# Petition for Writ of Certiorari — Maloney v. Lanigan

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1989
- **Citation:** 488 U.S. 1007

## Text

88-720 | Oe

j

~ ’
No. 88-_§ Was.

IN THE SUPREME COUR
F THE UNITED STATES

MICHAEL T. MALONEY,

Petitioner

a

THOMAS J. LANIGAN,
Respondent.

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

JAMES M. SHANNON
Attorney General

JUDY G. ZEPRUN *

Assistant Attorney General
Criminal Bureau

One Ashburton Place

Boston, Massachusetts 02108
(617) 727-2200 ext. 2816

* Counsel of Record

QUESTIONS PRESENTED

l. Whether, in view of this Court's
decisions in Rose v. Clark, 478 U.S. 570

(1985), and Pope v. Illinois, 107 S.Ct.

1918 (1987), that allegedly defective
jury instructions on the prosecution’s
burden of proof can be harmless error,
+ais Court should allow the petition for
a writ of certiorari to review the
iiciaten: of the United States Court of
Appeals for the First Circuit holding, in
a case where the evidence against the
defendant was overwhelming and the
defendant presented no defense, that
alleged errors in a jury instruction on
the state's burden of proof beyond a

reasonable doubt could not be harmless

Crror.

2. Whether, in view of the direct

conflict between the decision of the

United States Court of Appeals for the
First Circuit that alleged errors in jury
instructions on the state's burden of
proof beyond a reasonable doubt cannot be
harmless, and a decision of the
Massachusetts Supreme Judicial Court that
such errors can be harmless; and in view
of the correlative conflict between the
decisions of the United States Court of
Appeals for the First Circuit that a
trial court need not define the concept
of “reasonable doubt" and should not use
the language "moral certainty,” and the
decisions of the Massachusetts appellate
courts that the trial court must define
the concept of “reasonable doubt" and
should use the language “moral
certainty"; this Court should allow the
petition for a writ of certiorari to
eliminate the problems which eventuate

from those conflicts in the course of

federal habeas review ot state court

convictions.

3. Whether in the instant case the state
court judge's instruction as a whole
conveyed the meaning of “beyond a

reasonable doubt,” where he defined the
concept in terms of moral certainty,
contrasted the criminal and civil
standards of proof, and explained what
reasonable doubt was not; and whether, in
reviewing the challenged instruction on
collateral attack, the federal court

applied too strict a standard of review.

Se a n.. NR sa ws 66 o'0 ws 0 6 608 38 60 awe
T A Ss 6 ss ONS ee iii
Ree is ) 6 0.0 6646 6 eb e6-8 66 seeks ekeen 2
Nh ib hs caesarean ee 3
CONSTITUTIONA ROV Bt tA ee 3
yrs: a: 6 ee 3
REASONS FOR GRANTING THE WRIT........... 23

Zs The Petition For A Writ Of
Certiorari Should Be Granted
Because, Contrary to the
Decisions of This Court, The
Court Of Appeals For the First

Circuit Ruled That The Chapman

Harmless Error Rule Did Not
Apply To An Alleged Error in
Jury Instructions On The

Prosecution's Burden of Proof

ne

ok

II. The Petition For A Writ Of
~erti . 5] 1d : ; ~

III. The Reasonable Doubt Instruction

eh." os cick cade ceuhe cet ees 39
CONCLUSION.............0.. ee eR 48
APP S ocscv chavs A1-A46
Ce Pres enn B1-Bll
APPR S , o.ssin'dacae keane C1-c8

Cases

Bumpus v. Gunter,
635 F.2d 907 (lst Cir. 1980),
cert. denied,
GOO Gale See CASE) cc ceeecedce 39,44,47

Cabana v. Bullock,
, eo: OD ere ee

Chapman v. California,
ST ee ea

Commonwealth v. A Juvenile,
a ss) ae On. . ae eeseeece nee

Commonwealth v. Beverly,
389 Mass. 866,
ce or Cee. . ctdacweeenen

Commonwealth v. Bumpus,
362 Mass. 672,
(, J - ae! y ae el pe ) Se

Commonwealth v. Carballo,
en a (ee orn 6 2 6000066 640-048

Commonwealth v. Garcia,
379 Mass. 422,
ee eee

Commonwealth v. Grace,
ao e000 8, eee se

- iV -

Commonwealth v. Hughes,
ae a Sy ee Fe

Commonwealth v. Lanigan,
12 Mass. App. Ct. 913,
423 N.E.2d 800 (1981)........ 2-7. 34.67

Commonwealth v. Lanigan,
304 Meee. GLT CiSER) .cccccessen Pe be

Commonwealth v. Lanone,
ee es Se DD ok wae eee eek 37

Commonwealth v. Morse,
OS GeO 0”) a ee ere 37

Commonwea l th VV. Pires ’
389 Mass. 657,
GDh Bstecaes BOee CEISSP cr awcreacseeséen 46

Commonwealth v. Seay,
Se ee, Fe ES o ies woe eo 6 on 37

Commonwealth v. Sheline,
391 Mass. 279,
Poe Re” Bey Bee. f } ee 37,44

Commonwealth v. Smith,
DEL Meee, 24h CIGOO) . cccccccecses 37,40

Commonwealth v. Spann,
2 a se wa we ee ee 37

Commonwealth v. Stellberger,
25 Mass. App. Ct. 148 (1967)..... 36,41

Commonwealth v. Tavares,
385 Mass. 140,

cert. denied,

CTR FP PRT! ae t ° rere 37,42
Commonwealth v. Watkins,
ye Oe a: errr ree 40

Commonwealth v. Webster,
59 Mass. (5 Cush.) 295 (1850).16,37,41

Commonwealth v. Williams,
378 Mass. 217,
SPR Bec SO BOOS GEOTS) 6c cccccae 37,40,45
n i b ’
. gh oP OS; Be) >) ee ee rare 27
Cupp v. Naughten,
or eR A Oe | re ree ee 43

Delaware v. Van Arsdall,
2 OM Ta EG! yy ee rere 26

Dunn v. Perrin,
S70 F.26 2h (ist €ir.),
cert. denied, 437 U.S. 910 (1978)...43

Gideon v. Wainwright,

BOS Wis BPP CAPPS ccc erie vecasnas 28
y as v. Calif La,
Bee Gis BOO CEPOP) ccc ccsccsacvns 25,27

Herd v. Kincheloe,
800 F.2d 1526 (9th Cir. 1986)....... 25

- Yi «=

Jackson _v. Virginia,

rv. eee i 2, rrr 29
Lanigan v. Maloney,

853 F.2d 40 (lst Cir. 1988).......... 4

v ’
621 F.2d 20 (lst Cir.),
cert. denied, 449 U.S. 867 (1980)...43

McKenzie v. Risley

842 F.2d 1525 (9th Cir. 1988)....... 25
Milton v. Wainwright,

a OF Sm se Bo) peer r ree 26
Murphy v. Holland,

776 £.26 4760 (4th Cir. 1965)...case- 34
Payne v. Arkansas,

ee ee ie ee | eee 28
Pope v . Illinois ,

Cm A Pe Be! ys Pee 23,28,29,30
Rose v. Clark,

S78 UG. SIO CASO) sc vcvinas 22,24,26,28
Rushen v. Spain, .

Tee Me ee} eee ee 25,27
Tumey v. Ohio,

ys OOM RD RC gs errr Tee eee 28

United Brotherhood of Carpenters and
Joiners of America v. United States,
|. ge Se WU era 29

- vii -

United States v. Ariza-Ibarra,

605 F.2d 1216 (lst Cir. 1979)....... 35
United States v. DeVincent,

632 F.2d 147 (lst Cir. 1980)..... 35,45

ni 4 W ’

656 P.2e 1b CEG Che. 1982)i.cicccccs 36
United States v. Del Toro Soto,

Ore Oo ae CRE CLE. TORR) oo occ0 ee 36
United States v. Drake,

673 F.2d 15 (lst Cir. 1982)...35,41,42
United States v. Gibson,

726 F.2d 869 (lst Cir.),

cert. denied, 466 U.S. 960 (198<«-)...34
United States v,. Hasting,

SG Wu. BOO CESS) «occas sees 25,26,30
United States v. Indorato,

628 F.2d 711 (lst Cir. 1980)..... 35,42

United States v. Lawson,
507 F.2d 443 (7th Cir. 1974),

cert. denied, 420 U.S. 1004 (1975)..35

United States v. Littlefield,
840 F.2d 143 (lst Cir. 1988)........ 34

United States v. Olmstead,
832 F.2d 642 (lst Cir. 1987)
cert. denied,
Se wes BUOe CEOOS) idk ov. dckcduvddeve 34

United States v. Witt,
648 F.2d 608 (9th Cir. 1981)........ 35

Statutes

28 U.S.C.
28 U.S.C.

28 U.S.C.

§1254
§2111

§2254

- vlll -

o> Peveeerrrecr cess 3

No. 88-

IN THE SUPREME COURT
OF THE UNITED STATES

October Term, 1988

MICHAEL T. MALONEY,
Petitioner

Vv.

THOMAS J. LANIGAN,
Respondent.

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

The petitioner, Michael T. Maloney,
hereby petitions this Court for a writ of
certiorari to review the judgment of the

United States Court of Appeals for the

First Circuit.

ee

QPINIONS BELOW

The opinion of the United States
Court of Appeals for the First Circuit,
Lanigan v. Maloney, Nos. 88-1200 and
88-1424, is published at 853 F.2d 40 (lst
Cats. t9eers It is reproduced here as
Appendix A. The opinion of the United
States District Court, District of

Massachusetts, Civil Action No. 86-3128-S

(D. Mass. Jan. 26. 1988) is not
published. It is reproduced here as
Appendix B. The opinion of the
Massachusetts Appeals Court in the

underlying criminal case, Commonwealth v.
Lanigan, is published at 12 Mass. App.
Ct. 913, 423 N.E.2d 800 (1981). It is
reproduced as Appendix a The
Massachusetts Supreme Judicial Court,
without opinion, denied further appellate
review of the decision of the
Massachusetts Appeals Court, 384 Mass.

817 (1982).

JURISDICTION

The decision below was issued on
August 9, 1983. The jurisdiction of this

Court is invoked under 28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISIO!
INVOLVED

United States Constitution, Amendment
XIV provides, in pertinent part:
[Nlor shall any state deprive any

person of life, liberty, or property,
without due process of law

STATEMENT OF THE CASE

The respondent Lanigan ("the
respondent™") was convicted in the
Superior Court Department of the Trial
Court of Massachusetts of armed robbery,
assault with intent to murder, assault
and battery by means of a dangerous
weapon, and kidnapping. The
Massachusetts Appeals Court affirmed the

conviction, Commonwealth v. Lanigan, 12

ES

Mass. App. Ct. 913, 423 N.E.2d 800
(1981). The Massachusetts Supreme

Judicial Court denied further appellate

review, Commonwealth ov. Lanigan, 384
Mass. 817 (1982). The United States

District Court for the District of
Massachusetts allowed the respondent's
petition for a writ of habeas corpus.
Appendix B. The United States Court of
Appeals for the First Circuit affirmed
the order allowing the writ. Lanigan v.
Maloney, 853 F.2d 40 (lst Cir. 1988).

The facts proved at trial were as
follows. At approximately 2:00 p.m. on
February 4, 1978, Patricia Maynard, who
lived on Parker Street across from Rix's
Salon, a bar in Gardner, was inside her
apartment with Rene Bastarache, four
named others, and "Tom" whose last name
she had forgotten but whom she identified

as the respondent at trial. ese

1/

130-131). The respondent had a
black-handled knife on his belt. (Tr.
131). When one of the men, Dunphy, took

the respondent's knife, the respondent
told him he was going to use it. The
respondent said he was going out drinking
at «=Rix's (Tr. 138) and stabbing. CZE.
132).

At approximately 10:30 or 11:00 p.m.
that night, the victim, Neil Hirons, went
to Rix‘'s Salon. (Fe. 435). The victim
had three or four drinks, talked with a
friend and left at about 1:00 a.m. (TE «
46-47). As the victim left the bar, he
Saw one man on his right and another on
his left. The street was lit by street

lights (Tr. 47) and the victim had no

l/ References to the trial transcript
are denoted ("“Tr. [page]”). The entire
two-volume transcript was introduced in
the District Court and was included in
the Record Appendix in the Court of
Appeals.

eee enna

problem identifying people or objects on
the sidewalk. (Tr. 99). The two men
approached the victim from behind and one
of the two, the respondent, told the
victim to go to a building located across
the street and a block away. (Tr. 48).
The victim recognized both the
respondent, who had come uninvited to the
victim's home the previous Thursday (Tr.
48-49, 88) and the second man, Rene
Bastarache, who had lived near the
victim's parents’ furniture store and who
had worked for them. cee. 4B).

