USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 93-1588
CLAYTON LIBBY,
Petitioner, Appellant,
v.
RONALD DUVAL AND SCOTT HARSHBARGER,
Respondents, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
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Before
Cyr, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Patricia A. O'Neill for appellant.
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Elisabeth J. Medvedow, Assistant Attorney General, with whom
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Scott Harshbarger, Attorney General, was on brief for appellees.
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March 24, 1994
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BOWNES, Senior Circuit Judge. In this appeal,
BOWNES, Senior Circuit Judge.
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Clayton Libby, a Massachusetts state prisoner serving a life
sentence on a 1971 conviction for murder in the first degree,
challenges the district court's denial of his petition for a
writ of habeas corpus. In so doing, petitioner primarily
contends that the court erred in deeming harmless a jury
instruction on the issue of malice which set up an
unconstitutional mandatory presumption. See Sandstrom v.
___ _________
Montana, 442 U.S. 510, 520-24 (1979) (instruction containing
_______
presumption which has the effect of relieving the prosecution
of the burden of proof on an element of a charged crime
violates the Due Process Clause) (hereinafter "Sandstrom
_________
error").1 We affirm.
I.
I.
__
BACKGROUND
BACKGROUND
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Early in the morning of August 9, 1970, Bruce
Cullen, a New Hampshire resident, was stabbed to death in a
brawl that erupted outside of a South Boston housing project.
Petitioner and George Cooper were indicted and tried for the
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1. Petitioner also argues that an instruction on
manslaughter given at this trial effectuated an
unconstitutional shift in the burden of proof. As we will
explain more fully infra in discussing the effects of the
_____
presumption-creating instruction, we do not believe it at all
likely that the jury would have returned a verdict of
manslaughter even if it had been perfectly instructed. We,
therefore, regard any error in the manslaughter instruction
as harmless and confine our discussion to petitioner's claim
under Sandstrom.
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-2-
2
killing. Cooper was acquitted; Libby, however, was convicted
of murder in the first degree.
Although the circumstances in which the stabbing
took place are sketchy, the trial record reveals that, on the
night of August 8, 1970, petitioner was drinking beer,
smoking marijuana, and possibly taking diet pills. Sometime
early in the morning of August 9, 1970, petitioner, along
with Francis Barton and Kevin Martin, went to George Cooper's
South Boston apartment building and began to converse with
Cooper through a rear apartment window. After a while,
petitioner and Martin walked to the front of the building
where they met several other men. Included among these men
were the victim, Cullen, and another New Hampshire resident,
Dennis Bates.
At some point, a fight broke out. The reason for
the fight is not entirely clear, although there was testimony
indicating that it started simply because Cullen and Bates
were not from the area. There also was testimony indicating
that petitioner and Cullen were arguing about whether Cullen
had been in a certain federal prison. In any event, during
the course of the fight, Cullen was stabbed nine times. Six
of the stab wounds were to his chest; the other three were to
his back or side. One of the chest wounds was to the
victim's heart, and apparently was delivered by a "downward"
blow.
-3-
3
No witness testified to actually observing the
stabbing.2 Instead, petitioner was inculpated through the
testimony of eyewitnesses who observed him both before and
after the fight. Specifically, there was testimony that,
inter alia, petitioner (1) had been carrying a knife prior to
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the fight; (2) was seen running away from the site of the
fight with blood on his clothes; (3) was seen holding a knife
shortly after the stabbing; (4) admitted, on several
occasions after the fight, that he had done the stabbing; and
(5) made threats against anyone who might "snitch[] on him."
There also was testimony that petitioner had stabbed Cullen
because he thought Cullen was "going to jump him from behind"
and/or because he thought Cullen was "beating up Kevin
Martin."
At the conclusion of a seven-day jury trial, the
trial judge instructed the jury on theories of first degree
murder,3 second degree murder, and manslaughter. In the
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2. One witness, Mary VanGordon, who lived in a neighboring
apartment, did testify to seeing Cooper hold the victim while
a short, stocky man with dark hair (a description that did
not fit petitioner) thrust an object towards Cullen's stomach
five times. VanGordon further testified that, after the
attack, Cooper ran into the hallway of a nearby building
while the man who had thrust the object towards Cullen's
stomach ran around to the back of the same building.
3. The trial court instructed the jury that it could convict
for first degree murder if it determined, after other
requisite findings, that the stabbing had been either
deliberately premeditated or had been committed with extreme
atrocity or cruelty. A review of the trial record, however,
reveals that the prosecution relied exclusively on the
-4-
4
course of defining malice, which is "the requisite mental
element" of murder under Massachusetts law, see Commonwealth
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v. Huot, 403 N.E.2d 411, 414 (Mass. 1980), overruled on other
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grounds, Commonwealth v. Bray, 553 N.E.2d 538 (Mass. 1990),4
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the judge told the jury that "[m]alice is implied in every
deliberate cruel act by one against another." The jury
convicted petitioner of first degree murder and recommended a
sentence of life imprisonment.
On appeal, petitioner argued, inter alia, that the
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aforementioned instruction constituted Sandstrom error and
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required reversal of his conviction.5 More particularly,
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extreme atrocity or cruelty theory in arguing that first
degree murder had been committed.
4. Unlawful killings committed without malice are considered
manslaughter. See Commonwealth v. Todd, 563 N.E.2d 211, 214
___ ____________ ____
(Mass. 1990).
