
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1588                                    CLAYTON LIBBY,                                Petitioner, Appellant,                                          v.                         RONALD DUVAL AND SCOTT HARSHBARGER,                               Respondents, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________               Patricia A. O'Neill for appellant.               ___________________               Elisabeth J. Medvedow, Assistant Attorney General, with whom               _____________________          Scott Harshbarger, Attorney General, was on brief for appellees.          _________________                                 ____________________                                    March 24, 1994                                 ____________________                      BOWNES,  Senior  Circuit Judge.    In  this appeal,                      BOWNES,  Senior  Circuit Judge.                               _____________________            Clayton Libby, a Massachusetts  state prisoner serving a life            sentence on a 1971 conviction for murder in the first degree,            challenges the district court's denial of his petition for  a            writ of  habeas corpus.   In  so doing,  petitioner primarily            contends  that the  court  erred in  deeming harmless  a jury            instruction   on  the  issue  of   malice  which  set  up  an            unconstitutional mandatory  presumption.   See  Sandstrom  v.                                                       ___  _________            Montana, 442 U.S. 510, 520-24 (1979)  (instruction containing            _______            presumption which has the effect of relieving the prosecution            of  the burden  of proof  on an  element of  a charged  crime            violates  the  Due  Process Clause)  (hereinafter  "Sandstrom                                                                _________            error").1  We affirm.                                          I.                                          I.                                          __                                      BACKGROUND                                      BACKGROUND                                      __________                      Early  in  the morning  of  August  9, 1970,  Bruce            Cullen, a New Hampshire  resident, was stabbed to death  in a            brawl that erupted outside of a South Boston housing project.            Petitioner and George Cooper were indicted  and tried for the                                            ____________________            1.  Petitioner   also   argues   that   an   instruction   on            manslaughter   given    at   this   trial    effectuated   an            unconstitutional  shift in the burden  of proof.   As we will            explain  more fully  infra in discussing  the effects  of the                                 _____            presumption-creating instruction, we do not believe it at all            likely  that  the  jury  would have  returned  a  verdict  of            manslaughter even if it  had been perfectly instructed.   We,            therefore, regard  any error in the  manslaughter instruction            as harmless and confine  our discussion to petitioner's claim            under Sandstrom.                  _________                                         -2-                                          2            killing.  Cooper was acquitted; Libby, however, was convicted            of murder in the first degree.                      Although  the circumstances  in which  the stabbing            took place are sketchy, the trial record reveals that, on the            night  of  August  8,  1970, petitioner  was  drinking  beer,            smoking marijuana, and possibly  taking diet pills.  Sometime            early in  the morning  of August  9, 1970, petitioner,  along            with Francis Barton and Kevin Martin, went to George Cooper's            South Boston  apartment building  and began to  converse with            Cooper  through  a rear  apartment  window.   After  a while,            petitioner and  Martin walked  to the front  of the  building            where they met several  other men.  Included among  these men            were the victim, Cullen,  and another New Hampshire resident,            Dennis Bates.                      At some point, a  fight broke out.  The  reason for            the fight is not entirely clear, although there was testimony            indicating that  it started  simply because Cullen  and Bates            were  not from the area.  There also was testimony indicating            that petitioner and Cullen  were arguing about whether Cullen            had been in a certain  federal prison.  In any event,  during            the  course of the fight, Cullen was stabbed nine times.  Six            of the stab wounds were to his chest; the other three were to            his back  or  side.   One  of the  chest  wounds was  to  the            victim's heart, and apparently  was delivered by a "downward"            blow.                                         -3-                                          3                      No  witness testified  to  actually  observing  the            stabbing.2   Instead, petitioner  was inculpated  through the            testimony of  eyewitnesses who  observed him both  before and            after  the fight.   Specifically,  there was  testimony that,            inter alia, petitioner (1) had been carrying a knife prior to            _____ ____            the fight; (2)  was seen running  away from  the site of  the            fight with blood on his clothes; (3) was seen holding a knife            shortly  after  the   stabbing;  (4)  admitted,  on   several            occasions after the fight, that he had done the stabbing; and            (5) made threats against anyone who  might "snitch[] on him."            There also  was testimony that petitioner  had stabbed Cullen            because he thought Cullen was "going to jump him from behind"            and/or  because  he  thought  Cullen was  "beating  up  Kevin            Martin."                      At the  conclusion of  a seven-day jury  trial, the            trial  judge instructed the jury  on theories of first degree            murder,3  second degree  murder,  and manslaughter.   In  the                                            ____________________            2.  One witness,  Mary VanGordon, who lived  in a neighboring            apartment, did testify to seeing Cooper hold the victim while            a  short, stocky man with  dark hair (a  description that did            not fit petitioner) thrust an object towards Cullen's stomach            five  times.   VanGordon  further testified  that, after  the            attack,  Cooper ran  into the  hallway of  a  nearby building            while  the man  who had  thrust the  object towards  Cullen's            stomach ran around to the back of the same building.            3.  The trial court instructed the jury that it could convict            for  first  degree  murder  if  it  determined,  after  other            requisite  findings,  that  the  stabbing  had   been  either            deliberately premeditated or had  been committed with extreme            atrocity  or cruelty.  A review of the trial record, however,            reveals  that  the  prosecution  relied  exclusively  on  the                                         -4-                                          4            course  of defining  malice, which  is "the  requisite mental            element" of murder under Massachusetts law,  see Commonwealth                                                         ___ ____________            v. Huot, 403 N.E.2d 411, 414 (Mass. 1980), overruled on other               ____                                    _________ __ _____            grounds, Commonwealth v. Bray,  553 N.E.2d 538 (Mass. 1990),4            _______  ____________    ____            the  judge told the jury  that "[m]alice is  implied in every            deliberate  cruel act  by  one against  another."   The  jury            convicted petitioner of first degree murder and recommended a            sentence of life imprisonment.                      On appeal, petitioner argued, inter alia,  that the                                                    _____ ____            aforementioned  instruction  constituted Sandstrom  error and                                                     _________            required reversal  of his  conviction.5   More  particularly,                                            ____________________            extreme  atrocity or  cruelty  theory in  arguing that  first            degree murder had been committed.            4.  Unlawful killings committed without malice are considered            manslaughter.  See Commonwealth v.  Todd, 563 N.E.2d 211, 214                           ___ ____________     ____            (Mass. 1990).              5.  Sandstrom  was  not  decided  until   eight  years  after                _________            petitioner's  conviction.    However,   because  petitioner's            direct appeal  was not perfected until  nearly eighteen years            after his  conviction, see Commonwealth v.  