Yates v. Aiken Brief for Respondents

    No. 86-6060

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1986

DALE ROBERT YATES,
Petitioner,

vs
JAMES AIKEN, WARDEN, AND 
THE / .TTORNEY GENERAL OF 
SOUTH CAROLINA,

Respondents.

On Writ of Certiorari to the 
Supreme Court of South Carolina

BRIEF FOR RESPONDENTS

T. TRAVIS MEDLOCK 
Attorney General
DONALD J. ZELENKA 
Chief Deputy 
Attorney General
P. 0. Box 11549 
Columbia, S.C. 29211
ATTORNEYS FOR 
RESPONDENTS



QUESTION PRESENTED

Did Che South Carolina Supreme 
Court avoid compliance with this 
Court's order of rertand for further 
consideration in light of Francis 
v. Franklin when it held that its 
previous ruling in State v. Elmore 
is not to be applied retroactively 
to state collateral attacks of
criminal convictions?



TABLE OF CONTENTS

Question Presented
Page
i

Table of Contents ii
Table of Authorities iv
Statement of the Case 1
Summary of Argument 22
Argument
A. The South Carolina Supreme 

Court has the authority to 
establish the scope of its 
own habeas proceedings and 
to define the effect of 
its own prior decisions.
In collateral cases, 
retroactive application is 
only required when the 
decision announces a
rule of criminal procedure 
to ensure fundamental 
fairness or holds a 
defendant's conduct entirely 
immune from criminal 
sanctions 24

B. Full retroactive application 
of Francis v. Franklin is not 
required because it's major 
purpose was not to overcome
an aspect of the criminal 
trial that substantially 
impairs its truth finding 
function 44



V
m

"

iii

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C. The jury charges on malice
given in this case do not 
create mandatory rebuttable 
presumptions when reviewed 
under the "reasonable juror" 
analysis of Francis v. 
Franklin 61

D. Assuming constitutional 
infirmity, the malice charge 
given was harmless error in 
light of the state's theory 
that Yates was an accomplice 
who promoted and assisted in 
the armed robbery and the 
existence of overwhelming 
evidence of his partici-

Page

pation 81
Conclusion 87
Affidavit of Filing 89
Affidavit of Service 91



I V

TABLE OF AUTHORITIES
Cases: Page
Adams v. Illinois. 405 U.S.
i m v m i  5 3 ,59
Allen v. Hardy, 478 U.S.__,
106 S.Ct. TSTt (1986) 45
Baker v. Montgomery, 811 
F .2d. 557 (11th Cir. 1987) 87
Bates v. Blackburn, 805 
F . 2d 569 (5 th Cir'.' 1986) 87
Batson v. Kentucky, 476 U.S.
UTS: , 106 STCtl 1712
(1985T 45
Beck v. Norris, 801 
F . 2d 242 ( 6t"b~Cir . 1986) 86
Bromage v. Proser, 10 E.C.L.J2I— -------------- 69
3urton v. Foltz, 810 
F . 2d 118 (6th'Tir. 1987) 87t
Chapman v. California, 386
U.S. IS (19671 81
Collins v. Francis, 728 
F .2d 1322 rrwrr 69
Connecticut v. Johnson, 460 
U.S. 73 (19'SYS 82
Countv Court v. Allen, 442 
U.S. 140 (19797 80



V

Cupp v. Naughten, 414 U.S.
141 , (197 3) Passim
Davis v. Allsbrooks, 778 
F .2d 168 (4th Cir. 1985) 79
Desist v. United States,
394 U.S. Ttt (1969) 32
Drake v. Kemp, 762 F.2d
1449 (11th Cir. 1985) 76
Edwards v. Arizona, 451
u75TT77'_(i'98T)---------  46

52
Francis v. Franklin,
37i"0.S. 30TTI5-8'5)' Passim
Gilbert v. California,
388 U.S. 263 (1967) 45

51
Gosa v . Mayden, 413 U.S.
665 (1973) Passim
Great Northern R. Co. v.
Sunburst Oil and Refining
Co. , 287 U.S'.' 358 ( 1932) 34

37
Griffith v. Kentucky,
479 U.S. ,"107 S.Ct. 717 
(1987) 39
Hankerson v. North Carolina,
432 U.S. 233 (1977) Passim
Henry v. State of Mississippi,
TTY U.S. 443 (1965)---------  27

Cases: Page



p'

vi

Cases: Page
Ivan V. v. City of New York 9407 U.S. 203 (1972) 47

53
Jackson v. Denno, 378 U.S. 568 (1964) 49

55
Lamb v. Jernigan, 683 F.2d 
1002 (11th Cir. 1982) , cert 
denied, 460 U.S 1824 (l9'8'3) 69
Linkletter v. Walker, 381 
U.S.618 (1983) Passim
Mackey v. United States, 
4ui U.S. 667 , ( 1971 )--- Passim
McClary v. State, 287 S.C. 
160, 337 S.E .2d 218 (1985) Passim
McKenzie v. Risley, 801 
Fi'2d 1519 (9th Cir. 1986) 86
Michigan v. Payne, 412 
CTs: 47 (1970) Passim
Michigan v. Tyler, '436 U.S.

(1978)--- ---  ■ 27
Mullanev v. Wilbur, 421 U.S.
684 (19/3) Passim
Mvrick v. Mashner, 799 F.2d 
642 (10 th Cir. 1986) 75

86

'l
l*

*



Cases: Page

Pennsylvania v. Finley,
U.S. , 107 S.Ct. 1990 

TT987) 29
31

Rook v. Rice, 783 F.2d 401 
(4th Cir. 1986) 79
Rose v. Clark, 478 U.S.l06 S.Ct. 3101 (1986) 81

82
Sandstrom v. Montana, 442
UTS". 510 (1979)---------  Passim
Shea v. Louisiana, 470 U.S. 51 105 S.Ct. 1065, 84 L .Ed.2d 38
(1985) Passim
Solem v. Stumes, 465 U.S. 638 (1984) 42

46
State v. Blanchard, 98 N.J. 
Super. 22, 235 A.2d 913 
(Law Div. 1967) 34
State v. Elmore, 279 S.C. 
41/, 308 S.E.2d 781 (1983) Passim
State v. Gaskins, 284 S.C. 
105, 326 S.E .2d 132 (1985) 16
State v. Hopkins, 15 S.C.ny'dsso) ---- 77
State v. Hyman, 276 S.C. 559,
281 S.E.2d 209 (1981) 16

63



viii

Case: Page

State v. Levelle, 34 S.C. 
120, 13 S.E. 319 (1891) 77
State v. McDaniel, 68 S.C. 
304, 47 S.E. 384 (1904) 69
State v. Singletcn, 284 S.C
355T326 S.£.2d'T53 (1985) 16
State v. Woods, 282 S.C. 
rg","316 S.'E.2d 673 (1984) Passim
State v. Yates, 280 S.C. 
29, 310 S.E.2d £05 (1982), 
cert, denied, 462 U.S.
i T T z r d m y 14

15
Stovall v. Denno, 388 U.S. 
253 (1967) Passim
Sturgis v. Goldsmith, 796 
F.2d 1103 "(5th CirV 1986) 87
Truesdale v. Aiken, 480
U75~. , 107 S.Ct. 1394 (1987) 32
Tucker v. Kemp, 256 Ga.
5717 351 S.E.2d 196 (1987) 44
Tyler v. State, 247 S.C. 34,
145 S.E.2d 434 (1965) 26

62
United States v. Johnson,
4o7 U.S. 537 (1982) 39



ix

Cases: Page

United States v. MacCoIlum,
426 U.S. J1'77"(1'976) 30
United States v. Wade, 
3&8 U.i\ 218 (1967 ) 45

51
Williams v. United States, 
40l U.5'.~F5T'(1971) Passim
In re Winship, 397 U.S.

Passim
Yates v. Aiken, 290 S.C. 
2“32, 349 S . E. 2d 84, (1986) Passim
Yates v. Aiken, 474 U.S.
106 S.Ct. 218 (1985) Passim

’UNITED STATES CONSTITUTION 
Fourteenth Amendment 65



1

No. 86-6060 

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1986

DALE ROBERT YATES,
Petitioner, 

vs
JAMES AIKEN, WARDEN, AND 
THE ATTORNEY GENERAL OF 
SOUTH CAROLINA,

Respondents.

