*1 Pеnnsylvania always is no indication that Philmont the observation disapprove and ob- credit market courts would an acceleration have re-entered the same terms as provision predicated loan for on other rational a second tained satisfy loan, proceeds to using the clause in lease prior grounds, and the Finkle’s in Finkle’s lease. clause predicated ground. acceleration I manifestly such a suggests that Phil- record Nothing Finkle, Gulf, and Phil- note as well loan for a obtain such a mont could knowledgeable all commercial ac- mont are Indeed, rate of interest. term and similar bargain is no evidence that the tors. There not that the objection is true Philmont’s product and Finkle was the between Gulf of the loan in- the cost present value of overreaching, assignment or that acceleration, or that creased because Gulf and Philmont was not an between pay- a sudden balloon make it is unable to arms-length commercial transaction. contrary, Phil- Finkle. To ment to reasons, I For these would hold that it must make an simply thаt gripe is mont’s sustaining is no basis for a directed there vacated the having payment accelerated verdict for Gulf and Philmont at the close However, Savings es- Western premises. case. It cannot that as of Finkle’s be held obligated to that Philmont tablishes pay- a matter of law acceleration of the regard without improvements pay for the to ments Philmont undertook make was premises. And it vacated whether penalty. I would reverse and remand for change the clause did not the acceleration claim, recognizing that trial on Finkle’s improve- those the cost of present value of presented, when Philmont’s case is ar- short, objection Philmont’s ments. penalty claim gument that the involves a all, repayment schedule at not to the differently. might appear pay for the im- obligation its having prem- vacated the provements after is, objection is to Philmont’s
ises. That itself. Savings
Western
Moreover, consequences adverse serious holding that a lender
may from a follow clause to a may not tie an acceleration FULTON, 127-943, No. Samuel There lesseе’s failure renew lease. Appellant, perfectly economic reasons for are rational accelerating when a lessee a loan balance property. lender’s vacates a WARDEN, MARYLAND stance, Finkle had an effec- example, PENITENTIARY, pres- security interest virtue of the tive Appellee. equipment prop- on his ence of Philmont’s ROBINSON, Fitzgerald Ronald # proper- vacated the erty. When Philmont 125759, Appellant, means of secur-
ty, Finkle lost a convenient circumstance, entirely it is ity. Under that seek an acceleration rational for Finkle to WARDEN, MARYLAND of the loan. PENITENTIARY, law, Pennsylvania acceler- Finally, under Appellee. mortgages ation in commercial clauses 6695(L), 82-6040. Nos. 81— conditions are predicated on reasonable Appeals, Court of United States generally honored. Bell Federal Sav- See Fourth Circuit. Lanes, Inc., ings & Loan Ass’n v. Laura Super. 435 A.2d 291 Pa. Argued Oct. 1983. (1981); & Missionaries Ministers Sept. Decided 253 Pa. Goldsworthy, Board Benefit 321, 328-29, Super. 385 A.2d rule, As a conditions relate those However, mortgagor’s default. there *2 Ricciuti, Baltimore, (Richard
Thomas Md. Davis, Jr., S. H. Christopher Buckley, Bev- Diamond, P.C., eridge D.C., & Washington, brief), appellants. for Rosenblatt, Richard B. Atty. Gen., Asst. Baltimore, Sachs, (Stephen Md. H. Atty. Gen., Baltimore, Md., of Maryland, brief), appellee. for WINTER, Judge, Before Chief PHILLIPS, Judges. HALL and Circuit WINTER, Judge: HARRISON L. Chief Samuel Fulton and Ronald Robinson first-degree were each convicted murder Maryland early court 1970’s. Both asserted defenses. Their convic- entirely separate tions arose from crimes appeals their are related legal they petitioned issue on which both corpus for habeas relief. actions, in unrelated Fulton and petitioned
Robinson each for a writ ha- corpus beas in the United States District for Maryland. the District of Both Fulton Robinson were found to have remedies, exhausted their state district court concluded the instruc- tions in both trials were constitutionally juries infirm. It is now conceded that erroneously which convicted were them respect structed with to the burden of Joyce, that Mr. and Mrs. Ful- In ter testified of alibi. concerning their defenses however, argument. Both also testified instances, the district court had an ton his wife with an axe that Fulton threatened the errors concluded subsided, each point. argument how- particular circumstances at one under appealed ever, upstairs and Robinson Fultons later went Fulton and both Both case. argu- apparently together. Clay, consolidated Anrair *3 their cases were to bed reviewing the sister, After upstairs us.1 her called ment before worried about cases, are convinced we approximately records in both Fulton at check on Mrs. correctly decided district court p.m. 11:00 and later at 5:00 a.m. At both Accordingly, we affirm both cases. indicated that hus- points, Mrs. Fulton her judgments. everything was with her and was “all band
