Yates v. Aiken Reply Brief for Petitioners

    *

>

m t  ' i s

No. 86-6060

IN THE

S u p re m e  C o u r t of tfje ® niteb & ta te a
October Term, 1987

Dale Robert Yates,

v.
Petitioner,

James A iken, Warden , and the Attorney 
General of South Carolina,

Respondents.

On Writ Of Certiorari lb  The Supreme Court a t South Carolina

REPLY BRIEF FOR PETITIONER

David I. Bruck 
(Appointed by this Court)
John H. Blume 
Bruck & Blume 
1247 Sumter Street 
Suite 202 
P.O. Box 11311
Columbia, South Carolina 29211 
(803) 766-0650 
Counsel for Petitioner

P M 8 8  O f RAM PRINTING, HYATTBVILLT, MD *7*1 (101) Ml WO



II

1

TABLE OF CONTENTS
Page

Ta ble  of  Co n t e n t s .............................................................  i
Ta ble  of Au t h o r it ie s .........................................................  ii
Argu m en t  in  R e p l y .............................................................  1

A. There Are No State Law Procedural Obstacles lb
Consideration Of Petitioner’s Federal Claims.......  1

B. Respondents’ Views On The Retroactivity Of Fran­
cis v. Franklin Cannot Be Squared With The Court’s 
Opinion In Francis Itself. ....................................  4

C. The South Carolina Supreme Court Correctly
Determined That The Challenged Instructions Vio­
lated Sandstrom And Francis................................ 6

D. Respondents’ Harmless Error Argument Provides
No Basis Upon Which To Affirm The Judgment 
Below....................................................................  14

Co n c l u sio n ..............................................................................  20



ii

TABLE OF AUTHORITIES
Cases p age
Baker v. Montgomery, 811 F.2d 557 (11th Cir. 1986)___  19
Bates v. Blackburn, 805 F.2d 569 (5th Cir. 1986).............  19
Burton  v. Foltz, 810 F.2d 118 (6th Cir. 1987).....................  19
Beck v. Norris, 801 F.2d 242 (6th Cir. 1986)................... ; 19
Caldwell v. Mississippi, 472 U.S. 320 (1985)....................  1 ,2
Collins v. Francis, 728 F.2d 1322 (11th Cir.), cert, denied,

469 U.S. 963 (1985).........................................................  8
Connecticut v. Johnson, 460 U.S. 73 (1983)...................  15, 17
County Court of Ulster County v. Allen, 442 U.S. 140

0979)........ ......................... : ................. •.........i , 9
Davis v. Allsbrooks, 778 F.2d 168 (1985).........................  13, 14
Desist v. United States, 394 U.S. 537 (1969).....................  ’ 6
Francis v. Franklin, 471 U.S. 307 (1985)...................  passim
McKenzie v. Risley, 801 F.2d 1519 (9th Cir. 1986)........... 19
Mullaney v. Wilbur, 421 U.S. 684 (1975)...........................  5
Myrick v. Maschner, 799 F.2d 642 (19th Cir. 1986)........  19
Hyman v. Aiken, 606 F.Supp. 1046 (D.S.C.), affd in part 

andrev’d inpart, 777 F.2d 938 (4th Cir. 1985), vacated
and remanded, 478 U .S_____, 106 S.Ct. 3327 (1986),
rev’d 824 F.2d 1405 (4th Cir. 1987)....................... 4, 6, 14

Rook v. Rice, 783 F.2d 401 (1986), cert, denied,____U.S.
------, 107 S.Ct.3315 (1987)..........................................  13, 14

Rose v. Clark, 478 U .S--------, 106 S.Ct. 3101 (1986)... 15,’ 17
Sandstrom v. Montana, 442 U.S. 510 (1979)............... passim
State v. Elmore, 279 S.C. 417, 308 S .E .2d 781

(1983)........................................................................ 3, 4, 9, 13
State v. Patrick, 289 S.C. 301, 345 S .E .2d 481 (1986) . . .  9
State v. Peterson, 287 S.C. 244, 335 S .E .2d 800

(1985)...............................................................  6, 9, 13, 16, 18
State v. Woods, 282 S.C. 18, 316 S .E . 673 (1984).. 3, 4, 9, 15 
State v. Yates, 280 S.C. 29, 310 S .E .2d 805 (1982), cert.

denied, 462 U.S. 1124 (1983)........................................  2
Sturgis v. Goldsmith, 796 F.2d 1103 (9th Cir. 1986)......... 18
United States v. Hasting, 461 U.S. 499 (1984).................  15
United States v. Johnson, 457 U.S. 537 (1982).................  6
Yates v. Aiken, 290 S.C. 232, 349 S .E .2d 84 (1986X . passim 
Yates v. Aiken, 474 U.S. 896 (1985).................................... 3

