Wansing v. Hargett

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 29 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

ROMAN PETE WANSING,

Petitioner-Appellant,

v. No. 01-7163

STEVE HARGETT, Warden; STATE
OF OKLAHOMA,

Respondents-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
(D.C. NO. 99-CV-645-P)

Roman Pete Wansing filed a pro se brief.

Madeline S. Cohen, Assistant Federal Public Defender (Michael G. Katz, Federal
Public Defender, and James P. Moran, Assistant Federal Public Defender, with
her on the briefs), Denver, Colorado, for Petitioner-Appellant.

Patrick T. Crawley, Assistant Attorney General (W.A. Drew Edmondson, Attorney
General of Oklahoma, with him on the brief), Oklahoma City, Oklahoma, for
Respondents-Appellees.

Before TACHA , Chief Judge, McWILLIAMS , and McCONNELL , Circuit
Judges.

McCONNELL , Circuit Judge.
 In the final scene of The Philadelphia Story , the late Katherine Hepburn

faces a room packed with wedding guests and calls off her impending marriage to

a man she has come to despise. She begins hesitantly and apologetically, showing

just how mortifying the experience must be, but gains in confidence as she speaks

– perhaps emboldened by the knowledge that a debonair Cary Grant and an earthy

Jimmy Stewart are waiting in the wings as possible replacements for the rejected

groom. The question in this case is whether the degree of certitude required to

cancel a wedding at the last minute provides so flawed an analogy to the degree

of certitude required to convict a defendant of manslaughter that a verdict

rendered by a jury under the influence of such an analogy must be overturned on

habeas review.

I. Background

On August 25, 1995, habeas petitioner Roman Pete Wansing, an Oklahoma

businessman, shot and killed former employee Tim Johnson. Mr. Johnson had

won the affections of Mr. Wansing’s ex-girlfriend, Anita Stagner, and obtained

control of Mr. Wansing’s pallet shop business, which was in Ms. Stagner’s name.

Mr. Wansing continued to pursue Ms. Stagner, demanding that both she and the

shop be returned to him. The feud escalated until the August 25 shooting, after

which Mr. Wansing was apprehended and charged with first-degree murder.

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 According to a prosecution eyewitness, Mr. Wansing pulled into a parking

lot less than a minute after Mr. Johnson. The two got out of their cars and

engaged in some apparently unheated conversation. Then Mr. Wansing went back

to his truck, pulled out a garbage bag concealing an assault rifle, and shot the

unsuspecting Mr. Johnson, who was just standing there until he tried at the last

minute to duck. According to Mr. Wansing’s version of the events, on several

occasions Mr. Johnson had assaulted and threatened to kill him, and on the day in

question chased him into the parking lot, repeating the threat. Confronted with

these conflicting stories, the jury convicted Mr. Wansing of first-degree

manslaughter.

This case hinges on the burden of proof applied by the jury in reaching its

verdict. Oklahoma law does not allow jury instructions as to the meaning of

“reasonable doubt.” See Smallwood v. State , 907 P.2d 217, 231 (Okla. Crim.

App. 1995). During voir dire, one prospective juror complained that he would

like more guidance as to the meaning of that standard. In response, the trial judge

made the following remarks:

We do not define reasonable doubt, and it is error to instruct
on a definition of reasonable doubt. This is not true in some other
jurisdictions. And if you all will accept my caution to you, that I in
no way intend to express or imply a definition of reasonable doubt,
or beyond reasonable doubt, I’ll tell you about an episode that I had
when I was a brand new lawyer.
I was in federal court, representing a guy who was charged
with kidnapping. And I heard the federal prosecutor define

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 reasonable doubt to the jury. And I checked on that later, and that
apparently was permissible at that time, in that federal jurisdiction.
And what she said was, reasonable doubt is the kind of serious doubt
that causes you to act or not act in matters that are serious, like
calling off a wedding at the last minute, after you’ve walked down
the aisle and are waiting on the other party or waiting on the best
man, or something like that, all of a sudden just saying, “No, it’s all
off, I’m not going to get married,” and just quitting right there after
all the announcements are out and the gifts have been received and
everybody’s all dressed up and sitting in church, and the minister’s
looking at you, and all of a sudden you walk out.
And I thought about that later, and I thought some people, if
they were considering their future happiness, and the seriousness
with which marital vows ought to be taken, would probably, if they
had the slightest bit of doubt, stop a wedding. Other persons might
think that they were absolutely going to live a life of misery, they’ve
made a terrible, bad decision, and they might drop dead of a heart
attack or stroke right there, because they were so nervous about the
wedding, and they thought it was a bad idea, but they still wouldn’t
walk out because of the embarrassment it would cause their mother
or their intended, and all the inconvenience and trouble everybody
had gone to. And they wouldn’t budge. They’d sit right there and
get married and say, “Well, if it doesn’t work out, I’ll get it annulled,
or I’ll get a divorce or something, but I’m not going to ruin this
party.” And, so, it didn’t matter.
The fact of the matter was, that reasonable doubt is a
subjective matter that has to be resolved by each person, and each
person in the individuality of his or her own conscience and reason.
And furthermore, it’s going to vary every case, because every case is
different. The facts and the evidence are always different.
So, Oklahoma takes the position that it’s wrong to tell you
what reasonable doubt is. Only you can decide what is reasonable, in
the light and under the circumstances of each individual case.
Because, after all, it is your reason that we rely on to decide the
evidentiary issues in the case. And, so, who are we to tell you what
is reasonable and what is not? That is wholly within your province.

(R., supp. vol. 7, at 41-43.)

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 Defense counsel immediately moved for a mistrial on the ground that the

anecdote misled the jury as to the nature of reasonable doubt. The motion was

denied, and after a three-day trial, the jury found the defendant guilty of

manslaughter. The jury received no further instructions on the meaning of the

reasonable doubt standard.

Petitioner raised his objection to the judge’s remarks on appeal to the

Oklahoma Court of Criminal Appeals (OCCA), contending that the judge’s

anecdote about the cancelled wedding misled the jury about the meaning of the

reasonable doubt standard, and thus violated his right to a fair trial. By a divided

vote, the OCCA affirmed the conviction. Wansing v. State , No. F 96-1307, at 1

(Okla. Crim. App. Feb. 25, 1998) (per curiam). The majority rejected Mr.

Wansing’s claim because it decided that the trial judge’s comments did not

constitute a definition of reasonable doubt. Id. at 2. The dissent objected that

there was a real possibility that the jury would take the story as providing a

definition: “[A]t the very least [the comments] created confusion in the minds of

the jurors. Were the jurors to use their own definition of the term as implied by

the jury instructions which did not define the term, or did reasonable doubt really

mean that doubt sufficient to abandon a betrothed at the altar?” Id. at 5.

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 After exhausting his state remedies, Mr. Wansing sought a writ of habeas

corpus in federal court, on several grounds. The district court denied his request,

and this Court granted a certificate of appealability on the issue of whether the

judge’s remarks violated Mr. Wansing’s right to a fair trial, as well as the issue of

his competence to stand trial. Petitioner has abandoned the competency claim,

leaving only the due process claim before us now. Because we are in the same

position with respect to the record as the district court, we review its adjudication

of that claim de novo, subject to any deference due to the OCCA under 28 U.S.C.

§ 2254. See Sallahdin v. Gibson , 275 F.3d 1211, 1222 (10th Cir. 2002);

Smallwood v. Gibson , 191 F.3d 1257, 1264 n.1 (10th Cir. 1999).

II. Section 2254(d) Deference

The Antiterrorism and Effective Death Penalty Act (AEDPA) forbids

federal courts from granting habeas relief on any claim “adjudicated on the merits

in State court proceedings” unless the state decision “was contrary to, or involved

an unreasonable application of, clearly established Federal law, as determined by

the Supreme Court of the United States,” or “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d).