right.” Clay again Anrair saw Mrs. Fulton I. morning roughly the next from 7:45 to 8:10 they sending when their children a.m. life in Fulton was sentenced Samuel Clay upstairs As to school. Ms. went back murder of his first-degree prison for bed, shape she in her to return saw placed examiner medical The state’s wife. bed that she assumed to Mr. sister’s at between Fulton’s death time of Mrs. Clay slept Fulton. Ms. testified that she February 11:00 a.m. on a.m. and 5:00 approximately until 11:55 a.m. and then further was narrowed The time 1973. discovered her murdered sister the nеxt sister, Clay, who was Anrair Fulton’s Mrs. on her back in bedroom. Mrs. Fulton was Clay residence. Ms. staying at the Fulton bludgeoned had with bed and been to death Mrs. spoke she saw and with testified that eventually a blunt instrument determined to 8:10 approximately 7:45 Fulton carpenter’s in a to be a maul found hidden morning the murder. on the a.m. china closet downstairs. Cates, neighborhood of a Edward owner home, the Fulton’s store three blocks from police, on the basis of the above approx- Mr. Fulton for testified that he saw facts, procured Mr. Fulton’s a warrant for 8:30 and 8:45 imately five minutes between arrest. Mr. Fulton himself at surrendered during morning of Mrs. Fulton’s death. approximately p.m. February 10:30 28. testified that Mr. Fulton asked for Cates a.m., 10:40 and 1:30 Mr. Fulton Between change for the streetcar and told he Cates physical examined for evidence and nothing found was late for work.2 Cates by police A interrogated detective. benzi- unusual Fulton’s demeanor and testified on Fulton’s dene test for traces of blood he looked “normal”. Fulton now con- yielded positive indicating results hands testimony tends that this constituted presence of human around the cuticle blood alibi, which, jury in- absent an erroneous trial, fingernails. areas of three At how- struction, could have created reasonable ever, there cast on the was some doubt guilt. his doubt as to accuracy qualifications of the test and the the individual administered it. who uncontroverted evidence at There was Also, voluntarily made an oral statement slight- Fulton arrived at his home trial that during interrogation was admitted at February ly p.m. 8:30 before suggest tended to trial. The statement separated family from his Fulton had been that Fulton knew the nature of the murder residing previ- state for the another weapon, though the exact contents of present two months. Two witnesses ous dispute. statement were in evening, Clay Anrair and Fulton’s sis- — -, pend- equally-divided argument, stayed court. 1. After we our decision (1984), affirming ing Supreme that of the Court in Koehler 83-1, (6 Cir.1983). opinions believing Supreme No were filed. Engle, No. would discuss the harmless-error test as jury instructions. relates that Fulton was unem- 2. The evidence showed March ployed Koehler was decided the time of the murder. on, attempted to triаl, handgun. create and the unlawful use of a At Mr. Fulton guilt by suggest- Robinson was to two his sentenced life reasonable doubt as to terms years. and an actually killed additional term that Mrs. Fulton Rosado. Some cir- paramour, her Louis charged The crime Robinson with support seemed to cumstantial evidence place took in the Lenox Furniture Store in days ten possibility. Approximately George’s County Price on November death, Mrs. Fulton resumed a prior to her p.m. between 2:00 3:00 Two of Rosado, to relationship whom she had employees the store’s were shot to death. Rosado previously engaged. testified third, Loewy, A Robert was shot twice but in love with Mrs. Ful- at trial that he was lived. Mr. Loewy testified at trial that on she intended to di- ton and believed that crimes, the day shortly noon, before marry him. vorce her Rosado husband fitting individual Robinson’s description every night during had Mrs. Fulton visited looking entered the store for a lamp. At death, and he prior the week