Opposition Brief — North Carolina v. Bryant

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No. 93-753 Y a 6 0

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

(RR RSSSSSLESEESLSESSESESESESE SESE SESE SEES ESE SESS SESE SES FS

STATE OF NORTH CAROLINA,

Petitioner,

KENNETH MICHAEL BRYANT

Respondent.

LPR PRESS SLES ESE SLE SESE SESE SESE SESE SESE SESE SESE SE SE SS SF

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF NORTH CAROLINA

De PRRS REESE ESE SE SESE SESE SEES SESE SESE SESE STE SESS ES SES SF

RESPONDENT BRYANT'S BRIEF IN OPPOSITION

(PPP PSR SE SES ESESESE SESE SESE ESE SESE SESE SESE SESE SSS ES SS

Gordon Widenhouse*

Assistant Appellate Defender

Janine Crawley

Assistant Appellate Defender

Office of the llate Defender

1905 Meredith Drive, Suite 200

Durham, North Carolina 27713

(919) 560-3282

COUNSEL FOR RESPONDENTS

*Counsel of Record

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WHETHER NORTH CAROLINA PROPERLY HELD

THAT AN INSTRUCTION ON REASONABLE DOUBT

WHICH HAD THE SAME DEFECTS AS THE

INSTRUCTION FOUND UNCONSTITUTIONAL IN

CAGE —Y. LOUISIANA VIOLATED DEFENDANT'S

RIG DUE PROCESS OF LAW UNDER

THE FOURTEENTH AMENDMENT?

meet LS ee

ie *

- iii -

TABLE OF CONTENTS

CULTS TION PERI G BBG ceccccncsccessesenerniennsennieenneserneniinnmmnpaciaionianinaaanpito il

SARs Ge Cae Bae 6D irrensteseernreniteninncnminnsinninnenmiuninenniamnnninimen ili

TABLE OF CASS AINE) ALT TES OGUE 6 BiB eccccccescevessseveseopresnessnsrenreesneonsenesconensnens iv

OPINIONS BELOW......... nibesainsdhetianinadbievinunirenenencennoninnitsenteninetaitietaninidmiehusnnnrn 2

Fe Bee cnesecssnemnernsncesitstcinrrrstiensiianemninunnmennenmtanicinnnanipninaiinbitinamniante 2

CONSTITUTIONAL AMENDMENTS AND STATUTES INVOLVED....... 2

STA TERETE OF SEES CAGES ccecnsocsssseevmnevenenmvesevsssseenee decpiicainiengeerenenane 2

REASONS WHY A WRIT SHOULD NOT ISSUE ...........ccccssssssssssssssceseereeesees 5

I. NORTH CAROLINA PROPERLY APPLIED BOYDE V.

CALIFORNIA IN HOLDING THAT AN

INSTRUCTION ON REASONABLE DOUBT, WHICH

HAD THE SAME DEFECTS AS THE INSTRUCTION

FOUND UNCONSTITUTIONAL IN CAGE __V.

VIOLATED DEFENDANT'S RIGHT TO

THE DUE PROCESS OF LAW UNDER THE

FOURTEENTH AMENDMENT ....-.:.c.cocsccsssoscsesesesssscsesvscswsecscseces 5

Il. THE NORTH CAROLINA SUPREME COURT

NEITHER MISAPPLIED SULLIVAN V. LOUISIANA

NOR ABANDONED THE STANDARD OF REVIEW

FOR JURY INSTRUCTIONS SET FORTH IN

; NORTH CAROLINA PROPERLY

RELIED ON SULLIVAN IN HOLDING THAT CAGE

ERROR WAS PLAIN ERROR AS A MATTER OF

STATS. CW cenntsennstimencrnmsninstnnneanebapenamminnitnrmmen 10

ISIN ccccsnsscsesvesesnenspesesrsesnnsnnvenacesnenetnaseainuinininqnemuvenestasintaienttetannnsnieraits 13

-iv-

CASES

v. California,

494 U.S. 370 (1990) 5, 10

Bradford v. State,

261 Ga. 833, 412 S.E.2d 534 (1992) , 9 |

7

v. Louisiana, a

498 U.S. 39 (1990) 4,5 4

Commonwealth v. Beldotti, §

409 Mass. 553, 567 N.E.2d 1219 (1991) u

Estelle v. McGuire,

__ US. _, 112 S. Ct. 475 (1991) 7,10

Fay v. Noia,

372 U.S. 391 (1963) 13

Henry v. Mississippi, .