5. Sandstrom was not decided until eight years after
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petitioner's conviction. However, because petitioner's
direct appeal was not perfected until nearly eighteen years
after his conviction, see Commonwealth v. Libby, 580 N.E.2d
___ ____________ _____
1025, 1026-27 (Mass. 1991) (hereinafter "Libby II")
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(explaining the neglect by court-appointed counsel, the
clerk's office, and the prosecutor's office which led to the
delay in perfecting petitioner's appeal), and because new
rules announced in Supreme Court decisions apply to all
criminal cases "pending on direct review or not yet final,"
Griffith v. Kentucky, 479 U.S. 314, 328 (1987), both the
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Massachusetts Supreme Judicial Court ("SJC"), at least in
Libby II, and the district court treated petitioner's
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Sandstrom argument as properly raised on direct appellate
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review. We will do likewise.
Similarly, although petitioner did not object to
the challenged instruction at the time it was given,
Massachusetts has waived its contemporaneous objection rule
in the Sandstrom error context where the error occurred prior
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to the Sandstrom decision. See, e.g., Commonwealth v. Hill,
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-5-
5
petitioner asserted that the instruction had the effect of
directing the jury to find malice if it found that petitioner
had committed a "deliberate cruel" act against the victim
despite the fact that a "deliberate cruel" act is not
necessarily malicious. The SJC disagreed, holding: "In the
context of the facts of this case and in light of the judge's
entire instruction on malice (which is not otherwise
challenged), we see neither a substantial likelihood of a
miscarriage of justice calling for relief . . . nor an
unconstitutional presumption dictated to the jury."
Commonwealth v. Libby, 540 N.E.2d 154, 158 (Mass. 1989)
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(hereinafter "Libby I"). The SJC then went on to affirm the
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conviction, although it remanded to the superior court for
consideration of a previously-filed motion to dismiss the
indictment on account of delay.
In August 1990, petitioner's motion to dismiss was
denied by the superior court. In September 1990, petitioner
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442 N.E.2d 24, 28 n.9 (Mass. 1982), vacated and remanded on
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other grounds, Hill v. Maloney, 927 F.2d 646 (1st Cir. 1990).
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Because this condition is met, petitioner's failure to object
at trial does not procedurally bar us, see Wainwright v.
___ __________
Sykes, 433 U.S. 72, 84 (1977) (failure to object at trial as
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required by a state contemporaneous objection rule
constitutes "independent and adequate ground" sufficient to
foreclose federal habeas review of alleged error), from
reaching the merits of his argument in this instance, cf.
___
Puleio v. Vose, 830 F.2d 1197, 1199 (1st Cir. 1987)
______ ____
(indicating that waiver of state contemporaneous objection
rule removes procedural bar that ordinarily would preclude
habeas court from reaching claim on merits where there was no
objection at trial), cert. denied, 485 U.S. 990 (1988).
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-6-
6
filed a timely notice of appeal from this denial. While that
appeal was pending, this court handed down its decision in
Hill v. Maloney, 927 F.2d 646 (1st Cir. 1990). See supra
____ _______ ___ _____
note 5. In Hill, we held unconstitutional a jury instruction
____
quite similar to the one here at issue. Id. at 649-51.6
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Relying on Hill, petitioner argued for a second time to the
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SJC that his conviction should be set aside because the trial
judge's instruction had the effect of setting up an
unconstitutional mandatory presumption. Once again, the SJC
rejected petitioner's argument and affirmed his conviction.
See Libby II, 580 N.E.2d at 1028.
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Finally, petitioner sought relief in the district
court by means of a writ of habeas corpus. In a
comprehensive memorandum and order, the court applied the
three-part test set forth in Hill for review of alleged
____
Sandstrom errors and denied the writ. First, the court
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determined that the challenged instruction set up an
unconstitutional mandatory presumption and therefore
constituted Sandstrom error. See Libby v. Duval, No. 86-
_________ ___ _____ _____
2187-WD, slip op. at 8-9 (D. Mass. April 20, 1993)
(hereinafter "Libby III"); see also Hill, 927 F.2d at 648-49.
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Next, the court found that the instructions as a whole did
not sufficiently explain the erroneous instruction on malice,
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6. In Hill, the jury was instructed that "malice is implied
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from any deliberate or cruel act against another, however
__
sudden." Id. at 648 (emphasis added).
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-7-
7
and the jury therefore was not properly instructed on the
law. See Libby III, slip op. at 10-13; see also Hill, 927
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F.2d at 649. Finally, the court concluded that the
instruction, although erroneous, was harmless beyond a
reasonable doubt. See Libby III, slip op. at 13-19; see also
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Hill, 927 F.2d at 649. It is from this last conclusion that
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petitioner appeals.
II.
II.
___
DISCUSSION
DISCUSSION
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We agree with the district court that the
tripartite Hill test applies to the merits of petitioner's
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claim. Accordingly, we organize our discussion within the
Hill framework.
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A.
A.
Because the Hill opinion rehearses in great detail
____
the legal standards applicable to challenges to jury
instructions which set up presumptions, and because
respondents7 concede that the instruction challenged here
established a mandatory presumption, we do not believe that
either a highly detailed discussion of the law of
presumptions or an extensive explanation of why the
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7. Respondents in this matter are Ronald Duval, the
Superintendent of the Massachusetts Correctional Institution
at Cedar Junction, where respondent is being detained, and
Scott Harshbarger, the Attorney General of the Commonwealth
of Massachusetts.
