Anderson v. Butler

23 F.3d 593, 1994 WL 171370

Opinions

SELYA, Circuit Judge.

Petitioner-appellant Bruce Anderson, convicted of first degree murder in the stabbing death of his estranged wife, exhausted state remedies and then applied to the federal court for a writ of habeas corpus, alleging ineffective assistance of counsel. Ultimately, we granted the writ in a 2-to-l decision, see Anderson v. Butler, 858 F.2d 16 (1st Cir.1988), and ordered a new trial, id. at 19. Petitioner fared no better the second time around: a Massachusetts superior court jury convicted him of first degree murder and the highest state court again proved inhospitable, see Commonwealth v. Anderson, 408 Mass. 803, 563 N.E.2d 1353 (1990).

Having succeeded once in obtaining habeas relief under federal law, see 28 U.S.C. §§ 2241-2254, petitioner tried anew. This time he contended that a jury instruction on the issue of provocation created an impermissible mandatory presumption. See generally Sandstrom v. Montana, 442 U.S. 510, 520-24, 99 S.Ct. 2450, 2457-59, 61 L.Ed.2d 39 (1979) (holding that an instruction setting up a presumption, which has the effect of relieving the prosecution of the burden of proof on an element of a charged crime, violates the Due Process Clause). The district court denied and dismissed the petition. See Anderson v. Butler, No. 91-10482-Z, 1993 WL 350172 (D.Mass. Aug. 23, 1993) (“D.Ct.Op.”). This appeal followed.

I. BACKGROUND

The relevant facts are laid out in the Supreme Judicial Court’s opinion, see Anderson, 563 N.E.2d at 1354-55, and it would be pleonastic to rehearse them here. It suffices to say that, at the second trial, petitioner conceded the uxoricide, but claimed that he acted without malice and in the heat of passion, having been provoked by finding a strange and scantily clad man in his wife’s bedroom.

In this appeal, petitioner sounds a single theme, constructed in three stages: he contends that the superior court judge erred in his charge to the jury on the question of provocation; that the error struck at the heart of petitioner’s defense, thus denying him a fair trial; and that, consequently, his constitutional rights were abridged. His complaint is directed specifically at a single sentence within the trial judge’s lengthy description of provocation.¹ That sentence told the jurors to examine whether “an ordinary man, given all the facts and circumstances ... would he be likely to be in such a state of passion, anger, fear, fright or nervous excitement as would lead him” to commit murder. Petitioner claims that, had the judge faithfully stated the governing law, see Commonwealth v. Walden, 380 Mass. 724, 405 N.E.2d 939 (1980); Commonwealth v. Rooney, 365 Mass. 484, 313 N.E.2d 105 (1974), he would have said “might lead” in lieu of “would lead.”

Both the state supreme court, Anderson, 563 N.E.2d at 1355-56, and the federal district court, D.Ct.Op. at 3-6, carefully examined this assignment of error, placed it into realistic context, and found it wanting. We reach the same conclusion.

II. DISCUSSION

We begin by particularizing the single respect in which the jury instructions on provocation were in error. We then indicate why, upon careful review of the record, we find no sufficient reason to believe that, within the framework of the entire charge, the mangled verb usage would have been understood by a reasonable juror as creating a mandatory presumption. Last, we explain why, regardless of how the solitary instructional error is viewed, it cannot plausibly be said, on the whole record, that the lapse tainted the trial or compromised petitioner’s defense.

A. The Error.

Massachusetts law defines adequate provocation, sufficient to convert what might otherwise be murder into manslaughter, as “something ‘that would be likely to produce in an ordinary man such a state of passion, anger, fear, fright or nervous excitement as might lead to an intentional homicide and, moreover, such as did actually produce such a state of mind in the slayer.’ ” Rooney, 313 N.E.2d at 112 (citation omitted). Consequently, the trial judge’s instructions, which used the verb phrase “would lead” in place of the phrase “might lead,” erred in this one respect.²

B. The Mandatory Presumption.

The Due Process Clause requires the prosecution to prove every essential element of a crime beyond a reasonable doubt. Hence, if a court instructs a trial jury in such a way as to create a mandatory presumption that relieves the government of its burden, the court runs afoul of the Constitution. See Sandstrom, 442 U.S. at 524, 99 S.Ct. at 2459.

In the circumstances of this case, the tripartite test of Hill v. Maloney, 927 F.2d 646 (1st Cir.1990) governs the merits of petitioner’s Sandstrom claim. Under Hill, a reviewing court must first determine whether a reasonable juror would have interpreted the challenged portion of the instruction as creating a mandatory presumption. Id. at 648-49. If so, the court must then consider whether other parts of the charge clarified the ill-advised language with the result that a reasonable factfinder would not have understood the instruction to create an unconstitutional presumption. Id. at 649. Finally, if the court determines that the charge as a whole left the jurors with an impermissible impression, the court must proceed to evaluate the harmlessness vel non of the error. Id. at 649, 654.

