
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 96-1458                                    THOMAS KOONCE,                                Plaintiff - Appellant,                                          v.                            PETER A. PEPE, SUPERINTENDENT,                                Defendant - Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Richard G. Stearns, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                _____________________               Stephen Hrones, with whom Michael  A. Goldsmith and Hrones &               ______________            _____________________     ________          Garrity were on brief for appellant.          _______               Ellyn H. Lazar, Assistant Attorney General, Criminal Bureau,               ______________          with whom Scott  Harshbarger, Attorney General, was on  brief for                    __________________          appellee.                                 ____________________                                   November 6, 1996                                 ____________________                    TORRUELLA,  Chief  Judge.   Plaintiff-appellant  Thomas                    TORRUELLA,  Chief  Judge.                                  ____________          Koonce ("Koonce") filed this petition for a writ of habeas corpus          under 28 U.S.C.   2254.  The sole issue before us  is whether the          jury instructions  in Koonce's state court  murder trial violated          his  due process rights  by impermissibly shifting  the burden of          proof.  Like the district court  before us, we find that the jury          instructions did  not violate  Koonce's due process  rights under          the Fourteenth  Amendment, and  we therefore affirm  the district          court's dismissal of the petition for habeas corpus.                                      BACKGROUND                                      BACKGROUND                    The events that led  to the murder charge in  this case          are detailed in the prior decisions of the Supreme Judicial Court          ("SJC").  See  Commonwealth v. Koonce  ("Koonce II"), 636  N.E.2d                    ___  ____________    ______    _________          1305, 1306-07 (Mass. 1994).   In brief, on the night of  July 20,          1987,  Koonce  and  three others  from  Brockton,  Massachusetts,          travelled  in a car to a nightclub  in Westport, then to a Burger          King  in Dartmouth,  and  finally to  a  housing project  in  New          Bedford.   At  the  first two  locations  fights erupted  between          groups  from New Bedford and Brockton, but Koonce and his friends          remained  uninvolved.1    At  the New  Bedford  housing  project,          however,  a confrontation arose, which resulted  in a large group          of people from  New Bedford, including the victim, chasing Koonce          and his friends back to their car, as well as beating a member of          another Brockton  group.   When Koonce  and  his friends  reached                                        ____________________          1  There was testimony that Koonce pulled out a gun at the Burger          King.  Koonce II, 636 N.E.2d at 1306.                 _________                                         -2-          their car, their path  was blocked by another automobile.   There          was conflicting testimony at  trial as to how close the crowd got          to  the car.    Once the  path  cleared, the  driver  of the  car          accelerated.   A  shot  was fired,  and  the victim  was  fatally          wounded.   Koonce later went to the police and stated that he had          fired the shot.  Id. at 1307.                           ___                    Koonce  was indicted  for murder  in the  first degree.          His first trial before a jury in the Massachusetts Superior Court          ended in a  mistrial when the jury was unable  to reach a verdict          on the issue of self-defense.   See id. at 1306.  A second  trial                                          ___ ___          was held in 1992,2 and the jury convicted Koonce of murder in the          first degree.  Koonce was sentenced to life  imprisonment without          the possibility of parole.                    Koonce filed  a motion  for new trial  asserting, inter                                                                      _____          alia, that the final  instruction given on voluntary manslaughter          ____          violated his Fourteenth  Amendment right to  due process of  law.          The trial  judge denied the  motion, and the  SJC affirmed.   Id.                                                                        ___          Koonce subsequently  brought this petition  for a writ  of habeas          corpus in  the district court for the  district of Massachusetts.          The  district  court  dismissed  the petition,  and  this  appeal          ensued.                                      DISCUSSION                                      DISCUSSION                              I.  The Jury Instructions                              I.  The Jury Instructions                                  _____________________                                        ____________________          2  Before his second trial,  Koonce sought relief before a single          justice  of the SJC, under Mass.  Gen. L. ch. 211    3, on common          law double  jeopardy principles.   Koonce's petition  was denied,          and the full bench of the SJC  affirmed the order.  