Amicus Curiae Brief — Rose v. Clark
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ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE UNITED STATES AS
AMICUS CURIAE SUPPORTING PETITIONER
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(1)
TABLE OF CONTENTS
The erroneous jury instructions in this case do not
justify setting aside respondent’s convictions _
A. There are few kinds of trial error that au-
tomatically invalidate a conviction regard-
less of the likelihood of prejudice in the cir-
cumstances of the particular case...
B. Errors of the kind gf that occurred in this
case have none of the attributes that sup-
port automatic reversal .-
1. An instruction containing an impermis-
sible presumption is not invariably the
functional equivalent of a directed ver-
na a eS nD
2. Jury instructions like those given here
are not so likely to be prejudicial that a
harmless error inquiry is futile
C. Respondent was not prejudiced by the in-
structions on malice that were given in his
TABLE OF AUTHORITIES
Cases:
Allen v. United States, 164 U.S. 492 00
Anderson V. United States, 417 U.S. 211 ................
Anthony v. State, 19 Tenn. (1 Meigs) 265...
Baldwin v. Alabama, No. 84-5743 (June 17, 1985) ..
(mI)
13
14
17
SES
IV
Cases—Continued : Page
Barclay v. Florida, 463 U.S. 939 —...................... 20
Barker v. Wingo, 407 U.S. 514 ............-.--...--.---.------- 12
Barnes Vv. United States, 412 U.S. 837 —................... 17
Bell v. Wolfish, 441 U.S. 520 _..............-----..---2220..0.--- 11
Belton v. United States, 382 F.2d 150... 24
Bowen Vv. Kemp, 769 F.2d 672 .........--.----------------w----- 27
Brockett v. Spokane Arcades, Inc., No. 84-28 (June
EE ee 27
Brown Vv. United States, 411 U.S. 223 9
Burton v. State, 217 Tenn. 62, 394 S.W.2d 873........ 27
Cartwright v. State, 76 Tenn. 376 28
Chambers v. Maroney, 399 U.S. 42 — 0.0... i)
Chapman V. California, 386 U.S. 18 9, 10, 11, 12, 13
Charles v. Foltz, 741 F.2d 834 —................. et BA 25
Coleman Vv. Alabama, 399 U.S. 1 -.................-............. 9
Connecticut Vv. Johnson, 460 U.S. 73 ............. 13, 16, 25, 27
Cupp Vv. Naughten, 414 U.S. 141 ............................... 21, 22
Dale v. State, 18 Tenn. (10 Yer.) 551 24
Drope V. Missouri, 420 U.S. 162 ............................... 11
Engle v. Isaac, 456 U.S. 107 7, 8, 10, 11, 25
Flanagan V. United States, 465 U.S. 259 —.............. 7
Francis Vv. Franklin, No. 83-1590 (Apr. 29, 1985) .. 13, 15,
17, 18, 21, 23, 24
Garland vy. Maggio, 717 F.2d 199 25
Gideon V. Wainwright, 372 U.S. 335 —..................... 11
Godfrey Vv. Georgia, 446 U.S. 420 20
Graham V. State, 547 S.W.2d 531 — 26
Gregg V. Georgia, 428 U.S. 153 ............--............ 10, 20
Haile v. State, 30 Tenn. (11 Hum.) 154 ........ SES 28
Hamling v. United States, 418 U.S. 87 .... Soret 9
Harrington V. California, 395 U.S. 250 —........ pe Me 12
Henderson V. Kibbe, 431 U.S. 145... 19, 21, 22, 23, 24
Holloway Vv. Arkansas, 435 U.S. 475 .............0......... 12
Hopper v. Evans, 456 U.S. 605 .......... ie accceeimelindens 9, 20
Houston v. State, 593 S.W.2d 267 .......000000......... 24
Kentucky v. Whorton, 441 U.S. 786 _........ Ni eceeieente 19, 21
Kotteakos v. United States, 328 U.S. 750 -.............. 7,10
Lancaster v. State, 70 Tenn. 575 28
Lester Vv. State, 212 Tenn. 338, 370 S.W.2d 405 __. 27
Luce Vv. United States, No. 83-912 (Dec. 10, 1984) .. 7
Mabry Vv. Johnson, No. 83-328 (June 11, 1984) _....... 13
Cases—Continued : Page
Mortis ¥. Potts, TTB PBa TU ........---2cececeeeceoeeeeees- 25
McCleskey V. Kemp, 753 F.2d 877, petition for cert.
pending, No. 85-6811 25
McCorquodale v. Balkcom, 705 F.2d 1553, adopted
in pertinent part, 721 F.2d 1493, cert. denied,
EES Le ee 20
McDonough Power Equipment, Inc. vy. Greenwood
a a 7
McGuinn V. Crist, 657 F.2d 1107, cert. denied, 455
ESE ES EES EN a ee 25
Milton Vv. Wainwright, 407 U.S. 371 00. 9,12
Moore V. Arizona, 414 U.S. 25 ......0.000 12
Moore v. Dempsey, 261 U.S. 86... 11
Moore V. Illinois, 434 U.S. 220... i)
Morris V. Slappy, 461 U.S. 1 000000 7,10
Patterson v. New York, 432 U.S. 197 _...... 17
Payne Vv. Arkansas, 356 U.S. 560 12
Pico Vv. United States, 228 U.S. 225 17
Pirtle v. State, 28 Tenn. (9 Hum.) 663... 28
Redding v. Benson, 739 F.2d 1360, cert. denied,
No. 84-5908 (Feb. 19, 1985) 00000000 21
Rushen v. Spain, 464 U.S. 114... 9
Sanders v. United States, 373 U.S. 1... 10
Sandstrom Vv. Montana, 442 U.S. 510 4, 7, 13, 14, 15, 16
Smith v. Phillips, 455 U.S. 209 000 13
Snyder v. Massachusetts, 291 U.'S.97... st 10
Sparkman Vv. State, 4649 S.W.2d 692... 27
States v. Adkins, 653 S.W.2d 708... 28
State v. Bullington, 532 S.W.2d556...s—i‘—‘i—~S . 24, 28
State v. Matson, 666S.W.2d 41. —s—CsSsS 20
State v. Plummer, 658 S.W.2d 141... ss Vn ee 28
State v. Story, 608 S.W.2d599 eee 24
Stone v. Powell, 428 U.S. 465 00000 8
Strickland v. Washington, No. 82-1554 (May 14,
1984) . ase
Stromberg v. ‘California, 283 U. s. 359 . a oo ee 18
Sumner Vv. Mata, 449 U.'S.539 ss iiiti‘;:;~S™S x
Swan Vv. State, 23 Tenn. (4 Hum.) 136... 24
Tennessee V. Street, No. 83-2143 (May 13, 1985)... 20
Thomas v. State, 201 Tenn. 645, 301 S.W.2d58..._ 27, 28
vI
Cases—Continued : Page
Tucker v. Kemp, 762 F.2d 1496 —....... 000-0. 25
Tumey V. Ohio, 278 U.S. G10 ..............--.--..---cceeeeeeees 1l
United States v. Addonizio, 442 U.S. 178 -............... 8
United States v. Ash, 413 U.S. 300 0.0... 11
United States v. Bagley, No. 84-48 (July 2, 1985) .. 12
United States v. Cronic, No. 82-660 (May 14,
1984) . ny el 11, 18
United States v. Frady, 456 U.S. 152 -...................... passim
United States v. Green, 424 F.2d 912 .............. 24
United States v. Hasting, 461 U.S. 499... 7,9, 10,13
United States v. MacDonald, 485 U.S. 850-.............. 12
United States v. Nobles, 422 U.S. 225 ..................... 9-10
United States v. Park, 421 U.S. 658 —........................ 21, 22
United States v. Smith, 404 F.2d 720 0... 26
United States v. Young, No. 83-469 (Feb. 20,
1985) 9,12
Wainwright v. Goode, 464 U.S. 78 20
Wainwright v. Sykes, 483 U.S. 72 -......................... 10
Wainwright v. Witt, No. 83-1427 (Jan. 21, 1985) _... 25
Zant v. Stephens, 462 U.S. 862 —.................... inilelieasig 19, 22
Constitution, statute and rule:
U.S. Const. :
Ee Se a ee 18
Amend. IV = 9
Amend. V (Self-Incrimination Clause) —........... 9
Amend. VI:
Confrontation Clause .................................. 9
hn i)
Amend. XIV (Due Process Clause) —................. 9
Comprehensive Crime Control Act of 1984 (In-
sanity Defense Reform Act of 1984), Pub. L.
No. 98-473, § 402, 98 Stat. 2057 (to be codified
— BEE OF Se 26-27
8 eee 12
Miscellaneous :
Friendly, /s Innocence Irrelevant? Collateral At-
tack on Criminal Judgments, 38 U. Chi. L. Rev.
