Title Rock v. Zimmerman
Date 1991
By
Subject Other\Dissenting
Contents
Page 1
59 of 64 DOCUMENTS
GARY LEE ROCK, Appellant v. LEROY S. ZIMMERMAN; JOHN F. NELSON, DISTRICT ATTORNEY of Franklin County
No. 90-5120
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
1991 U.S. App. LEXIS 17926
April 2, 1991, Argued
August 8, 1991, Filed
SUBSEQUENT HISTORY:
Vacated by Order of the Court September 5, 1991. Rehearing In Banc Granted September 5, 1991, Reported at 1991 U.S. App. LEXIS 20784.
PRIOR HISTORY: *1
Appeal from the United States District Court for the
Middle District of Pennsylvania; D.C. Civil No. 88-
02011.
CASE SUMMARY:
PROCEDURAL POSTURE: Appellant state prisoner sought review of the order from the United States District Court for the Middle District of Pennsylvania, which denied appellant's petition for a writ of habeas corpus. Appellant had been convicted of first degree murder, and his habeas petition was based on jury instructions.
OVERVIEW: Appellant state prisoner was convicted of first-degree murder, and then sought a petition for a writ of habeas corpus. The district court's order denied the petition, and appellant sought further review. On appeal, the court reversed the order and remanded for the district court to determine whether or not the writ should have been conditionally granted. The court held that the district court's jury instruction on a presumption, which was that the intentional, unlawful, and fatal use of a deadly weapon against a vital part of the body gave rise to the presumption of fact that an intent to kill existed, violated appellant's right to due process under the U.S. Const. amend. XIV. The court held that the language of the instruction was not permissive, but was mandatory. The court found that the jury instruction might have been reasonably interpreted by the jury to relieve appellee state from its burden of proof on the element of intent to kill. The court held that
the state had to prove beyond a reasonable doubt all the elements of the crime charged.
OUTCOME: The court reversed the order, which de- nied appellant state prisoner's petition for a writ of habeas corpus, and remanded for the district court to determine whether or not the writ should have been conditionally granted. The court held that qualifying language that merely contradicted an improper presumption in a jury instruction had not cured the constitutionally erroneous instruction.
LexisNexis(R) Headnotes
Criminal Law & Procedure > Habeas Corpus > Standards of Review
HN1 In a habeas corpus action, the court reviews the dis- trict court's conclusions of law under a plenary standard. As well, the legal question of whether the jury charge vio- lates the due process guarantee of the U.S. Const. amend. XIV, implicates our plenary review.
Criminal Law & Procedure > Trials > Burdens of Proof
> Prosecution
HN2 The state must prove beyond a reasonable doubt all the elements of the crime charged.
Criminal Law & Procedure > Jury Instructions > Objections
HN3 The court must first inquire into the nature of the presumption described in the challenged instruction. This inquiry is informed by the notion that whether a defen- dant is accorded his constitutional rights depends upon the way in which a reasonable juror could interpret the instruction. The court looks not to merely possible inter- pretations; the key is how a reasonable jury may interpret the challenged instruction. Further, the possibility that the jury may not rely on the instruction cannot save the charge; where one of alternative theories submitted to the
1991 U.S. App. LEXIS 17926, *1
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jury is unconstitutional, the verdict cannot stand. Criminal Law & Procedure > Trials > Defendant's Rights > Right to Due Process
Criminal Law & Procedure > Jury Instructions > Particular Instructions
HN4 The United States Constitution entitles one to a fair, not a perfect, trial, and the court may only reverse a conviction if the jury charge, taken as a whole, vio- lates the defendant's right to due process under the U.S. Const. amend. XIV. Thus the verdict may be sustained if the charge contains qualifying language sufficient to ex- plain to the jury that the erroneous instruction is wrong. Qualifying language that merely contradicts an improper presumption, however, does not cure the constitutional infirmity.
Evidence > Criminal Evidence > Presumptions
HN5 The temptation to cast in terms of a "presumption" a conclusion which a court thinks probable from given facts must be avoided.
Criminal Law & Procedure > Appeals > Standards of
Review > Harmless & Invited Errors
HN6 The proper inquiry is whether it appears beyond a reasonable doubt that the error complained of does not contribute to the verdict obtained. To this end, the court is instructed to determine first what evidence the jury actually considers, and second, to weigh the probative force of that evidence as against the probative force of the presumption standing alone.
COUNSEL:
David Rudovsky, Esq. (ARGUED), Kairys &
Rudovsky, Philadelphia, Pennsylvania, COUNSEL FOR APPELLANT.
John F. Nelson, Esq. (ARGUED), Office of District Attorney, Chambersburg, Pennsylvania, COUNSEL FOR APPELLEES.
JUDGES:
Mansmann and Alito, Circuit Judges, and O'Neill, District Judge. * Samual A. Alito, Circuit Judge, dissent- ing.
* Honorable Thomas N. O'Neill, Jr. of the United States District Court for the Eastern District of Pennsylvania, sitting by designation.
OPINIONBY:
MANSMANN
OPINION:
OPINION OF THE COURT
In this appeal from the denial of a writ of habeas corpus, Pennsylvania state prisoner Gary Rock asks us to overturn his first degree murder convictions for the reason that jury instructions given at his trial were constitution- ally defective. We find that the jury instruction at issue, that "the intentional, unlawful, and fatal use of a deadly weapon against a vital part of the body gives rise to the presumption of fact that an intent to kill existed," violated Rock's right to due process under the fourteenth amend- ment. We further find, upon reading the charge as a whole, that this jury
1991 U.S. App. LEXIS 17926, *2
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*2 instruction does not constitute harmless error under the standard set forth in Chapman v. California, 386 U.S.
18 (1967), and Yates v. Evatt, U.S. , 111 S.Ct. 1884
(1991). Thus, we will reverse the order of the district court and remand for the district court to grant the writ.
I. A.
We set forth in detail the evidence and theories brought out during Rock's second state court trial n1 because it is this evidence which bears upon allegations of error in the jury charge.
n1 After a trial in May of 1978, the jury con- victed Rock of two counts of first degree mur- der and six counts of attempted murder. The Pennsylvania Supreme Court affirmed the convic- tion, Commonwealth v. Rock, 494 Pa. 128, 430 A.2d
1150 (1981).
Rock subsequently succeeded in obtaining a federal writ of habeas corpus on the grounds of inef- fective assistance of counsel. Rock v. Zimmerman,
586 F. Supp. 1076 (M.D. Pa. 1984). He was thus retried in January of 1985.
1991 U.S. App. LEXIS 17926, *3
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*3
On July 2, 1977, after setting fire to his home and shed, Rock took the lives of Wilbur Brookens and James Cutchall when they came to his aid. The evidence was uncontroverted that Rock purchased ammunition earlier in the day, sighted in the scope of his .300 Savage rifle, and fired off four shots at a target before he began to ran- sack his home and shed. He then doused these structures with gasoline and set them on fire. Wilbur Brookens, a neighbor, noticed the smoke and approached on foot. He was killed when Rock fired a single bullet into his chest. Similarly, Rock shot James Cutchall, the Fayetteville vol-
unteer fire department chief, when he drove into Rock's lane. The cause of death was a bullet wound to Cutchall's head. A pathologist who conducted the autopsies testified that Brookens died as a result of damage to his heart and left lung and a resulting massive hemorrhage. Cutchall's death resulted from a bullet wound to the left side of his skull that caused destruction of the brain and an intracra- nial hemorrhage.
Rock fired several shots at a fire engine which then approached the scene, wounding a fire fighter and missing several others. Dressed in fatigue trousers and wearing
1991 U.S. App. LEXIS 17926, *4
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*4 his Marine dog tag, Rock then fled into the woods and mountains behind his home, carrying his rifle and a shotgun, ammunition for both weapons and two empty canteens. When he was apprehended later that day, Rock inquired of police, "How many did I kill?" Rock disputes the testimony of one officer that Rock also stated at the scene of his capture, "I saw two fall." (Rock testified that he believed he was shooting at moving objects rather than at people.)
