USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 93-1588
CLAYTON LIBBY,
Petitioner, Appellant,
v.
RONALD DUVAL AND SCOTT HARSHBARGER,
Respondents, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
___________________
____________________
Before
Cyr, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
____________________

Patricia A. O'Neill for appellant.

___________________
Elisabeth J. Medvedow, Assistant Attorney General, with whom

_____________________
Scott Harshbarger, Attorney General, was on brief for appellees.
_________________
____________________
March 24, 1994
____________________

BOWNES,
BOWNES,

Senior Circuit Judge.

Senior Circuit Judge.
_____________________

Clayton Libby, a Massachusetts

In

this appeal,

state prisoner serving a life

sentence on a 1971 conviction for murder in the first degree,

challenges the district court's denial of his petition for
writ of
contends

habeas corpus.
that the

instruction

on

In

court
the

erred in

issue

unconstitutional mandatory

so doing,

of

petitioner primarily

deeming harmless
malice

presumption.

which
See
___

set

a jury
up

an

Sandstrom
_________

v.

Montana, 442 U.S. 510, 520-24 (1979)

_______

(instruction containing

presumption which has the effect of relieving the prosecution

of

the burden

violates
error").1

the

of proof
Due

on an

element of

Process Clause)

a charged

(hereinafter

crime

"Sandstrom
_________

We affirm.
I.
I.
__
BACKGROUND
BACKGROUND
__________
Early

in

the morning

Cullen, a New Hampshire

of

August

9, 1970,

resident, was stabbed to death

Bruce
in a

brawl that erupted outside of a South Boston housing project.

Petitioner and George Cooper were indicted

and tried for the

____________________
1. Petitioner
also
argues
that
an
instruction
on
manslaughter
given
at
this
trial
effectuated
an
unconstitutional shift in the burden of proof.
As we will
explain more fully infra in discussing the effects of the
_____
presumption-creating instruction, we do not believe it at all
likely that the jury would have returned a verdict of
manslaughter even if it had been perfectly instructed.
We,
therefore, regard any error in the manslaughter instruction
as harmless and confine our discussion to petitioner's claim
under Sandstrom.
_________
-22

killing.

Cooper was acquitted; Libby, however, was convicted

of murder in the first degree.

Although

the circumstances

in which

the stabbing

took place are sketchy, the trial record reveals that, on the
night

of

August

8,

1970, petitioner

smoking marijuana, and possibly

early in

the morning

was

drinking

taking diet pills.

of August

beer,

Sometime

9, 1970, petitioner,

along

with Francis Barton and Kevin Martin, went to George Cooper's

South Boston
Cooper

apartment building

through

petitioner and

a rear

apartment

Martin walked

where they met several

converse with

window.

After

a while,

to the front

of the

building

other men.

were the victim, Cullen,

and began to

Included among

these men

and another New Hampshire resident,

Dennis Bates.
At some point, a

fight broke out.

The

reason for

the fight is not entirely clear, although there was testimony

indicating that
were

it started

not from the area.

that petitioner and Cullen

had been in a certain
the

simply because Cullen

and Bates

There also was testimony indicating

were arguing about whether Cullen

federal prison.

In any event,

during

course of the fight, Cullen was stabbed nine times.

Six

of the stab wounds were to his chest; the other three were to
his back

or

side.

One

of the

chest

wounds was

to

the

victim's heart, and apparently

was delivered by a "downward"

blow.

-33

No
stabbing.2

witness testified

actually

observing

the

Instead, petitioner

was inculpated

through the

eyewitnesses who

observed him both

before and

testimony of
after

to

the fight.

Specifically,

there was

testimony that,

inter alia, petitioner (1) had been carrying a knife prior to

_____ ____
the fight; (2)

was seen running

away from

the site of

the

fight with blood on his clothes; (3) was seen holding a knife
shortly

after

the

stabbing;

(4)

admitted,

on

several

occasions after the fight, that he had done the stabbing; and
(5) made threats against anyone who
There also

might "snitch[] on him."

was testimony that petitioner

had stabbed Cullen

because he thought Cullen was "going to jump him from behind"

and/or

because

he

thought

Cullen was

"beating

up

Kevin

Martin."
At the

conclusion of

a seven-day jury

trial, the

trial

judge instructed the jury

murder,3

second degree

on theories of first degree

murder,

and manslaughter.

In

the

____________________
2. One witness, Mary VanGordon, who lived in a neighboring
apartment, did testify to seeing Cooper hold the victim while
a short, stocky man with dark hair (a description that did
not fit petitioner) thrust an object towards Cullen's stomach
five times.
VanGordon further testified that, after the
attack, Cooper ran into the hallway of a nearby building
while the man who had thrust the object towards Cullen's
stomach ran around to the back of the same building.
3. The trial court instructed the jury that it could convict
for first degree murder if it determined, after other
requisite findings, that the stabbing had
been either
deliberately premeditated or had been committed with extreme
atrocity or cruelty. A review of the trial record, however,
reveals that the prosecution relied exclusively on the
-44

course

of defining

malice, which

is "the

requisite mental

element" of murder under Massachusetts law,

see Commonwealth
___ ____________

v. Huot, 403 N.E.2d 411, 414 (Mass. 1980), overruled on other

____
_________ __ _____
grounds, Commonwealth v. Bray,
_______ ____________
____
the

judge told the jury

deliberate

cruel act

by

553 N.E.2d 538 (Mass. 1990),4

that "[m]alice is
one against

implied in every

another."

The

jury

convicted petitioner of first degree murder and recommended a

sentence of life imprisonment.
On appeal, petitioner argued, inter alia,
_____ ____
aforementioned

instruction

required reversal

of his

constituted Sandstrom
_________
conviction.5

More

that the
error and

particularly,

____________________
extreme atrocity or cruelty theory in
degree murder had been committed.

arguing that

first

4. Unlawful killings committed without malice are considered

manslaughter. See Commonwealth v. Todd, 563 N.E.2d 211, 214
___ ____________
____
(Mass. 1990).
5.

