AUTHORIZED FOR EDUCATIONAL USE ONLY COPR. (C) WEST 1993 NO CLAIM TO ORIG. U.S. GOVT. WORKS 729 S.W.2d 551 (Cite as: 729 S.W.2d 551) STATE of Missouri, Respondent, v. Darren MOLITOR, Appellant. No. 50199. Missouri Court of Appeals, Eastern District, Division Four. March 31, 1987. Motion for Rehearing and/or Transfer Denied May 6, 1987. Application to Transfer Denied June 16, 1987. Defendant was convicted in the Circuit Court, St. Louis County, Alphonso Voorhees, J., of first-degree murder, and he appealed. The Court of Appeals, Satz, J., held that: (1) expert testimony concerning mental state was properly excluded as irrelevant, and (2) defendant's taped telephone conversation with FBI agent was properly admitted, despite defendant's not having benefit of Miranda warnings. Affirmed. [1] CRIMINAL LAW k1170(1) 110k1170(1) Exclusion of expert testimony that playing role-playing fantasy game "desensitized" its players, limiting their ability to appreciate danger and harm of their violent acts, which defendant wished to introduce on issue of mental state, did not provide basis for reversal, where defendant was not convicted of capital murder, but rather was convicted of lesser offense of a felony-murder, with robbery as predicate offense. V.A.M.S. ss 562.021, subd. 2, 562.026, 565.001, 565.003, 569.020. [2] CRIMINAL LAW k670 110k670 Expert testimony that role-playing fantasy game "desensitized" its players, limiting their ability to appreciate danger and harm of their violent acts, was properly excluded as irrelevant from homicide prosecution, where defendant's offers of proof made no showing that defendant was in fact desensitized. V.A.M.S. s 565.003. [3] JURY k108 230k108 State could properly strike for cause prospective jurors who could not consider death as possible punishment in homicide prosecution. [4] CRIMINAL LAW k412.2(3) 110k412.2(3) Defendant's Miranda rights were inapplicable to his telephone conversation with FBI agent, which had not been initiated by agent and which occurred at time when defendant was not in custody or restrained, where defendant made no showing that he was, at that time, focus of homicide inquiry. V.A.M.S. s 565.003; U.S.C.A. Const.Amend. 5. [5] CRIMINAL LAW k412(4) 110k412(4) Statements of accused obtained through subterfuge are admissible unless deception offends societal notions of fairness or is likely to produce untrustworthy confession. U.S.C.A. Const.Amend. 5. [6] CRIMINAL LAW k1169.3 110k1169.3 Any possible error caused by admission of defendant's taped telephone conversation with FBI agent was cured by defendant's taking stand and describing his actions in detail and by admission of defendant's signed statement and another taped statement describing his actions. *551 Dave Hemingway, St. Louis, for appellant. William L. Webster, Atty. Gen., Kevin B. Behrndt, Asst. Atty. Gen., Jefferson City, for respondent. SATZ, Judge. Defendant was convicted by a jury of first degree murder, s 565.003 RSMo.1978 *552 (felony-murder) [FN1] and was sentenced to life imprisonment. Defendant appeals. We affirm. FN1. s 565.003 RSMo.1978 reads: "Any person who unlawfully kills another human being without a premeditated intent to cause the death of a particular individual is guilty of the offense of first degree murder if the killing was committed in the perpetration of or in the attempt to perpetrate arson, rape, robbery, burglary, or kidnapping. This statute was repealed by L.1983, p. 922, S.B.No. 276, s 1. Defendant does not question the sufficiency of the evidence. Defendant and the victim, Mary Towey (Mary), were acquaintances. On April 12, 1983, Mary drove to the house of her friend, Cathy Molnar (Cathy), to pick up Cathy. They then picked up defendant and some other acquaintances: Warren Hutter (Warren), Marty Pezzani (Marty), Ron Adcox (Ron). They drove to Wilmore Park, where some of them smoked marijuana. The group left the park, took Warren home and took Cathy to St. Louis University. Mary then suggested they go to her house. Ron suggested they first pick up some marijuana at "Pot in the Box" across the river. They bought the marijuana and then went to Mary's house. Mary was planning a "Friday the 13th" party for the next day, and defendant hooked up Mary's stereo for the party. About 7:30 P.M., defendant, Mary and Ron drove Marty to his house. The three of them then purchased beer and liquor for the party, went by defendant's home so that he could pick up his cassette deck and tapes and, about 9:30 or 10:00 P.M., drove back to Mary's house. Defendant and Ron stayed at Mary's house all night, listening to music, consuming liquor, smoking marijuana and practicing martial arts. Mary fell asleep around 2:00 A.M. Mary awoke the next morning about 5:30 or 6:00 A.M., showered, dressed, had coffee or tea and joined defendant and Ron. Defendant began to show Mary some martial arts moves. Then defendant and Ron began chasing Mary. Mary ran down the stairs to the basement. Defendant and Ron followed her, caught her, wrestled her to the floor and tied her hands and feet. According to defendant, they were "messing with her mind". Defendant and Ron went back upstairs. Defendant sat at the top of the stairs and drank a beer. Mary was yelling to be untied. Mary asked for a cigarette. Defendant went downstairs, lit a cigarette, "helped her smoke it" and gave her a few drinks of beer. Mary said she