Thomas v. Arn, 81-3242

• Decision Date: 08 April 1983
• Docket Number: No. 81-3242,81-3242
• Citation: 704 F.2d 865
• Parties: Maggie W. THOMAS, Petitioner-Appellant, v. Dorothy ARN, Superintendent, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 865

704 F.2d 865

Maggie W. THOMAS, Petitioner-Appellant, v. Dorothy ARN, Superintendent, Respondent-Appellee.

No. 81-3242.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 14, 1982.

Decided April 8, 1983.

Margery B. Koosed, South Euclid, Ohio, for petitioner-appellant.

David Stocker, Asst. Atty. Gen. of Ohio, Lianne L. Santellani, Columbus, Ohio, for respondent-appellee.

Before ENGEL and MERRITT, Circuit Judges, and BROWN, Senior District Judge. ^*

ENGEL, Circuit Judge.

Petitioner Maggie W. Thomas' appeal from the denial of her habeas corpus petition requires us to pass upon the constitutionality of Ohio's statutory definition of proof beyond a reasonable doubt, and also requires us to determine whether--at the time of the offense--absence of self-defense was an element of the Ohio crimes of felonious assault and aggravated assault, and whether self-defense negated any element of these crimes. While this latter issue has been considered by this court before, see Isaac v. Engle, 646 F.2d 1129 (6th Cir.1980) (en banc ), its resolution was precluded when the Supreme Court, on further appeal, vacated the judgment and directed dismissal of the petition on other grounds. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982).

The district judge's statement of facts, which we present below, essentially adopted petitioner's view of the events leading to her conviction:

[A]round midnight of the morning of February 2, 1977, the petitioner [Maggie W. Thomas] went to the home of a friend, Sandra Woodland, where she spent the night drinking, listening to records, and talking with Sandra, Sandra's boyfriend, and Sandra's brother Reginald Woodland. Around 7:00 in the morning, after Sandra and her boyfriend had gone to bed, Reginald called the petitioner into a bedroom, asked if she would loan him money, and then slapped her and attempted to choke her. They later returned to the living room, and Sandra came out and asked her brother to go to a store, a five-minute walk away, and buy her some cigarettes. The petitioner also asked for cigarettes, and Reginald told her not to leave. During his absence petitioner took a gun The petitioner was indicted and tried on the charge of violating Ohio's felonious assault statute, Ohio Rev.Code Sec. 2903.11. At trial, Thomas argued that she fired the shots in self-defense. The jury found her innocent of the felonious assault charge, but found her guilty of the lesser included offense of aggravated assault, Ohio Rev.Code Sec. 2903.12.

from her purse, loaded it, and placed it behind her on the chair where she was sitting. When Reginald returned, petitioner testified that some sharp words were exchanged between them, and that then Reginald started towards her. She pulled out the gun and shot twice at the floor, striking Reginald in the foot. ¹

Petitioner Thomas raises two grounds for habeas corpus relief. She first argues that Ohio's statutory definition of "proof beyond a reasonable doubt" is unconstitutional, and that jury instructions based on this statutory definition violate her right to due process under the Fourteenth Amendment. Second, Thomas argues that the trial judge's instructions, or lack of instructions, concerning the burden of proof as to self-defense denied her the fundamental fairness guaranteed by the Fourteenth Amendment's Due Process Clause.

I

In his charge to the jury, the Ohio trial judge defined "proof beyond a reasonable doubt" in the language specifically provided by Ohio Rev.Code Sec. 2901.05(D):

"Reasonable doubt" is present when the jurors, after they have carefully considered and compared all the evidence, cannot say they are firmly convinced of the truth of the charge. It is a doubt based on reason and common sense. Reasonable doubt is not mere possible doubt, because everything relating to human affairs or depending on moral evidence is open to some possible or imaginary doubt. "Proof beyond a reasonable doubt" is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of his own affairs.

(emphasis added) (App. 202). Thomas' counsel made a timely objection to this instruction at trial and objected to this instruction in the habeas proceedings below. On appeal, Thomas argues that use of the cited statutory definition of "proof beyond a reasonable doubt" establishes a lower threshold or standard of proof than that required by the Due Process Clause.

