473 F.Supp. 187 (D.Mass. 1979), Civ. A. 78-1159, McInerney v. Berman

Docket Nº:Civ. A. 78-1159
Citation:473 F.Supp. 187
Party Name:McInerney v. Berman
Case Date:June 27, 1979
Court:United States District Courts, 1st Circuit, District of Massachusetts

Page 187

473 F.Supp. 187 (D.Mass. 1979)

Thomas F. McINERNEY, Petitioner,


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.

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Correctional Legal Services, Boston, Mass., for petitioner.

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


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, 442 U.S. 140, 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, 442 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

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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, 442 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...

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