Unpublished Disposition, 868 F.2d 1272 (9th Cir. 1989)

MEMORANDUM^* 

We consider whether the state trial court committed harmless error by giving an impermissible Sandstrom instruction where the defendant shot his victim in the back at point-blank range and there was some evidence that the defendant may have consumed intoxicants.

FACTUAL BACKGROUND

Halverson robbed two pharmacies at gun point in September 1967 and took money and narcotics.

In October, he and a second man entered a pharmacy where pharmacists Craigen and Bleese were working. Witnesses testified that Halverson shot Craigen in the back and ran from the store.

He robbed two more pharmacies at gun point stealing money and narcotics in October, 1967.

At trial in 1968, the state judge gave what was then a standard Washington instruction. The jury convicted Halverson of first degree murder, of attempted robbery and of four counts of robbery.

Halverson sought a writ of habeas corpus in 1986, alleging that an improper jury instruction denied him a fair trial. Magistrate Sweigert denied the petition finding the instruction violated the Sandstrom rule but the error was harmless beyond a reasonable doubt. Halverson appeals.

ANALYSIS

A. Unconstitutional Instruction and Harmless Error

In Sandstrom v. Montana, the Supreme Court held unconstitutional an instruction that "the law presumes that a person intends the ordinary consequences of his voluntary acts." 442 U.S. 510, 524 (1979). It shifted the burden of proof on intent, an element of the crime, and undermined the presumption of innocence. Id. at 521-24; McKenzie v. Risley, 842 F.2d 1525, 1529 (9th Cir.) (en banc), cert. denied, 109 S. Ct. 250 (1988).

Halverson complains of Instruction # 30, almost identical to that in Sandstrom and found unconstitutional:¹ 

... the law presumes that every man intends the natural and probable consequences of his own acts. It is not necessary to establish intent by direct and positive evidence but intent may be established by inference and in the same way as any other fact by taking into consideration the acts of the parties and all the facts and circumstances of the case.

In Rose v. Clark, the Court held that harmless error analysis applied to Sandstrom violations. 478 U.S. 570, 583-84 (1986). Intoxication evidence did not preclude a harmless error analysis. Id. at 584 (remand for harmless error analysis in spite of intoxication evidence); McKenzie, 842 F.2d at 1531.

Pope v. Illinois articulated the test for harmless error as whether "the facts found by the jury were such that it is clear beyond a reasonable doubt that if the jury had never heard the impermissible instruction its verdict would have been the same." 107 S. Ct. 1918, 1922 n. 6 (1987) (to be cited at 481 U.S. 497); Dickey v. Lewis, 859 F.2d 1365, 1371 (9th Cir. 1988). Where a reviewing court finds that the record establishes guilt beyond a reasonable doubt, it should affirm the conviction. Lewis, 859 F.2d at 1371 (quoting Pope, 107 S. Ct. at 1922).

The state bears the burden of establishing that the error was harmless beyond a reasonable doubt. McKenzie, 842 F.2d at 1531-32.

Halverson challenges his convictions by alleging that Instruction # 30 shifted impermissibly the burden of proof on intent. Because attempted robbery requires an intent to rob, we review the evidence to determine whether the Sandstrom error was harmless beyond a reasonable doubt.² 

Because the jury returned a general verdict on the first degree murder charge, we do not know whether it found premeditated or felony murder.³  First degree murder based on premeditation requires an intent to kill while felony murder in this case requires an intent to rob. We review the evidence of intent to kill to support premeditated murder and intent to rob to support felony murder.⁴  See Drake v. Kemp, 762 F.2d 1449, 1453-57 (11th Cir. 1985), cert. denied, 478 U.S. 1020 (1986); Martin v. Warden, Huntingdon St. Corr. Inst., 653 F.2d 799, 809 (3d Cir. 1981), cert. denied, 454 U.S. 1151 (1982). But see Berrisford v. Wood, 826 F.2d 747, 752-54 (8th Cir. 1987), cert. denied, 108 S. Ct. 722 (1988) (harmless error because evidence of premeditation overwhelming even though jury returned general verdict and could convict on other grounds).