ARGUMENT IN REPLY

A. There Are No State Law Procedural Obstacles to Consid­
eration of Petitioner’s Federal Claims.

Respondents first present a series of procedural rea­
sons why the Court should not reach the retroactivity 
question which it granted certiorari to decide. It is a 
sufficient answer to all of these procedural arguments 
that the decision below rests entirely on the South Car­
olina Supreme Court’s view concerning the retroactivity 
of the principles of Francis v. Franklin, 471 U.S. 307
(1985) . In its opinion, the state court conceded that the 
instructions at issue in this case were invalid under Fran­
cis. Yates v. Aiken, 290 S.C. 232, 234, 349 S.E.2d 84, 85
(1986) ; J.A. at 31. The court then proceeded to address 
and decide the question of retroactivity of decisions con­
demning mandatory rebuttable presumptions in criminal 
cases, and to dispose of petitioner’s case on that basis 
alone, without the slightest intimation that petitioner’s 
federal constitutional claim was otherwise barred. Id., 
J.A. at 31-34. When a state court has decided a federal 
question on its merits, this Court has jurisdiction to 
determine whether that federal question was correctly 
decided. See County Court o f Ulster County v. Allen, 442 
U.S. 140, 147-154 (1979). “The mere existence of a basis 
for a state procedural bar does not deprive this Court of 
jurisdiction; the state court must actually have relied on 
the procedural bar as an independent basis for its disposi­
tion of the case.” Caldwell v. Mississippi, 472 U.S. 320, 
327 (1985). Given that the South Carolina Supreme Court 
acknowledged the federal constitutional infirmity of the 
instruction at issue, and denied relief solely on its con­
clusion that petitioner was not entitled to retroactive 
application of the legal principles involved, it cannot be 
seriously contended that the state court “actually . . .



2

relied” on any state law procedural ground. Caldwell v. 
Mississippi, supra.

Moreover, no such procedural bar exists under South 
Carolina law. As petitioner has previously pointed out, 
Brief of Petitioner at 6, n. 5, South Carolina does not 
recognize procedural default in capital cases, and the 
state supreme court’s opinion affirming petitioner’s con­
victions and death sentence on direct appeal reflects that 
the court conducted an independent search of the record 
to uncover any prejudicial error which petitioner might 
have neglected to raise. State v. Yates, 280 S.C. 29,45,310 
S.E.2d 805, 814 (1982), cert, denied, 462 U.S. 1124 (1983); 
J.A. 26. Under these circumstances, petitioner’s failure to 
raise his Sandstrom  claim at trial or on direct appeal 
creates no procedural bar of any sort, and is irrelevant to 
the issue now before the Court.

Respondents also claim that petitioner’s failure to raise 
his Sandstrom/Francis claim in his application for post­
conviction relief in the state trial court operated as some 
sort of waiver. This assertion is not only unaccompanied 
by any state law authority, but is wholly unsupported by 
the opinion of the South Carolina Supreme Court in this 
case. J.A. 30-36. It is also contrary to the position taken 
by respondents at the time the petition for habeas corpus 
was filed. In their return to the petition, filed on February 
14, 1985, respondents advanced no procedural objection 
to consideration of the petition on its merits, and argued 
only that the challenged jury instruction did not require 
reversal of petitioner’s conviction. Return to Petition for 
Habeas Corpus, Yates v. A iken , supra. Moreover, 
respondents expressly consented to a motion by peti­
tioner to consolidate his habeas petition with a discretion­
ary appeal from the denial of his state post-conviction

3

relief application. At that time, respondents’ position was 
as follows:

To assure continuity of these proceedings and pre­
vent unnecessary multiple litigation, Respondents 
have no objection to the consolidation motion to 
resolve the apparent issues.

Id ., at 2. It was not until this Court granted certiorari and 
remanded petitioner’s case for reconsideration in light of 
Francis v. Franklin, Yates v. Aiken, 474 U.S. 896 (1985), 
that respondents first sought to persuade the South Car­
olina Supreme Court that a habeas corpus petition was an 
inappropriate vehicle for challenging the malice instruc­
tions at issue. On remand, the South Carolina Supreme 
Court did not so much as acknowledge, let alone accept, 
the procedural argument which respondents now reas­
sert here, but disposed of petitioner’s claim solely on 
grounds of nonretroactivity. Under these circumstances, 
respondents’ continued insistence that the decision below 
actually rests on some sort of state law procedural bar is 
groundless.

Respondents further suggest that review of the merits 
of petitioner’s Francis claim is barred by a purported 
defect in his state  habeas corpus petition. Brief of 
Respondents at 25-26. According to respondents, the 
habeas corpus petition sought no more than retroactive 
application of two state supreme court decisions, State v. 
Elmore, 279 S.C. 417, 308 S.E.2d 781 (1983), and State v. 
Woods, 282 S.C. 18, 316 S.E.2d 673 (1984), and should 
therefore be governed by state retroactivity principles. In 
making this argument, respondents have neglected to 
mention that the habeas petition characterized the charge 
at issue as an “unconstitutional burden-shifting instruc­
tion,” citing Sandstrom  v. Montana, 442 U.S. 510 (1979). 
Petition for Habeas Corpus at 3, Yates v. Aiken, 290 S.C.



