Petitioners Brief — Rose v. Clark

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Supreme Court. U.S.

rts 8

No. 84-1974 DEC 21 1985

FREES ANIOL, UR.

CLERK

In The

Supreme Court of the United States

October Term, 1985

JIMMY CC, ROSE, WARDEN,

Petitioner,

Vs.

STANLEY BARHAM CLARK,

Respondent.

ON WRIT OF CERTIORARI TO

THE COURT OF APPEALS FOR THE

SIXTH CIRCUIT

—_

BRIEF FOR THE PETITIONER

ra’

W. J. Michael Cody

Attorney General of Tennessee

Counsel of Record

Kymberly Lynn Anne Hattaway

Assistant Attorney General

450 James Robertson Parkway

Nashville, TN 37219-5025

Phone: (615) 741-1613

Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

QUESTIONS PRESENTED

1. Whether Sandstrom error in the context of a man-

datory rebuttable presumption is subject to harmless error

analysis.

2. Whether the respondent’s defenses placed in is-

sue the element of malice so as to preclude harmless error

analysis.

3. Whether, in any event, the evidence of malice is

overwhelming and so dispositive of intent as to render

the Sandstrom error harmless.

TABLE OF CONTENTS

Opinions Below

Jurisdiction

Constitutional and Statutory Provisions

Statement ‘

B. The Trial |

C. The Jury Instructions __.

D. The Verdict and Subsequent Proceedings

Summary of Argument

Argument:

I. Sandstrom Error in the Context of a Man-

datory Rebuttable Presumption is Subject

to Harmless Error Analysis

Il. The Respondent’s Defenses Did Not Place in

Issue the Element of Malice so as to Pre-

clude Harmless Error Analysis

Ill. In Any Event, the Evidence of Malice is

Overwhelming and so Dispositive of Intent

as to Render the Sandstrom Error Harmless

Conclusion

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TABLE OF AUTHORITIES

CASES:

Bram v. United States, 168 U.S. 532 (1897) 10

Brown v. United States, 411 U.S. 223 (1973) 20. 12

Burton v. State, 217 Tenn. 62, 394 S.W.2d 873 (1965). 24

Chambers v. Maroney, 399 U.S. 42 (1970) 0. 12

Chapman v. California, 386 U.S. 18 (1967) _..11, 14, 16, 26

Claiborne v. State, 555 S.W.2d 414 - Tenn. Crim.

App. 1977) . i ican i

Connecticut v. Johnson, 460 U.S. 73 (1983) 0. passim

Conway v. Anderson, 698 F.2d 282 (6th Cir. 1983),

cert. denied 462 U.S. 1121 (1983) 00 ae

Cupp v. Naughten, 414 U.S. 141 (1973) 0.14, 16

Davis v. Kemp, 752 F.2d 1515 (11th Cir. 1985),

cert. denied Kemp v. Davis, — U.S. —, 105

Oo 19

Fahy v. Connecticut, 375 U.S. 85 (1967) 10

Fox v. State, 1 Tenn. Crim. App. 308, 441 S.W.2d

EE 26

Francis v. Franklin, 471 U.S. —, 105 S.Ct. 1965

CL Ee 13, 15, 16, 17

Gideon v. Wainwright, 372 U.S. 335 (1965) 0. 11

Graham v. State, 547 S.W.2d 531 (Tenn. 1977) 000.21

Hamling v. United States, 418 U.S. 87 (1974). 15

Harrell v. State, 593 S.W.2d 664 (Tenn. Crim. App.

1979) 22, 24

Harrington v. California, 395 U.S. 250 (1969)_12, 15, 17, 26

Kotteakos v. United States, 328 U.S. 750 (1946) a 6

TABLE OF AUTHORITIES—Continued

Page

Lester v. State, 212 Tenn. 338, 370 S.W.2d 405

(1963) 24

McDonough Power Equipment, Inc. v. Greenwood,

464 U.S. 548 (1984) 13

McGuinn v. Crist, 657 F.2d 1107 (9th Cir. 1981),

cert. denied 445 U.S. 990 (1982) RAE

Milton v. Wainwright, 407 U.S. 371 (1972)... 12, 25, 26

Moore v. Illinois, 434 U.S. 220 (1977) ....... 12

Morrissette v. United States, 342 U.S. 246 (1952)............ 15

Parker v. Randolph, 442 U.S. 62 (1979) oo. 25

Pyburn v. State, 539 S.W.2d 835 (Tenn. Crim. App.

1976) 23

Sandstrom v. Montana, 442 U.S. 510 (1979) 0. passim

Schneble v. Florida, 405 U.S. 427 (1972) 26

Sparkman v. State, 469 S.W.2d 692 (Tenn. Crim.

App. 1970) 24

State v. Croscup, 604 S.W.2d 69 (Tenn. Crim. App.

1980) . 6

State v. Johnson, 541 S.W.2d 417 (Tenn. 1976)................ 26

State v. McKinney, 603 S.W.2d 755 (Tenn. Crim.

App. 1980) 23

State v. Sandstrom, 603 P.2d 244 (Mont. 1979) ............. 16

State v. Taylor, 645 S.W.2d 759 (Tenn. Crim. App.

UII cccrensesiereiontelatitcila etter eae 6, 25

Stone v. Powell, 428 U.S. 465 (1976) od

Strickland v. Washington, 466 U.S. 668 (1984) 000... «11

Thomas v. State, 201 Tenn. 645, 301 S.W.2d 358

(1957) PS TN 24

TABLE OF AUTHORITIES—Continued

. Page

Tumey v. Ohio, 273 U.S. 510 (1927) 10, 11

Turner v. United States, 396 U.S. 398 (1970) 00. 16

United States v. Frady, 456 U.S. 170 (1982) 20, 21

United States v. Hastings, 461 U.S. 499 (1983). 12, 13

United States v. MacDonald, 435 U.S. 850 (1978)........... 11

United States v. Morrison, 449 U.S. 361 (1980) 18

United States v. Nobles, 422 U.S. 225 (1975) 000 14

United States v. United States Gypsum Co., 438

_ US. 422 (1978) 15

United States v. Winter, 663 F.2d 1120 (1st Cir.