Using Hill v. Maloney as our yardstick, we take the measure of petitioner’s case.

1. Nature of the Presumption. First and foremost, we do not believe that a reasonable juror would have viewed the disputed instruction as setting up a mandatory presumption. Petitioner suggests that the substitution of the verb “would” for “might” was tantamount to the judge telling the jurors that, “if you do not find complete self-defense — the only circumstance under which an ordinary man “would” kill — you must find insufficient provocation and, therefore, malice.” And since there was no evidence of self-defense, the thesis runs, the judge effectively directed a finding of malice.

Although ingenious, petitioner’s thesis is severely flawed. One principal problem with it is that, while a legal theorist perhaps might have reasoned in this way, the judge did not instruct the jury to follow such a course. As we explained in Hill, “[a] mandatory presumption instructs the jury that it must infer an ‘elemental fact’ such as intent or malice from proof of a ‘basic fact’ such as a knowing act.” Hill, 927 F.2d at 648. Where, as in this case, the charge merely permits the inference to be drawn, the presumption, by definition, is not mandatory. See, e.g., id. at 649.

Judges should not divorce themselves from the reality of human experience. Taking a practical, commonsense approach, we conclude that, in all probability, a typical juror would not have known the appropriate legal standard for perfect self-defense, and, therefore, would not even have considered the possibility that a finding of malice was mandated by the court’s instruction. Hence, the erroneous substitution of “would” for “might” in a single sentence of the charge did not forge a mandatory presumption. At most, the ailing instruction, by itself, would have had the effect of lowering the burden placed by state law on the prosecution, not eliminating it.

2. The Totality of the Charge. Even assuming, for argument’s sake, that the erroneous substitution of “would” for “might” in the instructions created an impermissible presumption, we deem it highly unlikely that a reasonable juror would have understood the instructions, overall, as directing that malice was to be presumed.

If the specific language challenged on appeal creates a mandatory presumption, the court “then must consider whether other parts of the instruction explained ‘the particular infirm language to the extent that a reasonable juror could not have considered the charge to have created an unconstitutional presumption.’” Hill, 927 F.2d at 649 (quoting Francis v. Franklin, 471 U.S. 307, 315, 105 S.Ct. 1965, 1971, 85 L.Ed.2d 344 (1985)). Of course, in studying this question, an inquiring court must bear in mind that “a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973).

We believe that petitioner focuses too single-mindedly on the challenged sentence in the abstract. A fair reading of the judge’s instructions, taken in their totality, leads inexorably to the conclusion that the court explained the matter with sufficient care that a reasonable juror would not have understood the charge to have created an unconstitutional presumption. We explain briefly.

The judge began the relevant segment of the charge by opening the jurors’ minds to an expansive definition of provocation. Specifically, he told the jury that, “[t]he law does not attempt to define in any narrow way the provocation which may reduce the crime to manslaughter.” He went on to instruct that reasonable provocation “is that kind of provocation that would inflame a reasonable ordinary and law abiding man to the point where he would be capable of killing another person.” The judge then stated that, “provocation must be such as would likely produce in an ordinary man such a state of passion, anger, fear, fright or nervous excitement as would eclipse his capacity for reflection or restraint and actually did produce such a state of mind in the defendant.”

Only at this point did the judge interject the objectionable language.³ Even then, it was promptly followed by further clarification in the form of a question; the judge asked the jury to mull whether “the situation [would] be such that [the ordinary man] would likely be in such a state of passion, anger, fear, fright or nervous excitement as would eclipse his capacity for reflection and restraint?” The judge then proceeded to outline the additional requirements for a finding of voluntary manslaughter, making it plain that a verdict less than murder was an option.

Viewed against this backdrop and considering the judge’s repeated admonitions that the jury must resolve the provocation issue, we think it is highly improbable that a reasonable juror would have understood, from the entire charge, that the absence of provocation was to be assumed. Thus, even if the challenged sentence, viewed in isolation, carried the potential of creating a mandatory presumption — and we do not believe, realistically, that such a potential loomed — we consider it extremely unlikely that a reasonable juror, heeding all the instructions, would have taken an unconstitutional tack.

3. Harmlessness. Finally, assuming arguendo that the instructional error created a legally impermissible presumption, we would find the error harmless. This court has recently held that, under applicable Supreme Court precedents, an instructional error of the type alleged by petitioner is to be considered trial error, not structural error, for purposes of habeas review. See Libby v. Duval, 19 F.3d 733, 739-740 (1st Cir.1994); see also Ortiz v. Dubois, 19 F.3d 708, 715 (1st Cir.1994) (dictum).

