No. 84-276
IN THE SUPREIllE COURT OF THE STATE OF MONTANA
1984
STATE OF MONTANA,
Plaintiff and Xespondent,
-vs-
JOHN LYNN LUCERO,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane G. Barz, Judge presiding.
COUNSEL OF RECORD:
For Appellant :
John L. Adams, Billings, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Harold Hanser, County Attorney, Billings, Montana
Klaus Richter, Deputy County Atty., Billings, Montana
Submitted on Briefs: Nov. 2, 1984
Decided: December 31, 1984
---- --
Clerk
Mr. Justice John C. Sheehy d.elivered t.he Opinion of the
Court.
Appellant John L . Lucero appeals f r ~ ma judgment of
conviction for burglary, $ 45-6-204, MCA, in the District
Court, Thirteenth Judicial District, Yellowstone County.
Lucero was convicted in a trial. by a jury and sentenced to
ten years in the Montana State Prison with two years
suspended.
Sometime between the hours of 8:30 p.m. on October 23,
1983 and 7:00 a.m. on October 24, 1983, Kon's Supermarket
located at 708 Rroadwater Street, Billings, Montana, was
entered by someone through a trap door on the roof of the
building. A safe that had been imbedded jn concrete and
.
which contained approximately $7,000 in cash, $17,000 in
checks and $1,000 in green stamps was forcibly uprooted and
remo~red through the back door of the premises. The manager,
Gordon McCann, arrived at 7:00 a.m., noticed that the
Courtesy Counter where the safe had been located was in
shambles and summoned the police. Officers found three cans
of beef jerky in the area of the Courtesy Counter; one can
had been partially emptied and was located on a shelf inside
the counter. The other two cans were in the area unopened.
Detectives lifted fingerprints from all three cans hu-t coul-d
only positive]-y identify two thumbprints from the opened can.
These thumbprints matched those of defendant-appellant
Lucero. No other fingerprint matching Lucero's or any other
suspicious fingerprints were found by the police during their
investjgation.
From September 17, 1983 to October 6, 1983, John Lucero
worked for George Maddox who operated a janitorial service
that was under contract to clean Kon ' s Supermarket. Lucero
worked at the Kon's store on Broadwater Street and had
occasion to be in the vicinity of the beef jerky display
while at work. Maddox fired Lucero on October 6, 1.983, about
17 days before the break-in, because his work performance was
unsatisfactory.
Rased on the fingerprint evidence, Lucero was arrested,
charged, and brought to trial on January 30, 1984. The jury
returned a verdict of guilty and Lucero was sentenced to a
term of 10 years in prison with two years suspended.
From inside the prison wal-1s Lucero personally filed a
notice of appeal, and a motion to proceed in forma pauperis.
Judge Ba.rz granted leave to proceed in forma pauperis.
Beca.use the appellant had become dissatisfied with his trial
counsel, Allen Beck, the court appointed John L. Adams to
represent Lucero on appeal.
Appellant raises five issues in his notice of appeal.
(1) Whether the judgment of conviction is void for
insufficient evidence to sustain the verdict where, as here,
the circumstantial evidence does not exclude every reasonable
hypothesj-s other than guilt?
(2) Whether prosecutorial- suppression of material
evidence favorable to the accused invalidates the judgment of
conviction?
(3) Whether the accused was deprived of his right to a
fair trial based on cumulative error?
(4) Whether judgment of conviction was obtained in
violation of the right of the accused to effective counsel
where, as here, defense counsel neither investigated nor
developed the affirmative defenses interposed by the accused
to counsel before trial and defense counsel consistently
committed shockingly prejudicial errors aga.inst the accused
at trial.?
(5) Whether the District Court erred a.s a matter of law
h 7 its improper instruct.ions given to the jury and by its
q
failure to fairly and properly instruct the jury?
Appellant's counsel deemed appellant's first four issues
C
to be without merit and did not argue them in his brief.
Appellant in his brief concentrated his argument on the fifth
issue which concerns the instructions to the jury. The State
only responded to that argument.
We consider five points of claimed error in the notice
of appeal even though appellant's appointed counsel. did not
argue four of them. Although we do not find that any of
appellant's first four points of error can he sustained, we
respect appellant's right in this case to raise such issues.
