Savoy v. State

HARRELL, J., dissenting, in which BATTAGLIA, J., joins.

I dissent. The Majority opinion takes great lengths to establish a framework within which to review unpreserved errors in a jury instruction context. Although the framework is accurate, it is applied in a conclusory and flawed manner to the circumstances of the present case.

The Majority opinion recognizes that a jury instruction may contain “troublesome language,” so long as, “taken as a whole, the instructions correctly convey the concept of reasonable doubt to the jury.” Victor v. Nebraska, 511 U.S. 1, 22 , 114 S.Ct. 1239, 1251 , 127 L.Ed.2d 583, 601 (1994). Despite cognizance of this cautionary Supreme Court precept, the Majority opinion focuses almost solely on two problematic phrases in *257 the instruction under scrutiny in the present case, finding solace in the fact that the Court of Special Appeals in Himple v. State, 101 Md.App. 579 , 647 A.2d 1240 (1994), considered “virtually identical” language and concluded that the instruction was deficient constitutionally. The trouble is that the Himple Court did not rely on or even cite Victor , let alone view the jury instructions in that case as a contextual whole. Thus, in the final analysis, the Majority opinion here does not practice what it preaches, instead averting its glance (with Himple-glazed eyes) from the present instruction viewed in its entirety.

I conclude that the judgment of the Court of Special Appeals in Savoy’s case should be affirmed. Because the error in the subject jury instruction was not plain and material (i.e., not deficient constitutionally), Petitioner was required to object contemporaneously at trial to preserve his appellate challenge. He did not. Therefore, the error in the jury instruction is ineligible for discretionary review by an appellate court, and a new trial is unfounded.

I. The Majority Opinion’s Plain Error Analysis

The Majority correctly identifies Maryland Rule 4-325(e) as the starting point for analyzing the present case. Majority op. at 293, 22 A.3d at 850. The Rule provides:

No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection. Upon request of any party, the court shall receive objections out of the hearing of the jury. An appellate court, on its own initiative or on the suggestion of a party, may however take cognizance of any plain error in the instructions, material to the rights of the defendant, despite the failure to object.

According to its plain reading, no unpreserved error—even one of constitutional dimension—yields automatic reversal. Rather, any error to which a defendant did not object contemporaneously may be subject to plain error review. An appel *258 late court, at its discretion, may opt to review “any plain error in the instructions, material to the rights of the defendant, despite a failure to object.” Md. Rule 4-325(e).

A. The Presence of Error

To qualify for potential review, Petitioner must demonstrate first that an error exists. In the present case, the State concedes, and the Majority opinion agrees, that errors appear in the jury instruction, which reads as follows:

[T]he defendant is presumed innocent of the charges until proven guilty beyond a reasonable doubt and to a moral certainty. He comes into court clothed with the presumption of innocence, which remains with him from the beginning to the end of the trial as though it were testified to and supported by evidence that the defendant is innocent.

The burden of proving the defendant guilty is upon the prosecution from the beginning to the end of the trial for every element of the crime charged. The defendant has no burden to sustain and does not have to prove his innocence.

The charges against the defendant are not evidence of guilt. They are merely complaints to let you and the defendant know what the charges are.

After the jury has fairly and carefully reviewed all the evidence in this case, if you feel that the prosecution has failed to prove beyond a reasonable doubt and to a moral certainty all of the evidence necessary to convict, then you must acquit the defendant.

The test of reasonable doubt is that the evidence that the State produced must be so convincing that it would enable you to act on an important piece of business in your every day life. The words “to a moral certainty” do not mean an absolute or mathematical certainty but a certainty based upon convincing grounds of probability. The phrase ‘beyond a reasonable doubt’ does not mean beyond any doubt or all possible doubt. But[,] as the words indicate, beyond a doubt that is reasonable.

*259 You are further instructed that the burden is on the State to prove beyond a reasonable doubt not only that the offenses were committed, but that the defendant is the person who committed them.

(Emphasis added.)

The Majority opinion identifies two particular problems with this instruction: (1) the omission of the qualifying words “without reservation” appended to the phrase “in your every day life,” 1 and (2) the use of the phrase “convincing grounds of probability” to define “moral certainty.” Majority op. at 252, 22 A.8d at 857. The Majority opinion concedes, however, that the omission of “without reservation” is “not alone fatal.” Majority op. at 254, 22 A.3d at 858; see Himple, 101 Md.App. at 582-83 , 647 A.2d at 1242 (1994) (holding that failing to include the “without reservation” language “itself would not necessarily constitute ‘plain error’ ”).

