dissenting:
In Franklin v. Francis, — U.S. -, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), the United States Supreme Court held that a jury instruction virtually identical to one *893given in this case was unconstitutional because a reasonable juror could have understood it to shift to the defendant the burden of proof on the issue of intent. The majority does not reach the issue of whether additional language rendered this instruction constitutionally permissible in the instant case, because the majority holds that, even if the instruction was unconstitutional, any error in the instruction was harmless. In coming to this conclusion, the majority misreads the record of petitioner’s trial in state court. I dissent.
I. Constitutionality of the Challenged Instruction
It is clear that the challenged instruction in the instant case violated Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and its progeny, and therefore was unconstitutional. As in Franklin, the jury was instructed: “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 reasonable juror could have understood this instruction to create “a mandatory presumption that shifted to the defendant the burden of persuasion on the element of intent once the State had proved the predicate acts.” Franklin, supra, 105 S.Ct. at 1972.
The instruction in the instant case was followed by a further instruction, which stated:
A specific intent to commit the crime charged in this indictment is an essential element that the State must prove beyond a reasonable doubt. Intent is always a question for the jury, and is ordinarily ascertained by acts and conduct. Intent may be shown in many ways, provided the jury finds that it existed from the evidence produced before you. It may be inferred from the proven circumstances, or by acts and conduct, or it may be presumed when it is the natural and necessary consequences of the act.
Blake v. Zant, 513 F.Supp. 772, 792 (S.D.Ga.1981). As the majority notes, the Supreme Court stated in Franklin that “[ljanguage that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity.” Franklin, supra, at 1975. The Court continued, “A reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict.” Id.
The instruction following the Franklin instruction in this case does not explain the Franklin instruction. In stating that the jury may presume intent from the natural consequences of an act, the second instruction merely contradicts the first. In this situation, we are required to hold that the Franklin instruction was unconstitutional.
II. Harmless Error Analysis
Where a burden-shifting instruction on intent constitutes Sandstrom error, the error can be held harmless if the court can say beyond a reasonable doubt that the faulty instruction did not contribute to the verdict obtained. Davis v. Kemp, 752 F.2d 1515, 1521 n. 7 (11th Cir.1985) (en banc) (iquoting Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). This Court has identified two situations where a Sandstrom violation on the issue of intent can be held harmless: (1) where intent is not at issue in the case, or (2) where the evidence of intent is overwhelming. R. Tucker v. Kemp, 762 F.2d 1496, 1502 (11th Cir.1985) (en banc).
The majority holds that in the instant case the petitioner’s sole defense was to put the prosecution to its proof. The majority concludes that, although this defense put intent at issue, the defense “left uncountered the strong implication of intent which was bound to arise from the evidence presented by the state.” The majority therefore holds that the evidence of intent in this case was overwhelming, and that the Sandstrom error was harmless.
A reading of the state trial transcript reveals that Burger’s defense entailed far more than simply putting the prosecution to its proof. Throughout the trial, Burger’s counsel sought to show that Burger’s *894co-defendant Stevens was the moving force behind the entire crime, and that Burger was merely a follower who did what Stevens told him to do. Indeed, the district court in this case has found that an examination of the trial record shows considerable effort to portray Stevens as the chief architect of the crime. Blake, supra, at 795. The essence of Burger’s defense was that, although Burger took part in the crimes, he did so under duress and did not have the requisite intent for murder.
The state’s main evidence in the guilt phase of this case came from a confession given by Burger and from testimony by James R. Botsford, who was in the same military unit as Burger and Stevens and was their squad leader. The confession was read to the jury by witness Clarence Haire, trial transcript (“tr.”) at 278-286, who had taken the confession. In his confession, Burger stated that he and Stevens were out drinking on the night of the crime and ran out of money. Stevens suggested to Burger that they could get some money by robbing a cab driver. Stevens and Burger arranged to take a taxicab to the airport, where they were to pick up Bots-ford.
On the way to the airport, Stevens pulled a butcher knife on the cab driver, the victim of the crime. After the victim said that he had only sixteen dollars, Stevens forced the victim to get out of the cab and remove his clothes. Stevens discarded the clothes and got in the rear of the vehicle with the cab driver. While Burger was driving, Stevens forced the victim to perform oral sodomy upon him, and Stevens then performed anal sodomy on the victim. At some point, Burger stopped the car and the victim was put in the trunk of the car.