379 U.S. 443 (1965) 13

Herb v. Pitcairn,

324 U.S. 117 (1945) 13

People v. J 2

279 Cal. ptr. 780, 807 P.2d 1009, cert. denied, 3

. CS. t8& Ct. 443 (1991) 9 4

People v. Melito, .

601 N.Y.S.2d 745 (A.D. 4 Dept. 1993) 9

People v. Sandoval, =

14 Cal. Rptr. 2d ere te P.2d 862 (1992), cert. 4

oo __, 1148. Ct. 40 1993) 8 4

Sandoval v. California, .

No. 92-9049 5 a

Starr v. State,

201 Ga. Pep. TS, SIO SBE ABD IGG) csctcsiesdevetinpivipapisicpiictiimnsssiniciadita 9

State v.

Bryant,

334 N.C. 333, 432 S.E.2d 291 (1993) passim

State v. Hammonds,

241 N.C. 226, BS SEBS TFS Cr iicesercssensiertaisativisegnsadaainiamabeanieia 7

State v. Hoffman,

TA ee Go BSI PB BOF (IFRS) crcscsectecivccirecieresseneeniensereneninceanepnaiititemansnss 9

State v. Manning,

305 S.C. 413, 409 S.E.2d 372 (1991), cert. denied,

US. _, 112 S.Ce. 1282 (1992) ...2.0..rocecseernesereccrsenervsaneorevescensensenesssoonvesorese 9

State v. Montgomery,

331 N.C. 559, SET DEB FGe CID cnsvinconseneerviematntcicnsdamiinsmmnnmmapiiniteatin 8

State v. Morman,

505 N.W.2d 593 CORE, Fi ictiteninanictsnsniccncstinicsieislnheinienstaehetietiipiaatanitaiantinal 9

State v. Odom,

SSF FE. GES, FED Be SIS CD ccceviscivnienntintinnnniensiciinmninmeinuatinene 12

State v. Williams,

313 Or. 19, 828 P.2d 1006, cert. denied, US. _,

Sis 278. C PD sect invtvtitingensitinnosnemnsiehnsiiinioinaenpiuibmeniseciidionmnianenioeins 9

State v. Williams,

a Fe PU, SIO BBs SO CNS) iicinereinessnenscaciniienisnttinicsininnenmnnineciadmauniti 1,7

State v. Young,

GSD FBG SST CUT 1GGS) saectrcceenerersesesssccsersveritenctiennenntnneentesanninenimninentententicetn 9

Sullivan v. Louisiana,

US. __,, 113 S. Ct. 2078 (1993)........0sererseccessersvcessncnesnceseneseresesoncesencenes 7,10

United States v. McCaskill,

676 F.2d 995, 1002 (4th Cir.), cert denied,

SF a Se ee ciiticieeniestntuttisinatainidiinteinnemicdnieninnstinneen 12

N. C. Rule of App. Proc. 10(6 4) ..cccccccercseoscosoesescsscosseounesvenressvsesnenscsssnoneet 12

No. 93-753

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

STATE OF NORTH CAROLINA,

Petitioner,

KENNETH MICHAEL BRYANT

Respondent.

i

SSSA KSEE EES EEE EEE eee :

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF NORTH CAROLINA

RESPONDENT BRYANT'S BRIEF IN OPPOSITION

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SSSSSKSSSSSSSSSSSS SSS SSSESS SAREE SEER EERE EEE ES ‘

Respondent, Kenneth Michael Bryant, respectfully opposes and requests this

Court to deny the Petition for Writ of Certiorari filed by petitioner seeking review of

the decisions by the Supreme Court of North Carolina. See State v. Bryant, 334 N.C.

333, 432 S.E.2d 291 (1993); State v. Williams, 334 N.C. 440, 434 S.E.2d 588 (1993).

