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Subject: 89-7691 -- OPINION, YATES v. EVATT




NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
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press.
SUPREME COURT OF THE UNITED STATES


No. 89-7691



DALE ROBERT YATES v. PARKER EVATT, COMMISSIONER, SOUTH CAROLINA DEPARTMENT
OF CORRECTIONS, et al.

on writ of certiorari to the supreme court of south carolina

[May 28, 1991]



    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.

I


A
    Petitioner, Dale 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. {1}  Although he killed no
one, the State prosecuted him for murder as an accomplice. {2}
    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.  Petitioner and 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. {3}  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. {4}  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 96-97.


    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 indictment. {5}  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
(1983).

B
    Petitioner 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 (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 (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 (1985).
    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 (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 (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.

    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."  Ibid.  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.
--- (1990).

II


A
    This Court held in Sandstrom v. Montana, supra, at 513, 524, 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 (1970).  We
applied this principle in Francis v. Franklin, 471 U. S. 307 (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 (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."  {6}  Ibid.
    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 significance.  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, {7} 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.

B
    Having concluded 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 (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 (1967). {8}  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; 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 (1963)); Arizona v. Fulmin ante, 499 U. S. ---, --- (1991)
(confession is harmless error if it "did not contribute to [the
defendant's] conviction"); Delaware v. Van Arsdall, 475 U. S. 673, 681
(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 (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.
    Before reaching 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. {9}  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 verdict rendered.
    Because application 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,
at 681 ("[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 (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 verdict.  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. {10}  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 presumption.

C
    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 formulated.  Instead,
the court employed language taken out of context from Rose v. Clark, 478 U.
S. 570 (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 unconstitutional presumptions. {11}
    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 rea sonable 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 required.

III
    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, at 584.  Because this case
has already been remanded twice, once for harmlesserror analysis, we think
we would serve judicial economy best by proceeding now to determine whether
the burdenshifting 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. {12}  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 532.
    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. {13}  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 MDRV 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 MDRV
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 rational necessity.  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
stabbing."  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.

IV
    The burden-shifting 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.

It is so ordered.






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1
    Petitioner was indicted for murder, armed robbery, assault and battery
with intent to kill, and conspiracy.

2
    The State relied on a theory of accomplice liability because South
Carolina does not have a felony-murder statute.

3
    The pathologist who performed an autopsy on Mrs. Wood testified that
the cause of her death was "a penetrating wound of the chest that was
narrow and penetrated the full thickness of the chest by probe examination.
There were no other wounds that I noted on the external surface of the
body."  App. 32.

4
    Petitioner's second defense was that he had withdrawn from his
agreement to commit the robbery when he shouted to Davis, "Let's go," and
ran out of the store.  Having allegedly withdrawn from the robbery scheme,
petitioner contended that he was not liable for the subsequent homicide by
his former accomplice.

5
    In this case, petitioner challenges only his murder conviction.  Brief
for Petitioner 10, n. 5.

6
    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."  App. 97.  This instruction confuses more than it
clarifies.  The jury could not presume malice under this rule without
evidence that a deadly weapon was used.  That evidence included a
description of the melee in which the stabbing occured.  Yet the jury was
told that once such evidence was introduced, the presumption vanished.  As
a reasonable juror would have understood the instruction, it was inherently
contradictory.  We think such a juror would have felt obliged to give the
presumption some application and accordingly find its "bursting bubble"
clause insufficient to correct the error of presuming malice from the use
of a deadly weapon.  See Francis v. Franklin, 471 U. S. 307, 322 (1985)
("Language that merely contradicts and does not explain a constitutionally
infirm instruction will not suffice to absolve the infirmity").

7
    A mandatory presumption, even though rebuttable, is different from a
permissive presumption, which "does not require . . . the trier of fact to
infer the elemental fact from proof by the prosecutor of the basic one and
. . . places no burden of any kind on the defendant."  Ulster County Court
v. Allen, 442 U. S. 140, 157 (1979).  A permissive presumption merely
allows an inference to be drawn and is constitutional so long as the
inference would not be irrational.  See Francis v. Franklin, supra, at
314-315.