-8-
8
instruction was defective is required.8 Instead, we think
it sufficient to note our belief that it was reasonably
likely that the jurors construed the trial judge's
instruction as requiring a finding of malice upon a finding
that the stabbing was "deliberate" and "cruel." See Estelle
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v. McGuire, 112 S. Ct. 475, 482 (1991) (habeas challenges to
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jury instructions reviewed for "reasonable likelihood" that
the jury has applied the challenged instruction in an
unconstitutional manner). Thus, because the instruction had
the effect of relieving the prosecution of the burden of
proof on an element of the crime charged, see Sandstrom, 442
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U.S. at 520-24, the district court's conclusion that the
instruction established a mandatory presumption was clearly
correct. Accordingly, we move to step two of the Hill test.
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B.
B.
Once we have determined that the specific language
challenged by a petitioner set up a mandatory presumption, we
consider whether other parts of the instruction explained the
particular infirm language to the extent that there is no
reasonable likelihood that the jurors applied the
unconstitutional presumption. See Boyde v. California, 494
___ _____ __________
U.S. 370, 380 (1990). General instructions regarding the
presumption of innocence and the government's burden of
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8. Readers interested in such a discussion should review
both the Hill decision and the Supreme Court's decision in
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Yates v. Evatt, 111 S. Ct. 1884 (1991).
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-9-
9
proving all elements of a crime beyond a reasonable doubt are
insufficient to fulfill this explanatory role. Id. at 651.9
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So too are instructions directly contrary to the erroneous
one which themselves correctly state the law. Id.10
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Instead, there must be other language in the instructions
which actually "explains the infirm language sufficiently so
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that there is no reasonable likelihood that the jury believed
it must [in the context of an erroneous malice instruction]
find malice if it found petitioner [acted in such a way so as
to trigger the unconstitutional presumption]." Id.
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Respondents contend that four sections of the
instructions, when taken together, sufficiently explain the
infirm language. After reviewing these four sections, and
after further reviewing the instructions as a whole, we
cannot agree.
The first two sections adduced by respondents
involve definitions of malice given prior to the
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9. This is because "`[t]he jury could have interpreted the
two sets of instructions as indicating that the presumption
was a means by which proof beyond a reasonable doubt as to
[malice] could be satisfied.'" Id. (quoting Sandstrom, 442
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U.S. at 518-19 n.7) (alteration in original).
10. This is because "`[a] reviewing court has no way of
knowing which of the two irreconcilable instructions the
jurors applied in reaching their verdict.'" Id. (quoting
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Franklin, 471 U.S. at 322) (alteration in original).
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-10-
10
unconstitutional instruction.11 In each of these two
instances, the trial judge correctly instructed the jurors
that malice was not proved where, among other things, there
were "extenuating circumstances" sufficient to "reduce the
crime to manslaughter." At most, we think that these two
definitions of malice might have allowed the jurors to infer
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that the presumption set up by the subsequent
unconstitutional charge could be rebutted in certain
extenuating circumstances. Cf. id. at 653. We do not,
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however, see how these definitions could have explained to
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the jurors that the upcoming instruction was not going to
mean what it actually and clearly stated. At any rate, we
reiterate that correct instructions, which directly
contradict the erroneous instruction, are not sufficient to
cure the error. See supra at p.10 and note 10.
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The other two sections cited by respondents are
less compelling. The first of these two, which again
preceded the infirm instruction, primarily defined the terms
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11. The first passage relied upon by respondents reads as
follows: "[M]urder is the killing of a human being without
legal justification or without excuse or without such
extenuating circumstances as may reduce the crime to
manslaughter; but with what is called in the law, malice
aforethought."
The second passage is very similar: "Any
intentional killing of a human being without legal
justification or excuse and with no extenuating
circumstances, sufficient in law to reduce the crime to
manslaughter, is malicious."
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11
"aforethought" and "murder."12 The second defined the term
"premeditated."13
Both of the passages are jumbled and confusing, especially
when compared to the short and relatively straightforward
statement which set up the unconstitutional mandatory
presumption. Cf. Hill, 927 F.2d at 652 (juxtaposing
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clumsily-worded correct instruction with clear and concise
unconstitutional instruction in deciding that correct
portions of charge as a whole did not negate the effects of
the presumption-creating language). Moreover, neither
passage explicitly touched on the concept of malice, except
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12. In its entirety, this section reads:
If the wicked intent to do injury to
another person precedes the act by which
the injury was done, it is malice
aforethought. If the homicide is
committed without legal justification or
that is to say, without due authority of
law and not in self defense, and there is
no issue here of self defense, nor in the
heat of passion on great provocation, but
with the specific intent to take the one
killed, or an unlawful act, the natural
consequence of which would be to deprive
another person of life, it is murder.
13. This passage states:
Because it was a cruel act of the will
and unlike an intent stimulated by a
sudden anger or quarrel where someone
suddenly, not having intended violence
beforehand, does. It must have been a
design actually formed and formed upon
before the act and the murder must have
been committed pursuant to design or plan
that has thus been formed.
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12
insofar as the first one briefly discussed the "aforethought"
component of the term "malice aforethought." In light of
these deficiencies, we do not see how these passages could
have actually explained the challenged instruction "so as to
offset any erroneous impression given by [it]." See id. at
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651.
Before concluding our analysis of the entire
charge, we pause to note that, because it was framed in
irrefutable and unvarying terms ("[m]alice is implied in
__
every deliberate and cruel act by one against another"), we
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think it at least reasonably likely that the challenged
instruction completely removed the element of malice from the
case once the Commonwealth established that petitioner had
acted deliberately and cruelly.14 Therefore, in conducting
our harmless-error analysis, we will regard the instruction
as having erected a conclusive mandatory presumption. See
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Hill, 927 F.2d at 649 n.3 (distinguishing between conclusive
____
mandatory presumptions and rebuttable mandatory
presumptions).
