JIMMY C. ROSE, WARDEN, PETITIONER V. STANLEY BARHAM CLARK

   No. 84-1974

   In the Supreme Court of the United States

   October Term, 1985

   On Writ of Certiorari to the United States Court of Appeals for the
Sixth Circuit

   Brief for the United States as Amicus Curiae Supporting Petitioner

            TABLE OF CONTENTS
   Questions Presented
   Interest of the United States
   Statement
   Summary of argument
   Argument
      The erroneous jury instructions in this case do not
      justify setting aside respondent's convictions
      A. There are few kinds of trial error that
         automatically invalidate a conviction regardless
         of the likelihood of prejudice in the
         circumstances of the particular case
      B. Errors of the kind that occurred in this
         case have none of the attributes that support
         automatic reversal
         1. An instruction containing an impermissible
            presumption is not invariably the functional
            equivalent of a directed verdict of guilty
         2. Jury instructions like those given here
            are not so likely to be prejudicial that a
            harmless error inquiry is futile
      C. Respondent was not prejudiced by the
         instructions on malice that were given in his
         case
   Conclusion
   Appendix

                          QUESTION PRESENTED

   Whether jury instructions creating a rebuttable presumption that
the defendant killed with malice aforethought were harmless where (a)
the evidence conclusively proved that the defendant killed both
victims with malice aforethought, (b) the jury found that he also
killed one victim willfully and with premeditation and deliberation on
an intent to kill, and (c) the defenses he asserted --
nonparticipation, insanity, amnesia, and voluntary intoxication --
could not have been affected by the jury instructions on malice.

                     INTEREST OF THE UNITED STATES

   The question presented by this case is whether jury instructions
creating a rebuttable presumption that the defendant killed with
malice aforethought were harmless.  The Court's resolution of this
question will apply equally to state and federal prosecutions
involving this and other types of errors that might be claimed to be
reversible even in the absence of actual prejudice to the defense.

                               STATEMENT

   1. a. On December 30, 1978, Joy Faulk and Charles Browning were
shot to death by respondent Stanley Clark while they were sitting in
Browning's pickup truck in a remote area of Rutherford County,
Tennessee.  The killings stemmed from "a somewhat complicated domestic
situation" (Pet. App. A24).  Following her divorce from her husband
Sam Faulk, Joy Faulk had a "stormy" relationship with respondent
(ibid.).  After they separated, Faulk became involved with Charles
Browning.  Respondent was angered by that relationship and threatened
to kill Faulk if he learned that she was dating another man (ibid.; 3
Tr. 390-392, 395, 397, 422-423, 438-439;  4 Tr. 461-462, 508, 512).

   On the night of December 30, Joy Faulk, Charles Browning, and Joy's
two children were driving in Browning's truck in a remote area of the
county.  Respondent pursued them in his truck, and, when Browning
pulled into a driveway to let respondent pass, respondent stopped his
truck behind Browning's, blocking any escape.  After moving to
virtually point-blank range of both victims, respondent, using a
pistol that he had borrower from a friend, shot Faulk three times,
twice in the head and once in the left rear shoulder, and shot
Browning once in the head.  Pet. App. A2-A3, A8-A10, A24-A25.

   b. Respondent did not testify at trial.  His chief defense,
presented through cross-examination of the State's witnesses, was that
Sam Faulk, Joy's Faulk's ex-husband, had murdered Joy Faulk and
Browning.  Sam Faulk's motive, respondent argued, was retaliation for
a child custody suit that Joy Faulk had filed against him, which
stemmed from an incident in which he was alleged to have molested his
daughter Mitzi (Pet. App. A24-A25, A32-A33;  1 Tr. 18-23;  2 Tr.
234-235;  4 Tr. 464-466;  5 Tr. 670-671, 686-689;  see generally 8 Tr.
1009-1051 (defense closing argument)).  /1/ Respondent also presented
evidence in support of three other partially inconsistent defenses:
insanity, amnesia, and voluntary intoxication (Pet. App. A5, A17-20,
A39).  The evidence of these defenses was introduced chiefly through
the testimony of two defense psychiatrists, although respondent also
elicited testimony to support these claims on cross-examination of
prosecution witnesses (id. at A17-A19, A39;  J.A. 141;  7 Tr.
879-887).  /2/

   c. At the close of trial, the trial judge charged the jury that all
homicides are presumed to be malicious in the absence of evidence
rebutting the presumption (J.A. 185, 187;  8 Tr. 1084-1087) and that
the use of a deadly weapon in a manner likely to cause death also
gives rise to a presumption of malice (J.A. 187-188;  8 Tr.
1087-1089).  /3/ The jury was also instructed that (i) insanity was a
complete defense to any of the charges, but the jury should consider
this defense only if it first found all of the elements of the charged
offenses to have been proven (J.A. 190;  8 Tr. 1091-1092);  (ii) alibi
was a complete defense to all of the charges (8 Tr. 1095-1096);  (iii)
voluntary intoxication may negate the State's proof of willfulness,
premeditation, and deliberation and therefore was a defense to first
degree murder, but voluntary intoxication was not a defense to second
degree murder or any other lesser included offense (J.A. 193-195;  8
Tr. 1097-1098);  (iv) amnesia by itself was not a defense to any of
the charges (J.A. 195;  8 Tr. 1098).  Respondent was convicted of
first degree murder in the killing of Faulk and second degree murder
with respect to Browning.

   2. On appeal, respondent argued that the jury instructions on
malice were invalid under Sandstrom v. Montana, 442 U.S. 510 (1979).
The Tennessee Court of Criminal Appeals rejected respondent's argument
on the ground that the instructions, read as a whole, did not shift
the burden of proof to him on this element of the offense (Pet. App.
A37-A39).  The court also held that the jury charges did not require
reversal because respondent's defenses of nonparticipation and
insanity raised no issue regarding whether the killings were done with
malice and therefore were not affected by the instructions (id. at
A39).  The Tennessee Supreme Court thereafter denied respondent's
application for leave to appeal (id. at A40).

   3. Respondent later filed a petition for a writ of habeas corpus,
raising this claim and others.  The district court held that the
instructions created a rebuttable presumption of malice and were
therefore invalid under Sandstrom (Pet. App. A10-A15).  The court also
held that the error in giving these instructions was not harmless
because respondent's defense at trial, in part, was that he lacked an
intent to kill because of intoxication at the time of the offense,
amnesia, and mental illness, and these defenses were supported by some
evidence (id. at A15-A20).  The court did not inquire, however,
whether and how the jury was instructed on these defenses or whether
they were valid state-law defenses to malice.

   4. The court of appeals affirmed (Pet. App. A1-A6).  It agreed with
the district court that the jury instructions in this case were
erroneous (id. at A3-A4), and, while it noted that such errors can be
harmless (id. at A4-A6), it found that the instructions in this case
were prejudicial, because part of petitioner's defense was that he
lacked the requisite mens rea for murder (id. at A6).