On Writ of Certiorari to the 
Supreme Court of South Carolina

BRIEF FOR RESPONDENTS

STATEMENT OF.' THE CASE 
After consideration of a 

petition for a writ of certiorari 
involving the summary denial of a 
state habeas corpus petition, this 
Court vacated the decisions of the 
South Carolina Supreme Court and



2

remanded the matter to the state 
court for further consideration in 
light of Francis v. Franklin, 471 
U.S. 307 (1985). JOINT APPENDIX 
[J.A.] at 29. The South Carolina 
Supreme Court on remand stated that 
the jury instruction at Yates' 1981 
trial that malice is presumed from 
the use of a deadly weapon suffered 
from the same infirmities present 
in State v. Elmore, 279 S.C. 417, 
308 S.E .2d 781 (1983) [in which 
error was found in a similar 
charge] and addressed in Francis v. 
Franklin, supra. Yates v. Aiken, 
290 S.C. 232, 234, 349 S.E.2d 84, 
85 (1986). J.A. 30-34. The South 
Carolina Supreme Court considered 
the question before it as whether 
Elmore (not Francis v. Franklin)
may be applied retroactively to



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invalidate a conviction which was
final at the time Elmore was
decided. Reviewing prior decisions
of this Court to determine the
retroactive effect of a prior state
decision, the South Carolina
Supreme Court adhered to an earlier
decision in McClary v. State, 287
S.C. 160, 337 S . E . 2d 218 (1985),
that the retroactive application of
Elmore is limited to cases pending
on direct appeal at the time Elmore
was decided. 290 S.C. at 236, 349
S.E.2d at 85-86, J.A. at 34. 'The
court affirmed the conviction and
denied the petition- for a writ of
habeas corpus. The question before
this Court is the correctness of
the state court's action.
A. The 1981 Trial and Direct 

Appeal.



4

During the petitioner's 1981 
murder trial, the overwhelming 
evidence reveals that the 
petitioner entered into and fully 
participated in a criminal plan 
that led to the death of a victim 
of his criminal design and the 
death of one of the confederates. 
On February 12, 1981, David Loftis, 
Henry Davis and the petitioner, 
Dale Yates, talked about various 
places to rob. Tr. p. 813, 11.
21-24, p. 815, 11. 5-12.
Petitioner 'mentioned that his 
brother had a gun, suggested that 
his brother would be more likely to 
lend the gun to Loftis than 
himself, and rode with Loftis and 
Davis to borrow the pistol. Tr. p. 
816, 1. 23 - p. 819, 1. 10.
Loftis, Davis and the petitioner



spent the night of February 12 in 
the same apartment and the 
following morning, February 13, 
1981, rode around in the same car 
casing places (stores) for an armed 
robbery. During this time, Loftis 
told Davis and the petitioner that 
the electric chair was a 
possibility if someone were killed 
during the armed robbery. Tr. p. 
820, 1. 20 - p. 825, 1. 14. At 
approximately ■ 3:00 P.M., the 
petitioner and Davis left Loftis at 
a mall and drove away with the 
pistol under the passenger side of 
the front seat. Tr. pp. 828-829, 
1. 6.

The petitioner and Davis
subsequently entered Wood's store,
by his own testimony, for the
purpose of committing an armed



6

robbery. Tr. p. 1084, 1. 23 - p.
1085, 1. 6; p. 1086, 1. 24 - p.
1087, 1. 14; p . 1092, 11.. 16-25.
The petitioner approached Willie
Wood and at gunpoint demanded 
money; Davis made the same demand 
with the threat of a knife wield id 
in a stabbing motion. Wood ga^e 
Davis approximately $3,000, aid 
Davis handed the money to Yates. 
Tr. p. 1095, 11. 13-22. Davis
directed Wood to bend over the
store counter but Wood refused to
do so after looking at Davis'
stabbing motions with the knife.
Tr. pp. 914-915, 1. 19; p. 922, 1.
17 - p. 923, 1. 3; p. 930, 11.
16-25. By his own testimony,
Yates, at Davis' direction, shot at
Wood two (2 ) times , as he stood
approximately two (2) steps or six



7

(6) to ten (10) feet from the door 
of the store, and left the store 
after determining both that Wood 
was unarmed and a previously unseen 
female was present. Tr. p. 
1097-1098, 1. 6; p. 1)93, 11. 1-7. 
Yates testified that he heard a 
female voice say "whet's going on 
out there?," and then he said 
"let's go" and turned and went out 
the door. Tr. pp. 1098, 1103. He 
further testified that he entered 
the passenger side of the getaway 
car with both the gun and money, 
waited for Davis, and moved over to1

the steering wheel and drove away 
only when he thought that Davis had 
been caught. Tr. p. 1098 , 1. 7 - 
p. 1099, 1. 3.

Meanwhile, after being shot by 
Yates, Wood saw Davis coming around



8

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Che counter toward him with the 
knife. Wood attempted to go to the 
front of the counter, but Davis 
reached Wood's back and his 
(Wood's) mother (approximately 
sixty-eight (68) years old) 
attempted to help him by grabbing 
Davis. Tr. p. 916, 1. 17 - p. 917, 
1. 2; p. 92:, 1. 17 - p. 923, 1. 
3. When his mother fell to her 
hands and knees, Wood had been able 
to get his pistol from underneath 
his coat (Tr. p. 916, 11. 3-12) and 
shot, backing Davis away from him, 
until Davis dropped the knife and 
fell to the floor dead. Tr. p. 927 
- p. 928, 1. 6; p. 918, 1. 21. 
Wood watched his mother die on the 
floor from a knife wound which had 
penetrated her heart and the full 
thickness of her chest. Tr. p.

J



9

917, 1. 19 - p. 918, 1. 21; p. 954,
1. 16 - p. 955, 1. 23.

During the trial, the trial
courC’ without objection.
irstructed the jury on murder and
the element of malice, in its
pertinent part as follows:

In order to convict one 
of murder, the State must 
not only prove the 
killing of the deceased 
by the defendant, but 
that it was done with 
malice aforethought, and 
such proof must be beyond 
a reasonable doubt. 
Malice is defined in the 
law of homicide as a 
technical term, which 
imports wickedness and 
excludes any just cause 
or excuse for your 
action. It is something 
which springs from 
wickedness and excludes 
any just cause or excuse 
for your action. It is 
something which springs 
from wickedness, from 
depravity, from a
depraved spirit, from a 
heart devoid of social 
duty, and fatally bent on 
creating mischief. The

•■■ip
*



10

words 'express' and 
'implied' do not mean 
different kinds of 
malice, but they mean 
different ways in which 
the only kind of malice 
known to the law may be shown.
Malice may be expressed 
as where previous threats 
of vengeance have been 
made or is where someone 
lies in wait for someone 
else to come by so that 
they might attack them,or any othercircumstances which showdirectly that an intentto kill was really andactually entertained.
Malice may also beimplied as where, 
although no expressed 
intention to kill was 
proven by direct 
evidence, it is directly 
and necessarily inferred 
from facts and 
circumstances which are,themselves, 
Malice is proved, 

implied orpresumed by the law fromthe willful, deliberate.and intentional doing ofan unlawful act withoutany -just cause or excuse.
ln 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 presumption is 
rebuttable, that is, it 
is not conclusive on you, 
but is rebuttable by the 
rest of the evidence. I
malice is

d i ̂ w j wl
implied or

presumed from the use of
a deadly weapon. I
rurtner tell you tnat 
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, unde'r 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.
There must be malice 
aforethought. While the 
law does not require that 
malice exists for any 
particular length of time 
before the commission of



12

an act, it must be 
aforethought; that is, it 
must exist for, at least, 
some time before the 
commission of the act in 
question. There must be 
the combination of the 
previous evil intent and 
the act which produces 
the fatal result.

J.A. 6-7. Tr. pp. 1207-1208. 
(emphasis added). The trial court 
also gave the jury instructions 
which concerned vicarious liability 
from an unlawful purpose (Tr. pp. 
1209-1210), that a defendant is not 
responsible for a homicide 
committed by a co-defendant as an 
ihdependent act growing out of 
private malice or , ill-will which 
the slayer had toward the deceased 
(Tr. p. 1210), and withdrawal and 
abandonment. Tr. p. 1211. J.A.
7-9.



13

After the conclusion cf the
charges, trial counsel and the
court had the following dialogue
concerning the inst rue tion on
withdrawal:

THE COURT: Mr.
Mauldin, well, I, at no 
time ever intimated that 
you had the burden of 
proof. I don't think I did.
MR. MAULDIN: That is
correct. I don't recall 
any inference or
statement that we did 
have the burden, it was 
simply a recitation of 
the fact that we might 
present that (withdrawal) 
as a defense ... .

