State v. Portillo

• Decision Date: 29 June 1995
• Docket Number: Nos. CR-94-0155-P,CR-94-0326-PR,s. CR-94-0155-P
• Parties: STATE of Arizona, Appellee, v. Martin Burciaga PORTILLO, Appellant. STATE of Arizona, Appellee, v. Mario Marquez TERCERO, Appellant.
• Court: Arizona Supreme Court

Page 970

898 P.2d 970

182 Ariz. 592

STATE of Arizona, Appellee, v. Martin Burciaga PORTILLO, Appellant.

STATE of Arizona, Appellee, v. Mario Marquez TERCERO, Appellant.

Nos. CR-94-0155-PR, CR-94-0326-PR.

Supreme Court of Arizona, In Banc.

June 29, 1995.

[182 Ariz. 593] Grant Woods, Atty. Gen., by Paul J. McMurdie, Colleen L. French, Galen H. Wilkes, Phoenix, for State of Ariz.

John M. Antieu, Phoenix, for Martin Burciaga Portillo.

Dean W. Trebesch, Maricopa County Public Defender by Paul J. Prato, Phoenix, for Mario Marquez Tercero.

Lewis and Roca by Edward F. Novak, Cynthia A. Coates, Phoenix, for amici curiae, Ariz. State Bar Bd. of Governors, Ariz. Attys. for Crim. Justice.

Stephen G. Udall, Apache County Atty., St. Johns, Alan K. Polley, Cochise County Atty., Bisbee, Jack M. Williams, Graham County Atty., Safford, Dennis L. Lusk, Greenlee County Atty., Clifton, Richard M. Romley, Maricopa County Atty., Phoenix, Melvin R. Bowers, Jr., Navajo County Atty., Holbrook, Gilberto V. Figueroa, Pinal County Atty., Florence, M. Jan Smith-Florez, Santa Cruz County Atty., Nogales, Charles R. Hastings, Yavapai County Atty., Prescott, David S. Ellsworth, Yuma County Atty., Yuma, Kerry G. Wangberg, Phoenix City Prosecutor, Phoenix, Lowell D. Hamilton, Mesa City Prosecutor, Mesa, Tobin Sidles, Oro Valley Town Atty., Oro Valley, Bruce W. Bowers, Phoenix, Ariz. Pros. Attys. Advisory Council Amici Curiae.

OPINION

FELDMAN, Chief Justice.

Defendants Martin Portillo and Mario Tercero were convicted of various crimes in separate, unrelated trials. Over defense objection in both cases, the trial court gave an instruction defining the term "reasonable doubt." ¹ Concluding that the instruction was not improper, the court of appeals affirmed Tercero's conviction by memorandum decision. State v. Tercero, No. 1 CA-CR 93-0348, mem. dec. at 8 (Ariz.Ct.App. July 26, 1994). In Portillo's case, the court of appeals similarly found no error in giving the instruction, although it reversed his conviction on other grounds. State v. Portillo, 179 Ariz. 116, 121, 876 P.2d 1151, 1156 (App.1994). That court, however, went on to say that because "the attempt to define reasonable doubt adds nothing useful, we recommend that trial courts not give this instruction in the future." Id. We granted a petition for review filed by Tercero and the state's petition for review in Portillo, consolidated the cases for oral argument and decision, ² and permitted supplemental and amicus briefs on the following issues:

1. Should trial judges be required to instruct the jury on the meaning of reasonable doubt?

2. If trial judges are so required, what instruction or definition would be appropriate?

We have jurisdiction under Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24.

DISCUSSION

A. Constitutional Standards

It is well established that the Due Process Clause protects criminal defendants against conviction "except upon proof beyond a reasonable doubt" of every element of the crime charged. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). ³ The Federal Constitution, however, apparently neither requires nor prohibits trial courts from defining the term "reasonable doubt." Victor v. Nebraska, --- U.S. ----, ----, 114 S.Ct. 1239, 1243, 127 L.Ed.2d 583 (1994). The sole requirement is that the trial court accurately instruct the jury on the "concept" that the state has the burden to prove the defendant guilty beyond a reasonable doubt. Id. The Supreme Court has deferentially reviewed the substance of reasonable doubt definitions and will find error only if there is a reasonable likelihood that the jury in fact understood the instruction to permit conviction based on proof below the reasonable doubt standard. Id.; see also Cage v. Louisiana, 498 U.S. 39, 41, 111 S.Ct. 328, 329, 112 L.Ed.2d 339 (1990) (disapproving definition that suggested a higher degree of doubt than is required for acquittal). If an instruction improperly reduces the state's standard of proof, such error is structural and cannot be harmless. Sullivan v. Louisiana, --- U.S. ----, ---- - ----, 113 S.Ct. 2078, 2082-83, 124 L.Ed.2d 182 (1993).

