Rose v. Clark

LOCATION:Kings County Superior Court: Hanford Courthouse

DOCKET NO.: 84-1974
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 478 US 570 (1986)
ARGUED: Mar 24, 1986
DECIDED: Jul 02, 1986

Paul J. Larkin, Jr. – as amicus curiae in support of Petitioner
Scott Daniel – on behalf of the Respondent
W. J. Michael Cody – on behalf of the Petitioner

Facts of the case


Audio Transcription for Oral Argument – March 24, 1986 in Rose v. Clark

Warren E. Burger:

We’ll hear arguments next in Rose against Clark.

Mr. Attorney General?

W. J. Michael Cody:

Mr. Chief Justice, and may it please the Court:

On the night of December 30, 1978, Joy Faulk and Charles Browning were shot to death in a rural area of Rutherford County, Tennessee.

The Respondent Clark was indicted by the grand jury on two counts of first degree murder.

Following a jury trial, he was convicted of the first degree murder of Joy Faulk and given life imprisonment and the second degree murder of Charles Browning and given ten years imprisonment.

The malice instructions were not challenged at trial, but later challenged on appeal.

The state appellate court affirmed the jury verdict and the Tennessee Supreme Court denied permission to appeal.

The petition for the writ of habeas corpus, which alleged the malice instructions violated due process pursuant to Sandstrom versus Montana, was granted by the district court and this affirmed by the Court of Appeals for the Sixth Circuit.

This grant of the petition for a writ of certiorari is limited to the question of whether error in the trial court’s jury instructions on malice was harmless beyond a reasonable doubt.

The facts in this case are extremely important.

Joy Faulk and the Respondent had been involved in a stormy relationship prior to Faulk terminating that relationship several months before the slayings.

Following their breakup, the Respondent threatened on six different occasions to kill Faulk if he ever caught her with another man.

Two weeks before the slayings, the Respondent borrowed the murder weapon, a 25 caliber automatic pistol, after untruthfully indicating that his own gun had been stolen.

Several days before the slayings, the Respondent spoke to Browning’s wife for the purpose of determining the relationship and during the course of the conversation he twice stated that he wanted to find out about Browning and Faulk’s relationship before he did what he had to do.

And, at the time he made those statements, he was in the possession of the murder weapon.

Now, prior to the commission of the crimes, the Respondent’s truck was observed pursuing Browning’s truck in which Faulk and her two daughters were passengers along the road.

Some ten miles from this observation, Browning pulled into a private driveway, either to let the Respondent pass or to seek safety.

At that time, the Respondent parked his truck immediately behind Browning’s, thereby blocking any escape, and left the lights on, then immediately went to the Browning truck, put his pistol inside the cab and fired the weapon at least four times at point-blank range.

Browning, who was, of course, the driver of the truck, had a fully loaded 22 caliber pistol in his right pants pocket.

The pistol contained one spent cartridge which the evidence is clear was positioned so that it could not have just been fired.

He could not have removed the pistol from his pocket before he was shot.

Browning was shot once in the head from a distance of six to eight inches and Faulk was shot three times, twice in the head and once in the left shoulder, from a distance of less than 18 inches.

Both Browning’s and Faulk’s brains were obliterated by the head wounds in this case.

Physical evidence at the scene indicated that the Respondent fired his weapon almost immediately after causing Browning to stop his truck.

Browning’s foot was still on the brake pedal.

The motor in the truck was on, the radio was playing, the headlights were on, the driver’s window was down, and the passenger’s window was up.

And, finally, after the Respondent fled the scene of the murder, Faulk’s two daughters who miraculously not injured in the shooting, crawled over the bodies and were found wandering around the roadway seeking assistance.

Shortly thereafter the Respondent led the police on a high-speed chase at which time he discarded the murder weapon prior to his apprehension by the police.

That night and at the trial, Joy Faulk’s daughter identified the Respondent as the individual responsible for killing her mother and Browning.

W. J. Michael Cody:

Now, the primarily issue litigated at the trial of this case was the identity of the murderer.

The Respondent sought to prove that someone else did it.

He mentioned two other individuals that he thought did it.

But, given the overwhelming evidence that he had committed the murder, the Respondent, who did not testify, also attempted to say that if he did it he was temporarily insane, he was voluntarily intoxicated, he had amnesia and didn’t remember it at the time.

The jury instructions given in this case by the trial judge were extensive and went into the first and second degree murders and the elements of those offenses, told the jury to consider the instructions as a whole, that the state had the burden of proof, the Defendant had the presumption of innocence, but the court gave the two Sandstrom type instructions, one which said homicides are presumed to be malicious in the absence of evidence to rebut, but that rebuttal evidence could be direct or circumstantial and either from the state or from the Defendant.

And, secondly, if a deadly weapon is used under certain circumstances, then malice could be presumed to support a second degree murder conviction unless it is rebutted by other facts and circumstances.