Appellant contends that there was insufficient evidence
as a matter of 1.aw to convict him. The law concerning
questions of sufficiency of: evidence is settled in Montana
and is aptly expressed in the following quote:
"As this Court has held many times over, the jury
is the fact finding body in our system of
jurisprudence, and its decision is controlling.
The jury is free to consider all the evidence
presented and to pick and choose which of the
witnesses it wishes to believe. If sufficient
testimony was introduced, as well as exhibits to
iustify the jury's findj-ngs, then its conclusions
will not he disturbed unless it is apparent there
was a clear misunderstanding by the jury or that
there was a misrepresentation made to the jury."
State v. Swazio (1977), 173 Mont. 440, 445, 568 ~ . 2 d124,
127; State v. Fitzpatrick (1973), 1 6 3 Mont- 2201 2261 516
The jury may pick and choose between contradictory
testimony or other evidence in reaching its conclusion. In
this case there was no direct conflict in the evidence but a
question of inferences to he drawn from circumstantial
evidence presented. The State's case hinged on the fact that
two of defendant's thumbprints were found on one can of beef
ierky left at the scene. Evidence was presented that tended
to show that it was unlikely but not impossible that the
defendant's fingerprints were placed on that particular can
of beef jerky while defendant worked as a janitor in the
store approximately 17 days before the break-in.
We stated in Fitzpatrick, supra, that to justify a
conviction in a case based solely on circumst.antia1 evidence,
the facts and circumstances must not only be entirely
consistent with the theory of guilt, but must be inconsistent
with any other rational (reasonable) conclusion. 3.63 Eont.
220, 225, 516 P.2d 605, 609.
Defendant's proposed jury instruction no. 2 was given by
the court as instruction no. 15. This instruction was an
accurate statement of the law as we set forth in Fitzpatrick.
It correctly stated that if the circumstantial evidence was
susceptible to two reasonable interpretations, one of which
points to the defendant's guilt and the other to his
innocence, it is the duty of the jury to adopt. the
interpretation which points to the defendant's innocence and
reject that interpretation which points to his guilt. We
must decide as a matter of law whether the jury totally
misunderstood this instruction or whether they acted
consistently with it.
From the evidence presented it is consistent for the
jury to have inferred that the defendant's thumbprints were
!-eft on the can of beef jerky during the night of burqlary.
The jury could have then concluded that the defendant had
illegally entered the store wjth the intent to commit a
criminal. offense therein. The circumstantial evidence is
consistent with the prosecution's theory of guilt.
The evidence is not inconsistent with the theory that
Appellant's thumbprints were left on the can of beef jerky
when he picked up the can in question during his employment
as a custodian. The question arises whether this is a
reasonable conclusion. We think it was within the provi~ce
of the jury to conclude it was not reasonable.
Mr. Kraft, the meat manager at Kon's, testified that he
restocked the beef jerky display twice, once on the 8th of
October and once on the 15th of October, 1983. He stated
that he put out a case (24 cans) of beef jerky each time he
stocked the display. The evidence tended to show that Lucero
would only have had reason to touch a can of beef ierky if he
disturbed the display while cl eanins. There was no
affirmative evidence offered as to whether Lucero did in fact
touch a can or cans of beef jerky during the course of his
employment or at any other time. We conclude that the jury
did not as a matter of law err in concluding that the
defendant's interpretation of the circumstantial evidence was
not a reasonable one.
Appellant contends that the prosecution suppressed
material evidence favorable to the accused. We have searched
the record and find no evidence that anything was suppressed.
It appears that both sides were able to adequately present
their evidence and theory of the case a-t trial.
Appellant contends that his convictjon should be
reversed based on cumulative error. Appellant does not point
to any instances of harmless error that could accumulate to
produce sufficient prejudice to warrant reversal.
Appellant's contention that he was not represented by
effective counsel at trial is without merit. We have
searched the record and are satisfied that Mr. Beck presented
an adequate defense. Counsel clearly presented appellant's
theory of the case. His cross-examination of prosecution
witnesses was aimed at eliciting discrepancies in their
testimony and drawing out evidence favorable to his client.
Appellant Lucero chose not to testify j.n his own behalf.
Such is his right. Counsel did not coerce the appellant to
make this election. Nowhere has it heen shown that counsel
for the appellant a.cted in such a manner as to deprive the
appellant of a fair trial.