Rock presented defenses relating solely to intent, con- ceding that he had fired the shots that killed two and in- jured other victims. To the charges of first degree murder,
Rock asked the jury to find him not guilty by reason of insanity, or alternatively, guilty of third degree murder by reason of diminished capacity. The psychiatrist who testified for the defense opined that Rock suffered from an acute psychotic breakdown from the time he began to ransack his home to his flight into the mountains.
The Commonwealth conversely argued to the jury that Rock's actions, while irrational, displayed deliberate preparation: Rock purchased ammunition, sighted in his rifle, set the fire and waited for the predictable response of the victims.
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*5 Thus, the alleged deliberate nature of Rock's actions warranted guilty verdicts of first degree murder for the killings of Brookens and Cutchall. n2
n2 At his second trial, Rock was also charged with six counts of attempted murder or alternatively six counts of aggravated assault for the shots fired at the six fire fighters on the fire engine.
The trial judge then delivered his charge to the jury. Because we cannot review the specific allegations of error
in isolation, we set forth here (adding our own emphasis) all the relevant portions of that jury charge. During its initial charge to the jury, the trial court provided the fol- lowing specific instruction concerning intent:
We should at this point also tell you the intentional, unlawful, and fatal use of a deadly weapon against a vital part of the body gives rise to the presumption of fact that an intent to kill existed.
This is a presumption of fact based on common knowl- edge that such use is almost certain to be fatal. Every person is presumed to intend the natural
1991 U.S. App. LEXIS 17926, *6
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*6 and probable consequences of his act, but being a presumption of fact it may be rebutted by other circum- stances in the case; and whether it is so rebutted is a question for you to decide.
In other words, members of the jury, you may, if you see fit, find an intent to kill existing from the fact that the defendant did use the 300 Savage rifle; that he did fire it; that he did strike Mr. Brookens in the chest and blow out his heart; and did fire it again and struck Chief Cutchall in the skill and damaged his brain causing death in each case. These things you may, if you see fit, consider in determining whether or not there is an intent to kill.
If you find the existence of an intent to kill, then you must also determine whether the presumptions of fact that I have just referred to have been rebutted by other circum- stances in the case and whether they have been so rebutted is entirely a question for you to decide as the triers of fact.
(Emphasis added).
In addition to these specific instructions, the trial court also gave to the jury these more general instructions, which the Commonwealth suggests are "curative:"
The determination of all of the facts in this case, . .
1991 U.S. App. LEXIS 17926, *7
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*7 . is exclusively for the jury. . . . As to the facts of the case, you are the exclusive judges.
* * *
If, however, your judgment of what the evidence proves and the inferences to be drawn from the facts established to your satisfaction differs from what is sug- gested by the attorneys or by the Court, you will follow your own judgment and not the suggestion of anyone else, including the attorneys or the Judge.
* * *
Furthermore, a defendant is presumed innocent throughout the trial and unless and until you conclude, based on a careful and impartial consideration of the ev-
idence, that the Commonwealth has proven him guilty beyond a reasonable doubt; and of course, that applies as to each of these matters that you will be considering. . .
. It is the Commonwealth that always has the burden of proving each and every element of the crime charged . . . and that the defendant is guilty of that crime or crimes be- yond a reasonable doubt. The person accused of a crime or crimes is not required to present evidence or prove anything in his own defense.
* * *
If a person intends to kill, the intention is to be gath- ered from all of the circumstances surrounding the act, as from the character and
1991 U.S. App. LEXIS 17926, *8
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*8 type of weapon used, from the part of the body on which it is to be used, and what was said at the time or im- mediately after by the person committing the act, and all of the circumstances that throw any light on the intention. After eight hours of deliberation, the jury returned with three questions n3 including "Explain intent in re- gards to the hitting of a vital organ." The trial court re-
sponded with the following supplemental charge:
Then you inquired as to the intent in regard to the hitting of a vital organ; and if you will recall, I told you in the charge on first-degree murder that the intentional, unlawful, and fatal use of a deadly weapon against a vital
part of the body gives rise to the presumption of fact that an intent to kill existed. This is a presumption of fact based on common knowledge that such use is almost certain to be fatal.
Every person is presumed to intend the natural and probable consequences of his act; but being a presump- tion of fact, it may be rebutted by other circumstances in the case, and whether it is so rebutted is a question for you to decide.
So what the law is on the subject is that if Mr. Rock intentionally, without justification, that means
1991 U.S. App. LEXIS 17926, *9
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*9 lawfully, did use a deadly weapon against a vital part of the body of the victim or victims, then that gives rise for you to consider that there is a presumption of fact that an intent to kill existed. Because we all know that such use is almost certain to be fatal.
n3 The other two questions requested explana- tion of the difference between murder of the first de- gree and murder of the third degree with diminished capacity and a review of involuntary manslaughter.
Defense counsel immediately objected to that instruc- tion, stating, "I think that's an improper instruction be- cause it shifts the burden of proof from the prosecution to the defense." Less than one and one-half hours later, the jury returned with guilty verdicts to the two counts of first degree murder, four counts of attempted murder and two counts of aggravated assault.
After the trial judge denied Rock's extensive post- trial motions -- including the due process challenge to the jury charge -- the trial judge sentenced Rock to two consecutive life sentences
1991 U.S. App. LEXIS 17926, *10
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*10 to run concurrently with a 26-60 year sentence on the attempted murder and aggravated assault counts. Rock appealed to the Superior Court of Pennsylvania, which affirmed in an unpublished memorandum opin- ion. Commonwealth v. Rock, No. 191 Harrisburg (Apr.
16, 1987). The Supreme Court of Pennsylvania denied Rock's petition for allocatur. Therefore Rock has properly exhausted all of his state court remedies. See Swanger v. Zimmerman, 750 F.2d 291, 295 (3d Cir. 1984) (claim raised on direct appeal satisfies exhaustion requirement). In his petition for a writ of habeas corpus, Rock raised three issues that he continues to press in this appeal from the district court's denial of the writ. Because we reverse the denial of the writ on the first issue raised, we need not resolve the merits of Rock's challenges to the denial of his motion for a change of venue and the more severe
sentence imposed following retrial. n4
n4 We note, however, that the issue of whether a change of venue was necessary due to pretrial pub- licity may arise again by virtue of a retrial. While we make no judgment on the merits, we note that the test does not require that qualified jurors be unin- formed, nor lack a preconceived notion of guilt, but only that they must be able to lay aside that notion and decide the case based on the evidence. Murphy v. Florida, 421 U.S. 794, 800 (1975); see Martin v. Warden, Huntingdon State Correctional Institution,
653 F.2d 799, 804 (3d Cir. 1981), cert. denied, 454
U.S. 1151 (1982). "That time soothes and erases is a
perfectly natural phenomenon, familiar to all," and the relevant inquiry is "not whether the community remember s the case, but whether the prospective jurors have such a fixed opinion that they could not be impartial." Patton v. Yount, 467 U.S. 1025, 1034,
1035 (1984).
Rock also challenges the increased sentence he received after retrial. After his first trial, Rock re- ceived two concurrent life sentences and for the attempted murder convictions, six concurrent three to eight year sentences to run consecutively to the life sentences. Following his second trial, he re- ceived two consecutive life sentences and 26-60 years to run concurrently with the life sentences for four counts of attempted murder and two counts of aggravated assault. To set aside his sentence, Rock must prove vindictiveness on the part of the trial judge. Here he is not aided by a presumption of vindictiveness because the second trial judge did not preside over the first trial and the second trial judge provided sufficient reasons for imposing the harsher sentence. North Carolina v. Pearce, 395
U.S. 711, 725 (1969); Texas v. McCullough, 475
U.S. 134, 140 (1986). We note also that sentencing is a discretionary act and Pearce requires no more than that the second sentencing judge provide log- ical and non-vindictive reasons in support of the harsher sentence.
1991 U.S. App. LEXIS 17926, *11
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*11
II.
