Petition — Leroy Chasson v. Joseph Ponte

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7 Ocr. 29,1992.

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». 82 5646

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1962

LEROY CHASSON,

Petitioner

Ve

JOSEPH PONTE and PRANCIS BELIOITI,

Respordents

PETITION POR A WRIT OF CERTICRARI TO THE

UNITED STATES COURT OF APPEALS

POR THE FIRST CIRCUIT

Robert L. Sheketoff

ZALKIND, ZALKIND & SHEKETOFF

65a Atlantic Avenue

Boston, MA 02110

(617) 742-6020

Attorney for Petitioner Chasson

QUESTIONS PRESENTED

1. CAN OTHER INSTRUCTIONS TO A JURY EVER CURE AN UNCONSTTIVUTIONAL

INSTRUCTION ON THE ELEMENT OF INTENT?

2. CAN A PROPER INSTRUCTION TO A JURY ON THE ELEMENT OF

PREMEDITATION CURE AN UNCONSTITUTIONAL INSTRUCTION ON THE ELEMENT

OF INTENT?

3. UNDER WHAT CIRCUMSTANCES MAY IT BE ASSUMED THAT A REASONABLE

JUROR COULD NOT HAVE RELIED ON AN UNCONSTITUTIONAL “PRESUMED

INTENT* INSTRUCTION?

PARTIES

Petioner Leroy Chasson is presently sentenced to natural life at

the Massachusetts Correctional Institution at Walpole, Massachusetts.

Respondents are Joseph Ponte, the Superintendant at the

Massachusetts Correctional Institution at Walpole, Massachusetts, and

Francis Bellotti, the Attorney General of Massachusetts.

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TABLE OF CONTENTS

Opinions Below

Jurisdiction

Constitutional and Statutory Provisions Involved

Statement of the Case

Reasone for Granting the Writ

Conclusion

Apperxdix

Opinion of the Court of Appeals

for the First Circuit

Memorandum and Order of the United

States District Court for the

District of Massachusetts

penn of the Supreme Judicial Court

of Massachusetts

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A?

Al3

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TABLE OF AUTHORITIES CITED

Page(s)

Cases

Commonwealth v. Chasson, 423 N.E. 2d 306 (Mass. 1981)......2,

Dietz v. Solem, 640 F.2d 126 (8th Cir. 1961).........000006,

Hariess v. Anderson, 664 F.2d 610 (6th Cir. 1981)..........6

In re Winship, 397 U.S. 358 Coe ec dhecnceceesucccesececs.!

Nelson Vv. Seul Ye 672 F.2d 266 (2nd cir. nae He

Sandstrom v. Montana, 422 U.S. 510 Cee Plavcccceccecsccctoete

United States v. Chiantese, 560 F.2d 1244 (Sth Cir. 1977)..6

United States v. Spiegel, 604 F.2d 961 (5th Cir. EP eheccccbe

United States v. Williams, 665 F.2d 107 (6th Cir. 198@1)....6

Constitutional and Statutory Provisions

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JOSEPH PONTE and FRANCIS BELIOTTI,

Respondents

PETITION POR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

POR THE FIRST CIRCUIT

Leroy Chasson petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the First Circuit

entered in this case on August 3, 1962.

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Qpinions Below

The opinion of the Court of Appeals for the First Circuit

affirming an order of the United States District Court for the

District of Massachusetts dismissing Chasson's petition for a writ of

habeas corpus has not been published. Tt is set out in the Appendix,

infra., pp. Al to Aé.

The opinion of the District Court digmissing the habeas corpus

petition is not published. It is set out in the Appendix, infra.,

pe. A? to Al2.

The opinion of the Supreme Judicial Court of Massachusetts, which

forms the basis for the habeas corpus petition, is reported as

Commormealth v. Chasson, 423 N.E. 24 306 (Mss. 1981). It is set cut

in the Appendix, infra., pp. Al3 to A20.

Jurisdiction

The judgement of the Court of Appeals was entered on August 3,

1962, and this petition has been filed within ninety days of that

date, as required by 28 U.S.C. §210li(c). Jursidiction to review the

judgment of the Court of Appeals is conferred by 28 U.S.C. §1254(1).

Constitutional Provisions Involved

This case involves Section 1 of the Fourteenth Amendment.

