Davis v. Kemp

¶4PER CURIAM: *

¶5In 1974, Petitioner Curfew Davis was convicted of murder in Georgia state court and sentenced to death. After an unsuccessful attempt to obtain a writ of habeas corpus in state court, Davis filed this petition for a writ of habeas corpus under 28 U.S.C.A. § 2254 (1976). The district court dismissed the petition without holding an evidentiary hearing. A panel of this court reversed on the ground that petitioner had been sentenced in 1977 before an unconstitutionally composed jury, and remanded for another sentencing proceeding, 721 F.2d 1478 (11 Cir., 1983). We granted the parties’ petition for rehearing en banc. The court now reinstates those sections of the panel opinion in this case which address jury composition (Section I), application of aggravating circumstance “outrageously or wantonly vile, horrible or inhuman” (Section IV), effective assistance of counsel (Section V), petitioner’s statements to police during in-custody interrogation (Section VI), and use of petitioner’s prior convictions (Section VIII). Because we agree with the disposition made by the panel opinion (Section I) as to the 1977 sentencing jury, we grant relief and remand the case to the district court with instructions to require yet another sentencing trial.

¶6I. PROCEDURAL HISTORY

¶7Based on a series of events which occurred in and around LaGrange, Georgia, on July 19, 1974,1 Curfew Davis, a black male, was charged in the Troup County Superior Court with first-degree murder. The victim was a young white woman who had been temporarily in LaGrange on a work assignment. The trial jury found Davis guilty of the murder charge and, under the Georgia bifurcated trial procedure, recommended that he be sentenced to death. The trial judge entered findings and imposed the death sentence.

¶8Davis appealed to the Supreme Court of Georgia, which affirmed the convictions and the sentence. Davis v. State, 236 Ga. 804, 225 S.E.2d 241 (1976). The United States Supreme Court granted certiorari, vacated the death sentence for a violation of the Witherspoon standards as to one prospective venireperson, and remanded for a new sentencing proceeding. Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976).

¶9After the resentencing proceedings in June 1977 Petitioner was once again sentenced to death. The Supreme Court of Georgia affirmed, Davis v. State, 241 Ga. 376, 247 S.E.2d 45 (1978), and the United States Supreme Court denied certiorari. Davis v. Georgia, 439 U.S. 947, 99 S.Ct. 341, 58 L.Ed.2d 338 (1978).

¶10Davis then brought a petition for a writ of habeas corpus in the Superior Court of Butts County, Georgia. This petition was denied in April 1981. The Georgia Su*1517preme Court denied an application for certificate of probable cause to appeal the judgment of the Superior Court, and the United States Supreme Court denied certiorari. Davis v. Zant, 455 U.S. 983, 102 S.Ct. 1491, 71 L.Ed.2d 692 (1982).

¶11Davis then filed the present petition for writ of habeas corpus in the United States District Court for the Northern District of Georgia. He subsequently filed a motion for an evidentiary hearing. The district court denied both the motion and the petition. A panel of this court reversed, citing the unconstitutional composition of the 1977 sentencing jury, and remanded for a new sentencing trial. This Court granted the petition of both parties for rehearing en banc.

¶12The habeas petition now before us raises issues with respect to petitioner’s 1974 trial and his 1977 resentencing trial.

¶13II. THE SANDSTROM CLAIM

¶14Petitioner claims that, during the 1974 culpability phase of his trial, the trial court’s instructions to the jury on the elements of intent and malice violated his rights under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). In that case the Court held that the judge’s instructions deprived the defendant of due process because they were susceptible of an interpretation which removed from the prosecution the burden of proving every element of the crime beyond a reasonable doubt. To determine whether the judge’s instructions in this case thus infringed the constitutional rights of the petitioner, we must consider first, whether the instructions concerned an essential element of the offense with which the petitioner was charged; second, whether the instructions operated to shift the burden of proof; and third, whether any error which might have arisen from the shifting of the burden was harmless in the context of this case. Lamb v. Jernigan, 683 F.2d 1332, 1336-42 (11th Cir.1982), cert. denied, 460 U.S. 1024, 103 S.Ct. 1276, 75 L.Ed.2d 496 (1983).