B. Was The Error Plain and Material Became It Was Constitutionally Deficient?

The second step in securing appellate review of an unobjected-to instruction is the establishment of the error as both “plain” and “material.” An appellate court should consider exercising its discretion to review the jury instruction if an error is “compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial.” State v. Hutchinson, 287 Md. 198, 202-03 , 411 A.2d 1035, 1038 (1980). Stated more definitively, the instruction constitutes plain and material error (and is, therefore, susceptible to review at the discretion of an appellate court) if there is a reasonable chance that the jury would apply the instruction in a manner inconsistent with the Constitution. See Estelle v. McGuire, 502 U.S. 62, 72 , 112 *260 S.Ct. 475, 482 , 116 L.Ed.2d 385, 399 (1991) (quoting Boyde v. California, 494 U.S. 370, 380 , 110 S.Ct. 1190, 1198 , 108 L.Ed.2d 316, 329 (1990)). 2

In the present case, the Majority opinion establishes plain and material error by deeming the jury instruction “constitutionally deficient.” Majority op. at 247, 22 A.3d at 854. According to the Majority, the instruction misrepresented the reasonable doubt standard, i.e., reduced the State’s burden of proof. Because “failure to instruct the jury of the requirement of reasonable doubt is never harmless,” Wills v. State, 329 Md. 370, 376 , 620 A.2d 295, 298 (1993), the Majority opinion holds that the erroneous jury instruction vitiates the conviction and Petitioner must be awarded a new trial. See Sullivan v. Louisiana, 508 U.S. 275, 279 , 113 S.Ct. 2078, 2081 , 124 L.Ed.2d 182, 189 (1993) (holding that a constitutionally deficient instruction discredits the conviction). 3

*261 To support its holding, the Majority opinion analogizes this case to two others—Cage v. Louisiana, 498 U.S. 39 , 111 S.Ct. 328 , 112 L.Ed.2d 339 (1990) and Himple■—in which reasonable doubt instructions were deemed constitutionally deficient. The Majority opinion also attempted to minimize the relevance of Victor , in which the flawed instructions were upheld as constitutional.

1. Cage and Himple

In only one previous case, Cage, has the Supreme Court reversed a defendant’s conviction because the reasonable doubt instruction as given was unconstitutional. See Cage, 498 U.S. at 41 , 111 S.Ct. at 330 , 112 L.Ed.2d at 342 . In Cage, the problematic portion of the jury instruction was as follows:

This doubt must be a reasonable one; that is one that is founded upon a real tangible substantial basis and not upon mere caprice and conjecture. It must be such doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. It is an actual substantial doubt.

Id. (emphasis added). The Court held that the instruction did not emphasize adequately the reasonable doubt standard or the “evidentiary certainty” required to convict the defendant. Id. Instead, the instruction as given permitted “a finding of guilt based on a degree of proof below that required by the Due Process Clause.” Id.

The Majority opinion here also relies heavily on Himple , in large part because the instruction in that case resembles closely the instruction in the present case. The instructions in Himple read:

[T]he defendant is presumed innocent of the crimes charged until proven guilty beyond a reasonable doubt to a moral certainty.... [He] comes into Court clothed with this presumption of innocence, which remains with him from the beginning to the end of trial, as to each element of the crimes charged.

*262 The burden of proving the defendant guilty is upon the prosecution from the beginning to the end of the trial. The defendant has no burden to sustain, does not have to prove his innocence.

The test of reasonable doubt is the evidence that the State has produced must be so convincing that it would enable you to act on an important piece of business in your everyday life. The words, to a moral certainty, do not mean absolute or mathematical certainty, but a certainty based upon a convincing ground of probability. The phrase beyond a reasonable doubt, does not mean beyond any doubt or all possible doubt, but, as the words indicate, beyond a doubt that is reasonable.

You are further instructed that the burden is on the state to prove beyond a reasonable doubt not only that the offenses were committed, but that the defendant is the person who committed them.

