Petitioner Yates and Henry Davis robbed a South Carolina grocery
store owned by Willie Wood. After Yates wounded Wood, he fled the
store, but Davis remained, struggling with Wood. When Wood's mother
entered the store and grabbed Davis, he stabbed her once, killing
her. Wood then killed Davis. Subsequently, Yates was arrested and
charged, inter alia,
with accomplice murder. At his trial,
the State argued that Yates and Davis had planned to rob the store
and kill any witnesses, thus making Yates as guilty of the murder
as Davis under South Carolina law, because it was a probable or
natural consequence of the robbery. As to the element of malice,
the judge instructed the jury, among other things, that "malice is
implied or presumed" from either the "willful, deliberate, and
intentional doing of an unlawful act" or from the "use of a deadly
weapon." Yates was convicted, and his conviction was upheld by the
State Supreme Court. He then sought a writ of habeas corpus from
that court, asserting that the presumption on the use of a deadly
weapon was an unconstitutional burden-shifting instruction under,
this Court's decisions in Sandstrom v.
Montana, 442 U. S. 510
Francs v. Franklin, 471 U. S. 307
which found that similar jury instructions violated the Due Process
Clause. Twice the court denied relief, and twice this Court
remanded the case for further consideration in light of
On the second remand, the state court again
denied relief, holding that, although unconstitutional, both
instructions allowing the jury to presume malice were harmless
error. It found that its enquiry was to determine
"whether it is beyond a reasonable doubt that the jury would
have found it unnecessary to rely on the erroneous mandatory
presumption regarding the element of malice."
Concluding that the State relied on Davis' malice to prove
murder, the court found that the jury did not have to rely on the
malice presumptions, because the facts showed that Davis had acted
with malice when he "lunged" at Mrs. Wood and stabbed her multiple
1. The State Supreme Court failed to apply the proper harmless
error standard, as stated in Chapman v. California,
386 U. S. 18
386 U. S. 24
which held that an error is harmless if it appears "beyond a
Page 500 U. S. 392
that the error complained of did not contribute to the verdict
obtained." Pp. 500 U. S.
(a) An error does "not contribute to a verdict" only if it is
unimportant in relation to everything else the jury considered on
the issue in question, as revealed in the record. In applying
a court must first ask what evidence the jury
actually considered in reaching its verdict, and it must then weigh
the probative force of that evidence as against the probative force
of the presumption standing alone. It is not enough that the jury
considered evidence from which it could have reached the verdict
without reliance on the presumption. The issue is whether the jury
actually rested its verdict on evidence establishing the presumed
fact beyond a reasonable doubt, independently of the presumption.
Before looking to the entire trial record to assess the
significance of the erroneous presumption, however, it is crucial
to ascertain from the jury instructions that the jurors, as
reasonable persons, would have considered that entire trial record.
Pp. 500 U. S.
(b) The State Supreme Court employed a deficient standard of
review. Its stated enquiry can determine that the verdict could
have been the same without the presumptions, when there was
evidence sufficient to support the verdict independently of the
presumptions' effect. However, it does not satisfy
concerns, because it fails to determine whether
the jury's verdict did rest on that evidence as well as on the
presumptions, or whether that evidence was of such compelling force
as to show beyond a reasonable doubt that the presumptions must
have made no difference in reaching the verdict. Pp. 500 U. S.
2. The jury instructions may not be excused as harmless error.
Pp. 500 U. S.
(a) Judicial economy is best served if this Court makes its own
assessment of the errors' harmlessness in the first instance,
because this case has already been remanded twice, once for such an
analysis. See Rose v. Clark, 478 U.
, 478 U. S. 584
P. 500 U. S.
(b) The trial judge instructed the jury that malice is the
equivalent of an intent to kill. While it can be inferred from the
instructions and the record that the jury considered all of the
evidence regarding Davis' intent to kill, it cannot be inferred
beyond a reasonable doubt that the unlawful presumptions did not
contribute to the finding on the necessary element of malice that
Davis intended to kill Mrs. Wood, since the evidentiary record is
simply not clear on that issue. While an examination of the entire
record reveals clear evidence of Davis' intent to kill Willie Wood,
the jury was not instructed on a transferred intent theory and,
thus, this Court is barred from treating such evidence as
underlying the necessary finding of intent to kill Mrs. Wood. The
specific circumstances of Mrs. Wood's death do not indicate Davis'
malice in killing her
Page 500 U. S. 393
so convincingly that it can be said beyond a reasonable doubt
that the jurors rested a finding of his malice on that evidence
exclusive of the presumptions. The record does not support the
state court's description of Davis as having "lunged" at her and
stabbed her multiple times. The record reveals only that she joined
in a struggle and died from a single stab wound, which Davis could
have inflicted inadvertently. Pp. 500 U. S.
301 S.C. 214, 391 S.E.2d
, reversed and remanded.
SOUTER, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, MARSHALL, STEVENS, O'CONNOR, and
KENNEDY, JJ., joined, in all but Part III of which BLACKMUN, J.,
joined, and in all but footnote 6 and Part III of which SCALIA, J.,
joined. SCALIA, J., filed an opinion concurring in part and
concurring in the judgment, in Part B of which BLACKMUN, J.,
JUSTICE SOUTER delivered the opinion of the Court.
