NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 3: Capital Punishment Handbook: Guilt Phase Issues

        3.5 Jury Instructions
               3.5.1  In General; Burden-Shifting Instructions
                         3.5.1.1  Retroactivity Of Sandstrom And Francis
                         3.5.1.2  Harmless Error
               3.5.2  Reasonable Doubt Instructions
                         3.5.2.1  Not Subject To Harmless Error Analysis
                         3.5.2.2  Retroactivity Of Cage
               3.5.3  Lesser-Included Offense Instructions
               3.5.4  Alternative Grounds For Conviction: Malice Or Premeditation vs. Felony-Murder
               3.5.5  Standard For Measuring Constitutionality Of Jury Instruction        

NCJIC Materials Related To This Issue:

In re Winship, 397 U.S. 358 (1970), established the principle that the Fourteenth Amendment requires the government to prove every element of a criminal offense beyond a reasonable doubt. Since then, the Supreme Court has held that instructions requiring the jury to presume intent are unconstitutional because they relieve the government of its burden to prove intent as an element of the crime. Therefore, an instruction reading “the law presumes that a person intends the ordinary consequences of his or her voluntary acts” violates due process in a case where intent is an element of the crime charged. Sandstrom v. Montana, 442 U.S. 510 (1979).

Whether an instruction on presumption violates due process depends largely on whether the presumption is permissive or mandatory. A permissive presumption or inference allows, but does not require, the jury to infer an element from proof by the prosecutor of the basic element and places no burden of proof on the defendant. In other words, the state must still convince the jury that the suggested conclusion should be inferred based on the evidence. In Francis v. Franklin, 471 U.S. 307 (1985), the Supreme Court stated that a permissive inference violates due process only if the suggested conclusion is not one that reason and common sense justify in light of the facts proved to the jury.

A mandatory presumption, on the other hand, requires the jury to infer the presumed fact if the state proves certain predicate facts. Such a presumption may be either conclusive or rebuttable. Since the decision in Francis, however, this distinction appears to have little significance. The Francis Court held that a rebuttable, mandatory presumption violates due process because such an instruction unconstitutionally shifts the burden of persuasion to the defendant.

Yates v. Aiken, 484 U.S. 211 (1988) (holding instruction that intent is implied or presumed from use of deadly weapon unconstitutional Sandstrom error).

Francis v. Franklin, 471 U.S. 307 (1985) (holding due process bars jury instruction stating that the acts of a person of sound mind are rebuttably presumed to be the product of the person’s will because it constitutes a mandatory rebuttable presumption shifting burden of persuasion to defendant on the element of intent).

Sandstrom v. Montana, 442 U.S. 510 (1979) (holding jury instruction that “the law presumes a person intends the ordinary consequences of his [or her] voluntary acts” violates Fourteenth Amendment due process rights by creating a mandatory presumption which unconstitutionally shifts burden of proof to defendant).

Ulster County Ct. v. Allen, 442 U.S. 140 (1979) (holding validity of permissive statutory presumption must be evaluated in light of facts of individual case; permissive presumption that illegal gun in car was possessed by all occupants of vehicle was reasonable under circumstances of case).

In re Winship, 397 U.S. 358 (1970) (holding that Constitution requires government to prove every element of criminal offense beyond reasonable doubt).

Houston v. Roe, 177 F.3d 901 (9th Cir. 1999) (holding California jury instruction 8.81.15, addressing special circumstance lying in wait, does not require defendant to prove a gap between lying in wait and the killing and, thereby, does not unconstitutionally shift the prosecution’s burden of proof), cert. denied, 528 U.S. 1159 (2000).

Windham v. Merkle, 163 F.3d 1092 (9th Cir. 1998) (holding jury instruction regarding vicarious liability imposed on an aider/abettor for acts of his cohorts that are the natural and probable consequence of the originally contemplated crime does not create a mandatory presumption).

Leavitt v. Vasquez, 875 F.2d 260 (9th Cir.) (following Willard, holding instruction re: intent and aiding and abetting, which California Supreme Court held unconstitutional, not Sandstrom error because due process does not require aiding and abetting charge contain distinct instruction re: specific intent), cert. denied, 493 U.S. 866 (1989).

