Libby v. Duval

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1588

CLAYTON LIBBY,

Petitioner, Appellant,

v.

RONALD DUVAL AND SCOTT HARSHBARGER,

Respondents, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Cyr, Circuit Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

Patricia A. O'Neill for appellant.

Elisabeth J. Medvedow, Assistant Attorney General, with whom

Scott Harshbarger, Attorney General, was on brief for appellees.

March 24, 1994

BOWNES, Senior Circuit Judge. In this appeal,
BOWNES, Senior Circuit Judge.

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.

BACKGROUND

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

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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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.

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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

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

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

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course of defining malice, which is "the requisite mental

element" of murder under Massachusetts law, see Commonwealth

v. Huot, 403 N.E.2d 411, 414 (Mass. 1980), overruled on other

grounds, Commonwealth v. Bray, 553 N.E.2d 538 (Mass. 1990),4

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

aforementioned instruction constituted Sandstrom error and

required reversal of his conviction.5 More particularly,

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

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")

(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

Massachusetts Supreme Judicial Court ("SJC"), at least in
Libby II, and the district court treated petitioner's

Sandstrom argument as properly raised on direct appellate

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

to the Sandstrom decision. See, e.g., Commonwealth v. Hill,

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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)

(hereinafter "Libby I"). The SJC then went on to affirm the

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

442 N.E.2d 24, 28 n.9 (Mass. 1982), vacated and remanded on

other grounds, Hill v. Maloney, 927 F.2d 646 (1st Cir. 1990).

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

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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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

Relying on Hill, petitioner argued for a second time to the

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.

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

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.

Next, the court found that the instructions as a whole did

not sufficiently explain the erroneous instruction on malice,

6. In Hill, the jury was instructed that "malice is implied

from any deliberate or cruel act against another, however

sudden." Id. at 648 (emphasis added).

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and the jury therefore was not properly instructed on the

law. See Libby III, slip op. at 10-13; see also Hill, 927

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

Hill, 927 F.2d at 649. It is from this last conclusion that

petitioner appeals.

II.

DISCUSSION

We agree with the district court that the

tripartite Hill test applies to the merits of petitioner's

claim. Accordingly, we organize our discussion within the

Hill framework.

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

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.

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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

v. McGuire, 112 S. Ct. 475, 482 (1991) (habeas challenges to

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

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.

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

8. Readers interested in such a discussion should review
both the Hill decision and the Supreme Court's decision in

Yates v. Evatt, 111 S. Ct. 1884 (1991).

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proving all elements of a crime beyond a reasonable doubt are

insufficient to fulfill this explanatory role. Id. at 651.9

So too are instructions directly contrary to the erroneous

one which themselves correctly state the law. Id.10

Instead, there must be other language in the instructions

which actually "explains the infirm language sufficiently so

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.

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

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

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

Franklin, 471 U.S. at 322) (alteration in original).

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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

that the presumption set up by the subsequent

unconstitutional charge could be rebutted in certain

extenuating circumstances. Cf. id. at 653. We do not,

however, see how these definitions could have explained to

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.

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

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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"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

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

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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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

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

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

Hill, 927 F.2d at 649 n.3 (distinguishing between conclusive

mandatory presumptions and rebuttable mandatory

presumptions).

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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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.

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;

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

Hill, 927 F.2d at 655 (applying the Chapman v. California,

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

a conclusive mandatory presumption urged by Justice Scalia in

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a concurring opinion in Carella v. California, 491 U.S. 263,

267-73 (1989) (hereinafter the "Carella test"). See Hill,

927 F.2d at 654-56. Under both approaches we determined that

the error was not harmless. Id. at 657.

Since the decision in Hill, however, (and since the

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

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

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

inappropriate in the conclusive presumption context. He

therefore urges us to explicitly adopt the Carella test for

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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The issue presented in Brecht was whether the

prosecutor's use of petitioner's post-Miranda silence for

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

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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Errors of the trial type have, since Chapman, been reviewed

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)).

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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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

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

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

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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

for placing the burden on petitioner, we will regard the
burden of proof as resting upon the respondents.

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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.

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.

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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.

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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.

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.

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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

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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

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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.

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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

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considered, I would apply this test rather than the ill-

defined harmless-error test that the majority employs today.

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

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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

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(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

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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

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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

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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.

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.

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(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

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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.

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