# Petitioners Brief — Rose v. Clark > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0939%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1986 - **Citation:** 478 U.S. 570 ## Text oe = a i | dled — co — © | ih 8 ror | " ~ “ : we we & No. 84-1974 ra’ “’ In The Supreme Court of the United States October Term, 1985 at — | JIMMY C. ROSE, WARDEN, Petitioner, vs. STANLEY BARHAM CLARK, Respondent. _— “ ON WRIT OF CERTIORARI TO THE COURT OF APPEALS FOR THE SIXTH CIRCUIT — i>. Se 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- 1 pendix to the Petition for Writ of Certiorari. (Pet. App. A-23—A-39). i>. a 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. 3 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. 10 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). 11 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). 12 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 13 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). 14 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- 15 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. 16 418 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). 17 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. 18 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). 19 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 pay Pees Se Saeey Sat Sem Sas Cay © ’s former hus- - 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. 21 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 te ye 3 Tee i Hitt iN th i : | | 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 Se Se sues paviecate interes Cat © Gn a8 B & | i ga 1 f i if i ! 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- i | 25 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. 26 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). 27 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). 28 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. 4) _— CONCLUSION The judgment of the Court of Appeals for the Sixth Cireiut should be reversed. Respectfully submitted, W. J. Michael Cody Attorney General of Tennessee Counsel of Record Kymberly Lynn Anne Hattaway Assistant Attorney General 450 James Robertson varkway Nashville, TN 37219-5025 Phone: (615) 741-1613 Counsel for Petitioner --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0939%3A05. Public record. Not legal advice.