Full opinion text
ORDER JAMES C. FOX, District Judge. Petitioner, a state inmate, initiated this action seeking the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254, by complaint filed May 10, 1983. This matter is before the court on petitioner’s objections to the United States Magistrate’s memorandum, which reluctantly recommended dismissing Bush’s petition. Extensive and excellent briefs have been filed by both parties to this action and the matter is ripe for disposition. Petitioner was convicted of first degree murder and sentenced to death in the Superior Court of Onslow County, North Carolina, on May 22, 1975. Bush was represented by counsel at trial, offered evidence, and testified in his defense. On appeal, the North Carolina Supreme Court found no error in either petitioner’s conviction or his sentence and affirmed the judgment of the Onslow County Superior Court. State v. Bush, 289 N.C. 159, 221 S.E.2d 333 (1976) (Bush I). However, Bush’s sentence was subsequently vacated by the United States Supreme Court, Bush v. North Carolina, 429 U.S. 809, 97 S.Ct. 46, 50 L.Ed.2d 69 (1976), on grounds that the North Carolina death penalty statute, as it then existed, was unconstitutional. On remand, a life sentence was imposed by the Superior Court on November 30, 1976. Petitioner then filed a motion for appropriate relief, pursuant to N.C.GEN.STAT. § 15A-1411 et seq., alleging three constitutional infirmities in his conviction. Broadly stated, Bush argued that: (1) the trial court improperly placed the burden upon him to prove the absence of malice; (2) the trial court also improperly placed the burden upon him to prove self-defense; and (3) he received ineffective assistance of counsel because his court-appointed attorneys failed to raise these issues on direct appeal. By order dated April 21, 1981, Superior Court Judge Henry L. Stevens denied petitioner’s motion on the merits. The North Carolina Supreme Court then allowed Bush’s petition for writ of certiora-ri and, on December 7, 1982, filed its opinion affirming the order of the Superior Court. State v. Bush, 307 N.C. 152, 297 S.E.2d 563 (1982) (Bush II). Addressing the malice issue, the Supreme Court found that although the trial court’s jury instructions did improperly place the burden of disproving the element of malice on petitioner, see Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), this error was rendered harmless by Bush’s conviction of first-degree murder. By finding that petitioner had killed the victim with premeditation and deliberation, the Supreme Court determined that the jury necessarily found beyond a reasonable doubt that the killing was not done in the heat of passion, thus ruling out the lesser offense of voluntary manslaughter. 307 N.C. at 161-165, 297 S.E.2d at 569-572. The Supreme Court further found that the self-defense instruction was also constitutionally infirm. See Mullaney v. Wilbur, supra. However, the court determined that the evidence adduced at trial was insufficient as a matter of law to support an instruction on self-defense. Thus, the court found that the improper instruction was favorable to the petitioner and any error in the charge was harmless. 307 N.C. at 158-161, 297 S.E.2d at 567-569. Finally, because the court found any errors in petitioner’s jury instructions to be harmless, it decided that there was no need to address Bush’s claim of ineffective assistance of counsel. Id. at 165, n. 4, 297 S.E.2d at 572 n. 4. Petitioner next filed this petition for writ of habeas corpus, raising essentially the same three constitutional infirmities that he alleged in his motion for appropriate relief. Respondents concede, and upon review of the record the court agrees, that Bush presented these issues as matters of federal constitutional law to the state courts, thereby properly exhausting state remedies in this proceeding. Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed. 2d 3 (1982); Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). In addition, any grounds for dismissal of petitioner’s claims due to procedural default were eliminated when the Superior Court of Onslow County and the North Carolina Supreme Court reviewed and decided Bush’s constitutional claims on their merits. County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed. 2d 777 (1979). Accordingly, this court may properly determine the merits of the issues raised by petitioner. Since disposition of the issues at bar requires a detailed understanding of the facts of this case and the trial court’s instructions to the jury, a review of both the facts and the charge follows. I. STATEMENT OF THE FACTS The state’s evidence showed that on November 18, 1974, Mrs. Eva Marshbum returned to her home near Jacksonville, North Carolina, and found the house ransacked and her husband, Kirby W. Marsh-bum, lying on the floor in a puddle of blood. One of the Marshbum’s steak knives and Mr. Marshburn’s billfold were on the floor near his body. (R. pp. 10-11) When Mrs. Marshburn looked up from her husband’s body she noticed petitioner standing there. According to Mrs. Marsh-burn, petitioner, after first threatening her, took $3.00 from her, then told her he was not going to harm her, and tied her up. She also testified that he told her that he killed her husband because "... he wouldn’t do anything I asked him to do,” and that he apologized for tying her up. (R. p. 12). After tying Mrs. Marshburn up, petitioner left the house, taking her car keys and a gun. (R. p. 13). The state also introduced evidence that, earlier in the same evening, petitioner had taken an automobile from outside a bar at the United States Marine Corps base at Camp Lejeune, North Carolina. Bush, a 20 year old marine, had been drinking beer, lost control of the car, and drove it into a ditch near the Marshbum home. (R. pp. 19-20 and 23-25). Petitioner’s statement, given to Detective Jarman of the Onslow County Sheriff's Department on November 19, 1974, was also introduced into evidence. In that statement, Bush admitted killing Mr. Marshbum after he had received permission from Marshbum to enter his residence to use the telephone to request assistance regarding the car he had driven into the ditch. (R. pp. 25-28). Detective Jarman testified that: He stated that he started talking to the old man and asked for a drink of water and the old man gave him a drink of water and that they were standing by the sink. He stated that for no reason at all the old man told him to get out and pushed him into the sink and that he then saw a knife and that his hand closed on the knife and he picked it up and stuck it in the old man. He stated that he stabbed the man two or three times and the man fell on the floor. He stated that he got in the truck and the woman came to the house and went inside and that he went back inside after her. He stated that the woman told him not to kill her and that he said he was not going to kill her and that he asked her for some money and that she only had a little bit and he took $3 and some change from her. He stated that he told the woman that he wasn’t going to kill her and that he didn’t mean to kill her husband and he asked the lady if she had some rope and she said she did not. He stated that he took some curtain cord and tied her in a chair. (R. p. 26). On cross-examination, Jarman reiterated that