Flanked by these two individuals he
had recognized, the victim crossed the
street to the building. The respondent
and Bastarache told the victim to. go
inside and upstairs and he did (Tr.
50-51). The respondent directed the
victim to walk about fifty feet down a

hallway and opened a - door to an

apartment. Bastarache entered and
exited. (Tr. 52). The respondent opened
the door to another apartment. (Id.).
At that point the victim noticed that the
respondent was holding a black knife with
a four to six-inch blade. (Id. )

The respondent pointed the knife at
the victim's throat and ordered him to
sit in a chair. &y Pee Fee Bastarache
was also standing in the- room. es7
55). The respondent told the victim to
give him his wallet and whatever — in
his pockets. e3 e 57). The victim
complied, giving the respondent four
checks, about $70.00 in cash, and credit
cards. (Fe «. Beve The respondent also
took the victim's car keys from. the
victim's pocket, handed them to
Bastarache, and told Bastarache to start
the car. es ¥ 58). The respondent

counted the money and gave some _ to

Bastarache. (Te. 36). Evidently, the
respondent kept more than he _-= gave;
Bastarache complained, "That's not
fair.” (Tr. 58).

The respondent put his share of the
money in his pocket and looked at the
checks. (Tr. 59). The respondent took a
pen off the kitchen table and told the
victim to sign the checks. §° BF The
victim told the respondent he could not
sign the checks because they were
business checks belonging to his father.
(Id.) The respondent then punched the
victim in the nose and told him to sign
them anyway, but the victim was too
nervous to write his name. (Id.) The
respondent tried to copy, and practiced
forging, the victim's name from his
credit cards. (Tr. 60). The respondent
ultimately crumbled the checks, handed

them to the victim, and told the victim

|

to eat them. (Tr. 59). The victim
started to eat the checks but could not

swallow them. 9° AP

Meanwhile, Bastarache returned and
said he could not start the car. (Tec
60). The respondent told him to try

again. (Id.). The respondent then took
the checks into the bathroom and tried to
flush them down the toilet. (Tr. 61).
When he returned from the bathroom, the
respondent told the victim to stand up
and take his clothes off; the victia
complied, then sat down. CFe. Gh). As
the victim was removing his clothes, the
respondent kept a knife trained on him,
pointed at this throat. (Id.).

The respondent told the victim to go
into the bathroom. Inside the bathroom,
the respondent tried to tie the victim's

hands with a black electrical cord. ei -

61). When the respondent walked out, the

victim was able to pull the cord loose
but remained in the bathroom. (Te. 62).
The respondent returned to the bathroom
and told the victim to go back and lie on
the bed. The respondent then tried to
tie the victim's hands to his feet with
the cord. (Tr. 62). The respondent put
the knife to the victim's back, cut his
shoulder, and asked him how it felt.
(Id.). Then the respondent told him to
Sit in the chair. (]d.).

While the victim sat and listened,
the respondent and Bastarache, who had
returned to the apartment, discussed
whether they should kill him. Fe. €3).
The respondent taunted the victim that he
was a “pretty big boy” and asked him why
he didn't “take [them] both on." (Id.).
At some point, both the respondent and
Bastarache put down the knives they had

been holding. (]d.). The victim jumped

up and grabbed Bastarache so that the
respondent, who had picked up his knife,
could not stab him. (Tr. 63-64). The
respondent, trying to move around
Bastarache, stabbed the victim with the
knife. an. GS).

The respondent then told the victim
to put on some clothes which were lying
on the floor, and which did not belong to
the victim. Bastarache had taken the
victim's jacket. The victim put on the
pants from the floor (which were too
small for him) and _ boots. (Te. 65).
The respondent continued to hold a knife
to the victim. (Tr. 66). Then the
respondent picked up the victim's
clothes, put them in the shower, and wet
them. oo er

The respondent said to Bastarache,
"We'll take him downstairs and make him
start the car, if he gets it started
we'li kill him there, if he doesn't

~ Sh «

we'll take him back up the stairs and

kill him in the apartment.” (Id.).
Holding a knife to the victim's stomach,
the respondent walked out the door in
front of him; Bastarache stood behind
him. ot SFP They all went out and
crossed the street to the car. oC eR
The respondent entered the passenger side
and Bastarache, who was holding a knife
to the victim's stomach, told the victim
to get into the car. The victim
complied. car. 66-67). The respondent
told the victim to start the car.
Although he knew the car would not start
unless he pulled out the choke, the.
victim did not pull it out. +, Pe ye
As a result, the car failed to start.
They all got out of the car and
re-crossed the street, with both the
respondent and Bastarache holding’ the

knives at the victim's throat. (Id.).

As they went upstairs, the respondent

said to Bastarache, “We'll take him down
the hallway and kill him in the
apartment." oe” SP The victim then
started pushing and striking them. ere
68). The respondent reached around
Bastarache and stabbed the victim twice
in the stomach. (Id.). The respondent
fell. The victim hit Bastarache and then
he broke’ a window to create some noise.
(Id.). The victim then ran down the fire
escape. (Te. 469). The victim looked up
to see where the respondent and
Bastarache were in relation to where he
was. CEG aye Although there was no
police officer in sight, the victim
yelled, “officer there standing by the
alley” and the respondent and Bastarache
ran away. ‘9 emer be The victim walked
up Parker Street toward the center of

town, turned right toward the police

q

station, and, stumbling, met a cruiser.
& ¢ Paeee £ He was taken to the Henry
Heywood Memorial Hospital, was treated

for stab wounds to the abdomen, chest,

legs and side, and stayed a week. (Tr.
74). During his stay, he gave a
statement to Officers Swelina and

Fournier. (Tr. 84, 85).

The day after the victim was admitted
to the hospital, Sunday, February 5,
1978, Officer Casavanth participated in
the investigation of the Parker Street
incident. After talking with Officers
Swelina and Fournier, he went to the
third floor at 65 Parker Street. CFr.
139-140). He observed a broken window
and what appeared to be blood in the
hallway, at the exit to the fire escape,
on the door casing and handle (Tr.
140-141). He also saw blood on the snow

outside the building. (te. 242h.

Casavanth located the manager of the
building who opened the door to the
apartment 28 with a passkey. (Tre. 244).
Inside the apartment, Casavanth saw two
knives and what appeared to be blood on
the floor. (Tr. 145). At the foot of
the bed he found an electrical cord with
a loop tied at each end. fume Bat). He
also found wet clothes (Tr. 148); a piece
of paper with the victim's name written
on it three times (id.); papers, business
cards and a credit card on the table (Tr.
150); and a checkbook containing checks
imprinted with the respondent's name and
address on the dresser. (Tr. 150-151).

The investigation focused on the

respondent. Casavanth began looking for
the respondent and Bastarache. (Te.
L152). The respondent was brought back

from Idaho over a year later, in the fall

of i979. (Tr. 153-154).

After the Commonwealth rested, the
respondent rested without presenting any
evidence. CTE. S50d The respondent's

closing argument was, in pertinent part:

I don't know what happened. You
don't know what happened exactly. We
have [the victim's] testimony. We
have the officer's testimony. We
have the girls['] testimony. I
submit somewhere in there are the
actual facts. You are the fact

finders. I do submit, I think there
is enough evidence to indicate what
happened is not what Mr. Hirons said
happened. There was a fight. He was
stabbed twice on the stairs, but not
what he said it was. In the
apartment something else happened,
what it was I don't know, the facts
of marijuana and booze you can draw
your own inferences from that and see
what happened in there. (Tr. 177).

At trial, the respondent requested a
reasonable doubt instruction in the
language of Commonwealth v. Webster, 59

Mass. (5 Cush.) 295, 320 (1850). *”

2/ The Court of Appeals for the First
Circuit characterized the Webster
instruction as "a long-standing
formulation repeatedly approved by the
Massachusetts Supreme Judicial Court.”
Appendix A, at p. 3.

a

He did not request a self-defense

instruction.

The Court, McCooey, D.Cides
instructed the jury on reasonable doubt
as follows:

You have sat throughout the month in

automobile accidents, products
liability, defects in automobile
manufacturers, Ford, Chrysler,
General Motors, defects in machinery,
defective parts of machinery, fall
downs on snow and ice, breach of
contract. What are all those cases?
Their: [sic] Civil cases. They don't
belong in this’ session. This is a

Criminal session not a Civil session
and the only reason I make any
reference at all to the Civil session
is in contradistinction to the
Criminal session, which this is, is
to emphasize to you burden of proof
in our blessed and wonderful country,
who is accused of a crime, that's all
Lanigan is. He was arrested, he may
have been indicted, he may have been
charged, he may have been accused, he
stands accused of 4 crime. A
complaint on the fourth floor, the
District Court, an indictment of this
the second floor, the felony
session. What are they? Pieces of
paper that are accusations that's all
until a jury determines the guilt or

the innocence of the party, So
remember the mere fact a person is
arrested or a person -- you read in

the paper that somebody the Grand

ie

een

Jury has indicted them for probable
cause in crime remember their guilt
is nothing at that point, until such
time in our blessed country as their
guilt is proven by a Criminal jury,
such as you are, beyond a reasonable
doubt and I am going to give you in a
minute what I consider the best case
that ever came down in the state as
to what is meant by proof beyond a
reasonable doubt by Judge Lummus a
Judge in another day and time, long
departed.

Now, on the Civil side of the
Court, which this is not, automobile
accidents, product liability, fall
down on snow and ice. On the Civil
side of the Court before you award
anybody a quarter, two things they
have to prove to your satisfaction.
What would they be? Number one:
Liability, blame, culpability,
responsibility, fault, negligence,
for the happening of, the occurrence
of the accident, or the incident,
with resulting injuries. Number two:
They have to prove that the injury
was directly related to the happening
of the accident. That's the Civil
side of the Court.

What's the burden of proof
there? Well, you have all seen it,
ladies and gentlemen, there isn't a
man or woman here who at sometime in
your life time haven't seen a picture
of the female goddess of justice, or

remember a statue or picture. She
stands before you blindfolded,
indifferent, indifferent to
prejudice, indifferent to bias,

indifferent to anything in the nature

of emotional appeal, but she
particularly stands before you with
what? The scales of justice in her
arms. And there, on the Civil side
of the Court, which this is not,
those scales. of justice must _ be
tilted on liability and on damages,
both of them, by a fair preponderance
of the evidence, before you award to
any plaintiff. That's the Civil side
of the Court.

Now, I come to the Criminal side
of the Court, that's what were [sic]
on today, the Criminal side of the
Court. This young man is accused of
four crimes and he stands accused,
indicted, he is charged with four
crimes. The burden here is not to
prove his guilt by a fair
preponderance of the believable
evidence, tilting the scales slightly
in his favor. The burden hers. Mr.
Foreman and ladies and gentlemen of
this jury is to prove his guilt

beyond a reasonable doubt. On the
Criminal side of the Court, which
this is, a criminal, one who is
charged with a crime I should say,
not a criminal -- who is charged with
a crime ae his guilt must be
established beyond a realm of
speculation, guess work, surmise.

That sort of thing must be
established how? Beyond a reasonable
doubt. Meaning what? Meaning beyond
all doubt? Never, because 13°e@
impossible in our society to prove
anybody guilty of a crime beyond all
doubt. That would be to [sic] lofty

a standard, it would be unattain-
able. But the standard is7 proof
beyond a reasonable doubt. Meaning

what? That proof to a degree of

ae

moral certainty. Meaning what? That
proof to a degree of moral
certainty. Meaning what? That the
12 of you good people, the jury will
be reduced from 14 to 12 by the
clerk, 12 of you good people invoke
and calling upon your good God given
common sense and basically weight and
evaluate, recreate the evidence, you
are going to ask yourselves are we
satisfied, how? To a degree of moral
certainty not beyond an absolute
doubt that the accused did commit the
crime, or the crimes of which he

stands accused before us. That's
your issue, that's your job, that's
what your [sic] here for today. It

is not my job, it's not any of the
judges [sic] job.

Appendix A, at pp. 24-27.

Defense counsel objected generally to
the judge's failure to instruct the jury
in accordance with his request for a
Webster instruction. (Tr. 209). He made
a “skeletal objection,” saying simply,
"Commonwealth versus Webster in my
instructions." Appendix A, at p. 9. On
appeal to the Massachusetts Appeals
Court, the respondent argued that the

language in the judge's instruction was

=

iia

proper, but that it did not go far
enough. See Appendix C, at p. 15. The
Massachusetts Appeals Court ruled that
the charge “passed muster, although the
question is close." Commonwealth Vv,
Lanigan, 12 Mass. App. Ct. 913, 914, 423
N.E.2d 800, 802 (1981), Appendix C, at p.
4. The Supreme Judicial Court denied
further appellate review, Commonwealth v,.
Lanigan, 384 Mass. 817 (1982).