This murder case comes before us for the third time, to review a
determination by the Supreme Court of South Carolina that
instructions allowing the jury to apply unconstitutional
presumptions were harmless error. We hold that the State Supreme
Court employed a deficient standard of review, find that the errors
were not harmless, and reverse.
Page 500 U. S. 394
Petitioner, Dale Robert Yates, and an accomplice, Henry Davis,
robbed a country store in Greenville County, South Carolina. After
shooting and wounding the proprietor, petitioner fled. Davis then
killed a woman before he was shot to death by the proprietor.
Petitioner was arrested soon after the robbery and charged with
multiple felonies. [Footnote 1
Although he killed no one, the State prosecuted him for murder as
an accomplice. [Footnote 2
The trial record shows that, for some time, petitioner and Davis
had planned to commit a robbery and selected T.P. Wood's Store in
Greenville as an easy target. After parking Davis' car outside,
they entered the store, petitioner armed with a handgun and Davis
with a knife. They found no one inside except the proprietor,
Willie Wood, who was standing behind the counter. Petitioner and
Davis brandished their weapons, and petitioner ordered Wood to give
them all the money in the cash register. When Wood hesitated, Davis
repeated the demand. Wood gave Davis approximately $3,000 in cash.
Davis handed the money to petitioner and ordered Wood to lie across
the counter. Wood, who had a pistol beneath his jacket, refused and
stepped back from the counter with his hands down at his side.
Petitioner meanwhile was backing away from the counter toward the
entrance to the store, with his gun pointed at Wood. Davis told him
to shoot. Wood raised his hands as if to protect himself, whereupon
petitioner fired twice. One bullet pierced Wood's left hand and
tore a flesh wound in his chest, but the other shot missed.
Petitioner then screamed, "Let's go," and ran out with the money.
App. 57. He jumped into Davis' car on the passenger side and
waited. When Davis
Page 500 U. S. 395
failed to emerge, petitioner moved across the seat and drove
Inside the store, Wood, though wounded, ran around the counter
pursued by Davis, who jumped on his back. As the two struggled,
Wood's mother, Helen Wood, emerged from an adjacent office. She
screamed when she saw the scuffle and ran toward the two men to
help her son. Wood testified that his mother "reached her left arm
around and grabbed [Davis]. So, all three of us stumbled around the
counter, out in the aisle." Id.
at 19. During the
struggle, Mrs. Wood was stabbed once in the chest and died at the
scene within minutes. [Footnote
] Wood managed to remove the pistol from under his jacket and
fire five shots at Davis, killing him instantly.
The police arrested petitioner a short while later and charged
him as an accomplice to the murder of Mrs. Wood. Under South
"where two persons combine to commit an unlawful act, and in
execution of the criminal act, a homicide is committed by one of
the actors as a probable or natural consequence of those acts
], all present participating in the unlawful act are
as guilty as the one who committed the fatal act."
State v. Johnson,
291 S.C. 127, 129, 352 S.E.2d
, 482 (1987). Petitioner's primary defense to the murder
charge was that Mrs. Wood's death was not the probable or natural
consequence of the robbery he had planned with Davis. Petitioner
testified that he had brought a weapon with him only to induce the
store owner to empty the cash register, and that neither he nor
Davis intended to kill anyone during the robbery. [Footnote 4
] App. 37, 42-44, 49, 77-78.
Page 500 U. S. 396
The prosecution's case for murder rested on petitioner's
agreement with Davis to commit an armed robbery. From this, the
State argued they had planned to kill any witnesses at the scene,
and had thereby rendered homicide a probable or natural result of
the robbery, in satisfaction of the requirement for accomplice
liability. In his closing argument to the jury, the prosecutor
asserted that petitioner and Davis had planned to rob without
leaving "any witnesses in the store." They entered the store "with
the idea of stabbing the proprietor to death; a quiet killing, with
the [petitioner's] pistol as a backup." As a result of this
agreement, the prosecutor concluded, "[i]t makes no difference who
actually struck the fatal blow, the hand of one is the hand of
at 89. The prosecutor also addressed the
required element of malice. "Mr. Yates," he argued, "is equally
guilty. The malice required was in his heart," making him guilty of
murder even though he did not actually kill the victim.
The trial judge charged the jury that murder under South
Carolina law "is the unlawful killing of any human being with
malice aforethought either express or implied." Id.
The judge continued:
"In order to convict one of murder, the State must not only
prove the killing of the deceased by the Defendant, but that it was
done with malice aforethought, and such proof must be beyond any
reasonable doubt. Malice is defined in the law of homicide as a
technical term, which imports wickedness and excludes any just
cause or excuse for your action. It is something which springs from
wickedness, from depravity, from a depraved spirit, from a heart
devoid of social duty, and fatally bent on creating mischief. The
words 'express' or 'implied' do not mean different kinds of malice,
but they mean different
Page 500 U. S. 397
ways in which the only kind of malice known to the law may be
"Malice may be expressed as where previous threats of vengeance
have been made or is where someone lies in wait for someone else to
come by so that they might attack them, or any other circumstances
which show directly that an intent to kill was really and actually
"Malice may also be implied as where, although no expressed
intention to kill was proved by direct evidence, it is indirectly
and necessarily inferred from facts and circumstances which are,
themselves, proved. Malice is implied or presumed by the law from
the willful, deliberate, and intentional doing of an unlawful act
without any just cause or excuse. In its general signification,
malice means the doing of a wrongful act, intentionally, without
justification or excuse."