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14. We concede, as noted earlier, that the jurors might have
_____
inferred from the correct definitions of malice that the
"implication" of malice created by deliberate and cruel acts
was rebuttable. See supra at p.11. Such a reading would,
___ _____
however, have been quite strained. In any case, we think it
at least as likely that the jurors ignored the correct malice
instructions which are facially irreconcilable with the
challenged instruction. See supra note 10.
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-13-
13
In sum, we agree with the district court that the
charge as a whole did not neutralize the effect of the
presumption-creating language. Accordingly, the effect of
the instruction here was unconstitutional.
C.
C.
Having determined that the overall charge did not
adequately explain the challenged instruction, we still must
ascertain whether the error was harmless. See id. at 654;
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see also Sullivan v. Louisiana, 113 S. Ct. 2078, 2082 (1993)
___ ____ ________ _________
(reiterating that Sandstrom error is subject to harmless-
_________
error review). In Hill, because the Supreme Court had sent
____
mixed signals regarding the proper harmless-error analysis to
be employed where there has been a mandatory presumption, we
applied two separate approaches. First, we looked at the
trial record as a whole to determine whether it was clear
"beyond a reasonable doubt" that the error was harmless. See
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Hill, 927 F.2d at 655 (applying the Chapman v. California,
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386 U.S. 18, 24 (1967), standard for determining, on direct
review, whether a conviction must be set aside because of
federal constitutional error); see also Rose v. Clark, 478
___ ____ ____ _____
U.S. 570, 580-82 (1986) (applying Chapman harmless-error
_______
standard to a presumption-creating jury instruction
challenged on habeas). Alternatively, we utilized a narrower
approach, derived from Chapman, for analyzing the effects of
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a conclusive mandatory presumption urged by Justice Scalia in
-14-
14
a concurring opinion in Carella v. California, 491 U.S. 263,
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267-73 (1989) (hereinafter the "Carella test"). See Hill,
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927 F.2d at 654-56. Under both approaches we determined that
the error was not harmless. Id. at 657.
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Since the decision in Hill, however, (and since the
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district court passed on whether or not the presumption-
creating instruction was harmless), the Supreme Court has
issued Brecht v. Abrahamson, 113 S. Ct. 1710 (1993), which
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clarifies that the two approaches employed in Hill are no
____
longer applicable on collateral review. In Brecht, the
______
Supreme Court announced that the Chapman "harmless beyond a
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reasonable doubt" test should not be utilized by courts
reviewing claims of constitutional error of the trial type on
habeas, id. at 1717; instead, reviewing courts should now
___
look to whether error "`had substantial and injurious effect
or influence in determining the jury's verdict.'" Id. at
___
1722 (quoting Kotteakos v. United States, 328 U.S. 750, 776
_________ ______________
(1946)).
Petitioner contends that the Brecht approach is
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inappropriate in the conclusive presumption context. He
therefore urges us to explicitly adopt the Carella test for
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determining whether or not an instruction creating such a
presumption can be viewed as harmless error. In light of the
clear and uncompromising language employed by the Court in
Brecht, we decline to do so.
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15
The issue presented in Brecht was whether the
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prosecutor's use of petitioner's post-Miranda silence for
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impeachment purposes at petitioner's trial, which violated
petitioner's due process rights under Doyle v. Ohio, 426 U.S.
_____ ____
610 (1976) (hereinafter "Doyle" error"), was harmless. In
_____
concluding that it was, the majority decided, as we have
noted, that the Kotteakos harmless-error standard was the
_________
appropriate lens through which to view the claim on habeas.
See Brecht, 113 S. Ct. at 1722. In so doing, the Court
___ ______
departed from the approach taken in certain other habeas
cases where it had assumed the applicability of the Chapman
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standard. Id. at 1718 (citing Yates v. Evatt, 111 S. Ct.
___ _____ _____
1884 (1991); Rose v. Clark, 478 U.S. 570 (1986); Milton v.
____ _____ ______
Wainwright, 407 U.S. 371 (1972); Anderson v. Nelson, 390 U.S.
__________ ________ ______
(1968) (per curiam)).
In conducting its analysis, the Court began by
observing that Doyle error fit into the category of
_____
constitutional error known as "trial error." See Brecht, 113
___ ______
S. Ct. at 1717. These are errors which "`occur[] during the
presentation of the case to the jury,' and [are] amenable to
harmless error analysis because [they] `may be quantitatively
assessed in the context of other evidence presented in order
to determine the effect [they] had on the trial.'" Id.
___
(quoting Arizona v. Fulminante, 499 U.S. 279, 307-08 (1991)).
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-16-
16
Errors of the trial type have, since Chapman, been reviewed
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under the "harmless-beyond-a-reasonable-doubt" standard.
The Court also noted that, at the other end of the
spectrum of constitutional errors are "`structural defects in
the constitution of the trial mechanism, which defy analysis
by `harmless-error' standards'. . . because they infect the
entire trial process." Id. (quoting Fulminante, 499 U.S. at
___ __________
309). Listed as an example of such a structural defect was
deprivation of the right to counsel. Id. (citing Gideon v.
___ ______
Wainwright, 372 U.S. 335 (1963)).
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After reaching this conclusion, and determining
that neither the doctrine of stare decisis nor congressional
_____ _______
silence prevented it from considering the merits of
respondent's argument that the Kotteakos standard, and not
_________
the Chapman standard, should be employed in determining
_______
whether the Doyle error was harmless, see generally id. at
_____ ___ _________ ___
1718-19, the Court turned to an analysis of whether the
Chapman standard appropriately served certain interests
_______
implicated in habeas cases but not in the direct review
context whence it sprang. Pointing to (1) the state's
interest in finality of convictions that have survived direct
review within the state court system; (2) the interests of
comity; (3) the interests of federalism; and (4) the interest
of maintaining the prominence of the trial itself, the Court
decided that application of the Chapman standard to trial
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-17-
17
errors challenged on habeas resulted in an "imbalance of . .