Sandra Day O’Connor:

General Cody, would you say that the instructions here were like those in the case of Connecticut versus Johnson and were conclusive presumptions or were these instructions, in your view, rebuttable presumptions?

W. J. Michael Cody:

Justice, they were very–

Sandra Day O’Connor:

That had the effect of maybe shifting the burden to the defendant.

W. J. Michael Cody:

–Justice, I think very clearly they were rebuttable presumptions.

I do not believe there is any contention made that this was a conclusive presumption.

The Tennessee Court of Criminal Appeals held that these instructions did not violate Sandstrom and, further, that the Respondent could not have been prejudiced in view of his sole defenses of non-participation and insanity.

The federal district court, however, found that the element of malice was a disputed issue at trial because of the defenses and refused to find it harmless.

Warren E. Burger:

Did you tell us, Mr. Attorney General, that there was no objection to the instructions?

W. J. Michael Cody:

There were no objections whatsoever to the instructions during the trial.

The error was not alleged in the motion for a new trial, but some three months after the trial in a supplemental motion for a new trial the error was then claimed.

The Sixth Circuit, as I indicated, agreed with the district court and declined to reverse the district court despite its findings of the substantial evidence of the Defendant’s guilt.

And, the Sixth Circuit indicated in its opinion that were it not for its prior precedent that it would inquire itself as to whether the evidence of malice was so dispositive of intent to be able to say that the jury would have found it unnecessary to rely on the presumption in determining whether the erroneous instructions prejudiced the Respondent.

But, they felt bound by earlier precedent, primarily, we believe, based upon the Kohler case out of Michigan which allowed a diminished capacity defense to be used.

It is a proper defense in Michigan but it is not a proper defense in Tennessee, and, of course, was not charged in these jury instructions.

John Paul Stevens:

General Cody, can I interrupt you with a factual question?

As I understand it, with respect to one of the killings, he was convicted of first degree murder and with respect to the other it was second degree murder.

W. J. Michael Cody:


John Paul Stevens:

Which one?

W. J. Michael Cody:

The first degree murder was the murder of Joy Faulk, the woman who was shot twice in the head and once in the shoulder.

And, of course, this was the Respondent’s former girlfriend who he had said, if I ever catch you out with someone I will kill you.

Browning, which was the second degree murder conviction… It was based upon that he was the person that she was found with on that occasion.

John Paul Stevens:

I take it the harmless error inquiry would be whether there was no possibility or no reasonable possibility that the first degree murder conviction might have been a second degree murder conviction?

W. J. Michael Cody:

I think the inquiry could go to both, but I believe that it is very clear in this case that the overwhelming… First of all, on the first degree charge, there is no question that premeditation and deliberation and willfulness were all properly charged.

And, under Tennessee law, voluntary intoxication, for instance, is not a defense to second degree murder.

W. J. Michael Cody:

It is only a defense to premeditation and deliberation aspects.

So, we believe that any jury which, under these facts, would have found that the murder was committed premeditatively and deliberately and wilfully.

Under these facts, multiple shots within the cab of the truck at point-blank range would have also found malice and could have certainly not have been harmful.

Now, maybe the court… In response to your question, belatedly the Respondent in this Court for the first time has raised a self-defense claim.

Self-defense was never raised anywhere below, it was never argued, it was never charged to find, but certainly with respect to the first degree murder of Joy Faulk, who didn’t even have a pistol in her pocket and was sitting on the far side of the truck… both victims were seated… there could be no indication.

If the Court please, the State of Tennessee submits first that the jury instructions in this case which incorporate a rebuttable presumption on the element of malice alone, are subject to analysis under the harmless error doctrine.

Second, that the existence of malice was not placed in dispute by either of the two defenses raised by the Respondent.

And, third and finally, in any event, the evidence of malice in this case, on the facts and the entire trial, is overwhelming and that the Respondent was not prejudiced by the instructions.

Byron R. White:

Well, to urge… Your first point is that it is subject to harmless error analysis, that assumes there was error.

Is it conceded that there was error?

W. J. Michael Cody:

Well, Justice–

Byron R. White:

Or do you say there is no problem in the instruction if there is no issue about malice?

W. J. Michael Cody:

–It is difficult to answer that question.

We did not think that there was any basic error in this rebuttable presumption, but the court has granted certiorari only on the question of whether it was harmless and that is the reason that we only raised that point.

Warren E. Burger:

So, you are suggesting that the narrow question presented here is the harmless error question?

W. J. Michael Cody:

Yes, that is the only question upon which certiorari–

Warren E. Burger:

Because of the overwhelming evidence?

W. J. Michael Cody:

–Yes, if the Court please.

And, we think that an erroneous rebuttable presumption on malice in this case shouldn’t be in any way classified as error so basic to denying a fair trial as to require an automatic reversal regardless of the facts and legal significance of the defenses.

And, we believe if the Court analyzes the record in this case and the evidence and defenses presented that it would find a harmless error clearly and reverse the Court of Appeals.

