Lanigan v. Maloney, s. 88-1200

• Decision Date: 06 June 1988
• Docket Number: 88-1424,Nos. 88-1200,s. 88-1200
• Citation: 853 F.2d 40
• Parties: Thomas J. LANIGAN, Petitioner, Appellee, v. Michael T. MALONEY, Respondent, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 40

853 F.2d 40

Thomas J. LANIGAN, Petitioner, Appellee, v. Michael T. MALONEY, Respondent, Appellant.

Nos. 88-1200, 88-1424.

United States Court of Appeals First Circuit.

Heard June 6, 1988.

Decided Aug. 9, 1988.

Judy G. Zeprun, Asst. Atty. Gen., Criminal Bureau, with whom James M. Shannon, Atty. Gen., was on brief, for respondent, appellant.

David J. Fine, by Appointment of the Court, with whom Silverglate, Gertner, Fine & Good was on brief, for petitioner, appellee.

Before COFFIN, and SELYA, Circuit Judges, and ACOSTA, ^* District Judge.

COFFIN, Circuit Judge.

The district court granted Thomas J. Lanigan's petition for a writ of habeas corpus on the ground that the instructions on reasonable doubt given at his criminal trial in Massachusetts state court were constitutionally defective. The Commonwealth appeals, claiming that the district court erred both on the merits and in failing to find that Lanigan's claim is procedurally barred. We have carefully considered the Commonwealth's arguments, but conclude that the district court properly found a redressible constitutional violation. We therefore affirm.

I.

Petitioner Thomas J. Lanigan was convicted in Massachusetts of armed robbery, assault with intent to murder, assault and battery with a dangerous weapon, and kidnapping. At trial, petitioner specifically requested reasonable doubt instructions in the language of Commonwealth v. Webster, 59 Mass. (5 Cush.) 295, 320 (1850), a long-standing formulation repeatedly approved by the Massachusetts Supreme Judicial Court. Petitioner objected to the trial judge's failure to conform to the Webster charge, and later challenged the instruction on appeal.

The Massachusetts Appeals Court reversed the two assault convictions because of problems with the jury instructions on those particular crimes, but affirmed the convictions for armed robbery and kidnapping. The court found that the reasonable doubt charge "passed muster ..., although the question is close." Commonwealth v. Lanigan, 12 Mass.App.Ct. 913, 915, 423 N.E.2d 800, 802 (1981). The Supreme Judicial Court denied Lanigan's petition for further appellate review.

In his petition for a writ of habeas corpus, Lanigan challenged the reasonable doubt instruction on three grounds. First, he complained that the judge twice equated proof beyond a reasonable doubt with "proof to a degree of moral certainty," allowing the jurors to find guilt even if they were substantially less than morally sure of their conclusion. Second, the judge contrasted the criminal standard of proof beyond a reasonable doubt with the civil standard of preponderance of the evidence in a way that petitioner claims was confusing. Finally, petitioner claimed that the reasonable doubt instruction was unbalanced in that "it heavily emphasized why the burden of proof could not be too rigorous, but failed to explain at all why it was important that the burden be as rigorous as it was."

The district court held that as a result of these defects "there is a significant possibility that the jurors in this case entered the jury room with no clear sense of what degree of certainty was required in order to convict the defendant," thus " 'obfuscat[ing] one of the "essentials of due process and fair treatment," ' " District Court Opinion at 6 (quoting Dunn v. Perrin, 570 F.2d 21, 25 (1st Cir.1978) (quoting In re Winship, 397 U.S. 358, 359, 90 S.Ct. 1068, 1070, 25 L.Ed.2d 368 (1970))). The court therefore granted Lanigan's petition for a writ of habeas corpus.

On appeal, the Commonwealth argues first that petitioner's claim is procedurally barred because he failed at trial to make the three specific objections to the charge that he now makes in his habeas corpus petition. The Commonwealth argues secondly that the reasonable doubt instruction adequately conveyed the meaning of "beyond a reasonable doubt." Finally, the Commonwealth argues that even if there was error, it was harmless because of the overwhelming evidence against petitioner. We begin with the Commonwealth's procedural point.

II.

