USCA1 Opinion
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
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
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.
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.
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
7
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.
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
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.
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.
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
-13-
13
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)).
__________ _____________
-14-
14
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.
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.
_________
-15-
15
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.
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.
-16-
16
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
-17-
17
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.
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
-18-
18
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
-19-
19
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.
-20-
20