Full opinion text
RANDALL, Circuit Judge: On May 1,1975, a jury in the Crisp County, Georgia, Superior Court convicted M. W. Holloway of voluntary manslaughter for the March 18, 1975, shooting of Joe Crumbley. At trial, Holloway had admitted the shooting, but had claimed self-defense. He was sentenced to twenty years. His conviction was affirmed on direct appeal in the Georgia courts, and the denial of his subsequent petition for habeas corpus in the state courts was affirmed by the Georgia Supreme Court. He then petitioned the federal district court below for a writ of habeas corpus. That court granted habeas relief, Holloway v. McElroy, 474 F.Supp. 1363 (M.D.Ga.1979), and the State of Georgia brings this appeal. We are presented with two questions: First, was the burden of persuasion on one or more elements of the crime of voluntary manslaughter impermissibly shifted to Holloway in violation of his due process rights under the United States Constitution? Second, should the standard so recently announced by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), be applied in determining the sufficiency of the evidence upon which he was convicted, and if so, was that evidence insufficient under the Jackson standard? For the reasons set out below, and with some qualifications, we answer these questions in the affirmative. We therefore affirm the action of the district court below in granting habeas corpus relief. I. FACTUAL BACKGROUND LEADING TO THIS APPEAL A. The Trial Holloway was tried on a charge of malice murder, but was found guilty only of voluntary manslaughter. The prosecution’s theory at trial was that Holloway deliberately, intentionally, and maliciously shot Joe Crumbley while Crumbley was sitting in his pickup truck at Holloway’s father’s farm-near Cordele, Georgia; Holloway then, according to the prosecution’s theory, attempted to alter the evidence at the scene to make it consistent with a story of self-defense. Holloway has consistently maintained that he shot Crumbley in legitimate self-defense as Crumbley came at him with a knife after the two men had scuffled. The chief evidence to support the State’s theory was a series of inconsistencies between Holloway’s version of the events as related at the trial and in interviews with police officers immediately after the shooting. For reasons that will become obvious later in this opinion, we proceed to sketch the evidence presented by both sides at Holloway’s trial on April 30-May 1, 1975; additional detail is provided in the accompanying footnotes. 1. The prosecution’s case-in-chief.-The prosecution’s first key witness was Deputy Sheriff Andrew Martin. Martin testified that he had driven to Holloway’s father’s farm at about 3:00 p. m. on the day of the shooting to answer a report of trouble. Holloway led Martin to Crumbley’s body, which lay just inside the doorway of the Holloway house. In response to Martin’s questioning, Holloway explained that the shooting had occurred after an argument and fight between Crumbley and himself. Crumbley had started the fight in a drunken rage, and when Holloway withdrew the house, Crumbley pursued him with a knife. Holloway claimed that he had been forced to shoot in self-defense as Crumbley threatened him with the knife after following Holloway into the house. The physical evidence at the scene was consistent in most respects with Holloway’s account of the events. The two respects in which the physical evidence was inconsistent with Holloway’s version of events, as told to Martin on the scene, had to do with the location of Crumbley’s coat at the time of the shooting and the ownership of a spread with which the body was covered. Holloway told Martin that Crumbley had taken off his own hat and jacket early in the fight. Other evidence at the trial showed that Crumbley had been wearing the jacket when the fatal shot was fired. Crumbley’s body was covered with a spread when Martin arrived on the scene; there was testimony that the spread came from Crumbley’s pickup truck rather than from the Holloway house, as Holloway claimed. Subsequent investigation positively confirmed that the gun Holloway turned over to Martin had been the one used in the shooting, and that the shooting had been the cause of Crumbley’s death. The other key witness was Georgia Bureau of Investigation Agent Jim Baker, who described two interviews he had conducted with Holloway after the shooting. In the initial interview, Holloway told a story very similar to that which he told Martin. When confronted with a discrepancy in his story with regard to when Crumbley took off his jacket, Holloway this time said that Crumbley took off the jacket as he came into the house. Holloway told Baker that he had fired from a kneeling position as Crumbley loomed over him with the knife; he fired several times. After an autopsy on Crumbley’s body indicated that the bullet’s trajectory ranged downward at a forty-five degree angle from the left shoulder into the right chest space, Baker again questioned Holloway as to the position from which he fired the shots, and Holloway again confirmed that he had begun firing while on his knees. Though Baker investigated with some care, he could find no other evidence inconsistent with Holloway’s claim of self-defense. 2. The defendant’s case-in-chief-The defense primarily relied upon M. W. Holloway’s own testimony. Holloway contended that Crumbley had started a fight with him after cursing him and accusing him of trying to shoot Crumbley in a previous incident that involved Crumbley’s unauthorized fishing at a pond on the Holloway property. After the men fought in the yard outside the Holloway house for a while, Holloway broke free and retreated to the house. But Crumbley followed him, brandishing a hunting knife and ignoring Holloway’s warnings. Holloway was forced to shoot to save his own life. After the shooting, he covered Crumbley’s body with a spread that he claimed belonged to him; he then summoned the police. When asked at trial to explain his prior inconsistent statements to the police officers regarding the jacket, he said that he didn’t remember much about the jacket-only that he had taken it off Crumbley after the shooting. Holloway flatly denied that he had gotten the spread out of Crumbley’s truck, or that he had ever plotted to kill Crumbley. He testified that he did not know Crumbley well enough to recognize him on sight, and that he only recognized Crumbley when Crumbley accused him of trying to shoot Crumbley at the fishpond. When asked why he had shot Crumbley, Holloway replied as follows: I shot Mr. Crumbley because Mr. Crumbley was trying to kill me with this knife, trying to stick me with this knife. I was trying to protect my life; I was trying to get him off me and the only way I could get him off me was with that. I tried to push him back; I tried to get him to leave two or three times. He testified further that he was physically unable to put up much of a fight because of a physical disability having to do with his hip joint. He denied having changed around any of the physical evidence on the scene, and said that he never went out to Crumbley’s truck at all. When asked to account for the inconsistencies between