In October, 1986, the respondent
filed the instant petition for a writ of
habeas corpus, 28 U.S.C. §2254, claiming

that the reasonable doubt instruction was

constitutionally defective. As the Court
of Appeals for the First Circuit
summarized his claims:

{[H]e challenged the reasonable

doubt instruction on three grounds.
First, he complained that the judge

twice equated proof beyond a
reasonable doubt with ‘proof to a
degree of moral certainty,' allowing

the jurors to find guilt even if they
were substantially less than morally
sure of their conclusion. Second,
the judge cong sested the criminal

standard of proof beyond a reasonable
doubt with the civil standard of
preponderance of the evidence in a
way that [he] claims was confusing.
Finally, {he) claimed that the
reasonable doubt instruction was
unbalanced in that ‘it heavily
emphasized why the burden of proof
could not be too vigorous, but failed
to explain at all why it was
important that the burden be as
vigorous as it was.'
Appendix A, at p. 4.
The federal District Court held that
as a result of these defects there was a
"significant possibility” the jurors had
no clear sense ‘mat degree of certainty
was required to convict the respondent
and thus his due process rights were
violated. Appendix B, at p. 10. The
District Court granted the writ, and the
petitioner (the Commonwealth) appealed.
Rejecting the petitioner's arguments

that the harmless error rule announced in
Chapman mv. California, 386 U.S. 18
(1967), and extended by Rose v. Clark,

= 2 «

478 U.S. 570 (1986), applied to alleged
errors in a jury instruction on
reasonable doubt, and that, in this case,
the evidence was so overwhelming that the
error was harmless, the United States
Court of Appeals for the First Circuit
affirmed the order of the District Court
allowing the writ of habeas corpus.

Appendix A, at pp. 36-46.

REASONS FOR GRANTING
THE WRIT OF CERTIORARI

I. The Petition For A Writ Of Certiorari

Ci reuit Ruled That The Chapman

Harmless Error Rule Did Not Apply Toa

An Alleged Error in Jury Instructions

On The Prosecution's Burden of Proof

Beyond a Reasonable Doubt.

Contrary to Pope v. Illinois, 107
S.ct. 1918, 1922 (1987), the Court of
Appeals for the First Circuit in its
decision below, "continued to have

serious doubts whether a conviction

— . 2

a

obtained without a proper’ reasonable
doubt instruction could ever be upheld”;
understood Rose _v. Clark, 478 U.S. 570
(1986) “to imply that another error that
might well trigger automatic reversal of
a conviction is the absence of a proper
reasonable doubt instruction"; and held
that the harmless error analysis did not
apply to an alleged error in a jury
instruction on the state's burden of
proof beyond 4 reasonable doubt.

a Appendix A, at pp. 37-44. a/

3/ The Court of Appeals for the First
Circuit explicitly ruled chat +
conviction obtained without a proper
reasonable doubt instruction could not be
upheld, and that it understood this Court
in Rose to imply that an error in an
instruction on reasonable doubt’ might
trigger automatic reversal. See Appendix
A, at pp. 37, 45-46. Stating that it was
"express[ing] no opinion on the matter,”
the Court of Appeals added that it was
"arguable that there will be some case in
which the evidence is so compelling that
no reasonable person possibly could reach
a verdict of innocence. Perhaps’ this
would be so if the government introduces
a voluntary confession that is not

(footnote continued)

— ° =

rr rr

Since this Court decided Chapman v.

California, 386 U.S. 18 (1967), it has

(footnote continued)

challenged at trial by the defendant

But a) ase instance, where the
Commonwealth's case rested substantially
on the credibility of the alleged victim,
[the Court] [could not] say that the

errors in the reasonable doubt
instruction were harmless beyond a
reasonable doubt.” Id. In addition to

making a determination that the harmless
error rule does apply to alleged errors
in the instruction on reasonable doubt,
this Court may revisit the issue whether,

in this case, the alleged error was
harmless in light of the overwhelming
nature of the evidence. The

determination whether the evidence was
overwhelming is a question of federal
constitutional law subject to review de
novo by this Court. United States v.
Hasting, 461 U.S. 499, 510 (1982),
citing, inter alia, Harrington v.
California, 395 U.S. 250, 254 (1969) and
Chapman, 386 U.S. at 24-26. See also
Rushen v. Spain, 464 U.S. 114, 120 (per
curiam) (1983); Herd v. Kincheloe, 800
F.2d 1526, 1528 (9th Cir. 1986) (ultimate
question whether Sandstrom error was
harmless was subject to de novo review);
McKenzie v. Risley, 842 F.2d 1525 (9th
Cir. 1988) (same); 28 U.S.C. §2111 ("On
the hearing of any appeal or writ of
certiorari in any case, the court shall
give judgment after an examination of the
record without regard to errors Or
defects which do not affect the
substantial eagnts of. the parties.")

"*repeatedly reaffirmed the principle
that an otherwise valid conviction should
not be set aside if the reviewing court
may confidently say, on the whole record,
that the constitutional error was
harmless beyond a reasonable doubt.'
Ww Vv Vv » 475 U.S. 673,
681 (1986)." Rose v. Clark, 478 U.S.
570, 576 (1985). The Court has applied
the harmless error principle generally to
a variety of constitutional errors. See,
. e.g., Van Arsdall, 475 U.S. at 684
(failure to permit cross-examination of
witness); United States v. Hasting, 461
U.S. 499, 508-509 (1983) (improper
comment by prosecutor on defendant's
failure to testify); Milton Vv.
Wainwright, 407 U.S. 371, 377 (1972)
(improper admission of confession

obtained in violation of right to

counsel); Rushen v. Spain, 464 U.S. 114,
118 (1983) (per curiam) (violation of
defendant's right to be present at

trial); Harrington v. California, 395

U.S. 250, 254 (1969) (admission of
non-testifying co-defendant's statement).
Specifically, the Court has applied
the harmless error principle to alleged
errors in jury instructions. See Rose,
478 U.S. at 576 (Chapman harmless error
rule applied to jury instructions which
inproperly shifted the burden of proof on
the issue of malice); Connecticut v,.
Johnson, 460 U.S. 73, 87 (1982)
(Sandstrom error may be harmless if the
defendant conceded issue of intent).
Indeed, “while there are some errors to
which Chapman does not apply, they are
the exception and not the rule.
Accordingly, if the defendant had counsel

and was tried by an impartial

seni

adjudicator, there is a strong
presumption that any other errors’ that
may have occurred are subject to
harmless-error analysis." Rose, 478 U.S.
at 579 [citation omitted] ;4/ see also
Pope _v. Illinois, 107 S.Ct. 1918, 1922
(1987).

"To the extent that cases prior to
Rose,’ may indicate that a conviction
can never stand if the instructions
provided the jury do not require it to
find each element of the crime under the

proper standard of proof, see, O.8.%

Cabana v. Bullock, 474 U.S. 376, 384, 106

4/ In Rose, 478 U.S. at 578 n.6, the
Court gave the following examples of
errors which would not be harmless: use

of coerced confession, Payne v. Arkansas,
356 U.S. 560 (1958); denial of counsel,
j Vv Wainwri P 372 U.S. 333

(1963); and biased adjudication, Tumey v.
Qhio, 273 U.S. 510 (1927).

2/7 Rose v. Clark, 478 U.S. at 579.

S.Ct. 689, __, 88 L.Ed.2d 704 (1986),

after Rose, they are no longer good
authority.” Pope v. Illinois, 107 S.Ct.
= i922 8. 7. Thus the suggestion in
dictum in Jackson v. Virginia, 443 U.S.
suf, 320 n. 14 (1979) and United

Brotherhood of Carpenters and Joiners of

America v. United States, 330 U.S. 395,
410 (1947) to the effect that the failure
to instruct a jury on the “beyond a
‘éanonabie doubt" standard cannot be
harmless, is no longer good authority.
Rather, after Rose, 485 U.S. at 579
and Pope, 107 S.Ct. at 1922, the harmless
error principle must be applied to
allegedly deficient instructions on
reasonable doubt. There is no reason to
draw a distinction between instructions
which allegedly shift the burden of proof
and instructions which allegedly dilute

the burden of proof, particularly in a

nT

case where, in view of the uncontested or
overwhelming evidence, the reviewing
court can determine for itself that “the
facts found by the jury were such that it
is clear beyond a reasonable doubt that
if the jury had never heard the
impermissible instruction its verdict
would have been the _ same.” Pope, 107
S.Ct. OC 2922 See also United States v.
Hasting, 461 U.S. at 510-511 ("The
question a reviewing court must ask is
this: absent the prosecutor's allusion to
the failure of the defense to proffer
evidence to rebut the testimony of the
victims, is it clear beyond a reasonable
doubt that the jury would have returned a
verdict of guilty?").

In this case, it is clear beyond a
reasonable doubt that even with a more
thorough instruction on "beyond a

reasonable doubt,” the jury would have

Bie

reached a guilty verdict. As summarized
above, the evidence was overwhelming.
Indeed, as noted, the prosecution's
evidence aside, the respondent conceded
that he was present (Tr. 166); that there
was a fight (Tr. 169); that “something
happened” (Tr. 173); that the victim knew
him (Tr. 173); and that the victim was
stabbed twice. vee i735). As also
noted above, Lanigan presented no defense

gd he did not testify. (Tr. 159).

Thus, the victim's testimony was
uncontradicted. In short, the sheer

weight of the Commonwealth's evidence,
coupled with the absence of any
alternative version of the facts tendered
by the respondent, assured that any error
in the trial court's instruction was

harmless beyond a reasonable doubt.

ee

II. The Petition For A Writ Of Certiorari
Should Be Granted Because Of The
Facial Conflict Squarely Confronted
; Fed 1 wa ey pm Stal

Instructions On The State's Burden Of
Proof Beyond A Reasonable Doubt

There is a direct conflict between
the decisions of the state and federal
courts on the issue whether the harmless
error analysis applies to alleged errors
in jury instructions on reasonable
doubt. This conflict is unavoidably
confronted when the federal court reviews
state court convictions on habeas review.

In Commonwealth v. Garcia, 379 Mass.
422, 442, 399 N.E.2d 460, 472-73 (1980),
the Massachusetts Supreme Judicial Court
held that an error in the trial court's
reasonable doubt charge was harmless in

light of the “overwhelming evidence of

guilt.” In the instant case, however,
the Court of Appeals for the First
Circuit, however, in the instant case
“disagree[d] with the SJC's conclusion”
that an error in the reasonable doubt
charge could ever be harmless. Lanigan,
835 F.2d at 50 n.8; Appendix A, at p.
44. Thus, the petition for a writ of
certiorari should be granted pursuant to
S.Ct. R. 17.1(a) because the Court of
Appeals for the First Circuit has decided
a federal question in a manner. which
conflicts with a state court of last
resort.

The direct conflict between the
decision of the Court of Appeals for the
First Circuit that the harmless’ error
analysis does not apply to alleged errors
on the burden of proof beyond a
reasonable doubt and the state Supreme
Judicial Court's view that it does, is
compounded by the fact that prior to its

— ; oe

|

decision in Lanigan, the Court of Appeals
for the First Circuit had noted that
"Li]t can be said beyond any doubt that
the words ‘reasonable doubt’ do not lend
themselves to accurate definition[,]”
United States v. Gibson, 726 F.2d 869,
874 (lst Cir.), cert. denied, 466 U.S.
960 (1984), and had joined a growing
number of appellate courts in approving a
reasonable doubt instruction in which the
term “reasonable doubt” is not defined at
all. United States v. Olmstead, 832 F.2d
642, 646 (lst Cir. 1987) cert. denied,
108 S. Ct. 1739 (1988); United States v.
Littlefield, 840 F.2d 143, 146 (1st Cir.
1988). See Murphy v. Holland, 776 F.2d
470, 475 (4th Cir. 1985) ("the wisest
course for trial courts to take is to
avoid defining reasonable doubt in their
instructions unless specifically

requested to do so by the jury"), vacated

“ee

ee a are ee eee

on other grounds, 475 U.S. 1138 (1986);

United States v. Lawson, 507 F.2d 443,

441-43 (7th Cit. 1974) (defining
reasonable doubt is optional with trial
judge), cert. denied, 420 U.S. 1004
(1975); United States v. Witt, 648 F.2d
608, 610-11 (9th Cir. 1981) (same).
Moreover, prior to its decision in
anigan that the judge's definition of
reasonable doubt in terms of "moral
certainty" and "to a degree of moral
certainty” was constitutionally
defective, the Court of Appeals for the
First Circuit had condemned the practice
of defining reasonable doubt in terms of

“moral certainty. "2

6/ The court, however, had not found the
use of the phrase to be agg ae clay
error. See, Fr: United States Vv.
Drake, 673 F.2d 15, 21 (lst Cir. 1982);
United States v. Indorato, 628 F.2d 71l,
720-21 (lst Cir. 1980); United States v.
Ariza-Ibarra, 605 F.2d 1216, 1228 (lst
Cir. 1979); United States v. DeVincent,
632 F.2@ 147; i853 CaSt Gat. 2eeers

a. $8 «

United States v. Del Toro Soto, 676 F.2d
13, 17 (lst Cir. 1982); United States v.
DeWolf, 696 F.2d l, 4 (lst Cir. 1982).

