# Opposition Brief — Bolden v. Merlo > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2387%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1987 - **Citation:** 480 U.S. 909 ## Text TI FOLILOIWI NE riit riMi COPY ! AG} WERI LIMING. BE OBTAINED, PO If Rm H AND e - ARD (¢ WHEN NEW } | ORIGINAL CASE NO. 86-832 SUPREME COURT OF THE UNITED STATE OCTOBER, TERM 1986 linieeeitinas tioner ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT RESPONDENT'S BRIEF IN OPPOSITION AND APPENDIX By: FRANK LAWRENCE Attorney for Resp mm 1600 N. Woodward Av: Suite 224 Birmingham. M L irml ar 313 4474 > TABLE OF CONTENTS Page TABLE OF AUTHORITIES ii COUNTER-SiATEMENT OF THE CASE l SUMMARY OF REASONS WHY THE PETITION SHOULD BE DENIE: REASONS WHY THE PETITION SHOUD BE DENIED 11 CONCLUSION , - Appendices follow - r 4 an “2 TABLE OF AUTHORITIES Bass, Ratcliff & Grettor y State Tax mmission, 26¢ US 271, 45 5 Ct 82 Berkemer v McCarty , 468 US 420, 104 § Ct 3136, Se Ed 2d 31/ (1984) 14 Brown v Marshal, 704 F2d 333 mA 6, 1983 LZ Burton v Bergman, 649 F2d 428 (CA 6, 1981 i7 Calmar Steamship Corporation United State f Amer 345 US 466, /3 5S Ct /33, 97 L Ea 114 195 L Conway v Anderson, 698 F2d S0k = A 6, 198: 7 Davis v Currie, 266 US 182 45° § Cte 6s Deitz v Solem, 640 F2d 126, “A 6, - £961 : Desist v United States, 394 S’-246,.69.5: Ct. i Rages ot Aa Ed 2d 248 (1969 17 Edward Hines Yellow Pines Trustees Martin, 266 458 —_—_—_— = = = . — me 45S Ct 543, 69 L Ed 1 192 4, x ie) pe | x @ nn 7) 2) 3 ;o £ t j t j eo) ©) nn 3 @ ‘ e oe x @ 1 at *) % ~ 3 7Q Ww ~~ t J t t J r j x ‘ S m i. " Ivan V. v City of New York, 4 2 l 2 , . ieet ‘ - be £ Krzeminski v Ferini, 0i% Kea le Lee v _ 439 US 461, 99 S t ; IA Q 2d Lyons v United States, le 2d ; ~ Pt on | } c y by yy &R ~ 5 5 McClellan v Carland, d 46 1 QR ¢ . Cases Sandstrom v Montana, 422 US 510, 99 S Ct 2450, 61 L Ed 2d 39 (1979) Schneider v Electric Auto-Lite Company, 456 F2d 366 (CA 6, 1972) Sigman Fuel Company v Tennessee Valley Authority, 754 Fod 162 (CA 6, 1985) United States v Oritz, 422 US 891, 95 S Ct 2585, 45 L Ed 2d 623 (1975) United States v Reeves, 594 F2d 536 (CA 6) United States v United States Gypsum Co., 438 US 422, 98 S Ct 2864, 57 L Ed 2d 854 (1978) United States Fidelity & G. Co. V Wooldridge, 268 US 234, 45 S Ct 489 72) + ev © © ~“ @ ae m [oF Vaughn v Atkinson, 369 US S245 Oa 2d 88 (1962) Williams v Engle, 683 F2d 152 (CA 6, 1982) Williams v United States, 401 US 646, 91 S Ct 1148, 28 L Ed 388 (1971) Williams v United Distributive Wo (Silvercup Bakeries), 529 Fed Wainwright v Sykes, 433 US 72 (1974 » Chapman v California, 386 US 18, 87 S Ct 824, 2d 705 (1967) “uU & 14-19 ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT RESPONDENT'S BRIEF IN OPPOSITION COUNTER-STATEMENT OF THE CASE If unsuccessful at reconciliation Mr. Merlo was going to kill himself then and there. (Tr. 458, 464). Mr. Merlo had walked through the beauty shop and into the back furnace room in a normal manner (Preliminary examination-54) (Tr. 243). After- wards his wife walked out of the furnace room to the work area and John Merlo then came out and shot his wife. (Tr. 115). There is some testimony that John Merlo's stride as he walked out of the furnace room was normal. (Tr. 115). Other testimony indicates that he walked out in a quick manner before the shoot- ing (Preliminary examination-47). There was only a chree foot distance so he couldn't actually run (Preliminary examination-47). John followed Sharon out of the furnace room as she left. (Tr. 262). Mrs. Merlo was shot almost immediately as she returned to her work area. (Tr. 264). Shots were fired so fast that witnesses only heard three of the four shots. (Preliminary examination-12, 28, 39, 57) (Tr. 115, 168, 246). Witnesses could have been 15 to 30 feet from the furnace area where the Merlo's were located. (Tr. 136, 174). One witness testified that if there was talking above normal conversation she wouldn't have heard it anyway and there is nothing wrong with her hearing. (Tr. 137-138). Two of the witnesses were only partially paying attention to the furnace room where the Merlo's were having their discussion. (Tr. 176). Defense counsel's opening statement implied that he did not have enough time to prepare defendant's case because he was appointed less than four weeks prior due to “certain problems" with other attorneys appointed to represent Mr. Merlo. (Tr. 378- 379). Defense counsel later admitted to the jury that he had not initially developed a theory or a defense in the case. (Tr. 380). Mr. Merlo carried a gun on and off since he was honorably discharged frum the army. (Tr. 382, 390, 420, 446-447). His home town was in Ohio where it was legal to have a gun without a permit. (Tr. 390, 455-456). When he left Ohio for Michigan to talk with his wife at the beauty shop he took the gun with hin. (Tr. 390, 455). The conversation in the furnace room was basically a plea by John, in a calm voice, that his wife return to him. (Tr. 391). Mrs. Merlo was well aware of John's threat to shoot himself at the beauty shop and other persons were made aware by Mrs. Merlo herself. (Tr. 361-369). Nevertheless, Shar (e) John to get out of her life, called him names, spit in his face, and shoved and slapped him. John lost control of himself, followed her out, and killed her rather than himself. (Tr... 391, S61, 463 There is some evidence that John slapped his wife at one - J time (Tr. 414), but only in response to her initial beating of him. (Tr. 444, 445, 509). He had never hit her before. (Tr. 445 A summary of some of t follows: Rose Marie Schmidt, a beauty shop customer, testified she saw John Merlo arrive. (Tr. 111). John and Sharon went into the furnace room. (Tr. 113). Rose Marie was sitting on a sofa facing the entrance door to the shop. (Tr. 128). She did not hear any- thing from the back room. If there was any talking above normal conversation she would not have heard it. (Tr. 137-138). Contrarv to Petitioner's statement of facts, she could have been 15 to 18 @ feet from where John and Sharon were standin g. Although she testified that John's stride as he followed Sharon out of the back room was normal (Tr. 115), this is with another customer's testimony, Lois Witaker, that John walked out in a "fast" manner (Preliminary examination-47). There was only a short distance between the doors of the back room to where John followed Sharon out, approximately three feet, so John could not actually have distance to run. Lois Witaker's testimony at preliminary examination, p. 47. n Diane Brennan, another beauty shop custome out of the back room, light a cigarette, and go back in. TPs £8 She described the appearance of the face of Sharon when she came out of the back room just prior to the shooting as flushed, there was still something unsaid between John and Sharon. (Tr.184 Andrea Pojarski was a hairstylist in the beauty shop. (Tr. 188). Andrea heard shots and ran into the back room. (Tr. 192). Contrary to Petitioner's statement of facts that Andrea did not see John come out right after Sharon, she merely testified that she did not see John come out at all. (Tr. 192). Martha Stanfield, owner of the beauty shop, was present but did not see the shooting. (Tr. 224). She heard Sharon use the word “car” when speaking to John in the back room. (Tr. 223). Although she testified that she did not see any spit on John Merlo's face nor any slap marks, Petitioner fails to mention that she testified if there were any marks on his face she probably would not have observed them anyway. (Tr. 239). Sharon called Martha at work and warned her to keep the door locked because John had threatened to go to the shop and "blow his brains out". (Tr. 363, 367-368). Martha had knowledge that the police detectives were supposedly watching the beauty shop a couple of weeks prior to the incident because John threatened to blow his brains out. (Tr. 365-367). Lois Witaker, a customer, testified that there was not much time from when Sharon exited the back room and when she was shot. It was 10 seconds. (Tr. 245, 268). She testified that John followed Sharon out of the back room right behind her within a couple of feet. (Tr. 262). Sharon was shot right after she barely turned around in back of a beauty shop chair. (Tr. 258). Diane Wilshire, Sharon's sister, saw John while she was in the hospital having her first baby. (Tr. 412). Diane testified that the victim's mother had been told that John might go to the beauty shop and kill himself. (Tr. 416). Robert Payton, Sharon's boyfriend, began dating Sharon in late October, 1966. (Tr. 399). He talked to Sharon at a restaurant Sent wachta after the baby was born. (Tr. 399). A week later Sharon started her action for divorce. (Tr. 408). Sharon's parents knew she was dating Payton. (Tr. 401). Sharon and Payton were thinking of marriage. (Tr. 402). Sharon herself told Payton that John might go to the beauty shop and kill himself thre weeks prior to the shooting. (Tr. 404). John Merlo testified that he and Sharon lived in an apartment in Wayne, Michigan after the marriage. They were happily married. (Tr. 422-423). They moved to Sharon's parents house later. (Tr. 422). John was thrown out of their house three times. BM. &234 428, 430, 434-435). Sharon asked John for a divorce but would } } ~ . ~ 7 L + y | = ow ‘ to the bdDeauty snop to reconciie tne marriage r Kill Nnimseltr, » _ ce ] 9 Joan A 7 Ts Sharon stated she was upset because hn damaged her ar. Tr 4 She said she would never t e him back, spit in his ‘face, s ve him into the wall of the back roon f the beaut 3 | an t John to “get the hell out of here punk. set out of my lif Ir. 464). The victim's mother, Lillian Kamen, wh was not I é as a witness, was present luring Resp nadent s testimony. if. 41% > 4 ZY e During opening statement of Defense, after the People ha rested, the courtroom was cleared of Lillian Kamen, wh ; 3 some courtroom disruption, and other family members. [r. After a five minute recess the Court allowed Mrs. Kamen ar t family members to stay in the courtroom but were cautioned bv ti @ u o 3 y 3 + L - r while Respondent was giving his t Lillian Kamen, Sharon's mother, who was an unindorsed and unexpected witness, testified as a rebuttal witness to Merlos previous testimony. She testified that John wrote a number of letters concerning the care of the baby. is 559 She testi- fied that John had told her he would go to the beauty shop and er mee ree ‘ . ae kill himself. (kes 2OLI« However, she also testified that John had stated, I warned her ahead of time. I left a bullet in th front seat. [r. 953). Merlo's previous testimony, elicited b the prosecutor when he was cross examining Merio, was a denial of On December 20, 1967, Mr. Merlo was convicted of first degree premeditated murder in the Circuit Court for the County of Oakland and sentenced to a non-parolable life imprisonment, although MNerlo's defense emphasized lack of premeditation. (Tr. 381). Mr. Merlo filed a Claim of Appeal in 1970 and the Michigan Court of Appeals confirmed his conviction in People v Merlo, 23, Mich App 694, 703 (1970). In his appeal, his court appointed attorney attempted to have the case reversed on several arguments. One of the arguments were that the use of Lillian Kamen's rebuttal testimony as evidence was an abuse of the trial Court's discretion. He failed to argue that rebuttal testimony directed at a prosecution elicited denial is reversible error. Mr. Merlo's Delayed Application For Leave To Appeal, filed in 1975, was denied by the Michigan Supreme Court. In neither the 1970 appeal, nor the 1975 appeal was the jury instruction of the Court challenged for shifting the burden of proof. Some of the other issues appealed were admissability of evidence as a result of a questionable confession and the prosecutor's failure to state facts to be relied on in proving premeditation. In 1977, defendant filed a writ of habeas corpus in the U.S. District Court for the Eastern District of Michigan but did not challenge the Court's instructions as impermissably shifting the burden of proof. He was unsuccessful. On November 4, 1982, defendant Merlo's Delayed Motion For New Trial, in which he raised the same issue of Sandstrom error reviewed in this Court, was denied. On June 13, 1983, the Court of Appeals denied leave in this case based upon the same Sancstrom issues. On December 29, 14983, the Michigan Supreme Court denied leave based upon these same issues. On January 28, 1985 the District Court granted defendant's conditional writ of habeas corpus requiring the State to commence trial within 90 days, or release Mr. Merlo unconditionally. Although Mz. Merlo raised ineffective assistance of counsel as grounds for habeas corpus, the Court did not reach that issue be- cause it found a Sandstrom error sufficient to grant the writ. Petitioner's appendix D. On April 5, 1985, Mr. Merlo was appointed counsel by the court of appeals. On August 26, 1985 oral arguments on the merits of three primary issues were heard before a panel of the court of appeals. The issues were: (1) Was there procedural default by Respondent for failure to object at trial to the improper jury instruction under Wainwright v Svkes, 433 US 72 (1974); 2) Was there a Sandstrom error and (3) Was the Sar trom error harmless beyond a reasonable doubt? Case On or about September, 1985 t rt f appeals issued an opinion which remanded the procedural default issue to the district court. The Court held that "the state extensively briefed and defended on the basis of the Wainwright doctrine. Without men- tioning or discussing this defense, the District Court issued the writ." Petitioner's appendix C. On December 27, 1985 the district court held in favor of Respondent that there was in fact no procedural default. Again, the district court ordered a new trial to begin within 90 days and if the state did not do so, Respondent was to be unconditionall\ released at that time. The new trial deadline was to expire March 27, 1986. Petitioner's appendix B. On January 23, 1986 a Notice of Appeal to the court of appeals was again filed. On September 18, 1986 the court of appeals issued a decision affirming the district courc. Petitioner's appendix A. John Merlo has been continuously incarcerated for the past 20 years. +/- SUMMARY OF REASONS WHY THE PETITION SHOULD BE DENIED I RETROACTIVITY The retroactivity of Sandstrom v Montana, 442 US 510 (1979), was not raised as an issue in either of two hearings before the district court. It was raised for the first time in the second of two hearings before the court of appeals. This issue was implicitly stricken by the court of appeals, although that court referred to the issue in dictum in a