The Commonwealth argues that petitioner is in procedural default because his trial counsel's general objection that the reasonable doubt instruction did not follow the language of Commonwealth v. Webster was insufficient to comply with the Massachusetts rule that "where a party alleges error in a charge he must bring the alleged error to the attention of the judge in specific terms in order to give the judge an opportunity to rectify the error, if any," Commonwealth v. McDuffee, 379 Mass. 353, 357 & n. 3, 398 N.E.2d 463, 465 & n. 3 (1979). See also Mass.R.Crim.P. 24(b) ("No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, specifying the matter to which he objects and the grounds of his objection."). Under Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977), a defendant's failure to object at his state trial may constitute "an independent and adequate state procedural ground" sufficient to foreclose federal habeas corpus review if the state has a contemporaneous objection rule and has not waived its application. Puleio v. Vose, 830 F.2d 1197, 1199 (1st Cir.1987). The Commonwealth argues that the Wainwright doctrine bars federal review in this case.

The exhaustion doctrine, which the Commonwealth does not directly invoke, ¹ raises similar questions about whether we may entertain Lanigan's petition for a writ of habeas corpus. In general, the exhaustion doctrine requires that a state defendant seeking to overturn his conviction on federal grounds first must give the state courts "a fair opportunity" to consider his claims. Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971). This means that the habeas corpus petitioner must have presented the substance of his federal constitutional claim to the state appellate courts so that the state had the first chance to correct the claimed constitutional error.

We conclude that neither the Massachusetts contemporaneous objection rule nor the exhaustion doctrine bars federal review of Lanigan's claim. We shall address each in turn, beginning with the objection rule.

At the conclusion of the jury charge, petitioner's trial counsel said simply, "Commonwealth versus Webster in my instructions." This skeletal objection ordinarily might be dismissed as inadequate to preserve any issue connected with the charge. But in this instance, everyone, including the judge, clearly understood the reference to Commonwealth v. Webster as an objection to the reasonable doubt instruction. The Commonwealth does not dispute that counsel's statement at the close of the charge sufficiently preserved an objection to the reasonable doubt charge; it claims only that the specific objections raised in federal court differed from those made in state court.

The problem we find in the Commonwealth's finely tuned argument is that, once we acknowledge that a cognizable objection has been made, we find it difficult to escape the conclusion that petitioner's demand was for the essence of the Webster charge, i.e., a balanced charge highlighting the high burden of proof. If such was the clear purport of the demand, we fail to see how petitioner's three present specifications of imbalance should not fairly be deemed covered by his more comprehensive objection.

In an effort to understand how much is conveyed both by the Webster charge and by a simple objection to its not being given, we first dissect the Webster charge itself. ² In eight tightly constructed sentences, these points are made: the term "reasonable doubt" is not easily defined; it is not "mere possible doubt"; it exists when there is no "abiding conviction, to a moral certainty"; the burden of proof is on the prosecutor and all presumptions favor innocence; even a "strong" probability of guilt is not enough; evidence must establish guilt to a "reasonable and moral certainty" that "convinces ... the understanding"; going beyond this would require absolute certainty and exclude circumstantial evidence. This passage takes no fewer than five approaches to conveying the essence: (1) what is less than reasonable doubt; (2) where the burden lies; (3) whom the presumptions favor; (4) what kind of moral certainty amounts to reasonable doubt; (5) what is more than reasonable doubt. We find it hard to imagine, without recourse to prolixity, a charge more reflective of the solemn and rigorous standard intended.

In light of the care demonstrated in Webster, it is not surprising that the Supreme Judicial Court repeatedly has taken pains in recent opinions to endorse the century-and-a-quarter-old formulation. See, e.g., Commonwealth v. Ferreira, 373 Mass. 116, 130 n. 12, 364 N.E.2d 1264, 1273 n. 12 (1977); Commonwealth v. Therrien, 371 Mass. 203, 209, 355 N.E.2d 913, 916-917 (1976); Commonwealth v. Gerald, 356 Mass. 386, 390, 252 N.E.2d 344, 347 (1969). Indeed, the Supreme Judicial Court specifically has encouraged Massachusetts trial judges to adhere to the "time-tested" Webster charge as a way of protecting against juror confusion over the meaning of the reasonable doubt standard. See, e.g., Therrien, 371 Mass. at 208-209, 355 N.E.2d at 916 ("freehand embellishments of the standard charge ... can only create uncertainty and breed needless appeals").

This particular history of this seminal instruction persuades us that an objection noting generally the failure to charge in the language of Webster is entitled to be construed as protesting significant deviations from the sensitive balance in favor of a defendant achieved in that case. In essence, this history suggests that to say more is unnecessary; it is to be expected that Massachusetts judges know the Webster charge, know what content is sought when it is requested, and know what omissions or assertions are contested when a lawyer objects to the...