1981), cert. denied 460 U.S. 1011 (1983) 20000 . 19

CONSTITUTION AND STATUTES:

Fourteenth Amendment, United States Constitution... 2

Tennessee Code Annotated Section 39-2401 (1975

Replacement) . 2

Tennessee Code Annotated Section 39-2402 (1975

Replacement) 3

Tennessee Code Annotated Section 39-2403 (1975

Replacement) - 3

MISCELLANEOUS:

Kavanaugh, Improvement of Administration of

Criminal Justice by Exercise of Judicial Power,

eT EI ee ee ne 12

W. LaFave & A. Scott. Handbook on Criminal Law

(REESE RES eS eke rth ea ere ee NER 25

Tennessee Pattern Jury Instructions (1978) 200000... 21

R. Traynor, The Riddle of Harmless Error (1970)..10, 12

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No. 84-1974

ra’

“’

In The

Supreme Court of the United States

October Term, 1985

— |

JIMMY C. ROSE, WARDEN,

Petitioner,

vs.

STANLEY BARHAM CLARK,

Respondent.

_—

“

ON WRIT OF CERTIORARI TO

THE COURT OF APPEALS FOR THE

SIXTH CIRCUIT

— i>.

BRIEF FOR THE PETITIONER

OPINIONS BELOW

The opinion of the court of appeals is unreported and

is reproduced in the Appendix to the Petition for Writ of

Certiorari. (Pet. App. A-1—A-6). The opinion of the

district court is unreported and is reproduced in the Ap-

pendix to the Petition for Writ of Certiorari. (Pet. App.

A-7—A-21). The opinion of the Tennessee Court of Crim-

inal Appeals is unreported and is reproduced in the Ap-

pendix to the Petition for Writ of Certiorari. (Pet. App.

A-23—A-39).

i>.

JURISDICTION

The judgment of the court of appeals was entered on

April 1, 1985. The petitioner’s petition for a writ of cer-

tiorari was filed on May 30, 1985, and was granted on

October 7, 1985.' This Court’s jurisdiction is invoked under

28 U.S.C. § 1254(1).

—_ *

. A

CONSTITUTIONAL AND STATUTORY PROVISIONS

The Fourteenth Amendment to the United States Con-

stitution provides, in pertinent part:

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the state wherein they reside.

No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any state deprive any per-

son of life, liberty, or property, without due process

of law; nor deny to any person within its jurisdiction

the equal protection of the laws.

_.._ Tennessee Code Annotated Section 39-2401 (1975 Re-

placement) provided :

If any person of sound memory and discretion, un-

lawfully kills any reasonable creature in being, and

'The grant of the petition was limited to Question 2.

under the peace of the state, with malice aforethought,

either express or implied, such person shall be guilty

of murder.

Tennessee Code Annotated Section 39-2402 (1975 Re-

placement) provided, in pertinent part:

An individual commits murder in the first degree if:

(1) He commits a willful, deliberate, malicious

and premeditated killing or murder.

Tennessee Code Annotated Section 39-2403 (1975 Re-

placement) provided:

All other kinds of murder shall be deemed murder in

the second degree.

L».

“

STATEMENT

' The respondent, Stanley Barham Clark, was indicted

by the Rutherford County, Tennessee Grand Jury on two

(2) counts of first degree murder in the slayings of Joy

Faulk and Charles Browning. Following a jury trial, the

respondent was convicted of the first degree murder of

Faulk; punishment was assessed at life imprisonment.

The respondent was also convicted of the second degree

murder of Browning; punishment was assessed at ten (10)

years imprisonment.

The respondent did not challenge the malice instrue-

tions in the trial court. However, on appeal to the Ten-

nessee Court of Criminal Appeals, the respondent chal-

lenged these instructions on the ground that they imper-

missibly shifted the burden of proof on the element of

malice. The state appellate court rejected the respondent’s

contention and affirmed the jury’s verdict. The Supreme

Court of Tennessee subsequently denied the respondent’s

application for permission to appeal.

The respondent thereafter filed a petition for a writ of

habeas corpus in the United States District Court for the

Middle District of Tennessee, alleging that the malice in-

structions violated due process of law pursuant to Sand-

strom v. Montana, 442 U.S. 510 (1979). The district court

agreed with the respondent’s contention and granted a

writ of habeas corpus ordering the state of Tennessee to

retry the respondent within ninety (90) days or release

him. This judgment was affirmed by the United States

Court of Appeals for the Sixth Circuit.

A. The Offenses

On the night of December 30, 1978, Joy Faulk and

Charles Browning were shot to death while seated in

Browning’s truck in a rural area of Rutherford County,

Tennessee? Faulk’s young daughters, Mitzi and Michelle,

were present at the time of the slayings and were found

shortly thereafter wandering along a roadway in search of

assistance. (J.A. 43). That night and at trial, Mitzi

identified the respondent as the individual responsible for

committing the homicides. (.J.A. 33-35, 37-38, 40).

2Browning was shot once in the head from a distance of six to

eight inches; Faulk was shot three times (twice in the head and

once in the shoulder) from a distance of less than eighteen

inches. (J.A. 23, 25, 28-29, 31-33, 35, 76-79).

The discovery of four .25 caliber shells in the interior of the

truck established that the perpetrator held the weapon inside

the cab while shooting the victims. (J.A. 19, 20-21, 27-28).

Prior to the shootings, the respondent was observed

pursuing Browning’s truck some ten miles from the homi-

cide scene. (J.A. 14-15). After the discovery of the

bodies, the respondent was apprehended in the vicinity of

his home following a high speed chase. (J.A. 10-13). The

weapon used to commit the homicides, a Targa Excam .25

caliber automatic pistol, was later discovered along the

route taken by the respondent as he fled the police. (J.A.

21-22).

Investigation showed that the respondent had bor-

rowed the murder weapon from Terry Hill some two weeks

before the slayings, untruthfully telling Hill that his own

gun had been stolen. (J.A. 74-75, 80). Although he was

observed in possession of the murder weapon the week of

the homicides, the respondent later denied having it in his

possession at that time. (J.A. 72-73).