footnote of its opinion when refusing to consider the issue. Retroactivity was not considered by the courts below. Therefore, this Court should not consider the issue. II RETROACTIVITY Petitioner alleges a conflict between the Michigan Supreme Court case of People v Woods, 416 Mich 581; 331 NW 2d 707 (1982), finding limited Sandstrom retroactivity, and the court of appeals, finding full Sandstrom retroactivity. There is uniformity among the federal circuits finding full retroactivity. Woods involved a Sandstrom jury instruction that contained obvious permissive inferences, contrary to the instruction used in Sandstrom and mest definitely contrary to the instruction in the case at bar. Woods found that the permissive inference of its jury instruction and the instruction used in Sandstrom distinguished Sandstrom from the cases that it relied on in which this Court found full retroactivity, e.g., Mullaney v Wilbur, 421 US 684, 95 S Ct 1881, 44 L Ed 2d 508 (1975). The instant instruction conveys substantially the same message as in Mullaney. Through analogy to Mullaney, the federal courts of appeals have held that Sandstrom type instructions substantially -impair the truth-finding function and raise serious questions about the accuracy of guilty verdicts in past trials. The Michigan Supreme Court disagreed. Due to this Courts holding in Williams v United States, 401 US 646, 653, 91 S Ct 1148, 28 L Ed 2d 388 (1971), full retroactivity is therefore conclusive and the federal courts will go no further in their retroactivity analysis. Woods does go further and finds that the effect full retroactivity would have on Michigan's system of justice is unacceptable. This Court in Hankerson v North Carolina, 432 US 233, 97 S Ct 2339, 53 L Ed 2d 306 (1977) held that it is unlikely that defense lawyers made objections to the jury instructions at trial and the States may be able to insulate themselves to past convic-_ tions by asserting their own procedural default rule. Petitioner neglected to properly assert procedural default in the instant case. Since the States can effectively limit Sandstrom's retro- active effect through procedural default, the issue of full retro- activity is moot and certainly does not warrant review. Petitioners argument, that the court of appeals did not perform a thorough inquiry, is erroneous. The court exerted substantial effort to consider the record in its entirety. Petitioners statement of the facts is not an accurate reflection of the tran- script. The court applied the proper standard of review in analyzing harmless Sandstrom error, the standard recently enunciated by this Court in Rose v Clark, 476 US » 106 S Ct 3103, 92 L Ed 2d 460 (1986). The court considered the record in its entirety, tne a REASONS WHY THE PETITION SHOULD BE DENIED THE RETROACTIVITY OF SANDSTROM V MONTANA, 442 US 510 (1979), IS A NEW ISSUE BEING IMPROPERLY RAISED ON APPEAL The history on how this retroactivity issue arose in this cause is as follows: 1. On January 28, 1985, district court Judge Stewart Newblatt issued a conditional writ of habeas corpus due t a2 «bur shifting Sandstrom jury instruction. Petitioner's appendix D. 2. Petitioner's arguments before the district court were: 1.) There was a Wainwright v Sykes procedural default by Respondent 2.) The jury instruction error was not a Sandstrom error 3.) Even if the jury instruction at issue was unconstitutional, it was harmless beyond a reasonable doubt. Retroactivity was not briefed or argued. Appendix A. 3. Petitioner appealed the decision of the district court. Notice of Appeal was filed with the court of appeals on February BS, 1985. 4. On appeal before the court of appeals, case number 85-114 Petitioner raised the same three primary issues raised in the district court below. Oral arguments were heard on August 26, 198 Retroactivity was not briefed nor argued. Appendix B. >." On or about September, 1985 the court of appeals remanded the Wainwright v Sykes procedural default issue to the district court below. Merlo v Bolden, 774 F2d 1163 (CA 6, 1985), unpublished Opinion. Petitioner's appendix C. 6. On remand, the only issue brief and argued was Wainwright v Sykes procedural default. However, Petitioner filed no additional brief. 7. On December 27, 1986 the district court held in favor of Respondent that there was in fact no Wainwright v Sykes procedural default. Petitioner's appendix B. 8. On January 23, 1986 the Petitioner filed another Notice of Appeal with the court of appeals regarding the Gietrict court: s remand decision on Wainwright v Sykes procedural default. Petition- er also appealed the harmless error issue again, presumably because the court of appeals did not explicitly address that issue in its prior opinion remanding the cause. At this point Petitioner also raised the issue whether Sandstrom should be applied retroactively in Respondent's case for the first time. 9, The retroactivity issue was not presented to the district court in the past, in either appearance before that Court. 10. The court of appeals should not pass upon retroactivity since it was not raised in the district court or the court of appeals in the past and Petitioner was precluded from ever raising the issue again. Bannert v American Can Company, 525 F2d 104, 111 (CA 6, 1975) citing Hormel v Helvering, 312 US 522, 556, 61 S Ct 719, 85 L Ed 1037 (1941) and Schneider. v Electric Auto-Lite Company, 456 F2d 366, 375 (CA 6, 1972) Sigman Fuel Company v Valley Authority, 754 F2d 162, 164-165 (CA 6, 1985); See also Williams v United Distributive Workers Council 30 AFL-CIO (Silvercup Bakeries), 529 F2d 509 CA 6, 1976); Lyons v United States, 123 F2d 507 (CA 6, 1941); United States v Oritz, 422 U ” 891, 898, 95 S Ct 2585, 45 L Ed 2d 623 (1975). Specifically as it applies to habeas corpus proceedings, see Brown v Marshall, 704 F2d 333 (CA 6, 1983). 11. On May 5, 1986 Respondent filed a motion to strike the retroactivity issue with the court of appeals. Appendix C. Petitioner presumably had no defense to the motion and did not file a response. 12. The court of appeals did not issue an order answering Respondent's motion to strike the retroactivity issue. This writers telephone inquiry with a case supervisor of the court of appeals on June 27, 1986 indicated that a decision had not been made by the panel assigned to the case whether the motion was granted or denied. that Res granted ¢ ae | urt iT - » n r ‘ i ot an | em } * r ~ = é ~ ~ ~~ 0 ~~ - jo s derkemer 5 4e5 4. 4 - 2 SE alo Bate 7 7o% This r Ss w r ssu is r - rais r 2 ~ n writ will e dismis M ammerrer r 2 ? .Ce°297,-8 E 27 - > 2aimar ams D r r v United § + Am q 4 46 = - ~ 4 1 LF 3 ACK y 52 L Ed 2 QR ? II THE CONFLICT BETWEEN THE HOLDINGS OF THE FEDERAL COURTS OF APPEALS, FINDING SANDSTROM TO BE FULLY RETROACTIVE, AND THE MICHIGAN SUPREME COURT, FINDING SANDSTROM TO BE OF LIMITED RETROACTIVITY, LACKS MERIT FOR REVIEW AND MAY NEVERTHELESS BE CONSIDERED A MOOT ISSUE. Petitioner relies on the Michigan Supreme Court case of 39 (1979), is to be given limited retroactive effect, i.e., only applied to cases raising the Sandstrom error and pendirg on direct appeal at the time Sandstrom was decided, to support a conflict between a state court of last resort and a federal court of appeals for purposes of review on certiorari. Petitioner alleges no conflict among the federal courts of appeals. In fact, Petitioner's latest brief before the court of appeals wi ‘. its w ; ses teas, TEBE TSouchste'y werdes A C . I Str ¢ 1S t t rs ; ‘ dard if » oe ae Y r _ . : a : > ————— : : Pp a? GP Sandstrom w ; : ee oe oh he Mac: presumptions W o sckr W + > + = . Sar tro! relied on are full 3 retroacti : W , Woods held that the possibilit f ermissive infer ti Sandstrom from the cases that it relied on ar that for t reason Sandstrom should not be given full retroactive eff Respondent contends that ar permissive inference that c be obtained from the jury instruction in the instant case is negligible or non-existent, contrary to the instruction quote @ above from Woods. See for exampl] 0 - @ ~ 0%) 7O @ ~— 4 Oo —s a?) @ o ~ cr i oO ps 4) a | #7) ao ~ fe) = @ 7) J where he underlines portions f the instruction. The "unl c nt £ t J G ower a neo @ @o _ & £ c faa Nm woo ~ oO Or is ani) x 4 FIC <> legless to a States v United § 85 SETTE V UN 4 m 5 ) : UN aud, 96 & E¢@ 208 (issz). Note that ecided well before Respondent's case. languaye emphasized there instructs the jury that the only way the presumption does not apply is if the evidence indicates the contrary. There is nothing permissive about it if the evidence does not prove that Respondent did not intend, contemplate and design the killing. And of course, who is to pring forth the evidence but the Respondent himself. The distinction that Woods finds for differentiating between Sandstrom and the cases that Sandstrom relies on which are applied retroactively (e.g., Mullany, supra), is tenuous at best and when applied to the instant case, should be totally inapplicable. In Mullaney the jury was instructed that "if the prosecution established that the homocide was both intentional and unlawful, malice aforethought was to be conclusively implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation.” A Mullaney error is given full retroactive effect by this Court. Hankerson, infra. Sandstrom relied heavily on Mullaney. Furthermore, Mullaney addressed the reasonable doubt standard imposed by the Fourteenth Amendment, the same as Sandstrom. And, practically speaking, the jury instruction in the instant case conveys tne Same message to the jury as in Mullaney. In Dietz v Solem, 640 F2d 126, 130 (CA 8, 1981) the Court of Appeals for the Eighth Circuit stated: While it is true that not all decisions have retroactive force, the Supreme Court in Hankerson v North Carolina, 432 U.S. 233, 97 S. Ct. 2339, 53 L Ed 2d 306 (1977) held that the decision in Mullaney v Wilbur, 421 US 684 95 S Ct 1881, 44 L Ed rm 508 (1975), was to be given retroactive application. In light of the fact that the Sandstrom decision heavily relied on Mullaney and addressed a due process claim almost identical to Mullane P ea eats that Sandstrom must be applied retroactively. As was stated in Hankerson: "'"Where the major purpose of new consti- tutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilt verdicts in past trials, the new rule [is] given complete retroactive effect.'" Hankerson Vv North Carolina, supra, 432 U.S. at -16= 243, 97 S.Ct at 2345; citing Ivan Vv v City ot New York, 407 U.S. 203, 204 (1972) The Woods decision acknowledged that the first of the three criteria of the Linkletter-Stovall approach in analyzing retro- activity is the most important. ‘Woods, supra, 416 Mich at 618, citing Desist v United States, 394 US 244, 89 S Ct 1030, 22 L Ed 2d 248 (1969), also quoting Williams v United States, 401 US 646, 91 S Ct 1148, 28 L Ed 2d 388 (1971). Specifically, this criterion is “the purpose to be served by the new standards.” It is at this important point of analysis that the Michigan Supreme Court and the court of appeals position are in total disagreement. The 5 court of appeals stated in Burton v Bergman, 649 F2d 428, 431, n.3 (CA 6, 1981), vacated and remanded on other grounds, 456 US 953, 102 S Ct 2026, 72° L Bd 2d 478 ¢€1982) as follows: We hold that the rule in Sandstrom must be applied retroactively. We are not certain that Sandstrom énnounces a new constitutional principle; it seems to be simply an application of the principle estab- lished by Winship. See Lee v Missouri, 439 U.S. 461, 462, 99 S Ct 710, 711, 58 L Ed 2d 736 (1979). How- ever, even if Sandstrom articulates a new rule, the major purpose of the rule is to overcome an aspect of the trial that substantially impairs its truth finding function and raises serious questions about the accuracy of guilty verdicts in past trials. For that reason the rule must be applied retro- actively. Hankerson v North Carolina, 432 U.S. 233, 97 S Ct 2339, 33 L BG 2d 300 CISTI) 10s “Retroactive application ef Sandstrom has been recognized in this Circuit since the instructional error would normally affect a defendant's right to a fair trial and impact upon the ultimate issue of innocence or guilt.” Conway v Anderson, 698 F2d 282, 284 (CA 6, 1983), citing Williams v Engle, 683 F2d 152 (CA 6, 1982); Krzeminski v Perini, 614 F2d 121 (CA 6), cert denied, 449 U.S. 866, 101 S Ct 199, 66 L Ed 2d 84 (1980), Burton v Bergman, 649 F2d 428 (CA 6, 1981), vacated and remanded on other grounds, 456 U.S. 953, 102 S Ct 2026, 72 L Ed 2d 478 (2982). Woods is in disagreement in that it holds that the truth- finding function is not substantially impaired to create a clear danger of convicting the innocent. 416 Mich at 620. This Court in Williams v United States, 401 US 646, 653, 91 ’ a} Fs S Ct 1148, 28 L Ed 2d 388 (1971), held as follows: Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances. Since the major purpose of Sandstrom is to overcome an as- pect of the trial that substantially impairs its truth finding function and raises serious questions about the accuracy of guilty verdicts in past trials, Williams, supra, precludes further analysis to consider the other two criteria, i.e., reliance on old standards and the effect on the administration of justice. But Woods did go further and found that the effect full retroactivity would have on Michigan's system of justice is unacceptable. 