In this case, it is far from clear whether the OCCA actually adjudicated

petitioner’s federal due process claim on the merits. According to the OCCA’s

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statement of the case, one of the issues on appeal was the claim that “[t]he trial

court deprived Mr. Wansing of a fair trial when he discussed what constituted

reasonable doubt.” Wansing , No. F 96-1307, at 1. The OCCA disposed of this

claim as follows:

The trial court expressly told the jury he was not defining reasonable
doubt when he discussed an illustrative example of the meaning of
the term. We find no reason to go behind the plain meaning of the
trial court’s words. See, Vaughn v. State , 697 P.2d 963, 966 (Okl.
Cr. 1985). The [claim in question] does not warrant relief.

Id. at 2. Mr. Wansing contends that the OCCA addressed only the issue of

whether the trial court “defined” reasonable doubt (which would be error under

Oklahoma law) and not the federal due process issue of whether the statement

misled the jury regarding the standard of proof.

Appellee (hereinafter “the State”) does not explicitly argue in its brief that

the OCCA addressed petitioner’s federal constitutional claim on the merits.

Rather, the State argues:

The finding by the Oklahoma Court of Criminal Appeals, that the trial
judge did not define “reasonable doubt” was a factual finding that is
presumed correct in this federal habeas corpus action. Petitioner has
wholly failed to overcome this presumption of correctness by any evidence,
much less, by clear and convincing evidence. Nevertheless, there being no
cases cited that stand for the proposition that the trial court in this case
defined “reasonable doubt” the state appellate court’s finding in this regard
is not contrary to, nor and [sic] unreasonable application of, firmly
established federal law as determined by the United States Supreme Court.
Similarly, the state appellate court’s decision cannot be said to have been
based on an unreasonable application of the facts in light of the evidence
presented in the State court proceeding. 28 U.S.C. §2254(d)(1).

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State Br. 3-4; see also id. at 8 (arguing that the OCCA’s “finding mooted

Petitioner’s claim that his federal due process rights were violated by the

purported definition”).

The State thus characterizes the OCCA’s opinion as a “factual finding” that

the trial court’s wedding story did not constitute a “definition” of reasonable

doubt, argues that this factual finding is uncontested and neither contrary to nor

an unreasonable application of Supreme Court precedent, and claims that it

“mooted” Petitioner’s federal constitutional claim. The problem with this

argument is that the federal constitutional question does not hinge on whether the

trial court’s statement did, or did not, amount to a “definition” of the term. The

federal constitutional right in question is the right to a “fair trial.” See, e.g. ,

Taylor v. Kentucky , 436 U.S. 478, 490 (1978) (“[R]efusal to give petitioner’s

requested instruction on the presumption of innocence resulted in a violation of

his right to a fair trial as guaranteed by the Due Process Clause of the Fourteenth

Amendment.”); Cupp v. Naughten , 414 U.S. 141, 145, 147 (1973). The “fact”

(even assuming it is a “fact” and not a conclusion of law) that the trial court did

not provide a “definition” of reasonable doubt is not inconsistent with the

possibility that the jury was misled in a way that made his trial unfair. Beyond

that, the State does not contend that the OCCA addressed Petitioner’s federal

claim on the merits.

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 It remains possible, however, that the OCCA discussion of state law

constitutes an implicit judgment on the federal issue. See Early v. Packer , 537

U.S. 3, 8 (2002) (per curiam); Cook v. McKune , 323 F.3d 825, 830-31 (10th Cir.

2003). Under Oklahoma law, it is error for a trial court to attempt to define

reasonable doubt. Smallwood , 907 P.2d at 231; Summers v. State , 704 P.2d 91, 92

(Okla. Crim. App. 1985). This is because Oklahoma has determined that such

definitions are more likely to confuse than to clarify the standard. See Romano v.

State , 909 P.2d 92, 124-25 (Okla. Crim. App. 1995); Smallwood , 907 P.2d at 231.

In Williams v. State , 572 P.2d 257, 259 (Okla. Crim. App. 1977), the court

explained that “‘reasonable doubt’ is self-explanatory, and . . . therefore

definitions thereof do not clarify the meaning of the phrase, but rather tend to

confuse the jury.” The underlying purpose of the rule – ensuring that the jury is

not misled – thus bears some resemblance to the federal constitutional inquiry.

Oklahoma appellate courts do not apply the “no definition” rule

mechanically – reversing if there was a definition and affirming if there was not.

