
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-2000                                   BRUCE ANDERSON,                                Petitioner, Appellant,                                         v.                                   NORMAN J. BUTLER,                                Respondent, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                              _________________________                                        Before                       Selya, Boudin and Stahl, Circuit Judges.                                                ______________                              _________________________               Stephen Hrones, with whom Hrones & Garrity was on brief, for               ______________            ________________          appellant.               Nancy W. Geary, Assistant  Attorney General, with whom Scott               ______________                                         _____          Harshbarger, Attorney General, was on brief, for appellee.          ___________                              _________________________                                     May 11, 1994                              _________________________                    SELYA,  Circuit  Judge.     Petitioner-appellant  Bruce                    SELYA,  Circuit  Judge.                            ______________          Anderson, convicted of first degree  murder in the stabbing death          of his estranged wife, exhausted state remedies and  then applied          to  the federal  court  for a  writ  of habeas  corpus,  alleging          ineffective assistance  of counsel.   Ultimately, we  granted the          writ in  a 2-to-1 decision,  see Anderson v. Butler,  858 F.2d 16                                       ___ ________    ______          (1st Cir. 1988), and ordered a new trial, id. at  19.  Petitioner                                                    ___          fared no better the second time around:  a Massachusetts superior          court jury convicted him  of first degree murder and  the highest          state  court  again  proved  inhospitable,  see  Commonwealth  v.                                                      ___  ____________          Anderson, 408 Mass. 803, 563 N.E.2d 1353 (1990).          ________                    Having succeeded once in obtaining habeas relief  under          federal  law, see 28 U.S.C.     2241-2254, petitioner tried anew.                        ___          This  time he contended  that a jury instruction  on the issue of          provocation created an impermissible  mandatory presumption.  See                                                                        ___          generally  Sandstrom  v. Montana,  442  U.S.  510, 520-24  (1979)          _________  _________     _______          (holding  that an instruction setting up a 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).          The  district  court denied  and  dismissed  the petition.    See                                                                        ___          Anderson  v. Butler, No. 91-10482-Z (D.  Mass. Aug. 23, 1993)("D.          ________     ______          Ct. Op.").  This appeal followed.          I.  BACKGROUND          I.  BACKGROUND                    The relevant facts are laid out in the Supreme Judicial          Court's  opinion,  see Anderson,  563 N.E.2d  at 1354-55,  and it                             ___ ________          would  be pleonastic to rehearse  them here.   It suffices to say                                          2          that, at the second trial, petitioner conceded the uxoricide, but          claimed that he acted  without malice and in the heat of passion,          having been provoked by  finding a strange and scantily  clad man          in his wife's bedroom.                    In  this  appeal,  petitioner  sounds  a  single theme,          constructed in three stages:  he contends that the superior court          judge  erred  in  his  charge to  the  jury  on  the question  of          provocation; that the  error struck at the heart  of petitioner's          defense, thus denying  him a fair trial;  and that, consequently,          his  constitutional  rights  were  abridged.   His  complaint  is          directed  specifically  at a  single  sentence  within the  trial          judge's lengthy description of  provocation.1  That sentence told          the jurors to  examine whether  "an ordinary man,  given all  the          facts and circumstances . .  . would he be likely to be in such a          state of  passion, anger, fear,  fright or nervous  excitement as          would  lead him" to commit  murder.  Petitioner  claims that, had          the judge  faithfully stated the governing  law, see Commonwealth                                                           ___ ____________          v.  Walden, 380 Mass. 724, 405 N.E.2d 939 (1980); Commonwealth v.              ______                                        ____________          Rooney, 365 Mass. 484, 313 N.E.2d  105 (1974), he would have said          ______          "might lead" in lieu of "would lead."                    Both the  state supreme court, Anderson,  563 N.E.2d at                                                   ________          1355-56,  and  the federal  district court,  D.  Ct. Op.  at 3-6,          carefully  examined  this assignment  of  error,  placed it  into          realistic  context,  and found  it wanting.    We reach  the same                                        ____________________               1The full text of the charge on provocation is reproduced in          Commonwealth v. Anderson, 563 N.E.2d at 1355 n.1.          ____________    ________                                          3          conclusion.          II.  DISCUSSION          II.  DISCUSSION                    We begin by particularizing the single respect in which          the  jury instructions  on provocation  were in  error.   