Tr. p. 1217. The jury convicted
the petitioner , of murder,
conspiracy, armed robbery and
assault and battery with intent to
kill. He was sentenced to death on
the murder charge. This matter was
affirmed by the Supreme Court of



14

South Carolina on appeal and 
cei’tiorari was denied by this 
Court. State v. Yates, 280 S.C. 
29, 310 S. E. 2d 805 (1982), cert,
denied, 462 U.S. 1124 (1983). The 
issue presently before this Court 
was not raised on the appeal or in 
the post conviction relief 
proceedings.

Petitioner did not object to 
the malice instructions at trial 
nor did he assign them as error on 
his direct appeal. In affirming 
the conviction, the South Carolina 
Supreme Court stated that while 
[ iIssues not argued are normally 

not considered by this Court but in 
light of the penalty involved, we 
have considered all exceptions and 
the entire record to ascertain if 
there has been committed



15

prejudicial error; we find none." 
State v. Yates, 280 S.C. at 45, 310 
S.E.2d at 814, *J.A. at 26.
B. The 1985 Writ of Habeas Corpus

Proceedings.
While his appeal froir the 

denial of a state application for 
post conviction relief was pending 
before the South Carolina Supreme 
Court, Yates filed a petition for a 
writ of habeas corpus in that court 
seeking vacation of his conviction. 
In his petition, Yates contended 
that the instruction was materially 
identical to an instruction which 
required reversal ’ in State v. 
Woods, 282 S.C. 18, 316 S.E.2d 673 
(1984), in which the charge in 
State v. Elmore, supra, was held to 
be retroactive. He contended that 
since each decision was decided 

post conviction denialafter his



16

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and direct appeal, respectively, 
"petitioner has not been afforded 
an opportunity to request that the 
principles enunciated in Elmore and 
Moods be applied to his case" and 
that the court should hear the 
matter in its original 
jurisdiction. Petition for Habeas 
Corpus, Yates v. Aiken, January 14, 
1985. In its return, the 
respondents asserted that the 
court's reasoning in its prior 
decisions of State v. Singleton,
284 S.C. 388 , 326 S.E.2d 153
( 1985) , State v . Gaskins, 284 S' • C •
105, 326 S.E .2d :132 (1985), and
State v. Hvman, 276 S.C. 559, 281
S.E.2d 209 (1981), required it to
preserve the conviction and
sentence.

. J 
Y



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17

On April 29, 1985 , this Court 
decided Francis v. Franklin, 471 
U.S. 307 (1985). On May 1, 1985,
the petitioner submitted a 
supplemertal memorandum asserting 
that Francis was dispositive of the 
federal constitutional issue 
presentee ty the petition. On May 
22, 1985, the South Carolina Supreme 
Court summarily denied habeas 
corpus relief. J.A. at 27. Yates 
sought a writ of certiorari on the 
issue of the jury instructions on 
malice. On October 15, 1985, this 
Court granted the writ, summarily

ivacated the judgment of the South 
Carolina Supreme Court, and 
remanded the matter to the state 
court for further consideration in 
light of Francis v. Franklin.
Yates v. Aiken, 474 U.S. , 106



18

S.Ct. 218 (1985); J.A. at 28-29.
C. The Remand before the 

South Carolina Supreme 
Court.

On November 14, 1985, the
mandate of this Court was sent. 
While the matter was pending on 
November 19, 1985, the South
Carolina Supreme Court issued an 
order in McClarv v. State, 287 S.C. 
160, 337 S.E.2d 218 (1985), a state 
post conviction relief appeal that 
stated:

We take this opportunity 
to clarify our holding in 
State v. Woods, 282 S.C.
TFT FTF FTE. 2d 673 
((1984). In Woods, we 
held that our-decision in 
State v. Elmore, 279 S.C.
4l77 3F8 STE. 2d 781
(1983), would be applied 
retroactively. Adopting 
the reasoning of Sheav. 
Louisiana, 470 U ."FT 51,
TU5 STCt. 1065, 84
L.Ed.2d 38 (1985), we now 
hold that Elmore's 
retroactive effect will 
be limited to cases



19

pending on direct appeal and will not apply to 
collateral attacks on 
criminal convictions.

The petitioner then sought a
schedule for briefing and oral
argument. In his brief, the
petitioner contended that the
remand by this Court strongly
s^SS^sts that this Court be in
agreement with his position because
certiorari was granted in a case
arising from a state post
conviction proceeding as opposed to
a federal proceeding which rarely
occurs and because of the remand
for reconsideration in light of
Francis when he asserted that it
was clear that the state court had
already considered Francis prior to
its denial. Brief of Appellant,
Yates v . Aiken, pp. 6-9. The



TI
20 1

!|
i

petitioner further contended that
the jury charges on malice violated
the mandates of F r anci s and that
harmless error was not applicable
to these facts because he
acknowledged being a participant in
the robbery, but was not the actual
slayer. The respondents argued
that the issue on the malice charge
was waived because of the failure
of the petitioner to object to the
charge or raise it in a timely
manner on appeal and that McClary,
supra, established an additional
state procedural bar to raising the

«issue of burden-shifting charges in 
a collateral attack. Respondents, 
further asserted that the charge 
created constitutionally permissive 
inferences and that the charges if 
error were harmless beyond a



21

r

reasonable doubt on the basis of 
the overwhelming facts in the 
record that established his guilt. 
Brief of Respondent, Yates v. 
Aiken, pp. 7-21.

In its opinion on remand, the 
South Carolina Supreme Court failed 
to address the petitioner's 
contention but acknowledged that 
"[t]he jury instructions at Yates' 
trial suffered from the same 
infirmities present in Elmore and 
addressed in Francis v. Franklin.*1 
Yates v. Aiken, 290 S.C. 232, 234, 
349 S. E . 2d 84, 83 (1986); J.A. at 
31. The South Carolina Supreme 
Court held that its prior holding 
in State v. Elmore should not be 
applied to cases, such as Yates' , 
which were already final on direct 
appeal when Elmore was decided.



The state court characterized the
issue before it as the
retroactivity, under state law , of
a "prior state decision." J .A.
31-34.

SUMMARY OF ARGUMENT
The South Carolina Supreme

Court did not refuse to carry out
the mandate of this Court, but
rather established the scope of 
proceedings brought in its original 
jurisdiction in habeas corpus 
resting on the pleading before it. 
Further, the state court defined 
the scope of retroactivity of its 
own decisions and did not address 
the retroactivity of Francis v. 
Franklin. Since Franc is 
established a new constitutional 
doctrine, retroactive application
to collateral proceedings was not



23

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I
!ii
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JIj

required since it did not announce
a rule of criminal procedure
required to ensure fundamental
fairness or hold a defendant's
conduct entirely immune from 
criminal punishment.

Francis v. Franklin further is
not entitled to complete
retroactive application because its
major purpose was not to overcome
an aspect of the criminal trial
that substantially impairs its
truth finding function. Moreover,
the factors concerning the reliance
on the old rule and the effect of

♦retroactive application on the 
administration of justice weigh 
heavily in favor of nonretroactive 
effect.

While the state court has not 
reviewed the merits of the jury



24

instructions under Francis, we 
submit that the charges were 
constitutionally adequate because a 
reasonable juror would not have 
understooc the charge as creating
an unconstitutional presumption.
Further, since the petitioner was
charged under the law of the
parties and acknowledged his
participation in the crimes but not
as the actual killer, it must be
concluded that the charge on
malice, if error, was harmless
beyond a reasonable doubt.

ARGUMENT
A. The South Carolina Supreme 

Court has the authority to 
establish the scope of its own 
habeas proceedings and to 
define the effect of its own 
prior decisions. In
collateral cases, retroactive 
application is only required 
when the decision announces a 
rule of criminal procedure to 
ensure fundamental fairness or



holds a defendant's conduct 
entirely immune from criminal 
sanctions.
At the outset, respondent 

wishes to clarify what is before 
this Court. The petitioner draws 
the attention away from what he was 
seeking in his original habeas 
corpus petition before the South 
Carolina Supreme Court to an 
assertion that the state court 
refused to comply with the mandate 
of the court. Conspicuously absent 
from the brief is the petitioner's 
acknowledgement that his state 
court petition was limited to 
requesting the state court to apply 
two recent state court decisions, 
State v. Elmore, supra, and State 
v . Moods, supra, to his 1981 murder 
conviction because these decisions
were issued after his trial and



y m"

26

appeal (Elmore) and after his state 
post conviction relief decision 
(Woods) in which no objections or 
exceptions were timely raised on 
the issue of the malice charge. 
Since the petition for habeas 
corpus had the limited allegation 
concerning the applicability of 
£-lmore an  ̂Woods, the South Carolina 
Supreme Court's analysis is not as 
the petitioner would make it 
appear. The petition established 
the course for these extraordinary 
proceedings in the original 
jurisdiction of the court which is 
not a substitute for an appeal. 
Tvler v. State. 247 S.C. 34, 145
S.E.2d 434 (1965). In its opinion, 
the state court stated "the 
question we must resolve is whether
Elmore may be applied retroactively



to invalidate a conviction which 
was final at the time Elmore was 
decided." Yates v. Aiken, supra; 
J.A. at 31. This characterization 
was appropriate as a matter of 
state procedural law. While the 
proceeding has been ongoing, the 
petitioner has attempted to adjust 
his original claim by supplemental 
memorandum and briefs, but has not 
sought to amend his original 
petition. In Michigan v. Tvler, 
436 U.S. 499 (1978), this Court
held that the failure to present a 
federal question in conformance 
with state procedures constitutes 
adequate and independent grounds 
barring review in this Court so 
long as the state has a legitimate 
interest in enforcing its
procedural rule. Accord Henrvv.