Re ee s
vil
Miscellaneous—Continued :
W. LaFave & A. Scott, Criminal Law (1972) ........
R. Perkins & R. Boyce, Criminal Law (3d ed.
ASSES eS Se
S. Rep. 98-225, 98th Cong., Ist Sess. (1983)
R. Traynor, The Riddle of Harmless Error (1970) ..
Webster’s New Collegiate Dictionary (1981) ........
In the Supreme Court of the United States
OcTOBER TERM, 1985
_No. 84-1974
Jimmy C. Rose, WARDEN, PETITIONER
v.
STANLEY BARHAM CLARK
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE UNITED STATES AS
AMICUS CURIAE SUPPORTING PETITIONER
INTEREST OF THE UNITED STATES
The question presented by this case is whether jury
instructions creating a rebuttable presumption that the
defendant killed with malice aforethought were harmless.
The Court’s resolution of this question will apply equally
to state and federal prosecutions involving this and other
types of errors that might be claimed to be reversible
even in the absence of actual prejudice to the defense.
STATEMENT
1. a. On December 30, 1978, Joy Faulk and Charles
Browning were shot to death by respondent Stanley Clark
while they were sitting in Browning’s pickup truck in a
(1)
remote area of Rutherford County, Tennessee. The kill-
ings stemmed from “a somewhat complicated domestic
situation” (Pet. App. A24). Following her divorce from
her husband Sam Faulk, Joy Faulk had a “stormy” rela-
tionship with respondent (ibid.). After they separated,
Faulk became involved with Charles Browning. Respond-
ent was angered by that relationship and threatened to
kill Faulk if he learned that she was dating another man
(ibid.; 3 Tr. 390-392, 395, 397, 422-423, 438-439; 4 Tr.
461-462, 508, 512).
On the night of December 30, Joy Faulk, Charles
Browning, and Joy’s two children were driving in Brown-
ing’s truck in a remote area of the county. Respondent
pursued them in his truck, and, when Browning pulled
into a driveway to let respondent pass, respondent
stopped his truck behind Browning's, blocking any escape.
After moving to virtually point-blank range of both vic-
tims, respondent, using a pistol that he had borrowed
from a friend, shot Faulk three times, twice in the head
and once in the left rear shoulder, and shot Browning
once in the head. Pet. App. A2-A3, A8-A10, A24-A25.
b. Respondent did not testify at trial. His chief de-
fene> presented through cross-examination of the State’s
witnesses, was that Sam Faulk, Joy’s Faulk’s ex-husband,
had murdered Joy Faulk and Browning. Sam Faulk’s
motive, respondent argued, was retaliation for a child
custody suit that Joy Faulk had filed against him, which
stemmed from an incident in which he was alleged to have
molested his daughter Mitzi (Pet. App. A24-A25, A32-
A33; 1 Tr. 18-23; 2 Tr. 234-235; 4 Tr. 464-466; 5 Tr.
670-671, 686-689; see generally 8 Tr. 1009-1051 (defense
closing argument)).' Respondent also presented evidence
' That defense was based upon a rumor at large in the county
(4 ir. 464-466). In truth, however, Mitzi simply had a urinary
tract infection (3 Tr. 458-459). Moreover, several eyewitnesses
testified for the State that Sam Faulk had spent the entire evening
at a local bar and was there at the time that Joy Faulk and Browning
in support of three other partially inconsistent defenses:
insanity, amnesia, and voluntary intoxication (Pet. App.
A5, Al7-A20, A39). The evidence of these defenses was
introduced chiefly through the testimony of two defense
psychiatrists, although respondent also elicited testimony
to support these claims on cross-examination of prosecu-
tion witnesses (id. at Al7-A19, A39; J.A. 141; 7 Tr.
879-887 ) .*
weapon in a 6s ee ee ae Gn are on
of malice (J.A. 187-188; 8 Tr. 1087-
1089) .* The jury was also instructed that (i) insanity
was a complete defense to any of the charges, but the
jury should consider thi defen ony if it fit. found
ts of the charged offenses to have been
proven (J.A. 0; 8 Tr. 1091-1092) ; i) alibi was a
: to all of the charges (8 Tr. 1095-1096) :
(iii) voluntary intoxication may negate the State’s proof
of willfulness, premeditation, and deliberation and thefe-
fore was a defense to first degree murder, but voluntary
intoxication was not a defense to second degree murder
or any other lesser included offense (J.A. 193-195: 8 Tr.
1097-1098) ; (iv) amnesia by itself was not a defense to
any of the charges (J.A. 195; 8 Tr. 1098). Respondent
was convicted of first degree murder in the killing of
? The only other defense witness was the police radio dispatcher
who received a telephone call on the night in question informing
him that there had been a shooting. 7 Tr. 888-901.
* Respondent did not object to the instructions on malice at trial!
Pet. App. Al0 n.6; see R. 106-120 (proposed defense jury instruc-
tions) ; 8 Tr. 1104 (defense objections to trial court's jury charge).
———
4
Faulk and second degree murder with respect to Brown-
ing.
2. On appeal, respondent argued that the jury instruc-
tions on malice were invalid under Sandstrom v. Montana,
442 U.S. 510 (1979). The Tennessee Court of Criminal
Appeals rejected respondent’s argument on the ground
that the instructions, read as a whole, did not shift the
burden of proof to him on this element of the offense
(Pet. App. A37-A39). The court also held that the jury
charges did not require reversal because respondent's de-
fenses of nonparticipation and insanity raised no issue
regarding whether the killings were done with malice and
therefore were not affected by the instructions (id. at
A39). The Tennessee Supreme Court thereafter denied
respondent’s application for leave to appeal (id. at A40).
3. Respondent later filed a petition for a writ of
habeas corpus, raising this claim and others. The district
court held that the instructions created a rebuttable pre-
sumption of malice and were therefore invalid under
Sandstrom (Pet. App. Al0-Al15). The court also held
that the error in giving these instructions was not harm-
less because respondent's defense at trial, in part, was
that he lacked an intent to kill because of intoxication at
the time of the offense, amnesia, and mental illness, and
these defenses were supported by some evidence (id. at
Al15-A20). The court did not inquire, however, whéther
and how the jury was instructed on these defenses or
whether they were valid state-law defenses to malice.
4. The court of appeals affirmed (Pet. App. Al-A6).
It agreed with the district court that the jury instruc-
tions in this case were erroneous ‘id. at A3-A4), and,
while it noted that such errors can be harmless (id. at
A4-A6), it found that the instructions in this case were
prejudicial, because part of petitioner’s defense was that
he lacked the requisite mens rea for murder (id. at
A6).
5
SUMMARY OF ARGUMENT
A. It is axiomatic that appellate courts must ordi-
narily disregard errors occurring at trial that could not
have had a material affect on the verdict. The few ex-
ceptions to the harmless error principle involve either
violations so basic that they deprive the defendant of the
essentials of a trial (such as denial of counsel or lack of
an impartial fact-finder) or errors that are both likely to
be prejudicial and so difficult to assess specifically that
no reliable harmless error inquiry is practical. While at
bottom the fault in erroneous presumption instructions is
that they impact on the defendant’s right to have his
guilt determined by the jury, the instructions cannot ra-
tionally be deemed the functional equivalent of a denial
of a jury trial. Beyond that, the instructions on malice
given here were used in countless numbers of criminal
trials since the early common law and thus cannot be
deemed so inherently subversive of due process that their
use amounts to the denial of any trial at all.
It also cannot be said that an erroneous instruction on
a presumption will so invariably prejudice the accused in
undetectable ways that undertaking a case-by-case inquiry
into their prejudicial effect is futile. United States v.
Frady, 456 U.S. 152 (1982), held that similar jury in-
structions were not prejudicial in every case in which
they are used and that a court can look to the evidence
adduced at trial, the defenses (if any) usserted by the
accused, and the jury’s findings as revealed by its verdict
in order to determine whether the instruction was prej-
udicial. The lower courts have also generally held that a
case-by-case determination of prejudice due to an er-
roneous presumption instruction is feasible.
B. The record shows that respondent was not prej-
udiced by the instructions on malice. The nature of the
crime itself—multiple gun shots to the head at point
blank range—virtually forecloses any conclusion that
malice was absent. Moreover, the jury found that re
spondent murdered one of his victims willfully and with
premeditation and deliberation on an intent to kill, It
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conviction bestows an unjustified windfall on a defendant
where there is no realistic likelihood that the error skewed
the factfinding process at trial or rendered the proceed-
ings fundamentally unfair. See, e.g., United States v.
