concurring:
I agree with the majority’s conclusions with respect to each claim presented in petitioner’s habeas corpus petition. I do not completely agree with all of the majority’s analysis, though, and I therefore write separately with respect to two of petitioner’s claims. In Part I of this opinion, I discuss petitioner’s claim that the trial court’s instruction on intent denied him due process by shifting to him the burden of persuasion on that issue. In particular, I focus on the issue of whether the error in this case was harmless. In Part II, I discuss petitioner’s claim that the trial court denied him due process by refusing to grant his request for funds to procure the assistance of a ballistics expert.
I.
The trial court read to the jury the following instruction:
Members of the Jury, the law presumes that a person intends to accomplish the natural and probable consequences of his acts. If a person uses a deadly weapon or instrumentality in the manner in which such weapon or instrumentality is ordinarily employed to produce death and thereby causes the death of a human being, the law presumes the intent to kill.
The majority correctly concludes that the presumption contained in this instruction is constitutionally impermissible because a reasonable juror could have interpreted it as placing the burden of persuasion on the defendant to disprove an essential element *663of the crime with which he was charged. See Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). The majority also concludes, again correctly, that the error is harmless in this case. The majority’s harmless error analysis is unsatisfactory, however, because it fails to meet the issue head on by first distilling what it was that the jurors were told they could presume.
To analyze properly the harmless error issue in this case, we should first focus on precisely what ultimate fact the impermissible presumption would yield. From there, we should determine whether that ultimate fact was conceded by the defendant at trial. If it was, the Sandstrom error is harmless. If it was not, the error may still be harmless if the evidence produced at trial regarding that ultimate fact was so overwhelming that the jury would not have had to rely on the presumption. See Tucker v. Kemp, 762 F.2d 1496 (11th Cir.1985) (en banc), cert. denied, — U.S. -, 106 S.Ct. 3340, 92 L.Ed.2d 743 (1986).
Here, the jurors were told that “the law presumes that a person intends to accomplish the natural and probable consequences of his acts.” A reasonable juror would have understood this instruction to mean just what it says: that proof of an act creates a presumption of intent to bring about the consequences of that act. The ultimate fact yielded by the presumption, it must be emphasized, is not “criminal” intent. Rather, it is merely intent to produce a physical result by way of a voluntary physical act. The difference between the two kinds of intent is plain in a case such as this one: the latter is intent to cause death, whereas criminal intent is intent to cause death unlawfully.1
To reiterate, then, the ultimate fact yielded by the impermissible presumption here is intent on the part of the defendant that his acts cause the victim’s death. As I stated above, the unconstitutional burden-shifting resulting from the presumption is harmless if the ultimate fact was conceded at trial by the defendant. Such may be the case where, for instance, a murder defendant contends factual innocence — i.e., that he did not do the killing. Such a defendant does not contest the conclusion that the acts that caused the victim’s death were intended to achieve that result; he contests only the state’s contention that he, and not someone else, was the perpetrator of those acts. The impermissible burden-shifting caused by telling the jurors that a person is presumed to intend the consequences of his acts is therefore harmless because the defendant himself conceded the ultimate fact yielded by the presumption — he did not contest that the person who performed the act that resulted in the death intended that consequence. See, e.g., McClesky v. Kemp, 753 F.2d 877, 901-04 (11th Cir.1985) (en banc), aff'd on other grounds, — U.S. -, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987); Collins v. Francis, 728 F.2d 1322, 1350-52 (11th Cir.) (Tjoflat, J., specially concurring), cert. denied, 469 U.S. 963, 105 S.Ct. 361, 83 L.Ed.2d 297 (1984).