416 Mich at 621. Therefore, Woods concluded that Sandstrom only be given limited retroactive effect. However, because serious questions are raised about the accuracy of guilty verdicts in past trials when there is a Sandstrom error, this Court should not continue to analyze the effect on Michigan's administration of justice. Nevertheless, as will be seen, a burden could be avoided in these cases. "Nor have such burden-shifting instructions been countenanced antecedent to Sandstrom." Conway, supra, citing United States v Reeves, 594 F2d 536 (CA 6), cert denied, 442 US 946, 99 S Ct 2893, 61 L Ed 2d 317 (1979). And as Woods itself acknowledged, one of the four major cases that Sandstrom relied on was the 1952 case of Morissette v United States, 342 US 246, 72 S Ct 240, 96 L Ed 288 (1952). Woods, 416 Mich at 617. The fact that the trial occurred 20 years ago does not mean that the Sandstrom principal should not be applied to the instant case. Respondent makes an issue of the assertion that “retroactive application of Sandstrom puts a heavy burden upon the People of the State of Michigan to retry a murder case after a lapse of -18- nearly twenty years." Petitioner's petition, page ll. In fact the Michigan Supreme Court seemed to place much weight on this issue in arriving at its decision in Woods. However, in supra, which ruled on Mullaney, supra, one of the four major cases that Sandstrom relied on, this Court stated at 432 US 244, n.8 Moreover, we are not pursuaded that the impa on the administration of justice in those States that utilize the sort of burden-shifting presumptions involved in this case will be as devastating as respond- ent asserts. If the validity of such burden-shiftir presumptions were as well settled in the States that Q a > 4 L Ae Woe . have them as respondent assert: that prior to Mullaney many de appropriate objections to jury instructions incorporatir those presumptions. Petitioner made none here The North Carolina Supreme Court passed on the validit the instructions anyway. The States, if they wish, m be able to insulate past convictions by enforcing th normal and valid rule that failure to object to a jur instruction is a waiver of any claim of error See, e.g., Fed. Rule Crim. Proc. 30 Also, in this respect the instant case is the same as Mullane Here the Court below found that the Petitioner waived the right t assert Respondent's failure to object to the jury instructior because Petitioner did not expressly raise the procedural default issue in his responsive brief before the Michigan Court of or the Michigan Supreme Court and, therefore, the state irts implicitly passed on the merits of Respondents claims. 3 2 at 255; Petitioner's appendix pages A-7 and A-8. Petitioner does not dispute this portion of the lower Courts holding. T: Michigan Courts can begin to impose their own rv rules for Sandstrom errors and the Respondent can be more care? @ in raising such defaults upon appeal to avoic Q. & zx @ ® y i¢ 1 f that Respondent complains of. In fact, all states can effect limit Sandstrom's retroactive effect by merely enfor own procedural default rules. Therefore, Sandstrom's retroactivity. is essentially a moot issue not warranting a review on writ of certiorari pursuant to Rule 17 -|9- IIl THE COURT OF APPEALS APPLIED THE PROPER STANDARD OF REVIEW IN DETERMINING WHETHER SANDSTROM WAS HARMLESS. WHETHER A SANDSTROM JURY INSTRUCTION WAS HARMLESS BEYOND A REASONABLE DOUBT IS A FACTUAL DETERMINATION THAT THIS COURT ORDINARILY DOES NOT ENTERTAIN Petitioners allegation, petition page 16, that "It does not appear from the Sixth Circuit's opinion that the court ‘undertook a thorough inquiry' into the evidence," is an absurd statement. The court of appeals read and summarized approximately 700 pages of transcript in its opinion and disclosed facts that this writer did not even discover after reading and summarizing the transcript at least four times. In fact, the court of appeals devoted more than one-half of its opinion to a development of the facts as disclosed by the whole record. Respondent's counterstatement of facts, which more accurately explains the record, contained herein and the opinion of the court of appeals, speak for itself. In addition, nowhere does Petitioner mention Suicide, the main defense of Respondent. The court applied the proper standard for review, that enunciated by this Court in the recent case of Rose v Clark, 476 US » 106 S Ct 3103, 92 L Ed 2d 460 (1986). The court of apoeals quoted from this Court's Opinion in Chapman v California, 386 US 18, 87 S Ct 824, 17 L Ed 2d 705 (1967) “that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt" (Emphasis added). 801 F2d at 256, Petitioner's appendix page A-9, Page 17 of Petitioner's petition emphasizes protions of the jury instruction and states that they condition the finding of guilt upon a review of the evidence. But as mentioned at pages 15 & lf¢ R of this brief, a reasonable juror could have interpreted this to -20- mean that Respondent is guilty unless his evidence proves the contrary. Page 18 of Petitioner's brief states that "The Sixth Cir never considered the full instruction to the jury in the instant case.” All portions of the jury instruction cited, discussed Or quoted at pages 18 and 19 of Petitioners petition were previously brought to the attention of the court of appeals through Petitioners brief before that Court. Appendix D, pages §-] There is absolutely no reasonable basis for Petitioners allegati cr p= 9 nt] cr cr pe @ yy » 3 4 w 7 1 : ; D 1 1 a | > Furthermore, Petitioner's allegation mitigated by other statements before the jury can be further rebutted when the district court found as a factu ey) 3 vy , t ‘ ' | its review of the transcript, that "the ailing instruction itself so infected the entire trial that the resulting convicti violates due process.” Petitioner's Appendix page D-5. In cr? ~ an er ie) ad D Qn D * r addition, the court of appeals explici the traditional Chapman harmless error analysis to determine whether the record, examined in its entirety, establis S beyond a reasonable doubt." (Emphasis supplied). 801 F2d at 237. Petitioner's appendix pages A-1l - A-12. As this Court stated in Rose, supra, 106 S Ct Although we "plainly have the authority t decide whether, on the facts of a particular case, a constitutional error was harmless under the Chapman standard. we “do s sparing] For these reasons, CONCLUSION ° should be denied. Dated: January 4), 1987 Business Address: -22- the petition for a writ of certiorari Respectfully submitted, ‘ a7 Ps SA 2th PEC AGA FRANK LAWRENCE (P36839) Attorney for Respondent Frank Lawre.ce, P.C. 1600 N. woodward Avenue Suite 224 Birmingham, Michigan 48011 Telephone (313) 642-2333 UNITED STATES DISTRICT COURT “EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION JOHN MERLO, Petitioner, Vv Civil No. 84-CV-8023-FL HON. STEWART A. NEWBLATT DAN BOLDEN, Respondent. ANSWER TO PETITION a FOR WRIT OF HABEAS CORPUS NOW COMES Respondent, by and through his attorneys, Frank J. Kelley, Attorney General for the State of Michigan, and Edgar L. Church, Jr., Assistant Attorney General, and in response to Petitioner's ipationtion for Federal Writ of Habeas Corpus, says as follows: PETITION ALLEGATIONS ae In response to Petitioner's ground one, Respondent denies the allegations .\).tained therein for the reasons that: a. Petitioner's claim that "Petitioner was deprived of his right to due process and a fair trial under the 14th Amendment to the United States Constitution and under Section 17, Article 1, Michigan Constitution, 1963, when the trial judge instructed the jury that the law presumes that a Qf 5 person intends the ordinary consequences of his voluntary acts” is without merit. Respondent hereby relies on the argument set forth in the Oakland County Prosecuting Attorney's Brief on Appeal in the Michigan Supreme Court, Docket No. CR 67-2604-FY (page 1). b. A number of lower courts have recognized that not all Sandstrom type of instructions embody the same potential for harm. They have carefully examined the precise language for "rhetorically inconsistent", Sandstrom, 442 US 510, n. 7 (1979), qualifications or explanations. Some have found that particular words eliminate the constitutional violation as _a threshold matter. See Pigee v Israel, 670 F 2d 690, 693-695 (CA 7, 1982); Jacks v Duckworth, 651 F 2d 480, 485-486 (CA 7, 1981), cert den 102 S Ct 110 (1982). Others telescope their linguistic analysis into a harmless inquiry. Rock v Coombe, 694 F 2d 908 (CA 2, 1982), cert den 102 S Ct 1773 (1983); Mancusco v Harris, 677 F 2d 206 (CA 2, 1982). na In esponse to Petitioner's ground two, Respondent denies the allegations contained therein for the reasons that: a. Petitioner's claim that “Fetitioner was deprived of a fair trial and due process under the 14th Amendment to the United States Constitution and Section 17, Article 1, Michigan Constitution, 1963, when the trial judge, in his charge to the jury, improperly conveyed the impression that the jury must acquit on the principal charge before considering lesser charges" is without merit. Respondent = 20 hereby relies on the argument set forth in the Oakland County Prose- cuting Attorney's Brief on Appeal in the Michigan Supreme Court, Docket No. CR 67-2604-FY (page 2). b. Further, errors and instructions to the jury do not ordinarily involve the deprivation of federal constitutional rights. Gimmel v Bucko, 358 F 2d 338 (6th Cir.), cert den 385 US 962 (1966). Petitioner has thus failed to state a cognizable claim under 28 USC 2254. Ze In response to Petitioner's ground three, Respondent denies the allegations contained therein for the reasons that: a. Petitioner's claim that "Petitioner was deprived of his right to due process and equal protection under the 14th Amendment to the United States Constitution and Section 17, Article 1, Michigan Constitution, 1963, when the trial judge instructed the jury that intent may be inferred by the use of a deadly weapon” is without merit. Respondent hereby relies on the argument set forth in the Oakland County Prosecuting Attorney's Brief in the Michigan Supreme Court, Docket No. CR 67-2604-FY (page 3). 4. In response to Petitioner's ground four, Respondent denies the allegations contained therein for the reasons that: a. Petitioner's claim that "Petitioner was deprived of his right to due process and equal protection under the 14th Amendment to the United States Constitution and under Section 17, Article 1, Michigan Constitution, 1963, when the trial judge instructed the jury that malice may be implied from the doing of any deliberate or cruel act against another” is without merit. Respondent hereby relies on the argument set forth in the Oakland County Prosecuting Attorney's Brief on Appeal in the Michigan Supreme Court, Docket No. CR 67-2604-FY (pages 4-5). De In response to Petitioner's ground five, Respondent denies the allegations contained therein for the reasons that: ‘ie a. Petitioner's claim that "Petitioner was deprived of a fair trial and to due process under the 14th Amendment to the United States Constitution and under Section 17, Article 1, Michigan Constitution, 1963, when the trial judge's instructions to the jury shifted the burden of proof from the state to Petitioner" is without merit. Respondent hereby relies on the argument set forth in the Oakland County Prosecuting Attorney's Brief on Appeal in the Michigan Supreme Court, Docket No. CR 67-2604-FY (page 1). 6. In response to Petitioner's ground six, Respondent denies the allegations contained therein for the reasons that: a. Petitioner's claim that “Petitioner was denied effective assistance of counsel in violation of his 6th Amendment right to same during his trial" is without merit. Respondent hereby relies on the argument set Attorney's Brief on Appeal ts Rule 9(b). %e ,¢e forth in the Oakland County Prosecuting CR 67-2604-FY (pages 6-7). The instant Petition is subject to dismissal under Petitioner did not raise the issues referred to above in his Writ filed in 1977 under USDC No. G76-85-CAl. RECORD The following documents are filed with this Answer: Petitioner's Preliminary Examination Transcript dated February 24, 1967; Petitioner's Trial Transcript (Volumes I and II) dated December 12, 13, 14, 15, 19 and 20, 1967; Portions of Michigan Court of Appeals File No. 68975 and 5278; Entire Michigan Supreme Court File No. 72007 and 57333. in the Michigan Supreme Court, Docket No. WHEREFORE, Respondent requests that Petitioner's Applica- tion for Federal Writ of Habeas Corpus be denied. Respectfully submitted, FRANK J. KELLEY ney General , Jr. (P1Y87S) Asszysfaft Attorney General a Corrections Division Plaza One Building 401 South Washington Square Lansing, MI 48913 Dated: April 24, 1984 Telephone: (517) 373-3474 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION JOHN MERLO, Petitioner, Vv Civil No. 84-CV-8023-FL HON. STEWART A. NEWBLATT DAN BOLDEN, Respondent. BRIEF IN SUPPORT OF ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS COUNTERSTATEMENT OF FACTS On January 6, 1967, Petitioner's estranged wife was shot four times and killed at the Crest Beauty Salon in Farmington Township, Michigan. This occurred after Petitioner entered the salon, spoke with the victim in a back room, and had followed the victim back to the work area of the salon. Part of the evidence against Petitioner was his own con- fession, given to authorities in Philadelphia who had arrested him on forged check and weapon possession charges. (T, 314-317) There were several eyewitnesses to the murder -- the customers and others who worked at the salon. Although Petitioner claimed his wife had provoked the shooting, none of the eyewitnesses in the main room at the Crest Beauty Salon heard sounds from the furnace room where Petitioner and his wife had gone to talk. (T, 115, 164, 203-204, 206, 208, 210, 215, 223, 248) No noisy equipment was then in operation in the salon. (T, 120) The doors to the furnace room were open. (T, 114, 204-205, 209) Some of the witnesses were wary of possible trouble and/or were observant of the furnace room. (T, 177-178, 181, 256) None of the eyewitnesses observed Spittle or possible slap marks on Petitioner's face. (T, 238-239, 266) Petitioner's gait as he walked from the furnace room toward his wife was described as “normal.” (T, 115) There was clear testimony that Petitioner fired two of four shots at the victim while she was lying on the floor (T, 115-117) or as she was slumping to the floor. (T, 245-246) Petitioner's own testimony reveals that he and his wife had experienced severe marital difficulties. His wife had rejected his efforts toward reconciliation on numerous occasions. (T, 426- 453, 509-510, 531) Testimony in this case also shows Petitioner's ee familiarity with a gun and his apparent readiness to use it. (T, 415, 446-448, 452, 455-456, 495, 514, 515) The evidence also showed that Petitioner had previously dealt in a physically aggres- Sive manner with the deceased (T, 414, 444-445, 509-510, 531), and had otherwise demonstrated ill will toward her. (T, 451, 511-514) Further, in his own testimony, Petitioner revealed that he killed his wife because of “everything that happened" and that the boyfriend was part of it. (T, 538) Petitioner filed a Claim of Appeal and che Michigan Court of Appeals confirmed his conviction in People v Merlo, 23 Mich App 694, 703 (1970), in an opinion which stated that Petitioner's guiit of first degree murder was “overwhelmingly established." Petitioner's Delayed Application For Leave To Appeal filed in 1975 was denied by the Michigan Supreme Court. In neither the 1970 appeal nor the 1975 appeal was the instruction of the Court challenged for shifting the burden. In 1977, Petitioner filed a Writ of Habeas Corpus in this Court but failed to challenge the Court's instructions as impermissibly shifting the burden of proof. On November 4, 1982, Petitioner's Delayed Motion for New Trial, in which he raised the same six issues he now seeks to have reviewed in this Court, was denied. On June 13, 1983, the Court of Appeals denied leave in this case based upon the same six issues now raised before this Court. On December 29, 1983, the Michigan Supreme Court denied leave based upon these same six issues. 