United States Court of Appeals
For the First Circuit
_________________
No. 01-2585
ROBERTO MEDINA,
Petitioner, Appellant,
v.
JAMES MATESANZ; THOMAS F. REILLY,
Respondents, Appellees.
_______________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
________________________
Before
Torruella and Lipez, Circuit Judges,
and Schwarzer,* Senior District Judge.
________________________
Jeffrey L. Baler on brief for appellant.
Dean A. Mazzone, Assistant Attorney General, with whom Thomas
F. Reilly, Attorney General, was on brief for appellees.
August 7, 2002
*
Of the Northern District of California, sitting by
designation.
SCHWARZER, Senior District Judge. Roberto Medina appeals
the district court’s denial of his petition for writ of habeas
corpus filed pursuant to 28 U.S.C. § 2254(d)(1). He contends that
the state trial court's malice instruction created a mandatory
rebuttable presumption shifting the burden to him in violation of
due process under the Fifth and Fourteenth Amendments.1 We hold
that although the instruction was constitutional error, it was
harmless error because it did not have a "substantial and injurious
effect on the verdict" under Brecht v. Abrahamson, 507 U.S. 619,
637 (1993). We therefore affirm.
PROCEDURAL BACKGROUND
On October 4, 1975, Medina was convicted of murder in the
first degree by a Massachusetts state court. The trial court
denied his motion for a new trial, and the Supreme Judicial Court
(“SJC”) affirmed the conviction on May 5, 1980. Commonwealth v.
Medina, 380 Mass. 565 (1980) (“Medina I”). On July 9, 1996, Medina
again moved the state court for a new trial, claiming that
subsequent decisions of the United States Supreme Court with
respect to burden-shifting presumptions in jury instructions
rendered the trial court’s instruction on malice erroneous and
1
"A mandatory presumption, even though rebuttable, is
different from a permissive presumption, which ‘does not require
. . . the trier of fact to infer the elemental fact from proof by
the prosecutor of the basic one and . . . places no burden of any
kind on the defendant.’” Yates v. Evatt, 500 U.S. 391, 402 n.7
(1991) (quoting Ulster County Court v. Allen, 442 U.S. 140, 157
(1979)).
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prejudicial. The motion was denied. A single justice of the SJC
denied Medina’s motion for leave to appeal on August 15, 1997. On
January 27, 1998, the justice granted Medina’s motion for
reconsideration and referred the appeal to the full bench of the
SJC. On February 17, 2000, the SJC again affirmed the conviction
for murder in the first degree. Commonwealth v. Medina, 430 Mass.
800 (2000) (“Medina II”). It held that the trial judge’s
instruction regarding malice violated Sandstrom v. Montana, 442
U.S. 510 (1979), but was harmless beyond a reasonable doubt under
Chapman v. California, 386 U.S. 18 (1967), and Yates v. Evatt, 500
U.S. 391 (1991). Medina II, 430 Mass. at 812. Medina filed the
instant petition on October 27, 2000. The district court held that
the instruction erroneously shifted the government's burden, but
that the error was harmless under Brecht, because it did not have
a substantial and injurious effect on the jury verdict. Medina
timely appealed.
DISCUSSION
At Medina’s trial for the unlawful killing of Ana Asua
the court instructed the jury, in relevant part, as follows:
[M]alice . . . means every unlawful motive
that may be inferred from unlawful killing,
and when there are no circumstances disclosed
tending to show justification or excuse, there
is nothing to rebut the presumption of malice.
Malice . . . include[s] any intent to inflict
injury upon another without legal excuse or
palliation.
The government concedes that the instruction, containing an
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evidentiary presumption that relieved the prosecution of its burden
to prove each essential element of the crime beyond a reasonable
doubt, was tainted by a Sandstrom error.2 The only issue before
us, therefore, is whether the error was harmless beyond a
reasonable doubt.
Our review of the petition is governed by 28 U.S.C.
§ 2254, as amended by the Antiterrorism and Effective Death Penalty
Act (“AEDPA”). In relevant part, the AEDPA precludes a federal
habeas court from granting relief unless the state court
adjudication either “resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States” or, alternatively, was based upon “an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d). The AEDPA
further provides that “a determination of a factual issue made by
a state court shall be presumed to be correct” unless petitioner is
able to “rebut the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1). Medina does not
2
As the SJC held, “[b]y thus requiring the jury to conclude
that the killing was committed with malice if they found the fact
of a killing coupled with the absence of a legally cognizable
excuse or justification, the instruction relieved the Commonwealth
of its burden to prove beyond a reasonable doubt the killer acted
with malice, and could have precluded the jury from considering any
evidence, if such existed, that might have mitigated malice.”
Medina II, 430 Mass. at 804.