to her testi- *4 time, Loewy helped the customer who night the her spent fied that he had with on eventually particular did decide on a lamp. Furthermоre, he had February 26. visited Loewy’s possible in-court identification of at approximately Mrs. Fulton at her home suppressed. did, Robinson was He how- evening February 6:30 or 7:00 on the ever, identify slip a sales for the lamp shortly arrived. before Mr. Fulton Fulton which he had for the written customer un- suggests possible a motive for Rosado der “Jeffrey the name of Robinson.” The might apparent at an jealousy have been however, signed, ticket was in the name of reapproachment Fultons.3 between “Ronald An FBI Robinson.” handwriting expert signature later testified that the piece A second circumstantial evidence slip lamp sales for the had been written suggesting involvement was a Rosado’s by the defendant. fingerprints Pabst beer can with his on it Clay found the bedroom. Anrair testi- Loewy testified that the same man came bought six-pack fied a that she of Pabst back to the store later afternoon to February sometime p.m. after 8:30 lamp. Loewy return the filled out a sales refrigerator as there was no in the slip beer lamp for the return of the and the that time. The is silent as purchasе reclining record to wheth- of a chair. With the over, exchange er there were cans apparently Loewy other beer around the returned house. police moments, The found both a can of other matters. After a few asking Pabst and a soft drink can on a the customer table returned whether the chair could in a fingerprints bedroom. Mr. Fulton’s be obtained different color. on the Mr. customer then a prints soft drink can. Rosado’s brandished revolver money and demanded regis- were later cash identified on beer can. Ro- fire, trial, opened ter. He however, then shot three em- sado testified at that he drawer, ployees, emptied the cash worked fled. from 5:00 a.m. or 5:30 a.m. until February around 11:30 a.m. on 28. At the placed Two other witnesses Robinson on time, employed Rosado was the Balti- Marcus, scene. Richard student and City Department. more Sanitation No evi- part-time began employee, work immediate- dence contradicting story Rosado’s was ly shooting. Marcus, before the who was troduced trial. injured, the assailant ap- observed proximately fifteen minutes and identified II. Sergeant Robinson. Staff Claude Jeffer- son, Ronald convicted neuropsychiatric supervisor Robinson was of: first- at Wal- murder, degree with ter Hospital, assault intent to mur- Reed also in the store der, attempted robbery deadly weap- when the assailant entered the after- 3. Rosado testified that he was not aware that ton’s return when he heard that Fulton was returning Mr. Fulton ary being would be home on Febru- sought for the murder of his wife. became aware he first of Ful- instruc- mony, an erroneous alibi shooting absent left before noon. Jefferson tion, have created reasonable doubt being in the store. as Robinson identified during the afternoon to his whereabouts implicated circumstantial Other question. First, cloth- police recovered Robinson. matched home which ing from Robinson’s cloth- gunman’s description of
Loewy’s III. arrested, Second, Robinson was ing. when case, the state the close of the Fulton At long-barreled .22 a loaded police seized gave following judge trial car, which Robin- from his caliber revolver concerning defense: an alibi triаl, At as his own. claimed then son proving the burden of The defendant has the bullets testified that expert ballistics and must do so an alibi defense fired could have hit the victims which evidence, not be- preponderance of the were too the bullets gun, but that by that common, doubt. order to mutilated, rifling yond a reasonable too testimony must cover prove an alibi the identification. permit positive by any the crime the whole time which incriminating evidence most Perhaps the might been committed possibility positive identifi- against Robinson rigid subjected scruti- and it should fingerprints on the of his of two cation ny. prints taken from of those scene. One store the other from the lamp and given at the A similar instruction was counter. the Robinson trial the state trial close of *5 judge presided at it: arrest, who Immediately after his Robinson having in the Lenox Fur- been denied ever Now, case asserts the defendant this Store, claimed to have been and also niture you of an alibi. Now will the evidence at an indoor recreation shooting basketball understand, gentlemen, ladies and that