was cold, and, according to defendant, he and Ron unrolled a rug and put Mary on it. Mary continued to yell she wanted to be untied. Defendant found some tape and tried to tape Mary's mouth shut. He was unsuccessful. He then went back upstairs. In the meantime, Ron had located an ace bandage in the bathroom. Defendant tied a knot in the ace bandage, and, "to mess with her mind some more" or "just to possibly quiet her up some more", he tied the ace bandage around Mary's neck. He said he checked the ace bandage and found "it was loose". He went back upstairs, drank some more beer, smoked some more marijuana, listened to music and listened to Mary continuing to yell. Subsequently, he went back downstairs and found Mary. Her feet were discolored, "sort of yellowish", her face was "purple like, black and blue", her eyes were "bulging out", and her tongue was hanging out of her mouth. Defendant said he and Ron panicked. Leaving in the Towey's car, he and Ron took many items from the Towey house to pawn, packed Mary in the trunk and buried her in a wooded area. They then drove to Georgia. They met some acquaintances there and stayed with them in their motel. Defendant phoned his mother the following Tuesday, April 19, told her he was in Georgia and told her the last time he saw Mary she was at a party with "some bikers". On Sunday, April 22, defendant and Ron phoned home and were told FBI agents were looking for them. Ron and defendant called the FBI office in St. Louis and spoke with Agent Hoffman. FBI agents from the Atlanta, Georgia office met with defendant at the motel. Defendant was given his Miranda rights on two separate occasions. After giving two different versions of Mary's absence and death, defendant *553 confessed to tying the ace bandage around Mary's neck and gave the location of her body. The examination of Mary's body revealed a lesion on her head which showed "a pretty severe blow to [her] head". The cause of her death was "[m]echanical asphyxiation with cerebral anoxia, secondary to ligature strangulation". In lay terms, she died because the blood was cut off from her brain by something tied around her neck and, thus, her brain did not get enough oxygen. At trial, defendant attempted to qualify two witnesses, Dr. Thomas Radecki and Pat Pulling, as experts on the game of Dungeons and Dragons. Defendant made offers of proof on the testimony of both witnesses. If Dr. Radecki had been allowed to testify, his opinion would have been that the game of Dungeons and Dragons "desensitizes" its players and this "desensitization" limits the players' ability to appreciate the danger and harm of their violent acts. Pat Pulling would describe the violence imagined by the players in playing Dungeons and Dragons. The trial court sustained the prosecutor's objections to both witnesses' testimony on the grounds their testimony would be irrelevant. On appeal, defendant contends the testimony of Dr. Radecki and Pat Pulling is relevant to show defendant's "state of mind" at the time of the homicide. Defendant does not contend he suffered or suffers from a mental disease or defect excluding complete responsibility; rather, he argues, he was "desensitized" by playing Dungeons and Dragons and his "experts' " opinions on desensitization would aid the jury in determining his state of mind at the time of the homicide. This would enable the jury, defendant argues, to determine whether defendant had the culpable mental state for capital murder or a lesser and included offense. [1] Defendant's argument is misdirected and, thus, misses the mark. Defendant focuses on the actual state of mind of an accused and points out the characteristics of the states of mind which distinguish capital murder from lesser degrees of murder. [FN2] Defendant, however, ignores the effect of the jury's verdict here on his argument. Defendant was charged with capital murder, s 565.001, RSMo.1978, [FN3] and murder, first degree (felony--murder) s 565.003, RSMo.1978. The trial court properly instructed the jury on capital murder, felony murder and the lesser offenses of murder, second degree and manslaughter. The trial court also directed the jury to consider a lesser offense only after it had considered the next preceding greater offense. The jury convicted defendant of murder, first degree; i.e. felony-murder. FN2. Defendant argues: Under our homicide statutes, the degree of murder depends upon the state of mind of the aggressor. Deliberation distinguishes capital murder from murder in the Second Degree. State v. Gilmore, 650 S.W.2d 627, 629 (Mo. banc 1983). Second Degree murder comprises a willful, premeditated killing with malice aforethought. State v. Mannon, 637 S.W.2d 674, 679 (Mo. banc 1982). And manslaughter encompasses killings done without the other mental states of the greater degree of homicide. State v. Smith, 518 S.W.2d 665, 669 (Mo.App.1975). Willfulness, deliberation, premeditation and malice aforethought all constitute concepts or states of mind. State v. Battles, [357 Mo. 1223] 212 S.W.2d 753, 758 (Mo.1948), the presence or absence of which constitutes the major issue in determining the accurate degree of homicide present. FN3. s 565.001 RSMo.1978 reads: Any person who unlawfully, willfully, knowingly, deliberately, and with premeditation kills or causes the killing of another human being is guilty of the offense of capital