Similarly, other defenses may concede an ultimate fact such that the effect of an impermissible presumption is harmless. See Connecticut v. Johnson, 460 U.S. 73, 87, 103 S.Ct. 969, 977, 74 L.Ed.2d 823 (1983) (plurality).2 Whether a particular defense *664concedes some fact, of course, depends on the circumstances of each case. Cf Bowen v. Kemp, 832 F.2d 546, 550 n. 12 (11th Cir.1987) (en banc), cert. denied, — U.S. -, 108 S.Ct. 1120, 99 L.Ed.2d 281 (1988). In this case, petitioner raised the defense of self-defense. By raising that defense, petitioner acknowledged that when he aimed the rifle at the victim and pulled the trigger, he intended the natural and probable consequences of those acts — that the charge leave the rifle, enter the victim’s body, and cause the victim to die or suffer grievous bodily injury. Petitioner never contended that he fired the rifle accidentally, or that he intended only to frighten the victim or merely incapacitate him so that he could not fire back. Petitioner’s own testimony was that he intended to kill the victim because the victim had fired shots at him first. Because petitioner therefore conceded by way of his defense the ultimate fact yielded by the impermissible presumption — intent that his acts bring about the victim’s death — the Sandstrom error was harmless.
Our court has previously recognized that Sandstrom error may be harmless where the defendant raised the defense of self-defense. In Holloway v. McElroy, 632 F.2d 605 (5th Cir.1980), cert. denied, 451 U.S. 1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981),3 the petitioner, Holloway, claimed that the trial court had committed constitutional error in instructing the jury that a person is presumed to intend the consequences of his acts. Relying on the fact that Holloway had raised the defense of self-defense, we concluded that the error was harmless:
General intent4 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 [the victim] was unintentional— i.e., that he did not intend the natural and probable consequences of his act. 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 are harmless beyond reasonable doubt.
Id. at 618 (footnotes and citation omitted). Of course, this analysis does not apply in every case involving self-defense. The defendant claiming that he acted in self-defense may, for example, assert that he fired his gun intending only to frighten the victim, not actually shoot and kill him. Or, he may assert that while he did intend to shoot the victim, he meant only to incapacitate him, not kill him. In such cases, the defendant has not on his own accord removed from the case the issue of whether he intended the natural and probable consequences of his acts, and the Sandstrom error cannot be considered harmless. See Mason v. Balkcom, 669 F.2d 222, 227 (5th Cir. Unit B 1982), cert. denied, 460 U.S. 1016, 103 S.Ct. 1260, 75 L.Ed.2d 487 (1983).5 *665This case is not that kind of case, however. Petitioner never suggested that the shooting was accidental or that he intended only to frighten or incapacitate the victim. Therefore, the Sandstrom error was harmless.
Even if petitioner had not raised the defense of self-defense, I would find that the error was harmless in this case. As noted above, where the ultimate fact yielded by the impermissible presumption remained as a contested issue in the case, the Sand-strom error will still be deemed harmless if the evidence produced at trial as to that ultimate fact was overwhelming. When that is the case, the error is harmless because the jury would have found it unnecessary to rely on the invalid presumption; the predicate facts of the crime are such that we can say beyond a reasonable doubt that the jury would have inferred intent from these facts. See, e.g., High v. Kemp, 819 F.2d 988, 995 (11th Cir.1987) (after repeatedly telling victim that he was about to die, defendant ordered victim to lie on ground and then shot him); Potts v. Kemp, 814 F.2d 1512, 1515-16 (11th Cir.1987) (defendant drove victim to dirt road, forced him out of car, and then shot him); Burger v. Kemp, 785 F.2d 890, 892 (11th Cir.1986) (defendant locked victim in car trunk and then submerged car in pond), aff'd, — U.S. -, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987); Dobbs v. Kemp, 790 F.2d 1499, 1509 (11th Cir.1986) (defendant ordered victim to lie on floor and then shot him in stomach), cert. denied, — U.S. -, 107 S.Ct. 2203, 95 L.Ed.2d 858 (1987); Tucker v. Kemp, 762 F.2d 1496, 1502-03 (11th Cir.1985) (en banc) (victim died of one crushing blow to skull), cert. denied, — U.S. -, 106 S.Ct. 3340, 92 L.Ed.2d 743 (1986); cf. Francis v. Franklin, 720 F.2d 1206, 1212 (11th Cir.1983) (evidence of intent not so overwhelming as to render Sandstrom error harmless where defendant’s gun went off after victim slammed door into it), aff'd, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985).
