Butler v. US

• Decision Date: 15 August 1994
• Docket Number: No. 93-CF-107.,93-CF-107.
• Citation: 646 A.2d 331
• Parties: Charles BUTLER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

646 A.2d 331

Charles BUTLER, Appellant, v. UNITED STATES, Appellee.

No. 93-CF-107.

District of Columbia Court of Appeals.

Argued March 8, 1994.

Decided August 15, 1994.

Kenneth Rosenau, Washington, DC, for appellant.

Steven D. Mellin, with whom Eric H. Holder, Jr., U.S. Atty., John R. Fisher, Thomas C. Black, and Rachel Adelman-Pierson, Asst. U.S. Attys., Washington, DC, were on the brief, for appellee.

Before FERREN, STEADMAN and FARRELL, Associate Judges.

FERREN, Associate Judge:

A jury convicted appellant of distributing cocaine. See D.C.Code § 33-541(a)(1) (1993). Appellant challenges his conviction primarily on the ground that the trial court's deliberate modifications of the standard "reasonable doubt" instruction—including omission of one of the principal definitional sentences— amounted to constitutional error requiring reversal. We conclude that the court's revisions of the standard reasonable doubt instruction were improper but that the resulting instruction was not constitutionally deficient. We therefore affirm.

I.

The government's evidence established that on June 17, 1991, Detective Mary Lanauze and Officer Stephen Allen, while working undercover, purchased a quantity of drugs from appellant and appellant's codefendant, Danny Duncan, on the corner of First and Florida Avenue, N.W. Detective Lanauze testified that, at approximately 11:50 p.m., she and Officer Allen drove to the vicinity of First and Florida Avenue carrying an unspecified amount of prerecorded funds and a portable police radio. The officers got out of their car, walked across the street, and approached appellant, who was standing in front of a liquor store. The corner was well lighted because of the many businesses and the playground nearby. Detective Lanauze asked appellant whether he had "any twenties," referring to a quantity of cocaine that costs twenty dollars. Appellant responded "Yeah," and codefendant Duncan, who was standing a few feet away, quickly approached appellant and the officers. Appellant tilted his head to the right for the officers to follow him around the corner onto Florida Avenue. Appellant then told Duncan, "Go ahead, man. Serve her up," and Duncan pulled a plastic zip-lock bag out of his pocket and handed it to Detective Lanauze. The detective took the bag, which contained a white rock-like substance, and handed the money to Duncan.

After the transaction, Detective Lanauze and Officer Allen walked across the street to a park. They sat on the park wall and radioed a lookout to the police arrest team, describing appellant, Duncan, and a third individual later identified as DeCarlos Banks, a juvenile who had taken the money from Duncan after the officers walked away. As Detective Lanauze radioed the lookout, she watched the arresting officers drive to the corner and told them over the radio to stop their car when they were directly in front of the suspects. Detective Lanauze and Officer Allen watched the police get out of their car and detain the suspects. Within two minutes, in drive-by identifications, Lanauze and Allen identified appellant, Duncan, and Banks as the men who had sold them the drugs, and the police arrested the suspects. The white rock-like substance, which was in the bag the officers had bought from appellant and Duncan, was later found to be eighty percent strength cocaine.

Officer Allen's testimony was virtually identical to Detective Lanauze's testimony. In addition, two of the officers who arrested appellant, Duncan, and Banks testified that they had responded to the lookout, detained the suspects, and arrested them after the drive-by identifications. Finally, a narcotics detective testified as an expert on behalf of the government regarding the various roles played by each participant in a drug transaction.

The jury convicted appellant and codefendant Duncan of distributing cocaine. See D.C.Code § 33-541(a)(1).

II.

Appellant contends that the trial court, over appellant's objection, impermissibly deviated from the "reasonable doubt" instruction—Instruction No. 2.09—of the Criminal Jury Instructions for the District of Columbia (3d ed. 1978) (hereafter "Redbook"), and that the resulting instruction was constitutionally deficient requiring reversal. See United States v. Colon-Pagan, 1 F.3d 80, 82 (1st Cir.1993) ("Where a trial court has seriously misdescribed the government's burden of proof . . . `there has been no jury verdict within the meaning of the Sixth Amendment.'") (quoting Sullivan v. Louisiana, ___ U.S. ___, ___, 113 S.Ct. 2078, 2082, 124 L.Ed.2d 182 (1993)). We agree that the trial court should not have made one of the challenged instructional deviations, but we cannot agree reversal is required. Although, in general, we do not condone modifications of the standard reasonable doubt instruction contained in the Redbook, we must conclude that the trial court's instruction in this case did not deprive appellant of his Sixth Amendment right to a trial by jury.

A.