Petitoner joined State v. Williams and State v. Bryant, under Rule 12.2 in its Petition for

a Writ of Certiorari. Respondents are filing separate Briefs in Opposition. Respondent

Bryant incorporates herein by reference the Brief in Opposition filed by Respondent

Williams.

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AMENDMENTS AND STATUTES INVOLVED

Pursuant to Rules 15.2 and 24.2, these items are omitted since respondent is

satisfied with petitioner's statements of the OPINIONS BELOW, JURISDICTION,

AND CONSTITUTIONAL AMENDMENTS AND STATUTORY PROVISIONS.

STATEMENT OF THE CASE

Respondent Kenneth Michael Bryant was convicted of one count of first-degree

murder for the shooting death of Mr. Bryant's estranged wife's boyfriend. Respondent

was sentenced to life imprisonment. The state relied primarily on two pieces of

evidence: (1) a questionable eye-witness identification of respondent running across a

field close to the victim's trailer just after the witness heard a gunshot; and (2) the

testimony of an accessory, obtained in exchange for immunity from prosecution.

The eye-witness, Charles Myers, testified at about 10:30 p.m. on December 30,

1989, he was conversing with a friend outside a bar, near the victim's trailer, when he

heard a gunshot. About forty-five seconds later Myers saw a slender man wearing a

checked shirt run past him at a distance of about ten feet; the man had approached

from a cornfield. A short time later, the victim's girlfriend (who was respondent's

estranged wife) arrived home and began screaming; Myers crossed the street to

investigate and saw the victim lying in the doorway of the trailer. When police arrived,

Myers identified the runner to authorities as respondent. Myers' identification of

respondent was suspect for three reasons. First, Myers identified the runner as

respondent after having mixed with the victim's friends and family outside the victim's

trailer following the shooting. The victim's friends and family uniformly were blaming

respondent for the shooting. Second, Myers repeatedly described the runner as wearing

a checked shirt and others who spent time with respondent that night all agreed that

respondent was wearing a distinctive black shirt with a white design on the pocket.

Finally, a shoeprint found in the cornfield from which the runner approached did not

match the shoes which respondent was wearing when arrested.

Respondent's girlfriend, Cheryl Marlowe, testified under a grant of immunity

that she spent the evening of December 30, 1989 with respondent. Marlowe and

respondent visited a bar and then drove around the back roads of Nash County. At

about 10:30 p.m., at a location near the victim's trailer, respondent left the car for about

five minutes. Marlowe testified that after respondent returned to the car, he unloaded

a gun and told Marlowe that he had gone to the victim's trailer to speak with his

estranged wife, that he and the victim both grabbed the front door handle and struggled

over opening the door, and that respondent finally stuck the gun through the door and

fired.

Marlowe was thoroughly impeached on cross-examination. She had given four

prior inconsistent statements to police officers and an additional prior inconsistent

statement to defense counsel. Two out of her four prior statements to police made no

mention of a gun. In her prior statement to defense counsel, Marlowe denied that

respondent had a gun on the night of the shooting. Marlowe's version of events also

was inconsistent with the ballistic evidence. In one of her statements, Marlowe claimed

that defendant was carrying a .22 or .25 caliber pistol, yet the ballistics showed that the

victim was shot with a .40 caliber gun. Moreover, the physical evidence showed that the

gunshot was fired through the closed door of the victim's trailer, not through an opening

in the door as implied in Marlowe's account.

The state also introduced evidence showing that respondent and the victim had

been involved in a prior altercation in which respondent had been seriously injured and

that respondent had threatened the victim on the night of the shooting by stating to

several patrons of a bar that he “had something" for the victim.

Respondent presented a strong alibi. Respondent acknowledged that he had

gone out with Cheryl Marlowe earlier in the evening, but maintained that by the time of

the shooting, he was at his sister's house playing cards. One of the persons who testified

to this alibi was respondent's brother-in-law who had no reason to protect respondent;

respondent previously had sold this witness stolen goods and had caused the witness to

serve time in jail.

