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- Subject: 89-7691 -- CONCUR, YATES v. EVATT
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- SUPREME COURT OF THE UNITED STATES
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- No. 89-7691
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- DALE ROBERT YATES v. PARKER EVATT, COMMISSIONER, SOUTH CAROLINA DEPARTMENT
- OF CORRECTIONS, et al.
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- on writ of certiorari to the supreme court of south carolina
-
- [May 28, 1991]
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- Justice Scalia, with whom Justice Blackmun joins as to Part B,
- concurring in part and concurring in the judgment.
-
- 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.
-
- A
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- 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 5 (quoting
- App. 96).
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- The Court 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
- 9, 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 2 (quoting App. 19) (emphasis added). If we take
- the assumption that juries follow their instructions seriously, Richardson
- v. Marsh, 481 U. S. 200, 211 (1987), I think we must conclude that this
- presumption disappeared and was therefore harmless beyond a reasonable
- doubt.
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- B
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- 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 18. 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, at 16. 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 (1989) (Scalia, J.
- concurring in judgment).
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- 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 (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 12 (emphasis added). See also
- Bollenbach v. United States, 326 U. S. 607, 614 (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.
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- * * *
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- 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.
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