4

232, 349 S.E.2d 84 (1986). The federal constitutional 
character of petitioner’s claim was evidently apparent to 
respondents at the time the petition was filed, since they 
responded by furnishing the state supreme court with a 
brief previously filed in a federal habeas corpus case 
which discussed in detail the constitutionality of an identi­
cal jury  instruction. Return to Petition for Writ of Habeas 
Corpus at 2, Yates v. Aiken; Respondent’s Objections to 
the Report and Recommendations of the Magistrate, 
H ym anv. Aiken, 606 F. Supp. 1046(D.S.C.), a ffd  in part 
and rev’d in part, 777 F.2d 938 (4th Cir. 1985), vacated and
remanded, 478 U.S------ , 106 S.Ct. 3327 (1986), rev’d, 824
F.2d 1405 (4th Cir. 1987). It is therefore both inaccurate 
and misleading to suggest that the habeas petition was in 
any way limited to questions of state law. Petitioner 
stressed the question of retroactivity of Elmore and 
Woods only to make clear to the South Carolina Supreme 
Court that its prior determination that petitioner’s trial 
had been free from federal constitutional error was now 
inconsistent with intervening decisions of the state court 
itself In view of the unmistakable terms in which the 
state supreme court addressed the question of retroac­
tivity in this case, the total absence of any type of state 
procedural bar to petitioner’s underlying constitutional 
claim, and the fact that he undeniably presented that 
claim to the South Carolina Supreme Court in his habeas 
petition, respondents’ belated efforts to raise procedural 
barriers to review of the retroactivity issue in this case 
are disingenuous and entirely without merit.

B. Respondents Views on the Retroactivity of Francis v.
Franklin Cannot be Squared With the Court’s Opinion in
Francis Itself.

Little need be said by way of reply to respondents’ 
defense of the South Carolina Supreme Court’s refusal to

5

accord full retroactive application to Francis v. Franklin. 
Despite the Francis Court’s unequivocal declaration that 
it was doing no more than applying the principles of 
Sandstrom, 471 U.S. at 313, respondents now insist that 
Francis actually created some sort of new “prophylactic 
rule . . . [against] the mere possibility that a reasonable 
juror could misinterpret an instruction” on presumptions. 
Brief of Respondents at 54-55. Respondents also suggest, 
on the basis of one of the dissenting opinions in Francis, 
that Francis represented a considered decision by this 
Court to abandon “the pre-Francis practice of relying on 
jury charges as a whole to determine the burden of proof 
rather than the ‘fine parsing of jury instructions’ to deter­
mine if a juror might understand a few sentences in the 
charge to allow conviction on less than proof beyond a 
reasonable doubt.” Brief of Respondents at 57-58.

Both of these arguments are meritless. Francis did not 
create any sort of “prophylactic rule,” but simply applied 
the settled principles of Sandstrom  to jury instructions 
which created mandatory rebuttable presumptions of 
intent. While a minority of the Court did take the view 
that the Francis majority was extending Sandstrom, 471 
U.S. at 332 (Rehnquist, J., dissenting), the Court 
explicitly rejected this assertion as “simply inaccurate,” 
and noted that Sandstrom’s condemnation of mandatory 
rebuttable presumptions such as those involved in Fran­
cis had actually been “definitively established” as early as 
Mullaney v. Wilbur, 421 U.S. 684 (1975). 471 U.S. at 317, 
n. 5. Nor is there any merit in respondents’ contention 
that Francis represented a departure from the well- 
established rule, restated and applied in Francis itself, 
that “potentially offending words must be considered in 
the context of the charge as a whole.” 471 U.S. at 315. 
While respondents evidently disagree with Francis, that



6

disagreement does not support their claim that Francis 
established new legal doctrine or some sort of novel and 
unforeseeable mode of appellate review. The inescapable 
fact is that Francis v. Franklin  “simply applied a well- 
established constitutional principle to govern a case 
which is closely analogous to those which have been pre­
viously considered in the prior case \sw,n Desist v. United 
States, 394 U.S. 244, 263 (1969) (Harlan, J. dissenting), 
and thus presents “no real question. . .  as to whether the 
new decision should apply retrospectively.” United States 
v. Johnson, 457 U.S. 537, 549 (1982).

C. The South Carolina Supreme Court Correctly Deter­
mined That the Challenged Instructions Violated Sand- 
strom and Francis.

