Opinion
Civil Action No. 99-2175, Section "K"(4).
April 2, 2001
ORDER AND REASONS
Before the Court is Steven Quatrevingt's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Quatrevingt is a state prisoner incarcerated in the Louisiana State Penitentiary at Angola, Louisiana. Quatrevingt was convicted of first degree murder on January 19, 1990 and sentenced to life imprisonment without the benefit of parole.
In the instant matter, Quatrevingt filed his application for writ of habeas corpus alleging several errors that warrant granting of the writ. The United States Magistrate Judge found that plaintiff's contentions with respect to an unconstitutional reasonable doubt jury instruction had merit and recommended granting the writ on that ground alone. The defendant objected in a somewhat vague manner, not precisely identifying those portions of the Magistrate's report that are in error with respect to the procedural findings. On substantive grounds, the defendant argues that the jury charge in plaintiff's case passes the applicable constitutional standard as enunciated by Cage v. Louisiana and its progeny.
The Court after considering the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, the record, the applicable law, the Report and Recommendation of the United States Magistrate Judge and the Government's Objections received on December 4, 2000, and having conducted a de novo review of those portions of the Report and Recommendations to which objections are made as required by 28 U.S.C. § 636 (b)(1), hereby approves the Report and Recommendation of the United States Magistrate Judge and adopts it as its opinion in this matter, with the following modifications, for the reasons that follow.
Although defendant fails to pinpoint those conclusions that it found to be in error, it has asserted several general objections to the Magistrate's Report and Recommendation: Procedurally, defendant makes three objections, (1) petitioner's application is time barred under the AEDPA; (2) petitioner failed to exhaust his claims; and (3) petitioner failed to contemporaneously object to the allegedly defective jury instruction. Respondent also objects to the Magistrate's findings on substantive grounds, arguing that the Magistrate misapplied Cage and subsequent cases interpreting it, and that the "articulation requirement" does not apply to petitioner's claims.
This Court finds that respondents procedural objections to be meritless and therefore adopts the findings in the Report and Recommendation as its own. On substantive grounds, the Court adopts the findings of the Magistrate with the following modifications.
The gravamen of the finding in the Report and Recommendation is that the initial jury charge failed to satisfy Cage, Victor and Fifth Circuit precedent interpreting those cases, as evidenced by the jury query, and that the similar supplemental instruction had the same constitutional deficiencies as the first. This Court clarifies that finding by breaking down the jury charge sequentially and comparing the various instructions to a brief review of the controlling jurisprudence at the time of Quatrevingt's conviction.
To start, it is worth remembering that "[t]he Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof. Rather, taken as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury." Victor v. Nebraska 511 U.S. 1, 5, 114 S.Ct. 1239, 1243 (citations and internal quotations omitted);Morris v. Cain, 186 F.3d 581 (5th Cir. 1999); Earhart v. Johnson, 132 F.3d 1062 (5th Cir. 1998).
In, Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328 (1990), the issue before the Court was whether a jury instruction violated the standard of In re Winship, 397 U.S. 358, 90 S.Ct. 1068 (1970), by alleviating the State's responsibility to prove its case beyond a reasonable doubt. The instruction provided in pertinent part,
This doubt, 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. It must be such doubt as would give rise to a grave uncertainty raised in your mind. . . . It is an actual and substantial doubt. . . . What is required is not an absolute or mathematical certainty, but a moral certainty.
Id. at 40, 111 S.Ct. at 329 (emphasis in original). The Court found that the terms "substantial" and "grave" "suggest a higher degree of doubt than is required for acquittal under the reasonable-doubt standard." Id. at 41, 111 S.Ct. at 329. In a per curium decision, the Court held that "[w]hen [the terms grave uncertainty and actual substantial doubt] are then considered with 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."Id. at 41, 111 S.Ct. at 330 (emphasis added). It is clear that the Cage Court was most troubled by the trial court's failure to convey that the jurors were to evaluate guilt or innocence based upon the evidence presented at trial, and nothing else. The standard of review of reasonable doubt charges under Cage was soon clarified by Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475 (1991). The Estelle Court stated that the proper standard of review is whether there is a "reasonable likelihood" that the jury applied the challenged jury instruction in an unconstitutional manner. This is a somewhat higher standard than the "could have" test set forth in Cage.
In Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239 (1994) the Court examined jury instructions in two cases, one from California, the other from Nebraska. The California trial court defined reasonable doubt as "not a 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 they feel an abiding conviction, to a moral certainty, of the truth of the charge." The objection in the California case was to the use of the phrases "moral evidence" and "moral certainty". Id. at 10, 114 S.Ct. at 1245. The Court found that in the context of the instruction as a whole, "moral evidence" meant "empirical evidence offered to prove such matters — the proof adduced at trial." Id. at 13, 114 S.Ct. at 1246. Indeed, the Court pointed out that, throughout the instruction, the trial judge made several references to the facts of the case, not to ethical or moral issues. Id. at 13, 114 S.Ct. at 1247. The Court applied similar reasoning to the term "moral certainty" and held the instruction constitutional. In the Nebraska case, the trial judge included the terms "moral certainty", "strong probabilities", and "actual and substantial doubt." Although the term "substantial doubt" was found to be problematic, the Court found that in the context of the instruction as a whole, the term was not constitutionally defective. Said the Court: "Any ambiguity . . . is removed by reading the phrase in the context of the sentence in which it appears "[a] reasonable doubt is an actual and substantial doubt . . . as distinguished from a doubt arising from mere possibility . . ." Id. at 20, 114 S.Ct. at 1250. Such as distinction was not present in the Cage instruction. The Court also clarified that the problem with the Cage instruction was that the terms "grave uncertainty" and "substantial doubt" were used in close proximity to each other. And again, the phrase "moral certainty" was not defective because in context, it clearly referred to a factual or evidentiary moral certainty. The third phrase at issue, "strong probability", was also found proper because in the same sentence, the court clarified that the probabilities must be strong enough to prove the defendant's guilt beyond a reasonable doubt. Id. at 22, 114 S.Ct. at 1251.
In Morris v. Cain, 186 F.3d 581 (5th Cir. 1999), the state jury charge used the same terms that were met with disapproval inCage, and that were found in the instant case. The instruction used the phrases "grave uncertainty", "actual or substantial doubt" and "moral certainty." The Court of Appeals recognized that "[o]f course, Cage did not hold that the use of [the three troubling terms] in and of themselves mandated a finding of unconstitutionality . . ." Id. at 587 (citing Brown v. Cain, 104 F.3d 744, 755 (5th Cir. 1997)). The court distinguished the instructions held constitutional in Victor, stating that "[t]aken as a whole, the instructions in Victor were clear enough for the jury to understand the proper standard to apply. For instance, although the challenged instruction used the phrase "moral certainty", it did so while cautioning the jurors that they must posses an abiding conviction of the defendant's guilt . . . Id. at 587. Overall, the court did "not find a similar relationship between objectionable and approved terms . . ." Id. at 587. "The particularly egregious terms "grave uncertainty" and "moral certainty" are isolated from the clarifying language of the instructions which the Court in Victor found saving." Id. The panel reasoned that "it is dispositive, or at the very least significant, that the placement of any unconstitutional terms be such as to ameliorate their effect virtually instantaneously."Id. at 587.
Williams v. Cain, 229 F.3d 468 (5th Cir. 2000) is a recent case that interpreted an instruction nearly identical to the one at issue before this Court in light of Cage and Victor. Although, the Court of Appeals ultimately held that plaintiff's Cage claim was barred by the AEDPA, the court thoroughly analyzed the jury instruction in light of Cage and its progeny. The Williams court discussed "the constellation of factors that rendered the instruction in Cage constitutionally defective." Id. at 476. TheWilliams instruction contained the very terms at issue in this case, "grave uncertainty", "actual or substantial doubt", and "moral uncertainty", as well as the qualifier known as the "articulation requirement."
To start, the court stated that "we need not consider whether the articulation requirement might have corrupted the reasonable doubt instruction because the "Supreme Court has never expressed disfavor with such language." Id. at 476 (citing Muhleisen, 168 F.3d at 844 n. 2). Thus, under Williams, the articulation portion of the jury instruction cannot be considered defective. Indeed, under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the Fifth Circuit's disapproval of the "articulation requirement" is irrelevant to plaintiff's petition. Under 28 U.S.C. § 2254 (d)(1). "the district court may only grant habeas relief if the constitutional "new rule" relied upon by the petitioner was either clearly established by the Supreme Court at the time his conviction became final, or if the Supreme Court has held the new rule retroactive on habeas." Williams, 229 F.3d at 474; 28 U.S.C. § 2254 (d)(1). Neither now or at the time of plaintiff's conviction has the Supreme Court characterized the "articulation requirement" as an impediment to a proper reasonable doubt instruction. Therefore, the court's holding with respect to the articulation requirement in Humphrey v. Cain, 138 F.3d 552 (5th Cir.), cert. denied 525 U.S. 943 (1998), does not effect or impact petitioner's claim under the AEDPA.