See Koonce v.                                                              ___ ______          Commonwealth ("Koonce I"), 587 N.E.2d 220 (Mass. 1992).          ____________   ________                                         -3-                    This  case centers  on a single  statement made  by the          trial court  in its instructions to the jury.  As the content and          context  of that instruction is crucial to our analysis, we quote          here from the trial  court's instructions to the jury  at length.          The court began by instructing the jury about murder in the first          and second degree.  It then turned to manslaughter:                         If  .  .  . the  Commonwealth  has not                      proved  beyond  a  reasonable  doubt  the                      elements necessary to prove the defendant                      guilty  of second degree murder, then you                      may consider whether the Commonwealth has                      proved  the  lesser  included offense  of                      manslaughter.                           Now, before I  define manslaughter,  I                      made  reference  earlier to  self defense                      and let me  define that specifically  now                      before we discuss manslaughter.  Evidence                      has been  offered in  this case  that the                      defendant  acted  in  self  defense.    A                      person may lawfully use  reasonable force                      to defend himself from a physical attack.                      Bear in mind that the defendant  does not                      have to prove anything.                           If   evidence   of  self   defense  is                      present,  the   Commonwealth  must  prove                      beyond  a reasonable doubt he did not act                      in self defense.  If the Commonwealth has                      failed to prove beyond a reasonable doubt                      that  the defendant did  not act  in self                      defense, then you must find the defendant                      not guilty.  In  other words, if you have                      a  reasonable doubt  whether  or not  the                      defendant  acted  in  self defense,  your                      verdict must be not guilty.              Tr. at 6-61 to 6-62.  The trial court continued with instructions          as to what a  reasonable person in the defendant's  position must          believe in  order to have acted  in self defense,  and what would          constitute excessive force.  The instructions then went on:                         Remember the defendant  does not  have                      to prove anything.  The  prosecution must                      prove  beyond a reasonable doubt that the                                         -4-                      defendant acted with excessive force.                           If   there   is   evidence  that   the                      defendant may have acted in self defense,                      then the Commonwealth must prove beyond a                      reasonable doubt, as I said earlier, that                      the   defendant  did  not   act  in  self                      defense.    If  you  determine  that  the                      Commonwealth has failed to prove beyond a                      reasonable doubt that  the defendant  did                      not act  in self defense, then  you must,                      of course, find the defendant not guilty.                      In other words, if you  have a reasonable                      doubt as  to whether or not the defendant                      acted in self  defense, your verdict must                      be not guilty.                         Now,  if  the  Commonwealth  fails  to                      prove beyond a  reasonable doubt that the                      defendant  did not  act in  self defense,                      but  the Commonwealth does prove beyond a                      reasonable doubt that the  defendant used                      excessive force in  defending himself  in                      the light of all the circumstances and if                      death resulted from  the use of excessive                      force, then you may consider  whether the                      defendant  is   guilty  of  manslaughter.                      Okay?          Tr.  at 6-61  to  6-65.    The  trial court  then  set  out  what          manslaughter is, the difference between murder and  manslaughter,          what mitigating circumstances might negate the element of malice,          and defined voluntary manslaughter.  It continued:                         In order to prove the defendant guilty                      of     voluntary     manslaughter     the                      Commonwealth  must  prove three  elements                      beyond  a reasonable doubt:   first, that                      the  defendant  inflicted an  injury upon                      the victim and from which injury he died;                      second, that  the defendant intentionally                      killed  the victim, but he used excessive                      force  in self  defense; third,  that the                      homicide was committed unlawfully without                      legal excuse or justification.                           