Rather, even when the appellate court finds that the judge or prosecutor

improperly defined “reasonable doubt” for the jury, it will not reverse the

conviction unless it also finds that the definition misled the jury in a way that

“prejudiced the rights of the [defendant] or affected the verdict to his detriment.”

Johnson v. State , 632 P.2d 1231, 1233 (Okla. Crim. App. 1981); accord ,

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Summers , 704 P.2d at 92; Jones v. State , 554 P.2d 830, 835 (Okla. Crim. App.

1976). More significantly, at least in some cases, even when the appellate court

has concluded that a discussion of “reasonable doubt” by a trial judge or

prosecutor did not constitute a “definition,” the court has gone on to inquire

whether, even so, the discussion created an “erroneous impression,” Vaughn v.

State , 697 P.2d 963, 967 (Okla. Crim. App. 1985), or “prejudiced the rights of the

appellant,” Johnson , 632 P.2d at 1233. No Oklahoma opinion of which we are

aware avers that this is required by state law, but it is at least sometimes the

practice.

Indeed, the OCCA in this case cited one such decision, Vaughn , and

Vaughn cited another, Johnson . It is possible to construe the OCCA’s citation to

Vaughn as indicating that the court implicitly considered, and rejected, the

possibility that the trial court’s wedding story was unconstitutionally misleading

or prejudicial. If so, we would treat that implicit conclusion as “an adjudication

on the merits” of Mr. Wansing’s fair trial claim, despite its summary character.

This conclusion is bolstered by the fact that, as the State noted during oral

argument, the OCCA summarized the issue presented as whether “[t]he trial court

deprived Mr. Wansing of a fair trial when he discussed what constituted

reasonable doubt.” See Mitchell v. Gibson, 262 F.3d 1036, 1049-50 (10th Cir.

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2001) (deferring under § 2254(d) because the state court identified the federal

claim even though it explicitly resolved only a related state claim).

In light of our disposition in the next section, it is not essential to parse

more carefully whether the OCCA decision constituted an adjudication on the

merits. Instead, giving the OCCA decision “the benefit of the doubt,” Woodford

v. Visciotti , 537 U.S. 19, 24 (2002) (per curiam), we now proceed to the question

whether it was an unreasonable application of federal law, as articulated by the

Supreme Court, to uphold Mr. Wansing’s conviction.

III. The Merits of the Fair Trial Claim

As the Supreme Court has repeatedly emphasized, “[t]he reasonable-doubt

standard plays a vital role in the American scheme of criminal procedure .” In re

Winship , 397 U.S. 358, 363 (1970). Trial courts have considerable latitude in

determining how to convey the concept of reasonable doubt to the jury; the

constitutional requirement is only that “‘taken as a whole, the instructions [must]

correctly conve[y] the concept of reasonable doubt to the jury.” Victor v.

Nebraska , 511 U.S. 1, 5 (1994) (quoting Holland v. United States , 348 U.S. 121,

140 (1954)) (modifications in original). The question we must answer is whether

“there is a reasonable likelihood that the jury understood the instructions to allow

conviction based on proof insufficient to meet the [constitutional requirement].”

Id. at 6.

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 The leading Supreme Court cases regarding the definition of reasonable

doubt are Victor and Cage v. Louisiana , 498 U.S. 39 (1990) (per curiam). In

Cage , the Court disapproved an instruction that described reasonable doubt as

“such doubt as would give rise to a grave uncertainty” and “an actual substantial

doubt,” and said that the certainty required “is not an absolute or mathematical

certainty, but a moral certainty.” 498 U.S. at 40. The Court’s primary objection

was to the modifiers “grave” and “substantial,” which, in conjunction with the

reference to “moral certainty,” suggested a higher degree of doubt for acquittal

than the constitutional standard requires. Id. at 41. Later, Victor made it clear

that Cage was a narrow decision. The Court upheld two jury instructions with the

“moral certainty” and “substantial doubt” language, and explained that the Cage

instruction had been unconstitutional only because of the confluence of several

damning factors, notably the juxtaposition of the “grave uncertainty” language

with the “substantial doubt” language . Victor , 511 U.S. at 20. The Victor Court

also noted that Cage ’s formulation of the standard of review had been

disapproved. Id. at 6 (citing Estelle v. McGuire , 502 U.S. 62, 72 & n.4 (1991)).