Next, respondents urge this Court to overrule the 
determination of the South Carolina Supreme Court that 
the jury  instructions at issue here created unconstitu­
tional mandatory presumptions of malice. Yates v. Aiken, 
290 S.C. 232, 349 S.E.2d 84 (1986); State v. Peterson, 287 
S.C. 244, 335 S.E.2d 800, 802 (1985); accord Hyman  v. 
Aiken, 824 F.2d 1405 (4th Cir. 1987). Should the Court 
accept this invitation to probe the underlying merits of 
petitioner’s constitutional claim, petitioner submits that 
it will find respondents’ defense of the challenged instruc­
tions to be without merit.

After defining “expressed” malice for petitioner’s jury, 
the trial judge gave the following instruction on implied 
malice:

Malice may also be implied as where, although no 
expressed intention to kill was proven by direct evi­
dence, it is directly and necessarily inferred from 
facts and circumstances which are, themselves, 
proved. Malice is implied or presumed by the law 
from  the willful, deliberate, and intentional doing of

7

an unlawful act without any just cause or excuse. In 
its general signification, malice means the doing of a 
wrongful act, intentionally, without justification or 
excuse.

I tell you, however, that if the facts proven are 
sufficient to raise a presumption of malice, that pre­
sumption is rebuttable, that is, it is not conclusive on 
you, but is rebuttable by the rest of the evidence. I 
tell you, also, that malice is implied or presumed 
from  the use of a deadly weapon. I further tell you 
that when the circumstances surrounding the use of 
that deadly weapon have been put in evidence and 
testified to, the presumption is removed. And it 
ultimately remains the responsibility for you, ladies 
and gentlemen, under all the evidence to make a 
determination as to whether malice existed in the 
mind and heart of the killer at the time the fatal blow 
was struck.

J.A. 607 (emphasis added).

Respondents assert that the first of these challenged 
instructions created no more than a permissive inference 
of malice. It is true that the trial judge prefaced the 
instruction on the presumption of malice from the inten­
tional doing of an unlawful act by language which sug­
gested that he was about to convey only a permissive 
inference (“Malice may also be implied . . .”). However, 
immediately after this sentence the trial judge announced 
a presumption which was by its terms a mandatory one: 
“Malice is implied or presumed by the law from the 
willful, deliberate, and intentional doing of an unlawful 
act without any just cause or excuse.” J.A. 6-7 (emphasis 
added). This mandatory instruction nullified the per­
missive character of the preceding sentence, since the 
jury could only have reconciled the two instructions by 
reasoning that while some basic facts “may” give rise to 
the implication of malice, facts which show the intentional



8

doing of an unlawful act are the type of facts which invaria­
bly do give rise to such an implication or presumption.

Respondents insist that this second sentence merely 
“ ‘defined implied malice.’” Brief of Respondents at 69, 
quoting Collins v. Francis, 728 F.2d 1322, 1330 (11th 
Cir.), cert, denied, 469 U.S. 963 (1984). This assertion is 
belied, however, by the trial judge’s ensuing statement 
that the presumption of malice “is rebuttable, that is, it is 
not conclusive on you . . .” J.A. 7. A presumption may be 
rebutted; a definition may not. The definition of malice, 
moreover, had already been given somewhat earlier in the 
charge, when the judge stated that “[mjalice is defined in 
the law of homicide as a technical term, which imports 
wickedness and excludes any just cause or excuse for your 
action.” J.A. 6.1

The second presumption—that “malice is implied or 
presumed from the use of a deadly weapon”—is cast in 
slightly different terms, but is equally mandatory, and is 
surrounded by no permissive language at all. J.A. 7. Nor 
was the effect of this instruction altered, as respondents

1 Indeed, respondents in effect concede that the challenged lan­
guage constitutes a presumption rather than a definition of malice by 
their admission that petitioner “would have a much stronger position 
if the [judge had charged that] “malice must be implied, it must be 
presumed,’ or “malice shall be presumed, it shall be implied." Brief of 
Respondents at 70. Although respondents claim to discern an impor­
tant distinction between an instruction that malice “shall be pre­
sumed” and one that malice “is presumed," a reasonable juror would 
have interpreted either statement as creating a mandatory presump­
tion of malice. In arguing to the contrary, respondents have evidently 
overlooked the fact that the unconstitutional instructions in Francis 
v. Franklin itself used the phrases “are presumed” and “is pre­
sumed,” 471 U.S. at 311, and were in this respect materially identical 
to the instructions at issue here.