Respondent appealed his conviction and the North Carolina Supreme Court

awarded a new trial because the instruction on reasonable doubt given by the trial court

was unconstitutional under Cage v. Louisiana, 498 U.S. 39 (1990). See State v. Bryant,

334 N.C. 333, 432 S.E.2d 291 (1993).

I. NORTH CAROLINA PROPERLY APPLIED BOYDE V.

CALIFORNIA IN HOLDING THAT AN INSTRUCTION

ON REASONABLE DOUBT, WHICH HAD THE SAME

DEFECTS AS THE INSTRUCTION FOUND

UNCONSTITUTIONAL IN CAGE__Y, LOUISIANA,

VIOLATED DEFENDANT'S TO THE DUE

PROCESS OF LAW UNDER THE FOURTEENTH

AMENDMENT.

The decision below held that an instruction on reasonable doubt violated due

process because the instruction contained a combination of terms that was virtually

identical to the combination prohibited in Cage v. Louisiana, 498 U.S. 39 (1990) and

there was a reasonable likelihood that the jury interpreted the challenged instruction in

an unconstitutional way. See Boyde v. California, 494 U.S. 370 (1990). The instruction in

the instant case defined reasonable doubt as "an honest substantial misgiving," twice

equated proof beyond a reasonable doubt with moral certainty of guilt, and contained

other confusing archaic language. The instruction below is distinguishable from the

instruction in Sandoval v. California, No. 92-9049, recently considered by this Court; the

challenged instruction in the case below contained problematic terms in addition to

references to moral certainty. The decision below constituted a proper and

4

noncontroversial application of Cage and does not require review by this Court.

Cage held that the following instruction was constitutionally defective:

If you entertain a reasonable doubt as to any fact or

element necessary to constitute the defendant's pail,

it is your duty to give him the benefit of that doubt

and return a verdict of not guilty. Even where the

evidence demonstrates a pro ity of guilt, if it

does not establish such guilt beyond a reasonable 4

doubt, you must acquit the accused. This doubt, a

however, must be a reasonable one; that is one that

is founded upon a real tangible substantial basis and

not upon mere caprice and conjecture. Jt must be

such doubt as would give rise to a e uncertainty,

raised in your mind by reasons of the unsatisfacto

character of the evidence or lack thereof.

reasonable doubt is not a mere possible doubt. Jt is

an actual substantial doubt. It is a doubt that a

reasonable man can seriously entertain. What is

required is not an absolute or mathematical

oa but a moral certainty. 554 So. 2d 39, 41

(La. 1989) (emphasis added)

Cage v. Louisiana, 498 U.S. at 40. This instruction is unconstitutional because, "the

words ‘substantial’ and ‘grave,’ as they are commonly understood, suggest a higher

degree of doubt than is required for acquittal under the reasonable doubt standard.

When those statements are then considered with the reference to ‘moral certainty,’

rather than evidentiary certainty, it becomes clear that a reasonable juror could have

interpreted the instruction to allow a finding of guilt based on a degree of proof below

that required by the Due Process Clause." /d. at 41.

The case below, State v. Bryant, 334 N.C. 333, 432 S.E.2d 291 (1993) held that a

definition of reasonable doubt which contained a combination of terms nearly identical

to the combination condemned in Cage, and which suffered from the same defects as

the definition in Cage, violated due process. The challenged instruction stated:

When it is said that the jury must be satisfied of the

defendant's guilt beyond a reasonable doubt, it is

meant that they must be fully satisfied or entirel

convinced or satisfied to a moral certainty of the trut

of the charge.

If, after considering, comparing and i oy all the

evidence, the minds of the jurors are left in such

condition that they cannot say they have an abiding

faith to a moral certainty in the defendant's guilt, then

they have a reasonable doubt; otherwise, not.

A reasonable doubt, as that term is employed in the

administration of criminal law is an _ honest

substantial misgiving generated by the insufficiency

of the proof.