Further investigation revealed that Faulk and the re-

spondent had been involved in a stormy relationship prior

to Faulk severing their relationship during the Fall of

1978. (J.A. 48-49). Following their estrangement, the

respondent threatened on at least six occasions to kill

Faulk if he ever caught her with another man. (J.A. 48,

50-51, 56, 58, 61). Suspecting that Faulk was dating

Browning, the respondent endeavored several days before

the homicides to gain information regarding the couple’s

relationship ‘‘before [he] got mad and flew off the handle

and did what [he] had to do.’’ (J.A. 59).

B. The Trial

The primary issue litigated at trial was the identity

of the perpetrator of the offenses. Although the direct

and circumstantial evidence conclusively established that

the respondent was the guilty party, the respondent sought

to prove that Sam Faulk (Joy Faulk’s former husband)

or Shirley Browning (Charles Browning’s wife) actually

committed the crimes.

Given the overwhelming evidence showing his parti-

cipation in the slayings, the respondent (who did not tes-

tify) also attempted to establish that he was temporarily

insane at the time of the commission of the offenses; that

he was voluntarily intoxicated at the time of the commis-

sion of the offenses; and that he suffered from amnesia

prior to and following the commission of the offenses.’

C. The Jury Instructions

After instructing the jury that it ‘‘should not single

out one or more of [the instructions] to the exclusion of

another or others but should consider each one in light of

and in harmony with the others’’ (J.A. 182), the trial

court gave extensive instructions pertaining to the state’s

burden of proof, the defendants’ presumption of innocence,

and the definition of reasonable doubt. (J.A. 182-184,

186-187, 190, 193).

The trial court also instructed the jury in reference

to the elements of first degree murder, second degree mur-

der, voluntary manslaughter, and involuntary manslaugh-

ter. (J.A. 182-189). In addition to defining the element

3The respondent's jury instruction requests on the mitigating

defense of diminished capacity were denied, as such a defense

is not cognizable under state law. See State v. Taylor, 645 S.W.

2d 759, 762-763 (Tenn. Crim. . 1982); State v. Croscup, 604

S.W 2d 69, 72 (Tenn. Crim. App. 1

of malice necessary to sustain a conviction for first degree

murder or second degree murder (J.A. 186-188), the trial

court gave the following offending instructions (J.A. 187-

188):

All homicides are presumed to be malicious in the

absence of evidence which would rebut the implied

presumption. Thus, if the State has proven beyond

a reasonable doubt that a killing has occurred, then it

is presumed that the killing was done maliciously. But

this presumption may be rebutted by either direct or

circumstantial evidence, or by both, regardless of

whether the same be offered by the Defendant, or

exists in the evidence of the State.

Likewise, if a deadly weapon is handled in a manner

so as to make the killing a natural or probable result

of such conduct, then there is raised a presumption of

malice sufficient to support a conviction of murder

in the second degree unless it is rebutted by ther

facts and circumstances. A deadly weapon is any

weapon or instrument which from the manner in which

it is used or attempted to be used is likely to produce

death or cause great bodily injury.

The question of whether the alleged killing was done

with malice is for you to determine from the entire

case, and you should look to all of the facts and cir-

cumstances developed by the evidence to determine

whether the State has proven beyond a reasonable

doubt the existence of malice. If you have a reason-

able doubt as to whether the alleged killing was done

with malice, then the Defendant cannot be guilty of

murder in the second degree and you must acquit him

of that offense.

The trial court completed its charge by instructing

the jury on the matters of insanity (J.A. 190-193), volun-

tary intoxication (J.A. 193-195), and amnesia (J.A. 195).

D. The Verdict and Subsequent Proceedings

After due deliberation, the jury returned a verdict

finding the respondent guilty of the first degree murder of

Joy Faulk and assessed punishment at life imprisonment.

The jury also returned a verdict finding the respondent

guilty of the second degree murder of Charles Browning

and assessed punishment at ten (10) years imprisonment.

The respondent challenged the malice instructions at

the first instance in the Tennessee Court of Criminal Ap-

peals, which court held the instructions did not violate the

rule of Sandstrom. (Pet. App. A-37—A-39). The court

further held that the respondent could not have been pre-

judiced by the instructions in view of his defenses of non-

participation and insanity. (Pet. App. A-39).

The respondent successfully sought relief in the dis-

trict court upon the court’s determination that the malice

instructions were unconstitutional under Sandstrom.

(Pet. App. A-13—A-15). Relying upon its perception of

the defenses raised by the respondent, the district court

found that the element of malice was a disputed issue at

trial and thus refused to find the error harmless beyond

a reasonable doubt. (Pet. App. A-16—A-20).‘

On appeal from the judgment of the district court, the

court of appeals agreed with the district court’s dete: mi-

nation as to the constitutionality of the malice instructions.

(Pet. App. A-3—A-4). Finding that the respondent as-

‘The district court found that the respondent presented mens

rea defenses of insanity, “mental-iliness and voluntary intoxi-

— — intoxication, and amnesia. (Pet. App. A-16-

serted defenses which established a ‘ ‘‘lack of mens rea’ ’’

(Pet. App. A-5), the appellate court declined to reverse

the lower court’s judgment ‘‘despite the substantial evi-

dence of petitioner’s guilt.’’ (Pet. App. A-6).5 The court

indicated, however, that were it not for its prior precedent

it would inquire as to whether the evidence of malice was

‘** ‘so dispositive of intent ... that the jury would have

found it unnecessary to rely on the presumption’ ”’ in de-

termining whether the erroneous instructions prejudiced

the respondent. (Pet. App. A-6).

-O-

SUMMARY OF ARGUMENT

A basic principle of modern American law provides

that a defendant is not entitled to a reversal of the trial

court’s judgment unless he can show not only the existence

of an error, but also some likelihood that the error was

prejudicial to him. It is therefore settled that appellate

courts reverse, even in cases of constitutional error, only

upon finding a sufficient probability that the result would

have been different but for the error.

In view of the Court’s disposition of our petition for

a writ of certiorari, we do not appear before the Court

to relitigate the issue of whether the jury instructions

pertaining to the element of malice violate the principles

set forth in Sandstrom and its progeny. Nevertheless, we

‘The court of appeals characterized the respondent's defenses

as “mental illness and intoxication” and temporary insanity.

(Pet. App. A-5).

