In 1981, a
woman was stabbed to death when Dale Yates and
an accomplice held up a store in Tigerville, in
the northwestern corner of South Carolina.
Though the other man was the actual killer,
Yates was also convicted of murder by a jury in
Greenville County and sentenced to die in the
Yates is serving a
life sentence in South Carolina for the stabbing death of a woman he
Strangely, although he may
disagree, Yates is not the victim of some terrible injustice and his
case has three times been argued before the United States Supreme Court.
As a result of the last high court decision, he was moved off South
Carolina’s Death Row. His story highlights the curious twists of fate
that can result from the legal concepts of accomplice liability and
For several weeks, Yates, Henry
Davis and another man drove around Greenville County, South Carolina
looking for a place to rob. At first, all the group wanted to do was to
burglarize some businesses, “sell the stuff and get some money.”
The problem was, according to Yates’s own testimony at trial, they
“weren’t having too much luck” at finding a place to burglarize because
“a lot of the places had burglar alarms and . . . taped glasses and
windows and such.”
The frustrated burglars decided
that armed robbery was probably the way to go and they firmed up their
plans to commit their crime of violence on Thursday, February 12, 1981.
Yates recalled at his trial that
Davis mentioned he had a knife, but Yates decided that wasn’t
“We decided that we would need a
gun to persuade whoever was behind the counter to give us the money,” he
testified, adding that he later procured a handgun from his brother.
The trio spent most of the next
day looking for a suitable victim, but finding none, the third man asked
to be dropped off at a local mall where his girlfriend worked. He told
Davis and Yates to return about 5 p.m. and they would renew their
Yates and Davis, however, happened
upon Wood’s Grocery in Greenville, S.C., and opted to proceed without
their third member. The two robbers entered the store and found Willie
Wood standing behind the counter, apparently alone in the store. They
confronted the storekeeper and demanded that he empty the cash register,
which Willie did, placing the approximately $3,000 cash on the counter.
Davis demanded that Willie bend
over the counter, which he refused to do and instead the store owner
took a step back and reached into his coat for his own handgun. Davis
yelled for Yates to shoot.
Yates fired twice at Willie, who,
putting his hands up in a defensive posture, received a shot through his
hand that grazed his chest. The other shot missed.
Helen Wood, a postmistress, hearing the noise, came out from her office
adjoining the store and shouted, “What’s going on out there?”
Spooked, Yates shouted to Davis,
“Let’s go!” ran out of the store and jumped into the passenger side of
the getaway car.
Davis, however, was grabbed by
Willie Wood and the two men began wrestling.
“He was on my back when we ended at the end of the counter before we got
out into the aisle,” Willie Wood testified. “I watched him because he
came around the counter and started after me. And I know’d he was going
to stab me in the back.”
Wood testified that no sooner was
Davis on his back than his mother arrived and attempted to grab him and
pull him off.
Wood managed to get the gun out
and “started shooting [at Davis] and just pushing him on back until he
couldn’t go no further against the shoe boxes there. The last shot I
fired, he hollered and hit the floor and the knife fell out of his
As soon as Davis fell, Willie Wood
noticed that his mother was on her hands and knees and she said “I
believe I am dying.” and blood appeared to be spurting out of her heart.
Helen Wood and Davis each died of their injuries.
Yates testified that he ran out of
the store and around the front of the car to the passenger side where he
opened the door and got in. After moments passed and Davis did not come
out, Yates testified that he thought, “‘Well, he caught Henry. He
grabbed Henry. No use me staying here and getting caught.’ So, I jumped
over under the wheel, put the car in drive, and left.”
Before Yates was able to escape
the vicinity, his vehicle was noticed by officers of the Greenville
County Sheriff’s Department who finally stopped Yates after a high speed
chase. After stopping his vehicle at the end of the high speed chase,
Yates ran with the pistol and money in hand. He ran into some nearby
woods where he was apprehended.
Although he killed no one, the State prosecuted him for murder as an
accomplice, relying on a theory of accomplice liability because South
Carolina does not have a felony-murder statute.
Under South Carolina law, “where
two persons combine to commit an unlawful act, and in execution of the
criminal act, a homicide is committed by one of the actors as a probable
or natural consequence of those acts [sic], all present participating in
the unlawful act are as guilty as the one who committed the fatal act.”
State v. Johnson, 291 S.C. 127.
In charging the jurors on the
issue of malice in this case, the trial judge
instructed them on two mandatory presumptions, each of which the Supreme
Court of South Carolina has since held to be unconstitutional. The jury
was told that “malice is implied or presumed” from the “willful,
deliberate, and intentional doing of an unlawful act” and from the “use
of a deadly weapon.”
The presumption on the use of a
deadly weapon in this case was qualified with the instruction that “when
the circumstances surrounding the use of that deadly weapon have been
put in evidence and testified to, the presumption is removed.”
Following the instructions of the court on malice and accomplice
liability, the jury returned guilty verdicts on the murder charge and on
all the other counts in the indictment. The Supreme Court of South
Carolina affirmed the conviction.