Dickey v. Lewis, 859 F.2d 1365, 1369 (9th Cir. 1988) (holding instruction that intent may be presumed from use of deadly weapon could have been reasonably interpreted by a juror to require presumption of intent in violation of Sandstrom; since trial court did not immediately qualify challenged instruction, there was no certainty its impact was reduced by a later instruction that state must prove all elements of crime).

Evans v. Lewis, 855 F.2d 631, 635-36 (9th Cir. 1988) (holding instruction that “you may determine that the defendant intended to do the act if he did it voluntarily” is permissive inference which does not violate Sandstrom).

Willard v. California, 812 F.2d 461 (9th Cir. 1987) (holding jury instruction which California Supreme Court held unconstitutional not Sandstrom error because charged crime does not require intent instruction).

Thompson v. Dixon, 987 F.2d 1038 (4th Cir. 1993) (holding presumption of sanity instruction not Sandstrom error).

Buford v. Dugger, 841 F.2d 1057 (11th Cir. 1988) (holding trial court’s jury instruction on “associates” did not allow jury to conclusively presume defendant intended to cause death and therefore did not violate Sandstrom).

Drake v. Kemp, 762 F.2d 1449, 1452–53 (11th Cir. 1985) (en banc) (holding jury instruction that acts of a person of sound mind are rebuttably presumed to be products of person’s will and instruction that person of sound mind rebuttably presumed to intend natural and probable consequences of acts is impermissible burden-shifting instruction under Sandstrom; Sandstrom error not harmless where evidence of intent to aid and abet the murder was not overwhelming and it was unclear from jury verdict under what theory defendant was convicted), cert. denied, 478 U.S. 1020 (1986).

Laurie A. Briggs, Note, Presumptive Mens Rea: An Analysis of the Federal Judiciary’s Retreat from Sandstrom v. Montana, 64 Notre Dame L. Rev. 367 (1989) (examining goals of Sandstrom and their frustration by application of Sandstrom by federal judiciary).

Charles Collier, Note, The Improper Use of Presumptions in Recent Criminal Law Adjudication, 38 Stan. L. Rev. 423 (1986) (arguing that, in developing contemporary mandatory/permissive standard, Court has misunderstood effects of presumptions on juries).

David D. Cook, Note, Presumptive Intent Jury Instructions After Sandstrom, 1980 Wis. L. Rev. 366 (1980) (reviewing Sandstrom and arguing that Sandstrom established strict test to erroneous presumption instructions, despite Court’s declining to resolve harmless error issue).

Shari L. Jacobson, Special Topics in the Law of Evidence: Mandatory and Permissive Presumptions in Criminal Cases: The Morass Created by Allen, 42 U. Miami L. Rev. 1009 (1988) (discussing presumptions in criminal cases, analyzing mandatory permissive standard, and arguing mandatory criminal presumptions have created unnecessary confusion and serve no useful purpose).

William J. Leahy and Brownlow M. Sheer, An End to Burden–Shifting Presumptions: The Signal Criminal Law Achievement of the Post–Warren Court, 35 B. B.J. 10 (1991) (outlining the developments of the doctrine of “presumptions” from Winship to Yates).

In Yates v. Aiken, 484 U.S. 211 (1988), the Supreme Court determined that Francis did not represent a new rule of law but was instead an amplification of principles announced in Sandstrom. Therefore, the Court reasoned that Francis should be applied retroactively.

In Rose v. Clark, 478 U.S. 570 (1986), the Supreme Court held that Sandstrom violations are reviewed under harmless error analysis. The Court stated that jury instructions that erroneously create a mandatory presumption of intent do not require reversal of an otherwise valid conviction if they are harmless beyond a reasonable doubt. Since the Sandstrom rule is designed to promote accurate adjudication of guilt or innocence, the Court reasoned, there is no ground for reversal if the correctness of the verdict is clear. Although Rose was a habeas case, it was decided prior to Brecht v. Abrahamson, 507 U.S. 619 (1993), which established a new harmless error standard of review for habeas cases.  See supra § 1.16.2.

Mitchell v. Esparza, 540 U.S. 12 (2003) (per curiam) (holding that precedent did not support Sixth Circuit Court of Appeal’s conclusion that the failure of the state to charge in an indictment for aggravated murder in the course of committing aggravated robbery that defendant was a “principal” was the functional equivalent of “dispensing with the reasonable doubt requirement,” as prohibited by Sullivan v. Louisiana; noting that in noncapital cases, trial court's failure to instruct a jury on all of the statutory elements of an offense is subject to harmless-error analysis and that “we cannot say that because the violation occurred in the context of a capital sentencing proceeding that our precedent requires the opposite result. Indeed, a number of our harmless-error cases have involved capital defendants.”).

