Anderson v. Butler

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-2000

BRUCE ANDERSON,

Petitioner, Appellant,

v.

NORMAN J. BUTLER,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Selya, Boudin and Stahl, Circuit Judges.

Stephen Hrones, with whom Hrones & Garrity was on brief, for

appellant.
Nancy W. Geary, Assistant Attorney General, with whom Scott

Harshbarger, Attorney General, was on brief, for appellee.

May 11, 1994

SELYA, Circuit Judge. Petitioner-appellant Bruce
SELYA, Circuit Judge.

Anderson, convicted of first degree murder in the stabbing death

of his estranged wife, exhausted state remedies and then applied

to the federal court for a writ of habeas corpus, alleging

ineffective assistance of counsel. Ultimately, we granted the

writ in a 2-to-1 decision, see Anderson v. Butler, 858 F.2d 16

(1st Cir. 1988), and ordered a new trial, id. at 19. Petitioner

fared no better the second time around: a Massachusetts superior

court jury convicted him of first degree murder and the highest

state court again proved inhospitable, see Commonwealth v.

Anderson, 408 Mass. 803, 563 N.E.2d 1353 (1990).

Having succeeded once in obtaining habeas relief under

federal law, see 28 U.S.C. 2241-2254, petitioner tried anew.

This time he contended that a jury instruction on the issue of

provocation created an impermissible mandatory presumption. See

generally Sandstrom v. Montana, 442 U.S. 510, 520-24 (1979)

(holding that an instruction setting up a 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).

The district court denied and dismissed the petition. See

Anderson v. Butler, No. 91-10482-Z (D. Mass. Aug. 23, 1993)("D.

Ct. Op."). This appeal followed.

I. BACKGROUND

The relevant facts are laid out in the Supreme Judicial

Court's opinion, see Anderson, 563 N.E.2d at 1354-55, and it

would be pleonastic to rehearse them here. It suffices to say

2

that, at the second trial, petitioner conceded the uxoricide, but

claimed that he acted without malice and in the heat of passion,

having been provoked by finding a strange and scantily clad man

in his wife's bedroom.

In this appeal, petitioner sounds a single theme,

constructed in three stages: he contends that the superior court

judge erred in his charge to the jury on the question of

provocation; that the error struck at the heart of petitioner's

defense, thus denying him a fair trial; and that, consequently,

his constitutional rights were abridged. His complaint is

directed specifically at a single sentence within the trial

judge's lengthy description of provocation.1 That sentence told

the jurors to examine whether "an ordinary man, given all the

facts and circumstances . . . would he be likely to be in such a

state of passion, anger, fear, fright or nervous excitement as

would lead him" to commit murder. Petitioner claims that, had

the judge faithfully stated the governing law, see Commonwealth

v. Walden, 380 Mass. 724, 405 N.E.2d 939 (1980); Commonwealth v.

Rooney, 365 Mass. 484, 313 N.E.2d 105 (1974), he would have said

"might lead" in lieu of "would lead."

Both the state supreme court, Anderson, 563 N.E.2d at

1355-56, and the federal district court, D. Ct. Op. at 3-6,

carefully examined this assignment of error, placed it into

realistic context, and found it wanting. We reach the same

1The full text of the charge on provocation is reproduced in
Commonwealth v. Anderson, 563 N.E.2d at 1355 n.1.

3

conclusion.

II. DISCUSSION

We begin by particularizing the single respect in which

the jury instructions on provocation were in error. We then

indicate why, upon careful review of the record, we find no

sufficient reason to believe that, within the framework of the

entire charge, the mangled verb usage would have been understood

by a reasonable juror as creating a mandatory presumption. Last,

we explain why, regardless of how the solitary instructional

error is viewed, it cannot plausibly be said, on the whole

record, that the lapse tainted the trial or compromised

petitioner's defense.

A. The Error.

Massachusetts law defines adequate provocation,

sufficient to convert what might otherwise be murder into

manslaughter, as "something `that would be likely to produce in

an ordinary man such a state of passion, anger, fear, fright or

nervous excitement as might lead to an intentional homicide and,

moreover, such as did actually produce such a state of mind in

the slayer.'" Rooney, 313 N.E.2d at 112 (citation omitted).