Sandstrom was not decided until

eight years after
_________
petitioner's conviction.
However,
because petitioner's
direct appeal was not perfected until nearly eighteen years
after his conviction, see Commonwealth v. Libby, 580 N.E.2d
___ ____________
_____
1025,
1026-27
(Mass. 1991)
(hereinafter
"Libby II")
_________
(explaining the neglect by court-appointed counsel, the
clerk's office, and the prosecutor's office which led to the
delay in perfecting petitioner's appeal), and because new
rules announced in Supreme Court decisions apply to all
criminal cases "pending on direct review or not yet final,"
Griffith v. Kentucky, 479 U.S. 314, 328 (1987), both the
________
________
Massachusetts Supreme Judicial Court ("SJC"), at least in
Libby II,
and the district court treated petitioner's
_________
Sandstrom argument as properly raised on direct appellate
_________
review. We will do likewise.
Similarly, although petitioner did not object to
the challenged instruction at
the time it was given,
Massachusetts has waived its contemporaneous objection rule
in the Sandstrom error context where the error occurred prior
_________
to the Sandstrom decision. See, e.g., Commonwealth v. Hill,
_________
___ ____ ____________
____
-5-

petitioner asserted

that the

instruction had the

effect of

directing the jury to find malice if it found that petitioner

had

committed a

despite

the

"deliberate cruel"

fact

that

necessarily malicious.

act against

"deliberate

The SJC

the victim

cruel"

act

disagreed, holding:

is not
"In the

context of the facts of this case and in light of the judge's

entire

instruction

challenged),
miscarriage

we see

v.

calling

Libby, 540
_____

conviction, although
of a

(which

is

not

otherwise

substantial likelihood

presumption

(hereinafter "Libby I").

_______

consideration

malice

neither a

of justice

unconstitutional
Commonwealth
____________

on

for relief
dictated

N.E.2d

154,

.
to

an

jury."

158 (Mass.

1989)

to affirm the

to the superior

previously-filed motion

nor

the

The SJC then went on

it remanded

. .

of a

court for

to dismiss

the

indictment on account of delay.

In August 1990, petitioner's motion to
denied by the superior court.

In

dismiss was

September 1990, petitioner

____________________
442 N.E.2d 24, 28

n.9 (Mass. 1982), vacated and remanded on

_______ ___ ________ __
other grounds, Hill v. Maloney, 927 F.2d 646 (1st Cir. 1990).
_____ _______ ____
_______
Because this condition is met, petitioner's failure to object
at trial does not procedurally bar us, see Wainwright v.
___ __________
Sykes, 433 U.S. 72, 84 (1977) (failure to object at trial as
_____
required
by
a
state contemporaneous
objection
rule
constitutes "independent and adequate ground" sufficient to
foreclose federal habeas review of alleged error), from
reaching the merits of his argument in this instance, cf.
___
Puleio v. Vose, 830 F.2d
1197, 1199 (1st Cir. 1987)
______
____
(indicating that waiver of state contemporaneous objection
rule removes procedural bar that ordinarily would preclude
habeas court from reaching claim on merits where there was no
objection at trial), cert. denied, 485 U.S. 990 (1988).
_____ ______
-66

filed a timely notice of appeal from this denial.

appeal

was pending, this

court handed down

its decision in

Hill v.
____

Maloney, 927 F.2d

_______

note 5.

In Hill, we held unconstitutional a jury instruction

____

quite

similar to

the one

646 (1st

While that

here at

Cir. 1990).

issue.

Id.
___

See supra
___ _____

at 649-51.6

Relying on Hill, petitioner

____

argued for a second time

to the

SJC that his conviction should be set aside because the trial
judge's

instruction

had

the

effect

unconstitutional mandatory presumption.

rejected petitioner's argument

of

setting

Once again,

and affirmed his

up

an

the SJC

conviction.

See Libby II, 580 N.E.2d at 1028.

___ ________
Finally, petitioner
court

by

means

comprehensive
three-part

of

writ

memorandum and

test set

Sandstrom
_________

errors

determined

that

of

habeas

order, the

forth

in Hill
____

and denied

the

the

unconstitutional

sought relief in

challenged

mandatory

for

corpus.

review of

writ.

First,

instruction

presumption

and

See
___

Libby v.
_____

2187-WD,

(D.

Mass.

op.

at

8-9

In

court applied

constituted Sandstrom error.

_________
slip

the district

the

alleged
the court

set

up

an

therefore

Duval, No.
_____

April

20,

861993)

(hereinafter "Libby III"); see also Hill, 927 F.2d at 648-49.

_________
___ ____ ____
Next,

the court found that

the instructions as

a whole did

not sufficiently explain the erroneous instruction on malice,

____________________
6.

In Hill, the jury was instructed that "malice is implied

____
from any deliberate or cruel act against another, however
__
sudden." Id. at 648 (emphasis added).
___
-77

and the jury

law.
F.2d

therefore was

See Libby III, slip

___ _________
at

649.

not properly

op. at 10-13; see

___

Finally,

instruction,

although

reasonable doubt.

instructed on

the

court

erroneous,

was

the

also Hill, 927

____ ____

concluded
harmless

that
beyond

the
a

See Libby III, slip op. at 13-19; see also

___ _________
___ ____

Hill, 927 F.2d at 649.

____

It is from this last conclusion that

petitioner appeals.
II.
II.
___
DISCUSSION
DISCUSSION
__________
We

agree

tripartite Hill
____
claim.

with

the

test applies

Accordingly, we

district
to the merits

court

that

the

of petitioner's

organize our discussion

within the

Hill framework.
____
A.
A.
Because the Hill opinion rehearses

in great detail

____
the

legal

standards

applicable

instructions

which

respondents7

concede that

established a
either

set

challenges

presumptions,

the

or

detailed
an

to

and

here

not believe that

discussion

extensive

jury

because

instruction challenged

mandatory presumption, we do

highly

presumptions

up

to

of

the

explanation

law

of

why

of
the

____________________
7. Respondents in this matter
are Ronald Duval,
the
Superintendent of the Massachusetts Correctional Institution
at Cedar Junction, where respondent is being detained, and
Scott Harshbarger, the Attorney General of the Commonwealth
of Massachusetts.
-88

instruction was

defective is

it sufficient

to

likely

the

that

instruction as

note our
jurors

required.8
belief

that it

construed

the

requiring a finding of malice

that the stabbing was "deliberate"

v.

Instead,
was

we think
reasonably

trial

judge's

upon a finding

and "cruel."