9

insist, Brief of Respondents at 77-78, by the judge’s ensu­
ing statement that the presumption is removed if “the 
circumstances surrounding the use of that deadly weapon 
have been put in evidence and testified to.” J.A. 7. This 
instruction is ambiguous at best, and was most probably 
understood as confirming rather than alleviating the bur- 
den-shifting character of the presumption. This is so 
because the jury could reasonably have concluded from 
the instruction that unless all of the circumstances were 
reliably established through petitioner’s testimony or 
other proof, the jury was required to heed the presump­
tion rather than the evidence. It is undoubtedly for this 
reason that the South Carolina Supreme Court has 
repeatedly found this instruction to create a burden-shift­
ing mandatory presumption of malice despite the pres­
ence of language which respondents view as ameliorative. 
Yates v. Aiken, 290 S.C. 232, 233, 349 S.E.2d 84, 85 
(1986); State v. Peterson, 287 S.C. 244, 247, 335 S.E.2d 
800, 802 (1985); State v. Woods, 282 S.C. 18, 20, 316 
S.E.2d 673,674 (1984); State v. Elmore, 279 S.C. 417,421, 
308 S.E.2d 781, 784 (1983); see also State v. Patrick, 289 
S.C. 301, 303-305, 345 S.E.2d 481, 482-483 (1986).

That the South Carolina Supreme Court was correct in 
recognizing the unconstitutionality of the instructions 
given at petitioner’s trial may be clearly seen by compar­
ing them with the instructions at issue in Francis v. 
Franklin  itself. The petitioner in Francis was tried for 
murder, defined under state law as causing the death of 
another “unlawfully and with malice aforethought, either 
express or implied.” On the issue of intent, the trial judge 
instructed the jury that

[t]he 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



10

mind and discretion is presumed to intend the natural 
and probably consequences of his acts, but the pre­
sumption may be rebutted. A person will not be 
presumed to act with criminal intention but the trier 
of facts, that is, the Jury, may find criminal intention 
upon a considera tion  of the  w ords, conduct, 
demeanor, motive and all other circumstances con­
nected with the act for which the accused is pros­
ecuted.

Francis v. Franklin, supra, 471 U.S. at 311-312.
This Court affirmed the granting of federal habeas cor­

pus relief in Francis upon the ground that these instruc­
tions “directed] the jury to presume an essential element 
of the offense—intent to kill—upon proof of other ele­
ments of the offense—the act of slaying another.” The 
Court concluded that the instructions were unconstitu­
tional because they “ “undermined the factfinder’s respon­
sibility at trial, based upon evidence adduced by the 
State, to fin d  the ultimate facts beyond a reasonable 
doubt.’” Id., at 316, quoting County Court of Ulster 
County v. Allen, 442 U.S. 140, 156 (emphasis added by 
Francis Court).

The Court acknowledged in Francis that, unlike the 
challenged instruction in Sandstrom  v. Montana, supra, 
the presumption of intent given at Franklin’s trial was not 
conclusive. However, the Court noted that under the prin­
ciples of Sandstrom, this distinction provided no basis 
upon which to uphold Franklin’s conviction. 471 U.S. at 
316-317. The Court then went on to examine certain other 
portions of the instructions given at Franklin’s trial to 
determine whether the charge considered as a whole 
might pass constitutional muster. Immediately after the 
two instructions concerning the presumption of intent, 
the trial judge had instructed the jury that “[a] person will 
not be presumed to act with criminal intention . . . ” In

11

addition, he had repeatedly stressed that the burden of 
proof was on the state. Nevertheless, the Court found 
that the jury  might reasonably have interpreted the 
charge as a whole to mean that “although intent must be 
proved beyond a reasonable doubt, proof of the firing of 
the gun and its ordinary consequences constituted proof 
of intent beyond a reasonable doubt unless the defendant 
persuaded the jury otherwise.” 471 U.S. at 319-320. As 
for the instruction that a person was not to be presumed 
to act with criminal intent, the Court observed that the 
jury might have understood this to refer to a different 
element of the offense than that referred to in the preced­
ing instructions on the presumption of intent. Alter­
natively, the jury  might simply have understood this 
instruction to contradict the mandatory presumption 
which immediately preceded it. Since “[n]othing in these 
specific sentences or in the charge as a whole makes clear 
to the jury that one of these contradictory instructions 
carries more weight than the other,” the Court recognized 
that “the jury was left in a quandary as to whether to 
follow that instruction or the immediately preceding one 
it contradicted.” 471 U.S. at 322, 324.

The constitutional defects identified in Francis are 
equally present here. Petitioner’s jury was instructed 
that an essential element of the offense of murder—mal­
ice—was implied or presumed “by the law” from the 
willful, deliberate and intentional doing of an unlawful act 
without just cause or excuse, and was also “implied or 
presumed” from the use of a deadly weapon. These pre­
sumptions, like the presumptions in Francis, were 
described as “rebuttable.” As the Francis majority opin­
ion pointed out, however, the Court had already made 
clear in Sandstrom  v. Montana, 442 U.S. 510(1979) tha ta  
mandatory rebuttable presumption was no less uncon­



12

stitutional than the arguably conclusive presumption 
struck down in Sandstrom.

