Easlick v. State

CHAPEL, J.,

Dissenting:

¶ 1 The majority here finally has jettisoned the protection afforded by this Court’s long adherence to differing standards of review for direct and circumstantial evidence. Since shortly after statehood, this Court has consistently required that a conviction based on circumstantial evidence alone requires exclusion of every reasonable hypothesis other than guilt. 1 This is more stringent than the standard for direct evidence, which reviews whether, taking the evidence in the light most favorable to the State, any rational trier of fact could find the essential elements of the crime charged beyond a reasonable doubt. The majority suggests this distinction is “antiquated”. However, nothing about the basic nature of this evidence has changed. The different standards of review are justified by the essential difference in the nature of each type of evidence.

¶2 The majority appears to believe our distinction in standard of review of direct and circumstantial evidence is pointless. The majority emphasizes that juries are properly told to give the same weight to both types of evidence. This does not mean that there is no difference between the two types of evidence. Of course there is. Direct evidence may be an eyewitness account or physical object — is, in fact, anything which “proves the existence of the fact in issue without inference or presumption.” 2 Circumstantial evidence consists of a series of facts or occurrences from which one may infer a particular thing has happened. “The distinction to be made is that direct evidence/testimony requires no inference to be made: the particular piece of evidence or testimony is the proof. Circumstantial evidence requires that a reasonable inference be drawn....” 3

¶ 3 While the two types of evidence are equally probative, one requires a leap in reasoning that the other does not. They are fundamentally different. The majority recognizes this, noting that historically circumstantial evidence was “universally distrusted”. There is a reason for this distrust. We have required a different standard of proof for circumstantial evidence precisely because, as the majority again recognizes, it may “point to a wholly incorrect result.” Circumstantial evidence presents the very real danger that an innocent defendant will be convicted purely on jurors’ wrong impressions or inferences from competing circumstances. 4 This is vitally important because, as commentators have noted, circumstantial evidence is both the most common type of evidence and, often, the most critical evidence in a case. 5 I *561 agree with Justice Boslaugh, of the Nebraska Supreme Court, who noted: “If the inferences to be drawn from particular facts are equally consistent with guilt ■ or innocence, then it should be clear that those facts alone are not sufficient to support a finding of guilt beyond a reasonable doubt.” 6

¶ 4 Judge Furman, writing for this Court in 1912, presented an excellent analysis of the necessity for the reasonable hypothesis standard:

“All evidence is largely circumstantial, and even when most direct it depends upon circumstances for its credibility, weight, and effect.... In cases' depending upon circumstantial evidence, witnesses may swear falsely as to the circumstances relied upon; but experience shows that it is impossible to fabricate consistency in the circumstances themselves,' where many facts are involved. As the law requires, in cases of circumstantial evidence, that the facts or circumstances proven to be true must not only be consistent with the guilt of the defendant, but must also be inconsistent with his innocence, the impossibility of fabricating consistency in the circumstances makes this class of evidence as safe and reliable as human testimony can become.” 7

¶ 5 The majority takes as its starting point Holland v. United States. 8 Closer examination of this case does not suggest it either requires or supports a change in Oklahoma law. Holland does not announce a constitutional rule and is not binding on this Court. It merely interprets a federal evidentiary rule. Holland parsed the narrow issue of determination of net worth for a tax evasion prosecution, but included the sweeping language cited by the majority. 9 However, the Supreme Court did not simply conclude a reasonable hypothesis instruction was unnecessary. Rather, it explicitly stated that the instruction was not necessary “where the jury is properly instructed on the standards for reasonable doubt.” 10 Holland did not suggest what a proper instruction on reasonable doubt might be. In other cases, the Supreme Court has indicated that reasonable doubt is “one based on reason which arises from the evidence or lack of evidence,” 11 an abiding conviction of guilt and a moral certainty, and not a mere possible doubt. 12 The *562 Supreme Court has stated that the Constitution does not require trial courts to give any particular instruction on the meaning of reasonable doubt, as long as the instructions taken as a whole correctly convey the concept of reasonable doubt to the jury. 13

¶ 6 This Court, of course, has consistently refused to allow judges or attorneys to attempt to define reasonable doubt for jurors. I am not suggesting we should require, or allow, an explicit definition of that term. However, in the absence of some definition of reasonable doubt, our jury instructions do not seem to me to be sufficiently precise to ensure that a jury is “properly instructed” for Holland purposes. Other courts have addressed this problem. When Texas adopted a unified standard of review, the Texas Court of Criminal Appeals recognized the Holland emphasis proper instruction on reasonable doubt, and simultaneously adopted an instruction defining reasonable doubt. 14 The Missouri Supreme Court, adopting a unified standard, commented, “We have honed -our reasonable doubt instruction with legal analysis brought on by decades of defendants’ attacks coming from every point of the compass. We believe the reasonable doubt instruction fully and accurately instructs the jury on the risk of non-persuasion.” 15