                          SUMMARY OF ARGUMENT

   A. It is axiomatic that appellate courts must ordinarily disregard
errors occurring at trial that could not have had a material affect on
the verdict.  The few exceptions to the harmless error principle
involve either violations so basic that they deprive the defendant of
the essentials of a trial (such as denial of counsel or lack of an
impartial fact-finder) or errors that are both likely to be
prejudicial and so difficult to assess specifically that no reliable
harmless error inquiry is practical.  While at bottom the fault in
erroneous presumption instructions is that they impact on the
defendant's right to have his guilt determined by the jury, the
instructions cannot rationally be deemed the functional equivalent of
a denial of a jury trial.  Beyond that, the instructions on malice
given here were used in countless numbers of criminal trials since the
early common law and thus cannot be deemed so inherently subversive of
due process that their use amounts to the denial of any trial at all.

   It also cannot be said that an erroneous instruction on a
presumption will so invariably prejudice the accused in undetectable
ways that undertaking a case-by-case inquiry into their prejudicial
effect is futile.  United States v. Frady, 456 U.S. 152 (1982), held
that similar jury instructions were not prejudicial in every case in
which they are used and that a court can look to the evidence adduced
at trial, the defenses (if any) asserted by the accused, and the
jury's findings as revealed by its verdict in order to determine
whether the instruction was prejudicial.  The lower courts have also
generally held that a case-by-case determination of prejudice due to
an erroneous presumption instruction is feasible.

   B. The record shows that respondent was not prejudiced by the
instructions on malice.  The nature of the crime itself -- multiple
gun shots to the head at point blank range -- virtually forecloses any
conclusion that malice was absent.  Moreover, the jury found that
respondent murdered one of his victims willfully and with
premeditation and deliberation on an intent to kill.  It is
inconceivable that any jury that made those findings would not also
have found under proper instructions that respondent killed with
malice.  Finally, the court's instructions on malice were irrelevant
to respondent's defenses at trial.  Respondent's alibi defense did not
call into question the degree of culpability, but instead involved a
total denial of participation.  The jury was told not to consider his
insanity claim unless and until the jury found that he was guilty of
the charged offenses.  Finally, neither amnesia nor intoxication would
negate malice under the jury instructions given at respondent's trial
or under Tennessee law.  This case is controlled by Frady, in which
the Court found that the defendant was not prejudiced by similar
instructions on malice.

                               ARGUMENT

   THE ERRONEOUS JURY INSTRUCTIONS IN THIS CASE DO NOT JUSTIFY SETTING
ASIDE RESPONDENT'S CONVICTIONS

   A. There Are Few Kinds Of Trial Error That Automatically Invalidate
A Conviction Regardless Of The Likelihood Of Prejudice In The
Circumstances Of The Particular Case

   1. The trial of a criminal case can be an extremely complex
undertaking.  The examination of prospective jurors must be
sufficiently comprehensive to allow the parties an opportunity to
discover bias, but not so prolonged as to delay the start of trial for
an undue period.  Every question asked of a witness and every document
offered into evidence could potentially raise issues implicating
principles of evidence that took Dean Wigmore ten volumes to explain.
The comments by the trial judge on the evidence must not prejudice the
jury against the accused.  The extemporaneous arguments of counsel may
mistakenly offend principles that would have been respected if counsel
had had greater time to research and prepare.  The trial court's
charge to the jury, even when aided by standardized jury instructions,
must draw upon the legal rules laid down in scores of decisions by
this Court and others.  At any stage during a trial -- particularly a
jury trial -- errors may be made.  And the likelihood of an error
occurring increases as new decisions from this Court and others
establish different rules for the trial courts to implement or refine
already-established principles.  /4/

   Correcting every error that occurs before or during a criminal
trial by ordering a new trial is also a costly balm.  /5/ New trials
consume scarce judicial resources and introduce additional delays into
the administration of justice for all participants.  If a trial judge
compensates by taking on an increased case load, that may require a
sacrifice of legal study and thereby increase the risk of mistake in
every case that the judge tries.  New trials are equally costly to the
prosecutor:  the trials of other defendants may have to be postponed
or foregone altogether, or the prosecutor may be forced to agree to
plea bargains that would be unacceptable were adequate resources
available for trial.  Witnesses are compelled to relive painful, and
sometimes harrowing, experiences, thereby deterring voluntary
cooperation with the criminal justice system and making the victims of
crime also victims of that system.  /6/

   Retrials also jeopardize the reliability of trial outcomes.
Indeed, it is a truism that the passage of time may render a retrial
infeasible, or sometimes impossible, because the memories of witnesses
may fade, witnesses may decline to testify, they may move or die, and
evidence may become lost.  The community's moral and psychological
interest in the swift administration of justice also suffers, as does
society's interest in the incapacitation and rehabilitation of guilty
offenders and the deterrence of future ones.  If a defendant accused
of a serious crime is free on bail, delay in bringing a criminal
prosecution to a close prolongs public anxiety over community safety
and increases the risk that the accused may commit new crimes while at
large.  Defendants, both guilty and innocent, also suffer if their
trials are postponed in order to accomodate other defendants'
retrials, perhaps by impairing their ability to demonstrate their
innocence or by disrupting their personal lives, a burden that is
particularly onerous for those defendants who are in custody while
awaiting trial.  Even where a new trial rectifies the error that
occurred in the first one, there is always the risk that new and
different errors will take their place.  Finally, these costs are
enhanced when a conviction is set aside on collateral attack, rather
than on direct appeal.  /7/ These factors make an unnecessary second
trial, even if free of error, wholly undesirable.

   Of course, if the defendant has fallen victim to an error that
created a material risk of a faulty verdict against him, the
conviction cannot be allowed to stand.  But because new trials are
costly in so many ways, the Court has repeatedly held that a defendant
is entitled to a fair trial, but not a perfect one, and that the
reversal of a conviction bestows an unjustified windfall on a
defendant where there is no realistic likelihood that the error skewed
the factfinding process at trial or rendered the proceedings
fundamentally unfair.  See, e.g., United States v. Young, No. 83-469
(Feb. 20, 1985), slip op. 15 & n.14;  Rushen v. Spain, 464 U.S. 114,
118 (1983);  United States v. Hasting, 461 U.S. 499, 509 (1983);
Hamling v. United States, 418 U.S. 87, 134-135 (1974).  In fact, the
Court has made clear that "it is the duty of a reviewing court to
consider the trial record as a whole and to ignore errors that are
harmless" (Hasting, 461 U.S. at 509 (emphasis added)).  It is also
firmly settled law that even constitutional errors must be disregarded
if satisfactorily shown to be harmless.  See Chapman v. California,
386 U.S. 18 (1967).  /8/ By requiring an appellate court to disregard
errors that did not materially affect the outcome of the trial, the
harmless error doctrine serves obvious and salutary interests in the
administration of criminal justice.  /9/ At bottom, by recognizing
that "justice, though due to the accused, is due to the accuser also,"
the harmless error doctrine allows an appellate court "to keep the
balance true" (Snyder v. Massachusetts, 291 U.S. 97, 122 (1934))
between society's interest in convicting the guilty and the
defendant's interest in avoiding an unjust conviction.  See Hasting,
461 U.S. at 509.

   2. Given the salutary purposes served by the harmless error
doctrine and the modern day proliferation of constitutional rules
governing criminal procedure, it is hardly surprising that the Court
has found that most constitutional errors can be harmless.  Hasting,
461 U.S. at 509.  At the same time, however, the Court has also
recognized that there is a small class of constitutional errors that
are so intrinsically inconsistent with the rudiments of due process or
inherently prejudicial that reversal of a defendant's conviction is
necessary whenever such infractions occur.  See Chapman, 386 U.S. at
23 n.8.  The nature of each of these errors is defined in a way that
makes it unacceptable, meaningless, or impractical to apply the
harmless error doctrine to them.

