Bumpus v. Gunter

• Decision Date: 03 December 1980
• Docket Number: No. 80-1114,80-1114
• Citation: 635 F.2d 907
• Parties: Robert BUMPUS, Petitioner-Appellant, v. Frank GUNTER et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 907

635 F.2d 907

Robert BUMPUS, Petitioner-Appellant, v. Frank GUNTER et al., Respondents-Appellees.

No. 80-1114.

United States Court of Appeals, First Circuit.

Argued May 8, 1980.

Decided Dec. 3, 1980.

Norman S. Zalkind, Boston, Mass., by appointment of the Court, and Stephen Saltonstall, with whom Zalkind & Zalkind, Boston, Mass., was on brief for petitioner-appellant.

Barbara A. H. Smith, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., and Stephen R. Delinsky, Asst. Atty. Gen., Chief, Criminal Bureau, Boston, Mass., were on brief, for respondents-appellees.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and DAVIS, ^* Judge, U. S. Court of Claims.

LEVIN H. CAMPBELL, Circuit Judge.

Robert Bumpus appeals from the dismissal by the district court of his petition for habeas corpus. Bumpus attacks his conviction in the Massachusetts Superior Court on various grounds, the most serious of which, in our view, concerns alleged constitutional inadequacies in the trial court's instructions to the jury on reasonable doubt. The district court analyzed carefully the disputed portions of the jury charge and held that the charge did, in fact, suffer from deficiencies of a constitutional magnitude. After a subsequent hearing, however, the court determined that these errors were harmless beyond a reasonable doubt; it therefore denied the writ.

I.

We disagree with the district court's mode of analysis, although not with its end result. In our view, the district court applied a less rigorous standard than was appropriate in deciding whether defects in the charge amounted to "constitutional error," and then rescued the charge by applying harmless error review. This approach resulted in dignifying as "constitutional error" flaws in the court's charge which were not of that level of seriousness, and then, in effect, downplaying the concept of constitutional error by holding that it was harmless. ¹

In cases like this, where the reasonable doubt instructions given in a state criminal trial are alleged to have been constitutionally infirm, the question of whether there was constitutional error will normally be dispositive. This is so because the finding of "constitutional" error itself imports the existence of flaws so serious as to have resulted in a fundamentally unfair trial. As the Supreme Court said in Cupp v. Naughten, 414 U.S. 141, 145-46, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973), however, even instructions that are "undesirable, erroneous, or ... 'universally condemned,' " are not necessarily constitutionally infirm; the test is whether the "ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Here petitioner claims the effect of the charge was to vitiate the requirement that guilt be proven beyond a reasonable doubt, in derogation of the standard held to be constitutionally mandated in all state and federal criminal trials. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). A supported finding to this effect would go a long way to strip the conviction of legitimacy. We need not, perhaps, go as far as to say that error of even this magnitude could never be salvaged. See Dunn v. Perrin, 570 F.2d 21, 25 (1st Cir. 1978) (leaving to "another day" decision whether constitutionally defective charge on reasonable doubt can ever be harmless). But if such a case can be conceived, it would have to contain unique circumstances not present here.

We thus proceed to ask whether the challenged aspects of the charge so infected the entire charge and trial as to cause the jury to evaluate petitioner's guilt or innocence under a standard less than "beyond a reasonable doubt." We believe the answer to be "No." While there were statements in the charge that were better left unsaid, neither singly nor collectively were these flaws so serious as to deny petitioner the fundamental right that his guilt be evaluated under the proper standard. The state court delivered correct basic instructions on reasonable doubt and burden of proof; its lapses in the course of lengthy explanations and illustrations designed to improve the jury's understanding of these concepts were of less than fundamental import.

We turn now to the challenged aspects of the instructions.

1. Petitioner first criticizes the portion of the court's charge that a reasonable doubt

"has to be a doubt in your mind that you can stand up in the jury room and argue with principle and integrity to your fellow jurors, and if you have that kind of a doubt on any area in this case, the defendant is entitled to be acquitted."

