# Reply Brief — Rose v. Clark > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0939%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1986 - **Citation:** 478 U.S. 570 ## Text Supreme Court, U.S, FILED No. 84-1974 MAR 12 198@ ANIOL, JR. i In The Supreme Court of the United States October Term, 1985 sy Vv JIMMY C. ROSE, WARDEN, Petitioner, STANLEY BARHAM CLARK, Respondent. SY A On Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit — a REPLY BRIEF FOR THE PETITIONER tt. Vv W. J. Micnae. Copy Attorney General and Reporter Counse »f Record Jexry L. Smirn Deputy Attorney General Kymeperty L. A. Harraway Assistant Attorney General 450 James Robertson Parkway Nashville, Tennessee 37219 (615) 741-1613 Counsel for Petitioner COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext 229 a i TABLE OF CONTENTS Page Argument In Response To Brief For The Respond- ent ——————— ] A. Introduction , re B. Respondent Was Not Prejudiced By The Malice Instructions = C. Harmless Error Inquiry ls Appropriate 13 Conclusion ae = 14 ii TABLE OF AUTHORITIES Page Cases : Anderson v. Harless, 459 U.S. 4 (1982) 8 Coleman v. California, 317 U.S. 596 (1942) 10 Connecticut v. Johnson, 460 U.S. 73 (1983) 13 Fisher v. United States, 328 U.S. 463 (1946) 9 Francis v. Franklin, 471 US. —, 105 S.Ct. 1965 (1985) 7 In re Winship, 397 U.S. 358 (1970) 7,10 Leland v. Oregon, 343 U.S. 790 (1952) 7,10 Muench v. Israel, 715 F.2d 1124 (7th Cir. 1983) cert. denied, No. 83-6358 (June 4, 1984) 10 Patterson v. New York, 432 U.S. 197 (1977) ss «7, 100 People v. Coleman, 20 Cal.2d 399, 126 P.2d 349 (1942) 10 People v. Troche, 206 Cal. 35, 273 P. 767 (1928). = sd Picard v. Connor, 404 U.S. 270 (1971) . ~ Rivera v. Delaware, 429 U.S. 877 (1976) 7 Rivera v. State, 351 A.2d 561 (Del. 1976) 7 Sandstrom v. Montana, 442 U.S. 510 (1979) __ 2, 3,7, 8,10 State v. Marti, Shelby Criminal Tennessee Su- preme Court Opinion filed December 30, 1985 (not yet published) 12 Troche v. California, 230 U.S, 524 (1929) CD United States v. Bailey, 444 US. 394 (1980) OD United States v. Ben M. Hogan Company, 85-1067. Petition for cert. pending 2 United Stotes v. Frady, 456 U.S. 170 (1982) 28 iil TABLE OF AUTHORITIES—Continued Pages Ormer AUTHORITY: Comprehensive Crime Control Act of 1984, 98 Stat. 2057 7, 10 Senate Report No. 225, 98th Congress, Ist Session 229 (1983) 10 Tennessee Rule of Criminal Procedure (30)d 00. = 3 fa : = = i i cosh sieathtlh er : en ee ee ee io. 2 = oe 4 ‘ =a, 7 a, a =—— a _ = ~ ie oe 7 ? =— = _ oy a, iad 7 iis i * ® 7 ° - - oni J 5 ie = i 4 Sis Dacca et oe a. S 4. * ill tan — eee ies -— J Ss ad /. «¢ gl 7 + ; : : a -_ 7 ; Tee ' - : = J ce 1 bere A ‘ ; . ome Bt . mr or Sa 7 SS Nd h a = ~—— No. 84-1974 In The Supreme Court of the United States October Term, 1985 rae Vv JIMMY C. ROSE, WARDEN, Petitioner, vs. STANLEY BARHAM CLARK, Respondent. one ~— On Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit yy, — Vv REPLY BRIEF FOR THE PETITIONER — ww ARGUMENT IN RESPONSE TO BRIEF FOR THE RESPONDENT A. Introduction In petitioner’s opening brief, it was explained that (1) jury instructions, like those given here, containing an erroneous presumption are subject to a harmless error analysis (Pet. Br. 10-18), and (2) the error in these in- structions was harmless, since respondent’s defenses did not raise a genuine factual dispute on the issue of malice and since the state’s proof of malice was conclusive (Pet. Br. 18-29). Although respondent contests both proposi- tions, there are several points that he does not dispute. First, in United States v. Frady, 456 U.S. 170 (1982), this Court held that the defendant, whose defense, like re- spondent’s, was nonparticipation in the crime, was not prejudiced by jury instructions that are not materially different from those given here (Pet. Br. 20-21; U.S. Br. 18-19, 22-25). Second, virtually every federal court of appeals and most state courts have ruled that jury instrue- tions like those given here can he harmless in an appro- priate ease. (U.S. Br. App. la-7a; Calif. Am. Br. 35-36 & n. 4).'! Third, given the factual findings that the jury had to make in order to find respondent guilty of first degree murder, unless the error in this case also affected those findings, respondent’s claim of prejudice must nec- essarily fail as a matter of law (Pet. Br. 20 & n. 19; U.S. Br. 23-24). Fourth, the instructions on malice given in this case were given in Tennessee murder prosecutions (and elsewhere nationwide) since the time of Andrew Jackson (Pet. Br. 26; U.S. Br. 16-17; Pet. App. A12, n. 7). Thus, even if such instructions are now erroneous under this Court’s 1979 decision in Sandstrom v. Montana, 442 U.S. 510, their historic u-e is powerful evidence that these errors cannot be excepted from the harmless error doc- trine in every case. ‘Although the Eighth Circuit has ruled that such errors can- not be harmless, the United States has filed a petition for a writ of certiorari in a case presenting that issue from that court, United States v. Ben M. Hogan Co., No. 85-1067, petition for cert. pending. B. Respondent Was Not Prejudiced By The Mal- ice Instructions In his brief the respondent argues that the jury in- structions prejudiced him in three respects. First, there is the claim that the instructions prejudiced the jury’s consideration of malice. Second, respondent contends that the presumption affected the jury’s consideration of his defenses. Third, respondent argues that the malice in- structions affected the jury’s consideration of the other elements of first degree murder.” 