his testimony at trial and the statements he had given the police officers after the event, Holloway replied that he had been very upset and sick on the day of the shooting. He said that he did not deny that he might have made some inconsistent statements to the police about the jacket, but said that he was telling the story at trial as he remembered it. When asked to explain the path of the fatal bullet, the following exchange took place between the district attorney and Holloway: Q. Well, can you explain to the Jury in any manner that you see fit, how Joe Crumbley could have been shot in the left shoulder and the bullet take a downward trajectory with you on your knees and him over you? A. The last shot I fired at Mr. Crumbley, I was up. Q. Oh, now you remember that you A. I said that I was coming up and I had the gun pointed this way, the way I said it was done, in this direction, like this, and when I came up, Mr. Crumbley jerked, I felt him when he jerked back. (Ellipsis in original.) Unfortunately, the court reporter did not indicate Holloway’s descriptive gestures in the transcript. The defense rested, and its motion for a directed verdict of acquittal was denied. Both sides made closing arguments and the jury was charged. During their deliberations, the jury asked the court what the various sentences were for the different offenses as to which they had been instructed, but the court declined to answer that question. After deliberating for over three hours, the jury returned a verdict of guilty of voluntary manslaughter. Thus, they impliedly acquitted Holloway of the greater charge of malice murder and rejected his sole defense of self-defense. The court then sentenced Holloway to the maximum allowable sentence for voluntary manslaughter under Georgia law, twenty years. B. Holloway’s Direct Appeal in the Georgia Courts Following his conviction, Holloway appealed to the Georgia Court of Appeals. He urged that the trial court had erred in limiting the scope of questioning during the voir dire examination of the jury venire, and in failing to excuse some potential jurors who were challenged for cause. The court of appeals, however, sustained the trial judge’s action in limiting the questioning, holding that there was no abuse of discretion because some of the questions were overbroad; further, Holloway had not used all of his peremptory strikes, and hence could not complain of having to take any particular juror. Holloway v. State, 137 Ga.App. 124, 125(1-4), 222 S.E.2d 898, 899-90 (1975). Holloway also contended that the evidence was insufficient to support a conviction of voluntary manslaughter. Six judges-a majority of the court of appeals-disagreed, pointing to the discrepancies in Holloway’s testimony about the bullet’s path and the jacket: The evidence amply warranted a verdict of guilty of manslaughter; and further authorized the jury to disbelieve defendant’s testimony because of being contradicted by prior contradictory statements about when and who took the jacket off the deceased and as to whether the shots ranged downward or upward. Id. at 126(5-6), 222 S.E.2d at 900. Presiding Judge Braswell Deen, however, wrote a strong dissent that was joined in by two of the other judges. Judge Deen first reviewed the evidence presented at the trial, and concluded: The inconsistencies in the appellant’s statements concerning the dead man’s coat, the location of the spread and the position of the deceased when he was shot go to his credibility and the jury was within its prerogative to disbelieve him on these points and to find that the coat was being worn at the time of death, that the spread came from the truck and that the appellant was not on his knees when the shot was fired; however, to sustain a conviction of manslaughter there must have been evidence to authorize the jury to find that the appellant shot the deceased, not under circumstances where there was actual or apparent necessity to do so to save his own life, but in hot blood engendered by the deceased’s conduct toward him. Id. at 129, 222 S.E.2d at 902 (Deen, P. J., dissenting). Judge Deen determined that the only theory on which the state could argue that voluntary manslaughter was proved was one of mutual combat-i.e., that both men were at fault and willing to fight because of a sudden quarrel-but found this theory, and the theory that Holloway was not acting in self-defense, unpersuasive: It is true that the only evidence produced by the appellant to show that the homicide was perpetrated in self-defense was his own statement and testimony and that there was expert testimony that the decedent could not have been shot in the manner alleged. This does not however disprove that the shot was fired in self-defense; it merely is some evidence that the appellant was not in the position he claimed when the shot was fired. By the same token the state relied exclusively on the statement and testimony of the appellant to show an essential element of the crime of manslaughter (here mutual combat), and where no other evidence is produced to show such element, the evidence does not authorize a verdict of guilty. Id. (citing Georgia cases). He also noted that the State had the burden of proving that Holloway acted in the heat of sudden passion, and asked the majority this question: Where is the evidence to show that the deceased was killed in any manner other than in self-defense? There is none. The contradictions in the appellant’s story in no way disprove his explanation that the shot was fired in self-defense. To my mind the fact that a defendant’s story may prove to be contradicted does not remove the state’s burden to show at least some evidence of “hot blood.” The fact that the defendant’s explanation may be contradicted in some respects does not obviate the necessity for proof of the commission of a crime in order to sustain a conviction. Here the only evidence which could possibly be contrary to the appellant’s statement was the coat, the sheet and the bullet’s trajectory.... It is a woeful day when the state seeks a conviction of murder on such scant evidence. It is an even sadder day when a jury returns a verdict of guilty of manslaughter based upon so little evidence. But it is perhaps the most regretful day of all when an appellate court gives judicial sanction to such a result. Id. at 132-133, 222 S.E.2d at 903-04 (emphasis in original). But despite Judge Deen’s dissent, the Georgia Supreme Court denied Holloway’s application for a writ of certiorari. C. Holloway’s Habeas Corpus Proceedings in the State Courts After the Georgia Supreme Court denied Holloway’s application for certiorari, Holloway filed an application for a writ of habeas corpus in the United States District Court for the Middle District of Georgia, Americus Division. On June 16, 1977, however, this application was dismissed without prejudice by the district court because Holloway had failed to exhaust his state-court remedies, as required by 28 U.S.C. § 2254(b) (1976). The court suggested sua sponte that the charge given by the trial court was “notably suspect under the principles of Mullaney v. Wilbur,” 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and suggested that the issues