Smith v. Bordenkircher

Decision Date21 December 1983
Docket NumberNo. 83-6002,83-6002
Citation718 F.2d 1273
PartiesKeith Austin SMITH, Appellant, v. Donald E. BORDENKIRCHER, Warden of West Virginia Penitentiary, Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

Gene R. Nichol, Jr., Williamsburg, Va., for appellant.

Fredrick S. Wilkerson, Asst. Atty. Gen., Charleston, W.Va. (Chauncey H. Browning, Jr., Atty. Gen., Charleston, W.Va., on brief), for appellee.

Before PHILLIPS, MURNAGHAN and CHAPMAN Circuit Judges.


Arguing that a jury instruction given at his 1979 trial in the Circuit Court of Raleigh County, West Virginia violated his right to due process by defining "reasonable doubt" as a "good and substantial doubt ... and one for which he who entertains such a doubt should be able to give a good and substantial reason," Keith Austin Smith appeals from the district court's denial of his petition for a writ of habeas corpus. We conclude that the challenged instruction, though troubling in two significant respects, did not deprive Smith of a fair trial. Accordingly, we affirm denial of the writ.


On July 13, 1979, Smith was convicted in the Circuit Court of Raleigh County, West Virginia, of first degree murder with a recommendation of mercy in connection with the fatal shooting of Johnny Richmond. The facts surrounding the shooting may be briefly stated.

On the evening of November 3, 1978, Smith and a sixteen-year-old companion, Ronald Morton, Jr., walked to a local store to purchase some beer. As the boys passed the Village Inn, a neighborhood bar, on their way home, Keith Smith made an obscene gesture toward Mary Smith, the decedent's sister.

After Mary Smith reported the incident to her brother, Johnny Richmond, who was inside the Village Inn with some friends, he immediately ran outside to confront Morton and the appellant. Richmond, age 24, apparently intimidated the boys, who dropped their beer. He kicked Morton in the groin, took the beer, and laughingly distributed it to patrons at the Village Inn.

Smith and Morton hurriedly returned to the Morton home, where they informed Tom Morton, Ronald's father, of their confrontation with Richmond. The senior Morton armed himself with a pistol and, his son and Keith Smith in tow, immediately went to the Village Inn, challenging Richmond to come outside. Richmond, accompanied by a group of friends, came out of the tavern and approached the Morton-Smith trio. Predictably, an argument ensued and at one point Richmond was heard to ask for a pistol.

After additional posturing, the Mortons began walking backwards down the street toward their home. As the Mortons retreated, Smith went to their home to obtain a shotgun. By the time Smith returned to the agitated scene, Tom Morton had fired several shots toward Richmond, who was picking up his shirt and yelling, "Shoot me, mother------." Smith thereupon shot and killed Richmond.

Smith surrendered the next day. At trial, Smith called no witnesses and introduced no evidence; his theory of defense was that he was drunk and/or acted in the heat of passion at the time of the shooting. The jury was instructed that it could return one of four verdicts: (1) murder in the first degree, (2) murder in the second degree, (3) voluntary manslaughter, and (4) involuntary manslaughter. Smith was convicted of first degree murder with a recommendation of mercy.

Smith filed a petition for appeal in the West Virginia Supreme Court of Appeals, which was refused on March 30, 1980. He subsequently petitioned that court for a writ of habeas corpus, which was also denied. Finally, on June 28, 1982, Smith filed, pursuant to 28 U.S.C. Sec. 2254, the instant petition for a writ of habeas corpus. In his petition, Smith asserted that his conviction was marred by a variety of constitutional deficiencies. The district court refused to consider one of Smith's grounds for relief, ruling it successive, and found Smith's remaining grounds without merit. The court accordingly denied Smith's petition for a writ of habeas corpus.

Smith then filed a timely notice of appeal, and we granted his application for a certificate of probable cause. On appeal Smith presses the single claim that the definition of reasonable doubt employed at his trial unconstitutionally lowered the state's burden of proof, thereby depriving him of due process of law.


At the threshold, the state argues that Smith is precluded from challenging the constitutionality of the reasonable doubt instruction given at his trial because he failed to register a contemporaneous objection to that instruction as is required under West Virginia law. 1 Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). This argument lacks merit.