As an initial matter, we must determine whether Rock preserved the due process issue by objecting to the charge with the requisite degree of specificity. n5 Pennsylvania law governs the requirements for preserving for appel- late review an issue arising from a Pennsylvania criminal prosecution. Pa. R. Crim. P. 1119(b); Pa. R. A. P. 302; see Commonwealth v. Rounds, 510 Pa. 524, 510 A.2d 348
(1986) (a general allegation of error does not satisfy re- quired specific objection prior to the jury's deliberations
resulting in waiver). The highest state court to address the issue, the Pennsylvania Superior Court, has ruled that Rock's objection at trial satisfied Pennsylvania law's cri- teria for preservation of issues. Commonwealth v. Rock, No. 191 Harrisburg, slip op. at 3 (Pa. Super. Apr. 16,
1987). Since we are bound by the state court's construc- tion of its own law, we hold that Rock has preserved this issue. Mullaney v. Wilber, 421 U.S. 684, 691 (1975); see also Sullivan v. Cuyler, 723 F.2d 1077, 1084 (3d Cir. 1983)
(federal courts must accord a presumption of correctness to state court factfinding in habeas corpus
1991 U.S. App. LEXIS 17926, *12
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*12 proceedings).
n5 At a sidebar following the jury charge, de- fense counsel placed his objection on the record, but failed to name the Sandstrom violation:
I object in this case with an insanity defense to the charge which allows them to find, as a matter of fact, that there was intent but use of intentional--by the intentional use of a deadly weapon on a part of the body, because I think that is inconsistent with the Commonwealth's burden to prove that the de- fendant is not sane. So I think in this case I object
to that particular charge.
With respect to our standard of review HN1 in this habeas action, we review the district court's conclusions of law under a plenary standard. Humanik v. Beyer, 871
F.2d 432, 435 (3d Cir.), cert. denied U.S. , 110 S.Ct.
57 (1989). As well, the legal question of whether the jury charge violated the due process guarantee of the four- teenth amendment implicates our plenary review.
III.
The Supreme Court has emphasized the constitutional imperative
1991 U.S. App. LEXIS 17926, *13
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*13 that HN2 the state prove beyond a reasonable doubt all the elements of the crime charged. In re Winship,
397 U.S. 358 (1970). In a series of cases, the Court has applied this principle to jury instructions and has refined the appropriate constitutional analysis to be applied to instructions that allegedly shift improperly the burden of proof on any element of the crime from the state to the defendant. See Rose v. Clark, 478 U.S. 570 (1986)
(applying harmless error analysis to an instruction that violated Sandstrom); Francis v. Franklin, 471 U.S. 307
(1985) (differentiating between mandatory presumptions
and permissive inferences and instructing review of entire charge for its impact on the jury); Sandstrom v. Montana,
442 U.S. 510 (1979) (ruling unconstitutional presumptive instructions that relieve the state of its burden to prove the element of intent).
The Supreme Court has instructed that HN3 we must first inquire into the nature of the presumption described in the challenged instruction. Sandstrom, 442 U.S. at 514; see Ulster County Court v. Allen, 442 U.S. 140, 157-163
(1979)
1991 U.S. App. LEXIS 17926, *14
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*14 (describing types of presumptions). This inquiry is informed by the notion that "whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction." Sandstrom, 442 U.S. at 514. We look not to merely possible interpretations; the key is how a reason- able jury may have interpreted the challenged instruction. See Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190,
1197 (1990) (listing various formulations of the standard). Further, the possibility that the jury may not have relied
on the instruction cannot save the charge; where one of alternative theories submitted to the jury is unconstitu- tional, the verdict cannot stand. See Sandstrom, 442 U.S. at 526 (citing cases).
In Sandstrom the jury was charged that "the law pre- sumes that a person intends the ordinary consequences of his voluntary acts." 442 U.S. at 513, 524. The peti- tioner conceded that he killed the victim, and presented as his sole defense that he did not do so "purposefully or knowingly" as required by the state statute. Id. at 512.
1991 U.S. App. LEXIS 17926, *15
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*15 The Court rejected the state's view that reasonable jurors may have construed the presumption to be permis- sive or rebuttable, because a reasonable jury could have
"interpreted the presumption as 'conclusive'", or alterna- tively, "as a direction to find intent upon proof of the defendant's voluntary actions . . . unless the defendant proved the contrary by some quantum of proof which may well have been considerably greater than 'some' evi- dence -- thus effectively shifting the burden of persuasion on the element of intent." Id. at 517. Because a reasonable
jury could have interpreted the instructions in a manner which would violate the defendant's due process rights, the instruction was deemed constitutionally infirm. Id. at
519 (citing Ulster). Because a conclusive presumption on the intent element of the crime would effectively elimi- nate intent as an element and "conflict with the overriding presumption of innocence . . . which extends to every el- ement of the crime", see Morissette v. United States, 342
U.S. 246, 274-5 (1952), the Court found that the jury may have inferred Sandstrom's criminal intent from the
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*16 act of causing the victim's death combined with a finding of voluntariness. Alternatively, even if the jury had interpreted the instruction to shift the burden to the defendant to disprove intent, it would be unconstitutional. Sandstrom, 442 U.S. at 524.
IV. A.
Here, the district court correctly determined that the instruction contained a mandatory presumption that vio- lated the rule articulated in Sandstrom, although the dis- trict court erred in ruling that other portions of the charge were adequately curative. The state trial court had charged
the jury:
We should at this point also tell you the intentional, unlawful, and fatal use of a deadly weapon against a vital part of the body gives rise to the presumption of fact that an intent to kill existed.
This is a presumption of fact based on common knowl- edge that such use is almost certain to be fatal.
On its face, the language of the instruction states that the predicate facts "give rise to the presumption" of intent. See Carella v. California, 491 U.S. 263, 265 (1989) (per curiam) ("whether the specific instruction, both alone and in the context of the overall charge, could have been
1991 U.S. App. LEXIS 17926, *17
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*17 understood by reasonable jurors to require them to find the presumed fact if the State proves certain predicate facts"). In other words, from the existence of two undis- puted predicate facts--(1) that Rock fatally used a deadly weapon, (2) against a vital part of the bodies of the mur- der victims)--the instruction informed the jury that the necessary element of intent is presumed.
By its own terms this instruction was not permis- sive. Moreover, the mandatory nature of the presumption was emphasized by the instruction immediately follow-
ing: "This is a presumption of fact based on common knowledge that such use is almost certain to be fatal. Every person is presumed to intend the natural and prob- able consequences of his act . . ." (emphasis added). The clear import of these words suggests a mandatory rather than a permissive presumption. It is similar to the mandatory presumption language ruled unconstitutional in Sandstrom, that "the law presumes that a person in- tends the ordinary consequences of his voluntary acts." Sandstrom, 442 U.S. at 513. See Yates v. Aiken, 484 U.S.
211 (1988) (the instruction that " intent is implied or
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*18 presumed from the use of a deadly weapon" consti- tutes Sandstrom error). Thus, because the jury instruction may have been reasonably interpreted by the jury to re- lieve the state from its burden of proof on the element of intent to kill, that language, standing alone, violated the constitutional guarantee of due process. Sandstrom, 442
U.S. at 524.
The Commonwealth alleges that because the manda- tory presumption was rebuttable, it was less objection- able from a constitutional perspective. The trial court did elaborate on the mandatory presumption instruction, as follows:
Every person is presumed to intend the natural and prob-
able consequences of his act, but being a presumption of fact it may be rebutted by other circumstances in the case; and whether it is so rebutted is a question for you to decide.
* * *
If you find the existence of an intent to kill, then you must also determine whether the presumptions of fact that I have just referred to have been rebutted by other circum- stances in the case and whether they have been so rebutted is entirely a question for you to decide as the triers of fact.
While there is no dispute that the mandatory presumption given
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*19 to the jury was expressly rebuttable, nevertheless, for due process purposes, a rebuttable presumption is as constitutionally infirm as an irrebuttable one. Francis,
471 U.S. at 317. n6 This is so because " a mandatory rebuttable presumption does not remove the presumed el- ement from the case if the State proves the predicate facts, but it nonetheless relieves the State of the affirmative bur- den of persuasion on the presumed element by instructing the jury that it must find the presumed element unless the defendant persuades the jury not to make such a finding." Id. In Francis, as here, the defendant defended only on the basis of a lack of intent; there he claimed that the shooting had been accidental. Because a reasonable jury could be- lieve that intent must be presumed absent the defendant's affirmative rebuttal of the predicate acts, the mandatory, albeit rebuttable, presumption violates due process. Id. at 318.
n6 The jury in Francis was given this instruc- tion:
A crime is a violation of a statute of this State
in which there shall be a union of joint operation of act or omission to act, and intention or crimi- nal negligence. A person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no crimi- nal scheme or undertaking or intention or criminal negligence. The acts of a person of sound mind and discretion are presumed to be the product of the person's will, but the presumption may be rebutted. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts but the presumption may be rebutted. A person will not be presumed to act with crimi- nal intention but the trier of facts, that is, the Jury, may find criminal intention upon a consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is prosecuted.