murder. This statute was repealed by L.1983, S.B. No. 276, s 1. Admittedly, defendant's charge of capital murder did require proof of premeditation and deliberation for conviction. s 565.001, RSMo.1978. But defendant was not convicted of capital murder. He was convicted of the lesser offense; murder, first degree, felony--murder. Thus, defendant cannot possibly complain that the jury was kept from considering his experts' testimony about the mental state required for capital murder. Quite simply, the jury failed to *554 find defendant killed Mary with "premeditation" and "deliberation". Moreover, the jury did find defendant guilty of felony-murder. More specifically, it found defendant killed Mary while committing or attempting to commit a robbery. The culpable mental state for murder, first degree when it is defined as felony--murder is supplied by the felony. See, e.g. State v. Lindsey, 507 S.W.2d 1, 4 (Mo. banc 1974). In this case, the felony was robbery, under 569.020 RSMo.1978. The culpable mental state for robbery is not specifically spelled out in the statutory definition of robbery. Thus, arguably, under our statutory scheme, the culpable mental state for robbery is established if the accused acted "purposely", "knowingly" or "recklessly". See s 562.021.2, RSMo.1978; State v. Clark, 607 S.W.2d 817, 820-821 (Mo.App.1980); see also State v. Logan 645 S.W.2d 60, 66 (Mo.App.1982). But see, s 562.026 RSMo.1978 and State v. Helm, 624 S.W.2d 513, 517 (Mo.App.1981). (Intoxication is no defense to robbery because robbery does not have to be "purposely" or "knowingly" done). If robbery does require a culpable mental state, defendant does not argue nor has he demonstrated that the excluded testimony of Dr. Radecki or Pat Pulling would negate that mental state. [2] Of equal, if not more, importance, defendant's offers of proof made no showing that defendant was in fact "desensitized." To the contrary, Dr. Radecki never conversed with or examined defendant; nor does it appear he even talked with defendant's family. His only knowledge about the homicide comes from an undefined conversation with defense counsel and a brief undescribed newspaper article that he read some months prior to the trial. With no personal knowledge to support Dr. Radecki's opinion about defendant's mental state, his testimony was properly excluded by the trial court. See, e.g., State v. Lint, 657 S.W.2d 722, 725 (Mo.App.1983); see also, State v. Brown, 669 S.W.2d 620, 622 (Mo.App.1984). Defendant argues, however, that he cured this defect by asking Dr. Radecki a hypothetical question based upon facts established at trial, and Dr. Radecki, as an expert, should have been permitted to answer this question. Defendant's argument is not persuasive. For our purposes here, we shall assume defendant laid a proper factual foundation for his hypothetical question. The question was: [A]ssume that we have two 18-year-olds, a male and a female. Previously, the female has invited several people to a Friday the 13th party. Both individuals are participants in [Dungeons and Dragons]. Assume further that the 18-year- old female and the 18-year-old male become involved in a wrestling activity. The 18-year-old male ties the female up. Assume further that in addition to tying the female up, the 18-year-old male places around her throat a ligature-- in this hypothetical, an Ace bandage. * * * [W]hat would be your opinion as to whether the activities that I've described could be an offshoot of the fantasy role-playing of [Dungeons and Dragons]. The Doctor, quite candidly, responded that he could not tell what defendant's "intent" would be. Specifically, he answered: The tendency toward that type of behavior could very certainly be increased by D & D play. What the intent of the young male at the time of the incident is, you know, is a different question and I wouldn't have any knowledge of that. But the tendency towards that type of behavior could certainly very easily be increased by D & D played, especially when the two people have played together. There's more of a desensitization of playing with violence between the two of them and it's certainly possible that--you know, it's certainly likely, indeed, that there is a desensitization towards playing with violence or even commission of intentional violent behavior between the two. I don't have any knowledge of the particulars of the intent in this case. (emphasis added). *555 This answer clearly shows Dr. Radecki's inability to apply his perception of the general effect of playing Dungeons and Dragons to the particularized mental state of defendant here. Moreover, he could not and did not state the possible effect on defendant was the cause of defendant's acts. Given this offer of proof, the trial court was well within its discretion in rejecting Dr. Radecki's testimony as being irrelevant. E.g. State v. Guyton, 635 S.W.2d 353, 360 (Mo.App.1982); State v. Taylor, 589 S.W.2d 302, 304 (Mo. banc 1979). Pat Pulling's proffered testimony suffered from the same or greater defects. She never talked to defendant, nor his family. The primary purpose of Pulling's testimony was to describe the level of imagined violence in Dungeons and Dragons and how the players become addicted to it. However, with candor equal to Dr. Radecki, she said "she did not come out here to say Dungeons and Dragons was the cause of this