¶15Neither party contests the finding of the district court that under Georgia law, the elements of malice and intent to kill are essential elements of the crime of murder, which the state is required to prove beyond a reasonable doubt. See also Franklin v. Francis, 720 F.2d 1206, 1210 (11th Cir.1983), cert. granted, — U.S. —, 104 S.Ct. 2677, 81 L.Ed.2d 873 (1984); Lamb v. Jernigan, supra,683 F.2d at 1336-37. The state argues, however, that both instructions contained sufficient clarifying language to dispel any impression that they relieved the prosecution of its burden of proof.

¶16A. Intent

¶17The trial court gave the jury the following instruction with respect to the element of intent:

Ladies and gentlemen, a crime is a violation of a statute of this state in which there shall be an [sic] union of joint operation of acts or an omission to act, and an intention for criminal negligence. The acts of a person of sound mind and discretion are presumed to be the product of the person’s will, but the presumption may be rebutted. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his act, but the presumption may be rebutted. A person will not be presumed to act with criminal intention, but the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. Every person is presumed to be of sound mind and discretion, but the presumption may be rebutted.

¶18The state argues first that the frequent repetition of the warning that the relevant presumptions “may be rebutted” renders the instruction as a whole sufficiently “permissive” to “pass muster” under Sandstrom. This argument misunderstands both the Court’s opinion in Sandstrom and the application of that opinion to more recent eases by this court.

¶19The Court held in Sandstrom that the language “the law presumes” was suscepti*1518ble to interpretation as a mandatory presumption. Though this presumption could be regarded by the jury as rebuttable,2 it was nonetheless unconstitutional, as it shifted the burden of proof to the defendant without specifying the quantum of evidence by which he could rebut the presumption. So long as the jury could conclude that the defendant was required to produce more than “some” evidence in order to rebut the presumption, the instruction impermissibly shifted the burden of proof. Sandstrom v. Montana, 442 U.S. at 517, 524, 99 S.Ct. at 2459.

¶20The same rationale was applied by this Court in Franklin v. Francis, supra,to an instruction which was virtually identical to the one given in the instant case. In Franklin, this court observed that “the problem with the charge on intent here is that the jury was never enlightened as to the nature of the burden of Franklin to rebut the presumption that he intended the killing.” 720 F.2d at 1211. Because the jury could have concluded that Franklin “had to produce more than some evidence that he did not intend to kill,” id.,the instruction shifted the burden impermissibly to the defendant.3 The instant instruction falls clearly under the rule established by Sandstrom and applied in Franklin. As it imposes a mandatory (“a person is presumed ... ”), rebuttable (“but this presumption may be rebutted”) presumption, and fails to specify the quantum of proof by which the defendant may rebut that presumption, it possesses the same constitutional defect as the charges’ found constitutionally defective in Sandstrom and Franklin.

¶21The state argues next that the portion of the instruction stating that “a person will not be presumed to act with criminal intention” significantly reduces the likelihood that a jury could misinterpret the instruction. This claim has also been soundly rejected in recent cases decided by this Court.

¶22The question was presented this year in Patterson v. Austin, 728 F.2d 1389 (11th Cir.1984), by an instruction which included both the presumptions challenged by Davis and the instruction offered here as curative by the State. With respect to that charge, this court explained:

Neither did the instruction that criminal intent should not be presumed eliminate the vice Sandstrom condemns. This instruction at best conflicted with the challenged presumption; it did not explain it. At worst, the jury could have made the instructions consistent, interpreting the burden to be on the defendant to rebut the presumption that he intended to kill [the victim], and on the State to show that the killing itself was criminal. Even if the jury believed that the two presumptions conflicted, it would be impossible for us to tell which one they decided to apply, or whether they applied something in between.

¶23728 F.2d at 1394. See also Franklin v. Francis, 720 F.2d at 1212 (same conclusion). The court concluded in both Patterson and Franklin that the challenged instruction unconstitutionally shifted the burden of proof. The same is true of the instant instruction, whose criminal intent *1519provision is more likely to enhance than to correct the jury’s confusion.