. costs and benefits." Id. at 1721. Accordingly, the Court
___
embraced the less onerous Kotteakos standard, holding that it
_________
applies "in determining whether habeas relief must be granted
because of constitutional error of the trial type." Id. at
___
1722. Like the Chapman test, this "actual prejudice" inquiry
_______
presumes that the reviewing court will conduct its
harmlessness assessment "in light of the record as a whole."
Id.
___
After Brecht, we think it apparent that the
______
question of whether to apply the Kotteakos test in conducting
_________
our harmless error inquiry turns on whether the conclusive
presumption here at issue constitutes "trial error." Despite
the force of some of our dissenting brother's arguments, we
are constrained by the Supreme Court's teaching that it
should be so considered. See Arizona v. Fulminante, 499 U.S.
___ _______ __________
279, 306-07 (1990) (citing Carella). Thus, we train our
_______
sights on whether, in light of the whole record, respondents
have met their burden15 of demonstrating that the
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15. We acknowledge that the majority opinion in Brecht
______
treats the burden as petitioner's. See Brecht, 113 S. Ct. at
___ ______
1722. Nonetheless, as Justice Stevens, who provided the
crucial fifth vote in Brecht, convincingly explains in his
______
concurring opinion, the Kotteakos test requires that the
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party arguing the harmlessness of an error which tends to
prejudice a litigant's "substantial rights" (as all
constitutional errors surely do) must bear the burden of
proof. Id. at 1723-24 and n.1 (Stevens, J., concurring).
___
Given this authority, and given the further fact that there
appear to be five votes for this position and only four votes
-18-
18
conclusive presumption did not actually prejudice petitioner
because it did not have a substantial and injurious effect or
influence in determining the jury's verdict. In our view,
respondents have met their burden.
The thrust of petitioner's harmfulness claim is not
that, in the absence of the conclusive presumption, he would
have been acquitted. Rather, petitioner's argument is that
the conclusive presumption precluded the jury from convicting
him of manslaughter on a theory of "sudden combat." See
___
Commonwealth v. Richard, 384 N.E.2d 636, 638 (Mass. 1979)
____________ _______
(the presence of sudden combat constitutes a mitigating
circumstance sufficient to reduce a verdict of murder to
manslaughter under Massachusetts law). While we concede (1)
that there was evidence (i.e., the testimony that petitioner
____
stabbed Cullen because he thought Cullen was "going to jump
him from behind" and/or because he thought Cullen was
"beating up Kevin Martin") which might conceivably have
_____
provided a basis for the jury to have concluded that the
government had not proved an absence of sudden combat; and
(2) that the conclusive presumption tended to deter the jury
from considering this evidence, see Yates, 111 S. Ct. at 1894
___ _____
n.10 (conclusive presumptions tend to deter a jury from
considering any evidence for the presumed fact beyond the
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for placing the burden on petitioner, we will regard the
burden of proof as resting upon the respondents.
-19-
19
predicate evidence), we think it extremely unlikely that the
jury would have relied on this evidence and returned a
verdict of manslaughter. Mary VanGordon testified that the
stabbing was administered while the victim was being held by
another man. Moreover, the evidence reveals that the victim
was stabbed nine times, with six of the stab wounds being
____
delivered to the chest area. In our view, such evidence,
when combined with the fact that the defense never
specifically argued a sudden combat theory to the jury,16
strongly undermines any claim that petitioner was, throughout
the entirety of the stabbing, acting in response to sudden
combat.
We do not believe that the erroneous instruction
had a substantial and injurious effect or influence on the
jury's verdict. Accordingly, we affirm the district court's
conclusion that the instructional error was harmless.17
Affirmed.
Affirmed.
_________
CYR, Circuit Judge (concurring): Although I share
CYR, Circuit Judge (concurring):
______________
my dissenting brother's belief that the Carella concurrence
_______
____________________
16. It is clear from the record that petitioner focused his
defense efforts on arguing that the prosecution did not
establish beyond a reasonable doubt that he was, in fact, the
stabber.
17. In so ruling, we express no opinion as to the district
court's conclusion that the error here was harmless even
under the Chapman standard.
_______
-20-
20
articulates compelling grounds for more narrowly confining
"harmless error" review of a jury instruction mandating a
conclusive presumption, I join the majority opinion because I
am satisfied that the review required by the Court in Brecht
______
encompasses the entire record.
Dissent follows.
Dissent follows.
-21-
21
Stahl, Circuit Judge, dissenting. I agree with the
_____________
majority that the instruction challenged here had the effect
of setting up a conclusive presumption which was not
explained away by the totality of the charge. I further
agree with the majority that conclusive presumptions can
constitute harmless error. However, I cannot agree with the
method of harmless-error analysis employed by the majority
and with its conclusion that the presumption-creating
instruction was harmless. Accordingly, I respectfully
dissent.
A.
A.
__
In concluding that it is "extremely unlikely that
the jury would have relied on [the unconsidered sudden
combat] evidence and returned a verdict of manslaughter," see
___
ante at 19, the majority significantly expands the contours
____
of harmless-error analysis. For, implicit in this facially
uncontroversial statement are two radical assumptions: (1)
that, in the habeas context, reviewing courts now are obliged
to supply missing factual findings; and (2) that, in the
habeas context, reviewing courts can and should rely upon
evidence that the jury did not consider. In my opinion,
neither assumption can be squared with settled authority
interpreting the Sixth Amendment jury-trial right and the Due
Process Clause.