Young, No. 83-469 (Feb. 20, 1985), slip op. 15 & n.14;
Rushen v. Spain, 464 U.S. 114, 118 (1983); United
States v. Hasting, 461 U.S. 499, 509 (1983); Hamling
v. United States, 418 U.S. 87, 134-135 (1974). In fact,
the Court has made clear that “it is the duty of a review-
ing court to consider the trial record as a whole and to
ignore errors that are harmless” (Hasting, 461 U.S. at
509 (emphasis added)). It is also firmly settled law that
even constitutional errors must be disregarded if satis-
factorily shown to be harmless. See Chapman v. Cali-
fernia, 386 U.S. 18 (1967).*° By requiring an appellate
court to disregard errors that did not materially affect
the outcome of the trial, the harmless error doctrine
serves obvious and salutary interests in the administra-
tion of criminal justice.’ At bottom, by recognizing that
® See also, ¢.g., Rushen Vv. Spain, supra (right to be present at
trial) ; United States v. Hasting, supra (improper comment on de-
fendant’s silence at trial, in violation of the Fifth Amendment Self-
tIecrimination Clause); Hopper v. Evans, 456 U.S. 605, 613-614
(1982) (statute improperly forbidding court from giving a jury
instruction on a lesser included offense in a capita! case, in viola-
tie. of the Fourteenth Amendment Due Process Clause) ; Moore v.
Minois, 434 U.S. 220, 232 (1977) (admission of identification in
violation of the Sixth Amendment — ounsel Clause) ; Brown v. United
States, 411 U.S. 223, 231-232 (1973) (admission of out-of-court
statement in violation of the Sixth Amendment Confrontation
\ause) ; Milton v. Wainwright, 407 U.S. 371 (1972) (admission of
eenfession in violation of the Sixth Amendment Counsel Clause) ;
Chambers v. Maroney, 399 U.S. 42, 52-53 (1970) (admission of
evidence obtained in violation of Fourth Amendment) ; Coleman v.
Alabama, 399 U.S. 1 (1970) (denial of right to counsel at a pre-
liminary hearing in violation of the Sixth Amendment Counsel
Olause).
* By focusing attention on the underlying fairness of the trial,
rether than on immaterial technicalities, it reinforces the prin-
ciple that the basic purpose of a criminal trial is to decide the
fectual question of the defendant's guilt or innocence (see United
10
“justice, though due to the accused, is due to the accuser
also,” the harmless error doctrine allows an appellate
court “to keep the balance true” (Snyder v. Massachu-
setts, 291 U.S. 97, 122 (1934)) between society’s inter-
est in convicting the guilty and the defendant’s interest
in avoiding an unjust conviction. See Hasting, 461 U.S.
at 509.
2. Given the salutary purposes served by the harmless
error doctrine and the modern day proliferation of con-
stitutional rules governing criminal procedure, it is
hardly surprising that the Court has found that most
constitutional errors can be harmless. Hasting, 461 U.S.
at 509. At the same time, however, the Court has also
recognized that there is a small class of constitutional
errors that are so intrinsically inconsistent with the
rudiments of due process or inherently prejudicial that
reversal of a defendant’s conviction is necessary when-
ever such infractions occur. See Chapman, 386 U.S. at
23 n.8. The nature of each of these errors is defined in a
States v. Nobles, 422 U.S. 225, 230 (1975)), and not simply to
provide the factual basis for an appellate exposition of abstract
legal principles that do not affect the disposition of the case at
hand (cf. Wainwright v. Sykes, 433 U.S. 72, 90 (1977)). By re-
moving incentives for defense counsel to plant technical errors in
the record for the sole purpose of obtaining a reversal on appeal,
the harmless error doctrine not only eliminates matters that are
immaterial to the underlying fairness of the trial, but also fosters
the public respect for the legal process that is essential if self-help
is to be avoided, by proving that the victims of crime can rely upon
the criminal process to vindicate their injuries. See Hasting, 461
U.S. at 507, 509; Gregg v. Georgia, 428 U.S. 153, 183 (1976)
(opinion of Stewart, Powell, and Stevens, JJ.) ; Kotteakos v. United
States, 328 U.S. 750, 759-760 (1946); R. Traynor, The Riddle of
Harmless Error 14, 50 (1970); ef. Morris v. Slappy, 461 U.S. at
14-15. By contributing to finality, the harmless error doctrine pro-
tects society's interests in retribution, incapacitation, deterrence,
and rehabilitation. Cf. Engle v. Isaac, 4566 US. at 127 & n.32;
Sanders v. United States, 373 U.S. 1, 24-25 (1963) (Harlan, J.,
dissenting). Finally, by eliminating burdensome and needless re-
trials, it conserves scarce resources and averts the risk that a retrial
may cause new errors. See Hasting, 461 U.S. at 509.
11
way that makes it unacceptable, meaningless, or imprac-
tical to apply the harmless error doctrine to them.
The first and most obvious category of such errors are
those that effectively deprive the defendant of what could
meaningfully be considered a trial at all. The existence
of that category follows from the basic due process prin-
ciple that the government may not punish a person
“prior to an adjudication of guilt in accordance with due
process of law” (Bell v. Wolfish, 441 U.S. 520, 535
(1979) (footnote omitted)). Chapman identified two
such errors: forcing a defendant to stand trial before a
trier of fact with a financial interest in the outcome (see
Tumey Vv. Ohio, 273 U.S. 510 (1927)) and denying a
defendant the assistance of counsel at trial (see Gideon
v. Wainwright, 372 U.S. 335 (1963)). Cf. Drope v. Mis-
sourt, 420 U.S. 162 (1975) (compelling a mentally-incom-
petent defendant to stand trial) ; Moore v. Dempsey, 261
U.S. 86, 89 (1923) (mob dominated trial). Since the
two essential components of the modern concept of a fair
trial are a neutral and unbiased decisionmaker and the
assistance of an attorney, these errors effectively deny a
defendant any realistic opportunity for a fair trial as
we know it. See United States v. Cronic, No. 82-660
(May 14, 1984), slip op. 4-11; Engle v. Isaac, 456 U.S.
107, 134 (1982); United States v. Ash, 413 U.S. 300,
307-308 (1973). Accordingly, errors such as these, by
definition, cannot be excused on the ground that the de-
fendant received a fair trial despite the error. A similar
analysis would suggest that depriving a defendant of a
jury trial when he is entitled to one could never be harm-
less even if the bench trial he received was otherwise fair
and reliable.
Another type of nonharmless error is one that is both
likely by its nature to be damaging, yet at the same time
of such a character that reliable measurement of the
actual damage in any given case is almost always impos-
——————————
12
sible or highly impractical.” Few cases indeed fit into
this category. Holloway v. Arkansas, 435 U.S. 475
(1978), is one example; there, the Court ruled that de-
fense counsel’s timely objection to compulsory represen-
tation of co-defendants with conflicting interests was pre-
sumptively prejudicial. This type of error, Holloway ex-
plained, necessarily undermines an appellate court’s con-
fidence in the accuracy of the verdict because the error is
likely to affect the outcome in every case in a manner
that is not susceptible to effective appellate review. See
435 U.S, at 490-491.
A third category of errors inherently fatal to a convic-
tion consists of those claims as to which prejudice is it-
self already an element in establishing the occurrence of
a constitutional violation. See, e.g., United States v. Bag-
ley, No. 84-48 (July 2, 1985), slip op. 10-15 (Brady
claims) ; Strickland v. Washington, No. 82-1554 (May 14,
1984), slip op. 21-26 (ineffective assistance of counsel) ;
United States v. MacDonald, 435 U.S. 850, 858 (1978)
(speedy trial claims);"' ef. United States v. Young, slip
op. 15 n.14 (plain error under Fed. R. Crim. P. 52(b)).
Claims such as these are not subject to a harmless error
analysis because it is pointless to inquire whether an
In Justice Harlan’s words, “particular types of error have an
effect which is so devastating or inherently indeterminate that as
a matter of law they cannot reasonably be found harmless.” Chap-
man, 386 U.S. at 52 n.7 (dissenting). Chapman noted that the
receipt of a coerced confession fits into this category (see Payne
Vv. Arkansas, 356 U.S. 560 (1958)). However, the Court's later
decisions in Harrington v. California, 395 U.S. 250 (1969), and
Milton Vv. Wainwright, supra, have called into question whether
the admission of a coerced confession fits into this class of errors.
"A showing of prejudice is not an absolute prerequisite to
establishing a speedy trial violation. See Moore v. Arizona, 414 U.S.
25 (1973); Barker v. Wingo, 407 U.S. 514, 580-5388 (1972). But
consideration of prejudice nonetheless plays a major role in assess-
ing such a claim. See MacDonald, 435 U.S. at 858. For that reason,
this too is a category of cases in which it is fair to say that the
harmless error principle has in effect been folded into the decision
whether there was an error at all.
13
error affected the outcome of the trial if the defendant
has already shown that the error was prejudicial in prov-
ing its existence.”