Yates v. Evatt, 500 U.S. 391 (1991) (holding on certiorari to South Carolina Supreme Court that the court failed to apply proper harmless error standard when it determined beyond a reasonable doubt that jury would have found it unnecessary to rely on the unconstitutional presumptions; proper inquiry is whether jury actually rested its verdict on evidence establishing the presumed fact beyond a reasonable doubt, independent of the presumption), disapproved of on other grounds, Estelle v. McGuire, 502 U.S. 62 (1991).

Burger v. Kemp, 483 U.S. 776 (1987) (holding Sandstrom violation harmless where evidence so dispositive of intent that it can be said beyond a reasonable doubt that jury would have found it unnecessary to rely on the presumption).

Pope v. Illinois, 481 U.S. 497 (1987) (holding test for harmless error of Sandstrom violation is whether “facts found by 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”).

Rose v. Clark, 478 U.S. 570 (1986) (holding harmless error analysis of Chapman applies to Sandstrom violations).

Francis v. Franklin, 471 U.S. 307 (1985) (holding unconstitutional burden-shifting instruction regarding intent not harmless where intent was issue at trial and state’s evidence of intent was not overwhelming).

Rushen v. Spain, 464 U.S. 114 (1983) (holding factual findings underlying state court determination of harmless error entitled to presumption of correctness under 28 USC 2254(d)).

Chapman v. California, 386 U.S. 18 (1967) (creating harmless beyond reasonable doubt standard for appellate review of Fifth and Fourteenth Amendment constitutional errors).

Watts v. Bonneville, 879 F.2d 685 (9th Cir. 1989) (following Willard, finding unconstitutional instruction regarding aiding and abetting harmless error).

Leavitt v. Vasquez, 875 F.2d 260 (9th Cir.) (following Willard, holding unconstitutional jury instruction regarding intent and aiding and abetting, even if was Sandstrom violation, merely harmless error), cert. denied, 493 U.S. 866 (1989).

Dickey v. Lewis, 859 F.2d 1365, 1371 (9th Cir. 1988) (holding state has burden of proving Sandstrom error harmless; “overpowering” evidence of intent to kill renders error harmless).

Ruff v. Kincheloe, 843 F.2d 1240 (9th Cir. 1988) (holding review of entire record for evidence rendering Sandstrom error harmless is not required where portions of record relevant to petitioner’s claim are dispositive on issue of intent).

Prantil v. California, 843 F.2d 314 (9th Cir.) (holding erroneous jury instruction does not merit habeas relief if deficiencies pertain to matters not in dispute, and error did not so affect entire trial as to deprive defendant of due process), cert. denied, 488 U.S. 861 (1988).

McKenzie v. Risley, 842 F.2d 1525, 1530-35 (9th Cir.) (en banc) (holding since jury could not have found that defendant committed the acts without also finding intent, Sandstrom error is harmless), cert. denied, 488 U.S. 901 (1988).

Willard v. California, 812 F.2d 461 (9th Cir. 1987) (holding unconstitutional jury instruction regarding intent and aiding and abetting, even if was Sandstrom violation, merely harmless error).

Herd v. Kincheloe, 800 F.2d 1526, 1528 (9th Cir. 1986) (specifying de novo review for determining whether Sandstrom error is harmless as question of federal constitutional law).

In Cage v. Louisiana, 498 U.S. 39 (1990), the Supreme Court held that a reasonable doubt jury instruction requiring “moral certainty” and describing “actual substantial doubt” and “grave uncertainty” violated due process. The Court held such deficient reasonable doubt instructions unconstitutional because they allow a lower degree of proof than that required by due process.

Cage v. Louisiana, 498 U.S. 39 (1990) (holding reasonable doubt instruction describing “grave uncertainty” and “actual substantial doubt” and requiring “moral certainty” unconstitutional because reasonable juror, taking instructions as a whole, could have interpreted instruction to allow degree of proof below that required by due process).

