Petition — Horace Butler v. South Carolina

I; RECEIVED

JUL 8 1982

OFFICE OF THE CLER

SUPREME COURT, us|

nw. 82 5028

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1981

HORACE BUTLER,

PETITIONER,

STATE OF SOUTH CAROLINA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF SOUTH CAROLINA

DAVID I. BRUCK

Attorney at Law

1401 Calhoun Street

Columbia, S. C. 29201

ATTORNEY FOR PETITIONER.

QUESTIONS PRESENTED

I

Where the state is required to prove the existence

of a statutory aggravating circumstance beyond a reasonable

doubt as a prerequisite for imposition of the death penalty,

are the Eighth and Fourteenth Amendments violated by jury

instructions which define the term “reasonable doubt" as

“not a fanciful, not a whimsical, but a substantial doubt,”

as "a substantial doubt for which an honest person seeking

the truth can give a real reason," and as “not a weak or

slight doubt, but...a serious or strong or substantial

well-founded doubt as to the truth of the matters asserted

by the state"?

II

Do the Eighth and Fourteenth Amendments require

application of the standard of evidentiary sufficiency set

forth in Jackson v. Virginia, 443 U.S. 307 (1979), to the

evidence of the statutory aggravating circumstance which

forms the factual basis of petitioner's sentence of death?

‘a Se f ii

TABLE OF CONTENTS

QUESTIONS PRESENTED eseeee eee eee eee eee ee eee ee eee i

TABLE OF CONTENTS eeeeree eee eee eeeeeeneeeeeee ee eneee ii

TABLE OF AUTHORITIES eece eee eee eee ee ee eeeee ee ee ee iii

CETRSLOM TO COLMION BRIG oc iccccccccccsnscesecss 1

SEIN ic seve accccceeseccebecoecconssueodeesc 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED. a

Saegeeee CF TUE CORR ccc icra cccncdcdcsocheoccaces 5

HOW THE FEDERAL QUESTIONS WERE RAISED AND DECIDED .

BELOW att ee ee

REASONS FOR GRANTING THE WRIT eeeeeeeeeee een eee eee 10

I. The Court should grant the writ to deter-

mine whether, in this capital case, the trial

court's definition of reasonable doubt so

diluted and weakened that principle as to have

exceeded the latitude enjoyed by state courts

in instructing juries concerning fundamental

rights guaranteed by the Eighth and Fourteenth

DROREMONES ww ccneweccncceceonceceseesocosse AO

II. The Court should grant the writ to

consider the applicability of Jackson v.

Virginia, 443 U.S. 307 (1979), to state

oapttal sentencing proceedingS. «seseceeere 16

CONCLUSION eer eee eer eee eee eee een eee ee eee eee ee ee eee 19

-—~ - ee -

APPENDIX

Opinion of the Supreme Court of South Carolina,

State v. Butler, S.C. , 290 S.E.2a 1 (1982)

2 ES ce NT sy 08 nee gm canna aie Si

fon

i e

TABLE OF AUTHORITIES

Cases

Beck v. Alabama, 447 U.S. 625 (1980) «--+++seereees

234 F.2d 475

eeeseeoeseeveevneeneoeeoneseeneneeveeeeeees

Bernstein v. United States,

(5th Cir. 1956)

Carter v. Kentucky, 450 U.S. 288 (1981) ~..--++++«-

535, 21 A.2da

Custer, 145 Pa.Super.

eeesevuveeeveeevneoeeeeeeeere eee

Commonwealth v.

524 (1941)

415 N.E.2d 805 ~

Robinson,

Commonwealth v.

(Mass. 1981)

Cupp v. Naughten, 414 U.S. 141 CLOFD) cevevcosepece

Dunn v. Perrin, 570 F.2d 21 (lst Cir. 1978) .......

Estelle v. Williams, 425 U.S. 501 (1976) «..+++«---

100 S.W. 94 (1907)

Frazier v. State, 117 Tenn. 430,

Furman v. Georgia, 408 U.S. 238 (1972) ««+«eeeeeeee

430 U.S. 349 (1977)

Gardner v. Florida,

Gregg v. Georgia, 428 U.S. 153 (1976) «----eeeeeeee

Holland v. United States, 348 U.S. 121 (1954) .....

358 (1970)

In re Winship, 397 U.S.

Isaacks v. State, 337 So.2d 928 (Miss. 1976) ......

Jackson v. Virginia, 433 U.S. 307 (1979) cccccevcece

Laird v. State, 251 Ark, 1074, 476 S.W.2d 811 (1972)

Owens v. Commonwealth, 186 Va. 689, 43 S.E.2d 895

(1947)

People v. Turner, 99 Mich.App. 233, 298 N.W.2d 848

(1980)

eececeveeeeeeeeesceeseeoeoeeeeeeevreeevneneeeosu eres

eeceeeveeseeeneseeoeoeeeveeeeeeeeeeereneeneevreeeeeeees

Pettine v. Territory of New Mexico, 201 F. 489 (8th

Sie. 19RD) evcdccccccesesescesesesaqucsersesssessene

Powers v. State, 150 Ga.App. 25, 256 S.E.2d 637

(1979) ccccccccrcnccccccvnesceseescecessssesessesse

Smith v. State, 547 S.W.2d 925 (Tenn. 1977) ...-.--

State v. Adams, S.C. , 283 S.E.2a 582 (1981) .

State v. Butler, _8.C.___, 290 S.E.2a 1 (1982) ..

State v. (James) Butler, $.Cc. 2960 S.E.2d

420 (1982)

State v. Cohen, 108 Iowa 208, 78 N.W. 857 (1899) ..

eeeoveeeveoeree eee eeeeneeeaeeeeeneeeerer eee ee

State Ve Davis, 482 s.W. 2a 486 (Mo. 1972) eee eee ee

State v. Derrico, 181 Conn. 151, 434 A.2d 356

(Conn. 1980)

eeeeeee eer eeeneeeeeewreer eraser eee eeereee

iil

Pages

9, 17

9, 10, ll, 12

15, 18

i, 9,

17, 18

10, 16,

13, 14

1, 8, 9, 17

12, 13

Cases

State v.

