Humphrey v. Cain, 95-31101

• Decision Date: 03 April 1998
• Docket Number: No. 95-31101,95-31101
• Citation: 138 F.3d 552
• Parties: Elmo HUMPHREY, III, Petitioner-Appellant, v. Burl CAIN, Warden, Louisiana State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 552

138 F.3d 552

Elmo HUMPHREY, III, Petitioner-Appellant, v. Burl CAIN, Warden, Louisiana State Penitentiary, Respondent-Appellee.

No. 95-31101.

United States Court of Appeals, Fifth Circuit.

April 3, 1998.

David John Schenck, Hughes & Luce, Dallas, TX, for Petitioner-Appellant.

Alison Wallis, Gretna, LA, for Respondent-Appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before POLITZ, Chief Judge, and KING, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

We took this case en banc to resolve conflicting panel decisions whether Cage-Victor error fits within the second Teague exception, making it available in federal habeas to a state prisoner whose criminal conviction was final when those cases were decided. For the reasons stated in the panel opinion, we today give an affirmative answer to that question. We overrule all prior decisions of this court holding to the contrary. For the reasons stated in the panel opinion, ¹ we hold that the jury instructions defining reasonable doubt lowered the State's burden of proof below the constitutional minimum. We reverse the district court's judgment denying the writ of habeas corpus and remand the case to the district court with instructions to order the State of Louisiana to either try Elmo Humphrey, III, again or release him from custody within 90 days of the date of the district court's order on remand.

REVERSED and REMANDED with instructions.

EDITH H. JONES, Circuit Judge, with whom JOLLY, DUHE and PARKER, Circuit Judges, join in dissenting:

My colleagues have constitutionally condemned what is surely one of the longest reasonable doubt instructions in recent reported history based on four catch phrases, even though three of those phrases have, in proper context, survived Supreme Court scrutiny. What provoked the majority to ignore the rich forest of the whole instruction for the sake of a few sickly trees is not clear. But their analytical method ignores that we must scrutinize the instructions taken as a whole, not in isolated tidbits. And their emphasis on the court's statement that reasonable doubt "is a serious doubt for which you could give good reason" is misguided. I do not believe Humphrey's jury convicted him of repeated sexual molestation of a then-nine-year old victim on a constitutionally infirm standard. I respectfully dissent. ¹

On habeas review, "our inquiry is whether the instruction is constitutional, not whether it is exemplary." Vargas v. Keane, 86 F.3d 1273, 1280 (2d Cir.1996). The test of constitutionality is whether taken as a whole, the instruction correctly conveyed the law of reasonable doubt to the jury. See Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 1243, 127 L.Ed.2d 583 (1994). Further, a court must determine not whether the instruction could have been applied unconstitutionally, but "whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard." Id. at 6, 114 S.Ct. at 1243. As the Supreme Court itself pointed out, it has found in only one case that a reasonable doubt definition actually violated the due process clause. Id. at 5, 114 S.Ct. at 1243. (citing Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990)). We do not minimize the importance of furnishing a correct jury instruction on reasonable doubt, but neither will we trivialize the importance of carefully reviewing jury instructions as a whole before declaring that the jury was reasonably likely to have interpreted them unconstitutionally.

Two general vices may render a reasonable doubt instruction unconstitutional: that it urges the jury to convict on a standard of proof lower than "beyond a reasonable doubt," or that it permits the jury to go outside the record evidence to convict. See id. at 5-6, 22, 114 S.Ct. at 1243, 1251. Mindful of these pitfalls, we may review the Humphrey reasonable doubt instruction, with each sentence numbered for the convenience of this discussion. The Humphrey jury was instructed:

(1) The burden is upon the State to prove the defendant's guilt beyond a reasonable doubt. (2) In considering the evidence, you must give the defendant the benefit of every reasonable doubt arising out of the evidence or out of the lack of evidence. (3) If you are not convinced of the guilt of the defendant beyond a reasonable doubt, you must find him not guilty.