State of Mississippi, 379 U.S. 443 
(1963). The petitioner's belated
attempt to raise the issue is not 
proper for this Court's review. 
The issue in the state court was 
limited to the retroactivity of a 
st'ate decision as applied to state 
habeas cases. This Court has no 
power to revise judgments on state 
1 aw.

In this matter, the 
constitutionality of the jury 
charges on malice was not raised at 
trial, on appeal, or in the state 
post conviction relief proceedings. 
After these successive defaults, 
the petitioner chose to attempt for, 
the first time to challenge the 
instructions in a petition to the 
South Carolina Supreme Court 
requesting the court to apply its



: y-"
l9

decision in Woods and Elmore to his 
case because each had occurred
subsequent to his appeal. Faced 
with this belated challenge in its 
extraordinary jurisdiction, the 
state court chose not to apply its 
own decisions retroactively. The 
insistence of the state court to 
reject retroactive application was 
based upon its consideration of 
"finality in the judicial process." 
J.A . at 34. The enforcement of 
this procedural bar serves such a 
legitimate state interest.

This Court has recently noted 
the distinction -between direct 
review and collateral review.
Pennsylvania v. Finlev, __U.S.__,
107 S.Ct. 1990 (1987). In Finlev, 
the court acknowledged that post 
conviction relief is not part of

L _J



1 proceeding itself, and 
fact considered to be 
nature. It is a 
attack that normally 
after the defendant has 
secure relief through 

direct review of his conviction. Of 
importance to this proceeding, this 
Court stated "states have no 
obligation to provide this avenue 

relicf, cf. United States v. 
MacCollum, 426 U.S. 317, 323 (1976)
(plurality opinion) ___" in this
case, the South Carolina Supreme 
Court held that in habeas corpus 
proceedings in its original 
jurisdiction, "collateral attack 
of a criminal conviction on the 
basis of legal precedent that 
developed after the conviction 
became final must

the crimina 
it is in
civil in
collateral 
occurs only 
failed to

be reserved for



r

those cases in which the trial 
court's action was without 
jurisdiction or is void because the 
defendant's conduct is not subject 
to criminal sanction." J.A. at 34. 
The shaping of the jurisdictional 
limits of the state habeas 
proceedings by the state court in a 
proceeding that it is not 
constitutionally obligated to 
maintain under Finley is beyond 
the powers of this Court.

Respondents submit that the 
appropriate test for applying 
criminal law decisions 
retroactively to state post 
conviction or habeas corpus, 
petitions is the analysis set forth 
by Justice Harlan in Mackev v. 
United States, 401 U.S. 667, 
681-693 -( 1971) (concurring in part

31 ^



and dissenting in part). Truesdale
v. Aiken, 450 U.S.__, 107 S.Ct.
1394 (1987) (Powell, J.,
dissenting . Justice Harlan
understood the purpose of 
collateral attack as being only to 
ensure proper application of the 
law prevailing at the time the 
conviction became final.
Consequently, retroactive
application of subsequent changes

i-rr



33

process' rules, that is, those that 
place, as a matter of 
constitutional interpretation, 
certain kinds of primary, private 
incividual conduct beyond the 
lavs-making authority to prescribe 
. ..," Mackey, supra, 401 U.S. at 
692 , and nonobservance of those 
procedures that are "implicit in 
the concept of ordered liberty." 
Id. at 693.

The distinction between direct 
review and state collateral review 
is both reasonable and necessary in 
light of the legitimate interest 
such a practice will have on the 
finality of judgments. Unless- 
retroactivity is unnecessary to 
correct an abusive practice in the 
guilt-determining process, 
collateral attacks of final



JfJr '

i

judgments should be discouraged.
The reasons have been set forth by
Judge Larner in State v. Blanchard,
98 N.J. Super. 22, 235 A.2d 913
(Law Div. 1967), in which he quoted
Chief Justice Traynor:

To begin with, their 
cases are history, and 
they should not now be 
given the power to 
rewrite it. To place at 
the disposition of the 
guilty an extraordinary 
remedy designed to insure 
the protection of the 
innocent would be to 
invite needless
disruption in the
administration of
justice. [98 N.J. Super, 
at 31, 235 A.2d at 918, 
quoting from Traynor,
"Mapp v. Ohio at Large in 
the Fifty States," 1962 
Duke L.J. 319, 340-341
(1962) j.
A court has a general inherent 

power to decide whether a decision 
is to be retrospective or 
prospective. Great Northern R. Co.

1

îm"



4 *} 
r  '

V. Sunburst Oil and Refining Co.. 
287 U.S. 358 (1932). The
acceptance of this general 
principle is recognition of the 
fact that previous judge made law 
is not a nullity and in certain 
cases should be given effect 
despite the fact that the law has 
subsequently shifted direction. 
The original petition before the 
state court requested the state
court to treat direct and
collateral review similarly on this 
issue even though he had not
previously sought to raise it. As

iaddressed by Justice;Harlan:
Treating direct and 
collateral review as if 
they were of one piece 
seems to me to be faulty 
analysis, ignoring as it 
does, the jurisprudential 
considerations that
differentiate the two 
kinds of adjudicatory



36

*:■ rr

functions. As a court of 
law we have no right on 
direct review to treat 
one case differently from 
another with respect to 
constitutional provisions 
applicable to both. As 
regards cases coming from 
collateral review, the 
problem of retroactivity 
is in truth none other 
than one of resettling 
the limits of the reach 
of the Great Writ ....

Mackey, supra, 401 U.S. at 701-702.
1 he South Carolina Supreme Court
wisely chose to limit the scope of
retroactivity to those cases in
which the trial court's action was
without jurisdiction or is void
because the defendant's conduct was
not subject to criminal sanction.
These legal principles enunciated
by Justices Harlan and Powell
conform with fundament a1 f a i rne s s
demanded of our justice system in
the finality of criminal

1



37

judgments. As Justice Cardozo said 
for the Court in Great Northern 
Railway, supra , 287 U.S. at 363,
"The choice for any state may be 
determined by the juristic 
philosophy of the judges of her 
courts, their conceptions of law, 
its origin and nature. ... In 
making this choice, she is 
declaring common law for those 
within her borders." In this 
situation, the state court, while 
recognizing many factors affect the 
progress of a case through the 
lengthy appellate process,
considered its approach to be more 
equitable to similar situated 1 
individuals than the approach now 
suggested by the petitioner. "The 
distinction . . . properly rests on

of finality in theconsiderations



3b

judicial process. The one litigant 
already has taken his case through 
the primary system. The other has 
not. For the latter, the curtain

i
of finality has not been drawn. 
Somewhere the closing must come." 
J.A. at 34. The applicability of 
the state decisions of State v. 
Elmore and State v. Woods were 
properly found to not be
retroactive to the instant
situation as a matter of state law. 
We submit that a similar analysis 
would reveal that Francis v. 
Franklin should not be applied 
retroactively to state collateral 
review to convictions already final 
when Franklin was announced because 
that decision did not divest the 
trial court of jurisdiction or 
remove criminal sanctions from the
defendant.



rr

39

In United States v. Johnson, 
A57 U.S. 537 (1982), this Court
accepted Justice Harlan's view on 
retroactivity in the direct appeal 
area. As members of this Cou't 
have urged, this Court should take 
the next step and adopt in entirtty 
Justice Harlan's bright-l:ne 
distinction between direct appeals
and collateral attacks. 
Hankerson v. North Carolina,

See
432

U.S. 233, 246 (1977) (Powell, J->
concurring); Shea v. Louisiana. 470
U.S. 51, 61 (1985) (Rehnquist, J.,
dissenting); Griffith v. Kentucky,
479 U.S.__, 107 S;.Ct. 708, 717
(1987) (Rehnquist, C.J.,
dissenting).