‘The grant of the petition was limited to Question 2.

believe it indisputable that the erroneous instructions

could not possibly have affected the jury’s finding of the

existence of malice in the setting of this particular case.

We therefore submit: (1) that the jury instructions

which incorporate a mandatory rebuttable presumption on

the element of malice are subject to analysis under the

harmless error doctrine; (2) that the existence of malice

was not placed in dispute by the defenses raised by the re-

spondent; and (3) that, in any event, the evidence of

malice is overwhelming and so dispositive of the respond-

ent’s intent that the Court can confidently conelude that

the erroneous instructions did not reasonably contribute

to the jury’s verdict.

1. Modern American jurisprudence fully embraces

the concept of harmless error in both constitutional and

non-constitutional frameworks.’ In Fahy v. Connecticut,

375 U.S. 85 (1967), the Court articulated for the first time

7Until recent decades, many appellate courts reversed convic-

tions for trivial errors without to the doctrine of harm-

consistently

resulted in automatic reversals. See, e.g, Tumey v. Ohio, 273

U.S. 510, 535 (1927); Bram v. United States, 168 U.S. 532 (1897).

the rule that constitutional error may be deemed non-

prejudicial and set forth the applicable test as ‘‘whether

there is a reasonable probability that the evidence com-

plained of might have contributed to the conviction.’’ Jd.

at 86-87.

Chapman v. California, 386 U.S. 18 (1967) repre-

sents the Court’s initial application of this rule of harm-

less error in a constitutional setting. There, the Court

rejected the argument that ‘‘all federal constitutional er-

ror, regardless of the facts and circumstances, must always

be deemed harmful.’’ Jd. at 21. While recognizing that

‘‘there are some constitutional rights so basic to a fair

trial that their infraction can never be treated as harmless

error’’ id. at 23,8 the Court affirmed its belief that in the

context of a particular case some error may be deemed to

have had no effect, or an insubstantial effect, upon the

validity of the jury’s verdict. The relevant inquiry thus

focuses upon whether the reviewing court may confidently

determine ‘‘beyond a reasonable doubt that the error com-

8Such errors are generally of a fundamental nature and may be

viewed as the functional equivalent of the total denial of trial.

See, e.g., Gideon v. Wainwright, 372 U.S. 335 (1965) (denial of

right S counsel); Tumey v. Ohio, supra (denial of impartial

tribunal).

Other errors mandating automatic reversal are those whose

prejudicial impact is inherently indeterminable on review or

prejudicial nature is established by the very existence

of error. See, e.g., Strickland v. Washington, 466 U.S. 668

(1984) (denial of effective assistance of counsel); United States

v. ‘omen 435 U.S. 850 (1978) (denial of right to speedy

trial).

plained of did not contribute to the verdict obtained.’’ Jd.

at 24°

The harmless error doctrine is now so firmly en-

trenched in our system of criminal! justice that ‘‘it is the

duty of a reviewing court to consider the trial record as a

whole and to ignore errors that are harmless, including

most constitutional errors.’’ United States v. Hastings,

461 U.S. 499, 509 (1983) (emphasis added). See also, e.g.,

Brown v. United States, 411 U.S. 223, 230-232 (1973);

Harrington v. California, 395 U.S. 250, 254 (1969).

Indeed, when courts ignore this duty and ‘‘fashion

rules whose violations mandate automatic reversals, they

‘retrea(|t] from their responsibility, becoming instead

‘‘impregnable citadels of technicality.’’’’’ /lastwmg, 461

U.S. at 509, quoting R. Traynor, The Riddle of Harmless

Error 14 (1970), and Kavanaugh, J/mprovement of Admin-

istration of Criminal Justice by Exercise of Judicial Pow-

er, 11 A.B.A.J. 217, 222 (1925).

The affirmative obligation imposed upon the courts

to apply the harmless error rule constitutes a recognition

that important considerations counsel against the reversal

of a conviction where the defendant has not been demon-

*The Court has consistently applied this standard to determine

whether errors of constitutional magnitude may be considered

harmless in view of the weight of the evidence against the

accused. See, e.g., Moore v. Illinois, 434 U.S. 220, 232 (1977)

(admission of identification evidence in violation of right to

counsel); Milton v. Wainwright, 407 U.S. 371, 377 (1972) (ad-

mission of confession in violation of right to counsel); Chambers

v. Maroney, 399 U.S. 42, 52-53 (1970) (admission of evidence

obtained in violation of Fourth Amendment); Harrington. v.

California, 395 U.S. 250, 254 (1969) (admission of confession

in violation of right to confrontation).

——— -

—_——s=e

strably deprived of his right to a fair and accurate adjudi-

cation of guilt or innocence. Such considerations include

the need to prevent the duplication of a proceeding which

was not adversely affected by the error, see McDonough

Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 553,

555 (1984) ; Hasting, 461 U.S. at 509, and the desire to pro-

mote the publie’s ‘‘{respect] for the law and the adminis-

tration of justice,’’ Stone v. Powell, 428 U.S. 465, 491

(1976), without according the unharmed defendant a wind

fall.

2. Despite the general applicability of the harmless

error doctrine to constitutional violations, the Court has

yet to definitively address the issue of whether “an errone-

ous charge that shifts the burden of persuasion to the de-

fendant on an essential element of an offense,” Francis v.

Franklin, 471 U.S. —, 105 S.Ct. 1965, 1977 (1985), may be

deemed non-prejudicial in the setting of a particular case."

We submit that an erroneous mandatory rebuttable

presumption on intent should not be classified with error

so basic to a fair trial as to require automatic reversal,

regardless of the strength of the proof establishing the

element of intent and regardless of the factual and legal

significance of the defendant’s defense. Rather than view-

"The Court has made clear that in terms of analyzing the con-

stitutionality of a given instruction, no distinction exists be-

tween a conclusive presumption on intent and a mandatory

rebuttable presumpton on intent. See Francis, 471 U.S. —, 105

S.Ct. at 1972-1973; Sandstrom, 442 U.S. at 519, 524. However,

this threshold inquiry is not dispositive of the issue of whether

a constitutionally defective mandatory rebuttable presumption

may be subject to the rule of harmless error. Francis, 471 U.S.

me $.Ct. at 1977, citing Connecticut v. Johnson, 460 U.S.