The decisions of the Court of Appeals
for the First Circuit in this’ regard
directly conflict with the decisions of
the state's highest court. In contrast
to the aforementioned federal decisions
which encourage the trial judge not to
define reasonable doubt, Qlmstead, 832
F.2d at 646, and condemn the use of the
term “moral certainty” to define it, Del
Toro Sota, 676 F.2d at 17, the
Massachusetts state appellate courts not
only require that a definition of
reasonable doubt be given, Commonwealth
v. Stellberger, 25 Mass. App. Ct. 148,
150, 515 N.E.2d 1207 (1987) (expressly
rejecting Qlmstead: “the necessity for a
proper instruction on the meaning of
reasonable doubt is a matter of state law

which, in this area, requires more than

o 26 a

the First Circuit does"), but they also
require that the concept of reasonable
doubt be defined in terms of “moral
certainty,” first set out in Commonwealth
v. Webster, 59 Mass. (5 Cush.) 295, 320
(1850). See Commonwealth v. Sheline, 391
Mass. 279, 293 n.4 (1984); Commonwealth
v. Morse, 402 Mass. 735, 737 (1988);
Commonwealth v. A Juvenile, 396 Mass.
215, 217+19 (1985); Commonwealth _v.

Tavares, 385 Mass. 140, 147-148, cert.

denied, 457 U.S. 1137 (1982);
Commonwealth v. Lanoue, 392 Mass. 583,
S591 (1984), subsequent case history
omitted; Commonwealth v. Spann, 383 Mass.
142, 150-151 (1981); Commonwealth v.
Carballo, 381 Mass. 227, 229 (1980);
Commonwealth v. Hughes, 380 Mass. 596,
600-601 (1980); Commonwealth v. Williams,
378 Mass. 217, 231-235 (1979);
Commonwealth v. Seay, 376 Mass. 735,
745-746 (1978); Commonwealth ._v,

—. .

Smith, 381 Mass. 141, 146 (1980),

-As Lanigan illustrates, this conflict
between the federal and state courts is

1/ and irremediable

irreconcilable
without this Court's’ intervention. As
the matter now stands, an instruction
that is constitutionally sufficient as a
matter of state law may be deficient as a
matter of federal law; and an instruction
that is constitutionally sufficient as a

matter of federal law may be deficient as

a matter of state law.

77 At least one federal district court
judge has found that such a conflict
exists. In Smith ov, Butler, No.
86-3273-WD, slip. op. at 9 (D. Mass.
Sept. 23, 1988) (order denying petition
for writ of habeas corpus), Judge
Woodlock found that "[a] clear and

unavoidable conflict exists between
federal and state courts in Massachusetts
over the use of the term ‘moral

certainty’ in defining reasonable doubt.”

ee ae

Ezz. The Reasonable Doubt Instruction
ot GR RR OR dee a ee
Entire Trial That The Resulting
Conviction Violate[d] Due Process"
Because The Emphasis On Moral
Certainty, The Contrast To Civil
Cases, And The Explanation Of What
Reasonable Doubt Was Not,
Adequately Conveyed The Meaning Of
“Beyond A Reasonable Doubt.”

The federal courts sitting on habeas
review of the state court conviction in

this case judged the instruction too

8/

harshly. Taken as a whole, the

reasonable: doubt instructions “conveyed

8/ The Court of Appeals for the First
Circuit agreed that its standard of
review was "circumscribed because [the
court was] reviewing a state criminal
proceeding rather than a federal case"
and that the proper standard of review
was “whether the challenged aspects of
the charge so infected the entire charge
and trial as to cause the jury to
evaluate petitioner's guilt or innocence
under a standard less than ‘beyond a
reasonable doubt,' Bumpus_v. Gunter, 635

F.2d 907, 909 tet eS 1980),”" but
concluded that the challenged
instructions “so infect[ed] the entire
charge and trial." lLanigan, 835 F.2d 40,

48 n. 7 (lst Cir. 1988); Appendix A, at
pp. 35-36.

the meaning established by law."
Commonwealth v. Bumpus, 362 Mass. 672,
682, 290 N.E.2d 167, 175 (1972); Bumpus

v. Gunter, 635 F.2d 907, 910 (lst Cir.

1980).

The use of the language "moral
certainty” did not dilute the
Commonwealth's burden of proof. The use

of “moral certainty” language to explain

reasonable doubt is a “proper definition

of the Commonwealth's burden.
Commonwealth v. Watkins, 377 Mass. 385,
388 (1979) .. . Indeed, emphasis on the

necessity of moral certainty of guilt
before convicting a defendant may
overcome isolated inadequacies in an
explanation of proof beyond a reasonable
doubt. See Commonwealth v. Grace, 376
Mass. 499, 500-501 (1978)." Commonwealth
vy. Williams, 378 Mass. 217, 233, 391
N.E.2d 1202, 1212-1213 (1979). See also

Commonwealth v. Smith, 381 Mass. 141, 146

—' =

(1980), subsequent case history omitted.
In fact, the language of Commonwealth v.
Webster, 59 Mass. (5 Cush.) 295, 320
(1850), which state law both sanctions
and requires as a definition of “beyond a
reasonable doubt," Commonwealth Vv.

Stellberger, 25 Mass. App. oe 148

(1987), defines reasonable doubt in terms
of moral certainty.~

"Standing alone, [the "moral
certainty"] language [did] not constitute
plain error," United States v, Drake,
G73 *.26 i585, 2i (38 Cit. 2962), Ie

alone reach[ed] a “level of legal or

9/ One federal district court judge has
noted that “the use of ‘moral certainty’
as a means of defining proof beyond a
reasonable doubt seems to have something
approaching a talismanic effect in the

Massachusetts state courts, Saving
otherwise problematic jury instructions
from causing reversals of criminal
convictions." Smith Vv. Butler, No.

86-3273-WD, slip. op. at 13 nn. 9 (D.
Mass. Sept. 23, 1988) (order denying
petition for writ of habeas corpus).

“> ae

St a rs

constitutional error." United States v.
Indorato, 628 F.2d 711, 720 (1980). This

ls particularly true in this case, where
Lanigan did not specifically object at
trial, Indorato, 673 F.2€ at 21; the
trial judge instructed the Jury
repeatedly that the Commonwealth had the
burden of proof beyond a reasonable
doubt, Tavares, 385 Mass. at 148, 430
N.E.2d at 1203; and he advised the jury
that guilt must be established “beyond a
realm of speculation, guess work,
surmise. That sort of thing must be
established . . . [b]Jeyond a reasonable
doubt.” (Tr. 192). Cé, Drake, 673 F.20
at 21 ("A defendant is never to be
convicted upon mere suspicion Or
conjecture.").

The judge's isolated use of the
phrase "to a degree of moral certainty”
was at most a technical error that did
not dilute the standard of proof or

—

‘
;
}
:
i

amount to constitutional error. See Dunn
ioe ©. 2a 213, 25 (list Cir.),
cert. denied, 437 U.S. 910 (1978), citing

Cupp v. Naughten, 414 U.S. 141, 147

(1973). The remainder of the charge made
it clear how strict the standard of proof
was. It must of course be presumed that
the jury listened to the entire charge.
"A reasonable juror can be expected to
listen to all he/she is told by the judge
and it will be presumed that he/she will
not isolate a particular portion of the
Charge and ascribe to it more importance
than the rest.” McInerney v. Berman, 621
F.2d 20, 24 (lst Cir.), cert. denied, 449
U.S. 867 (1980).

The jury was repeatedly advised as to
the correct burden of proof (six times:
Tr. 190, 192, 193); was admonished to
render an impartial verdict (See Tr.

191); and was informed throughout of the

solemnity of its responsibility. (Se.
186-187, 207). Cf. Bumpus v. Gunter, 635
F.2d 907, 911 (lst Cir. 1980), cert.
denied, 450 U.S. 1003 (1981). The
judge's warning relative to the holding
of the Commonwealth to too strict of a
standard of proof was balanced by his
instruction that Lanigan's guilt must be
"established beyond a realm of
speculation, guess work, surmise" (Tr.
192) and by his emphasis that the verdict
must be based on the evidence presented
et “Greed. CTE. 20a « Commonwealth v.
Sheline, 391 Mass. 279, 296, 461 N.E.2d
1197, 1208-1209 (1984). His emphasis on
the presumption of innocence (Tr. 193)
also helped “to mitigate any negative
effect of the judge's one-sided
warning.” Sheline, 391 Mass. at 296-297,
461 N.E.2d at 1209. The instruction also

was devoid of any of the “strong

=

‘emotional over-tones' of the

[Commonwealth v.] Medeiros, [255 Mass.
304, 307 (1926)) rhetoric.” Id. at 297,
461 N.E.2d at 1209.

"(T]he instruction did not advocate
deviating from the reasonable doubt
standard; it merely told why the
government's burden was less than
absolute.” Bumpus, 635 F.2d at 91l. In
context, the instruction was “not a
misformulation of the prosecution's
burden of proof, but an attempt to
explain reasonable doubt negatively.”

Commonwealth v. Williams, 378 Mass. 217,

234, 391 N.E.2d 1202, ese (1979).
"Negative" definitions of the
Commonwealth's burden of proof are not
error Or prejudicial error per se.

Williams, 378 Mass. at 234, 391 N.E.2d at

1213; United States v. DeVincent, 632
F.24 147, 153 (ist Cir. i960). In this

case the negative instruction aided the
jury to understand the standard of
proof. "Conceptually, such proof is
sufficiently metaphysical that it may be
helpful to a jury to know what does not
measure up to the standard if such
instruction is accompanied by Webster
language as to the active ingredients of
the proof.” Commonwealth v. Pires, 389
Mass. 657, 664, 451 N.E.2d 1155, 1160
(1983). "Defining something as ‘not A,
but B' is a familiar enough idiom not to
be beyond the grasp of the average
juror.” DeVincent, 632 F.2d at 153.

The judge's contrast of the criminal
and civil standards of proof also helped
the jury understand the Commonwealth's
burden of proof. Cf£. Commonwealth v.
Beverly, 389 Mass. 866, 872, 452 N.E.2d
1112, 1116 (1983) (“Language stating that

proof beyond a reasonable doubt is not

o 15S

proof beyond a-= preponderance of the
evidence . . . is unexceptional, although
obviously the jury must be told = much
more."). The judge here repeatedly told
the jury that he was contrasting the
Civil and criminal standards of proof and
that they were sitting in a4 criminal
session. (Tr. 190-192). As the state
appellate court found, the
differentiation, along with the emphasis
on moral certainty and the caution

against speculation, adequately explained

the concept of reasonable doubt.
Commonwealth v. Lanigan, 12 Mass. App.

Ct. 913, 914-915, 423 N.E.2d 800, 802

(1981). There was no error, let alone
constitutional error. Bumpus, 635 F.2d
at 913.

ae

CONCLUSION

FOr the foregoing reasons, the
petition for a writ of certiorari to
review the judgment of the United States
Court of Appeals for the First Circuit

should be granted.
Respectfully submitted,

JAMES M. SHANNON
Attorney General

~- G. sapren)*

Assistant ee ey aikia
Crimtmal Bureau

One Ashburton Place

Boston, Massachusetts 02108
(617) 727-2200 ext. 2816

* Counsel of Record
Date:

44897

UNITED STATES COURT OF APPEALS,
FIRST CIRCUIT

Nos. 88-1209, 88-1424

THOMAS J. LANIGAN,
Petitioner, Appellee,
V.

MICHAEL T. MALONEY,
Respondent, Appellant.

APPEALS FROM THE UNITED STATES
DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS
{Hon. Walter Jay Skinner,
U.S. District Judge]

Judy G. Zeprun, Assistant Attorney
General, Criminal Bureau, with whom

James M. Shannon, Attorney General, was
on brief for respondent.
David J. Fine, by Appointment of the

Court, with whom Silverglate. Gertner,
Fine & Good was on brief for petitioner.

August 9, 1988

"Of the District of Puerto Rico,
sitting by designation.

APPENDIX A

, Before
Coffin and Selya, Circuit Judges,
and Acosta,* District Judge.