Bush told him that the stabbing occurred only after an argument had started with Mr. Marshburn. (R. p. 27). Both Jarman and Captain Woodward of the On-slow County Sheriff’s Department testified that, after his initial reluctance to talk, petitioner cooperated fully and supplied them with information which led to much of the evidence used to convict him. (R. pp. 27-31). The State introduced additional evidence establishing that the victim died as a result of the stab wounds inflicted by the petitioner (R. pp. 21-22), and further physical and circumstantial evidence connecting Bush with the killing. (R. pp. 18-19, 23-25, and 28-35). Petitioner, testifying on his own behalf, admitted stabbing Mr. Marshburn. He testified, however, that he went to the Marsh-burn home only to use the telephone after he had driven the car into the nearby ditch. His description of the events which led to the stabbing is, in pertinent part, as follows: After I was unable to reach the person I was calling, I had a conversation with the man in the house and as far as I knew there was nobody in the house except me and the man. We were standing in the kitchen having our conversation. Up until that time our relationship had been good and we had just been talking. There were no ill words between us at that time. I asked him for a drink of water and he gave me a glass full of water and we stood there and talked. I was standing inside the kitchen by the sink and the man was standing near me and the door was on the other side of him. The man was talking about some person down the road who owned a wrecker and he said something about there being a “colored boy” down the road who owned a wrecker. Before he got all the words out I corrected him and I said “colored boy?” and I asked him what color the person was. The man did not make any immediate response, it was kind of a delayed response and he stopped for a second and then all of a sudden he started pushing me and telling me to get out. At that time I was standing in front of the sink and the sink was to my back. Mr. Marshburn was standing in front of me and the door that I entered was behind him. I must have been six or seven inches from the sink when he pushed me and I backed into the sink. He never struck me and he did not have a weapon in his hand. I believe he repeated three or four times for me to get out of the trailer and all the time he was between me and the door. There were dishes around the kitchen but I do not recall if there was any food on the table. There was a counter top by the sink and I saw a knife laying there (State’s Exhibit 4) and I picked it up. I picked up the knife because I was nervous and I thought I was protecting myself and I was afraid for my safety. As far as I knew the only way out of the trailer was the door that I entered as I had never been there before and I did not know who was there when I went there. After picking up the knife, I stabbed the man to get him off of me and at that time I did not have any intention of stealing anything from him or from his house. When I went into the house earlier I did not have any intention of stealing anything (It. pp. 36-37). The man started pushing me and telling me to get out at the same time, but he was not pushing me towards the door. The man did not have a knife in his hand and did not threaten me with a knife. He appeared to be an older man but I do not know if he was 65 years old because I was not trying to figure out how old he was. I am five feet ten inches tall and I weigh 150. At that time I was afraid of this man that I now know was 65 years old. There is nothing physically wrong with me and I guess I was afraid of him because of the element of surprise (R. p. 42). II. THE TRIAL COURT'S CHARGE The trial court, in instructing the jury as to the elements of first degree murder on a theory of premeditation and deliberation stated: Our Supreme Court has said concerning murder in the first degree which is not a robbery or felony murder that murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. So the elements of such a-of that crime are that there must be an unlawful killing, it must have been perpetrated with malice, it must have been committed after deliberation and premeditation. Now our court has said that malice is not only hatred, ill will or spite, as it is ordinarily understood, but it also means that condition of the mind which prompts a person to intentionally take the life of another without just cause, excuse or justification. It may be shown by evidence of hatred, ill will or dislike and it is implied in law from the intentionally (sic) killing with a deadly weapon. (emphasis added). (R. p. 7). The trial court then explained the terms premeditation and deliberation, before charging on second degree murder. At the start of his charge on second degree murder, the judge stated, with respect to malice and unlawfulness (elements of both first and second degree murder): Now murder in the second degree is the unlawful killing of a human being with malice but without premeditation or deliberation. Where a person intentionally inflicts wounds on the person of another with the use of a deadly weapon which causes the death of such other person. (sic) Then two presumptions arise, first, that the killing was unlawful and second, that it was done with malice and it is for you to determine whether the defendant used a deadly weapon. (emphasis added). (R. p. 9). This was, once again repeated, as follows: So if you find the knife that the defendant used was the knife offered in evidence and that it was a deadly weapon and that he intentionally inflicted wounds which did in fact cause death to Mr. Marshburn, then nothing else appearing, the presumption of unlawfulness and malice would arise and an unlawful killing with malice is murder in the second degree. Upon such a finding, if you should so find, then the burden be upon the defendant not to satisfy you from the evidence and beyond a reasonable doubt, nor even by the greater weight of the evidence but merely to satisfy you of the absence of malice to reduce the homicide from murder in second degree to manslaughter because manslaughter is simply the unlawful killing of a human being without malice and without premeditation and deliberation and further the burden would be upon him to satisfy you-~nierely to satisfy you that he was justified on the grounds of self-defense in order to excuse the killing altogether, in which event he would be entitled to a verdict of not guilty. (emphasis added). (R. p. 10). III. PETITIONER'S SELF-DEFENSE AND INEFFECTIVE ASSISTANCE OF COUNSEL ARGUMENTS Dealing first with the trial court's self-defense instructions, this court agrees with both the Magistrate and the North Carolina Supreme Court that the evidence in this case was insufficient to support such an instruction. Bush II, 307 N.C. at 161, 297 S.E.2d at 569. Imperfect self-defense arises under North Carolina law when (1) it appeared to the defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm and (2) defendant’s belief was reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness. Id. at 159, 297 S.E.2d at 568; State v. Wilson, 304 N.C. 689, 695, 285 S.E.2d 804, 808 (1982). Thus, where the defendant, although without murderous intent, was the aggressor or used excessive force, and therefore loses the