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contend that the SJC’s adjudication was based on an unreasonable
determination of factual issues.
The SJC held that the instruction shifted the burden of
disproving malice to the defendant. It then proceeded, in a
comprehensive and painstaking opinion, to review the evidence
relevant to the predicating fact, viz., the unlawful killing, from
which, under the deficient instruction, the ultimate fact of malice
was to be conclusively presumed. It found the evidence to show
that Medina repeatedly struck the victim with a baseball bat as she
was lying incapacitated on the ground, causing the bat to break
into two pieces. Other evidence showed that the defendant
participated in a further assault on the victim by dragging her
body behind an automobile. Medina did not dispute the killer’s
malice at trial, instead denying that he was the killer and
disputing the causal link between the assault on the victim and her
death. These facts, the court found, “overwhelmingly demonstrate
that the victim’s assailant acted with malice.” Medina II, 430
Mass. at 808. It reasoned that if the evidence that the jury found
sufficient to prove the predicating fact was “so closely bound up
with the ultimate fact presumed (here, malice) that they could not
reasonably have found the former without also finding the latter,
then the presumption was, beyond a reasonable doubt, harmless to
the defendant.” Medina II, 430 Mass. at 806. “In light of the
evidence regarding the nature of the assault on the victim and her
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resulting injuries,” the court further concluded, “the jury’s
finding the predicate fact of unlawful killing was the functional
equivalent of their finding the ultimate fact to be presumed,
malice.” Medina II, 430 Mass. at 808.3
The SJC then applied the two-step harmless error analysis
under Yates. It determined first that reasonable jurors would have
understood the malice instruction to limit their consideration of
the case to the evidence that bore on the circumstances of the
killing and preclude their consideration of any further evidence of
Medina’s malice. It then determined at the second step that
weighing the probative force of that evidence against the
presumption standing alone, the evidence considered by the jury in
accordance with the instruction was so overwhelming as to leave it
beyond a reasonable doubt that the verdict resting on that evidence
would have been the same in the absence of the presumption. Medina
II, 430 Mass. at 802. Although the Supreme Court in Estelle v.
McGuire, 502 U.S. 62, 70 n.4 (1991), disapproved of the standard of
review articulated in Yates (namely, what “a reasonable juror would
have understood the instruction to mean”), the Yates two-step
harmless error analysis for mandatory burden-shifting instructions
3
The evidence does not support Medina's arguments that he was
provoked, involved in sudden combat, defending himself, or
defending Muniz. As the SJC's recitation of the facts makes clear,
the victim was incapacitated on the ground when Medina assaulted
her with the bat or the car. She could not have provoked him; he
was not in the midst of combat; and the victim posed no threat to
him or anyone else from that position.
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remains unimpaired.
A court on direct appeal “confronted by a preserved
constitutional error must set aside the judgment unless it is
satisfied that the error was harmless beyond a reasonable doubt.”
Sanna v. DiPaulo, 265 F.3d 1, 14 (1st Cir. 2001) (citing Chapman,
386 U.S. at 24). We have held, however, that the “less exacting”
harmless error standard under Brecht, 507 U.S. at 619, governs our
review on habeas. Sanna, 265 F.3d at 14. A federal habeas court,
we said, is bound to uphold a state court judgment, notwithstanding
a preserved constitutional error, as long as the error did not have
“a substantial, injurious effect on the jury’s verdict.” Id. at
14. We agree with the SJC’s analysis and conclude that the
evidence the jury would have considered was so overwhelming that
the instruction error could not have had a substantial, injurious
effect on the verdict. Our conclusion is buttressed by the fact
that since Medina did not contest malice, there was no other
evidence to mitigate the compelling force of the evidence of
malice. By analogy, in Bembury v. Butler, 968 F.2d 1399 (1st Cir.
1992), we held a constitutionally defective malice instruction
harmless beyond a reasonable doubt because malice was not contested
at trial. There we observed: "Bembury's only defense was his
alibi, that he did not commit the murder. . . . Bembury's failure
to argue the issue of malice amounted to a concession of that
issue, because, as in Hill, 'intent was never put in issue, and
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indeed, could hardly have been contested.'" Id. at 1402-03
(quoting Hill v. Maloney, 927 F.2d 646, 656 (1st Cir. 1990)); see
also Sanna, 265 F.3d at 15 (finding arguably erroneous intoxication
instruction harmless beyond a reasonable doubt because defendant
premised his trial defense on mistaken identity); Buehl v. Vaughn,
166 F.3d 163, 177 (3d Cir. 1999).
CONCLUSION
Bound as we are by the SJC’s determination of the facts,
we conclude that the burden-shifting malice instruction, though
constitutional error, did not have a substantial, injurious effect
on the verdict.
Affirmed.
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