case." Thus, defendant's argument has no merit. [FN4] FN4. We do not address whether defendant established that the relevant scientific community has accepted the theory of "desensitization" by playing Dungeons and Dragons. See, Alsbach v. Bader, 700 S.W.2d 823, 828-29 (Mo. banc 1985). Although at oral argument defendant argued to the contrary, his "desensitization" defense is strikingly similar to "diminished mental capacity or partial responsibility". See 552.015.2(8), RSMo. (Supp.1987); State v. Strubberg, 616 S.W.2d 809, 816 (Mo. banc 1981). Defendant, however, did not give the state notice of this defense. We do not address the necessity of doing so. See, State v. Alexander, 693 S.W.2d 216, 222-223 (Mo.App.1985). Defendant next contends the prosecutor's "death qualification" of prospective jurors deprived him of his right to a jury from a fair cross-section of the community. During voir dire, five prospective jurors said they would be unable to impose the death penalty under any circumstances. Over defendant's objections, the trial court struck these prospective jurors for cause. [3] The state may strike for cause prospective jurors who cannot consider death as a possible punishment. See State v. Foster, 700 S.W.2d 440, 443 (Mo. banc 1985); State v. Malone, 694 S.W.2d 723, 726, 727 (Mo. banc 1985). The United States Supreme Court agrees. Lockhart v. McCree, --- U.S. ----, 106 S.Ct. 1758, 1766, 90 L.Ed.2d 137 (1986). Thus, defendant's argument has no merit. Defendant also argues the court improperly admitted the tape recording of a telephone conversation between defendant and FBI Agent Hoffman. Hoffman and other FBI agents entered the case after Mary had been reported missing. On April 22, 1984, Ron's mother phoned Hoffman to ask whether he would accept a collect phone call from her son. Hoffman received the call from Ron and talked with him and then talked to defendant. This conversation was taped. Defendant's complaint about the admission of this taped conversation is neither clear nor explicit. Defendant argues the state failed to show defendant's statement on the tape was not induced by threats or promises and, therefore, a proper foundation was not laid for the admission of the tape. Defendant relies on State v. Spica, 389 S.W.2d 35, 43-46 (Mo.1965). Defendant's reliance on Spica is misplaced. In Spica, the court was addressing the propriety of admitting a criminal defendant's taped conversation, which was taped without his knowledge. The Court set out a seven point foundation for admitting the tape. [FN5] Six of these points were directed to the reliability of the recording itself and the seventh point was directed to *556 the trustworthiness of the statement itself: "(7) a showing that the testimony elicited was voluntarily made without any kind of inducement". Id. at 44. Thus, the real thrust of defendant's complaint is not against the admission of the tape itself; but rather it is against the admission of the contents of defendant's statement. Defendant's real argument is that he was improperly induced into making incriminating statements by Hoffman "denigrating" the Miranda warnings which were given during the phone conversation. We disagree. FN5. The foundation referred to in Spica contains the following elements: (1) A showing that the recording device was capable of taking testimony, (2) a showing that the operator of the device was competent, (3) establishment of the authenticity and correctness of the recording, (4) a showing that changes, additions, or deletions have not been made, (5) a showing of the manner of the preservation of the recording, (6) identification of the speakers, and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement. Later cases question this dicta. See, e.g. State v. Molasky, 655 S.W.2d 663, 668 (Mo.App.1983). [4] Agent Hoffman did not initiate his conversation with defendant. Hoffman accepted Ron's phone call. Defendant voluntarily took the phone from Ron and began to talk. Defendant obviously was not "in custody". His liberty was not restrained, and defendant made no showing he was at that time the focus of a homicide murder inquiry. Thus, the Miranda rights are inapplicable. E.g. State v. Calmese, 628 S.W.2d 382, 387 (Mo.App.1982); Oregon v. Mathieson, 429 U.S. 492, 493-496, 97 S.Ct. 711, 713-14, 50 L.Ed.2d 714 (1977). If the Miranda rights are inapplicable, their alleged "denigration" is irrelevant. [5] Moreover, statements of an accused obtained through subterfuge are admissible unless the deception offends societal notions of fairness or is likely to procure an untrustworthy confession. State v. Evans, 676 S.W.2d 324, 327 (Mo.App.1984); State v. Pugh, 600 S.W.2d 114, 118 (Mo.App.1980). Hoffman gave defendant his Miranda rights with reference to a possible Dyer Act violation, because he drove the Towey's car across state lines. We have read the transcript of the entire taped conversation, however, especially those parts emphasized in defendant's brief, and find Hoffman's conversation was friendly and not deceitful. Defendant apparently thought so too and, thus, did not hang up on Hoffman. [6] Furthermore, defendant took the stand and described his actions in detail. In addition, defendant's signed statement describing his actions and another taped statement describing his actions were admitted into evidence. This evidence cures any possible error caused by the admission of defendant's taped conversation with Hoffman. Judgment affirmed. CRANDALL, P.J., and PUDLOWSKI, J., concur. END OF DOCUMENT AUTHORIZED FOR EDUCATIONAL USE ONLY COPR. (C) WEST 1993 NO CLAIM TO ORIG. U.S. GOVT. WORKS --- F.2d ---- (Cite as: 1993 WL 41067 (4th Cir.