TUCKER v. KEMP, 481 U.S. 1073 (1987)
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
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]
U.S. Supreme Court
TUCKER v. KEMP , 481 U.S. 1073 (1987) 481 U.S. 1073 William Boyd TUCKERv.
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. Page 481 U.S. 1073 , 1075 In Francis v. Franklin, supra, the trial court gave a similar instruction to the jury: A crime is a violation of a statute of this State in which there shall be a union of joint operation of act or omission to act, an intention or criminal negligence. A person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking or intention or 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 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. 471 U.S., at 311-312-1970 (emphasis added). In Franklin, the Court held that this instruction created a mandatory presumption that shifted to the defendant the burden of proof on the element of intent, thereby depriving him of due process under the Fourteenth Amendment. The charge given in Tucker's case is virtually identical to the jury instruction in Franklin. Tucker petitioned the District Court for a writ of habeas corpus, raising the Franklin claim for the first time in a federal court. The District Court denied an evidentiary hearing on this claim solely on its conclusion that the petition constituted an abuse of the writ, because Tucker had filed a previous petition for federal habeas corpus in District Court on January 28, 1982 that did not raise the Franklin claim. The Court of Appeals agreed. It concluded that since, in its view, "Franklin did not constitute 'new law[,'] petitioner's Franklin claim should have been raised in his first petition," and that therefore it was an abuse of the writ under Habeas Corpus Rule 9(b), 28 U.S.C. 2254. --- F.2d ___ Crim. Action No. 87-8357 (CA11, May 27, 1987). Rule 9(b) allows a federal court to dismiss a second federal petition when "new and different grounds are alleged," if "the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ ." Ibid. 1076 In my view, Tucker's failure to raise the Franklin claim in his first petition for federal habeas relief does not constitute abuse of the writ under Rule 9(b). In Sanders v. United States, 373 U.S. 1, 18, 1078 (1963), the Court established guidelines for cases involving potential abuse of the writ: