State v. Hines

BERDON, J.,

dissenting. I would reverse the defendant Hartley Hines’ conviction based upon the trial court’s incorrect instructions on the burden of proof, which violated his federal constitutional right that guilt be proven beyond a reasonable doubt and his right to counsel. I focus on two instructions given to the jury in this case in the context of explaining the state’s burden of proof as follows: “A reasonable doubt is not a capricious or a frivolous doubt, nor is it a doubt which is raised by the ingenuity of counsel or by a juror and unwarranted by the evidence, nor is it a doubt prompted by sympathy for the defendant. A reasonable doubt is a real doubt, an honest doubt, a doubt which has its foundation in the evidence offered in the case or the lack of evidence.”1 (Emphasis added.)

*821The defendant did not object to these instructions at the time of trial and I can fully understand the reason why he neglected to do so. Although we do not have official pattern instructions, in one unofficial treatise on jury instructions both of those definitions are recommended with respect to the reasonable doubt instructions. D. Borden & L. Orland, 5 Connecticut Practice Series: Criminal Jury Instructions (1986) § 2.9. Furthermore, our appellate courts have continuously rejected these claims.2 Nevertheless, the defendant argues on appeal that these jury instructions implicate his constitutional right that guilt be proven beyond a reasonable doubt and his right to counsel, and, therefore, they are reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or under the “plain error” *822rale of Practice Book § 4061. See State v. Findlay, 198 Conn. 328, 345, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986). I agree with the defendant.

In order to put in proper perspective the requirement of proving a defendant’s guilt in a criminal case beyond a reasonable doubt, I commence with a review of the “vital role [it plays] in the American scheme of criminal procedure.” In re Winship, 397 U.S. 358, 363, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). The United States Supreme Court explained that “[d]ue process commands that no man shall lose his liberty unless the Government has borne the burden of . . . convincing the factfinder [beyond a reasonable doubt] of his guilt.” (Internal quotation marks omitted.) Id., 364; see also Jackson v. Virginia, 443 U.S. 307, 313-16, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) (proof beyond reasonable doubt must be established for every element of crime charged). This requirement “dates at least from our early years as a Nation”; In re Winship supra, 361; and “is'a prime instrument for reducing the risk of convictions resting on factual error.” Id., 363. “Our democracy rests in no small part on our faith in the ability of the criminal justice system to separate those who are guilty from those who are not. This is a faith which springs fundamentally from the requirement that unless guilt is established beyond all reasonable doubt, the accused shall go free.” Victor v. Nebraska, 511 U.S. 1, 28, 114 S. Ct. 1239, 127 L. Ed. 2d 583 (1994) (Blackmun, J., concurring and dissenting).

“Because our system entrusts the jury with the primary responsibility of implementing the substantive protections promised by the reasonable doubt standard, reasonable doubt jury instructions which appropriately convey [In re Winship] concepts are critical to the constitutionality of a conviction. See, e.g., Cage v. Louisiana, 498 U.S. 39, 111 S. Ct. 328, 112 L. Ed. 2d 339 *823(1990).” United States v. Doyle, 130 F.3d 523, 535 (2d Cir. 1997). “To be a meaningful safeguard, the reasonable-doubt standard must have a tangible meaning that is capable of being understood by those who are required to apply it. It must be stated accurately and with the precision owed to those whose liberty or life is at risk. Because of the extraordinarily high stakes in criminal trials, [i]t is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.” Victor v. Nebraska, supra, 511 U.S. 29 (Blackmun, J., concurring and dissenting).

In United States v. Doyle, supra, 130 F.3d 533, the Second Circuit Court of Appeals held that the instruction “you must keep in mind that those rules of law [presumption of innocence and proving guilt beyond a reasonable doubt] are designed to protect the innocent and not the guilty” — violated the defendant’s federal constitutional right. What the Second Circuit stated in Doyle, with respect to the presumption of innocence and guilt beyond a reasonable doubt as they relate to the jury instruction that those rules are designed to protect the innocent and not the guilty, is equally applicable to this case. “A natural inclination of some jurors may be to assume that, because the defendant has been selected for prosecution, he must be guilty. One of the greatest responsibilities of the trial judge is her duty to overcome that inclination by impressing upon the jury the importance of the presumption of innocence and of the Government’s burden to prove guilt beyond a reasonable doubt. See Holbrook v. Flynn, 475 U.S. 560, 567-68, 106 S. Ct. 1340, 1345, 89 L. Ed. 2d 525 (1986) (both defense counsel and the trial judge have the responsibility diligently to impress upon jurors [t]he need to presume the defendant’s innocence); [United States v. Birbal, 62 F.3d 456, 462-63 (2d Cir. 1995)] (Since [In re Winship], few elements of due process *824have been clearer than the necessity of informing the jury that, to convict, it must find each defendant guilty beyond a reasonable doubt of every element charged.). ... In order to reduce [the risk of factual error and unjust convictions] . . . the jurors must be made to see that the case against the defendant begins as a tabula rasa, a slate upon which may be written only such marks as derive from the evidence admitted at trial.” (Citations omitted; internal quotation marks omitted.) United States v. Doyle, supra, 538-39.

The Second Circuit Court of Appeals went on to explain in Doyle that “[u]nless and until the Government meets its burden of proof beyond a reasonable doubt, the presumption of innocence remains with the accused regardless of the fact that he has been charged with the crime, regardless of what is said about him at trial, regardless of whether the jurors believe that he is likely guilty, regardless of whether he is actually guilty. The presumption attaches to those who are actually innocent and to those who are actually guilty alike throughout all stages of the trial and deliberations unless and until that burden is met. A jury charge which implies otherwise creates a serious risk of undermining that vital protection.” Id., 539.

First, in my view the trial court’s reference in the present case to “a reasonable doubt is a real doubt,” impermissibly dilutes the requirement that the state prove its case beyond a reasonable doubt, and cannot pass constitutional muster. Both a common understanding and a dictionary definition of “real” is “not illusory: indubitable, unquestionable” and “not merely verbal or formal: significant,” which is, in essence, “substantial”; Webster’s Third New International Dictionary (1986); or, at the very least, a “high likelihood.” United States v. Nickens, 955 F.2d 112, 120 n.4 (1st Cir.), cert. denied, 506 U.S. 835, 113 S. Ct. 108, 121 L. Ed. 2d 66 (1992). In other words, the jury could reasonably have concluded *825from the instructions in this case that a real doubt is one which is either a substantial doubt or a high likelihood of doubt. In Cage, the Supreme Court of the United States summarily reversed a conviction in which the trial court equated reasonable doubt to a “substantial doubt,” holding that “substantial” as “commonly understood, suggest [s] a higher degree of doubt than is required for acquittal under the reasonable-doubt standard.” Cage v. Louisiana, supra, 498 U.S. 41;3 see Victor v. Nebraska, supra, 511 U.S. 5-6; Sullivan v. Louisiana, 508 U.S. 275, 278, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993). Justice Marshall, in Adams v. South Carolina, 464 U.S. 1023, 1025, 104 S. Ct. 558, 78 L. Ed. 2d 730 (1983) (joined by Brennan, J., dissenting from denial of certiorari), cogently pointed out that “[w]hen a criminal defendant is convicted by proof beyond a strong or substantial doubt, that defendant has not been afforded the full protections of the Federal Constitution. Moreover, when a jury is told that a reasonable doubt is a doubt that can be articulated, the prosecutor’s burden of proof is unconstitutionally eased.”4 That is why federal appellate courts have uniformly criticized jury instructions that define reasonable doubt as “ ‘a substantial doubt, a real doubt.’ ” Taylor v. Kentucky, 436 U.S. 478, 488, 98 S. Ct. 1930, 56 L. Ed. 2d 468.5

*826The First Circuit Court of Appeals has explained that “equating reasonable doubt with a real doubt reduces the government’s burden [of proof] because in common parlance, to have a ‘real doubt’ is to think there is a high likelihood of error. To find a reasonable doubt, however, such a likelihood of error is not required.” United States v. Nickens, supra, 955 F.2d 120 n.4. In this case, the instruction that the doubt of innocence of the accused must be “real” or “substantial” dilutes the presumption of innocence no less than an instruction that the law is meant to protect the innocent and not the guilty. The threshold of the reasonable doubt standard is impermissibly raised beyond that which is allowed by In re Winship.

Second, I also believe that the trial court incorrectly instructed the jury that a reasonable doubt is not one *827“raised by the ingenuity of counsel . . . and unwarranted by the evidence.” This court recently stated that it agreed “that the phrase ‘ingenuity of counsel’ . . . could misdirect the jury’s attention,” and that “trial courts [should] avoid its further use.” State v. Taylor, 239 Conn. 481, 504, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997); see United States v. Glenn, 828 F.2d 855, 861 (1st Cir. 1987). Indeed, such an instruction “provides an incorrect inference: all defenses rely to a great extent on the ‘ingenuity of counsel.’ ” United States v. Glantz, 847 F.2d 1, 11 (1st Cir. 1988). Accordingly, the denigration of the theory of defense by referring to the ingenuity of counsel has the effect of unconstitutionally easing the state’s burden of proof.

Moreover, the combination of the “real doubt” and the “ingenuity of counsel” instructions, within the framework of the only two paragraphs defining reasonable doubt in the trial court’s charge here; see footnote 1; severely undermines the presumption of innocence and further impermissibly lessens the state’s burden of proof. It is as if the trial judge stated to the jury— “remember, there must be a substantial doubt in favor of the accused’s innocence” — and added for good measure — “don’t let the defense ‘pull the wool over [your] eyes.’ ” See T. Haliburton, The Clock Maker (1839); see also United States v. Friedman, 909 F.2d 705, 708 (2d Cir. 1990) (while reversing defendant’s conviction, Court of Appeals noted that District Court had sustained defendant’s objection to prosecutor’s reference to pulling wool down over eyes of jurors); United States v. Resto, 824 F.2d 210, 212 (2d Cir. 1987) (prosecutor’s reference in closing statements that defense tried to pull wool over jurors’ eyes was improper and trial court properly reprimanded prosecutor for making it).

Furthermore, I also believe that the “ingenuity of counsel” instruction infringes upon an accused’s right *828to counsel. This jury instruction must be viewed in the context that it is given to the jury — that is, after all the evidence has been presented and the state and defense counsel have made their final arguments. It is the last word before the jury begins its deliberation and from the jurors’ perspective it must have relevance to the case — otherwise the judge would not have instructed the jury on the issue. The jury could reasonably interpret the “ingenuity of counsel” instruction as an admonition — do not let defense counsel’s (not the state’s attorney) trial tactics detract you from the truth— thereby implying (1) that defense counsel improperly employed trial tactics and (2) that the truth would require a guilty finding. The “ingenuity of counsel” instruction, therefore, in the eyes of the jury, serves only to disparage the efforts of defense counsel, and by implication, the defense theory of the case.

Because of the constitutional deficiencies in the reasonable doubt instruction in this case, the defendant is entitled to a new trial. In Sullivan v. Louisiana, supra, 508 U.S. 279, Justice Scalia, writing for a unanimous court with respect to identical jury instructions that caused reversal in Cage v. Louisiana, supra, 498 U.S. 40,6 which included “substantial doubt,” held that a reversal was required as a matter of constitutional law. He explained that “[although most constitutional errors have been held amenable to harmless-error analysis . . . some will always invalidate the conviction. . . . The question in the present case is to which category the present error belongs. Chapman [v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)] itself suggests the answer. Consistent with the jury-trial guarantee, the question it instructs the reviewing court to consider is not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict *829in the case at hand. See [id., 24] (analyzing effect of error on ‘verdict obtained’).” (Citations omitted.) Sullivan v. Louisiana, supra, 279.

Justice Scalia continued in Sullivan that “[h] armless-error review looks, we have said, to the basis on which ‘the jury actually rested its verdict.’ Yates v. Evatt, 500 U.S. 391, 404 [111 S. Ct. 1884, 114 L. Ed. 2d 432] (1991) .... The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fact rendered — no matter how inescapable the findings to support that verdict might be — would violate the jury-trial guarantee. See Rose v. Clark, 478 U.S. 570, 578 [106 S. Ct. 3101, 92 L. Ed. 2d 460] (1986); id., [593] (Blackmun, J., dissenting); Pope v. Illinois, 481 U.S. 497, 509-10 [107 S. Ct. 1918, 95 L. Ed. 2d 439] (1987) (Stevens, J., dissenting).

“Once the proper role of an appellate court engaged in the Chapman inquiry is understood, the illogic of harmless-error review in the present case becomes evident. Since, for the reasons described above, there has been no jury verdict within the meaning of the Sixth Amendment, the entire premise of Chapman review is simply absent. There being no jury verdict of guilty-beyond-a-reasonable-doubt,7 the question whether the same verdict of guilty-beyond-a-reasonable-doubt would have been rendered absent the constitutional error is utterly meaningless. There is no object, so to speak, upon which harmless-error scrutiny can operate. The most an appellate court can conclude is that a jury *830would surely have found [the] petitioner guilty beyond a reasonable doubt — not that the jury’s actual finding of guilty beyond a reasonable doubt would surely not have been different absent the constitutional error. That is not enough. See Yates [v. Evatt, supra, 500 U.S. 413-14] (Scalia, J., concurring in part and concurring in judgment). The Sixth Amendment requires more than appellate speculation about a hypothetical jury’s action, or else directed verdicts for the State would be sustainable on appeal; it requires an actual jury finding of guilty. See Bollenbach v. United States, 326 U.S. 607, 614 [66 S. Ct. 402, 90 L. Ed. 350] (1946).” Sullivan v. Louisiana, supra, 508 U.S. 279-80.

Accordingly, the Supreme Court in Sullivan refused to employ a harmless error analysis,8 and we likewise should refuse to do so in this case. Although Justice Rehnquist in his concurring opinion in Sullivan employed a less sweeping analysis as to why harmless error is inappropriate, he agreed with respect to the reasonable doubt instruction. “A constitutionally deficient reasonable-doubt instruction will always result in *831the absence of ‘beyond a reasonable doubt’ jury findings. That being the case, I agree that harmless-error analysis cannot be applied in the case of a defective reasonable-doubt instruction consistent with the Sixth Amendment’s jury-trial guarantee.” Id., 285 (Rehnquist, J., concurring).

Nevertheless, even if we were to employ a form of harmless error analysis as the court seems to have done in United States v. Doyle, supra, 130 F.3d 535-39, I would come to the same conclusion that the defendant is entitled to a new trial. In Doyle, unlike this case, the jury instructions were appropriately worded on the burden of proof in another part of the charge. The Second Circuit Court of Appeals stated that “[w]hile th[e] final section of the [trial] court’s instructions was undoubtedly more appropriately worded than was [the trial court’s] reference to guilty defendants, [it] nevertheless agree [d] with Judge Frank’s remark in his [United States v. Farina, 184 F.2d 18, 21 (2d Cir. 1950)] dissent: ‘What influences juries, courts seldom know.’ . . . We cannot be sure whether [the defendants’] jury actually misunderstood its obligations under the presumption of innocence and the reasonable doubt standard.” United States v. Doyle, supra, 539.