Francis, 471 U.S. at 311-12. (Emphasis added.)
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*20
B.
While an isolated instruction may violate due process requirements, the conviction may be sustained if it ap- pears from the record that the charge as a whole clarified the State's burden of proof and persuasion on each ele- ment. Francis, 471 U.S. at 319; Hall v. Kelso, 892 F.2d
1541 (11th Cir. 1990). See, e.g., Cupp v. Naughten, 414
U.S. 141, 146-47 (1973) (general instruction that "every witness is presumed to speak the truth" did not violate due process where the charge also included the state's burden
of proof, reasonable doubt and the presumption of inno- cence). HN4 The Constitution entitles one to a fair, not a perfect, trial, United States v. Hasting, 461 U.S. 499,
508-509 (1983), and we may only reverse a conviction if the jury charge, taken as a whole, violated the defendant's right to due process under the fourteenth amendment.
Thus the verdict may be sustained if the charge con- tains qualifying language sufficient to explain to the jury that the erroneous instruction is wrong. Qualifying lan- guage that merely contradicts an improper presumption, however, does not cure the constitutional infirmity.
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*21 Francis, 471 U.S. at 322. As the Court has in- structed:
Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. A reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict.
Francis, 471 U.S. at 322; Cabana v. Bullock, 474 U.S.
376, 383 n.2 (1986).
The qualifying language in this case is of two types which we address in turn. The Commonwealth asserts that
permissive language following the initial mandatory pre- sumption is sufficiently contradictory and explanatory to cure any constitutional defect in the mandatory presump- tion language. In this regard, the trial court also instructed the jury:
In other words, members of the jury, you may, if you see fit, find an intent to kill existing from the fact that the defendant did use the 300 Savage rifle; that he did fire it; that he did strike Mr. Brookens in the chest and blow out his heart; and did fire it again and struck Chief Cutchall in the skull and damaged his brain causing death in each case. These things you may, if
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*22 you see fit, consider in determining whether or not there is an intent to kill. (Emphasis added.)
The district court found that this permissive infer- ence language, "you may, if you see fit find that Rock intended the natural consequences of firing his rifle ", ad- equately qualified the mandatory presumption language. We disagree. Although it is true that the phrase "you may, if you see fit," apparently contradicts the mandatory presumption instruction, the trial court did not explain this apparent inconsistency. Assuming without deciding that these instructions are contradictory, because the trial
court offered no explanation and we cannot divine which instruction the jury may have followed, we cannot con- clude that this language cured the Sandstrom error.
In addition, we note that although this permissive lan- guage standing alone appears to contradict the manda- tory presumption, its placement in the context of the en- tire charge tends to show that it does not contradict nor more importantly, for Francis purposes, does it "explain" the difference. This permissive charge fell between the first mandatory rebuttable presumption and its reiteration. That the purportedly qualifying
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*23 language was thus sandwiched between two recita- tions of the infirm instruction suggests that a reasonable jury could have interpreted it to provide a restatement rather than an explanation of the infirm instruction. Cf. Hill v. Maloney, 927 F.2d 646 (1st Cir. 1990) (when cu- rative language is coupled with the infirm instruction and prefaced by the words "and therefore", "we think it likely that a jury would understand the concluding sentence as a short-hand summary of the full supplemental instruc- tion").
Moreover, the permissive instruction included an ex-
pansive review of the predicate acts characterized in more graphic language than that used in the mandatory pre- sumption instruction itself. Adding the words "you may, if you see fit," to a graphic elaboration of the predicate facts n7 including "that he did strike Mr. Brookens in the chest and blow out his heart" does not sufficiently contra- dict the mandatory presumption. Although the cold record does not fully reveal whether this enumeration did in fact inflame the jury, and we recognize that this instruction may have been no more damaging to Rock than the trial testimony itself, we are satisfied that this elaboration
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*24 and reinforcement of the predicate acts, even cou- pled with permissive language, did not serve to explain the mandatory rebuttable instruction.
n7 In this elaboration, the trial court actually detailed and expanded upon the two predicate acts, drawing them out into eight separate items: (1)
"the defendant did use the 300 Savage rifle;" (2)
"he did fire it;" (3) "he did strike Mr. Brookens in the chest;" (4) "and blow out his heart;" (5) "and did fire it again;" (6) "and struck Chief Cutchall in the
skull;" (7) "and damaged his brain;" (8) "causing death in each case."
We also find insufficient to explain and qualify the in- firm instruction the general instructions given to explain the concepts of the presumption of innocence and reason- able doubt. n8 Francis, 471 U.S. at 319; n9 United States v. Clemons, 843 F.2d 741 (3d Cir.), cert. denied, 488 U.S.
835 (1988). See Humanik, 871 F.2d at 442 (jurors are more likely to apply specific than general
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Page 26
*25 instructions); see also Brooks v. Kemp, 762 F.2d
1383, 1389 (11th Cir. 1985) (rejecting the proposition that general instructions are sufficiently curative). Instructions concerning the State's burden of proof, the presumption of innocence, and the definition of reasonable doubt may fail to cure a constitutionally defective instruction for two reasons. First, regardless of the possibility that the jury
may have followed the correct general instructions, we have no assurance that it did so and chose to reject the infirm instruction. Francis, 471 U.S. at 322; Hall, 892
F.2d at 1545. Second, because these instructions were not linked to the infirm one, they merely contradict, with- out explaining, the mandatory presumption. Francis, 471
U.S. at 322; Hall, 892 F.2d at 1545. n10
1991 U.S. App. LEXIS 17926, *26
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*26
n8 The trial judge charged in this regard:
The determination of all of the facts in this case,
. . . is exclusively for the jury. . . . As to the facts of the case, you are the exclusive judges.
* * *
If, however, your judgment of what the evi- dence proves and the inferences to be drawn from the facts established to your satisfaction differs from what is suggested by the attorneys or by the Court, you will follow your own judgment and not the suggestion of anyone else, including the attor- neys or the Judge.
* * *
Furthermore, a defendant is presumed innocent throughout the trial and unless and until you con- clude, based on a careful and impartial considera- tion of the evidence, that the Commonwealth has proven him guilty beyond a reasonable doubt; and of course, that applies as to each of these matters you will be considering. . . . It is the Commonwealth that always has the burden of proving each and ev- ery element of the crime charged . . . and that the defendant is guilty of that crime or crimes beyond a reasonable doubt. The person accused of a crime or crimes is not required to present evidence or prove anything in his own defense.
* * *
If a person intends to kill, the intention is to be gathered from all of the circumstances surrounding the act, as from the character and type of weapon used, from the part of the body on which it is to be used, and what was said at the time or immediately after by the person committing the act, and all of the circumstances that throw any light on the intention. n9 By contrast this general qualifying language preceded, but failed to cure, the erroneous instruc-
tion in Francis:
I charge you that before the State is entitled to a verdict of conviction of this defendant at your hands . . . the burden is upon the State of prov-
ing the defendant's guilt as charged . . . beyond a reasonable doubt. . . .
Now . . . the defendant enters upon his trial with the presumption of innocence in his favor and this presumption . . . remains with him throughout the trial, unless it is overcome by evidence suffi- ciently strong to satisfy you of his guilt . . . beyond a reasonable doubt.
Francis, 471 U.S. at 319 n.6.