COFFIN, Circuit Judge. The district
court granted Thomas J. Lanigan's

petition for a writ of habeas corpus on

the ground that the instructions on
reasonable doubt given at his criminal
trial in Massachusetts state court were
constitutionally defective. The
Commonwealth appeals, claiming that the
district court erred both on the merits
and in failing to find that Lanigan's
claim is procedurally barred. We have
carefully considered the Commonwealth's
arguments, but conclude that the
district court properly found a
redressible constitutional violation.
We therefrom affirm.

q.

Petitioner Thomas J. Lanigan was
convicted in Massachusetts of armed
robbery, assault with intent to murder,
assault and battery with a dangerous
weapon and kidnapping. At trial,

—*. oe

|
|
)
.

petitioner specifically requested
reasonable doubt instructions in the
language of Commonwealth v. Webster, 59
Mass. (5 Cush.) 295, 320 (1850), a
long-standing formulation repeatedly
approved by the Massachusetts Supreme
Judicial Court. Petitioner objected to
the trial judge's failure to conform to
the Webster charge, and later challenged
the instruction on appeal.

The Massachusetts Appeals Court
reversed the two assault convictions
because of problems with the jury
instructions on those particular crimes,
but affirmed the convictions for armed
robbery and kidnapping. The court found
that the reasonable doubt charge “passed
muster .. . , although the question is
close." Commonwealth v. Lanigan, 12
Mass. App. Ct. 913, 915 N.E.2d 800, 802
(1981). The Supreme Judicial! Court

oe

denied Lanigan's petition for further
appellate review.

In his petition for a writ of habeas
corpus, Lanigan challenged the
reasonable doubt instruction on three
grounds. First, he complained that the
judge twice equated proof beyond a
reasonable doubt with “proof to a degree
of mora. certainty,” allowing the jurors
to find guilt even if they were
substantially less than morally sure of
their conclusion. Second, the judge
contrasted the criminal standard of
proof beyond a reasonable doubt with the
Civil standard of preponderance of the
evidence in a way that petitioner claims
was confusing. Finally, petitioner
claimed that the reasonable doubt
instruction was unbalanced in that “it
heavily emphasized why the burden of
proof could not be too rigorous, but

failed to explain at all why it was

—.

important that the burden be as rigorous
as it was."

The district court held that as a
result of these defects “there is a
Significant possibility that the jurors
in this case entered the jury room with
no clear sense of what degree of
certainty was required in order to
convict the defendant,” thus
"'obfuscat[ing] one of the "essentials
of due process and fair treatment,"'”
District Court opinion at 6 (quoting
-Dunn v. Perrin, 570 F.2d 21, 25 (lst
Cir. 1978) (quoting In re Winship, 397
U.S. 358, 359 (1969)). The court
therefore granted Lanigan's petition for
a writ of habeas corpus.

On appeal, the Commonwealth argues
first that petitioner's claim is
procedurally barred because he failed at
trial to make the three specific

objections to the charge that he now

« AS «

ee

makes in his habeas corpus petition.

The Commonwealth argues secondly that
the reasonable doubt instruction
adequately conveyed the meaning of
“beyond a reasonable doubt." Finally,
the Commonwealth argues that even if
there was error, it was harmiess because
of the overwhelming evidence against
petitioner. We begin with the
Commonwealth's procedural point.

If.

The Conmonmesith argues that
petitioner is in procedural default
because his trial counsel's general
objection that the reasonable doubt
instruction did not follow the language
of Commonwealth v. Webster was
insufficient to comply with the
Massachusetts rule that “where a party
alleges error in a charge he must bring
the alleged error to the attention of
the judge in specific terms in order to

a

give the judge an opportunity to rectify
the error, if any,” Commonwealth v.
McDuffee, 379 Mass. 353, 357 & n.3, 398
N.E.2d 463, 465 & n.3 (1979). See also
Mass. R. Cria. P. 24(b) ("No party may
assign as error the giving or the
failure-to give an instruction unless he
objects thereto before the jury retires
to consider its verdict, specifying the
matter to which he objects and the
grounds of his objection.”) Under
Wainwright v. Sykes, 433 U.S. 72, 87
(1977), a defendant's failure to object
at his state trial may constitute “an
independent and adequate state
procedural ground” sufficient to
foreclose federal habeas corpus review
if the state has a contemporaneous
objection rule and has not waived its
application. Puleio v. Vose, 830 F.2d
1197, 1199 (lst Cir. 1987). The

Commonwealth argues that the Wainwright

“ae «

doctrine bars federal review in this
case.

The exhaustion doctrine, which the
Commonwealth does not directly
invoke, 2’
raises similar questions about whether
we may entertain Lanigan's petition for
a writ of habeas corpus. In general,
the exhaustion doctrine requires that a
state defendant seeking to overturn his
conviction on federal grounds first must
Give the state courts "a fair
opportunity” to consider his ciaims.
Picard v. Connor, 404 U.S. 270, 276
(1971). This means that the habeas
corpus petitioner must have presented

the substance of his federal

l1/ The Commonwealth does not expressly
claim that petitioner failed to exhaust
his state remedies in state court, but
in its brief it relies not only on cases
discussing procedural default but also
on cases and principles concerning
exhaustion. We therefore believe it
appropriate to consider both issues.

— oe

constitutional claim to the state
appellate courts so that the state had
the first chance to correct the claimed
constitutional error.

We conclude that neither the
Massachusetts contemporaneous objection
rule nor the exhaustion doctrine bars
federal review of Lanigan's claim. We
shall address each in turn, beginning
with the’ objection rule.

At the conclusion of the jury
charge, petitioner's trial counsel said
simply, “Commonwealth versus Webster in
my instructions.” This skeletal
objection ordinarily might be dismissed
as inadequate to preserve any issue
connect*ed with the charge. But in this
instance, everyone, including the judge,
clearly understood the reference to
Commonwealth v. Webster as an objection
to the reasonable doubt instruction.

The Commonwealth does not dispute that

oA «

counsel's statement at the close of the
charge sufficiently preserved an
objection to the reasonable doubt
charge; it claims only that the specific
objections raised in federal court
differed from those made in state court.

The problem we find in the
Commonwealth's finely tuned argument is
that, once we acknowledge that a
cognizable objection has been made, we
find it difficult to escape the
conclusion that petitioner’s demand was
for the essence of the Webster charge,
i.e., a balanced charge highlighting the
high burden of proof. If such was the
clear purport of the demand, we fail to
see how petitioner's three present
specifications of imbalance should not
fairly be deemed covered by his more
comprehensive objection.

In an effort to understand how much
is conveyed both by the Webster charge

- AlOd -

and by a simple objection to its not
being given, we first dissect the

Webster charge itself .*/

2/ Lanigan requested the following
language:

"(A reasonable doubt] is a term often
used, probably pretty well understood,
but not easily defined. It is not mere
possible doubt; because everything
relating to human affairs, and depending
on moral evidence, is open to some
possible or imaginary doubt. It is that
state of the case, which, after the
entire comparison and consideration of
all the evidence, leaves the minds of
jurors in that condition that they
cannot say the feel an abiding .
conviction, to a moral certainty, of the
truth of the charge. The burden of
proof is upon the prosecutor. All the
presumptions of law independent of
evidence are in favor of innocence; and
every person is presumed to be innocent
until he is proven guilty. If upon such
proof there is reasonable doubt
remaining, the accused is entitled to
the benefit of it by an acquittal. For
it is not sufficient to establish a
probability, though a strong one arising
from the doctrine of chances; that the
fact charged is more likely to be true
than the contrary; but the evidence must
establish the truth of the fact to a
reasonable and moral certainty; a
certainty that convinces and directs the
understanding, and satisfies the reason
and judgment, of those who are bound to
act conscientiously upon it. This we
take to be proof beyond a reasonable

(footnote continued)

- All -

In eight tightly constructed sentences,
these points are made: the term
"@asonable doubt" is not easily
defined; it is not “mere possible
doubt"; it exists when there is no
“abiding conviction, to a moral
certainty"; the burden of proof is on
the prosecutor and all presumptions
favor innocence; even a “strong”
probability of guilt is not enough;
evidence must establish guilt to a
"reasonable and moral certainty” that
"convinces .. . the understanding”;
going beyond this would require absolute

certainty and exclude circumstantial

(footnote continued)

doubt; because if the law, which mostly
depends upon considerations of a moral
nature, should go further than this and
require absolute certainty, it would
exclude circumstantial evidence
altogether."

This instruction is, with the
exception of some punctuation and other
minor changes, drawn verbatim from

Webster, 59 Mass. at 320.

- Al2 -

<< -

evidence. This passage takes no fewer
than five approached to conveying the
essence: (1) what is less than
reasonable doubt; (2) where the burden
lies; (3) whom the presumptions favor;
Bs (4) what kind of moral certainty amounts
to reasonable doubt; (5) what is more
than reasonable doubt. We find it hard
to imagine, without recourse to
prolixity, a charge more reflective of
the solemn’and rigorous standard
intended.

In light of the care demonstrated in
Webster, it is not surprising that the
Supreme Judicial Court repeatedly has

taken pains in recent opinions to

endorse the century-and-a-quarter-old
formulation. See, e.g., Commonwealth v.
Ferreira, 373 N.E.2d 1264, 1273 n.12
(1977); Commonwealth v. Therrien, 371

Mass. 203, 209, 355 N.E.2d 913, 916-917

(1976); Commonwealth v. Gerald, 356

- Al3 -

Mass. 386, 390, 252 N.E.2d 344, 347
(1969). Indeed, the Supreme Judicial
Court specifically has encouraged
Massachusetts trial judges to adhere to
the “time-tested” Webster charge as a
way of protecting against juror
confusion over the meaning of the
reasonable doubt standard. See, e.g.,
Therrien, 371 Mass. at 208-209, 355
N.E.2d at 916 ("freehand embellishments
of the standard charge .. . can only
create uncertainty and breed needless
appeals”).

This particular history of this
seminal instruction persuades us that an
objection noting generally the failure
to charge in the language of Webster is
entitled to be construed as protesting
Significant deviations from the
sensitive balance in favor of a
defendant achieved in that case. In
essence, this history suggests that to
say more is unnecessary; it is to be

- Ald -

expected that Massachusetts judges know
the Webster charge, know what content is
sought when it is requested, and know
what omissions or assertions are
contested when a lawyer objects to the
failure to give the charge.

Moreover, in his brief to the state
appeals court, petitioner obviously went
beyond the content of his trial
counsel's voiced objection by
complaining, inter alia, that the
concept of “moral certainty” was
insufficiently explained. In giving
serious consideration to petitioner's
appeal, the Massachusetts Appeals Court
implicitly accepted the objection made
by petitioner's counsel as sufficient to
preserve his more specific appellate
claim. The Appeals Court apparently
recognized that, although petitioner's
argument had on appeal become more

detailed, its substance had not

- Al5 -

changed. We do not believe that the
state court would consider the
additional complaints about the
reasonable doubt standard made in
petitioner's habeas petition to be any
less preserved.

In addition, we note that after
petitioner's counsel objected to the
reasonable doubt instruction, the trial
judge expressed outright rejection of
the Webster charge, stating his
preference for formulations from cases
37

that do not, in fact, exist. By

3/ After petitioner objected, the trial
judge stated:

I didn't give for the record -- you
will read the Commonwealth and
Webster -- looking upon disfavor.

The Commonwealth and Rodriguez I
prefer to all the other cases, even
including one I like, Commonwealth
and Lummus.
The Commonwealth does not dispute
petitioner's representation that there
are no cases by the name of Commonwealth
v. Rodriguez or Commonwealth v. Lummus
that approve language for a reasonable
doubt instruction. It appears that the
trial judge was referring to Justice
Henry Tilton Lummus, who sat on the
Supreme Judicial Court from 1932 to 1955.

- Al6 -

invoking preferred "authority" to which
counsel obviously was unable to respond,
the judge cut off counsel's protest at
the point at which the lawyer could have
been expected to elaborate on the
inadequacies of the charge as given. In
these circumstances, at least, we are
confident that the Massachusetts courts
would not interpose a technical barrier
to petitioner's claim.

The exhaustion issue is even
clearer. "“({Petitioner] is not precluded
from some reformulation of the claims
[he] made in the state courts, since
exhaustion requires only that ‘the
substance of a federal habeas corpus
claim must first be presented to the
state courts.'" Williams v. Holbrook,
691 F.2d 3, 6 (lst Cir. 1982) (quoting
Picard v. Connor, 404 U.S. 270, 278
(1971)) (emphasis added in Williams).

Thus, although the legal theory behind

- Al? -

the claim raised to the state and
federal courts must be the same, “[t]his
does not mean that the petitioner must
have expressed the theory in precisely
the same terms." Gagne v. Fair, 835
F.a@ 6, 7.4466 Cit. i967). See Picard
v. Connor, 404 U.S. 270, 277 (1971)
("(T]here are instances in which ‘the
ultimate question for disposition’

will be the same despite variations in

the legal theory or factual allegations
urged in its support.”)