Burger and Stevens picked up Botsford at the airport and proceeded to drive Bots-ford back to Fort Stewart, their military base. Botsford asked Burger why he was driving the taxicab, and Stevens answered that they had “taken” the taxicab. Stevens told Botsford that the cab driver was in the trunk, and indicated that they were going to kill the cab driver. As Botsford got out of the car at the base, he asked them not to kill the victim.
Burger and Stevens drove the vehicle away, and then encountered a patrol vehicle. When the patrol vehicle went by, Stevens told Burger that they were going to “get burnt,” and that they had to do something with the cab. Stevens told Burger to drive to a nearby pond. At the pond, Stevens directed Burger to wipe the fingerprints off the ear. Stevens then directed Burger to put the car in gear and run it into the pond.
After doing this, Burger started to walk away and told Stevens he was leaving. Stevens told him he could not leave, “because we have to make sure — want to make sure the car goes down, with the man in the trunk.”
In his cross-examination of Mr. Haire, Burger’s counsel asked, “Now, your testimony to this jury as to what Burger told you — based on your testimony, is it not, as to what he said and what is contained in his statement, that Stevens was the one that said drive it to the pond, and Stevens more or less directed the whole operation, according to your testimony; is that correct?” Tr. at 297. The court sustained an objection to the question, stating to Burger’s counsel: “You’re getting into the province of the jury to determine the facts of the situation.” Id. Burger’s counsel then elicited from Mr. Haire the fact that Burger was only 17 years old at the time of the crime.
Mr. Botsford was the key witness for the state. On cross-examination by Burger’s counsel, Mr. Botsford gave the following testimony:
Q. Mr. Botsford, I think you were friends — you say you were friends with . Chris Burger and Tom Stevens in boot camp?
A. That’s correct.
Q. When they — when you got in the cab and you heard this voice or whatever it was in the back of the cab, did you know who that was?
A. No, I didn’t.
*895Q. So you don’t know of your own knowledge whether that was Roger Honeycutt or not; do you?
A. I didn’t know him by name. I knew it was the cab driver.
Q. You just knew it was the cab driver back there?
A. The cab driver of the cab.
Q. Well, that’s just because they told you it was; isn’t that right?
A. That’s right.
Q. And, the person that told you that was Stevens?
A. That’s correct.
Q. In fact, Stevens was the one that was doing all the talking; wasn’t he? A. Most of it.
Q. And, Burger was just sorta going along, sorta doing sorta like Stevens was telling him to do; wasn’t he?
A. Sorta.
Q. I think you said that when you said something about turning the cab driver loose, Burger agreed that was the thing that should be done?
A. That’s correct.
Tr. at 111.
A clinical psychologist testified that Burger had an IQ of 82, and that Burger lacked the motivation or power of reasoning to learn from previous experiences. Tr. at 247. The psychologist also testified that Burger was "functioning probably at the level of about a twelve year old person.” Tr. at 248.
Finally, in closing argument at the guilt phase, Burger’s counsel sought to emphasize the evidence that had been produced indicating that Stevens was in control of the crime. Counsel said:
One of the interesting things is the testimony here by Botsford was all about Stevens, what Stevens did, what Stevens said; not what Burger did or what Burger said. I would have thought and you, may gather that we weren’t trying Chris Burger here; we were trying Thomas Stevens. Don’t convict Burger on what somebody said about Stevens, because Stevens is not on trial. Burger is on trial.
Tr. at 371-72.
It is clear from the foregoing that Burger’s defense did not consist merely of putting the prosecution to its proof. Rather, Burger presented substantial evidence, and argument based on that evidence, that his participation in the crime was under the direction and control of Stevens. Stevens did virtually all the talking and gave all the orders. The crime and the killing were Stevens’ ideas. Botsford testified that, when Botsford suggested that the cab driver should be set free, Burger agreed that this was what should be done.
Burger’s defense went squarely to the issue of whether he intended to kill the victim. I cannot agree with the majority that the evidence of Burger’s intent to kill was overwhelming. In finding that Burger had the requisite intent, the jury might have relied on the faulty instruction that a person is presumed to intend the natural and probable consequences of his acts. I cannot say beyond a reasonable doubt that the faulty instruction did not contribute to the verdict obtained. Davis, supra, at 1521 n. 7. Accordingly, I dissent.