The Supreme Court held that a deficient reasonable doubt instruction, unlike a Sandstrom error, is a structural defect requiring automatic reversal because a verdict based on an improper reasonable doubt instruction vitiates all of the jury’s factual findings. Sullivan v. Louisiana, 508 U.S. 275 (1993). Therefore, a constitutionally deficient instruction regarding reasonable doubt is not subject to harmless error analysis.

Sullivan v. Louisiana, 508 U.S. 275 (1993) (holding constitutionally deficient reasonable doubt instruction–identical to one in Cage v. Louisiana, 498 U.S. 39 (1990)–requires reversal; not subject to harmless error analysis because, unlike an erroneous presumption instruction, a deficient reasonable doubt instruction vitiates all of jury’s factual findings).

In Tyler v. Cain, 533 U.S. 656, reh’g denied, 533 U.S. 970 (2001), the Supreme Court held under the AEDPA that Cage had not been “made retroactive to cases on collateral review by the Supreme Court,” within the meaning of 28 USC 2244(b)(2)(A). The court held that as used in § 2244(b)(2)(A), “made” means held. The court declined in Tyler to make the rule of Cage retroactive because the Court stated such a holding would be dictum as it would not help the petitioner, and stressed that neither Cage itself nor Sullivan v. Louisiana had held Cage to be retroactive. Subsequently in Leavitt v. Arave, 383 F.3d 809 (9th Cir. 2004) (per curiam), the Ninth Circuit held that a Cage error was not a watershed rule of the sort from which the petitioner can retroactively benefit on federal habeas review under Teague.

Tyler v. Cain, 533 U.S. 970 (holding under AEDPA that Cage rule was not “made retroactive to cases on collateral review by Supreme Court” within meaning of § 2244(b)(2)(A) and thus was not available to habeas petitioner), reh’g denied, 533 U.S. 970 (2001).

Leavitt v. Arave, 383 F.3d 809 (9th Cir. 2004) (per curiam) (holding that Cage error was not a watershed rule of the sort from which a capital habeas petitioner could retroactively benefit on habeas review, and that his claim was barred by Teague, making it unnecessary to determine whether the jury instruction actually ran afoul of Cage; noting that the six other circuits that had held Cage error to be a watershed rule and to be retroactive were decided after Sullivan, but before Tyler v. Cain), cert. denied, 125 S. Ct. 2540 (2005).

Gaines v. Kelly, 202 F.3d 598 (2nd Cir. 2000) (holding in pre-AEDPA case that Cage fits into the second Teague exception and therefore can be applied retroactively to cases on collateral review).

In re Smith, 142 F.3d 832 (5th Cir. 1998) (holding that under the AEDPA, Cage is not retroactive since Supreme Court has not made it so).

Rodriguez v. Bay State Correctional Center, 139 F.3d 270 (1st Cir. 1998) (holding that under the AEDPA, Cage is not retroactive as Supreme Court has not made it so).

Humphrey v. Cain, 138 F.3d 552 (5th Cir.) (en banc) (holding that Cage fits into the second Teague exception and therefore can be applied retroactively to cases on collateral review), cert. denied, 525 U.S. 935, and cert. denied, 525 U.S. 943 (1998).

In re Vial, 115 F.3d 1192 (4th Cir. 1997) (en banc) (holding that under the AEDPA, Cage is not retroactive because Supreme Court has not made it so).

In re Hill, 113 F.3d 181 (11th Cir. 1997) (holding that under the AEDPA, Cage is not retroactive as Supreme Court has not made it so).

Adams v. Aiken, 41 F.3d 175 (4th Cir. 1994) (holding rule that constitutionally deficientreasonable doubt instruction violates due process applies retroactively under Teague second exception), cert. denied, 515 U.S. 1124 (1995).

Nutter v. White, 39 F.3d 1154 (11th Cir. 1994) (holding Cage announces a new rule of law falling within Teague’s second exception).

In Beck v. Alabama, 447 U.S. 625 (1980), the Supreme Court held that a capital defendant is constitutionally entitled to an instruction on lesser-included offenses if the evidence could support a finding of guilt on such offenses. The Court confirmed in Hopper v. Evans, 456 U.S. 605 (1982), that the guarantee of a lesser-included offense instruction is limited to cases where the evidence supports such an instruction. The Hopper Court stated “[t]he federal rule is that a lesser-included offense instruction should be given ‘if the evidence would permit a jury rationally to find [a defendant] guilty of the lesser offense and acquit him of the greater.’” Id. at 612 (quoting Keeble v. United States, 412 U.S. 205, 208 (1973)).