See Estelle
___ _______

McGuire, 112 S. Ct. 475, 482 (1991) (habeas challenges to

_______
jury instructions reviewed
the

jury

has

applied

for "reasonable likelihood"

the

challenged

instruction

unconstitutional manner).

Thus, because the

the

the prosecution

proof
U.S.

effect

of relieving

that
in

an

instruction had
of the

burden of

on an element of the crime charged, see Sandstrom, 442

___ _________
at 520-24,

the

district court's

instruction established a
correct.

conclusion that

mandatory presumption was

the

clearly

Accordingly, we move to step two of the Hill test.

____
B.
B.
Once we have determined that the

specific language

challenged by a petitioner set up a mandatory presumption, we

consider whether other parts of the instruction explained the
particular infirm language
reasonable

likelihood

to the
that

unconstitutional presumption.
U.S.

370, 380

presumption

of

(1990).
innocence

the

extent that
jurors

See Boyde v.
___ _____

General instructions
and

the

there is
applied

no
the

California, 494
__________
regarding the

government's burden

of

____________________
8. Readers interested in such a discussion should review
both the Hill decision and the Supreme Court's decision in
____
Yates v. Evatt, 111 S. Ct. 1884 (1991).
_____
_____
-99

proving all elements of a crime beyond a reasonable doubt are

insufficient
So too
one

to fulfill this explanatory role.

are instructions

which

Instead,

themselves
there must

directly contrary to
correctly

be other

which actually "explains the

________

state

the erroneous

the

language in

Id. at 651.9
___

law.

Id.10
___

the instructions

infirm language sufficiently so

that there is no reasonable likelihood that the jury believed

it must [in the context

of an erroneous malice

instruction]

find malice if it found petitioner [acted in such a way so as

to trigger the unconstitutional presumption]."
Respondents
instructions, when
infirm language.
after

further

contend

that

four

Id.
___

sections

taken together, sufficiently

After

reviewing these four

reviewing the

instructions

of

the

explain the
sections, and

as

a whole,

we

cannot agree.
The
involve

first

definitions

two
of

sections
malice

adduced
given

by

respondents

prior

to

the

____________________
9. This is because "`[t]he jury could have interpreted the
two sets of instructions as indicating that the presumption
was a means by which proof beyond a reasonable doubt as to
[malice] could be satisfied.'" Id. (quoting Sandstrom, 442
___
_________
U.S. at 518-19 n.7) (alteration in original).
10. This is because "`[a] reviewing court has no way of
knowing which of the two irreconcilable instructions the
jurors applied in reaching their verdict.'"
Id. (quoting
___
Franklin, 471 U.S. at 322) (alteration in original).
________
-1010

unconstitutional
instances,

the trial judge

that malice was

were

instruction.11

In

each

these

correctly instructed

not proved where, among

"extenuating circumstances"

crime to manslaughter."

of

At

the jurors

other things, there

sufficient to

most, we think

"reduce the

that these

definitions of malice might have allowed the jurors

_____
that

the

presumption

unconstitutional
extenuating

charge

circumstances.

set
could
Cf.
___

up
be

by

the

rebutted

id. at
___

two

653.

two

to infer
subsequent

in

certain

We

do not,

however, see
the jurors
mean what
reiterate

how these
that the

that

correct

clearly stated.
instructions,

At

explained to
_________
not going

to

any rate, we

which

erroneous instruction, are not

cure the error.

directly

sufficient to

See supra at p.10 and note 10.

___ _____

The other
compelling.

preceded

upcoming instruction was

it actually and

contradict the

less

definitions could have

two

sections cited

The

first

of

by respondents

these two,

which

are
again

the infirm instruction, primarily defined the terms

____________________
11. The first passage relied upon by respondents reads as
follows: "[M]urder is the killing of a human being without
legal justification or without excuse or without
such
extenuating circumstances
as may reduce the
crime to
manslaughter; but with what is called in the law, malice
aforethought."
The second
passage is
very similar:
"Any
intentional killing
of
a human
being without
legal
justification
or
excuse
and
with
no
extenuating
circumstances, sufficient in law to reduce the crime to
manslaughter, is malicious."
-1111

"aforethought" and

"murder."12

The second

defined the term

"premeditated."13
Both of

the passages

when compared
statement

are jumbled and

to the

which

presumption.
clumsily-worded

short

set

Cf.
___

the

unconstitutional

Hill,
____

927

F.2d

instruction

presumption-creating

passage explicitly

straightforward

up

portions of charge as a
the

and relatively

correct instruction

unconstitutional

confusing, especially

in

at

652

with clear
deciding

mandatory

(juxtaposing
and concise
that

whole did not negate the effects

language).

touched on the concept

Moreover,

In its entirety, this section reads:

If the wicked intent to do injury to
another person precedes the act by which
the
injury was done,
it is malice
aforethought.
If the
homicide is
committed without legal justification or
that is to say, without due authority of
law and not in self defense, and there is
no issue here of self defense, nor in the
heat of passion on great provocation, but
with the specific intent to take the one
killed, or an unlawful act, the natural
consequence of which would be to deprive
another person of life, it is murder.

13.

of

neither

of malice, except

____________________
12.

correct

This passage states:

Because it was a cruel act of the will
and unlike an intent stimulated by a
sudden anger or quarrel where someone
suddenly, not having intended violence
beforehand, does.
It must have been a
design actually formed and formed upon
before the act and the murder must have
been committed pursuant to design or plan
that has thus been formed.

-1212

insofar as the first one briefly discussed the "aforethought"

component of

the term

these deficiencies,

"malice aforethought."

we do not

have actually explained the

see how these

In light

of

passages could

challenged instruction "so as to

offset any erroneous impression

given by [it]."

See
___

id. at
___

the

entire

651.
Before
charge,

we

concluding

pause to

irrefutable and

note that,

unvarying

every deliberate and cruel

_____
think

it

at least

our

analysis
because

of
it was

terms ("[m]alice

is
__

act by one against

reasonably

likely

framed in
implied

in

another"), we

that the

challenged

instruction completely removed the element of malice from the

case once

the Commonwealth

acted deliberately

and cruelly.14

our harmless-error analysis,

as having

erected a

established that

petitioner had

Therefore,

we will regard the

in conducting
instruction

conclusive mandatory presumption.