(N.C.))) Mark Edward THOMPSON, Petitioner-Appellant, v. Gary T. DIXON, Warden, Central Prison, Respondent-Appellee. No. 92-6779. United States Court of Appeals, Fourth Circuit. Argued Dec. 2, 1992. Decided Feb. 19, 1993. After his convictions of first-degree murder and other offenses were affirmed on direct appeal, 328 N.C. 477, 402 S.E.2d 386, petitioner sought habeas relief. The United States District Court for the Eastern District of North Carolina, 794 F.Supp. 173, Terrence William Boyle, J., denied petition, and petitioner appealed. The Court of Appeals, Morgan, District Judge, sitting by designation, held that presumption-of-sanity instruction did not relieve prosecution of its burden of proving intent element of offenses of which defendant was convicted. Affirmed. [1] CRIMINAL LAW k822(11) 110k822(11) State trial court's presumption-of-sanity instruction did not relieve prosecution of its burden of proving intent element of first-degree murder charges and related robbery and burglary charges, in view of additional instructions that prosecution had burden of proving each essential element of crimes charged, including requisite intent, beyond reasonable doubt and that jury was to consider defendant's lack of mental capacity in connection with all mens rea elements of each crime to determine whether prosecution had proven requisite intent beyond reasonable doubt. U.S.C.A. Const.Amend. 14. [2] COURTS k100(1) 106k100(1) New rule of constitutional law, established after defendant's conviction has become final, cannot be used to attack conviction on federal habeas grounds unless rule falls within one of two narrow exceptions for categorical guarantees accorded by the Constitution and watershed rules of criminal procedure. 28 U.S.C.A. s 2254. Richard Brooks Glazier, Beaver, Holt, Richardson, Sternlicht, Burge & Glazier, P.A., Fayetteville, NC, for petitioner-appellant. Clarence Joe DelForge, III, Asst. Atty. Gen., North Carolina Dept. of Justice, Raleigh, NC, argued (Lacy H. Thornburg, Atty. Gen., on brief), for respondent- appellee. Before WILKINSON and NIEMEYER, Circuit Judges, and MORGAN, United States District Judge for the Eastern District of Virginia, sitting by designation. OPINION MORGAN, District Judge: *1 Petitioner Mark Edward Thompson appeals the dismissal of his petition for a writ of habeas corpus in which he challenged a jury instruction given at his capital murder trial. The Petitioner claims the state trial court violated his due process rights under the Fourteenth Amendment when it instructed the jury that a person is presumed to be sane unless he or she proves otherwise. The district court granted the state of North Carolina's ("State") motion for summary judgment, finding the state trial court's presumption-of-sanity instruction did not in any way relieve the State's burden of proving the intent which was an element of the offenses of which he was convicted. We affirm the judgment of the district court. I. In the fall of 1986 the Petitioner was a 17-year old enlisted soldier in the Army stationed at Fort Bragg, North Carolina. There he met Jeffrey Karl Meyer, and the two began playing "Dungeons and Dragons," an adventure game in which the participants enact roles and carry out adventures in a medieval setting. In November 1986, the Petitioner and Meyer were playing a game of Dungeons and Dragons which called for several "Ninja" assassins to enter the house of an elderly couple and assassinate them. The two chose the home of Mr. and Mrs. Paul Kutz in rural Cumberland County, North Carolina, because it had what resembled a moat around their house. On December 1, 1986, the Petitioner and Meyer went to the Kutz's home around 11:15 p.m. and broke in. They found Mr. Kutz, age 69, in his recliner and Mrs. Kutz, age 62, asleep in her bed. They killed Mr. Kutz by stabbing him 17 times and cutting his throat. The two killed Mrs. Kutz by holding her down and stabbing her numerous times. After stealing jewelry, credit cards and a television set, the Petitioner and Meyer returned to Fort Bragg. They were stopped by military police who discovered the stolen property. The military police notified Cumberland County authorities who discovered the bodies of Mr. and Mrs. Kutz. The Petitioner and Meyer were subsequently arrested. The Petitioner confessed to being present at the murders, stealing the property and watching Meyer stab the Kutz's. The Petitioner later confessed to his psychologist that he participated in the stabbing of Mrs. Kutz. At trial, the Petitioner contended that he was not guilty by reason of insanity and that he lacked the mental capacity to formulate the requisite intent required for murder. In his instructions at the close of trial, Judge Herring instructed the jury that "sanity or soundness of mind is the natural and normal condition of people; therefore, everyone is presumed sane until the contrary is made to appear." (J.A. 64). On October 26, 1989, the jury rejected the Petitioner's insanity and mental illness defenses and found him guilty of two counts of first-degree murder, two counts of robbery with a dangerous