Here, the evidence of intent was undeniably overwhelming as to whether petitioner intended the natural and probable consequences of his acts. Petitioner approached the car in which the victim was sitting and, at close range, fired a shot through the windshield. He then walked to the side of the car and fired a shot through the side window. Expert testimony at trial established that these first two shots seriously injured and probably totally disabled the victim. According to eyewitness testimony, petitioner then slowly walked behind the car, calmly brought the rifle to his shoulder, and fired a shot through the rear window into the victim’s chest. Presented with these facts, I am confident beyond a reasonable doubt that the jury did not have to rely on the invalid presumption to find that petitioner intended to kill the victim. Thus, even if petitioner had not raised the defense of self-defense and the issue of whether he intended the consequences of his acts had therefore remained a contested issue in the case, I would hold that the evidence of intent was so overwhelming as to make the Sandstrom error harmless in any event.
II.
I agree with the majority’s conclusion that petitioner was not denied due process by the state’s failure to provide him funds to procure the assistance of a ballistics *666expert. I would reach that conclusion, however, by way of a different analysis.
In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the Supreme Court held that “when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist’s assistance on this issue if the defendant cannot otherwise afford one.” Id. at 74, 105 S.Ct. at 1091-92. In this case, petitioner sought the assistance not of a psychiatrist, but of a ballistics expert. Our court thus far has avoided deciding whether Ake applies to an indigent defendant’s request for expert assistance other than psychiatric assistance. See Moore v. Kemp, 809 F.2d 702 (11th Cir.) (en banc) (request for criminologist), cert. denied, — U.S. -, 107 S.Ct. 2192, 95 L.Ed.2d 847 (1987); see also McKinley v. Smith, 838 F.2d 1524 (11th Cir.1988) (request for pathologist). In Moore we assumed for the sake of argument that Ake does apply to requests for nonpsychiatric expert assistance, and held that a failure by the state to grant such a request would not violate the due process clause unless (1) the defendant had demonstrated to the trial court a sufficient need for the expert assistance, and (2) the trial court’s failure to grant the request rendered the defendant’s trial fundamentally unfair. See Moore, 809 F.2d at 710. In Moore we denied relief after concluding that the petitioner failed to meet the first prong, i.e., failed to present the trial court with enough information to enable that court to make a ruling granting the request for expert assistance.
Taking a tack similar to that which we took in Moore, the majority in this case focuses on whether petitioner made a sufficient showing of need before the trial court, and concludes that he did not. In my view, that issue is superfluous because petitioner’s Ake claim clearly fails on the second prong of the Moore analysis: petitioner has not in any way shown that the denial of his request for expert assistance rendered his trial fundamentally unfair.
Petitioner’s argument is that he needed a ballistics expert to help him develop his claim of self-defense. Petitioner’s defense, as developed through his testimony at trial, was as follows. Petitioner testified that he was pulled over by a police car driven by the victim, and that petitioner stopped his car and got out, carrying a stolen rifle. According to petitioner, his intention was merely to hand the rifle over to the victim. The victim, however, still sitting in the police car, allegedly opened fire, and petitioner fired back in self-defense.
In light of his defense, we might guess that petitioner wanted a ballistics expert to provide assistance in establishing the sequence in which the shots were fired. Under the best possible scenario from petitioner’s perspective, a ballistics expert would have been able to establish that the victim fired the first shot. In my view, however, the jury undoubtedly would have still disbelieved petitioner’s claim of self-defense.