Halverson argues that: (1) evidence of intent to kill and intent to rob was minimal, not overwhelming; and (2) evidence of addiction and intoxication created a reasonable doubt about intent.⁵ 

i. Premeditated Murder: Intent to Kill

Whether the evidence establishes beyond a reasonable doubt an intent to kill necessary to support premeditated murder and whether intoxication evidence creates a reasonable doubt about intent present difficult questions. We review the sequence preceding the homicide together with the defendant's state of mind. Bowen v. Kemp, 832 F.2d 546, 551 (11th Cir. 1987), cert. denied, 108 S. Ct. 1247 (1988).

Halverson argues that the evidence does not establish beyond a reasonable doubt an intent to kill. We disagree. Here, Bleese saw Halverson and Craigen struggle, watched as Halverson turned Craigen around, put a gun to his back and pushed him toward the narcotics shelves. When Halverson saw Bleese, he paused and shot Craigen in the back. Halverson then pointed the pistol toward Bleese, who ran. Other witnesses either saw Halverson shoot Craigen or heard the shot fired. A pathologist testified that Craigen died from the bullet which passed through his aorta.

We have found harmless error where defendants shot their victims at point-blank range. We find these cases controlling. Lewis, 859 F.2d at 1371 (victim shot in chest at point-blank range and defendant blocked assistance); see also Hagler v. Callahan, 764 F.2d 711, 715-16 (9th Cir. 1985), cert. denied, 478 U.S. 1020 (1986) (cited in McKenzie, 842 F.2d at 1535, as evidence that defendant acted with intent) (victim shot twice in head, once in abdomen, and one at point-blank range); McGuinn v. Crist, 657 F.2d 1107, 1108-09 (9th Cir. 1981), cert. denied, 455 U.S. 990 (1982) (victim shot in head at close range).

Halverson contends that intoxication evidence creates a reasonable doubt about his intent to kill. We disagree.

He did not rely primarily on an intoxication defense. His attorney could not remember whether he presented an intoxication defense, although the judge gave an instruction on it. His attorney testified that he argued to the jury that the state failed to prove its case beyond a reasonable doubt and that he focused on inconsistencies in the witnesses' testimony.

Halverson offered little evidence of intoxication. He did not testify and called no witness to testify that he was intoxicated at the scene. On cross-examination, his attorney asked prosecuting witnesses whether Halverson appeared intoxicated. Three described him as loud or excited and assumed he had been drinking. Two witnesses had no opinion, and one testified that he did not think Halverson was intoxicated. His attorney referred to this evidence only once during closing argument.⁶ 

Herd v. Kincheloe, 800 F.2d 1526 (9th Cir. 1986), bolsters our analysis. We found harmless error where the defendant presented stronger evidence of intoxication. Herd had walked behind his victim, grabbed her, struck her with a knife and pulled at her purse. We found testimony of his alcohol and drug use that day unpersuasive evidence that he was incapable of forming the requisite intent. Id. at 1528-29.

Other circuits have found reversible error where defendants offered intoxication as a defense to premeditated murder. Those cases, however, involved substantial evidence of intoxication and less evidence of intent to kill. Dick v. Kemp, 833 F.2d 1448, 1453-54 (11th Cir. 1987) (evidence of intent to murder not overwhelming plus ample evidence of alcoholism and strong evidence of intoxication); Thomas v. Kemp, 800 F.2d 1024, 1025-26 (11th Cir. 1986), cert. denied, 107 S. Ct. 1982 (1987) (evidence of intent to support felony murder conviction but intoxication defense); Bowen, 832 F.2d at 551 (substantial evidence of lack of intent and conflicting testimony on defendant's state of mind); Hyman v. Aiken, 824 F.2d 1405, 1410 (4th Cir. 1987) (evidence of intent not so dispositive plus substantial and uncontradicted evidence of intoxication with an instruction); Merlo v. Bolden, 801 F.2d 252, 257 (6th Cir. 1986), cert. denied, 480 U.S. 909 (1987) (evidence balanced).

ii. Attempted Robbery and Felony Murder: Intent to Rob

Halverson argues that the evidence of intent to rob was minimal and intoxication created a reasonable doubt about his intent. Again, we disagree. The jury convicted him of robbing four pharmacies at gun point stealing money and narcotics.⁷  We may say beyond a reasonable doubt that he intended to rob this pharmacy.

From the entire record, we conclude beyond a reasonable doubt that the jury would have reached the same verdict had it never heard the erroneous Sandstrom instruction.

AFFIRMED.