As to the phrases "grave uncertainty" and "actual or substantial doubt", the Fifth Circuit recognized that the jury instruction was "materially indistinguishable for the instruction in Cage." Williams at 476. However, with respect to the "moral certainty" instruction, the court found that, taken in context, it was more similar to the Victor instruction than the Cage instruction. Id. The similarity to the Victor instruction was that "the "moral uncertainty" phrase was immediately preceded and followed by instructions that a reasonable doubt would spring from "the unsatisfactory character of the evidence." Id. at 477. Furthermore, in taking the instruction as a whole, the court recognized that the trial judge instructed the jury that it must acquit if the evidence does not establish guilt beyond a reasonable doubt. Id. at 477. Ultimately, the distinguishable "moral certainty phrase" saved the instruction as the court reasoned that "[w]ithout a defective moral certainty phrase, the other two phrases in and of themselves do not render the instruction constitutionally defective." Id. at 477 (citations omitted).
In this case, the initial jury charge as given is adequate under the Supreme Court case law. Taking the instruction as a whole, the "moral certainly" phrase contains the "abiding conviction" and evidentiary references that cured very similar charges in Victor, Morris, and Williams. On its own, the acceptable "moral certainty" reference saves the instruction as a whole. However, the use of the troubling terms "grave uncertainty" and "substantial basis" are also permissible as used on account of the close proximity of those phrases to comparative or clarifying references. See Victor, Morris, and Williams. Moreover, the initial jury charge in Quatrevingt's case is nearly identical to that deemed constitutional under Cage and Victor by the Court of Appeals in Williams. Thus, on its own, before any jury questions arose, the charge was constitutionally adequate.
However, when the jury returned with its question with respect to the legal issue fundamental to the validity of the trial and conviction, the dynamic changed. Keeping in mind that "[t]he constitutional question . . . is whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard". Victor v. Nebraska, 511 U.S. 1, 6, 114 S.Ct. 1239, 1243 (1994), the crucial issue becomes the effect of the instruction and re-instruction in light of the jury query requesting clarification on the "considerable doubt" standard.
"It is the duty of the trial judge to charge the jury on all essential questions of law . . ." Wright, Federal Practice Procedure: Criminal 3d § 485 at p. 375. "A trial judge enjoys wide latitude in deciding how to respond to a question from a jury." United States v. Mann, 161 F.3d 840, 864 (5th Cir. 1998) (citing United States v. Stevens, 38 F.3d 167, 170 (5th Cir. 1994)). In responding to a jury query, "[a] trial court generally may limit a supplemental charge to the specific instruction requested by the jury." United States v. Ehrlich, 902 F.2d 327, 330 (5th Cir. 1990) (citing United States v. Acosta, 763 F.2d 671, 677 (5th Cir.) cert. denied, 474 U.S. 863 (1985)). When reviewing the adequacy of supplemental jury instructions, the Court of Appeals looks to "whether the court's answer was reasonably responsive to the jury's question and whether the original and supplemental instructions as a whole allowed the jury to understand the issue presented to it." Id. Indeed "there is no error if the trial judge in supplemental instructions charges exactly as he was requested." United States v. Chatham, 568 F.2d 445, 451 n. 10 (5th Cir. 1978).
That being said, it is the duty of the trial judge to ensure that the jury has a clear understanding of the legal standards it is to apply. Moreover, the jury charge should not only be technically correct, but should be delivered so that it is clearly understood by the jury. Wright, Federal Practice Procedure: Criminal 3d § 485. In the seminal case with respect to the trial court's responsibility to alleviate jury confusion, Justice Frankfurter, writing for the Court, stated that
[d]ischarge of the jury's responsibility for drawing appropriate conclusions from the testimony depend[s] on discharge of the judge's responsibility to give the jury the required guidance by a lucid statement of the relevant legal criteria. When a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy.Bollenbach v. United States, 326 U.S. 607, 612-13, 66 S.Ct. 402, 405 (1946); See also United States v. Stevens, 38 F.3d 167 (5th Cir. 1994); United States v. Carter, 491 F.2d 625 (5th Cir. 1974). Such "concrete accuracy" is paramount in criminal trials where "the judge's last word is apt to be the decisive word." Id. at 612, 66 S.Ct. at 405. In reasoning especially pertinent to the petitioner's case, the Court recognized that when the judge's attempt to clarify jury confusion is "on a vital issue and misleading, the error is not cured by a prior unexceptional and unilluminating abstract charge." Id.