The substance of Lanigan's claim has
not changed; in both state and federal
courts, he has argued that the
reasonable doubt standard was not
adequately conveyed to the jury and that
the charge as given therefore
trivialized the burden of proof needed
to convict. The added detail in
Lanigan's habeas corpus petition is

precisely the sort of reformulation

- Alg -

anticipated and allowed by the courts.
See Picard, 404 U.S. at 277 (challenging
a confession based on psychological as
well as physical coercion does not
change the ultimate question before the
court); Watkins v. Callahan, 724 F.2d
1038, 1041 (lst Cir. 1984) (federal
claim that an evidentiary hearing should
be held to determine who initiated
certain conversations was adequately
presented to state court, where
petitioner argued that such statements
should be suppressed per se). See also
Daye v. Attorney General of the State of
New York, 696 F.2d 186, 192 n.4 (2d Cir.
1982) (en banc) ("By the same legal
‘basis’ or ‘doctrine,’ we do not mean
that there can be no substantial
difference in the legal theory advanced
to explain an alleged deviation from
constitutional precepts. ... A
number of legal theories may be advanced

- Al -

as to why a confession was not
voluntary. Yet all that is needed to
alert the state courts to the
constitutional nature of the claim is
the exposition of the material facts and
the assertion that the confession was
not voluntary.")

Some claims of constitutional
violations -- such as ineffective
assistance of counsel or unfair trial --
encompass an almost limitless range of
possible errors. A defendant raising a
Sixth Amendment violation who complained
in state court about counsel's failure
to object to certain testimony should
not be deemed to have exhausted his or
her remedies if the federal court claim
asserts ineffective assistance of
counsel based on a conflict of
interest. In such a case, the state
court's analysis of the alleged

constitutional error necessarily would

- A20 -

differ substantially from the federal
court's consideration of the Sixth
Amendment claim. And the defendant's
Original argument would not have alerted
the state court to the claim that formed
the basis of the habeas corpus

petition. See, e.g., Gagne v. Fair, 835
F.2d 6, 9 (lst Cir. 1987) (no exhaustion
where state court claim of unfair trial
based solely on prosecutor's comment
vouching' for credibility of witness,
while habeas corpus petition claimed
that such comment violated his
constitutional rights in light of other
comments and entire proceedings);
Domaingue v. Butterworth, 641 F.2d 8,
12-13 (lst Cir. 1981) (no exhaustion
where petitioner's ineffective
assistance of counsel claim in state
court based solely on trial counsel's
failure to object to a self-defense
instruction, while habeas corpus

- A2l -

petition attacked lawyer generally based
on numerous occurrences not in state
court record); Turner v. Fair, 617 F.2d
7, 11 (lst Cir. 1980) (petitioner argued
new theory in federal court in support
of Sixth Amendment confrontation claim,
rendering state court analysis
irrelevant).

In contrast, Lanigan's claim to both
the state and federal courts depends
upon resolution of the same question --
whether the language of the trial
judge's instructions gave a clear sense
of the degree of proof necessary to
convict. This is unquestionably a case
in which the difference in petitioner's
arguments to the state and federal
courts represented "3 mere variation[]
in the same claim rather than a
different legal theory,” Wilks v.
Israel, 627 F.2d 32, 38 (7th Cir.

1980). Such a difference does not

- A22 -

a

preclude exhaustion. We therefore turn
now to consider the merits: of
petitioner's claim.

Itt.

Although criminal defendants
frequently challenge the content of the
reasonable doubt instruction given at
their trials, our experience has been
that even imperfect formulations usually
meet constitutional requirements when
viewed in the context of the entire
charge. See, e.g., United States v.
Glantz, No. 87-1121, slip op. at 26-27
fist ¢ike. mes 16, 1988); United States
v. Glenn, 828 F.2d 855, 861 (lst Cir.
1987); United States v. Munson, 819 F.2d
337, 345-46 (lst Cir. 1987); United
States v. Drake, 673 F.2d 15, 2i (lst
Cir. 1982); Bumpus v. Gunter, 635 F.2d
907, 909-913 (lst Cir. 1980). We

therefore begin by reproducing the

- A23 -

court's entire reasonable doubt
instruction:

You have sat throughout the month in
automobile accidents, products
liability, defects in automobile
manufacturers, Ford, Chrysler,
General Motors, defects in
machinery, defective parts of
machinery, fall downs on snow and
ice, breach of contract. What are
all those cases? They're Civil
cases. They don't belong in this
session. This is a Criminal session
not a Civil session and the only
reason I make any reference at all
to the Civil session is in
contradistinction to the Criminal
session, which this is, is to
emphasize to you burden of proof in
our blessed and wonderful country,
who is accused of a crime, that's
all Lanigan is. He was arrested, he
may have been indicted, he may have
been charged, he may have been
accused, he stands accused of a
Crime. A complaint on the fourth
floor, the District Court, an
indictment of this the second floor,
the felony session. What are they?
Pieces of paper that are accusations
that's all until a jury determines
the guilt or the innocence of the
party. So remember the mere fact a
person is arrested or a person --
you read in the paper that somebody
the Grand Jury has indicted them for
probable cause in crime -- remember
their guilt is nothing at that
point, until such time in our
blessed country as their guilt is
proven by a Criminal jury, such as

- A24 -

you are, beyond a reasonable doubt
and I am going to give you in a
minute what I consider the best case
that ever came down in the state as
to what is meant by proof beyond a
reasonable doubt by Judge Lummus a
Judge in another day and time, long
departed.

Now, on the Civil side of the
Court, which this is not, automobile
accidents, product liability, fall
down on snow and ice. On the Civil
side of the Court before you award
anybody a quarter, two things they
have to prove to your satisfaction.
What would they be? Number one:
Liability, blame, culpability,
responsibility, fault, negligence,
for the happening of, the occurrence
of the accident, or the incident,
with resulting injuries. Number
two: They have to prove that the
injury was directly related to the
happening of the accident. That's
the Civil side of the Court.

What's the burden of proof
there? Well, you have all seen it,
ladies and gentlemen, there isn't a
man or woman here who at sometime in
your life time haven't seen a
picture of the female goddess of
justice, or remember a statue or
picture. She stands before you
blindfolded, indifferent,
indifferent to prejudice,
indifferent to bias, indifferent to
anything in the nature of emotional
appeal, but she particularly stands
before you with what? The scales of
justice in her arms. And there, on
the Civil side of the Court, which

- A25 -

this is not, those scales of justice
must be tilted on liability and on
damages, both of them, by a fair
preponderance of the evidence,
before you award to any plaintiff.
That's the Civil side of the Court.

Now, I come to the Criminal
side of the Court, that's what we're
on today, the Criminal side of the
Court. This young man is accused of
four crimes and he stands accused,
indicted, he is charged with four
crimes. The burden here is not to
prove his guilt by a fair
preponderance of the believable
evidence, tilting the scales
Slightly in his favor. The burden
here, Mr. Foreman and ladies and
gentlemen of this jury is to prove
his guilt beyond a reasonable
doubt. On the Criminal side of the
Court, which this_is, a criminal,
one who is charged with a crime I
should say, not a criminal -- who is
charged with a crime -- his guilt
must he established beyond a realm

of speculation, guess work,
Surmise. That sort of thing must be
established how? Beyond a
reasonable doubt. Meaning what?
Meaning beyond all doubt? Never,
because it's impossible in our
society to prove anybody guilty of a
Crime beyond all doubt. That would
be too lofty a standard, it would be
unattainable. But the standard is
proof beyond a reasonable doubt.
Meaning what? That proof to a
degree of moral certainty. Meaning
what? That the 12 of you good
people, the jury will be reduced
from 14 to 12 by the clerk, lz of

- A26 -

you good people invoke and calling

upon your good God given common

sense and basically weight and
evaluate, recreate the evidence, you
are going to ask yourselves are we
satisfied, how? To a degree of
moral certainty not beyond an

absolute doubt that the accused did

commit the crime, or the crimes of

which he stands accused before us.

That's your issue, that's your job,

that's what you're here for today.

It is not my job, it's not any of

the judges' job.
(Emphasis added.)

Reduced to its basics, this charge
told the jurors that proof beyond a
reasonable doubt meant that the
defendant's guilt had to be proven not
merely by conjecture or guesswork but to
"a degree of moral certainty.” Less
than certainty was sufficient, the
jurors were told, because "it's
impossible in our society to prove
anybody guilty of a crime beyond all
doubt.”

We think this instruction created a

Significant risk that the jurors could
- A27 -

find guilt besed on a threshold of proof
below that required by the

Constitution. The primary problem, as
recognized by the district court, was
the use of the phrase “to a degree of
moral certainty.” The judge's
instruction essentially told the jurors
that they needed some undefined amount
of -- "a degree of" -- moral certainty
to find petitioner guilty. The
Massachusetts Appeals Court did not
comment on the trial judge's addition of
the words “a degree of" to the moral
certainty concept. We do not believe
those words may be overlooked.
Semantically, it is as if an instruction
in a tort case informed the jury that “a
degree of due care” was all that was
required of the defendant to avoid
liability. In this case, where an
individual's guilt or innocence is at

Stake, the not so subtle difference

- A28B -

represented by the words “to a degree
of" is of even greater importance.’
Although the use of this language on

its own may not always be constitutional

4/ The significance of using the phrase
“a degree of moral certainty” rather
than a “moral certainty” when discussing
the state of certitude necessary for
finding guilt seems even greater when
that language is contrasted with the
language from Webster, where the Supreme
Judicial Court did not use the moral
certainty concept in isolation but
linked it with other terms emphasizing
the high degree of proof needed. For
example, the SJC referred to an “abiding
conviction, to a moral certainty,” and
to evidence establishing proof to “a
reasonable and moral certainty.”

We repeatedly have criticized the
practice of defining reasonable doubt in
terms of “moral certainty,” although we
have not found use of the phrase to be
constitutional error. See, e.g., United
States v. Drake, 673 F.2d 15, 21 (lst
Cir. 1982); United States v. Indorato,
628 F.zd 711, 720-21 (lst Cir. 1980);
United States v. Ariza-Ibarra, 605 F.2d
1216, 1228 (lst Cir. 1979). While the
context of the Webster charge lessens
the potential for any harmful inferences
to be drawn by the jury, the use of the
phrase “to a degree of moral certainty,”
particularly without the Webster
context, is substantially more
problematic.

- A29 -

error, its harmful effect was given full
sweep in the present context. What was
said, and not said, in other parts of
the charge was likely to exacerbate,
rather than ameliorate, the troubling
aspects of the “to a degree of moral
certainty” language. First, in
otherwise defining the reasonable doubt
standard, the judge added little
dimension to the “degree of moral
certainty” description. He said only
that guesswork was not enough, and that
absolute certainty would be too much to
require -- leaving "a very broad
range." District Court Opinion at 5.
The instruction failed to convey the
Critical point that, while absolute oa
certainty is unnecessary, a belief in
guilt at least approaching absolute
certainty was required. In addition,
although the judge explained why

absolute certainty would be too much to

- A30 -

require, he never discussed why it was
important to require a very high
standard of proof. Thus, the jurors may
well have been left with an impression
that any amount of persuasion -- i1.ée.,
anything beyond guesswork or conjecture
-- properly could constitute sufficient
"moral certainty” to support a guilty
verdict. 2’
Second, the judge's lengthy

discussion of the civil standard of

proof at the preface of his reasonabie

5/ At oral argument, the Commonwealth
offered another plausible construction
for the phrase “to a degree of moral
certainty.” Counsel suggested that the
judge had intended to convey not that
the level of certitude was some degree
of moral certainty but that the “degree"
of certainty was moral certainty. In
other words, counsel construed the judge
as possibly saying that the jurors need
not be absolutely sure of their judgment
but only morally sure. Although this
meaning is conceivable; there is a
substantial risk that the jurors
understood the phrase to have the more
harmful connotation, particularly in
light of the remainder of the judge's
charge.

doubt instruction was, as the district
court noted, “confused and confusing.”
Nowhere did the instruction actually
contrast the level of proof required for
the government to meet its burden in 3a
Criminal case with the level of proof
needed by a civil plaintiff, except to
say that, in the criminal case, the
standard was proof beyond a reasonable
doubt rather than a preponderance of the
evidence.

Third, the words of the instruction
at some points defied comprehension.
The judge referred to "a degree of moral
certainty not beyond an absolute doubt”
-- a preplexing combination of
concepts. What does it mean to have an
“absolute doubt?" Can one have an
“absolute” doubt and still be morally
certain?