B. Errors Of The Kind That Occurred In This Case Have
None Of The Attributes That Support Automatic
Reversal
In Connecticut v. Johnson, 460 U.S. 73 (1983), a plu-
rality of the Court suggested that an instruction stating
a conclusive presumption with respect to an unconceded
element of the offense cannot be harmless because it
amounts to a prohibited directed verdict of guilty. 460
U.S. at 84-87." Sandstrom, 442 U.S. at 517-519, and
Francis v. Franklin, No. 83-1590 (Apr. 29, 1985), slip
op. 5-17, did not decide whether instructions containing a
conclusive or a rebuttable presumption could be harmless,
but both cases held that such instructions are invalid be-
cause they can either lessen the government's burden of
proof or unconstitutionally shift the burden of proof to
the accused. In addition, Francis found that the rebut-
table presumption employed in that case—that the accused
was presumed to have killed with malice—was not harm-
less because it “ ‘completely eliminated’” his defense that
the killing was accidental. Slip op. 18 (citation omitted).
While those points explain the flaws taat make an instruc-
™ In his dissent in Chapman, Justice Harlan suggested a fourth
category that would include certain types of official misconduct
that might warrant reversal in every case to demonstrate society's
intolerance for intentional misbehavior. 386 U.S. at 52 n.7. How-
ever, Hasting clearly rejected any such theory, holding instead
that “the interests preserved by the doctrine of harmless error
cannot be so lightly and casually ignored in order to chastise * * *
prosecutorial overreaching.” 461 U.S. at 507; cf. Mabry v. Johnson,
No, 83-328 (June 11, 1984), slip op. 6; Smith v. Phillips, 455 U.S.
209, 219 (1982).
“ The plurality left open a possible exception for cases in which
the defendant essentially concedes the issue in dispute, as where
a defendant concedes the issue of intent by raising an alibi or
insanity defense. 460 U.S. at 87.
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~y> (J.A. 181-182, 184; 8 Tr. 1075-7076, 1083-
8 Tr. 1084-1085, 1087-1088). “Given the common defini-
tion of [rebut]” (Sandstrom, 442 U.S. at 517) as “to
the case” (Francis, slip op. 9), the instructions on malice
given here cannot be deemed to be the equivalent of a
directed verdict on this element of the offense.
™ JA. 182, 183 (twice); id. at 184, 186 (thrice) ; id. at 187, 188,
189, 190 (thrice); id. at 195; 8 Tr. 1076, 1078, 1081, 1084, 1086
(twice); id. at 1088-1089, 1090-1091, 1095-1096, 1097, 1098, 1099,
1100-1101; see id. at 1091-1092, 1094-1095.
SS
16
The plurality in Connecticut v. Johnson appears to sug-
gest (460 U.S. at 85-86) that, because the vice of an
improper presumption is that it may have caused the
jury to find the presumed fact without actually weighing
the evidence, it is illegimate for a reviewing court to de-
termine the effect of the instruction on the jury’s findings
regarding the factual elements of the offense. But we fail
to see a qualitative difference between this and other
kinds of trial errors that are subject to a harmless error
analysis. Leaving aside exclusionary rules, what makes a
ruling an “error” is its potential to distort the jury’s con-
sideration of the facts and its application of the law to
those facts. Unless the distortion produced by the error
transforms the proceedings into something wholly inade-
quate and effectively eliminates the jury’s role as fact-
finder, a reviewing court can and should ask whether the
error may with sufficient confidence be found not to have
affected the verdict in the circumstances of the case
before it.”®
History also strongly militates against the conclusion
that an improper presumption denies a defendant the
essence of a trial. The instructions on malice given in
this case stated principles of the law of homicide that had
their roots in the common law as expeunded by Coke and
Blackstone (R. Perkins & R. Boyce, Criminal Law 75-78
(3d ed. 1982)) and that had been given in criminal trials
in state and federal courts countless times prior to the
decision in Sandstrom. This Court itself had noted that
“at common law, men are presumed to intend the nat-
1 True, it is never certain that the jury would not, in the absence
of the offending instruction, have reached an irrational verdict.
But a reviewing court is not generally obliged to defer to such a
possibility. The Court made this precise point in Strickland v.
Washington, supra, explaining that “[a]n assessment of the likeli-
hood of a result more favorable to the defendant must exclude the
possibility of arbitrariness, whimsy, caprice, ‘nullification,’ and the
like,” since “{a} defendant has no entitlement to the luck of a law-
less decisionmaker, even if a lawless decision cannot be reviewed.”
Slip op. 24.
17
ural consequences of their act and cannot escape pun-
ishment for taking life on the claim that they had not
intended or expected that such consequence would resu!t
from what they purposely did.” Pico v. United States,
228 U.S. 225, 231 (1913). In fact, the Court had upheld
a jury instruction voicing, as the Court put it, “nothing
more than a statement of the familiar proposition that
every man is presumed to intend the natural and probable
consequences of his own act.” Allen v. United States, 164
U.S. 492, 496 (1896). It is quite dubious that jury in-
structions with this pedigree are so invariably prejudicial
and so offensive to due process principles that they ren-
dered literally thousands of trials over more than two
centuries of Anglo-American common law a virtual
nullity.”
2. Jury Instructions Like Those Given Here Are Not
So Likely To Be Prejudicial That A Harmless Error
Inquiry Is Futile
The problems caused by improper presumptions are
twofold: they may have induced the jury to rely upon
the presumption rather than the evidence in finding that
respondent was guilty, or they may have led the jury to
believe that respondent had the burden of disproving
malice. Francis, slip op. 9-11. The issue then is whether
the verdict can be upheld given the uncertainty created
by these instructions. /d. at 14-15 n.8. Of course,
every error that occurs at trial raises some conceivable
doubt whether it influenced the jury, but the harmless
16 Cf. Patterson Vv. New York, 432 U.S. 197, 202 (1977) (uphold-
ing state law placing burden of persuasion on accused on affirma-
tive defenses; “[t]his was the rule when the Fifth Amendment was
adopted, and it was the American rule when the Fourteenth Amend-
ment was ratified”); Barnes v. United States, 412 U.S. 837, 843
(1973) (instruction that the jury may infer guilty knowledge from
the unexplained possession of stolen goods states “a traditional
common-law inference deeply rooted in our law’).
18
error doctrine requires a court to disregard those errors
that it can say with sufficient confidence did not mate-
rially contribute to the verdict. Whether that doctrine
can apply in a given case will turn upon the likelihood
that an error affected the verdict and the degree of uncer-
tainty that the criminal justice system is willing to
accept. The category of errors is small in which that
inquiry is altogether foreclosed because they are invari-
ably prejudicial or their impact is impossible to assess.
See United States v. Cronic, slip op. 10-13.
Francis suggested, but did not hold, that the inherent
uncertainty stemming from an unconstitutional presump-
tion might be too great for the criminal justice system to
accept. Slip op. 14-15 n.8, citing Stromberg v. California,
283 U.S. 359 (1931). Stromberg held that an instruction
allowing the jury to convict the accused for engaging in
activities that were protected by the First Amendment
was unconstitutional, notwithstanding the possibility that
the jury could have rested its verdict upon an alternative
and constitutionally unobjectionable basis. See 283 U.S.
at 367-370. There are, of course, no First Amendment
principles implicated by this case, and the need to avoid
punishing protected speech is thus wholly absent here.
Instead, the question is whether the possibility that the
jury may have relied upon an unlawful presumption is
too great for the criminal justice system to accept, re-
gardless of the sufficiency of the proof of the defendant’s
guilt, the nature and sufficiency of the defenses that he
asserted at trial, and the factual findings underlying the
jury’s verdict.
In contrast to the suggestion in the Francis footnote
stands the holding in United States v. Frady, 456 U.S.
152 (1982), which makes clear that this question cannot
be given a categorical answer and must be resolved by
looking to the facts of each case. In Frady, the defendant
contended that he was denied a fair trial by the use of
jury instructions on malice that were not materially dif-
ferent from those given here. See 456 U.S. at 158 & n.7.
Because the defendant did not object to the instructions
19
at his trial, the Court held that he was required to prove,
inter alia, that he had been prejudiced by their use in his
case. In so ruling, the Court expressly rejected his claim
that “an error in the instructions concerning an element
of the crime charged amounts to prejudice per se, regard-
less of the particular circumstances of the individual
ease” (id. at 170). Instead, the Court held that a defend-
ant must “shoulder the burden of showing, not merely
that the errors at his trial created a possibility of prej-
udice, but that they worked to his actual and substantial
disadvantage, infecting his entire trial with error of
constitutional dimension.” Jbid. (emphasis in original).
Finding that the proof of malice was overwhelming and
had not been controverted by the defendant’s alibi de-
fense, the Court held that he had not been prejudiced by
the instructions, a conclusion also supported by the jury’s
finding that the murder was premeditated and deliberate.
Id. at 171-174. Frady therefore forecloses the conclusion
that erroneous instructions on malice are not subject to
a harmless error analysis."