Brief for the Appellant, Himple v. State, 101 Md.App. 579 , 647 A.2d 1240 (1994) (Ct.Spec.App.1995) (No.1911, Sept. Term 1993) (Appendix). The Court of Special Appeals deemed the instructions deficient constitutionally for reasons similar to those expressed in Cage. Himple, 101 Md.App. at 582-83 , 647 A.2d at 1242 . The instruction “equat[ed] a convincing ground of probability to reasonable doubt” and, thereby, lowered the burden of proof required to convict the defendant. Id.

2. Victor

Early on, the Majority opinion highlights correctly that:

The Due Process Clause of the Fourteenth Amendment to the United States Constitution requires the State to prove every element of a offense charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 [, 90 S.Ct. 1068, 1073 , 25 L.Ed.2d 368, 375 ] (1970). The Constitution, however, “does not require that any particular form of words be used in advising the jury of the government’s burden of proof.... Rather, taken as a whole, the instruc *263 tions [must] correctly convey the concept of reasonable doubt to the jury.” Victor, 511 U.S. at 5 [, 114 S.Ct. at 1243 , 127 L.Ed.2d at 590 ] (upholding reasonable doubt instruction as constitutionally sound despite troublesome language, because after examining instruction in its entirety, there was no reasonable likelihood that the jury misunderstood the standard of proof beyond a reasonable doubt) (quoting Holland v. United States, 348 U.S. 121, 140 [, 75 S.Ct. 127, 138 , 99 L.Ed. 150 , 167] (1954)). Accord Merzbacher v. State, 346 Md. 391, 401 , 697 A.2d 432, 437 (1997) (We review the trial court’s “explanation of reasonable doubt as a whole; [we cannot] determine the propriety of an explanation from an isolated statement!, but must] view [] the effect of a suspect statement on the jury in light of the entire explanation.” (quoting Wills, 329 Md. at 384 , 620 A.2d at 302 )).

The inquiry is “ ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” Estelle v. McGuire, 502 U.S. 62, 72 [, 112 S.Ct. 475, 482 , 116 L.Ed.2d 385, 390 ] (1991) (quoting Boyde v. California, 494 U.S. 370, 380 [, 110 S.Ct. 1190, 1198 , 108 L.Ed.2d 316, 329 ] (1990)).

Majority op. at 245-47, 22 A.3d at 853-54.

Applying these principles to the present case, the Majority opinion concluded, “much as did the Court of Special Appeals in analyzing the virtually identical reasonable doubt instruction in Himple,” that:

[T]he instruction given at Petitioner’s trial was constitutionally deficient. Aside from the troublesome use of the phrase “moral certainty,” see Victor, 511 U.S. at 16 [, 114 S.Ct. at 1248 , 127 L.Ed.2d at 596-97 ], the instruction lacks the curative language present in Victor that would permit us to overlook the problematic language of “convincing grounds of probability.” Looking for context to the words immediately surrounding the problematic language in the instruction, we find no words explaining or refining the phrase “a convincing ground of probability” that give some assurance that the jury understood the concept of proof beyond a reasonable doubt as requiring more than a mere *264 “probability.” See Himple, 101 Md.App. at 582-83 , 647 A.2d at 1242 . That error alone renders the instruction constitutionally deficient.

Majority op. at 253-54, 22 A.3d at 858-59 (footnote omitted). For good measure, the Majority opinion cites also the omission of the phrase “without reservation,” which although “not alone fatal,” supports the taken inference that there is a reasonable likelihood the jury employed a standard of proof lower than reasonable doubt. Majority op. at 253-54, 22 A.3d at 858-59.

II. The Majority Opinion’s Tunnel Vision

A. Victor Should Not Be Set Aside So Easily

Although the use of problematic phrases is not encouraged, their presence may not warrant a new trial if the surrounding context ensures that a jury will apply correctly the concept of reasonable doubt. Victor, 511 U.S. at 20 , 114 S.Ct. at 1250 , 127 L.Ed.2d at 599 (“[A]ny ambiguity ... is removed by reading the phrase in context....”). This is the case particularly when the instruction provides “an alternative definition of reasonable doubt.” Id.

