On petition for writ of certiorari to the Supreme Court of
Virginia.
The petition for a writ of certiorari is denied.
Justice BRENNAN, dissenting.
Adhering to my view that the death penalty is in all
circumstances cruel and unusual punishment prohibited by the Eighth
and Fourteenth Amendments, Gregg v. Georgia,
428 U.S.
153, 227, 2950, 49 L. Ed. 2d 859 (1976), I would grant
certiorari and vacate the death sentence in this case.
Justice MARSHALL, dissenting.
I
In state habeas corpus proceedings, petitioner argued that he
was denied effective assistance of trial counsel as evidenced by
that counsel's failure to object to an instruction that was
inconsistent with the decision this Court announced, one year after
petitioner's trial, in Sandstrom v. Montana,
442 U.S. 510 (1979).
Petitioner's sole defense at his capital trial for murder was lack
of premeditation. The evidence at trial showed that petitioner had
consumed a number of beers on the evening of the crime and that,
immediately after killing the victim, he telephoned police to
report that he "had killed somebody." Petitioner accompanied
sheriff's
Page 469 U.S.
908 , 909
deputies to the victim's house, where he showed them the body.
Petitioner was convicted of capital murder on April 7, 1978, and
sentenced to death.
The instruction at issue, evidently taken from the Virginia form
book of jury instructions, was as follows:
"The Court instructs the jury that a
man is presumed to intend that which he does, or which is the
immediate or necessary consequences [ sic] of his act."
As the State now concedes, there is no doubt that this
instruction violates the Constitution, for in Sandstrom we held
that a virtually identical instruction violated due process and the
principles against burden shifting we had set forth in Mullaney v.
Wilbur,
421 U.S.
684, 95 S. Ct. 1881 (1975), and Patterson v. New York,
432 U.S. 197 (1977).
Sandstrom, however, was decided by this Court on June 18, 1979, a
little over a year after petitioner's trial . The question
presented by this petition is thus whether the failure of
petitioner's counsel, in a capital case in which premeditation was
the only issue, to make the very same objection that Sandstrom's
trial counsel had made several years earlier indicates that
petitioner was denied his Sixth Amendment right to effective
counsel.
This question presents the Court with an important opportunity
to give content to the generalized standards for constitutionally
effective counsel announced last Term in Strickland v. Washington,
466 U.S. 668
(1984). With respect to the prejudice prong of Strickland, the fact
that the Court has already seen fit to grant a petition for
certiorari on the question whether Sandstrom error can ever be
harmless indicates that the prejudice issue is worthy of the
Court's attention. Franklin v. Francis,
720 F.2d
1206 (CA11 1983) and
723 F.2d
770, cert. granted, 467 U.S. 1225 (1984); 1 see also
Connecticut v. Johnson,
460 U.S. 73 (1983)
(four-Justice plurality holding that Sandstrom error is never
harmless). And with respect to the ineffectiveness component of
Strickland -the requirement that counsel's performance not fall
below the " range of competence demanded of attorneys in criminal
cases," Strickland, supra, 466 U.S. at 687, 104 S.Ct. at
2064-petitioner has marshaled a strong case.
Page 469 U.S.
908 , 910
Petitioner's trial took place in April 1979. Nearly two years
earlier, in Deer Lodge County, Mont., David Sandstrom's counsel had
realized that decisions from this Court made it virtually certain
that the instruction used at petitioner's trial was inconsistent
with the Constitution, a contention with which we eventually and
unanimously agreed . Our decision in Sandstrom, we stated, was a
logical outgrowth of Mullaney v. Wilbur, supra -in which the Court
invalidated an instruction that malice was to be implied unless the
defendant rebutted this presumption-and Patterson v. New York,
supra, 432 U.S., at 215-in which we reaffirmed that "a State must
prove every ingredient of an offense beyond a reasonable doubt, and
. . . may not shift the burden of proof to the defendant" by means
of any presumption. Both of these decisions, of course, were
available to petitioner's counsel at the time of trial.
Mullaney, in particular, should have put petitioner's counsel on
notice to make the objection. As petitioner informed the state
habeas court, in the wake of Mullaney a spate of Virginia
publications, including ones oriented to practitioners, had
suggested that the Virginia instruction on implied malice used at
petitioner's trial was constitutionally defective. See, e.g.,
Comment, Has the Burger Court Dealt a Death Blow to the Presumption
of Malice in Virginia, 10 U.Rich.L. Rev. 687 (1976); Friend, The
Law of Evidence in Virginia 89-93 (1977); see also Note, Reforming
the Law of Homicide, 59 Va.L.Rev. 1270 (1973). In addition, a
criminal lawyer of long experience in Virginia testified in
petitioner's state habeas proceedings that, after Mullaney and as
of 1978, every competent attorney in a Virginia case in which
premeditation was at issue would have viewed it as mandatory to
object to the burden-shifting instruction. As the attorney said:
"[I]f the Commonwealth requests an instruction that says
presumption, if that word presumption is in there, the red flag
goes up and the defendant ought to be prepared to object to it.