Appellant contends the District Court gave the iury an
erroneous and clearly prejudicial instruction on the meaning
of "reasonable doubt." Defense counsel objected to the
instruction on the grounds that it was ambiguous and
confusing and it impermissibly shifted the burden of proof to
the appellant. Appellant alleges that instruction no. 6 as
given states the only way a reasonable doubt can be found in
the minds of the jury is if the doubt has foundation in fact
or testimony in evidence. Appellant contends the instruction
should clearly state that a reasonable doubt can arise from
lack of testj-mony or lack of evidence. Instruction no. 6
follows:
"You are instructed that the doubt which a juror is
a1.I.owed to retain in his mind and under the
influence of which he should form a verdict of not
guilty, must always he a reasonable one.
"A reasonable doubt is not such a doubt as a man
may start by questioning for the sake of a doubt,
nor a doubt suggested or surmised without
foundation in the facts or testimony. It is such
doubt as in a fair, reasonable effort to reach a
conclusion upon the evidence, using the mind in the
same manner as in other matters of the highest and
gravest importance, prevents the jury from coming
to a conclusion in which their minds rest
satisfied.
"If, in so using the mind and considering a11 the
evidence produced, it 1ead.s to a conclusion which
satisfied the judgment and leaves upon the mind a
settled conviction of the truth of the fact, it is
the duty of the jury to declare the fact by their
verdict.
"It is possible always to question any conclusion
derived from testimony, but such questioning is not
what is a reasonable doubt. A reasonable doubt
exists in that state of the case which, after the
entire comparison and consideration of all the
evidence leaves the minds of the jurors in that
condition that they cannot say that they feel an
abiding conviction to a moral certainty of the
truth of the charge.
"A doubt produced by undue sensibility in the mind
of any juror, in view of the consequences of his
verdict, is not a reasonable one, and a juror is
not allowed to create sources or materials of doubt
by resorting to trivial and fanciful suppositions
and remote conjectures as to a possible state of
facts differing from that established by the
evidence.
"Simply stated, a reasonable doubt is a doubt for
which there is a reason and the reason must be
founded upon the evidence received in the course of
the trial and not from any other source."
The State contends that because appellant did not submit
a jury instruction defining "reasonable doubt" he should be
barred from complaining about the State's instruction that
was given by the court. That rule applies, however, only
when the court fails to instruct on a. point of law. Rule 51,
K.R.Civ.P. The appellant clearly voiced his objection to the
instruction and stated his reasons with particularity. The
court, nonetheless, overruled the objection and made no
effort to strike, clarify or alter the instruction in
response to appellant's objection. We find that the
appellant preserved his assignnent of error. Rule 51,
The State argues that although instruction no. 6 d-id not
specifically mention tha.t a reasonable doubt could arise from
a lack of evidence the idea is impl.icit in the instruction.
Common sense reveals the message intended by the instruction.
The State further contends that the cumulative effect of al-1.
the jury instructions clearly conveys the legal meaning of
reasonable doubt. We disagree.
The jury instructions to which the State refers do not
clarify the meaning of "reasonable doubt." Instruction nos.
4, 5, 9, and 15 merely mention that the State has the burden
of proving the elements of the crime beyond a reasonable
doubt.
These instructions by their terms solicit reference to
instruction no. 6. The jury may have focused on instruction
no. 6 in order to apply the meaning of "reasonable doubt"
contained in the other jury instructi.ons.
Due process constitutionally mandates that the guilt of
the accused be proven beyond a reasonable doubt. In Re
Winship (1970), 397 U.S. 358, 90 S.Ct. 1068; 25 L.Ed..2d 368.
An ambiguous, erroneous or misleading jury instruction
defining reasonable doubt would deprive the accused of his
constitutional right to due process. See State v. Berberick
(1909), 38 Mont. 423, 100 P. 209.
Some states expressly disapprove of giving any
instruction that attempts to define reasonable doubt. They
consider the term "reasonable doubt" is clearly expressed by
the term itself, and attempts to elaborate on its plain
meaning tend to mislead and confuse. See Parnell 17. State
(Okla. 19821, 640 P.2d 568; State v. Douglas (1982), 640 P.2d
1.259; Bentley v. State (Wyo. 1972), 502 P.2d 203.
Oklahoma has held it is reversible error to give any
instruction defining reasonable doubt, Parnell, supra;
Fellows v. State (Okla. 1973), 5Q8 P.2d 1089. In the other
cases cited above, after expressing disapproval, the Courts
determined whether the instruction was misleading.