In 1972, two years after the subject trial, we criticized language of a similar cast in United States v. MacDonald, 455 F.2d 1259, 1262-63 (1st Cir.) ("proof ... for which you can give a reason" or "for which you can state an 'intelligent reason' "). We did not, however, reverse, although in MacDonald we were exercising direct supervisory review over a federal court, and not the more limited habeas corpus review. Six years later, in Dunn v. Perrin, 570 F.2d 21, 23 (1st Cir. 1978), a habeas case, we criticized as "improper" the formulation, "doubt as for the existence of which a reasonable person can give or suggest a good and sufficient reason," but intimated on the basis of MacDonald that, standing alone, this language was not cause for reversal. Most recently, in Tsoumas v. State of New Hampshire, 611 F.2d 412, 413 (1st Cir. 1980), we upheld a definition of reasonable doubt as a doubt

"which is reasonable, rather than unreasonable; it must be a doubt based on reason. It is not a frivolous or fanciful doubt, nor is it one that can easily be explained away ... (I)t is such a doubt, that is reasonable doubt, based upon reason as remains after consideration of all the evidence that the State has offered against it."

In light of these precedents, we cannot say that the challenged language was so improper as to amount to constitutional error. The instruction might indeed seem less objectionable than that in Dunn v. Perrin, where the judge required a "good and sufficient reason"; here the judge spoke only of the ability to argue "with principle and integrity." The worst feature is the possible suggestion that a timid juror might have to stand up in the jury room and argue in order to justify a vote to acquit. Cf. Owens v. Commonwealth, 186 Va. 689, 706, 43 S.E.2d 895 (1947). But the language was, as the Massachusetts Supreme Judicial Court observed "figurative." Commonwealth v. Bumpus, 362 Mass. 682, 290 N.E.2d 167. Unless this court is to end up imposing pattern jury instructions, we must tolerate a reasonable range of expression, some or even much of which may not suit our fancy. In Cupp v. Naughten, the Court spoke approvingly of the "well-recognized and long-established function of the trial judge to assist the jury by such instructions" (i. e., instructions on burden of proof and the like) and warned against reliance on "abstract and conjectural emanations from Winship." 414 U.S. at 149, 90 S.Ct. at 401. While we do not endorse, and indeed, caution against, the challenged language, we do not find its use to have amounted to error of constitutional dimension.

2. Petitioner argues that instead of requiring the government to prove guilt, the court called upon the accused to establish doubt in the jury's mind. Cf. Dunn v. Perrin, 570 F.2d at 24. This was done, it is asserted, by constant assertions of what a reasonable doubt was not. Petitioner assembles from the charge a list of fourteen statements beginning with "proof beyond a reasonable doubt is not 'proof beyond all doubt,' " and ending with "A moral certainty is 'less than a mathematical certainty and less than a scientific certainty.' " Cumulatively these are said to have vitiated the government's burden.

It is to be remembered, however, that these remarks have been separately culled from a very lengthy charge. They and the emanations from them, must be assessed along with the rest of the charge which includes extensive earlier emphasis on the presumption of innocence, and numerous reminders that the jury had a duty to acquit upon the "failure of the Commonwealth to establish beyond a reasonable doubt any essential element necessary to sustain a conviction of the crime." While the judge placed what we regard as an uncomfortable degree of emphasis on the limits of the government's burden, his fulsome treatment was in keeping with the lengthy treatment accorded other subjects, and the charge in its entirety was not so unbalanced as to undercut the reasonable doubt standard, nor was it basically inaccurate. The jury was repeatedly advised as to the correct burden of proof, was admonished to render an impartial verdict, and was informed throughout of the solemnity of its responsibility.

3. Petitioner takes issue with the following portion of the charge which came after the statement that proof beyond a reasonable doubt does not mean proof beyond all doubt, and that it is "rarely, if ever, possible to find a case so clear that there cannot be a possibility of innocence." The challenged language is as follows:

"If an unreasonable doubt or a mere possibility of innocence were sufficient to prevent a conviction, practically every criminal would be set free to prey upon the community. Such a rule would be wholly impractical and would break down the forces of law and order and make the lawless supreme."

We do not agree with petitioner that this language is, in effect, an invitation to disregard the reasonable doubt standard. Rather-quoting it would appear from a Massachusetts judicial decision-the judge was purporting to explain why the standard of proof required only what it did. The emotional overtones of such rhetoric may be criticized as subtly encouraging a jury to accept less proof than it should, so that "the lawless" will not be "supreme." Still, the instruction did not advocate...