weapon, and one count of first-degree burglary. He was convicted and sentenced to three consecutive life terms of imprisonment plus two forty-year terms which were combined to run subsequent to the expiration of the life sentences. *2 The Petitioner appealed all judgments to the North Carolina Supreme Court. The North Carolina Supreme Court found no constitutional error in his trial. State v. Thompson, 328 N.C. 477, 402 S.E.2d 386 (1991). The Petitioner filed a habeas corpus petition pursuant to 28 U.S.C. s 2254 with the district court on November 25, 1991. His sole claim was that the state trial court violated his due process rights under the Fourteenth Amendment when it instructed the jury that he was presumed to be sane unless he proved otherwise. On January 8, 1992, the State filed its answer to the Petitioner's habeas corpus petition and moved for summary judgment. On July 2, 1992, the district court granted the State's motion for summary judgment, finding the state trial court's presumption-of-sanity instruction did not in any way relieve the State of its burden of proving the intent which was an element of the offenses of which he was convicted by the jury 794 F.Supp. 173. (J.A. 38). The Petitioner argues on appeal that these presumptions deprived him of his due process rights by removing the presumption of innocence and relieving the State of its burden of proving beyond a reasonable doubt that he intentionally committed the felonies of which he was convicted. II. [1] In collateral review of a jury charge, the Court will grant relief only if the habeas petitioner demonstrates "that 'the offending instruction is so oppressive as to render a trial fundamentally unfair.' " Cooper v. North Carolina, 702 F.2d 481, 483 (4th Cir.1983) (quoting Adkins v. Bordenkircher, 517 F.Supp. 390, 399 (S.D.W.Va.1981), aff'd, 674 F.2d 279 (4th Cir.1982)). The Petitioner asserts that the presumption-of-sanity instruction at issue in this case "is nothing short of an unconstitutional burden shifting jury charge and blatantly is at odds with decisions of the United States Supreme Court in Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985) and Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979)." Petitioner's Brief at 18. This Court disagrees. In Sandstrom v. Montana, the defendant was convicted under Montana law of "deliberate homicide" which the statute defined as "purposely or knowingly" causing the death of another human being. 422 U.S. at 512, 99 S.Ct. at 2453. Montana conceded that "purpose" was equivalent to "intent," and thus that the proof of defendant's intent to kill would suffice to establish the "purpose" element. Id. at 521, 99 S.Ct. at 2458. The trial court instructed the jury that "the law presumes that a person intends the ordinary consequences of his voluntary acts." Id. at 513, 99 S.Ct. at 2453. The Supreme Court found this instruction unconstitutional as it shifted to the defendant the burden of proving his lack of intent as well as relieving the state of its burden of proof: "a reasonable jury could well have interpreted the presumption as 'conclusive,' ... as an irrebuttable direction by the Court to find intent once convinced of the facts triggering the presumption." Id. at 517, 99 S.Ct. at 2456. *3 Sandstrom was followed by Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). Franklin was charged with "malice murder" which required Georgia to prove "malice aforethought." Id. at 311 n. 1, 105 S.Ct. at 1969 n. 1. The defendant's sole defense was that he lacked the "requisite intent to kill." Id. at 311, 105 S.Ct. at 1969. The trial court instructed the jury that "[t]he 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...." Id. As in Sandstrom, the Francis Court found this instruction violated the Fourteenth Amendment's requirement that Georgia prove every element of the offense beyond a reasonable doubt. The Court again reasoned that such an instruction created an unconstitutional shifting of the burden of proof: "a reasonable juror could have understood the two sentences as 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." Id. at 316, 105 S.Ct. at 1972. The Petitioner contends that the presumption-of-sanity instruction at his trial constituted a violation of the Francis/Sandstrom rule. The trial judge instructed the jury that "sanity or soundness of mind is the natural and normal condition of people; therefore, everyone is presumed sane until the contrary is made to appear." (J.A. 64). The Petitioner's first contention is that this instruction tainted his sanity defense by implying that he possessed the requisite intent to commit the crimes with which he was charged. He argues: Without some limiting instruction or at the very least a notation that the instruction applies only to considerations of sanity, the trial court's instructions concerning soundness of mind clearly carry over to all the elements that the jury must decide in the case. If a person is presumed of sound mind, he obviously is considered to intend the consequences of his acts, and if that is so, this presumption relieves that State of having to prove specific intent to kill.... A juror hearing this instruction could reasonably have believed that the burden was on the defendant to show that he did not intend to do what he did, in essence, that his acts were not the product of his will. If one is of sound