8
    In his opinion concurring in the judgment in Carella v. California, 491
U. S. 263, 267 (1989), Justice Scalia noted that the majority opinion in
Rose v. Clark, 478 U. S. 570 (1986), is not entirely consistent in its
articulation of the harmless-error standard to be applied to rebuttable
presumptions.  In fact, the opinion in Rose does contain language that,
when taken out of context, suggests standards that are both more
restrictive and less restrictive than the standard for reviewing rebuttable
presumptions that we apply today.  Compare id., at 580-581 ("In many cases,
the predicate facts conclusively establish intent, so that no rational jury
could find that the defendant committed the relevant criminal act but did
not intend to cause injury") (emphasis in original) with id., at 579
(rebuttable presumption is harmless error "[w]here a reviewing court can
find that the record developed at trial establishes guilt beyond a
reasonable doubt").  The first statement, by its own terms, would not
reflect the appropriate enquiry in every rebuttable presumption case; the
second, in isolation, would not be correct, as our opinion today explains.

9
    If the presumed fact is not itself necessary for the verdict, but only
one of a variety of facts sufficient to prove a necessary element, the
reviewing court should identify not only the evidence considered for the
fact subject to the presumption, but also the evidence for alternative
facts sufficient to prove the element.

10
    For reviewing the effect of a conclusive presumption, a restrictive
analysis has been proposed that would focus only on the predicate facts to
be relied on under the presumption and would require a court to determine
whether they "are so closely related to the ultimate fact to be presumed
that no rational jury could find those facts without also finding that
ultimate fact."  Carella v. California, 491 U. S., at 271 (Scalia, J.,
concurring in judgment).  The error is harmless in this situation because
it is beyond a reasonable doubt that the jury found the facts necessary to
support the conviction.  Ibid.  Application of this narrow focus is urged,
because the terms of a conclusive presumption tend to deter a jury from
considering any evidence for the presumed fact beyond the predicate
evidence; indeed, to do so would be a waste of the jury's time and contrary
to its instructions.  See Sandstrom v. Montana, 442 U. S., at 526, n. 13.
The same may be true when a mandatory rebuttable presumption is applied in
a case with no rebutting evidence, rendering the presumption conclusive in
its operation.

11
    The Court's opinion in Rose v. Clark, 478 U. S., at 583, quotes from
the dissent in Connecticut v. Johnson, 460 U. S. 73, 97, n. 5 (1983)
(Powell, J., dissenting), in such a way as to suggest that a reviewing
court must determine only whether "the jury would have found it unnecessary
to rely on the presumption," a test less rigorous than the standard imposed
by Chapman.

12
    "We are of the opinion that the trial judge correctly and precisely
determined the applicable law and charged it."  State v. Yates, 280 S. C.
29, 38, 310 S. E. 2d 805, 810 (1982).

13
    The trial judge told the jury that malice is proved by "circumstances
which show directly that an intent to kill was really and actually
entertained."  Where such direct evidence does not exist, the judge told
the jury that an "intention to kill" may be implied "from facts and
circumstances which are, themselves, proved."  In summing up his definition
of murder, the judge stated that there "must be a combination of a previous
evil intent and the act which produces the fatal result."  App. 96-97.  Our
reading of the trial judge's charge on malice as requiring an intent to
kill is reflected in the prosecutor's argument to the jury that petitioner
and Davis entered the store with the intention of killing the proprietor
and anyone else inside so as to leave no witnesses.  Id., at 85-86.  See
also State v. Yates, --- S. C. ---, ---, 391 S. E. 2d 530, 535 (1989)
(Toal, J., dissenting) ("[T]he jury must find the killer acted with
malicious intent").