benefit of perfect self-defense, he may properly invoke the right of imperfect self-defense if he meets both of the above elements. In that case, the defendant would remain guilty of at least voluntary manslaughter. Id. Applying these principles to the case at bar, it is obvious that no evidence exists to support any finding that petitioner in fact formed a belief that it was necessary for him to kill the victim in order to protect himself from death or great bodily harm. Bush II, 307 N.C. at 161, 297 S.E.2d at 569. Petitioner’s own testimony indicates that Marshbum, at worst, pushed him and told him to get out of his house. Bush testified that the deceased “had not threatened to use a weapon” against him nor had he attempted to even strike the petitioner, except by pushing him with his hands. Id. at 159, 297 S.E.2d at 568. No evidence was presented that Marshburn, a 65 year old man, was so large or powerful that this conduct caused the petitioner, a 20 year old Marine, to be unduly alarmed or afraid for his life. Id. To the extent petitioner testified that he was “nervous” and “afraid,” these statements do not amount to evidence that Bush had formed any subjective belief that it was necessary to kill the victim in order to save himself from death or great bodily harm. Id. Nor do they provide any support for the proposition that if such a belief actually existed, that it was reasonable. 307 N.C. at 161, 297 S.E.2d at 569. Indeed, petitioner’s own testimony leaves little doubt but that the circumstances as they existed at the time of the killing were totally insufficient to create any reasonable fear by Bush of death or great bodily harm. Id. Thus, although as everyone agrees, the trial court erred in placing on the defendant the burden of proving self-defense to the satisfaction of the jury, 307 N.C. at 158 n. 2, 297 S.E.2d at 567 n. 2, this error was favorable to the petitioner and harmless beyond any reasonable doubt, since it resulted in the jury’s consideration of a defense which Bush was not actually entitled to have considered based on the evidence presented at trial. 307 N.C. at 161, 297 S.E.2d at 569. Furthermore, assuming arguendo that petitioner was entitled, under state law, to have the jury properly consider his imperfect self-defense claim, absent extraordinary circumstances impugning the petitioner’s right to a fair trial and due process of law, the sufficiency of the evidence for purposes of instructing the jury is solely a matter of state law only and does not present a cognizable constitutional issue on habeas review. See Grundler v. North Carolina, 283 F.2d 798, 802 (4th Cir.1960). Nothing in this record would indicate Bush was so deserving of this instruction that the fact it was given improperly violated petitioner’s right to a fair trial. Accordingly, Bush’s claim of error with regard to the trial court’s instructions on self-defense is hereby DISMISSED. In addition, because the court has decided petitioner’s self-defense instruction claim on the merits and will now proceed to do so with regard to his malice instruction claim, there simply is no need to consider Bush's contention that he received ineffective assistance of counsel when his court-appointed counsel failed to raise both of these substantive issues on direct appeal to the North Carolina Supreme Court. Accordingly, the court now turns to the gravamen of petitioner’s complaint, the trial court’s instructions on malice. IV. PETITIONER’S SANDSTROM CLAIM Petitioner claims that the trial court's instructions to the jury on the element of malice violated his fourteenth amendment due process rights under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and its progeny, including Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). In Sandstrom, the defendant was convicted under Montana law of “deliberate homicide,” which the statute defined as “purposely or knowingly” causing the death of another human being. The state conceded that “purpose” was equivalent to “intent,” and thus that proof of defendant’s intent to kill would suffice to establish the “purpose” element. Id. at 521 and n. 11, 99 S.Ct. at 2458 and n. 11. The trial court instructed the jury that “the law presumes that a person intends the ordinary consequences of his voluntary acts.” The court found this instruction unconstitutional because it “had the effect of relieving the State of the burden of proof enunciated in [In re] Winship on the critical question of petitioner’s state of mind.” Id. at 521, 99 S.Ct. at 2458. The state had argued, in Sandstrom, that the Montana Supreme Court had exclusive jurisdiction to determine the effect of the presumption contained in the trial judge’s instruction and that the state supreme court had held the instruction placed only a burden of producing some evidence on the defendant. Thus, the argument continued, the presumption could only have affected defendant’s burden of going forward with the evidence rather than the ultimate burden of persuasion. The Supreme Court conceded that the state supreme court had the final authority on the effect of the presumption under state law, but declared that the state court was “not the final authority on the interpretation which a jury could have given the instruction.” Id. at 516-17, 99 S.Ct. at 2455. Further, the Court found that, although the challenged instruction could be interpreted in the manner suggested by the state, it could also be interpreted in two more stringent ways, neither of which were constitutional: First, a reasonable jury could well have interpreted the presumption as "conclusive," that is, not technically a presumption at all, but rather as an irrebuttable direction by the court to find intent once convinced of the facts triggering the presumption. Alternatively, the jury may have interpreted the instruction as a direction to find intent upon proof of the defendant's voluntary actions (and their "ordinary consequences") unless the defendant proved the contrary by some quantum of proof which may well have been considerably greater than "some" evidence-thus effectively shifting the burden of persuasion on the element of intent. Id. at 517, 99 S.Ct. at 2456. Accordingly, the Court held the trial court’s instruction represented constitutional error, notwithstanding the fact that the trial court had given other instructions that correctly stated the state’s burden of proof. Id. at 518-19 n. 7, 99 S.Ct. at 2456 n. 7. See also Davis v. Kemp, 752 F.2d 1515, 1517-18 (11th Cir.1985), cert. denied, 471 U.S. 1143, 105 S.Ct. 2689, 86 L.Ed.2d 707 (1985); Mason v. Balkcom, 669 F.2d 222, 225-26 (5th Cir.1982), cert. denied 460 U.S. 1016, 103 S.Ct. 1260, 75 L.Ed.2d 487 (1983). Sandstrom was followed by and elaborated upon in Francis v. Franklin, supra. In Franklin, the Georgia trial court instructed the jury that “[t]he acts of a person of sound mind and discretion are presumed to be the product of a person’s will, but the presumption may be rebutted” and “[a] person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts, but the presumption may be rebutted.” The Court stated, “[t]he question is whether these instructions, when read in the context of the jury charge as a whole, violate the fourteenth amendment’s requirement that the State prove every element of a criminal offense beyond a reasonable doubt.” 