mind, one is necessarily cognizant of the result of any action taken. Petitioner's Brief at 24-25. The Petitioner further argues that unlike the affirmative defense of insanity, he had no obligation to prove his defense of lack of mental capacity. He protests that "[t]he trial court never suggested that its instructions relating to the presumption of sanity and soundness of mind should not be considered or did not relate to Petitioner's mental illness negating specific intent defense." Id. at 28. This Court disagrees that the trial court failed to properly limit its presumption-of-sanity instruction. Judge Herring repeatedly instructed the jury that the Petitioner had to prove his affirmative defense of insanity to the satisfaction of the jury (J.A. 56-57, 65-66, 82, 94) but that the State had the burden of proving each essential element of the crimes charged, including the requisite intent, beyond a reasonable doubt (J.A. 55, 63, 72-73, 75-77, 79- 80, 84-85, 90-93, 95-96, 99-101, 103-104). In addition, the trial court instructed the jury to consider the Petitioner's lack of mental capacity in connection with all the mens rea elements of each crime to determine whether the State had proven the requisite intent beyond a reasonable doubt. (Instruction on the specific intent element of first-degree burglary, J.A. 69- 70; Instruction on the specific intent element of robbery with a dangerous weapon of Paul Kutz, J.A. 75-76; Robbery with a dangerous weapon of Janie Kutz, J.A. 80; First-degree murder of Paul Kutz, J.A. 87-88; and First-degree murder of Janie Kutz, J.A. 98-99). *4 Accordingly, we find the presumption-of-sanity instruction did not violate the Francis/Sandstrom rule. Those two cases condemned jury instructions that were clearly unconstitutional. In criminal trials, an instruction that presumes one's intent solely from one's actions clearly shifts the burden to the defendant to prove that he lacked the intent such an instruction presumes to flow from his actions. For this reason alone, Sandstrom and Francis are distinguishable from the present case. The trial judge did not instruct the jury that "a person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts," Francis, 471 U.S. at 311, 105 S.Ct. at 1969, or that "the law presumes that a person intends the ordinary consequences of his voluntary acts." Sandstrom, 422 U.S. at 513, 99 S.Ct. at 2453. Rather, the trial court instructed the jury that "sanity or soundness of mind is the natural and normal condition of people; therefore, everyone is presumed sane until the contrary is made to appear." (J.A. 64). It does not follow from such an instruction that a person "intends" the usual or natural consequences of his actions merely because he or she is sane. We find the Francis/Sandstrom rule inapposite because Judge Herring did not give the following clearly prohibited instruction: "persons of sound mind are presumed to intend the natural or probable consequences of their acts." Indeed, the post-Francis cases cited in the Petitioner's brief all share the common instructional error absent in this case: everyone of sound mind is presumed to intend the probable consequences of their actions. Petitioner's Brief at 23-24; Respondent's Brief at 12-14. As stated above, the trial judge repeatedly instructed the jury that the State had the burden of proving each essential element of the offenses charged, including the requisite intent, beyond a reasonable doubt. Unlike Montana in Sandstrom and Georgia in Francis, North Carolina was not relieved of its burden of proving the Petitioner's intent to commit the offenses of which the jury convicted him. In addition, both the United States Supreme Court and the Fourth Circuit have held that placing the burden of proof of insanity on a criminal defendant does not constitute an impermissible burden-shifting presumption and that a state may rely upon the presumption-of-sanity law where, as here, sanity is not an essential element of the crime. Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952) (state may impose burden of proving insanity on defendant). See also Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977); Rivera v. Delaware, 429 U.S. 877, 97 S.Ct. 226, 50 L.Ed.2d 160 (1976); Mullaney v. Wilbur, 421 U.S. 684, 702 n. 31, 95 S.Ct. 1881, 1891 n. 31, 44 L.Ed.2d 508 (1975). The Petitioner raises a similar claim to one this court rejected in Cooper v. North Carolina, 702 F.2d 481 (4th Cir.1983). Cooper was convicted by a North Carolina state court for the murder of his wife and four children. In addition to presenting an affirmative defense of not guilty by reason of insanity, Cooper also claimed he lacked the mental capacity to formulate the specific intent required for first-degree murder. Id. at 484. The trial judge failed to instruct the jury to consider the mental illness evidence in determining whether North Carolina had proven the necessary intent. Rather, the trial court merely instructed the jury to consider the mental illness evidence with respect to Cooper's affirmative defense of insanity. Id. at 485. Cooper claimed on collateral review, as petitioner does in the present case, that this instruction effectively shifted the burden to him on the issue of intent. Then Judge, now Chief Judge Ervin wrote for a Court that unanimously rejected Cooper's argument: *5 It is clear that a state may make insanity