Immediately following the unconstitutional in- struction the trial court stated: " a person will not be presumed to act with criminal intention . . . ." Id. at 311, 312.
n10 For this reason, we take issue with the dis- sent's attempt to quantify the trial judge's general instructions so as to "provide the framework within which the specific language . . . must be analyzed." Typescript at 3. While certainly we review the er- roneous instruction in the context of the charge as a whole, Francis teaches that in order to be curative, general instructions must explain, and not merely contradict, impermissible instructions. 471 U.S. at
322. Here, the jury was confronted by numerous abstract general instructions concerning the burden of proof, on the one hand, and the very specific and contradictory impermissible instructions at issue, on the other hand. We have been unable to find a clear explanation for the contradiction, reading the instructions in toto. Additionally, given the jury's specific question requesting an explanation of "in- tent in regards to the hitting of a vital organ," see infra Part V., it is equally plausible that the jury ap- plied the presumption of innocence to the predicate facts of the impermissible instruction, rather than to the "presumption of fact" that the trial judge explained could arise from those predicate facts. Upon this record, we have no way of ensuring that the jury understood how to apply the general pre- sumption of innocence instructions to the specific and impermissible mandatory presumption instruc- tion.
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*27
The district court distinguished Francis by asserting that the erroneous instruction here was not so egregious because it did not involve the disputed issue at trial. In Francis, the defendant claimed that he accidentally shot the victim when the victim slammed a door causing the gun to discharge. Thus the only contested issue concerned the petitioner's intent. In Rock, the jury was instructed to consider the defenses of insanity and diminished capacity, which would have required the jury to return verdicts of not guilty and guilty of third degree murder, respectively,
before it began to deliberate on Rock's intent to kill, an element of the first degree murder charges. Therefore, ac- cording to the district court, the jury must have disposed of the disputed issues before reaching its deliberations concerning the criminal intent.
This distinction is artificial given the facts of this case. While the jury may have determined that Rock's evidence was insufficient to sustain his insanity or diminished ca- pacity defenses, it clearly was relevant to his intent to commit murder. No direct evidence
1991 U.S. App. LEXIS 17926, *28
Page 29
*28 of intent was available, and the jury could only in- fer the intent to kill from Rock's conduct before, during, and after the shooting spree. A reasonable jury could have found Rock sane and still have applied the presumption to find intent as instructed by the trial court. We note that while a presumption is unconstitutional, an inference of intent from the facts in evidence would have been appro- priate. In fact, in his closing, the district attorney recog- nized the lack of direct evidence of intent and properly urged the jury to infer intent from all the circumstances of the crime. n11 Such an inference would have been entirely appropriate and is often the only means of prov- ing criminal intent. Nonetheless, HN5 the temptation
"to cast in terms of a 'presumption' a conclusion which a court thinks probable from given facts" must be avoided. Morissette, 342 U.S. at 274. See United States v. Lewis,
797 F.2d 358, 365 (7th Cir. 1986) (recognizing that intent
is rarely proved by direct evidence), cert. denied, 479 U.S.
1093 (1987).
n11 The District Attorney appropriately argued to the jury that "in determining an individual's in- tent, often times there is no way to determine the person's intent other than to look at what the person actually did, what acts did they commit, what was said after the acts were committed. . . . The law has said that you are entitled to infer that a person who uses a deadly weapon, such as a 300 Savage rifle, on a vital part of another person's body, such as shooting them through the heart, shooting them through the head, that that person may infer--that that person had the intent to take human life."
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*29
V.
Finally, we examine the Commonwealth's position that even if the jury charge would violate due process standing alone, if we can determine that the jury could have rendered the guilty verdict without relying upon the erroneous charge, we may find any error harmless. Rose v. Clark, 478 U.S. 570 (1986). The district court concluded, alternatively, that if erroneous, the error was harmless given a review of the evidence. n12
n12 Rock argues that the Commonwealth
should be precluded from contending that any error was harmless because during post-trial motions, the Commonwealth allegedly asserted that if the error violated Sandstrom, it could not have been harmless. Because this alleged waiver occurred be- fore Rose v. Clark, 478 U.S. 570 (1986), firmly es- tablished the availability of a harmless error analy- sis even where the error concerned a disputed issue, we reject this claim of waiver.
In Rose, the Court applied to jury instructions the harmless error test of Chapman v. California, 386 U.S. 18
(1967),
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*30 which permits a criminal conviction to stand notwithstanding a constitutional error if the reviewing court can find the error harmless beyond a reasonable doubt on the entire record. Rose, 478 U.S. at 576. Rose specified that a harmless error inquiry could be employed even where the infirm instruction related to the only dis- puted issue, suggesting an inquiry into "whether, 'on the whole record . . . the error . . . is harmless beyond a rea- sonable doubt.'" Rose, 478 U.S. at 583 (citation omitted). Writing for the majority in Rose, Justice Powell quoted his dissent in Connecticut v. Johnson, 460 U.S. 73 (1983)
(Powell, J. dissenting):
the inquiry in cases of Sandstrom error is whether the ev- idence was so dispositive of intent that a reviewing court can say beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption.
Id. at 97 at n.5. The Court recently elaborated upon this inquiry in Yates v. Evatt, U.S. , 111 S.Ct. 1884 (1991). Because the unconstitutionality of the jury charge that
"'malice is implied or presumed' from
1991 U.S. App. LEXIS 17926, *31
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*31 the 'willful, deliberate, and intentional doing of an unlawful act' and from the 'use of a deadly weapon'" was conceded, the Court addressed harmless error. Id. at 1892. In so doing, the Court clarified that HN6 the proper inquiry, derived from Chapman v. California, 386
U.S. at 18, is "whether it appears 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'" Yates, 111 S.Ct. at 1892. To this end, we are instructed to determine first what evidence the jury actually considered, and second, to "weigh the probative force of that evidence as against the probative
force of the presumption standing alone." Id. at 1893.
The first step requires that we adhere to the premise that the jury followed the trial court's instructions. In this case, therefore, the jury would have culled all record ev- idence to determine whether the presumption of intent from the predicate acts could be rebutted by other evi- dence. Thus, the jury would have considered Rock's own testimony that he had no intent to shoot human beings, but only moving objects, as well as the predicate facts and lack
1991 U.S. App. LEXIS 17926, *32
Page 33
*32 of a motive. Unlike the strong evidence of actual intent introduced in Rose -- for more than an hour prior to the murders the defendant had stalked his victims, his former girlfriend and her boyfriend, and carrying out his prior threat, he fatally shot them at close range -- the evidence of Rock's specific intent to kill was not over- whelming.
In this case our consideration of the second step is substantially aided by the jury's own question. After de- liberating for eight hours, the jury asked the trial court to explain "intent in regards to the hitting of a vital organ." The mere fact that the jury questioned the trial court on
this charge attests to the weight of the charge's probative force as compared to that of the evidence. The jury's recall of a portion of the trial court's phraseology demonstrates that it was struggling with the precise language and ap- plication of the erroneous instruction. In answer to this specific query, the trial court reiterated the mandatory re- buttable presumption without making any further attempt to qualify or explain it:
. . . if you will recall, I told you in the charge on first- degree murder that the intentional, unlawful, and fatal use of a deadly
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Page 34
*33 weapon against a vital part of the body gives rise to the presumption of fact that an intent to kill existed. This is a presumption of fact based on common knowledge that such use is almost certain to be fatal.
Every person is presumed to intend the natural and probable consequences of his act; but being a presump- tion of fact, it may be rebutted by other circumstances in the case, and whether it is so rebutted is a question for you to decide.
So what the law is on the subject is that if Mr. Rock intentionally, without justification, that means lawfully, did use a deadly weapon against a vital part of the body
of the victim or victims, then that gives rise for you to consider that there is a presumption of fact that an in- tent to kill existed. Because we all know that such use is almost certain to be fatal.
Less than one and one-half hours elapsed before the jury returned with guilty verdicts.