Now,  facts  or circumstances  as I've                      indicated may mitigate  or reduce  murder                      to  manslaughter.  This  is when a person                      kills  using  excessive  force   in  self                      defense.  That is what the Commonwealth's                      theory  is.    They   say  that  if  [the                                         -5-                      defendant]  was  justified in  using self                      defense,  he  used  excessive   force  in                      defending himself . . . .                           Specifically, if  the person initiated                      an assault  against the defendant  so the                      defendant reasonably feared  that he  was                      in  danger of  being killed  or suffering                      grievous  bodily injury  at the  hands of                      the  victim, then  the defendant  has the                      initial right to  use whatever means  are                      reasonably   necessary   to   avert   the                      threatened  harm.   But if  the defendant                      used  excessive  force --  that  is, more                      force  than  was  reasonable  and  proper                      under   the   circumstances  --   or  the                      defendant himself became the attacker and                      the use of  such excessive force resulted                      in the  death of  the  victim, then  that                      would constitute manslaughter.   So,  you                      see it  all depends  on the facts  as you                      see them.                    Immediately   following   these  statements   came  the          instruction at issue here:                         Also, you  may not return a verdict of                      guilty   of   manslaughter   unless   the                      defendant  proves   beyond  a  reasonable                      _________________________________________                      doubt that the  defendant used  excessive                      _____ ___________________________________                      force  in defending himself, again in the                      _____                      circumstances as you see them.          Tr. at 6-68  (emphasis added).  The parties  are agreed that this          sentence of  the instruction  was faulty,  as it  is in fact  the          Commonwealth  that  must prove  beyond  a  reasonable doubt  that          ____________          Koonce used excessive force in his defense.3  See Commonwealth v.                                                        ___ ____________          Rodr guez, 352 N.E.2d 203, 205-06 (Mass. 1976).          _________                    The  court  said no  more  on  the topic  of  voluntary          manslaughter.  Instead,  it moved on  to instruct on  involuntary                                        ____________________          3   Counsel for Koonce did  not object to the  instruction at the          time it was made, but did file a motion for a new trial  based on          this same  ground.  The SJC  and the district court  both met the          issue on the merits.  See Koonce II, 636 N.E.2d at 1308.                                  ___ _________                                         -6-          manslaughter and  other matters in the case,  including the Fifth          Amendment  and  the defendant's  right not  to  testify.   In the          context of the latter, it instructed that                         the  defendant  has an  absolute right                      not to testify since the entire burden of                      proof in this case is on the  prosecution                      to  prove that  the defendant  is guilty.                      It is  not up  to the defendant  to prove                      that he is not guilty or he is innocent.          Tr. at 6-77.                               II.  The Legal Framework                               II.  The Legal Framework                                    ___________________                         A.  The Standard Governing the Writ                         A.  The Standard Governing the Writ                             _______________________________                    In April of 1996, the Antiterrorism and Effective Death          Penalty  Act of 1996, Pub. L. 104-132,  Title I,   104, 110 Stat.          1219,  changed the standard governing the issuance of the writ of          habeas corpus.  The new language states that                       (d) [a]n application for a writ of habeas                      corpus on  behalf of a person  in custody                      pursuant to the judgment of a State court                      shall not be granted  with respect to any                      claim that was  adjudicated on the merits                      in  State  court  proceedings unless  the                      adjudication of the claim --                           (1) resulted in a decision that was                         contrary   to,   or   involved   an                         unreasonable     application    of,                         clearly established Federal law, as                         determined by the Supreme  Court of                         the United States; or                          (2) resulted in a decision that was                         based     on    an     unreasonable                         determination  of    the  facts  in                         light of the evidence  presented in                         the State court proceeding.          