73 (1983).

ing the error in isolation, the Court should apply the harm-

less error doctrine in order to promote the essential pur-

pose of a criminal trial, i.e., the determination of the de-

fendant’s guilt or innocence. See United States v. Nobles,

422 U.S. 225, 230 (1975).

The Court has previously indicated a willingness to

apply the rule of harmless error to defective jury instrue-

tions in suggesting that the impact of the error must be

evaluated in the context of the case and “not singled out

and standing alone, but in relation to all else that hap-

pened.” Kotteakos v. United States, 328 U.S. 750, 764

(1946). Indeed, where a particular instruction is found to

be wanting, the reviewing court is under a duty to exam-

ine the record and determine “whether the ailing instruc-

tion by itself so infected the entire trial that the resulting

conviction violates due process.” Cupp v. Naughten, 414

U.S. 141, 147 (1973).

By focusing upon the entire record, this approach to

jury instruction error comports with the Chapman analysis

which is used to determine whether the error is prejudi-

cial. As expressed by Mr. Justice Rehnquist, writing for

the Court in Cupp, 414 U.S. at 141:

[A] judgment of conviction is commonly the culmina-

tion of a trial which includes testimony of witnesses,

argument of counsel, receipt of exhibits in evidence,

and instructions of the jury by the judge. Thus not

only is the challenged instruction but one of many such

instructions, but the process of instruction itself is

but one of several components of the trial which may

result in the judgment of conviction.

While a four-Justice plurality of the Court has opined

that application of the harmless error doctrine is pre-

cluded in the context of a conclusive presumption on in-

tent due to the possibility that the jury may have relied

solely upon the presumption and not the evidence in reach-

ing their verdict, Connecticut v. Johnson, 460 U.S. 73, 84-

87 (1983), this possibility is non-existent where, as here,

the jury was instructed to “look to all the facts and cir-

cumstances developed by the evidence to determine whether

the State has proven beyond a reasonable doubt the ex-

istence of malice.” (J.A. 188).'"2 Thus, as in other set-

tings involving instructional error, the impact of the Sand-

strom-deficient instructions is determinable upon review

of the entire record. See, e.g., Hamling v. United States,

"The Johnson dissent soundly questioned the wisdom of the

plurality’s blanket dismissal of the application of the harmless

error rule to the instruction under attack, noting that “(i)n ev-

ery harmless-error case, there is always the possibility that the

error affected the jury's verdict.” Johnson, 460 U.S. at 97 n. 5

(Powell, J., dissenting). The refusal of the dissent to accept the

argument that the mere possibility that the jury disregarded

the evidence of intent rendered its verdict subject to automatic

reversal is consistent with the very nature of harmless error

analysis. See Harrington, 395 U.S. at 254 (rejecting the argu-

ment that “we must reverse if we can imagine a single juror

whose mind might have been made up because of [the er-

roneously admitted] confessions and who otherwise would have

remained in doubt and unconvinced’).

2By its very terms, the subject instructions contrast sharply with

the infirm instructions found in United States v. United States

Gypsum Co., 438 U.S. 422, 430 (1978) and Morrissette v. United

States, 342 U.S. 246, 249 (1952), where the element of intent

was expressly and unequivocally removed from the jury’s con-

sideration, and is clearly distinguishable from the Johnson in-

struction which was viewed by a four-Justice plurality as amount-

ing to a directed verdict on the issue of intent. Johnson, 460

U.S. at 84-85.

Although this distinction would not appear to salvage the in-

structions’ constitutionality, it does provide guidance for deter-

mining what harm, if any, may have resulted to the respondent

under the facts of this case.

418 U.S. 87, 108 (1974) ; Cupp, 414 U.S. at 146-147; Turner

v. United States, 396 U.S. 398, 421 (1970).

Despite its declination to apply the rule of harmless

error to erroneous presumptive intent instructions, see

Francis, 417 U.S. —, 105 S.Ct. at 1976 n. 8 (“when there

exists a reasonable possibility that the jury relied on an

unconstitutional understanding of the law in reaching a

guilty verdict, that verdict must be set aside”); Johnson,

460 U.S. at 85-86 (where “the jury may have failed to con-

sider the evidence of intent, a reviewing court cannot hold

that the error did not contribute to the verdict”), the

Court’s disposition of these cases suggests otherwise.” In

Francis, the Court deferred to the Eleventh Cireuit Court

of Appeals’ determination that the error was not harmless

under the facts appearing in the record. Francis, 471 U.S.

—, 105 S.Ct. at 1977. It went further, however, and inde-

pendently concluded that “the evidence of intent was far

from overwhelming” so as to preclude reversal. Jd. Sim-

ilarly, the Johnson plurality declined to disturb the state

Supreme Court’s refusal te evaluate the erroneous jury

instruction for harmlessness, preferring to “leave it to the

lower courts to determine whether, by raising a particular

defense or by his other actions, a defendant himself has

Significantly, the Sandstrom Court did not reject the concept

that an unconstitutional jury instruction can constitute harmless

error under Chapman and its progeny. The Court chose in-

stead to permit the Montana Supreme Court to make such a

determination. Sandstrom, 442 U.S. at 526-527. On remand,

the state court determined that the error was prejudicial.

State v. Sandstrom, 603 P.2d 244, 245 (Mont. 1979).

taken the issue of intent away from the jury.” Johnson,

460 U.S. at 87."

Having established that the mandatory rebuttable pre-

sumption under consideration here is subject to applica-

tion of the harmless error doctrine, we submit that the

Court should undertake an independent evaluation of the

effect of the instructions.’ While the Court has indicated

a tendency to defer to the lower courts in reference to the

applicability of harmless error, see Francis, 471 U.S. —,

105 S.Ct. at 1977; Johnson, 460 U.S. at 87, 102; Sandstrom,

442 U.S. at 510, 526-527; but see Harrington, 395 U.S. at

254 (the Court’s judgment as to whether constitutional

error is harmless must be based on its own review of the

record), the Court conducted its own evaluation of the

proof in Francis and stated that its ‘‘primary task’’

in reviewing a lower court’s harmless error determination

“is to insure that the court undertook a thorough inquiry

and made clear the basis of its decision.” Francis, 471

U.S. —, 105 S.Ct. at 1977 n. 10.