See
___

Hill, 927 F.2d at

____
mandatory

649 n.3 (distinguishing between conclusive

presumptions

and

rebuttable

mandatory

presumptions).

____________________
14.

We concede, as noted earlier, that the jurors might have

_____
inferred from the correct definitions of malice that the
"implication" of malice created by deliberate and cruel acts
was rebuttable.
See supra at p.11. Such a reading would,
___ _____
however, have been quite strained. In any case, we think it
at least as likely that the jurors ignored the correct malice
instructions which are facially irreconcilable with the
challenged instruction. See supra note 10.
___ _____
-1313

In sum, we agree
charge

as a

whole

presumption-creating

did not

with the district court

neutralize

language.

the effect

Accordingly, the

that the
of

the

effect of

the instruction here was unconstitutional.

C.
C.
Having determined

that the overall charge

did not

adequately explain the challenged

ascertain
see
___

instruction, we still must

whether the error was

harmless.

See
___

id. at 654;
___

also Sullivan v. Louisiana, 113 S. Ct. 2078, 2082 (1993)

____ ________
_________

(reiterating

that Sandstrom
_________

error review).

In

error

is subject

to harmless-

Hill, because the Supreme Court

____

had sent

mixed signals regarding the proper harmless-error analysis to

be employed where there has been a mandatory presumption,
applied two

separate approaches.

trial record as

a whole

First,

we looked

to determine whether

at the

it was

clear

"beyond a reasonable doubt" that the error was harmless.

Hill,
____

927 F.2d at

386 U.S. 18, 24

655 (applying the

conviction must

federal constitutional
U.S.

570,

standard

580-82
to

error); see
___

(1986) (applying

be set

direct

aside because

also Rose v.
____ ____
Chapman
_______

presumption-creating

challenged on habeas).

See
___

Chapman v. California,
_______
__________

(1967), standard for determining, on

review, whether a

we

jury

of

Clark, 478
_____

harmless-error
instruction

Alternatively, we utilized a narrower

approach, derived from Chapman,

_______

for analyzing the effects of

a conclusive mandatory presumption urged by Justice Scalia in

-1414

a concurring opinion in Carella v.

_______
267-73 (1989)

(hereinafter the

927 F.2d at 654-56.

California, 491 U.S. 263,

__________

"Carella test").
_______

See Hill,
___ ____

Under both approaches we determined that

the error was not harmless.

Id. at 657.
___

Since the decision in Hill, however, (and since the

____
district

court passed

creating

instruction was

issued

whether or

that the

applicable

Supreme Court
reasonable

not the

harmless), the

Brecht v. Abrahamson,
______
__________

clarifies
longer

on

113 S. Ct.

two approaches
on collateral

test should

Supreme Court

review.

not

be

has

1710 (1993), which

employed in Hill
____

announced that the Chapman

_______

doubt"

presumption-

are no

In Brecht,
______

the

"harmless beyond a
utilized by

courts

reviewing claims of constitutional error of the trial type on

habeas,

id. at
___

1717; instead,

look to whether error

or influence

reviewing courts

should now

"`had substantial and injurious effect

in determining

the jury's

verdict.'"

Id.
___

at

1722 (quoting Kotteakos v. United States, 328 U.S. 750,

_________
______________

776

(1946)).
Petitioner
inappropriate

in the

therefore urges us
determining

contends

that the

conclusive

Brecht
______

presumption

to explicitly adopt the

whether or

not an

context.

uncompromising language

He

Carella test for

_______

instruction creating

presumption can be viewed as harmless error.

clear and

approach is

such a

In light of the

employed by the

Court in

Brecht, we decline to do so.

______

-1515

The

issue

prosecutor's use
impeachment

of

presented

Brecht was
______

whether

the

petitioner's post-Miranda
_______

silence

for

purposes at

in

petitioner's trial,

which violated

petitioner's due process rights under Doyle v. Ohio, 426 U.S.

_____
____
610 (1976)

(hereinafter "Doyle"

error"), was harmless.

In

_____
concluding
noted,

that it

that the

was,

the majority

Kotteakos harmless-error
_________

appropriate lens through which to

See
___

Brecht, 113
______

departed

standard.
1884

S. Ct.

from the

cases where it

decided, as

standard was

view the claim on

at 1722.

approach

In

taken in

so doing,

(citing Yates v.
_____

(1991); Rose v. Clark,

____
_____

the Court
habeas

the Chapman
_______

Evatt, 111
_____

478 U.S. 570

the

habeas.

certain other

had assumed the applicability of

Id. at 1718
___

we have

S. Ct.

(1986); Milton v.
______

Wainwright, 407 U.S. 371 (1972); Anderson v. Nelson, 390 U.S.

__________
________
______
(1968) (per curiam)).
In conducting
observing

that

Doyle
_____

its
error

analysis, the
fit

Court

into

the

constitutional error known as "trial error."

S. Ct. at 1717.
presentation

began

by

category

of

See Brecht, 113

___ ______

These are errors which "`occur[] during the

of the case to the jury,' and [are] amenable to

harmless error analysis because [they] `may be quantitatively

assessed in the context of other evidence presented in
to

determine

the effect

[they] had

on

the trial.'"

order
Id.
___

(quoting Arizona v. Fulminante, 499 U.S. 279, 307-08 (1991)).

_______
__________

-1616

Errors of the trial

type have, since Chapman,

_______

been reviewed

under the "harmless-beyond-a-reasonable-doubt" standard.

The

Court also noted that, at the other end of the

spectrum of constitutional errors are "`structural defects in

the constitution of the
by `harmless-error'

trial mechanism, which defy analysis

standards'. . . because

entire trial process."

309).

they infect the

Id. (quoting Fulminante, 499 U.S. at

___
__________

Listed as an example of

deprivation of the right

such a structural defect was

to counsel.

Id. (citing
___

Gideon v.
______

Wainwright, 372 U.S. 335 (1963)).

__________
After

reaching

that neither the doctrine

silence

prevented

it

respondent's argument
the

Chapman
_______

standard,

this

conclusion, and

determining

of stare decisis nor congressional

_____ _______
from

that the
should

considering

the

merits

Kotteakos standard,
_________
be employed

in

of

and not

determining

whether the Doyle

_____
1718-19, the
Chapman
_______

context

Court

standard

implicated

error was harmless,

in

turned to
appropriately

habeas cases

whence

an

but

it sprang.

see generally id.