(1979)

Gunter, 273 &.C. 347, 256 S.E.2d 317

SOS CSCHHHHEHEHHESHOHESEHECHT OC OHS EHHRERESOEB OSS

State v. Griffin, _8&.C. « 285 &.E.2d 631 (1981)

State v.

680 (A.

State v.

den. 434 U.S. 870 (1977)

State v.

State v.

State v.

(1977)

State v.

State v.

State v.

State v.

(March

State v.

State v.

Stirpano

Sulie v.

Taylor v. Kentucky, 436 U.S. 478 (1978)

Thompson

uf

Harrison, 149 N.J.Super. 220, 373 A.2a

D. 1974)

Hill, 268 S.C. 390, 234

SOSCHSCSHSCOSOSOSCHP FSF Ov 2&6 SHO KOO bd

S.E.2d 219, cert.

Keffer, 281 S.E.2d 495 (W.Va. 1981)

Maxwell, 328 A.2d 801 (Me. 1974)

McDonald, 89 Wash.2d 256, 571 P.2d 930

CCS HHSHHHEHSSHHSOHEKREE OF OSES HOSS KDE BEE SS

Newman, 93 Minn. 393, 101 N.wWw. 499 (1904)

Osbey, 213 Kan. 564, 517 P.2da 141 (1973).

Rosenburg, 118 A. 207 (N.J. 1922)

§.C. ’ S.E.2d

Stewart,

3, 1982)

Taylor, 76 Idaho 358, 283 P.2d 582 (1955)

Thorpe, R.I. « 429 A.2d 785 (1981) .

v. State, 287 A.2d 394 (Del. 1972)

State, 379 N.E.2d 455 (Ind. 1978)

ee ee ee

v- Louisville, 362 U.S. 199 (1960)

United States v. Alkins, 487 F.2d 257 (8th Cir.

1973).

PON PEPCK OR EHTS PHERSH COE ORES OO EOS OS OO

United States v. Christy, 444 F.2a 448 (6th Cir.

1971),

cert. den. 404 U.S. 949

ee ee ee eeeee eee eee

United States v. Cotten, 10 N.J. 260 (CMA 1981) ..

United States v. Davis, 328 F.2d 864 (2a Cir.

1964)

bed linda dtd lind, Yui tated Naked Antti. ko ek a ee ee

United States v. Harris, 346 F.2d 182 (4th Cir.

1965)

eM etl oss kindy ll edie vd tl Dahlen non a dindn tue t<.0 8 te ee et

United States v. Magnano, 543 F.2d 431 (2d. Cir.

1976),

United States v. Rodriguez, 585 F.2d 1234 (Sth Cir

1978)

cert. den. 429 U.S. 1091 eereer eee eee evenne

dial tint slnc edad nies itadiK icrtociucon ntatndndikdt tk ee ee

United States v. Smith, 468 F.2d 381 (34 Se...

- 1972)

needa nt iadingn ty No dinth Manda Md M dived cto eee ee Te ee

United States v. Wright, 542 F.2d 975 (7th Cir.

1976) cert, den. 429 U.S. 1073

eee eee eee eee eee

Woodson v. North Carolina, 426 U.S. 280 (1976) ...

iv

Pages

10

9

12

10

13

13

12

13

14

13

17

13

12

12

13

12, 15

16

12

12

12

13

13

12

12

12

i2

ll, 16

Federal Statute:

28 u.8.C. §1257 (3) *eeeeeveeeeeeeneeeeeeeereer ener 1

State Statutes:

S.C Code §16-3-20 eeeseeeeee eeeeeeeeeeeeeeeeee Ze 3, 4,

ll, 16

s.C. Code §16-3-25 seeeveeeeeeeeoeeeeenee ee eevee ee 4, 5S. 16

Constitutional Provisions:

U.S. Const. Amend. VIII ...cecceeccecesercccncs passim

Amend. xIiV ese evreveeeer © *#e#e ee2e8e8e828 6 passim

Sy

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1981

HORACE BUTLER,

PETITIONER,

STATE OF SOUTH CAROLINA,

RESPONDENT .

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF SOUTH CAROLINA

Petitioner Horace Butler prays that a Writ of Certiorari

issue to review the judgment of the Supreme Court of South

Carolina in this case.

CITATION TO OPINION BELOW

The opinion of the Supreme Court of South Carolina is

reported in State v. Butler, 8.c. ,. 296 S.E.2da 1 (1982)

and is attached hereto as the Appendix to this Petition.

JURISDICTION

The judgment of the South Carolina Supreme Court was

entered on February 22, 1982. Timely petitions for rehearing

and for a stay of execution were denied on April 6, 1982. On

May 26, the Chief Justice of the United States extended the

time for filing of this petition for writ of certiorari to

and including July 6, 1982. This Court's jurisdiction is

invoked pursuant to 28 U.S.C. §1257(3), petitioner having

arrested below and asserting herein deprivation of rights

secured by the United States Constitution,

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

1. This case involves the Eighth Amendment to the

Constitution of the United States, which provides in pertinent

part:

"nor cruel and unusual punishments inflicted;"

and the Fourteenth Amendment to the Constitution of the United

States, which provides in pertinent part:

"No state shall...deprive any person of life,

= oxy property without due process of

aw..."

2. This case also involves the following provisions of

the Code of Laws of South Carolina:

S.C. Code §16-3-20. Punishment for murder:

spearate sentencing proceeding to determine

whether sentence should be death or life im-

prisonment.

(A) A person who is convicted of or pleads

guilty to murder shali be punished by death or

by imprisonment for life and shall not be eli-

gible for parole until the service of twenty

years, notwithstanding any other provisions of

law. Provided, however, that notwithstanding

the provisions of this section, under no circum-

stances shall a female who is pregnant with child

be executed so long as she is in that condition.

(B) Upon conviction or adjudication of guilt

of a defendant of murder, the court shall conduct

a separate sentencing proceeding to determine

whether the defendant should be sentenced to death

or life imprisonment. The proceeding shall be

conducted by the trial judge before the trial jury

as soon as practicable after the lapse of twenty-

four hours unless waived by the defendant. If

the trial jury has been waived by the defendant

and the State, or if the defendant pleaded guilty,

the sentencing proceeding shall be conducted before

the court. In the sentencing proceeding, the jury

or judge shall hear additional evidence in extenua~

tion, mitigation or aggravation of the punishment.