"I tell you, however, that, if the facts proven are sufficient
to raise a presumption of malice, that presumption is rebuttable,
that is, it is not conclusive on you, but it is rebuttable by the
rest of the evidence. I tell you, also, that malice is implied or
presumed from the use of a deadly weapon. I further tell you that,
when the circumstances surrounding the use of that deadly weapon
have been put in evidence and testified to, the presumption is
removed. And it ultimately remains the responsibility for you,
ladies and gentlemen, under all the evidence to make a
determination as to whether malice existed in the mind and heart of
the killer at the time the fatal blow was struck."
The judge went on to instruct the jury on the theory of
accomplice liability. The jury returned guilty verdicts on the
murder charge and on all the other counts in the indictment.
Page 500 U. S. 398
The Supreme Court of South Carolina affirmed the conviction, and
we denied certiorari. State v. Yates,
280 S.C. 29,
(1982), cert. denied,
462 U.S. 1124 (1983).
Petitioner thereafter sought a writ of habeas corpus from the
State Supreme Court, asserting that the jury charge "that malice is
implied or presumed from the use of a deadly weapon" was an
unconstitutional burden-shifting instruction both under state
precedent, State v. Elmore,
279 S.C. 417, 308 S.E.2d
(1983), and under our decision in Sandstrom v.
Montana, 442 U. S. 510
(1979). While the state habeas petition was pending, we delivered
another opinion on unconstitutional burden-shifting jury
instructions, Francis v. Franklin, 471 U.
(1985). Although petitioner brought this decision
to the attention of the state court, it denied relief without
opinion, and petitioner sought certiorari here. We granted the
writ, vacated the judgment of the Supreme Court of South Carolina,
and remanded the case for further consideration in light of
Francis. Yates v. Aiken,
474 U.S. 896 (1985).
On remand, the State Supreme Court found the jury instruction
unconstitutional, but denied relief on the ground that its decision
in State v. Elmore, supra,
was not to be applied
retroactively. Petitioner again sought review here, and again we
granted certiorari, Yates v. Aiken,
480 U.S. 945 (1987),
out of concern that the State Supreme Court had not complied with
the mandate to reconsider its earlier decision in light of
Francis v. Franklin, supra. Yates v. Aiken,
484 U. S. 211
484 U. S. 214
(1987). In an opinion by JUSTICE STEVENS, we unanimously held the
state court had erred in failing to consider the retroactive
application of Francis.
We then addressed that question
and held that Francis
was merely an application of the
principle settled by our prior decision in Sandstrom v.
and should, for that reason, be applied
retroactively in petitioner's habeas proceeding.
Page 500 U. S. 399
We accordingly reversed the judgment of the State Supreme Court
and remanded for further proceedings not inconsistent with our
opinion. Yates v. Aiken,
484 U.S. at 484 U. S.
On the second remand, the Supreme Court of South Carolina stated
that it was "[a]cquiescing in the conclusion that the trial judge's
charge on implied malice constituted an improper mandatory
presumption." 301 S.C. 214, 391 S.E.2d
, 531 (1989). On reviewing the record, the court found
"two erroneous charges regarding implied malice. First, the
trial judge charged the 'willful, deliberate, and intentional doing
of an unlawful act without any just cause or excuse' [implied
malice]. Second, he charged: 'malice is implied or presumed from
the use of a deadly weapon.' . . ."
at 218, 391 S.E.2d at 532.
Despite this determination that two jury instructions were
unconstitutional, the State Supreme Court again denied relief after
a majority of three justices found the instructions to have been
harmless error. The court described its enquiry as one to
"whether it is beyond a reasonable doubt that the jury would
have found it unnecessary to rely on the erroneous mandatory
presumption regarding the element of malice."
The court then stated that on "the facts of this
case, as charged by the trial judge, the element of malice relied
on by the State is that of the killer, Henry Davis." Reviewing the
facts, the court stated that "Davis lunged
at Mrs. Wood
with his knife [and] Mrs. Wood fell to the floor from knife
in her chest and died within moments." Id.
at 219, 391 S.E.2d at 531-532 (emphasis supplied). The court
described the crime as "Henry Davis's brutal multiple
of Mrs. Wood," and held
"beyond a reasonable doubt [that] the jury would have found it
unnecessary to rely on either erroneous mandatory presumption in
concluding that Davis acted with malice in killing Mrs. Wood."
at 217, 391 S.E.2d at 532 (emphasis supplied). The
state court gave no citation to the record
Page 500 U. S. 400
for its description of Mrs. Wood's death as resulting from a
multiple stabbing and multiple wounds.
The remaining two justices on the State Supreme Court dissented.
After first expressing doubt that this Court's mandate authorized
them to review for harmless error, id.
at 222, 391 S.E.2d
at 534, the dissenters disagreed that the erroneous jury
instructions were harmless. They found that the trial judge "failed
to articulate that the jury must find the killer acted with
malicious intent." Following this error,
"the jury could have mistakenly inferred from the confusing
instructions that the intent required in order to prove murder was
that of Yates because he carried a gun. The unconstitutional
instruction which allowed the jury to presume intent . . . would
have eclipsed Yates' defense of withdrawal, and prejudiced his
right to a fair trial."
at 222-223, 391 S.E.2d at 534-535.