concerning the trial court’s charge be presented to the state courts. Holloway then petitioned the Superior Court of Baldwin County, Georgia, for habeas corpus relief. That court denied relief, and the Georgia Supreme Court granted a certificate of probable cause to appeal. On appeal, the Georgia Supreme Court affirmed the denial of Holloway’s state-court habeas corpus petition in a three-paragraph opinion, which is reproduced below. The court first held that despite Holloway’s failure to raise the burden-shifting issues in his direct appeal or at trial, he did not waive the right to attack the charge on this ground in his state habeas corpus proceeding because the issue involved law developed after his trial. Holloway v. McElroy, 241 Ga. 400(1), 245 S.E.2d 658, 659 (1978). On the merits of the petition, the court concluded that because Holloway had no burden of proving anything until the State had “shown to a moral and reasonable certainty and beyond reasonable doubt that the defendant is the intentional slayer,” it was permissible to place upon Holloway the burden of persuasion as to justification, citing Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). 241 Ga. at 401(2), 245 S.E.2d at 659. Holloway apparently did not petition for certiorari from the United States Supreme Court after either his direct or collateral appeal in the state courts, but this is not required to exhaust state-court remedies. See County Court of Ulster County v. Allen, 442 U.S. 140, 149 n.7, 99 S.Ct. 2213, 2220 n.7, 60 L.Ed.2d 777 (1979). D. Habeas Proceedings in the Federal District Court After the Georgia Supreme Court affirmed the state court’s denial of Holloway’s petition for a writ of habeas corpus, Holloway brought this action in federal district court. The State conceded that Holloway had properly exhausted his state-court remedies, and both parties agreed that there was no need for an evidentiary hearing to supplement the record from the trial. The court below granted habeas corpus relief in a thoughtful, comprehensive opinion. Holloway v. McElroy, 474 F.Supp. 1363 (M.D.Ga.1979). The court first addressed the sufficiency of the evidence supporting the conviction. It began by noting that Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), established a new standard of review for federal courts to use in evaluating the sufficiency of the evidence supporting a state-court conviction: “Instead of determining whether or not here is ‘any evidence’ to support petitioner’s conviction, the court must now go further and satisfy itself that the evidence in the record could reasonably support a finding of guilt beyond a reasonable doubt.” 474 F.Supp. at 1364-65. The court then cited the reasoning of Judge Deen’s dissent from the Georgia Court of Appeals’ decision. The court also noted that the prosecution’s evidence revealed that Crumbley had a blood alcohol content of 0.12% at the time of his death, while 0.10% gives rise to a statutory presumption under Georgia law that a person was under the influence of alcohol; the court cited this as evidence supporting Holloway’s contention that Crumbley began the fight. The court held: In this court’s considered judgment this conviction for manslaughter was not supported. by evidence that would rationally lead to the conclusion of guilt beyond a reasonable doubt. It must[,] therefore, be set aside. Id. at 1365 (footnote omitted). The court noted by way of footnote that the double jeopardy clause would preclude Holloway’s retrial since the conviction was being set aside for insufficiency of evidence. Id. at 1365 n.1 (citing Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978)). The court continued to a discussion of the trial court’s charge. It found the charge to be constitutionally defective on three related bases. First, it held that the trial court erred in instructing the jury that Holloway was presumed under Georgia law to intend the consequences of his acts for purposes of establishing that the shooting was intentional. 474 F.Supp. at 1366-67. According to the district court, this unconstitutionally relieved the prosecution of its burden of proving an essential element of the crime-intent. It based this conclusion on the Supreme Court’s recent decision in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Second, the court held that the trial court erred in instructing the jury that the law presumed every intentional homicide to be malicious until the defendant had established the contrary to the jury’s satisfaction. 474 F.Supp. at 1367-69. In the court’s view, this instruction impermissibly shifted onto the defendant the burden of persuasion on malice-which was yet another essential element of the offense-and hence the instruction was unconstitutional under In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977); and Sandstrom, supra. Third, the court held that the trial court’s instruction impermissibly placed upon Holloway the burden of persuasion on self-defense. 474 F.Supp. at 1369-70. The court reasoned that under Georgia law, “unlawfulness” was an essential element of both murder and manslaughter, but that self-defense and unlawfulness were mutually exclusive propositions: “[T]o require the defendant to prove self-defense-(lawfulness)-would relieve the prosecution from proving an essential element of the crime charged-(unlawfulness).” 474 F.Supp. at 1369 (quoting Porter v. Leeke, 457 F.Supp. 253, 255 (D.S.C.1978)). The court concluded that under Georgia law, “the absence of self-defense is an element of the crime which the prosecution must [prove] beyond a reasonable doubt.” Id. Hence, because the charge required Holloway to establish his defense of self-defense by a preponderance of the evidence, it unconstitutionally shifted to Holloway an essential element of the prosecution’s case. Finally, the court determined that these erroneous instructions were not harmless error beyond a reasonable doubt, citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). 474 F.Supp. at 1370. The court ordered the State to release Holloway immediately after the judgment became final by virtue of either the State’s failure to appeal, or by affirmance upon appeal. The court offered to entertain a motion for bail pending appeal, and counsel for Holloway informed this court at oral argument that Holloway is now free on bail pending our decision. E. Summary of the Issues Before This Court on Appeal In summarizing the issues with which we are now presented, perhaps it is best to start by listing the issues that are not properly before us. First, there is no question but that Holloway is entitled to raise as grounds for habeas relief the asserted errors in the trial court’s charge, despite his failure to raise those issues at trial or pursue them on direct appeal. Any doubt that we might otherwise have as to whether Holloway was barred by a state-law contemporaneous objection rule or some other independent and adequate state-law procedural ground, see Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), has been resolved for us by the highest authority on Georgia’s procedural law, the Georgia Supreme Court. That court specifically held as a predicate to affirming the denial of Holloway’s state-court