Consequently, the trial judge's instructions, which used the verb

phrase "would lead" in place of the phrase "might lead," erred in

this one respect.2

B. The Mandatory Presumption.

2By petitioner's own admission, the bulk of the court's
charge on provocation was squarely in line with applicable
principles of Massachusetts law.

4

The Due Process Clause requires the prosecution to

prove every essential element of a crime beyond a reasonable

doubt. Hence, if a court instructs a trial jury in such a way as

to create a mandatory presumption that relieves the government of

its burden, the court runs afoul of the Constitution. See

Sandstrom, 442 U.S. at 524.

In the circumstances of this case, the tripartite test

of Hill v. Maloney, 927 F.2d 646 (1990) governs the merits of

petitioner's Sandstrom claim. Under Hill, a reviewing court must

first determine whether a reasonable juror would have interpreted

the challenged portion of the instruction as creating a mandatory

presumption. Id. at 648-49. If so, the court must then consider

whether other parts of the charge clarified the ill-advised

language with the result that a reasonable factfinder would not

have understood the instruction to create an unconstitutional

presumption. Id. at 649. Finally, if the court determines that

the charge as a whole left the jurors with an impermissible

impression, the court must proceed to evaluate the harmlessness

vel non of the error. Id. at 649, 654.

Using Hill v. Maloney as our yardstick, we take the

measure of petitioner's case.

1. Nature of the Presumption. First and foremost, we
1. Nature of the Presumption.

do not believe that a reasonable juror would have viewed the

disputed instruction as setting up a mandatory presumption.

Petitioner suggests that the substitution of the verb "would" for

"might" was tantamount to the judge telling the jurors that, "if

5

you do not find complete self-defense the only circumstance

under which an ordinary man "would" kill you must find

insufficient provocation and, therefore, malice." And since

there was no evidence of self-defense, the thesis runs, the judge

effectively directed a finding of malice.

Although ingenious, petitioner's thesis is severely

flawed. One principal problem with it is that, while a legal

theorist perhaps might have reasoned in this way, the judge did

not instruct the jury to follow such a course. As we explained

in Hill, "[a] mandatory presumption instructs the jury that it

must infer an `elemental fact' such as intent or malice from

proof of a `basic fact' such as a knowing act." Hill, 927 F.2d

at 648. Where, as in this case, the charge merely permits the

inference to be drawn, the presumption, by definition, is not

mandatory. See, e.g., id. at 649.

Judges should not divorce themselves from the reality

of human experience. Taking a practical, commonsense approach,

we conclude that, in all probability, a typical juror would not

have known the appropriate legal standard for perfect self-

defense, and, therefore, would not even have considered the

possibility that a finding of malice was mandated by the court's

instruction. Hence, the erroneous substitution of "would" for

"might" in a single sentence of the charge did not forge a

mandatory presumption. At most, the ailing instruction, by

itself, would have had the effect of lowering the burden placed

by state law on the prosecution, not eliminating it.

6

2. The Totality of the Charge. Even assuming, for
2. The Totality of the Charge.

argument's sake, that the erroneous substitution of "would" for

"might" in the instructions created an impermissible presumption,

we deem it highly unlikely that a reasonable juror would have

understood the instructions, overall, as directing that malice

was to be presumed.

If the specific language challenged on appeal creates a

mandatory presumption, the court "then must consider whether

other parts of the instruction explained `the particular infirm

language to the extent that a reasonable juror could not have

considered the charge to have created an unconstitutional

presumption.'" Hill, 927 F.2d at 649 (quoting Francis v.

Franklin, 471 U.S. 307, 315 (1985)). Of course, in studying this

question, an inquiring court must bear in mind that "a single

instruction to a jury may not be judged in artificial isolation,

but must be viewed in the context of the overall charge." Cupp

v. Naughten, 414 U.S. 141, 146-47 (1973).