Libby, 580 N.E.2d                                   ___ ____________     _____            1025,   1026-27   (Mass.  1991)   (hereinafter   "Libby  II")                                                              _________            (explaining  the  neglect  by  court-appointed  counsel,  the            clerk's office, and the prosecutor's  office which led to the            delay  in  perfecting petitioner's  appeal), and  because new            rules  announced  in Supreme  Court  decisions  apply to  all            criminal cases "pending  on direct review or not  yet final,"            Griffith  v. Kentucky,  479 U.S.  314, 328  (1987),  both the            ________     ________            Massachusetts  Supreme Judicial  Court  ("SJC"), at  least in            Libby  II,    and  the district  court  treated  petitioner's            _________            Sandstrom argument  as properly  raised  on direct  appellate            _________            review.  We will do likewise.                      Similarly,  although petitioner  did not  object to            the  challenged  instruction  at   the  time  it  was  given,            Massachusetts has  waived its contemporaneous  objection rule            in the Sandstrom error context where the error occurred prior                   _________            to the Sandstrom  decision.  See, e.g., Commonwealth v. Hill,                   _________             ___  ____  ____________    ____                                         -5-                                          5            petitioner asserted  that the  instruction had the  effect of            directing the jury to find malice if it found that petitioner            had  committed a  "deliberate cruel"  act against  the victim            despite  the  fact  that  a  "deliberate  cruel"  act  is not            necessarily malicious.  The SJC  disagreed, holding:  "In the            context of the facts of this case and in light of the judge's            entire  instruction   on  malice  (which  is   not  otherwise            challenged),  we see  neither a  substantial likelihood  of a            miscarriage  of justice  calling  for relief  .  . .  nor  an            unconstitutional   presumption   dictated   to   the   jury."            Commonwealth  v.  Libby, 540  N.E.2d  154,  158 (Mass.  1989)            ____________      _____            (hereinafter "Libby I").  The SJC then went on  to affirm the                          _______            conviction, although  it remanded  to the superior  court for            consideration  of a  previously-filed motion  to dismiss  the            indictment on account of delay.                      In August 1990, petitioner's motion to  dismiss was            denied by the superior court.  In  September 1990, petitioner                                            ____________________            442 N.E.2d 24, 28  n.9 (Mass. 1982), vacated and  remanded on                                                 _______ ___  ________ __            other grounds, Hill v. Maloney, 927 F.2d 646 (1st Cir. 1990).            _____ _______  ____    _______            Because this condition is met, petitioner's failure to object            at  trial does  not procedurally  bar  us, see  Wainwright v.                                                       ___  __________            Sykes, 433 U.S. 72, 84 (1977) (failure  to object at trial as            _____            required   by   a   state  contemporaneous   objection   rule            constitutes  "independent and adequate  ground" sufficient to            foreclose federal  habeas  review  of  alleged  error),  from            reaching  the merits  of his  argument in this  instance, cf.                                                                      ___            Puleio  v.  Vose,  830  F.2d   1197,  1199  (1st  Cir.  1987)            ______      ____            (indicating  that waiver  of state  contemporaneous objection            rule removes  procedural bar  that ordinarily  would preclude            habeas court from reaching claim on merits where there was no            objection at trial), cert. denied, 485 U.S. 990 (1988).                                       _____ ______                                         -6-                                          6            filed a timely notice of appeal from this denial.  While that            appeal  was pending, this  court handed down  its decision in            Hill v.  Maloney, 927 F.2d  646 (1st  Cir. 1990).   See supra            ____     _______                                    ___ _____            note 5.  In Hill, we held unconstitutional a jury instruction                        ____            quite  similar to  the one  here at  issue.  Id.  at 649-51.6                                                         ___            Relying on Hill, petitioner  argued for a second time  to the                       ____            SJC that his conviction should be set aside because the trial            judge's  instruction   had  the  effect  of   setting  up  an            unconstitutional mandatory presumption.  Once again,  the SJC            rejected petitioner's argument  and affirmed his  conviction.            See Libby II, 580 N.E.2d at 1028.            ___ ________                      Finally, petitioner  sought relief in  the district            court  by  means  of  a   writ  of  habeas  corpus.     In  a            comprehensive  memorandum and  order, the  court applied  the            three-part  test set  forth  in Hill  for  review of  alleged                                            ____            Sandstrom  errors  and denied  the  writ.   First,  the court            _________            determined  that   the  challenged  instruction   set  up  an            unconstitutional   mandatory    presumption   and   therefore            constituted Sandstrom error.   See  Libby v.  Duval, No.  86-                        _________          ___  _____     _____            2187-WD,  slip  op.   at  8-9  (D.  Mass.  April   20,  1993)            (hereinafter "Libby III"); see also Hill, 927 F.2d at 648-49.                          _________    ___ ____ ____            Next,  the court found that  the instructions as  a whole did            not sufficiently explain the erroneous instruction on malice,                                            ____________________            6.  In Hill, the jury was instructed that "malice  is implied                   ____            from  any deliberate  or cruel  act against  another, however                                  __            sudden."  Id. at 648 (emphasis added).                      ___                                         -7-                                          7            and the jury  therefore was  not properly  instructed on  the            law.   See Libby III, slip  op. at 10-13; see  also Hill, 927                   ___ _________                      ___  ____ ____            F.2d  at  649.    Finally,   the  court  concluded  that  the            instruction,   although  erroneous,  was  harmless  beyond  a            reasonable doubt.  See Libby III, slip op. at 13-19; see also                               ___ _________                     ___ ____            Hill, 927 F.2d at 649.   It is from this last conclusion that            ____            petitioner appeals.                                         II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________                      We  agree   with  the  district   court  that   the            tripartite Hill  test applies  to the merits  of petitioner's                       ____            claim.   Accordingly, we  organize our discussion  within the            Hill framework.            ____                                          A.                                          A.                      Because the Hill opinion rehearses  in great detail                                  ____            the   legal  standards  applicable   to  challenges  to  jury            instructions  which   set   up  presumptions,   and   because            respondents7  concede that  the  instruction challenged  here            established a  mandatory presumption, we do  not believe that            either   a  highly   detailed  discussion   of  the   law  of            presumptions  or   an  extensive   explanation  of   why  the                                            ____________________            7.  Respondents  in  this  matter   are  Ronald  Duval,   the            Superintendent of the Massachusetts  Correctional Institution            at Cedar  Junction, where  respondent is being  detained, and            Scott Harshbarger,  the Attorney General  of the Commonwealth            of Massachusetts.                                         -8-                                          8            instruction was  defective is  required.8  Instead,  we think            it sufficient  to  note our  belief  that it  was  reasonably            likely   that  the   jurors   construed  the   trial  judge's            instruction as  requiring a finding of malice  upon a finding            that the stabbing was "deliberate"  and "cruel."  See Estelle                                                              ___ _______            v.  McGuire, 112 S. Ct. 475, 482 (1991) (habeas challenges to                _______            jury instructions reviewed  for "reasonable likelihood"  that            the  jury  has  applied  the  challenged  instruction  in  an            unconstitutional manner).  Thus, because the  instruction had            the  effect  of relieving  the prosecution  of the  burden of            proof  on an element of the crime charged, see Sandstrom, 442                                                       ___ _________            U.S.  at 520-24,  the  district court's  conclusion that  the            instruction established a  mandatory presumption was  clearly            correct.  Accordingly, we move to step two of the Hill test.                                                              ____                                          B.                                          B.                      Once we have determined that the  specific language            challenged by a petitioner set up a mandatory presumption, we            consider whether other parts of the instruction explained the            particular infirm language  to the  extent that  there is  no            reasonable   likelihood   that   the   jurors   applied   the            unconstitutional presumption.   See Boyde v.  California, 494                                            ___ _____     __________            U.S.  370, 380  (1990).   General instructions  regarding the            presumption  of  innocence  and  the  government's burden  of                                            ____________________            8.  Readers  interested in  such a  discussion should  review            both  the Hill decision  and the Supreme  Court's decision in                      ____            Yates v. Evatt, 111 S. Ct. 1884 (1991).            _____    _____                                         -9-                                          9            proving all elements of a crime beyond a reasonable doubt are            insufficient  to fulfill this explanatory role.  Id. at 651.9                                                             ___            So too  are instructions  directly contrary to  the erroneous            one  which  themselves  correctly   state  the  law.    Id.10                                                                    ___            Instead,  there must  be other  language in  the instructions            which actually "explains the  infirm language sufficiently so                            ________            that there is no reasonable likelihood that the jury believed            it must [in the context  of an erroneous malice  instruction]            find malice if it found petitioner [acted in such a way so as            to trigger the unconstitutional presumption]."  Id.                                                            ___                      Respondents  contend  that  four  sections  of  the            instructions, when  taken together, sufficiently  explain the            infirm language.   After  reviewing these four  sections, and            after  further  reviewing the  instructions  as  a whole,  we            cannot agree.                      The  first  two  sections  adduced  by  respondents            involve   definitions   of   malice   given   prior   to  the                                            ____________________            9.  This is  because "`[t]he jury could  have interpreted the            two sets  of instructions as indicating  that the presumption            was a means by  which proof beyond  a reasonable doubt as  to            [malice] could  be satisfied.'"  Id.  (quoting Sandstrom, 442                                             ___           _________            U.S. at 518-19 n.7) (alteration in original).            10.  This  is  because "`[a]  reviewing court  has no  way of            knowing  which of  the  two  irreconcilable instructions  the            jurors  applied in  reaching their  verdict.'"   Id. (quoting                                                             ___            Franklin, 471 U.S. at 322) (alteration in original).            ________                                         -10-                                          10            unconstitutional  instruction.11    In  each   of  these  two            instances,  the trial judge  correctly instructed  the jurors            that malice was  not proved where, among  other things, there            were  "extenuating circumstances"  sufficient to  "reduce the            crime to manslaughter."   At  most, we think  that these  two            definitions of malice might have allowed the jurors  to infer                                  _____            that   the    presumption   set   up   by    the   subsequent            unconstitutional   charge  could   be  rebutted   in  certain            extenuating  circumstances.   Cf.  id. at  653.   We  do not,                                          ___  ___            however, see  how these  definitions could have  explained to                                                             _________            the jurors  that the  upcoming instruction was  not going  to            mean what  it actually and  clearly stated.  At  any rate, we            reiterate   that   correct   instructions,   which   directly            contradict the  erroneous instruction, are not  sufficient to            cure the error.  See supra at p.10 and note 10.                             ___ _____                      The other  two  sections cited  by respondents  are            less  compelling.    The  first  of  these two,  which  again            preceded  the infirm instruction, primarily defined the terms                                            ____________________            11.  The first  passage relied  upon by respondents  reads as            follows:  "[M]urder is  the killing of a human  being without            legal  justification  or  without  excuse  or  without   such            extenuating  circumstances   as  may  reduce  the   crime  to            manslaughter; but with what is called in the law, malice             aforethought."                      The  second   passage  is   very  similar:     "Any            intentional  killing   of   a  human   being  without   legal            justification   or    excuse   and   with    no   extenuating            circumstances,  sufficient  in law  to  reduce  the crime  to            manslaughter, is malicious."                                         -11-                                          11            "aforethought" and  "murder."12  The second  defined the term            "premeditated."13            Both of  the passages  are jumbled and  confusing, especially            when compared  to the  short  and relatively  straightforward            statement   which  set  up   the  unconstitutional  mandatory            presumption.    Cf.  Hill,   927  F.2d  at  652  (juxtaposing                            ___  ____            clumsily-worded  correct instruction  with clear  and concise            unconstitutional   instruction   in  deciding   that  correct            portions of charge as a  whole did not negate the effects  of            the  presumption-creating  language).     Moreover,   neither            passage explicitly  touched on the concept  of malice, except                                            ____________________            12.  In its entirety, this section reads:                      If the  wicked  intent to  do  injury  to                      another person precedes  the act by which                      the   injury  was  done,   it  is  malice                      aforethought.      If  the   homicide  is                      committed without  legal justification or                      that is to say, without  due authority of                      law and not in self defense, and there is                      no issue here of self defense, nor in the                      heat of passion on great provocation, but                      with the specific intent to take the  one                      killed, or  an unlawful act,  the natural                      consequence of which would be  to deprive                      another person of life, it is murder.            13.  This passage states:                      Because it  was a  cruel act of  the will                      and  unlike  an  intent  stimulated  by a                      sudden  anger  or  quarrel where  someone                      suddenly,  not  having intended  violence                      beforehand, does.   It  must have been  a                      design  actually  formed and  formed upon                      before the  act and the murder  must have                      been committed pursuant to design or plan                      that has thus been formed.                                         -12-                                          12            insofar as the first one briefly discussed the "aforethought"            component of  the term  "malice aforethought."   In light  of            these deficiencies,  we do not  see how these  passages could            have actually explained the  challenged instruction "so as to            offset any erroneous impression  given by [it]."  See  id. at                                                              ___  ___            651.                      Before   concluding  our  analysis  of  the  entire            charge,  we  pause to  note that,  because  it was  framed in            irrefutable and  unvarying  terms ("[m]alice  is  implied  in                                                          __            every deliberate and cruel  act by one against  another"), we            _____            think  it  at least  reasonably  likely  that the  challenged            instruction completely removed the element of malice from the            case once  the Commonwealth  established that  petitioner had            acted deliberately  and cruelly.14  Therefore,  in conducting            our harmless-error analysis,  we will regard the  instruction            as having  erected a  conclusive mandatory presumption.   See                                                                      ___            Hill, 927 F.2d at  649 n.3 (distinguishing between conclusive            ____            mandatory     presumptions    and     rebuttable    mandatory            presumptions).                                            ____________________            14.  We concede, as noted earlier, that the jurors might have                                                               _____            inferred  from the  correct  definitions of  malice that  the            "implication" of malice created  by deliberate and cruel acts            was rebuttable.   See supra at  p.11.  Such a  reading would,                              ___ _____            however, have been quite strained.  In any  case, we think it            at least as likely that the jurors ignored the correct malice            instructions  which  are  facially  irreconcilable  with  the            challenged instruction.  See supra note 10.                                     ___ _____                                         -13-                                          13                      In sum, we agree  with the district court  that the            charge  as a  whole  did not  neutralize  the effect  of  the            presumption-creating  language.   Accordingly, the  effect of            the instruction here was unconstitutional.                                           C.                                          C.                      Having determined  that the overall charge  did not            adequately explain the challenged  instruction, we still must            ascertain  whether the error was  harmless.  See  id. at 654;                                                         ___  ___            see  also Sullivan v. Louisiana, 113 S. Ct. 2078, 2082 (1993)            ___  ____ ________    _________            (reiterating  that Sandstrom  error  is subject  to harmless-                               _________            error review).  In  Hill, because the Supreme Court  had sent                                ____            mixed signals regarding the proper harmless-error analysis to            be employed where there has been a mandatory presumption,  we            applied two  separate approaches.   First,  we looked  at the            trial record as  a whole  to determine whether  it was  clear            "beyond a reasonable doubt" that the error was harmless.  See                                                                      ___            Hill,  927 F.2d at  655 (applying the  Chapman v. California,            ____                                   _______    __________            386 U.S. 18, 24  (1967), standard for determining, on  direct            review, whether a  conviction must  be set  aside because  of            federal constitutional  error); see  also Rose v.  Clark, 478                                            ___  ____ ____     _____            U.S.  570,  580-82  (1986) (applying  Chapman  harmless-error                                                  _______            standard   to   a   presumption-creating   jury   instruction            challenged on habeas).  Alternatively, we utilized a narrower            approach, derived from Chapman,  for analyzing the effects of                                   _______            a conclusive mandatory presumption urged by Justice Scalia in                                         -14-                                          14            a concurring opinion in Carella v.  California, 491 U.S. 263,                                    _______     __________            267-73 (1989)  (hereinafter the  "Carella test").   See Hill,                                              _______           ___ ____            927 F.2d at 654-56.  Under both approaches we determined that            the error was not harmless.  Id. at 657.                                           ___                      Since the decision in Hill, however, (and since the                                            ____            district  court passed  on  whether or  not the  presumption-            creating  instruction was  harmless), the  Supreme Court  has            issued  Brecht v. Abrahamson,  113 S. Ct.  1710 (1993), which                    ______    __________            clarifies  that the  two approaches  employed in Hill  are no                                                             ____            longer  applicable  on collateral  review.    In Brecht,  the                                                             ______            Supreme Court  announced that the Chapman  "harmless beyond a                                              _______            reasonable  doubt"  test should  not  be  utilized by  courts            reviewing claims of constitutional error of the trial type on            habeas,  id. at  1717; instead,  reviewing courts  should now                     ___            look to whether error  "`had substantial and injurious effect            or influence  in determining  the jury's  verdict.'"  Id.  at                                                                  ___            1722 (quoting Kotteakos v. United  States, 328 U.S. 750,  776                          _________    ______________            (1946)).                      Petitioner  contends  that the  Brecht  approach is                                                      ______            inappropriate  in the  conclusive  presumption  context.   He            therefore urges us  to explicitly adopt the  Carella test for                                                         _______            determining  whether or  not an  instruction creating  such a            presumption can be viewed as harmless error.  In light of the            clear and  uncompromising language  employed by the  Court in            Brecht, we decline to do so.            ______                                         -15-                                          15                      The  issue  presented  in  Brecht was  whether  the                                                 ______            prosecutor's use  of  petitioner's post-Miranda  silence  for                                                    _______            impeachment  purposes at  petitioner's trial,  which violated            petitioner's due process rights under Doyle v. Ohio, 426 U.S.                                                  _____    ____            610 (1976)  (hereinafter "Doyle"  error"), was harmless.   In                                      _____            concluding  that it  was,  the majority  decided, as  we have            noted,  that the  Kotteakos harmless-error  standard was  the                              _________            appropriate lens through which to  view the claim on  habeas.            See  Brecht, 113  S. Ct.  at 1722.   In  so doing,  the Court            ___  ______            departed  from the  approach  taken in  certain other  habeas            cases where it  had assumed the applicability of  the Chapman                                                                  _______            standard.   Id. at 1718  (citing Yates v.  Evatt, 111  S. Ct.                        ___                  _____     _____            1884  (1991); Rose v. Clark,  478 U.S. 570  (1986); Milton v.                          ____    _____                         ______            Wainwright, 407 U.S. 371 (1972); Anderson v. Nelson, 390 U.S.            __________                       ________    ______            (1968) (per curiam)).                      In conducting  its  analysis, the  Court  began  by            observing  that   Doyle  error  fit  into   the  category  of                              _____            constitutional error known as "trial error."  See Brecht, 113                                                          ___ ______            S. Ct. at 1717.   These are errors which "`occur[] during the            presentation  of the case to the jury,' and [are] amenable to            harmless error analysis because [they] `may be quantitatively            assessed in the context of other evidence presented in  order            to  determine  the effect  [they] had  on  the trial.'"   Id.                                                                      ___            (quoting Arizona v. Fulminante, 499 U.S. 279, 307-08 (1991)).                     _______    __________                                         -16-                                          16            Errors of the trial  type have, since Chapman,  been reviewed                                                  _______            under the "harmless-beyond-a-reasonable-doubt" standard.                      The  Court also noted that, at the other end of the            spectrum of constitutional errors are "`structural defects in            the constitution of the  trial mechanism, which defy analysis            by `harmless-error'  standards'. . . because  they infect the            entire trial process."   Id. (quoting Fulminante, 499 U.S. at                                     ___          __________            309).   Listed as an example of  such a structural defect was            deprivation of the right  to counsel.  Id. (citing  Gideon v.                                                   ___          ______            Wainwright, 372 U.S. 335 (1963)).            __________                      After  reaching  this  conclusion, and  determining            that neither the doctrine  of stare decisis nor congressional                                          _____ _______            silence  prevented   it  from   considering  the   merits  of            respondent's argument  that the  Kotteakos standard,  and not                                             _________            the  Chapman  standard,  should  be employed  in  determining                 _______            whether the Doyle  error was harmless,  see generally id.  at                        _____                       ___ _________ ___            1718-19, the  Court  turned to  an  analysis of  whether  the            Chapman  standard  appropriately  served   certain  interests            _______            implicated  in  habeas cases  but  not in  the  direct review            context  whence  it sprang.    