We then          indicate  why,  upon careful  review of  the  record, we  find no          sufficient reason  to believe that,  within the framework  of the          entire charge, the mangled verb usage  would have been understood          by a reasonable juror as creating a mandatory presumption.  Last,          we  explain why,  regardless  of how  the solitary  instructional          error  is viewed,  it  cannot plausibly  be  said, on  the  whole          record,  that   the  lapse  tainted  the   trial  or  compromised          petitioner's defense.                                    A.  The Error.                                    A.  The Error.                                        _________                    Massachusetts   law   defines   adequate   provocation,          sufficient  to  convert  what  might  otherwise  be  murder  into          manslaughter, as "something `that  would be likely to  produce in          an  ordinary man such a state  of passion, anger, fear, fright or          nervous excitement as might lead  to an intentional homicide and,          moreover, such  as did actually produce  such a state of  mind in          the  slayer.'"   Rooney, 313  N.E.2d at  112 (citation  omitted).                           ______          Consequently, the trial judge's instructions, which used the verb          phrase "would lead" in place of the phrase "might lead," erred in          this one respect.2                            B.  The Mandatory Presumption.                            B.  The Mandatory Presumption.                                _________________________                                        ____________________               2By  petitioner's own  admission,  the bulk  of the  court's          charge  on  provocation  was  squarely in  line  with  applicable          principles of Massachusetts law.                                          4                    The  Due Process  Clause  requires  the prosecution  to          prove  every essential  element of  a crime  beyond a  reasonable          doubt.  Hence, if a court instructs a trial jury in such a way as          to create a mandatory presumption that relieves the government of          its  burden, the  court  runs afoul  of  the Constitution.    See                                                                        ___          Sandstrom, 442 U.S. at 524.          _________                    In the circumstances of  this case, the tripartite test          of Hill  v. Maloney, 927  F.2d 646  (1990) governs the  merits of             ____     _______          petitioner's Sandstrom claim.  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.  Id. at 648-49.  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  unconstitutional          presumption.  Id. at 649.   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.  Id. at 649, 654.          ___ ___                ___                    Using Hill  v. Maloney  as our  yardstick, we  take the                          ____     _______          measure of petitioner's case.                    1.   Nature of the Presumption.  First and foremost, we                    1.   Nature of the Presumption.                         _________________________          do  not believe  that a  reasonable juror  would have  viewed the          disputed  instruction  as  setting  up a  mandatory  presumption.          Petitioner suggests that the substitution of the verb "would" for          "might"  was tantamount to the judge telling the jurors that, "if                                          5          you  do not  find complete self-defense    the  only circumstance          under  which an  ordinary  man  "would"  kill     you  must  find          insufficient  provocation  and, therefore,  malice."    And since          there was no evidence of self-defense, the thesis runs, the judge          effectively directed a finding of malice.                    Although  ingenious,  petitioner's  thesis is  severely          flawed.   One  principal problem with  it is that,  while a legal          theorist perhaps might have  reasoned in this way, the  judge did          not instruct the  jury to follow such a course.   As we explained          in Hill, "[a]  mandatory presumption instructs  the jury that  it             ____          must  infer an  `elemental fact'  such as  intent or  malice from          ____          proof of a `basic fact' such as  a knowing act."  Hill, 927  F.2d                                                            ____          at 648.   Where, as in  this case, the charge  merely permits the          inference  to be drawn,  the presumption,  by definition,  is not          mandatory.  See, e.g., id. at 649.                      ___  ____  ___                    Judges should  not divorce themselves from  the reality          of human  experience.  Taking a  practical, commonsense approach,          we conclude that, in  all probability, a typical juror  would not          have  known  the appropriate  legal  standard  for perfect  self-          defense,  and,  therefore, would  not  even  have considered  the          possibility  that a finding of malice was mandated by the court's          instruction.   Hence, the  erroneous substitution of  "would" for          "might" in  a  single sentence  of  the charge  did  not forge  a          mandatory  presumption.   At  most,  the  ailing instruction,  by          itself, would have had  the effect of lowering the  burden placed          by state law on the prosecution, not eliminating it.                                          6                    2.  The  Totality of  the Charge.   Even assuming,  for                    2.  The  Totality of  the Charge.                        ____________________________          argument's sake,  that the erroneous substitution  of "would" for          "might" in the instructions created an impermissible presumption,          we deem it  highly unlikely  that a reasonable  juror would  have          understood the  instructions, overall, as  directing that  malice          was to be presumed.                    