   The first and most obvious category of such errors are those that
effectively deprive the defendant of what could meaningfully be
considered a trial at all.  The existence of that category follows
from the basic due process principle that the government may not
punish a person "prior to an adjudication of guilt in accordance with
due process of law" (Bell v. Wolfish, 441 U.S. 520, 535 (1979)
(footnote omitted)).  Chapman identified two such errors:  forcing a
defendant to stand trial before a trier of fact with a financial
interest in the outcome (see Tumey v. Ohio, 273 U.S. 510 (1927)) and
denying a defendant the assistance of counsel at trial (see Gideon v.
Wainwright, 372 U.S. 335 (1963)).  Cf. Drope v. Missouri, 420 U.S. 162
(1975) (compelling a mentally-incompetent defendant to stand trial);
Moore v. Dempsey, 261 U.S. 86, 89 (1923) (mob dominated trial).  Since
the two essential components of the modern concept of a fair trial are
a neutral and unbiased decisionmaker and the assistance of an
attorney, these errors effectively deny a defendant any realistic
opportunity for a fair trial as we know it.  See United States v.
Cronic, No. 82-660 (May 14, 1984), slip op. 4-11;  Engle v. Isaac, 456
U.S. 107, 134 (1982);  United States v. Ash, 413 U.S. 300, 307-308
(1973).  Accordingly, errors such as these, by definition, cannot be
excused on the ground that the defendant received a fair trial despite
the error.  A similar analysis would suggest that depriving a
defendant of a jury trial when he is entitled to one could never be
harmless even if the bench trial he received was otherwise fair and
reliable.

   Another type of nonharmless error is one that is both likely by its
nature to be damaging, yet at the same time of such a character that
reliable measurement of the actual damage in any given case is almost
always impossible or highly impractical.  /10/ Few cases indeed fit
into this category.  Holloway v. Arkansas, 435 U.S. 475 (1978), is one
example;  there, the Court ruled that defense counsel's timely
objection to compulsory representation of co-defendants with
conflicting interests was presumptively prejudicial.  This type of
error, Holloway explained, necessarily undermines an appellate court's
confidence in the accuracy of the verdict because the error is likely
to affect the outcome in every case in a manner that is not
susceptible to effective appellate review.  See 435 U.S. at 490-491.

   A third category of errors inherently fatal to a conviction
consists of those claims as to which prejudice is itself already an
element in establishing the occurrence of a constitutional violation.
See, e.g., United States v. Bagley, No. 84-48 (July 2, 1985), slip op.
10-15 (Brady claims);  Strickland v. Washington, No. 82-1554 (May 14,
1984), slip op. 21-26 (ineffective assistance of counsel);  United
States v. MacDonald, 435 U.S. 850, 858 (1978) (speedy trial claims);
/11/ cf. United States v. Young, slip op. 15 n.14 (plain error under
Fed. R. Crim. P. 52(b)).  Claims such as these are not subject to a
harmless error analysis because it is pointless to inquire whether an
error affected the outcome of the trial if the defendant has already
shown that the error was prejudicial in proving its existence.  /12/

   B. Errors Of The Kind That Occurred In This Case Have None Of The
Attributes That Support Automatic Reversal

   In Connecticut v. Johnson, 460 U.S. 73 (1983), a plurality of the
Court suggested that an instruction stating a conclusive presumption
with respect to an unconceded element of the offense cannot be
harmless because it amounts to a prohibited directed verdict of
guilty.  460 U.S. at 84-87.  /13/ Sandstrom, 442 U.S. at 517-519, and
Francis v. Franklin, No. 83-1590 (Apr. 29, 1985), slip op. 5-17, did
not decide whether instructions containing a conclusive or a
rebuttable presumption could be harmless, but both cases held that
such instructions are invalid because they can either lessen the
government's burden of proof or unconstitutionally shift the burden of
proof to the accused.  In addition, Francis found that the rebuttable
presumption employed in that case -- that the accused was presumed to
have killed with malice -- was not harmless because it "'completely
eliminated'" his defense that the killing was accidental.  Slip op. 18
(citation omitted).  While those points explain the flaws that make an
instruction of the kind given here constitutionally unacceptable --
and perhaps demonstrate that such an error is likely often to be
prejudicial -- they do not establish a valid basis for classifying
Sandstrom errors as inherently prejudicial.

   1. An Instruction Containing An Impermissible Presumption Is Not
Invariably The Functional Equivalent Of a Directed Verdict Of Guilty

   If a trial court directs the jury to return a verdict of guilty,
the error in doing so is in every case the functional equivalent of
the outright denial of a jury trial.  In such a case, concededly,
reversal could not be avoided by showing that the trial was in all
other respects fair and the judge's verdict fully reliable.  The
court's action would so far have deprived the defendant of an
indispensable element of a trial that the outcome could not be allowed
to stand.  But this observation does not mean that, because a vice of
a sandstrom instruction is its tendency to preempt the jury's full
consideration of an element of the offense, it is always and
necessarily to be equated with an actual directed verdict.  Whether
that is an apt equation depends instead on the circumstances of the
individual case:  sometimes the likely impact will be grave enough
that it is reasonable to say that the defendant's right to have his
guilt determined by the jury has been defeated, but sometimes that
will not be so.  The situation is analogous to an infringement of the
right to counsel:  a total deprivation, like a directed verdict,
always requires reversal;  a partial deprivation, in the form of
ineffective assistance, may or may not call for a new trial, depending
on the reviewing court's assessment of its likely impact on the
outcome of the trial.

   This case illustrates our proposition.  It is clear that the state
trial judge did not enter a directed verdict of guilty in the true
sense of that term.  The judge expressly told the jury that it was to
choose one of six separate verdicts for each of the two killings,
including a verdict of not guilty (J.A. 181-182, 184;  8 Tr.
1075-7076, 1083-1084).  Accordingly, respondent was not deprived of
his right to a jury trial unless the trial court's instructions
effectively foreclosed the jury from finding in his favor on any of
the charged offenses.

   Properly viewed, the jury instructions on malice given here were
not tantamount to a directed verdict even on that element of murder,
let alone any of the other elements.  The jury was not directed to
find that respondent had acted with malice, or that the State had
proven that respondent had acted with malice, or that malice was not
an issue for their consideration.  Nor did the instructions convey
that impression to the jury;  on the contrary, the trial court
repeatedly told the jury that the State had to prove every element of
the charged offenses beyond a reasonable doubt.  /14/ While the jury
was told that malice was to be "presumed" (J.A. 185, 187-188;  8 Tr.
1087-1088), the jury was never instructed that this presumption was
"conclusive";  on the contrary, the jury was instructed that the
presumption "may be rebutted" (J.A. 185, 187;  8 Tr. 1084-1085,
1087-1088).  "Given the common definition of (rebut)" (Sandstrom, 442
U.S. at 517) as "to drive or beat back(,) * * * to contradict or
oppose by formal legal argument, plea, or countervailing proof(,) * *
* to expose the falsity of(,) * * * (or) to make or furnish an answer
or counter proof" (Webster's New Collegiate Dictionary 956 (1981)), no
reasonable juror would naturally have construed the instructions on
malice as conclusive.  And neither the district court, the court of
appeals, nor respondent has identified anything else at trial that
would have led the jury to adopt that conclusion.  Accordingly,
because "(a) mandatory rebuttable presumption does not remove the
presumed element from the case" (Francis, slip op. 9), the
instructions on malice given here cannot be deemed to be the
equivalent of a directed verdict on this element of the offense.