We believe that petitioner focuses too single-mindedly

on the challenged sentence in the abstract. A fair reading of

the judge's instructions, taken in their totality, leads

inexorably to the conclusion that the court explained the matter

with sufficient care that a reasonable juror would not have

understood the charge to have created an unconstitutional

presumption. We explain briefly.

The judge began the relevant segment of the charge by

opening the jurors' minds to an expansive definition of

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provocation. Specifically, he told the jury that, "[t]he law

does not attempt to define in any narrow way the provocation

which may reduce the crime to manslaughter." He went on to

instruct that reasonable provocation "is that kind of provocation

that would inflame a reasonable ordinary and law abiding man to

the point where he would be capable of killing another person."

The judge then stated that, "provocation must be such as would

likely produce in an ordinary man such a state of passion, anger,

fear, fright or nervous excitement as would eclipse his capacity

for reflection or restraint and actually did produce such a state

of mind in the defendant."

Only at this point did the judge interject the

objectionable language.3 Even then, it was promptly followed by

further clarification in the form of a question; the judge asked

the jury to mull whether "the situation [would] be such that [the

ordinary man] would likely be in such a state of passion, anger,

fear, fright or nervous excitement as would eclipse his capacity

for reflection and restraint?" The judge then proceeded to

outline the additional requirements for a finding of voluntary

manslaughter, making it plain that a verdict less than murder was

an option.

Viewed against this backdrop and considering the

3To be sure, the jurors heard this portion of the charge not
once, but twice, for, during deliberations, they asked to be
reinstructed as to the various degrees of homicide, and the judge
reread the pertinent portions of the original charge. We do not
see how this circumstance bears on the question of whether the
interdicted language fosters a mandatory presumption.

8

judge's repeated admonitions that the jury must resolve the

provocation issue, we think it is highly improbable that a

reasonable juror would have understood, from the entire charge,

that the absence of provocation was to be assumed. Thus, even if

the challenged sentence, viewed in isolation, carried the

potential of creating a mandatory presumption and we do not

believe, realistically, that such a potential loomed we

consider it extremely unlikely that a reasonable juror, heeding

all the instructions, would have taken an unconstitutional tack.

3. Harmlessness. Finally, assuming arguendo that the
3. Harmlessness.

instructional error created a legally impermissible presumption,

we would find the error harmless. This court has recently held

that, under applicable Supreme Court precedents, an instructional

error of the type alleged by petitioner is to be considered trial

error, not structural error, for purposes of habeas review. See

Libby v. Duval, F.3d , (1st Cir. 1994) [No. 93-1588,

slip op. at 17-18]; see also Ortiz v. Dubois, F.3d ,

(1st Cir. 1994) [No. 93-1656, slip op. at 17] (dictum).

Trial errors even trial errors of constitutional

dimension are reviewed in habeas corpus proceedings under the

so-called "whole-record" test for harmless error. See Brecht v.

Abrahamson, 113 S. Ct. 1710, 1718-19, 1722 (1993). In such

circumstances, the writ should issue only if the reviewing court

concludes that the instructional error "had a substantial and

injurious effect or influence in determining the jury's verdict."

Id. at 1714 (quoting Kotteakos v. United States, 328 U.S. 750,

9

776 (1946)); see also United States v. Ladd, 885 F.2d 954, 957

(1st Cir. 1989) (explicating Kotteakos "fair assurance"

standard).

We think the Commonwealth's case passes Kotteakos

muster with flying colors. Like the veteran district court

judge, we simply do not believe that a one-word deviation from

the norm spoiled the trial's overall integrity. To the exact

contrary, it seems transpicuous that the judge's charge, taken in

its entirety, fairly presented the law and adequately limned

petitioner's theory of the case. Furthermore, given the strength

of the prosecution's case and the weaknesses inherent in his

provocation defense,4 it is surpassingly difficult to believe

4To give content to our general statements that the evidence
against petitioner was strong and that petitioner's defense of
provocation was weak, we cite one illustrative, if gruesome,
passage from the Supreme Judicial Court opinion:

