McInerney v. Berman, Civ. A. No. 78-1159-S.

• Decision Date: 27 June 1979
• Docket Number: Civ. A. No. 78-1159-S.
• Citation: 473 F. Supp. 187
• Parties: Thomas F. McINERNEY, Petitioner, v. Louis BERMAN et al., Respondents.
• Court: U.S. District Court — District of Massachusetts

473 F. Supp. 187

Thomas F. McINERNEY, Petitioner, v. Louis BERMAN et al., Respondents.

Civ. A. No. 78-1159-S.

United States District Court, D. Massachusetts.

June 27, 1979.

Norman S. Zalkind, Zalkind & Zalkind, Boston, Mass., Stephen L. Saltonstall, Mass. Correctional Legal Services, Boston, Mass., for petitioner.

Robert S. Potters, Asst. Atty. Gen., Boston, Mass., for respondents.

MEMORANDUM AND ORDER

SKINNER, District Judge.

In this petition for a writ of habeas corpus the petitioner alleges that his constitutional right to due process has been violated in his conviction of murder in the second degree in the Massachusetts Superior Court. Specifically, he claims that the trial judge's charge to the jury impermissibly shifted to him the burden of disproving malice aforethought, an essential element of the crime of murder in the second degree as defined by Massachusetts courts. This claim requires once again the careful differentiation between presumptions and inferences and an analysis of the effect of each on the prosecution's burden of proof of every element of the crime charged. In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

Since there has been inconsistent use of terms by various courts, I will start by defining the terms that I will use.

1. Conclusive presumption. An ultimate fact is presumed to be true upon proof of another fact, and no evidence, no matter how persuasive, can rebut it. An example is the presumption that a child of less than a specified age is unable to consent to sexual intercourse.

2. Mandatory presumption. A jury is required to find an ultimate fact to be true upon proof of another fact unless they are otherwise persuaded by a preponderance of evidence offered in rebuttal.

3. Inference (sometimes called permissive presumption). A jury may find an ultimate fact to be true upon proof of another fact if upon consideration of all the circumstances revealed by the evidence they are satisfied that in logic and common experience the ultimate fact is more likely than not to follow from the fact proved.^1a

A mandatory presumption that a necessary element of a crime has been proved by proof of another fact impermissibly shifts the burden of proof to the defendant by requiring him to rebut the presumption by at least a preponderance of the evidence. Such a presumption violates the rule announced in In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).

An inference of a necessary element of a crime from proof of another fact does not violate a defendant's constitutional rights if (1) the underlying fact is proved beyond a reasonable doubt, (2) the ultimate element of the crime is rationally related to the underlying fact, and (3) the burden remains on the prosecution to satisfy the finder of fact on the whole record as to every element of the crime charged beyond a reasonable doubt. County Court of Ulster County, New York v. Allen, ___ U.S. ___, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979); Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973). Whatever the state's general rule may be, moreover, it is to be tested on federal habeas corpus as applied in the particular case. County Court of Ulster County, New York v. Allen, supra, ___ U.S. at ___, 99 S.Ct. 2213.

The conviction in this case was appealed to the Supreme Judicial Court, which affirmed the conviction. The facts are set out in the opinion, 373 Mass. 136, 365 N.E.2d 815, 817 (1977). In affirming the conviction, the Supreme Judicial Court articulated a rule governing the inference of malice from the fact of an intentional killing which may not completely avoid the proscription established by Mullaney v. Wilbur, supra. While the inference is said to be permissive, the Court reiterated its holding in Commonwealth v. Gagne, 367 Mass. 519, 326 N.E.2d 907, 909 (1975):

It does not necessarily follow, however, that where there is any evidence of mitigating circumstances, the inference of malice is rebutted. Emphasis in original.

The meaning of this language is not entirely clear to me, but if it implies a burden on the defendant of overcoming the inference by a preponderance of the evidence it runs afoul of Mullaney v. Wilbur. I need not decide that question, because what is critical here is the rule articulated by the trial judge. The trial judge's instructions are consistent with due process if they meet the standard approved in County Court of Ulster County, New York v. Allen, supra, ___ U.S. at ___, 99 S.Ct. at 2227:

In short, the instructions plainly directed the jury to consider all the circumstances tending to support or contradict the inference that all four occupants of the car had possession of the two loaded handguns and to decide the matter for itself without regard to how much evidence the defendants introduced.