1. Respondent does not really deny that the proof is sufficient to establish that he shot both victims in the head at point-blank range, that such proof is sufficient to establish malice, and that the malice instructions had no bearing on the issue of who killed Joy Faulk and Charles Browning. Instead, respondent argues that he was preju- diced because the malice instructions affected his defense *Respondent suggests that his failure to object at trial to the instructions on malice can be explained on the ground that Tennessee law does not require a timely objection to jury in- structions in order to raise a claim on appeal. (Resp. Br. 28). While that statement is correct as a matter of state law, see Tenn. R. Crim. P. 30(b), respondent’s argument is beside the point in this case. The point is not that respondent waived his right to appeal this issue, rather the point is that respondent surely would have sought to persuade the trial court not to pive these instructions if he thought they were prejudicial to im. Respondent's argument that such an objection would be futile is likewise unavailing. At the time of the instant trial, sev- eral courts had ruled that instructions like those given here should not be used. See, Sandstrom v. Montana, 442 U.S. 510, 517-518 (1979) (collecting cases). In fact, respondent did raise this issue on appeal following Sandstrom. Respondent's failure to object at trial to these instructions therefore shows that he did not believe they were prejudicial. that he shot Faulk and Browning in self-defense or due to provocation sufficient to cause him in a state of passion that would render the killings no more than voluntary manslaughter (Resp. Br. 14, 15-17). Petitioner submits, however, that that argument is not supported by the record. The central flaw in respondent’s argument is that he was convicted of the first degree murder of Faulk, and there is no evidence in the record that would support the claim that she provoked him to kill her. In fact, the only evidence that bears on this issue is the proof that respond- ent repeatedly threatened to kill Faulk if he found her with another man (See Pet. Br. 5, 27). Respondent does not argue to the contrary; instead, he contends that the evidence was sufficient to support a self~iefense or man- slaughter verdict on the killing of Browning. However, respondent never presented a self-defense or adequate provocation theory to the jury in this case. The foregoing discussion also demonstrates that any defense claim that respondent killed Browning in self~lefense or in a state of passion would have had no bearing on his liability for the murder of Faulk, whe was unarmed and who had never threatened respondent. Further, the record shows that Browning was found in the truck with a gun in his pocket, and the cylinder turned in such a manner that the sole spent cartridge could not have just been fired from the gun (J.A. 26, 30). In fact, none of the state appellate judges, nor the federal judges, who have examined this record as much as re- ferred to a self«jefense or provocation defense. Indeed, the trial judge instructed the jury on a manslaughter the- ory merely out of an abundance of caution (J.A. 83). Thus, it is submitted that respondent’s self-defense and adequate provocation defenses are factually very weak. 2. The malice instructions did not prejudice respond- ent’s insanity and voluntary intoxication defenses. a. Respondent and amicus National Association of Criminal Defense Lawyers, et al., maintain that the malice instructions prejudiced respondent’s defenses that he lacked the mental states necessary for murder due to mental illness and voluntary intoxication (Resp. Br. 14-15 and n. 2, 22-23, 30-35; Nat’l Ass’n Am. Br. 12-19). How- ever, respondent does not deny that the instructions at his trial did not allow the jury to consider his claim of intoxication in connection with second degree murder, Pet. Br. 22-24; see J.A. 195; nor did those instructions permit the jury to consider his claim of mental illness at all ex- cept in connection with his insanity defense (Pet. Br. 20- 22; see J.A. 190-193). Furthermore, respondent has cited no Tennessee decision holding that voluntary intoxication