"The government must prove beyond a reasonable doubt every element of a charged offense." Victor v. Nebraska, ___ U.S. ___, ___, 114 S.Ct. 1239, 1242, 127 L.Ed.2d 583 (1994); see also In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

The beyond a reasonable doubt standard is a requirement of due process, but the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course. Indeed, so long as the court instructs the jury on the necessity that the defendant's guilt be proven beyond a reasonable doubt, the 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 convey the concept of reasonable doubt to the jury."

Victor, ___ U.S. at ___, 114 S.Ct. at 1243 (citations omitted) (quoting Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 138, 99 L.Ed. 150 (1954)).¹ Because of its constitutional basis, therefore, the reasonable doubt instruction is probably the most important instruction the jury receives in a criminal case. See Dunn v. Perrin, 570 F.2d 21, 25 (1st Cir.) (reasonable doubt instruction is "most important aspect of closing instruction to the jury in a criminal trial"), cert. denied, 437 U.S. 910, 98 S.Ct. 3102, 57 L.Ed.2d 1141 (1978).

When the trial court deviates from an approved, constitutionally sound reasonable doubt instruction, our inquiry is whether there has been "a misdescription of the burden of proof," Sullivan, ___ U.S. at ___, 113 S.Ct. at 2082, producing a "reasonable likelihood" that the jury understood the instructions to allow conviction based on a lesser standard than proof beyond a reasonable doubt. See Victor, ___ U.S. at ___, 114 S.Ct. at 1243; Estelle v. McGuire, 502 U.S. 62, ___, 112 S.Ct. 475, 482, 116 L.Ed.2d 385 (1991). "A misdescription of the burden of proof . . . vitiates all the jury's findings, and a reviewing court can only engage in pure speculation—its view of what a reasonable jury would have done. And when it does that, `the wrong entity judges the defendant guilty.'" Sullivan, ___ U.S. at ___, 113 S.Ct. at 2082 (quoting Rose v. Clark, 478 U.S. 570, 578, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986)). See also Colon-Pagan, 1 F.3d at 82 (reversible plain error where reasonable doubt instruction misdescribed government's burden of proof). But see United States v. Merlos (Merlos II), 303 U.S.App.D.C. 395, 8 F.3d 48 (1993) (Sullivan error not plain error, hence not reversible, in circumstances of case), cert. denied, ___ U.S. ___, 114 S.Ct. 1635, 128 L.Ed.2d 358 (1994).

In sum, if the trial court misdescribes the burden of proof, creating a reasonable likelihood that the jury might perceive the standard as less than proof beyond a reasonable doubt, then the instruction is constitutionally deficient and, at least where objection has been made to the instruction, we must reverse appellant's conviction. See Sullivan, ___ U.S. at ___ - ___, 113 S.Ct. at 2081-82; United States v. Taylor, 302 U.S.App.D.C. 349, 353, 997 F.2d 1551, 1555 (1993) ("a constitutionally deficient reasonable-doubt instruction cannot be harmless error").

The Redbook instruction on reasonable doubt states:

Reasonable doubt, as the name implies, is a doubt based on reason, a doubt for which you can give a reason. It is such a doubt as would cause a juror, after careful and candid and impartial consideration of all the evidence, to be so undecided that he or she cannot say that he or she has an abiding conviction of the defendant's guilt. It is such a doubt as would cause a reasonable person to hesitate or pause in the graver or more important transactions in life. However, it is not a fanciful doubt, nor a whimsical doubt, nor a doubt based on conjecture. It is a doubt which is based on reason. The government is not required to establish guilt beyond all doubt, or to a mathematical certainty or a scientific certainty. Its burden is to establish guilt beyond a reasonable doubt.

Criminal Jury Instructions for the District of Columbia, No. 2.09 (4th ed. 1993) (emphasis added) (hereafter "Redbook").² This court and the United States Court of Appeals for the District of Columbia Circuit, on several occasions, have approved this reasonable doubt instruction. See Foreman v. United States, 633 A.2d 792, 793-94 (D.C.1993) (citing Redbook Instruction No. 2.09 with approval); Baptist v. United States, 466 A.2d 452, 459 (D.C.1983) (same); United States v. Merlos (Merlos I), 299 U.S.App.D.C. 401, 403, 984 F.2d 1239, 1241 (same), vacated on other grounds, 303 U.S.App.D.C. 395, 8 F.3d 48 (1993); United States v. Baber, 145 U.S.App.D.C. 98, 101, 447 F.2d 1267, 1270 (same), cert. denied, 404 U.S. 957, 92 S.Ct. 324, 30 L.Ed.2d 274 (1971). Although we have never squarely held that the Redbook instruction must be given exactly as is, we believe it is very dangerous, and therefore almost always...