killings. time of the How- center at the is what we call an affirmative ever, center manager of the recreation a de- complete defense. It is of course no had used the basket- testified that one Obviously per- it. you fense if believe February 8. afternoon of ball court on the the scene could not son who is not at trial, say alibi. We it is an complete At Robinson had a different the crime. three witnesses. story was based on because this is the His affirmative defense elderly female relative The first was time in this case where the defendant one chopped wood testified that Robinson who It proof. of is the has the burden until shortly from after 11:00 a.m. for her thing in as to which he has the the case p.m. testified approximately 3:40 She also proof. of On defense of alibi burden from telephone made a call that Robinson responsibility has the to sat- the defense p.m. 3:40 while he ate. Final- her house at preponderance of isfy you by a fair p.m., that at 4:15 Robinson ly, she testified that he was not fact pick up the Post a check went to Office in fact was somewhere else. storе and her. evidence has been introduced tend- Now ing to show that the defendant was not trial, parties stipulated During the present place the time and at testified, Postmistress would that a where these offenses were committed. called, that she had known had she may not be convicted of The defendant life, and that at for most of his Robinson charged with which he is the offenses day robbery, Robin- p.m. on the 4:00 proves beyond a unless the state reason- up “grandmoth- check for his picked son the defendant was able doubt witness, seven- A third Robinson’s er.” place where present at the time that on teen-year-old girlfriend, testified If after full committed. offense was called her day killings, Robinson all the facts and fair consideration of spoke until p.m. 2:30 and the two at about you find in the evidence circumstances p.m. argues that this testi- 3:00 Robinson
1031 preme has precedent satisfied the fair left ques- the defendant has this evidence concern- unanswered, tion preponderance different circuits he was in man and that fact ways. have resolved the issue different scene, nоt at the else and somewhere See, 1332, e.g., Jernigan, Lamb F.2d acquitted. he must be then (11 (a Cir.1982) burden-shifting require setting instruction does not aside There can little doubt be defendant’s conviction sentence if the constitutionally infirm. are instructions 358, 364, beyond instruction is found harmless a rea- Winship, U.S. In Re See (1970) doubt); Solem, sonable Dietz (“... protects 126, (8 Cir.1981)(it the Due Process Clause probable against except upon conviction accused presumption or conclusive every doubt of proof a reasonable jury instruction is constitutional necessary to the crime with fact constitute and of itself it unlikely so that that the charged.”); he is Patterson v. New which harmless).4 ever instruction can 215, 2319, York, 197, U.S. (a 2329, (1977) 53 L.Ed.2d State must guidance Recent from the Supreme every ingredient of offense be prove Court has not been definitive. Connect and may a reasonable yond doubt icut v. defendant); to the the burden of shift (1983), plurality L.Ed.2d Montana, and Sandstrom of the Court that a pre held conclusive 61 L.Ed.2d 39 sumption jury equiva instruction was the which, (a presumption although not lent of a directed verdict on the issue and conclusive, shifting hаd the effect Sandstrom, supra. contravened jus Four persuasion the defendant is burden agreed that, tices barring certain delineat infirm). constitutionally exceptions, ed a Sandstrom violation can never be error. The instructions each these two 103 S.Ct. at L.Ed.2d at 835. How can be taken trials to shift burden of ever, Stevens, presence Justice whose proof as to the element of vote was majority, expressed needed to prosecution to the defense. The state make a *6 concurring in opinion now concedes constitutional error but ar view his that if the that, case, of each gues under the facts grievous, violation was less a er harmless were a beyond errors harmless reasonable ror determination could be made. 460 U.S. Chapman California, 87, 978, doubt. v. 386 U.S. 103 74 S.Ct. at L.Ed.2d at 835. 