Because the Supreme Court of South Carolina appeared to have
applied the wrong standard for determining whether the challenged
instructions were harmless error, and to have misread the record to
which the standard was applied, we granted certiorari to review
this case a third time. 498 U.S. 809 (1990).
This Court held in Sandstrom v. Montana, supra,
U.S. at 442 U. S. 513
442 U. S. 524
that a jury instruction stating that "the law presumes that a
person intends the ordinary consequences of his voluntary acts'"
violated the requirement of the Due Process Clause that the
prosecution prove each element of a crime beyond a reasonable
doubt. See In re Winship, 397 U.
S. 358 (1970). We applied this principle in Francis
v. Franklin, 471 U. S. 307
(1985), to instructions that the "`acts of a person of sound mind
and discretion are presumed to be the product of the person's
will'" and that a person "`is presumed to intend the natural and
probable consequences of his acts.'" Id. at 471 U. S.
316-318 (emphasis omitted). Although the jury had
Page 500 U. S. 401
told that these presumptions were rebuttable, we held them to be
as pernicious in this context as conclusive presumptions, because
they shifted the burden of proof on intent to the defendant.
In charging the jurors on the issue of malice in this case, the
trial judge instructed them on two mandatory presumptions, each of
which the Supreme Court of South Carolina has since held to be
unconstitutional under Sandstrom
jury was told that "malice is implied or presumed" from the
"willful, deliberate, and intentional doing of an unlawful act" and
from the "use of a deadly weapon." With respect to the unlawful act
presumption, the jury was told that the "presumption is rebuttable,
that is, it is not conclusive on you, but it is rebuttable by the
rest of the evidence." App. 96. Following the description of the
deadly weapon presumption, the jurors were told that it was their
responsibility "under all the evidence to make a determination as
to whether malice existed in the mind and heart of the killer."
We think a reasonable juror would have understood the unlawful
act presumption to mean that, upon introduction of evidence tending
to rebut malice, the jury should consider all evidence bearing on
the issue of malice, together with the
Page 500 U. S. 402
presumption, which would still retain some probative
significance. A reasonable juror would have understood the deadly
weapon presumption to mean that its probative force should be
considered along with all other evidence tending to prove or
disprove malice. Although the presumptions were rebuttable in these
ways, the mandate to apply them remained, [Footnote 7
] as did their tendency to shift the burden
of proof on malice from the prosecution to petitioner. Respondents
do not challenge the conclusion of the Supreme Court of South
Carolina that each presumption violated Sandstrom
and the constitutionality of neither one is in
Having concluded that the instructions were constitutionally
erroneous, the Supreme Court of South Carolina correctly treated
them as subject to further review for harmless error, consistently
with Rose v. Clark, 478 U. S. 570
478 U. S. 582
(1986), in which we held that the taint of an unconstitutional
burden-shifting jury instruction may be harmless, citing
Chapman v. California, 386 U. S. 18
(1967). [Footnote 8
Page 500 U. S. 403
test is whether it appears "beyond a reasonable doubt that the
error complained of did not contribute to the verdict obtained."
at 386 U. S. 24
(requirement that harmlessness of federal
constitutional error be clear beyond reasonable doubt embodies
standard requiring reversal if "there is a reasonable
possibility that the evidence complained of might have contributed
to the conviction'") (quoting Fahy v. Connecticut,
375 U. S. 85,
375 U. S. 86-87
(1963)); Arizona v. Fulminante, 499 U.
S. 279, 499 U. S. 296
(1991) (confession is harmless error if it "did not contribute to
[the defendant's] conviction"); Delaware v. Van Arsdall,
475 U. S. 673,
475 U. S. 681
(1986) (Chapman excuses errors that were "`harmless' in
terms of their effect on the factfinding process at
To say that an error did not "contribute" to the ensuing verdict
is not, of course, to say that the jury was totally unaware of that
feature of the trial later held to have been erroneous. When, for
example, a trial court has instructed a jury to apply an
unconstitutional presumption, a reviewing court can hardly infer
that the jurors failed to consider it, a conclusion that would be
factually untenable in most cases, and would run counter to a sound
presumption of appellate practice, that jurors are reasonable and
generally follow the instructions they are given. See
Richardson v. Marsh, 481 U. S. 200
481 U. S. 211
(1987) ("rule that juries are presumed to follow their instructions
is a pragmatic one, rooted less in the absolute certitude that the
presumption is true than in the belief that it represents a
reasonable practical accommodation of the interests of the state
and the defendant").
