McInerney v. Berman

• Decision Date: 08 May 1980
• Docket Number: No. 79-1371,79-1371
• Citation: 621 F.2d 20
• Parties: Thomas F. McINERNEY, Petitioner, v. Louis BERMAN and Francis X. Bellotti, Respondents.
• Court: U.S. Court of Appeals — First Circuit

Page 20

621 F.2d 20

Thomas F. McINERNEY, Petitioner, v. Louis BERMAN and Francis X. Bellotti, Respondents.

No. 79-1371.

United States Court of Appeals,

First Circuit.

Argued Dec. 6, 1979.

Decided May 8, 1980.

Stephen L. Saltonstall, Boston, Mass., with whom Norman S. Zalkind, Boston, Mass., was on brief, for petitioner.

Roberta Thomas Brown, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., and Stephen R. Delinsky, Asst. Atty. Gen., Chief, Crim. Bureau, Boston, Mass., were on brief, for respondents.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

This is an appeal from the denial of a habeas corpus petition brought by Thomas McInerney, a Massachusetts state prisoner serving a life sentence for second degree murder. ¹ Petitioner claims that the trial judge's instructions to the jury impermissibly shifted the burden of proof to him, violating his right to due process. We find no denial of due process and affirm the judgment of the district court, 473 F.Supp. 187.

On the evening of August 15, 1974, petitioner and the victim, Cynthia Hartford, previously strangers, met at a Boston bar, where they drank and spent the evening together until closing time. At the victim's suggestion, they went to her apartment, where they had more alcohol and attempted to have intercourse. When the petitioner's impotency prevented consummation, the victim began to laugh at him. He told her to stop and slapped her. She began to scream and he put his hand over her mouth, grabbed a piece of twine lying nearby and strangled her.

At the close of the state murder trial, the judge gave a lengthy and comprehensive set of instructions to the jury. It was instructed generally on the burden of proof, presumption of innocence, and in detail on the differing elements of the various verdicts it could bring in. ² In the course of instructing on the element of malice, essential for a murder conviction, the judge advised the jurors of their right to draw a presumption or inference ³ of malice from proof of intentional use of a deadly weapon. Since the references to this presumption are the crux of this petition, we reproduce in the margin the portions of the charge containing such language. ⁴ Mindful that the challenged portions must be read in the context of the entire charge, Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973), we include the relevant surrounding portions that petitioner does not challenge. The challenged portions are italicized.

Petitioner argues that the instructions as to the presumption of malice operated to shift the burden of proof from the prosecution, relieving it of proving an essential element of the crime of murder. The Supreme Court recently announced the following standard in testing the propriety of a jury charge: "whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction." Sandstrom v. Montana, 442 U.S. 510, 514, 99 S.Ct. 2450, 2454, 61 L.Ed.2d 39 (1979).

Our analysis of the charge requires us first to determine whether the presumption is permissive or mandatory. County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). A permissive presumption allows but does not require the jury to infer the presumed fact upon proof by the prosecution of the "evidentiary" or predicate fact. Id. at 157, 99 S.Ct. at 2224. The use of a permissive presumption is constitutional if there is a rational connection between the predicate and presumed facts. Id. at 157, 99 S.Ct. at 2224. See also Barnes v. United States, 412 U.S. 837, 841, 93 S.Ct. 2357, 2360, 37 L.Ed.2d 380 (1973); Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1244, 87 L.Ed. 1519 (1943).

A mandatory presumption is of either the conclusive or burden-shifting variety. An instruction from the judge that proof of one fact is irrebuttable proof of a presumed fact is conclusive. A presumption that shifts the burden of proof to the defendant can be recognized by language that instructs the jury that proof of the predicate implies proof of the presumed fact unless disproved by the defendant himself by a preponderance of the evidence. Sandstrom v. Montana, supra, 442 U.S. at 516, 99 S.Ct. at 2455. A mandatory presumption which shifts the burden of persuasion by requiring the defendant to establish affirmatively the negative of an element of the offense is unconstitutional. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). However, a permissive presumption which allows but does not require the jury to find that the prosecution has met its burden as to the inferred fact on proof of the predicate fact at the most shifts the burden of production to the defendant, which is not per se a violation of due process. Id. at 702-3 n.31, 95 S.Ct. at 1891 n.31. The presumption must then meet the rational-connection test in order to survive constitutional scrutiny. See Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380; Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519.

The language used in the charge gave the jury the right to make inferences, but imposed no obligation on it to do so. The jury was advised that it might infer malice from the intentional use of a deadly weapon, but that all of the circumstances attending the killing ought to be considered. It was not instructed that a presumption of malice arose as a matter of law from the use of a deadly weapon, nor was it told that the defendant had the burden of rebutting such presumption.

Following the Sandstrom reasonable-juror's-interpretation test, however, it is necessary to determine whether this permissive presumption could have reasonably been interpreted by the jury as shifting the burden of proof to the defendant to prove his lack of malice. In making this determination, we must still be guided by the holding in Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368, which requires us to look at the charge as a whole. See United States v. Thomann, 609 F.2d 560, 565 (1st Cir. 1979). Reading Sandstrom and Cupp together, the question becomes whether a reasonable juror could have interpreted the instruction on the inference of malice in an impermissible way regardless of the surrounding instructions and the charge read in its entirety. A reasonable juror can be expected to listen to all he/she is told by the judge and it will be presumed that he/she will not isolate a particular portion of the charge and ascribe to it more importance than the rest. This is especially so where, as here, the judge explicitly cautioned the jury not to be influenced by how much or how little time he devoted in his charge to any particular instruction.

The only portion of the charge that might suggest a persuasion-shifting presumption is the following language:

When a killing is caused by the intentional use of a deadly weapon, malice may be inferred, unless by the circumstances the jury considers that it has been disproved. . . . An intentional killing does carry with it the presumption of malice aforethought but the circumstances which precede and accompany the intentional killing may be such as to rebut the presumption of malice and reduce the crime, therefore, to manslaughter.

At the outset of this analysis, we note that, like the inference of knowledge from unexplained possession of stolen goods in Barnes v. United States, supra, "we deal with a traditional common-law inference deeply rooted in our law." 412 U.S. at 843, 93 S.Ct. at 2362. "It has long been recognized in this Commonwealth that malice may be inferred from the intentional use of a deadly weapon." Commonwealth v. Gagne, 367 Mass. 519, 326 N.E.2d 907, 909 (1975) (citations omitted).

The offending language in Sandstrom began, "the law presumes." Nowhere in the challenged part of the instruction in this case does there appear similar language. Rather, the judge used the words "you may make an inference," "malice could be inferred" (emphasis added). Even where the judge's language is ambiguous as to how a presumption operates, he couched it in terms of the jury's duty to look at all the circumstances surrounding the killing which might rebut any presumption of malice. See note 4, supra. We think that reasonable jurors, having been instructed repeatedly that the Commonwealth must prove its case by proving every element of the offense beyond a reasonable doubt, would have properly understood the instructions on presumptions to mean that they could use inferences from the facts surrounding the killing that common sense and experience made appropriate in deciding whether the prosecution had proved its case of murder.

The jury was, in effect, instructed that it was to do what every jury has the right and sworn duty to do find facts based on proof and on reasonable inferences from proven facts. See Gagne v. Meachum, 602 F.2d 471, 473-4 (1st Cir. 1979). The reasonable juror could not have understood "may" to mean "shall," ignored the rest of the cautionary instructions in the charge and focused solely on a small portion of it in which the presumption of malice from intentional use of a deadly weapon was discussed. This is not a case where the jury was instructed that...