(4) If you entertain any reasonable doubt as to any fact or element necessary to constitute the defendant's guilt, it is your sworn duty to give him the benefit of that doubt and return a verdict of acquittal. (5) Even where the evidence demonstrates a probability of guilt, yet if it does not establish it beyond a reasonable doubt, you must acquit the accused. (6) This doubt must be a reasonable one, that is, one found[ed] upon a real, tangible, substantial basis, and not upon mere caprice, fancy or conjecture. (7) It must be such a doubt [as] would give rise to a grave uncertainty, raised in your minds by reason of the unsatisfactory character of the evidence; one that would make you feel that you had not an abiding conviction to a moral certain[ty] of the defendant's guilt. (8) If, after giving a fair and impartial consideration to all of the facts in the case[,] you find the evidence unsatisfactory upon any single point indispensably necessary to constitute the defendant's guilt, this would give rise to such a reasonable doubt as would justify you in rendering a verdict of not guilty.

(9) The prosecution must establish guilt by legal and sufficient evidence beyond a reasonable doubt, but the rule does not go further and require a preponderance of testimony. (10) It is incumbent upon the State to prove the offense charged, or legally included in the indictment, to your satisfaction and beyond a reasonable doubt. (11) A reasonable doubt is not a mere possible doubt. (12) It should be an actual or substantial doubt. (13) It is such a doubt as a reasonable man would seriously entertain. (14) It is a serious doubt for which you could give good reason.

The first six sentences pose no constitutional problems. They properly articulate the reasonable doubt standard, and they provide context for the rest of the instruction. Sentences (8)-(10) provide further context and background for every challenged sentence in the instruction. They make clear that the burden of proof rests with the state for each element of the offense charged and that a reasonable doubt must be based upon the evidence. Along with sentences (1)-(6), they mitigate any potential error caused by the challenged language.

Sentence (7) contains the first phrases to which the appellant objects: "grave uncertainty" and "moral certainty." The Supreme Court has held that use of the term "grave uncertainty," while not condoned, presents no constitutional infirmity if it relates to the existence rather than the magnitude of the evidence required. See id. at 20, 114 S.Ct. at 1250. Sentence (7), especially when taken in the context of the preceding two sentences, is rooted in making a comparison between doubts based on the existence (or nonexistence) of evidence versus doubts based on conjecture or fancy. In addition, the Court has held that even if the use of "grave uncertainty" touches upon the magnitude of the evidence, this error can be corrected if the instruction contains alternative, mitigating definitions of reasonable doubt. See id. In this case, sentences (2)-(5) and (8)-(10) serve to make clear that the defendant is to be given the benefit of every reasonable doubt arising from the evidence. Sentence (8) unequivocally requires a not-guilty verdict based upon a reasonable doubt if the evidence is "unsatisfactory upon any single point indispensably necessary" to convict. This sentence makes plain, as the Cage instruction did not, that reasonable doubt arises from any material deficiency in proof by the state.

The Court has also held that use of the term "moral certainty" is not constitutionally improper as long the rest of the instruction gives context to its meaning. See id. at 14-16, 21-22, 114 S.Ct. at 1247-48, 1250-51. The Humphrey instruction as a whole confirms that "moral certainty" is not a vacuous term, but relates to the evidence in the case. As in Victor, other sentences admonished the jury not to be swayed by passion or prejudice, to rule solely on the evidence, and not to indulge in speculation or conjecture. See id. at 16, 114 S.Ct. at 1248. The jury was also required to have an "abiding conviction" of guilt to a moral certainty. In Victor, the Court viewed this phrase as confirming a "subjective state of near certitude" of the defendant's guilt. Id. at 15, 114 S.Ct. at 1247 (internal citation omitted). Thus, any possible misunderstanding of "moral certainty" was fully offset by its context. It is highly unlikely that the jury either misunderstood the burden of proof or strayed beyond the record because of this phrase.

Sentence (12) contains the third phrase condemned by the majority, "actual or substantial doubt." As with "grave uncertainty," the use of the phrase "actual or substantial doubt" is, in the context of the full instruction, tied to the existence rather than the magnitude of the evidence. This is particularly evident from the earlier reference to a "substantial basis" for reasonable doubt in sentence (6), which is juxtaposed to a doubt founded in "caprice, fancy or conjecture." The Supreme Court expressly held in Victor that any ambiguity about a "substantial doubt" was cured by its being distinguished from a mere possibility, caprice, or conjecture. See id. at 20, 114 S.Ct. at 1250.

If these three phrases were the only ones involved in this case, the instruction would be upheld under Victor. It...