Only such evidence in aggravation as the State

has made known to the defendant in writing prior

to the trial shall be admissible. This section

shall not be construed to authorize the introduction

of any evidence secured in violation of the Consti-

tution of the United States or the State of South

Carolina or the applicable laws of either. The

State, the defendant and his counsel shall be per-

mitted to present arguments for or against the

sentence of death, The defendant and his counsel

shall have the closing argument regarding the

sentence imposed.

(C) The judge shall consider, or he shall include

in his instructions to the jury for it to consider,

any mitigating circumstances otherwise authorized

or allowed by law and any of the following statutory

aggravating and mitigating circumstances which may

be supported by the evidence:

(a) Aggravating circumstances:

(1) Murder was committed while in the commission

of the following crimes or acts: (a) rape, (b) assault

with intent to ravish, (c) kidnapping, (d) burglary,

(e) robbery while armed with a deadly weapon, (f) lar-

_ eeny with use of a deadly weapon, (g) housebreaking,

and (h) killing by poison and (i) physical torture;

yy c" 3

f

(2) Murder was committed by a person with a

prior record of conviction for murder;

(3) The offender by his act of murder know-

ingly created a great risk of death to more than

one person in a public place by means of a weapon

or device which would normally be hazardous to

the lives of more than one person;

(4) The offender committed the offense of murder

for himself or another, for the purpose of re-

ceiving money or any other thing of monetary

value;

(5) The murder of a judicial officer, former

judicial officer, solicitor, former solicitor,

or other officer of the court during or because

of the exercise of his official duty;

(6) The offender caused or directed another ‘*o

commit murder or committed murder as an agent or

employee of another person;

(7) The offense of murder was committed acainst

any peace officer, corrections employee or fire-

man while ——. in the performance of his

official duties,

(b) Mitigating, circumstances:

(1) The defendant has no significant history of

prior criminal conviction involving the use of

violence against another person.

(2) The murder was committed while the defendant

was under the influence of mental or emotional

disturbance;

(3) The victim was 4 participant in the defendant's

conduct or consented to the act;

(4) The defendant was an accomplice in the murder

committed by another person and his participation

was relatively minor;

(5) The defendant acted under duress or under the

domination of another person;

(6) The capacity of the defendant to appreciate

the criminality of his conduct or to conform his

conduct to the requirements of law was substantially

i ired;

1 The age or mentality of the defendant at the

time of the crime; —

(8) The defendant was provoked by the victim into

committing the murder;

(9) The defendant was below the age of eighteen

at the time of the crime.

The statutory instructions as to aggravating and

ha fe circumstances shall be given in charge

and in writing to the jury for its deliberation.

The jury, if its verdict be a recommendation of

death, shall designate in writing, and signed by

all members of the jury, the aggravating circum-

stance or circumstances which it found beyond a

reasonable doubt. In nonjury cases the judge shall

make such designation. Unless at least one of the

statutory aggravating circumstances enumerated in

this section is so found, the death penalty shall

not be imposed. Where a statutory aggravating

circumstance is found and a recommendation of death

is made, the court shall sentence the defendant

to death. The trial judge, prior to imposing the

death penalty, shall find as an affirmative fact

that the death penalty was warranted under the

evidence of the case and was not a result of pre-

judice, passion, or any other arbitrary factor.

Where a sentence of death is not recommended by

‘the jury, the court shall sentence the defendant to

life imprisonment. In the event that all members

of the jury after a reasonable deliberation cannot

agree on a recommendation as to whether or not the

death sentence should be imposed on a defendant

2

i C

4

found guilty of murder, the trial judge tinal

dismiss such jury and shall sentence the defen-

dant to life imprisonment. The jury shall not

recommend the death penalty if the vote for such

penalty is not unanimous.

eeenkz t

S.C, Code §16-3-25. Punishment for murder: re-

view by Supreme Court of imposition of death

penalty.

(A) Whenever the death penalty is imposed, and

upon the judgment becoming final in the trial court,

the sentence shall be reviewed on the record by

the Supreme Court of South Carolina. The clerk of

the trial court, within ten days after receiving the

transcript, shall transmit the entire record and

transcript to the Supreme Court of South Carolina

together with a notice prepared by the clerk and a |

report prepared by the trial judge. The notice

shall set forth the title and docket number of the

case, the name of the defendant and the name and

address of his attorney, a narrative statement of

the judgment, the offense, and the punishment

prescribed. The report shall be in the form of a

Standard questionnaire prepared and supplied by the

Supreme Court of South Carolina.

(B) The Supreme Court of South Carolina shall

consider the punishment as well as any errors by way

of appeal.

(C) With regard to the sentence, the court shall

determine:

(1) Whether the sentence of death was imposed under

the influence of passion, prejudice, or any other

arbitrary factor, and

(2) Whether the evidence supports the jury's or

judge's finding of a statutory aggravating circum-

stance as enumerated in §16-3-20, and

(3) Whether the sentence of death is excessive or

disproportionate to the penal imposed in similar

eaces, considering both the crime and the defendent.

(D) Both the defendant and the State shall have the

right to submit briefs within the time provided by

the court and to present oral arguments to the court.

(E) The court shall include in its decision a

reference to those similar cases which it took into

consideration, In addition to its authority regarding

correction of errors, the court, with regard to review

of death sentences, shall be authorized to:

(1) Affixm the sentence of death; or

(2) Set the sentence aside and remand the case for

resentencing by the trial judge based on the record

and argument of counsel. The records of those

similar cases referred to by the Supreme Court of

South Carolina in its decision, and the extracts

prepared as hereinafter provided for, shall be

provided to the resentencing judge for his consider-

ation. If the court finds error prejudicial to

the defendant in the sentencing peenenr ot con-

ducted by the trial judge before the trial jury as

outlined under Item (B) of §16-3-20, the court may

set the sentence aside and remand the case for a

resentencing proceeding to be conducted by the same

or a different trial judge and by a new jury impaneled

for such purpose. In the resentencing proceeding,

the new jury, if the defendant does not waive the

right of a trial jury for the resentencing proceeding,

shall hear evidence in extenuation, mitigation or

aggravation of the punishuent in addition to any

C 4 ;

evidence admitted in the defendant's fa Set trial

relating to guilt for the particular crime for

which the defendant has been found guilty.