___ _________ ___

analysis of
served

certain

not in

Pointing

whether

the
to

at
the

interests

direct review

(1) the

state's

interest in finality of convictions that have survived direct

review within the

state court system;

(2) the interests

of

comity; (3) the interests of federalism; and (4) the interest

of maintaining the prominence of the trial itself,
decided

that application

of the

Chapman standard
_______

the Court
to trial

-1717

errors
. costs

challenged on habeas resulted in an "imbalance of . .

and benefits."

Id. at 1721.
___

Accordingly, the Court

embraced the less onerous Kotteakos standard, holding that it

_________
applies "in determining whether habeas relief must be granted
because of constitutional error

of the trial type."

Id. at
___

1722.

Like the Chapman test, this "actual prejudice" inquiry

_______

presumes

that

the

reviewing

court

will

conduct

harmlessness assessment "in light of the record

its

as a whole."

Id.
___
After

Brecht,
______

we

think

it

apparent

that

the

question of whether to apply the Kotteakos test in conducting

_________
our harmless

error inquiry

turns on whether

the conclusive

presumption here at issue constitutes "trial error."

the force of
are

some of our dissenting

constrained

by the

should be so considered.
279, 306-07
sights on
have

(1990)

Supreme

Despite

brother's arguments, we

Court's

teaching that

it

See Arizona v. Fulminante, 499 U.S.

___ _______
__________

(citing Carella).
_______

Thus,

we train

our

whether, in light of the whole record, respondents

met

their

burden15

of

demonstrating

that

the

____________________
15.

We

acknowledge

that

the

majority

opinion in

Brecht
______
treats the burden as petitioner's. See Brecht, 113 S. Ct. at
___ ______
1722.
Nonetheless, as Justice Stevens, who provided the
crucial fifth vote in Brecht, convincingly explains in his
______
concurring opinion, the Kotteakos test requires that the
_________
party arguing the harmlessness of an error which tends to
prejudice a
litigant's
"substantial rights"
(as
all
constitutional errors surely do) must bear the burden of
proof.
Id. at 1723-24 and n.1 (Stevens, J., concurring).
___
Given this authority, and given the further fact that there
appear to be five votes for this position and only four votes

-1818

conclusive

presumption did not actually prejudice petitioner

because it did not have a substantial and injurious effect or

influence in

determining the jury's

verdict.

In

our view,

respondents have met their burden.

The thrust of petitioner's harmfulness claim is not
that, in the absence of the conclusive presumption,
have been

acquitted.

Rather, petitioner's

he would

argument is that

the conclusive presumption precluded the jury from convicting

him

of manslaughter

Commonwealth
____________
(the presence
circumstance

on a

v. Richard,
_______
of

theory of

"sudden combat."

384 N.E.2d

sudden

combat

sufficient to

636, 638

constitutes

reduce

a verdict

manslaughter under Massachusetts law).

that there was evidence
stabbed
him

from

"beating

up

Kevin

(Mass. 1979)
a

mitigating

of murder

to

While we concede (1)

(i.e., the testimony that petitioner

____

Cullen because he thought Cullen

behind"

See
___

and/or

because

Martin")

which

he

was "going to jump

thought

might

Cullen

was

conceivably have

_____
provided

a basis

for the

government had not

(2)

jury to

have concluded

proved an absence

that the

of sudden combat;

and

that the conclusive presumption tended to deter the jury

from considering this evidence, see Yates, 111 S. Ct. at 1894

___ _____
n.10

(conclusive

considering

presumptions tend

any evidence

for the

to

deter

a jury

from

presumed fact

beyond the

for placing the burden on petitioner, we will

burden of proof as resting upon the respondents.

regard the

____________________

-1919

predicate evidence), we think

jury

would

verdict of

have relied

on

manslaughter.

it extremely unlikely that the

this

evidence

Mary VanGordon

and returned

testified that the

stabbing was administered while the victim was being held

another man.

Moreover, the

was stabbed nine

____

times, with

delivered to the

chest area.

by

evidence reveals that the victim

six of the
In our

stab wounds

view, such

being

evidence,

when

combined

specifically

with
argued a

the

fact

that

sudden combat

the

defense

theory to

never

the jury,16

strongly undermines any claim that petitioner was, throughout

the

entirety of the

stabbing, acting in

response to sudden

combat.
We do
had a

not believe

that the

substantial and injurious

jury's verdict.

Accordingly,

erroneous instruction

effect or influence

on the

we affirm the district court's

conclusion that the instructional error was harmless.17

Affirmed.
Affirmed.
_________

CYR, Circuit Judge (concurring):

CYR, Circuit Judge (concurring):
______________
my dissenting

brother's belief that the

Although I share

Carella concurrence
_______

____________________
16. It is clear from the record that petitioner focused his
defense efforts on arguing that the prosecution did not
establish beyond a reasonable doubt that he was, in fact, the
stabber.
17. In so ruling, we express no opinion as to the district
court's conclusion that the error here was harmless even
under the Chapman standard.
_______
-2020

articulates
"harmless

compelling grounds
error" review

of a

for more

narrowly confining

jury instruction

mandating a

conclusive presumption, I join the majority opinion because I

am

satisfied that the review required by the Court in Brecht

______

encompasses the entire record.

Dissent follows.
Dissent follows.

-2121

Stahl, Circuit Judge, dissenting.

_____________
majority that the instruction
of

setting

explained
agree

up

away by

with

the

method of
and

challenged here had the effect

conclusive

presumption

the totality

of the

majority that

constitute harmless error.

its

instruction

was

conclusion

which

charge.

conclusive

was

that

presumptions can

harmless.

employed by
the

not

I further

However, I cannot agree

harmless-error analysis

with

I agree with the

with the

the majority

presumption-creating

Accordingly,

respectfully

dissent.
A.
A.
__
In concluding that it
the

jury

would

have

relied on

is "extremely unlikely
[the

unconsidered

that
sudden

combat] evidence and returned a verdict of manslaughter," see

___
ante at
____

19, the majority significantly

of harmless-error

analysis.

uncontroversial statement

expands the contours

For, implicit

are two radical

in this facially
assumptions:

(1)

that, in the habeas context, reviewing courts now are obliged

to

supply

habeas

missing factual

context, reviewing

evidence

that the

jury did

neither

assumption

can be

findings; and
courts can

(2) that,

and should

not consider.
squared

with

In

in the

rely upon
my opinion,

settled authority

interpreting the Sixth Amendment jury-trial right and the Due

Process Clause.