To say that an error did not contribute to the verdict is,
rather, to find that error unimportant in relation to everything
else the jury considered on the issue in question, as revealed in
the record. Thus, to say that an instruction to
Page 500 U. S. 404
apply an unconstitutional presumption did not contribute to the
verdict is to make a judgment about the significance of the
presumption to reasonable jurors, when measured against the other
evidence considered by those jurors independently of the
Before reaching such a judgment, a court must take two quite
distinct steps. First, it must ask what evidence the jury actually
considered in reaching its verdict. If, for example, the fact
presumed is necessary to support the verdict, a reviewing court
must ask what evidence the jury considered as tending to prove or
disprove that fact. [Footnote
] Did the jury look at only the predicate facts, or did it
consider other evidence bearing on the fact subject to the
presumption? In answering this question, a court does not conduct a
subjective enquiry into the jurors'
Page 500 U. S. 405
minds. The answer must come, instead, from analysis of the
instructions given to the jurors and from application of that
customary presumption that jurors follow instructions and,
specifically, that they consider relevant evidence on a point in
issue when they are told that they may do
Once a court has made the first enquiry into the evidence
considered by the jury, it must then weigh the probative force of
that evidence as against the probative force of the presumption
standing alone. To satisfy Chapman's
standard, it will not be enough that the jury considered evidence
from which it could have come to the verdict without reliance on
the presumption. Rather, the issue under Chapman
whether the jury actually rested its verdict on evidence
establishing the presumed fact beyond a reasonable doubt,
independently of the presumption. Since that enquiry cannot be a
subjective one into the jurors' minds, a court must approach it by
asking whether the force of the evidence presumably considered by
the jury in accordance with the instructions is so overwhelming as
to leave it beyond a reasonable doubt that the verdict resting on
that evidence would have been the same in the absence of the
presumption. It is only when the effect of the presumption is
comparatively minimal to this degree that it can be said, in
words, that the presumption did not contribute
to the verdict rendered.
Because application of the harmless error test to an erroneous
presumption thus requires an identification and evaluation of the
evidence considered by the jury in addition to the presumption
itself, we need to say a word about an assumption made in many
opinions applying the Chapman
rule, which state that the
harmlessness of an error is to be judged after a review of the
entire record. See, e.g., Delaware v. Van Arsdall, supra,
475 U.S. at 475 U. S. 681
("[A]n otherwise valid conviction should not be set aside if the
reviewing court may confidently say, on the whole record, that the
constitutional error was harmless beyond a reasonable doubt");
United States v. Hasting, 461 U.
, 461 U. S. 509
n. 7 (1983) ("Chapman
mandates consideration of the entire
record prior to reversing a conviction for constitutional errors
that may be harmless"). That assumption is simply that the jury
considered all the evidence bearing on the issue in question before
it made the findings on which the verdict rested. If, on the
contrary, that assumption were incorrect, an examination of the
entire record would not permit any sound conclusion to be drawn
about the significance of the error to the jury in reaching the
verdict. This point must always be kept in mind when reviewing
erroneous presumptions for harmless error, because the terms of
some presumptions so narrow the jury's focus so as to leave it
questionable that a reasonable juror would look to anything but the
evidence establishing the predicate fact in order to
Page 500 U. S. 406
infer the fact presumed. [Footnote 10
] When applying a harmless error analysis in
presumption cases, therefore, it is crucial to ascertain from the
trial court's instructions that the jurors, as reasonable persons,
would have considered the entire trial record, before looking to
that record to assess the significance of the erroneous
The Supreme Court of South Carolina failed to apply the proper
harmless error standard to the rebuttable presumptions at issue in
this case. As a threshold matter, the State Supreme Court did not
undertake any explicit analysis to support its view of the scope of
the record to be considered in applying Chapman.
even more significant, however, that the state court did not apply
the test that Chapman
formulated. Instead, the court
employed language taken out of context from Rose v. Clark,
478 U. S. 570
(1986), and sought merely to determine whether it was beyond a
reasonable doubt that the jury "would have found it unnecessary to
rely" on the unconstitutional presumptions. [Footnote 11
Page 500 U. S. 407
Enquiry about the necessity for reliance, however, does not
satisfy all of Chapman's
concerns. It can tell us that the
verdict could have been the same without the presumptions, when
there was evidence sufficient to support the verdict independently
of the presumptions' effect. But the enquiry will not tell us
whether the jury's verdict did rest on that evidence as well as on
the presumptions, or whether that evidence was of such compelling
force as to show beyond a reasonable doubt that the presumptions
must have made no difference in reaching the verdict obtained.
Because the State Supreme Court's standard of review apparently did
not take these latter two issues into consideration, reversal is
Although our usual practice in cases like this is to reverse and
remand for a new determination under the correct standard, we have
the authority to make our own assessment of the harmlessness of a
constitutional error in the first instance. See Rose v. Clark,
478 U.S. at 478 U. S. 584
Because this case has already been remanded twice, once for
harmless error analysis, we think we would serve judicial economy
best by proceeding now to determine whether the burden-shifting
jury instructions were harmless.
We begin by turning to the State's domestic law of accomplice
murder and the elements it entails. The State Supreme Court in this
case decided that the trial judge "correctly and precisely" charged
the jury on "the common law rule of murder," which required proof
of malice. [Footnote 12
State v. Yates,
280 S.C. at 38, 310 S.E.2d at 810.
Petitioner was charged as an accomplice to the alleged murder of
Mrs. Wood by Davis,
Page 500 U. S. 408
and the state court determined that on "the facts of this case,
as charged by the trial judge, the element of malice relied on by
the State is that of the killer, Henry Davis." 301 S.C. at 219, 391
S.E.2d at 532.
In light of the fact that the Supreme Court of South Carolina
has approved the trial judge's jury instructions, we will accept
his charge on malice as the proper statement of South Carolina law
on the subject. The trial judge told the jury that malice is the
equivalent of an "intention to kill," without legal justification
or excuse. [Footnote 13
There is no question that either presumption on malice could have
been employed by the jury in reaching its verdict. The evidence
showed clearly that Davis used a deadly weapon, a knife, and
intended to commit, and did commit, an unlawful act without legal
justification, not only armed robbery, but the killing itself.