Accepting Justice Harlan's 
approach to retroactivity of habeas 
corpus cases, we submit that this



Court's decision in Francis v.
Franklin, supra, is not entitled
to retroactive applications to
collateral cases. Franc i s extended
the holding of th:.i. Court in
Sandstrom v. Montana, 442 U.S. 510
( 1979 ), to cases whei = a jury was
not required to presume
conclusively an element of a crime
under state law. Francis v.
Franklin, supra, 105 S.Ct. at 1984
(Rehnquist, J., dissenting). In
Francis, rather than examining the
charge as a whole. the Court
considered that a certain portion

»of the instruction on intent in 
isolation could reasonably have 
been understood to have created a 
mandatory presumption, even though 
it was informed that the 
"presumption may be rebutted" and



“ *• 1

f'

was surrounded by general 
instructions on the prosecution's 
burden of proof. In Sands t roir., 
supra, the Court held that the 
mandatory rature of the charge on 
intent "thit the law presumes that 
a person intends the ordinary 
consequences of his voluntary acts" 
would have mandated a finding of 
intent regardless of whether other 
evidence in the case indicated the 
contrary. Sandstrom v. Montana,
442 U.S. 510 at 515.

Francis v. Franklin does not
fall with Justice Harlan's

»

exceptions to retroactivity because 
the new rule did not place "certain 
kinds of primary, private
individual conduct beyond the 
law-making authority to prescribe," 
Mackev, supra, 401 U.S. at 692, .or



It\*}

h Z

claim a nonobservance of a 
procedure that was "implicit in the 
concept of ordered liberty," such 
as the right to counsel at trial. 
Further, F rancis does not present 
the situation announcing "rules of 
:riminal procedure required to 
ensure fundamental fairness" or 
"holding conduct entirely immune 
from criminal punishment." Solem 
v. Stumes, 465 U.S. 638, 654 n. 4 
(1984) (Powell, J., concurring).

The petitioner contends that 
even if the Harlan approach to 
retroactivity was accepted, the 
South Carolina ■ court plainly 
overlooked the first step in the • 
retroactivity analysis of whether 
Francis v. Franklin and State v. 
Elmore actually created a' "new" 
constitutional rule. While the



state court did not expressly
address this issue, respondents
submit that Francis v. Franklin did 
more than simply apply "a
well-established constitutional
principle to govern a case which is 
closely analogous to those that 
which have been previously 
considered in the prior case law.' 
In his brief before this Court, the 
petitioner contends that Francis 
merely applied the settled legal 
precedents of Sandstrom v. Montana, 
supra, and Mullanev v. Wilbur, 421 
U.S. 684 (1975), on mandatory
rebuttable presumptions. This 
position is totally in conflict 
with his belated request to have 
Elmore apply to his 1981 conviction 
in his habeas petition before 

South Carolina Supreme Courtthe



44

f 'r

wherein the issue was not raised at 
trial, on appeal, or in the initial 
state post conviction relief 
petition. Cf. Tucker v. Kemp, 256 
Ga. 571, 351 S.E.2d 196 (1987). In 
his dissent, Justice Rehnquist saw 
Francis as extension of Sandstorm 
v . Montana, supra, not merely an 
application of Sandstrom. Francis, 
supra, 105 S.Ct. at 1980
(Rehnquist, J., dissenting). He 
further noted that the "reasonable 
juror" standard was a new legal 
standard drawing away from the 
established standard of review in 
Cupp v. Naughten-, 414 U.S. 141 
(1973). Id. at 1980, 1982-1983.
The Petitioner's assertion is not 
correct.
B. Full retroactive application

of Francis v. Franklin is not 
requi red because it's major



purpose was not to overcome an 
aspect of the criminal trial 
that substantially impairs its truth finding function.

Assuming a rguendo that the 
analysis suggested by the 
petitioner is applicable to this 
state habeas review situation and 
that whether Francis v. Franklin 
should be given retroactive 
effect is properly before this 
Court, we respectfully submit that 
the standard of Linkletter v. 
Walker, 381 U.S.618 (1983), does
not provide the relief he seeks 
under close analysis. While 
disfavored by some taembers of this 
Court, this test has been recently 
been utilized to deny retroactivity 
on collateral review to Batson v. 
Kentucky, 476 U.S.__, 106 S.Ct.

4781712 (1986 j. Allen v. Hardy,
u -s*__> 106 S.Ct. 2878 (1986); see



46

\
rr

£±s° Sole, v, St....... supra, In
U nkletter, the Court announced , 
three-prong test by which it would 
decide whether a criminal decision 
based on the Constitution would be 
given retroactive application by 
looking at the purpose of the new 
rule; the reliance placed upon the 
old doctrine; and the effect on the 
administration of justice of a 
retroactive application of the 
ryle. 381 U.S. at 636. While 
this Court’s course of retroactivity 
decision has been "almost as 
difficult to follow as the tracks 
»ade by a beast of in search
of its intended victim," Mackey.

401 U.S. at 676, it is clear 
that retroactivity of its decisions
ls not compelled by the 
Constitution.



t'*} rr

This Court, in holding 
Mullanev v. Wilbur, 421 U.S. 684 
(1975), to be accorded full 
retroactive effect, stated "where 
the major purpose of new 
constitutional doctrine is to 
overcome an aspect of the criminal 
trial that substantially impairs 
its truth finding function and so 
raises serious questions about the 
accuracy of jury verdicts in past 
trials," the new rule is to be 
given full retroactive effect* 
Hankerson v. North Carolina, 432 
U.S. 233 at 243 (1977). The rule 
was first announced in Williams v. 
United States. 401 U.S. 646, 653 '
(1971). After stating the "major -
purpose rule," the Court went on to
observe: ftNeither good faith
reliance by state or federal

v.Vif>



*♦6

authorities on prior constitutional 
law or accepted practice, nor
severe impact on the administration 
of justice has sufficed to require 
prospective application to these 
circumstances." The purpose served 
by a new constitutional rule is a 
major factor in applying this test. 
However, before application of the 
first prong, it must be closely 
examined.

There are three aspects to the
Williams v. United States major
purpose test: (1) the major
purpose of the new rule must be to

*(2) correct a: flaw that
substantially impairs the <
truth-finding function of trial and
(3) thereby raises serious
questions about the reliability of 
past verdicts. All three aspects



of Che Williams test must be
satisfied before the need to apply 
the second two prongs of che 
Linkletter test is obviated. A new 
rule that merely collaterally 
enhances the integrity of the truth 
finding process wilL not be applied 
retroactively foi that reason 
alone.

[T]he fact that a new 
rule tends incidentally 
to improve or enhance 
reliability does not in 
itself mandate the rule's 
retroactive application 
.... Thus, retroactivity 
is not required by a 
determination that the 
old standard was not the 
most effective vehicle 
for ascertaining the 
truth, or Ghat the 
truth-determining process 
has been aided somewhat 
by the new standard, or 
that one of several 
purposes in formulating 
the new standard was to 
prevent distortion in the 
process.



;>0 ^

Gosa v. Mayden. 413 U.S. 665, 680 
(1973). Also, some incorrect 
results that may have occurred due 
to the old rule is not enough to 
justify, by itself, retroactive 
application of the new rule. 
"Where we have been unable to 
conclude that use of such a 
'condemned practice' in past 
criminal trials presents
substantial likelihood that the 
results of those trials were 
factually incorrect, we have not 
accorded retroactive effect to the 
decision condemning that practice." 
Williams, supra, 401 U.S. at 655.

The question of whether a 
displaced rule has substantially 
impaired the truth-finding process 
requires the application of a 
balancing test. "The question of

if%

t



the impact of particular decisions 
on the reliability and fairness of
any aspect of a criminal proceeding 
is inherently a matter of balancing 
probabilities." Michigan v. Payne, 
412 U.S. 47 (1973). The Court used 
this approach in Stovall v. Denno. 
388 U.S. 293 (1967), which refused 
to apply United States v. Wade. 388 
U.S. 218 (1967), and Gilbert v.
California, 388 U.S. 263 (1967),
retroactively. The Court conceded 
that "a conviction which rests on a 
mistaken identification is a gross 
miscarriage of justice," and that 
the new rules were "aimed at 
avoiding unfairness at trial by 
enhancing the reliability of the 
fact-finding process in the area of 
identification evidence ...." 388
U.S. at 297. Nevertheless, the



52

Court held that the rule that 
counsel had to be present during 
lineups was not to be appliea 
retroactively. In Solem v . Stumes, 
465 U.S. 638 (1984), the Court
refused to apply the rule of 
Edwards v. Arizona, 451 U.S. 477 
(1981), that once a suspect has 
invoked his right to counsel, any 
subsequent conversation must be 
initiated by him retroactively to 
federal habeas review. The Court 
considered this rule to be a 
prophylactic rule designed to 
implement pre-existing rights.f
Solem, supra, 465- U.S. at 645.
Compare Shea v. Louisiana, 470 U.S. ' 
51 (1985) (Edwards applicable to
cases pending on direct appeal in 
state court when Edwards was 
decided).