Frady does not stand alone. The Court has found that
a variety of different errors of similar dimension in jury
instructions do not automatically require the judgment to
be set aside. See Zant v. Stephens, 462 U.S. 862 (1983)
(jury instruction based on unconstitutionally vague ag-
gravating factor at a capital sentencing hearing does not
invariably require reversal) ; Kentucky v. Whorton, 441
U.S. 786 (1979) (failure to give a jury instruction on the
presumption of innocence does not invariably require re-
versal) ; Henderson v. Kibbe, 431 U.S. 145 (1977) (fail-
ure to instruct jury on causation is not always prejudi-
cial) ; Anderson v. United States, 417 U.S. 211, 227-228
17 To be sure, in Frady the defendant was required to carry the
burden of showing prejudice on account of his procedural default,
whereas the question here is whether the prosecution is to be per-
mitted to take up the burden of showing the absence of prejudice
beyond a reasonable doubt. The pertinent point about Frady, of
course, is not the burden of persuasion but the Court’s recognition
of the feasibility of the inquiry.
20
(1974) (failure to instruct on an essential element of the
offense is not plain error where the verdict shows that the
jury would have found that element of the offense had it
been properly charged) ; cf. Barclay v. Florida, 463 US.
939 (1983) (sentencing judge’s reliance upon an aggra-
vating factor that is invalid under state law does not
require capital sentence to be vacated) ."
The experience of the lower courts reinforces this
Court’s ruling in Frady that an erroneous jury instruc-
tion on malice will not so frequently affect the outcome of
a trial that a case-by-case determination of the actual
effect that the charge may have had is unwarranted. The
nearly unanimous opinion of the federal courts of appeals
is that this question can generally be addressed without
8 Other decisions by the Court (in cases that did not present this
issue) have also involved factual situations in which it could be
said with complete assurance that no reasonable juror could have
failed to conclude that the defendant acted with malice. For example,
could there be any doubt that Timothy McCorquodale, whose crimes
were twice described by this Court as a “horrifying torture-murder”
(Gregg V. Georgia, 428 U.S. at 201 (footnote omitted) ( opinion of
Stewart, Powell, and Stevens, JJ.) ; Godfrey Vv. Georgia, 446 U.S.
420, 429-430 (1980) (plurality opinion) ), acted with malice afore-
thought? (In fact, the Eleventh Circuit found that jury instruc-
tions like those given here were harmless in McCorquodale’s case:
McCorquodale v. Balkcom, 705 F.2d 1553, 1555-1556, adopted in
pertinent part, 721 F.2d 1493, 1502 (11th Cir. 1983) (en banc),
cert. denied, 466 U.S. 954 (1984)). See also Baldwin v. Alabama,
No. 84-5743 (June 17, 1985), slip op. 2 (over a 40-hour period,
victim was brutalized, choked, repeatedly stabbed, run over by a
car, and had her throat cut with a hatchet) ; Wainwright v. Goode,
464 U.S. 78, 79-80 (1983) (defendant strangled ten-year old boy
with a belt; at trial, defendant “testified in graphic detail as to the
circumstances of the killing” and stated that “he was ‘extremely
proud’ of having murdered [the victim] ‘for the fun of it’”);
Hopper Vv. Evans, 456 U.S. 605, 606-607, 612-613 (1982). Tennessee
has also had its share of such homicides. See, €.g., Tennessee Vv.
Street, No. 83-2143 (May 13, 1985), slip op. 1-2 (robbery victim
hanged); State v. Matson, 666 S.W.2d 41 (Tenn. 1984) (victim
murdered to prevent him from identifying defendant).
21
undue difficulty. The First, Second, Fourth, Fifth, Sixth,
Ninth, Eleventh, and District of Columbia Circuits have
held that jury instructions of this type can be harmless
where the evidence conclusively proves the issue in dis-
pute and the defense raised by the accused does not con-
test that issue, or where other findings by the jury elimi-
nate any uncertainty that the jury would have found the
element in dispute. Although the Eighth Circuit has held
that an instruction of this type ordinarily is presump-
tively prejudicial, even that court would be likely to find
that the instructions in this case were harmless, since the
jury’s first degree murder verdict eliminates any uncer-
tainty caused by the instructions on malice.” See pages
23-24, infra. Most state courts to consider the question
have also found that these instructions can be harmless.
The lower court cases are collected in an appendix to this
brief.
C. Respondent Was Not Prejudiced By The Instructions
On Malice That Were Given In His Case
The remaining inquiry is whether respondent was ac-
tually prejudiced by the trial court’s instructions on malice
in his case. The principles governing review of a claim
that jury instructions denied the accused a fair trial are
well settled. First, “a single instruction to a jury may
not be judged in artificial isolation, but must be viewed
in the context of the overall charge.” Cupp v. Naughten,
414 U.S. 141, 146-147 (1973); see also Francis, slip op.
11; Whorton, 441 U.S. at 788-789; Kibbe, 431 U.S. at
153-156; United States v. Park, 421 U.S. 658, 674-676
(1975). Moreover, because “the process of instruction
itself is but one of several components of the trial which
may result in [a] judgment of conviction” (Cupp, 414
1 See Redding v. Benson, 739 F.2d 1360, 1363-1365 (Sth Cir.
1984), cert. denied, No. 84-5908 (Feb. 19, 1985) (failure to instruct
the jury on essential element of the offense is harmless where the
jury necessarily found that element nonetheless because of other
instructions) .
22
U.S. at 147), even on direct appeal a court must “view
the [jury] charge itself as part of the whole trial”
(Park, 421 U.S. at 674). The issue in a collateral pro-
ceeding, such as this one, is “ ‘whether the ailing instruc-
tion by itself so infected the entire trial that the result-
ing conviction violates due process,’ * * * not merely
whether ‘the instruction is undesirable, erroneous, or even
“universally condemned.”’” Kibbe, 431 U.S. at 154
(citation omitted); Cupp, 414 U.S. at 146-147. When
the record of respondent’s trial is realistically appraised,
there can be no serious doubt that he was not substan-
tially prejudiced by the instructions on malice.
1. An appropriate starting point is to compare the
jury instructions given at respondent’s trial with others
on the same subject that would have been unobjectionable.
Cf. Zant, 462 U.S. at 888; Kibbe, 431 U.S. at 154-157.
For example, the trial court could have told the jury that
(1) it may consider that the killings had been accom-
plished by the use of a deadly weapon in deciding whether
the State had proved malice, and (2) it may consider all
of the surrounding circumstances in determining whether
respondent acted with malice. Given the evidence at
respondent’s trial, it is virtually certain—indeed, the
jury’s first degree murder verdict makes it absolutely
certain—that the jury would have found that he acted
with malice even if these jury instructions had been given
in lieu of the ones that were actually used.
In this case, the evidence of malice was little short of
overwhelming; to borrow a phrase from Frady, the evi-
dence at trial showed that there was “ ‘malice aplenty’ ”
(456 U.S. at 171 (citation omitted)). Two weeks before
the night in question, respondent borrowed the murder
weapon from a friend, using the ruse that his own
revolver had been stolen. On the night of the slayings,
respondent followed Faulk and Browning to a remote
location at which, by deftly positioning his own car, he
prevented their escape. At that point, and in full view
of Faulk’s two children, respondent shot Faulk and
Browning in the head at point-blank range. Indeed, it is
23
fair to say that the State’s proof in this case was, as in
Frady, virtually conclusive on this issue. Compare pages
1-2, supra, with 456 U.S. at 171-172. Accordingly, even
if a misstatement of the law is more likely to be prejudi-
cial than an incomplete statement or an omission (Kibbe,
431 U.S. at 155), in this case the likelihood that a pro-
perly instructed jury would have found that respondent
acted without malice is virtually nil.
For that reason, this case bears no resemblance to
Francis. There, the defendant, while attempting to escape
from custody, knocked on the door of a nearby home and
demanded the resident’s car keys. As the occupant
slammed the door, Franklin’s gun discharged, killing the
necupant. Franklin’s sole defense at trial was that the
occupant was killed as the result of an accidental response
to the slamming of the door, a defense supported by his
treatment of everyone else he came across during his
attempted escape. Slip op. 1-3. This Court upheld the
court of appeals’ finding that an erroneous instruction on
malice was not harmless because “ ‘{Franklin’s] defense
was that he did not have the requisite intent to kiil’” and
““'tihe facts did not overwhelmingly preclude that de-
fense’” (id. at 17-18 (citation omitted)). The Court
also found additional support for that conclusion in the
fact that the jury had asked the tria! court to be rein-
structed on the elements of malice and on Franklin’s
accident defense. /d. at 18. None of those factors is
present here.
2. Moreover, the jury found respondent guilty of the
first degree murder of Faulk, and neither the district
court nor the the court of appeals found any error in the
instructions on the additional mens rea components con-
stituting that offense. Under the instructions on first
degree murder given at respondent’s trial, the verdict
shows that the jury found that he had acted willfully
and with premeditation and deliberation on an intent to
kill. Given the evidence of respondent’s preparation for
2° The trial court instructed the jury as follows: (J.A. 184-185;
8 Tr. 1084-1085): “For you to find the Defendant guilty of murder
24
the crimes and the manner in which they were carried
out, it is inconceivable that the jury that found that he
acted willfully and with premediation and deliberation,
would, if correctly instructed, have failed to find malice,”
and neither the district court, the court of appeals, nor
respondent has offered any plausible basis for so conclud-
ing. See Frady, 456 U.S. at 169-174; United States v.