824, 18, S.Ct. In 87 Similarly, majority a of the Court in United cases, agreed court the district v. 461 Hasting, States Warden, v. errors harmless. Fulton (1983), 76 L.Ed.2d held: Penitentiary, F.Supp. Maryland Chapman “Since Court has consistent (D.Md.1981); Warden, Mary Robinson v. ly duty made it clear that is the of the (D.Md. F.Supp. Penitentiary, 518 land reviewing court to consider the trial rеcord 1981). ignore as a whole and to errors that are including harmless most constitutional vio There are few areas of the law as Accordingly, lations.” we conclude that fraught uncertainty analyses as per there is currently no se rule of ques- harmless error. There is threshold reversal type tion as to whether errors constitutional violations present as these can ever harmless. such Su- Fulton In Robinson.5 Carolina, point Cooper expressly 4. A dictum v. State North strom shows not event, Cir.1983) (4 decided. Cooper F.2d statement is to the effect unquestionably binding and not compels dictum charge or even which invites panel. this jurors accept view of the unconstitutional can never be error. The law dictum recognized supra, Supreme 5. As in n. Sandstrom, supra, cites recently Court has even more unable to authority, reading but a close of Sand- -type resolve whether the issue of Sandstrom errors, fundamentally unfair, trials involving similar we have al- rendered the cases impact demanding standard to of those errors more be satisfied ways assessed considering required by the the record as a than that usual harmless carefully error test. e.g., instance. See Anderson whole in each Warden, Maryland Penitentiary, v. IV. (4 Cir.1982),and F.2d 296 Guthrie Ward- en, Penitentiary, F.2d 820 Maryland Apparently appreciating the differ- (4 Cir.1982). approach required ence direct and Henderson, collateral attack established in appeals arise Because these supra, the district court in both Fulton corpus, petitions for writs habeas demanding used the less Robinson wholly analysis is not strict harmless Nevertheless, analysis. harmless error Maryland, Morris v. appropriate. both instances the district court found the Cir.1983). (4 re “On collateral F.2d 106 errors harmless a reasonable doubt. allegedly jury charge, erroneous view of an carefully examining After the record in petitioner must meet ‘a stricter a habeas case, agree. each we Not did the required than is on di standard of errors at issue not render the trials funda- Id., rect review of criminal conviction.” unfair, mentally they were harmless as 108, citing Cooper, supra n. well. recognized at 483 n. 2. Morris we corpus proceedings the nature оf habeas A. Fulton requires application of the standard of Kibbe, proof delineated in Fulton’s Henderson contention reduces itself to 1730, 52 203 the presence L.Ed.2d assertion that his in Cates’ (1977): approximately store for five minutes out possible of a three-and-one-half hours dur appeal
... our task on this
is not to
ing which the crime could have been com
apply
analysis
the harmless error
might
mitted
have created reasonable
Chapman
California,
1034
store;
was a fabrication
alibi
did
shift
the alibi
instructions
respective
petitioners the
habeas
burden of
doubt.
any conceivable
disputed
pres-
persuasion on the
issues of
alibi instruction to
erroneous
For an
ence.
unfair,
fundamentally
there
a trial
render
possibility that
some articulable
must be
I
hold
To
otherwise
could be true.
the alibi
California,
Chapman
In
386 U.S.
substance to
procedure over
elevate
would
(1967),
705
S.Ct.
L.Ed.2d
gov
would
this review
an extent where
Supreme
rejected
view thereto
by per se rule
that does not admit
erned
fore
that “all fedеral constitutional
held
per
se
Believing that no
rule
flexibility.
of
errors, regardless of the facts and circum
unques
exists,
alibi here
and that the
stances,
always be
must
deemed harmful.”
fabricated,
also affirm this
we
tionably
Id. at
opening
at
In
826.
corpus
denying
relief.
habeas
judgment
even
possibility that
some constitutional er
AFFIRMED.
by appellate
ror might be “declared”
courts
“beyond
to be harmless
a reasonable
PHILLIPS, Circuit
JAMES DICKSON
doubt,”
however,
emphasized,
the Court
dissenting:
Judge,
rights
are some
“there
the denial
majority affirms
of habe-
so
to a fair trial that their infraction
basic
of these cases on
corpus relief in both
can never be treated as harmless error.”
the state trial court’s
each
the basis
Id.
at
at
Specific
exam
concededly erroneous
alibi
per
se
ples
of
harmful
constitutional error
beyond a reason-
instruction was harmless
confession,
citing
coerced
given:
overwhelming
because of
able doubt
Arkansas,
Payne
356 U.S.
S.Ct.
guilt coupled with the weak-
of
evidence
(1958);
1035
Wilbur,
See, Mullaney
v.
problem
arguably
421
the effect of
errone-
charged.
1881,
684,
1036
post-Win-
2781,
14,
(1979)
n.