   The plurality in Connecticut v. Johnson appears to suggest (460
U.S. at 85-86) that, because the vice of an improper presumption is
that it may have caused the jury to find the presumed fact without
actually weighing the evidence, it is illegimate for a reviewing court
to determine the effect of the instruction on the jury's findings
regarding the factual elements of the offense.  But we fail to see a
qualitative difference between this and other kinds of trial errors
that are subject to a harmless error analysis.  Leaving aside
exclusionary rules, what makes a ruling an "error" is its potential to
distort the jury's consideration of the facts and its application of
the law to those facts.  Unless the distortion produced by the error
transforms the proceedings into something wholly inadequate and
effectively eliminates the jury's role as factfinder, a reviewing
court can and should ask whether the error may with sufficient
confidence be found not to have affected the verdict in the
circumstances of the case before it.  /15/

   History also strongly militates against the conclusion that an
improper presumption denies a defendant the essence of a trial.  The
instructions on malice given in this case stated principles of the law
of homicide that had their roots in the common law as expounded by
Coke and Blackstone (R. Perkins & R. Boyce, Criminal Law 75-78 (3d ed.
1982) ) and that had been given in criminal trials in state and
federal courts countless times prior to the decision in Sandstrom.
This Court itself had noted that "at common law, men are presumed to
intend the natural consequences of their act and cannot escape
punishment for taking life on the claim that they had not intended or
expected that such consequence would result from what they purposely
did." Pico v. United States, 228 U.S. 225, 231 (1913).  In fact, the
Court had upheld a jury instruction voicing, as the Court put it,
"nothing more than a statement of the familiar proposition that every
man is presumed to intend the natural and probable consequences of his
own act." Allen v. United States, 164 U.S. 492, 496 (1896).  It is
quite dubious that jury instructions with this pedigree are so
invariably prejudicial and so offensive to due process principles that
they rendered literally thousands of trials over more than two
centuries of Anglo-American common law a virtual nullity.  /16/

   2. Jury Instructions Like Those Given Here Are Not So Likely To Be
Prejudicial That A Harmless Error Inquiry Is Futile

   The problems caused by improper presumptions are twofold:  they may
have induced the jury to rely upon the presumption rather than the
evidence in finding that respondent was guilty, or they may have led
the jury to believe that respondent had the burden of disproving
malice.  Francis, slip op. 9-11.  The issue then is whether the
verdict can be upheld given the uncertainty created by these
instructions.  Id. at 14-15 n.8.  Of course, every error that occurs
at trial raises some conceivable doubt whether it influenced the jury,
but the harmless error doctrine requires a court to disregard those
errors that it can say with sufficient confidence did not materially
contribute to the verdict.  Whether that doctrine can apply in a given
case will turn upon the likelihood that an error affected the verdict
and the degree of uncertainty that the criminal justice system is
willing to accept.  The category of errors is small in which that
inquiry is altogether foreclosed because they are invariably
prejudicial or their impact is impossible to assess.  See United
States v. Cronic, slip op. 10-13.

   Francis suggested, but did not hold, that the inherent uncertainty
stemming from an unconstitutional presumption might be too great for
the criminal justice system to accept.  Slip op. 14-15 n.8, citing
Stromberg v. California, 283 U.S. 359 (1931).  Stromberg held that an
instruction allowing the jury to convict the accused for engaging in
activities that were protected by the First Amendment was
unconstitutional, notwithstanding the possibility that the jury could
have rested its verdict upon an alternative and constitutionally
unobjectionable basis.  See 283 U.S. at 367-370.  There are, of
course, no First Amendment principles implicated by this case, and the
need to avoid punishing protected speech is thus wholly absent here.
Instead, the question is whether the possibility that the jury may
have relied upon an unlawful presumption is too great for the criminal
justice system to accept, regardless of the sufficiency of the proof
of the defendant's guilt, the nature and sufficiency of the defenses
that he asserted at trial, and the factual findings underlying the
jury's verdict.

   In contrast to the suggestion in the Francis footnote stands the
holding in United States v. Frady, 456 U.S. 152 (1982), which makes
clear that this question cannot be given a categorical answer and must
be resolved by looking to the facts of each case.  In Frady, the
defendant contended that he was denied a fair trial by the use of jury
instructions on malice that were not materially different from those
given here.  See 456 U.S. at 158 & n.7.  Because the defendant did not
object to the instructions at his trial, the Court held that he was
required to prove, inter alia, that he had been prejudiced by their
use in his case.  In so ruling, the Court expressly rejected his claim
that "an error in the instructions concerning an element of the crime
charged amounts to prejudice per se, regardless of the particular
circumstances of the individual case" (id. at 170).  Instead, the
Court held that a defendant must "shoulder the burden of showing, not
merely that the errors at his trial created a possibility of
prejudice, but that they worked to his actual and substantial
disadvantage, infecting his entire trial with error of constitutional
dimension." Ibid. (emphasis in original).  Finding that the proof of
malice was overwhelming and had not been controverted by the
defendant's alibi defense, the Court held that he had not been
prejudiced by the instructions, a conclusion also supported by the
jury's finding that the murder was premeditated and deliberate.  Id.
at 171-174.  Frady therefore forecloses the conclusion that erroneous
instructions on malice are not subject to a harmless error analysis.
/17/

   Frady does not stand alone.  The Court has found that a variety of
different errors of similar dimension in jury instructions do not
automatically require the judgment to be set aside.  See Zant v.
Stephens, 462 U.S. 862 (1983) (jury instruction based on
unconstitutionally vague aggravating factor at a capital sentencing
hearing does not invariably require reversal);  Kentucky v. Whorton,
441 U.S. 786 (1979) (failure to give a jury instruction on the
presumption of innocence does not invariably require reversal);
Henderson v. Kibbe, 431 U.S. 145 (1977) (failure to instruct jury on
causation is not always prejudicial);  Anderson v. United States, 417
U.S. 211, 227-228 (1974) (failure to instruct on an essential element
of the offense is not plain error where the verdict shows that the
jury would have found that element of the offense had it been properly
charged);  cf. Barclay v. Florida, 463 U.S. 939 (1983) (sentencing
judge's reliance upon an aggravating factor that is invalid under
state law does not require capital sentence to be vacated).  /18/

   The experience of the lower courts reinforces this Court's ruling
in Frady that an erroneous jury instruction on malice will not so
frequently affect the outcome of a trial that a case-by-case
determination of the actual effect that the charge may have had is
unwarranted.  The nearly unanimous opinion of the federal courts of
appeals is that this question can generally be addressed without undue
difficulty.  The First, Second, Fourth, Fifth, Sixth, Ninth, Eleventh,
and District of Columbia Circuits have held that jury instructions of
this type can be harmless where the evidence conclusively proves the
issue in dispute and the defense raised by the accused does not
contest that issue, or where other findings by the jury eliminate any
uncertainty that the jury would have found the element in dispute.
Although the Eighth Circuit has held that an instruction of this type
ordinarily is presumptively prejudicial, even that court would be
likely to find that the instructions in this case were harmless, since
the jury's first degree murder verdict eliminates any uncertainty
caused by the instructions on malice.  /19/ See pages 23-24, infra.
Most state courts to consider the question have also found that these
instructions can be harmless.  The lower court cases are collected in
an appendix to this brief.