With the Court’s permission, I would like to leave what remaining time for rebuttal.

Warren E. Burger:

Very well.

Mr. Larkin?

Paul J. Larkin, Jr.:

Thank you, Mr. Chief Justice, and may it please the Court:

The Court has often recognized the harmless error doctrine serves salutary purposes in the criminal process.

It is also clear from the Court’s decisions that an erroneous jury instruction may generally be analyzed for its harmlessness in the particular facts of a given case.

The question here is whether the Court ought to create an exception from those rules for instructions that have an erroneous presumption.

In this case, the presumption is rebuttable, but the Court has looked at both rebuttal and conclusive presumptions in the cases preceding this one such as Sandstrom and Connecticut versus Johnson.

It is our position there is no reason to adopt the per se rule in this area.

And, it is also our position that the analysis that the Court followed in United States versus Frady directly controls this case.

Paul J. Larkin, Jr.:

The question in Frady came up in the context of whether or not the Defendant had been prejudiced because he hadn’t objected at trial to the instruction.

But, the question of whether the Defendant is prejudiced is simply the flip side of the question of whether the error is harmless.

So, the analysis the Court followed in Frady should apply here.

Two aspects of the decision in Frady are quite important.

First, the Court found no difficulty in analyzing the record to decide whether or not Frady, in fact, had been prejudiced.

And, second, the Court found that for three related reasons he was not.

The first was that the government’s proof in that case of malice was overwhelming.

The second reason was the erroneous instruction did not affect the defense in that case of non-participation that Frady had raised.

That is also the case here.

Neither the defense of non-participation, voluntarily intoxication, insanity or amnesia could have been affected by this instruction.

And, finally, the last reason given in Frady why the error there was not prejudicial was that the jury found that Frady had premeditated and deliberated and that, too, is the case here.

Harry A. Blackmun:

Frady was decided before Connecticut against Johnson, wasn’t it?

Paul J. Larkin, Jr.:

That is correct, Your Honor.

Harry A. Blackmun:

Why do you think it wasn’t cited by any of the opinions in Connecticut against Johnson?

Paul J. Larkin, Jr.:

That I don’t know, Your Honor, but I can say the Court clearly–

Harry A. Blackmun:

If it is controlling here, you would have thought that it would have been cited by one side or the other.

Paul J. Larkin, Jr.:

–Clearly, for that reason at least, it hasn’t been overruled.

The question analyzing Frady was whether the erroneous instruction had affected the verdict in that case.

The Court was able to find that it did not.

The Court gave a variety of different reasons for it.

Those are the same types of reasons that should apply in a case such as this one.

Now, as Frady demonstrates, the error that occurs in a case like this with an erroneous instruction of this type, is not a fundamental defect in the trial process that completely deprives someone of a semblance of a trial.

The instructions given in this case have been used in Tennessee murder prosecutions since the time of Andrew Jackson.

They were used elsewhere nationwide, both in state and federal cases, for some time thereafter, and this Court had even approved a similar type of instruction in the Allen case.

Harry A. Blackmun:

Does that make them right?

Paul J. Larkin, Jr.:

Not necessarily.

The rationale that we understand the Court to have adopted in Sandstrom is that there is a risk that the jury may misconstrue these types of instructions.

But, that doesn’t mean that they are necessarily to be equated with a directed verdict.

Instructions like this take place along a continuum.

At one end of the continuum is an instruction that allows a jury to infer an ultimate fact from a basic fact.

Paul J. Larkin, Jr.:

The Court has never found any constitutional problem with that type of instruction so long as the evidence is sufficient to support it and so long as the type of inference the jury is allowed to draw is one that is entirely rational.

At the other end of the spectrum is a case where you have an actual directed verdict, either in whole as where the case is not allowed to go to the jury at all, or in part where the case is allowed to go to the jury on one or more issues.

The problem with an instruction like the type that was found in Sandstrom is not that it necessarily amounts to a directed verdict, it is just that there is some risk that the jury may misconstrue how it should be applied.

But, where the evidence is overwhelming, it seems to us quite unlikely that the jury is not going to be swayed by that type of evidence.

If it is a problem of uncertainty, certainly isn’t present where there are other findings by the jury that are untainted by the error.

For example, in Frady, there was a finding of premeditation and deliberation.

That is also the case here.

The erroneous presumption in this case affected only the instruction on malice, not the instructions on willfulness premeditation and deliberation.

The additional findings the jury made in this case, therefore, show that they necessarily found malice regardless of whether or not the error was brought to their attention or otherwise.

Secondly, it is also not the type of error where an inquiry is inherently impractical.

This Court was able to make that type of inquiry in Frady and the lower courts, both state and federal, have found that they are able to distinguish cases where there are erroneous presumptions, conclusive or rebuttable.

They are able to distinguish the cases where they are harmless from the cases where they are prejudicial.

John Paul Stevens:

Mr. Larkin, can I interrupt?