¶24The state’s third argument, that any error was cured by the court’s instruction that the prosecution has the burden of proving every element of a crime beyond a reasonable doubt, is also without merit. This claim was rejected by the Supreme Court in Sandstrom, which held that a general instruction that the prosecution is required to prove each element beyond a reasonable doubt is not “rhetorically inconsistent” with a burden-shifting presumption. 442 U.S. 518-19, n. 7, 99 S.Ct. at 2456-57, n. 7. The general instruction could have been interpreted to suggest, for example, that the presumption was one means by which the prosecution’s burden of proof could be satisfied. Id. See also Patterson v. Austin, supra,728 F.2d at 1894; Franklin v. Francis, supra,720 F.2d at 1211-12. The instant instruction, which is identical to the general instruction concerning the burden of proof in the cases cited above, is susceptible to the same interpretation; thus it impermissibly shifts the burden of proof to the defendant.

¶25B. Malice

¶26The trial court’s instruction to the jury on the element of malice reads as follows:

There can be no murder under the laws of this State without malice, either express or implied. The law presumes it to be malice until the contrary appears from the circumstances of alleviation or excuse or justification, and under the laws it is incumbent upon the defendant to make out such circumstances satisfactory to the jury, unless they appear from the evidence offered against the defendant.

Ladies and gentlemen, while it is true that the law presumes malice when a homicide has been shown, yet that presumption of malice may be rebutted by the defendant from evidence offered by him or from evidence offered by the state or from both.

¶27The state argues first that the curative language “or from evidence offered by the state or from both” eliminates any possibility that the instruction may be interpreted as shifting burden of proof on the element of malice. But this language, does not refute the inference that the defendant carries the burden of proof with respect to this element; if anything, it tends to reinforce that inference. What it specifies are the categories of evidence with which the defendant may satisfy that burden: with “evidence offered by him or ... by the state or from both.” The fact that the defendant may have larger pool of evidence on which to draw in order to prove his innocence does not negate the conclusion suggested by the very unequivocal language “the law presumes” that the burden is on the defendant to demonstrate an absence of malice once a homicide has been shown.4

¶28The state argues next that the instruction that “the presumption may be rebutted” is sufficient to cure any error engendered by the mandatory language preceding it. In support of this proposition, appellee cites this court’s opinion in Corn v. Zant, 708 F.2d 549 (11th Cir.1983), which upheld as constitutional an instruction which contained both the mandatory presumption and the statement that the presumption may be rebutted. This claim is subject to the same infirmity as the analogous argument raised with respect intent: Sandstrom is concerned with whether the presumption is mandatory, not whether it is rebuttable. Once the jury is instructed that “the law presumes” malice, the burden has been unconstitutionally shifted, unless the instruction specifies the precise quan*1520turn of evidence by which the defendant can refute the presumption against him. The state’s reliance on Corn is, moreover, misplaced. The curative instructions contained in that charge included not only the general instruction on rebuttability, but several instructions which suggested that the presumption concerning malice was permissive rather than mandatory.5 Because the instruction in this case contains none of these additional instructions, it is closer to the instruction given in Franklin v. Francis, supra,than to that upheld in Corn. The instruction in Franklin, which contained arguably stronger curative language than that included in the instant instruction,6 was struck down because it failed to specify the quantum of evidence by which the defendant was required to refute the presumption against him. 720 F.2d at 1211. The instruction in the instant case, which is possessed of the same defect, requires a similar fate.

¶29Nor is the instruction saved by the state’s final argument, that the general instruction regarding the prosecutor’s burden cured any error. This claim is no more effective with respect to malice than it is with respect to intent. See supra, at 20222023. Because the two presumptions are not necessarily inconsistent, a reasonable juror could still have concluded that the instruction shifted the burden of proof to the defendant. Sandstrom, supra,442 U.S. at 518-19 n. 17, 99 S.Ct. at 2456-57, n. 17. Thus none of the ameliorative instructions offered by the state cures the unconstitutional shifting of the burden of proof effected by the mandatory presumptions concerning intent and malice; it only remains to be seen whether the error implicit in this shifting of the burden was harmless.