However, the court fight was just
beginning. Yates sought a writ of habeas corpus
from the State Supreme Court, asserting that the jury charge “that
malice is implied or presumed from the use of a deadly weapon” was an
unconstitutional burden-shifting instruction both under state precedent,
and under a U.S. Supreme Court decision in Sandstrom v. Montana,
442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979).
While the state
habeas petition was pending, the Supreme Court delivered another opinion
on unconstitutional burden-shifting jury instructions, Francis v.
Franklin, 471 U.S. 307, 85 L. Ed. 2d 344, 105 S. Ct. 1965 (1985).
Although Yates brought this decision to the attention of the state
court, it denied relief without opinion, and he sought certiorari with
the U.S. Supreme Court. It granted the writ, vacated the judgment of the
Supreme Court of South Carolina, and remanded the case for further
consideration in light of Francis.
On remand, the State Supreme Court
found the jury instruction unconstitutional, but denied relief on the
ground that its decision in State v. Elmore, was not to be
applied retroactively. Yates again sought cert review, and again the
Supremes granted certiorari “out of concern that the State Supreme Court
had not complied with the mandate to reconsider its earlier decision in
light of Francis v. Franklin”
On the second remand, the Supreme Court of South Carolina stated it was
“acquiescing in the conclusion that the trial judge’s charge on implied
malice constituted an improper mandatory presumption.” The court found
“two erroneous charges regarding implied malice. Despite this
determination that two jury instructions were unconstitutional, the
State Supreme Court again denied relief after a majority of three
justices found the instructions to have been harmless
Yates went back the nation’s
highest court for a third time (actually fourth, because the Supremes
declined to review his conviction on direct appeal). The Supreme Court
agreed to hear the case again.
“Because the Supreme Court of
South Carolina appeared to have applied the wrong standard for
determining whether the challenged instructions were harmless error, and
to have misread the record to which the standard was applied, we granted
certiorari to review this case a third time,” Justice Souter wrote.
When all was
said and done, the Supremes remanded back to the state and Yates’s death
sentence was vacated. He remains in prison convicted of murder,
attempted murder and armed robbery.
500 U.S. 391
111 S.Ct. 1884
114 L.Ed.2d 432
Dale Robert YATES
Parker EVATT, Commissioner, South Carolina Department of Corrections, et
Argued Jan. 8, 1991.
Decided May 28, 1991.
delivered the opinion of the Court, in which REHNQUIST, C.J., and
WHITE, MARSHALL, STEVENS, O'CONNOR, and KENNEDY, JJ., joined, in all
but Part III of which BLACKMUN, J., joined, and in all but footnote
6 and Part III of which SCALIA, J., joined. SCALIA, J., filed an
opinion concurring in part and concurring in the judgment, in Part B
of which BLACKMUN, J., joined.
David I. Bruck, Columbia, S.C.,
Miller W. Shealy, Jr., Columbia,
S.C., for respondents.
Justice SOUTER delivered the
opinion of the Court.
This murder case
comes before us for the third time, to review a determination by the
Supreme Court of South Carolina that instructions allowing the jury
to apply unconstitutional presumptions were harmless error. We hold
that the State Supreme Court employed a deficient standard of review,
find that the errors were not harmless, and reverse.
Robert Yates, and an accomplice, Henry Davis, robbed a country store
in Greenville County, South Carolina. After shooting and wounding
the proprietor, petitioner fled. Davis then killed a woman before he
was shot to death by the proprietor. Petitioner was arrested soon
after the robbery and charged with multiple felonies.
Although he killed no one, the State prosecuted him for murder as an
The trial record
shows that for some time petitioner and Davis had planned to commit
a robbery and selected T.P. Wood's Store in Greenville as an easy
target. After parking Davis' car outside, they entered the store,
petitioner armed with a handgun and Davis with a knife. They found
no one inside except the proprietor, Willie Wood, who was standing
behind the counter.
Davis brandished their weapons, and petitioner ordered Wood to give
them all the money in the cash register. When Wood hesitated, Davis
repeated the demand. Wood gave Davis approximately $3,000 in cash.
Davis handed the money to petitioner and ordered Wood to lie across
the counter. Wood, who had a pistol beneath his jacket, refused and
stepped back from the counter with his hands down at his side.
Petitioner meanwhile was backing away from the counter toward the
entrance to the store, with his gun pointed at Wood.
Davis told him to
shoot. Wood raised his hands as if to protect himself, whereupon
petitioner fired twice. One bullet pierced Wood's left hand and tore
a flesh wound in his chest, but the other shot missed. Petitioner
then screamed, "Let's go," and ran out with the money. App. 57. He
jumped into Davis' car on the passenger side and waited. When Davis
failed to emerge, petitioner moved across the seat and drove off.