Trial errors — even trial errors of constitutional dimension — are reviewed in habeas corpus proceedings under the so-called “whole-record” test for harmless error. See Brecht v. Abrahamson, — U.S. ——,- -,-, 113 S.Ct. 1710, 1718-19, 1722, 123 L.Ed.2d 353 (1993). In such circumstances, the writ should issue only if the reviewing court concludes that the instructional error “had a substantial and injurious effect or influence in determining the jury’s verdict.” Id. at-, 113 S.Ct. at 1714 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)); see also United States v. Ladd, 885 F.2d 954, 957 (1st Cir.1989) (explicating Kotteakos “fair assurance” standard).

We think the Commonwealth’s case passes Kotteakos muster with flying colors. Like the veteran district court judge, we simply do not believe that a one-word deviation from the norm spoiled the trial’s overall integrity. To the exact contrary, it seems transpicuous that the judge’s charge, taken in its entirety, fairly presented the law and adequately limned petitioner’s theory of the case. Furthermore, given the strength of the prosecution’s case and the weaknesses inherent in his provocation defense,⁴ it is surpassingly difficult to believe that so subtle a shading of the charge had any discernible impact on the jury’s verdict.

We will not paint the lily. The trial judge’s slip of the tongue, though regrettable, was not egregious. For the reasons indicated, we deem it highly probable that the single erroneous portion of the instruction had no bearing whatever on the jurors’ consideration of petitioner’s defense. It follows inexorably that the error was benign under the Kotteakos standard.

C. Fundamental Fairness.

To tie up a loose end, we also consider whether the instructional error, even though it did not create an impermissible Sandstrom-type presumption, justifies the granting of habeas relief. After all, the error, as we have acknowledged, see supra Part 11(B)(1), had the potential of easing the Commonwealth’s burden in proving malice. Viewed from this perspective, however, petitioner can only prevail on habeas review if the ailing instruction, in and of itself, so tainted the proceedings as to divest the whole trial of its fundamental fairness. See Estelle v. McGuire, — U.S.-,-, 112 S.Ct. 475, 482, 116 L.Ed.2d 385 (1991); Cupp, 414 U.S. at 147, 94 S.Ct. at 400.

We need not tarry in conducting this inquiry. For reasons already elucidated, see supra Part 11(B)(3), it cannot fairly be said, on balance, that the instructional error robbed petitioner’s trial of fundamental fairness or compromised his main defense in any meaningful regard. Hence, petitioner is not entitled to redress on this theory.

III. CONCLUSION

We need go no further. For aught that appears, petitioner was fairly tried and justly convicted. Finding no deprivation of due process, we uphold the district court’s refusal to grant habeas relief.

Affirmed.

1 . The full text of the charge on provocation is reproduced in Commonwealth v. Anderson, 563 N.E.2d at 1355 n. 1.

2 . By petitioner’s own admission, the bulk of the court’s charge on provocation was squarely in line with applicable principles of Massachusetts law.

3 . To be sure, the jurors heard this portion of the charge not once, but twice, for, during deliberations, they asked to be reinstructed as to the various degrees of homicide, and the judge reread the pertinent portions of the original charge. We do not see how this circumstance bears on the question of whether the interdicted language fosters a mandatory presumption.

4 . To give content to our general statements that the evidence against petitioner was strong and that petitioner’s defense of provocation was weak, we cite one illustrative, if gruesome, passage from the Supreme Judicial Court opinion:

There was evidence that, although the defendant was enraged when he attacked his 'wife, he nevertheless acted in a calculating, deliberate, and reflective fashion. For example, when he entered his wife's apartment, the defendant made it impossible for her to summon assistance by ripping the telephone from the wall. After the defendant had chased the other man from his wife's apartment, he had' to return and force his way into the neighbors’ apartment in order to get to his wife. As he stabbed his wife, the defendant told her "You're gonna fuckin' die, bitch." When an occupant of the apartment in which the stabbing occurred attempted to intercede, the defendant held him at bay (and again confirmed his intentions) by saying, "Get outa my fuckin’- way or you'll die too.” After stabbing his wife several times, the defendant left the apartment.... [Thereafter], the defendant decided to return to stab his wife several more times.

Anderson, 563 N.E.2d at 1357. All in all, "defendant stabbed his wife thirteen times, during which she remained fully conscious...." Id. On this, and other evidence, the jury made a special finding of "extreme atrocity” — a finding that strikes us as plainly inconsistent with reducing the charge to manslaughter.