It is submitted that the court of appeals and the dis-

trict court inaccurately characterized the respondent’s

“The four dissenting Justices would have remanded for a harm-

less error determination by the Connecticut Supreme Court,

suggesting that “there may be many cases in which the facts

and circumstances so conclusively establish this element [of

intent] that the instruction is wholly superfluous.” Johnson,

460 U.S. at 96 (Powell, |., dissenting).

Former Chief Justice Traynor of the California Supreme Court

has stated that the Court's “responsibility to determine whether

a right guaranteed by the United States Constitution has been

denied necessarily encompasses the ibility of determin-

ing the consequences that flow from Gediens Gnd

Se nee © caer & eee Oe < ”

raynor at 40.

defenses as those defenses are cognizable under state evi-

dentiary law."* As a result, the lower federal courts’ an-

alysis of the applicability of the harmless error doctrine

to this particular case are incorrect and further review by

this Court is appropriate to insure a thorough and accu-

ate evaluation of the defective instructions in relationship

to the setting of the case.

Il. THE RESPONDENT'S DEFENSES DID NOT

PLACE IN ISSUE THE ELEMENT OF MAL-

ICE SO AS TO PRECLUDE HARMLESS ER-

ROR ANALYSIS.

1. Error, even of a constitutional magnitude, does

not generally warrant setting aside a conviction absent

a demonstrable affect upon the outcome of the trial. See

United States v. Morrison, 449 U.S. 361, 364-365 (1980).

A four-Justice plurality of the Court has identified cer-

tain “rare” situations, such as where the defense relies

upon alibi, insanity or self defense to establish innocence

or non-culpability, in which a Sendstrom-poor instruction

may permit the reviewing court to conclude that the error

was harmless beyond a reasonable doubt. Johnson, 460

The court of appeals found that “ other defenses,” the

respondent presented defenses of illness and intoxica-

tion (i.e., diminished capacity) and temporary insanity. (Pet.

App. at A-5). The district court characterized the respondent's

enses as non-participation, mental illness and intoxication

(L.e., diminished capacity), insanity, voluntary intoxication, and

amnesia “insofar as it reflected upon his state-of-mind” at the

time of the commission of the crimes. (Pet. App. at A-16-17,

A-20).

In contrast to the opinions of the lower federal courts, the

Tennessee Court of Criminal Appeals determined that the re-

spondent presented only two viable defenses: non-participa

tion and insanity, both of which would have totally precluded

a verdict of guilty if accepted by the jury. (Pet. App. at A-39).

U.S. at 87." This exception to automatic reversal in the

context of a conclusive intent instruction exists because

the issue of intent is not in dispute at trial, id., and cer-

tainly is applicable where there is no rule of automatic

reversal in the context of a mandatory rebuttable intent

instruction.

2. The jury’s assessment of the defenses raised by

the respondent, as those defenses are cognizable urder

state evidentiary law, could not have been affected by the

erroneous instructions on malice. The primary thrust of

the respondent’s defense centered upon establishing his

purported non-participation in the commission of the of-

fenses.“ Thus, “[a]lthough there was no explicit con-

cession of intent and malice,’’ Davis v. Kemp, 752 F.2d

1515, 1521 (11th Cir. 1985), cert. denied Kemp v. Davis,

— U.S. —, 105 S.Ct. 2689 (1985), the intent of the individ-

ual responsible for the murders was not a contested issue.

The jury’s determination as to the existence of malice

could therefore not have been affected by the defective

instructions. See, e.g., Davis, 752 F.2d at 1521; Conway

v. Anderson, 698 F.2d 282, 285 (6th Cir. 1983), cert. denied

462 U.S. 1121 (1983); United States v. Winter, 663 F.2d

1120, 1144-1145 (ist Cir. 1981), cert. denied 460 U.S. 1011

"Finding that the plurality’s opinion would “create an auto-

matic reversal rule whenever a Sandstrom-type instruction is

given,” the four dissenting justices favored application of a

traditional harmless error analysis without regard to the nature

of the defendant's defense. johnson, 460 US. at 90, 97-98

(Powell, |., dissenting).

In presenting this defense, the respondent to have the

- or Shirley Browning (Charles Browning’s wife) committed

murders.

(1983); McGuinn v. Crist, 657 F.2d 1107, 1108-1109 (9th

Cir. 1981), cert. denied 445 U.S. 990 (1982).

3. The jury’s consideration of the respondent’s de-

fense of insanity at the time of the commission of the

crimes was likewise not adversely affected by the errone-

ous instructions on malice. In United States v. Frady, 456

U.S. 170 (1982), the defendant contended that he was

entitled to a reversal of his first degree murder convie-

tion on the basis that the jury instructions improperly

relieved the Government of proving the element of malice

beyond a reasonable doubt. Jd. at 169-170. Finding that

“the degree of prejudice resulting from instruction error

[must] be evaluated in the total context of the events at

trial,” id., the Court declined to reverse the defendant's

conviction where he had failed to establish that the errone-

ous instructions “worked to his actual and substantial dis-

advantage” so as to infect the “entire trial with error of

constitutional dimensions.’’ Jd. at 170 (emphasis in orig-

inal).

In reaching this disposition, the Frady Court con-

cluded that regardless of what the jury may have believed

as to the element of malice, it would not have found malice

non-existent so as to reduce the grade of the offense where

it had determined that the defendant premeditatively and

deliberately killed the victim. Jd. at 174."% Beyond this,

however, “the strong uncontradicted evidence of malice

in the record, coupled with Frady’s utter failure to come

"The Court went so far as to opine that under the facts of the

case, “a finding of a premeditated and deliberate intent to kill

|would] be [in]consistent as a matter of law with an absence

of malice.” Frady, 456 U.S. at 174 n. 19.

forward with a colorable claim that he acted without

malice,” id. at 172, compelled the Court to confidently

state that there was “no substantial likelihood the erro-

neous malice instructions prejudiced Frady’s chances with

the jury.” Jd. at 174.

The analysis utilized in Frady is particularly appli-

cable to the instant case where the respondent failed

to introduce any colorable defense to call into dispute the

existence of malice, and where, as we will argue shortly,

the proof of mailee was undeniably overwhelming.