an affirmative defense to be proven by the defendant ... and may rely on a presumption of sanity in proving its case-in-chief in a criminal prosecution.... It is equally clear that the state must prove beyond a reasonable doubt every element of the crime with which a defendant is charged.... While there is a slight possibility that the jury could have misunderstood the trial judge's somewhat imprecise instruction, Cooper has not made the showing that "the offending instruction [rendered the] trial fundamentally unfair," ... necessary to support the grant of the writ of habeas corpus. Id. at 484-85 (citations and quotation omitted; emphasis added). In comparison, the trial court's instructions in the present case were more thorough and precise than those in Cooper. As discussed, supra, Judge Herring repeatedly instructed the jury that the State bore the burden of proving every element, including intent, beyond a reasonable doubt. Moreover, this Court has held that "[i]t is well established that a defendant in a criminal prosecution is presumed to be sane." United States v. Marable, 657 F.2d 75, 76 (4th Cir.1981). See also Satterfield v. Zahradnick, 572 F.2d 443, 445 n. 1 (4th Cir.) (citing Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), and Rivera v. Delaware, 429 U.S. 877, 97 S.Ct. 226, 50 L.Ed.2d 160 (1976)) ("It is worth noting that placing the burden of proof of insanity on a criminal defendant does not violate the rule of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), that the State proved beyond a reasonable doubt all elements of the offense charged."), cert. denied, 436 U.S. 920, 98 S.Ct. 2270, 56 L.Ed.2d 762 (1978). [FN*] Thus, an instruction to that effect cannot be said to be an unconstitutional burden shifting jury charge that is "blatantly at odds" with Sandstrom and Francis. III. [2] Further, the Court notes that were it to hold that the presumption-of- sanity instruction violated the Fourteenth Amendment's requirement that a state prove every element of a crime beyond a reasonable doubt, this would depart from the prior precedent of both the Supreme Court and this Circuit and constitute a "new rule" of criminal procedure. In Teague v. Lane, the Supreme Court held that when federal courts are faced with a habeas petition that seeks a "new" constitutional rule that would disturb the results of the state trial court if applied retroactively to the petitioner's case, the court cannot proceed to the merits of the petitioner's claim. 489 U.S. 288, 300, 109 S.Ct. 1060, 1069, 103 L.Ed.2d 334 (1989). See also Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). It is well settled that a new rule of constitutional law, established after a defendant's conviction has become final, "cannot be used to attack the conviction on federal habeas grounds unless the rule falls within one of two narrow exceptions." Sawyer v. Smith, 497 U.S. 227, 233, 110 S.Ct. 2822, 2826, 111 L.Ed.2d 193 (1990). This Court finds that the new rule the Petitioner seeks does not address "categorical guarantees accorded by the Constitution," Penry, 492 U.S. at 329, 109 S.Ct. at 2952, nor is it a " 'watershed rule of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 1263, 108 L.Ed.2d 415 (1990) (quoting Teague, 489 U.S. at 311, 109 S.Ct. at 1075). Although this Court has rejected the Petitioner's challenge to the jury instructions on the merits, Teague would prevent this Court from granting the Petitioner the relief sought even if his challenge had merit. This Court could only grant Petitioner relief retroactively by means of a new rule if the proposed new rule qualified as one of the two exceptions described, and this Court finds that it does not so qualify. IV. *6 In summary, the Court concludes that the Petitioner has failed to carry his burden on collateral review to demonstrate that the sanity instruction was so "oppressive" as to render his trial "fundamentally unfair." Cooper, 702 F.2d at 483. Accordingly, the Court finds that the district court was correct in granting North Carolina's motion for summary judgment and dismissing the Petitioner's petition for habeas corpus relief. The judgment of the district court is therefore AFFIRMED. FN* See also Medina v. California, --- U.S. ----, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992) (a state may establish a presumption that defendant is competent to stand trial and make him shoulder the burden of overcoming that presumption); Wood v. Marshall, 790 F.2d 548 (6th Cir.1986) (determination of whether sanity is an element of crime charged depends on state law, for purposes of determining whether instruction requiring defendant to prove sanity violates due process by placing burden of proof of an element of charged offense on defendant), cert. denied, 479 U.S. 1036, 107 S.Ct. 889, 93 L.Ed.2d 842 (1987); Stanley v. Mabry, 596 F.2d 332 (8th Cir.) (where jury instructed state had burden to prove beyond a reasonable doubt every element of crime, no constitutional violation occurred by placing burden of proof on defendant to prove his insanity, despite contention that element of malice aforethought in murder charge was so inextricably intertwined with presumption of sanity that to require defendant to prove his insanity required him to disprove an essential element of the offense), cert. denied, 444 U.S. 946, 100 S.Ct. 307, 62 L.Ed.2d 315 (1979). END OF DOCUMENT