-21-
21
As the Supreme Court has made clear in a series of
recent decisions, an instruction setting up a mandatory
presumption engenders an error different in nature than the
more typical form of constitutional error -- improperly
admitted evidence and/or improperly allowed argument. A
mandatory presumption directs the jury to presume an element
of the crime charged upon finding only certain predicate
facts. See, e.g., Sandstrom, 442 U.S. at 517. This, of
___ ____ _________
course, directly violates a criminal defendant's due process
rights to have the prosecution prove all elements of the
offense charged, see Sullivan v. Louisiana, 113 S. Ct. 2078,
___ ________ _________
2080 (1993) (citing Patterson v. New York, 432 U.S. 197, 210
_________ ________
(1977) and Leland v. Oregon, 343 U.S. 790, 795 (1952)), and
______ ______
to have the prosecution persuade the factfinder beyond a
reasonable doubt of the facts necessary to establish each of
those elements, id. at 2080-81 (citing In re Winship, 397
___ _____________
U.S. 358, 364 (1970) and Cool v. United States, 409 U.S. 100,
____ _____________
104 (1972) (per curiam)). It also, in my view, tends to
undermine the Sixth Amendment jury-trial right. See
___
generally Carella, 491 U.S. at 268-69 (Scalia, J.,
_________ _______
concurring); cf. Sullivan, 113 S. Ct. at 2080 (discussing
___ ________
Sixth Amendment right to have the jury, and not the judge,
make the requisite finding of guilt).
A conclusive mandatory presumption, as
__________
distinguished from a rebuttable mandatory presumption, has a
-22-
22
further pernicious effect. By directing, without the
possibility of rebuttal, the jury to find the elemental fact
merely upon finding certain predicate facts, it "tend[s] to
deter a jury from considering any evidence for the presumed
fact beyond the predicate evidence." Yates, 111 S. Ct. at
_____
1894 n.10. Indeed, given the "sound presumption of appellate
practice[] that jurors are reasonable and generally follow
the instructions they are given," id. at 1893, a reviewing
___
court must assume that the jury did not consider evidence
____
beyond that relating to the predicate facts, because "to do
so would be a waste of the jury's time and contrary to its
instructions," id. at 1894 n.10; see also Carella, 491 U.S.
___ ___ ____ _______
at 269 (Scalia, J., concurring).
All of this is not to say that a conclusive
presumption can never be harmless error. What is does mean,
however, as Justice Scalia convincingly demonstrates in his
concurrence in Carella, is that "the harmless-error analysis
_______
applicable in assessing a mandatory conclusive presumption is
wholly unlike the typical form of such analysis." Id. at
___
267. Whereas it makes sense in the case of the more typical
form of constitutional error -- improperly admitted evidence
and/or improperly allowed argument -- to perform the type of
whole-record "quantitative assessment" outlined in Brecht
______
(and, incidentally, also outlined in Chapman) in order "to
_______
determine whether the fact supported by [the] improperly
-23-
23
admitted evidence [or improperly allowed argument] was in any
event overwhelmingly established by other evidence," see id.,
___ ___
such an inquiry makes no sense where the error is not that
the jury may have been swayed by tainted information, but
rather is that the jury failed to consider relevant evidence
and failed to make a required finding, id. at 267-69. For,
___
as Justice Scalia explains:
[Such] problem[s] would not be cured by
an appellate court's determination that
the record evidence unmistakably
established guilt, for that would
represent a finding of fact by judges,
not by a jury. As with a directed
verdict [for the State, which is
constitutionally impermissible, see
___
United States v. Martin Linen Supply Co.,
_____________ _______________________
430 U.S. 564, 572-73 (1977)], "the error
in such a case is that the wrong entity
judged the defendant guilty."
Id. at 269 (quoting Rose v. Clark, 478 U.S 570, 578 (1986)).
___ ____ _____
Thus, the proper question for the reviewing court "`is not
whether guilt may be spelt out of a record, but whether guilt
has been found by a jury according to the procedure and
standards appropriate for criminal trials.'" Id. (quoting
___
Bollenbach v. United States, 326 U.S. 607, 614 (1946)).
__________ _____________
With these principles in mind, Justice Scalia has
proposed a test for determining whether, despite the presence
of a conclusive presumption, a particular case presents a
"`rare situation[]'" where "`[a] reviewing court can be
confident that [such a presumption] did not play any role in
the jury's verdict.'" Id. at 270 (quoting Connecticut v.
___ ___________
-24-
24
Johnson, 460 U.S. 73, 87 (1983) (plurality opinion)).
_______
Seeking to avoid the specter of factfinding by reviewing
courts on the basis of evidence the jury never considered,
the Carella test does not direct courts to ascertain whether
_______
the presumed fact was otherwise established to varying
degrees by the evidence (as the Brecht and Chapman tests
______ _______
would do). Rather, the test instructs reviewing courts to
ask (1) whether the instruction established a conclusive
presumption on a charge which did not affect other charges
and on which the defendant was acquitted; (2) whether the
instruction established a conclusive presumption with respect
to an element of the crime which the defendant admitted; or
(3) whether
the predicate facts relied upon in the
instruction, or other facts necessarily
found by the jury, are so closely related
to the ultimate fact to be presumed that
no rational jury could find those facts
without also finding that ultimate fact,
making those findings [the] functional[]
equivalent to . . . the element required
to be presumed.