-2121

As
recent

the Supreme Court has made clear in a series of

decisions,

an

presumption engenders
more typical
admitted

form

evidence

of

instruction

setting

an error different in
constitutional

and/or

error

improperly allowed

up a

mandatory

nature than the

--

improperly

argument.

mandatory presumption directs the

of

the crime

facts.

charged

See, e.g.,
___ ____

jury to presume an element

upon finding

Sandstrom, 442
_________

only certain
U.S. at

517.

course, directly violates a criminal defendant's

rights

to

offense
2080

have the

This,

of

due process

all elements

of the

charged, see Sullivan v. Louisiana, 113 S. Ct. 2078,

___ ________
_________

(1993) (citing Patterson v. New York, 432 U.S. 197, 210

_________
________

(1977) and Leland v.

______
to

prosecution prove

predicate

have the

Oregon, 343 U.S. 790, 795

______

prosecution

persuade the

(1952)), and

factfinder beyond

reasonable doubt of the facts necessary to establish

those elements,

id. at
___

2080-81 (citing

each of

In re Winship,
_____________

397

U.S. 358, 364 (1970) and Cool v. United States, 409 U.S. 100,
____
_____________
104 (1972)

(per curiam)).

undermine

the

generally
_________

Carella,
_______

concurring);
Sixth

Sixth

It also,

Amendment
491

cf. Sullivan,
___ ________

jury-trial

U.S.

at

113 S.

Amendment right to have

in my

268-69
Ct. at

view, tends

to

right.

See
___

(Scalia,

J.,

2080 (discussing

the jury, and

not the judge,

make the requisite finding of guilt).

A
distinguished

conclusive
__________

mandatory

presumption,

as

from a rebuttable mandatory presumption, has a

-22-

22

further

pernicious

effect.

By

directing,

without

the

possibility

of rebuttal, the jury to find the elemental fact

merely upon

finding certain predicate facts,

deter a
fact

jury from considering any evidence

beyond the predicate evidence."

1894 n.10.

court

for the presumed

Yates, 111
_____

S. Ct. at

Indeed, given the "sound presumption of appellate

practice[] that
the

it "tend[s] to

jurors are

instructions they are

must assume
____

that the

reasonable and

generally follow

given," id. at
___

1893, a reviewing

jury did not

consider evidence

beyond that relating to

the predicate facts, because

so would

the jury's time and

be a waste of

instructions," id. at
___

1894 n.10; see also

___ ____

"to do

contrary to its
Carella, 491 U.S.
_______

at 269 (Scalia, J., concurring).

All
presumption
however,

of

this

is

not to

say

can never be harmless error.

as Justice Scalia

that

conclusive

What is does mean,

convincingly demonstrates in his

concurrence in Carella, is that "the harmless-error

_______

analysis

applicable in assessing a mandatory conclusive presumption is

wholly unlike the
267.

typical form

of such analysis."

Id.
___

at

Whereas it makes sense in the case of the more typical

form of constitutional error

-- improperly admitted evidence

and/or improperly allowed argument -- to perform the type

whole-record

"quantitative

(and, incidentally,
determine

whether

assessment"

also outlined
the fact

outlined in

in Chapman) in
_______

supported

by [the]

of

Brecht
______

order "to
improperly

-2323

admitted evidence [or improperly allowed argument] was in any

event overwhelmingly established by other evidence," see id.,
___ ___
such an
the

inquiry makes no sense

jury may

have been swayed

rather is that the jury

and failed to make

where the error is

by tainted

not that

information, but

failed to consider relevant evidence

a required finding, id. at 267-69.

___

as Justice Scalia explains:

For,

[Such] problem[s] would not be cured by

an appellate court's determination that
the
record
evidence
unmistakably
established
guilt,
for
that
would
represent a finding of fact by judges,
not by a jury.
As with a directed
verdict
[for
the
State, which
is
constitutionally
impermissible,
see
___
United States v. Martin Linen Supply Co.,
_____________
_______________________
430 U.S. 564, 572-73 (1977)], "the error
in such a case is that the wrong entity
judged the defendant guilty."
Id. at 269 (quoting Rose v. Clark, 478 U.S 570, 578 (1986)).
___
____
_____
Thus,

the proper question

for the reviewing

court "`is not

whether guilt may be spelt out of a record, but whether guilt

has

been

found by

a jury

standards appropriate for

according

to the

criminal trials.'"

procedure and
Id.
___

(quoting

Bollenbach v. United States, 326 U.S. 607, 614 (1946)).

__________
_____________
With these

principles in mind,

Justice Scalia has

proposed a test for determining whether, despite the presence

of

a conclusive

"`rare

presumption, a

situation[]'"

confident
the jury's

where

particular case

"`[a] reviewing

presents a

court

can

be

that [such a presumption] did not play any role in

verdict.'"

Id. at
___
-2424

270 (quoting

Connecticut v.
___________

Johnson,
_______

460

Seeking

U.S.

to avoid

courts on

73,
the

87

(1983)

specter of

the basis of

(plurality

opinion)).

factfinding by

evidence the jury

reviewing

never considered,

the Carella test does not direct courts to ascertain

_______

whether

the

varying

presumed

degrees

by the

would do).
ask

fact

(1)

was

otherwise

evidence

(as the

Rather, the test

whether the

presumption on
and on which

Brecht and
______

to

Chapman tests
_______

instructs reviewing courts

instruction

a charge which
the defendant

established

established

did not affect

was acquitted;

to

a conclusive
other charges

(2) whether

the

instruction established a conclusive presumption with respect

to an element of

the crime which the defendant

admitted; or

(3) whether
the predicate facts relied upon in the
instruction, or other facts necessarily
found by the jury, are so closely related
to the ultimate fact to be presumed that
no rational jury could find those facts
without also finding that ultimate fact,
making those findings [the] functional[]
equivalent to . . . the element required
to be presumed.
Id. at 271.
___
"yes,"

If the answer to any of these three questions is

the error is

faithfully

preserves

harmless.
a

See
___

criminal

id.
___

Because this test

defendant's

Sixth

and

Fourteenth Amendment

rights to

have an impartial

jury make
____

the requisite factual and elemental determinations in his/her

trial,

and

because

courts

will

it

consider

provides
only

assurance

the

that reviewing

evidence

that

the

jury

-2525

considered,

would apply

this test

rather than

the ill-

defined harmless-error test that the majority employs today.