7 P . -I- ARGUMENT I ABSENT A DEMONSTRATION THAT MICHIGAN APPELLATE COURTS DE- CLINED DISCRETIONARY REVIEW OF PETITIONER'S CONSTITUTIONAL CLAIM BASED ON THE MERITS, A FEDERAL COURT MUST INVOKE THE DOCTRINE OF WAINWRIGHT v SYKES, 433 US 72 (1577), TO PRECLUDE HABEAS CORPUS REVIEW. Petitioner did not object at trial to the court's jury instruction on intent. Such inaction bars Michigan appellate consideration absent a demonstration of “manifest injustice”. GCR 1963, 516.2; People v Alcada, 396 Mich 99, 100; 237 NwW2d 475 (1976); People v Hawley, 112 Mich App 784; 317 NW2d 564 (1982). On direct appeal, Petitioner did not claim that any portion of the charge impermissibly shifted the prosecution's burden of proof. People v Merlo, 23 Mich App 694 (1970). In Michigan the failure to raise, argue or brief an issue on initial appeal precludes subsequent review. People v George, 375 Mich 262; 134 NW2d 222 (1965); People v Tubbs, 64 Mich App 341, 347; 236 NW2d 77 (1975). . Respondent finally raised his Sandstrom claim on delayed appeal. The Michigan appellate courts responded with cryptic refusals to exercise discretionary review. GCR 1963, 803.3; 853.1. In these circumstances, the principles set forth in Wainwright v Sykes, supra, bars federal habeas corpus consideration of Petitioner's constitutional claim absent a demonstration of “cause” for the pro- cedural default and actual prejudice as a result of the error. In People v Wright, 408 Mich 1; 289 NW2d 1 (1980), the Michigan Supreme Court ignored the absence of contemporaneous objection in order to reach the merits of a Sandstrom-type error. The court recognized this action as a departure from the general rule but justified it on the grounds that reliance on defense objection and case-by-case assessment of harm "...may inadequately deter continued use of the instructions". Id., 408 Mich 30, n. 13 (emphasis added). Properly read, Wright represents a 1980 policy decision to create a narrow exception to the state contemporaneous objection rule for certain types of instructional errors. It does not conclusively indicate that a 1975 Michigan appellate court, on discretionary appeal, would have ignored GCR 1963, 516.2, to address a pre-Sandstrom claim that presumed intent language in a jury instruction was violative of due process. Subsequent to its decision in Wright, the Michigan Supreme Court held that Sandstrom applied retroactively to those cases where such instructional claims were pending or direct appeal as of Sandstrom's decisional date. People v Woods, supra, 416 Mich at 621. Woods is consistent with Wright to the extent that the absence of a contemporaneous objection at trial in such cases would not preclude review. But neither decision suggests that cases tried prior to Sandstrom were immune to then applicable caselaw and procedural rules with regard to such errors. In light of Woods, therefore, the issue is whether there was a controlling state procedural rule at the time of Petitioner's default. Washington v Harris, 650 F2d 447, 451 (CA 2, 1981). It does appear that Michigan appellate courts generally applied GCR 1963, 516.2, to claims of impermissible burden shifting instructions prior to Wright. People v Spalding, 42 Mich App 492, 495-496; 202 NW2d 450 (1972) [alibi instructions]; People v Williams #2, 45 Mich App 630, 640-641; 207 Nw2d 180 (1973) {use of deadly weapon implies malice]; Hawley, supra, 112 Mich App at 767-788. Respondent submits that Wright represents a decision to relax Michigan's procedural requirements in order to establish a principle of law for subsequent cases. Similarly, Woods stands as a choice to waive contemporaneous objection rules for a specific category of cases. But the policy factors that prompted these decisions do not compel their extension of a matter of constitutional law. In Hankerson v North Carolina, 432 US 233; 97 S Ct 2339; 53 L Ed 2d 306 (1977), this court addressed the argument that retroactive application of Mullaney v Wilber, 421 US 684; 95 S Ct 1881; 44 L Ed 2d 508 (1975), would impose an undwe burden on the administration of state judicial systems. Justice ‘White rejected this argument as follows: "The states, if they wish, may be able to insulate past convictions by enforcing the normal and valid rule that failure to object to a jury instruction is a waiver of any claim of error.” 432 US at 244, n. 8. - “* — ee et Ee ela This position has ween recently reaffirmed in engle v Isaac, 456 US 107, 134, n. 43; 102 S Ct 1558; 71 L Ed 2d 783 (1982). Only if the state courts in this case ignored the procedural default and reached the merits of Respondent's comstitutional claim is federal habeas review appropriate. County Court of Ulster County v Allen, 442 US 140, 152-154; 99 S Ct 2213; 60 L Ed 2d 777 (1979); Castaneda v Partida, 430 US 482, 485, nm. 4; 97 S Ct 1272; 51 L Ed 2d 498 (1977). Where, as here, the reasons for the state court decision are not explicit, a determination of reliance on procedural default requires consideration of all relevant criteria. These considerations include examination of similar cases, review of the history of the case at bar, and analysis of the language employed by the state court opinions. Ulster County Court, supra, 442 US 140 at 147-154. Here the Michigan Court of Appeals declined review due to lack of “merit” in the grounds presented and the Michigan Supreme Court thereafter refused relief “because the Court is not persuaded that the questions presented should be reviewed by this Court”. Both orders appear to be standard forms for denial of delayed appeals and do not reveal the basis for decision. See Raper v Mintzes, 706 F2d 161, 164 (CA 6, 1983). In context, therefore, the use of the word “merit” in the Court of Appeals order is indicative of only summary consideration of the merits necessitated by the "manifest injustice” exception to the contemporaneous objection rule embodied in GCR 1963, 516.2. See Williams v Abshire, 544 F Supp 315, 319 ojo (ED Mich, 1982); see also Ziegler v Callahan, 659 F2d 254, 271, n. ll (CA 1, 1981); Murray v Superintendent, 651 F2d 451, 455, n. 6 (CA 6, 1981). This Court, however, has recognized that the existence of state plain error rules will not preclude the applicability of Wainwright, supra. Engle, supra, 456 US 125, n. ‘27; United States v Frady, 456 US 152, 177-178; 102 S Ct 1584; 71 L Ed 2d 816 (1982) (Blackmun, J., concurring). An ambiguous silence alone does not imply that the state tribunals reached the merits of Respondent's claim. The, Florida courts were silent on the merits of the petitioner's confession claim in Wainwright, supra, 433 US 72, 85-86. Similarly, in Perini v Bell, a companion case to Engle, supra, this Court enforced Ohio's procedural bar where petitioner had failed to raise his constitutional) claim of instructional error at trial or on direct appeal. Engle v Isaac, 456 US at 124. To hold otherwise would indulge a presumption that the state courts have waived procedural requirement in every instant of denial of discretionary review absent express and specific reliance thereon as to the particular claims. Interpretation of inevitable ‘ambiguity in this fashion undercuts the state's ability to enforce its procedural rules. For example, a state defendant who has failed to raise a trial objection withholds his or her claim on direct appeal and thus effectively deprives the state court of the option of either rejecting the claim on procedural grounds or addressing the merits. ~ The state defendant next exhausts the claim when the courts subse- quently refuse to exercise discretionary review. In the federal habeas forum, the petitioner then asserts that procedural default was not the reason for denial of review. For the reasons of comity, finality and societal cost set forth in Wainwright and Engle, this Court must not countenance such a result. Given state enforcement of a valid procedural rule in this case, the next step in the Wainwright inquiry is whether Respondent can demonstrate "cause" for the default. y Though it appears unlikely that his objection would have been successful in a 1967 Michigan trial court, see Woods, supra, futility alone is no excuse. Engle v Isaac, supra, 456 US at 130. Nor can Respondent claim lack of awareness. It is evident that the constitutional foundation for his argument--that due process requires the state to provide all elements of a crime beyond a reasonable doubt--had been recognized prior to his trial. In re Winship, Supra; see also Morissette v United States, 342 US 246; 72 3 Ct 240; 96 L Ed 2d 288 (1952). Moreover, federal decisions had found impermissible burden shifting effects in similar instructions. Mann v United States, 319 F2d 404, 409 (CA 5, 1963); Stump v Bennett, 398 F2d 111 (CA 8), cert den, 393 US 1001 (1968). Peti- tioner thus had the "tools to construct [his] constitutional claim" at the time of his trial. Engle, at 133. Wainwright forecloses habeas corpus review in these circumstances. ARGUMENT II EVEN IF VIOLATIVE OF SANDSTROM V MONTANA, 442 US 510 (1979), THE JURY INSTRUCTION AT ISSUE IN THIS CASE WAS HARMLESS BEYOND A REASON- ABLE DOUBT. Introduction In Connecticut v Johnson, US :; 103 S Ct 969; 74 L Ed 2G 823 (1983), eight justices of the U. S. Supreme Court divided as to whether a violation of Sandstrom could be harmless constitu- tional error. Four justices opined that an affirmztive concession of intent by the defendant was necessary to render a Sandstrom error harmless. Id., 74 L Ed 2d at 834. The alternative plurality suggested that conclusive evidence of intent should preclude reversal despite a Sandstrom violation. Id., 74 L Ed 2d at 842. The present case revisits this debate. It is Respondent's position that a harmless error analysis of Sandstrom violations requires a careful assessment of the particular trial context. This review entails a non-mechanistic consideration of the precise language used by the trial court, the emphasis given to the instruction at issue, the issues actually contested by the defense and the weight of the prosecution's case. Undue emphasis on any single factor distorts the reality of the trial. The focus instead must remain on whether the procedural error "contributed to the conviction". Chapman v California, 386 US 18, 23; 87 S Ct 824; -10- 17 L Ed 2d 705 (1967), quoting Fahy v State of Connecticut, 375 US 85; 84 S Ct 229; 11 L Ed 2d 171 (1963). Assessment of such error mandates a consideration of the entire record. United States v Hastings, US ; 103 S Ct 1974; 76 L Ed 2d 96, 106-107, n. 7 (1983). - A. Instructional Language The mere use of the word "presume" in a jury instruction on intent does not necessarily generate a Sandstrom violation. The problem in Sandstrom was that the trial court failed to explain or otherwise qualify the presumption. 61 “Ed 2d 46. Left to speculate, a reasonable juror might have interpreted the instruction as either conclusive on the issue of intent or, minimally, affecting a shift of the burden of persuasion to the defendant. The Sandstrom varient utilized in Connecticut v Johnson was less ambiguous. The clarification, however, proceeded in the wrong direction. The language used by the court explicitly told the jury that the presumption was conclusive. Connecticut v Johnson, supra, 74 L Ed 2d at 829. Such direction certainly increases the likelihood of prejudicial impact on the fact finding process. It is essential, therefore, to focus on the exact language involved in a particular case. County Court of Ulster County v Allen, supra, 442 US at 157-158, nm. 16. =ll- A number of lower courts have recognized that not all Sandstrom type instructions embody the same potential for harm. They have carefully examined the precise language for "rhetorically inconsistent", Sandstom, supra, 442 US at n. 7, qualifications or explanations. Some have found that particular words eliminate the constitutional violation as a threshold matter. Others telescoped their linguistic analysis into a harmless error inquiry. These courts properly recognize that a contextual inter- pretation consistent with the principles of Cupp v Naughten, 414 F eewe US 141; 94 S Ct 396; 38 L Ed 2d 368 (1972), is essential to evaluations of a claimed Sandstrom violation. Courts on review must assume that jurors will endeavor to effectuate all the trial judges’ instructions in a common sense manner. Undue, legalistic emphasis on narrow portions of the charge is artificially contrary to this realistic assumption. With these matters in mind, a review of the precise language used in this case reveals a far less detrimental charge than the one found erroneous in Sandstrom. The instruction in the instant case reads as follows: "The law presumes that every person, unless relieved by some disability as hereinafter mentioned, contemplates and intends the natural, ordinary, and usual consequences of his own voluntary acts, unless the contrary appears from the evidence, and if aman is shown by the evidence, beyond a reasonable doubt, to have killed another by an act, the natural and ordinary con- sequences of which would be to produce wo Qu ‘Diipiacittaitemnces death, then it will be presumed that death of the deceased was designed by the slayer, unless the facts and circumstances of the killing, or the evidence, create a reasonable doubt whether the killing was done purposely. When a man assaults another with, or uses upon another a deadly weapon, in such a manner that the natural, ordinary, probable use of such deadly weapon in such manner would be to take life, the law presumes that such person so assaulting intended to take life. A deadly weapon has been defined as an instrument reasonably calculated and likely to produce death, or serious bodily injury from the manner in which it is used. (T, 601-602) The instructions have strong conditional clauses at the heart of the instruction. Absent a mandatory character, the question remains whether the instruction in this case could have been interpreted as burden shifting. This Court, however, has recognized a distinction between presumptions that simply shift the burden of production as opposed to the ultimate burden of persuasion. County Court of Ulster County, supra, 442 US at 157, n. 16. In this case any doubts relevant to the ultimate burden generated by the rule of thumb language should have been resolved by the Court's specific reminder of the reasonable doubt standard. For these