105 5.Ct. at 1968. The Court began its analysis by stating that: The Due Process Clause of the Fourteenth Amendment “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). This “bedrock, ‘axiomatic and elementary’ ” [constitutional] principle, id. at 363, 90 S.Ct. at 1072, prohibits the State from using evidentia-ry presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime, [citations omitted]. The prohibition protects the “fundamental value determination of our society,” given voice in Justice Harlan’s concurrence in Winship, “that it is far worse to convict an innocent man than to let a guilty man go free.” 397 U.S. at 372, 90 S.Ct. at 1077. 105 S.Ct. at 1970-71. As in Sandstrom, the Court was faced in Franklin with the issue of whether the challenged instruction had the effect of removing from the prosecution the burden of proving the elements of the crime related to the defendant’s state of mind by reason of the trial court’s use of a “mandatory presumption of intent upon proof by the State of [the] other elements of the offense." Id. at 1971. (emphasis added). The Court’s initial review of the instruction focused on the nature of the presumption described; the critical inquiry being whether the challenged portion of the charge created a mandatory presumption or simply a permissive inference. Id. See also County Court of Ulster County v. Allen, 442 U.S. at 157-163, 99 S.Ct. at 2224-2227. A mandatory presumption was defined as one which instructs the jury that it must find the presumed fact if the state proves certain predicate facts, while a permissive inference simply suggests to the jury a possible conclusion to be drawn if the state proves those same predicate facts. Id. The mandatory presumption, whether it is in the form of a conclusive or rebuttable presumtion, violates the Due Process Clause of the fourteenth amendment if it relieves the state of the burden of persuasion on an element of the offense, whereas a permissive inference generally remains constitutional because it never requires the jury to draw any conclusion which would remove the burden of proof from the state. Id. Even with the aid of the inference, the state still must convince the jury that the suggested conclusion should be inferred in this case. Such an inference violates due process only if the suggested conclusion is irrational or defies common sense. Id. Applying the above principles to the facts before it, the Court, in reviewing the context of the trial court’s charge as a whole, held that the challenged instruction “undeniably created an unconstitutional burden-shifting presumption with respect to the element of intent.” Id. at 1973. Although the Court found that the Georgia Supreme Court had interpreted the above instruction as creating no more than a permissive inference, the Court reiterated its language in Sandstrom, that the state court “is not the final authority on the interpretation which a jury could have given the instruction.” Id. at 1972 citing Sandstrom, 442 U.S. at 516-17, 99 S.Ct. at 2455. “The federal constitutional question is whether a reasonable juror could have understood the two sentences as a mandatory presumption that shifted to the defendant the burden of persuasion on the element of intent once the state has proved the predicate acts.” 105 S.Ct. at 1972. The Court found that the challenged instructions were cast in the language of command and that the jurors “ ‘were not told that they had a choice, or that they might infer that conclusion; they were told only that the law presumed [that a person intends the ordinary consequences of his voluntary acts]’ ” Id. citing Sandstrom, 442 U.S. at 515, 99 S.Ct. at 2454. Thus, the jury charge directed the jury to presume the element, intent to kill, upon proof of other elements of the crime, the act of slaying another. This the Court found to be unconstitutional in that it “undermined the factfinder’s responsibility at trial, based on the evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt.” 105 S.Ct. at 1972 citing County Court of Ulster County v. Allen, 442 U.S. at 156, 99 S.Ct. at 2224. In Franklin, the State argued that the language of the instruction allowing the presumption “may be rebutted” differentiated Franklin from Sandstrom, but the Court disagreed. The Court held that mandatory rebuttable presumptions are no less unconstitutional than mandatory conclusive .presumptions, even if slightly less onerous. 105 S.Ct. at 1973. See also Mullaney v. Wilbur, 421 U.S. at 698-70, 95 S.Ct. at 1889-1890 (holding unconstitutional a mandatory rebuttable presumption that shifted to the defendant a burden of persuasion on the issue of intent). “When combined with the immediately preceding mandatory language, the instruction that the presumptions ‘may be rebutted’ could reasonably be read as telling the jury that it was required to infer intent to kill as the natural and probable consequence of the act of firing the gun unless the defendant persuaded the jury that such an inference was unwarranted — [i.e.,] that the defendant bore an affirmative burden of persuasion once the State proved the underlying act giving rise to the presumption.” 105 S.Ct. at 1973. Furthermore, the Court found that language in the overall instruction to the effect that the defendant was presumed innocent, the State was required to prove every element of the crime beyond a reasonable doubt, and a general instruction on “criminal intention” did not dissipate the error in the challenged portion of the instruction. “Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity.” Id. at 1974-75. Finally, the Court held that the constitutionally erroneous jury instructions were not rendered harmless by the facts of the case. Franklin’s only defense was that he lacked the requisite intent to kill and the evidence in the case did not overwhelmingly preclude his defense on that score. Id. at 1977 citing Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983) (both cases leaving open the issue of whether an erroneous charge shifting the burden of persuasion to the defendant on an essential element of the crime can ever be deemed harmless — an issue recently resolved in the affirmative in Rose v. Clark, — U.S.-, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986)). Based on Sandstrom and Franklin, this court finds that the following analytical approach must be utilized in determining cases alleging burden-shifting error in violation of the Due Process clause. First, the court must consider whether the challenged instruction concerned an essential element of the offense with which petitioner was charged; second, whether the instruction created a constitutionally objectionable “mandatory presumption” operating to shift the burden of proof to the defendant or whether it simply contained a “permissive inference”; third, whether, given the context of the charge as a whole, any error rendered by a “mandatory presumption” instruction was dissipated by other clarifying instructions given by the trial court; and fourth, whether any error which might have arisen from shifting the burden was rendered harmless in the context of the specific case. See Flowers v. Blackburn, 779 F.2d 1115, 1120 (5th Cir.1986); Brooks v. Kemp, 762 F.2d 1383, 1388-90 (11th Cir.1985), judgment vacated on other grounds, — U.S.