Johnson v. State
| Decision Date | 03 August 1981 |
| Docket Number | No. F-80-313,F-80-313 |
| Citation | 632 P.2d 1231 |
| Parties | Gary Raymond JOHNSON, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Gary Raymond Johnson, appellant, was convicted of Attempted Rape in the First Degree, after Former Conviction of a Felony, in Oklahoma County District Court, Case No. CRF-79-2339. He was sentenced to fifteen (15) years' imprisonment and appeals. AFFIRMED.
Demetri Anastasiadis, Asst. Public Defender, Oklahoma County, Oklahoma City, for appellant.
Jan Eric Cartwright, Atty. Gen., Susan Talbot, Asst. Atty. Gen., Oklahoma City, for appellee.
The appellant, Gary Raymond Johnson, was convicted in the District Court of Oklahoma County, Case No. CRF-79-2339, of Attempted Rape in the First Degree, after Former Conviction of a Felony. The jury fixed his punishment at a term of imprisonment of fifteen (15) years in the state penitentiary.
The appellant first contends that the prosecuting attorney included in her closing argument a prejudicial remark amounting to a definition of "reasonable doubt." Specifically, the appellant objects to the statement that "reasonable doubt" does not mean that the State has "the burden of proving absolute mathematical certainty beyond all doubt."
Case law and statutes support the appellant's objection to the prosecution's attempt to declare the law to the jury. Hau v. State, 30 Okl.Cr. 24, 234 P. 649 (1925); 22 O.S.1971, §§ 832, 834. The jury is bound to receive the law as laid down by the court; and it is improper for the prosecuting attorney to usurp this judicial function. More specifically, this Court supports the view that it is inadvisable for the judge, much less the prosecutor, to define "reasonable doubt" to the jury; definitions of this self-explanatory phrase tend to confuse rather than clarify its meaning. Templar v. State, 494 P.2d 667 (Okl.Cr.1972).
To warrant modifications of the sentence, however, the remark in question must not be merely improper or inadvisable, but it must also be of such a character as to have prejudiced the rights of the appellant or affected the verdict to his detriment. Frazier v. State, 607 P.2d 709 (Olk.Cr.1980). The prosecutor's regrettable gloss on "reasonable doubt" in the present case could not have prejudiced the appellant to the degree required for sentence modification. In stating briefly what "reasonable doubt" does not mean, the prosecutor did not "define" the phrase, nor did the remark create an erroneous impression.
The appellant next asserts that the trial court erred in refusing to give the following requested instruction on circumstantial evidence:
... as far as the issue of intent is concerned, that said intent must be proved if proved circumstantially to a moral certainty and that each fact must be consistent with guilt and inconsistent with any other reasonable hypothesis as far as the issue of intent is concerned. (Emphasis added)
In refusing to instruct on the "reasonable hypothesis" test, relying instead on a simpler instruction emphasizing reasonable doubt, 1 the trial court followed the directive of the U.S. Supreme Court, which had suggested that, where the jury is properly instructed on the standards for reasonable doubt, an additional instruction that each fact must be consistent with guilt and inconsistent with any other reasonable hypothesis is confusing and incorrect. Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954). Case law in Oklahoma suggests that the "reasonable hypothesis" test may be included in the instructions to the jury in order to cure some other grossly misleading instruction, Washmood v. United States, 10 Okl.Cr. 254, 136 P. 184 (1913); or it may be used by the Court in assessing the strength of circumstantial evidence. Madden v. State, 26 Okl.Cr. 251, 223 P. 716 (1924). See also United States v. Cortez, 521 F.2d 1, 3 (5th Cir. 1975). But our research has uncovered no case where a refusal to instruct on the "reasonable hypothesis" test provided ground for modification or reversal. In light of the U.S. Supreme Court directive in Holland and absent any other misleading instruction to the jury, the trial court was correct in its refusal of the requested "reasonable hypothesis" instruction.
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