It is pretty much the same question I asked before, but are you saying it is perfectly clear that they would have found him not guilty or they could not have found a murder one conviction to be a murder two conviction?

That is the thing that puzzles me.

I would have thought the evidence is overwhelming as to murder one on both victims, but the jury apparently didn’t.

Paul J. Larkin, Jr.:

Well, I would explain that the same way the trial judge explained it here.

Page 132 in the record contains the trial judge’s order denying the motion for a new trial and making sentences consecutive.

There he said he found that there were two cold-blooded killings, one premeditated and the other flowing out of the first.

It seems to me what happened here in this case was the jury thought that the killing of Faulk was premeditated, probably largely because there had been numerous threats made by the Respondent that he would kill her if he found her with another man and also because she was shot multiple times and Browning was shot only once.

Now, the evidence would be sufficient to support premeditation and deliberation as to both, but what probably accounts for what happened here is just that the jury thought premeditation and deliberation probably requires thinking about it for a long time.

John Paul Stevens:

If that is true then, maybe the harm of the presumption was that it was prejudicial as to the one that was found guilty of second degree murder.

Maybe without the instruction they would have found manslaughter or something else.

Paul J. Larkin, Jr.:

Well, there was no basis in the other jury instructions for allowing them to reduce the second degree murder verdict to manslaughter which require provocation and passion.

As the Attorney General discussed, Browning was found in the car.

His foot was on the brake pedal, his gun was in his pocket.

It hadn’t just been fired where the empty cylinder was located showed that.

He was shot once through the head instantaneously.

It is clear that there was no evidence presented to support the claim that there was a manslaughter or self-defense theory.

The only evidence of any type that the Respondent offered in this respect was a statement that Mitzi Faulk, six-year old daughter of Joy Faulk, had made, to the two people who picked her up that night after the killing, in which she said they were fighting, Clicker and Browning had guns and they were fighting.

Paul J. Larkin, Jr.:

On the stand, Mitzi denied that there was any type of fight there.

So, the only evidence he has that would justify anything less than a second degree murder conviction was this one particular type of hearsay statement.

Warren E. Burger:

Did the Defendant undertake to prove an alibi in any way that he wasn’t there and that two other people had committed the crime?

Paul J. Larkin, Jr.:

That was his primary defense at trial, yes, Your Honor.

Of course, the alibi he tried to present was weakened by the fact that neither he nor anyone else were able to pinpoint where he was, and that is because he said he had amnesia at the time.

Also, the two people who were supposed to have committed this crime, Joy Faulk’s ex-husband, Sam, and Charles Browning’s wife, were both seen by several witnesses at a bar for the entire evening.

So, even his alibi defense was quite weak.

But, in any event, if that type of defense is raised, as it was raised in Frady, it is clear that erroneous instruction on malice doesn’t affect the question of who did the killing.

Thurgood Marshall:

If the jury in this case had found him guilty of both in first degree, would you make the same argument?

Paul J. Larkin, Jr.:


That would even be a stronger case.

Thurgood Marshall:

Well, how can you make a different argument?

You say it was harmless error.

How could it be harmless if it could come out two different ways?

You admitted it yourself.

You have argued here… You and the General have argued this is the clearest case of premeditated murder that ever came down the block.

Paul J. Larkin, Jr.:

The evidence clearly–

Thurgood Marshall:

The jury didn’t agree.

Paul J. Larkin, Jr.:

–The jury didn’t agree as to Browning.

They clearly did agree as to Faulk.

We think the reason looked at in a common-sense fashion, which is the way the jury probably looked at the evidence, is just that there were threats made against the life of Joy Faulk before the time the killings took place.

Thurgood Marshall:

Well, how can it be so clear?

How is it so clear?

Paul J. Larkin, Jr.:

The evidence in this respect as to the threats–

Thurgood Marshall:

Didn’t the other man have a gun in his pocket?

Paul J. Larkin, Jr.:

–Yes, he did.

Thurgood Marshall:

So, it is clear.

Paul J. Larkin, Jr.:

And, the gun was not out of his pocket.

Thurgood Marshall:

It is clear he had a gun.

Paul J. Larkin, Jr.:

And the gun had not just been fired.

Paul J. Larkin, Jr.:

So, when all the evidence is considered as a whole, we think that the defenses of–

Thurgood Marshall:

I am not arguing that it isn’t possible for the jury to say it, but to say that it is clear that the jury had to come out this way and no other way.

I don’t see how you can say that.

Warren E. Burger:

Your time is up.

Paul J. Larkin, Jr.:

–Thank you.

Warren E. Burger:

Mr. Daniel?

Scott Daniel:

Mr. Chief Justice, and may it please the Court:

The Petitioner takes the position based upon a view of the facts which I think Justice Marshall’s last question kind of pinpointed.

They view the facts only in their view of how it had to be from their standpoint of looking at it rather than looking at it in a multitude of ways in which a jury can consider.

If they are arguing sufficiency of evidence, that is one thing, but they are not.