If the specific language challenged on appeal creates a          mandatory  presumption, the  court  "then  must consider  whether          other parts  of the instruction explained  `the particular infirm          language to the  extent that  a reasonable juror  could not  have          considered  the  charge  to  have  created   an  unconstitutional          presumption.'"    Hill,  927  F.2d  at  649  (quoting Francis  v.                            ____                                _______          Franklin, 471 U.S. 307, 315 (1985)).  Of course, in studying this          ________          question, an inquiring  court must  bear in mind  that "a  single          instruction  to a jury may not be judged in artificial isolation,          but  must be viewed in the context  of the overall charge."  Cupp                                                                       ____          v. Naughten, 414 U.S. 141, 146-47 (1973).             ________                    We believe that  petitioner focuses too single-mindedly          on the  challenged sentence in the  abstract.  A fair  reading of          the  judge's  instructions,   taken  in  their   totality,  leads          inexorably to the conclusion that the court explained  the matter          with  sufficient  care that  a  reasonable juror  would  not have          understood  the  charge  to   have  created  an  unconstitutional          presumption.  We explain briefly.                    The judge began the  relevant segment of the  charge by          opening  the   jurors'  minds  to  an   expansive  definition  of                                          7          provocation.   Specifically,  he told the  jury that,  "[t]he law          does  not attempt  to define  in any  narrow way  the provocation          which may  reduce  the crime  to manslaughter."   He  went on  to          instruct that reasonable provocation "is that kind of provocation          that would inflame a  reasonable ordinary and law abiding  man to          the point where he  would be capable of killing  another person."          The  judge then stated that,  "provocation must be  such as would          likely produce in an ordinary man such a state of passion, anger,          fear, fright or nervous excitement  as would eclipse his capacity          for reflection or restraint and actually did produce such a state          of mind in the defendant."                    Only  at  this  point   did  the  judge  interject  the          objectionable language.3   Even then, it was promptly followed by          further  clarification in the form of a question; the judge asked          the jury to mull whether "the situation [would] be such that [the          ordinary man] would likely be in  such a state of passion, anger,          fear,  fright or nervous excitement as would eclipse his capacity          for  reflection and  restraint?"   The  judge  then proceeded  to          outline the  additional requirements  for a finding  of voluntary          manslaughter, making it plain that a verdict less than murder was          an option.                    Viewed   against  this  backdrop  and  considering  the                                        ____________________               3To be sure, the jurors heard this portion of the charge not          once,  but twice,  for, during  deliberations, they  asked to  be          reinstructed as to the various degrees of homicide, and the judge          reread the pertinent portions of the original charge.  We  do not          see  how this circumstance bears  on the question  of whether the          interdicted language fosters a mandatory presumption.                                          8          judge's  repeated  admonitions that  the  jury  must resolve  the          provocation  issue,  we think  it  is  highly improbable  that  a          reasonable juror  would have understood, from  the entire charge,          that the absence of provocation was to be assumed.  Thus, even if          the  challenged  sentence,  viewed  in  isolation,  carried   the          potential of creating  a mandatory  presumption   and  we do  not          believe,  realistically,  that  such  a  potential  loomed     we          consider it  extremely unlikely that a  reasonable juror, heeding          all the instructions, would have taken an unconstitutional tack.          ___                    3.  Harmlessness.   Finally, assuming arguendo that the                    3.  Harmlessness.                           ____________                      ________          instructional error created a legally  impermissible presumption,          we would find  the error harmless.  This  court has recently held          that, under applicable Supreme Court precedents, an instructional          error of the type alleged by petitioner is to be considered trial          error,  not structural error, for purposes of habeas review.  See                                                                        ___          Libby v. Duval,  ___ F.3d ___, ___ (1st Cir.  1994) [No. 93-1588,          _____    _____          slip op. at 17-18]; see  also Ortiz v. Dubois, ___ F.3d  ___, ___                              ___  ____ _____    ______          (1st Cir. 1994) [No. 93-1656, slip op. at 17] (dictum).                    Trial  errors    even  trial errors  of  constitutional          dimension   are  reviewed in habeas corpus  proceedings under the          so-called "whole-record" test for harmless error.  See  Brecht v.                                                             ___  ______          Abrahamson,  113  S. Ct.  1710, 1718-19,  1722  (1993).   In such          __________          circumstances, the writ should issue only if  the reviewing court          concludes  that the  instructional error  "had a  substantial and          injurious effect or influence in determining the jury's verdict."          