Inside the store, Wood, though
wounded, ran around the counter pursued by Davis, who jumped on his
back. As the two struggled, Wood's mother, Helen Wood, emerged from
an adjacent office. She screamed when she saw the scuffle and ran
toward the two men to help her son. Wood testified that his mother "reached
her left arm around and grabbed [Davis]. So, all three of us
stumbled around the counter, out in the aisle." Id., at 19.
During the struggle, Mrs. Wood was
stabbed once in the chest and died at the scene within minutes.
Wood managed to remove the pistol from under his jacket and fire
five shots at Davis, killing him instantly.
The police arrested
petitioner a short while later and charged him as an accomplice to
the murder of Mrs. Wood. Under South Carolina law, "where two
persons combine to commit an unlawful act, and in execution of the
criminal act, a homicide is committed by one of the actors as a
probable or natural consequence of those acts [sic], all
present participating in the unlawful act are as guilty as the one
who committed the fatal act." State v. Johnson, 291 S.C. 127,
129, 352 S.E.2d 480, 482 (1987).
Petitioner's primary defense to
the murder charge was that Mrs. Wood's death was not the probable or
natural consequence of the robbery he had planned with Davis.
Petitioner testified that he had brought a weapon with him only to
induce the store owner to empty the cash register, and that neither
he nor Davis intended to kill anyone during the robbery.
App. 37, 42-44, 49, 77-78.
The prosecution's case for murder
rested on petitioner's agreement with Davis to commit an armed
robbery. From this the State argued they had planned to kill any
witnesses at the scene, and had thereby rendered homicide a probable
or natural result of the robbery, in satisfaction of the requirement
for accomplice liability.
In his closing argument to the
jury, the prosecutor asserted that petitioner and Davis had planned
to rob without leaving "any witnesses in the store." They entered
the store "with the idea of stabbing the proprietor to death; a
quiet killing, with the [petitioner's] pistol as a backup."
As a result of this agreement, the
prosecutor concluded, "[i]t makes no difference who actually struck
the fatal blow, the hand of one is the hand of all." Id., at
89. The prosecutor also addressed the required element of malice. "Mr.
Yates," he argued, "is equally guilty. The malice required was in
his heart," making him guilty of murder even though he did not
actually kill the victim. Id., at 83.
The trial judge
charged the jury that murder under South Carolina law "is the
unlawful killing of any human being with malice aforethought either
express or implied." Id., at 95. The judge continued:
"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 any 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, from depravity, from a depraved
spirit, from a heart devoid of social duty, and fatally bent on
creating mischief. The words 'express' or '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 other circumstances which show
directly that an intent to kill was really and actually entertained.
"Malice may also be implied as
where, although no expressed intention to kill was proved by direct
evidence, it is indirectly and necessarily inferred from facts and
circumstances which are, themselves, proved. Malice is implied or
presumed by the law from the willful, deliberate, and intentional
doing of an unlawful act without any just cause or excuse. In its
general signification, malice means the doing of a wrongful act,
intentionally, without justification or excuse.
"I tell you, however, that if the
facts proven are sufficient to raise a presumption of malice, that
presumption is rebuttable, that is, it is not conclusive on you, but
it is rebuttable by the rest of the evidence. I tell you, also, that
malice is implied or presumed from the use of a deadly weapon. I
further tell you that when the circumstances surrounding the use of
that deadly weapon have been put in evidence and testified to, the
presumption is removed. And it ultimately remains the responsibility
for you, ladies and gentlemen, under all the evidence to make a
determination as to whether malice existed in the mind and heart of
the killer at the time the fatal blow was struck." Id., at
The judge went on to instruct the
jury on the theory of accomplice liability. The jury returned guilty
verdicts on the murder charge and on all the other counts in the
Supreme Court of South Carolina affirmed the conviction, and we
denied certiorari. State v. Yates, 280 S.C. 29, 310 S.E.2d
805 (1982), cert. denied, 462 U.S. 1124, 103 S.Ct. 3098, 77 L.Ed.2d
thereafter sought a writ of habeas corpus from the State Supreme
Court, asserting that the jury charge "that malice is implied or
presumed from the use of a deadly weapon" was an unconstitutional
burden-shifting instruction both under state precedent, State v.
Elmore, 279 S.C. 417, 308 S.E.2d 781 (1983), and under our
decision in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct.
2450, 61 L.Ed.2d 39 (1979). While the state habeas petition was
pending, we delivered another opinion on unconstitutional burden-shifting
jury instructions, Francis v. Franklin, 471 U.S. 307, 105
S.Ct. 1965, 85 L.Ed.2d 344 (1985).
Although petitioner brought this
decision to the attention of the state court, it denied relief
without opinion, and petitioner sought certiorari here. We granted
the writ, vacated the judgment of the Supreme Court of South
Carolina and remanded the case for further consideration in light of
Francis. Yates v. Aiken, 474 U.S. 896, 106 S.Ct. 218, 88 L.Ed.2d
On remand, the
State Supreme Court found the jury instruction unconstitutional, but
denied relief on the ground that its decision in State v. Elmore,
supra, was not to be applied retroactively. Petitioner again
sought review here, and again we granted certiorari, Yates v.