   C. Respondent Was Not Prejudiced By The Instructions On Malice That
Were Given In His Case

   The remaining inquiry is whether respondent was actually prejudiced
by the trial court's instructions on malice in his case.  The
principles governing review of a claim that jury instructions denied
the accused a fair trial are well settled.  First, "a single
instruction to a jury may not be judged in artificial isolation, but
must be viewed in the context of the overall charge." Cupp v.
Naughten, 414 U.S. 141, 146-147 (1973);  see also Francis, slip op.
11;  Whorton, 441 U.S. at 788-789;  Kibbe, 431 U.S. at 153-156;
United States v. Park, 421 U.S. 658, 674-676 (1975).  Moreover,
because "the process of instruction itself is but one of several
components of the trial which may result in (a) judgment of
conviction" (Cupp, 414 U.S. at 147), even on direct appeal a court
must "view the (jury) charge itself as part of the whole trial" (Park,
421 U.S. at 674).  The issue in a collateral proceeding, such as this
one, is "'whether the ailing instruction by itself so infected the
entire trial that the resulting conviction violates due process,' * *
* not merely whether 'the instruction is undesirable, erroneous, or
even "universally condemned."'" Kibbe, 431 U.S. at 154 (citation
omitted);  Cupp, 414 U.S. at 146-147.  When the record of respondent's
trial is realistically appraised, there can be no serious doubt that
he was not substantially prejudiced by the instructions on malice.

   1. An appropriate starting point is to compare the jury
instructions given at respondent's trial with others on the same
subject that would have been unobjectionable.  Cf. Zant, 462 U.S. at
888;  Kibbe, 431 U.S. at 154-157.  For example, the trial court could
have told the jury that (1) it may consider that the killings had been
accomplished by the use of a deadly weapon in deciding whether the
State had proved malice, and (2) it may consider all of the
surrounding circumstances in determining whether respondent acted with
malice.  Given the evidence at respondent's trial, it is virtually
certain -- indeed, the jury's first degree murder verdict makes it
absolutely certain -- that the jury would have found that he acted
with malice even if these jury instructions had been given in lieu of
the ones that were actually used.

   In this case, the evidence of malice was little short of
overwhelming;  to borrow a phrase from Frady, the evidence at trial
showed that there was "'malice aplenty'" (456 U.S. at 171 (citation
omitted) ).  Two weeks before the night in question, respondent
borrowed the murder weapon from a friend, using the ruse that his own
revolver had been stolen.  On the night of the slayings, respondent
followed Faulk and Browning to a remote location at which, by deftly
positioning his own car, he prevented their escape.  At that point,
and in full view of Faulk's two children, respondent shot Faulk and
Browning in the head at point-blank range.  Indeed, it is fair to say
that the State's proof in this case was, as in Frady, virtually
conclusive on this issue.  Compare pages 1-2, supra, with 456 U.S. at
171-172.  Accordingly, even if a misstatement of the law is more
likely to be prejudicial than an incomplete statement or an omission
(Kibbe, 431 U.S. at 155), in this case the likelihood that a properly
instructed jury would have found that respondent acted without malice
is virtually nil.

   For that reason, this case bears no resemblance to Francis.  There,
the defendant, while attempting to escape from custody, knocked on the
door of a nearby home and demanded the resident's car keys.  As the
occupant slammed the door, Franklin's gun discharged, killing the
occupant.  Franklin's sole defense at trial was that the occupant was
killed as the result of an accidental response to the slamming of the
door, a defense supported by his treatment of everyone else he came
across during his attempted escape.  Slip op. 1-3.  This Court upheld
the court of appeals' finding that an erroneous instruction on malice
was not harmless because "'(Franklin's) defense was that he did not
have the requisite intent to kill'" and "'(t)he facts did not
overwhelmingly preclude that defense'" (id. at 17-18 (citation
omitted)).  The Court also found additional support for that
conclusion in the fact that the jury had asked the trial court to be
reinstructed on the elements of malice and on Franklin's accident
defense.  Id. at 18.  None of those factors is present here.

   2. Moreover, the jury found respondent guilty of the first degree
murder of Faulk, and neither the district court nor the court of
appeals found any error in the instructions on the additional mens rea
components constituting that offense.  Under the instructions on first
degree murder given at respondent's trial, the verdict shows that the
jury found that he had acted willfully and with premeditation and
deliberation on an intent to kill.  /20/ Given the evidence of
respondent's preparation for the crimes and the manner in which they
were carried out, it is inconceivable that the jury that found that he
acted willfully and with premeditation and deliberation, would, if
correctly instructed, have failed to find malice, /21/ and neither the
district court, the court of appeals, nor respondent has offered any
plausible basis for so concluding.  See Frady, 456 U.S. at 169-174;
United States v. Green, 424 F.2d 912, 913 (D.C. Cir. 1970);  Belton v.
United States, 382 F.2d 150, 155 (D.C. Cir. 1967);  cf. Kibbe, 431
U.S. at 156 ("the jury's determination that the respondent acted
recklessly necessarily included a determination that the ultimate harm
was foreseeable to him").

   3. Finally, in this case, unlike Francis, the trial court's
instructions on malice did not completely eliminate any of
respondent's chosen defenses;  on the contrary, the instructions on
malice aforethought were simply irrelevant to the defenses that
respondent raised at trial.

   Respondent's primary defense was that Faulk's ex-husband, not he,
had committed the crimes.  In that respect, this case is not
materially different from Frady, in which the Court held that the
defendant was not prejudiced by similar instructions because his
defense was that he had not been involved in the murder.  456 U.S. at
169-174.  And although the evidence showing that respondent had
committed the murders, aside from the testimony of Faulk's daughter,
was largely circumstantial, the evidence plainly showed that whoever
was responsible for the slayings acted with malice.  Accordingly,
since the evidence on this issue was overwhelming and was not
controverted by respondent's defense that someone else did the
killing, there is no realistic possibility that the instructions on
malice could have prejudiced his alibi defense.  See Frady, 456 U.S.
at 169-174;  Martin v. Foltz, 773 F.2d 711, 719 (6th Cir. 1985);
Tucker v. Kemp, 762 F.2d 1496, 1501-1503 (11th Cir. 1985) (en banc);
McCleskey v. Kemp, 753 F.2d 877, 903-904 (11th Cir. 1985) (en banc),
petition for cert. pending, No. 85-6811;  Charles v. Foltz, 741 F.2d
834, 839 (6th Cir. 1984);  Garland v. Maggio, 717 F.2d 199, 203-204
(5th Cir. 1983);  McGuinn v. Crist, 657 F.2d 1107, 1108-1109 (9th Cir.
1981), cert. denied, 455 U.S. 990 (1982);  see also Johnson, 460 U.S.
at 87 (plurality opinion).  Beyond that, respondent did not object at
trial to the instructions on malice (Pet. App. A10 n.6), which adds
support to the conclusion that these instructions were not perceived
as likely to prejudice his defense.  See Wainwright v. Witt, No.
83-1427 (Jan. 21, 1985), slip op. 18 & n.11;  id. at 2-3 (Stevens, J.,
concurring);  Engle v. Isaac, 456 U.S. at 136 n.1 (Stevens, J.,
concurring in part and dissenting in part).  /22/