28  U.S.C.     2254(d).   The  district  court's  action preceded          enactment  of  the  new standard,  and  so  it reviewed  Koonce's          petition under the old standard, i.e., whether the petitioner was                                           ____                                         -7-          "in  custody in violation of the Constitution or laws or treaties          of the United  States."   28 U.S.C.    2254(a).  Appellee  argues          that,  notwithstanding  the district  court's  use  of the  prior          statute, the new  standard applies  here.  However,  we need  not          determine which standard applies in this context, as we find that          under either statute Koonce's petition must fail.                             B.  The Applicable Case Law                             B.  The Applicable Case Law                                 _______________________                    The  district court  analyzed Koonce's  claim that  the          jury instruction  violated his due  process rights under  Hill v.                                                                    ____          Maloney,  927 F.2d 646 (1st Cir. 1990), and Koonce maintains that          _______          we should do the same.                        Under Hill, a  reviewing court must first                            ____                      determine  whether   a  reasonable  juror                      would  have  interpreted  the  challenged                      portion of the  instruction as creating a                      mandatory presumption.  If so,  the court                      must then consider whether other parts of                      the  charge   clarified  the  ill-advised                      language   with   the   result   that   a                      reasonable  factfinder   would  not  have                      understood the instruction  to create  an                      unconsitutional presumption.  Finally, if                      the court determines that the charge as a                      whole   left   the    jurors   with    an                      impermissible impression,  the court must                      proceed to evaluate the  harmlessness vel                                                            ___                      non of the error.                      ___          Anderson  v.  Butler,  23 F.3d  593,  595  (1st Cir.)  (citations          ________      ______          omitted), cert. denied, __ U.S. __, 115 S. Ct. 331 (1994).                      ____________                    Appellee,  however, argues  that  Koonce's reliance  on          Hill  is misplaced.   Appellee contends  that the  instruction at          ____          issue here did not create  a presumption, mandatory or otherwise.                      A  mandatory  presumption  instructs  the                                         -8-                      jury  that  it must  infer  an "elemental                      fact" such as intent or malice from proof                      of a "basic fact"  such as a knowing act.                      . . . A permissive presumption allows but                      does not require  the jury  to infer  the                      elemental  fact upon  proof of  the basic                      facts.          Hill, 927 F.2d at 648-49; see, e.g., Libby v. Duval, 19 F.3d 733,          ____                      ___  ____  _____    _____          735-36 (1st Cir.) (finding  instruction that "[m]alice is implied          in every deliberate  cruel act  by one  against another"  created          mandatory  presumption), cert. denied, __ U.S. __, 115 S. Ct. 314                                   ____________          (1994).   We agree that no such presumption was established here.          As  appellant  notes,  read  literally,  the  instruction  simply          misinforms the  jury that to  warrant a verdict  of manslaughter,          Koonce  was required to prove that he acted with excessive force.          The instruction did not state that upon finding certain predicate          facts,  the  jury could  infer that  a  necessary element  of the          Commonwealth's case had been met.                    Accordingly, we turn to  the traditional harmless error          analysis.  See Sullivan  v. Louisiana, 508 U.S. 275,  281 (1993).                     ___ ________     _________          "The only question for  us is 'whether the ailing  instruction by          itself so infected the entire trial that the resulting conviction          violates  due process.'"   Estelle  v. McGuire,  502 U.S.  62, 72                                     _______     _______          (1991) (quoting Cupp  v. Naughten, 414 U.S. 141, 147 (1973)).  We                          ____     ________          must address the  instruction "in the context of the instructions          as a whole and the trial record," and "inquire 'whether there  is          a reasonable  likelihood that the jury has applied the challenged          instruction  in  a way'  that  violates the  Constitution."   Id.                                                                        ___          (quoting Boyde v. California, 494 U.S. 370, 380 (1990)); see also                   _____    __________                             ________                                         -9-          Gilday  v.  Callahan, 59  F.3d 257,  260  (1st Cir.  1995), cert.          ______      ________                                        _____          denied, __ U.S. __, 116 S. Ct. 1269 (1996).          ______                         III.  The Harmlessness of the Error                         III.  The Harmlessness of the Error                               _____________________________                            A.  The Individual Instruction                            A.  The Individual Instruction                                __________________________                    Taken literally, the erroneous instruction  shifted the          burden of proof  on excessive force to Koonce.   The SJC, and the          district court after it, however, concluded that "[e]ven taken in          isolation  the jury would understand  that the judge  had made an          error  because there would be no purpose in the defendant proving          he  used  excessive  force."   Koonce  II,  636  N.E.2d at  1308.                                         __________          Koonce,  however,  maintains that  he  did  have an  interest  in          proving  excessive force.   As  he  states in  his brief,  if his          "'perfect' self-defense  argument  failed,  he  certainly  had  a          compelling interest in convincing the  second jury that he  acted          in self-defense,  albeit with excessive force,  and was therefore          guilty of the lesser crime of manslaughter."  Brief of Appellant,          at 13.                    We  disagree.  Koonce's  argument would  only withstand          scrutiny if the  jury were  asked to find  first, whether  Koonce          acted in "perfect" self  defense, and if not, second,  whether he          acted  in  self-defense  with  excessive  force.    That is  not,          however,  what  the jury  was asked  to weigh.   Instead,  it was          instructed as follows:                         Now,  if  the  Commonwealth  fails  to                      prove beyond a reasonable doubt  that the                      defendant  did not  act in  self defense,                      but the Commonwealth  does prove beyond a                      reasonable doubt that the  defendant used                      excessive force in  defending himself  in                                         -10-                      the light of all the circumstances and if                      death resulted from  the use of excessive                      force, then you may consider  whether the                      defendant is guilty of manslaughter.           Tr. at 6-64  to 6-65.  In short, the jury was instructed to first          determine whether the Commonwealth failed to prove Koonce did not          act in self  defense.   Thus, the  jury would  only consider  the          excessive force question if it had already determined that Koonce          had  acted in  self-defense.   At that  juncture, it  was  not in          Koonce's  interest for the jury  to find excessive force, because          if  it concluded that he  had not acted  with excessive force, he          would be  acquitted.  Therefore,  we agree  with the SJC  and the          district court that  Koonce had  no interest in  proving that  he          acted with excessive  force, and any reasonable juror  would have          understood that it  would be  illogical for Koonce  to carry  the          burden of proving excessive force.                      What is more, the verdict  suggests that the jury never          reached  the question of excessive  force.  See  Ducette v. Vose,                                                      ___  _______    ____          842 F.2d 538, 542-43  (1st Cir. 1988) (denying petition  for writ          of  habeas corpus where  there was  no "virtually  no likelihood"          that the  erroneous instruction could  have made a  difference in          the jury's deliberations).  The jury found Koonce guilty of first          degree murder.  As the trial court instructed the jury, the first          element of first degree murder is whether the defendant committed          an  unlawful killing.   According to  the instructions,  the jury          could only  find that this element  was met if it  found that the          Commonwealth proved beyond a reasonable doubt that Koonce did not                                                                    _______          act in  self defense.   Because the  jury found Koonce  guilty of                                         -11-          first degree  murder, it must have  found that he did  not act in          self-defense.  The issue of excessive force would therefore never          have arisen.                      Koonce attempts to  argue that the jury would, in fact,          have applied  the erroneous  instruction by maintaining  that the          error served to shift the burden  of proof to him on the question          of self-defense.   Acknowledging that the  plain language of  the          instruction went only to excessive force, he nonetheless contends          that  the jury  could  have construed  the  misinstruction as  an          instruction requiring that Koonce prove he acted in self-defense,          such   that  a   reasonable  juror   would  have   believed  that          manslaughter was not an  option unless Koonce demonstrated beyond          a reasonable doubt that he acted in self-defense.                      We find no substance in  Koonce's position.  First,  as          the  appellee  notes,  the  judge's statement,  given  its  plain          interpretation,  simply  did not  mean what  Koonce claims.   