(F) The sentence review shall be in addition to

direct appeal, if taken, and the review and appeal

shall be consolidated for consideration, The

court shall render its decision on all legal errors,

the factual substantiation of the verdict, and the

validity of the sentence.

STATEMENT OF THE CASE

Petitioner was tried for and convicted of the murder of

Pamela Lane. In accordance with South Carolina's capital sen-

tencing statute, S.C. Code §§16-3-20 et seg., which is closely

patterned after the Georgia death penalty statute considered

by this Court in Gregg v. Georgia, 428 U.S. 153 (1976), a

separate sentencing proceeding was conducted before the trial

jury at which the state was required to prove beyond a reason-

able doubt the existence of at least one statutory agyravating

circumstance as a precondition for imposition of the death

penalty. The state alleged the existence of two such statutory

aggravating circumstances, which were that Miss Lane's murder

had been committed while in the commission of rape and kid-

napping.

The evidence tended to establish that Miss Lane had left

work in the direction of her home late on the night of July 17,

1980. She was riding a Moped motorized bicycle. Tr. 530-5.

The route home covered approximately eighteen miles and passed

through a remote rural area, Miss Lane's body was found the

following day a short distance from the main highway. Tr. 524-5,

Petitioner was charged with her murder some weeks later.

Tr. 785-7. In the second of two statements which he gave to

police, he stated that he had met Miss Lane on her way home,

and that she had agreed to accompany him to a secluded area

where she had voluntarily engaged in sexval relations with

him. He stated that Miss Lane had subsequently told him that

she would claim that he had raped her, whereupon he panicked

and shot her. ‘Tr. 798-800. Petitioner is black, and Miss Fig

ie 4

Lane was white.

The evidence upon which the state relied at petitioner's

sentencing hearing to prove the statutory aggravating circum-

¢

stances of rape and kidnapping was entirely divsuiaientiel,

and consisted of the following:

1) The deceased had been shot in the chest, Tr. 595-6,

and had received a blow to the head prior to death which was

inconsistent with an injury from a fall. :

2) Semen was found in the vagina of the deceased.

tr. 598.

3) Petitioner gave a confession to the effect that the

deceased engaged in consensual sexual relations with him, that

she told him that she was going to accuse him of raping her,

and that he thereupon panicked and shot her. Tr. 799.

4) Petitioner and the deceased were apparently strangers

to one another prior to the night of this incident.

5) Petitioner was, according to his confession, in

possession of a pistol at the time of his encounter with the

deceased, Tr. 799.

The evidence also established the following circumstances

which did not tend to prove rape:

1) The deceased had no signs of trauma or injury to

her external or internal genitalia. Tr. 609,

2} The clothes of the deceased, including her under-

wear, were in place and showed no evidence of injury other

than the bullet wound, Tr. 593-4, 606-7.

3) Petitioner's statement was to the effect that the

deceased had consented to have sexual reiations with him.

p> Pe)

4) There was no damage to the Moped which the deceased

had been riding on the night of her death, or any other indica-

tion that the Moped had been pushed or forced off the road.*

In considering this evidence after the jury had found

petitioner guilty of murder,” the trial judge stated that he

Aan additional unexplained circumstance was that a

Negroid pubic hair which could not have come from petitioner

was found on Miss Lane's blouse. Tr. 657.

-—2ane state introduced no evidence at petitioner's

sentencing hearing, and relied entirely on evidence pre-

viously introduced at the guilt-or-innocence phase of the

trial.

C:

was “extremely dubious" as to whether the state had made out

a case of either rape or kidnapping sufficient to go to the

jury. Tr. 953. The prosecutor conceded that the evidence of

kidnapping and rape was entirely circumstantial, but asserted

that the alleged unbelievability of petitioner's claim of

consent was sufficient, when combined with the autopsy evidence,

to establish the aggravating circumstances of rape and kid-

napping beyond a reasonable doubt. Tr. 953-5. After a brief

recess, the trial judge indicated that he had changed his mind

as to the sufficiency of the evidence of rape. Tr. 964-5.. Prior

to the beginning of petitioner's sentencing hearing, however,

the trial judge ruled that the state's evidence of kidnapping

was insufficient to establish that circumstance, and that it

would therefore not be submitted to the jury. Tr. 972-5.

Having decided to submit to the jury the question of

whether rape had been proven beyond a reasonable doubt, the

trial judge undertook to instruct the jury as to the meaning

of the term “proof beyond a reasonable doubt." In attempting

to do so, he instructed the jury as follows:

...You are now going to be required to make a

determination as to whether the state has proven

by the evidence which it has already put in and

which is properly before you, and that is what

you will make your inguiry relative to, have they

proven by that evidence beyond a reasonable doubt

every material element of the act of rape. Bear

in mind that they must prove the existence of those

elements beyond a reasonable doubt and you will

recall from my earlier instructions the definition

of reasonable doubt, that it is not a fanciful,

not a whimsical, but a substantia u or which

an honest person seeking the truth can give a real

reason.

Tr. 1922 (emphasis added). The earlier instructions to which

the trial judge alluded had been given two days previously in

his guilt phase charge to the jury, and consisted of the

following:

Now, when I use the term "reasonable

doubt,” it means basically the same thing in

the law as it does in everyday English language

and that is a doubt for which you have a real

reason, not a frivolous doubt, not a whimsical,

fanciful doubt, because you can doubt any

i. tg if you wanted to, but a reasonable

do is a substantial doubt for which an honest

person see ng ruth can give a real reason.