Id.  at 1714 (quoting Kotteakos  v. United States,  328 U.S. 750,          ___                   _________     _____________                                          9          776 (1946)); see also  United States v.  Ladd, 885 F.2d 954,  957                       ___ ____  _____________     ____          (1st  Cir.   1989)   (explicating  Kotteakos   "fair   assurance"                                             _________          standard).                    We  think  the  Commonwealth's  case  passes  Kotteakos                                                                  _________          muster with  flying  colors.   Like  the veteran  district  court          judge,  we simply do not  believe that a  one-word deviation from          the norm spoiled  the trial's  overall integrity.   To the  exact          contrary, it seems transpicuous that the judge's charge, taken in                                                                   _____ __          its  entirety, fairly  presented  the law  and adequately  limned          ___  ________          petitioner's theory of the case.  Furthermore, given the strength          of  the prosecution's  case and  the weaknesses  inherent in  his          provocation  defense,4 it  is  surpassingly difficult  to believe                                        ____________________               4To give content to our general statements that the evidence          against petitioner  was strong  and that petitioner's  defense of          provocation  was weak,  we  cite one  illustrative, if  gruesome,          passage from the Supreme Judicial Court opinion:                    There   was   evidence  that,   although  the                    defendant  was enraged  when he  attacked his                    wife, he nevertheless acted in a calculating,                    deliberate,  and  reflective  fashion.    For                    example,   when   he   entered   his   wife's                    apartment, the defendant  made it  impossible                    for her  to summon assistance  by ripping the                    telephone from the wall.  After the defendant                    had  chased  the other  man  from his  wife's                    apartment, he had to return and force his way                    into the neighbors' apartment in order to get                    to his  wife.   As he stabbed  his wife,  the                    defendant told her "You're gonna fuckin' die,                    bitch."  When an occupant of the apartment in                    which  the  stabbing  occurred  attempted  to                    intercede, the defendant held him at bay (and                    again  confirmed  his intentions)  by saying,                    "Get outa my fuckin'  way or you'll die too."                    After  stabbing his  wife several  times, the                    defendant  left   the  apartment  .  .   .  .                    [Thereafter], the defendant decided to return                    to stab his wife several more times.                                          10          that so subtle a shading of the charge had any discernible impact          on the jury's verdict.                    We will not paint the lily.  The  trial judge's slip of          the  tongue,  though regrettable,  was  not egregious.    For the          reasons  indicated, we deem  it highly  probable that  the single          erroneous portion of the  instruction had no bearing whatever  on          the jurors'  consideration of  petitioner's defense.   It follows          inexorably  that  the  error   was  benign  under  the  Kotteakos                                                                  _________          standard.                              C.  Fundamental Fairness.                              C.  Fundamental Fairness.                                  ____________________                    To tie up  a loose  end, we also  consider whether  the          instructional   error,  even   though  it   did  not   create  an          impermissible Sandstrom-type presumption, justifies  the granting                        _________          of habeas relief.  After all, the error, as we have acknowledged,          see  supra  Part  II(B)(1),  had  the  potential  of  easing  the          ___  _____          Commonwealth's  burden  in  proving  malice.   Viewed  from  this          perspective,  however,  petitioner  can  only prevail  on  habeas          review  if the ailing instruction,  in and of  itself, so tainted          the proceedings as to  divest the whole trial of  its fundamental          fairness.  See  Estelle v.  McGuire, 112 S.Ct.  475, 482  (1991);                     ___  _______     _______          Cupp, 414 U.S. at 147.          ____                    We  need not  tarry in  conducting this  inquiry.   For          reasons already  elucidated, see  supra Part II(B)(3),  it cannot                                       ___  _____                                        ____________________          Anderson, 563 N.E.2d at 1357.  All in all, "defendant stabbed his          ________          wife thirteen times, during which she  remained fully conscious .          . . ."  Id.  On this, and other evidence, the jury made a special                  ___          finding  of "extreme  atrocity"    a finding  that strikes  us as          plainly inconsistent with reducing the charge to manslaughter.                                          11          fairly be  said, on balance, that the  instructional error robbed          petitioner's  trial of  fundamental fairness  or compromised  his          main  defense in any meaningful regard.  Hence, petitioner is not          entitled to redress on this theory.          III.  CONCLUSION          III.  CONCLUSION                    We  need  go  no  further.   For  aught  that  appears,          petitioner was  fairly tried  and justly convicted.   