B.
B.
__
Before applying
feel it appropriate
Carella
_______
outlined
arguments

test

and

in Brecht.
______

the Carella
_______

to respond to the
in

favor of
Obviously,

the

test to this

arguments against the

whole-record

the most

is the one relied upon by

Supreme

Court,

in

a string

approach

potent

of these

the majority:

that the

whole-record Brecht analysis applies to "trial

______
the

case, I

citation

errors," that
in

Fulminante,

__________
indicated that a conclusive presumption is "trial error," and
that

we therefore

are obliged

to conduct

our harmlessness

review in light of the whole record.

I will admit that the Court's characterization of a
conclusive

presumption

troublesome;
Justice

indeed,

as "trial
I

White's criticism

error" dichotomy.
J., dissenting

disregard

effect

this

of the

Fulminante is
__________

case well

499 U.S. at

in part) (arguing that,

the trial

in

illustrates

"trial error"/"structural

See Fulminante,
___ __________

harmless-error analysis

instead

think

error"

ought to

291 (White,

in assessing whether

be applied,

error/structural error

courts should
distinction and

"consider[] the nature of the right at issue and the

of

[the]

error

upon

the

aforementioned indication to the

non-harmless (as determined

trial").

the

contrary, the presence of a

by the Carella
_______

-2626

Despite

test) conclusive

presumption
Carella,
_______

strikes me as a type of "structural error."

491

U.S. at

constitutional
judgment
justice

268

right to

about the way in

administered.

reflects

(Scalia,
jury trial

embodies a

which law should

It

fundamental

J., concurring)

is a

See
___
("The

profound

be enforced and

structural guarantee
__________ _________

decision

about

the

that

exercise

of

official power -- a reluctance to entrust plenary powers over

the life
group

and liberty of

of

judges.")

internal quotation
at

2083 (denial

the citizen

(emphasis

to one judge

supplied)

(citations

marks omitted); cf. Sullivan,

___ ________
of the

right to

a jury

or to

a
and

113 S. Ct.

verdict of

guilt

beyond a reasonable doubt is a structural error).

In my view, however,
presumption trial

whether we label a conclusive

error, structural

error, or

something in

between is of no consequence; what matters instead is that we

apply

the

appropriate

form

of

harmless-error

assessing the effects of that presumption.

review

in

Applying a whole-

record review not only ignores the considerations outlined in

Part

A. of this dissent, but it also ignores two indications

by Supreme

Court majorities, subsequent to

__________

Fulminante, that
__________

the Carella analysis is properly employed by courts reviewing

_______
presumptions.
in

the

See Sullivan, 113 S. Ct. at 2082

___ ________

direct review

context,

that

(indicating,

Carella provides
_______

the

proper framework
presumption was

for determining whether or

harmless); Yates,
_____

111 S.

not a mandatory
Ct. at 1894

n.10

-2727

(implicitly
test

endorsing,

as a means for

presumption was

in the

habeas context,

evaluating whether or

harmless).

One

the Carella
_______

not a conclusive

might argue that

Yates has
_____

been superseded by Brecht, and that Brecht did not control in

______
______
Sullivan
________
response,
in

because Sullivan
________

was

a direct

I would point out that

review

case.

In

Chapman, which did control

_______

Yates and would have controlled in Sullivan had the error

_____
________

therein

been

contemplates

deemed
a

amenable

to

whole-record review

Brecht does; nonetheless,

______

the Court

harmless-error
every

bit

has made

review,

as much
clear in

as
the

Chapman context that, when confronted with presumption error,

_______

the

typical form

Thus, I

of whole-record

read the

indicating

that

string
a

analysis does

citation in

Fulminante as
__________

conclusive presumption

harmless-error review.

not apply.

is

merely

amenable

to

I do not read it as stating that such

___

a presumption is subject

to the usual whole-record harmless-

error test applicable to most other forms of trial error.

It

might

also be

derives from Chapman, see

_______ ___
J.,

concurring) (noting

"[t]he error is

argued

that

the Carella
_______

Carella, 491 U.S. at

_______
that if

the

271 (Scalia,

Carella test
_______

harmless because it is

test

is met,

`beyond a reasonable

doubt' that the jury found the facts necessary to support the
conviction") (citing Chapman,
_______
replacement

386 U.S. at 24),

of Chapman with Brecht on

_______
______

Carella concurrence
_______

has no

habeas means that the

relevance in

-2828

and that the

habeas cases.

In

response,

would

concede that

the

Carella
_______

test can
___

theoretically viewed as "deriving from" Chapman.

_______
however,
fairly

the
be

Carella concurrence
_______
read

presumption

as

sets up

structural guarantee
be

harmless

in

(1)
an

can

just

explaining

that

error which

tends

those

"rare"

In my view,

as easily
a

conclusive
a

which only can

circumstances

where

the

presumption

did not play

(2) setting

forth the test for determining whether the error

played

such role;

any

without

prior reference

"any role" in

and

to undermine

of the Constitution and

be
__

and

the jury's verdict;

(3) noting,

to Chapman,
_______

in

conclusion and

that when

test is met, the Chapman test also is met.

_______

the Carella
_______

In light of this,

and because abandoning Carella necessarily means that we must

_______
welcome factfinding by habeas courts on the basis of evidence
the jury did not consider, I prefer the latter reading.
A

third

argument might

that,

in Yates,
_____

Court has

courts.

My response to such an argument simply would be that

agree.

effects

As I
of

see it,

rebuttable

ratified factfinding

the Yates
_____
mandatory

impermissibly shift the burden

to

the

defendant,

does,

test for

by

the

Supreme

already

be

habeas

reviewing the

presumptions,

which

of proof from the prosecution

despite

the

Supreme

Court's

indications to the contrary, reek of factfinding by reviewing

courts.