Id. at 271. If the answer to any of these three questions is
___
"yes," the error is harmless. See id. Because this test
___ ___
faithfully preserves a criminal defendant's Sixth and
Fourteenth Amendment rights to have an impartial jury make
____
the requisite factual and elemental determinations in his/her
trial, and because it provides assurance that reviewing
courts will consider only the evidence that the jury
-25-
25
considered, I would apply this test rather than the ill-
defined harmless-error test that the majority employs today.
B.
B.
__
Before applying the Carella test to this case, I
_______
feel it appropriate to respond to the arguments against the
Carella test and in favor of the whole-record approach
_______
outlined in Brecht. Obviously, the most potent of these
______
arguments is the one relied upon by the majority: that the
whole-record Brecht analysis applies to "trial errors," that
______
the Supreme Court, in a string citation in Fulminante,
__________
indicated that a conclusive presumption is "trial error," and
that we therefore are obliged to conduct our harmlessness
review in light of the whole record.
I will admit that the Court's characterization of a
conclusive presumption as "trial error" in Fulminante is
__________
troublesome; indeed, I think this case well illustrates
Justice White's criticism of the "trial error"/"structural
error" dichotomy. See Fulminante, 499 U.S. at 291 (White,
___ __________
J., dissenting in part) (arguing that, in assessing whether
harmless-error analysis ought to be applied, courts should
disregard the trial error/structural error distinction and
instead "consider[] the nature of the right at issue and the
effect of [the] error upon the trial"). Despite the
aforementioned indication to the contrary, the presence of a
non-harmless (as determined by the Carella test) conclusive
_______
-26-
26
presumption strikes me as a type of "structural error." See
___
Carella, 491 U.S. at 268 (Scalia, J., concurring) ("The
_______
constitutional right to a jury trial embodies a profound
judgment about the way in which law should be enforced and
justice administered. It is a structural guarantee that
__________ _________
reflects a fundamental decision about the exercise of
official power -- a reluctance to entrust plenary powers over
the life and liberty of the citizen to one judge or to a
group of judges.") (emphasis supplied) (citations and
internal quotation marks omitted); cf. Sullivan, 113 S. Ct.
___ ________
at 2083 (denial of the right to a jury verdict of guilt
beyond a reasonable doubt is a structural error).
In my view, however, whether we label a conclusive
presumption trial error, structural error, or something in
between is of no consequence; what matters instead is that we
apply the appropriate form of harmless-error review in
assessing the effects of that presumption. Applying a whole-
record review not only ignores the considerations outlined in
Part A. of this dissent, but it also ignores two indications
by Supreme Court majorities, subsequent to Fulminante, that
__________ __________
the Carella analysis is properly employed by courts reviewing
_______
presumptions. See Sullivan, 113 S. Ct. at 2082 (indicating,
___ ________
in the direct review context, that Carella provides the
_______
proper framework for determining whether or not a mandatory
presumption was harmless); Yates, 111 S. Ct. at 1894 n.10
_____
-27-
27
(implicitly endorsing, in the habeas context, the Carella
_______
test as a means for evaluating whether or not a conclusive
presumption was harmless). One might argue that Yates has
_____
been superseded by Brecht, and that Brecht did not control in
______ ______
Sullivan because Sullivan was a direct review case. In
________ ________
response, I would point out that Chapman, which did control
_______
in Yates and would have controlled in Sullivan had the error
_____ ________
therein been deemed amenable to harmless-error review,
contemplates a whole-record review every bit as much as
Brecht does; nonetheless, the Court has made clear in the
______
Chapman context that, when confronted with presumption error,
_______
the typical form of whole-record analysis does not apply.
Thus, I read the string citation in Fulminante as merely
__________
indicating that a conclusive presumption is amenable to
harmless-error review. I do not read it as stating that such
___
a presumption is subject to the usual whole-record harmless-
error test applicable to most other forms of trial error.
It might also be argued that the Carella test
_______
derives from Chapman, see Carella, 491 U.S. at 271 (Scalia,
_______ ___ _______
J., concurring) (noting that if the Carella test is met,
_______
"[t]he error is harmless because it is `beyond a reasonable
doubt' that the jury found the facts necessary to support the
conviction") (citing Chapman, 386 U.S. at 24), and that the
_______
replacement of Chapman with Brecht on habeas means that the
_______ ______
Carella concurrence has no relevance in habeas cases. In
_______
-28-
28
response, I would concede that the Carella test can be
_______ ___ __
theoretically viewed as "deriving from" Chapman. In my view,
_______
however, the Carella concurrence can just as easily and
_______
fairly be read as (1) explaining that a conclusive
presumption sets up an error which tends to undermine a
structural guarantee of the Constitution and which only can
be harmless in those "rare" circumstances where the
presumption did not play "any role" in the jury's verdict;
(2) setting forth the test for determining whether the error
played any such role; and (3) noting, in conclusion and
without prior reference to Chapman, that when the Carella
_______ _______
test is met, the Chapman test also is met. In light of this,
_______
and because abandoning Carella necessarily means that we must
_______
welcome factfinding by habeas courts on the basis of evidence
the jury did not consider, I prefer the latter reading.
A third argument might be that, in Yates, the
_____
Supreme Court has already ratified factfinding by habeas
courts. My response to such an argument simply would be that
I agree. As I see it, the Yates test for reviewing the
_____
effects of rebuttable mandatory presumptions, which
impermissibly shift the burden of proof from the prosecution
to the defendant, does, despite the Supreme Court's
indications to the contrary, reek of factfinding by reviewing
courts. Cf. generally Yates, 111 S. Ct. at 1898 (Scalia, J.,
___ _________ _____
concurring in judgment) (explaining that, when a jury has
-29-
29
been directed to apply a rebuttable mandatory presumption, it
has never found that the prosecution proved the element on
which the presumption was erected beyond a reasonable doubt).