Finding  no          deprivation  of  due  process,  we uphold  the  district  court's          refusal to grant habeas relief.          Affirmed.          Affirmed.          ________                                   Dissent follows                                            12                      STAHL, Circuit Judge, dissenting.  I agree with the                             _____________            majority  that  the bulk  of  the  trial  court's charge  was            unreproachable,  and  that  the  crime  for  which petitioner            stands  convicted is  heinous.    Nonetheless,  I am  of  the            opinion that the erroneous instruction on provocation had the            effect of (1) lowering the Commonwealth's burden of  proof on            the  element  of  malice;   and  (2)  effectively  precluding            petitioner's jury  from  making a  finding of  malice.   And,            because I believe that both the due process right to have the            prosecution bear the  burden of proving  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                       ______     ______            the Sixth Amendment right  to have a jury make  all elemental                                               _ ____            determinations, see  Sandstrom v. Montana, 442  U.S. 510, 523                            ___  _________    _______            (1979) (quoting  United States  v. United States  Gypsum Co.,                             _____________     _________________________            438  U.S.  422,  435  (1978)),  must  always  be  honored,  I                                                  ______            reluctantly and respectfully dissent.                                          I.                                          I.                                          __                      Before  explaining the  reasons for  my dissent,  I            wish  to make two initial points.  First, I would not examine            the  challenged  instruction in terms of whether it  set up a            mandatory presumption  (as  the majority  does);  instead,  I            would  view  it simply  as  an  instruction misdescribing  an            element  of the offense.   Although they possess  many of the                                         -13-                                          13            same  characteristics5 and  are analyzed  similarly, Carella,                                                                 _______            491 U.S.  at 270  (Scalia, J., concurring  in the  judgment),            mandatory presumptions and  elemental misdescriptions are not                                                                      ___            the same thing.  For clarity's sake, I think it  important to            emphasize this distinction.                      Second, although it does  not affect my analysis, I            note that the  language cited  by the majority  as being  the            correct  statement   of   Massachusetts  law   on   "adequate            provocation"  (i.e.,  "something  `that  would  be likely  to            produce  in an ordinary man  such a state  of passion, anger,            fear,  fright  or nervous  excitement  as  might  lead to  an                                                       _____  ____            intentional homicide . . .'")  (quoting Rooney, 313 N.E.2d at                                                    ______            112)  (emphasis supplied),  itself may  be problematic.   See                                        ______                        ___            infra  at 4-5 (explaining that ordinary men are led to commit            _____            intentional homicides only  in circumstances which completely                                  ____                         __________            exonerate  them).   Instead,  the  more  proper statement  of            Massachusetts  law on  adequate provocation  is found  in the            Walden opinion:            ______                      There must be evidence that would warrant                      a   reasonable   doubt   that   something                                            ____________________            5.  Like  mandatory  presumptions, elemental  misdescriptions            can  often lower  the prosecution's  burden of  proof.   This            happens whenever the instructing  judge too lightly describes            what the  government must  prove  in order  to establish  the            element   at   issue.      And  obviously,   like   mandatory            presumptions,  elemental misdescriptions  tend to  invade the            jury's  fact-finding role.   See  Carella v.  California, 491                                         ___  _______     __________            U.S.  263,  270-71  (1989)  (Scalia, J.,  concurring  in  the            judgment) (citing Pope  v. Illinois, 481 U.S. 497  (1987) and                              ____     ________            Carpenters v. United States, 330 U.S. 395 (1947)).            __________    _____________                                         -14-                                          14                      happened  which would have been likely to                      produce  in  an  ordinary person  such  a                      state of passion, anger, fear  fright, or                      nervous excitement as  would eclipse  his                                             _____ _______  ___                      capacity for reflection or  restraint and                      ________ ___ __________ __  _________                      that what happened  actually did  produce                      such a state of mind in the defendant.            Walden, 405 N.E.2d at  944 (emphasis supplied).  Accordingly,            ______            I will  make reference to  the Walden language  in discussing                                           ______            the law of adequate provocation in this dissent.6                                         II.                                         