Finally, and particularly harmful,
was the judge'‘s description early in his

- A32 -

charge of the jury's role:
(B]oth sides put in their factual
picture and it's up to you, it's not
up to me, not up to any other judge,
and not up to any lawyer, and not up
to anybody else, but solely and
exclusively up to you, jurors to
determine where the ring of truth,
integrity, honesty abides. That's
your job. ;
This instruction -- suggesting that the
jury's task is to figure out which side
is “right” rather than to determine
whether the government proved guilt
beyond a reasonable doubt -- would
increase the jury's tendency to
undervalue the reasonable doubt
standard. The instruction allowed the
jurors to believe that it was sufficient
if they found the government's version
of events to be more plausible than the
defendant's; they could have believed
that the “degree of moral certainty;
they needed was simply certainty that
the government's evidence was more

believable than the defendant's.

- A33 -

Although a judge need not define

=

reasonable doubt , 2/ any definition

given must not reduce the government's
burden of proof. United States v.
Qlmstead, 832 F.2d 642, 645-46 (ist Cir.
1987). In this case, the judge's
attempted explanation could well have
had the effect of minimizing the

burden. The phrase “to a degree of
moral certainty” was the only
affirmative definition of reasonable
doubt offered. To the extent the jurors
gave meaning to that phrase based on the
remainder of the judge's instructions,
their inclination could have been to
give the government the benefit of the

“doubt.”

6/ We note that the Massachusetts
Appeals Court has held that it is error,
under state law, for a trial judge to
fail to give an instruction on the
meaning of reasonable doubt.
Commonwealth v. Stellberger, 25 Mass.
App. Ct. 148, 149 (1987).

- A34 -

In sum, the entire thrust of the

reasonable doubt charge was to
de-emphasize the strength of what is
supposed to be a very strong standard,
potentially depriving petitioner of
perhaps his most important protection
against an improper verdict. See Dunn
~. Perrin, 570 F.2d 21, 25 (lst Cir.
1978) (discussion of the right to proof
beyond a reasonable doubt is “perhaps
the most important aspect of the closing
instruction to the jury in a criminal
trial"). We therefore conclude that the
charge as given in this case rose to the

: ; 7
level of constitutional error.~

7/ The Commonwealth argues that our
standard of review in this case is
circumscribed because we are reviewing a
state criminal proceeding rather than a
federal case. We agree that, in this
Situation, the question is “not merely
whether ‘the instruction is undesirable,
erroneous[,] or even universally
condemned,'” Smith v. Bordenkircher, 718
F.2d 1273, 1276 (4th Cir. 1983) (quoting

Cupp v. Naughten, 414 U.S. 141, 146
(footnote continued)

= ASS -

IV.

A finding of constitutional error,
however, does not end this case. The
Commonwealth argues that the error must
be deemed harmless because the evidence
against petitioner is overwhelming.
Petitioner responds that failure to
instruct the jury properly on the
reasonable doubt standard can never be
harmless because the right to trial by

jury includes the right to have the jury

(footnote continued)

(1973)), but “whether the challenged
aspects of the charge so infected the
entire charge and trial as to cause the
jury to evaluate petitioner's guilt or
imnocence under a standard less than
‘beyond a reasonable doubt,'” Bumpus v.
Gunter, 635 F.2d 907, 909 (lst Cir.
1980).

Our conclusion, however, is that the
challenged instructions did so infect
the entire charge and trial. We also
note that "the fact that a
constitutional right is implicated
permits reference to federal precedents
for the determination .. . of whether a
violation occurred ...." Dunn v.
Perrin, 570 F.2d 21, 25 n.7 (lst Cir.
1978).

- A36 -

decide whether the Commonwealth proved
its case beyond a reasonable doubt.

We previously have declined to hold
that a constitutionally defective
instruction on reasonable doubt could
never be deemed harmless, although we
noted that “if such a case can be
conceived, it would have to contain
unique circumstances .. . .,” Bumpus v.
Gunter, 635 F.2d 907, 909 (lst Cir.
1980) (citing Dunn v. Perrin, 570 F.2d
21, 25 (lst Cir. 1978) (leaving to
"another day” decision whether
constitutionally defective charge on
reasonable doubt can ever be
harmless)). We continue to have serious
doubts whether a conviction obtained
without a proper reasonable doubt
instruction could ever be upheld; we are
certain that this is not the unusual
case in which to do so. We draw this
conclusion from Supreme Court precedent

in SSF =

and from our understanding of the role
played by the jury in the criminal trial
process.

The Supreme Court has substantially
expanded the harmless-error cule that it
pronounced in Chapman v. California, 386
U.S. 18 (1967), extending the principle
to a wide variety of constitutional
errors. See, e.g., Rose v. Clark, 106
S. Ct. 3101 (1986) (improper instruction
on malice); Delaware v. Van Arsdall, 475
U.S. 673, 684 (1986) (failure to permit
cross-examination on witness bias);
Rushen v. Spain, 464 U.S. 114, 117-119
(1983) (per curiam) (ex parte
communication between trial judge and
juror); United States v. Hasting, 461
U.S. 499, 509 (1983) (improper comment
on defendant's failure to testify);
Milton v. Wainwright, 407 U.S. 371,
377-78 (1972) (admission of confession
obtained in violation of right to

- A38 -

counsel). Indeed, in Rose, the Court
indicated that it is the rare case in
which harmless error analysis is not
appropriate: “[IJ£ the defendant had
counsel and was tried by an impartial
adjudicator, there is a strong
presumption that any other errors that
may have occurred are subject to
harmless error analysis.” 106 S. Ct. at
3106-07.

Despite this broad statement, we
understand the Court in Rose to imply
that another error that might well
trigger automatic reversal of a
conviction is the absence of a proper
reasonable doubt instruction. In
footnote eight of that opinion, the
Court contrasted an instruction that
erroneously establishes a presumption in
favor of the government -- such as the
malice instruction at issue in Rose --
from an instruction that “‘'prevent[s] a

- A393 -

jury from considering an issue.'”" The
Court seemed to suggest that the former
may be subject to harmless-error
analysis while the latter should not
be. In support of this proposition, the
Court specifically cited to Jackson v.
Virginia, 443 U.S. 307 n.14 (1979), in
which it had indicated in dictum that
the failure to instruct a jury on the
reasonable doubt standard cannot be
harmless. See also United Brotherhood
of Carpenters and Joiners of America v.
United States, 330 U.S. 395, 410 (1947)
("(W]here the evidence against an
accused charged with a crime is
well-nigh conclusive and the court fails
to give the reasonable-doubt instruction

[i]t could not be said that the
failure was harmless error.”)

In addition, the Court's more

general discussion about the kinds of
errors that cequire automatic reversal

- A40 -

suggests that a faulty reasonable doubt
charge normally should be included
within that category. The Court stated
that harmless-error doctrine is
inapplicable to those errors that
“render a trial fundamentally unfair,”
106 S. Ct. at 3106. It gave as examples
introduction of a coerced confession,
complete denial of right to counsel, and
adjudication by a biased judge. The
Court’ then added that “harmless-error
analysis presumably would not apply if a
court directed a verdict for the
prosecution in a criminal trial by jury

‘regardless of how overwhelmingly
the evidence may point in that -
direction.'” Jd. at 3106 (citing United
States v. Martin Linen Supply Co., 430
U.S. 564, 573 (1977)).

For us to affirm petitioner's

conviction despite the defective
reasonable doubt charge -- on the ground

- A4l -

that we believe the evidence proves
guilt beyond a reasonable doubt -- would
be to do the qualitative equivalent of
directing a verdict for the

prosecution. A reviewing court does not
necessarily usurp the jury‘s role when
it reviews the evidence to determine
whether there is incontrovertible proof
of one element of the crime, as the
Supreme Court required of the Court of
Appeals in Rose. But to say -- without
the benefit of the sights and sounds
that can affect credibility
determinations -- that the sum total of
what was presented adds up to proof of
guilt beyond a reasonable doubt is to do
the task assigned in our criminal
justice system to a jury of the
defendant's peers. See Martin Linen
Supply Co,., 430 U.S. at 572 ("[I]n a
jury trial the primary finders of fact
are the jurors. Their overriding

- A42 -

responsibility is to stand between the
accused and a potentially arbitrary or
abusive Government that is in command of
the criminal sanction.")

We reserve this task for the jurors
not because they are more capable than
judges of reaching a mathematically
precise conclusion about guilt or
innocence, but because they bring a
fresh and impartial perspective to the
Criminal justice system. "The purpose
of a jury 1s .. . to make available the
commonsense judgment of the community as
a hedge against the overzealous or
mistaken prosecutor and in preference to
the professional or perhaps
overconditioned or biased response of a
judge." Taylor v. Loulsiana, 419 U.S.
522, 530 (1975). We tolerate even
quixotic verdicts, and allow juries “to
err upon the side of mercy,” Jackson v.
Virginia, 443 U.S. 307, 317 n.10

- A43 -

S=———

(1979). See id. ("(T)he factfinder in
a criminal case has traditionally been
permitted to enter an unassailable but
unreasonable verdict of ‘not

guilty.'"). See also Duncan v.
Louisiana, 391 U.S. 145, 157 (1968)
("({W]hen juries differ with the result
at which the judge would have arrived,
it is usually because they are serving
some of the very purposes for which they
were created and for which they are now
employed.”"). Although it may not be
fundamentally unfair for judges to
decide that the evidence in a given case
demonstrates guilty beyond a reasonable
doubt, it is certainly inconsistent with
the concept of trial by a jury of one's

peers. 2/

8/ In Commonwealth v. Garcia, 379 Mass.
422, 442, 399 N.E.2d 460, 472-73 (1980),
the Massachusetts Supreme Judicial Court
held that an error in the reasonable
doubt charge was harmless in light of

(footnote continued)

- A44 -

It is arguable that there will be
some case in which the evidence is so
compelling that no reasonable person
possibly could reach a verdict of
innocence. Perhaps this would be so if
the governinent introduces a voluntary
confession that is not challenged at
trial by the defendant, who for some
reason declined to plead guilty (though
we express no opinion on this matter).
But in this instance, where the

Commonwealth's case rested substantially

(footnote continued)

the “overwhelming evidence of guilt."
Garcia presents no unusual circumstances
suggesting that the harmless error
doctrine might have been appropriate in
that situation, and we therefore
disagree with the SJC's conclusion. We
reiterate that federal law, not state
law, governs our determination of
matters relating to federal
constitutional violations. See supra
note 7. See also Garcia, 379 Mass. at
445-46 (dissenting opinion of Liacos,
J.) (disagreeing that an erroneous
charge on reasonable doubt can
constitute harmless error).

- A45 -

on the credibility of the alleged

. ; /
victim, we cannot say that the
errors in the reasonable doubt
instruction were harmless beyond a

reasonable doubt.

The judgment of the district court

9/ Although the testimony of the
victim, Neil Hirons, was detailed and
substantiated in certain particulars by
other witnesses, petitioner did not
testify and the jurors therefore heard
only the victim's account of the origins
of the conflict between the two men.

- AGd6 -

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION
NO. 86-3128-S

THOMAS LANIGAN,
Petitioner,

V.

MICHAEL T. MALONEY,
Respondent

a a oe ee ee

MEMORANDUM AND ORDER ON PETITIONER'S
MOTION FOR SUMMARY JUDGMENT

January 26, 1988
SKINNER, D.J.

In this petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254, the
petitioner, Thomas J. Lanigan, has moved
for summary judgment.

Petitioner was convicted in Superior
Court, Worcester County, of armed
robbery, assault with intent to murder,
assault and battery with a dangerous
weapon, and kidnapping. The

Massachusetts Appeals Court reversed tli

APPENDIX B

convictions for assault and battery with
a dangerous weapon and assault with
intent to murder, on account of
deficiencies in the jury instructions.
The convictions for armed robbery and
kidnapping were affirmed. Commonwealt!
v. Lanigan, 12 Mass. App. Ct. 913, 423
N.E.2d 800 (1981).

Petitioner bases this habeas corpus
petition on‘a claim that the trial
judge's instructions on reasonable doubt
were constitutionally defective.
Petitioner had specifically requested
reasonable doubt instructions in the
language of Commonwealth v. Webster, 5
Cush. 295, 320 (1850). After the judge
gave a different charge, petitioner
objected. He later challenged the
instructions on appeal.