State v. Bryant, 334 N.C. at 339, 432 S.E.2d at 294-95.! Petitioner incorrectly implied

that the only alleged flaw in the challenged instruction was that it equated proof beyond

a reasonable doubt with moral certainty of guilt. Petition at 11-12, 13-14. Unlike the

instructions in Sandoval v. California, No. 92-9049, which were challenged only on the

ground that the instructions equated proof beyond a reasonable doubt with a moral

certainty of guilt, the instruction below contained a combination of problematic terms,

“honest substantial misgiving" and two references to "moral certainty," which was

virtually identical to the combination found unconstitutional in Cage. This combination

of terms unconstitutionally reduced the state's burden of proving guilt beyond a

reasonable doubt.

The North Carolina Supreme Court correctly reviewed the above instruction

using the standard set by this Court in Boyde v. California, 494 U.S. at 380, and Estelle v.

McGuire, _ US. _, 112 S.Ct. 475, 482 n.4 (1991).2 The challenged instruction

“equated reasonable doubt with a ‘substantial misgiving,' which, while not identical to

the ‘substantial doubt,’ or 'grave uncertainty’ language condemned in Cage, conveyed a

nearly identical meaning. More importantly, . . . [the instruction joined the] definition

1 The full instruction on reasonable doubt given in Bryant is included as Appendix A. A very

similar instruction was given in State v. Williams, 334 N.C. 440, 446, 434 S.E.2d 588, 592 (1993) The Bryant

instruction is not North Carolina's Pattern Jury Instruction on reasonable doubt. The reasonable doubt

instruction used in Bryant was taken from a definition of reasonable doubt stated in an earlier North

Carolina decision, State v. Hammonds, 241 N.C. 226, 232, 85 S.E.2d 133, 138 (1954).

2 In Estelle, and again in Sullivan v. Louisiana, _ U.S. _, 113 S.Ct. 2078 (1993), this Court has

ackhowledged that there may be some tension between the standard of review articulated in Cage and the

Boyde standard. This issue is not presented by the case at bar. Following this Court's affirmation of the

Boyde standard in Estelle, the North Carolina Supreme Court applied the more rigorous Boyde test to the

challenged instruction. State v. Bryant, 334 N.C. at 341-342, 432 S.E.2d at 296.

= 7

DR ae * * S,

of a reasonable doubt as an ‘honest substantial misgiving' with a requirement that to

convict the jury must be convinced to a ‘moral certainty,’ rather than an evidentiary

certainty. ... [T]he ‘moral certainty’ test [was stated] two separate times in the

instruction. While the instruction [above] ... was not identical to the instruction held

unconstitutional in Cage, the . . . combination of terms [was] so similar to the

combination disapproved in Cage that there is a reasonable likelihood that a jury

[would apply] the challenged instruction in a way that violated the Due Process Clause.

See Estelle v. McGuire, 592 U.S. __, 116 L.Ed. 2d 385, 399 n.4." State v. Montgomery,

331 N.C. 559, 573, 417 S.E.2d 742, 750 (1992); State v. Bryant, 334 N.C. at 341-42, 432

S.E.2d at 296 (adopting the argument set forth in Montgomery). North Carolina's

application of Cage to the instructions below, using the standard set by Boyde and

Estelle, was sound and proper.

Petitioner mischaracterized the division in authority among the jurisdictions

which have interpreted Cage. Petition at 14-16. The primary issue which has divided

jurisdictions is not whether Cage should be applied narrowly or broadly, but rather

whether equating “proof beyond a reasonable doubt" with “moral certainty of guilt” is

itself a violation of due process. Compare People v. Sandoval, 14 Cal. Rptr. 2d 342, 841

P.2d 862 (1992), cert. granted in part, 114 S. Ct. 40 (1993) (instruction which equated

3 In State v. Montgomery, decided before Bryant and Williams, two Justices of the North Carolina

Supreme Court held that an instruction on reasonable doubt which was nearly identical to the instruction in

State v. Bryant and State v. Williams, was unconstitutional under Cage. State v. Montgomery, 331 N.C. at 573,

417 S.E.2d at 750. Three other Justices, forming a majority, concurred in awarding defendant a new trial

on other grounds and did not reach the Cage issue. Because of the divided basis of the decision, the North

Carolina Supreme Court did not consider the opinion in Montgomery to be binding precedent on the issue

of the constitutionality of the reasonable doubt instruction. See State v. Bryant, 334 N.C. at 341, 432 S.E.2d

at 295.