habeas petition that, in view of the rapid changes in the law wrought by the United States Supreme Court since Holloway’s trial in 1975, no state procedural ground should be used to bar Holloway from asserting his arguments on the merits of the trial court’s charge. Holloway v. McElroy, 241 Ga. 400(1), 245 S.E.2d 658, 659 (1978). “[I]f neither the state legislature nor the state courts indicate that a federal constitutional claim is barred by some state procedural rule, a federal court implies no disrespect for the State by entertaining the claim.” County Court of Ulster County v. Allen, 442 U.S. 140, 154, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979) (footnote omitted). We therefore need not decide the question of whether the facts of this case would otherwise bring it within the “cause” and “prejudice” exceptions to the rule of Wainwright v. Sykes. Next, we agree with the State that another issue was not properly before the district court, and is not before us on appeal. One stated ground for the district court’s decision was that the trial court’s instructions as to the presumption of malice had relieved the prosecution of its obligation to prove beyond reasonable doubt every essential element of the crime of murder. Had the jury found Holloway guilty of malice murder, the trial court’s instructions on malice would certainly have been relevant. But the jury found Holloway guilty only of the crime of voluntary manslaughter. As the district court pointed out, 474 F.Supp. 1369 at n.4, and as we will discuss in more detail later in this opinion, voluntary manslaughter is defined as being a homicide that would be murder but for the lack of malice; voluntary manslaughter requires instead that the defendant must have acted “solely as the result of a sudden, violent,’ and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person,” rather than with malice. Ga.Code Ann. § 26-1102 (1978) . The jury necessarily found an absence of malice when it impliedly acquitted Holloway of murder but convicted him of voluntary manslaughter. Thus, even if the trial court’s instructions operated to shift the burden of negating malice to Holloway, the jury found that he satisfactorily met that burden; Holloway is now in no position to complain of this portion of the charge, since it did not ultimately work to his detriment. Any error was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Wynn v. Mahoney, 600 F.2d 448, 450 (4th Cir.), cert. denied, 444 U.S. 950, 100 S.Ct. 423, 62 L.Ed.2d 320 (1979) . Insofar as the district court’s decision was based on alleged errors in the portion of the trial court’s charge that dealt with the presumption of malice, that portion of its opinion must be regarded as no more than dictum. W-e are not to be construed as intimating any views whatsoever as to whether that dictum would have been a correct statement or application of the law had the facts of the case properly presented that issue to the district court. The same may be said, though for different reasons, for the portion of the district court’s opinion that dealt with the trial court’s instruction on the presumption of intent. General intent is an essential element of all crimes under Georgia law (except those involving criminal negligence), see Ga.Code Ann. § 26-601 (1978), but Holloway has never contended that his shooting of Crumbley was unintentional-/, e., that he did not intend the natural and probable consequences of his act. Compare Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) (holding unconstitutional a presumption of intent where defendant claimed shooting was not knowing or purposeful because of personality disorder aggravated by alcohol; jury could reasonably have thought presumption was conclusive or placed burden of persuasion on defendant-either of which would violate due process). Holloway acknowledged that he had committed the homicide, and that he had done so intentionally. By pleading only self-defense, he voluntarily focused the entire determination of his criminal culpability on a single question-was the homicide justified? There is no denial of due process in allowing a defendant to admit some essential elements of the crime in order to put justification into issue. We are convinced that any error in the jury instructions on the intent issue was harmless beyond reasonable doubt. Chapman v. California, supra. Thus, insofar as the district court’s decision was based on alleged errors in the portion of the trial court’s charge that dealt with the presumption of intent, that portion of the district court’s opinion must be regarded as dictum. We intimate no view as to the correctness of the district court’s dictum were it to be applied in an appropriate case. Thus, we have remaining before us two questions: First, could the State require Holloway to establish his self-defense claim by a preponderance of the evidence? Second, was there sufficient evidence to support Holloway’s conviction? To answer the first question, we must determine the essential components of the crime of voluntary manslaughter under Georgia’s substantive criminal law. Particularly, we must determine whether the absence of self-defense is an essential element of the crime, at least in those instances in which the issue is properly raised. If it is, then the State violated Holloway’s due process rights by placing upon him the burden of persuasion on the self-defense issue, and Holloway is entitled at the least to a new trial, in which the burden of persuasion on this issue would be placed upon the prosecution. We undertake this analysis in part II of this opinion. But even if we hold that the State violated Holloway’s due process rights in placing upon him the burden of persuasion on the self-defense issue, we must still address the question of the sufficiency of the evidence. Holloway seeks not just his release from prison, but freedom from retrial. He contends not just that this jury made its determination under an erroneous charge, but that no jury when properly charged could have found him guilty of every necessary element of the offense from the record evidence adduced at trial. To determine whether he is entitled to the full measure of relief he seeks, we must review the sufficiency of the evidence upon which he was convicted, for were we to find that evidence insufficient, Holloway would thereafter be entitled to assert the double jeopardy clause as a bar to his retrial for this killing. As a predicate to our review of the sufficiency of the evidence, we must decide whether the standard of review set out in Jackson v. Virginia is the appropriate one for this court to use. We deal with the sufficiency of the evidence issue, including the proper standard of review, in part III of this opinion. II. THE BURDEN OF PERSUASION ON THE ISSUE OF SELF-DEFENSE A. The Trial Court’s Charge on Self-Defense Early in its charge, the trial court instructed the jury as to the definition of malice murder under section 26-1101 of the Georgia Criminal Code. It then went on to charge as to the crime of voluntary manslaughter, and the differences between that crime and malice murder: the latter crime requires either express or implied malice, while voluntary