Pointing  to  (1) the  state's            interest in finality of convictions that have survived direct            review within the  state court system;  (2) the interests  of            comity; (3) the interests of federalism; and (4) the interest            of maintaining the prominence of the trial itself,  the Court            decided  that application  of the  Chapman standard  to trial                                               _______                                         -17-                                          17            errors  challenged on habeas resulted in an "imbalance of . .            . costs  and benefits."  Id. at 1721.  Accordingly, the Court                                     ___            embraced the less onerous Kotteakos standard, holding that it                                      _________            applies "in determining whether habeas relief must be granted            because of constitutional error  of the trial type."   Id. at                                                                   ___            1722.  Like the Chapman test, this "actual prejudice" inquiry                            _______            presumes   that  the   reviewing  court   will  conduct   its            harmlessness assessment "in light of the record  as a whole."            Id.            ___                      After  Brecht,  we  think  it  apparent  that   the                             ______            question of whether to apply the Kotteakos test in conducting                                             _________            our harmless  error inquiry  turns on whether  the conclusive            presumption here at issue constitutes "trial error."  Despite            the force of  some of our dissenting  brother's arguments, we            are  constrained  by the  Supreme  Court's  teaching that  it            should be so considered.  See Arizona v. Fulminante, 499 U.S.                                      ___ _______    __________            279, 306-07  (1990)  (citing Carella).   Thus,  we train  our                                         _______            sights on  whether, in light of the whole record, respondents            have   met   their   burden15  of   demonstrating   that  the                                            ____________________            15.  We  acknowledge  that  the  majority  opinion in  Brecht                                                                   ______            treats the burden as petitioner's.  See Brecht, 113 S. Ct. at                                                ___ ______            1722.   Nonetheless,  as  Justice Stevens,  who provided  the            crucial fifth  vote in  Brecht, convincingly explains  in his                                    ______            concurring  opinion,  the Kotteakos  test  requires that  the                                      _________            party  arguing the  harmlessness of  an error which  tends to            prejudice  a   litigant's   "substantial  rights"   (as   all            constitutional  errors surely  do)  must bear  the burden  of            proof.   Id. at 1723-24  and n.1  (Stevens, J.,  concurring).                     ___            Given this authority,  and given the further fact  that there            appear to be five votes for this position and only four votes                                         -18-                                          18            conclusive  presumption did not actually prejudice petitioner            because it did not have a substantial and injurious effect or            influence in  determining the jury's  verdict.  In  our view,            respondents have met their burden.                      The thrust of petitioner's harmfulness claim is not            that, in the absence of the conclusive presumption,  he would            have been  acquitted.  Rather, petitioner's  argument is that            the conclusive presumption precluded the jury from convicting            him  of manslaughter  on a  theory of  "sudden combat."   See                                                                      ___            Commonwealth  v. Richard,  384 N.E.2d  636, 638  (Mass. 1979)            ____________     _______            (the presence  of  sudden  combat  constitutes  a  mitigating            circumstance  sufficient to  reduce  a verdict  of murder  to            manslaughter under Massachusetts law).   While we concede (1)            that there was evidence  (i.e., the testimony that petitioner                                      ____            stabbed  Cullen because he thought Cullen  was "going to jump            him  from  behind"  and/or  because  he  thought  Cullen  was            "beating  up  Kevin  Martin")  which  might  conceivably have                                                  _____            provided  a basis  for the  jury to  have concluded  that the            government had not  proved an absence  of sudden combat;  and            (2)  that the conclusive presumption tended to deter the jury            from considering this evidence, see Yates, 111 S. Ct. at 1894                                            ___ _____            n.10  (conclusive  presumptions tend  to  deter  a jury  from            considering  any evidence  for the  presumed fact  beyond the                                            ____________________            for  placing the  burden on  petitioner,  we will  regard the            burden of proof as resting upon the respondents.                                         -19-                                          19            predicate evidence), we think  it extremely unlikely that the            jury  would  have relied  on  this  evidence  and returned  a            verdict of  manslaughter.  Mary VanGordon  testified that the            stabbing was administered while the victim was being held  by            another man.  Moreover, the  evidence reveals that the victim            was stabbed nine  times, with  six of the  stab wounds  being                        ____            delivered to the  chest area.   In our  view, such  evidence,            when  combined   with  the   fact  that  the   defense  never            specifically  argued a  sudden combat  theory to  the jury,16            strongly undermines any claim that petitioner was, throughout            the  entirety of the  stabbing, acting in  response to sudden            combat.                      We do  not believe  that the  erroneous instruction            had a  substantial and injurious  effect or influence  on the            jury's verdict.  Accordingly,  we affirm the district court's            conclusion that the instructional error was harmless.17                      Affirmed.                      Affirmed.                      _________                      CYR, Circuit  Judge (concurring):  Although I share                      CYR, Circuit  Judge (concurring):                           ______________            my dissenting  brother's belief that the  Carella concurrence                                                      _______                                            ____________________            16.  It is clear from the record that  petitioner focused his            defense  efforts  on arguing  that  the  prosecution did  not            establish beyond a reasonable doubt that he was, in fact, the            stabber.            17.  In so ruling, we  express no opinion as to  the district            court's  conclusion that  the  error here  was harmless  even            under the Chapman standard.                      _______                                         -20-                                          20            articulates  compelling grounds  for more  narrowly confining            "harmless  error" review  of a  jury instruction  mandating a            conclusive presumption, I join the majority opinion because I            am  satisfied that the review required by the Court in Brecht                                                                   ______            encompasses the entire record.                      Dissent follows.                      Dissent follows.                                         -21-                                          21                      Stahl, Circuit Judge, dissenting.  I agree with the                             _____________            majority that the instruction  challenged here had the effect            of  setting  up  a   conclusive  presumption  which  was  not            explained  away by  the totality  of the  charge.   I further            agree  with  the  majority that  conclusive  presumptions can            constitute harmless error.  However, I cannot agree  with the            method of  harmless-error analysis  employed by  the majority            and   with  its  conclusion   that  the  presumption-creating            instruction  was  harmless.     Accordingly,  I  respectfully            dissent.                                          A.                                          A.                                          __                      In concluding that it  is "extremely unlikely  that            the  jury  would  have  relied on  [the  unconsidered  sudden            combat] evidence and returned a verdict of manslaughter," see                                                                      ___            ante at  19, the majority significantly  expands the contours            ____            of harmless-error  analysis.  For, implicit  in this facially            uncontroversial statement  are two radical  assumptions:  (1)            that, in the habeas context, reviewing courts now are obliged            to  supply  missing factual  findings; and  (2) that,  in the            habeas  context, reviewing  courts can  and should  rely upon            evidence  that the  jury did  not consider.   In  my opinion,            neither  assumption  can be  squared  with  settled authority            interpreting the Sixth Amendment jury-trial right and the Due            Process Clause.                                         -21-                                          21                      As  the Supreme Court has made clear in a series of            recent  decisions,  an  instruction  setting  up a  mandatory            presumption engenders  an error different in  nature than the            more typical  form  of  constitutional  error  --  improperly            admitted  evidence  and/or  improperly allowed  argument.   A            mandatory presumption directs the  jury to presume an element            of  the crime  charged  upon finding  only certain  predicate            facts.   See, e.g.,  Sandstrom, 442  U.S. at  517.  This,  of                     ___  ____   _________            course, directly violates a criminal defendant's  due process            rights  to  have the  prosecution prove  all elements  of the            offense  charged, see Sullivan v. Louisiana, 113 S. Ct. 2078,                              ___ ________    _________            2080  (1993) (citing Patterson v. New York, 432 U.S. 197, 210                                 _________    ________            (1977) and Leland v.  Oregon, 343 U.S. 790, 795  (1952)), and                       ______     ______            to  have the  prosecution  persuade the  factfinder beyond  a            reasonable doubt of the facts necessary to establish  each of            those elements,  id. at  2080-81 (citing  In re Winship,  397                             ___                      _____________            U.S. 358, 364 (1970) and Cool v. United States, 409 U.S. 100,                                     ____    _____________            104 (1972)  (per curiam)).   It also,  in my  view, tends  to            undermine  the  Sixth  Amendment   jury-trial  right.     See                                                                      ___            generally   Carella,  491   U.S.  at   268-69  (Scalia,   J.,            _________   _______            concurring);  cf. Sullivan,  113 S.  Ct. at  2080 (discussing                          ___ ________            Sixth  Amendment right to have  the jury, and  not the judge,            make the requisite finding of guilt).                      A    conclusive     mandatory    presumption,    as                           __________            distinguished  from a rebuttable mandatory presumption, has a                                         -22-                                          22            further  pernicious  effect.    By   directing,  without  the            possibility  of rebuttal, the jury to find the elemental fact            merely upon  finding certain predicate facts,  it "tend[s] to            deter a  jury from considering any evidence  for the presumed            fact  beyond the predicate evidence."   Yates, 111  S. Ct. at                                                    _____            1894 n.10.  Indeed, given the "sound presumption of appellate            practice[] that  jurors are  reasonable and  generally follow            the  instructions they are  given," id. at  1893, a reviewing                                                ___            court  must assume  that the  jury did not  consider evidence                   ____            beyond that relating to  the predicate facts, because  "to do            so would  be a waste of  the jury's time and  contrary to its            instructions," id. at  1894 n.10; see also  Carella, 491 U.S.                           ___                ___ ____  _______            at 269 (Scalia, J., concurring).                      All  of  this  is  not to  say  that  a  conclusive            presumption  can never be harmless error.  What is does mean,            however,  as Justice Scalia  convincingly demonstrates in his            concurrence in Carella, is that "the harmless-error  analysis                           _______            applicable in assessing a mandatory conclusive presumption is            wholly unlike the  typical form  of such analysis."   Id.  at                                                                  ___            267.   Whereas it makes sense in the case of the more typical            form of constitutional error  -- improperly admitted evidence            and/or improperly allowed argument -- to perform the type  of            whole-record  "quantitative  assessment"  outlined in  Brecht                                                                   ______            (and, incidentally,  also outlined  in Chapman) in  order "to                                                   _______            determine  whether  the fact  supported  by [the]  improperly                                         -23-                                          23            admitted evidence [or improperly allowed argument] was in any            event overwhelmingly established by other evidence," see id.,                                                                 ___ ___            such an  inquiry makes no sense  where the error is  not that            the  jury may  have been swayed  by tainted  information, but            rather is that the jury  failed to consider relevant evidence            and failed to make  a required finding, id. at 267-69.   For,                                                    ___            as Justice Scalia explains:                      [Such]  problem[s] would not  be cured by                      an  appellate court's  determination that                      the    record    evidence    unmistakably                      established   guilt,   for   that   would                      represent  a finding  of fact  by judges,                      not  by  a  jury.   As  with  a  directed                      verdict   [for   the   State,  which   is                      constitutionally    impermissible,    see                                                            ___                      United States v. Martin Linen Supply Co.,                      _____________    _______________________                      430 U.S. 564, 572-73 (1977)],  "the error                      in such  a case is that  the wrong entity                      judged the defendant guilty."            Id. at 269 (quoting Rose v. Clark, 478 U.S 570, 578 (1986)).            ___                 ____    _____            Thus,  the proper question  for the reviewing  court "`is not            whether guilt may be spelt out of a record, but whether guilt            has  been  found by  a jury  according  to the  procedure and            standards appropriate for  criminal trials.'"   Id.  (quoting                                                            ___            Bollenbach v. United States, 326 U.S. 607, 614 (1946)).            __________    _____________                      With these  principles in mind,  Justice Scalia has            proposed a test for determining whether, despite the presence            of  a conclusive  presumption, a  particular case  presents a            "`rare  situation[]'"  where  "`[a] reviewing  court  can  be            confident  that [such a presumption] did not play any role in            the jury's  verdict.'"   Id. at  270 (quoting  Connecticut v.                                     ___                   ___________                                         -24-                                          24            Johnson,  460  U.S.  73,  87   (1983)  (plurality  opinion)).            _______            Seeking  to avoid  the  specter of  factfinding by  reviewing            courts on  the basis of  evidence the jury  never considered,            the Carella test does not direct courts to ascertain  whether                _______            the  presumed  fact  was  otherwise  established  to  varying            degrees  by the  evidence  (as the  Brecht and  Chapman tests                                                ______      _______            would do).   Rather, the test  instructs reviewing courts  to            ask  (1)  whether the  instruction  established  a conclusive            presumption on  a charge which  did not affect  other charges            and on which  the defendant  was acquitted;  (2) whether  the            instruction established a conclusive presumption with respect            to an element of  the crime which the defendant  admitted; or            (3) whether                       the  predicate facts  relied upon  in the                      instruction,  or other  facts necessarily                      found by the jury, are so closely related                      to the  ultimate fact to be presumed that                      no rational jury  could find those  facts                      without also finding that  ultimate fact,                      making those  findings [the] functional[]                      equivalent to . .  . the element required                      to be presumed.            Id. at 271.  