The          instruction was  that Koonce  had to prove  excessive force,  not                                                                        ___          that  he  had to  prove self-defense.    Second, the  trial court          clearly  described  self-defense  and  excessive  force  as   two          separate  concepts, with the latter  only arising as  an issue if          the jury  did not  find the  former.  The  lines between  the two          concepts  were  not blurred,  as  Koonce would  have  us believe.          Simply  put, a reasonable  juror would  not have  misconstrued an          instruction about  excessive force  to apply  to  the more  basic          question of self-defense.                   B.  The Instruction in the Context of the Whole                   B.  The Instruction in the Context of the Whole                       ___________________________________________                                         -12-                    The district court found, as did the SJC, that "reading          the  charge as a whole, no reasonable  juror could have been left          with  any other impression  than that the burden  of proof was on          the  Commonwealth with respect to  every element of  the case and          that the defendant had no  burden whatsoever to prove  anything."          District  Court Memorandum of Decision  and Order, at  6.  Koonce          argues  here that the other portions of the charge cannot explain          away the challenged instruction,  especially given the importance          of  the issue.   Koonce  focuses on  the fact  that this  was the          district  court's final  comment on  voluntary manslaughter.   He          contends that it  is more likely  that a  juror would follow  the          erroneous instruction as it  was the judge's last comment  on the          topic,  and as it included  imperative language such  as "you may          not."                    We  disagree.   Of course,  the mere fact  that correct          instructions were given  as well  as the incorrect  one does  not          save  the  instruction.   See Libby,  19 F.3d  at  737.   But the                                    ___ _____          judge's  instructions here as to  burden of proof  were much more          comprehensive than Koonce would acknowledge.  As the SJC put it,                      [t]he  misstatement  in  the  instruction                      came after the  judge:  correctly  stated                      that it was  the Commonwealth's burden to                      prove   manslaughter;   twice   correctly                      stated that the defendant did not have to                      prove  anything;  twice correctly  stated                      that the Commonwealth must prove beyond a                      reasonable doubt that  the defendant  did                      not act in self-defense;  twice correctly                      stated  that, if  there was  a reasonable                      doubt as to  whether the defendant  acted                      in self-defense, the  verdict must be not                      guilty; and three times  correctly stated                      that the Commonwealth must prove beyond a                                         -13-                      reasonable doubt that the  defendant used                      excessive force.            Koonce  II, 636  N.E.2d  at 1309.   What  is  more, although  the          __________          challenged   instruction   was   the  last   word   on  voluntary          manslaughter,  the judge  continued  his instructions,  correctly          apportioning the  burden of  proof for  involuntary manslaughter,          and, most significantly, stating that "the entire burden of proof          in this case is on the prosecution to prove that the defendant is          guilty."  Tr. at 6-77.  In this context, and  given our agreement          with  the SJC "that the offending language was meaningless in the          context of the trial and the  charge as a whole," id., our review                                                            ___          of  the totality  of  the  jury  instructions  leads  us  to  the          conclusion that any confusion was adequately clarified, and so no          reasonable   juror  would   have  applied   the  unconstitutional          instruction.   See  Anderson,  23 F.3d  at  597; cf.  Francis  v.                         ___  ________                     ___  _______          Franklin,  471 U.S.  307, 315  (1985) ("Other  instructions might          ________          explain  the particular  infirm  language to  the  extent that  a          reasonable juror  could not  have considered  the charge to  have          created an unconstitutional presumption.").                      Koonce next  argues that, for two  reasons, viewing the          record as a whole, the trial court's error "'"had substantial and          injurious   effect  or  influence   in  determining   the  jury's          verdict."'"   Libby,   19  F.3d   at   738  (quoting   Brecht  v.                        _____                                    ______          Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United          __________                                    _________    ______          States, 328 U.S.  750, 776  (1946))).  First,  he reiterates  his          ______          position that the instruction  placed the burden on him  to prove          self-defense,  an argument  we have  already dismissed.   