At trial, the prosecutor presented the testimony of a mail carrier who had happened upon the shooting scene just after the initial exchange of fire. The mail carrier testified that he saw petitioner slowly walk behind the police car in which the victim was sitting, calmly and deliberately raise his rifle to his shoulder, and fire a shot through the car’s rear window. The victim, already disabled as a result of the initial exchange of fire, died almost immediately when this final shot tore through his heart.
Petitioner does not point to anything that a ballistics expert could have established that would have in any way contradicted or undermined the testimony of the eyewitness. In light of the eyewitness’ testimony concerning the manner in which the victim was killed, I am confident that expert testimony regarding who shot first would have made no difference to the outcome of the trial. Thus, because his trial was not rendered fundamentally unfair by the state’s refusal to give him funds to procure the assistance of a ballistics expert, petitioner’s Ake claim must fail.
. See infra note 4 and accompanying text.
. Justice Blackmun, writing for the plurality in Johnson, stated that
[i]n presenting a defense such as alibi, insanity, or self-defense, a defendant may in some cases admit that the act alleged by the prosecution was intentional, thereby sufficiently reducing the likelihood that the jury applied the erroneous instruction as to permit the appellate court to consider the error harmless. We leave it to the lower courts to determine whether, by raising a particular defense or by his other actions, a defendant himself has taken the issue of intent away from the jury. Johnson, 460 U.S. at 87, 103 S.Ct. at 977-78 (citation omitted).
In Bowen v. Kemp, 832 F.2d 546 (11th Cir. 1987) (en banc), cert. denied, — U.S.-, 108 S.Ct. 1120, 99 L.Ed.2d 281 (1988), we held that a defendant ordinarily does not concede intent as to the consequences of his acts by pleading the defense of insanity. We noted, however, that there may be cases in which the defendant, in presenting an insanity defense, does "admit that the act alleged by the prosecution was intentional." Id. at 550 n. 13 (quoting Cook v. Foltz, 814 F.2d 1109, 1113 (6th Cir.1987)). Our analysis in Bowen shows that each case involving a defense that potentially concedes the issue of intent *664must be evaluated on the basis of its particular facts.
. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
. We explained in a footnote that
[b]y "general intent” we mean intent in the sense that a person intends the consequences of his voluntary physical actions — e.g., an "intentional" shooting in self-defense. The contrasting term is "specific criminal intent," which refers to a state of mind that is thought culpable — e.g., premeditation as part of murder, or “hot blood” as part of manslaughter.
26.
.In Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir.1982), this court adopted as binding precedent all decisions of Unit B of the former Fifth Circuit handed down after September 30, 1981.
We emphasized in Mason that the mere fact that the defendant raised the defense of self-defense, standing alone, is insufficient to remove from the case the issue of whether the defendant intended the consequences of his acts. We noted that
*665[w]hen claiming self-defense, one does not necessarily admit intent to kill, but rather admits that the killing occurred. As the petitioner points out in his brief, one can shoot to kill in self-defense, shoot to wound in self-defense, shoot to frighten in self-defense, or even shoot reactively in self-defense with no specific purpose.
Mason, 669 F.2d at 227 (emphasis added). See also Patterson v. Austin, 728 F.2d 1389, 1395-96 (11th Cir.1984).
Mason should not be read as standing for the proposition that raising the defense of self-defense never concedes intent as to the consequences of one’s acts. Not only would such an interpretation be inconsistent with the language in Mason quoted above, but it would be directly contrary to our holding in Holloway, a binding case that preceded Mason. See supra note 3 and accompanying text. Mason, a panel opinion, cannot be deemed to have overruled Holloway, because in this circuit only the court sitting en banc can overrule binding precedent. See Bonner v. City of Prichard, 661 F.2d 1206,1209 (11th Cir.1981) (en banc). Mason should be read as merely standing for the proposition that whether raising self-defense concedes intent depends on the particular facts of the case.