   Somewhat inconsistently, respondent also claimed that he was insane
at the time of the murders and thus should not be held responsible for
those crimes.  But the jury was expressly instructed not to consider
respondent's insanity claim unless and until it found that he had
committed the crimes charged against him (8 Tr. 1091-1092).  This
instruction is consistent with Tennessee /23/ (and federal /24/ ) law,
under which a defendant's "diminished capacity," as that defense is
known, is not a defense to a crime unless it amounts to insanity.  The
malice charge therefore could not have affected respondent's insanity
defense.  See Bowen v. Kemp, 769 F.2d 672, 676-678 (11th Cir. 1985);
see also Johnson, 460 U.S. at 87 (plurality opinion).

   Nor did the instructions on malice prejudice any of the remaining
defenses respondent asserted at trial.  For instance, respondent also
presented evidence to the effect that he was suffering from amnesia at
the time of the trial.  However, the jury was told that amnesia, by
itself, was not a defense to any of the charges against respondent
(J.A. 195;  8 Tr. 1098).  /25/ The instructions on malice was
therefore irrelevant to this alleged defense.  Respondent also claimed
that he was voluntarily intoxicated at the time of the crimes and thus
could not have possessed the mens rea necessary for murder.  However,
voluntary intoxication, while a defense to first degree murder, was no
defense to second degree murder (J.A. 193-195;  8 Tr. 1097-1098).
/26/ The instructions on malice therefore could have had no effect on
this alleged defense either.  Additionally, because respondent plainly
did not succumb to amnesia or become intoxicated between the times
that he shot Faulk and Browning, the jury's finding that he acted
willfully and with premeditation and deliberation when he murdered
Faulk clearly demonstrates that the jury found that respondent's claim
of voluntary intoxication was insufficient to raise a reasonable doubt
of his guilt of that crime.  /27/

   In sum, it is beyond any reasonable doubt that respondent was not
prejudiced by the erroneous instructions on malice.  Neither of the
two valid defenses asserted by respondent could have been affected by
these instructions, and respondent's other claims did not state valid
defenses under the instructions given to the jury or under state law.
This case is not materially different from Frady, where the Court held
that the defendant was not prejudiced by similar instructions.  It
necessarily follows that the lower courts erred by ordering that
respondent be retried.

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   STEPHEN S. TROTT

      Assistant Attorney General

   ANDREW L. FREY

      Deputy Solicitor General

   PAUL J. LARKIN, JR.

      Assistant to the Solicitor General

   DECEMBER 1985

   /1/ That defense was based upon a rumor at large in the county (4
Tr. 464-466).  In truth, however, Mitzi simply had a urinary tract
infection (3 Tr. 458-459).  Moreover, several eyewitnesses testified
for the State that Sam Faulk had spent the entire evening at a local
bar and was there at the time that Joy Faulk and Browning were killed.
 See 4 Tr. 482, 582-584;  5 Tr. 594, 638-639, 642-644, 645-646,
654-657, 713-716.

   /2/ The only other defense witness was the police radio dispatcher
who received a telephone call on the night in question informing him
that there had been a shooting.  7 Tr. 888-901.

   /3/ Respondent did not object to the instructions on malice at
trial.  Pet. App. A10 n.6;  see R. 106-120 (proposed defense jury
instructions);  8 Tr. 1104 (defense objections to trial court's jury
charge).

   /4/ Sandstrom itself illustrates this fact.  There, the Court held
that a jury may not be given an instruction stating a principle known
to the criminal law since the days of Coke and Blackstone and given in
untold numbers of state and federal criminal trials.  See pages 16-17,
infra.

   /5/ See, e.g., Luce v. United States, No. 83-912 (Dec. 10, 1984),
slip op. 4;  McDonough Power Equipment, Inc. v. Greenwood, 464 U.S.
548, 553-555 (1984);  United States v. Hasting, 461 U.S. 499, 508-509
(1983);  Kotteakos v. United States, 328 U.S. 750 (1946);  cf.
Flanagan v. United States, 465 U.S. 259, 264-265 (1984);  Morris v.
Slappy, 461 U.S. 1, 11, 14-15 (1983);  Engle v. Isaac, 456 U.S. 107,
126-129 (1982).

   /6/ For instance, a retrial of this case would force Joy Faulk's
daughter Mitzi to relive the slaying of her mother, an undeniably
traumatic experience.

   /7/ See, e.g., United States v. Frady, 456 U.S. 152, 164-168
(1982);  Engle v. Isaac, 456 U.S. at 126-129 & nn. 31-34;  Sumner v.
Mata, 449 U.S. 539, 550 & n.3 (1981);  United States v. Addonizio, 442
U.S. 178, 184-185 & n.11 (1979);  Stone v. Powell, 428 U.S. 465, 491
n.31 (1976);  Friendly, Is Innocence Irrelevant?  Collateral Attack on
Criminal Judgments, 38 U. Chi. L. Rev. 142, 146-150 (1970).

   /8/ See also, e.g., Rushen v. Spain, supra (right to be present at
trial);  United States v. Hasting, supra (improper comment on
defendant's silence at trial, in violation of the Fifth Amendment
Self-Incrimination Clause);  Hopper v. Evans, 456 U.S. 605, 613-614
(1982) (statute improperly forbidding court from giving a jury
instruction on a lesser included offense in a capital case, in
violation of the Fourteenth Amendment Due Process Clause);  Moore v.
Illinois, 434 U.S. 220, 232 (1977) (admission of identification in
violation of the Sixth Amendment Counsel Clause);  Brown v. United
States, 411 U.S. 223, 231-232 (1973) (admission of out-of-court
statement in violation of the Sixth Amendment Confrontation Clause);
Milton v. Wainwright, 407 U.S. 371 (1972) (admission of confession in
violation of the Sixth Amendment Counsel Clause);  Chambers v.
Maroney, 399 U.S. 42, 52-53 (1970) (admission of evidence obtained in
violation of Fourth Amendment);  Coleman v. Alabama, 399 U.S. 1 (1970)
(denial of right to counsel at a preliminary hearing in violation of
the Sixth Amendment Counsel Clause).