Gection 1 of the Fourteenth Amendzent to the United States

Constitut ‘un provides:

“All persons born or naturalized in the United States,

and sub to the jurisdiction thereof, are citizens

Of the United States and of every state wherein

Statement of the Case

Petitioner seeks review of a judgment of the Court of Appeals for

the First Circuit affirming a judgment of the District Court for the

District of Massachusetts, dismissing petitioner's petition for a writ

of habeas corpus under 26 U.S.C. §2254. Petitioner's central claim

arises fran an instruction by the state trial court judge to the jury

at petitioner's trial for first degree murder and assault and tattery

by means of a Geadly weapon. In instructing the jury on the element

of intent, the trial judge stated that a person is presumed to intend

the ordinary and natural consequences of his acts. The judge's

instruction relieved the Commonwealth of the burden of proving beyond

@ reasonable doubt an essential element of each of the crimes, and

shifted the burden of proof on that element to the defendant.

Petitioner's Fourteenth Amendment right to due process of law was

thereby violated. Petitioner claims that the court's proper

instruction on the element of premeditation in first degree murder did

not cure the error in the instruction on intent, and that proper

instructions on other elements of an alleged crime can never cure a

“presumed intent" instruction. The petitioner further claims that a

reasonable juror could have relied on the “presumed intent“

instruction in reaching his verdict of guilty.

State Court Proceedings

On September 8, 1977 a grand jury sitting in Norfolk County,

Massachusetts, returned indictments against Leroy Chasson, charging

him with murder in the first degree of Paul Melody and assault and

battery by means of a dangerous weapon on Robert Hayward. Chasson was

tried before McGuire, J. and a jury on May 15 to June 1, 1978. At

trial, petitioner argued that the killing and injury of the alleged

victims occurred when, in the confusion of a scuffle, petitioner in

gelf-defense waved out with a knife which he had picked up from the

ground.

At the conclusion of the evidence, the trial court judge gave

the following instruction on the element of intent:

So we have the words that must be discussed and

Appendix to this petition, p. A}. No further instructions were given

on the element of intent.

The jury returned guilty verdicts on both indictments, and

petitioner was sentenced to imprisonment for his natural life.

On March 18, 1981, the Supreme Judicial Court affirmed the

convictions. Commorwealth v. Leroy Chasson, 423 N.E. 2d 306. ‘The

Court characterized the trial judge's instruction on intent as

"obscure", and held that because of its obscurity, and because the

trial judge properly charged the jury on the element of deliberate

premeditation, the jury could not have reasonably understood the

instruction either as shifting the burden of proof fram the

Commorwealth or as creating a constitutionally impermissible

presumption. Id. at 312-313.

~Pederal Court Proceedings

Petitioner filed a habeas corpus petition in the United States

District Court for the District of Massachusetts, claiming that his

constitutional right to due process of law was violated by the

“presumed intent" instruction. The petition was digmissed by Mazzone,

D.J. on January 7, 1982, on the grounds that although it is always

error to instruct that a person is presumed to intend the natural and

probable consequences of his acts, the error was cured in this case by

the trial judge's other instructions, particularly the instruction on

Geliberate premeditation. ‘The Court further held that any error in

the instruction on intent was harmless, because petition admitted

intent in arguing a theory of self-defense.!

The First Circuit Court of Appeals affirmed the judgment of the

District Court, holding that the instruction on deliberate

premeditation cured any error in the “presumed intent" instruction.

Reasons for Granting the Writ

The decision of the First Circuit Court of Appeals that an

unconstitutional “presumed intent" instruction can be cured by correct

instructions on other elements of a crime raises an important question

of constitutional law which this Court has yet to decide. In

Sarmistrom v. Montana, 422 U.S. 510 (1979), this Court held that a

“presumed intent" instruction, essentially identical to the

instruction challenged by petitioner, violated the Fourteenth

Amendment requirement that the state prove every element of a crime

beyond a reasonable doult. The opinion in Sandstrom did not, however,

reach the question of whethes « “preowned intent" instruction could

ever be cured by proper instructions to the jury on other elements of

the crime, and the Circuit Courts of Appeal are in conflict on this

point. Petitioner's case syuarely presents the issue for the Court's

consideration.

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1 this latter position is untenable since petitioner at trial

not admit intent to kill, nor did he need to do so in to

eelf~defense under state law. The First Circuit did not rely on this

position.

l. There is a conflict among the Circuits about whether a

“presumed intent" instruction oan be cured by other instructions.