Because the unconstitutional supplemental charge specifically responded to the jury's question and was sep- arated by eight hours from the main charge, it enjoyed special prominence in the mind of the jury. See Humanik,
871 F.2d at 442 (more likely that jurors applied more
1991 U.S. App. LEXIS 17926, *34
Page 35
*34 specifically tailored charge); Arroyo v. James, 685
F.2d 35, 39 (2d Cir.) (supplemental instructions are most fresh in the mind of the jury, isolated from the fuller charge, received with heightened attentiveness, and di- rectly answer jury's question), cert. denied, 459 U.S. 1048
(1982); see also Bright v. Williams, 817 F.2d 1562, 1565
(11th Cir. 1987) (harmless error rejected where unconsti- tutional charge on intent was repeated in response to a jury question). For many different reasons, i.e., that the evidence in this case was not dispositive of intent and the jury obviously evaluated the meaning and application of the erroneous instruction, and, in answer to its specific question, the district court reinforced the erroneous in- struction without any qualification, we cannot find that the Sandstrom error in this case constituted harmless er- ror. n13
n13 We do not share the dissent's confidence that the other verdicts of guilty to the charges of attempted murder provide the necessary assurance that the error in this case was harmless. According to the dissent, because the element of intent is iden- tical for murder and attempted murder, but the pred- icate fact of "hitting a vital organ" differed in that the attempted murder victims did not sustain in- juries to their vital organs, the verdicts of guilty could not have rested upon the improper presump- tion because they were not triggered by findings on both predicate facts. The dissent asserts that a reasonable jury, that found intent for the attempted murder verdicts without relying on the presump- tion, would not have needed to rely on the pre- sumption for the verdicts of guilty to first degree murder. We think it equally as likely that the jury re-
solved the issues with respect to the murder charges first, and turned to the attempted murder counts. In so doing, the jury may have incorporated the definition of the crime of murder (including the im- proper presumption) as instructed by the trial judge, and applied a common sense approach that guilty verdicts for attempted murder were warranted for acts which differed from the murderous conduct only by the fortuitous fact that the attempts failed to kill the victims. Although stated in a different context, we find convincing the Supreme Court's acknowledgement that "jurors do not sit in soli- tary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with common sense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplit- ting." Boyde v. California, U.S. , 110 S.Ct. 1190
(1990). As the dissent notes, the trial court "did refer generally to the instructions on murder" in charging the jury on attempted murder. Because the task in conducting a harmless error analysis to a due process challenge is to ascertain "whether it appears 'beyond a reasonable doubt that the er- ror complained of did not contribute to the verdict obtained,'" see Yates v. Evatt, U.S. , 111 S.Ct.
1884, 1892 (1991), we are not convinced beyond a reasonable doubt that the dissent's speculation as to how the jury employed the trial court's instruction is any more plausible than ours.
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*35
VI.
We hold that the district court erred in not granting the writ of habeas corpus. Therefore, we will reverse the denial of the writ and remand for the district court to de- termine whether or not the writ should be conditionally granted and to address the possibility of enlargement. See Thomas v. New Jersey, 472 F.2d 735 (3d Cir.), cert. denied,
414 U.S. 878 (1973). n14
n14 The dissent suggests that the Pennsylvania courts be provided the opportunity, upon remand, to determine whether Pennsylvania law permits Rock to be resentenced to the lesser included offense of
third degree murder, which does not require a spe- cific intent and would not have been affected by the impermissible instructions. This issue was not presented in this habeas corpus petition and we be- lieve that this issue can and should be determined in the first instance by the Pennsylvania courts. Our decision should in no way be construed to preclude the Pennsylvania courts from making that inquiry.
DISSENTBY:
ALITO
DISSENT: ALITO,
1991 U.S. App. LEXIS 17926, *36
Page 37
*36 Circuit Judge, dissenting.
I disagree with the majority's decision overturning Rock's first-degree murder convictions for two homicides committed 15 years ago. As the Pennsylvania courts and the district court held, the jury instructions, when viewed as a whole, did not violate Rock's due process rights. Although the trial judge seemed at two points to refer to an improper burden-shifting presumption regarding the intent to kill, the judge adequately explained that this language really referred to a permissible inference.
In any event, even if constitutional error occurred, it
was harmless beyond any reasonable doubt. If we assume, as I believe we must, that the jury was rational and fol- lowed the judge's instructions, the jury's guilty verdicts on four counts of attempted murder were not affected by the objectionable portions of the first-degree murder in- structions. Since the jury found, without relying on an improper presumption, that Rock intended to kill the four men whom he unsuccessfully attempted to kill, it is abun- dantly clear that the jury would have reached the same conclusion regarding the two men whom he did kill even if the objectionable portions of the instructions
1991 U.S. App. LEXIS 17926, *37
Page 38
*37 had been excised. I.
The Due Process Clause of the Fourteenth Amendment requires the prosecution in a criminal case to prove every element of an offense beyond a reason- able doubt. In re Winship, 397 U.S. 358, 364 (1970). The prosecution may not satisfy this burden by means of a conclusive presumption or a mandatory rebuttable presumption that shifts the burden of persuasion to the defendant. Francis v. Franklin, 471 U.S. 307 (1985); Sandstrom v. Montana, 442 U.S. 510 (1979). By contrast,
the Due Process Clause permits a jury instruction explain- ing an inference that the jury may draw if it wishes, since such an instruction does not alter the burden of persua- sion. Yates v. Evatt, 111 S.Ct. 1884, 1892 n.7 (1991); Francis v. Franklin, 471 U.S. at 314-15.
There is no dispute that the jury instructions in this case contain two passages that appear to discuss an improper burden-shifting presumption. These passages, however, "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, 146-47 (1973).
1991 U.S. App. LEXIS 17926, *38
Page 39
*38
The trial judge in this case began his instructions on the law with a full and accurate statement regarding the presumption of innocence and the prosecution's burden to prove every element of every offense beyond a rea- sonable doubt. Later, in discussing each of the offenses with which Rock was charged and each of the defenses that Rock asserted, the trial judge reiterated that the pros- ecution bore the burden of proving every element and disproving every defense beyond a reasonable doubt. In total, the judge referred to the prosecution's burden of persuasion more than 30 times. Although general instruc-
tions on the prosecution's burden of persuasion are not alone sufficient to cure an erroneous instruction shifting the burden with respect to a particular element of an of- fense ( Francis v. Franklin, 471 U.S. at 319), the lengthy and repeated instructions regarding this concept in the present case provide the framework within which the spe- cific language upon which the majority focuses must be analyzed.
The specific language at issue here concerns an ele- ment of first-degree murder under Pennsylvania law, the intent to kill. See 18 Pa. Cons. Stat. Ann. § 2502(a).
1991 U.S. App. LEXIS 17926, *39
Page 40
*39 When the trial judge began his discussion of first- degree murder, he instructed the jury that every element, including intent to kill, had to be proven beyond a reason- able doubt. Tr. 719-20. The judge then properly explained that an intent to kill may be "gathered from all of the cir- cumstances surrounding the act," including "the part of the body" on which the weapon is used. Tr. 720. The judge continued (id.) (emphasis added): "That is, every inference should be considered by you."
A few passages later, the judge began the portion of the instructions upon which the majority relies. The judge stated (Tr. 722):
We should at this point also tell you the intentional, un- lawful, and fatal use of a deadly weapon against a vital part of the body gives rise to the presumption of fact that an intent to kill existed.
This is a presumption of fact based on common knowl- edge that such use is almost certain to be fatal. Every person is presumed to intend the natural and probable consequences of his act, but being a presumption of fact it may be rebutted by other circumstances in the case; and whether it is so rebutted is a question for you to decide. EDITOR'S NOTE: Text within these symbols
1991 U.S. App. LEXIS 17926, *40
Page 41
*40 (o> <o) is overstruck in the source.
o> In other words, members of the jury, you may, if you o< see fit, o> find an intent to kill existing from the fact that the <o defendant did use the 300 Savage rifle; that he did fire it; that he did strike Mr. Brookens in the chest and blow out his heart; and did fire it again and struck Chief Cutchall in the skull and damaged his brain causing death in each case. These things you may, if you see fit, consider in determining whether or not there is an intent to kill.
If you find the existence of an intent to kill, then you must
also determine whether the presumptions of fact that I have just referred to have been rebutted by other circum- stances in the case and whether they have been so rebutted is entirely a question for you to decide as the triers of fact. While the first two paragraphs set out above seem to be cast in the language of an improper burden-shifting presumption, the third paragraph, which begins with the phrase "In other words," explains what the previous two paragraphs mean. This explanatory paragraph is perfectly clear and leaves no doubt that the jury was not required to presume an intent to kill but was free to choose for
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Page 42
*41 itself whether an intent to kill should be inferred. The judge plainly stated: "You may if you see fit, find an intent to kill" based on the proven facts. "These things," the judge repeated, "you may if you see fit, consider in determining whether or not there is an intent to kill." Together with other accurate portions of the charge, this paragraph adequately dispelled any suggestion that the jury was required to presume an intent to kill.