That is not the point here raised at issue.

And, before I go into the matters that I want to specifically address for the point of view of my own presentation, are some matters which the Petitioner has stated here which I think need to be touched upon.

First of all, they said the malice instruction was not challenged at the trial.

I think this is pointed out clearly in the briefs and the record that under Tennessee law you are not required to object to the instructions at the time it is given.

It is proper to object to them under the rules by including that in your motion for a new trial which we did appropriately and timely.

The Court of Appeals acknowledging this, then considered the matter and heard it on the merits with regard to this.

So, there is no question about any waiver aspects here.

Now, they have stated here as to the facts, their view of the facts, and just to give you an illustration, they say someone was following them for ten miles.

The only evidence of what was going on was that the… There was nothing done.

The police officer saw the cars, didn’t pursue it.

There wasn’t any high speed chase at that time, there wasn’t anything going on.

He simply followed and said he didn’t see any reason to do anything.

Warren E. Burger:

Are you now arguing there is some doubt about the guilt of this man?

I thought we had the case only on the issue of harmless error.

Scott Daniel:

Well, we did, and I wasn’t intending to do that.

I respond to that only because they argued a moment ago… They have given what I think is a biased interpretation of what actually occurred as to whether or not the jury could have, under another view of the facts, determined whether the evidence was overwhelming from their standpoint of looking at it.

I would not concede that point is all I am saying.

Warren E. Burger:

You mean you do not concede the evidence of guilt was overwhelming here?

Scott Daniel:

No, Your Honor, I do not.

We concede it was great evidence, substantial evidence viewed from one standpoint, but not so overwhelming as to dictate the result, and clearly, I think, is the indication of Justice Marshall’s question a moment ago, it shows the conclusions could not be that concrete as the Petitioner takes the position of the facts.

Scott Daniel:

Now, what we suggest and what we have submitted throughout the case is… And, they state again that the primary issue at trial was that someone else did it.

Let me explain that at the trial, my client, Mr. Clark, through the testimony of two psychiatrists who testified in his behalf, was found to have amnesia, such that they said, first of all, we don’t know if he was there, but we are convinced that he doesn’t know if he was there.

If he was there, he has absolutely no recollection of having anything to do with the events here.

So, that is the evidence that we offered and which we presented at trial.

I don’t believe there is any question about that.

They said that if, in fact, he committed the crimes he was not guilty by reason of insanity and this was the defense we relied upon as well as the fact that we, from the outset, contended, number one, Mr. Clark, the Defendant, had no recollection of the events, had insanity, therefore could not present an alternative version out of his own mouth.

The only witness to it was a little girl, a six-year old girl, whose testimony, by the statement of the trial judge, was so contractive and impeached, and he said impeached, that he allowed into evidence out-of-court statements that she had made in which she had said specifically, and there are other witnesses who agreed, that they are fighting, they have guns, they are fighting, so that there was clearly a fight going on.

William H. Rehnquist:

Mr. Daniel, you spoke a moment ago of the psychiatric testimony supporting your client’s amnesia defense.

I wouldn’t think there is anything inconsistent about saying that if he was there he has totally forgotten or has no recollection and still, if he was there, he might have had the malice required for first degree murder.

Do you see anything inconsistent between that sort of amnesia you are talking about and the intent to kill?

Scott Daniel:

Amnesia in and of itself was not preclude intent to kill, no, I wouldn’t argue that.

What I am saying is our evidence was… our psychiatric evidence was that if, in fact, he did the acts charged, he was not responsible for them because he did not have the mental capacity at the time the actions were–

William H. Rehnquist:

That wouldn’t be amnesia, that would be–

Scott Daniel:


The amnesia I referred to because it precluded us, if, in fact, he was there… You know that is still an issue, at least in my mind, irrespective of how the jury resolved that.

But, that he could not out of his own mouth testify to something he had no recollection of.

Lewis F. Powell, Jr.:

–Mr. Daniel, did any psychiatrist say that your client lacked the capacity to have malice?

Scott Daniel:

They said that he lacked the capacity to conform his conduct to the requirements of the law.

Lewis F. Powell, Jr.:

That is right.

Does that have anything to do with malice?

There are plenty of people who know exactly what they are doing, but they are just unable to conform to law.

Scott Daniel:

If Your Honor please, under the terms of Tennessee definition of insanity, and Petitioner conceded this in their brief, that we presented what would have been a valid insanity defense under the Tennessee law.

Lewis F. Powell, Jr.:

With respect to the issue of malice?

Scott Daniel:

With respect to the issue of whether or not he had the ability to… Malice requires intent.

Lewis F. Powell, Jr.:


Scott Daniel:

And, it requires the ability to formulate and carry out an intent.

Lewis F. Powell, Jr.:

Are you arguing that he did not intend to kill?

Scott Daniel:

I am arguing that he did not intend–

Lewis F. Powell, Jr.:

Then I come back to my original question.

Can you cite me anything the psychiatrist said that he lacked malice?