The Circuit Courts of Appeal are divided on the question of

whether an unconstitutional “presumed intent" instruction can be cured

by instructions on the other elements of the alleged criminal offense.

The First Circuit found a cure in petitioner's case in instructions on

the element of deliberate premeditation. The Second Circuit has a

similar practice, finding a cure in other jury instructions when a

presumed intent instruction has been given. Nelson v. Scully, 672

F.2d 266 (2nd Cir. 1962), cert. den., 102 S.Ct. 2301 (1982).

The Eighth Circuit, however, has held that a “presumed intent"

instruction is almost always constitutional error in itself, and that

it is highly unlikely that other instructions could ever mitigate so

serious a mistake. Dietz v. Golem, 640 F.2d 126, 131 (8th Cir. 1981).

The Fifth Circuit has indicated its puzzlement about whether Sandstrom

requires application of the prophylactic rule that when a “presumed

intent" instruction is given, then constitutiom] error will

automtically be found. United States v. Spiegel, 604 F.2d 961, 969,

n.15 (Sth Cir. 1979), cert. den., 446 U.S. 935. Gee also United

States v. Chiantese, 560 F.2d 1244, 1255 (Sth Cir. 1977), cert. den.

44). U.S. 922.

The Sixth Circuit has not directly considered whether Sandstrom

bars looking to other instructions to cure a "presumed intent"

instruction, but its opinions show a clear reluctance to search for a

cure. United States v. Williams, 665 F.2d 107 (6th Cir. 1981);

“arless v. Anderson, 664 F.24 610 (6th Cir. 1981).

2. A fundamentally important question of constitutional law has

been left unresolved due to uncertainty about the effect of a

“presumed intent" instruction.

Important constitutional rights are endangered when a jury is

given confusing and inconsistent instructions on the elements of a

criminal offense. It is a well-established proposition that due

process requires that each element of a criminal offense be proven by

the state beyond a reasonable douwkt. In re Winship, 397 U.S. 358

(1970). When a jury is given a “presumed intent" instruction as part

of a larger package of instructions, there is no guarantee that a jury

will not rely upon that instruction either to conclusively presume

that the defendant possessed the requisite criminal intent or to shift

the burden of proof on the element of intent to the defendant. This

Court recognized that danger in Sandstran when it held that other

instructions about the state's burden of proving beyond a reasonable

Goubt that the defendant caused the death purposely or knowingly could

not compensate for the damage done by a “presumed intent" instruction.

The case at bar illustrates very clearly the likelihood of

prejudice to a defendant's rights when courts look to other

instructions to cure a “presumed intent" instruction. The First

Cirenit found a cure in the trial judge's instruction on deliberate

premeditation.

{O]ur Courts have said that deliberate

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Under this instruction, a jury finding of deliberate

premeditation is consistent with the jury presuming intent and, having

thereby found intent, going to find that formation of intent must have

occurred prior to the act. Once the erroneous instruction has been

given and the judge has not directly instructed the jury to ignore

that instruction, there is no reason to believe that a jury will not

rely upon it in a constitutionally abjectionable wey.

In determining whether constitutional error has been comnitted,

the Circuit Courts now employ the test of whether a reasonable juror

would have relied on the “presumed intent" instruction. Dietz v._

Solem, supra. at 131; Nelson v. Scully, supra. at 271. This

superficially uniform rule masks an actual wide range of practices by

the Circuit Courts in deciding whether an abjectionable instruction

has been cured. Dietz v. Solem, supra.; Nelson v. Scully, supra.

Without guidance from this Court, the law on a critical point of

constitutional doctrine will continue to vary by Circuit. At least

one Circuit has called on this Court to clarify its position on

whether a “presumed intent" instruction can ever be cured by other

instructions. United States v. Spiegel, supra. at 969, n.15. ‘The

unanimous opinion in Sandstrom reflects the seriousness of the

violation of constitutional rights which occurs when a jury is given a

“presumed intent" instruction. The holding in Sandstrom is completely

undercut if a too quick and too easy cure is found for the clear

violation of due process which this Court found in the “presumed

intent" instruction.

Conclusion

For the foregoing reasons, and in order to secure petitioner's

rights to due process of law, the writ should be granted.

Dated: 10 [2a/¢z

Respectfully submitted,

beted fut

Robert L. Sheketoff

ZALZIND, ZALKIND & SHEKETOFF

65a Atlantic Avenue

Boston, MA 02110

(617) 742-6020

Attorney for Petitioner Chasson