In reference to our contention that the respondent's

claim of insanity was not adversely affected by the errone-

ous instructions, it is clear that the jury determined the

existence of the element of malice prior to considering the

validity of the insanity defense.” The jury thus evaluated

the respondent’s claim of insanity without regard to the

manner in which malice was defined.

The very nature of the defense of insanity also com-

pels the conclusion that the element of malice was not

placed in dispute by the respondent’s proof of insanity, as

such defense acknowledges the elements of the offenses

charged and simply disavows criminal culpability for their

commiss .. See Graham v. State, 547 S.W.2d 531, 543

(Tenn. 1977). The defense of insanity is therefore, by

definition, an exculpatory doctrine which is independent

of the requirement of mens rea.

2% jnder Tennessee law, the defense of insanity is considered

by the jury only if it has first determined that the state has

beyond a reasonable doubt the elements of the offense

See Tennessee Pattern Jury Instructions—Criminal

06 (1978). The jury in this case was instructed in accordance

th this rule (J.A. 190), and it must be that the jury

correctly applied it. See Johnson, 460 U.S. at 85 n. 14.

The particular insanity defense presented here lends

support to our position that the existence of malice was

not disputed at trial. The respondent offered proof estab-

lishing that as a result of depression, he lacked substantial

capacity to conform his conduct to the requirements of

law. (J.A. 86-87, 94, 106, 111, 113-114).” By asserting an

insanity defense grounded upon volitional impairment, as

opposed to cognitive impairment (i.e., the inability to ap-

preciate the wrongfulness of his conduct), the respondent

did not challenge or rebut the state’s theory that he mali-

ciously committed the offenses. With the respondent's

alleged inability te control his conduct at the time of the

commission of the offenses not negating his ability to cog-

nitively form the mental element of malice, the defective

instructions had no effect upon the respondent’s attempt

to exculpate his conduct through the defense of insanity.

4. The remaining defense theories proffered by the

respondent simply did not place the element of malice into

issue under state evidentiary law. Although there was

evidence that the respondent was intoxicated at the time

of the commission of the crimes,” voluntary intoxication

not resulting in settled insanity may negate only the ele-

ment of premeditation and does not, as a matter of law,

negate the element of malice. See Harrell v. State, 5%

S.W.2d 664, 670-671 (Tenn. Crim. App. 1979) ; Clesborne v.

"The respondent's proof thus with the definition

of insanity under state law. See Gr , 547 $.W.2d at 543.

2The told defense psychiatrist Dr. John Griffin that

State, 555 S.W.2d 414, 418 (Tenn. Crim. App. 1977); Py-

burn v. State, 539 S.W.2d 835, 840 (Tenn. Crim. App.

1976). With the jury having been correctly instructed in

accordance with the applicable law, the defective instruc-

tions could not have detrimentally affected the jury’s con-

sideration of proof of the respondent's voluntary intoxica-

tion as such proof related to a finding of malice.™

The respondent also presented proof that he was suf-

fering from amnesia at the time of the commission of the

does not a finding of malice. State v. McKinney, 603

S.W.2d 755, (Tenn. Crim. App. 1980).

*The jury was instructed, in pertinent part, on the matter of

voluntary intoxication (J.A. 193-195):

enness of the Defendant at the time of this offense. You

are instructed that voluntary drunkenness is generally no

to a criminal charge. i

)

TET Hee

3 Tee

i Hitt

offenses.” However, as acknowledged by defense counsel

during closing argument (J.A. 1038), amnesia alone is no

defense to crime under state law, Harrell, 593 S.W.2d at

670-671; Thomas v. State, 201 Tenn. 645, 301 S.W.2d 358,

361 (1957), and does not constitute proof of the defend-

ant’s mental condition at the time of the commission of

the offense. Burton v. State, 217 Tenn. 62, 394 S.W.2d

873, 878 (1965).% Again, with the jury having been cor-

rectly instructed with reference to the matter of amnesia,

the erroneous instructions had no effect upon its finding

of the existence of malice.”

Although the defense psychiatrists apparently believed

the respondent suffered from amnesia (JA. 87, 115, 1

and what he had been doing” at the time the offenses were

committed. (|.A. 156, 165).

*While amnesia alone does not constitute a defense, it may

be considered as it relates to the defendant's proof of insanity.

See Lester v. State, 212 Tenn. 338, 370 S.W.2d 405, 408-409

(1963); Sparkman v. State, 469 $.W.2d 692, 696-697 (Tenn. Crim.

App. 1970). Given that the respondent's insanity defense rested

upon his alleged inability to control his conduct, the respond-

ent’s purported inability to remember the details of the crimes

does not undermine our position that he possessed the cogni-

The final defense sought to be developed by the re-

spondent, diminished capacity, is simply not a cognizable

defense under Tennessee law. See State v. Taylor, 645

S.W.2d 759, 762-763 (Tenn. Crim. App. 1982); State v.

Croscup, 604 S.W.2d 69, 72 (Tenn. Crim. App. 1980). The

respondent’s purported mens rea defense of ‘‘mental ill-

ness and intoxication’’ (Pet. App. A-5; see also Pet. App.

A-16) was therefore no defense at all and could not have

negated the jury’s determination of malice as a matter of

law.

Ill. IN ANY EVENT, THE EVIDENCE OF MAL-

ICE IS OVERWHELMING AND SO DISPOSI-

TIVE OF INTENT AS TO RENDER THE

SANDSTROM ERROR HARMLESS.

1. In determining whether error af a constitutional

magnitude requires reversal of a defendant’s conviction,

the reviewing court must examine the entire trial record

to assess the impact of the error on the jury’s verdict.

See, e.g., Parker v. Randolph, 442 U.S. 62, 71, 77, 80

(1979) ; Milton v. Wainwright, 407 U.S. 371, 372-378 (1972):

28By definition, diminished capacity is not an exculpatory de-

fense, but rather constitutes a mitigating doctrine which per-

mits the jury to consider evidence of mental abnormality which,

although insufficient to totally relieve the defendant of cul-

pability for his criminal conduct, may lessen the grade of the

offense. _ W. LaFave & A. Scott, Handbook on Criminal Law

42 (1972).