Tr. 940-1 (emphasis added). Finally the trial judge again

defined reasonable doubt at the end of his instruction on eir-

cumstantial evidence:

The two phrases “beyond a reasonable doubt"

and “proof to a moral certainty” are basically

synonymous and they are the legal equivalent of

each other. These phrases, however, connot a

degree of proof which is distinguished from an

absolute certainty. Proof beyond a reasonable

doubt, which the law in its mercy requires for

the benefit of the accused, is not a weak or

slight doubt, but it is a serious or strong or

substantial well-founded doubt as to the truth

of the matters asserted by the state.

Tr. 1026-7 (emphasis added). After receiving these instructions,

the jury determined that the state had established the statu-

tory aggravating circumstance of rape beyond a reasonable doubt,

and sentenced petitioner to death.

On appeal, the South Carolina Supreme Court affirmed the

conviction and sentence, rejecting petitioner's challenge to

the reasonable doubt instructions. See How the Federal

Questions were Raised and Decided Below, infra. The

court also dismissed petitioner's claim that the state's

evidence of rape was constitutionally insufficient to support

the jury's finding and sentence. Although petitioner's argu-

ment concerning the sufficiency of the evidence had been based

on the standard of review enunciated by this Court in Jackson

v. Virginia, 443 U.S. 307 (1979), Brief of Appellant at 38, the

state Supreme Court declined to apply the Jackson standard to

the evidence of rape, affirming the death sentence instead on

the basis that "any evidence direct or circumstantial reasonably

tending to prove the guilt of the accused creates a jury issue."

State v. Butler, §&.C. __us 290 S.E.24 1, 4 (1982) (emphasis

in original).

HOW THE FEDERAL QUESTIONS. WERE RAISED AND DECIDED BELOW

I. Petitioner did not object at his trial to the challenged

instructions, which were substantially in accordance with long-

settled South Carolina law.? un appeal to the South Carolina

Supreme Court, petitioner argued that the trial court‘s

definition of reasonable doubt 80 weakened and diluted that

3south Carolina has no contemporaneous objection rule

in capital cases. State v. (James) Butler, s.c. 2 290

a 420 (1982); State v, Adams, ___ §.C. » 283 S.E.2a 582

(1981).

Gy aaah Ss '

legal concept as to have violated the Fourteenth Amendment

principle of In re Winship, 397 U.S. 358 (1970). In addition,

he argued that these instructions violated the Eighth Amendment

by “injecting ‘a level of uncertainty and unrealiability into

the fact-finding process that cannot be tolerated in a capital

case,’'" State v. Butler, Brief of Appellant at 48, guoting

Beck v. Alabama, 447 U.S. 625 (1980), and pointed out that

these instructions came at precisely the point in his trial

where “the weakness of the state's case (and the undeniable

danger of impermissible racial considerations in the jury's

deliberations on the crucial issue of consent) made strict

adherence to the reasonable doubt standard most critical."

Id, Following submission of the briefs, the South Carolina

Supreme Court reaffirmed its approval of the equation of

"reasonable doubt” with "strong substantial doubt" in State v.

Griffin, S.C. » 285 S.E.2d 631, 634 (1981). In the light

of State v. Griffin, petitioner sought and was granted leave

to argue on Eighth Amendment grounds that Griffin should be

modified so as to apply only to non-capital cases. State v.

Butler, Petition to Argue for Modification of Precedent,

filed November 23, 1981.After hearing oral argument on the ~

question, the Supreme Court of South Carolina affirmed the

conviction and death sentence, stating that the reasonable

doubt instructions given at trial were "well within the guide-

lines set by this Court and In re Winship." 290 S.E.2d at 4,

II. After the state anncunced prior to the start

of petitioner's sentencing hearing that it would present

no additional evidence, petitioner moved for a directed

verdict on the grounds that the evidence to support the

statutory aggravating circumstances of rape and kidnapping

was insufficient tc support a jury finding that either

circumstance had been proven beyond a reasonable doubt. In

so doing, petitioner cited and relied upon Jackson v. Virginia,

443 U.S. 307 (1979). Tr. 961-2. The trial judge granted

the motion as to the kidnapping circumstance, but ultimately

“denied it as to the rape circumstance.

c C

é

On appeal to the South Carolina Supreme Court

following imposition of a death sentence, petitioner

again challenged the sufficiency of the evidence of rape

under the Jackson v. Virginia standard, Tr. 1122-3, Exception

10, and argued that application of this standard of review

to the sufficiency of the evidence of a statutory aggravating

circumstance was mandated by the Eighth Amendment's requirement

of special reliability in the determination that death

is the appropriate punishment in a particular case. Brief

of Appellant at 38. In affirming the death sentence, the |

Supreme Court of South Carolina rejected petitioner's sufficiency

argument on the basis that the trial court was concerned “only

with the existence of evidence, not its weight,” and that

“[aJny evidence direct or circumstantial reasonably tending

to prove the guilt of the accused presents a jury issue."

State v. Butler, §.C. , 290 S.E.2da 1, 4 (1982) (emphasis

in oriqinal). The court's discussion included no reference

to Jackson v. Virginia or to the standard of review enunciated

in that case, and relied on two pre-Jackson South Carolina

cases, State v. Hill, 268 S.C. 390, 234 S.E.2d 219, cert. den.

434 U.S. 870 (1977), and State v. Gunter, 273 S.C. 347, 256

S.E.2d 317 (1979), as authority for its reliance on the

"any evidence" standard of review in petitioner's case.