The judge's instructions on
reasonable doubt included a comparison to
the burden of proof in a civil case.

a 22 «

After explaining the prepondezance of th

evidence standard, he said:

Now, I come to the Criminal side of
the Court, that's what were on today
the Criminal side of the Court. Thi
young man is accused of four crimes
and he stands accused, indicted, he
is charged with four crimes. The
burden here is not to prove his guil
by a fair preponderance of the
believable evidence, tilting the
scales slightly in his favor. The
burden here, Mr. Foreman and ladies
and gentlemen of this jury is to
prove his guilt beyond a reasonable
doubt. On the Criminal side of the
Court, which this is, a criminal,

One
who is charged with a crime I should
Say, not a criminal -- who is charge
with a crime -- his guilt must [2

established beyond a realm of
speculation, guess work, surmise.
That sort of thing must be
established how? Beyond a reasonable
doubt. Meaning what? Meaning beyon
all doubt? Never, because it is
impossible in our society to prove
anybody guilty of a crime beyond all
doubt. That would be too lofty a
standard, it would be unattainable.
But the standard is proof beyond a
reasonable doubt. Meaning what?
That the 12 of you good people invoke
and calling upon your good God given
common sense and basically weight an
» evaluate, recreate the evidence, you

are going to ask yourselves are we
satisfied, how? To a degree of mora.
certainty not beyond an absolute
doubt that the accused did commit the
Crime, or the crimes of which he
- B3 -

al
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co
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baked
co

Stands accused before us. That's
your job, that's what your here for
today. It is not my job, it's not
any of the judges job.

Trial Transcript at 191-92.

The Appeals Court considered the
constitutionality of the charge on
reasonable doubt and concluded: "We
think the charge passed muster in this

respect, although the question is

lose." Commonwealth v. Lanigan, 12

Mass. App. Ct. at 914-15, 423 N.E.2d at
802. The rescrip: opinion suggests that
the court approved of the phrase “moral
certainty,” without noting that the trial
judge defined proof beyond a reasonable
doubt as proof “to a degree of moral
certainty.”

Petitioner challenges the
instructions on three grounds. He argues
first, that the judge contrasted

reasonable doubt with a preponderance of

the evidence in a confusing and erroneous
» £4 «

manner. Second, he claims that the
Charge was unbalanced because the judge
twice said that the standard was not
beyond "all doubt," or beyond an
"absolute doubt" because such a standard
would be “too lofty,” and “unattainable,”
but did not give a countervailing
instruction on the dangers of too weak a
standard. Finally, petitioner challenges
the use of the phrase “to a degree of
moral certainty” as a definition of proof
beyond a reasonable doubt.

A person may not be constitutionally
convicted of a crime except by proof
beyond a reasonable doubt. In re
Winship, 397 U.S. 358 (1970). A
discussion of the concept is “perhaps the
most important aspect of the closing
instruction to the jury in a criminal
trial." Dunn v. in, 570 F.2d 21, 25
(lst Cir.), cert. den'd, 437 U.S. 910

(1978). While a judge need not define

— oe

the term “reasonable doubt,” if he or she
chooses to do so, the definition must not
reduce the burden of proof on the
govetnment or expand the degree of
permissible doubt. United States v.
Olmstead, 832 F.2d 642, 645-46 (lst Cir.
1987). Before overturning a conviction
resulting from a state trial, however, a
court must be satisfied not merely that
the challenged instruction was
“undesirable, erroneous, or even
‘universally condemned,’ but that it
violated some right which was guaranteed
to the defendant by the Fourteenth
Amendment.” Cupp v. Naughten, 414 U.S.
141, 146 (1973).

In this context, the trial judge's
use of the phrase “to a degree of moral
certainty” is unacceptable. Our court of
appeals has repeatedly discouraged the
practice of defining reasonable doubt in
terms of “moral certainty.” United.

» 86 «

States v. Drake, 673 F.2d 15, 21 (lst
Cir. 1982); United States v. Indorato,
628 F.2d 711 (lst Cir.), cert. den'd, 443
U.S. 1016 (1980); United States v.
Ariza-Ibarra, 605 F.2d 1216, 1228 (1st
Cir. 1979). It has not, however, found
it to be of constitutional significance:
“While we discourage the ‘moral
certainty’ phraseology, we do regard its
use as reaching the level of legal or
constitution error." United States v.
Indorato, 628 F.2d at 721.

The use of the phrase “to a degree of
moral certainty” is a more serious
error. It implies that something less
than complete moral certainty is
sufficient. Thus, the jury in this case
could have been left with an impression
that any amount of moral certainty is
sufficient to support a guilty verdict.

The rest of the charge failed to
clarify, and in fact may have further

o M «

obscured, the standard. The jurors knew
only that “reasonable doubt" was less
tnan “absolute doubt" and more than
“speculation, guess work, surmise," -- an
extremely broad range. Furthermore, the
judge's comparison to the preponderance
of the evidence standard was confused and
confusing. The judge's depiction, at the
start of his charge, of the trial as a
competition could have further
exacerbated the situation:
(B]oth sides put in their factual
picture and it's up to you, it's not
up to me, not up to any other judge,
and not up to any lawyer, and not up
to anybody else, but solely and
exclusively up to you, jurors to
determine where the ring of truth,
integrity, honesty abides. That's
your job ;
Trial Transcript at 187. The jury's job
is not to determine the “truth,” as the
judge said, but to determine whether the

government has proved its case beyond a

reasonable doubt.

While the use of the phrase “to a
degree of moral certainty” may not
necessarily be a constitutional error in
every case, in this case it was presented
to the jury twice, and, more importantly,
it was the only affirmative definition of
reasonable doubt offered. It is not a
technical error appearing in “artificial
isolation.” Dunn v. Perrin, 570 F.2d at
25 (citing Cupp v. Naughten, 414 U.S.
141, 147 (1973)). Indeed, other portions
of the judge's charge may have served to
confuse the jurors further. This case is
distinguishable from First Circuit cases
in which the court criticized the use of
“to a moral certainty,” but determined
that the charge, taken as a whole,
adequately apprised the jury of the
requirement of proof beyond a reasonable
doubt. See, e.g., United States v.
Drake, 673 F.2d at 21; United States v.

=

Indorato, 628 F.2d at 711; United States

N

riza-Ibarra, 605 F.2d at 1

jury was never adequately apprised of the

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es
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=
)
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a

my opinion, there is a
possibility that the jurors in this case
entered the jury room with no clear sense
f what degree of certainty was required
in order t convict the defendant. The
effect of the:charge was to “obfuscate

ne of the ‘essentials of due process and

yn

Dunn v. Perrin, 570

y

20 at 25. The error committed by the
trial judge was not harmless. Rose

106 S.Ct. 3101, 3107

‘
—
ow
|
~
Y

»

n.8 (1986); Jackson v. Virginia, 443 U.!

307, 320 n.14 (1979). The charge was

therefore constitutionally infirm.
Petitioner's motion for summary

udgment is ALLOWED. The writ of habeas

ad

corpus shall issue unless, within 90 days

- B10 -

from the date of this order, the state
has reinstituted proceedings to retry the

petitioner.

[/S/ Walter Jay Skinner] __
United States District Judg

- Bll -

a

12 Mass. App. Ct. 859 [913]
Rescript Opinions
Commonwealth v. Thomas Lanigan. July

21, 1981. The defendant was convicted of
armed robbery, assault with intent to
murder, assault and battery with a
dangerous weapon, and kidnapping on the
basis of testimony by the victim that he
had been waylaid by the defendant and a
companion, forced into an apartment at
knifepoint, robbed, cut with a knife,
stripped, tied with an electrical cord,
and stabbed several times during a fight
before he made his escape. A police
officer took him to a hospital. Another
officer, acting on the victim's
description, went to the apartment, found
blood in the hall and on the door, gained
entrance through the manager, and found
neither the defendant nor his companion
within. The police then padlocked the

apartment and returned at an unspecified

le

later time to search the apartment
without a warrant. They found and seized
several items which tended to corroborate
the victim's story. These were
introduced in evidence over the
defendant's objection.

The evidence on the motion to
suppress was such that the judge could
properly find that the defendant had no
legitimate expectation of privacy that
was violated by the search of the
apartment and the seizure of the
incriminating items because he had
previously abandoned the apartment. See
generally Abel v. United States, 362 U.S.
217, 241 (1960); Fegquer v. United States,
302 F.2d 214, 248-250 (8th Cir.), cert.
denied, 371 U.S. 872 (1962); Parman v.
United States, 399 F.2d 559, 564-565
(D.C. Cir.), cert. denied, 393 U.S. 858
(1968). The original entry was lawful,
as was the padlocking of the apartment.

= C2 «=

The police were justified in trying to
apprehend the defendant and his companion
without delay and to prevent the
destruction of evidence at the scene of
the several crimes. The only question of
arguable impropriety arose from their
reentry without a warrant. See Mincey v.
Arizona, 437 U.S. 385, 392-394 (1978).
Prior to that time the defendant had
returned to the building, found the
apartment padlocked, learned from the
manager that it had been locked by the
police, and left the building not to
return, traveling (apparently the same
Gay) to Arizona. There was no evidence
as to how long the defendant stayed in
Arizona, but another pretrial motion
filed by the defendant Sedicekes that he
did not return to Massachusetts for many
months. The apartment had been rented
for a two-week period, and, while the
evidence did not indicate precisely when

- C3 -

the two-week period expired, the
defendant testified that he had lived in
the apartment for about two weeks. From
this evidence the judge could properly
infer that the defendant, immediately on
learning that the police were
investigating him, fled from the
Commonwealth with the intention of not
returning to the apartment during the
short period, if any, which remained of
his rental period. It is clear from the
cases on the subject that abandonment can
be found to have taken place before the
end of the rental period (Feguer v.

|

United States, 302 F.2d at 249; United

States v. Wilson, 472 F.2d 901, 902-903
[9th Cir. 1972), cert. denied, 414 U.S.
868 (1973); United States v. Hunter, 647

F.2d 566, 568 [5th Cir. 1981]; State v.
Chiles, 226 Kan. 140, 147 [1979], the
essence of abandonment being the act of
leaving coupled with the intention of not

= CO

returning (Abel v. United States, 362
U.S. at 241; Friedman v. United States,
347 F.2d 697, 704 [8th Cir.], cert.
denied, 382 U.S. 946 [1965]; United
States v. Colbert, 474 F.2d 174, 176 [5th
Cir. 1973)). A relinquishment of rights
by abandonment does not depend on
knowledge by the police that the
abandonment has occurred. Feguer v.
United States, 302 F.2d at 250; Parman v.
United States, 399 F.2d at 564-565; State
v. LeDuc, 48 N.C. App. 227, 241 n.l
(1980). It is not, in our view, relevant
that the abandonment may have been
induced by the defendant's fear of
apprehension upon seeing that the police
had entered and secured the apartment, so.
long as the entry and securing of the |
apartment were themselves lawful.
Compare Commonwealth v. Battle, 1 Mass.

App. Ct. 579, 582-583 & n.7 (1973), S.C.,
=

365 Mass. 472 (1974); Commonwealth v.
Fox, 3 Mass. App. Ct. 123, 125 (1975).

Although the judge failed to make
findings, it seems clear that he found an
abandonment, that having been the
Commonwealth's principal argument at the
close of the hearing on the motion to
suppress. No purpose would be served by
requiring express findings at this late
date. There was no conflicting testimony
to resolve. The source of all the facts
bearing on abandonment was the
defendant's own testimony on the motion
to suppress, and the abandonment seems an
almost inescapable conclusion if his
testimony is credited.

The judge, in his charge,
differentiated between the preponderance-
of-the-evidence test applicable to civil
cases and the proof-beyond-a-reasonable-
doubt test applicable to criminal cases,
emphasized twice that the latter test

=. we

required that the jury be satisfied of
the defendant's guilt to a moral
certainty, and cautioned against
speculation, guesswork, Or surmise. We
think that the charge passed muster in
this respect, although the question is
Close. We emphasize, as has the Supreme
Judicial Court (Commonwealth v, Therrien,
371 Mass. 203, 208-209 [1976];

Ww v. W , 380 Mass. 545, 551
[1960]), that improvision is generally
not desirable in defining the concept of
reasonable doubt and that reliance is

better put on the time-tested language of

Commonwealth v. Webster, 5 Cush. 295, 320.

(1850).

The defendant's contentions with
respect to other objections raised at the
trial have been considered and are
without merit. Although no appropriate
objection was taken at trial, the panel
are of the opinion that the judge's

i

charge with respect to the indictments
for assualt and battery with a dangerous
weapon and assault with intent to murder
was so deficient that there exists a
likelihood of a miscarriage of justice if
those convictions are allowed to stand.
See Commonwealth v. Freeman, 352 Mass.
556, 563-564 (1967). Accordingly, the
judgments on indictment nos. 90642
(assault and battery by means of a
dangerous weapon) and 90643 (assault with
intent to murder) are reversed, and the
verdicts thereon are set aside. The
judgments on indictment nos. 90641 (armed
robbery) and 90644 (kidnapping are
affirmed.

So ordered.

Stephen Gordon for the defendant.
Paul F. Bolton, Assistant District
Attorney, for the Commonwealth.

- C8 -

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0360%3A1. Public record. Not legal advice.