¶30C. Harmless Error

¶31In Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983), four members of the Court suggested that the harmless error doctrine may be per se inapplicable to a Sandstrom error; this absolute rule was not, however, adopted by a *1521majority of the Court. Therefore, under the existing precedent, harmless error can be invoked with regard to a Sandstrom violation.7See also Lamb v. Jernigan, 683 F.2d 1332 (11th Cir.1982), cert. denied, 460 U.S. 1024, 103 S.Ct. 1276, 75 L.Ed.2d 496 (1983).

¶32This court has identified two situations in which harmless error in the case of a Sandstrom violation can be invoked: if the evidence was overwhelming as to the defendant’s guilt8 and if the instruction was applied to an element of the crime which was not at issue at the trial.9Lamb, 683 F.2d at 1342. See also Drake v. Francis, 727 F.2d 990, 999 (11th Cir.1984); Spencer v. Zant, 715 F.2d 1562, 1577-78 (11th Cir.1983). The defendant in this case gave a number of inconsistent versions as to his involvement in the murder. Though inconsistent, the predominant theme in all of them was that he had nothing whatsoever to do with the crime. See Davis v. State, 236 Ga. 804, 804-08, 225 S.E.2d 241, 242-43 (1976). Although there was no explicit concession of intent and malice, the main thrust of the defense was non-involvement.

¶33The evidence in this case is overwhelming 10 that whoever killed the victim did so with intent and malice. The victim died of a .22 caliber pistol bullet in her brain; she also suffered severe fractures to her face and jaw bones, and her clothing had been torn into strips and tied together as if they had been used as bonds to tie her. Davis v. State, supra. Under these circumstances, it is readily understandable why lack of intent was not affirmatively pursued. While the burden of proof with respect to intent and malice remained on the state, it was not a contested issue nor an alternative defense.

¶34As stated by the Sixth Circuit in a recent opinion, Engle v. Koehler, 707 F.2d 241, 246 (6th Cir.1983), aff'd by an equally divided court, — U.S. —, 104 S.Ct. 1673, 80 L.Ed.2d 1 (1984) (per curiam), “the prejudicial effect of a Sandstrom instruction is largely a function of the defense asserted at trial.” That Court of Appeals had divided Sandstrom violations into two categories: those which occur when the defendant claims non-participation in the crime and those when the defendant claims lack of mens rea. Id.In the first category the doctrine of harmless error may be found applicable. Id.The defense presented by Davis was non-participation. The intent of the person or persons committing the crime was not a contested issue. Under these circumstances, the doctrine of harmless error is most appropriate.

¶35CONCLUSION

¶36Although we find a Sandstrom violation in the charge given to the 1974 jury (culpability proceedings), we hold it is harmless error under the particular circumstances of this case.

¶37*1522REVERSED and REMANDED for appropriate relief in accordance with those sections of the panel opinion which have now been reinstated.

¶51HILL, Circuit Judge,

¶52specially concurring,

¶53in which FAY, Circuit Judge, joins:

¶54I concur in the judgment.

¶55I concur in the special concurrence authored by Judge Fay and add these words.

¶56In submitting this death penalty to the microscopic, and critical, examination currently practiced, the Supreme Court’s reasoned opinion in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) has been distorted to an unreasonable result.

¶57Sandstrom is a narrow holding resolving a case unlike the one now before us. The trial judge in Sandstrom instructed the jury in these exact words:

The law presumes that a person intends the ordinary consequences of his voluntary acts.

¶58He made no further reference to the subject.1 Although the instruction was probably designed to state that which Judge Fay correctly observes to be “... totally in accord with human behavior,” it inadvertently intruded into a critical area. Criminal intent was, in that case (as it is in this one), an element of the crime. The burden of proving it was on the state. Unless the instruction were restricted (which it was not), it could be construed as providing a presumption by which the state’s burden could be carried without proof.

¶59The trial judge in the case we are reviewing did not so instruct the jury. Lest its members be led to believe that the presumption, “totally in accord with human behavior” in general, be extended to proof of a necessary element of the crime, he told the jurors, specifically and clearly,

A person will not be presumed to act with criminal intention ...” (emphasis added).