In the past, Montana courts have given an instruction
defining reasonable doubt. See Territory of Montana v.
McAndrews (1878), 3 Mont. 158; State v. Zorn (1935), 99 Mont.
63, 41 P.2d 513; State v. Phillips (1953), 127 Mont. 395, 264
P.2d 1009.
An instruction on reasonable doubt similar to the one we
are here considering was approved by this Court in State v.
DeLea (1908), 36 Mont. 531, 98 P. 814. Justice Henry C.
Smith commented however, on the impossibility of
satisfactorily defining "reasonable doubt," perhaps because
the words were so "ordinary and simple." He contended the
instruction was so laborious and technical that it really
confused a jury, conveyed to them the feeling that
common-sense words were twisted by the law into
technicalities, and led to verdicts which jurors would later
bl-ame, saying, "It was the only thing we could do under the
charge of the court."
We are convinced that the definition of reasonable doubt
given in past cases a~cl the instruction qiven here do not
help clarify the State's burden of proof but have a tendency
to confuse the jury. The well-crafted arguments of counsel
in this case further demonstrate that analysis of the
instruction is primarily an exercise in semantics. This
exercise invites appeal and does not serve the interests of
justice.
Recently, this Court received from the Commission on
District Courts a set of pattern jury instructions which the
Commission recommended for use in criminal cases in this
State. Its general instruction no. 1-004 contained a
d e f i n i t i o n of r e a s o n a b l e d o u b t . W e suggest f o r use i n f u t u r e
c r i m i n a l c a s e s t h a t i n s t r u c t i o n and no f u r t h e r e l a b o r a t i o n of
t h e d e f i n i t i o n would be needed. The p e r t i ~ e n tp a r t o f t h e
p a t t e r n imstruction follows:
" 3 . The S t a t e o f Mon.tana h a s t h e burden of p r o v i n g
t h e g u i l t of t h e d e f e n d a n t beyond a r e a s o n a b l e
d.oubt .
"4. Proof beyond a r e a s o n a b l e d o u b t i s proof of
such a c o n v i n c i n g c h a - r a c t e r t h a t a r e a s o n a b l e
p e r s o n would r e l y and a c t upon it i n t h e most
i m p o r t a n t of h i s own a f f a i r s . Beyond a r e a s o n a b l e
d o u b t d o e s n o t mean beyond any d o u b t o r beyond a
shadow of a d o u b t . "
W e b e l i e v e t h e i n s t r u c t i o n g i v e n i n t h e p r e s e n t c a s e was
m i s l e a d i n g b e c a u s e t h e j u r y was i n s t r u c t e d t h a t a r e a s o n a b l e
d o u b t c o u l d o n l y be surmised from t h e e v i d e n c e o r t e s t i m o n y
p r e s e n t e d a t t r i a l and n o t from any o t h e r s o u r c e . A lawyer
or one trained in the law may recognize that a lack of
e v i d e n c e o r a n i n s u f f i c i e n c y of e v i d e n c e p r e s e n t e d . a t t r i a l
may g i v e u s e t o a r e a s o n a b l e d o u b t b u t a j u r o r r e l y i n g on t h e
l e t t e r of this instruction may n o t . The e f f e c t of a iury
i n s t r u c t i o n i s d e t e r m i n e d by t h e way i n which a r e a s o n a b l e
i u r o r c o u l d have i n t e r p r e t e d i t , n o t by the s t a t e courts'
interpretation of i t s 1-egal i m p o r t . Sandstrom v . Montana
( 1 9 7 9 ) , 4 4 2 U.S. 510, 9 9 S.Ct. 2450, 6 1 L.Ed.2d 39. he j u r y
could reasonably interpret the instruction to mean that
a f f i r m a t i v e e v i d e n c e s u p p o r t i n g t h e a p p e l l - a n t ' s i n n o c e n c e was
required a s t h e b a s i s f o r a reasonable doubt. The e f f e c t i s
t o s h i f t t h e burden of proof t o t h e a p p e l l a n t and such i s n o t
c o n s t i t u t i o n a l l y permissible.