REASONS FOR GRANTING THE WRIT

I. THE COURT SHOULD GRANT THE WRIT TO

DETERMINE WHETHER, IN THIS CAPITAL CASE,

THE TRIAL COURT'S DEFINITIONS OF REASONABLE

DOUBT SO DILUTED AND WEAKENED THAT PRINCIPLE

AS TO HAVE EXCEEDED THE LATITUDE ENJOYED BY

STATE COURTS IN INSTRUCTING JURIES CONCERNING

FUNDAMENTAL RIGHTS GUARANTEED BY THE EIGHTH

AND FOURTEENTH AMENDMENTS. —

In In re Winship, this Court established that the Due

Process Clause of the Fourteenth Amendment “protects the

accused against conviction except upen proof beyond a reasonable

doubt of every fact necessary to constitute the crime with

which he is charged.” Id. at 364. It follows from Winship

that “[{i]n the administration of criminal justice, courts

on &

: ‘

must carefully guard against dilution of the principle that

guilt is to be established by probative evidence and beyond

a reasonable doubt." Estelle v. Williams, 425 U.S. 501, 503

(1976). Although Winship and Williams were concerned with

the determination of guilt rather than with sentencing, there

can be no doubt that their affirmation of the constitutional

indispensibility of the reasonable doubt standard applies a

fortiori to any factual determination upon which the decision

to impose the death penalty is based. * Woodson v. North Carolina,

428 U.S. 280, 305 (1976) (opinion of Stewart, Powell, and .

Stevens, J.J.). This case presents the question of whether,

in a capital sentencing trial where the state's proof is

circumstantial and tenuous, jury instructions which purport

to define the reasonable doubt standard can so dilute the

effect of that constitutional guarantee as to violate the

Eighth and Fourteenth Amendments,

In making this argument, petitioner recognizes the

limite.. function that this Court fulfills in reviewing claims

of error in state criminal trial jury instructions such as those

at issue here. Cupp v. Naughten, 414 U.S. 141 (1973). His

Claim is not merely that each of the three separate definitions

of reasonable doubt ives ta the trial judge was “undesirable,

erroneous, cr even ‘universally condemned*." id. at i4é6.

Rather, he contends that this case presents the relatively rare _

situation in which the cumulative effect of a whole series of

such instructions has been to relieve the prosecution of the

burden of proof imposed on it by the Eighth and Fourteenth

Amendments to the Constitution of the United States. He

also contends that even if these instructions might have passed

constitutional scrutiny in a non-capital case, they nevertheless

violated the Eighth Amendment by unnecessarily reducing the

reliability of the factual determination that petitioner should

suffer the punishment of death. Gardner v. Florida, 430 U.S.

349 (1977). Sci ae see ae ike ec.

‘this conclusion is all the more unavoidable where, as

here, the applicable statutory sentencing framework itself re-

quires that any aggravating circumstances relied upon for im-

position of the death penalty be established beyond a reasonable

pap Som eet en al m5 le ttaee a silat diet tmee oii

, ” *

fd

t

In Taylor v. Kentucky, the Court sheeryre that a state

trial court's definition of reasonable doubt age “'a substantial

doubt, a real doubt’...though perhaps rot in itself reversible

error, often has been criticized as confusing. [citations

omitted)." 436 U.S. 478, 488 (1978). Such criticism had

been neard for many years, As the Supreme Court of Tennessee

observed in Frazier v. State, 117 Tenn. 430, 100 S.W. 94,

103 (1907), the words "reasonable doubt" convey “their own

unmistakable meaning, and...,the cumulative effect resulting

from the reiteration of the same idea by the use of such words

and phrases as ‘well-founded doubt’, ‘substantial doubt’, and

others of like meaning, is well calculated to fritter away and

destroy all benefit to be derived from this important rule of

law.” Since In re Winship, this view has gained widespread

acceptance.” The reason for this trend, of course, stems from

the plain fact that in modifying the word "doubt," “substantial”

(like "strong" or “serious” or "well-founded") simply does not

mean the same thing as “reasonable.” In considering a recent

noncapital case involving only the use of the word “substantial,”

the Supreme Court of Tennessee put the matter this way:

We think that there is a significant

@iftference between “reasonable” doubt and

"substantial" doubt. The word substantial,

according to Webster's New World Dictionary

(1961), means “real; actual; true; strong;

solid; firm; ample; large; or of substantial

value". We think that when consideration is

given to the definition and ordinary meaning

of this word, there is little doubt but that

its use tends to lessen the State's burden and

as a natural corollary to increase the burden

upon the defendant...

Smith v. State, 547 S.W.2d 925 (1977). A similar point was

made somewhat more vividly by Justice Seiler of the Missouri

Supreme Court in his concurring opinion in State v. Davis,

Srhe Fifth, Sixth, Seventh and Eighth Circuits and the

United States Court of Military Appeals have held the “sub-

stantial doubt” instruction to be error. United States v.

Rodriguez, 585 F.2d 1234 (Sth Cir. 1978); United States v.

Christy, 444 F.2d 448 (6th Cir. 1971), cert.den. 404 U.S. 949;

United States v. Wright, 542 F.2d 975 (7th Cir. 1976), cert.den.

429 U.S. 1073; United States v. Atkins, 487 F.2a 257 (8th Cir.

1973); United States v. Cotten, 10 M.J. 260 (CMA 1981). Post-

Winship state court decisions rejecting or disapproving the

‘Instruction include Laird v. State, 251 Ark. 1074, 476 S.W.2da

811 (1972); State v. Harrison, 149 N.J.Super. 220, 373 A.2¢ 680

(A.D. 1974); State v. Thorpe, R.I. , 429 A.2a 785 (1981);

Smith v. State, 547 S.W.2d 925 (Tenn. 1577); State v,

McDonald, 89 Wash.2d 190, 571 P.2d 930 (1977). But see United

States v. Magnano, 543 F.2d 431 (2d Cir. 1976), cert.den. 429 |

U.S. 1091; United States v. Smith, 468 F.2d 381 (Jd Cir. 1972);

- Stirpano v. State, 287 A.2d 394 (Del. 1972); State v. Davis, = =

lami: le ES RS b: 3A ARR AM TOTO} past tin, ee ees a rere seen

13

482 S.W.2d 486, 490 (1972):

*Reasonable' and ‘substantial’ are not synonymous,

as can be seen by referring to any of the standard

dictionaries. The point was well put by counsel

in argument recently where he pointed out that

if one had to undergo a serious operation and

were querying the doctor as to the prospects for

a successful outcome, how differently the person

would feel if the doctor told him there was only

a reasonable chance of success as opposed to being

told that there was a substantial chance of success.

Justice Seiler's hypothetical surgery patient would no. doubt

have gained even greater comfort from the assurance that his

cperation's prospects for success, far from being merely

"reasonable", had now become not only “substantial” but also

"strong" or “well-founded”. Not one of these words is in any

respect synonomous with the term which they were used to define,

and when they were strung end to end, the definition which

resulted diluted the reasonable doubt standard far beyond that

level of "utmost certainty” upon which the "moral force of

the criminal law" depends. In re Winship, 397 U.S. 358, 364

1970).