Aiken, 480 U.S. 945, 107 S.Ct. 1601, 94 L.Ed.2d 788 (1987), out
of concern that the State Supreme Court had not complied with the
mandate to reconsider its earlier decision in light of Francis v.
Franklin, supra. Yates v. Aiken, 484 U.S. 211, 214, 108 S.Ct.
534, 536, 98 L.Ed.2d 546 (1987).
In an opinion by Justice STEVENS,
we unanimously held the state court had erred in failing to consider
the retroactive application of Francis. We then addressed
that question and held that Francis was merely an application
of the principle settled by our prior decision in Sandstrom v.
Montana, supra, and should, for that reason, be applied
retroactively in petitioner's habeas proceeding.
We accordingly reversed the
judgment of the State Supreme Court and remanded for further
proceedings not inconsistent with our opinion. Yates v. Aiken,
484 U.S., at 218, 108 S.Ct., at 538.
On the second
remand, the Supreme Court of South Carolina stated that it was "[a]cquiescing
in the conclusion that the trial judge's charge on implied malice
constituted an improper mandatory presumption." --- S.C. ---, ---,
391 S.E.2d 530, 531 (1989). On reviewing the record, the court found
"two erroneous charges regarding implied malice. First, the trial
judge charged the 'willful, deliberate, and intentional doing of an
unlawful act without any just cause or excuse' [implied malice].
Second, he charged: 'malice is implied or presumed from the use of a
deadly weapon'. . . ." Id., at ---, 391 S.E.2d, at 532.
Despite this determination that
two jury instructions were unconstitutional, the State Supreme Court
again denied relief after a majority of three justices found the
instructions to have been harmless error. The court described its
enquiry as one to determine "whether it is beyond a reasonable doubt
that the jury would have found it unnecessary to rely on the
erroneous mandatory presumption regarding the element of malice."
The court then stated that on "the
facts of this case, as charged by the trial judge, the element of
malice relied on by the State is that of the killer, Henry Davis."
Reviewing the facts, the court stated that "Davis lunged at
Mrs. Wood with his knife [and] Mrs. Wood fell to the floor from
knife wounds in her chest and died within moments." Id.,
at --- - ---, 391 S.E.2d, at 531-532 (emphasis supplied).
The court described the crime as
"Henry Davis's brutal multiple stabbing of Mrs. Wood," and
held "beyond a reasonable doubt [that] the jury would have found it
unnecessary to rely on either erroneous mandatory presumption in
concluding that Davis acted with malice in killing Mrs. Wood." Id.,
at ---, 391 S.E.2d, at 532 (emphasis supplied). The state court gave
no citation to the record for its description of Mrs. Wood's death
as resulting from a multiple stabbing and multiple wounds.
The remaining two
justices on the State Supreme Court dissented. After first
expressing doubt that this Court's mandate authorized them to review
for harmless error, id., at ---, 391 S.E.2d, at 534, the
dissenters disagreed that the erroneous jury instructions were
harmless. They found that the trial judge "failed to articulate that
the jury must find the killer acted with malicious intent."
Following this error, "the jury
could have mistakenly inferred from the confusing instructions that
the intent required in order to prove murder was that of Yates
because he carried a gun. The unconstitutional instruction which
allowed the jury to presume intent . . . would have eclipsed Yates'
defense of withdrawal, and prejudiced his right to a fair trial."
Id., at --- - ---, 391 S.E.2d, at 534-535.
Because the Supreme Court of South
Carolina appeared to have applied the wrong standard for determining
whether the challenged instructions were harmless error, and to have
misread the record to which the standard was applied, we granted
certiorari to review this case a third time. 498 U.S. ----, 111 S.Ct.
41, 112 L.Ed.2d 18 (1990).
This Court held in
Sandstrom v. Montana, supra, 442 U.S., at 513, 524, 99 S.Ct.,
at 2453, 2459, that a jury instruction stating that " 'the law
presumes that a person intends the ordinary consequences of his
voluntary acts' " violated the requirement of the Due Process Clause
that the prosecution prove each element of a crime beyond a
reasonable doubt. See In re Winship, 397 U.S. 358, 90 S.Ct.
1068, 25 L.Ed.2d 368 (1970).
We applied this
principle in Francis v. Franklin, 471 U.S. 307, 105 S.Ct.
1965, 85 L.Ed.2d 344 (1985), to instructions that the " 'acts of a
person of sound mind and discretion are presumed to be the product
of the person's will' " and that a person " 'is presumed to intend
the natural and probable consequences of his acts.' " Id., at
316-318, 105 S.Ct., at 1972-73. (emphasis omitted). Although the
jury had been told that these presumptions were rebuttable, we held
them to be as pernicious in this context as conclusive presumptions
because they shifted the burden of proof on intent to the defendant. Ibid.