Mullaney is one of the grounds." Pet. for Cert. 10.
This is therefore not a case in which "defense counsel [failed
to] recognize and raise every conceivable constitutional claim."
Engle v. Issac,
456 U.S.
107, 134, 1575 (1982). Nor is it a case in which either "the
defendant's own statements or actions" or an arguably "tactical
decision" of counsel can even plausibly justify the failings of
petitioner's counsel. Instead, trial counsel in a
Page 469 U.S.
908 , 911
capital case "simply did not think" 2 to make an objection that
every competent attorney in Virginia allegedly would have made and
that David Sandstrom's counsel had thought to make a full two years
earlier.
The way in which the state courts have treated petitioner's
ineffectiveness claim suggests that, at the least, this Court ought
to vacate the judgment below and remand for reconsideration in
light of Strickland. The Virginia Supreme Court denied a petition
for appeal on the issue, stating simply in one sentence that there
was no reversible error in the judgment of the State Circuit Court
that had considered the merits of petitioner's claim. To the extent
it is possible to decipher the Circuit Court's judgment, however,
it seems primarily based on the conclusion that "[i]nstructions
given at Petitioner's trial were both adequate and appropriate, and
therefore Petitioner's counsel was not ineffective in failing to
ask for instructions which Petitioner now claims should have been
requested" and the holding that "[a]s a matter of law, no evidence
of prejudice has been shown. . . ." App. to Pet. for Cert. 7, 6.
The former is an impermissible conclusion under Sandstrom and
indicates that the court simply did not understand the nature of
the Sandstrom claim . The latter conclusion, to the extent it is in
fact a holding of law, also violates Sandstrom; to the extent the
conclusion instead is an evidentiary one based on review of the
record as a whole, the decision should still be vacated and
remanded once this Court decides Francis, supra, and outlines the
standard by which the prejudice prong of Strickland applies to
Sandstrom claims. [
Footnote
3]
In light of the substantiality of petitioner's claim and the
shoddy treatment it and our precedents have received in the
Virginia courts, I would grant the petition and address the
application of Strickland to this case. [
Footnote 4] At a minimum, however, the petition
Page 469 U.S.
908 , 912
should be granted and the judgment below vacated so that the
state courts can start this time from the correct premise that a
Sandstrom error was committed and then begin to consider
petitioner's ineffectiveness claim in light of that error and
against the backdrop of our decision in Strickland.
II
Because I continue to adhere to my view that the death penalty
is in all circumstances cruel and unusual punishment prohibited by
the Eighth and Fourteenth Amendments, Gregg v. Georgia,
428 U.S.
153, 231, 2973 (1976), I would in any event grant the petition
and vacate the death sentence. In this particular case, I would
also grant the petition to address on the merits the questions of
whether petitioner's counsel performed with reasonable competence
when he failed to object to a constitutionally defective
instruction and whether petitioner was sufficiently prejudiced by
this failure to warrant a new trial.
Footnotes
Footnote 1 To the extent
there is any question as to whether petitioner was prejudiced by
the defective instruction, the petition ought at least to be held
for our decision in Francis, in which we will address the effect of
Sandstrom error.
Footnote 2 Pet. for Cert. 3
(citing testimony at plenary hearing on state habeas petition).
Footnote 3 Again, to assure
that similarly situated capital defendants are treated similarly,
the Court should also consider holding this petition pending
decision in Francis.
Footnote 4 I note also that,
if petitioner's counsel cannot be considered ineffective for
failing to have raised this objection, it can only be because the
claim was not sufficiently apparent at the time of trial that all
reasonably competent attorneys would have raised it. In that case,
under our decision last Term in Reed v. Ross,
468 U.S. 1, 104 S. Ct. at
2901 (1984), petitioner and his counsel would have had cause for
the failure to raise it, and the federal habeas court would then be
required to consider whether the failure to give the instruction
sufficiently prejudiced petitioner as to require that court to
consider the merits of petitioner's challenge. Wainwright v. Sykes,
433 U.S. 72
(1977). That issue, of course, must be left in the first instance
to the federal habeas court.
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