J



53

i

An analysis of Francis v. 
Franklin, supra, reveals that the 
test for retroactivity under the 
Linkletter test has not been met. 
Unlike In re Winship, 397 U.S. 358 
(1970), which was the subject of 
Ivan V. v. Citv of New York, 407 
U.S. 203 (1972), Francis v.
Franklin, supra , did not announce a 
new constitutional doctrine. 
Rather,, it announced a prophylactic 
rule designed to further effectuate 
the Winship doctrine as extended by 
Sandstrom v. Montana, 442 U.S. 510 
(1979), to cases where the jury was

T
not required : to presume
conclusively an element of a crime > 
under state law. In this regard, 
Francis is similar to Michigan v. 
Pavne, supra, and in that, like 
that case, Francis did not confer



54

"a constitutional right that had 
not existed prior to the decision” 
but rather "created a protective 
umbrella serving to enhance a 
constitutional guarantee." 412 
U.S. at 54. The error asserted in 
Francis was not so much the 
instruction itself but the 
possibility that a "reasonable 
juror" could have misinterpreted 
the instruction. Francis v. 
Franklin, supra, 105 S.Ct. at 
1971-1972. The major purpose of 
the rule in Francis is, therefore, 
to further effectuate the Winship 
doctrine by reducing the risk of 
possible jury misinterpretation of( 
instruction that in the Court's 
opinion could lead to a Winship 
error. This prophylactic rule is 
not designed to overcome an aspect



55

of a trial that substantially 
impairs the truth-finding function. 
The mere possibility that a 
reasonable juror could misinterpret 
an instruction cannot be said to be 
a substantial * impairment in the 
truth-finding process at trial. 
After all, "implicit in [the] 
constitutional requirements of jury 
trial is a belief that juries can 
be trusted ...." Jackson v. Denno, 
378 U.S. 368 (1964). Our system of 
criminal justice could not operate 
if the effective presumption was 
that juries •; consistently 
misinterpret the instructions givep 
to them by the court. Applying the 
rule of Francls retroactively would 
also "occasion windfall benefits 
for some defendants," Michigan v.
Payne, supra, 412 U.S. at 53, and



56

would "undoubtedly affect cases In 
which no unfairness occurred." 
Stovall v. Denno , supra.

The purpose to be served by 
the prophylactic rule announced in 
Francis, therefore, would not be 
significantly furthered by full 
retrospective application. This is 
especially true in light of all the 
countervailing considerations of 
finality of judgments, reliance on 
the prior rule, the burden that 
retroactivity would have on the 
administration of justice, and the 
availability of other grounds for 
relief under Winship. supra, 
Mullaney v. Wilbur. supra, and 
Sandstrom v. Montana, supra, when 
the instruction goes beyond the 
mere possibility of 
interpretation and impinges upon



57

the proper distribution of the 
burden of proof. See Gosa v. 
Mayden, supra, 413 U.S. at 685 
(finai ty considerations). There 
is no significant question of the 
accuri cy of the process in the 
Yates case or in other Francis type 
cases- -just the mere possibility of 
jury misinterpretation. There is 
no question but that Yates received 
a fundamentally fair trial and 
"essential justice" is not involved 
here.

Under the second prong, the 
reliance placed on the pre-Francis 
practice of relying on jury charges 
as a whole to determine the burden 
of proof rather than the "fine 
parsing of the jury instructions" 
to determine if a juror might 
understand a few sentences in the



58

charge to allow conviction on less
than proof beyond a reasonable
doubt. Francis, supra, 105 S.Ct.
at 1980 (Rehnquist, J.,
dissenting). The case presently
before this Court was tried in
1981, a full four (4) years before 
the decision in Francis. The new 
rule was not like Sandstrom v. 
Montana, supra, which derived from 
an "irrebuttable direction by the 
court to find intent," Sandstrom. 
supra, 442 U.S. at 517, nor 
forewarned from that decision. 
Rather, it was 'a new protective 
rule issued to prevent an unknowing 
encroachment upon the rights 
announced in Wlnship. Who could 
have foreseen that the possibility 
of jury misinterpretation of the 
words "presumption may be rebutted"



would be equated to lessening the 
state's burden of proof regardless 
of numerous charges advising the 
jury that the burden of proof 
rested solely on the state. The 
courts cannot be faulted for not 
anticipating Francis, see Cupp v. 
Naughten. 414 U.S. 141, 146-147
(1973) ("a single instruction to a 
jury may not be judged in 
artificial isolation, but must be 
viewed in the context of the 
overall charge"). "There was no 
clear foreshadowing of that rule." 
Adams v. Illinois. 405 U.S. 278 
(1972).

<
The burden that retroactive 

application of the rule would place 
on the administration of justice 
also supports limiting retroactive 
application to cases at trial or on



60

appeal when it was decided. 
Clearly, the retroactive 
application of this new rule "would 
have an impact upon the 
administration of their criminal 
law so devastating as to need no 
elaboration .... At the very 
least, the processing of current 
criminal calendars would be 
disrupted while hearings were 
conducted to determine ... harmless 
error." Stovall v. Denno, supra, 
388 U.S. at 300.

Respondents submit that 
Francis v. Franklin, supra, 
announced a rule that was not to

i

correct a substantial inadequacy in 
the fact-finding process which had 
led to questionable verdicts. 
Further, the retroactive 
application of Francis would result

<



61

in reversals, or at least require
significant court review, in many
instances where there was no actual
prejudice which is not justified by
the countervailing considerations
rooted in the Francis decision.
Therefore, under the analysis under
the Linkletter criteria, Francis v.
Franklin, supra, should not be
given full retroactive effect.
C. The jury charges on malice

given in this case do not 
create mandatory rebuttable 
presumptions when reviewed 
under the "reasonable juror" 
analysis of Francis v. Franklin.
Respondents , respectfully

\

submit that the state courts have
i

not reviewed the merits of entire 
jury charge in this case. The 
petitioner relies upon an 
introductory phrase in the third 
paragraph of the state court



62

opinion that "the jury instruction 
at Yates' trial suffered from the 
same infirmities present in Elmore 
and addressed in Francis v. 
Franklin, s u p r a Y a t e s , supra, 349 
S.E.2d at 85, to support his claim 
that the state court has already 
resolved the merits of the charge 
against the respondents. While the 
claims are similar to those present 
in Elmore, we submit that 
appropriate analysis under Francis 
v. Franklin, supra, reveals no 
constitutional infirmity in a case 
where no objection to the charge 
was raised at trial or in direct

iappeal and the burden of persuasion 
was never shifted to the defendant.

In South Carolina, state 
habeas corpus proceedings cannot be 
a substitute for an appeal. Tyler



% *} rr

63

v. State. 247 S.C. 34, 145 S.E.2d 
434 (1965). In this case, trial
counsel Mauldin stated on the 
record after the jury instructions 
were given that the trial court lad 
not intimated that the defendsnt 
had the burden of proof (by 
inference or statement). (Tr. p. 
1217, 11. 10-19). No challenge has 
been made to counsel's competence 
or his failure to object to the 
charge in the state post conviction 
proceedings or on direct appeal and 
none is made here by the 
petitioner. Compare: State v.
Hyman, 276 S.C. 559, 281 S.E.2d 209 
(1981). We respectfully submit, 
therefore, that he has failed to 
meet his threshold burden of 
establishing a ground for relief 
under state procedural law. Simply



64

f

put, this forum is not a substitute 
for an appeal.