In this case, the trial court expressly declined to provide a definition of

“reasonable doubt” for the jury, but told a story that contained a definition based

on an analogy to the doubt necessary to call off a wedding. The judge attributed

the definition to a “federal prosecutor” and informed the jury that the definition

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was “permissible at that time, in that federal jurisdiction.” The judge quoted the

prosecutor as equating reasonable doubt to “the kind of serious doubt that causes

you to act or not act in matters that are serious, like calling off a wedding at the

last minute.” The judge dwelt on certain details – reminiscent of The

Philadelphia Story – including the fact that the decision to call off the wedding

came “at the last minute, after you’ve walked down the aisle and are waiting on

the other party or waiting on the best man, or something like that, . . . after all the

announcements are out and the gifts have been received and everybody’s all

dressed up and sitting in church, and the minister’s looking at you, and all of a

sudden you walk out.” The judge pointed out the imprecision in that definition.

Some people might stop a wedding at “the slightest bit of doubt.” But others, he

said, might not call off a wedding even if they thought they were “absolutely

going to live a life of misery” and that the marriage was a “terrible, bad

decision.” The embarrassment and inconvenience to others would be too great.

They “wouldn’t budge.” (R., supp. vol. 7, at 41-42.)

We agree with the OCCA that the trial judge in this case was not attempting

to adopt that hypothetical interpretation as a definition of the reasonable doubt

standard, and so we presume that the jury did not take him to be providing that

definition. See Weeks v. Angelone , 528 U.S. 225, 234 (2000) (a jury is presumed

to follow its instructions and understand the judge’s answers to its questions).

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Furthermore, we recognize that the judge recounted the wedding-day standard of

reasonable doubt only to criticize it – a fact upon which the State heavily relies.

However, not every criticism of a mistaken standard is itself correct. The

judge did not go on to say that the range of standards that individuals might

derive from the wedding-day analogy is far broader than is constitutionally

permissible. Specifically, he did not say that the standard for acquittal employed

by the second group of people – those who “wouldn’t budge” – was

unconstitutionally high. Even granting that the jury did not take the wedding

analogy as a mandatory definition of reasonable doubt, the judge’s discourse

misleadingly suggested that they had a degree of leeway broader than the

Constitution permits.

That suggestion was immediately confirmed by the moral of the judge’s

story:

The fact of the matter was, that reasonable doubt
is a subjective matter that has to be resolved by each
person, and each person in the individuality of his or her
own conscience and reason. And furthermore, it’s going
to vary every case, because every case is different. ...
So, Oklahoma takes the position that it’s wrong to
tell you what reasonable doubt is. Only you can decide
what is reasonable, in the light and under the
circumstances of each individual case. Because, after
all, it is your reason that we rely on to decide the
evidentiary issues in the case. And, so, who are we to
tell you what is reasonable and what is not? That is
wholly within your province.

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(R., supp. vol. 7, at 42-43.) This summation informed the jury that attempted

definitions are not only ineffective but impermissible, not just because they might

be confusing, but because they are intrusions on the discretion of each juror to

make his or her own “subjective” determination of what is reasonable doubt.

As we see it, the problem is not that the jurors may have thought the judge

was endorsing the “wedding cancellation” definition. He made quite clear that he

disapproved of that definition. The problem is that the reasons the trial court

gave the jury for why the definition was flawed were themselves misleading. The

Oklahoma courts discourage providing a definition of reasonable doubt not

because the term has a broad range of meanings, or because jurors are entitled to

decide the meaning for themselves, but because the term is “self-explanatory.”

Williams, 572 P.2d at 259; Underwood v. State, 659 P.2d 948, 950 (Okla. Crim.