The respondent submitted numerous jury instruction requests,

three of which incorporated the concept of diminished capa-

city. (T.R., Technical Record 110, 111-112, 116). These instruc-

tions were refused by the trial judge, whose ruling was upheld

by the Tennessee Court of Criminal Appeals on the bases that

the requested instructions were not accurate statements of the

law or were covered in the general charge. (Pet. App. A-36).

Since the general charge omits any reference to diminished

capacity, it is clear that the court applied state evidentiary law

in determining that diminished capacity is not a recognized

defense in Tennessee.

Schneble v. Florida, 405 U.S. 427, 431-432 (1972) ; Harring-

ton 395 U.S. at 254. While the ‘‘beneficiary of a consti-

tutional error [must] prove beyond a reasonable doubt

that the error complained of did not contribute to the ver-

dict obtained,’’ Chapman, 386 U.S. at 24, this burden is

satisfied in the context of Sandstrom error by demonstrat-

ing that ‘‘the evidence was so dispositive of intent that a

reviewing court can say beyond a reasonable doubt that the

jury would have found it unnecessary to rely on the pre-

sumption’’ in reaching its verdict. Johnson, 460 U.S. at

97 n. 5 (Powell, J., dissenting).

We submit that even a cursory reading of the record

compels the conclusion that the evidence of malice was

overwhelming and so dispositive of the respondent’s intent

as to constitute harmless error under the facts of the

ease.” In this regard, the proof shows that Joy Faulk and

the respondent had been involved in a stormy relationship

*%It has also been suggested that it may be appropriate to con-

sider whether the jury would have reached the same result had

the error not occurred. Milton, 407 U.S. at 377; Schneble, 405

U.S. at 432.

WUnder Tennessee law, malice is an intent to do injury to an-

other or a design formed in the mind to do mischief to another.

Express malice is actual malice against the party slain and exists

where a person actually contemplates the injury or wrong he

inflicts. Implied malice is not malice against the party slain,

but malice in general, or that condition of mind which indi-

cates a wicked, Sunes and malignant spirit, and a heart

fatally bent on mischief regardless of social duty. Fox v. State,

1 Tenn. Crim. App. 308, 441 S.W.2d 491, 495-496 (1968). Im-

plied malice may be found to exist where the wrongdoer did

not intend to slay the person killed, but death resulted from

a consciously unlawful act done intentionally and with knowl-

edge on the wrongdoer’s part that the act was directly perilous

to human life. State v. Johnson, 541 $.W.2d 417, 418-419 (Tenn.

1976).

prior to Faulk terminating their relationship several

months before the murders occurred on December 30, 1978.

(J.A. 48-49). Following Faulk’s termination of their rela-

tionship, the respondent threatened on six different oeca-

sions to kill her if he ever caught her with another man.

(J.A. 48, 50-51, 56, 58, 61).

Suspecting that Faulk was dating other men, particu-

larly Charles Browning, the respondent spoke with

Browning’s wife on December 24 and visited her on De-

cember 25 and December 26 for the purpose of determining

the nature of the Faulk-Browning relationship. (J.A. 57-

59). When Mrs. Browning refused to give him any infor-

mation, the respondent made it clear that he was going to

act upon his prior death threats by twice stating that he

‘‘just wanted to find out what is going on before [he] got

mad and flew off the handle and did what [he] had

to do.’’ (J.A. 59).

At the time the respondent made this veiled threat, he

was in possession of the murder weapon, a .25 caliber auto-

matic pistol. (J.A. 60-61). The respondent had purpose-

fully and deceptively borrowed the weapon from Terry

Hill approximately two weeks before the murders (J.A.

74-75), telling Hill that his own gun had been stolen. (J.A.

80). With the proof showing that this was a bogus story

inasmuch as the respondent’s gun had actually not been

stolen," it is clear that the respondent obtained the mur-

der weapon for the sole purpose of committing murder.

Having armed himself with the automatic pistol, the

respondent chose the cold and rainy night of December 30

Under the pretense of his own gun having been stolen, the

respondent obtained the murder weapon one week before

Christmas. (J.A. 74-75). He subsequently and inconsistently

maintained that his gun had been stolen on December 26.

(J.A. 62-63).

to accomplish his stated desire to kill Faulk. Shortly

after 9:00 p.m. that night, the respondent’s truck was ob-

served pursuing Browning’s truck (in which Faulk, her

six-year-old daughter and her three-year-old daughter

were passengers) in a rural area of Rutherford County.

(J.A. 14-15). Some ten miles from where this observation

was made, Browning pulled into a driveway to permit the

respondent to pass him on the roadway. (J.A. 16, 34).

The respondent parked his truck behind Browning’s

truck, thereby positioning the victims between his truck

aud another vehicle. (J.A. 18, 34). In order to success-

fully perform his deadly task, the respondent left on the

lights to his vehicle and approached the victims as they

sat captive in the cab of Browning’s truck. (J.A. 34-36).

With the victims offering no resistance, the respondent

placed his pistol inside the cab of the truck and began

shooting. (J.A. 19, 27-28). Browning was shot once in

the head from a distance of six to eight inches and Faulk

was shot three times (twice in the head and once in the

shoulder) from a distance of less than eighteen inches.

(J.A. 23, 25, 28-29, 31-33, 35, 76-79).

After the respondent fled the scene of this carnage,

Faulk’s young daughters (who were miraculously not in-

jured) crawled over the bodies and were found wandering

along the roadway seeking assistance. (J.A. 34, 43).

Shortly thereafter the respondent forced a high speed

chase, during the course of which he disearded the murder

weapon, and was apprehended by the police. (J.A. 10-13,

21-22).

2Given that Browning pulled into the driveway of Faulk’s for-

mer brother-in-law, it is entirely probable that he did so for

the purpose of summoning help.

Under the particular facts of this case, the evidence

of malice is overwhelming and so dispositive of intent that

the Court can confidently conclude that there was no rea-

sonable possibility that the erroneous instructions contrib-

uted to the jury’s verdict. Since the error could not have

prejudicially impacted upon the verdit, it was harmless

beyond a reasonable doubt.

_—

CONCLUSION

The judgment of the Court of Appeals for the Sixth

Cireiut should be reversed.

Respectfully submitted,