II.                                         ___                      I  turn  now  to my  analysis.    In  my view,  the            Commonwealth   does   not   and   cannot   define   "adequate            provocation" as  provocation that  would  cause an  "ordinary            man"  to go  into  such "a  state  of passion,  anger,  fear,            fright,  or  nervous  excitement  as  would  lead  him  to an                                                  _____  ____            intentional homicide."   (Emphasis supplied).   As petitioner            points  out  in  his  brief, circumstances  that  would  lead                                                              _____            ordinary   people  to  commit  intentional  homicides  (e.g.,            circumstances   giving  rise   to  claims   of  self-defense)            completely  exonerate the killers; circumstances that lead to            __________                                            ____________________            6.  Of  course, in  the  decision challenged  by the  instant            petition,  the  Supreme  Judicial  Court,  without  analysis,            stated  that both the language from Rooney relied upon by the                                                ______            majority and  the instruction  at issue here  were consistent            with  the Walden standard  and therefore not  erroneous.  See                      ______                                          ___            Anderson,  563 N.E.2d  at 1356.   While the SJC  is the final            ________            authority  on  what  constitutes adequate  provocation  under            state law, it is  not, where due process and  Sixth Amendment            concerns are  implicated, the final authority  on whether the            jury likely misconstrued the  applicable principle or whether            two  divergent definitions  are,  in fact,  consistent.   See                                                                      ___            Sandstrom, 442 U.S. at 516-17.            _________                                         -15-                                          15            manslaughter,   however,  are   only  viewed   as  mitigating            felonious conduct.    Therefore, the  instruction  challenged            here  clearly   and  unambiguously  was   erroneous.     More            importantly, its effect was  both to lower the Commonwealth's            burden of proof on the element of malice, see Commonwealth v.                                   _______            ___ ____________            Todd,  563 N.E.2d  211, 213-14  (Mass. 1990)  (where adequate            ____            provocation is properly at  issue, the Commonwealth bears the            burden  of proving its  absence in  order to  prove malice),7            and to  preclude the  jury from  making  a meaningful  malice            finding,  see Carella  v.  California, 491  U.S. 263,  270-71                      ___ _______      __________            (1989) (Scalia, J., concurring).   This constitutes a federal            due process violation.   See Sullivan, 113 S. Ct.  at 2080-81                                     ___ ________            (collecting cases).  So too does it constitute a violation of            the Sixth Amendment's jury-trial guarantee.  See id. at 2081.                                                         ___ ___                                         III.                                         III.                                         ____                      The  fact that  federal  constitutional  error  was            committed  at petitioner's  trial does  not, of  course, mean            that he is automatically entitled to a new trial.  Rather, as            the  majority   notes,  settled  Supreme  Court  and  circuit            precedent make  clear  that  we  next  look  to  whether  the            instructions  as a  whole  "explain[ed]  the infirm  language                                        _______                                            ____________________            7.  Under the instruction  given here, the  Commonwealth only            was required to prove an absence of circumstances that likely            "would  lead" an  ordinary  person to  commit an  intentional             _____  ____            homicide.   This, of course,  is much easier  than proving an            absence of  circumstances that likely "would  eclipse" such a            person's "capacity for reflection or restraint."  Walden, 405                                                              ______            N.E.2d at 944.                                         -16-                                          16            sufficiently so  that there is no  reasonable likelihood that            the  jury believed it must [apply the instruction in a manner            not in accordance with  applicable law]."  Hill, 927  F.2d at                                                       ____            651  (relying  upon Franklin,  471  U.S. at  315).   However,                                ________            because a reviewing court must presume that the jury followed            the  judge's instructions,  see  Yates v.  Evatt, 111  S. Ct.                                        ___  _____     _____            1884, 1893 (1991), and "`has no way of knowing which of . . .            two   irreconcilable  instructions  the   jurors  applied  in            reaching  their verdict,'"  Hill,  917 F.2d  at 651  (quoting                                        ____            Franklin,  471 U.S.  at 322)  (alteration in  original), even            ________            instructions directly  contrary to  the  erroneous one  which            themselves  correctly  state  the  law  are  insufficient  to            fulfill this explanatory function, id.                                               ___                      Here, despite the majority's contrary conclusion, I            do not think  that the charge  as a whole  can be  considered            sufficiently   explanatory.    Although  there  were  correct            characterizations of  the  concept of  adequate  provocation,            nothing even went so far as to contradict, let alone explain,                                           __________            the  court's  incorrect  statement   that,  in  order  to  be            considered  a manslayer  rather than  a murderer,  petitioner            must have been confronted  with circumstances that would have            led an  "ordinary man" to kill intentionally.   Moreover, the            circumstances  attendant  to  the  giving  of the  challenged            instruction were  much more likely  to have  imparted to  the            jurors  the impression  that  the instruction  was a  correct                                         -17-                                          17            statement  of the  law than that  it was  a mere  slip of the            tongue.   First,  defense counsel,  in his  closing argument,            took  pains to  raise  the issue  by  correctly arguing  that            adequate provocation  does not mean that  an ordinary person,            in the same circumstances as  petitioner, would have acted as                                                                 _____            petitioner  acted; instead,  adequate provocation  only means            that  an  ordinary  person,  in  the  same  circumstances  as            petitioner, would have had his/her capacity for reflection or            reason eclipsed.   Second, it is beyond question that defense            counsel interposed  pointed objections at  sidebar both times            the ailing instruction was  delivered to the jury.   In light            of these undisputed facts, I simply do not see how we can say            that the overall charge explained away the error.                                         IV.                                         IV.                                         ___                      Even  where the charge as a  whole does not explain            away  the erroneous instruction, an instruction misdescribing            an element of an  offense can be harmless.  In  my dissenting            opinions  in Libby v. Duval,  No. 93-1588, slip  op. at 21-33                         _____    _____            (1st Cir. March 24,  1994) and Ortiz v. Dubois,  No. 93-1656,                                           _____    ______            slip  op. at 24-27  (1st Cir. March  24, 1994),  I explain in            detail my  view that  the whole-record  harmless-error review            prescribed  by Brecht  v. Abrahamson, 113  S. Ct.  1710, 1722                           ______     __________            (1993), cannot and should not be utilized by courts reviewing            instructional  errors which  have  the effect  of  precluding            juries from  making requisite  factual  findings in  criminal                                         -18-                                          18            trials.   Rather, as I argue in those opinions, habeas courts            reviewing such errors for harmlessness should employ the test            set forth in Justice  Scalia's concurring opinion in Carella.                                                                 _______            Because the error here -- misdescription of an element of the            offense  -- had exactly such an effect, see Carella, 491 U.S.                                                    ___ _______            at  268-71  (Scalia,  J.,  concurring),  I  would  review  it            according  to the dictates of  the Carella concurrence.  That                                               _______            is  to say, I would ask (1) whether the erroneous instruction            was  relevant  only  to  an  element  of  a  crime  of  which            petitioner   was   acquitted;  (2)   whether   the  erroneous            instruction  was relevant only  to an element  of the offense            which petitioner  admitted; or  (3) whether no  rational jury            could have  found what it actually did find and not also find                                      ________ ___ ____            the misdescribed element.  See id. at 271.                                       ___ ___                      Here, none of the three prongs of the  Carella test                                                             _______            is satisfied.  Certainly, petitioner neither was acquitted of            murder in the  first degree  nor admitted that  he had  acted            maliciously.    Moreover, the  record  is  devoid of  factual            findings which are the  "functional equivalent" (i.e.,  which            are "so closely related to the ultimate fact to be found that            no jury  could find  those facts  without also  finding th[e]            ultimate  fact," see id.) of the missing finding:  an absence                             ___ ___            of adequate provocation.  The most we can say  on this record            is  that the jury found  that an ordinary  person, faced with            the same circumstances as petitioner, would not have been led                                         -19-                                          19            to commit an  intentional homicide.   To me,  it is  manifest            that such a  finding is  not the functional  equivalent of  a                                     ___            finding  that  an  ordinary   person,  faced  with  the  same            circumstances as  petitioner,  would  not  have  had  his/her            capacity for  reflection or restraint eclipsed.  Accordingly,            the error was not harmless.                      I therefore would grant the writ.                                         -20-                                          20