reasons, Petitioner submits that the instruction at issue in this case did not violate Sandstrom. But, even if review reveals the possibility of juror misinterpretation sufficient to invoke Sandstrom, the above analysis illustrates the importance of complete contextual interpretation and is helpful to define the -l13- potential for prejudice. Petitioner submits that such potential is demonstrably less in this case than appears in either Sandstrom or Connecticut v Johnson. B. Degree of Emphasis Where constitutional error receives particular prominence at trial, the possibility of harmlessness diminishes. In Bollenbach v United States, 326 US 607; 66 S Ct 402; 90 L Ed 350 (1946), for example, the last thing a potentially deadlocked jury heard was an unconstitutional presumption as an answer to their specific request for guidafice on the issue. Similarly, the "machine gun repetition” of Griffin v California, supra, violations was highly significant to the nonharmless error determination in Chapman, supra, 386 US at af: In this case, the alleged constitutional violation involves a single terse sentence buried in 12 pages of instructions that took the court approximately fifty-four minutes to read. In these circum- Stances, there is nc basis for a conclusion that a jury would accord special significance to this comment. ©. Materiality of the Intent Issue A plurality of this Court in Connecticut v Johnson suggested that a Sandstrom error might be harmless where the trial defense effectively concedes the issue of intent. To various degrees, -l14- other courts have aiso focused the primary empnasis of their harmless error inquiry on whether intent was a disputed or material issue in the case. See Conway v Anderson, 698 F2d 282, 285 (CA 6, 1983) (and cases cited therein); McGuinn v Crist, 657 F2d 1107, 1109 (CA 9, 1981); United States v Winter, 663 F2d 1120, 1144-1145 (CA 1, 1981). A reasonable harmless error approach is to simply examine the degree to which intent was a significant issue in the case. Where intent, though technically in dispute, was clearly subsidiary to another claim of defense, the likelihood of harm from a Sandstrom instruction decreases dramatically. The contrary requires a speculative assumption that a jury which rejects a hotly contested ' defense claim will then base conviction on ambiguous instructional language. The case at bar is illustrative. Here the defense claimed intoxication. Under then applicable Michigan law the defense had to establish that, due to intoxication, defendant either (1) was not capable of knowing he was doing wrong, or (2) lacked the power to resist the impulse to violate the law. People v Finley, 38 Mich 482, 483 (1878). People v Martin, 386 Mich 407, 418; 192 NwW2d 215 (1972). Voluntary intoxication was not recognized as a defense in the sense that it could negate general criminal intent. Id., at 484; People v Wright, 58 Mich App 735, 739; 228 NW2d 807 (1975). In this case, the defense sought to demonstrate that Plaintiff killed in the heat of passion, and was unable to control his own emotions and -l15- that because of his drunkenness, was thus unabie to form the intent to kill another person. (T, p 585-586, 589) The Court specifically instructed the jury that: "If on the other hand, you find the killing was done during a state of intoxication such that the Respondent was unable to form the intent required to commit the crime and under the instructions I have given you, then your verdict should be that he is not guilty.” (T, p 605) The above was at the end of the Court's instructions to the jury. This instruction clearly addresses the defense's sole challenge to the prosecution's proofs as to general criminal intent. (Petitioner's contention that he was drunk and was thus unable to form the requisite intent.) In this context, a Sandstrom instruction on intent would have been virtually meaningless to a lay jury. D. Weight of the Evidence Closely related to the materiality of the intent issue is the scope and extent of the proofs presented on this issue at trial. Frequently, the reason for nondispute lies in an accurate assessment of the prosecution's case. Respondent again does not assert that the weight of the evidence is the sole test for harmless instructional error. It is -16- simply an important step, Holloway v Arkansas, 435 US 475, 488; 98 S Ct 1173; 55 L Ed 2d 426 (1978), in the assessment of "...the probable impact of the [error] on the minds of an average jury." Harrington v California, 395 US 250, 254; 89 S Ct 1726; 23 L Ed 2d 284 (1969). This step is especially crucial where the apparent error rests on the mere possibility of juror misinterpretation. Any reasonable juror who believed Petitioner had shot the decedent and was not legally incapacitated at the time could not possibly conclude that he lacked the requisite general intent. An ambiguous intent instruction pales to insignificance where the evidence itself is conclusive. Respectfully submitted, FRANK J. KELLEY Genera Corrections Division Plaza One Building 401 S. Washington Square Lansing, MI 48913 Telephone: (517) 373-3474 Dated: April 24, 1984 -l?- No. 85-1145 In The ie UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT JOHN MERLO, Vv DAN BOLDEN, Respondent-Apr >llant PYG. Appell sive Habeas Corpus Appeal -:om the Déstrict Court of the United States for the Eastern District of Michigan , Honorable Stewart A. Newblatt BRIEF FOR RESPONDENT-APPELLANT FRANK J. KELLEY Attorney General Louis J. Caruso Solicitor General Edgar L. Church (P11879) Assistant Attorney General Corrections Division Plaza One Building = 401 South Washington Square e Lansing, MI 48913 Attorneys for Respondent-Appellant EEE TABLE OF CONTENTS Fact Sheet for State Habeas Ccrpus Appeals. ...+.++ + ++ « - ii Endex of Authorities. . «Bt ccecseeeeveee sees bee iii,i: Counterstatement of Issues Presented. . . « «© «+ «+ + *+ © © #* # « iv Statement of Facts. ...++++s+-+se# «© © © © © © © © © © @ #8 1 ARGUMENTS : I. ABSENT A DEMONSTRATION THAT MICHIGAN APPELLATE COURTS DECLINED DISCRETIONARY REVIEW OF APPELLEE'S CONSTITUTIONAL CLAIM BASED ON THF MERITS, A FEDERAL COURT MUST INVOKE THE DOCTRINE OF WAINWRIGHT v SYKES, 433 US 72 (1977), TO PRECLUDE HABEAS CORPUS REVIEW... +++ e« 2 2© © © © © © © © © © # 8 . Ii. EVEN IF VIOLATIVE OF SANDSTROM V MONTANA, 442 US 510 (1979), THE JURY INSTRUCTION AT ISSUE IN THIS CASE WAS HARMLESS BEYOND A REASONABLE See « «6 as ae Be. 6x6) 8 6) 6 618.6 6, 6-6 SO ee? 10 GConsiiastan. «ss 6 6.6 6 6.8 6 #8 66666 6, 6 Se ee eee 20 o{- W TED STATES COURT OF APPEY 5S FOR THE SIXTH CIRCUIT FACT SHEET FOR STATE HASEAS CORPUS APPEALS (§2254) Cease Name anc Number John Merlo v Dan Bolden, #85-1145 Person Reportins Edgar L. Church, Jr. 1. Has this conviction(s) been previously liticateé in the U.S Courts? ( ) Yes. (X) No. Tt so, give brief history. Le] Constitutional violation claims: name constitutional provision anc briefly recite facts assertec as violative. Appellee claims instructions of trial court are violative Of Sandstrom v Montana, 442 US 510 (1979). n Eave remecies been exhaustec as to claims listed ebove? a. Yes b. Ce Are there fact disputes concernins ciaims ( ) Yes (X) No. If so, were they resclved by the District Court? a. At heéring? b. By review of state court record? c. By reference to Macistrate? é. Neither, i.e., not resolved Does the State argue that any constituticnal violation was founé harmless beyond reasonable Goubt. .if so, briefly state why ané cite to appencix paces claimed as proof. State claims that instructions, if violative of Sandstrom, were harmless. ~ INDEX OF AUTHORITIES Cases Page Nc Bollenbach v United States, 326 US 607; 66 S Ct 402; ' ee we) Pee ee ee ee ee ee ee ee ee ee ee ee 14 Castaneda v Partida, 430 US 482, 486, n. 4; 97 S Ct Lg74é3 51 & BG 24 498 (1977) 2. «© we ew we we eee een se 7 Chapman v California, 386 US 18, 23; 87 S Ct 824; i? % SG 26 705 (1967) 2. ww eee eevee eeeenes es 1l,. Connecticut v Johnson, 386 US 18, 23; 87 S Ct 824; , kL? & oe Be Tee 12067) 2c i tw bh bn eR Oe Ree ee cane Conway v Anderson, 698 F2d 282, 285 (CA 6, 1983) .... Bhat 15 County Court of Ulster County v Allen, 442 US 140, A 152-154; 95 S Ct 2213; 60 L Ed 2a 777 (1979)... 2.2... Veda Cupp v Naughten, 414 US 141; 94 S Ct 396; 38 L Ed by a0 Bee CAPtal -s 2 4 88s a 28 O86 oe 8 ke KA ee 12 Engle v Isaac, 456 US 107 (1982) . . «© «© «© «© «© © © @ © ow oo 7,8, Fahy v State of Connecticut, 375 US 85; 84 S Ct 229; ; AA me Ge Be AUk CARER 6 (6). 6-66 6 ee 8 oe) See 11 Griffin v California, 380 US 609; 82 S Ct 1229; 14 = me i mo ge | | } ) PP ee ee ee 14 Hankerson v North Carolina, 432 US 233; 97 S Ct i> TER ee BS | ee py) a err ce ane ey eee eee ae eee ee 6 Harrington v California, 395 US 250, 254; 89 S Ct 4% p+, (oe DB @ @ ) Be: . ) RAP cee ee ae ee ee ee ee eee 17 Holloway v Arkansas, 435 US 475, 488; 98 S Ct 1173; + eN ; 28 oo g. o'r re ey eee eee 17 McGuinn v Crist, 657 F2d 1107, 1109 (CA 9, 1981) .... ie ° 15 Mann v United States, 319 F2d 404, 409 (CA 5, 1963). ..... 10 Morissette v United States, 342 US 246; 72 S Ct 240; 96 L Ed 2a 255 (1552) - > . J . J . >. .* .* o . . . * 7 . . a Mullaney v Wilber, 421 US 684; 95 S Ct 1881; , ae I Pi Ua, NN la i a eg ce wee 7 Murray v Superintendent, 651 F2d 451, 455, n. 6 (CA 6, 1981). . 7 . . 7 7 - . 7 . . . . . - . . . . . . 7 8 -iii- People Alcada, People Finley, People George, People Hawley, People Langworthy , 396 Mich 99, 100; $6 ia 400, 003 11078. Se ke 375 Mich 262; 134 NW2d 222 (1965). ... 112 Mich App 784; 317 NW2d 564 (1982). . 436: Mich 630 (1962) . 6. & « wo People Martin, People Merlo, People Milton, People Vv 202 People Vv 23 Mich App 694, 386 Mich 407, 418; 192 NW2d 215 (1972) . 703 (1970) 81 Mich App 515 (1978) . ....-+.4-e-s Spalding, 42 Mich App 492, 495-496; 3 Nw2 Tilley, People Vv Tubbs, People Vv VanWick, 450 64 Mich App 341, People Vv Williams #2, 207 People Vv (1972). . . . 7 . . . . . . * at 2a afiié ‘A ‘2 / Oo aghe Oe a * dg , ¢ * denial of discretionary review absent express and specific reliance thereon asto the particular claims. Interpretation of inevitable ambiguity in this fashion undercuts the state's ability to enforce its procedural rules. For example, a state eatentent who has failed to raise a trial objection withholds his or her claim on direct appeal and thus effectively deprives the state court of the option of either rejecting the claim on procedural grounds or addressing the merits. The state defendant next exhausts the claim when the courts subsequently refuse to exercise discretionary review. In the federal habeas forum, the petitioner then asserts that procedural Gefault was not the reason for denial of review. For the reasons of comity, finality and societal cost set forth in Wainwright anc Engle, this Court must not countenance such a result. Given state enforcement of a valid procedural rule in this case, the next step in the Wainwright inquiry is whether Appellan~ can demonstrate “cause” for the default. Though it appears unlikely that his objection would have Been successful in a 1967 Michigan trial court, see Woods, supra, futility alone is no excuse. Engle v Isaac, supra, 456 US at 130. Nor can Appellant claim lack of awareness. It is evident that the constitutional foundation for his argument--that due process requires the state to provide all elements of a crime beyond a reasonable doubt--had been recognized prior to his trial. In re Winship, supra; see also Morissette v United States, 342 US 246; 72 S Ct 240; 96 L Ed 24 288 (1952). Moreover, federal decisions had found impermissible burden shifting effects in similar instruc- tions. Mann v United States, 319 F2d 404, 409 (CA 5, 1963); Stump v Bennett, 398 F2d 111 (CA 8), cert den, 393 US 1001 (1968). Petitioner thus had the "tools to construct [his] constitutional claim" at the time of his trial. Engle, at 133. Wainwright forecloses habeas corpus review in these circumstances. \ ARGUMENT II EVEN IF VIOLATIVE OF SANDSTROM V MONTANA, 442 US 510 (1979), THE JURY INSTRUCTION AT ISSUE IN THIS CASE WAS HARMLESS BEYOND A REASON- ABLE DOUBT. Introduction In Connecticut v Johnson, us ; 103 S Ct 969; 74 LEG 4 823 (1983), eight justices of the U. S. Supreme Court Givided as to whether a violation of Sandstrom could be harmless constitutional error. Four justices opined that an affirmative concession of intent by the defendant was necessary to render a Sandstrom error harmless. Id., 74 L Ed 2d at 834. The alternative plurality suggested that conclusive evidence of intent should ———— a, ae preclude reversal despite a Sandstrom violation. Id., 74 L Ed 2d at 842. The present case revisits this debate. It. is Appellant's position that a harmless error analysis of Sandstrom violations requires a careful assessment of the particular trial context. This review entails a non-mechanistic consideration -10- e ( - of the precise language used by the trial court, the emphasis given to the instruction at issue, the issues actually contested by the defense and the weight of-the prosecution's case. Undue emphasis on any single factor distorts the reality of the estai. The focus instead must remain on whether the procedural error "contributed to the conviction". Chapman v California, 386 US 18, 23; 87 S Ct 824; 17 L Ed 2d 705 (1967), quoting Fahy v State of Connecticut, 375 US 85; 84 S Ct 229; 11 L Ed 24 171 (1963). Assessment of such error mandates a consideration of the entire record. United States v Hastings, US ; 103 S Ct 1974; 76 L Ed 24 96, 106-107, n. 7 (1983). wy A. Instructional Language a OF f / that vy ana arto Sais All - f a aa ak ae Lifundm ys 3 . 1A ha Marre helen wt The mere use of the word “presume” in a jury instruction on intent does not necessarily generate a Sandstrom violation. The (problem in Sandstrom was that the trial court failed to explain or lotherwise qualify the presumption. 