Within these broad constitutional parameters, therefore, state courts are free to decide whether to define reasonable doubt and, if so, the content of such a definition. We note initially that the RAJI 5 reasonable doubt instruction given in these cases adequately conveyed the state's burden of proof and thus fully complied with due process requirements. The Supreme Court, in fact, has explicitly held that essentially identical definitions do not offend federal concepts of due process. Victor, 511 U.S. at ----, ----, 114 S.Ct. at 1249, 1251. As a matter of state law, we turn then to the larger questions whether and how Arizona trial courts should define reasonable doubt in the future. See Pool v. Superior Court, 139 Ariz. 98, 108, 677 P.2d 261, 271 (1984).

B. To Define, or Not to Define ...

Defendants and some of the amici argue that the meaning of reasonable doubt is self-evident and that efforts to define it lead only to confusion or even dilution of the state's burden of proof. The state disagrees, claiming that jurors often do not understand the bare words "reasonable doubt," and urges that we exercise our supervisory authority under Ariz. Const. art. 6, §§ 3 and 5 to require trial courts to give the RAJI 5 definition in all cases. Both sides cite and our own research reveals a litany of court decisions, empirical studies, and scholarly commentaries supporting their disparate claims. ⁴

This court has long recognized the significance of the reasonable doubt standard of proof, repeatedly emphasizing that trial judges must give a reasonable doubt instruction, both orally and in writing, after the close of evidence. State v. Johnson, 173 Ariz. 274, 275-76, 842 P.2d 1287, 1288-89 (1992) (reversing conviction because trial court did not orally reinstruct jury on reasonable doubt after closing arguments); State v. Jackson, 144 Ariz. 53, 54, 695 P.2d 742, 743 (1985); State v. Kinkade, 140 Ariz. 91, 94-95, 680 P.2d 801, 804-05 (1984). We have never required, however, that such instructions define reasonable doubt or contain any particular language. State v. Bracy, 145 Ariz. 520, 535, 703 P.2d 464, 479 (1985). Indeed, our territorial predecessor long ago cautioned that "explanations of reasonable doubt confuse more than they make clear." Territory v. Barth, 2 Ariz. 319, 326, 15 P. 673, 676 (1887) (Porter, J., concurring). Nevertheless, we conclude now that the better practice is for trial courts to always give a uniform instruction defining reasonable doubt.

Proof beyond a reasonable doubt has "traditionally been regarded as the decisive difference between criminal culpability and civil liability." Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979). It follows naturally, we think, that the meaning of such a fundamental concept should not be left either to chance or the random, ad hoc interpretation of different trial courts and counsel. Studies show that jurors in fact often misunderstand instructions in general and the meaning of reasonable doubt in particular. See, e.g., Walter W. Steele & Elizabeth G. Thornburg, Jury Instructions: A Persistent Failure to Communicate, 67 N.C.L.REV. 77, 88-94 (1988); David U. Strawn & Raymond W. Buchanan, Jury Confusion: A Threat to Justice, 59 JUDICATURE 478, 480-82 (1976). Significantly also, regularly defining reasonable doubt reduces the number of mistrials, saving scarce judicial and public resources. Norbert L. Kerr & Robert S. Atkin, Guilt Beyond a Reasonable Doubt: Effects of Concept Definition and Assigned Decision Rule on the Judgments of Mock Jurors, 34 J. PERSONALITY & SOC. PSYCHOL. 282, 285-286 (1976) (finding that fewer hung juries result when reasonable doubt is defined). Thus, in line with what we believe is the majority and sounder view, we conclude that the "issue is simply too important to mention and not to explain." John S. Siffert, Instructing on the Burden of Reasonable Doubt, 8 U. BRIDGEPORT L.REV. 365, 367 (1987).

Those who would not define reasonable doubt, like the court of appeals in Portillo, argue that attempts to do so may only further confuse jurors or even lower the state's standard of proof. See Portillo, 179 Ariz. at 121, 876 P.2d at 1156. Those assertions, however, appear to rely too heavily on "undocumented observations that attempts to define 'beyond a reasonable doubt' do not usually ... mak[e] it clearer." Siffert, supra, at 366. Opponents also assume, erroneously in our view, that no definition can accurately clarify the meaning of reasonable doubt. See Portillo, 179 Ariz. at 121, 876 P.2d at 1156. Concededly, courts and commentators have struggled to agree on a single clarifying definition. That fact, however, cuts in favor of defining the term, not against it. If judges and legal scholars struggle to define reasonable doubt, it is unrealistic to expect a lay jury to properly grasp and apply the stark words. As one distinguished jurist and advocate of defining reasonable doubt recently said, "it [is] rather unsettling [to think] that we are using a formulation that we believe will become less clear the more we explain it." Jon O. Newman, Beyond "Reasonable Doubt", 68 N.Y.U.L.REV. 979, 984 (1993). Like many others, we are confident that reasonable doubt can be defined in simple terms that will neither confuse nor mislead the jury. E.g., Victor, 511 U.S. at ----, 114 S.Ct. at 1254 (Blackmun and Souter, JJ., concurring).

Much of the confusion about defining reasonable doubt likely stems from the multiple and varying definitions courts have developed over the years, some of which justify the criticism that definitions can distort its meaning. E.g., Cage, 498 U.S. at 40, 111 S.Ct. at 329 (doubt must be founded "upon a real tangible substantial basis" and such "as would give rise to a grave uncertainty"). See...