¶60Perhaps I am not sufficiently sophisticated to find that a trial judge authorized a jury to presume criminal intent in an instruction which says that criminal intention will not be presumed, but I suggest that sophistry is no great virtue in our work.

¶61APPENDIX2

¶62Petition for Writ of Certiorari

¶63Filed in Supreme Court Clerk’s office, September 12, 1978 by Counsel for Petitioner David Sandstrom.

¶64THE COLLOQUY BETWEEN THE COURT AND PETITIONER’S ATTORNEY WITH RESPECT TO THE INSTRUCTION HERE AT ISSUE.

¶65[Official Transcript pages 332 line 12 through 333 line 6].

¶66THE COURT: The Court proposes to give Instruction No. 5, offered by the State as No. 3.

¶67MR. BOGGS: Your Honor, I object to that instruction. I can cite to your Honor a number of cases, I believe they are all in the Federal Court or — I believe in the Federal Court, one in the 9th Circuit Court of Appeals that have disproved the use of this instruction. The holding has been that the instruction has the effect of shifting the burden of proof on the issue of intent to the defense and that is impermissible under the Federal Constitution, due process of law. Stating from the case of Mullaney vs. Wilbur the United States Supreme Court case, the 5th Circuit has categorically denounced and the 9th Circuit — and it was not reversible but nonetheless it was an error to use the instruction.

¶68*1523My intern can give you those citations if you would like to see them.

¶69THE COURT: You can given those to the Supreme Court. The objection is overruled.

¶70INSTRUCTIONS GIVEN BY JUDGE BOYD

¶71INSTRUCTION NO. 3

¶72The defendant, David Sandstrom, is by information charged with the crime of deliberate homicide, a felony, in that on or about November 1, 1976, in Deer Lodge County, Montana, he purposely or knowingly caused the death of Annie Jessen by stabbing the said Annie Jessen in the back with a knife.

¶73Before you may convict the defendant, David Sandstrom of the crime of deliberate homicide, a felony, you must be convinced beyond a reasonable doubt of the following elements of this crime:

1) That the defendant did cause the death of Annie Jessen on November 1, 1976, in Deer Lodge County, Montana; and

2) That the defendant caused the death of Annie Jessen purposely or knowingly.

¶74INSTRUCTION NO. 4

¶75You are instructed the law presumes a person innocent until he is proved guilty, and this proof must be of a nature to satisfy your minds beyond a reasonable doubt of the guilt of the accused. The mere fact that an information has been filed, charging a person with a crime, does not in itself, raise a presumption of guilt.

¶76The presumption of innocence has the weight and effect of evidence in the Defendant’s behalf, and this should continue until it is rebutted by competent evidence which displaces any reasonable doubt you might otherwise have of the Defendant’s guilt.

¶77INSTRUCTION NO. 5

¶78The law presumes that a person intends the ordinary consequences of his voluntary acts.

¶79INSTRUCTION NO. 6

¶80A Material element of every crime is a voluntary act, which includes an omission to perform a duty which the law imposes on the offender and which he is physically capable of performing.

¶81INSTRUCTION NO. 7

¶82“Knowingly” is defined as follows: A person acts knowingly with respect to conduct or to a circumstance described by a 'statute defining an offense when he is aware of his conduct or that the circumstances exists. A person acts knowingly with respect to the result of conduct described by a statute defining an offense when he is aware that it is highly probable that such result will be caused by his conduct. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence. Equivalent terms such as “knowingly” or “with knowledge” have the same meaning.

¶83INSTRUCTION NO. 8

¶84“Purposely” is defined as follows: A person acts purposely with respect to a result or to conduct described by a statute defining an offense if it is his conscious object to engage in that conduct or to cause that result.

¶85INSTRUCTION NO. 9

¶86Purpose and knowledge are manifested by the circumstances connected with the offense. Purposes and knowledge need not be proved by direct evidence, but may be inferred from acts, conduct and circumstances appearing in evidence.

¶87INSTRUCTION NO. 10

¶88A person who is in an intoxicated condition is criminally responsible for conduct unless such condition is involuntarily produced and deprives him of his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. An intoxicated condition may be taken into consideration in determining the existence of a mental state which is an element of the offense.