is a defense to second degree murder or that mental ill- ness may be presented in the form of a diminished capac- ity defense, rather than an insanity defense. In fact, the decided eases have expressly held to the contrary, Pet. Br. 22-25, as respondent reluctantly concedes, (Resp. Br. 33, 35-40.) b. Respondent and amicus ACLU claim that the malice instructions prejudiced respondent’s insanity de- fense, hypothesizing the jury relied on the presumption of malice when considering that defense (Resp. Br. 48-50; $s argument that these state law doctrines are unconstitutional, see Resp. Br. 35-43, is discussed infra, at p. 9. ACLU Am. Br. 25-26). It is respectfully submitted, how- ever, that that argument is flawed in three respects. First, there is no support in the jury instructions for the claim that the malice instructions affected the jury’s consideration of respondent’s insanity defense. The in- structions on malice related only to that element of the charged offenses. The trial court instructed the jury to consider respondent’s insanity defense only if and after it found that he was guilty of one or more of the charged crimes (J.S. 190}. Nowhere did the trial court instruct the jury that the presumption of malice had any relevance to its consideration of the insanity defense or to any other aspect of the case. Nor is there any reason to conclude that the jury would have believed that this presumption had any bearing on respondent's insanity defense. The jury instructions on malice and insanity do not at all refer to one another and the trial court separately and carefully explained the different burdens of production and proof on the issue of insanity (Compare J.A. 184-185, 186-187 [malice], with J.A. 190-193 [insanity]). Accordingly, it ic submitted that there is no realistic possibility that the jury could have been confused on this point.‘ Secondly, respondent’s claim of prejudice is incon- sistent with the nature of the insanity defense he asserted at trial. Respondent’s insanity defense was based upon an asserted volitional impairment, not a cognitive im- pairment. Put differently, he did not claim that he lacked the ability to appreciate the wrongfulness of his conduct; rather, he maintained that he lacked the capacity to con- form his conduct to the requirements of law, «c., that he could not stop himself from killing Faulk and Browning (Resp. Br. 48). Since the malice instructions did not help the State prove that respondent had the volitional capacity to keep from shooting Faulk «nd Browning, those instrue- tions could not have prejudiced his insanity defense. Last on this point, respondent’s argument must fail since Sandstrom does not apply to the issue of insanity. Sandstrom was based upon the due process principle enun- ciated in In re Winship. 397 U.S. 358 (1970), that the State must prove every element of a charged offense he- yond a reasonable doubt. See. 442 U.S. at 520; accord, Francis v. Franklin, 471 U.S. —, 105 S.Ct. 1965 (1985). However, it is settled that the States does not have to prove that a defendant was sane at the time that he com- mitted a crime and that the burden of proof on an insanity defense can be placed on the accused. See, Pattersor v. New York, 432 U.S. 197, 205, 207 (1977): Rivera v. Dela- ware, 429 U.S. 877 (1976), dismissing appeal for want of a substantial federal question from Rivera v. State, 351 A.2d 561 (Del. 1976): Leland vr. Oregon, 343 U.S. 790, 798 (1952); the Comprehensive Crime Con rol Act of 1984, 98 Stat. 2057 (to be codified at 18 U.S.C. 20) (requiring the defendant to prove that he is insane). Accordingly, any affect that the jury instructions on malice may have had on respondent’s insanity defense is purely a matter of state law, not federal constitutional law. ec. Finally, respondent asserts that the Tennes- see law of homicide is unconstitutional in two respects. First, he claims that the principle that voluntary intoxi- cation is not a defense to second degree murder stems from the same presumption of malice that was held unlawful in Sandstrom. Second, he argues that this definition of seec- ond degree murder is unconstitutional because it denies an accused the right to adduce relevant evidence bearing on his mental state (Resp. Br. 32-43). Accordingly, he claims that the malice instructions prejudiced him be- cause it deprived him of the right to have the jury con- sider the fact that he was voluntarily intoxicated in de- ciding whether he acted with malice aforethought. How- ever, it is respectfully submitted that respondent's argu- ment is flawed in several respects. Respondent has never before advanced either argu- ment in support of his claim that the jury instructions on malice _age*valid. Respondent did not present either ar- gument at trial, on appeal to the state court of appeals, in the district court, or in the court of appeals. Accordingly, aside