There was evidence that, although the
defendant was enraged when he attacked his
wife, he nevertheless acted in a calculating,
deliberate, and reflective fashion. For
example, when he entered his wife's
apartment, the defendant made it impossible
for her to summon assistance by ripping the
telephone from the wall. After the defendant
had chased the other man from his wife's
apartment, he had to return and force his way
into the neighbors' apartment in order to get
to his wife. As he stabbed his wife, the
defendant told her "You're gonna fuckin' die,
bitch." When an occupant of the apartment in
which the stabbing occurred attempted to
intercede, the defendant held him at bay (and
again confirmed his intentions) by saying,
"Get outa my fuckin' way or you'll die too."
After stabbing his wife several times, the
defendant left the apartment . . . .
[Thereafter], the defendant decided to return
to stab his wife several more times.

10

that so subtle a shading of the charge had any discernible impact

on the jury's verdict.

We will not paint the lily. The trial judge's slip of

the tongue, though regrettable, was not egregious. For the

reasons indicated, we deem it highly probable that the single

erroneous portion of the instruction had no bearing whatever on

the jurors' consideration of petitioner's defense. It follows

inexorably that the error was benign under the Kotteakos

standard.

C. Fundamental Fairness.

To tie up a loose end, we also consider whether the

instructional error, even though it did not create an

impermissible Sandstrom-type presumption, justifies the granting

of habeas relief. After all, the error, as we have acknowledged,

see supra Part II(B)(1), had the potential of easing the

Commonwealth's burden in proving malice. Viewed from this

perspective, however, petitioner can only prevail on habeas

review if the ailing instruction, in and of itself, so tainted

the proceedings as to divest the whole trial of its fundamental

fairness. See Estelle v. McGuire, 112 S.Ct. 475, 482 (1991);

Cupp, 414 U.S. at 147.

We need not tarry in conducting this inquiry. For

reasons already elucidated, see supra Part II(B)(3), it cannot

Anderson, 563 N.E.2d at 1357. All in all, "defendant stabbed his

wife thirteen times, during which she remained fully conscious .
. . ." Id. On this, and other evidence, the jury made a special

finding of "extreme atrocity" a finding that strikes us as
plainly inconsistent with reducing the charge to manslaughter.

11

fairly be said, on balance, that the instructional error robbed

petitioner's trial of fundamental fairness or compromised his

main defense in any meaningful regard. Hence, petitioner is not

entitled to redress on this theory.

III. CONCLUSION

We need go no further. For aught that appears,

petitioner was fairly tried and justly convicted. Finding no

deprivation of due process, we uphold the district court's

refusal to grant habeas relief.

Affirmed.

Dissent follows

12

STAHL, Circuit Judge, dissenting. I agree with the

majority that the bulk of the trial court's charge was

unreproachable, and that the crime for which petitioner

stands convicted is heinous. Nonetheless, I am of the

opinion that the erroneous instruction on provocation had the

effect of (1) lowering the Commonwealth's burden of proof on

the element of malice; and (2) effectively precluding

petitioner's jury from making a finding of malice. And,

because I believe that both the due process right to have the

prosecution bear the burden of proving 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

the Sixth Amendment right to have a jury make all elemental

determinations, see Sandstrom v. Montana, 442 U.S. 510, 523

(1979) (quoting United States v. United States Gypsum Co.,

438 U.S. 422, 435 (1978)), must always be honored, I

reluctantly and respectfully dissent.

I.

Before explaining the reasons for my dissent, I

wish to make two initial points. First, I would not examine

the challenged instruction in terms of whether it set up a

mandatory presumption (as the majority does); instead, I

would view it simply as an instruction misdescribing an

element of the offense. Although they possess many of the

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same characteristics5 and are analyzed similarly, Carella,

491 U.S. at 270 (Scalia, J., concurring in the judgment),

mandatory presumptions and elemental misdescriptions are not

the same thing. For clarity's sake, I think it important to

emphasize this distinction.