-, 106 S.Ct. 3325, 92 L.Ed.2d 732 (1986); Davis v. Kemp, 752 F.2d at 1517. Application of this standard follows seriatim. A. Malice is an essential element of premeditated murder in North Carolina. It is simply beyond cavil that first-degree murder in North Carolina includes within its definition the distinct and separate essential element of malice. Davis v. Allsbrooks, 778 F.2d 168,172 n. 2 (4th Cir.1985) (“Malice is clearly an element of first degree murder under North Carolina law.”). First-degree murder was defined at the time of petitioner’s trial and still is today, as the “intentional and unlawful killing of a human being with malice and with premeditation and deliberation.” State v. Jackson, 317 N.C. 1, 343 S.E.2d 814, 827 (1986) (emphasis added); State v. Gladden, 315 N.C. 398, 340 S.E.2d 673, 693 (1986); State v. Myers, 309 N.C. 78, 83, 305 S.E.2d 506, 509 (1983); State v. Corn, 303 N.C. 293, 296-97, 278 S.E.2d 221, 223 (1981); State v. Fleming, 296 N.C. 559, 251 S.E.2d 430 (1979); State v. Davis, 289 N.C. 500, 223 S.E.2d 296 (1976); State v. Smith, 221 N.C. 278, 20 S.E.2d 313 (1942); N.C.GEN.STAT. § 14-17. Petitioner’s jury was so instructed. Premeditation means the act was thought out beforehand for some length of time, however short, but no particular amount of time is necessary for the mental process of premeditation. State v. Brown, 315 N.C. 40, 58, 337 S.E.2d 808, 822 (1985); State v. Myers, 299 N.C. 671, 677, 263 S.E.2d 768, 772 (1980); State v. Robbins, 275 N.C. 537, 542, 169 S.E.2d 858, 861-62 (1969). Deliberation means an intent to kill, carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation. State v. Hamlet, 312 N.C. 162, 170, 321 S.E.2d 837, 842-43 (1984); State v. Faust, 254 N.C. 101, 106-107,118 S.E.2d 769 (1961). The phrase “cool state of blood” means that the defendant’s anger or emotion must not have been such as to overcome his reason. State v. Myers, supra. Premeditation and deliberation relate to mental processes and ordinarily are not readily susceptible to proof by direct evidence. Instead, they usually must be proved by circumstantial evidence. State v. Buchanan, 287 N.C. 408, 215 S.E.2d 80 (1975). Among other circumstances to be considered in determining whether a killing was with premeditation and deliberation are: (1) want of provocation on the part of the deceased; (2) the conduct and statements of the defendant before and after the killing; (3) threats and declarations of the defendant before and during the course of the occurrence giving rise to the death of the deceased; (4) ill-will or previous difficulty between the parties; (5) the dealing of lethal blows after the deceased has been felled and rendered helpless; and (6) evidence that the killing was done in a brutal manner. State v. Brown, supra; State v. Hamlet, supra; State v. Bullard, 312 N.C. 129, 161, 322 S.E.2d 370, 388 (1984). As for malice, the law of North Carolina recognizes three forms: (1) the emotions of hatred, ill will, and spite, State v. Benson, 183 N.C. 795, 111 S.E. 869 (1922), overruled on other grounds in State v. Phillips, 264 N.C. 508, 516, 142 S.E.2d 337, 342 (1965); (2) commission of an inherently dangerous act in such a reckless and wanton manner so “as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief,” State v. Reynolds, 307 N.C. 184, 191, 297 S.E.2d 532, 536 (1982) citing State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978); and (3) “that condition of the mind which prompts a person to take the life of another intentionally, without just cause, excuse, or justification.” State v. Reynolds, 307 N.C. at 191, 297 S.E.2d at 536 citing State v. Foust, 258 N.C. 453, 458, 128 S.E.2d 889, 893 (1962) quoting State v. Benson, supra. It is this last type of malice which is at issue in this case and it is in describing how this essential element of first-degree murder could be proved that the trial court allegedly erred. See generally State v. Hankerson, 288 N.C. 632, 220 S.E.2d 575 (1975), rev'd on other grounds, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977); State v. Patterson, 297 N.C. 247, 254 S.E. 2d 604 (1979). B. The challenged instruction operated as a ‘mandatory presumption’ and impermissibly shifted the burden of proof to the defendant. During the instructions on first-degree murder, petitioner’s jury was informed that malice “... is implied in law from the intentionally [sic] killing with a deadly weapon.” (R. p. 7). On the following instructions concerning second-degree murder, the trial court elaborated upon the earlier malice instruction by clearly charging the jury that the use of a deadly weapon raised a “presumption” of malice which the defendant had the burden to disprove. (R. pp. 9-10). See jury charge, supra at 1326. All told, the jurors were informed in four (4) separate paragraphs that malice could be “presumed” or “implied in law” from the use of a deadly weapon and were further instructed that the burden was on the defendant to disprove the existence of malice. Under Sandstrom and Franklin, there simply is no doubt that the trial court’s instruction constituted a mandatory presumption rather than a permissive inference. The instructions, considered separately, and certainly as a whole, did far more than “suggest to the jury a possible conclusion to be drawn if the State proves predicate facts ...” Franklin, 105 S.Ct. at 1971. Petitioner’s jury was not instructed to consider the use of a deadly weapon together with all the other facts and circumstances in determining the existence of malice. Neither was it instructed that it was not compelled to nor need it necessarily “infer” malice. Rather, the jury was charged that malice is “implied in law” and “presumed” from the defendant’s intentional use of a deadly weapon — a fact that petitioner did not even contest at trial. Respondents argue that the use of the term “implied” rather than “presumed” erases any constitutional concerns. The court disagrees. First, the trial judge used the term “implied in law,” a phrase which is far stronger and substantially more definitive than the single word “implied.” Second, the subsequent second-degree murder instructions that the jurors were given on the use to be made of the fact that petitioner had used a deadly weapon seemingly would have insured that “implied in law” was understood to mean exactly what the trial judge meant it to say — that malice could be “presumed” solely on the basis of the existence of the predicate fact, i.e., that a deadly weapon was used by Bush. Similar instructions, where the word “implied” or phrase “implied in law” were used, have consistently been held to have created mandatory presumptions. E.g., Mullaney v. Wilbur, supra; Engle v. Koehler, 707 F.2d 241 (6th Cir.1983), affirmed by an equally divided court, 466 U.S. 1, 104 S.Ct. 1673, 80 L.Ed.2d 1 (1984); Harless v. Anderson, 664 F.2d 610 (6th Cir.1981), rev’d on other grounds, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed. 2d 3 (1982). See also Rook v. Rice, 783 F.2d 401, 405 (4th Cir.), cert. denied, — U.S.-, 106 S.Ct. 3315, 92 L.Ed.2d 745 (1986); Davis v. Allsbrooks, 778 F.2d at 172-74 (considering nearly identical North Carolina instructions). Having found, beyond peradventure, that a mandatory presumption was utilized by the trial court in the case sub judiee, the inquiry now focuses on whether that presumption operated as an impermissible burden-shifting instruction under Sandstrom and Franklin. Obviously, any instruction which relieves the state of its burden of persuasion on the element of malice is unconstitutional, but Franklin specifically left open the issue of “whether a mandatory presumption that shifts only a burden of production to the defendant is consistent with the Due Process Clause ...” 