manslaughter requires that the killer have acted solely from a sudden, violent, and irresistable passion resulting from serious provocation sufficient to excite such passion in a reasonable person. The trial court then charged on justification-specifically, through defense of one’s person or habitat. After defining the circumstances in which justification would exist, the trial court charged the jury that it should acquit if it found that Holloway was justified under one or more of the principles of justification given. In setting out the circumstances in which an intentional homicide should not be found to be malicious, the trial court charged: I charge you further that the law presumes every intentional homicide to be malicious until the contrary appears from circumstances of alleviation, of justification, of mitigation, or excuse, and the burden is on the slayer whenever an intentional homicide has been proved to make out such circumstances to the satisfaction of the Jury unless they appear from the evidence produced against him. Almost immediately thereafter, it charged as to the burden of persuasion on the self-defense issue: I charge you that when a killing is proved to be the intentional act of the defendant, the presumption of innocence with which he enters upon the trial is removed from him and the burden is upon him to justify or mitigate the homicide unless the evidence introduced against him shows justification or mitigation or excuse, but as I have charged you heretofore, the evidence in justification or mitigation or excuse may be found in the evidence introduced against him. If there be no evidence introduced to show justification or excuse, and if the evidence introduced shows the homicide committed as charged in the Indictment, the burden would then be upon the defendant to show justification or mitigation or excuse. Transcript at 253-54 (emphasis added). The district court found that even though the charge never explicitly allocated the burden of persuasion on the self-defense issue, the charge as a whole operated to put the burden of proof on self-defense on Holloway. 474 F.Supp. at 1369-70. This was also the construction given the charge by the Georgia Supreme Court, see Holloway v. McElroy, 241 Ga. 400, 401(2), 245 S.E.2d 658, 659 (1978). We note that because voluntary manslaughter was defined in terms of circumstances that would otherwise be murder but for the substitution of “hot blood” for malice, a reasonable juror could well have believed that the burden was on the defendant to make out to the jury’s “satisfaction” any circumstances of justification, mitigation, or excuse on the manslaughter charge, too. When combined with the other language quoted above-which abolishes the presumption of innocence once an intentional killing is shown, and requires the defendant to carry the “burden” on justification, mitigation, or excuse (without distinguishing between burdens of production and persuasion)-this inference would be even more compelling. After considering the entire charge, in addition to that particularly relevant portion set out above, we agree with the district court that a reasonable juror could well have believed from the charge as given that the burden was on Holloway to establish, by something approximating a preponderance of the evidence, that the killing was in self-defense. Thus, once an intentional killing was shown-as it was in this case by Holloway’s own testimony-a reasonable juror could have believed that his duty was to convict even if it was exactly as likely as not that the killing had been in self-defense. Whether the resulting conviction would be for malice murder or voluntary manslaughter would depend on whether Holloway had established to the jury’s satisfaction that the killing was not done with malice, but instead with “hot blood.” The State does not seriously contend otherwise, but instead insists that this allocation of the burden of persuasion is constitutionally permissible and in accord with Georgia law at the time of the trial. Whether the State is correct in this assertion depends upon the relationship between self-defense and the unlawfulness requirement in Georgia’s definition of the crime of voluntary manslaughter. Our analysis of this relationship must be performed within the framework established in recent Supreme Court decisions that construe the requirements binding upon the States under the due process clause. B. The Framework for Constitutional Analysis of the States’ Definition of Crimes and Allocation of Burdens of Persuasion 1. In re Winship.-ln invalidating a New York statute that allowed the State to convict juveniles of crimes upon proof by a preponderance of the evidence, the Supreme Court explicitly held for the first time in In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970), that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” The Court emphasized that the long-established adherence to this standard in common-law jurisdictions reflected “a profound judgment about the way in which law should be enforced and justice administered.” Id. at 361-62, 90 S.Ct. at 1071 (quoting Duncan v. Louisiana, 391 U.S. 145, 155, 88 S.Ct. 1444, 1450, 20 L.Ed.2d 491 (1968)). The Court noted that many of its previous opinions had assumed that the “beyond reasonable doubt” standard was required by the Constitution, id. at 362-63, 90 S.Ct. at 1071-72, and noted that “[t]he standard provides concrete substance for the presumption of innocence-that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of the criminal law.’ ” Id. at 363, 90 S.Ct. at 1072 (quoting Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 402, 39 L.Ed. 481 (1895)). Among the “cogent reasons” supporting the standard’s vital role, said the Court, are its value in reducing the margin of error through which innocent persons might be wrongly convicted, and in fostering the respect and confidence of the community in the integrity of the criminal justice system. Id. at 363-64, 90 S.Ct. 1072-73. A bare two years later, the Supreme Court held in Ivan V. v. City of New York, 407 U.S. 203, 205, 92 S.Ct. 1951, 1952, 32 L.Ed.2d 659 (1972) (per curiam), that the rule announced in Winship was to be given “complete retroactive effect.” 2. Mullaney v. Wilbur.