The first step in determining whether these instructions
contributed to the jury's verdict is to determine what evidence the
jury considered on the issue of intent, independently of the
presumptions themselves. The record reveals some evidence rebutting
malice, including petitioner's testimony that neither he nor Davis
intended to kill anyone. This left the jury free to look beyond the
unlawful act presumption and to consider all the evidence on
Page 500 U. S. 409
jury can reasonably be expected to have done so. Likewise, under
the deadly weapon presumption, as we have construed it, the jury
was instructed to consider all the evidence, not just the
presumption itself. Since we can thus infer with confidence that
the jury considered all the evidence tending to prove or disprove
Davis' intent to kill, it is correct simply to follow the general
rule of the post-Chapman
cases that the whole record be
reviewed in assessing the significance of the errors.
An examination of the entire record reveals that, as to Willie
Wood, there was clear evidence of Davis' intent to kill: instead of
leaving the store when he could have, Davis pursued Wood with a
deadly weapon in his hand and attacked Wood by jumping on his back.
This evidence was enhanced by the fact that Davis had at least two
reasons to kill Wood. He could have thought it necessary to avoid
being himself killed or injured by Wood, and he also could have
thought it necessary to avoid being identified by Wood to the
As probative as this was of Davis' intent to kill Wood, however,
there was nothing in the instructions that allowed the jurors to
consider this evidence in assessing Davis' intent to kill Wood's
mother. Application of a theory of transferred intent would, of
course, have allowed the jury to equate Davis' malice in accosting
Willie Wood with malice in the killing of Mrs. Wood. See
C. Torcia, Wharton's Criminal Law § 144 (14th ed.1979) ("Under the
common law doctrine of transferred intent, a defendant who intends
to kill one person but instead kills a bystander is deemed the
author of whatever kind of homicide would have been committed had
he killed the intended victim"); American Law Institute, Model
Penal Code § 2.03(2) (1985). But the jury was not charged on a
theory of transferred intent, and we are therefore barred from
treating evidence of intent to kill Wood as underlying the
necessary finding of intent to kill Wood's mother.
Page 500 U. S. 410
The evidence of Davis' intent to kill Mrs. Wood is far less
clear. The prosecution argued that petitioner and Davis entered the
store with the intention of killing any witnesses they found
inside, and while this inference from the evidence was undoubtedly
permissible, it was not compelled as a rational necessity.
Petitioner testified that neither he nor Davis had planned to kill
anyone, and the record shows that petitioner left the store not
knowing whether he had, in fact, killed Willie Wood. Petitioner
further testified that he heard a woman scream as he left the
store, yet the evidence is clear that he made no effort to return
and kill her. App. 57, 61. Hence, the jury could have taken
petitioner's behavior as confirming his claim that he and Davis had
not originally planned to kill anyone whom they might find inside
Nor do the specific circumstances of Mrs. Wood's death reveal
anything clear about Davis' intent toward her. The Supreme Court of
South Carolina, to be sure, viewed the record as showing that Davis
directed his attention specifically to Mrs. Wood, and attacked her
with a repetitiveness ruling out the possibility of inadvertence.
The state court's majority described Davis as having "lunged at
Mrs. Wood with his knife" and inflicted "wounds" to her chest
during a "brutal multiple stabbing." 301 S.C. 217-219, 391 S.E.2d
The state court's description of the evidence as tending to
prove Davis' malice is not, however, supported by the record. The
only eyewitness to the homicide, Willie Wood, testified that it was
Mrs. Wood who ran into the store and "reached her left arm around
and grabbed" Davis, after which "the three of [them] stumbled
around the counter, out in the aisle." There was no other testimony
on how Mrs. Wood encountered Davis. The pathologist who performed
an autopsy on Mrs. Wood testified that she died of a single wound
to the chest, and that "[t]here were no other wounds that I noted
on the external surface of the body." App. 32.
Page 500 U. S. 411
There was no other testimony or physical evidence that Mrs. Wood
suffered any wounds beyond the fatal one to her chest. The record
thus does not support the state court's assertion that Davis
"lunged" at Mrs. Wood, or its description of Mrs. Wood's "wounds"
as resulting from a "multiple stabbing." The prosecutor in his
summation even conceded that "it appeared [Mrs. Wood] tried to grab
Mr. Davis." Id.
at 88. The most that can be said with
certainty is that Mrs. Wood joined the struggle between Davis and
Wood, and was stabbed during the course of it. She could have been
killed inadvertently by Davis, and we cannot rule out that
possibility beyond a reasonable doubt.
In sum, the evidentiary record simply is not clear on Davis'
intent to kill the victim. Without more, we could not infer beyond
a reasonable doubt that the presumptions did not contribute to the
jury's finding of Davis' intent to kill Mrs. Wood and to the
ensuing verdict of petitioner's guilt as Davis' accomplice.
The burden-shifting jury instructions found to have been
erroneous in this case may not be excused as harmless error. The
judgment of the Supreme Court of South Carolina is reversed, and
the case is remanded for further proceedings not inconsistent with
It is so ordered.
Petitioner was indicted for murder, armed robbery, assault and
battery with intent to kill, and conspiracy.
The State relied on a theory of accomplice liability because
South Carolina does not have a felony murder statute.