In charging the
jurors on the issue of malice in this case, the trial judge
instructed them on two mandatory presumptions, each of which the
Supreme Court of South Carolina has since held to be
unconstitutional under Sandstrom and Francis. The jury
was told that "malice is implied or presumed" from the "willful,
deliberate, and intentional doing of an unlawful act" and from the
"use of a deadly weapon."
With respect to the unlawful act
presumption, the jury was told that the "presumption is rebuttable,
that is, it is not conclusive on you, but it is rebuttable by the
rest of the evidence." App. 96. Following the description of the
deadly weapon presumption, the jurors were told that it was their
responsibility "under all the evidence to make a determination as to
whether malice existed in the mind and heart of the killer."
We think a reasonable juror would
have understood the unlawful act presumption to mean that upon
introduction of evidence tending to rebut malice, the jury should
consider all evidence bearing on the issue of malice, together with
the presumption, which would still retain some probative
A reasonable juror would have
understood the deadly weapon presumption to mean that its probative
force should be considered along with all other evidence tending to
prove or disprove malice. Although the presumptions were rebuttable
in these ways, the mandate to apply them remained,
as did their tendency to shift the burden of proof on malice from
the prosecution to petitioner.
Respondents do not challenge the
conclusion of the Supreme Court of South Carolina that each
presumption violated Sandstrom and Francis, and the
constitutionality of neither one is in issue.
that the instructions were constitutionally erroneous, the Supreme
Court of South Carolina correctly treated them as subject to further
review for harmless error, consistently with Rose v. Clark,
478 U.S. 570, 582, 106 S.Ct. 3101, 3108, 92 L.Ed.2d 460 (1986), in
which we held that the taint of an unconstitutional burden-shifting
jury instruction may be harmless, citing Chapman v. California,
386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
The Chapman test is whether
it appears "beyond a reasonable doubt that the error complained of
did not contribute to the verdict obtained." Id., at 24, 87
S.Ct., at 828; see ibid. (requirement that harmlessness of
federal constitutional error be clear beyond reasonable doubt
embodies standard requiring reversal if " 'there is a reasonable
possibility that the evidence complained of might have contributed
to the conviction' ") (quoting Fahy v. Connecticut, 375 U.S.
85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963)); Arizona v.
Fulminante, 499 U.S. ----, ----, 111 S.Ct. 1246, 1257, 113 L.Ed.2d
302 (1991) (confession is harmless error if it "did not contribute
to [the defendant's] conviction"); Delaware v. Van Arsdall,
475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986) (Chapman
excuses errors that were " 'harmless' in terms of their effect on
the factfinding process at trial").
To say that an
error did not "contribute" to the ensuing verdict is not, of course,
to say that the jury was totally unaware of that feature of the
trial later held to have been erroneous. When, for example, a trial
court has instructed a jury to apply an unconstitutional presumption,
a reviewing court can hardly infer that the jurors failed to
consider it, a conclusion that would be factually untenable in most
cases, and would run counter to a sound presumption of appellate
practice, that jurors are reasonable and generally follow the
instructions they are given. See Richardson v. Marsh, 481 U.S.
200, 211, 107 S.Ct. 1702, 1709, 95 L.Ed.2d 176 (1987) ("rule that
juries are presumed to follow their instructions is a pragmatic one,
rooted less in the absolute certitude that the presumption is true
than in the belief that it represents a reasonable practical
accommodation of the interests of the state and the defendant").
To say that an error did not
contribute to the verdict is, rather, to find that error unimportant
in relation to everything else the jury considered on the issue in
question, as revealed in the record.
Thus, to say that an instruction
to apply an unconstitutional presumption did not contribute to the
verdict is to make a judgment about the significance of the
presumption to reasonable jurors, when measured against the other
evidence considered by those jurors independently of the presumption.
such a judgment, a court must take two quite distinct steps. First,
it must ask what evidence the jury actually considered in reaching
its verdict. If, for example, the fact presumed is necessary to
support the verdict, a reviewing court must ask what evidence the
jury considered as tending to prove or disprove that fact.
Did the jury look at only the predicate facts, or did it consider
other evidence bearing on the fact subject to the presumption?
In answering this question, a
court does not conduct a subjective enquiry into the jurors' minds.
The answer must come, instead, from analysis of the instructions
given to the jurors and from application of that customary
presumption that jurors follow instructions and, specifically, that
they consider relevant evidence on a point in issue when they are
told that they may do so.
Once a court has made the first
enquiry into the evidence considered by the jury, it must then weigh
the probative force of that evidence as against the probative force
of the presumption standing alone. To satisfy Chapman's
reasonable doubt standard, it will not be enough that the jury
considered evidence from which it could have come to the verdict
without reliance on the presumption.
Rather, the issue under Chapman
is whether the jury actually rested its verdict on evidence
establishing the presumed fact beyond a reasonable doubt,
independently of the presumption.