   /9/ By focusing attention on the underlying fairness of the trial,
rather than on immaterial technicalities, it reinforces the principle
that the basic purpose of a criminal trial is to decide the factual
question of the defendant's guilt or innocence (see United States v.
Nobles, 422 U.S. 225, 230 (1975) ), and not simply to provide the
factual basis for an appellate exposition of abstract legal principles
that do not affect the disposition of the case at hand (cf. Wainwright
v. Sykes, 433 U.S. 72, 90 (1977)).  By removing incentives for defense
counsel to plant technical errors in the record for the sole purpose
of obtaining a reversal on appeal, the harmless error doctrine not
only eliminates matters that are immaterial to the underlying fairness
of the trial, but also fosters the public respect for the legal
process that is essential if self-help is to be avoided, by proving
that the victims of crime can rely upon the criminal process to
vindicate their injuries.  See Hasting, 461 U.S. at 507, 509;  Gregg
v. Georgia, 428 U.S. 153, 183 (1976) (opinion of Stewart, Powell, and
Stevens, JJ.);  Kotteakos v. United States, 328 U.S. 750, 759-760
(1946);  R. Traynor, The Riddle of Harmless Error 14, 50 (1970);  cf.
Morris v. Slappy, 461 U.S. at 14-15.  By contributing to finality, the
harmless error doctrine protects society's interests in retribution,
incapacitation, deterrence, and rehabilitation.  Cf. Engle v. Isaac,
456 U.S. at 127 & n.32;  Sanders v. United States, 373 U.S. 1, 24-25
(1963) (Harlan, J., dissenting).  Finally, by eliminating burdensome
and needless retrials, it conserves scarce resources and averts the
risk that a retrial may cause new errors.  See Hasting, 461 U.S. at
509.

   /10/ In Justice Harlan's words, "particular types of error have an
effect which is so devastating or inherently indeterminate that as a
matter of law they cannot reasonably be found harmless." Chapman, 386
U.S. at 52 n.7 (dissenting).  Chapman noted that the receipt of a
coerced confession fits into this category (see Payne v. Arkansas, 356
U.S. 560 (1958)).  However, the Court's later decisions in Harrington
v. California, 395 U.S. 250 (1969), and Milton v. Wainwright, supra,
have called into question whether the admission of a coerced
confession fits into this class of errors.

   /11/ A showing of prejudice is not an absolute prerequisite to
establishing a speedy trial violation.  See Moore v. Arizona, 414 U.S.
25 (1973);  Barker v. Wingo, 407 U.S. 514, 530-533 (1972).  But
consideration of prejudice nonetheless plays a major role in assessing
such a claim.  See MacDonald, 435 U.S. at 858.  For that reason, this
too is a category of cases in which it is fair to say that the
harmless error principle has in effect been folded into the decision
whether there was an error at all.

   /12/ In his dissent in Chapman, Justice Harlan suggested a fourth
category that would include certain types of official misconduct that
might warrant reversal in every case to demonstrate society's
intolerance for intentional misbehavior.  386 U.S. at 52 n.7.
However, Hasting clearly rejected any such theory, holding instead
that "the interests preserved by the doctrine of harmless error cannot
be so lightly and casually ignored in order to chastise * * *
prosecutorial overreaching." 461 U.S. at 507;  cf. Mabry v. Johnson,
No. 83-328 (June 11, 1984), slip op. 6;  Smith v. Phillips, 455 U.S.
209, 219 (1982).

   /13/ The plurality left open a possible exception for cases in
which the defendant essentially concedes the issue in dispute, as
where a defendant concedes the issue of intent by raising an alibi or
insanity defense.  460 U.S. at 87.

   /14/ J.A. 182, 183 (twice);  id. at 184, 186 (thrice);  id. at 187,
188, 189, 190 (thrice);  id. at 195;  8 Tr. 1076, 1078, 1081, 1084,
1086 (twice);  id. at 1088-1089, 1090-1091, 1095-1096, 1097, 1098,
1099, 1100-1101;  see id. at 1091-1092, 1094-1095.

   /15/ True, it is never certain that the jury would not, in the
absence of the offending instruction, have reached an irrational
verdict.  But a reviewing court is not generally obliged to defer to
such a possibility.  The Court made this precise point in Strickland
v. Washington, supra, explaining that "(a)n assessment of the
likelihood of a result more favorable to the defendant must exclude
the possibility of arbitrariness, whimsy, caprice, 'nullification,'
and the like," since "(a) defendant has no entitlement to the luck of
a lawless decisionmaker, even if a lawless decision cannot be
reviewed." Slip op. 24.

   /16/ Cf. Patterson v. New York, 432 U.S. 197, 202 (1977) (upholding
state law placing burden of persuasion on accused on affirmative
defenses;  "(t)his was the rule when the Fifth Amendment was adopted,
and it was the American rule when the Fourteenth Amendment was
ratified");  Barnes v. United States, 412 U.S. 837, 843 (1973)
(instruction that the jury may infer guilty knowledge from the
unexplained possession of stolen goods states "a traditional
common-law inference deeply rooted in our law").

   /17/ To be sure, in Frady the defendant was required to carry the
burden of showing prejudice on account of his procedural default,
whereas the question here is whether the prosecution is to be
permitted to take up the burden of showing the absence of prejudice
beyond a reasonable doubt.  The pertinent point about Frady, of
course, is not the burden of persuasion but the Court's recognition of
the feasibility of the inquiry.

   /18/ Other decisions by the Court (in cases that did not present
this issue) have also involved factual situations in which it could be
said with complete assurance that no reasonable juror could have
failed to conclude that the defendant acted with malice.  For example,
could there be any doubt that Timothy McCorquodale, whose crimes were
twice described by this Court as a "horrifying torture-murder" (Gregg
v. Georgia, 428 U.S. at 201 (footnote omitted) (opinion of Stewart,
Powell, and Stevens, JJ.);  Godfrey v. Georgia, 446 U.S. 420, 429-430
(1980) (plurality opinion) ), acted with malice aforethought?  (In
fact, the Eleventh Circuit found that jury instructions like those
given here were harmless in McCorquodale's case:  McCorquodale v.
Balkcom, 705 F.2d 1553, 1555-1556, adopted in pertinent part, 721 F.2d
1493, 1502 (11th Cir. 1983) (en banc), cert. denied, 466 U.S. 954
(1984) ).  See also Baldwin v. Alabama, No. 84-5743 (June 17, 1985),
slip op. 2 (over a 40-hour period, victim was brutalized, choked,
repeatedly stabbed, run over by a car, and had her throat cut with a
hatchet);  Wainwright v. Goode, 464 U.S. 78, 79-80 (1983) (defendant
strangled ten-year old boy with a belt;  at trial, defendant
"testified in graphic detail as to the circumstances of the killing"
and stated that "he was 'extremely proud' of having murdered (the
victim) 'for the fun of it'");  Hopper v. Evans, 456 U.S. 605,
606-607, 612-613 (1982).  Tennessee has also had its share of such
homicides.  See, e.g., Tennessee v. Street, No. 83-2143 (May 13,
1985), slip op. 1-2 (robbery victim hanged);  State v. Matson, 666
S.W.2d 41 (Tenn. 1984) (victim murdered to prevent him from
identifying defendant).

   /19/ See Redding v. Benson, 739 F.2d 1360, 1363-1365 (8th Cir.
1984), cert. denied, No. 84-5908 (Feb. 19, 1985) (failure to instruct
the jury on essential element of the offense is harmless where the
jury necessarily found that element nonetheless because of other
instructions).