¶ 7 The majority also cites cases from several other jurisdictions as a basis for its decision. 16 The cases cited for Mississippi and South Dakota each actually reaffirm those states’ continued use of the reasonable hypothesis test for circumstantial evidence. 17 Oregon also uses the reasonable hypothesis test. 18 Several states use a unified test for both circumstantial and direct evidence because they require “substantial evidence”, and do not further distinguish the two types of evidence. 19 However, in Montana, “substantial evidence” requires that “the facts and circumstances must not only be entirely consistent with the theory of guilt, but must be inconsistent with any other rational (i.e.reasonable) conclusion.” 20 Similarly, Connecticut requires proof beyond a reasonable doubt, but notes that circumstantial evidence must exclude any reasonable supposition of innocence. 21 Several states relied on *563 Holland, Jackson v. Virginia, 22 or a combination of the two in adopting a unified test. 23 Utah, while adopting a unified standard, allows but does not require a jury instruction on the reasonable hypothesis test in circumstantial evidence cases. 24 Even if this Court were to be swayed by the practice of other jurisdictions, this history hardly appears to either justify or require a change in Oklahoma law.

¶ 8 The majority offers no reason to suddenly change course. Holland was decided in 1954 and is not new to this Court. We have also known for some time of the federal courts’ standard of review, and that of other states. 25 Despite numerous opportunities to adopt a “unified”, lesser standard of review, Oklahoma has consistently chosen to impose a higher standard of review, requiring more stringent appellate analysis, in eases based entirely on circumstantial evidence. Neither the nature of the evidence nor the law has changed; only the makeup of this Court is different. It appears that the majority is once again disregarding years of precedent and unnecessarily changing Oklahoma law in order to impose a particular view of the law. 26 I dissent.

. Sies v. State, 6 Okl.Cr. 142 , 117 P. 504 (1911).

. Mayes v. State, 1994 OK CR 44 , 887 P.2d 1288, 1301 , cert. denied, 513 U.S. 1194 , 115 S.Ct. 1260 , 131 L.Ed.2d 140 (1995).

. Cheatham v. State, 1995 OK CR 32 , 900 P.2d 414, 422 .

. One legal scholar has traced the universal distrust of circumstantial evidence back to the Talmudic prohibition against testimony based on conjecture. Irene Merker Rosenberg, “Perhaps What You Say Is Based Only On Conjecture"— Circumstantial Evidence, Then and Now, 31 Hou. L.Rev. 1371 (1995) (Rosenberg). For a discussion on jurors’ interpretation of circumstantial evidence to fit particular narrative explanations of events, see Robert P. Burns, Some Realism and Idealism About the Trial, 31 Ga. L.Rev. 715, 762 (1997).

. L. Timothy Perrin, From O.J. to McVeigh: The Use of Argument in Opening Statement, 48 Emory L.J. 107 , 130 (1999), and citations atn. 146. For recent examples of Oklahoma criminal cases relying significantly on circumstantial evidence, see, e.g., Patterson v. State, 2002 OK CR 18 , 45 P.3d 925 ; Abshier v. State, 2001 OK CR 13 , 28 P.3d 579 , cert. denied, 535 U.S. 991 , 122 S.Ct. 1548 , 152 L.Ed.2d 472 (2002); Glossip v. State, 2001 OK CR 21 , 29 P.3d 597 ; Hooks v. State, 2001 OK CR 1 , 19 P.3d 294 , cert. denied, 534 U.S. 963 , 122 S.Ct. 371 , 151 L.Ed.2d 282 ; Young v. State, 2000 OK CR 17 , 12 P.3d 20 , cert. denied, *561 532 U.S. 1055 , 121 S.Ct. 2200 , 149 L.Ed.2d 1030 (2001); Powell v. State, 2000 OK CR 5 , 995 P.2d 510 , cert. denied, 531 U.S. 935 , 121 S.Ct. 321 , 148 L.Ed.2d 258 ; Dodd v. State, 2000 OK CR 2 , 993 P.2d 778 ; Miller v. State, 1998 OK CR 59 , 977 P.2d 1099 , cert. denied, 528 U.S. 897 , 120 S.Ct. 228 , 145 L.Ed.2d 192 (1999); Matthews v. State, 1998 OK CR 3 , 953 P.2d 336 ; Slaughter v. State, 1997 OK CR 78 , 950 P.2d 839 , cert. denied, 525 U.S. 886 , 119 S.Ct. 199 , 142 L.Ed.2d 163 (1998); Hooper v. State, 1997 OK CR 64 , 947 P.2d 1090 , cert. denied, 524 U.S. 943 , 118 S.Ct. 2353 , 141 L.Ed.2d 722 (1998); Mollett v. State, 1997 OK CR 28 , 939 P.2d 1 , cert. denied, 522 U.S. 1079 , 118 S.Ct. 859 , 139 L.Ed.2d 758 (1998); Bryan v. State, 1997 OK CR 15 , 935 P.2d 338 , cert. denied, 522 U.S. 957 , 118 S.Ct. 383 , 139 L.Ed.2d 299 (1997). In Oklahoma capital cases too numerous to cite, circumstantial evidence has supported aggravating circumstances or been used to prove intent to kill.