If the answer to any of these three questions is            ___            "yes,"  the error is  harmless.  See  id.   Because this test                                             ___  ___            faithfully  preserves   a  criminal  defendant's   Sixth  and            Fourteenth Amendment  rights to  have an impartial  jury make                                                                ____            the requisite factual and elemental determinations in his/her            trial,  and  because  it  provides  assurance  that reviewing            courts  will  consider  only   the  evidence  that  the  jury                                         -25-                                          25            considered,  I  would apply  this test  rather than  the ill-            defined harmless-error test that the majority employs today.                                          B.                                          B.                                          __                      Before applying  the Carella  test to this  case, I                                           _______            feel it appropriate  to respond to the  arguments against the            Carella  test  and  in  favor of  the  whole-record  approach            _______            outlined  in Brecht.   Obviously,  the most  potent  of these                         ______            arguments  is the one relied upon by  the majority:  that the            whole-record Brecht analysis applies to "trial  errors," that                         ______            the  Supreme  Court,  in  a string  citation  in  Fulminante,                                                              __________            indicated that a conclusive presumption is "trial error," and            that  we therefore  are obliged  to conduct  our harmlessness            review in light of the whole record.                      I will admit that the Court's characterization of a            conclusive  presumption  as "trial  error"  in  Fulminante is                                                            __________            troublesome;  indeed,  I  think  this  case well  illustrates            Justice  White's criticism  of the  "trial error"/"structural            error" dichotomy.   See Fulminante,  499 U.S. at  291 (White,                                ___ __________            J., dissenting  in part) (arguing that,  in assessing whether            harmless-error analysis  ought to  be applied,  courts should            disregard  the trial  error/structural error  distinction and            instead  "consider[] the nature of the right at issue and the            effect  of  [the]  error  upon  the  trial").    Despite  the            aforementioned indication to the  contrary, the presence of a            non-harmless (as determined  by the Carella  test) conclusive                                                _______                                         -26-                                          26            presumption  strikes me as a type of "structural error."  See                                                                      ___            Carella,  491  U.S. at  268  (Scalia,  J., concurring)  ("The            _______            constitutional  right to  a  jury trial  embodies a  profound            judgment  about the way in  which law should  be enforced and            justice  administered.   It  is a  structural guarantee  that                                               __________ _________            reflects  a  fundamental  decision   about  the  exercise  of            official power -- a reluctance to entrust plenary powers over            the life  and liberty of  the citizen  to one judge  or to  a            group  of   judges.")  (emphasis  supplied)   (citations  and            internal quotation  marks omitted); cf. Sullivan,  113 S. Ct.                                                ___ ________            at  2083 (denial  of the  right to  a jury  verdict of  guilt            beyond a reasonable doubt is a structural error).                      In my view, however,  whether we label a conclusive            presumption trial  error, structural  error, or  something in            between is of no consequence; what matters instead is that we            apply  the  appropriate  form  of  harmless-error  review  in            assessing the effects of that presumption.  Applying a whole-            record review not only ignores the considerations outlined in            Part  A. of this dissent, but it also ignores two indications            by Supreme  Court majorities, subsequent to  Fulminante, that                                          __________     __________            the Carella analysis is properly employed by courts reviewing                _______            presumptions.  See Sullivan, 113 S. Ct. at 2082  (indicating,                           ___ ________            in  the  direct review  context,  that  Carella provides  the                                                    _______            proper framework  for determining whether or  not a mandatory            presumption was  harmless); Yates,  111 S.  Ct. at 1894  n.10                                        _____                                         -27-                                          27            (implicitly  endorsing,  in the  habeas context,  the Carella                                                                  _______            test  as a means for  evaluating whether or  not a conclusive            presumption was  harmless).  One  might argue that  Yates has                                                                _____            been superseded by Brecht, and that Brecht did not control in                               ______           ______            Sullivan  because Sullivan  was  a direct  review  case.   In            ________          ________            response,  I would point out that  Chapman, which did control                                               _______            in  Yates and would have controlled in Sullivan had the error                _____                              ________            therein  been  deemed  amenable  to   harmless-error  review,            contemplates  a  whole-record review  every  bit  as much  as            Brecht does; nonetheless,  the Court  has made  clear in  the            ______            Chapman context that, when confronted with presumption error,            _______            the  typical form  of whole-record  analysis does  not apply.            Thus, I  read the  string  citation in  Fulminante as  merely                                                    __________            indicating  that  a  conclusive presumption  is  amenable  to            harmless-error review.  I do not read it as stating that such                                         ___            a presumption is subject  to the usual whole-record harmless-            error test applicable to most other forms of trial error.                      It  might  also be  argued  that  the Carella  test                                                            _______            derives from Chapman, see  Carella, 491 U.S. at  271 (Scalia,                         _______  ___  _______            J.,  concurring) (noting  that if  the  Carella test  is met,                                                    _______            "[t]he error is  harmless because it is  `beyond a reasonable            doubt' that the jury found the facts necessary to support the            conviction") (citing Chapman,  386 U.S. at 24),  and that the                                 _______            replacement  of Chapman with Brecht on  habeas means that the                            _______      ______            Carella concurrence  has no  relevance in  habeas cases.   In            _______                                         -28-                                          28            response,  I  would  concede that  the  Carella  test can  be                                                    _______       ___  __            theoretically viewed as "deriving from" Chapman.  In my view,                                                    _______            however,  the  Carella concurrence  can  just  as easily  and                           _______            fairly  be   read  as   (1)  explaining  that   a  conclusive            presumption  sets up  an  error which  tends  to undermine  a            structural guarantee  of the Constitution and  which only can            be  harmless   in  those   "rare"  circumstances   where  the            presumption  did not play  "any role" in  the jury's verdict;            (2) setting  forth the test for determining whether the error            played  any  such role;  and  (3) noting,  in  conclusion and            without  prior reference  to Chapman,  that when  the Carella                                         _______                  _______            test is met, the Chapman test also is met.  In light of this,                             _______            and because abandoning Carella necessarily means that we must                                   _______            welcome factfinding by habeas courts on the basis of evidence            the jury did not consider, I prefer the latter reading.                      A  third  argument might  be  that,  in Yates,  the                                                              _____            Supreme  Court has  already  ratified factfinding  by  habeas            courts.  My response to such an argument simply would be that            I  agree.   