-The Supreme Court was called upon in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), to determine whether Wilbur’s murder conviction in a Maine state court was in violation in his Winship rights because the burden of proving that he acted in “heat of passion” was placed upon him. Wilbur contended at trial that he had lacked the requisite criminal intent to be convicted of murder, or alternately that the killing could be no more than manslaughter since it occurred in the heat of passion provoked by the victim’s homosexual assault. The trial court instructed the jury that, under Maine law, the crimes of murder and manslaughter shared the common elements of intent and unlawfulness (lack of excuse or justification). The jury was instructed that once the prosecution had proven these elements beyond a reasonable doubt, malice aforethought-the additional element necessary to establish the crime of murder-was to be conclusively implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation, in which case a conviction for manslaughter would be authorized. The. trial court emphasized that malice aforethought and heat of passion were two fundamentally inconsistent things, and that by proving the latter the defendant would negate the former and reduce the homicide from murder to manslaughter. The Supreme Court first noted that it was bound by the construction given by state courts to their states’ laws except in extreme circumstances that were not present in that case. Id. at 691, 95 S.Ct. at 1886. The Court capsulized Maine’s law of homicide as follows: Absent justification or excuse, all intentional or criminally reckless killings are felonious homicides. Felonious homicide is punishable as murder-/, e., by life imprisonment-unless the defendant proves by a fair preponderance of the evidence that it was committed in the heat of passion on sudden provocation, in which case it is punished as manslaughter .... Id. at 691-92, 95 S.Ct. at 1886. The Court noted that, while at common law the burden of proving heat of passion rested on the defendant, the large majority of states had come to require the prosecution to prove beyond reasonable doubt the absence of heat of passion. Id. at 693-96, 95 S.Ct. at 1886-88. The Court refused the State’s invitation to limit Winship to those facts that, if proved, would wholly exonerate the defendant: Maine has chosen to distinguish those who kill in the heat of passion from those who kill in the absence of this factor.... By drawing this distinction, while refusing to require the prosecution to establish beyond a reasonable doubt the fact upon which it turns, Maine denigrates the interests found critical in Win-ship. Id. at 698, 95 S.Ct. at 1889. The Court noted that Winship had been concerned with substance rather than form, and pointed out: Not only are the interests underlying Winship implicated to a greater degree in this case, but in one respect the protection afforded those interests is less here. In Winship the ultimate burden of persuasion remained with the prosecution, although the standard had been reduced to proof by a fair preponderance of the evidence. In this case, by contrast, the State has affirmatively shifted the burden of proof to the defendant. The result, in a case such as this one where the defendant is required to prove the critical fact in dispute, is to increase further the likelihood of an erroneous murder conviction. Id. at 700-01, 95 S.Ct. at 1890-91. In addressing the practical consequences of its holding, the Court noted that Maine itself required the prosecution to prove beyond reasonable doubt the absence of self-defense; the Court therefore could “discern no unique hardship on the prosecution that would justify requiring the defendant to carry the burden of proving a fact so critical to criminal culpability.” Id. at 702, 95 S.Ct. at 1891. The Court concluded by noting that “[ujnder this burden of proof a defendant can be given a life sentence when the evidence indicates that it is as likely as not that he deserves a significantly lesser sentence [under Maine law].” Id. at 703, 95 S.Ct. at 1892 (emphasis in original). For the sum of these reasons, the Court concluded that Wilbur’s conviction could not stand. In 1977, the Court held that the rule announced in Mullaney necessarily must be given retroactive effect: Ivan V. [v. City of New York, 407 U.S. 203, 92 S.Ct. 1951, 32 L.Ed.2d 659 (1972),] controls this case. In Mullaney v. Wilbur, as in In re Winship, the Court held that due process requires the States in some circumstances to apply the reasonable doubt standard rather than some lesser standard under which an accused would more easily lose his liberty. In Mullaney, as in Winship, the rule was designed to diminish the probability that an innocent person would be convicted and thus to overcome an aspect of a criminal trial that “substantially impairs the truth-finding function.” Hankerson v. North Carolina, 432 U.S. 233, 242, 97 S.Ct. 2339, 2344, 53 L.Ed.2d 306 (1977). The Court ended its opinion, however, with this observation: “Since the issue of whether due process requires the prosecution to disprove self-defense beyond a reasonable doubt under North Carolina law was not raised by either party in this case, we decline to consider it now.” Id. at 245, 97 S.Ct. at 2346. 3. Patterson v. New York-New York’s statutory definition of second-degree murder differed somewhat from the homicide law reviewed by the Court in Mullaney. Malice aforethought was not an element of the New York version of the crime; indeed, there was no requirement of premeditation whatsoever. Instead, all that was required was for the prosecution to prove that there was an intentional killing. That done, the State allowed a defendant to raise and prove as an affirmative defense that he acted “under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse.” The Court upheld a conviction under this statute in Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), while insisting that it was not overruling Mullaney. Indeed, Patterson was announced on the very day that the Court declared Mullaney to be retroactive in the Hankerson case. The Patterson Court began by noting: [I]t is normally “within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion,” and its decision in this regard is not subject to proscription under the Due Process Clause unless “it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Id. at 201-02, 97 S.Ct. at 2322-23 (citing Speiser v. Randall, 357 U.S. 513, 523, 78 S.Ct. 1332, 1341, 2 L.Ed.2d 1460 (1958); Leland v. Oregon, 343 U.S. 790, 798, 72 S.Ct. 1002, 1007, 96 L.Ed. 1302 (1952); and Sny der v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934)). The Court then described its holding in Leland v. Oregon, supra, which found no due process violation in an Oregon rule that insanity must be proved beyond a reasonable doubt by the defendant. The Patterson Court declined to reconsider Leland’s vitality. Id., at 207, 97 S.Ct. at 2325. Applying a strict procedural due process analysis, the Court held: We cannot conclude that Patterson’s conviction under the New York law deprived him of due process of law. The crime of murder is defined by the statute, which represents a recent revision of the criminal code, as causing the death of another person with intent to do so. The death, the intent to kill, and causation are the facts that the State is required to prove beyond a reasonable doubt if a person is to be convicted of murder. No further facts are either presumed or inferred in order to constitute the crime. The statute does provide an affirmative defense-that the defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation-which, if proved by a preponderance of the evidence, would reduce the crime to manslaughter, an offense defined in a separate section of the statute. It is plain enough that if the intentional killing is shown, the State intends to deal with the defendant as a murderer unless he demonstrates the mitigating circumstances. Id. at 205-06, 97 S.Ct. at 2324-25 (emphasis added). The Court did not believe that this offended any of the substantive fairness requirements of the due process clause: though New