Second,                                         -14-          Koonce  maintains  that the  facts  of this  case,  including his          flight  from a large group of people  who had just beaten another          man, and the  firing of only a single shot,  paired with the fact          that  the first jury to hear the  case could not reach a verdict,          mandate  the  conclusion  that  the  trial  judge's error  had  a          substantial impact on Koonce's  chance for acquittal, or, at  the          very  least, a  manslaughter  verdict.   These circumstances,  he          urges,  should lead  to  "grave doubt"  in our  minds  as to  the          harmlessness  of the  trial court's  error, such  that we  should          treat the error  as if it  affected the verdict.   See O'Neil  v.                                                             ___ ______          McAninch, __ U.S. __, __, 115 S. Ct. 992, 994 (1995).            ________                    Koonce  cites no  authority  for his  premise that  the          mistrial  in his first trial  should shade our  reasoning in this          case.   Even assuming that we  should do so, however,  we find no          reason to doubt our  conclusion that the error was  harmless.  No          reasonable juror  would have  applied the  erroneous instruction,          given  that the instructions as  a whole clarified  the burden of          proof, that  Koonce had no  interest in proving  excessive force,          and that the jury found Koonce guilty of first degree murder, and          thus should never  have had  to weigh the  question of  excessive          force.   In  essence,  Koonce's last  argument is  really seeking          clemency, based on  the tragic  circumstances of this  case.   We          recognize that  we are Koonce's court of last resort.  A grant of          clemency,  however, is not within this court's purview, and so we                                         -15-          affirm the decision of the district court.4                                      CONCLUSION                                      CONCLUSION                    For  the reasons  detailed above,  the decision  of the          district court  denying Koonce's  petition for  a writ of  habeas          corpus is affirmed.                    affirmed                    ________                                        ____________________          4   The  Supreme Court  has found  that the  traditional harmless          error  analysis   does  not  apply  to   jury  instructions  that          constitute  a "'structural  defect[] in  the constitution  of the          trial  mechanism.'"   Sullivan  v.  Louisiana,  508 U.S.  at  281                                ________      _________          (quoting  Arizona v. Fulminante, 499  U.S. 279, 309  (1991)).  In                    _______    __________          Sullivan, the  Court  found  that  an instruction  that  gave  an          ________          unconstitutional  definition  of "reasonable  doubt" misdescribed          the burden of  proof, such  that there essentially  was "no  jury          verdict within the meaning of the  Sixth Amendment."  Id. at 280.                                                                ___          The  Court stated that "the  essential connection to  a 'beyond a          reasonable  doubt'  factual  finding  cannot be  made  where  the          instructional error consists of a misdescription of the burden of          proof, which vitiates all the jury's findings."  Id. at 281.                                  ___                        ___             Koonce cites Sullivan here for the proposition that  the error                          ________          in this case worked a federal due process violation, but does not          argue that the error was structural, such that the harmless error          standard  would not apply.  Nonetheless, for the sake of clarity,          we   note  that  this  was  not  a  "structural"  error,  as  the          misinstruction did not  relieve the Commonwealth  of its duty  to          prove  each element of  the crime, but rather,  as the SJC found,          "placed  the  burden  on   the  defendant  of  proving  something          (excessive force) that any  reasonable juror would understand was          antithetical to his  defense."   Koonce II, 636  N.E.2d at  1308.                                           _________          Examination of  Sullivan and  the other recognized  exceptions to                          ________          harmless error analysis  reveals that, unlike in those cases, the          error here is not a "'structural defect[] in the trial mechanism'          which affect[s] 'the entire conduct  of the trial from  beginning          to  end' and  'without [which] a  criminal trial  cannot reliably          serve  its function as a  vehicle for determination  for guilt or          innocence.'"  United States v. Brand,  80 F.3d 560, 568 (1st Cir.                        _____________    _____          1996)  (quoting  Fulminante,  499   U.S.  at  309-10);  see  also                           __________                             _________          Fulminante,   499  U.S.   at   309-310  (listing   constitutional          __________          violations  that   have  been  found   to  constitute  structural          defects).                                           -16-
