Coleman v. Jones

¶5RONEY, Senior Circuit Judge:

¶6In 1983, Floyd Coleman was convicted and sentenced to life without parole for robbery-murder under § 13-ll-2(a)(2), Code of Alabama 1975.1 The district court denied his second federal petition for writ of habeas corpus, which alleged that an instruction on malice improperly shifted the burden of proof to him, and ineffective assistance of counsel. We affirm.

¶7Under § 13-ll-2(a)(2), an accused may be indicted for the crime of robbery with the aggravating circumstance of an intentional killing. Known as a robbery-murder, the crime is one of several capital offenses as set forth'in § 13A-5-40, which' merit the death penalty or life imprisonment without parole in Alabama. To sustain a conviction, both the intentional killing and the robbery must be proven, and such proof constitutes one offense. See Clements v. State, 370 So.2d 708, 714 n. 5 (Ala.Cr.App.1978), affirmed in part, reversed in part by, 370 So.2d 723 (Ala.1979), overruled on other grounds, Beck v. State, 396 So.2d 645 (Ala.1980).

¶8The owner of a Radio Shack was shot in the stomach by Coleman with a sawed-off shotgun after he delivered the contents of a cash register to Coleman during a holdup. The victim was reported as saying, “I gave him the money and I don’t know why he had to shoot me.” Coleman contends that the 1976 shooting was accidental and' that he intended no more than a robbery. The conviction was affirmed on appeal, Coleman v. State, 487 So.2d 1380 (Ala.Cr.App.1986), and a petition for error coram nobis was denied by the State court in 1987.2

¶9The jury was instructed that murder in the first degree is a lesser included offense of the capital crime with which Coleman was charged. Beck, 396 So.2d at 647 (citing Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) (verdict of guilt of capital offense may not be imposed when the jury is not permitted to consider a verdict, of guilt of a lesser included offense if evidence would support such a verdict)). Murder in the first degree was defined to the jury as the willful, deliberate, malicious, and premeditated killing of a human being, requiring the coexistence of all four elements. This is not a capital offense under Alabama law. Subject to the statutory provisions of § 13A-5-41, first degree murder may be a lesser included offense of the capital offenses.

¶10In instructing the jury on the malice component of the lesser included offense of first degree murder, the trial court gave the following instruction which Coleman contends impermissibly shifted the burden *449of proof under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

Now the law presumes malice from the use of a deadly weapon, unless the evidence which shows the killing also shows that it was done without malice.

Let me repeat that for you. The law of the State of Alabama presumes malice because of the use of a deadly weapon. And I will state to you now that under the law of the State of Alabama a sawed-off shotgun is defined as a deadly weapon. So the law presumes malice from the use of a deadly weapon unless the evidence which shows the killing also shows that it was committed without malice.

Now, whenever there is evidence of malice shown to the Jury beyond a reasonable doubt there can be no lesser degree of homicide than murder.

¶11Although it does not figure in the decision of this case, we note that there was no objection to this instruction.

¶12Since the presumption of innocence extends to every element of a crime, shifting a burden of proof to a defendant as to any element of the crime violates due process because it relieves the State of proving each of its contentions beyond a reasonable doubt. The State concedes, so we need not decide, that this instruction violated this principle of due process as to the malice factor of first degree murder. The State argues, however, and the district court so held, that the error was harmless because defendant was not convicted of first degree murder. Sandstrom, 442 U.S. at 523, 99 S.Ct. at 2459; Rose v. Clark, 478 U.S. 570, 575 n. 3, 106 S.Ct. 3101, 3104 n. 3, 92 L.Ed.2d 460 (1986).

¶13This Circuit has identified two situations in which a Sandstrom violation can be harmless: (1) If the instruction was applied to an element of the crime which was not at issue at the trial, and (2) if the evidence against the defendant was overwhelming. Smith v. Newsome, 876 F.2d 1461, 1467 (11th Cir.1989) (quoting Davis v. Kemp, 752 F.2d 1515, 1521 (11th Cir.1985) (en banc). A proper corollary of these holdings would be that the error is harmless if the instruction does not apply to an element of a crime for which defendant was convicted. Hearn v. James, 677 F.2d 841, 843 (11th Cir.1982) (burden shifted concerned an element not related to offense for which defendant was convicted); Holloway v. McElroy, 632 F.2d 605, 617 (5th Cir.1980) (instruction on presumption of malice not relevant when defendant convicted of lesser crime which does not include malice as an element).

¶14The complained of instruction did not, however, shift the burden of proof as to intent. On that issue, the jury received the following correct instruction:

Now the capital offense is this: What makes it a capital offense if in during the course of this robbery, that the victim ... was intentionally killed.

Now ... Intent means that at the time that a person acted, that they intended to do that which they did. So, first, if you find that in fact a robbery did take place and that the Defendant committed the robbery, and if in during the course of committing that robbery, he intentionally killed ... then the capital offense has been shown, (emphasis added).

¶15Coleman contends that the improper instruction shifting the burden of proof as to malice infected the instruction concerning intent. In Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985) the Supreme Court emphasized that when a specific portion of a jury charge contains a Sandstrom error, the potential effect of those words must be considered in the context of the charge as a whole. The error, however, must so infect the trial that the conviction is the result of a due process violation. Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973).

¶16A reading of the complete instructions on both crimes as set forth in the margin reflects the care the trial judge took in his explanations to the jury, and convinces us that there is no merit to this argument.3 In our judgment, the jury would not have been misled by these instructions as to the *450burden the government had of proving intent -in the crime for which Coleman was convicted.

¶17The district court’s holding that the jury instruction on malice was harmless beyond a reasonable doubt must be affirmed. An erroneous instruction, harmless on the facts of the case, does not require a new trial. Lancaster v. Newsome, 880 F.2d 362, 367 (11th Cir.1989).

¶18*451Although Coleman correctly contends that intent was an issue because of witness testimony to the effect that the killing was an accident, under this correct instruction, however, Redman v. Dugger, 866 F.2d 387 (11th Cir.1989), the jury found Coleman guilty of intentional murder during a robbery.

¶19Based on this same rationale, Coleman’s claim of ineffective assistance of counsel because of failure to object to or appeal the malice instruction must fail. Viewing the record as a whole, and considering the standard for effective assistance of counsel as established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the district court correctly denied relief on the ineffective assistance of counsel claims based on alleged failure to raise on appeal a claim based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

¶20Claims previously raised by Coleman in his first petition for writ of habeas corpus need not be entertained by the court, so there was no error in dismissing those claims. Allen v. Newsome, 795 F.2d 934, 937 n. 7 (11th Cir.1986) (statutory authority exists for dismissal of successive petitions based on claims previously heard); Witt v. Wainwright, 755 F.2d 1396, 1397 (11th Cir.), cert. denied, 470 U.S. 1039, 105 S.Ct. 1415, 84 L.Ed.2d 801 (1985) (if ground previously addressed, petitioner must demonstrate reconsideration would serve ends of justice defined by whether full and fair hearing was had on first petition and intervening change in facts or applicable law). See also Bass v. Wainwright, 675 F.2d 1204 (11th Cir.1982) (discussing new inquiry into previously asserted grounds).4

¶21This decision makes it unnecessary to entertain the State’s argument that the petition should have been dismissed as an abuse of the writ, and that petitioner’s claims are procedurally barred.

¶22AFFIRMED.