Recently, in Adkins v. Bordenkircher, 674 F.2d 279 (4th Cir.1982), we held that a West Virginia prisoner was not barred from collaterally attacking his conviction on the ground that a constitutionally infirm jury instruction was given at his trial, despite the petitioner's failure to make a contemporaneous objection to the challenged instruction. We reached this result because, unlike several of its sister states, West Virginia applies its procedural default rules liberally in specific classes of cases: "[T]he West Virginia court has stated that its contemporaneous objection rule would not forestall a constitutional or jurisdictional challenge. See Spaulding v. Warden, 212 S.E.2d 619, 621 (W.Va.1975)." Adkins, 674 F.2d at 282; see Wallace v. McKenzie, 449 F.Supp. 802, 807 (S.D.W.Va.1978).

Because the state courts would not enforce West Virginia's procedural default rules to preclude consideration of Smith's claim, it may appropriately be reviewed in a federal habeas corpus proceeding. Wainwright, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594. We accordingly turn to the merits.


In its charge to the jury, the court included "State's Instruction No. 7," which reads in full:

THE COURT INSTRUCTS THE JURY that, although the burden is upon the State to prove the prisoner guilty beyond a reasonable doubt, yet such a doubt is not a mere vague, fanciful or imaginary doubt, but is a good and substantial doubt based upon the evidence or lack of evidence in the case, and one for which he who entertains such doubt should be able to give a good and substantial reason based upon the evidence or lack of evidence in the case (emphasis added).

Smith argues that this instruction, in two distinct ways, vitiated the constitutional requirement that his guilt be proven at trial beyond a reasonable doubt: first, the instruction equated "reasonable doubt" with a "good and substantial doubt"; and, second, its language implied that any juror holding such a doubt might be called upon to articulate a "good and substantial reason" for his belief. With this contention we cannot agree.

In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), which established the requirement that the state prove every element of an offense beyond a reasonable doubt, provides the touchstone for evaluating the challenged instruction. After noting that the reasonable doubt standard is a "prime instrument for reducing the risk of convictions resting on factual error," the Court in Winship emphasized that the standard is "indispensable, for it 'impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.' " Id. at 363-64, 90 S.Ct. at 1072; see Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) (an instruction altering the burden of proof provides a ground for habeas corpus relief). In view of the central role that the reasonable doubt standard plays "[i]n the administration of criminal justice, courts must carefully guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 [90 S.Ct. 1068, 1072, 25 L.Ed.2d 368] (1970)." Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 1692, 48 L.Ed.2d 126 (1976).

However, in judging whether the state has transgressed constitutional bounds, a federal court sitting in habeas exercises a limited role. When, as here, a collateral attack on a state conviction is premised on an assertedly erroneous jury instruction, that instruction "may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). Moreover, the question in such a collateral proceeding is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process, Cupp v. Naughten, 414 U.S. at 147 , not merely whether 'the instruction is undesirable, erroneous or even universally condemned,' id. at 146 ." Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977); Cooper v. North Carolina, 702 F.2d 481, 483 (4th Cir.1983); see Engle v. Isaac, 456 U.S. 107, 135, 102 S.Ct. 1558, 1575, 71 L.Ed.2d 783 (1982).

The petitioner first challenges that portion of Instruction No. 7 equating "reasonable doubt" with "good and substantial doubt." Appellate courts that have considered similar "restatements" of the reasonable doubt standard have been uniformly disapproving of such attempts to elaborate on the critical concept, see, e.g., Whiteside v. Parke, 705 F.2d 869, 871 (6th Cir.1983); United States v. Martin-Trigona, 684 F.2d 485, 493 (7th Cir.1982); United States v. Rodriguez, 585 F.2d 1234, 1240-42 (5th Cir.1978), cert. denied, 449 U.S. 835, 101 S.Ct. 108, 66 L.Ed.2d 41 (1980), modified on other grounds sub nom. Albernaz v. United States, 612 F.2d 906 (1980) (en banc), aff'd, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); Dunn v. Perrin, 570 F.2d 21, 23 (1st Cir.1978); see also Taylor v. Kentucky, 436 U.S. 478, 488, 98 S.Ct. 1930, 1936, 56 L.Ed.2d 468 (1978),...

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