Scott Daniel:


Lewis F. Powell, Jr.:

That he was incapable of possessing malice?

Scott Daniel:

–What they said was that he… as I pointed out before, that he was incapable of, in their opinion–

Lewis F. Powell, Jr.:

Of conforming to the law.

Scott Daniel:

–Of conforming.

And, as I presented and as I think we presented it to the jury in the fashion that his conduct was such that it could not be voluntary and that is the essence of that defense, and we used it straight out of the Tennessee requirements so that he had to give his opinion exactly as the Tennessee law requires on that.

And that the Tennessee courts have interpreted as going for voluntary, saying it cannot be voluntary unless it is a produce of the free will.

If he cannot control it, he did not have the intent and cannot conform his conduct.

It is the determination that he didn’t have the intent necessary for malice.

Thurgood Marshall:

Mr. Daniel, why don’t you argue the case we asked you to argue?

Scott Daniel:

I apologize for getting off on that.

Thurgood Marshall:

I mean, it is your case.

Scott Daniel:

I respectfully agree with Your Honor.

I was simply trying to respond to a matter that they raised there.

What we suggest to the Court and what we submit and argue in this case is that the jury here clearly had before it a contested issue; that is there was a contested issue we contested all the way through.

That is that there was fighting going on.

We contested whether or not there was malice from day one, from the opening shot and the opening statement.

We claimed and attempted to show through every means possible that there were other explanations, there were fights or there was provocation, principally that there was no evidence as to what, in fact, had happened or how it happened.

It was credible.

And, that the jury instructions on the issue itself went to and said that you are to presume intent, you are to presume malice and malice it defined as intent.

They said this is presumed unless rebutted.

That here we had a defendant that was incapable of even recollecting the events, assuming he was there, could not present any evidence contrary to this.

This undercut our entire case.

It told the jury before it could to any of the other issues that malice was presumed unless rebutted.

Warren E. Burger:

Now, on the question of malice, does this record show with respect to the examination by the psychiatrist whether he had any recollection of having threatened to do these killings?

Scott Daniel:

No, there was no evidence to that.

Warren E. Burger:

The psychiatrist didn’t ask him whether he recalled that when they are dealing with his capacity for recollection?

Scott Daniel:

The psychiatrist, as I recall it, in essence said that he had no… He said he would never have done anything like that and had no recollection of ever having threatened or having done anything that would harm.

And, indeed, the lay witnesses themselves said, that although he made some threats at times he also on other occasions said I would never do anything to her, I would never hurt her, anything of this nature.

So, the psychiatric testimony did not anywhere state in any way, shape or form that he ever threatened or claimed to have harbored any intent to harm her.

Lewis F. Powell, Jr.:

The presumption, of course, was rebuttable.

Let’s assume that you had no psychiatric evidence whatever.

Do you think the evidence in this case would have rebutted the presumption of malice?

Scott Daniel:

Do you mean the evidence in the sense that we were–

Lewis F. Powell, Jr.:

You had no psychiatric evidence to enable you to argue insanity.

That would leave you with all the facts that were outlined by your opponent in this case.

He had threatened to kill his former girlfriend five or six times, he followed her car down the road, he fired three shots into her at close range.

In spite of those facts, are you suggesting that unless you had had the defense of insanity that the evidence did not rebut successfully your position?

Scott Daniel:

–Oh, no.

Your Honor, please, if the insanity defense were not there, our claim would be identical.

We would not be changing the argument I am making right now.

Lewis F. Powell, Jr.:

So you don’t have to rely on insanity?

Scott Daniel:

Don’t have to rely on insanity.

That is in addition to the other defense, because… this is what I was going into to begin with… the facts… First of all, I don’t agree with their statement of the facts, they are reaching conclusions, but, nevertheless, the issue of intent is one which to be submitted to the jury where we contest that issue.

In essence, by the ruling of the court, constituted a directed verdict on that particular issue of intent, whereas, we were contesting it.

We are entitled to the presumption of innocence.

If we didn’t have the other evidence, statements, that there was a fight, of a gun in the pocket of a man with a bullet in the chamber, whether or not it had been fired five minutes before or an hour before or could have, you know, all these types of things.

There was absolutely nothing that the jury was required to accept that would have required them to reach the conclusion without this presumption that malice was intended.

Malice must go to the second degree as well as the first degree offense.

Now, the Tennessee Supreme Court in the recent case of State against Martin, which I attached a copy to my brief in this Court, came out with a decision in which in essence it has now acknowledged the erroneous presumption here.

It reversed a murder case in that one on its own initiative even though the error wasn’t raised because it was a death penalty case.

But, in that case, they have now conceded that even though premeditation is found specifically, that premeditation was clearly proved in the Martin case, but that this was not sufficient to dictate a finding of malice and it reversed on the issue of malice while finding premeditation was fully established even though there were substantial eye-witnesses to it, because it held that malice is a separate issue and that malice in order to be found cannot be presumed under its view of the law now and that since it cannot be presumed it found that this was a separate issue which must be tried by the jury upon proper instructions irrespective of whether the evidence with regard to premeditation was clearly sufficient and that is what it found.