Cf. generally Yates, 111 S. Ct. at 1898 (Scalia, J.,

___ _________ _____

concurring

in judgment)

(explaining that,

when a

jury has

-2929

been directed to apply a rebuttable mandatory presumption, it

has

never found that

the prosecution proved

the element on

which the presumption was erected beyond a reasonable doubt).

However, as Justice Scalia notes in his Carella concurrence:
_______
It is one thing to say that the effect of
th[e]
erroneous
burden-shifting
[effectuated by a rebuttable presumption]
will
be
disregarded if
the record
developed at
trial establishes guilt
beyond a reasonable doubt; it is quite
another to say that the jury's failure to
make any factual determination of the
___
elemental fact -- because of a conclusive
presumption resting upon findings that do
not establish beyond a reasonable doubt
the elemental fact -- will be similarly
disregarded.
Carella, 491
_______

U.S. at 273 (Scalia,

J., concurring) (internal

quotation marks omitted) (arguing the particular propriety of

the

Carella test
_______

Thus, I
read

to

the

do not think that

as implicitly

conclusive presumption
the Yates test can
_____

endorsing

the type

context).

and should be

of factfinding

the

majority engages in today.

Finally,

one

might

argue,

majority, that wholesale use of the

principles of

jurisprudence.

does

the

Brecht
______

Brecht test promotes the

______

restraint, often couched in

and "federalism," underlying the

habeas

as

terms of "comity"

Supreme Court's more recent

In response, I

could only

agree if

"restraint" is defined solely in terms of state prisoners not

being granted very many writs of habeas corpus.
it

obvious that factfinding on

For, I think

the basis of record evidence

-3030

that the jury never considered cannot be cited as evidence of

judicial

restraint.

So

principles of comity and

too do

think it

obvious

that

federalism should never require the

_____

continued

incarceration

of a

state

prisoner

afforded his/her constitutional rights

jury make the requisite
in his/her trial
federal

to have an

not

impartial

factual and elemental determinations

just because a federal judge

judges believe that

the record.

who was

or a panel of

guilt is "likely"

spelt out by

Cf. Bollenbach, 326 U.S. at 614.

___ __________
C.
C.
__

Application
easily

yields the

harmless.18
whether

an

manslaughter

of the Carella test to the case at bar

_______

conclusion that

I start from
unlawful
turns

on

committed with malice.

inflict

the error

the premise that

killing

or

See ante note

___ ____

not

the question of

constitutes

whether

injury on the victim

here was

murder

or
was

not

the

killing

4.

"An

intention to

which is not

justified on any

lawful ground or palliated by the existence of any mitigating

__ _________ __ ___ _________ __ ___ __________
circumstances is
_____________

malicious within

Commonwealth v. Colon-Cruz, 562

____________
__________

the meaning of

the law."

N.E.2d 797, 808 (Mass. 1990)

____________________
18. Obviously, petitioner neither was acquitted of the
charge on which the presumption was set up nor admitted at
trial that if he did the stabbing, he did so maliciously.
Thus, I restrict my inquiry under Carella to whether the
_______
predicate facts relied upon in the instruction, or other
facts necessarily found by the jury, are so closely related
to malice that no rational jury could have found those facts

without also finding malice.

-3131

(emphasis
N.E.2d

supplied)

(quoting Commonwealth
____________

v.

McGuirk, 380
_______

662, 666-67 (Mass. 1978), cert. denied, 439 U.S. 1120

_____ ______

(1979)); see
___

also Reddick
____ _______

v. Commonwealth, 409
____________

N.E.2d 764,

769 (Mass. 1980) (malice and the presence of legal mitigation

are "mutually
constitutes
malice

exclusive").
a mitigating

and to

reduce a

under Massachusetts law.

Commonwealth
____________

assault

of "sudden combat"

circumstance sufficient
verdict of

murder

to negate

to manslaughter

See Richard, 384 N.E.2d at 638; cf.

___ _______
___

v. Nardone,
_______

(distinguishing

The presence

546 N.E.2d

between assault

with intent to kill).

with

359, 364
intent to

And, when

circumstance is adequately raised

(Mass. 1989)
murder and

such a mitigating

in the evidence (as sudden

combat was here), the Commonwealth must prove the absence

this

circumstance

Commonwealth

beyond

v. Nieves,

476

reasonable
N.E.2d 179,

doubt.
182 (Mass.

of
See
___

1985)

____________
(citing

______

Mullaney v. Wilbur, 421

________
______

U.S. 684, 697-98 (1975) and

Commonwealth v. Stokes, 374 N.E.2d 87, 94 (Mass. 1978)).

____________
______
As
reasonably

the majority
likely

that

opinion

states, it

the jurors,

on

the

is at

least

basis of

the

challenged instruction, found malice solely upon finding that

petitioner stabbed the victim

deliberately and cruelly.

The

foregoing authority, however, makes clear that deliberate and

cruel behavior
behavior.

is

not necessarily

tantamount to

malicious

To be specific, the stabbing here could have been

both deliberate

and cruel,

but administered in

response to

-3232

sudden combat, of
Thus, I
facts

which there

cannot say
relied

necessarily

upon

is evidence

that, in this
in

the

in this

instance, "the

instruction,

or

record.
predicate

other

facts

found by the jury, are so closely related to the

ultimate fact to be presumed that no rational jury could find

those

facts

without

also

finding

that

ultimate

fact."

Carella,
_______

491

U.S. at

271.

Accordingly,

the error

had a

"substantial and injurious effect or influence in determining

the

jury's verdict."

The petition,

therefore, should

be

granted.19

____________________
19. Even were I to employ the deferential standard of review
the majority utilizes, I could not join the majority opinion.
As I have explained, the error committed here had the effect
of deterring the jury from considering evidence of sudden
combat.
Yet, there was an abundance of such evidence;
indeed, it is undisputed that the stabbing took place in the
midst of a drunken melee.
In light of this, and in light of
the further fact that the Commonwealth bore the burden of
proving an absence of sudden combat beyond a reasonable
doubt, see Nieves, 476 N.E.2d at 182, I am at a loss to see
___ ______
how the error can be viewed as harmless even under Brecht.
______
-3333