The Second Circuit further explained in Doyle that it “need only determine whether there is a reasonable likelihood, even if less than a probability, that the juiy misunderstood these principles of law. As discussed above, we are persuaded that the charge in its entirety created more than a possibility of jury misinterpretation and risked the factual error and unjust conviction against which [In re Winship] warned. We therefore hold that it created a reasonable likelihood that the jury misunderstood the reasonable doubt standard and the presumption of innocence.” Id.

I would, therefore, reverse and remand this case for a new trial, “with the expectation that [this court is] *832not likely again to see this ill-advised language included in instructions given by [trial courts].” Id., 539-40.

Finally, the court today adopts and modifies certain rules of evidence that continue to lead us down a dangerous path that allows convictions to be based upon hearsay evidence — evidence not subject to the time-honored test of cross-examination. The majority does so under the guise that such statements are admissible “to affect credibility only and not to establish the truth of the statement” and the jury is instructed accordingly. To believe that the jury, untrained in the law, is able to limit their consideration of the hearsay evidence to credibility and not accept it for substantive purposes is to live — like Don Quixote — in a dream world. Nevertheless, for obvious reasons I do not reach the evidential ruling.

Accordingly, I dissent.

The trial court’s entire instruction on reasonable doubt in this case was as follows: “The burden of proving his guilt beyond a reasonable doubt requires the state to produce sufficient evidence to create in your minds a strong and abiding conviction of the guilt of the defendant. In other words, it is the law that the evidence must be so sufficient that it would leave no room in your minds for any reasonable hypothesis of the innocence of the accused. Proof of guilt beyond a reasonable doubt must exclude every reasonable supposition of innocence, but it need not exclude every possible *821supposition of innocence. A reasonable doubt is not a doubt raised by one who questions for the sake of raising a doubt. A reasonable doubt is not a surmise, or speculation, or conjecture, or an imaginary doubt. A reasonable doubt is not a capricious or a frivolous doubt, nor is it a doubt which is raised by the ingenuity of counsel or by a juror and unwarranted by the evidence, nor is it a doubt prompted by sympathy for the defendant. A reasonable doubt is a real doubt, an honest doubt, a doubt which has its foundation in the evidence offered in the case or the lack of evidence.

“Absolute certainty in the affairs of life is almost never attainable, and the law does not require absolute certainty to authorize a conviction. What it does require is that the guilt be established as charged beyond a reasonable doubt which is one founded upon the evidence or lack of evidence. A reasonable doubt, is a doubt which would cause you as reasonable and prudent men and women to hesitate to act in the more weighty and important matters relating to your own affairs. Proof beyond a reasonable doubt is proof wholly consistent with the defendant’s guilt and inconsistent with any other rational conclusion.”

See, e.g., State v. Small, 242 Conn. 93, 113-15, 700 A.2d 617 (1997); State v. Taylor, 239 Conn. 481, 504-505, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1977); State v. Findlay, 198 Conn. 328, 345-48, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986); State v. Lopez, 37 Conn. App. 509, 513-15, 657 A.2d 647, cert. denied, 234 Conn. 902, 660 A.2d 858 (1995); State v. Payne, 31 Conn. App. 370, 379-80, 625 A.2d 231, cert. denied, 227 Conn. 901, 630 A.2d 73 (1993); State v. Harvey, 27 Conn. App. 171, 192-94, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992); State v. Lamme, 19 Conn. App. 594, 607, 563 A.2d 1372 (1989), aff’d, 216 Conn. 172, 579 A.2d 484 (1990).

In Cage, the Supreme Court found objectionable the following references in the trial court’s reasonable doubt instruction: “ ‘It must be such doubt as would give rise to a grave uncertainty,’ ” “ ‘[i]t is an actual substantial doubt,’ ” and “ ‘a moral certainty.’ ” Cage v. Louisiana, supra, 498 U.S. 40.