The majority's reasons for dismissing this critical paragraph are unsound. First, the majority writes (type- script at 18) that this paragraph "contradicts the manda-
tory presumption instruction" contained in the preceding two paragraphs and that "the trial court did not explain this apparent inconsistency." The majority fails to note that paragraph three begins with the phrase "In other words.
. . ." Thus, paragraph three does not contradict the two prior paragraphs but provides an explanation of what they mean. In Francis, 471 U.S. at 322, the Supreme Court wrote that "language that merely contradicts and does not explain a constitutionally infirm instruction will not suf- fice to absolve the infirmity." The Court added ( id. at
322-23),
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Page 43
*42 however, that a different conclusion might be justi- fied if an objectionable instruction is followed by a proper instruction prefaced with the phrase "this means." In the present case, the third paragraph set out above is cast precisely in this mold.
The majority next writes (typescript at 18) that para- graph three falls "between the first mandatory rebuttable presumption and its reiteration i.e., in paragraph four ." This argument rests on an imprecise reading of para- graph four. Paragraph four begins with the introductory phrase "If you find the existence of an intent to kill . .
." This phraseology echoes the proper language in para- graph three regarding a permissible inference ("You may, if you see fit, find an intent to kill. . . .") (emphasis added). In addition, the placement of the introductory clause -- immediately after the discussion of a permissible infer- ence in paragraph three -- suggests that the introductory clause refers to the possibility that the jury would volun- tarily choose to infer an intent to kill based on the use of a deadly weapon against vital organs. If the introduc- tory clause is interpreted in this way, the remainder of paragraph four must be interpreted
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Page 44
*43 as providing instructions for the jury regarding what it should do if it decides to infer such intent. In other words, the remainder of paragraph four must be inter- preted to mean that if the jurors initially choose to infer such intent based upon the use of a deadly weapon against a vital organ, they should consider whether that inference
(or as the trial judge inartfully put it, that "presumption of fact") is undermined or "rebutted" by other evidence in the case.
Read in this way, paragraph four is essentially un- objectionable; it does not set up a burden-shifting pre-
sumption but instructs the jury to reevaluate a permissible inference in light of all the evidence. It is important to keep in mind that the applicable constitutional principle concerns the allocation of the burden of persuasion and that terms such as "presume" and "rebut" are significant only insofar as they bear on this allocation. Neither the Supreme Court nor this court has ever held that loose us- age of such terms amounts to a constitutional violation even if the instructions make clear that the jury has no obligation to "presume" any fact, that the defendant has no duty to "rebut," and that the burden of persuasion
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Page 45
*44 concerning the relevant statutory element remains at all times with the prosecution.
Finally, the majority dismisses (majority typescript
19) the third paragraph because it contains "graphic lan- guage" that might have "influence d " the jury, viz., the statement that Rock "did strike Mr. Brookens in the chest and blow out his heart." Tr. 722. This argument is a makeweight. Rock's appeal presents the question whether the jury instructions improperly shifted the burden of proof, not whether language in the instructions was exces- sively inflammatory, and the latter question has nothing to do with the former. If the majority believes that the trial
judge's words were so inflammatory that they violated due process and justify the granting of a writ of habeas corpus, the majority should forthrightly base its decision on this ground.
Not only does the majority err in evaluating the four paragraphs of the jury instructions quoted above, but the majority also fails to consider the trial judge's subsequent instructions emphasizing that the prosecution had the bur- den of proving intent to kill beyond a reasonable doubt and, indeed, that the prosecution was required to surmount a legal presumption
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Page 46
*45 that Rock did not intend to kill. Just two paragraphs after the excerpt quoted above, the trial judge explained that under Pennsylvania law every murder is presumed to be third-degree, rather than first-degree, n1 unless the prosecution proves the elements of first-degree murder beyond a reasonable doubt. Since the only distinction be- tween these offenses is that first-degree murder requires the additional element of an intent to kill (see 18 Pa. Cons. Stat. Ann. § 2502(a),(c)), the plain meaning of this instruction was that Pennsylvania law presumes that a defendant did not intend to kill unless the prosecution establishes such intent beyond a reasonable doubt. The
court elaborated (Tr. 724) (emphasis added):
The Commonwealth must, as I said, convince you be- yond a reasonable doubt that all of the elements of first degree murder are present in order to sustain the charge. Otherwise, if it is murder at all, it must be murder in the third degree if the Commonwealth proved all of those elements beyond a reasonable doubt.
Members of the jury, if you conclude after considering all of the evidence that the Commonwealth has proven beyond a reasonable doubt that the
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Page 47
*46 defendant caused the death of Wilbur Brookens or James Cutchall and that the killing was intentional by lying in wait and/or was willful, deliberate, and premed- itated, then you should, subject to the charge I'm going to give you on the defense of insanity, return a verdict of guilty of first degree murder if that would be appropriate.
n1 Second-degree murder is felony murder, 18
Pa. Cons. Stat. Ann. § 2502(b).
Viewing the initial instructions as a whole, I believe
they adequately drove home the point that the prosecu- tion was required to prove every element of first-degree murder, including the intent to kill, beyond a reasonable doubt and that the jury was not required to presume or infer this intent. Thus, I conclude that these instructions did not violate due process.
The supplementary instructions, to which the majority attaches special significance, do not change this conclu- sion. Although the court in delivering the supplementary instructions did speak again about a "presumption of fact," n2 the court subsequently
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Page 48
*47 explained: "It is proper for you to apply this pre- sumption if you see fit and if it is not rebutted in any other way." Tr. 770 (emphasis added). Thus, the supplemen- tary instructions followed the same pattern as the initial instructions, and the essential point -- that the jury was free to find or not to find such intent as it chose -- was adequately made.
n2 Colloquy outside the presence of the jury shows that the trial judge tended to use the terms
"presumption" and "inference" interchangeably.
When the judge explained to counsel the supple- mentary instruction he intended to give regarding the intent to kill, the judge said (Tr. 760): "The law on that is clear enough. The jury may, if they see fit, presume an intent to kill from the fact of using a deadly weapon on a vital organ."
The majority not only ignores the portion of the sup- plementary instruction explaining that the jury was free to find an intent to kill "if it saw fit" (Tr. 770), but the majority relies on the fallacy post hoc, ergo propter hoc.
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Page 49
*48 Because the jury returned verdicts shortly after the supplementary instruction, the majority suggests (type- script 26-27) that the inaccurate language in the supple- mentary instruction produced those verdicts. In my view, it is folly for an appellate court to think that it can ac- curately reconstruct a jury's deliberative process based on the timing of questions and the return of verdicts. Moreover, the majority's reasoning overlooks the fact that the jury requested supplementary instructions about di- minished capacity and voluntary manslaughter, as well as
"intent in regards to the hitting of a vital organ." Tr. 758.
Indeed, the jury's question regarding intent to kill was listed third. Id. Accordingly, even if it is assumed that the supplementary instructions broke a deadlock, there is no reason to suppose that this was accomplished by the instructions on intent to kill, rather than on the other two questions.
Instead of engaging in unwarranted speculation, our task is to analyze the meaning of the jury instructions as a whole. When I view all of the instructions in this case together, I conclude that they adequately advised the jury that the prosecution was required to prove every
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Page 50
*49 element, including the intent to kill, beyond a rea- sonable doubt and that the jury was free to choose whether to draw the inference of an intent to kill from the fact that Rock used a deadly weapon against vital organs. Certainly the instructions were imperfect, but like the Pennsylvania courts and the district court I find no constitutional viola- tion.
II.
Even if there was a due process violation in this case, the error was harmless beyond any reasonable doubt. See Yates v. Evatt, supra; Rose v. Clark, 478 U.S. 570 (1986).
The jury found Rock guilty of four counts of attempted murder, as well as two counts of first-degree murder. The facts and jury instructions relating to the attempted murder charges show that the jury's finding that Rock pos- sessed the intent to kill was almost certainly not affected by the objectionable language upon which the majority's decision is based.