So, we submit to the Court that the Tennessee Court, even now by its own findings, by its own determination, has reached the position that we have taken throughout.

It has taken perhaps five years to get there because of various different evolutions of the case, I guess, but now we submit that their decision in that case is controlling here as to the Tennessee law aspects of the case.

Warren E. Burger:

Do you suggest that there was not abundant evidence on the malice issue apart from the instruction?

Just looking at the evidence, do you say this record does not contain overwhelming evidence of malice?

Scott Daniel:

I say it contains sufficient evidence of malice just as in the case–

Warren E. Burger:

First, he had threatened the man.

Second, he was seen to have pursued him, and, third, while pursuing him, he was himself armed, and, fourth, he blocked the victim’s car so that the victim couldn’t get away.

How could you find more evidence of malice than that?

Scott Daniel:

–Well, first of all, the pursing.

There was no showing that there was pursuing in any fashion other than just simply driving behind him.

There wasn’t any chase at that time.

The police officer who was behind them saw them and didn’t see any conduct wrongful there.

Warren E. Burger:

Well, when it is coupled with going ahead of the man and blocking the victim’s car, does that tell you something about the purpose of the pursuit?

Scott Daniel:

We don’t have any proof of that that is credible proof.

Warren E. Burger:

Well, is there not something there on which reasonable people could draw certain inferences?

Scott Daniel:

Well, if you feel that you are required to accept the state’s testimony of a little girl who was the only eye-witness, who the judge said was impeached, and who admitted that she had been told by her father what to say at the trial… her father being the other man we suggested who possibly could have committed the offense… then you can draw certain conclusions.

But, her testimony was wholly incredible.

Warren E. Burger:

I thought you had earlier conceded that the evidence here was overwhelming.

Now you are challenging the evidence.

Scott Daniel:

No, if Your Honor please, you asked me that question earlier, I believe, and my response, as I understand it, was that it was not overwhelming.

That is the position we have taken specifically in our brief, it was not overwhelming, that it was sufficient.

If the question was simply sufficiency of the evidence to establish the fact, I wouldn’t argue that.

But, to say that it is overwhelming so that it dictates that conclusion, I respectfully submit–

Warren E. Burger:

Well, then, let’s take your position that it is merely sufficient to support the verdict.

Then, why is it relevant to be dealing with these peripheral things about suggesting that maybe he isn’t really the guilty man.

Scott Daniel:

–Well, if Your Honor please, we contended throughout the case that, number one… Our defense was this: Number one, that we do not believe he committed the offense.

He said I would not have any reason to do it, I loved her, I wouldn’t have done it.

Number two, if, in fact, he committed the offense, he did so as a result of mental illness over which he had no voluntary control and over which his will had no… He was unable to formulate the intent and had no ability to conform his conduct, and, likewise, he did not have the intent, malicious intent, irrespective of the mental element; that it arose out of a fight, a provocation or a heat of passion type of thing which would reduce it to manslaughter.

And, this is what our position was.

If we were to go back and again try the case tomorrow, I can’t concede that my man committed something he says I don’t remember doing and wouldn’t have done, I loved her.

So, I am in the position of having to argue these things without a client who can testify as to what occurred, assuming he was there without conceding he was there.

Thurgood Marshall:

He wouldn’t have killed her because he loved her.

Scott Daniel:

That is his–

Thurgood Marshall:

Did he love the man too that he killed?

Scott Daniel:

–No, Judge… Excuse me, Mr. Justice Marshall, I am sure he didn’t love the man and I wouldn’t say that.

I am simply saying as it respects the female victim in the case, his position throughout and through all the psychiatric was that he loved her and he couldn’t conceive of ever having had any reason or–

Thurgood Marshall:

But, he didn’t testify.

Scott Daniel:

–No, no, he didn’t.

Scott Daniel:

He couldn’t.

He wasn’t there or didn’t recall any facts about the incident and had no way to present any evidence as to what actually did occur.

There simply was no thread of direct evidence as to what happened in this case.

It is simply a case of circumstantial evidence in which the only witness who allegedly present was admittedly impeached according to the trial judge and testified as we mentioned before.

I further submit this and this is a point I think is necessary here, the only issued that was raised here is the harmless error, whether or not the evidence beyond a reasonable doubt.

Both the district judge and the Sixth Circuit panels, who presumably are reasonable and competent, experienced jurists, agreed with the position we have taken here with regard to the effect of this error and their ruling in this case related to a thorough consideration of the factual aspects as the trial judge went at some length to detail and point out.

I am not just coming out of left field.

This is a matter that the jurists who have considered this matter before on this particular issue particularly went into and evaluated.

Now, they did so under the harmless error doctrine.