Nor does any other portion of the instructions suffice to 
ensure, with the certainty that Francis requires, that the 
jury’s deliberations were not affected by the mandatory 
presumptions contained in these instructions. Indeed, 
nowhere in the instructions given at petitioner’s trial can 
any cautionary instruction be found comparable to the 
instruction in Frands  that “a person will not be presumed 
to act with criminal intention.” With respect to one of the 
two mandatory presumptions given here—the presump­
tion of malice from the use of a deadly weapon—the trial 
judge did say that “when the circumstances surrounding 
the use of that deadly weapon have been put in evidence 
and testified to, the presumption is removed.” But this 
instruction, much like the instruction on the “rebuttable” 
nature of the presumption, may well have exacerbated the 
constitutional defect by suggesting that the presumption 
of malice remained in effect unless and until it was over­
come by the defendant. Frands  v. Franklin, supra, 471 
U.S. at 321-322, n. 7.

That Frands  compels the result urged by petitioner in 
this case becomes all the more apparent when it is 
observed that in Frands  the trial judge cautioned the 
jury, immediately before the portion of the charge con­
taining the unconstitutional presumptions, that the bur­
den of proof was on the state and that “there is no burden 
on the defendant to prove anything.” Frands  v. Frank­
lin, supra, 471 U.S. at 329 (Powell, J. dissenting), 471 
U.S. at 335 (Rehnquist, J., dissenting). A majority of the 
Court implicitly rejected the state’s argument in Frands  
that even this relatively emphatic language was sufficient 
to ensure that the jury would not be misled by the burden- 
shifting presumptions which immediately followed. In the

13

case at bar, by contrast, no such instruction was given: the 
closest approximation contained in the burden-of-proof 
instructions given here was a simple statement that “[t]he 
defendant does not have to prove that he’s innocent” and 
that the prosecution “must convince you, beyond a rea­
sonable doubt, by evidence presented in this courtroom, 
of the guilt of the Defendant.” J.A. 5. If the far more 
emphatic cautionary instruction given in Frands  was 
insufficient to overcome the prejudicial impact of the 
unconstitutional presumptions in that case, it follows a 
fortiori that here, where no similar admonition con­
cerning the burden of proof was given, due process 
requires that the conviction be reversed.

Respondents also assert that the challenged presump­
tions merely shifted the burden of production to peti­
tioner, while leaving the burden of persuasion upon the 
prosecution. Respondents provide no analysis in support 
of this claim, but reply upon dicta in two Fourth Circuit 
cases, Davis v. Allsbrooks, 778 F.2d 168 (1985), and Rook
v. Rice, 783 F.2d 401 (1986), cert, denied, 478 U.S-------,
107 S.Ct. 3315 (1987). Both of these cases are actually 
harmless error determinations rather than determina­
tions of the constitutionality of the challenged instruc­
tions, and both cases are in any event inapposite. Davis 
and Rook involved instructions which created rebuttable 
presumptions of malice upon proof beyond a reasonable 
doubt that a killing had been committed intentionally and 
by the accused. Unlike the instructions at issue here, 
which have been repeatedly construed by the South Car­
olina Supreme Court as creating unconstitutional man­
datory presumptions of malice, see, State v. Elmore, 279 
S.C. 417, 421, 308 S.E.2d 781, 784 (1983); State v. Peter­
son, 287 S.C. 244,247,335 S.E.2d 800,802 (1985); Yates v. 
Aiken, 290 S.C. 232, 233, 349 S.E.2d 84, 85 (1986), those



14

involved in Davis and Rook had been construed by the 
North Carolina Supreme Court as shifting only the bur­
den of production. The Fourth Circuit accepted this 
characterization because the presumption did not become 
operative until the state had proven both that the defend­
ant had personally killed the victim, and that he had done 
so intentionally. The Davis and Rook courts then found 
that the instruction did not violate either defendants’ 
rights under Francis because the evidence actually pre­
sented at trial in each case removed the element of malice 
from contention once the state had proved an intentional 
killing. Thus Davis and Rook are harmless error deter­
minations based on the specific facts of those cases, and 
neither the instructions involved nor the Fourth Circuit’s 
analysis provide any support for respondents position 
here.

That Davis and Rook do not support respondents’ view 
on the constitutionality of the instructions given at peti­
tioner’s trial has now been made abundantly clear by the 
recent decision of the Fourth Circuit in Hyman  v. Aiken, 
824 F.2d 1405 (1987). In Hyman, the Fourth Circuit found 
the pre-Elmore South Carolina malice instructions to 
violate Sandstrom  and Francis. The instructions given in 
this case are materially identical to those at issue in 
Hyman, and are unconstitutional for the same reasons set 
forth by the Fourth Circuit in that case.