As I  see it,  the Yates  test for  reviewing the                                           _____            effects   of   rebuttable   mandatory   presumptions,   which            impermissibly shift the burden  of proof from the prosecution            to  the  defendant,   does,  despite   the  Supreme   Court's            indications to the contrary, reek of factfinding by reviewing            courts.  Cf. generally Yates, 111 S. Ct. at 1898 (Scalia, J.,                     ___ _________ _____            concurring  in judgment)  (explaining that,  when a  jury has                                         -29-                                          29            been directed to apply a rebuttable mandatory presumption, it            has  never found that  the prosecution proved  the element on            which the presumption was erected beyond a reasonable doubt).            However, as Justice Scalia notes in his Carella concurrence:                                                    _______                      It is one thing to say that the effect of                      th[e]      erroneous      burden-shifting                      [effectuated by a rebuttable presumption]                      will   be   disregarded  if   the  record                      developed  at   trial  establishes  guilt                      beyond  a reasonable  doubt; it  is quite                      another to say that the jury's failure to                      make  any  factual  determination of  the                            ___                      elemental fact -- because of a conclusive                      presumption resting upon findings that do                      not establish beyond  a reasonable  doubt                      the elemental  fact -- will  be similarly                      disregarded.            Carella, 491  U.S. at 273 (Scalia,  J., concurring) (internal            _______            quotation marks omitted) (arguing the particular propriety of            the  Carella test  to  the  conclusive presumption  context).                 _______            Thus, I  do not think that  the Yates test can  and should be                                            _____            read  as implicitly  endorsing  the type  of factfinding  the            majority engages in today.                      Finally,  one  might  argue,  as  does  the  Brecht                                                                   ______            majority, that wholesale use of the  Brecht test promotes the                                                 ______            principles of  restraint, often couched in  terms of "comity"            and "federalism," underlying the  Supreme Court's more recent            habeas  jurisprudence.   In response, I  could only  agree if            "restraint" is defined solely in terms of state prisoners not            being granted very many writs of habeas corpus.  For, I think            it  obvious that factfinding on  the basis of record evidence                                         -30-                                          30            that the jury never considered cannot be cited as evidence of            judicial  restraint.   So  too do  I  think it  obvious  that            principles of comity and  federalism should never require the                                                        _____            continued  incarceration  of a  state  prisoner  who was  not            afforded his/her constitutional rights  to have an  impartial            jury make the requisite  factual and elemental determinations            in his/her trial  just because a federal judge  or a panel of            federal  judges believe that  guilt is "likely"  spelt out by            the record.  Cf. Bollenbach, 326 U.S. at 614.                         ___ __________                                          C.                                          C.                                          __                      Application  of the Carella test to the case at bar                                          _______            easily  yields the  conclusion that  the error  here was  not            harmless.18   I start from  the premise that  the question of            whether   an   unlawful   killing   constitutes   murder   or            manslaughter  turns  on  whether   or  not  the  killing  was            committed with malice.   See ante note  4.  "An  intention to                                     ___ ____            inflict  injury on the victim  which is not  justified on any            lawful ground or palliated by the existence of any mitigating                          __ _________ __ ___ _________ __ ___ __________            circumstances is  malicious within  the meaning of  the law."            _____________            Commonwealth v. Colon-Cruz, 562  N.E.2d 797, 808 (Mass. 1990)            ____________    __________                                            ____________________            18.  Obviously,  petitioner  neither  was  acquitted  of  the            charge  on which the presumption  was set up  nor admitted at            trial that if  he did  the stabbing, he  did so  maliciously.            Thus,  I restrict  my inquiry  under Carella  to whether  the                                                 _______            predicate  facts relied  upon  in the  instruction, or  other            facts  necessarily found by the jury,  are so closely related            to  malice that no rational jury could have found those facts            without also finding malice.                                         -31-                                          31            (emphasis  supplied)  (quoting Commonwealth  v.  McGuirk, 380                                           ____________      _______            N.E.2d  662, 666-67 (Mass. 1978), cert. denied, 439 U.S. 1120                                              _____ ______            (1979)); see  also Reddick  v. Commonwealth, 409  N.E.2d 764,                     ___  ____ _______     ____________            769 (Mass. 1980) (malice and the presence of legal mitigation            are "mutually  exclusive").  The presence  of "sudden combat"            constitutes  a mitigating  circumstance sufficient  to negate            malice  and to  reduce a  verdict of  murder  to manslaughter            under Massachusetts law.  See Richard, 384 N.E.2d at 638; cf.                                      ___ _______                     ___            Commonwealth  v. Nardone,  546 N.E.2d  359, 364  (Mass. 1989)            ____________     _______            (distinguishing  between assault  with  intent to  murder and            assault  with intent to kill).   And, when  such a mitigating            circumstance is adequately raised  in the evidence (as sudden            combat was here), the Commonwealth must prove the absence  of            this   circumstance  beyond   a   reasonable   doubt.     See                                                                      ___            Commonwealth  v. Nieves,  476  N.E.2d 179,  182 (Mass.  1985)            ____________     ______            (citing  Mullaney v. Wilbur, 421  U.S. 684, 697-98 (1975) and                     ________    ______            Commonwealth v. Stokes, 374 N.E.2d 87, 94 (Mass. 1978)).            ____________    ______                      As  the majority  opinion  states, it  is at  least            reasonably  likely  that  the jurors,  on  the  basis of  the            challenged instruction, found malice solely upon finding that            petitioner stabbed the victim  deliberately and cruelly.  The            foregoing authority, however, makes clear that deliberate and            cruel behavior  is  not necessarily  tantamount to  malicious            behavior.   To be specific, the stabbing here could have been            both deliberate  and cruel,  but administered in  response to                                         -32-                                          32            sudden combat, of  which there  is evidence  in this  record.            Thus, I  cannot say  that, in this  instance, "the  predicate            facts  relied  upon  in   the  instruction,  or  other  facts            necessarily  found by the jury, are so closely related to the            ultimate fact to be presumed that no rational jury could find            those  facts  without  also   finding  that  ultimate  fact."            Carella,  491  U.S. at  271.   Accordingly,  the error  had a            _______            "substantial and injurious effect or influence in determining            the  jury's verdict."    The petition,  therefore, should  be            granted.19                                              ____________________            19.  Even were I to employ the deferential standard of review            the majority utilizes, I could not join the majority opinion.            As  I have explained, the error committed here had the effect            of  deterring the  jury from  considering evidence  of sudden            combat.   Yet,  there  was  an  abundance of  such  evidence;            indeed,  it is undisputed that the stabbing took place in the            midst of a drunken melee.   In light of this, and in light of            the further fact  that the  Commonwealth bore  the burden  of            proving  an  absence of  sudden  combat  beyond a  reasonable            doubt, see Nieves, 476  N.E.2d at 182, I am at  a loss to see                   ___ ______            how the error can be viewed as harmless even under Brecht.                                                               ______                                         -33-                                          33