61 L Ed 2d 46. Left to speculate, a reasonable juror might have interpreted the instruction as either conclusive on the issue of intent or, minimally, affecting a shift of the burden of persuasion to the defendant. The Sandstrom varient utilized in Connecticut v Johnson was less ambiguous. The clarification, however, proceeded in the wrong direction. The language used by the court explicitly told the jury that the presumption was conclusive. Connecticut v Johnson, supra, 74 L Ed 2d at 829. Such direction certainly increases the likelihood of prejudicial impact on the fact finding process. It is essential, therefore, to focus on the exact language involved in a particular case. Coynty Court of Ulster County v Allen, supra, 442 US at 157-158,-n. 16. A number of lower courts have recognized that not all Sandstrom type instructions embody the same potential for harm. They have carefully examined the precise language for "rhetorically inconsistent", Sandstrom, supra, 442 US at n. 7, qualifications or explanations. Some have found that particular words eliminate the constitutional violation as a threshold matter. Others telescoped their linguistic analysis into a harmless error inquiry. These courts properly recognize that a contextual inter- pretation consistent with the principles of Cupp v Naughten, 414 US 141; 94 S Ct 396; 38 L Ed 2d 368 (1972), is essential to evaluations of a claimed Sandstrom violation. Courts on review must assume that jurors will endeavor to effectuate all the trial judges' instructions in a common sense manner. Undue, legalistic emphasis on narrow portions of the charge is artificially contrary to this realistic assumption. With these matters in mind, a review of the precise language used in this case reveals a far less detrimental charge than the one found erroneous in Sandstrom. The instruction in the instant case rezds as follows: "The law presumes that every person, unless relieved by some disability as hereinafter -12-— - | f *. a _—- / mentioned, contemplates and intends the natural, ordinary, and usual consequences of his own voluntary acts, unless the contrary apnears from the evidence, and 1f aman is shown by the evidence, beyond a reasonable doubt, to have killed another by an act, the natural and ordinary con- sequences of which would be to produce death, then it will be presumed that death of the deceased was designed by the slayer, unless the facts and circumstances of the killing, or the evidence, create a reasonable doubt whether the killing was done purposely. When a man assaults another with, or uses upon another a deadly weapon, in such a manner that the natural, ordinary, probable use of such deadly weapon in such manner would be to take life, the law presumes that such person so assaulting intended to take life. A deadly weapon has been defined as an instrument reasonably calculated and likely to produce death, or serious bodily injury from the manner in which it is used. (T, 601-602) The instructions have strong conditional clauses at the heart of the instruction. Absent a mandatory character, the question remains whether the instruction in this case could have been interpreted as burden shifting. This Court, however, has recognized a distinction between - presumptions that simply shift the burden of production as opposed to the ultimate burden of persuasion. County Court of Ulster County, Supra, 442 US at 157, n. 16. In this case any doubts relevant to the ultimate burden generated by the rule of thumb language should have been resolved by the Court's specific reminder of the reasonable doubt standard. cae a le AML y tht y . i eee ys Slants r : Wwe In further support of the District Court's decision to grant habeas, the Court cites Appellee's claim that his wife's Slapping and spitting on him caused him to go into a "rage" (Transcript 7olume II, page 464). This is, of course, disputed by the testimony - : witnesses (T, 238-239, 266). However, rage does not show a lack 7 intent, but may merely indicate the basis for the intent. Appellee's al counsel, in fact, apparently attempts to argue that the killing justifiable and that it was provoked (Trial Volume II, page 381). ‘Michigan law, provocation does not negate intent. Instead, ~ ation may mitigate the degree of the offense to manslaughter. Vv VanWick, 402 Mich 266 (1978); People v Langworthy, supra, =18- warn p. 652. The argument by defense counsel that there was provocation is therefore not relevant to the issue of intent. Assuming the jury accepted the evidence regarding Provocation, it could normally be used to mitigate the degree of defense to manslaughter. People aes ™ = v VanWick, supra. : ;.' A review of the District Court's analysis reveals that the portions of the record relied upon by the Court does not Support its conclusion. The record instead reveals that general intent (malice) was not in dispute. The defense instead relied upon lack of premedi- tation, provocation and drunkenness. Any reasonable juror who believed Appellee had shct the dececent four times and was not legally incapacitated at the time coulda not possibly conclude that he lacked the requisite general intent. An ambiguous intent instruction pales to insignificance where the evidence itself is conclusive. ~19- CONCLUSION WHEREFORE, Respondent-Appellant respectfully requests this Court reverse the decision of the District Court and remand for further proceedings. Respectfully submitted, FRANK J. KELLEY Attorney General Louis J. Caruso Lk General Fake Jr. 11879) Assistant Attorney General Business Address: Corrections Division Plaza One Building 401 S. Washington Square Lansing, MI 48913 Telephone: (517) 373-3474 Dated: April 25, 1985 =30 ) } * 3 Ct 1881, 44 L Ed 2d 508 (1975). ° . (1970) ao 429735). (1979) 1982) 1982). 468 US , 104 § Ct 2901, 2 & Ea 24 1 (1964). ° 39 § Ct 9, 388 US 293, 87 S Ct 1967, 18 L Ee 2d 1199 (196 ce as 3 UNITED STATES V FRADY, 86 S Ct 459, UNITED STATES V JOHNSON, Ct 1584, 71 L Ed 2d UNITED STATES V SOBELL, Ct 2479, 73 L Ed 2d UNITED STATES V SPIEGEL, WAINWRIGHT V SYKES, 433 US 73, WILLIAMS o2 & Ea 2d 594 (1977 V ENGLE, 683 F2d 152 WILLIAMS V UNITED STATES, MCLA 750. 1148, 316 28 L Ed 2d 388 314 F2d 314 A> L Ea 2a 453 386 US 406, (1966) 456 US 152, 102 § 816 (19382) 457 US 537, 102 S 202 (1982) 604 F2d 961 ). (CA 6, 401 US 646, (CA 2, (CA 3, 29 97 $ Ce 2497, 1982) 91 $ Ct tans al's - ii(a) 1963) 14, nh — iv ~ ~ NITED STATES COURT OF A>?P” S FOR THE SIXTH CIRCUI FACT SHEET FOR STATE HABEAS CORPUS APPEALS (§2254) Case Name and Number: JOHN MERLO V DAN BOLDEN #86-1118 Person Reporting: Resvondent-Apoellant, Dan Bolden 1. Has this conviction(s) been previously litigated in the U. S. Courts? (x) Yes ( ) No. I£ so, give brief history. State appealed grant of habeas corpus in case No. 85-1145. This Court remanded to district court for consideration of procedural default. 2. Constitutional violation claims: name constitutional provision and briefly recite facts asserted as violative. &@- Due process clause of Fourteenth Amendment is claimed to have been violated by burden-shifting instruction - issue - does harmless error doctrine apply? G« 3. Have remedies been exhausted as to claims listed above? a. Yes ms . . GC. 4. Are there fact disputes concerning claims? () Yes kx No. If so, were they resolved by the District Court? a. At hearing? b. By review of state court record? c. By reference to Magistrate? i d. Neither, i.e., not resolved. S. Does the State argue that any constitutional violation was found harmless beyond reasonable doubt. I£ so, briefly state why and cite to appendix pages claimed as proof. Yes, harmless error is argued because the evidence of intent is conclusive. Consequently, an implied malice instruction could not affect the jury verdict. FORM 6CA-57 5/81 STATEMENT OF ISSUES PRESENTED I. WHETHER, ALTHOUGH VIOLATIVE OF SANDSTROM V MONTANA, 442 US 510 (1979), THE JURY INSTRUCTION WAS HARMLESS BEYOND A REASONABLE DOUBT IN THE INSTANT CASE? Respondent contends the answer should be, "Yes." Petitioner contends the answer is, "No." II. WHETHER SANDSTROM SHOULD BE APPLIED RETROACTIVELY TO JUDGMENTS OF CONVICTION THAT WERE FINAL WHEN SANDSTROM WAS DECIDED? Respondent contends the answer should be, "Yes." Petitioner contends the answer is, "No." III. WHETHER THE WAINWRIGHT V SYKES BAR SHOULD APPLY TO THIS CASE? Respondent contends the answer should be, "Yes." Petitioner contends the answer is, "No." - iii - STATEMENT OF FACTS Petitioner Merlo was convicted in thie wouet of first- degree murder, MCLA 750.316, in 1967 by a jury trial. Petitioner was sentenced to mandatory life imprisonment and has been incear- cerated since his conviction. The Michigan Court cf Appeals affirmed his conviction in an opinion which found the evidence of premeditated murder to be overwhelming. People v Merlo, 23 Mich App 694, 703 (1970). The Michigan Supreme Court CGenied Merlo's delayed application for leave to appeal on October 27, 1975. A 1977 application for writ of habeas corpus was denied. The jury instruction now in question was not challenged in any of these proceedings. In 1982, Petitioner first raised the Sandstrom viola- tion in a delayed motion for new trial. The motion was denied. In mid-1983, the Michigan Court of Appeals denied his delayed application for leave to appeal. The Michigan Supreme Court denied leave in late 1983. The United States District Court first granted Peti- tioner's writ of habeas corpus in January, 1985. The district court found the jury instruction violated Sandstrom v Montana, 442 US 510, 99 S Ct 2450, 61 L Ed 2d 39 (1979), and that this error was not harmless. On appeal, this Court, without ruling on harmless error, remanded to the district court for consideration of procedural default. The district court found the state courts had not relied on Petitioner's failure to object to preclude state court appellate review, and that Wainwright v Sykes, 433 US 73, 97 S Ct 2497, 53 L Ed 24 594 (1977), did not apply. The mn Ie = Gistrict court again granted Petitioner's application for writ of habeas corpus. ‘The Respondent appeals. At trial, Petitioner Merlo did not contest the fact that he shot his wife four times in the beauty shop where she was working. As defense counsel stated in a pretrial motion, "The facts are such that the shooting is hard to be denied, and the defense must be that there was no premeditation." (T, 99) Rose Marie Schmidt, a beauty shop customer, saw Peti- tioner Merlo arrive. (T, 111) Merlo and his estranged wife, Sharon, a hairdresser, went into the furnace room. (T, 113) The doors to the furnace room were open. Merlo and his wife were back there about five minutes or so. Rose Marie was five feet from the open doors but did not hear any sounds. (T, 114) Sharon came out and went to work on another customer. Merlo came out and shot Sharon. He fired two of the shots after Sharon was on the floor. (T, 115) Merlo walked out of the shop. His gait was normal. (T, 115) Another customer, Diane Brennan, also saw Merlo walk into the shop and go into the back room with his wife. (T, 160) Merlo and the victim were very quiet. (T, 164) Diane tried to listen to their conversation. (T, 181) She saw Merlo shoot his wife. Merlo was three to four feet from the victim, used a chrome pistol, and never said a word. (T, 166) Andrea Pojarski was a hairdresser in the shop. (T, 188) She saw Merlo come in, she exchanged casual greetings with him. (T, 189) Andrea heard Sharon ask Petitioner, “What are you doing here? Why don't you go home?" (T, 190) Andrea saw Sharon come about three weeks before the shooting. (T, 258) Dr. Richard E. Oleson testified that Sharon Merlo had been shot four times. One shot struck the midline front of her skull. It severed the brain stem, causing instant cCeath. (T, 151-152) One shot struck at the midline base of the neck at the upper end of the breast bone. It passed through the large artery from the heart and through the windpipe. (T, 151-152) Either of these shots would have been fatal. (T, 153) Two more shots struck in the front abdomen. There were corresponding exit wounds. (T, 151) Merlo was in the army for three years. (T, 419) About three weeks after the murder, Merlo was arrested in Philadelphia by a bank detective when Merlo attempted to cash a forged check. Merlo was carryinc the murder weapon when he was arrested. (T, 303, 315) Merlo confessed to the Philadeiphia authorities that he had shot his wife four times. He said she was working on a lady's hair when he fired. (T, 343-345) Diane Wilshire, Sharon's sister, testified that Merlo hit Sharon once and broke her glasses. Merlo was not barred from the house (where Sharon lived with her parents). Merlo always left the house quickly so he could avoid being served with the divorce papers. (T, 414) Merlo visited Diane in the hospital and showed her his gun. He told her he was not afraid of anyone. (T, 415) Petitioner Merlo testified that prior to the murder he saw his wife's car parked at her boyfriend's apartment. Merlo. - vii - smashed up the dashboare of his wife's car and pulled out the spark plug wires. (T, 451) He said he used a .38 caliber gun to smash the gauges and the bullet flew out ot the gun. He did not leave it on the seat. (T, 515) The day of the murder, he had eight shots and beers in an hour and went straight to the beauty shop. (T, 457) During his talk with Sharon in the back rocm of the beaut:’ shop, she called him a punk and spit in his face. It enraged him so he shot her. (T, 463-464) The boyfriend was part ot it. (T, 538) Several months after the murder, Petitioner telephoned the victim's mother. He said, "I'm not sorry I did it. I warned her ahead of time. I left a bullet in the front seat. I haven't shed a tear over it." (T, 553-554) Additional facts are stated in the body of the brief. - viii - b ARGUMENT I. ALTHOUGH VIOLATIVE OF SANDSTROM V MONTANA, 442 US 510 (1979), THE JURY INSTRUCTION WAS HARMLESS BEYOND A REASONASLE DOUBT IN THE INSTANT CASE. In Connecticut v Johnson, 460 US 73, 103 S Ct $69, 74 L EG 2d §23 (1983), the Court divided equally on the question cf 4 Sancstrom violation ever being harmless error. Four justices held that an affirmative concession of intent by the defendant was necessary to render a Sandstrom violation harmless. Justice Stevens never reached the issue of harmless error. He concurred in the opinion of the first four justices because it allowed the opinion of the Connecticut Supreme Court to stand. Four other justices held that conclusive evidence of intent can precluce reversal despite a Sandstrom iolation. The plurality stated that if a Sandstrom violation touches a disputed element of the crime charged, it renders the evidence on the issue irrelevant "because the jury may have relied upon the presumption rather than upon the evidence." Connecticut v Johnson, 74 L Ed 2d at 833. The dissent stated thac the proper inquiry was not “whether the presumption was unnecessary to the jury verdict ‘in the sense that the evidence was sufficient for a properly instructed jury to find that respondent acted with the requisite intent." . . . The proper inguiry is ‘whether the evidence was so dispositive of intent that a reviewing court can say -syond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption.'" Connecticut v Johnson, 74 L Ed 2d at 841, n 5. The approach used by the dissent is in accord with the approach usec by this Court, i.e., a Sandstrom violation is harmless error only if no rational juror could have concludéeé from the evidence of record that the defendant lacked