Although the Supreme Court in In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970), held that the Due Process Clause requires that criminal convictions be based on "proof beyond a reasonable doubt of every fact necessary to constitute the crime," the Court has never expressly defined this standard. Objections to the "willing to act" language found above have been raised in numerous jurisdictions, but while several courts have criticized certain portions of the instruction, it has never to our knowledge provided a basis for habeas relief.

In denying Thomas' petition, the district judge relied primarily on Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954). In Holland, the Supreme Court considered a charge which defined reasonable doubt as "the kind of doubt ... which you folks in the more serious and important affairs of your own lives might be willing to act upon." 348 U.S. at 140, 75 S.Ct. at 139. The Supreme Court stated that "the charge should have been in terms of the kind of doubt that would make a person hesitate to act ... rather than the kind on which he would be willing to act." Id. The The Holland opinion does not deal with the precise problem facing this court in that it considers "reasonable doubt" rather than "proof beyond a reasonable doubt." It is, however, sufficiently analogous to provide guidance, and is significant for its demonstration of the Court's determination to consider jury instructions "as a whole."

                Court held, however, that the construction "was not of the type that could mislead the jury into finding no reasonable doubt when in fact there was some."    Id.  "Taken as a whole," the Court decided that "the instructions correctly conveyed the concept of reasonable doubt to the jury."    Id. 2
                

The "willing to act" language found in the Ohio jury instruction above has been disapproved by numerous courts. In Scurry v. United States, 347 F.2d 468 (D.C.Cir.1965), Judge Skelly Wright considered a charge very similar to the Ohio instruction: "[i]n order to establish proof beyond a reasonable doubt, the evidence must be such that you would be willing to act upon it in the more important affairs of your own life." 347 F.2d at 470. Citing Holland, the court stated that this charge was "not in accord with the law," and then discussed the dangers of the "willing to act" charge:

Being convinced beyond a reasonable doubt cannot be equated with being "willing to act ... in the more weighty and important matters in your own affairs." A prudent person called upon to act in an important business or family matter would certainly gravely weigh the often neatly balanced considerations and risks tending in both directions. But, in making and acting on a judgment after so doing, such a person would not necessarily be convinced beyond a reasonable doubt that he had made the right judgment. Human experience, unfortunately, is to the contrary.

Id. at 470. Judge Wright stated further that

there is a substantial difference between a juror's verdict of guilt beyond a reasonable doubt and a person making a judgment in a matter of personal importance to him. To equate the two in the juror's mind is to deny the defendant the benefit of a reasonable doubt.

Id.

Notwithstanding its disapproval of the "proof beyond a reasonable doubt" charge, the D.C. Circuit ruled that the concept of reasonable doubt had been adequately conveyed to the jury by the trial court's proper charge as to "reasonable doubt" ("such a doubt as in the graver, more important transactions of life would cause an ordinary and prudent person to hesitate and pause"). Id. at 469. Courts which have expressed disapproval of "willing to act" language have invariably ruled that the trial court's charge, taken as a whole, adequately conveyed the concept of reasonable doubt to the jury. United States v. Baptiste, 608 F.2d 666 (5th Cir.1979), cert. denied, 450 U.S. 1000, 101 S.Ct. 1707, 68 L.Ed.2d 202 (1981); United States v. Richardson, 504 F.2d 357 (5th Cir.1974), cert. denied, 420 U.S. 978, 95 S.Ct. 1406, 43 L.Ed.2d 659 (1975); United States v. Restaino, 369 F.2d 544 (3d Cir.1966); Scurry v. United States, 347 F.2d 468 (D.C.Cir.1965), cert. denied, 389 U.S. 883, 88 S.Ct. 139, 19 L.Ed.2d 179 (1967).

The above cases involved appellate review of federal district court decisions. Because defendants had not raised their objections below, the appellate courts reviewed the cases according to the plain error standard. Fed.R.Crim.Pro. 52(b). The test for habeas relief from a state conviction is even more difficult to meet than that used in the plain error context:

The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal. The question in such a collateral proceeding is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process," Cupp v. Naughten Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977) (footnote omitted).

                414 U.S.   at 147, [94 S.Ct. 396, 38 L.Ed.2d 368], not merely whether "the instruction is undesirable, erroneous, or even 'universally condemned,' " id., at 146 [94 S.Ct., at 400]
                

We do not find that the instructions here so infected the proceedings. Although we may disapprove of the "willing to act" language, ...