105 S.Ct. at 1971 n. 3. The easy answer to this question can be garnered from the trial court’s instruction on second-degree murder. That instruction, without doubt, impermissibly shifted the burden of persuasion onto the defendant. It required the defendant to prove the absence of malice to the satisfaction of the jury. The state must bear the burden of proving malice in a first-degree murder conviction and it may not constitutionally shift the ultimate burden of disproving malice to the defendant. Even if this court assumes the jurors never reached the issue of second-degree murder because of their first-degree verdict, they obviously sat and listened to all of the instructions before they began their deliberations. The jury was never, at anytime in the court’s charge, properly instructed on the element of malice and the second-degree instruction was so clearly infirm that this court would be hard-pressed to find the error in that instruction did not fatally infect the first-degree instruction. See Franklin, 105 S.Ct. at 1974-76. Nonetheless, the court’s holding today need not and does not rest solely on this basis, for a detailed review of the effect of the trial court’s malice instruction on first-degree murder makes clear that the “implied in law” charge, standing alone, was constitutionally infirm. In this regard, the court is guided by the incisive analysis of Judge Phillips of the Fourth Circuit Court of Appeals as set forth in his concurring opinion in Davis v. Allsbrooks, 778 F.2d at 177-183. See also Rook v. Rice, 783 F.2d at 408-409 (Phillips, J., concurring in part and dissenting in part). In Davis, the Fourth Circuit considered a similar instruction to the one at bar in a first-degree murder case out of North Carolina. The trial court had instructed the jury: If the state proves beyond a reasonable doubt or it is admitted that the defendant intentionally killed [the victim] with a deadly weapon, ... the law implies first that the killing was unlawful, and second, that it was done with malice, (emphasis added). Petitioner in Davis asserted that this instruction unconstitutionally shifted the burden of persuasion to him in violation of Mullaney v. Wilbur, supra. The Fourth Circuit rejected this contention, holding that “a state may legitimately shift a burden of production on an element of the crime to the defendant, as North Carolina has done, so long as the presumed fact is rationally connected to a proven fact.” 778 F.2d at 172. In reviewing North Carolina law, just as the United States Supreme Court had reviewed Montana law in Sandstrom and Georgia law in Franklin, the Court of Appeals found that North Carolina intended, through the above instruction, only to shift that burden of production on the element of malice to the defendant, not the burden of persuasion. Id. As the North Carolina Supreme Court has explained: The effect of the presumption is to impose upon the defendant the burden of going forward with or producing some evidence of a lawful reason for the killing or an absence of malice; i.e., that the killing was done in self-defense or in the heat of passion upon sudden provocation. The state is not required to prove malice and unlawfulness unless there is some evidence of their non-existence, but once such evidence is presented, the state must prove these elements' beyond a reasonable doubt. (emphasis added). State v. Simpson, 303 N.C. 439, 451, 279 S.E.2d 542, 550 (1981). See also State v. Reynolds, 307 N.C. at 188-192, 297 S.E.2d at 535-537; State v. Patterson, 297 N.C. at 253-257, 254 S.E.2d at 608-611. However, since the Supreme Court has held that the “state court is not the final authority on the interpretation which a jury could have given the instruction,” Franklin, 105 S.Ct. at 1972 (emphasis added), the Fourth Circuit recognized that the reviewing court “must normally examine the trial court’s instructions to see what burden was actually shifted.” 778 F.2d at 172-73. Nonetheless, having stated the general rule, the Fourth Circuit found it unnecessary to “dissect” the trial court’s instructions because the question of malice was not contested at trial by the defendant. Accordingly, the Fourth Circuit decided only that the state law shifting the burden of production to the defendant was constitutional and held that the actual impact of the trial court’s instruction in Davis was irrelevant since the defendant had not even met his burden of production and, thus, there was “no danger [defendant] may have suffered from the failure to meet only the higher, unconstitutional requirements.” Id. at 173. See also Jeffries and Stephan, Defenses, Presumptions, and Burden of Proof in the Criminal Law, 88 Yale L.J. 1325, 1334 (1979) (A burden of production shift “has little, if any, impact on the substantive relation between the state and the criminal accused. Instead, placing the burden of production on the defendant is an economical way to screen out issues extraneous to the case at hand and thus to promote efficient litigation.”). Cf Note, Affirmative Defenses and Due Process: The Constitutionality of Placing a Burden of Persuasion on a Criminal Defendant, 64 Geo. L.J. 871, 885 and 893. As Judge Phillips’ concurring opinion in Davis recognizes, the old North Carolina first-degree murder instruction, as used by the trial court in this case and in Davis and Rook, “presents serious problems of reconciling the challenged instruction with Supreme Court decisions respecting the use of the type presumption it incorporated.” 778 F.2d at 177. The issue addressed by Davis and Rook was whether the state procedures which placed upon the defendant a burden of producing “some” evidence respecting the elements of the crime of murder, at peril of having invoked against him a mandatory presumption respecting those elements for use by the jury, is constitutional. Id. The Fourth Circuit has clearly answered in the affirmative, but application of this rule must, by its own terms, vary with the evidence presented in each case. Thus, as Judge Phillips suggests, a reviewing court must “understand [that] the total state procedural device within which the defendant’s production burden and the jury instruction reflecting whether the burden has been carried are interrelated elements.” Id. The court begins its analysis by looking at the instruction. As previously stated, the first-degree instruction in this case simply told the jury that if the jury was persuaded beyond a reasonable doubt that the defendant killed the victim intentionally with a deadly weapon, then it was “implied in law” that the killing was done with malice. Thus, a mandatory presumption was invoked requiring the jury find the elemental fact (malice) upon proof of the predicate fact (intentional killing with a deadly weapon). See 778 F.2d at 178 (citing County Court of Ulster County v. Allen, 442 U.S. at 157, 99 S.Ct. at 2224. Unmentioned to the jury is the legal basis for the invocation of this presumption; to-wit, that the defendant