Second, although it does not affect my analysis, I

note that the language cited by the majority as being the

correct statement of Massachusetts law on "adequate

provocation" (i.e., "something `that would be likely to

produce in an ordinary man such a state of passion, anger,

fear, fright or nervous excitement as might lead to an

intentional homicide . . .'") (quoting Rooney, 313 N.E.2d at

112) (emphasis supplied), itself may be problematic. See

infra at 4-5 (explaining that ordinary men are led to commit

intentional homicides only in circumstances which completely

exonerate them). Instead, the more proper statement of

Massachusetts law on adequate provocation is found in the

Walden opinion:

There must be evidence that would warrant
a reasonable doubt that something

5. Like mandatory presumptions, elemental misdescriptions
can often lower the prosecution's burden of proof. This
happens whenever the instructing judge too lightly describes
what the government must prove in order to establish the
element at issue. And obviously, like mandatory
presumptions, elemental misdescriptions tend to invade the
jury's fact-finding role. See Carella v. California, 491

U.S. 263, 270-71 (1989) (Scalia, J., concurring in the
judgment) (citing Pope v. Illinois, 481 U.S. 497 (1987) and

Carpenters v. United States, 330 U.S. 395 (1947)).

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happened which would have been likely to
produce in an ordinary person such a
state of passion, anger, fear fright, or
nervous excitement as would eclipse his

capacity for reflection or restraint and

that what happened actually did produce
such a state of mind in the defendant.

Walden, 405 N.E.2d at 944 (emphasis supplied). Accordingly,

I will make reference to the Walden language in discussing

the law of adequate provocation in this dissent.6

II.

I turn now to my analysis. In my view, the

Commonwealth does not and cannot define "adequate

provocation" as provocation that would cause an "ordinary

man" to go into such "a state of passion, anger, fear,

fright, or nervous excitement as would lead him to an

intentional homicide." (Emphasis supplied). As petitioner

points out in his brief, circumstances that would lead

ordinary people to commit intentional homicides (e.g.,

circumstances giving rise to claims of self-defense)

completely exonerate the killers; circumstances that lead to

6. Of course, in the decision challenged by the instant
petition, the Supreme Judicial Court, without analysis,
stated that both the language from Rooney relied upon by the

majority and the instruction at issue here were consistent
with the Walden standard and therefore not erroneous. See

Anderson, 563 N.E.2d at 1356. While the SJC is the final

authority on what constitutes adequate provocation under
state law, it is not, where due process and Sixth Amendment
concerns are implicated, the final authority on whether the
jury likely misconstrued the applicable principle or whether
two divergent definitions are, in fact, consistent. See

Sandstrom, 442 U.S. at 516-17.

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manslaughter, however, are only viewed as mitigating

felonious conduct. Therefore, the instruction challenged

here clearly and unambiguously was erroneous. More

importantly, its effect was both to lower the Commonwealth's

burden of proof on the element of malice, see Commonwealth v.

Todd, 563 N.E.2d 211, 213-14 (Mass. 1990) (where adequate

provocation is properly at issue, the Commonwealth bears the

burden of proving its absence in order to prove malice),7

and to preclude the jury from making a meaningful malice

finding, see Carella v. California, 491 U.S. 263, 270-71

(1989) (Scalia, J., concurring). This constitutes a federal

due process violation. See Sullivan, 113 S. Ct. at 2080-81

(collecting cases). So too does it constitute a violation of

the Sixth Amendment's jury-trial guarantee. See id. at 2081.

III.

The fact that federal constitutional error was

committed at petitioner's trial does not, of course, mean

that he is automatically entitled to a new trial. Rather, as

the majority notes, settled Supreme Court and circuit

precedent make clear that we next look to whether the

instructions as a whole "explain[ed] the infirm language

7. Under the instruction given here, the Commonwealth only
was required to prove an absence of circumstances that likely
"would lead" an ordinary person to commit an intentional

homicide. This, of course, is much easier than proving an
absence of circumstances that likely "would eclipse" such a
person's "capacity for reflection or restraint." Walden, 405

N.E.2d at 944.