The prejudicial effect of this definition was exacerbated

here by the trial judge's additional instruction that "a

reasonable doubt is a substantial doubt for which an honest

person seeking the truth can give a real reason.” Tr. 1022;

and see also Tr. 940-1. Quite apart from its use of the word

“substantial,” this instruction was improper because it suggested

that even if the state's proof has simply not persuaded a juror,

his resulting doubt was not “reasonable” unless he was also

able to articulate a reason for it. It is for this reason that

such instructions have been disapproved by the courts of most

jurisdictions which have considered them. ° The reasoning behind

6ounn v. Perrin, 570 P.24 21 (ist Cir. 1978); United States

v. Davis, 328 F.2a 864 (2a Cir. 1964); United States v. Harris,

346 F.2a 182 (4th Cir. 1965); Bernstein v. United States, 234

P.2a 475 (5th Cir. 1956); Pettine v. Territory of New Mexico,

201 F. 489 (8th Cir. 1912); State v. Taylor, 76 Idaho 358, 283

P.2a 582 (1955); Sulie v. State, 379 N.E.2da 455 (Ind. 1978);

State v. Cohen, 108 Iowa 208, 78 N.W. 857 (1899); State v.

Maxwell, 328 A.2a 801 {Me. 1974); Commonwealth v. Robinson, 415

N.E.24 805 (Mass, 1981)) State v. Newman, 93 Minn. 393, 101

N.W. 499 (1904); Isaacks v. State, 337 S0.2da 928 (Miss. 1976);

State v. Rosenburg, 118 A. 207 (N.J. 1922); Commonwealth v.

Custer, 145 Pa.Super. 535, 21 A.2d 524 (1941); Owens v. Common-

wealth, 186 Va. 689, 43 S.E.2d4 895 (1947); State v. Keffer, 281

S.£.2d4 495 (W.Va. 1981); but see State v. Derrico, 181 Conn. 151,

smnnbanta emntinued. an next page) : aay “aay aa

14

: f .

this disapproval was forcefully set out by the Eighth Circuit

in Pettine v. Territory of New Mexico, 201 F. 489 (1912):

The ability to give sound reasons for their

doubts or their beliefs is not given to many

men, and every prudent and thoughtful man

at once recognizes the fact that in the grav-

er and more important affairs of his own

life doubts for which he can formulate no

convincing reason often induce him to act

or to refuse to act. To require every per-

son accused of crime to present such a state

of evidence at his trial that every juror can

give a sound reason based on the testimony for

his doubt of his guilt before he may vote for

his acquittal places too heavy a burden on the

accused, It destroys the rule of reasonakle

doubt, and substitutes for a reasonable doubt

a demonstrable doubt logically and conclusively

sustained by the evidence or the want of it.

It is not petitioner's purpose to press upon this Court

the question of whether each of these instructions, considered

in isolation, should or should not be given in state criminal

trials. He does contend, however, that the cumulative effect

of the trial judge's repeated attempts to “define” the reason-

able doubt standard by diluting the quantum of certainty re-

quired to justify a finding for the prosecution was such as to

violate the Fourteenth Amendment, and warrants review by this

Court. No matter how much latitude the states may enjoy in

(Footnote 6 continued)

434 A.2d 356 (Conn. 1980); Powers v. State, 150 Ga.App. 25,

256 S.E.2d 637 (1979); State v. Osbey, 213 Kan. 564, 517 P,2d

141 (1973); People v. Turner, 99 Mich.App. 233, 298 N.W.2d

848 (1980).

"similarly, in considering an instruction that a

reasonable doubt was one “which one should be able to express

a good and substantial reason therefore,” the Virginia Supreme

Court pointed out that

[t]he language employed is susceptible of

the interpretation that a juror must be able

to formulate or express in words the reason

for the doubt which may be in his mind be-

fore it can be classed as reasonable. A

juror may entertain a reasonable doubt as

to the guilt of the accused although he may .

be unable to formulate or express it in

words, He may be unconvinced by the evidence

and yet unable “to give a good and substantial

reason,” or, indeed to express any reason for

the result of his mental process. If such

doubt be honestly entertained the juror should

vote for acquittal.

Owens v. Commonwealth, 186 Va. 689, 43 S.£.24 895, 902 (1947).

15

i ‘

the formulation of jury instructions for criminal trials, it

is obvious that where the federal Constitution imposes the

obligation on a state trial judge to instruct a jury on a

particular legal principle, In. re Winship, 397 U.S.-358 (1970),

Taylor v. Kentucky, 436 U.S. 478 (1978), Carter v. Kentucky,

450 U.S. 288 (1981), the words actually spoken to the jury

must fairly convey the substance of the principle involved.

There are, in other words, outer limits to the latitude of

state courts in devising jury instructions concerning rights

guaranteed by the Fourteenth Amendment. So far as petitioner

is aware, this Court has never before had occasion to demar-

cate any such outer limit beyond which an instruction pur-

porting to embody an essential federal constitutional right

may not go. Given the still substantial disagreement among

American jurisdictions concerning the various definitions of

reasonable doubt involved in this case, see notes 5 and 6,

supra, petitioner submits that this area is one where the

constitutional outer limit of such instructions should now be

demarcated by this Court.

This case is an appropriate occasion for such a considera-

tion of the minimum constitutional standards for jury instruc-

tions on reasonable doubt, since its facts provide a parti-

cularly stark example of the prejudice that can result from

the dilution of the reasonable doubt principle. Petitioner

was charged at his sentencing hearing with interracial rape,

on evidence so tenuous that the trial judge at first announced

that he would direct a verdict in petitioner's favor. Among

petitioner's defenses to the charge was consent. Thus both

the state's evidence and petitioner's defense inevitably

forced the jury to confront the question of what sorts of

doubts might be classified as “reasonable” doubts. The trial

judge answered that question by informing the jury that a

reasonable doubt was only such doubt as could also be described

as “substantial,” “serious,” "strong" or “well-founded,” and

for which the jurors could "give a real reason." Whatever

doubts the jury may otherwise have entertained were not likely

to survive such an onslaught of explanation, nor did they.