   /20/ The trial court instructed the jury as follows:  (J.A.
184-185;  8 Tr. 1084-1085):  "For you to find the Defendant guilty of
murder in the first degree, the State must have proven beyond a
reasonable doubt:  (Paragraph) (1) That the Defendant unlawfully
killed the alleged victim.  (Paragraph) (2) That the killing was
malicious:  That is, that the Defendant was of the state of mind to do
the alleged wrongful act without legal justification or excuse.  If it
is shown beyond a reasonable doubt that the alleged victims were
killed, the killing is presumed to be malicious in the absence of
evidence which would rebut the implied * * * presumption.  (Paragraph)
(3) That the killings were willful:  That is, that the Defendant must
have intended to take the life of the alleged victim.  (Paragraph) (4)
That the killing was deliberate:  That is, with cool purpose.
(Paragraph) (5) That the killing was premeditated.  This means that
the intent to kill must have been formed prior to the act itself.
Such intent or design to kill may be conceived and deliberately formed
in an instant.  It is not necessary that the purpose to kill preexist
in the mind of the accused for any definite period of time.  It is
sufficient that it preceded the act, however, short the interval."
These instructions were consistent with Tennessee law on first degree
murder.  See, e.g., State v. Bullington, 532 S.W.2d 556, 559 (Tenn.
1976);  Swan v. State, 23 Tenn. (4 Hum.) 136, 139 (1843);  Anthony v.
State, 19 Tenn. (1 Meigs) 265, 277 (1838);  Dale v. State, 18 Tenn.
(10 Yer.) 551, 551-552 (1837).

   /21/ Under Tennessee law, multiple gun shot wounds to the victim is
a sufficient basis for the jury to find that the defendant acted with
premeditation and deliberation.  See, e.g., Houston v. State, 593
S.W.2d 267, 273 (Tenn. 1980);  State v. Story, 608 S.W.2d 599, 601
(Tenn. Crim. App. 1980).

   /22/ Respondent's alibi defense was itself quite weak.  Respondent
did not testify;  nor did any defense witness pinpoint his whereabouts
at the relevant time.  One defense psychiatrist testified that
respondent offered only "vague" and "confusing" answers as to where he
was that night (J.A. 100, 101;  6 Tr. 819, 843), while the other
defense psychiatrist testified that he could not remember exactly what
respondent had told him (J.A. 134;  7 Tr. 877).  By contrast, several
eyewitnesses testified for the State that Sam Faulk, who respondent
claimed had committed the murders, had spent the entire evening at a
local bar.  See pages 2-3 note 1, supra.

   /23/ See Graham v. State, 547 S.W.2d 531 (Tenn. 1977) (insanity is
a legal excuse for a crime).  The Tennessee Supreme Court's decision
in Graham adopted the ALI Model Penal Code test for insanity and also
approved (547 S.W.2d at 543) questions for the jury on this issue that
were adopted in United States v. Smith, 404 F.2d 720, 727 (6th Cir.
1968).  Those questions are limited to the issue whether the defendant
was sane at the time of the charged offense;  they do not instruct the
jury to consider evidence of a defendant's mental disease when
determining whether he is guilty of the crimes charged against him.
404 F.2d at 727.  The state courts' rulings in this case confirm this
point.  At trial, respondent proposed several jury instructions
presenting a diminished capacity defense, all of which were rejected
by the trial court.  See R. 107, 110, 111-112, 116;  8 Tr. 1104.  On
appeal, respondent argued that the trial court's refusal to give these
instructions was erroneous (see Assignments of Error, Brief and
Argument on Behalf of Stanley Barnham Clark at 74-77, State v. Clark,
No. 8149 (Tenn. Crim. App. filed May 16, 1980) ), and the Tennessee
Court of Criminal Appeals rejected his argument (see Pet. App. A36).
It is thus clear that Tennessee does not have a diminished capacity
defense to murder.

   /24/ Congress has rejected the diminished capacity defense for
federal criminal prosecutions.  See the Comprehensive Crime Control
Act of 1984 (Insanity Defense Reform Act of 1984), Pub. L. No. 98-473,
Section 402, 98 Stat. 2057 (to be codified at 18 U.S.C. 20) (mental
disease does not constitute a defense unless it satisfies the test for
insanity);  S. Rep. 98-225, 98th Cong., 1st Sess. 229 (1983).

   /25/ See Thomas v. State, 201 Tenn. 645, 652-653, 301 S.W.2d 358,
361 (1957) (amnesia without more does not establish insanity);  Lester
v. State, 212 Tenn. 338, 344-348, 370 S.W.2d 405, 408-409 (1963)
(same);  Burton v. State, 217 Tenn. 62, 66-68, 394 S.W.2d 873, 875
(1965) (same);  Sparkman v. State, 469 S.W.2d 692, 696-697 (Tenn.
Crim. App. 1970).  As the Tennessee Court of Criminal Appeals
summarized in Sparkman, "(i)nsanity and amnesia are distinct
conditions, even though amnesia sometimes is an incident of insanity.
Insanity is incapacity to discriminate between right and wrong, while
amnesia is simply the inability to remember.  * * * Amnesia alone is
no defense to a criminal charge, unless it is shown by competent
evidence that the accused did not know the nature and quality of his
action and that it was wrong." 469 S.W.2d at 696-697.  The district
court's ruling that amnesia is a defense under Tennessee law (Pet.
App. A20) is clearly in error and should not be given any weight by
this Court (see Brockett v. Spokane Arcades, Inc., No. 84-28 (June 19,
1985), slip op. 8 & n.9).

   /26/ See Pirtle v. State, 28 Tenn. (9 Hum.) 663, 664-673 (1849)
(voluntary intoxication may be a defense to first degree murder, by
negating premeditation and deliberation, but is not a defense to
second degree murder);  Haile v. State, 30 Tenn. (11 Hum.) 154,
155-158 (1850) (same);  Lancaster v. State, 70 Tenn. 575, 577-578
(1879) (same);  Cartwright v. State, 76 Tenn. 376, 380-386 (1881)
(same);  Thomas v. State, 201 Tenn. at 647-651, 301 S.W.2d at 359-360
(same);  State v. Bullington, 532 S.W.2d 556, 560 (Tenn. 1976) (same);
 State v. Adkins, 653 S.W.2d 708 (Tenn. 1983) (same);  State v.
Plummer, 658 S.W.2d 141, 143 (Tenn. Crim. App. 1983) (same);  see also
W. LaFave & A. Scott, Criminal Law Section 45, at 345 (1972).  The
district court misconstrued state law in concluding that voluntary
intoxication is a defense to a charge of second degree murder (Pet.
App. A20).

   /27/ What is more, respondent's proof of amnesia and voluntary
intoxication was less than overwhelming.  Respondent's amnesia appears
to have been quite selective:  it was limited to the period
immediately surrounding the time of the killings (J.A. 96-103,
116-117, 134;  6 Tr. 812-823, 843;  7 Tr. 877).  Respondent's
voluntary intoxication claim was based upon his statement to the
defense psychiatrists that he had consumed as much as six six-packs of
beer and one pint of vodka on the day in question, which appears to be
at odds with his claim that he could generally remember the events of
that day and that he could drive an automobile (J.A. 96-101;  6 Tr.
814-819).  One defense psychiatrist expressed some doubt whether he
believed respondent's claim (J.A. 97;  6 Tr. 814-815), and the State's
psychiatrist testified that consumption of that amount of alcohol in
one day "approach(ed) the letal amount of alcohol," would render a
person "extremely sick," and, even if not physically impossible, was
"very unlikely" (J.A. 160-161;  6 Tr. 943-944).

   APPENDIX