Green, 424 F.2d 912, 913 (D.C. Cir. 1970); Belton v.
United States, 382 F.2d 150, 155 (D.C. Cir. 1967); ef.
Kibbe, 431 U.S. at 156 (“the jury’s determination that
the respondent acted recklessly necessarily included a
determination that the ultimate harm was foreseeable to
him’).
3. Finally, in this case, unlike Francis, the trial court’s
instructions on malice did not completely eliminate any
in the first degree, the State must have proven beyond a reasonable
doubt: [{] (1) That the Defendant unlawfully killed the alleged
victim. ({{] (2) That the killing was malicious: That is, that the
Defendant was of the state of mind to do the alleged wrongful act
without legal justification or excuse. If it is shown beyond a reason-
able doubt that the alleged victims were killed, the killing is pre-
sumed to be malicious in the absence of evidence which would rebut
the implied * * * presumption. [{] (3) That the killings were
willful: That is, that the Defendant must have intended to take
the life of the alleged victim. [{] (4) That the killing was de-
liberate: That is, with cool purpose. [{%] (5) That the killing was
premeditated. This means that the intent to kill must have been
formed prior to the act itself. Such intent or design to kill may
be conceived and deliberately formed in an instant. It is not nec-
essary that the purpose to kill preexist in the mind of the accused
for any definite period of time. It is sufficient that it preceded the
act, however short the interval.” These instructions were consistent
with Tennessee law on first degree murder. See, e.g., State v.
Bullington, 5382 S.W.2d 556, 559 (Tenn. 1976); Swan v. State, 23
Tenn. (4 Hum.) 136, 139 (1843); Anthony v. State, 19 Tenn. (1
Meigs) 265, 277 (1838); Dale v. State, 18 Tenn. (10 Yer.) 551,
551-552 (1837).
21 Under Tennessee law, multiple gun shot wounds to the victim
is a sufficient basis for the jury to find that the defendant acted
with premeditation and deliberation. See, e.g., Houston v. State,
593 S.W.2d 267, 273 (Tenn. 1980); State v. Story, 608 S.W.2d 599,
601 (Tenn. Crim. App. 1980).
25
of respondent’s chosen defenses; on the contrary, the in-
structions on malice aforethought were simply irrelevant
to the defenses that respondent raised at trial.
Respondent’s primary defense was that Faulk’s ex-
husband, not he, had committed the crimes. In that
respect, this case is not materially different from Frady,
in which the Court held that the defendant was not pre)-
udiced by similar instructions because his defense was
that he had not been involved in the murder. 456 U.S. at
169-174. And although the evidence showing that re-
spondent had committed the murders, aside from the
testimony of Faulk’s daughter, was largely circumstantial,
the evidence plainly showed that whoever was responsible
for the slayings acted with malice. Accordingly, since the
evidence on this issue was overwhelming and was not
controverted by respondent’s defense that someone else
did the killing, there is no realistic possibility that the
instructions on malice could have prejudiced his alibi de-
fense. See Frady, 456 U.S. at 169-174; Martin v. Foltz,
773 F.2d 711, 719 (6th Cir. 1985) ; Tucker v. Kemp, 762
F.2d 1496, 1501-1503 (llth Cir. 1985) (en banc);
McCleskey v. Kemp, 753 F.2d 877, 903-904 (11th Cir.
1985) (en banc), petition for cert. pending, No. 85-6811;
Charles v. Foltz, 741 F.2d 834, 839 (6th Cir. 1984) ; Gar-
land v. Maggio, 717 F.2d 199, 203-204 (5th Cir. 1983) ;
McGuinn Vv. Crist, 657 F.2d 1107, 1108-1109 (9th Cir.
1981), cert. denied, 455 U.S. 990 (1982); see also John-
son, 460 U.S. at 87 (plurality opinion). Beyond that,
respondent did not object at trial to the instructions on
malice (Pet. App. Al0 n.6), which adds support to the
conclusion that these instructions were not perceived as
likely to prejudice his defense. See Wainwright v. Witt,
No. 83-1427 (Jan. 21, 1985), slip op. 18 & n.11; id. at 2-3
(Stevens, J., concurring) ; Engle v. Isaac, 456 U.S. at 136
n.1 (Stevens, J., concurring in part and dissenting in
part).*
22 Respondent’s alibi defense was itself quite weak. Respondent
did not testify; nor did any defense witness pinpoint his where-
26
Somewhat inconsistently, respondent also claimed that
he was insane at the time of the murders and thus should
not be held responsible for those crimes. But the jury
was expressly instructed not to consider respondent’s
insanity claim unless and until it found that he had com-
mitted the crimes charged against him (8 Tr. 1091-1092).
This instruction is consistent with Tennessee ** (and fed-
eral**) law, under which a defendant’s “diminished
abouts at the relevant time. One defense psychiatrist testified that
respondent offered only “vague” and “confusing” answers as to
where he was that night (J.A. 100, 101; 6 Tr. 819, 843), while the
other defense psychiatrist testified that h° could not remember
exactly what respondent had told him (J.A. 134; 7 Tr. 877). By
contrast, several eyewitnesses testified for the State that Sam
Faulk, who respondent claimed had committed the murders, had
spent the entire evening at a local bar. See pages 2-3 note 1,
supra.
23 See Graham vy. State, 547 S.W.2d 531 (Tenn. 1977) (insanity
is a legal excuse for a crime). The Tennessee Supreme Court's
decision in Graham adopted the ALI Model Penal Code test for
insanity and also approved (547 S.W.2d at 543) questions for the
jury on this issue that were adopted in United States v. Smith,
404 F.2d 720, 727 (6th Cir. 1968). Those questions are limited to
the issue whether the defendant was sane at the time of the
charged offense; they do not instruct the jury to consider evidence
of a defendant’s mental disease when determining whether he is
guilty of the crimes charged against him. 404 F.2d at 727. The
state courts’ rulings in this case confirm this point. At trial, re-
spondent proposed several jury instructions presenting a diminished
capacity defense, all of which were rejected by the trial court. See
R. 107, 110, 111-112, 116; 8 Tr. 1104. On appeal, respondent argued
that the trial court’s refusal to give these instructions was errone-
ous (see Assignments of Error, Brief and Argument on Behalf
of Stanley Barnham Clark at 74-77, State v. Clark, No. 8149 (Tenn.
Crim. App. filed May 16, 1980)), and the Tennessee Court of
Criminal Appeals rejected his argument (see Pet. App. A36). It
is thus clear that Tennessee docs not have a diminished capacity
defense to murder.
*4 Congress has rejected the diminished capacity defense for fed-
eral criminal prosecutions. See the Comprehensive Crime Control
Act of 1984 (Insanity Defense Reform Act of 1984), Pub. L. No.
98-473, § 402, 98 Stat. 2057 (to be codified at 18 U.S.C. 20) (mental
27
capacity,” as that defense is known, is not a defense to a
crime unless it amounts to insanity. The malice charge
therefore could not have affected respondent’s insanity
defense. See Bowen v. Kemp, 769 F.2d 672, 676-678
(llth Cir. 1985); see also Johnson, 460 U.S. at 87
(plurality opinion).
Nor did the instructions on malice prejudice any of the
remaining defenses respondent asserted at trial. For
instance, respondent also presented evidence to the effect
that he was suffering from amnesia at the time of the
trial. However, the jury was told that amnesia, by itself,
was not a defense to any of the charges against respond-
ent (J.A. 195; 8 Tr. 1098).% The instructions on malice
were therefore irrelevant to this alleged defense. Re-
spondent also claimed that he was voluntarily intoxicated
at the time of the crimes and thus could not have pos-
sessed the mens rea necessary for murder. However,
voluntary intoxication, while a defense to first degree
murder, was no defense to second degree murder (J.A.
disease does not constitute a defense unless it satisfies the test
for insanity) ; S. Rep. 98-225, 98th Cong., lst Sess. 229 (1983).
25 See Thomas v. State, 201 Tenn. 645, 652-653, 301 S.W.2d 358,
361 (1957) (amnesia without more does not establish insanity) ;
Lester v. State, 212 Tenn. 338, 344-348, 370 S.W.2d 405, 408-409
(1963) (same); Burton v. State, 217 Tenn. 62, 66-68, 394 S.W.2d
873, 875 (1965) (same); Sparkman v. State, 469 S.W.2d 692, 696-
697 (Tenn. Crim. App. 1970). As the Tennessee Court of Criminal
Appeals summarized in Sparkman, “[i]nsanity and amnesia are
distinct conditions, even though amnesia sometimes is an incident
of insanity. Insanity is incapacity to discriminate between right
and wrong, while amnesia is simply the inability to remember.