I n l i g h t of t h e quantum of evidence presented against
the appellant i n t h i s c a s e w e hold that i n s t r u c t i o n no. 6
d e p r i v e d t h e a p p e l l a n t of h i s r i g h t t o due p r o c e s s under t h e
1-aw. W e r e v e r s e t h e c o n v i c t i o n of t h e a p p e l l a n t a n d remand
t o t h e D i s t r i c t C o u r t f o r a new t r i a l . Reversed.
-
., >L~/.IL '$/kuL7
; Justice
1
W e Concur:
Chief J u s t l c e
Mr. Justice L. C. Gulbrandson, dissenting.
I respectfully dissent.
Court's instruction no. 6, defining reasonable doubt,
now disapproved by the majority, was, in substance,
formulated by Chief Justice Shaw of the Supreme Court of
Massachusetts in the case of Commonwealth v. Webster (1850),
5 Cush. 295, 52 Am.Dec 711.
The pertinent language of instruction no. 6, now found
to be offensive, was set forth word for word, and approved,
in Territory of Montana v.McAndrews (1878), 3 Mont. 158.
In the case of State v. De Lea (1908), 36 Mont. 531, 93
P. 81-4, the appellant made precisely the same attack used by
appellant here on the same Language and this Court affirmed
the use of the instruction with the following comment:
' [A doubt] always does, and of necessity
I
must, arise from a want of evidence, by
which we mean a want of sufficient
evidence; for in every criminal case
where there is a plea of not guilty, if
the state does not introduce any
evidence, the question of a reasonable
doubt never arises; for there is not a
court in the land but what under those
circumstances would peremptorily direct a
verdict of not guilty. But, if the state
does offer evidence sufficient in the
iudgment of the trial court to go to the
jury, then the jurors under their oaths
must consider such evidence, and such
evidence alone, in determining whether
the safeguard erected by the presumption
of innocence has been completely
destroyed. It is completely destroyed
when, and only when, the jurors can say
from the evidence introduced that they
feel an abiding conviction to a moral
certainty of the truth of the charge
against the accused. If the evidence
leads to a conclusion which satisfies the
judgment of the jurors, and leaves upon
their minds a settled conviction of the
truth of the charge, it is then their
duty to so declare by their verdict. But
in every such contested case their
consideration is directed to the evidence
introduced, and from that evidence they
must say whether they still retain a
reasonable doubt of the guilt of the
accused. It is in this sense that it is
said that a reasonable doubt is not a
doubt suggested or surmised without
foundation in facts or testimony. In
other words, the jurors may not predicate
a doubt upon street rumor, or facts not
in evidence, nor upon theories outside of
the record, which may he suggested by the
ingenuity of counsel, or upon a merciful
inclination to permit the accused to
escape, prompted by sympathy for him in
his apparently unequal contest with the
state." 36 Mont. at 540.
I would affirm the trial court on the authority of
State v. De Lea, supra, but as a second basis for affirmance,
I note that the appellant failed to offer an alternative
instruction on "reasonable doubt. I
' In State v. Schleining
(1965), 146 Mont. 1,13, 403 P.2d 625, 632, this Court stated:
"[Ilt is well-settled in this state that
if a party is not satisfied with an
instruction or instructions proposed to
be given, he must submit an instruction
which more fully covers the particular
matter, or he cannot be heard to
complain, unless the instruction given is
inherently wrong. " (Citations omitted. )
The fact that instruction no. 6 has been relied upon by
the trial courts of this state for seventy-six years since
the same attack was heard and rejected by this Court, leads
me to believe that the instruction as given was not
"inherently wrong," and., therefore the appellant should be
precluded from alleging prejudicial error where he failed to
offer an alternative instruction.
Regarding the effect of instruction no. 6, it is my
view that if the jury, after reading all the instructions
together, and considering all the evidence, determined that
the State had failed to produce enough evidence to meet its
burden, they would have concluded that there was a reasonable
doubt a s t o defendant's guilt, and would h a v e r e t u r n e d a
v e r d i c t of "not g u i l t y . "
It seems clear that the jury was not misled into
b e l i e v i n g t h a t somehow t h e b u r d e n o f p r o o f s h i f t e d from t h e
S t a t e t o t h e defendant, and t h e i n s t r u c t i o n s c e r t a i n l y d i d
n o t t a k e from t h e j u r y t h e c o n c e p t t h a t a l a c k o f e v i d e n c e
could g i v e rise t o a reasonable doubt.
I would a f f i r m .
I
Justice /