Unlike the merely confusing reasonable doubt | Se

criticized in Holland v. United States, 348 U.S. 121, 140

(1954), the instructions given here were indeed “of the type

that could mislead the jury into finding no reasonable doubt

when in fact there was some." Their effect, in short, was

to deny petitioner the full protection of the reasonable

doubt standard in the determination that he had committed

a crime punishable by death.

II. THE COURT SHOULD GRANT THE WRIT

TO CONSIDER THE APPLICABILITY OF

JACKSON V. VIRGINIA, 443 U.S. 307 (1979)

TO CAPITAL SENTENCING PROCEEDINGS.

As noted above, South Carolina's capital sentencing

procedures prohibit imposition of the death penalty except

upon a finding by the sentencing authority that at least

one statutory aggravating circumstance has been established

by proof beyond a reasonable doubt. S.C. Code §16-3~-20(c)

(1976). Any such holding, moreover, must be reviewed by

the Supreme Court of South Carolina in order to ensure that

the evidence supports the sentencer's finding of a statutory

aggravating circumstance. S.C. Code § 16-3-25(c) (2).

This case presents the question of whether the Eighth and

Fourteenth Amendments permit the carrying out of a sentence

of death imposed on the basis of evidence which was not, and

which has never been found to be, sufficient to convince

any rational trier of fact beyond a reasonable doubt.

In Jackson v. Virginia, 443 U.S. 307 (1979), the

Court observed that the "no evidence" rule of Thompson v.

Louisville, 362 U.S. 199 (1960), was “simply inadequate to

protect against misapplications of the constitutional

standard of reasonable doubt,” and held that a habeas corpus

petitioner has been denied due process where the evidence

upon which his state conviction rests was such that “no

rational trier of fact could have found proof of guilt

beyond a reasonable doubt." 443 U.S. at 320-1, 324. In

view of this Court's repeated insistence that the decision

to impose death as punishment requires procedures which ensure

particular reliability, Woodson v. North Carolina, 428

U.S. 280 (1976), Gardner v. Florida, 430 U.S. 349 (1977),

' 17

en io

' (

Beck v. Alabama, 447 U.S. 625 (1980), it aN 8 seriously

be argued that the evidence which forms the factual basis

of a particular death sentence need not satisfy the Jackson

standard, or that “any evidence" can satisfy the Eighth

Amendment's requirement of "a meaningful basis for distinguising

the few cases in which [the death penalty] is imposed from

the many in which it is not." Purman v. Georgia 408 U.S.

238, 313 (1972) (White, J., concurring).

It is equally clear, however, that the Supreme Court

of South Carolina applied precisely such an “any evidence"

standard in affirming petitioner's sentence of death. The

author of the opinion in petitioner's case, Justice Ness,

was acutely aware of the difference between the “any

evidence” and Jackson standards of review, since he authored

a dissent in an unrelated non-capital murder case just nine

days after the issuance of the opinion in State v. Butler

which contains the following comparison between the two

standards of review:

Reviewing [the) evidence in the light

most favorable to the State as required

by the “any” evidence rule, State v. Bailey,

253 S.C. 204, 170 S.E.2a 376 (1969), I am

convinced that the record is without “any”

evidence to support appellant's conviction.

Moreover, viewing the evidence in accordance

with the standard of appellate review mandated

by the United States Supreme Court in Jackson

v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61

L.Ed 560 (1979), it is even more convincing

the trial judge erred in refusing appellant's

motion for a directed verdict. This standard

of appellate review requires us to consider

not whether there is "any" evidence to support

the conviction, but whether viewing the evi-

dence in the light most favorable to the

prosecution, there is sufficient evidence to

justify a rational trier of fact to find guilt

beyond a reasonable doubt.

State v. Stewart, S.C. ° S.E.2d (Opinion No.

21656, filed March 3, 1982) (Ness, J., dissenting). It is

plain, then, that the court's reliance in petitioner's case

on the pre-Jackson “any evidence" standard in its mandatory

appellate review of the sufficiency of the evidence upon

which his death sentence rests is the product not of over-

sight but of an erroneous rejection of the Jackson standard

as the appropriate guideline for determining such sufficiency.

fe ‘e

A review of the evidence in aggravation in this

case, moreover, aS summarized above at 6, reveals that

petitioner's death sentence could not have withstood

scrutiny under the Jackson standard. Regardless of whether

the fact that Miss Lane engaged in sexual intercourse

and was thereafter murdered might constitute “some evidence”

that this sexual intercourse occurred during a rape by

petitioner, the record as a whole simply cannot support a

finding of rape by a rational trier of fact beyond a reasonable

doubt. Accordingly, the constitutionally indispensible

factual basis of petitioner's sentence of death simply has

not been established with that degree of "utmost certainty"

upon which “the moral force of the criminal law depends.”

In re Winship, 397 U.S. 358, 364 (1970). Even in a non-

capital case, such a situation would be constitutionally

intolerable. In a capital case such as this one, involving

allegations of interracial murder and rape, the added

danger that the death penalty may be inflicted on the basis

of arbitrary and discriminatory considerations only makes

adherence to and application of the strict standard of proof

required by Jackson all the more indispensible.

Although the applicability of the Jackson standar@

to capital sentencing proceedings is implicit in this

Court's whole jurisprudence of capital punishment since

Furman, the Court has not yet had occasion expressly to

apply Jackson in this context. Because the Supreme Court

of South Carolina has erroneously rejected Jackson as the

standard for review of the sufficiency of the evidence which

constitutes the basis for petitioner's death sentence, the

Court should grant his petition for a writ of certiorari,

apply the legal standard which the Eighth and Fourteenth

Amendments require, and vacate his sentence of death.

19

CONCLUSION

Petitioner prays that his petition for a writ of

certiorari be granted.

Respectfully submitted,

err ay a

DAVID Tt. BRUCK

Attorney at Law

1401 Calhoun Street

Columbia, South Carolina 29201

(803) 758-8601

ATTORNEY FOR PETITIONER.

July 6, 1982.