Petitioner mistakenly stated that the instruction on reasonable doubt in Montgomery “contained

two references to moral certainty and . . . one to [the term] ‘an actual substantial misgiving.” Petition at 22.

In fact, the Montgomery instruction used the same language as the challenged instruction in Bryant, that is,

it contained references to moral certainty in combination with the phrase, “honest, substantial misgiving.”

Montgomery, 331 N.C. at 570-71, 417 S.E.2d at 748-49.

|

}

standard of proof beyond a reasonable doubt with a "moral certainty" of the truth of the

charge not sufficiently similar to Cage to warrant reversal); People v. Jennings, 279 Cal.

Rptr. 780, 807 P.2d 1009, cert. denied, U.S. _, 112 S. Ct. 443 (1991) (same); State v.

Hoffman, 123 Id. 638, 851 P.2d 934 (1993) (same) (petition for cert. filed, No. 93-5784);

State v. Morman, 505 N.W.2d 593 (Minn. 1993) (same); State v. Williams, 313 Or. 19,

828 P.2d 1006, cert. denied, U.S. _, 113 S. Ct. 171 (1992) (same); Bradford v. State,

261 Ga. 833, 412 S.E.2d 534 (1992) (same); Starr v. State, 201 Ga. App. 73, 410 S.E.2d

180 (1991) (same); Commonwealth v. Beldotti, 409 Mass. 553, 567 N.E.2d 1219 (1991)

(same); with People v. Melito, 601 N.Y.S.2d 745 (A.D. 4 Dept. 1993) (instruction

equating reasonable doubt with a lack of moral certainty violated Cage); see also State v.

Young, 853 P.2d 327 (Utah 1993) (instruction equating proof beyond a reasonable

doubt with a non-evidentiary standard phrased as ‘an abiding conviction . . . such as you

would be willing to act upon in the more weighty and important matters relating to your

own affairs’ violated Cage).

The case at bar does not present the question of whether a reference to moral

certainty is enough to invalidate an instruction on reasonable doubt. The decision

below involved a straightforward, noncontroversial application of Cage to a

combination of terms which together implied that a more stringent standard of doubt

was required for acquittal than ‘reasonable doubt.' The instruction condemned in this

decision was very similar to the instruction on reasonable doubt held unconstitutional in

South Carolina, which this Court declined te review. See State v. Manning, 305 S.C. 413,

409 S.E.2d 372 (1991), cert. denied, __ US. 112 S.Ct. 1282 (1992) (holding that

instruction which equated reasonable doubt with "a substantial doubt for which honest

ae

people can give a real reason" in combination with references to moral certainty

. -F

violated due process). The opinion below was sound and respondent respectfully

requests that this Court decline to review the lower court's decision.*

il. THE NORTH CAROLINA SUPREME COURT NEITHER

MISAPPLIED SULLIVAN _V. LOUISIANA NOR

ABANDONED THE STANDARD OF REVIEW FOR

JURY INSTRUCTIONS SET FORTH IN

; NORTH CAROLINA PROPERLY RELIED

ON SULLIVAN IN HOLDING THAT CAGE ERROR WAS

PLAIN ERROR AS A MATTER OF STATE LAW.

Contrary to Petitioner's assertion, Petition at 23-29, the North Carolina Supreme

Court did not misinterpret Sullivan v. Louisiana, _ US. ___, 113 S. Ct. 2078 (1993).

Moreover, State v. Bryant, 334 N.C. 333, 432 S.E.2d 291 (1993) did not apply a standard

of review that was inconsistent with Boyde v. California, 494 U.S. 370 (1990) or Estelle v.

McGuire, _US. _, 112 S. Ct. 475, 482 n.4 (1991). Petitioner wrongly implied that

Sullivan in some way led the North Carolina Supreme Court to abandon the

Boyde\Estelle standard for reviewing jury instructions. Petition at 27. In fact, Bryant

properly relied on both the Boyde\Estelle test and Sullivan in different portions of the

opinion.

In Bryant, there was no objection at trial to the instruction on reasonable doubt.