The case before this Court is distinguishable from the legions of Cage cases that have been decided in a somewhat narrow manner because, in Quatrevingt's case, the jury was clearly confused as to the standard of proof required to convict. As opposed to the prior decisions handed down by the circuit courts, in this case it is obvious that the jury misunderstood the instruction. Indeed, it was patent that the jury was confused as to the reasonable doubt standard. Such confusion was evidenced by the jury's specific request for a supplemental instruction "on the one part as to what constitutes considerable doubt." "In the circumstances presented, it was the judge's responsibility to clear up the jury's confusion." United States v. Flitcraft, 863 F.2d 342, 344 (5th Cir. 1988) (citing United States v. Anderton, 629 F.2d 1044, 1049 (5th Cir. 1980)). In deciding whether a supplemental instruction has cleared the haze, the court looks to "whether the court's answer was reasonably responsive to the jury's question and whether the original and supplemental instructions as a whole allowed the jury to understand the issue presented to it." United States v. Stevens, 38 F.3d 167, 170 (5th Cir. 1994) (citing United States v. Natale, 764 F.2d 1042, 1046 (5th Cir. 1985)). Because, when the court's supplemental charge does not adequately cure the jury's misperception of critical legal standards, the fairness of the conviction is put in doubt.See United States v. Rossomando, 144 F.3d 197 (2d Cir. 1998).
As stated above, the initial jury charge met the Cage andVictor standard. The instruction passed constitutional muster because of the context in which the potentially unconstitutional three phrase combination, the "constellation of factors", was used. The context revealed an emphasis on facts and evidence, as opposed to moral notions of right and wrong, and also compared and contrasted the phrases that suggested higher standards with others suggesting minimal standards. Under the existing jurisprudence, the instruction, without more, was proper. However, the standard of review looks to whether the jury understood the instruction as requiring something more than reasonable doubt to acquit. In this case, there is no doubt that "considerable" denotes a higher level of doubt than "reasonable." Thus, once the jury voiced its confusion, the first instruction became unconstitutionally defective, and a clear, responsive supplemental instruction was required to satisfy Cage and Victor.
"When the instruction uses a term of legal significance, its meaning must be explained, especially when there is a request for a clarifying instruction." United States v. Anderton, 629 F.2d 1044, 1049 (5th Cir. 1980). Instead of giving a straightforward response to the jury's question, such as "the standard is not considerable doubt, it is reasonable doubt", the judge simply condensed and rehashed the initial instruction. However, "[w]hen a jury indicates confusion about an important legal issue, it is not sufficient for the court to rely on more general statements in its prior charge." United States v. Nunez, 889 F.2d 1564, 1568 (6th Cir. 1989); See also United States v. Warren, 984 F.2d 325 (9th Cir. 1993). A simple recitation is insufficient because "[a] conviction ought not to rest on an equivocal direction to the jury on a basic issue." Nunez at 1568 (quoting Bollenbach v. United States, 326 U.S. 607, 613 (1946)). In the sequence of events in this case, merely reciting another version of the first charge in response to the jury's question can only be understood to be a tacit statement that "considerable doubt" is indeed the standard, and "this is what considerable doubt means." Unfortunately, the modified instruction did not satisfy Cage andVictor because by simply providing the same guidance as provided on the first instruction, the judge was in essence, giving the jury a "considerable doubt" standard, which can only have exacerbated the jury's confusion. The result, "was the failure to instruct the jurors as to the principles of law which they are to apply in deciding the factual issues." United States v. Anderton, 629 F.2d 1044, 1049 (5th Cir. 1980). When the jury asked the judge to re-charge on "considerable doubt", the judge was alerted to the jury's confusion. The first instruction was clearly misunderstood, and "[t]he jury should have been instructed in a way that there was no possibility that the conviction was based on an incorrect legal basis." United States v. Zimmerman, 943 F.2d 1204, 1214 (10th Cir. 1991).
The requirement that the government prove its case beyond a reasonable doubt is a cornerstone of our criminal justice system. Rather than clarifying the jury's misunderstanding regarding the standard of doubt, the trial judge impermissibly allowed the jury to believe that considerable doubt was the standard required to acquit. When it gave another version of the first charge, which became unconstitutional upon the jury's expression of confusion, the court used the same "constellation of factors", that was clearly misinterpreted by the jury. Accordingly,
IT IS ORDERED that Steven Quatrevingt's petition for writ of habeas corpus is GRANTED and that the State of Louisiana retry Quatrevingt within 180 days from entry of judgment.