the recui- site intent. Conway v Anderson, 698 F2d 282, 285 (CA 6, 1983) In the instant case, the opinion cf the district court which deals with harmless error does not show any evaluation of the evidence introduced by the prosecutor. There is no menticr _§ ee of any evidence that goes to intent. Instead, there is a recita- tion of Petitioner Merlo's defense. The district court's recita- tion includes statements by Merlo's trial lawyer and statements from Merlo's testimony. By ignoring the evidence of intent, the Gistrict court improperly applied the harmless error analysis mandated by Conway v Anderson, supra. Respondent knows that it is more difficult to have a Sandstrom violation held harmless in cases where the defense interposed goes to the element of intent. Burton v Bercman, 649 F2d 428 (CA 6, 1981), vacated and remanded on other grounds, 456 US 953, 102 S Ct 2026, 72 L Ed 2d 478 (1982). Rather than the approach used by the district court, a thorough examination of the evidence of intent in the instant case is necessary. The victim, Sharon Merlo, was a hairdresser in a beauty shop in Farmington Township, Michigan. On the eornias of January 6, 1967, Sharon Merlo, four customers, the beauty shop owner, another hairdresser, and the young son of one of the customers were in the shop. Petitioner, John Merlo, walked into the shop. When the owner asked him how he was, he said he was fine. He motioned to Sharon to go into the back room with him. The back room had two doors; both remained open while Petitioner was in the shop. Sharon folicwed Petitioner into the room, came back out shortly after that, lit a cigarette, and returned to the roon. Petitioner and Sharon were in the room about five minutes or so. During this time, they remainec close to the open doors. While they were in there, the owner went in the room twice anc the other hairdresser went in once. Neither of these two women nor any of the customers ever heard any loud talking or shouting. No one heard any slaps. Sharon came out of the back room, went to her customer, got behind the customer's chair, and put her hand on the custom- er's shoulder. By this time, Petitioner had walked out of the back room and was standing two feet in front of the customer's chair. His arm was extended before him. He fired four shots in all, two of them after Sharon was either on the floor or slumping down. Petitioner walked out of the shop, drove his rented car. to Cleveland where he abandoned it. (T, 345) He took a train to New York, changed trains, and arrived in Philadelphia less than 24 hours after shooting his wife. (T, 345) He checked into an inexpensive hotel. (T, 345) He was arrested about three weeks later in a Philadelphia bank while attempting to cash a forged check. (The reason for his arrest was not put before the jury.) Petitioner confessed to the Philadelphia police that he shot his wife four times. He was carrying the murder weapon when he was arrested. About two months before the murder, Sharon had filed for divorce. After this, Petitioner saw his wife's car parked near her boyfriend's apartment. He smashed up the gauges on the Gashboard and pulled out the spark plug wires. He left a 38° caliber bullet on the front seat as a warning. Petitioner testi- fied he always carried ten shells for his .38 in each pocket. (T,514 Also prior to the murder, Petitioner visited Sharon's sister, who was in the hespital after giving birth. Petitioner showed her his gun and said he was not afraid of anyone. Petitioner had moved back to his hometown of Niles, Ohio, after his wife filed for divorce. (T, 454) He sold the .38 in Niles and bought a .32. (T, 515) He rented a car, drove to Michigan after work on Friday evening, January 5, 1967. (T, 456) He stayed in a motel that night. (T, 456) Sometime between 10:30 and 11:00 the next morning, Petitioner shot his wife four times with the .32. One entry wound was at the midline front of her skull. It severed the brain stem, and caused instant death. A second entry would was at the midline base of the neck at the upper end of the breast bone. It passed through the large artery from the heart and through the windpipe. This shot would have been fatal by itself. There were two entry wounds to the front of the abdomen with corresponding exit wounds. Petitioner was familiar wtih guns -- he was in the army for three years. Petitioner testified he had consumed eight shots and beers before going into the beauty shop. (There was no testimony that he smelled of alcohol. There was no testimony that he staggered. His walk was described as normal.) Petitioner testi- fied that he and his wife argued in the back room, she slapped him and spit in his face. (No one heard any loud talking or shouting. No hairdryers were going. (T, 120) There’ was no testimony that anyone heard any slaps. No one saw any marks on Petiticner's face. No one saw any moisture on Petitioner's face.) Petitioner testified that when his wife callec him a punk and spit in his face, it enraged him so he shot her. (Tes- timony showed that when Petitioner caught his wife anc her boy- friend necking in a car, Petitioner stuck his head in the wincow to inquire how they were doing - T, 436 - and if they were having fun - T, 506.) Petitioner never said the amount of alcohol he consumed in any way affected his ability to reason. (It appar- ently did not affect his flight to Philadelphia, either.) Petitioner's confession to the Philadelphia authorities did not include any reference to arguing or to being slapped or spit upon. These are the facts that were presented to the jury. Respondent contends that no rational juror could have concluded that Petitioner lacked the requisite intent to murder. The San¥strom violation was harmless beyond a reasonable doubt. This Court recently found a Sandstrom violation to be harmless beyond a reasonable doubt in Logan v Abshire, 778 F2d 283 (CA 6, 1985). The defendant was convicted of armed robbery and first-degree murder for the fatal shooting of the store owner. His defense was intoxication. A jury instruction which violated Sandstrom was given at trial. This Court reviewed all the evidence. Defendant had made a confession to authorities where he admitted planning the robbery. This confession included his statement that he was not uncer the influence of drugs or alcohol. This Court noted that ‘ . v4 [Ata « & o Lrrnon! £ ae prsssn lid mw’ mte ¢A4t fri vel "To see eo SF2), Permtasiisus , “At sea’ st:e~w & ‘As Fr wae . ae ne tt ng fase ate’ gol Pie” 5 WE © Garde! sevg . emf 4 ae in’ 4 > 4 4» ; acoS S44 €e os 9445 mw © Lo toe , ° the case had been well tried and the evidence before the jury *. - proved a planned anc deliberate robbery during which the owner was fatally shot. This Court held the Sandstrom violation harm- less because no rational juror could have concluded that the Gefendant lacked the requisite intent. The same finding should be made in the instant case. This case was well tried. The evidence shows this was a planned, Geliberate murder. Petitioner had a .38 caliber pistol. He showed that pistol to his wife's sister. He left a .38 caliber bullet as a warning on his wife's car seat. Then he moved to Ohio, sold the .38, and he bought a .32. He rented a car and drove from Niles, Ohio to Detroit, Michigan after work on Friday evening. He shot his wife four times the next morning and eluded ne omitted any and all reference to what he would offer at trial as his defense. The testimony of the eyewitnesses did not corrobo- rate a single point of Petitioner's defense. No rational juror could have concluded that Petitioner lacked a premeditated and deliberated intent to kill. The Sandstrom violation committed at this trial was harmless beyond a reasonable doubt. In Francis v Franklin, 471 US > 2068 8B Ct » 88S & Ed 2d 344 (1985), the Court found an instruction which shifteé the burden of proof to the defendant to be violative of Sandstrom. The court below had found that the Sandstrom violation could not have been harmless error. The defense was accident, and the evidence of intent was not overwhelming. The Court affirmed the Court of Appeals on the harmless error question, noting that “(t]he primary task of this Court upon review of a harmless errcr determination by the Court of Appeals is to ensure that the court undertook a thorough inquiry and made clear the basis of its decision.” Francis v Franklin, 85 L Eé 2¢ at 361, n 10. It does not appear from the district court's opinion that the court "undertook a thorough incuiry” into the evidence. In addition to a thorough review of the evicence of intent, Respondent contends that the record should be examined in other respects as well. Whatever instructions were given to the jury should be reviewed and the Sandstrom instruction must be viewed in the context of all the instructions that were civen. Cupp v Naughten, 414 US 141, 94 S Ct 396, 38 L Ed 2é€ 368 (1973). The instruction given in the instant case which was found to violate Sancstrom is: The law presumes that every person, unless re.ieved by some disability as hereinafter mentioned, contemplates and intends the natural, ordinary, and usual consequences of his own voluntary acts, unless the contrary appears from the evidence, and if a man is shown by the evidence, beyond a reasonable doubt, to have killed another by an act, the natural and ordi- nary consequences of which would be tc produce death, then it will be presumec that death of th deceased was designed by the slayer, unless the facts and circumstances of the killing, or the evidence, create a reasonable doubt whether the killing was done purposely. When a man assaults another with, or uses upon another a deadly weapon, in such a manner that the natural, ordinary, probable use of such deadly weapon in such manner would be to take life, the law presumes that such person so assaulting intended to take life. A deadly weapon has been defined as an instrument reasonably calculated and likely to produce death, or serious bodily injury from the manner in which it is used. (T, 601-602) contends these underlined portions are rhetorically inconsistent with the constitutionally infirm portions of the instruction. Sandstrom, 62 L Ed at 47, n 2. These conditional clauses auger in favor of finding the Sandstrom violation to be hermless error beyond a reasonable doubt. A reasonable harmless error wana is simply to examine the degree to which intent was a significant issue in that case. Where intent, though technically in dispute, was clearly subsidiary to another claim of defense, the likelihood of harm from a Sandstrom instruction decreases dramatically. The omtrary requires a speculative assumption that a jury which rejects a hotly contested defense claim will then base conviction om ambiguous instructional language. In the instant case, one of the claimed defenses was intoxication. Under then applicable Michigan law the defense had to establish that, due to intoxication, the defendant either (1) was not capable of knowing he was doing wrong, or (2) lacked the power to resist the impulse to violate the law. People v Finley, 38 Mich 482, 483 (1878); People v Martin, 386 Mich 407, 418 (1972). Voluntary intoxication was not recognized as a defense in the sense that it could negate general criminal intent. Martin, supra, 484; People v Wright, 58 Mich App 735, 739 (1975). In this case, the defense sought to demonstrate that Petitioner killed in the heat of passion, and was unable to control his emotions and that because of his drunkenness, was unable to form the intent to kill another person. (T, 585-586, 589) The trial court instructed the jury on provocation and explained how provocation reduces murder to manslaughter. (T, 599-600) The trial court instructed the jury on intoxication anced its potential to preclude the formation of the necessary intent. (T, 600-601) Additionally, the trial court specifically in- structed the jury: If on the cther hand, you find the killing was done during a state of intoxication such that the Respondent was unable to form the intent required to commit the crime and under the instructions I have given you, then your verdict should be that he is not guilty. (T, 605) This instruction was given at the end of the trial court's instructions to the jury. It clearly addressed the defense's challenge to the prosecution's proofs of the requisite intent. These instructions on the Petitioner's defense also weigh in favor of finding the Sandstrom error harmless beyond a reasonable doubt. The instruction containing the Sandstrom violation should be considered along with the trial court's instructions defining first and second degree murder. After giving the common law definition of murder, the trial judge stated: If you come to the conclusion that the Respondent is guilty of murder, as I have defined it, it will be your duty to determine whether he is guilty of murder in the first or murder in the second degree. The difference between murder in the first degree and murder in the second degree is this: Murder in the first degree is a killing done wilfully and with premeditation, while in murder in the second degree the element of premeditation is absent. To convict the Respon- dent of murder in the first degree, it must appear that the killing was wilful and premedi- tated. It is not necessary that any definite period of time should have elapsed between the forming of such intention and the shooting which killed deceased, provided the shooting was premeditated and the Respondent acted wilfully. On the other hand, if the killing was done under a sudden impulse, without premeditation or previously formed intention, the offense would be murder in the second degree. As I have stated before, the difference between the two offenses is that, in murder in the first degree the element of premeditation is present, while in murder in the second degree it is not. T, 597-598) The jury was instructed that the burden of proof was cn the prosecutor to establish guilt beyond a reasonable dcubt. (T, 596) The jury was also instructed to consider the instructions as a whole and not to pick out one instruction and disregard the rest. Although these other instructions and the conditional clauses in the Sandstrom instruction may not "cure" the Sandstrom violation, Phillips v Rose, 690 F2d 79, 81 (CA 6, 1982), they do cut in favor of finding the violation to be harmless error beyond a reasonable doubt. In Francis v Franklin, supra, Justice Powell wrote a dissenting opinion. Justice Rehnquist, with whom the Chief Justice and Justice O'Connor joined, also dissented. Both dis- sents examined the challenged instruction in the context of all the instructions as a