Thus, in finding reversible error, the North Carolina Supreme Court was required by

State law to apply a three-part test. First, the court determined that defendant's failure

to preserve the error at trial did not bar appellate review because the alleged error was

“plain error" under North Carolina's plain error rule. State v. Bryant, 334 N.C. at 339-

340, 432 S.E.2d at 295. Second, the court found error; at this stage of its analysis, the

* As an alternative to granting a writ of certiorari, Petitioner requested this Court to hold the

cases below pending the outcome of Sandoval. Because the question presented by the instant cases is easily

distinguishable from the question presented in Sandoval, there is no reason to hold these cases.

Respondent respectfully requests that this Court deny review.

4 a

court below properly relied on the Boyde/Estelle test for reviewing jury instructions in

holding that the challenged instruction was unconstitutional under Cage. State v. Bryant,

334 N.C. at 341-342, 432 S.E.2d at 296. Third, the court below determined that the

error was reversible, citing Sullivan, which held that Cage error cannot be harmless

because it is structural error that always invalidates a conviction. State v. Bryant, 334

N.C. at 343, 432 S.E.2d at 297; see Sullivan v. Louisiana, _US. at ___, 113 S. Ct. at

2082-83.

Petitioner's mistaken contention that Sullivan in some way affected or altered

the standard of review which North Carolina applies to jury instructions resulted from a

confusion and conflation of the separate steps explained above. See Petition at 26-27.

Sullivan had no impact on the substantive, second step of the lower court's analysis; with

respect to the question of whether the challenged instruction was erroneous under

Cage, the court below properly applied the Boyde/Estelle standard.> Thus, Bryant in no

way abandoned the Boyde/Estelle test.

Bryant's reliance on Sullivan in the third step of the analysis was correct and

unproblematic. Sullivan holds as a matter of federal constitutional law that Cage error

is structural error which nullifies the jury verdict; thus, this type of error is reversible per

se and cannot be subject to a harmless error review. Sullivan v. Louisiana, __ US. __,

113 S. Ct. at 2082. In determining that the instruction deemed erroneous under Cage

was reversible error, the court below simply followed the mandate of Sullivan.

As explained in more detail below, the North Carolina Supreme Court also

relied on Sullivan in deciding that alleged Cage error was plain error which could be

reviewed despite defendant's failure to object to the challenged instruction at trial. The

5 This step of the analysis is discussed in more detail in Argument I of this Brief.

a >

Ce ee ak a re +

ae

lower court's decision to apply North Carolina's "plain error" rule in Bryant is a state

law matter which is not appropriate for review by this Court.

North Carolina recognizes a plain error exception to its procedural default rules.

Plain error is defined under North Carolina law as:

‘fundamental error, something so basic, so

prejudicial, so lacking in its elements that justice

cannot have been done,’ or ‘where the error is grave

error which amounts to a denial of a fundamental

right of the accused’, or the error has ‘resulted in a

miscarriage of justice or in the denial of llant to

a fair trial,’ . . . or where it can be fairly said ‘the

instructional mistake had a probable impact on the

jury's finding that the defendant was guilty.’

State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v.

McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert denied, 459 U.S. 1018 (1982)); See also

North Carolina Rule of Appellate Procedure 10(c)(4) ("[i]n criminal cases, a question

which was not preserved by objection noted at trial . . . nevertheless may be made the

basis of an assignment of error where the judicial action questioned is specifically and

distinctly contended to amount to plain error"). Odom creates a two prong test; plain

error is either fundamental error which resulted in a miscarriage of justice, or error

which had a probable impact on the jury's finding of guilt. State v. Odom, 307 N.C. at

660, 300 S.E.2d at 378.

Relying on Sullivan, which explained that a jury verdict rendered in violation of

Cage is not a jury verdict within the meaning of the Sixth Amendment, Bryant held that

Cage error was fundamental error under the first prong of Odom. Bryant concluded

that Cage error was plain error as a matter of North Carolina law, which simply means

that it is an error that can be reviewed on appeal despite the absence of an objection at

trial. See State v. Bryant, 334 N.C. at 340, 432 S.E.2d at 295.

