449 U.S. 1050 (1980)

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U.S. Supreme Court

MCKENZIE v. MONTANA , 449 U.S. 1050 (1980)

449 U.S. 1050

Duncan Peder McKENZIE, Jr.
State of MONTANA
No. 80-5123

Supreme Court of the United States

December 8, 1980

On petition for writ of certiorari to the Supreme Court of Montana.

The petition for a writ of certiorari is denied.

Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.

On two prior occasions, this Court has vacated decisions of the Supreme Court of Montana in this death penalty case and remanded the case for further consideration. McKenzie v. Montana, 443 U.S. 903 (1979); McKenzie v. Montana, 433 U.S. 905 (1977). In both instances, we directed the Supreme Court of Montana to reconsider the case in light of intervening decisions of this Court establishing that due process forbids a State to place on a defendant the burden to disprove an element of the offense charged. McKenzie v. Montana, 443 U.S. 903 (1979) ( directing reconsideration in light of Sandstrom v. Montana, 442 U.S. 510 (1979)); McKenzie v. Montana, 433 U.S. 905 (1977) (directing reconsideration in light of Patterson v. New York, 432 U.S. 197 ( 1977)). On each remand, the state court reaffirmed the conviction and reinstated the death penalty. Mont.,

Page 449 U.S. 1050 , 1051

608 P.2d 428 (1980); 177 Mont. 280, 581 P.2d 1205 (1978). In its most recent decision in this case, the State Supreme Court conceded that the jury instructions unconstitutionally shifted to petitioner the burden to disprove that he had the criminal intent necessary to support conviction. 608 P.2d, at 457-458. The court nonetheless avoided granting petitioner a new trial by deeming this constitutional violation "harmless error." 608 P.2d, at 458-459. A state court's analysis of harmless error in a typical case may not present a question worthy of full review by this Court, yet, where, as here, the death penalty is the result, close scrutiny is required. Because I find the court's analysis of harmless error lacking of evenhanded treatment, I dissent from this Court's denial of certiorari.

Petitioner was charged with two counts of deliberate homicide, two counts of aggravated kidnaping, one count of sexual intercourse without consent, and two counts of aggravated assault, all arising from the death of one woman. A major element in petitioner's defense was that he was incapable of "knowingly" or "purposely" committing the homicide. Petitioner and the prosecutor produced conflicting psychiatric and psychological testimony at trial concerning petitioner's ability to understand the criminal nature of his conduct and to conform his conduct to the requirements of law. Although petitioner's capacity to form the required criminal intent was thus put directly in issue, over petitioner's specific objection, the judge repeatedly directed the jury that "the law also presumes that a person intends the ordinary consequences of his voluntary act" and that "an unlawful act was done with an unlawful intent." 1 The trial court essentially instructed the [449 U.S. 1050 , 1052]

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