has failed to present even “some evidence” to rebut the presumed connection between the elemental and predicate facts. Id. Of course, the burden of production does not derive from the jury instruction itself, but rather is a “creature of state decisional law,” id, as the majority opinion in Davis established. What follows is a description of the operation of this procedural device as explained by Judge Phillips: Under North Carolina law, “malice” and “unlawfulness” are elements of the crime of murder in the second degree. The state, therefore, under Mullaney, has the burden of convincing the jury beyond a reasonable doubt of the existence of these two elements, along with the other elements of the crime. This is a burden of persuasion that remains throughout on the state. Nevertheless, to hold these elements fully in direct issue for jury resolution unaided by the presumption, a defendant has the burden of producing some evidence that tends to negate the existence of the elements. As to malice, this would be “some” evidence that any killing done was done “in the heat of passion on sudden provocation.” As to unlawfulness, it would be “some” evidence that any killing done was in self-defense. Failure to carry that production burden invokes the presumption, whose effect may then be submitted to the jury for use in deciding whether the elements of malice and unlawfulness have been proven beyond a reasonable doubt. These respective burdens are implemented in jury trials by the traditional device of instructions to the jury that define and submit the disputed factual issues that remain for resolution under controlling substantive principles and the appropriate burdens of persuasion. The first step in administering this jury control device therefore precedes any instruction to the jury about its fact-finding function. The judge first decides as a matter of law whether on all the evidence the defendant’s slight burden of production has been carried. If he determines that it has not been carried, he does not tell the jury this, he simply tells them that if the evidence before them (including of course the unremarked non-evidence of “heat of passion” or self-defense) persuades them beyond a reasonable doubt that the defendant killed intentionally with a déadly weapon, then they must also find that beyond a reasonable doubt he killed with malice and unlawfully (the “law presumes” the one from the other). Failure to carry that burden of production thus “raises” the presumption. On the other hand, if the judge determines that some evidence of heat of passion or self-defense has been adduced — that the burden of production has been carried — again he does not specifically tell the jury so. But because the effect is to “dissipate” (or prevent the invocation of) the mandatory presumption, he simply does not submit it for use by the jury in reaching a verdict. In this circumstance he may, however, in instructing the jury on the malice and unlawfulness elements, tell the jury that the evidence of intentional killing with a deadly weapon may, but need not, give rise to an inference of malice and unlawfulness as defined elements of the crime. See Hankerson, 220 S.E.2d at 589 (“mandatory presumption ... disappears but the logical inferences from the facts proved remain in the case to be weighed against [the rebutting] evidence”). 778 F.2d at 178-179 (emphasis added) (footnote omitted). Having described the operation of the state procedural device, Judge Phillips concluded that: ... several critical things about the device appear. First, and most important, is the fact that as judicially created this presumption is not intended to shift to a defendant any burden of persuasion. That however does not foreclose the possibility that by an erroneous instruction, or as a necessary consequence of a correct statement of the presumption, the burden of persuasion might be impermis-sibly shifted in a jury’s mind. Second, the practical effect of the device is to require a criminal defendant to do something more than merely stand on his “general issue” plea of not guilty in order to hold the state to its full ingoing burden of persuasion on all elements of the crime unaided by any compelled inference of “elemental fact” from proven “basic” fact. Third, proper administration of the device depends upon the trial judge’s accurate determination as to whether the defendant’s production burden has been carried — whether the defendant has produced at least “some” evidence to dissipate the putative presumption. If there is “some” evidence in a particular case but the trial judge erroneously determines that there is not, and on that basis submits the issue of malice and/or unlawfulness subject to the mandatory presumption, the effect would necessarily be to “curtail/] the [jury’s] freedom to assess the evidence independently, ” Allen, 442 U.S. at 156, 99 S.Ct. at 2224 (emphasis added), i.e., on the conflicting evidence alone. Such a specific trial error would presumably be of constitutional dimensions, and would be subject to free appellate review. Fourth, the presumption that finally effectuates the device has the flat effect of making proof of intentional killing with a deadly weapon in circumstances containing no suggestion of “heat of passion on sudden provocation” or of “self-defense” tantmount to proof of “malice” and “unlawfulness.” 778 F.2d at 179 (emphasis added). Given this setting, Judge Phillips found that determining the constitutionality of this procedure, in any given case, required the resolution of several independent but related inquiries: 1. whether the jury instruction, regardless of its intended effect, could actually and reasonably have been interpreted by the jury to place upon the defendant any burden of persuasion of disputed issues; 2. whether placing any burden of production upon the defendant at peril of his having invoked against him the mandatory presumption with respect to an element of the crime violates due process; 3. whether there existed any evidence that tended to negate the existence of malice, so that submitting the mandatory presumption in the case sub judice violated due process; and 4. whether the mandatory presumption is rational in terms of its compelled inference of elemental facts from predicate facts, in light of a defendant’s unmet burden of production. 778 F.2d at 179-180. As to the first question, Sandstrom and Franklin clearly indicate that where the presumed fact was an essential and fully disputed element of the crime, a mandatory presumption, which has the potential, by virtue of its form or context, for leading the jury reasonably to believe that because the law “implies” the essential fact from the predicate fact, this placed upon the defendant some burden to dissuade the jury of the essential fact, is unconstitutional. Franklin, 105 S.Ct. at 1975 and n. 8. (“The Court today holds that contradictory instructions as to intent — one of which imparts to the jury an unconstitutional understanding of the allocation of burdens of persuasion — create a reasonable likelihood that a juror understood the instructions in an unconstitutional manner, unless other language in the charge explains the infirm language sufficiently to eliminate the possibility. If such a reasonable possibility exists, ‘we have no way of knowing that [the defendant] was not convicted on the basis of the unconstitutional instruction.’ ”); Sandstrom, 442 U.S. at 526, 99 S.Ct. at 2460; Brooks v. Kemp, 762 F.2d at 1389. Like Judge Phillips, this court, upon considered review of the first-degree malice instruction, cannot discount the real possibility that a reasonable jury could have understood the instruction to create an unconstitutional presumption of malice. 778 F.2d at 180. See also Brooks v. Kemp, 762 F.2d at 1389. The instruction is indistinguishable, “in form of words standing alone ” from the presumption of intent in Sandstrom, 778 F.2d at 180, and certainly is no less objectionable than the instruction found infirm in Franklin which at least contained language instructing the jury that the presumption “may be rebutted.” See Davis v. Kemp, 752 F.2d 1517-1520. Thus, when the presumed fact is in issue, Sandstrom and Franklin establish that an instruction such as the one given in this case is impermissibly likely to shift the burden of persuasion to the defendant. The unequivocal language of the flawed aspect of the instruction could reasonably have led a juror to conclude that his job, with respect to the malice element, was over when he determined that the defendant had killed the victim with a deadly weapon, even where the defendant disputed the question of malice. Nowhere in the instruction is this ambiguity explained, contradicted, or even minimized. See fn. 12, supra. The jurors were never told that the presumption could be rebutted by the defendant’s simple presentation of “some” evidence nor even that it could be rebutted at all. See Sandstrom, 442 U.S. at 517, 99 S.Ct. at 2455. Of course, whether this same infirmity would accompany the use of such a presumption when its only effect is in relation to facts that had been taken out of dispute by a defendant’s failure to contest them is another matter entirely. On this point, the court agrees with the reasoning of Judge Phillips and the majority opinion in Davis that (1) the technical effect of a defendant’s failure to meet his production burden should be treated as comparable to a judicial admission or evidence that the defendant concedes the particular element of the crime; (2) the use of production burdens for the purpose of narrowing the issues in a criminal case is not per se unconstitutional; and (3) there is a rational and fundamentally fair basis for requiring a defendant to produce evidence of heat of passion provocation or self-defense in order to hold the elements of malice fully in issue in North Carolina murder prosecutions. 778 F.2d at 180-182. The problem in this case and what distinguishes it from the results reached in Davis and Book, is that evidence was clearly presented at trial which “tended to negate the existence of malice, so that submitting the mandatory presumption ... violated due process.” Id. at 180. The existence of malice was undoubtedly a disputed element at petitioner’s trial; in fact, it was the only seriously contested issue. There was conflicting evidence regarding whether Bush was provoked into his act of aggression by racial epithets of the victim — evidence which, if believed, would negate the element of malice. Petitioner testified at trial in support of his version of the killing and statements from his confession were introduced which, at least in part, corroborated his trial testimony. Although the court finds the credibility of Bush’s version of events, as it relates to the evidence pertaining to malice, susceptible of significant suspicion, that obviously is not the standard to be applied by the court in determining whether some evidence was tendered by the defendant which would negate the existence of the disputed element. As the North Carolina Supreme Court explicitly found, “[t]he defendant contends and we agree that there was some evidence justifying an instruction concerning heat of passion killing on sudden provocation and a resulting absence of malice. This being the case, any presumption of malice arising from a finding that the defendant intentionally inflicted the fatal wounds with a deadly weapon disappeared and the State was entitled to no presumption.” Bush (II), 307 N.C. at 162, 297 S.E.2d at 570. Accordingly, unlike the defendants in Davis and Rook, petitioner in this case did not admit or concede the presence of the element of the crime at issue in the defective jury instruction. Given the opposing inferences to be drawn from the evidence, this court has no alternative but to find, as did the North Carolina Supreme Court, that the challenged first-degree jury instruction embodied a mandatory presumption favoring the prosecution in respect of a disputed and essential element of the crime charged. Hence, it necessarily violated petitioner’s constitutional right to due process of law recognized in Mullaney, Sandstrom and Franklin, because the jury may reasonably have understood the instruction as shifting the burden of persuasion on the disputed malice issue to Bush. Rook v. Rice, 783 F.2d at 408 (Phillips, J., concurring in part). See also Griffin v. Martin, 785 F.2d 1172, 1177 (4th Cir.1986), reversed and vacated en banc by an equally divided court, 795 F.2d 22 (1986) (“... once some evidence has been produced ... the production of “some evidence” removed the presumption of malice, an essential element of the crime charged, from the case.”); Hyman v. Aiken, 777 F.2d 938, 940-41 (4th Cir.1985), judgment vacated on other grounds, — U.S.-, 106 S.Ct. 3327, 92 L.Ed.2d 734 (1986); Brooks v. Kemp, 762 F.2d at 1389-40; Davis v. Kemp, 752 F.2d at 1519-20; Engle v. Koehler, 707 F.2d at 244-45; Phillips v. Rose, 690 F.2d 79, 81-82 (6th Cir.1982); Mason v. Balkcom, 669 F.2d at 226. C. The burden-shifting error rendered by the “mandatory presumption” was not dissipated by other clarifying instructions of the trial court. Respondents argue that any error in the instructions generally and the first-degree instruction specifically was cured by the trial court’s general instructions on the presumption of innocence and proof beyond a reasonable doubt. This is the same argument that was expressly rejected by the Supreme Court in Franklin and Sand-strom. As the court noted, these general instructions are not rhetorically inconsistent with the existence of a burden-shifting presumption because a reasonable juror could have regarded the presumption on malice as “a means by which proof beyond a reasonable doubt ... could be satisfied.” Franklin, 105 S.Ct. at 1973; Sandstrom, 442 U.S. at 518-19 n. 7, 99 S.Ct. at 2456 n. 7. See also Brooks v. Kemp, 762 F.2d at 1390; Engle v. Koehler, 707 F.2d at 245; Phillips v. Rose, 690 F.2d at 81. Thus, in evaluating a circumstance such as the use of a deadly weapon, the jury may have presumed that absent rebuttal by the petitioner, this fact alone constituted proof beyond a reasonable doubt of malice. Davis v. Kemp, 752 F.2d at 1519; Engle v. Koehler, 707 F.2d at 245. Furthermore, although the offending words in the jury charge must be considered in the context of the instructions as a whole, 105 S.Ct. at 1971, the record in the case sub judice is utterly void of any other instruction which might explain the infirm language to the extent that any reasonable juror could not have considered the charge to have created an unconstitutional presumption. Rather, the opposite is true,