+.

North Carolina's plain error iule is a state-made exception to state law on

procedural default; whether the lower court correctly applied its plain error rule in

Bryant is a state-law matter which this Court should decline to review. See Henry v.

Mississippi, 379 U.S. 443, 446 (1965) (this Court will decline to review state court

judgments which rest on independent and adequate state procedural grounds); Herb v.

Pitcairn, 324 U.S. 117 (1945) (Illinois venue rules not subject to review by this Court).

In sum, Bryant did not misapply Sullivan and did not abandon the Boyde \ Estelle

test. Bryant correctly relied on both Boyde and Sullivan at different points in the

analysis.

CONCLUSION

For reasons stated herein, respondent respectfully requests that the Petition for

Writ of Certiorari be denied.

© Principles of comity also compel restraint; the North Carolina Supreme Court's use of its plain

error ruls is a critical part of the fair and orderly administration of justice in the state and this Court should

decline to interfere with the lower court's decision to rely upon this rule. See Fay v. Noia, 372 U.S. 391, 438

(1963) (as a matter of comity, federal courts may decline relief to a habeus applicant where the applicant

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sistant Appellate Defender

Office of the Appellate Defender

1905 Meredith Drive, Suite 200

Durham, North Carolina 27713

(919) 560-3282

COUNSEL FOR RESPONDENTS

*counsel of record

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JUDGE BROWN'S CHARGE TO THE JURY.

THE COURT: All right. Ladies and

gentlemen of the Jury, ali the evidence has

been presented and it is now nie hated to

decide from that evidence what the facts are.

) You must apply the law which I give

you to those facts. :

And it's ieiiiionbas that you

understand and apply the law as I give it to

you, and not as you think it is or as you

might like it to be.

This is important because justice

requires that everyone tried for the same

crime be treated in exactly the same w@y and

have the same law applied to him.

[_ The defendant has entered a plea of

not guilty.

The face that he has been charged is

no evidence of guilt.

Under our system of justice, when a

defendant pleads not guilty, he is not

required to prove his innocence. He ts

presumed to be innocent.

The State must prove to you that the

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defendant is guilty beyond 4 reasonable doubt.

A reasonable doubt is not a mere

possible doubt, for most things that relate to

human affairs are open to some possible or

imaginary doubt.

A reasonable doubt is not 4 vain,

imaginary or fanciful doubt, but it is 4&4 sane,

rational doubt arising out of the evidence or

lack of evidence or from it's deficiency.

When it is said that the Jury must

be satisfied of the defendant's guilt beyond a

reasonable doubt, it is meant that they must

be fully setisfied or entirely convinced or

satisfied to 3 moral certainty of the truth of

the charge.

tf. efter sekedeun tans comparing and

weighing a11 the evidence, the minds of the

Suvorz are tefe in such condition thet they

cannot cay they have an abiding faith to s

moral certainty in the defendant's guilt, then

they have a reasonable doubt; otherwise not.

A reasonable doubt, as that term is

employed in the administration of crimine)

law, is an honest substantial misgiving

generated by the insufficiency of the proof.

1 An insufficiency which fails to

1

2 . convince your judgment and confidence and

3 3 satisfy your reasons as to the guilt of the

4 ,gljaccused.

5 5 It is not a doubt suggested by the

6 6 ingenuity of counsel or by your own ingenuity

7 7iinot legitimately warranted by the testimony or

e Siisne bor. of merciful inclination or

9 . disposition to permit the defendant to escape

10" the penalty of the law or one prompted by

ne sympathy for him or those connected with he

12

Pn You are the sole judges of the

13, credibility of each witness.

14 465 You must decide for yourselves

1S 17lwhether to believe the testimony of any

1G 17 witness.

17 18 You may believe 211 or any part or

19 '9 none of what 4 witness has s4id on the stand.

20

i9 In determining whether to believe

21

29 any witnetcs, you should epply the same tests

22

. 27 of truthfulness which you appiy in your

23

ee everyday affairs.

24

23 4. As applied to this trial, these

oy 24 tests may include the opportunity of & witness

25 to see, hear, know or remember the facts or