560
2789
61 L.Ed.2d
in these
opinions
various
skip cases
(“failure
jury
that at
least a
to instruct
on the necessi
to me
imply
present
of the
can
ty
proof beyond
the members
a reasonable doubt
majority of
Cool v. United
if a chal
assume that
error”);
now
be harmless
Court
never
(a) relates
States, 409 U.S.
to an
357,
either
lenged
354,
instruction
(as
opposed to
the offense
element of
(1972) (instruction whose
L.Ed.2d 335
defense”)
(b)
“affirmative
matter of
defendant
to
require
effect was “to
effectively shifts
on that ele
the burden
establish his innocence
beyond a reason
accused,
(c)
fails
or
otherwise
to the
ment
“plainly inconsistent
able doubt” said to be
ele
as to all essential
place the burden
constitutionally
presump
rooted
state,
upon the
charged
crime
ments of the
innocence”).3
tion of
See,
per
se
harmful.
deemed
it is to be
Johnson, 460 U.S. at
e.g., Connecticut
II
J.,
(Blackmun,
for
at 978
S.Ct.
Considering
open
one for
the issue
(instruction
shifting
plurality)
4-member
only support
authority
and not direct
which
said to have de
by presumption
burden
Supreme
found in the critical
Court
can be
“
rights
‘constitutional
sо
prived accused of
decisions,
way
I
out the same
on an
come
that their infraction can
to a fair trial
basic
consideration of the relevant
independent
”);
treated as harmless error’
never be
cf.
factors.
(Powell,
id. at 98 n.
at 983 n. 6
Looking
subject
of the chal-
first
members,
J.,
dissenting)
(challenged
instructions,
lenged
defendant’s
alibi evi-
burden,
said not to have shifted
dence,
settled,
it is
and is not here chal-
comparable
an instruc
hence to
“not
be
because,
lenged, that
as a matter of federal
that can never
harmless —for exam
tion
law,
relates to an element of
this “defense”
to inform the
ple, an instruction that fails
charged,
burden of
the crime
guilt
it must find
a rea
constitutionally
see also Jackson
Vir
doubt”);
upon may
it
not
be shifted
sonable
Bordenkircher,
to the accused. Adkins v.
ginia,
n.
S.Ct.
language
discussing
Critically,
plurality and
whether the incor-
both the
the dissent-
presumption”
poration
ing opinions
agree
"Sandstrom
that an
in Johnson
instruc-
required,
dissenting opinion’s
instructions
effectively relieve the state of the
tion that does
terms,
reversal," Johnson,
"automatic
460 U.S. аt
proving
disputed
element of the
burden of
But,
greatest
S.Ct. at
with the
982.
harmless;
they
can never be deemed
dif-
crime
deference,
suggest
point
focal
of the
I
that the
only
the effect of the
fer
in their assessments of
only
actual debate within the Johnson Court was
presumption
id. at
&
there
issue. See
97-98
predicate question
of constitutional
J.,
(Powell,
&
n.
983-984
n.6
presumption
effectively
did
error: whether
dissenting).
way,
agree
Put another
that at
proving
relieve the state of the burden of
intent.
point
some
instructions become
this,
point
And on
the real
of division between
J.,
se,
(Powell,
per
harmful
see id. at 95 n. 3
range
opinions appears
two
to be the
dissenting);
they
only
point
differ
on the
inquiry
predicate
of record
to determine that
scope
this occurs and on the
of the
which
Blackmun,
plurality,
question.
for the
Justice
inquiry appropriate
record
to determine this.
thought
inquiry
should be confined to the
Neither indicated
belief that
if such an
themselves,
instructions
considered as whole.
occurred, might
instructional error
it
then be
that basis he concluded that the instructions
On
overwhelming
harmless because
found
must be considered to have
"the functional
guilt.
evidence of
equivalent of a directed verdict on
issue
[the]
Id. at
S.Ct. at
Justice
976.
[of intent].’’
attempting
probable
view of a
divine
Powell, writing for the four members of the
majority
Court on this unresolved but
dissenting, thought instead that for the
issue,
amiss,
insistently recurring
it cannot be
determining
pre-
purpose
limited
sumption
whether the
light
the Court in
of the division of
Connecticut
the manner of a directed ver-
—in
ponder
implications
Engle
issue,
out of
took intent
dict—
Court could
Koehler,
(6th Cir.1983),
707 F.2d
properly
into account not
take
—court,
U.S.-,
by equally
intent
divided
the instructions but all the evidence of
aff’d
(Marshall, J.,
jury.
that was before the
On this basis he
80 L.Ed.2d
thought
not been relieved of the
the state had
participating).
presumption
prove
burden to
intent
con-
sidered in this fuller context.