The pathologist who performed an autopsy on Mrs. Wood testified
that the cause of her death was
"a penetrating wound of the chest that was narrow and penetrated
the full thickness of the chest by probe examination. There were no
other wounds that I noted on the external surface of the body."
Petitioner's second defense was that he had withdrawn from his
agreement to commit the robbery when he shouted to Davis, "Let's
go," and ran out of the store. Having allegedly withdrawn from the
robbery scheme, petitioner contended that he was not liable for the
subsequent homicide by his former accomplice.
In this case, petitioner challenges only his murder conviction.
Brief for Petitioner 10, n. 5.
The presumption on the use of a deadly weapon in this case was
qualified with the instruction that
"when the circumstances surrounding the use of that deadly
weapon have been put in evidence and testified to, the presumption
App. 97. This instruction confuses more than it clarifies. The
jury could not presume malice under this rule without evidence that
a deadly weapon was used. That evidence included a description of
the melee in which the stabbing occurred. Yet the jury was told
that, once such evidence was introduced, the presumption vanished.
As a reasonable juror would have understood the instruction, it was
inherently contradictory. We think such a juror would have felt
obliged to give the presumption some application, and accordingly
find its "bursting bubble" clause insufficient to correct the error
of presuming malice from the use of a deadly weapon. See
Francis v. Franklin, 471 U. S. 307
471 U. S. 322
(1985) ("Language that merely contradicts, and does not explain a
constitutionally infirm instruction, will not suffice to absolve
A mandatory presumption, even though rebuttable, is different
from a permissive presumption, which
"does not require . . . the trier of fact to infer the elemental
fact from proof by the prosecutor of the basic one, and . . .
places no burden of any kind on the defendant."
Ulster County Court v. Allen, 442 U.
, 442 U. S. 157
(1979). A permissive presumption merely allows an inference to be
drawn, and is constitutional so long as the inference would not be
irrational. See Francis v. Franklin, supra,
471 U.S. at
471 U. S.
In his opinion concurring in the judgment in Carella v.
California, 491 U. S. 263
491 U. S. 267
(1989), JUSTICE SCALIA noted that the majority opinion in Rose
v. Clark, 478 U. S. 570
(1986), is not entirely consistent in its articulation of the
harmless error standard to be applied to rebuttable presumptions.
In fact, the opinion in Rose
does contain language that,
when taken out of context, suggests standards that are both more
restrictive and less restrictive than the standard for reviewing
rebuttable presumptions that we apply today. Compare id.
at 478 U. S.
-581 ("In many cases, the predicate facts
conclusively establish intent, so that no rational jury could find
that the defendant committed the relevant criminal act, but did not
to cause injury") (emphasis in original) with
at 478 U. S. 579
(rebuttable presumption is harmless error "[w]here a reviewing
court can find that the record developed at trial establishes guilt
beyond a reasonable doubt"). The first statement, by its own terms,
would not reflect the appropriate enquiry in every rebuttable
presumption case; the second, in isolation, would not be correct,
as our opinion today explains.
If the presumed fact is not itself necessary for the verdict,
but only one of a variety of facts sufficient to prove a necessary
element, the reviewing court should identify not only the evidence
considered for the fact subject to the presumption, but also the
evidence for alternative facts sufficient to prove the element.
For reviewing the effect of a conclusive presumption, a
restrictive analysis has been proposed that would focus only on the
predicate facts to be relied on under the presumption and would
require a court to determine whether they "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 v. California,
491 U.S. at 491 U. S. 271
(SCALIA, J., concurring in judgment). The error is harmless in this
situation, because it is beyond a reasonable doubt that the jury
found the facts necessary to support the conviction. Ibid.
Application of this narrow focus is urged, because the terms of a
conclusive presumption tend to deter a jury from considering any
evidence for the presumed fact beyond the predicate evidence;
indeed, to do so would be a waste of the jury's time and contrary
to its instructions. See Sandstrom v. Montana,
442 U.S. at
442 U. S. 526
n. 13. The same may be true when a mandatory rebuttable presumption
is applied in a case with no rebutting evidence, rendering the
presumption conclusive in its operation.
The Court's opinion in Rose v. Clark,
478 U.S. at
478 U. S. 583
quotes from the dissent in Connecticut v. Johnson,
460 U. S. 73
460 U. S. 97
5 (1983) (Powell, J., dissenting), in such a way as to suggest that
a reviewing court must determine only whether "the jury would have
found it unnecessary to rely on the presumption," a test less
rigorous than the standard imposed by Chapman.
"We are of the opinion that the trial judge correctly and
precisely determined the applicable law and charged it." State
280 S.C. 29, 38, 310 S.E.2d
, 810 (1982).
The trial judge told the jury that malice is proved by
"circumstances which show directly that an intent to kill was
really and actually entertained." Where such direct evidence does
not exist, the judge told the jury that an "intention to kill" may
be implied "from facts and circumstances which are, themselves,
proved." In summing up his definition of murder, the judge stated
that there "must be a combination of a previous evil intent and the
act which produces the fatal result." App. 997. Our reading of the
trial judge's charge on malice as requiring an intent to kill is
reflected in the prosecutor's argument to the jury that petitioner
and Davis entered the store with the intention of killing the
proprietor and anyone else inside, so as to leave no witnesses.
at 85-86. See also State v. Yates,
214, 223, 391 S.E.2d
, 535 (1989) (Toal, J., dissenting) ("[T]he jury must find
the killer acted with malicious intent").