“ ‘ “Reasonable” and “substantial” are not synonymous, as can be seen by referring to any of the standard dictionaries [or by considering the following hypothetical]. . . . [I]f one had to undergo a serious operation and were querying the doctor as to the prospects for a successful outcome, how differently [would the person feel] if the doctor told him there was only a reasonable chance of success as opposed to being told there was a substantial chance of success[?]’ ” United States v. Atkins, 487 F.2d 257, 260 n.2 (8th Cir. 1973), quoting State v. Davis, 482 S.W.2d 486, 490 (Mo. 1972) (Seiler, J., concurring in result).

Most of the federal appellate circuits have criticized jury instructions that define reasonable doubt as a substantial doubt. See, e.g., United States *826v. Nickens, supra, 955 F.2d 120 n.4; United States v. Polan, 970 F.2d 1280, 1286 (3d Cir. 1992), cert. denied, 507 U.S. 953, 113 S. Ct 1367, 122 L. Ed. 2d 745 (1993) (“we do not necessarily recommend the future use of the terms [‘an honest doubt,’ and ‘not a fanciful doubt’] challenged in the present appeal”); Smith v. Bordenkircher, 718 F.2d 1273, 1276 (4th Cir. 1983) (“[w]e share [the] generally disapproving view” of other appellate courts of equating reasonable doubt with good and substantial doubt); United States v. Muckenstrum, 515 F.2d 568, 571 (5th Cir.), cert. denied, 423 U.S. 1032, 96 S. Ct. 564, 46 L. Ed. 2d 406 (1975) (instruction that doubt must be substantial “would better be left unsaid”); United States v. Alvero, 470 F.2d 981, 982-83 (5th Cir. 1972) (court reversed conviction because trial court defined reasonable doubt, in part, as “ ‘any substantial reasonable doubt, common, ordinary horsesense doubt. ... A very substantial doubt . . . .’ ”); United States v. Wright, 542 F.2d 975, 988 (7th Cir. 1976), cert. denied, 429 U.S. 1073, 97 S. Ct. 810, 50 L. Ed. 2d 790 (1977) (any court including substantial doubt language in its reasonable doubt instruction “can reasonably expect reversal”); United States v. Atkins, 487 F.2d 257, 260 (8th Cir. 1973) (“[p]roof of guilt beyond a reasonable doubt would seem to require a greater evidentiary showing by the Government than proof of guilt beyond a substantial doubt”); Monk v. Zelez, 901 F.2d 885, 890 (10th Cir. 1990) (“a jury instruction that utilizes substantial doubt language can and will require reversal unless it can be concluded beyond a reasonable doubt that the jury was not misled by this instruction”); Harvell v. Nagle, 58 F.3d 1541, 1543 (11th Cir. 1995), cert. denied, 517 U.S. 1225, 116 S. Ct. 1859, 134 L. Ed. 2d 958 (1996) (“use of the term ‘actual and substantial doubt’ is somewhat problematic and perhaps even ill-advised”).

See footnote 3 of this dissent.

“[W]here the instructional error consists of a misdescription of the burden of proof, [it] vitiates all the jury’s findings.” Sullivan v. Louisiana, supra, 508 U.S. 281.

“Another mode of analysis leads to the same conclusion that harmless-error analysis does not apply: In [Arizona v. Fulminante, 499 U.S. 279, 309, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991)], we distinguished between, on the one hand, structural defects in the constitution of the trial mechanism, which defy analysis by harmless-error standards . . . and, on the other hand, trial errors which occur during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented, id., [307-308]. Denial of the right to a jury verdict of guilt beyond a reasonable doubt is certainly an error of the former sort, the jury guarantee being a basic protectio[n] whose precise effects are unmeasurable, but without which a criminal trial cannot reliably serve its function, Rose [v. Clark, supra, 478 U.S. 577], The right to trial by jury reflects, we have said, a profound judgment about the way in which law should be enforced and justice administered. Duncan v. Louisiana, [391 U.S. 145, 155, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968)]. The deprivation of that right, with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as structural error.” (Citation omitted; internal quotation marks omitted.) Sullivan v. Louisiana, supra, 508 U.S. 281-82.