York’s placement of the burden of persuasion on the defendant enhanced the probability that a person legitimately entitled to the mitigation of punishment would be penalized unfairly, [d]ue process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person .... [I]n each instance of a murder conviction under the present law, New York will have proved beyond a reasonable doubt that the defendant has intentionally killed another person, an act which it is not disputed the State may constitutionally criminalize and punish. If the State nevertheless chooses to recognize a factor that mitigates the degree of criminality or punishment, we think the State may assure itself that the fact has been established with reasonable certainty. To recognize at all a mitigating circumstance does not require the State to prove its nonexistence in each case in which the fact is put in issue, if in its judgment this would be too cumbersome, too expensive, and too inaccurate. Id. at 208-09, 97 S.Ct. at 2326 (footnote omitted). The Court summarized its holding as follows: We thus decline to adopt as a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused. Traditionally, due process has required that only the most basic procedural safeguards be observed; more subtle balancing of society’s interests against those of the accused have been left to the legislative branch. We therefore will not disturb the balance struck in previous cases holding that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged. Proof of the nonexistence of all affirmative defenses has never been constitutionally required; and we perceive no reason to fashion such a rule in this case and apply it to the statutory defense at issue here. This view may seem to permit state legislatures to reallocate burdens of proof by labeling as affirmative defenses at least some elements of the crimes now defined in their statutes. But there are obviously constitutional limits beyond which the States may not go in this regard. Id. at 210, 97 S.Ct. at 2327 (emphasis added). The Court did not, however, attempt to define very precisely where those limits would be drawn. By way of obvious example rooted in the Court’s prior precedent, it noted that the legislatures of the States cannot declare an individual guilty or presumptively guilty of a crime, and neither can they command that the finding of an indictment, or mere proof of the identity of the accused, should create a presumption of all the facts essential to guilt. Id. (citing cases). The Court next went to considerable lengths to distinguish Mullaney. “Mullaney surely held that a State must prove every ingredient of an offense beyond a reasonable doubt, and that it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense.” Id. at 215, 97 S.Ct. at 2329. But the Court rejected a broader reading. The key distinction between the two cases, said the Court, was in the way the States defined the crimes: Premeditation was not within [Maine’s] definition of murder; but malice, in the sense of the absence of provocation, was part of the definition of that crime. Yet malice, i. e., lack of provocation, was presumed and could be rebutted by the defendant only by proving that he acted with heat of passion upon sudden provocation. In Mullaney we held that however traditional this mode of proceeding might have been, it is contrary to the Due Process Clause as construed in Winship. As we have explained, nothing was presumed or implied against Patterson; and his conviction is not invalid under any of our prior cases. Id. at 215-16, 97 S.Ct. at 2329-30. 4. Where the States are left after Winship, Mullaney, and Patterson — These three recent Supreme Court cases indicate that, in applying the due process clause to the States’ definition of criminal offenses and allocation of burdens of persuasion, there are both procedural fairness and substantive fairness components to the analysis. Winship makes clear that the States are bound by some of the deeply ingrained traditions of substantive fairness from our common-law heritage; one central substantive value is that no person should be convicted when there remains a reasonable doubt as to the truth of any of the essential elements included in the definition of the crime. To protect this particular substantive value, the Winship Court confirmed the constitutional necessity of a strict rule of procedural due process: the Constitution requires that the burden be placed upon the prosecution to prove beyond reasonable doubt every element (or ultimate fact) included in the definition of a crime. There are certainly other such substantive values protected by the Constitution: “A normative principle for protecting the ‘innocent’ must take into account not only the certainty with which facts are established but also the selection of facts to be proved.” Jeffries & Stephan, Defenses, Presumptions, and Burden of Proof in the Criminal Law, 88 Yale L.J. 1325, 1347 (1979). The States, however, are not completely proscribed from modifying through their legislatures and courts their criminal laws to reflect changing notions and policies: they may, within substantive fairness limits whose boundaries are not yet precisely marked, redefine the elements of their criminal offenses. In so doing, they may wish to reallocate burdens of persuasion on those issues that they remove from the definition of the crime, thereby converting those issues from elements into matters of mitigation or enhancement. Yet the States must also adhere tightly to procedural due process requirements in order to protect adequately the substantive values with which they may not tamper-such as the rule that conviction may be had only when the essential elements included in the definition of the crime have been established to a high degree of accuracy. Mullaney and_ Patterson both articulate one variation on the procedural due process requirement that the Winship Court found necessary to protect this particular substantive value: despite a State’s characterization of an issue as being an “affirmative defense,” the State may not place the burden of persuasion on that issue upon the defendant if the truth of the “defense” would necessarily negate an essential element of the crime charged. Furthermore, Mullaney and Patterson indicate that the federal courts will take a functional approach in determining what elements comprise a given crime under the State’s law. In Mullaney, for example, the Court pierced the Maine Supreme Court’s categorization of its law as providing for a unitary crime of felonious homicide that did not require a showing of specific criminal intent to convict. As the Patterson Court reminded us in discussing the Maine statute that was at issue in Mullaney, though Maine claimed that malice was not an essential element in this crime of felonious homicide, malice in the sense of a lack of provocation was the sole difference between two very different degrees of punishment; this being true, the prosecution could not rely on a presumption to establish this essential lack of provocation merely because the other elements of the crime had been established. In determining whether a State has met these demands of procedural due process, the federal