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sufficiently so that there is no reasonable likelihood that

the jury believed it must [apply the instruction in a manner

not in accordance with applicable law]." Hill, 927 F.2d at

651 (relying upon Franklin, 471 U.S. at 315). However,

because a reviewing court must presume that the jury followed

the judge's instructions, see Yates v. Evatt, 111 S. Ct.

1884, 1893 (1991), and "`has no way of knowing which of . . .

two irreconcilable instructions the jurors applied in

reaching their verdict,'" Hill, 917 F.2d at 651 (quoting

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

instructions directly contrary to the erroneous one which

themselves correctly state the law are insufficient to

fulfill this explanatory function, id.

Here, despite the majority's contrary conclusion, I

do not think that the charge as a whole can be considered

sufficiently explanatory. Although there were correct

characterizations of the concept of adequate provocation,

nothing even went so far as to contradict, let alone explain,

the court's incorrect statement that, in order to be

considered a manslayer rather than a murderer, petitioner

must have been confronted with circumstances that would have

led an "ordinary man" to kill intentionally. Moreover, the

circumstances attendant to the giving of the challenged

instruction were much more likely to have imparted to the

jurors the impression that the instruction was a correct

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statement of the law than that it was a mere slip of the

tongue. First, defense counsel, in his closing argument,

took pains to raise the issue by correctly arguing that

adequate provocation does not mean that an ordinary person,

in the same circumstances as petitioner, would have acted as

petitioner acted; instead, adequate provocation only means

that an ordinary person, in the same circumstances as

petitioner, would have had his/her capacity for reflection or

reason eclipsed. Second, it is beyond question that defense

counsel interposed pointed objections at sidebar both times

the ailing instruction was delivered to the jury. In light

of these undisputed facts, I simply do not see how we can say

that the overall charge explained away the error.

IV.

Even where the charge as a whole does not explain

away the erroneous instruction, an instruction misdescribing

an element of an offense can be harmless. In my dissenting

opinions in Libby v. Duval, No. 93-1588, slip op. at 21-33

(1st Cir. March 24, 1994) and Ortiz v. Dubois, No. 93-1656,

slip op. at 24-27 (1st Cir. March 24, 1994), I explain in

detail my view that the whole-record harmless-error review

prescribed by Brecht v. Abrahamson, 113 S. Ct. 1710, 1722

(1993), cannot and should not be utilized by courts reviewing

instructional errors which have the effect of precluding

juries from making requisite factual findings in criminal

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trials. Rather, as I argue in those opinions, habeas courts

reviewing such errors for harmlessness should employ the test

set forth in Justice Scalia's concurring opinion in Carella.

Because the error here -- misdescription of an element of the

offense -- had exactly such an effect, see Carella, 491 U.S.

at 268-71 (Scalia, J., concurring), I would review it

according to the dictates of the Carella concurrence. That

is to say, I would ask (1) whether the erroneous instruction

was relevant only to an element of a crime of which

petitioner was acquitted; (2) whether the erroneous

instruction was relevant only to an element of the offense

which petitioner admitted; or (3) whether no rational jury

could have found what it actually did find and not also find

the misdescribed element. See id. at 271.

Here, none of the three prongs of the Carella test

is satisfied. Certainly, petitioner neither was acquitted of

murder in the first degree nor admitted that he had acted

maliciously. Moreover, the record is devoid of factual

findings which are the "functional equivalent" (i.e., which

are "so closely related to the ultimate fact to be found that

no jury could find those facts without also finding th[e]

ultimate fact," see id.) of the missing finding: an absence

of adequate provocation. The most we can say on this record

is that the jury found that an ordinary person, faced with

the same circumstances as petitioner, would not have been led

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to commit an intentional homicide. To me, it is manifest

that such a finding is not the functional equivalent of a

finding that an ordinary person, faced with the same

circumstances as petitioner, would not have had his/her

capacity for reflection or restraint eclipsed. Accordingly,

the error was not harmless.

I therefore would grant the writ.

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