D. Respondents Harmless Error Argument Provides No 
Basis Upon Which to Affirm the Judgment Below.

Respondents’ final claim is that the constitutional viola­
tions which occurred at petitioner’s trial should be dis­
regarded as harmless. Brief of Respondents at 81-87. In 
advancing this argument, respondents acknowledge that 
this argument rests upon what they believe to be the

15

effect of South Carolina’s law of accomplice liability on the 
facts of petitioner’s case. Id., at 83. They further concede 
tha t the South Carolina Supreme Court has as yet 
expressed no view on the merits of respondents’ harmless 
error claim. Id., at 82. Nevertheless, respondents urge 
this Court to make the initial determ ination of the 
harmlessness vel non of the erroneous jury instructions 
given at petitioner’s trial.

Clearly, such a course would contravene this Court’s 
well-settled practice of leaving harmless error determina­
tions to the lower courts. Rose v. Clark, 478U.S------ , 106
S.Ct. 3101, 3109 (1986) (remanding to court of appeals for 
determination of harmlessness of Francis error); Con­
necticut v. Johnson, 460 U.S. 73, 102 (Powell, J ., dissent­
ing) (harmless error “is a question more appropriately left 
to the courts below”); United States v. Hasting, 461 U.S. 
499, 510 (1983) (Supreme Court’s authority to decide 
harmless error claims is used only sparingly). However, 
should the Court elect to search the record and construe 
South Carolina law in order to determine whether the 
constitutional violations at issue here may be disregarded 
as harmless, it will find respondents’ argument to be 
without merit.

The thrust of respondents’ harmless error argument is 
that petitioner was tried and convicted of murder under 
South Carolina’s law of parties, which holds each partici­
pant in an dangerous felony liable as a principal for all of 
the foreseeable consequences of that felony. State v. 
Woods, 189 S.C. 281, 1 S.E.2d 190 (1939). According to 
this view, the state was required to do no more than prove 
petitioner’s intent to participate in the robbery of the 
victim’s store in order to convict him as her murderer, so 
long as the malicious intent of the actual killer, Davis, was 
also established.



16

This argument overlooks the issues created both by 
petitioner's defense and by the prosecution’s theory of the 
case. It was petitioner’s contention that he had abandoned 
the robbery prior to Mrs. Wood’s arrival on the scene, that 
he had communicated this abandonment to his accom­
plice, that he never saw Mrs. Wood at the scene, and that 
he was not legally responsible for her death . Tr. 
1092-1099. Petitioner further testified that prior to enter­
ing the victim’s store, he and Davis had planned to aban­
don the robbery and flee the scene without harming any­
one if the proprietor refused to give them the money. Tr. 
1084-1085. Petitioner did admit to superficially wounding 
Willie Wood after Mr. Wood appeared to reach for a gun 
under the counter. Tr. 1097-1098. But petitioner then ran 
from the store while urging Davis to do the same. The 
evidence was thus sufficient to enable the jury to conclude 
that Davis’ action in killing Mrs. Wood was sufficiently far 
removed from the original conspiracy to commit robbery, 
and that petitioner had sufficiently abandoned that con­
spiracy prior to Mrs. Wood’s arrival on the scene, so as to 
free petitioner from liability under the law of parties. 
State v. Peterson, 287 S.C. 244, 247, 335 S.E.2d 800, 
801-802 (1985) (South Carolina law of accomplice liability 
inapplicable unless jury finds that a homicide was the 
probable result of acts actually agreed upon by co-con­
spirators).

Faced with the possibility that the jury would accept 
petitioner’s testimony and reject the state’s case for 
murder under a theory of vicarious liability, the pros­
ecutor asserted as an alternative theory at trial that peti­
tioner and Davis had actually intended from the outset to 
kill any witnesses to the robbery, including Mrs. Wood. 
Tr. 1172-1176. This argument, which was based on rather 
tenuous strands of circumstantial evidence, sought to

17

convict petitioner by establishing his own malicious intent 
in the actual killing of Mrs. Wood.2 While it is unlikely that 
the jury  would have accepted this assertion on the 
strength of the evidence presented, the prosecution’s bur­
den was substantially lightened by the trial judge’s 
instructions on the presumptions of malice arising from 
the doing of an unlawful act and from the use of a deadly 
weapon. The reason for this is that the presumptions 
could reasonably have been interpreted as directing the 
jury to find that Yates entertained actual malice in the 
m urder of Mrs. Wood, under the state’s intent-to-kill 
theory, solely on the basis of evidence that he employed a 
deadly weapon and that he had intentionally committed 
an unlawful act—robbery—prior to the killing. Since the 
evidence was obviously not “so dispositive of [petitioner’s] 
intent that the jury would have found it unnecessary to 
reply on the presumption,” Connecticut v. Johnson, 460 
U.S. 73, 97 n. 5 (1983) (Powell, J., dissenting), respond­
ents’ harmless error argument is without merit. Rose v. 
Clark, 478 U.S____ , 106 S.Ct. 3101, 3109 (1986).