courts must satisfy themselves that a State’s characterization of its laws does not, by refusing to address logical inconsistencies, functionally operate to place the burden of persuasion on an essential element upon the defendant. At bottom, a unanimous Court in Mullaney was not persuaded that Maine really intended to punish all intentional killers equally, giving no regard to the degree of their specific criminal intent until each given defendant tried to establish his lesser culpability because of a less blameworthy degree of specific criminal intent. In Patterson, however, a majority of the Court was persuaded that this was exactly what New York intended to do: “It is plain enough that if the intentional killing is shown, [New York] intends to deal with the defendant as a murderer unless he demonstrates the mitigating circumstances.” Patterson, 432 U.S. at 206, 97 S.Ct. at 2325 (emphasis added). Implicating as it does complex considerations of federalism and substantive fairness, this functional analysis of the elements of States’ crimes requires close calls. Though the proper balance in applying this functional analysis is difficult to achieve, the framework within which that analysis is to be applied is consistent with our Nation’s traditions of federalism, while still protecting adequately important values of substantive fairness to individual defendants. As we noted above, it is true that within substantive fairness limits which have not yet been clearly charted, the States may in good faith modify their criminal laws. Winship clearly establishes one particular limit on the States’ power to allocate burdens of persuasion: once the States have defined their crimes, the burden must be placed on the prosecution to persuade the factfinder that every element of the crime has been proved beyond reasonable doubt. Beyond this, however, Mullaney and Patterson do not tell us the location of any substantive limits on the States’ powers to define their crimes or allocate burdens of persuasion thereunder, but instead tell us only where those limits are not. The Patterson Court was confronted with the argument that Mullaney established a new substantive rule, to the effect that it would be unconstitutional in all circumstances-as a substantive matter-to place upon a defendant the burden of persuasion on the issue of whether the killing was the result of provocation. But the Patterson Court refused to read Mullaney as having announced such a substantive rule. After Patterson, Mullaney can only be read as a case in which the Supreme Court did not believe that the State’s procedures afforded adequate regard for the substantive value that prompted the procedural rule announced in Winship: once the Mullaney Court had determined that malice (lack of provocation) was an essential element of the crime of murder under Maine law, it was led to conclude that forcing the defendant to carry the burden of persuasion on that issue violated procedural due process, for it made all too likely a defendant’s conviction when there was still a reasonable doubt about the truth of an essential element of the crime. Thus, Patterson reads Mullaney as being no more than a procedural due process case that protects an established substantive value. Having re-read Mullaney in this manner, the Patterson Court was able to assume that there was no substantive violation in convicting of murder a defendant who, as likely as not, was acting under extreme emotional disturbance. That assumption made, the only remaining task was to see if New York afforded adequate procedural respect to the substantive value that the Win-ship Court sought to protect. Once the Patterson Court determined that the absence of extreme emotional disturbance was not an essential element of the crime, it was led to conclude that New York’s procedural practice was constitutional: the truth of the defense did not necessarily negate any element of the crime. The prosecution was still being required to prove every essential element of the crime, and there was no violation of fundamental fairness in inflicting this punishment upon proof of only those elements. The particular substantive value that prompted Winship-i. e., the requirement that the essential elements of the crime be established with a high degree of accuracy before a conviction could be obtained-was therefore not offended, or even implicated, by placing the burden of persuasion on the extreme emotional disturbance issue on the defendant. But Patterson leaves open the possibility that there are substantive fairness values in addition to the one that prompted the procedural rule of Winship. For example, a plausible argument could be made that it would violate other substantive values if a State refused to recognize the doctrine of self-defense, either as a matter in mitigation that was not inconsistent with any element of the crime, or as a matter whose absence was an essential element of the crime. The Supreme Court has not reached the question of whether such a practice would run afoul of substantive fairness guarantees in the Constitution regardless of how the State’s law was structured, and neither need we. But, as Mullaney makes clear, the federal courts in guarding the federal constitutional rights of state-court defendants invoking their protection, will employ a functional analysis in determining whether the State has truly excluded the absence of the excuse or justification from the definition of the crime, as in Patterson, or has actually and functionally incorporated it as an essential element of the crime, as in Mullaney. The adjustment must truly be made in the elements necessary to constitute the crime; merely labeling an issue as an “affirmative defense” in mitigation or exoneration does not, as Mullaney makes clear, end the analysis. C. The Absence of Self-Defense as an Element of Voluntary Manslaughter Under Georgia Law 1. The Georgia Siatutes.-Naturally enough, we must begin our determination of the essential elements of the crime of voluntary manslaughter under Georgia law with the pronouncements of the Georgia Legislature. Voluntary manslaughter is defined in the statutes by reference to the crime of malice murder. Malice murder is defined as follows: A person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart. Ga.Code Ann. § 26-1101(a) (1978) (emphasis added). Thus, on the simplest level of analysis-an independent exercise in statutory construction-murder would appear to have three elements. First, the defendant must cause the death of another human being. But this homicide is not murder unless there are two other elements: the killing must be unlawful, and it must be with malice aforethought. It is, of course, possible that a defendant’s acts may give rise to other sorts of criminal liability even though both elements in addition to the killing are not present; but without a combination of homicide, unlawfulness, and malice, there can be no murder. Voluntary manslaughter, in turn, is defined as follows: A person commits voluntary manslaughter when he causes the death of another human being, under circumstances which would otherwise be murder, if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious prov