App. 1983). Some terms – like “game” in Wittgenstein’s celebrated example –

carry distinct meanings to ordinary speakers of the English language even though

they defy definition. See Ludwig Wittgenstein, Philosophical Investigations

paras. 66-78 (G.E.M. Anscombe trans., 3d ed. 1958). To provide a definition of

“reasonable doubt,” the Oklahoma courts have concluded, is more likely to

confuse the jury than to clarify its task. Williams, 572 P.2d at 259; Underwood,

659 P.2d at 950. The point is not that jurors should be unconstrained in their

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choice of meanings, but that they will be more effectually constrained by the

unadorned term “reasonable doubt” than by any conceivable definition.

The judge’s explanation, however, implied that there is an extraordinarily

broad range of possible meanings, including some which are plainly

unconstitutional, and informed the jurors that they had to resolve the definitional

issue for themselves, in the “individuality” of their own “conscience and reason.”

He thus subverted the “self-explanatory” character of the term and invited the jury

to treat as “reasonable doubt” everything from “the slightest bit of doubt” to a

stubborn refusal to budge even in the face of the strongest possible reasons, and

suggested that any attempt to cabin their definitionary discretion is an invasion of

their “province.” This created a “reasonable likelihood that the jury understood

the [remarks] to allow conviction” based on “a degree of proof below that

required by the Due Process Clause.” Victor, 511 U.S. at 6 (quoting Cage, 498

U.S. at 41). Furthermore, given the sweeping nature of the judge’s language, it

would have been unreasonable for the OCCA to conclude otherwise – especially

if it did so, as appears, solely because the remarks were not technically a

definition.

To be sure, the lack of a formal definition makes this case different from

Cage and Victor. Those cases also involved formal instructions given to the jury

prior to deliberation, not extemporaneous commentary during voir dire. However,

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nothing in their rationale turns on whether the misleading statements are properly

characterized as a definition or as instructions. Rather, the central question is the

substantive one: whether the jury was reasonably likely to think it could convict

using an improper standard. If it was, the OCCA could not reasonably refuse to

grant relief solely because the jury’s misimpression was caused by a different

kind of statement.

Differences in the timing and purpose of potentially misleading comments

are undoubtedly relevant in determining the likelihood that the comments

influenced the jury. But in this case, it seems beyond reasonable disagreement

that the remarks were influential. Although they occurred during voir dire, the

three-day trial was short enough that they would not be a distant memory when

the jury went to deliberate. And although the informality of voir dire might make

judicial comments during voir dire less influential than formal instructions, the

circumstances of this case suggest that the remarks were delivered at a

particularly potent time. The judge delivered the wedding story in direct response

to a potential juror’s question about the meaning of “reasonable doubt.” The

juror’s question highlighted to the entire jury pool the potential uncertainty in the

standard. It is likely that the jurors were particularly receptive to the guidance

they received at that time, when they were thinking about the issue and not

overburdened with other issues and other instructions. Indeed, when the

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prosecutor asked one prospective juror whether she could assess punishment

“providing that we prove them guilty beyond a reasonable doubt, and the evidence

is there,” the juror clarified, “In my own mind.” (R., supp. vol. 7, at 56.) This

shows that the lesson of the judge’s remarks had not been lost. Moreover,

because of the Oklahoma rule, the jury instructions included no correct definition

of “reasonable doubt” that might have dispelled the misleading impression the

jury received during voir dire.

The judge’s remarks made it reasonably likely that the jury would

overestimate the amount of latitude it had in defining the reasonable doubt

standard. His story, in combination with his emphasis on the subjective nature of

each juror’s decision regarding the meaning of the term, sent two unconstitutional

messages: (1) that the reasonable doubt standard comprises as broad a range of

burdens of proof as that suggested by the wedding analogy; and (2) that jurors

have discretion to make their own subjective determination as to what that

standard should be. We conclude that it would be an unreasonable application of

clearly established federal law, as interpreted in Cage and Victor, to uphold this

conviction.

Conclusion

The decision of the district court is therefore REVERSED and

REMANDED, with instructions to enter judgment granting Mr. Wansing’s

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petition for writ of habeas corpus unless the state retries him within a reasonable

time to be determined by the district court. Appellant’s motion to supplement the

record is granted.

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