The evidence at trial showed the following. On the morning in question, Rock purchased ammunition, en- gaged in target practice, and then set fire to his house. When neighbors and fire fighters came to the scene, Rock began to shoot at them with his rifle. The first person to
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*50 arrive, Wilbur Brookens, a neighbor, was shot through the heart and killed. A short time later, the local fire chief, James Cutchall, drove up in his car and was fatally shot in the head.
A minute or so later, the first fire truck, carrying six fire fighters, arrived on the scene. The truck was driven by Robert Monn, Jr., and William Kady sat next to Monn in the front seat. Scott Reichenback and Richard Hade sat behind Monn and Kady in the jump seat. Two other fire fighters rode on the back of the truck.
When the fire truck approached, several bullets passed through the windshield, and other bullets passed near the
truck and its occupants. Reichenback, sitting in the jump seat, was wounded in the arm by one of the rifle shots. Monn, the driver, was slightly grazed on the arm by glass or some other object.
None of the other fire fighters was injured. The jury found Rock guilty of attempted murder with respect to all four of the fire fighters seated in the front seat and the jump seat. n3
n3 The jury found Rock guilty of aggravated assault -- serious bodily injury with respect to the two fire fighters who rode on the back of the truck.
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*51
In Pennsylvania, attempted murder requires proof of intent to kill. Commonwealth v. Griffin, 310 Pa. Super.
39, 52, 456 A.2d 171, 178 (1983). Consequently, the trial judge in this case instructed the jury that in order to find Rock guilty of attempted murder, it would have to find that he acted "with the intent to commit the crime of murder." Tr. at 728. See also Tr. at 729. Since the jury found Rock guilty of attempting to murder Monn, Kady, Reichenback, and Hade, the jury must have found that Rock intended to kill these men, who were either wounded in the arm
(Monn and Reichenback) or not wounded at all (Kady and Hade).
The trial judge's instructions regarding attempted mur- der did not mention any impermissible burden-shifting presumption. The court did refer generally to the instruc- tions on murder, stating (Tr. 729):
You have just heard the crimes of murder defined to a considerable extent and their elements explained. So it is not necessary that I repeat that again, and you will be able to determine whether the defendant's conduct evidenced an intent to commit that crime . . . .
Even assuming that this general reference to the murder instructions
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*52 led the jury to consider the objectionable portions of those instructions during the deliberations on attempted murder, it is clear that the attempted murder verdicts were not affected (if we also assume, as we should, that the jury followed the judge's instructions).
In the objectionable portions of the initial and sup- plementary murder instructions, the trial judge said that if Rock used a deadly weapon against a vital organ, an intent to kill was presumed, subject to rebuttal. n4 Thus, in order for any presumption to arise under either of these instruc- tions, the jury first had to find that Rock actually used a deadly weapon against a vital organ. Unless that pred- icate fact was established, no presumption could come into play.
n4 In his initial instructions the trial judge in- structed the jury in pertinent part as follows (Tr.
722):
We should at this point also tell you the intentional, unlawful, and fatal use of a deadly weapon against a vital part of the body gives rise to the presumption of fact that an intent to kill existed.
In the supplementary instruction given in re- sponse to a jury question, the judge instructed the jury as follows (Tr. 769):
So what the law is on the subject is that if Mr. Rock intentionally . . . did use a deadly weapon against a vital part of the body of the victim or victims, then that gives rise for you to consider that there is a presumption of fact that an intent to kill existed.
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*53
Because Rock did not actually use a deadly weapon against the vital body parts of the men whom he was convicted for having attempted to murder, the predicate facts necessary to give rise to the presumption were not established. Accordingly, the presumption could not have led the jury to conclude that Rock intended to kill the four men to whom the attempted murder convictions relate. Since the jury found without the aid of an impermissi- ble presumption that Rock intended to kill two men who were wounded in the arm and two men who were not wounded at all, it is apparent that the jury would have reached the same conclusion regarding the two men who were killed even if the objectionable portions of the mur- der instructions had been eliminated. It would have been irrational for the jury to infer based on the evidence in this case that Rock intended to kill the four men who re- ceived minor wounds or no wounds but that Rock did not intend to kill the two men who died. Therefore, it is also clear beyond a reasonable doubt that the objectionable portions of the jury instructions did not affect the first-
degree murder verdicts. n5
n5 The majority reaches a different conclusion by dramatically changing assumptions regarding the jury's precision in following the instructions.
In analyzing the effect of the incorrect portions of the murder instructions on the jury's murder ver- dicts, the majority assumes that the jury followed the court's words with technical precision; on the basis of this assumption, the majority concludes that the jury's first-degree murder verdicts might have been affected because the instructions spoke of a rebuttable presumption rather than a permissi- ble inference. Compare Sandstrom v. Montana, 442
U.S. at 528 (Rehnquist, J., concurring) (questioning whether jurors "divined the difference recognized by lawyers between 'infer' and 'presume'"). By con- trast, when the majority analyzes parts of the in- structions that logically should have prevented the objectionable portions of the murder instructions from affecting the attempted murder verdicts, the majority hypothesizes that the jury took a looser,
"common sense approach" (maj. typescript 28 n.
13). "Apparently the majority would have the de- gree of attention a juror is presumed to pay to par- ticular jury instructions vary with whether a pre- sumption of attentiveness would help or harm the criminal defendant." Francis v. Franklin, 471 U.S. at 324 n.9. There is no justification for this incon- sistency.
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*54
This conclusion is fortified by other findings that the jury necessarily made without the aid of any burden- shifting presumption. First, in rejecting Rock's insanity defense, the jury necessarily found that Rock knew "the nature and quality" of what he did. See 18 Pa. Cons. Stat. Ann. § 315(b); Tr. 736-37. In this case, that means that the jury found that Rock knew that he was shooting at human beings. The jury thus rejected Rock's testimony that he was only shooting at movements. Tr. 429. Second, in re- jecting Rock's insanity defense, the jury also necessarily found that Rock knew that what he was doing was wrong.
18 Pa. Cons. Ann. § 315(b); Tr. 736-37. Third, before the burden-shifting presumption on which the majority re-
lies could have arisen, the jury must have first found that Rock intentionally used a deadly weapon against the vital organs of the men he killed. See dissenting typescript at
13-14.
To summarize, it appears that the jury necessarily made all of the following findings without the benefit of any improper presumption:
1. Rock knew he was shooting at human beings;
2. Rock knew that what he was doing was wrong;
3. Rock intended to shoot Cutchall and
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*55 Brookens (the men who died) in vital organs;
4. Rock intended to kill four men whom he missed or wounded.
In light of all of these untainted findings, it seems perfectly clear that the jury would have found that Rock intended to kill the two men who died even if no im- proper presumption had ever been mentioned. Otherwise, the jury would have to have reasoned as follows:
Rock intended to kill four men whom he did not kill, but he did not intend to kill Brookens and Cutchall, whom he did kill. Rock intended to shoot Brookens and Cutchall in vital organs, and he knew that what he was doing was wrong. But he believed that shooting these two men in vital organs would not cause their deaths -- although he apparently realized that rifle shots could kill the four other men whom he intended and attempted to kill but missed or wounded during the same shooting spree.
Only an irrational jury could have reasoned in this fashion, and thus it is clear that the challenged jury in- structions were harmless beyond any reasonable doubt. n6
n6 Even if the majority is correct that the ob- jectionable portions of the jury instructions vio- lated due process and were not harmless, the ma- jority should specify that its decision applies only to Rock's conviction for first-degree murder and not to lesser included offenses, including third- degree murder. Third-degree murder does not re- quire an intent to kill, and thus the jury's implicit finding that Rock was guilty of this lesser-included offense cannot have been affected by the objection- able portions of the first-degree murder instructions relating to such intent. Had Rock been convicted under federal law, the majority's decision would permit resentencing for a lesser-included offense. See Government of the Virgin Islands v. Brown,
685 F.2d 834, 842 (3d Cir. 1982); Government of the Virgin Islands v. Soto, 718 F.2d 72, 76 (3d Cir.
1983); United States v. Boissoneault, 926 F.2d 230,
235 (2d Cir. 1991). The majority's decision should not preclude the Pennsylvania courts on remand from determining whether Pennsylvania law also permits this procedure.
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*56
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