Patter-
(4th Cir.1982);
Finally
plain
critical ele-
cf.
*11
York, presence
of
the
in
New
accused —was
son v.
ment —
of
disputed
each
these cases a
issue for the
L.Ed.2d 281.
jury5
necessarily
that was then
decided
Looking
question
the
of whether
next to
adversely to the accused
the
by
guilty ver-
effеctively
challenged
shift-
the
instruction
dict. These
are
cases
therefore not
the
of
ed
the
in these
the burden to
accused
type suggested in
plurality opinion
the
in
again
is no
there
doubt
cases —
Johnson,
Connecticut v.
460 U.S. at
patent, unquestionable
did. The
effect of
977, in
facially
103 S.Ct. at
which a
errone-
convey
impres-
was to
these instructions
ous
instruction
could be
sion
the
the
had
jury
to
defendant
found, however, not to have been violative
acquired
disproving
pres-
the
of
his
process
burden
of due
the
because
element
to
which it related
(hence
was —for
number of
ence
the crime
his criminal
scene
e.g., Krze-
issue,
actually
reasons —not
in
general) by undertaking
prove
in
agency
to
Perini,
minski
(6th
614 F.2d
presence specifically
his
elsewhere.
Cir.1980) (intent
by accused),
conceded
or
cases are therefore not like those
These
manifestly
ultimately
not
ad-
decided
proper
analysis
cases in which a
contextual
e.g., Hearn v.
versely
accused,
to the
reveals
the asserted constitutional vice
James,
(11th Cir.1982)
677 F.2d
single
dissipated
of a
instruction has been
(erroneous
intent;
murder
specifically
or
by other
curative
otherwise
conviction
manslaughter).
of
Cupp
corrective
instructions.4
Cf.
analysis
On
threshold
of the instruc-
Naughten,
141, 146-47,
tions’ effects we
have
therefore
in each of
see also
396, 400-01,
(1973);
that the
that it
taints the
right
fact-finding process.
fraction of
basic
whole
In this critical
generally recognized Winship
spe-
respect it differs from trial errors such as
vindicated,
cifically
examplе, in
Mulla-
evidence, see,
the admission or exclusion of
ney.
e.g.,
Hastings,
United States v.
(1983),
squarely
This in turn then
raises
identifiable,”
“scope
readily
whose
Hol
issue of whether this constitutional error
*12
Arkansas,
loway
490,
435 U.S. at
can nevertheless be found harmless under
1181,
practical
S.Ct. at
and whose
effect
test,
Chapman
or whether it must be
upon
particular
process
trial
can there
per
considered
se harmful. Because of the
degree
fore be assessed with some
of confi
right
basic nature of the constitutional
dence. Because we must
ju
assume that
volved, general
limitations on
harm-
plainly given
ries understand and follow
review,
primacy
less error
and the
of the
instructions,
Johnson,
see
at
n.
U.S.
jury
factfinding, I
in
believe that it must be
14,
103 S.Ct. at
the effect of a burden-
per
considered harmful
se.
shifting instructional error must be taken
Ill
to have
way
wrenched the fundamental
which the jury
required by
the consti
particular
Whether
constitutional trial
tution to
guilt.
such,
assess evidence of
As
may
error
ever be found
depends
harmless
plainly
this error
category
falls
the same
only upon
degree
“grievousnеss,”
not
its
of
resulting
as other errors
in unconstitution
at
see
U.S.
103 S.Ct. at
ally tainted fact-finders or basic fact-find
J.,
(Stevens,
concurring
judgment),
ing processes that have been authoritative
upon
susceptibility
principled
its
ly held on that account
per
to be
se harm
is,
harmless error review—that
review de
Chapman,
ful. See
whether a
constitutional, properly limited to inquiry is (a) the instruction questions: whether charged of the crime
related to an element contemplation Mullaney and Pat-
within
terson; whether, (b) viewed total con-
text, to the it shifted the burden
accused; (c) and whether the element disputed related was a issue of
which it
approach,
only
dispositive
tually
practically essentially
to subsume
9. Under this
—
inquiry
any
question
is whether the instructional error was
further
of "harmlessness.” See
Perini,
predicates
unconstitutional. The identified
es-