The Beck guarantee is limited in another way, as well. In Spaziano v. Florida, 468 U.S. 447 (1984), the trial court offered to instruct the jury on lesser included offenses if the defendant would waive the statute of limitations on those offenses. The defendant refused to waive his statute of limitations defenses, and the court consequently did not instruct on lesser-included offenses. In upholding the trial court’s refusal to instruct on lesser-included offenses, the Supreme Court held that no such instructions are necessary where no such offense is actually at issue. In Spaziano, since the statute of limitations for the lesser-included offenses had expired and the defendant had not waived the statute of limitations, the offenses were not at issue, and Beck did not require instruction on them.

In Hopkins v. Reeves, 524 U.S. 88 (1998), the Court resolved a split of authority between the Eighth and Ninth Circuits. The Hopkins Court reversed the Eighth Circuit and held that in a case of felony-murder, a defendant is not entitled to an instruction on second degree murder or manslaughter since neither is a lesser-included offense of felony-murder. The Court rejected the argument that Enmund v. Florida, 458 U.S. 782 (1982) and Tison v. Arizona, 481 U.S. 137 (1987) effectively added an intent element to capital felony-murder charges. The Court distinguished Beck and held that the jury could convict on felony-murder or acquit.

Hopkins v. Reeves, 524 U.S. 88 (1998) (holding that second degree murder and manslaughter instructions were not required when state pursued first degree felonymurder conviction since they were not lesser-included offenses of felony-murder).

Schad v. Arizona, 501 U.S. 624 (1991) (holding Beck does not require an instruction on every possible lesser-included offense supported by the evidence; since trial court instructed on second degree murder, it need not also have instructed on robbery).

Spaziano v. Florida, 468 U.S. 447 (1984) (holding constitutional for trial court to refuse to instruct jury on lesser-included offense where defendant refused to waive the statute of limitations as to the lesser offenses in exchange for jury instructions on the lesser offenses).

Hopper v. Evans, 456 U.S. 605 (1982) (holding constitutional to preclude consideration by the jury of lesser-included offenses where evidence would not support the lesser offenses).

Beck v. Alabama, 447 U.S. 625 (1980) (holding unconstitutional to preclude consideration by the jury of lesser-included offenses where evidence would support the lesser offenses).

LaGrand (Karl) v. Stewart, 133 F.3d 1253 (9th Cir.) (holding trial court did not err in refusing to instruct on second degree murder as lesser-included offense of felonymurder; distinguishing Beck because court alternatively instructed LaGrand jury on premeditated murder which included a stepdown second degree murder instruction), cert. denied, 525 U.S. 971 (1998).

Gerlaugh v. Stewart, 129 F.3d 1027 (9th Cir. 1997) (recognizing that no lesseri ncluded homicide offense exists to felony-murder under Arizona law; holding even if facts purporting to negate specific intent warranted second degree murder instruction, claim still fails under Brecht), cert. denied, 525 U.S. 903 (1998).

Villafuerte v. Stewart, 111 F.3d 616 (9th Cir. 1997) (holding, in felony-murder trial, no constitutional error in failing to give lesser-included offense instruction of unlawful imprisonment on predicate felony of kidnapping when conviction of predicate felony does not require finding of guilt on murder charge), cert. denied, 522 U.S. 1079 (1998).

United States v. Roston, 986 F.2d 1287 (9th Cir.) (holding trial court did not err in refusing to instruct on lesser-included offense of voluntary manslaughter in murder case because, on facts, not clear that jury would have found manslaughter instead of murder), cert. denied, 510 U.S. 874 (1993).

Carriger v. Lewis, 971 F.2d 329 (9th Cir. 1992) (holding no error where judge instructed jury on second degree murder but failed to provide jury with verdict form for second degree murder where jury found petitioner guilty of underlying felony as well as first degree felony-murder), cert. denied, 507 U.S. 992 (1993).

Greenawalt v. Ricketts, 943 F.2d 1020 (9th Cir. 1991) (holding trial court did not commit error for failing to give second degree murder instruction where defendant was tried solely for felony-murder; Arizona law recognizes no lesser-included offense for felony-murder), cert. denied, 506 U.S. 888 (1992).