Assuming arguendo that the 
merits of his challenge to these 
proceedings can be uviewed, we 
respectfully submit that such a 
review reveals that he is not 
entitled to a new trial on murder. 
Yates challenges the instruction on 
malice concerning alleged
"mandatory rebuttable
presumptions." He contends that 
the part of the unobjected charge 
concerning the "doing of an 
unlawful act" and,"use of a deadly 
weapon" created such a presumption.I
As stated in Francis v. Franklin, 
105 S.Ct. 1965 at 1968 (1985),
"[t]he question is whether these
instructions, when read in the
context of the jury charge as a



65

*
*7rr

whole, violate the Fourteenth 
Amendment's requirement that the 
State prove every element of a 
criminal offense beyond a 
reasonable doubt." The following 
analytical approach is used in 
cases raising this issue. First, 
the Court nust determine whether 
based upon tne specific language of 
the instruction creates a 
constitutionally objectionable 
"mandatory presumption," or "merely 
a permissive inference," on an
essential element of the crime
Francis, 105 S.Ct. at 1971\
Second, "if a specific portion ofi
the jury charge, considered in 
isolation, could reasonably have 
been understood as creating a 
presumption ..., then the potential 
offending words must be considered



66

in the context of the charge as a 
whole." Francis, 105 S.Ct. at 
1971.

Under the plurality's analysis 
in Francis, the initial step in 
ascertaining the constitutionality 
of an instruction is to determine 
the nature of the presumption it 
describes. Id. 105 S.Ct. at 1971. 
The Court must determine whether 
the challenged portion of the 
instruction creates a mandatory 
presumption Or merely a permissive 
inference. To determine the nature 
of the "presumption," it is 
necessary to focus on the specific 
words spoken to the jury, for the 
constitutional standard depends on 
how a reasonable juror could have 
interpreted the instruction. If a 
specific portion of the jury



67

charge, considered in isolation, 
could have been understood as 
creating a presumption that 
relieves the State of its burden of 
persuasion, the potentially 
offending words must be considered 
in the context of the charge as a 
whole. Other instructions might 
explain the particular infirm
charge to the extent that a
reasonable juror could not have
cons idered the charge to have
created an unconstitutional
presumption. Francis, supra, at 
1971, citing Cupp v. Naughton, 414 
U.S. 141 (1973) . I

The jury charge in this, case 
contains two separate issues raised 
in this habeas proceeding to 
determine the nature of the 
presumptions. The first passage,



68

r r

containing four sentences, reads:
Malice may also be 
implied as where,
although no expressed 
intention to kill was proven 
by direct evidence, it is 
directly and necessarily 
inferred from facts and 
circumstances which are, 
themselves, proved.
Malice is implied or
presumed by the law fromthe willful, deliberate,and intentional doing ofan unlawtul act withoutany ■just cause or excuse.

---  ------- -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 presumption is 
rebuttable, ’that is, it 
is not conclusive on you, 
but is rebuttable by the 
rest of the evidence.

(Tr. p. 1207, 1. 20 - p. 1208, 1.
8) . J.A. at 6-7.
We submit this passage of the
charge created a mere permissive



69

l*rfr

presumption. The first sentence 
made it clear that malice “may” be 
implied or "inferred" from the 
facts and circumstances proved by 
the state. The second sentence 
clarified and restated the first 
sentence, "it defined implied 
malice." Collins v. Francis, 728 
F.2d 1322, 1330 (1984); Lamb v. 
Jernigan, 683 F.2d 1332 (11th Cir. 
1982), cert, denied, 460 U.S 1824 
(1983). This sentence reflects 
"substantially the famous 
definition of malice by Bayley, J., 
in Bromage v. Proser, 10 E.C.L. 
321: "'Malice', in common 
acceptation, means ill will against 
a person but in its legal sense it 
means a wrongful act done 
intentionally without just cause or 
excuse.'" State v. McDaniel, 68



%3}rr

70

S.C. 304, 312, 47 S.E. 384, 387
(1904). The petitioner would have 
a much stronger position if the 
second sentence read, "and malice 
must be implied, it must be
presumed," or "malice shall b »
presumed, it shall be implied. ' 
Given the language used, "malice is 
implied, it's presumed ..., " ani
its context in the charge, the jury 
was left free to credit or reject 
the inference suggested by the
court.

The third sentence made it 
clear that the jury was under no
mandate to firai that malice 
existed. The trial judge restated 
what he had said seconds before and 
qualified the statement with the 
words "in its general
signification." There was not a



1*\Arr

71

hint of a suggestion that the 
jury's fact finding duty was being 
curtailed or that it had to find 
that Yates had acted with malice. 
In the fourth sentence, the jury 
was not told that the defendant was 
required to rebut m. lice if it 
found it to exist. Instead, the 
charge only pointed oui; that it was 
possible to rebut the presumption. 
Immediately after the word 
"rebuttable," the judge drew the 
jury's attention back to its unique
province to find malice from "the
rest of the evidence" and then
properly allocated the burden of
proof on this issue to the state by
stating that rebuttable meant "it
is not conclusive on vou. " (Tr. p.
1208, 1. 8 ) . J .A. at 7.

*

It>



72

Assuming arguendo, that this 
part of the instruction created a 
mandatory (rebuttable) presumption 
because of the terms "presume," 
"presumption," and "rebuttable," 
the Francis analysis leads to the 
single conclu; ion that a reasonable 
juror could not have understood the 
charge to have created an 
unconstitutional presumption. 
Francis, supra. Although the 
charge contains the word "presume," 
the jury was not told that malice 
"shall" or "must" be presumed if 
the State proves the predicate 
facts. In fact, it was 
specifically stated that "it is not, 
conclusive on you." Unlike in 
Francis, the instruction in this
case repeatedly announces its own 
permissiveness-“the jury was free



73

to credit or reject the inference 
suggested by the Court. In 
addition, the words at issue were 
accompanied by a strong explanation 
of circumstantial evidence which 
would tend to indicate the ways the 
st >te could prove implied malice. 
Because of these factors, even if 
th» words created some type of 
rebuttable presumption, its impact 
upon the reasonable juror was 
likely no greater than a reasonable 
inference.

The petitioner asserts this
instruction relieved the State of

*establishing his own malicious 
intent in the murder of Mrs. Wood 
once it had been shown that he 
committed some unlawful act without 
just cause or excuse. The 
petitioner wholly ignores in his



belated attempt to challenge these 
instructions that the jury was 
specifically charged "a defendant 
is not responsible for a homicide 
committed by his co-defendant as an 
independent act growing out of some 
private malice or ill will which 
the slayer had toward the deceased, 
and which is not in furtherance of 
or connected with the original 
unlawful purpose." (Tr. p. 1210). 
J.A. at 8. Under these 
instructions, a reasonable juror 
could not have considered the 
allegedly infirm charges to have 
created an ; unconstitutional 
presumption. Francis, supra, ap 
1971.

It was clear that with charge 
on the law of the parties that the 
State's burden, under Sandstrom v.



M o n t a n a , 442 U.S. 510 (1979), and

Francis v. Franklin, supra, would 
be to prove both that the actual 
killer, presumably Davis, had 
malice, and that Yates intended to 
be an accomplice in the crimes. 
Myrick v. Mashner, 799 F.2d 642 
(10th Cir. 1986). Because of the 
forceful and repeated blows dealt 
by the perpetrator, the 
overwhelming evidence can allow the 
assumption that the actual killer 
had the specific intent to kill. 
Since the jury charge required the 
State to prove that Yates had 
agreed upon the {"unlawful common 
purpose that involves the probable 
contingency of taking of a human 
life" (J.A. at 7-8), and there was 
overwhelming evidence of this 
agreement through the defendant's



own testimony, it must be concluded 
that any instruction on this
matter, even if burden shifting was 
harmless. Myrick, supra. Cf.
Drake v. Kemp. 762 F.2d 1449 (11th 
Cir. 1985).

In the second portion of the 
charge that is disputed reads as 
follows:

. . . 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
_ r



(Tr. p. 1208). The petitioner 
asserts these instructions were 
infirm because a jury could have 
concluded that unless all the 
circumstances were reliably
established, the jury was required 
to heed the presumption rather than 
the evidence, or lack, of evidence, 
of malice. We respectfully submit 
that this charge created ruD 
presumption, not even a permissive 
one. The first sentence of the 
charge is derived from common law 
(see: State v. Levelle, 34 S.C.
120, 127, 13 S.E. 319, 320 (1891),

-t

and the statemeht is usually 
qualified by the instruction that ' 
the presumption "vanishes11 or "is 
removed." See: State v. Hopkins,
15 S.C. 153, 157 (1880). The
language is not mandatory, it is



78

*

i

simply a definition of malice.
This instruction tells the jury
that a finding of malice may be
based entirely on circumstantial
evidence, the use of a deadly
weapon, but that the state must
still prove malice by evidence
which satisfies the jury beyond a
reasonable doubt. There is no
reference to the defendant or any
duty on his part to produce "some"
evidence. It can be concluded that
a reasonable juror could only have
understood that once the
circumstances of the victim's death

*were in evidence, the state was not 
entitled to a presumption or > 
inference of any kind. That was 
the factual situation presented in 
this case.



