Page:United States Reports 502 OCT. TERM 1991.pdf/238

 502us1$$7H 08-21-96 15:22:22 PAGES OPINPGT

80

ESTELLE v. McGUIRE Opinion of O’Connor, J.

McGuire’s jury deliberated for three days before returning a verdict of guilty. Any evaluation of the jury instruction must be conducted against the background of Daisy McGuire’s surprise testimony and the dilemma it so clearly posed for the jury. In my view, the jury instruction on similar acts was so “ambiguous,” ante, at 72, that there was a reasonable likelihood that the jury was encouraged to make assumptions and conclusions about the identity of Tori’s murderer that relieved the State of having to prove that element of the offense beyond a reasonable doubt. In cases where the Court has found that jury instructions included mandatory presumptions inconsistent with the guarantees of the Due Process Clause, the Court has remanded to determine whether the erroneous instruction was harmless, which is the course that should be followed here. See, e. g., Sandstrom, supra, at 526–527; Rose v. Clark, 478 U. S. 570, 584 (1986); Carella v. California, 491 U. S. 263, 266–267 (1989) (per curiam).