. State v. Buchanan, 210 Neb. 20 , 312 N.W.2d 684, 690 (1981) (Boslaugh, J., dissenting). Justice Boslaugh also correctly commented that using the unified standard is misleading unless jurors are told that their inference of guilt from circumstantial evidence must be stronger than any inference of innocence.

. Ex Parte Jefferies, 7 Okl.Cr. 544 , 124 P. 924, 924, 926 (1912).

. 348 U.S. 121 , 75 S.Ct. 127 , 99 L.Ed. 150 (1954). Interestingly, Holland protects defendants from unjust prosecution by requiring proof for sufficiency, where net worth is proved by circumstantial evidence, that the Government has investigated leads which support a taxpayer's claims of innocence. 348 U.S. at 135-36 , 75 S.Ct. at 135-36 .

. 348 U.S. at 140 , 75 S.Ct. at 137 . One case on which Holland relies rejected a requirement that the jury be instructed to find the evidence "to a moral certainty.” United States v. Austin-Bagley Corp., 31 F.2d 229, 234 (2nd Cir.), cert. denied, 279 U.S. 863 , 49 S.Ct. 479 , 73 L.Ed. 1002 (1929). ■ That standard was neither at issue in Holland nor adopted by Oklahoma courts.

. 348 U.S. at 139 , 75 S.Ct. at 137 .

. Jackson v. Virginia, 443 U.S. 307 , 317 n. 9, 99 S.Ct. 2781 , 2788 n. 9, 61 L.Ed.2d 560 (1970).

. Victor v. Nebraska, 511 U.S. 1, 14-15, 17 , 114 S.Ct. 1239, 1247, 1249 , 127 L.Ed.2d 583 (1994) (distinguishing Cage v. Louisiana, 498 U.S. 39 , 111 S.Ct. 328 , 112 L.Ed.2d 339 (1990) (per cu-riam )).

. Victor, 511 U.S. at 5 , 114 S.Ct. at 1243 . For a fuller discussion of Holland and reasonable doubt, see Rosenberg, supra n. 4, at 1408-1413.

. Geesa v. State, 820 S.W.2d 154 (Tx.Crim.App.1991). In reaching this decision the Court of Criminal Appeals noted that, in 1983, it had abolished the use of a special instruction on circumstantial evidence after Holland and Jackson v. Virginia. Without the instruction, the Court reasoned, its practice of conducting a separate appellate analysis of circumstantial evidence served no purpose.

. State v. Grim, 854 S.W.2d 403, 408 (Mo.1993). See also State v. Jackson, 331 A.2d 361, 365 (Me.1975) (opinion noted reasonable doubt standard was made abundantly clear to jurors); State v. Guthrie, 194 W.Va. 657 , 461 S.E.2d 163 (1995) (emphasizing importance of jury instruction on the State's heavy burden of reasonable doubt).

. Responding to a similar argument, the Missouri Supreme Court, in adopting the unified test, stated, "Of course, we do not decide our cases based upon which rule wins favor in the most states.” State v. Grim, 854 S.W.2d 403, 406 (Mo.1993).

. Cox v. State, 849 So.2d 1257, 1263 (Miss.2003); State v. Guthrie, 627 N.W.2d 401, 421 (S.D.2001).

