TUCKER v. KEMP
481 U.S. 1073

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U.S. Supreme Court

TUCKER v. KEMP , 481 U.S. 1073 (1987)

481 U.S. 1073

William Boyd TUCKER
v.
Ralph KEMP, Warden
No. 86-6955 (A-860)

Supreme Court of the United States

May 29, 1987

On petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit.

The application for stay of execution of the sentence of death presented to Justice POWELL and by him referred to the Court is denied. The petition for writ of certiorari is denied. The order heretofore entered staying the execution of the sentence of death until 7 p.m., May 29, 1987, will not be extended.

Justice BRENNAN, with whom Justice MARSHALL joins, and with whom Justice BLACKMUN joins as to Part II, dissenting.

I

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth

Page 481 U.S. 1073 , 1074

and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 227, 2950 (1976) (BRENNAN, J., dissenting), I would grant the stay application and the petition for certiorari and would vacate the death sentence in this case.

II

Even if I did not hold this view, I would still grant the application for a stay and the petition for certiorari. Petitioner raises a substantial claim that the trial court's instruction to the jury unconstitutionally shifted the burden of proof to petitioner in violation of Francis v. Franklin, 471 U.S. 307 (1985).

Petitioner William Tucker was tried for murder, kidnapping with bodily injury, armed robbery, and aggravated sodomy. Intent was a crucial issue at trial. Trial testimony indicated that, on the day of the crime, Tucker was under the influence of drugs and alcohol, which he had been using heavily since his father's death less than three months earlier. Both the prosecutor and the defense attorney focused their closing remarks on Tucker's state of mind and his ability vel non to form the requisite criminal intent.

The trial court's instruction to the jury included the following charge on the burden of proof with respect to the defendant's criminal intent:

Ladies and Gentlemen, a crime is the violation of the Statute of this State in which there shall be a union or joint operation of act and intention, or criminal negligence.

Now, I'm going to give you certain presumptions. A person is presumed to be of sound mind and discretion, but the presumption may be rebutted. The acts of a person of sound mind and discretion are presumed to be the product of the person's will. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his act. But, these presumptions may be rebutted. The person will not be presumed to act with criminal intention, but the trier of facts, and that's you the jury, may find such intention upon consideration of the words, conduct, demeanor and other circumstances connected with the act for which the accused is prosecuted. Tr. Transcr. 822-823 (emphasis added).

After deliberations, the jury returned a verdict of murder, kidnaping with bodily injury and robbery by intimidation. After a sentencing hearing, Tucker was sentenced to death. [481 U.S. 1073 , 1075]


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