United States v. Walker, 915 F.2d 480, 486 (9th Cir. 1990) (stating defendant entitled to lesser-included offense instruction when elements of lesser offense are subset of charged offense and factual basis supports instruction).

Woratzeck v. Ricketts, 820 F.2d 1450, 1457 (9th Cir. 1987) (holding due process requires that lesser-included offense instruction to a capital offense be given whenever the evidence warrants such an instruction; however, failure to instruct on the lesser included offenses underlying felony-murder charge may be harmless error), vacated on other grounds, 486 U.S. 1051 (1988).

Vickers v. Ricketts, 798 F.2d 369 (9th Cir. 1986) (holding second degree murder instruction required because premeditation–difference between first and second degree murder–was in dispute even though the evidence on lack of premeditation was not compelling), cert. denied, 479 U.S. 1054 (1987).

United States v. Brown, 761 F.2d 1272, 1277 (9th Cir. 1985) (holding defendant entitled to lesser-included offense instruction if (1) lesser-included offense is within offense charged, and (2) based on evidence presented at trial, a rational jury could find defendant guilty of lesser-included offense but not greater offense).

Gerlaugh v. Lewis, 898 F. Supp. 1388 (D. Ariz. 1995) (applying Beck, holding no entitlement to lesser-included offense instruction on voluntary intoxication), aff’d, 129 F.3d 1027 (9th Cir. 1997), and cert. denied, 525 U.S. 903 (1998).

Michael H. Hoffheimer, Note, Habeas Corpus Review of State Trial Court Failure to Give Lesser Included Offense Instructions, 16 U. Mich. L. Rev. 617 (1983) (advocating federal review of state convictions where lesser-included offense instructions were available under state law but were not given).

Where a capital conviction is supported on alternative grounds of premeditation or felony-murder, the Supreme Court has held that the Constitution does not require the jury to reach separate verdicts on each alternate theory. Schad v. Arizona, 501 U.S. 624 (1991). However, where the court instructs the jury that it may rely on two or more independent grounds for conviction, and the evidence is insufficient on one of those grounds, the general verdict must be set aside since it may have rested exclusively on the insufficient ground. Zant v. Stephens, 462 U.S. 862, 881 (1983).

Schad v. Arizona, 501 U.S. 624 (1991) (plurality) (holding premeditation and felony murder are not separate offenses requiring separate verdicts; rather, they are two means of satisfying the mens rea requirement for first degree murder; therefore, it was constitutionally permissible for the jury to reach one verdict based on any combination of the statutory alternatives of premeditation or felony-murder).

Zant v. Stephens, 462 U.S. 862, 881 (1983) (holding general verdict must be set aside when jury is instructed that it may rely on two or more independent grounds for conviction and evidence is insufficient on one of those grounds because the verdict may have rested exclusively on the insufficient ground).

LaGrand (Karl) v. Stewart, 133 F.3d 1253 (9th Cir.) (holding that lesser-included offense instruction to felony-murder need not be given where jury is given the option of first degree murder and second degree murder), cert. denied, 525 U.S. 971 (1998).

Elizabeth R. Carty, Schad v. Arizona: Jury Unanimity on Trial, 42 Cath. U. L. Rev. 355 (1993) (analyzing Schad and whether Arizona statute violates defendant’s due process rights, and contrasting felony-murder doctrine with premeditated murder doctrine as alternative theories of first degree murder).

James J. McGuire, Note, Schad v. Arizona: Diminishing the Need for Verdict Specificity, 70 N.C. L. Rev. 936 (1992) (reviewing Schad and its precedent, concluding that Court’s recharacterization of jury unanimity is misguided).

In Estelle v. McGuire, 502 U.S. 62 (1991), the Supreme Court established that the proper inquiry for determining the constitutional validity of a jury instruction is not whether the instruction “could have” been applied in an unconstitutional manner, but rather, whether a “reasonable likelihood” exists that the jury applied the instruction unconstitutionally.

Victor v. Nebraska, 511 U.S. 1 (1994) (applying Estelle standard in reviewing constitutionality of reasonable doubt instruction).

Estelle v. McGuire, 502 U.S. 62 (1991) (setting forth standard for reviewing constitutionality of jury instruction as whether there is “reasonable likelihood” that jury unconstitutionally applied it).