. State v. Zauner, 250 Or. 105 , 441 P.2d 85, 87 (1968) (explicitly states reasonable hypothesis test is used in circumstantial evidence cases). Zauner is cited in State v. Carson, 292 Or. 451 , 640 P.2d 586, 591 (1982) for the proposition that test is "whether a reasonable person, based upon all the evidence adduced in the case, would be warranted in finding beyond a reasonable doubt that the defendant committed the offense charged."

. Hughes v. State, 513 P.2d 1115, 1117 (Alaska 1973); State v. Fitzpatrick 163 Mont. 220 , 516 P.2d 605, 609 (1973); State v. Stephens, 244 N.C. 380 , 93 S.E.2d 431, 433 (1956). North Dakota and Pennsylvania also adopted a unified test, relying on forum precedent regarding the lack of probative difference between the types of evidence. State v. Emmil 172 N.W.2d 589, 591 (N.D.1969); Commonwealth v. Marino, 142 Pa.Super. 327 , 16 A.2d 314, 317 (1940) ("the circumstances proved should be such as reasonably and naturally to justify an inference of the guilt of the accused, and should be of such volume and quality as to overcome the presumption of innocence and satisfy the jury of the accused's guilt beyond a reasonable doubt”).

. Fitzpatrick, 516 P.2d at 609 .

. State v. Medina, 228 Conn. 281 , 636 A.2d 351, 364 (1994); State v. Smith, 138 Conn. 196 , 82 A.2d 816, 819 (1951) ("proof beyond a reasonable doubt is such proof as precludes every reasonable hypothesis except that which it tends to *563 support and is consistent with the defendant’s guilt and inconsistent with any other rational conclusion”).

. 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560 (1970).

. State v. Harvill, 106 Ariz. 386 , 476 P.2d 841 (1970); People v. Bennett, 183 Colo. 125 , 515 P.2d 466 (1973); Williams v. State, 539 A.2d 164 (Del.1988); People v. Pintos, 133 Ill.2d 286 , 139 Ill.Dec. 832 , 549 N.E.2d 344 (1989); Commonwealth v. Benham, 816 S.W.2d 186 (Ky.1991) (restating previous “not clearly unreasonable” standard as "If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty”); State v. Jackson, 331 A.2d 361, 365 (Me.1975); Commonwealth v. Nardone, 406 Mass. 123 , 546 N.E.2d 359 (1989) (noting use of unified standard); Wiggins v. State, (Md.1997), overruled on other grounds Wiggins v. Corcoran, 288 F.3d 629 (C.A.4th.2002) (affirms previous decisions that adopt the unified standard, but cites the trial court’s findings that the facts did not demonstrate a reasonable hypothesis of innocence) [Subsequent cases confirm the use of the unified standard.]; People v. Konrad, 449 Mich. 263 , 536 N.W.2d 517 , 522 n. 6 (1995); State v. Grim, 854 S.W.2d 403 (Mo.1993); State v. Buchanan, 210 Neb. 20 , 312 N.W.2d 684, 689 (1981); State v. Fiorello, 36 N.J. 80 , 174 A.2d 900, 904 (1961); State v. Sutphin, 107 N.M. 126 , 753 P.2d 1314, 1318-19 (1988); State v. Jenks, 61 Ohio St.3d 259 , 574 N.E.2d 492 (1991) [The Ohio State Bar Association, responding to concerns about unfairness in death penalty cases, has recommended that the former standard be restored.]; State v. Romano, 456 A.2d 746 (R.I.1983) citing State v. Roddy, 401 A.2d 23, 34-35 (R.I.1979) (rejecting reasonable hypothesis instruction based on Holland); Geesa v. State, 820 S.W.2d 154 (Tx.Crim.App.1991); State v. Derouchie, 140 Vt. 437 , 440 A.2d 146 (1981); State v. Green, 94 Wash.2d 216 , 616 P.2d 628, 632 (1980); State v. Guthrie, 194 W.Va. 657 , 461 S.E.2d 163 (1995).

. State v. Sutton, 707 P.2d 681, 683 (Utah 1985); State v. Clayton, 646 P.2d 723, 724 (Utah 1982); State v. Span, 819 P.2d 329, 332 (Utah 1991) (circumstantial evidence must be of such quality and quantity as to justify a jury in determining guilt beyond a reasonable doubt).

. See, e.g., White v. State, 1995 OK CR 15 , 900 P.2d 982, 993-94 . The White dissent, which closely resembles the majority opinion here, also thoroughly discusses Holland and urges this Court to adopt the federal standard.

. See., e.g., Long v. State, 2003 OK CR 14 , 74 P.3d 105 (overruling precedent to find that duress is not a defense to malice murder).