¶89*1524INSTRUCTION NO. 11

¶90“Mitigated deliberate homicide” is defined as follows: Criminal homicide constitutes mitigated deliberate homicide when a homicide which would otherwise be deliberate homicide is committed under the influence of extreme mental or emotional stress for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a reasonable person in the actor's situation.

¶91INSTRUCTION NO. 12

¶92You are instructed that the defendant, David Sandstrom, has abandoned the defense of mental disease or defect and you may not acquit the defendant on that basis.

¶93INSTRUCTION NO. 13

¶94If you are convinced beyond a reasonable doubt that the defendant, David Sandstrom, caused the death of Annie Jessen on November 1, 1976, in Deer Lodge County, Montana, but you are not convinced beyond a reasonable doubt that the defendant caused the death of Annie Jessen purposely or knowingly, then you should find the defendant guilty of mitigated deliberate homicide.

¶95INSTRUCTION NO. 14

¶96If you are not convinced beyond a reasonable doubt that the defendant, David Sandstrom, caused the death of Annie Jessen on November 1, 1976, in Deer Lodge County, Montana, purposely or knowingly, then you should find the defendant not guilty of deliberate homicide.

¶97INSTRUCTION NO. 15

¶98You are to draw no conclusions or inferences from the fact that the defendant has not testified in this case, and you are entitled to draw no conclusions or inferences as to his reason in that regard.

¶101FAY, Circuit Judge,

¶102specially concurring,

¶103in which RONEY, HILL and HENDERSON, Circuit Judges, join:

¶104While concurring in the judgment and most of the opinion of the court, I dissent from the position taken by the majority in sections IIA and B of The Sandstrom Claim. The jury charge given by the trial judge is set forth in its entirety in the margin.1 As Justice Rehnquist pointed out in his special concurrence in Sandstrom:

[W]e have consistently recognized, “a single instruction to a jury may not be judged in artificial isolation, but must be *1526viewed in the context of the overall charge.” Cupp v. Naughten, 414 U.S. 141, 146-147 [94 S.Ct. 396, 400-401, 38 L.Ed.2d 368] (1973). And surely if this charge had, in the words of the Court, “merely described a permissive inference,” ante, at 514, it could not conceivably have run afoul of the constitutional *1527decisions cited by the Court in its opinion.

¶105442 U.S. at 527, 99 S.Ct. at 2461.

¶106The trial judge and the attorneys made it abundantly clear to the jury on numerous occasions that the State had the burden of proving each and every element of the offense charged beyond a reasonable doubt. This was repeated in the final charge to the jury. The language dealing with the “presumption” is both short in length and totally in accord with human behavior. Acts generally speak for themselves, particularly in the absence of any contrary explanation. More importantly, however, each sentence containing the presumption language • concluded with the words, “but the presumption may be rebutted.” Such language was not present in the charge reviewed by the Court in Sandstrom. See Sandstrom, 442 U.S. at 525 n. 12, 99 S.Ct. at 2460 n. 12. Justice Brennan emphasized that:

“They [jury] were not told that the presumption could be rebutted, as the Montana Supreme Court held, by the defendant’s simple presentation of ‘some’ evidence; nor even that it could be rebutted at all.”

¶107442 U.S. at 517, 99 S.Ct. at 2455.

¶108In my opinion, the holding of the Supreme Court in Sandstrom has no application to the charge given in this case. Sandstrom condemns any “presumption”, or other charge, which would shift to the defendant the burden of disproving an element of the crime charged. The jury trying this case was instructed in clear terms that (1) criminal intent must be established by the State and (2) they should look at all the surrounding circumstances of the shooting to determine whether or not such existed. The charge said:

“A person will not be presumed to act with criminal intention, but the trier of facts may find such intention upon consideration of the words, conduct, demean- or, motive, and all other circumstances connected with the act for which the accused is prosecuted.”

¶109Such language hardly shifts any burden of proof to the defendant.

¶110The majority opinion finds support for its holding in our court’s opinion in Franklin v. Francis, while at the same time criticizing, but not reversing or overruling, our court’s opinion in Com v. Zant. My own view is that both are inappropriate. We are considering this issue and this case as an en banc body. We are bound only by existing precedents of the United States Supreme Court.