whole. Both dissents found that the other instructions prevented the challenged instruction from impermis- sibly ahifting the burden of proof to the defendant. The dis- senting opinions held the challenged instruction consequently did not violate Sandstrom v Montana, supra. In the instant case, the type of analysis used in the dissenting opinions of Francis v Franklin, supra, applied to the whole jury instruction in the instant case, will result in a finding that the Sandstrom violation was harmless beyond a rea- sonable doubt. The type of consideration necessary for a reviewing court to employ on a claim of harmless constitutional error is best set forth in Williams v Engle, 683 F2d 152, 153 (CA 6, 1982): Whether constitutional error in a given case is harmless beyond a reasonable doubt, within the definition of that phrase under Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 827-828, 17 L.Ed.2d 705 (1967), is not a question of mechanical application of sterile legal principles, but a sensitive judicial determina- tion made upon a review of the record in the trial court considered as a whole, and in the light of the realities of the trial. The deci- sion must be honestly made, with eyes open and with a full and mature appreciation of all of the circumstances which go to bear upon the ultimate verdict which was reached by the jury. The district court's opinion does not show a thorough inquiry into the facts of the instant case or a careful assess- ment of the jury instructions as a whole. The district court instead relied singly upon Petitioner's asserted defense. The focus must remain on whether any rational juror could have con- cluded that the defendant lacked the requisite premeditated, deliberated intent to kill. Chapman v California, 386 US 18, 23-24, 87 S Ct 824, 17 L Ed 2d 705 (1967); Conway v Anderson, supra. Given the overwhelming evidence of Petitioner's intent, the Sandstrom violation was harmless beyond a reasonable doubt. The district court decision should be reversed. wr yr | en ' tw / oi 7 van j Pi, po : RY we e, [nh J ad le a b rn a ! - il - 2 SANDSTROM SHOULD BE APPLIED RETROACTIVELY TO JUDGMENTS OF CONVICTION THAT WERE FINAL WHEN SANDSTROM WAS DECIDED. Petitioner was convicted of first-degree murder in 1967. One dozen years later, in 1979, the Court decided Sand- strom. This Circuit has given Sandstrom full retrcactive effect. ‘Burton v Bergman, 649 F2d 428 (CA §, 1981), vacated and remanded Gn Otner grouncs, 456 US 953, 102 S Ct 2026, 72 L E@ 24 478 (1982); Conway v Anderson, 698 F2d 282 (CA 6, 1983). The district court in the instant case applied Sandstrom retroac- tively. Other circuits which have addressed this issue have also applied Sandstrom retroactively. Ramirez v Jones, 683 F2¢4 7i2, 717 (CA 2, 1982); Guthrie v Warden, Maryland Penitentiary, 683 F2d 820, 823, n 3 (CA 4, 1982); Dietz v Solem, 640 F2d 126, 130 (CA 8, 1981). The Constitution does not compel or prohibit retroac- tive application of new constitutional rules. Linkletter Walker, 381 US 618, 629; 85 S Ct 1731; 14 L Ed 2d 601 (1965). The determination involves a balancing of three factors: 1) the purpose to be served by the new rule, 2) the extent of reliance on the old rule, and 3) the effect on the administration of justice of retroactive application of the new rule. Stovall v Denno, 388 US 293, 297, 87 S Ct 1967, 18 L Ed 2d 1199 (1967). Although Sandstrom relied on prior cases which analyzed presump- tions in light of the reasonable doubt standard, it represents neither a clean break with the past nor application of settled a precedent to a new factual situation.?} In Sandstrom, the Court found particular language in a jury instruction violated due process because there was a pos- sibility that a reasonable juror could have considered the instruction conclusive or burden-shifting. The goal of Sandstrom was to eliminate even the remote chance of juror misrepresenta- tion. In effect, Sandstrom represents a prophylactic rule designed to protect the reasonable doubt standard. The Court has recognized that the extent to which the purposes of a4 new constitutional cuts require its retroactive application are “necessarily a matter of degree". Johnson v New Jersey, 384 US 719, 729, 86 S Ct 1771, 16 L Ed 2a 882 (1966). Consequently, retroactivity is only appropriate where the former practice "presents substantial likelihood that the results of a number of those trials were factually incorrect", Williams v United States, 401 US 646, 655, n 7; 91 S Ct 1148; 28 L Ed 2d 388 (1971), “producing a clear danger of convicting the innocent". Tehan v United States ex rel Shott, 386 US 406, 416; 86 S Ct 459; “WSL Ea 24 453 (1966) Pie The possibility of unreliable results due to a Sand- strom instruction depends upon the unlikely occurrence that an; entire jury first perceives and then impermissibly interprets a! Single phrase in lengthy jury instructions. Even then, the instruction could only have significant impact where the issue of Where a rule of criminal procedure has been expressly declared to be “a clear break with the past," Desist v United States, 394 US 244, 248, 89 S Ct 1030, 22 L Ed 2d 248 (1969), it is almost invariably held non-retroactive. ar. intent is a close questio Mie cases where intent has not been placed at issue, a Sandstrom instruction cannot affect the fact-finding process. Sandstrom represents a situétion that is a ee ra“ fundamentally different in degree from previous cases where new rules implicating the reasonable doubt standard have received complete retroactive effect. In re Winship, 397 US 358; 90 § Ct 1068; 25 L Ed 2d 368 (1970), retroactively applied by Ivan v City of New York, 407 US 203; 92 S Ct 1951; 32 L Ed 2d 659 (1972); and Mullaney v Wilbur, 421 US 684, 95 S Ct 1881, 44 L Ed 2d 508 (1975), held retroactive in Hankerson v North Carolina, 432 US 233; 97 S Ct 2339, 53 L Ed 2d 306 (1977). In both Winship and Mullaney, the rule that the state had the burden of proving each and every element of the offense beyond a reasonable doubt "was designed to diminish the probability that an innocent person would be convicted". Hankerson v North Carolina, 432 US at 242. ee = aie eae as reseed : The difference in degree between the Sandstrom instruc- tion rule and the rule in Winship and Mullaney justifies giving substantial weight to the other two Stovall factors, i.e., the extent of reliance on the old rule and the effect of the retroac- tive application of the new rule on the administration of justice. Consideration of these factors cuts strongly against retroactive application of Sandstrom. United States v Spiegel, 604 F2d 961, 969 (CA 5, 1979). In People v Woods, 416 Mich 581 (1982), the Michigan 2 In the instant case, the evidence of intent is conclusive. No rational juror could have concluded the Petitioner lacked the requisite intent to kill. See Argument I, supra, and Argument Lic; 20oea, a Jace Supreme Court closely examined Sandstrom and its predecessors, Winship and Mullaney, to determine whether Sandstrom should be retroactively applied. The Court first found that Sandstrom differed in great degree from Winship and Mullaney because the "truth-finding-function is not substantially impaired in a Sand- strom situation." Woods, supra, 620. The court then looked at the other two Stovall factors and held: The last two factors in the Linkletter- Stovall approach are the reliance on the old standards and the effect on the administration of justice. In Michigan, instructions similar to those used in the immediate case have been approved by the Michigan Supreme Court, People v Medley, 339 Mich 486; 64 NW2d 708 (1954); People v Hodges, 196 Mich 546; 162 NW 966 (1917); and by the Court of Appeals, People v Nelson, 35 Mich App 368; 192 NW2d 682 (1971); People v McBride, 30 Mich App 201; 186 NW2d 70 (1971). Conceivably other cases may be construed as having disap- proved of such instructions; however, the exis- tence of unreversed cases approving of such instructions shows that lower courts probably relied on them. Given this reliance, the effect full retro- activity would have on Michigan's system of justice is unacceptable. Since this Court long approved of such instructions, the number of cases where this instruction was used is surely encrmous. Taking this into consideration with the purpose of the Sandstrom rule, we feel full retroactivity is unwarranted. Woods, supra, 620-621; footnotes omitted. The Court then limited the retroactivity of Sandstrom to those cases pending on direct appeal when Sandstrom was decided. Woods, supra, citing United States v Johnson, 457 US 537, 102 §S Ct 2579, 73 L Ed 2d 202 (1982). In the instant case, Petitioner was convicted in 1967. His conviction was affirmed by the Mich- igan Court of Appeals in his appeal by claim of right in 1970. His application for leave to appeal was denied by the Michigan = 1$ « Supreme Court in 1975. Sandstrom should not be retroactively applied to Petitioner. Such a retroactive application of Sand- strom puts a heavy burden upon the People of the State of Michigan to retry a murder case after a lapse of nearly twenty years. The balance of factors favors limited retroactivity at best. Sandstrom should not be retroactively applied to cases where the judgment and all direct appeals were final by the cate of Sandstrom's decision. III. THE WAINWRIGHT V SYKES BAR SHOULD APPLY TO THIS CASE. In United States v Sobell, 314 F2ed 314, 324-325 (CA 2, 1963), Judge Friendly pointed out: There is an inevitable attraction in the position that a person convicted of a serious crime should receive a new trial whenever a later decision of the highest court indicates that, with the benefit of hindsight, a different course should have been followed at his trial in any consequential respect. Yet for courts to yield broadly to that attraction not only would cause "litigation in these criminal cases [to] be interminable" [Sunal v Large,] 332 U.S. at 182 - «, but, in the sole interest of those already convicted of crime, would drastically impair the ability of the Government to discharge the duty of protection which it owes to all its citizens. - »« « When a defendant who has been tried fairly in accordance with the law as it was understcoc at the time seeks judicial relief because of new light on a point of law affecting an aspect of his trial, his request must be balanced against the rightful claims of organized society as reflected in the penal laws. Petitioner Merlo was convicted of first-degree murder n a well-tried case in 1967. In 1979, Sandstrom held that the instruction given at Merlo's trial was unconstitutional. In 1982, Petitioner raised this issue for the first time in a de- layed motion for new trial in the state trial court. He also raised it in delayed applications for leave to appeal in Michi- gan's appellate courts. Petitioner was unsuccessful with the Sandstrom issue until 1985, when his collateral attack resulted in a ruling that his then 18-year-old conviction had to be re- versed because of the Sandstrom violation. To reach the Sandstrom issue, the district court was required to determine whether the#® had been a state court proce- dural default. After examining the applicable law and the facts, 4 * , —/ eo : s4 aléni hee hy, € Mp law 7-3 lan Ad _— - 17 - the district court found: 1) Petitioner had not objected to the jury instructicn at trial; 2) the state prosecutor had not asserted the procedural default to the state courts and had addressecd only the merits; and 3) the state courts' rulings went to the merits as well. The district court then held that Wain- wright v Sykes, 433 US 72, 97 S Ct 2497, 53 L Ed 2d 594 (1977), did not apply. In Wainwright v Sykes, supra, the Court held that a state prisoner, barred by. procedural default from raising a constitutional claim on direct appeal, could not raise the issue on a collateral attack unless the prisoner could show cause and actual prejudice from the default. This cause and prejudice standard is not applied when the state courts overlook the proce- dural default and address the merits of the issue. Ccunty of Ulster v Allen, 442 US 140, 99 S Ct 2213, 60 L Ed 2a 777 (1979). The application of these rules to the instant case produces an absurd result. ,/ When Petitioner was tried in 1967, Nisa Sniitinenesen given was good law.? Petitioner had no legal reason to object to the instruction. It would have been iludi- crous to argue in state court that the Petitioner had failed to object to that which was then unobjectionable. Consequently, the State prosecutor did not argue that Petitioner's failure to object at trial to a well-settled standard instruction should : Sandstrom relies primarily upon two cases, both of which were decided after Petitioner was convicted. These cases are In re Winship, 397 US 358, 90 S Ct 1068, 25 L Ed 2d 368 (1970), and Mullaney v Wilbur, 421 US 684, 95 S Ct 1881, 44 L Ed 2d 508 (19735). preclude appellate review. Petitioner then mace a collateral attack without being required to show anything more tc the federal court than he had shown to the state courts. Under these circumstances, finality of criminal judgments anc noticns o: comity would be better served if the cause the prejudice stancarc would be applied. te a _— In United States v Frady, 456 US 152, 102 S$ Ct 1584, 71 L° Ed 2G 816 (1982), the Court “reaffirm(ed] the well-settlec principle that to obtain collateral relief a prisoner must clea: a significantly higher hurdle than would exist on direct appeal. Frady, 71 L Ed 2€ at 829. fFrady hac been convictec of first- degree murder in federai district court. On direct appeal, his a4 conviction was affirmed but his death sentence was reducec life imprisonment. Nineteen years and numerous post-conviction proceedings later, the Court of Appeals reversed his conviction on a collateral attack. fFrady challengec a jury instruction. Although the instruction accorded with standard law when it was given, the law had changed. The Supreme Court held that Fracy | id ~ c a | o was required to show cause and actual prejudice for his f to object at trial and to raise the issue on his direct appeal. Allowing the use of a lesser standard equates direct appeals with collateral actacks —Luseegee- —7 pieniprcered of got is inoue “ s 4 ore ‘—-s There is no limit on the time when a collateral attack may be made. The all-too-ready availability of col ateral celief undermines the finality of judgments. This situatig.: enccureges the view among criminal defendants and the law-abiding public that the criminal justice system in the United States is nothing , » ~ Dé ha . tom 4 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2387%3A2. Public record. Not legal advice.