The relevant parts of the instructions are attached as Appendix A. The problem which brings this case here is that while the trial judge in general used language fairly describing a permissive inference and left the question of acceptance or rejection to the jury upon consideration of all the circumstances, he also used some phrases usually associated with mandatory presumptions.

Our Circuit has been very sensitive to any suggestion that the burden of proof has been in any way shifted to a defendant, e. g., United States v. Harrigan, 586 F.2d 860 (1st Cir. 1978). In that case, my instruction to the jury was as follows:

The burden in this trial, as in every criminal trial, is upon the Government to establish the guilt of the defendant by proof beyond a reasonable doubt. That is the reason why I made the comment during the argument that the defendant's evidence has no greater function than simply to raise a reasonable doubt in your minds, if it does. The defendant is not required to go any further.

The Court of Appeals stated that "There is no question" that the second quoted sentence was error. The point was apparently conceded by the government, and the reason for the holding was not explained by the Court. If "function" is taken in the sense of "use" or "purpose," it is still my opinion that the instruction was correct, and did not shift any burden to the defendant.^1b I surmise therefore that the Court of Appeals was concerned lest the jury interpret the word "function" as implying "duty" or "obligation," a connotation which it might indeed carry in some contexts. Webster's Third New International Dictionary, G. & C. Merriam Company, 1971.

The position of the offending language at the beginning of the instructions and the attention directed to it by previous colloquy between court and counsel in the presence of the jury caused the Court of Appeals to consider the error not harmless and not cured by the other concededly correct instructions on the same subject.

It is with the meticulous concern exemplified by Harrigan, that I must measure the instructions in this case against the standards of Mullaney v. Wilbur, supra, and County Court of Ulster County, New York v. Allen, supra.

The instruction must be read from the point of view of a juror.² Words such as "presumption," which for the lawyer may conjure up the dour shade of Commonwealth v. York, 9 Metc. (50 Mass.) 93 (1845), will not have the same effect on a jury. "Presumption" was never defined by the trial judge and never distinguished from "inference." "Inference" was specifically defined in permissive terms.

Near the beginning of the instructions, the trial judge, after describing the Commonwealth's burden of proof, asked himself, "What is the burden that rests upon the defendant in this case, Mr. McInerney?" And he answered, "The answer is simple— absolutely none." (Tr. 9-85). This point is repeated at Tr. 9-86, and in the supplemental instructions at Tr. 9-130. At many points throughout the instructions the trial judge emphasized the burden on the Commonwealth of proving every element of the crime, including malice, beyond a reasonable doubt.

Every reference to the inference of malice was in permissive terms. The jury was repeatedly directed to look at all the circumstances which precede or attend a killing in determining whether malice existed. The defendant presented no evidence. 365 N.E.2d at 824. The circumstances referred to were necessarily those revealed by the Commonwealth's evidence.

The language which requires the most careful scrutiny occurs in the passages of the instructions in which the trial judge refers to "circumstances which will rebut the presumption of malice and reduce the character of that unlawful killing from murder to manslaughter . . ." (Tr. 9-92, 9-95, 96). Again, on two occasions, the trial judge said that malice may be inferred, "unless by the circumstances the jury considers that it has been disproved." These phrases, standing alone, would in my opinion be very likely to leave a jury with the impression that if an unlawful and intentional killing (or the use of a dangerous weapon) were proved, the inference of malice would stand unless overcome by proof at some quantifiable level. In these instructions, however, this language is buried in repeated, careful and exemplary descriptions of a permissive inference. In the context of this case, moreover, wherein the defendant offered no evidence at all, the fair reading of the instructions is that the "disproof" is to be found in the government's evidence. No burden is thus placed on the defendant.³

I am satisfied that the charge read as a whole,⁴ fairly presented the jury with a choice to either accept or reject an inference of malice upon proof of an unlawful, intentional killing after considering all of the circumstances revealed by the Commonwealth's evidence. It expressly relieved the defendant of any burden of proof, in marked contrast to the instructions denounced in Mullaney v. Wilbur, supra, as set out in Wilbur v. Robbins, 349 F.Supp. 149,...