They applied the Chapman rule of beyond a reasonable doubt and since that has already been applied here, I respectfully submit there is no reason for this Court to determine what other type of harmless error rule could apply in some other case under different facts and hypothetical circumstances.

We submit that the federal courts below have evaluated the error based upon the Chapman rule, have reached the logical, proper conclusions under that that rule and that should dictate the holding of this Court in this case because of the fact that they have made their ruling and the fact that they considered the issues presented to them in this case.

We further–

John Paul Stevens:

May I ask you a question about Tennessee law, Mr. Daniel?

In this case, as I understand it, the Tennessee Court of Appeals didn’t think there was any error at all, therefore, didn’t confront the question of whether it might have been harmless had there been error.

Does Tennessee follow a harmless error rule in cases like this in other state cases, do you know, or have they decided?

Scott Daniel:

–No, they follow a harmless error rule.

John Paul Stevens:

Is it the same test as in Chapman against California?

Scott Daniel:

Basically it is the Chapman test, Your Honor.

Warren E. Burger:

Does Tennessee in cases generally follow the general rule on inconsistent verdicts of juries, the general law on that subject?

Scott Daniel:

Generally, I would say so, Your Honor.

They have not reversed simply because of an inconsistent verdict.

They have held verdicts that were inconsistent in several different types of cases.

William J. Brennan, Jr.:

Mr. Daniel, was the weapon recovered?

Scott Daniel:

The weapon that was used in–

William J. Brennan, Jr.:


Scott Daniel:

–It was recovered, yes, Your Honor.

It was introduced.

It was recovered under unusual circumstances.

Again, it was found some three weeks after the event and was introduced as being the weapon that was alleged to have–

William J. Brennan, Jr.:

Any fingerprints?

Scott Daniel:

–No, there were no fingerprints on it.

It had been out in the weather and they claimed there was no way to obtain fingerprints at that time.

Furthermore, nobody saw it being disposed of and when they talked about a high-speed chase and so forth, that again is contested and there wasn’t really any–

Lewis F. Powell, Jr.:

Did not the testimony show that the pistol was the same one borrowed from his friend?

Scott Daniel:

–Yes, testimony did show that it was Mr. Terry Hill’s pistol and it was the same one he had borrowed earlier.

There were some other aspects of that which I have gone into at length in the brief and I won’t go into all of that, but at any rate that much it was.

That is correct.

It was, according to the testimony, loaned to my client.

We, again, submit that the controlling rule here is the fact that we have right to rely upon the presumption of innocence and that the Court cannot, in keeping with the process and justices that have been followed by this Court throughout, say that in essence directing a verdict on an issue that is contested in a case and where they Defendant cannot, due to his mental condition, is unable to, assuming he even was there, testify, present evidence, rule that he was obligated to rebut this type of evidence as the instruction would require him to do and it was denied the presumption of innocence.

The presumption of innocence, if we had had that alone… simply go into court and say we want to rely on a presumption of innocence, that that presumption alone should have been enough to allow us to make the jury confront the issues head on without a presumption telling them what they are supposed to do unless we rebut it.

And, that really gets down to the crux of the matter.

Although we think we have a much stronger say as the trial… district judge and the other judges in the Sixth Circuit pointed out, we nevertheless submit that to adopt the position taken by the Petitioner in this case is simply do away with the presumption of innocence in a case where there was strong evidence and allow the court simply to take a position that, well, all right, we don’t think there is enough evidence and there is strong evidence on this, it really makes no difference to us whether or not this issue… the jury was allowed to fairly consider this issue without placing the burden to rebut it on the other side.

And, under this posture, we just don’t think that the position taken by the Solicitor General or by the Petitioner in general can be a proper position to be adopted.

Finally, in closing, I will simply state that we submit that that is one issue that this Court doesn’t need to reach.

That it simply is a matter that that issue has already been properly and fairly decided by the district court and the Sixth Circuit and that the presumption that clearly was erroneous and clearly prejudicial to each of the defenses, which we attempted and feel like we did present at length at the trial.

Warren E. Burger:

Did you have anything further Mr. Attorney General?

W. J. Michael Cody:

If the Court please, with your indulge just mention two very short points.

One, the evidence in this case which I recited in the opening statement, I believe, is taken almost verbatim from the Tennessee Court of Criminal Appeals’ findings.

And, with respect, I believe, to Justice Powell’s question about the psychiatrist’s knowledge of the prior threats, on page 129 of the record, Dr. Roger White, Psychiatrist, is asked, would it have helped you to have known past threats that this Defendant made toward the victim.

The answer was in this particular case and considering the special nature of my contact with him, probably not.

My opinion is based largely on my contact with him and his response to a special form of examination.

John Paul Stevens:

General Cody, can I ask just one last question, please?

W. J. Michael Cody:

Yes, sir.

John Paul Stevens:

Is it your position that we should make the harmless error determination or send it back to the Court of Appeals to do so?

W. J. Michael Cody:

That this Court should.

Thank you.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.