from the fact that the Tennessee courts would be likely to hold that he had waived these claims by failing to object on these grounds at trial, respondent clearly has not exhausted these claims in the state courts and therefore may not raise them for the first time in a federal habeas corpus proceeding. See, Anderson v. Harless, 459 U.S. 4 (1982): Picard v. Connor, 404 U.S. 270 (1971). Respondent ignores the fact that the jury rejected his voluntary intoxication defense when it found him guilty of the first degree murder of Joy Faulk. The jury was instructed that it could consider the fact that respond- ent was voluntarily intoxicated in connection with the ele- ments of deliberation and premeditation under first de- gree murder and was told that voluntary intoxication may render a person incapable of forming those mental states (J.A. 193-195). However, the jury found respondent guil- ty of the first degree murder of Joy Faulk, which indis- putably proves that the jury found that respondent's as- serted voluntary intoxication’ did not raise a reasonable doubt as to his guilt of that crime. Respondent has of- fered no plausible basis for believing that the jury would have accepted his intoxication defense if it were permitted to consider this evidence in connection with the element - of malice aforethought even though the jury rejected that defense in connection with the elements of premeditation and deliberation (See U.S. Br. 28). Accordingly, even if respondent had the right to present a voluntary intoxi- eation defense, the instructions on malice could not have prejudiced that defense. Third, there is no federal constitutional requirement that the states adopt a diminished capacity defense either for mental illness or voluntary intoxication. The Supreme Court on three separate occasions has rejected the argu- ment that a defendant has the constitutional right to pre- sent a diminished capacity defense based on mental ill- ness. See, Fisher v. United States, 328 US. 463 (1946); ‘Respondent's voluntary intoxication defense was also quite weak. (See Pet. Br. 22, n. 22). Respondent did not testify at trial, he offered no direct proof that he was intoxicated at the of the crimes. The only evidence of his voluntary intoxi- 10 Coleman v. California, 317 U.S. 596 (1942), dismissing ap- peal for want of a substantial federal question from People v. Coleman, 20 Cal.2d 399, 126 P.2d 349 (1942); Troche v. California, 280 U.S. 524 (1929), dismissing appeal for want of a substantial federal question from People v. Troche, 206 Cal. 35, 273 P. 767 (1928); ef. Leland v. Ore- gon, 343 U.S. at 800-801 (there is no federal constitutional right to present an “irresistible impulse’’ defense); see also, Muench v. Israel, 715 F.2d 1124, 1126-1130 (7th Cir. 1983), cert. denied, No. 83-6358 (June 4, 1984). Congress also rejected that defense for federal criminal prosecu- tions in the Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, § 402 (Insanity Defense Reform Act of 1984), 98 Stat. 2057 (to he codified at 18 U.S.C. 20). See S. Rep. No. 225, 98th Cong., Ist Sess. 229 (1983) ; (U.S. Br. 26 & 26-27, n. 24). Accordingly, if a defendant has no right to present a diminished capacity defense based upon mental illness, which is, of course, involuntarily acquired, then it necessarily follows that there is ro right to present that defense where voluntary intoxication is at issue. Sandstrom adds no support to respondent's claim. As noted above, Sandstrom was based upon In re Winship, supra, and Winship does not require the states to define murder in any particular fashion or to accept mental ill- ness and voluntary intoxication as defenses. See, Patter- son v. New York, supra. Respondent has confused the right to present relevant evidence on an element of the crime or an element of a defense—a principle that is nei- ther in dispute nor pertinent to this case—with the claim that the state must define homicide in a manner that makes certain types of evidence relevant—a proposition that also lu is not at issue in this case, but which, if it were, would of- fer respondent no support for his argument. 3. Respondent claims in passing that the instructions on malice may have affected the jury’s consideration of first degree murder (Resp. Br. 26-27). However, it is submitted respondent is in error in this regard. The trial court clearly told the jury that, to convict respondent of first degree murder, the state had to prove five separate elements beyond a reasonable doubt, J.A. 184-185, inelud- ing that the killings were ‘‘willful,’’ ‘‘deliberate,”’ and ‘‘premeditated’’: ie. that the defendant acted with the *‘eool purpose’’ of an intent to kill that was formed prior to the shootings. The malice instructions coukd not have affected the jury's findings on these elements of first clegree murder. The trial court, when instructing the jury on malice in connection with first degree murder, defined malice as ‘‘the state of mind to do the alleged wrongful act with- out legal justification or exeuse."’ (J.A. 184-185). The absence of a legal justification or exeuse for the act of killing plainly has nothing to do with the mental states necessary for first degree murder. The trial court's in- structions on the elements of willfulness, deliberation, and premeditation could not have been affected by this in- struction on malice. That conclusion also holds true when the court’s instructions on secom! degree murder are considered. The trial court explained that express malice was a “‘wicked intent[,] . . . an intent te do any injury to another, a design formed in the mind of doing misehief to another[,] . . . and exists where a person actually con- templates the injury or wrong he infliets."’ (J.A. 186). No reasonable juror would fail to see a difference between In sum, the trial court’s erroneous instructions on an intent to myure someone and the intent to kil that per- malice could not have affected the jury's finding that re- son; the contrary conclusion would mean that a reason- spondent was guilty of willful, deliberate, and premedi- and murder, which generally requires an intent to kill.* tated murder.” able juror could not distinguish between assault and bat- tery, which generally requires only an intent to injure, agile pets i ad if i ie i i Hh i He if ath rill if 13 ©. A Harmless Error Inquiry Is Appropriate 1. Respondent, but neither amicus, claims that the yery instructions on malice amounted to a directed verdict on that question. (Resp. Br. 12-13). However, respondent makes no attempt to claim that the record in this case sup- ports his argument, and the reason why is clear. The state trial court clearly did not direct a verdict of guilty in the state's favor on malice; on the contrary, the court ex- pressly told the jury that it had to decide what, if any, offenses the state had proved and that the state had to preve every element of each offense beyond a reasonable doult. (J.A. 182-190). In addition, even if a conclusire presumption can be treated as a directed verdict—a propo- sition that the State would dispute, sce U.S. Br. 14-17— here, only a rebuttable presumption is in dispute. Re- spendent’s reliance on Connecticut rv. Johnson, 460 U.S. 73, 85-86 (1983) (plurality opinion), is therefore misplaced. There is also no reason to treat the malice instructions im thie case as the equivalent of a directed verdict. Tie jery instructions used here have as ancient a pedigree as the principle that the trial court may not direct a verdict im the government’s favor. (See U. S. Br. 16-17). It is (Continued from previous page) jury's ferst ree murder verdict. (Resp. Br. 13, 45-48). However, as noted earlier, Martin did not cite, much less distinguish, this Court's ruling in United States v. Frady, supra. In any event, to paraphrase Sandstrom, while the Tennessee Supreme Court is the tinal authority on the meaning of malice aforethought under state lew, it is not the final authority on the interpretation which @ jerry could have given the instructions on malice. 442 US. at 516-517. For the reasons given in the text, in petitioner's opening brief, and in the U.S. amicus brief, the instructions on malice could not have affected the jury’s finding that respondent killed willtully, deliberately, and with premeditation. 14 implausible to claim that the hundreds of judges who have used these instructions in criminal cases have unwittingly directed verdicts in the state’s favor in every caSe. Whatever force respondent’s claim may have as an aca- demic matter, the history of American criminal law clearly proves him wrong. 2. Finally, there is no reason to presume that in- structions like these are prejudicial. As discussed above, in petitioner’s opening brief, and in the supporting amicus briefs, respondent was not prejudiced by these instruc- tions. Moreover, the federal and state courts have repeat- edly, and with near unanimity, found that other defendants were not prejudiced by these instructions. (See U.S. Br. App. la-6a; Calif. Am. Br. 35-36 & n. 4). These courts have had no difficulty in distinguishing between the cases, like this one, in which a defendant is not prejudiced and those cases in which the contrary is true. In these cireum- stances, there is no good reason for denying the State an opportunity to prove that the error was harmless. >. / CONCLUSION The judgment of the United States Court of Appeals for the Sixth Cireuit should be reversed. Respectfully submitted, W. J. Micnag. Copy Attorney General and Reporter Counsel of Record Jerry L. Smiru Deputy Attorney General Kymeerty L. A. Harraway Assistant Attorney General ——4 Det a Tn An = ae = 7 o, = a yay? --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0939%3A07. Public record. Not legal advice.