Since that enquiry cannot be a
subjective one into the jurors' minds, a court must approach it by
asking whether the force of the evidence presumably considered by
the jury in accordance with the instructions is so overwhelming as
to leave it beyond a reasonable doubt that the verdict resting on
that evidence would have been the same in the absence of the
presumption. It is only when the effect of the presumption is
comparatively minimal to this degree that it can be said, in
Chapman's words, that the presumption did not contribute to the
of the harmless-error test to an erroneous presumption thus requires
an identification and evaluation of the evidence considered by the
jury in addition to the presumption itself, we need to say a word
about an assumption made in many opinions applying the Chapman
rule, which state that the harmlessness of an error is to be judged
after a review of the entire record. See, e.g., Delaware v. Van
Arsdall, supra, 475 U.S., at 681, 106 S.Ct., at 1436 ("[A]n
otherwise valid conviction should not be set aside if the reviewing
court may confidently say, on the whole record, that the
constitutional error was harmless beyond a reasonable doubt");
United States v. Hasting, 461 U.S. 499, 509, n. 7, 103 S.Ct.
1974, 1981, n. 7, 76 L.Ed.2d 96 (1983) ("Chapman mandates
consideration of the entire record prior to reversing a conviction
for constitutional errors that may be harmless").
That assumption is simply that the
jury considered all the evidence bearing on the issue in question
before it made the findings on which the verdict rested. If, on the
contrary, that assumption were incorrect, an examination of the
entire record would not permit any sound conclusion to be drawn
about the significance of the error to the jury in reaching the
This point must always be kept in
mind when reviewing erroneous presumptions for harmless error,
because the terms of some presumptions so narrow the jury's focus so
as to leave it questionable that a reasonable juror would look to
anything but the evidence establishing the predicate fact in order
to infer the fact presumed.
When applying a harmless-error
analysis in presumption cases, therefore, it is crucial to ascertain
from the trial court's instructions that the jurors, as reasonable
persons, would have considered the entire trial record, before
looking to that record to assess the significance of the erroneous
The Supreme Court
of South Carolina failed to apply the proper harmless-error standard
to the rebuttable presumptions at issue in this case. As a threshold
matter, the State Supreme Court did not undertake any explicit
analysis to support its view of the scope of the record to be
considered in applying Chapman. It is even more significant,
however, that the state court did not apply the test that Chapman
Instead, the court
employed language taken out of context from Rose v. Clark,
478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), and sought
merely to determine whether it was beyond a reasonable doubt that
the jury "would have found it unnecessary to rely" on the
Enquiry about the necessity for
reliance, however, does not satisfy all of Chapman's concerns.
It can tell us that the verdict could have been the same without the
presumptions, when there was evidence sufficient to support the
verdict independently of the presumptions' effect.
But the enquiry will not tell us
whether the jury's verdict did rest on that evidence as well as on
the presumptions, or whether that evidence was of such compelling
force as to show beyond a reasonable doubt that the presumptions
must have made no difference in reaching the verdict obtained.
Because the State Supreme Court's standard of review apparently did
not take these latter two issues into consideration, reversal is
Although our usual
practice in cases like this is to reverse and remand for a new
determination under the correct standard, we have the authority to
make our own assessment of the harmlessness of a constitutional
error in the first instance. See Rose v. Clark, supra, 478
U.S., at 584, 106 S.Ct., at 3109. Because this case has already been
remanded twice, once for harmless-error analysis, we think we would
serve judicial economy best by proceeding now to determine whether
the burden-shifting jury instructions were harmless.
We begin by turning to the State's
domestic law of accomplice murder and the elements it entails. The
State Supreme Court in this case decided that the trial judge "correctly
and precisely" charged the jury on "the common law rule of murder,"
which required proof of malice.
State v. Yates, 280 S.C., at 38, 310 S.E.2d, at 810.
Petitioner was charged as an
accomplice to the alleged murder of Mrs. Wood by Davis, and the
state court determined that on "the facts of this case, as charged
by the trial judge, the element of malice relied on by the State is
that of the killer, Henry Davis." --- S.C., at ---, 391 S.E.2d, at
In light of the
fact that the Supreme Court of South Carolina has approved the trial
judge's jury instructions, we will accept his charge on malice as
the proper statement of South Carolina law on the subject. The trial
judge told the jury that malice is the equivalent of an "intention
to kill," without legal justification or excuse.
There is no question that either
presumption on malice could have been employed by the jury in
reaching its verdict. The evidence showed clearly that Davis used a
deadly weapon, a knife, and intended to commit, and did commit, an
unlawful act without legal justification, not only armed robbery,
but the killing itself.
The first step in determining
whether these instructions contributed to the jury's verdict is to
determine what evidence the jury considered on the issue of intent,
independently of the presumptions themselves. The record reveals
some evidence rebutting malice, including petitioner's testimony
that neither he nor Davis intended to kill anyone. This left the
jury free to look beyond the unlawful act presumption and to
consider all the evidence on malice.