Moreover, even if a reviewing court were to accept 
respondents’ unw arranted assumption tha t the ju ry  
ignored the prosecutor’s intent-to-kill theory and con­
victed petitioner solely under a theory of accomplice lia­
bility, the unconstitutional malice instructions still could 
not be disregarded as harmless. This is so because the 
instructions effectively directed the jury to disregard

2 The prosecutor stressed that the robbers did not conceal their 
identities, and asserted that Davis’ use of a knife in the robbery, and 
his order to Willie Wood to bend over the counter, showed both 
robbers’ pre-existing plan to commit murder without creating any 
noise or attracting attention. The prosecutor also argued that peti­
tioner and Davis probably saw Mrs. Wood outside the store just 
before the robbery. Tr. 1172.



18

petitioner’s claim of withdrawal in deciding whether to 
convict him of Mrs. Wood’s murder. In the accomplice- 
liability context, the two presumptions of malice allowed 
the jury to avoid the crucial question of whether peti­
tioner’s felonious intent was sufficient, under all of the 
facts and circumstances revealed by the evidence, to hold 
him vicariously liable for a murder committed by Davis. 
Instead of being required to determine whether the 
murder of Mrs. Wood was the probable consequence of the 
actions actually agreed upon by petitioner, State v. Peter­
son, 287 S.C. 244,247,335 S.E.2d 800,801-802 (1985), the 
ju ry  was instructed to presume petitioner’s malicious 
mental state simply from his use of a deadly weapon, and 
from his participation in an unlawful undertaking, and to 
convict of him of murder on that basis.

Respondents insist that the prejudicial effect of the 
challenged presumptions was alleviated by the trial 
judge’s instruction that “a defendant is not responsible for 
a homicide committed by his co-defendant as an indepen­
dent act growing out of some private malice or ill will 
which the slayer had toward the deceased, and which is 
not connected with the original unlawful purpose.” J. A. 8, 
Brief of Respondents at 74. In fact, this instruction was 
irrelevant to the issue before the jury. The killing of Mrs. 
Wood was unquestionably “connected” in some sense with 
the original unlawful purpose. But the crucial issue at 
trial was not whether Mrs. Wood’s death bore any connec­
tion to the robbery of her store, but whether petitioner’s 
own criminal intent was sufficient to warrant holding him 
liable for her murder under South Carolina’s law of accom­
plice liability.

Finally, petitioner would note that the cases cited by 
respondents in support of their harmless error argument 
are inapposite. Sturgis v. Goldsmith, 796 F.2d 1103

19

(1986), McKenzie v. Risley, 801 F.2d 1519 (9th Cir. 1986), 
Bates v. Blackburn, 805 F.2d 569 (5th Cir. 1986), Burton 
v. Foltz, 810 F.2d 118 (6th Cir. 1987), and Baker v. 
Montgomery, 811 F.2d 557 (11th Cir. 1987), are all cases in 
which the defendant personally killed the deceased, and 
in each case the proof of the improperly-presumed ele­
ment—intent—was overwhelming. In Beck v. Norris, 801 
F.2d 242 (6th Cir. 1986), the sole issue at trial was whether 
several eyewitnesses to a robbery-murder had correctly 
identified the defendant as the killer, and this rendered 
harmless any erroneous instructions on the killer’s intent. 
801 F.2d at 245. In Myrick v. Maschner, 799 F.2d 642 (10th 
Cir. 1986), the defendant was convicted as an accomplice 
on the basis of evidence that he was present, aiding and 
abetting in the murder of a police officer. The defendant 
denied committing the acts alleged. However, the evi­
dence left no possible doubt of his intent to aid and abet 
the murder once the acts alleged to constitute aiding and 
abetting were themselves established, and under these 
circumstances the trial judge’s use of an unconstitutional 
presumption of intent was harmless. In this case, by 
contrast, petitioner was not present for the murder, 
urged the killer to withdraw before the victim’s arrival on 
the scene, and did nothing to assist the killer after the 
victim arrived. Under the unusual circumstances pre­
sented here, the presence or absence of malice was very 
much at issue even once the predicate facts—petitioner’s 
participation in the initial robbery, and his use of a deadly 
weapon—were established. Thus the Francis violations 
which occurred at petitioner’s trial cannot be disregarded 
as harmless beyond a reasonable doubt.

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CONCLUSION

For the foregoing reasons, and for those set forth in 
petitioner’s opening brief, the judgment of the South Car­
olina Supreme Court should be reversed.

Respectfully submitted,
David I. Bruck 
(Appointed by this Court)
John H. Blume 
Bruck & Blume 
1247 Sumter Street 
Suite 202 
P.O. Box 11311
Columbia, South Carolina 29211 
(803) 765-0650 
Counsel for Petitioner

I