* * * Amnesia alone is no defense to a criminal charge, unless it is
shown by competent evidence that the accused did not know the
nature and quality of his action and that it was wrong.” 469 S.W.2d
at 696-697. The district court’s ruling that amnesia is a defense
under Tennessee law (Pet. App. A20) is clearly in error and should
not be given any weight by this Court (see Brockett v. Spokane
Arcades, Inc., No. 84-28 (June 19, 1985), slip op. 8 & n.9).
28
193-195; 8 Tr. 1097-1098).*° The instructions on malice
therefore could have had no effect on this alleged defense
either. Additionally, because respondent plainly did not
succumb to amnesia or become intoxicated between the
times that he shot Faulk and Browning, the jury’s find-
ing that he acted willfully and with premeditation and
deliberation when he murdered Faulk clearly demon-
strates that the jury found that respondent’s claim of
voluntary intoxication was insufficient to raise a reason-
able doubt of his guilt of that crime.*’
26 See Pirtle v. State, 28 Tenn. (9 Hum.) 663, 664-673 (1849)
(voluntary intoxication may be a defense to first degree murder,
by negating premeditation and deliberation, but is not a defense
to second degree murder) ; Haile v. State, 30 Tenn. (11 Hum.) 154,
155-153 (1850) (same); Lancaster v. State, 70 Tenn. 575, 577-
578 (1879) (same); Cartwright v. State, 76 Tenn. 376, 380-386
(1881) (same); Thomas y. State, 201 Tenn. at 647-651, 301
S.W.2d at 359-360 (same); State v. Bullington, 532 S.W.2d 556,
560 (Tenn. 1976) (same) ; State v. Adkins, 653 S.W.2d 708 (Tenn.
1983) (same); State v. Plummer, 658 S.W.2d 141, 143 (Tenn.
Crim. App. 1983) (same) ; see also W. LaFave & A. Scott, Criminal
Law § 45, at 345 (1972). The district court misconstrued state law
in concluding that voluntary intoxication is a defense to a charge
of second degree murder (Pet. App. A20).
27 What is more, respondent’s proof of amnesia and voluntary
intoxication was less than overwhelming. Respondent’s amnesia
appears to have been quite selective: it was limited to the period
immediately surrounding the time of the killings (J.A. 96-103, 116-
117, 134; 6 Tr. 812-823, 843; 7 Tr. 877). Respondent’s voluntary
intoxication claim was based upon his statement to the defense
psychiatrists that he had consumed as much as six six-packs of
beer and one pint of vodka on the day in question, which appears
to be at odds with his claim that he could generally remember the
events of that day and that he could drive an automobile (J.A. 96-
101; 6 Tr. 814-819). One defense psychiatrist expressed some doubt
whether he believed respondent’s claim (J.A. 97; 6 Tr. 814-815),
and the State’s psychiatrist testified that consumption of that
amount of alcohol in one day “approach[ed] the lethal amount of
alcohol,” would render a person “extremely sick,” and, even if not
physically impossible, was “very unlikely” (J.A. 160-161; 6 Tr.
943-944).
29
In sum, it is beyond any reasonable doubt that respond-
ent was not prejudiced by the erroneous instructions on
malice. Neither of the two valid defenses asserted by
respondent could have been affected by these instructions,
and respondent’s other claims did not state valid defenses
under the instructions given to the jury or under state
law. This case is not materially different from Frady,
where the Court held that the defendant was not prej-
udiced by similar instructions. It necessarily follows
that the lower courts erred by ordering that respondent
be retried.
CONCLUSION
The judgment of the court of appeals should be
reversed.
Respectfully submitted.
CHARLES FRIED
Solicitor General
STEPHEN S. TROTT
Assistant Attorney General
ANDREW L. FREY
Deputy Solicitor General
PAUL J. LARKIN, JR.
Assistant to the Solicitor General
DECEMBER 1985
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APPENDIX
A. The foliowing courts have held that jury instruc-
tions containing a conclusive presumption (Sandstrom;
Johnson), a rebuttable presumption (Francis), or a simi-
lar type of error, may be harmless in a given case:
First Circuit: United States v. Winter, 663 F.2d 1120,
1144-1145 (1981), cert. denied, 460 U.S. 1011 (1983)
(Sandstrom instruction harmless where defense was non-
participation).
Second Circuit: Fournier v. LeFevre, 734 F.2d 125,
128-129 (1984) (Sandstrom instruction harmless where
there was no issue at trial whether the defendant acted
intentionally, only what precise intent the defendant had,
and the defendant’s own testimony established that he
had either requisite intent) ; Mancuso v. Harris, 677 F.2d
206, 210-211 (1982) (Sandstrom instruction harmless in
light of other instructions, felony-murder theory of lia-
bility, and defense of nonparticipation); Nelson v.
Scully, 672 F.2d 266, 271-272, cert. denied, 456 U.S. 1008
(1982) (Sandstrom instruction harmless given other in-
structions) ; see also Washington v. Harris, 650 F.2d 447,
453-454 (1981), cert. denied, 455 U.S. 951 (1982)
(dictum that Sandstrom instructions can be harmless}.
Compare Simmons Vv. Dalsheim, 702 F.2d 423, 424 (1983),
aff’g on basis of district court’s opinion, 543 F. Supp.
729 (S.D.N.Y. 1982) (jury instruction placing burden of
proof on defendant on alibi defense prejudicial) ; Ramirez
v. Jones, 683 F.2d 712, 715-716 (1982) (error prejudi-
cial where intent to kill in dispute).
Fourth Circuit: Tweety v. Mitchell, 682 F.2d 461, 465
(1982), cert. denied, 460 U.S. 1013 (1983) (Sandstrom
instruction harmless where there were “mitigating” in-
structions and the evidence of intent was overwhelming) ;
see also Fulton v. Warden, 744 F.2d 1026, 1031-1034
(1984) (jury instruction shifting the burden of proof to
(la)
2a
the defense on an alibi defense did not require setting
aside the conviction, but applying a more demanding
standard than the Chapman harmless error standard, be-
cause of habeas corpus considerations) ; United States v.
Davis, 739 F.2d 172, 174-175 (1984) (jury instruction
arguably placing burden of proof on defendant on in-
toxication defense harmless in light of other instructions
requiring government to prove specific intent).
Fifth Cireuit: Garland v. Maggio, 717 F.2d 199, 203-
204 (1983) (Sandstrom instruction harmless where de-
fense was nonparticipation) ; Healy v. Maggio, 706 F.2d
698, 701-702 (1983) (Sandstrom instruction harmless
where proof of intent was overwhelming even though in-
_ tent was a disputed issue, since defense was accidental
homicide) ; United States v. Fricke, 684 F.2d 1126, 1129
(1982), cert. denied, 460 U.S. 1011 (1988) (Sandstrom
instruction harmless where intent was not at issue) ; see
also United States v. Spiegel, 604 F.2d 961. 968-970
(1979), cert. denied, 446 U.S. 935 (1980) (Francis in-
struction not plain error in that case). Compare Mason
Vv. Balkcom, 669 F.2d 222, 227 (1982), cert. denied, 460
U.S. 1016 (1983) (Sandstrom instruction prejudicial
where evidence of guilt was not overwhelming and de-
fense was lack of premeditation and deliberation). But
see Hammontree v. Phelps, 605 F.2d 1371, 1380 (1979)
(mandatory, conclusive presumption cannot be harmless).
Sixth Cireuit: Logan v. Agshire, No. 85-1290 (Dec.
9, 1985), slip op. 3-4 (Sandstrom instruction harmless
where proof of intent overwhelming); Martin vy. Foltz,
773 F.2d 711, 719 (1985) (“ ‘malice is implied’ ” jury
charge is harmless where the only issue at trial was
whether the defendant participated in the crime and
there was no question that whoever committed the murder
did so with an intent to kill) ; Charles v. Foltz, 741 F.2d
834, 839 (1984) (same instruction harmless in similar
circumstances) ; United States v. Crowder, 719 F.2d 166,
172-173 (1983), cert. denied, 466 U.S. 974 (1984) (error
harmless where proof of intent was sufficient even though
ee
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es
3a
intent was a disputed issue) ; Conway v. Anderson, 698
F.2d 282, 285-286, cert. denied, 462 U.S. 1121 (1983)
(error harmless where proof of intent was overwhelming
and intent was not a disputed issue); Krzeminski_ v.
Perini, 614 F.2d 121, 125, cert. denied, 449 U.S. 866
(1980) (Sandstrom instruction harmless where defendant
admitted element of offense). Compare Engle v. Koehler,
707 F.2d 241, 246 (1983), aff’d by an equally divided
court, 466 U.S. 1 (1984) (Sandstrom instruction preju-
dicial where intent was a disputed issue at trial) ; Phillips
V. Rose, 690 F.2d 79, 81-82 (1982) (error prejudicial
where evidence supported accident defense) ; Burton v.