JUSTICE SCALIA, with whom JUSTICE BLACKMUN joins as to Part B,
concurring in part and concurring in the judgment.
I agree with the Court's carefully constructed methodolgy for
determining harmless error with respect to unlawful presumptions,
but I disagree concerning its application to the facts of the
present case. Unlike the Court, I find the "deadly weapon"
presumption harmless; I find the "unlawful act" presumption not
harmless, but for reasons other than the Court assigns. I therefore
concur in the judgment of � footnote 6 and
S. 412� reversal, and join all except
footnote 6 and
| footnote 6 and
S. 407|> Part III of the
In my view, the "deadly weapon" presumption was harmless for the
simple reason that it had no application to the facts of the case.
("burst") "when the circumstances
surrounding the use of [the] deadly weapon [were] put into evidence
and testified to.'" Ante at 500 U. S. 397
(quoting App. 96).
The Court apparently does not disagree with that, if the jury
can be presumed to have taken the "presumption is removed" portion
of the instruction seriously. The Court believes, however, that "a
[reasonable] juror would have felt obliged to give the presumption
some application" because the instructions creating and qualifying
it were "inherently contradictory." If they were taken literally,
the Court reasons, the very evidence establishing the presumption
would cause it to vanish. Ante
at 500 U. S. 401
n. 6. I find no such contradiction. It seems to me quite possible
to prove that a deadly weapon was used
without proving the
that use. The victim, for
example, is found dead of a gunshot wound and the defendant is
shown to have been the only person with access to the victim, and
to have been in possession of the gun that fired the fatal shot. Or
even more simply (and as was the case here), both sides
that a deadly weapon was used. To be sure, a jury
would often confront practical difficulty in applying the
presumption (as opposed to theoretical difficulty in understanding
it, because of its "inherent contradiction"), in that it would
frequently be a nice question whether a particular factual showing
is only enough to establish use or also enough to establish
"circumstances" as well. But I hardly think that is a problem here.
Any reasonable juror must have thought that "circumstances
surrounding the use" were placed in evidence when the multiple
details described in 500 U. S.
including the fact that Davis stabbed Mrs. Wood
Page 500 U. S. 413
while engaged in a struggle with her and her son, during which
"all three . . . stumbled around the counter, out in
the aisle.'" Ante at 500 U. S. 395
(quoting App.19) (emphasis added). If we take the assumption that
juries follow their instructions seriously, Richardson v.
Marsh, 481 U. S. 200,
481 U. S. 211
(1987), I think we must conclude that this presumption disappeared,
and was therefore harmless beyond a reasonable doubt.
The "unlawful act" presumption is a different matter. That did
not utterly disappear upon the introduction of certain evidence,
but was merely, in the words of the instruction, "not conclusive,"
and was "rebuttable by the rest of the evidence." App. 96. The
Court concludes that this was not harmless only after looking to
the entire record and determining that it "simply is not clear on
Davis' intent to kill the victim," ante
at 500 U. S. 411
I agree with the Court's conclusion that this presumption was not
harmless; but I think that conclusion should have followed no
matter what the record contained.
The Court feels empowered to decide this case on the basis of an
examination of the record because the jury was "free to look beyond
the unlawful act presumption and to consider all the evidence on
at 500 U. S. 408
I agree that they were free to do so. Indeed, I believe that they
to do so. (Surely the instruction that something is
"rebuttable" conveys to the reasonable jury that they not merely
determine whether it has been
rebutted.) But what is the problem -- what makes it in my view
utterly impossible to say beyond a reasonable doubt, from an
examination of the record, that the jury in fact
guilt on a proper basis -- is that the jury would have been
examining the evidence with the wrong question in mind.
Not whether it established malice beyond a reasonable doubt, but
whether it was sufficient to overcome (rebut) the improper
presumption. Or, to put the point differently, even if a reviewing
court can properly
Page 500 U. S. 414
assume that the jury made the ultimate factual determination, it
cannot assume that it did so using the appropriate burden of proof.
See Carella v. California, 491 U.
, 491 U. S. 273
(1989) (SCALIA, J., concurring in judgment).
Given the nature of the instruction here, then, to determine
from the "entire record" that the error is "harmless" would be to
answer a purely hypothetical question, viz.,
the jury had been
instructed correctly, it would
found that the state proved the existence of malice
beyond a reasonable doubt. Such a hypothetical inquiry is
inconsistent with the harmless error standard announced in
Chapman v. California, 386 U. S. 18
386 U. S. 24
(1967) and reiterated by the Court today.
"[T]he issue under Chapman
is whether the jury
its verdict on evidence establishing the
presumed fact beyond a reasonable doubt, independently of the
at 500 U. S. 404
(emphasis added). See also Bollenbach v. United States,
326 U. S. 607
326 U. S. 614
(1946) ("the question 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"). While
such a hypothetical inquiry ensures that the State has, in fact,
proved malice beyond a reasonable doubt, it does not ensure that it
has proved that element beyond a reasonable doubt to the
satisfaction of a jury.
* * * *
For the foregoing reasons, I join all except footnote 6 and Part
III of the Court's opinion, and concur in the judgment of the