However, as Justice Scalia notes in his Carella concurrence:
_______
It is one thing to say that the effect of
th[e] erroneous burden-shifting
[effectuated by a rebuttable presumption]
will be disregarded if the record
developed at trial establishes guilt
beyond a reasonable doubt; it is quite
another to say that the jury's failure to
make any factual determination of the
___
elemental fact -- because of a conclusive
presumption resting upon findings that do
not establish beyond a reasonable doubt
the elemental fact -- will be similarly
disregarded.
Carella, 491 U.S. at 273 (Scalia, J., concurring) (internal
_______
quotation marks omitted) (arguing the particular propriety of
the Carella test to the conclusive presumption context).
_______
Thus, I do not think that the Yates test can and should be
_____
read as implicitly endorsing the type of factfinding the
majority engages in today.
Finally, one might argue, as does the Brecht
______
majority, that wholesale use of the Brecht test promotes the
______
principles of restraint, often couched in terms of "comity"
and "federalism," underlying the Supreme Court's more recent
habeas jurisprudence. In response, I could only agree if
"restraint" is defined solely in terms of state prisoners not
being granted very many writs of habeas corpus. For, I think
it obvious that factfinding on the basis of record evidence
-30-
30
that the jury never considered cannot be cited as evidence of
judicial restraint. So too do I think it obvious that
principles of comity and federalism should never require the
_____
continued incarceration of a state prisoner who was not
afforded his/her constitutional rights to have an impartial
jury make the requisite factual and elemental determinations
in his/her trial just because a federal judge or a panel of
federal judges believe that guilt is "likely" spelt out by
the record. Cf. Bollenbach, 326 U.S. at 614.
___ __________
C.
C.
__
Application of the Carella test to the case at bar
_______
easily yields the conclusion that the error here was not
harmless.18 I start from the premise that the question of
whether an unlawful killing constitutes murder or
manslaughter turns on whether or not the killing was
committed with malice. See ante note 4. "An intention to
___ ____
inflict injury on the victim which is not justified on any
lawful ground or palliated by the existence of any mitigating
__ _________ __ ___ _________ __ ___ __________
circumstances is malicious within the meaning of the law."
_____________
Commonwealth v. Colon-Cruz, 562 N.E.2d 797, 808 (Mass. 1990)
____________ __________
____________________
18. Obviously, petitioner neither was acquitted of the
charge on which the presumption was set up nor admitted at
trial that if he did the stabbing, he did so maliciously.
Thus, I restrict my inquiry under Carella to whether the
_______
predicate facts relied upon in the instruction, or other
facts necessarily found by the jury, are so closely related
to malice that no rational jury could have found those facts
without also finding malice.
-31-
31
(emphasis supplied) (quoting Commonwealth v. McGuirk, 380
____________ _______
N.E.2d 662, 666-67 (Mass. 1978), cert. denied, 439 U.S. 1120
_____ ______
(1979)); see also Reddick v. Commonwealth, 409 N.E.2d 764,
___ ____ _______ ____________
769 (Mass. 1980) (malice and the presence of legal mitigation
are "mutually exclusive"). The presence of "sudden combat"
constitutes a mitigating circumstance sufficient to negate
malice and to reduce a verdict of murder to manslaughter
under Massachusetts law. See Richard, 384 N.E.2d at 638; cf.
___ _______ ___
Commonwealth v. Nardone, 546 N.E.2d 359, 364 (Mass. 1989)
____________ _______
(distinguishing between assault with intent to murder and
assault with intent to kill). And, when such a mitigating
circumstance is adequately raised in the evidence (as sudden
combat was here), the Commonwealth must prove the absence of
this circumstance beyond a reasonable doubt. See
___
Commonwealth v. Nieves, 476 N.E.2d 179, 182 (Mass. 1985)
____________ ______
(citing Mullaney v. Wilbur, 421 U.S. 684, 697-98 (1975) and
________ ______
Commonwealth v. Stokes, 374 N.E.2d 87, 94 (Mass. 1978)).
____________ ______
As the majority opinion states, it is at least
reasonably likely that the jurors, on the basis of the
challenged instruction, found malice solely upon finding that
petitioner stabbed the victim deliberately and cruelly. The
foregoing authority, however, makes clear that deliberate and
cruel behavior is not necessarily tantamount to malicious
behavior. To be specific, the stabbing here could have been
both deliberate and cruel, but administered in response to
-32-
32
sudden combat, of which there is evidence in this record.
Thus, I cannot say that, in this instance, "the predicate
facts relied upon in the instruction, or other facts
necessarily found by the jury, are so closely related to the
ultimate fact to be presumed that no rational jury could find
those facts without also finding that ultimate fact."
Carella, 491 U.S. at 271. Accordingly, the error had a
_______
"substantial and injurious effect or influence in determining
the jury's verdict." The petition, therefore, should be
granted.19
____________________
19. Even were I to employ the deferential standard of review
the majority utilizes, I could not join the majority opinion.
As I have explained, the error committed here had the effect
of deterring the jury from considering evidence of sudden
combat. Yet, there was an abundance of such evidence;
indeed, it is undisputed that the stabbing took place in the
midst of a drunken melee. In light of this, and in light of
the further fact that the Commonwealth bore the burden of
proving an absence of sudden combat beyond a reasonable
doubt, see Nieves, 476 N.E.2d at 182, I am at a loss to see
___ ______
how the error can be viewed as harmless even under Brecht.
______
-33-
33