The jury can reasonably be
expected to have done so. Likewise, under the deadly weapon
presumption, as we have construed it, the jury was instructed to
consider all the evidence, not just the presumption itself. Since we
can thus infer with confidence that the jury considered all the
evidence tending to prove or disprove Davis' intent to kill, it is
correct simply to follow the general rule of the post-Chapman
cases that the whole record be reviewed in assessing the
significance of the errors.
An examination of the entire
record reveals that as to Willie Wood, there was clear evidence of
Davis' intent to kill: instead of leaving the store when he could
have, Davis pursued Wood with a deadly weapon in his hand and
attacked Wood by jumping on his back.
This evidence was enhanced by the
fact that Davis had at least two reasons to kill Wood. He could have
thought it necessary to avoid being himself killed or injured by
Wood, and he also could have thought it necessary to avoid being
identified by Wood to the police.
As probative as
this was of Davis' intent to kill Wood, however, there was nothing
in the instructions that allowed the jurors to consider this
evidence in assessing Davis' intent to kill Wood's mother.
Application of a theory of
transferred intent would, of course, have allowed the jury to equate
Davis' malice in accosting Willie Wood with malice in the killing of
Mrs. Wood. See 2 C. Torcia, Wharton's Criminal Law § 144 (14th ed.
1979) ("Under the common-law doctrine of transferred intent, a
defendant, who intends to kill one person but instead kills a
bystander, is deemed the author of whatever kind of homicide would
have been committed had he killed the intended victim"); American
Law Institute, Model Penal Code § 2.03(2) (1985). But the jury was
not charged on a theory of transferred intent, and we are therefore
barred from treating evidence of intent to kill Wood as underlying
the necessary finding of intent to kill Wood's mother.
The evidence of Davis' intent to
kill Mrs. Wood is far less clear. The prosecution argued that
petitioner and Davis entered the store with the intention of killing
any witnesses they found inside, and while this inference from the
evidence was undoubtedly permissible, it was not compelled as a
Petitioner testified that neither
he nor Davis had planned to kill anyone, and the record shows that
petitioner left the store not knowing whether he had, in fact,
killed Willie Wood. Petitioner further testified that he heard a
woman scream as he left the store, yet the evidence is clear that he
made no effort to return and kill her. App. 57, 61. Hence, the jury
could have taken petitioner's behavior as confirming his claim that
he and Davis had not originally planned to kill anyone whom they
might find inside the store.
Nor do the specific
circumstances of Mrs. Wood's death reveal anything clear about Davis'
intent toward her. The Supreme Court of South Carolina, to be sure,
viewed the record as showing that Davis directed his attention
specifically to Mrs. Wood, and attacked her with a repetitiveness
ruling out the possibility of inadvertence. The state court's
majority described Davis as having "lunged at Mrs. Wood with his
knife" and inflicted "wounds" to her chest during a "brutal multiple
stabbing." --- S.C., at --- - ---, 391 S.E.2d, at 531-532.
The state court's description of
the evidence as tending to prove Davis' malice is not, however,
supported by the record. The only eyewitness to the homicide, Willie
Wood, testified that it was Mrs. Wood who ran into the store and "reached
her left arm around and grabbed" Davis, after which "the three of [them]
stumbled around the counter, out in the aisle."
There was no other testimony on
how Mrs. Wood encountered Davis. The pathologist who performed an
autopsy on Mrs. Wood testified that she died of a single wound to
the chest and that "[t]here were no other wounds that I noted on the
external surface of the body." App. 32. There was no other testimony
or physical evidence that Mrs. Wood suffered any wounds beyond the
fatal one to her chest. The record thus does not support the state
court's assertion that Davis "lunged" at Mrs. Wood, or its
description of Mrs. Wood's "wounds" as resulting from a "multiple
The prosecutor in his summation
even conceded that "it appeared [Mrs. Wood] tried to grab Mr. Davis."
Id., at 88. The most that can be said with certainty is that
Mrs. Wood joined the struggle between Davis and Wood, and was
stabbed during the course of it. She could have been killed
inadvertently by Davis, and we cannot rule out that possibility
beyond a reasonable doubt.
In sum, the evidentiary record
simply is not clear on Davis' intent to kill the victim. Without
more, we could not infer beyond a reasonable doubt that the
presumptions did not contribute to the jury's finding of Davis'
intent to kill Mrs. Wood and to the ensuing verdict of petitioner's
guilt as Davis' accomplice.
jury instructions found to have been erroneous in this case may not
be excused as harmless error. The judgment of the Supreme Court of
South Carolina is reversed and the case is remanded for further
proceedings not inconsistent with this opinion.
Justice SCALIA, with whom Justice
BLACKMUN joins as to Part B, concurring in part and concurring in
I agree with the Court's carefully
constructed methodolgy for determining harmless error with respect
to unlawful presumptions, but I disagree concerning its application
to the facts of the present case. Unlike the Court, I find the "deadly
weapon" presumption harmless; I find the "unlawful act" presumption
not harmless, but for reasons other than the Court assigns. I
therefore concur in the judgment of reversal, and join all except
footnote 6 and Part III of the Court's opinion.
