting Connecticut v. Johnson, 460 U.S. 73, 97 n. 5, 103 S.Ct. 969, 983, n. 5, 74 L.Ed.2d 823 (Powell, J. dissenting)).

6 . On questioning by defendant’s attorney on direct examination:

Q. [By Mr. Pearlberg] When you first fired the gun, was it your intent to kill Mike Turnipseed?

A. No, sir.'

Q. What were you intending to do?

A. To stop him.

Q. And why were you intending to stop him?

A. To defend myself.

Record at 277, State v. House (Indictment No. 83-0478).

7 . Q. Bunky, do you regret what happened?

A. Yes, sir.

Q. Are you sorry for what happened?

A. Yes, sir, I am, but there’s not anything I can do about it.

Q. Can you tell us — If you regret it and you’re sorry for what occurred, can you tell us, in your opinion, why it happened, then?

A. Yes, sir. I was acting in self defense. MR. PEARLBERG: He’s with you. v

Q. Okay. Before you shot Mike, you’re not telling this jury there was any kind of scuffle between the two of you?

A. Mike had just threatened me.

Id. at 306, 310.