¶111In my opinion the charge given is in complete accord with Sandstrom.

¶113JOHNSON, Circuit Judge,

¶114dissenting from IIC,

¶115in which GODBOLD, Chief Judge, KRAVITCH, HATCHETT and CLARK, Circuit Judges, join:

¶116The majority holds that the court’s instructions on the elements of malice and intent shifted the burden of proof in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), but finds this error harmless because petitioner raised a non-participation defense rather than arguing that he lacked mens rea. Because the majority’s analysis is based on a false distinction among different types of defenses, and a flawed understanding of the jury’s responsibility with respect to the essential elements of a crime, I dissent.

¶117The plurality opinion of the Court in Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983), cast serious doubt on whether the doctrine of harmless error can be applied to the shifting of a presumption which is so integral to the concept of a fair trial. While this restriction on the harmless error rule failed to gamer the support of a majority, the Court affirmed the pre-existing federal requirement that “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). This Circuit propounded a similar standard in Lamb v. Jernigan, 683 F.2d 1332, 1342 (11th Cir.1982), cert. denied, 460 U.S. 1024, *1528103 S.Ct. 1276, 75 L.Ed.2d 496 (1983), where it stated that error in a case of a Sandstrom violation can only be harmless if it applied to an element of the crime which was not at issue at the trial, or if the evidence was overwhelming as to the defendant’s guilt.

¶118The majority, however, takes its bearings primarily from Engle v. Koehler, 707 F.2d 241, 246 (6th Cir.1983), aff'd by an equally divided court, — U.S. —, 104 S.Ct. 1673, 80 L.Ed.2d 1 (1984), a Sixth Circuit rendition of the harmless error doctrine which attempts to distinguish between cases in which the defendant claims non-participation in the crime and cases in which the defendant claims lack of mens rea. In Engle the court concluded that, while Sandstrom error in a case where a mens rea defense has been raised is sufficiently prejudicial that error cannot be harmless, similar error in a case in which a non-participation defense has been raised may be harmless. The majority in the instant case justifies this distinction by explaining that where a non-participation defense is presented, intent is not at issue in the trial.

¶119The majority’s analysis fails, at the outset, to recognize that Engle does not compel the result reached in this case. Engle’s, conclusion that a Sandstrom error in a case involving a non-participation defense may be harmless is not determinative of any particular outcome in the instant case. More importantly, neither the Sixth Circuit nor the majority provides an adequate justification for the distinction between non-participation and mens rea defenses. Intent is an issue which must be addressed by the jury in every malice murder case, because it is an element which the jury must find beyond a reasonable doubt if it is to convict a defendant. Intent is thus “at issue,” i.e., remains a question to be resolved by the jury, unless it is admitted by the defendant, see Connecticut v. Johnson, supra,460 U.S. at 87, 103 S.Ct. at 978, or the evidence concerning it is so “overwhelming” that a jury can reach only one conclusion, see Lamb v. Jernigan, supra,683 F.2d at 1342. Except where it includes a direct admission of intent, no defense, in and of itself, can take the element of intent out of “issue.” Because the jury must still find this element beyond a reasonable doubt, an instruction which removes the burden of proving this element from the prosecution is no less prejudicial to the defendant in a case where he focuses on the defense of non-participation than in a case where he argues that he lacked mens rea.

¶120The application of the Lamb or Chapman standard to the facts of the case compels rejection of the majority’s conclusion. At no point in the proceeding did petitioner state that he intended to kill the victim. Nor can it be said that the evidence of intent on the part of the petitioner was “overwhelming.”1 Davis stated on several occasions that he had driven the victim and two acquaintances to a private home, that on arrival he had exited to another room, and that he did not even see any of the others until he heard a shot and entered to find the victim on the floor. The State, moreover, presented no alternative version of the facts. The question of whether the prosecution had proved beyond a reasonable doubt petitioner’s intent to kill was very much “at issue.” It is impossible to say that an instruction which relieved the prosecution of its burden with respect *1529to this element was harmless beyond a reasonable doubt.