In my view the "deadly
weapon" presumption was harmless for the simple reason that it had
no application to the facts of the case. It disappeared ("burst")
" 'when the circumstances surrounding the use of [the] deadly weapon
[were] put into evidence and testified to.' " Ante, at 397 (quoting
apparently does not disagree with that, if the jury can be presumed
to have taken the "presumption is removed" portion of the
instruction seriously. The Court believes, however, that "a [reasonable]
juror would have felt obliged to give the presumption some
application" because the instructions creating and qualifying it
were "inherently contradictory." If they were taken literally, the
Court reasons, the very evidence establishing the presumption would
cause it to vanish. Ante, at 401, n. 6. I find no such
contradiction. It seems to me quite possible to prove that a deadly
weapon was used without proving the circumstances
surrounding that use.
The victim, for example, is found
dead of a gunshot wound and the defendant is shown to have been the
only person with access to the victim, and to have been in
possession of the gun that fired the fatal shot. Or even more simply
(and as was the case here), both sides concede that a deadly
weapon was used.
To be sure, a jury would often
confront practical difficulty in applying the presumption (as
opposed to theoretical difficulty in understanding it, because of
its "inherent contradiction"), in that it would frequently be a nice
question whether a particular factual showing is only enough to
establish use or also enough to establish "circumstances" as well.
But I hardly think that is a problem here.
Any reasonable juror must have
thought that "circumstances surrounding the use" were placed in
evidence when the multiple details described in Part I of the
Court's opinion were introduced, including the fact that Davis
stabbed Mrs. Wood while engaged in a struggle with her and her son,
during which " 'all three . . . stumbled around the counter,
out in the aisle.' " Ante, at 395 (quoting App. 19) (emphasis
added). If we take the assumption that juries follow their
instructions seriously, Richardson v. Marsh, 481 U.S. 200,
211, 107 S.Ct. 1702, 1709, 95 L.Ed.2d 176 (1987), I think we must
conclude that this presumption disappeared and was therefore
harmless beyond a reasonable doubt.
The "unlawful act"
presumption is a different matter. That did not utterly disappear
upon the introduction of certain evidence, but was merely, in the
words of the instruction, "not conclusive" and was "rebuttable by
the rest of the evidence." App. 96. The Court concludes that this
was not harmless only after looking to the entire record and
determining that it "simply is not clear on Davis' intent to kill
the victim," ante, at 411. I agree with the Court's
conclusion that this presumption was not harmless; but I think that
conclusion should have followed no matter what the record contained.
The Court feels empowered to
decide this case on the basis of an examination of the record
because the jury was "free to look beyond the unlawful act
presumption and to consider all the evidence on malice." Ante,
I agree that they were free to do
so. Indeed, I believe that they had to do so. (Surely the
instruction that something is "rebuttable" conveys to the reasonable
jury that they not merely may but must determine
whether it has been rebutted.) But what is the problem—what makes it
in my view utterly impossible to say beyond a reasonable doubt, from
an examination of the record, that the jury in fact found
guilt on a proper basis—is that the jury would have been examining
the evidence with the wrong question in mind. Not whether it
established malice beyond a reasonable doubt, but whether it was
sufficient to overcome (rebut) the improper presumption. Or, to put
the point differently, even if a reviewing court can properly assume
that the jury made the ultimate factual determination, it cannot
assume that it did so using the appropriate burden of proof. See
Carella v. California, 491 U.S. 263, 273, 109 S.Ct. 2419, 2424,
105 L.Ed.2d 218 (1989) (SCALIA, J., concurring in judgment).
Given the nature of the
instruction here, then, to determine from the "entire record" that
the error is "harmless" would be to answer a purely hypothetical
question, viz., whether, if the jury had been instructed
correctly, it would have found that the state proved the
existence of malice beyond a reasonable doubt. Such a hypothetical
inquiry is inconsistent with the harmless-error standard announced
in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828,
17 L.Ed.2d 705 (1967) and reiterated by the Court today. "[T]he
issue under Chapman is whether the jury actually rested
its verdict on evidence establishing the presumed fact beyond a
reasonable doubt, independently of the presumption." Ante, at
404 (emphasis added). See also Bollenbach v. United States,
326 U.S. 607, 614, 66 S.Ct. 402, 406, 90 L.Ed. 350 (1946) ("the
question is not whether guilt may be spelt out of a record, but
whether guilt has been found by a jury according to the procedure
and standards appropriate for criminal trials"). While such a
hypothetical inquiry ensures that the State has, in fact, proved
malice beyond a reasonable doubt, it does not ensure that it has
proved that element beyond a reasonable doubt
to the satisfaction of a jury.
For the foregoing
reasons, I join all except footnote 6 and Part III of the Court's
opinion and concur in the judgment of the Court.