Bergman, 649 F.2d 428, 431-432 (Sandstrom instruction
prejudicial where evidence of intent in dispute) .
Ninth Circuit: McGuinn Vv. Crist, 657 F.2d 1107, 1108-
1109 (1981), cert. denied, 455 U.S. 990 (1982) (Sand-
strom instruction harmless where defense was alibi).
Compare In re Hamilton, 721 F.2d 1189, 1191-1192
(1983) (Sandstrom instruction would be prejudicial if
intent was a disputed issue at trial; remanding case to
district court for further inquiry).
Eleventh Circuit: Bowen v. Kemp, 769 F.2d 672, 676-
678 (1985) (Sandstrom instruction harmless where evi-
dence conclusively established intent and defense was in-
sanity) ; Tucker v. Kemp, 762 F.2d 1496, 1501-1503 (1985)
(en banc) (Francis instruction harmless where defense
was nonparticipation in the murder and evidence of intent
was overwhelming) ; McCleskey v. Kemp, 753 F.2d 877,
903-904 (1985) (en banc), petition for cert. pending, No.
84-6811 (Francis instruction harmless where proof of
intent overwhelming and defense was alibi); Davis v.
Kemp, 752 F.2d 1515, 1521 (1985) (en banc), cert. de
nied, No. 84-6601 (June 3, 1985) (Francis instruction
harmless where proof of intent was overwhelming and
defense was nonparticipation); Jarrell v. Balkcom, 735
F.2d 1242, 1257 (1984) (Francis instruction harmless
where proof of guilt was overwhelming and alibi was
“very weak”); Collins v. Francis, 728 F.2d 1322, 1330-
4a
1331 (1984) (Sandstrom instruction harmless where de-
fense was nonparticipation) ; id. at 1351-1352 (Tjoflat,
J., concurring specially) (same); McCorquodale v. Balk-
com, 705 F.2d 1553, 1555-1556, adopted in pertinent
part, 721 F.2d 1493, 1502 (1983) (en banc), cert. denied,
466 U.S. 954, order staying execution, 467 U.S. 1202
(1984), order vacating stay of execution, No. 83-6350
(Feb. 25, 1985) (Sandstrom instruction harmless where
defense admitted guilt); Lamb v. Jernigan, 683 F.2d
1332, 1342-1343 (1982), cert. denied, 460 U.S. 1024
(1983) (Sandstrom instruction harmless where proof of
guilt was overwhelming). Compare Corn v. Kemp, 772
F.2d 681, 683 n.2 (1985) (Francis instruction prejudicial
where intent was a disputed issue); Carter v. Mont-
gomery, 769 F.2d 1537, 1541-1542 (1985) (Francis in-
struction prejudicial where defense was accidental homi-
cide) ; Thomas v. Kemp, 766 F.2d 452, 455-456 (1985)
(Francis instruction prejudicial where proof of intent not
overwhelming and defense was intoxication); Drake v.
Kemp, 762 F.2d 1449, 1458, 1457 (1985), petition for
cert. pending, No. 85-556 (Francis instruction harmful
where one of the alternative bases of liability required
proof of intent even though defense was alibi) ; Brooks v.
Kemp, 762 F.2d 1383, 1390-1394 (1985) (en banc), peti-
tion for cert. pending, No. 85-553 (Francis instruction
prejudicial where defense was accidental homicide) ; Pat-
terson V. Austin, 728 F.2d 1889, 1395-1396 (1984)
(Francis instruction prejudicial where evidence would
have supported conviction for lesser offenses of voluntary
or involuntary manslaughter, or self-defense).
District of Columbia Circuit: United States v. Martin,
475 F.2d 943, 946-950 (1973) (instruction placing bur-
den of proof on defendant on intoxication defense is harm-
less) ; United States v. Green, 424 F.2d 912, 913 (1970)
(instruction that an intentional act constitutes malice
aforethought is not plain error where the jury found that
the defendant premeditated and deliberated on an intent
to kill) ; Belton v. United States, 382 F.2d 150, 154-155
—
5a
(1967) (instruction that “ ‘the law infers * * * malice’ ”
was not plain error where the jury found that the de
fendant premeditated and deliberated on an intent to
kill).
The States: People v. Garcia, 36 Cal. 3d 539, 684 P.2d
826, 205 Cal. Rptr. 265 (1984) (dicta that failure to
instruct jury on essential aggravating factor of capital
sentence can be harmless where defendant was acquitted
on that factor, defendant conceded that factor, or evidence
conclusively established that factor; failure to give in-
struction in that case did not fit into these categories,
however) ; Wilson v. Zant, 249 Ga. 373, 290 S.E.2d 442,
cert. denied, 459 U.S. 1092 (1982) (error harmless where
defense was alibi); People v. Frazier, 123 IIl. App. 3d
563, 573-575, 463 N.E.2d 165, 173-174 (1984) (error
harmless where proof overwhelming) ; State v. Johnson,
233 Kan. 981, 986, 666 P.2d 706, 711 (1983) (rebuttable
presumption not invalid) ; State v. Boyce, 471 A.2d 687,
687 (Me. 1984) (conclusive presumption harmless where
defendant conceded the issue in his trial testimony) ;
People v. Wright, 408 Mich. 1, 26-34, 289 N.W.2d 1, 9-12
(1980) (error harmless where substantial proof of de
fendant’s guilt; error prejudicial where proof more tenu-
ous); People v. Dolsen, 301 N.W.2d 865, 867-868 (Mich.
Ct. App. 1980) (error harmless where defense was alibi) :
People v. McCracken, 100 Mich. App. 698, 703-706, 300
N.W.2d 376, 379-380 (1980) (error harmless where proof
of defendant’s guilt is overwhelming) ; State v. Hamilton,
605 P.2d 1121, 1131-1133 (Mont.), cert. denied, 447 U.S.
924 (1980) (error harmless given defendant’s statements
at time of the crime) ; State v. Sheldon, 301 N.W.2d 604,
611-613 (N.D. 1980), cert. denied, 450 U.S. 1002 (1981)
(conclusive presumption harmless where defendant was
convicted of an unrelated offense) : State v. Flack, 58 Or.
App. 330, 335-337, 648 P.2d 857, 860-861 (1982) (error
harmless where proof overwhelming) ; State v. Bolin, 678
S.W.2d 40, 45 (Tenn. 1984) (error harmless where proof
6a
overwhelming) ; Saldana v. State, 685 P.2d 20, 23 (Wyo.
1984) (error harmless given other jury instructions) ;
cf. State v. Taylor, 651 S.W.2d 603, 605-606 (Mo. Ct.
App. 1983) (instruction shifting burden of proof to de-
fendant on defense of extreme emotional disturbance
harmless where evidence was insufficient to support his
defense).
B. The following courts have held that jury instruc-
tions containing a conclusive presumption ( Sandstrom ;
Johnson), a rebuttable presumption (Francis), or a simi-
lar error, cannot be harmless in any case:
Eighth Circuit: United States v. Ben M. Hogan Co.,
769 F.2d 1293, 1297-1298 (1985) (conclusive presump-
tion that bid-rigging agreement affected interstate com-
merce in a Sherman Act prosecution). Compare Dietz v.
Solem, 640 F.2d 126, 131 (1981) (rebuttable presump-
tion not harmless even though chief issue at trial was
whether defendant had committed actus reus) ; Stump v.
Bennett, 398 F.2d 111, 122-123 (en banc), cert. denied,
393 U.S. 1001 (1968) (instruction placing burden of
proof on defendant on alibi defense harmful where alibi
defense was invoked at trial). But ef. Redding v. Benson,
739 F.2d 1360, 1363-1365 (1984), cert. denied, No. 84-
5908 (Feb. 19, 1985) (failure to instruct the jury on
essential element of the offense is harmless where the jury
necessarily found that element nonetheless because of
other instructions) .
The States: State v. Truppi, 182 Conn. 449, 465-467,
438 A.2d 712, 721 (1980), cert. denied, 451 U.S. 941
(1981) (conclusive presumption cannot be harmless on
any charge to which the instruction referred); State v.
Johnson, supra ‘conclusive presumption cannot be harm-
less); State v. LaForge, 347 N.W.2d 247, 256 (Minn.
1984) (suggesting that a conclusive presumption cannot
be harmless) ; Lowry v. State, 671 S.W.2d 601, 603 (Tex.
Ct. App. 1984) (suggesting that an instruction shifting
the burden of proof to the accused on an element of the
7a
offense cannot be harmless); State v. Martell, 465 A.2d
1346, 1348 (Vt. 1983) (conclusive presumption cannot
be harmless) ; State v. McCormick, 277 S.E. 629, 631-632
(W. Va. 1981) (suggesting that a conclusive presump-
tion is always invalid under state law).
W ou. s. covernwent PRINTING OFFICE, 1985 491507 20096
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.