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DALE ROBERT YATES v. PARKER EVATT

SUPREME COURT OF THE UNITED STATES No. 89-7691 111 S. Ct. 1884, 500 U.S. 391, 114 L. Ed. 2d 432, 59 U.S.L.W. 4509, 1991.SCT.43006 <http://www.versuslaw.com> decided: May 28, 1991. DALE ROBERT YATES, PETITIONERv.PARKER EVATT, COMMISSIONER, SOUTH CAROLINA DEPARTMENT OF CORRECTIONS, ET AL. CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA. David I. Bruck, by appointment of the Court, 498 U.S. 936, argued the cause for petitioner. With him on the briefs were John H. Blume and Christopher D. Cerf. Miller W. Shealy, Jr., Assistant Attorney General of South Carolina, argued the cause for respondents. With him on the brief was T. Travis Medlock, Attorney General, pro se, and Donald J. Zelenka, Chief Deputy Attorney General.*fn* Souter, J., delivered the opinion of the Court,*fn** 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 n. 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., joined, post, p. 411. Author: Souter


CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA.

Souter, J., delivered the opinion of the Court,*fn** 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 n. 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., joined, post, p. 411.

Author: Souter

 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. I

A

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.*fn1 Although he killed no one, the State prosecuted him for murder as an accomplice.*fn2

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 failed to emerge, petitioner moved across the seat and drove off.

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.*fn3 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 Carolina law, "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 [sic], 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 480, 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.*fn4 App. 37, 42-44, 49, 77-78. 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 [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 all." Id., 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. Id., at 83.

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., at 95. 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 ways in which the only kind of malice known to the law may be shown.

"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 entertained.

"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." Id., at 96-97.

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.*fn5 The Supreme Court of South Carolina affirmed the conviction, and we denied certiorari. State v. Yates, 280 S. C. 29, 310 S. E. 2d 805 (1982), cert. denied, 462 U.S. 1124 (1983).

B

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 781 (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.S. 307 (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, 214 (1988). 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. Montana, supra, and should, for that reason, be applied retroactively in petitioner's habeas proceeding. 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 218.

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, 216-217, 391 S. E. 2d 530, 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]. ...


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