Although the Majority opinion employs the phrase “taken as a whole” in numerous instances, it seems to derive from Victor that a flawed instruction may be remedied only by curative language immediately preceding or following the flawed portion of the instruction. Majority op. at 254, 22 A.3d at 858 (“Looking for context to the words immediately surrounding the problematic language in the instruction, we find no words explaining or refining the phrase ‘a convincing ground of probability’.... That error alone renders the instruction constitutionally deficient.” (emphasis added) (citation omitted)). The Supreme Court in Victor , however, did not evaluate only the language in nearest proximity to the troublesome passage, but “the rest of the instruction given in [the] case,” which “lends content to the [subject] phrase.” Victor, 511 U.S. at 14 , 114 S.Ct. at 1247 , 127 L.Ed.2d at 596 . In the final analysis, the Victor Court was persuaded by the fact that, within the instruction (but not immediately before or after the pertinent *265 language), the trial judge provided an “alternative definition of reasonable doubt: a doubt that would cause a reasonable person to hesitate to act.” Victor, 511 U.S. at 20 , 114 S.Ct. at 1250 , 127 L.Ed.2d at 599 .

In the present case, there is language present both immediately following the problematic phrase, as well as earlier in the instruction, that mitigates the presence of the principal problematic phrase. Indeed, the words “ ‘to a moral certainty’ ... mean ... a certainty based upon convincing grounds of probability” were flanked by sufficiently curative language, such that any concern over misinterpretation or misconception was dispelled. Immediately following the phrase “convincing grounds of probability,” the trial court provided an alternative definition of the applicable standard, explaining that: “The phrase ‘beyond all reasonable doubt’ does not mean beyond any doubt or all possible doubt. But[,] as the words indicate, beyond a doubt that is reasonable.” (Emphasis added); see Victor, 511 U.S. at 5 , 114 S.Ct. at 1242-43 , 127 L.Ed.2d at 590 (upholding a flawed instruction because, taken together, the instruction did not convey to the jury “that the doubt must be anything but a reasonable one”). This language requires that the jury maintain an appropriate sense of what is “reasonable” in evaluating the case. The phrases “beyond any doubt” and “beyond ... all possible doubt” indicate to the jury that the standard of proof is high, and that it be convinced beyond most doubts—that is, all reasonable doubts—before convicting Savoy. It is not likely that a jury would overlook these remonstrances and misinterpret the instructions as calling for “anything but” a personal and moral satisfaction of any reasonable doubts before finding guilt. See Wills, 329 Md. at 382-83 , 620 A.2d at 301 (1993) (explaining that “[o]ur opinions have refrained from adopting a boiler plate explanation of reasonable doubt” and that “the explanation should ... bring home to the jury clearly that ... the [guilt] of the accused must be proved beyond a reasonable doubt”).

Any possibility that the jury interpreted unconstitutionally the reasonable doubt instruction as given is extinguished when it is viewed as a whole, rather than a series of isolated and *266 dissected phrases and sentences. Upon issuing the instruction, the trial court first informed the jury that Savoy

comes into court clothed with the presumption of innocence, which remains with him from the beginning to the end of the trial as though it were testified to and supported by evidence that the defendant is innocent. The burden of proving the defendant guilty is upon the prosecution from the beginning to the end of the trial for every element of the crime charged. The defendant has no burden to sustain and does not have to prove his innocence.

Imbued with this knowledge, the jury would interpret properly the phrase “convincing grounds of probability.” Anything less than a moral conviction—close to, but not necessarily an absolute or mathematical certainty—is insufficient to rebuff the defendant’s presumed innocence. Stated another way, before evaluating the evidence, the defendant stands as innocent. To make a finding of guilt, the jury must travel the entire probability spectrum until it arrives, convinced, at the opposite conclusion.

B. Himple Is Flawed Fatally

The Victor Court’s explication of the importance of a holistic review of reasonable doubt jury instructions predates Himple. See Victor (decided 22 March 1994); Himple (decided 28 September 1994). Yet, the Himple Court failed to take Victor into account. In its opinion, the Himple Court referenced only a small portion of the subject instruction there—honing in narrowly on two problematic phrases in the instruction while disregarding the rest. Nevertheless, despite its suspect value given this omission, Himple becomes the Majority’s mainstay in order to conclude that the phrase “convincing grounds of probability” erased all of the qualifying and explanatory instructions the jury heard previously and thereafter, such that the problematic phrase stood alone.