The United States Court of 
Appeals for the Fourth Circuit has
recently upheld challenges to a 
similar charge recently. Rook v . 
Rice, 783 F.2d 401 (4th Cir. 1985); 
Davis v. Allsbrooks, 778 F.2d 1b8, 
173 (4th Cir. 1985). In each cf 
these cases, the Fourth Circuit 
held that a state may legitimately 
shift a burden of production (not 
persuasion) on an element of a 
crime to the defendant. We submit 
that the effect of these charges 
does no more than that. These 
instructions, if anything, only 
shifted the burden ’of production on 
the defendant. Sandstrom v. 
Montana, 442 U.S. 510, 514-519
(1979). This Court should have no 
difficulty, as the Fourth Circuit 
did not, in concluding that the



80

presumption" relied on satisfying 
the requirements of County Court v. 
Allen, 442 U.S. 140 ( 1979), that
the fact allegedly presumed 
(malice) be rationall) connected to 
the proven fact (use of a deadly 
weapon). Being satisfied of that 
nexus, we submit that this Court 
must reject his challenges to the 
jury instructions and find no 
constitutional infirmity that 
denied the petitioner a
fundamentally fair trial. As 
previously stated, the charge read 
as a whole completely placed the 
burden of persuasion on the State 
to show murder beyond a reasonable ' 
doubt. The jury’s conviction, 
based upon appropriate instruction, 
resolved that issue.



jy f '

81

D. Assuming constitutional 
infirmity, the malice charge 
given was harmless error in 
light of the state's theory 
that Yates was an accomplice 
who promoted and assisted in 
the armed robbery and the 
existence  ̂ of overwhelming 
eviderce of his participation.
In Rose v. Clark. 478 U.S.__,

106 S.Ct. 101 (1986), the United
States Supreme Court held that the
harmless error analysis of Chapman
v- California. 386 U.S. 18 (1967),
applies to jury instructions found
to be impermissible under Sandstrom
_v. Montana. 442 U.S. 510 (1979),
and Francis v. Franklin. 471 U.S.
307 (1985). In Rose, this Court
approved of a test under which the
reviewing court should not set
aside an otherwise valid conviction
if the court may confidently say,
on the whole record. that the
constitutional error in question

<»
if\



62

\
rr

was harmless beyond a reasonable
doubt. In Rose, the Court held
that "the fact that the respondent
denied that he had an intent to do
any injury to another does not
dispose of the harmless error
question." 106 S.Ct. 3101. It has
been suggested that the inquiry is
"whether the evidence was so
dispositive of intent (malice) that
a reviewing court can say beyond a
reasonable doubt that the jury
would have found it unnecessary to
rely on the presumption." Rose,
106 S.Ct. at 3109, (quoting

*
Connecticut v. Johnson, 460 U.S. 
73, 97 n.3 (1983) (Powell, J.,'
dissenting). The South Carolina 
Supreme Court has not made such an 
inquiry based upon its disposition 
on other grounds.



i 3

As stated above, the 
inquiry is not whether intent was a
disputed issue at trial. In its
decision below, the Court held that
Yates was found guilty of the
murder of Mrs . Wood under the
theory of the "hand of one, hand of 
all" that when two or more persons 
aid, abet, and encourage each other 
in the commission of a crime, all 
being present, each is guilty as a 
principal. Therefore, the State 
had to prove that the actual 
killer, Henry Davis, had malice, 
and that Yates intended to be an 
aider in the commission of the 
crime. Here, Yates and Davis spent 
two days casing places for an armed 
robbery, even discussing the 
possibility of the electric chair 
if someone was killed during the



robbery. (Tr. pp. 820-825). After 
selecting the store, Yates, armed 
with a gun, approached Willie Wood 
and demanded money, while Davis was 
making a stabbing motion with a 
knife toward Wood. (Tr. pp. 
1084-1087). Wood gave Davis the 
money and was directed by him to 
bend over. (Tr. pp. 914-915). As 
Yates testified at trial, he shot 
at Wood after being directed to do 
so by Davis. (Tr. p. 1093, 
1097-1098). After hearing a female 
voice, Yates said "let's go" and 
then went out the door and waited 
in the car for tfavis. (Tr. p. 
1098). Meanwhile, Davis approached 
Wood with the knife and his 68-year 
old mother attempted to help him. 
His mother was stabbed with a knife 
by Davis that forcefully penetrated



1
63

her heart and the full thickness of 
her chest. (Tr. pp. 917-918, pp. 
954-955).

Here, it is clear that the 
jury found that the relevant 
predicate facts existed beyond a 
reasonable doubt and from those 
facts that malice could be inferred 
so that no rational juror could 
find that defendant Yates committed 
his acts without intending to 
assist Davis in the commission of 
the robbery. Yates raised no issue 
that Davis committed the murder 
with malice or that the muraer by 
Davis was not done in furtherance 
of their purpose to rob the store. 
This evidence is overwhelming and 
permits this one rational 
conclusion. We submit that a 
reasonable juror could not have

if



oo

found otherwise in the proof
presented by the State, the
instructions on the presumption of
malice notwithstanding. Simply
stated, it would defy common sense
to conclude that this violent
robbery-murder was committed
unintentionally, and it follows
that no rational jury would need to
rely on the challenged portion of
the charge on the issue of malice.
See: McKenzie v. Risley, 801 F.2d
1519, 1526 (9th Cir. 1986); Beck v.
Norris, 801 F.2d 242 (6th Cir.
1986). Mvrick v. Maschner, 799

♦
F.2d 642 (10th Cit. 1986) (while
petitioner asserted that he did not 
intend to assist the triggerman, 
harmless error was found where his 
intent to aid in the commission of 
the substance crimes went beyond



% *T 
t r

67

mere presence at the scene); 
Sturgis v. Goldsmith. 796 F.2d 1103 
(9th Cir. 1986); Hates v. 
Blackburn, 803 F.2d 369, 578 (5th 
Cir. 1986). Burton v. Foltz. 810 
F* 2d 118 (6th Cir. 1987); Baker v. 
Montgomery. 811 F.2d. 557 (11th
Cir. 1967 ) (Sandst rom error mav be
harmless even when a defendant 
contests intent by asserting 
self-defense).

CONCLUSION
For the foregoing reasons, the

respondents request that the
judgment of the Supreme Court of*
South Carolina be affirmed.

Respectfully submitted, ’
T. TRAVIS MEDLOCK 
Attorney General

if%



* DONALD J. ZELENKA 
Chief Deputy Attorney 
General
ATTORNEYS FOR

July 15, 1987 
Columbia, South Carolina



mmmm*

%>rr'

No. 86-6060

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1986

DALE ROBERT YATES,
Petitioner,

\'S

JAMES AIKEN, WARDEN, AND 
THE ATTORNEY GENERAL OF SOUTH CAROLINA,

Respondents.

On Writ of Certiorari to the 
Supreme Court of South Carolina

AFFIDAVIT OF FILING

PERSONALLY appeared before me, 
Donald J. Zelenka, ;who being dulv 
sworn, deposes and says chat he "is 
a member of the Bar of this Court 
and that on this date he filed the 
original and forty copies of Brief 
for Respondents in the above 
captioned case by depositing same 
in the U. S. Mail, first-class 
postage prepaid, and properly 
addressed to the Clerk of this Court.



*jnrr

This 15th day of July, 1987.

SWORN to before me this 
15th day of July, 19S7.
"-•*** -  ̂ /J~'_____ ______( LS )Nota;y tublictor South Carolina Mv Conmission Expires:

, t
,9



No. 86-6060

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1986

DALE ROBERT YATES,
Petitioner, 

vs
JAMES AIKEN, WARDEN, AND 
THE ATTORNEY GENERAL OF 
SOUTH CAROLINA,

Respondents.

On Writ of Certiorari to the 
Supreme Court of South Carolina

AFFIDAVIT OF SERVICE

PERSONALLY appeared before me, 
Donald J. Zelenka, .who being duly 
sworn, deposes and says that he 
served the foregoing Brief for 
Respondents on the Petitioner by 
depositing three copies of the same 
in the United States Mail, first 
class postage prepaid, and 
addressed to David I. Bruck, 
Esquire, P. 0. Box 11311, Columbia, 
South Carolina 29211. He further 
certifies that all parties required 
to be served have been served.



<* su t'
wmt*

Vi

This 15th day of July. 1987

SWORN to before me this 
15th day of July, 1987.

. 7
L ,\ - — I I S C l - J (LS )

Notary Public for South Carolina 
My Commission Expires : 'J■ *