C. Cage

In Cage, the trial court had informed the jury that a reasonable doubt is- an “actual substantial doubt,” one that *267 gives rise to a “grave uncertainty....” Cage, 498 U.S. at 40 , 111 S.Ct. at 329 , 112 L.Ed.2d at 342 . The instruction in Cage stands in stark contrast to the instruction in the present case. Undoubtedly, the phrase “convincing grounds of probability” is not the most accurate description of the reasonable doubt standard and, taken in isolation, may produce an instructional shortcoming. Unlike Cage, however, the phrase here was not so immediately severe and misleading, was prefaced with a contextual instruction about the presumed innocence of the defendant (i.e., the starting point of any jury deliberations), and was followed by an alternate definition of the standard of proof.

The trial court here did not suggest that, to acquit, the jury must possess an actual substantial doubt or a grave uncertainty; rather, the trial court stated clearly that Savoy was, by dint of legal entitlement, innocent at all times during the trial, and that the jury must acquit if the State’s evidence does not address all those doubts that are reasonable or produce a certainty that, while not necessarily mathematical or absolute in nature, is personally and morally satisfying. (“[I]f you feel that the prosecution has failed to prove beyond a reasonable doubt and to a moral certainty all of the evidence necessary to convict, then you must acquit the defendant.”) Such contextual and curative language, absent in Cage, ensured that the instruction in the present case conveyed properly the “evidentiary certainty,” See Cage, 498 U.S. at 41 , 111 S.Ct. at 330 , 112 L.Ed.2d at 342 , required to convict Savoy, allowing a finding of guilty only upon a degree of proof beyond a reasonable doubt.

While the reasonable doubt standard is “an ancient and honored aspect of our criminal justice system,” it “defies easy explication.” Victor, 511 U.S. at 5 , 114 S.Ct. at 1242 , 127 L.Ed.2d. at 590. The U.S. Constitution “does not require that any particular form of words be used in advising the jury of the government’s burden of proof.” Id. Rather, the judiciary is charged with preventing “against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt.” Taylor v. Kentucky, 436 U.S. *268 478, 485-86 , 98 S.Ct. 1930, 1935 , 56 L.Ed.2d 468, 475 (1978) (quoting Estelle, 425 U.S. at 503, 96 S.Ct. at 1693, 48 L.Ed.2d at 130).

In the present case, the Court of Special Appeals declined properly to take cognizance of plain error in the unpreserved jury instruction. Although there was error in the subject jury instruction, it was not plain and material, given the fact that the instruction, taken as a whole, conveyed adequately the reasonable doubt standard to the jury. Accordingly, Petitioner should not be granted a new trial.

Judge BATTAGLIA has authorized me to state that she joins in the views expressed in this dissenting opinion.

. In the Majority opinion's eyes, the sentence should have read: The test of reasonable doubt is that the evidence that the State produced must be so convincing that it would enable you to act on an important piece of business in your every day life without reservation.

. Not all errors in a reasonable doubt jury instruction constitute constitutional deficiency. Victor v. Nebraska, 511 U.S. 1, 5 , 114 S.Ct. 1239, 1242-43 , 127 L.Ed.2d 583, 590 (1994). The above standard determines which reasonable doubt errors are eligible for discretionary review as constitutionally deficient.

. Because the Majority opinion decided that the error was constitutionally deficient, it was able to determine, as a matter of rote, that the error was also structural in nature, such that a harmless error analysis was inapposite. Majority op. at 247, 22 A.3d at 854 ("If ... we determine that the reasonable doubt instruction was constitutionally deficient, then the error is structural and defies analysis by harmless error standards.”). A constitutional deficiency is classified as a structural error because it affects the entire trial process. See Arizona v. Fulminante, 499 U.S. 279, 310 , 111 S.Ct. 1246, 1265 , 113 L.Ed.2d 302, 331-32 (1991). An inadequate jury instruction "necessarily renderfs] a trial fundamentally unfair.” Rose v. Clark, 478 U.S. 570, 577 , 106 S.Ct. 3101, 3106 , 92 L.Ed.2d 460, 470 (1986). Therefore, prejudice against the defendant is presumed and reversal of the conviction is mandated. See Fulminante, 499 U.S. at 310 , 111 S.Ct. at 1265 , 113 L.Ed.2d at 331 (stating that a criminal trial cannot accurately determine guilt or innocence if there is a structural error present).

Structural error is distinct from a "trial error,” which is evaluated using the harmless error standard: the defendant must prove prejudice, then the severity of the error is quantified to determine whether a new trial ought to be granted. Fulminante, 499 U.S. at 307-08 , 111 S.Ct. at 1263-64 , 113 L.E.2d. at 329-30.