Smith v. Butler, Civ. A. No. 86-3273-WD.

Decision Date23 September 1988
Docket NumberCiv. A. No. 86-3273-WD.
PartiesWillie SMITH, Plaintiff, v. Norman BUTLER, Defendant.
CourtU.S. District Court — District of Massachusetts

Willie F. Smith, Norfolk, Mass., pro se.

William L. Patton, Ropes & Gray, Boston, Mass., for plaintiff.

Linda G. Katz, Asst. Atty. Gen., Criminal Bureau, Boston, Mass., for defendant.


WOODLOCK, District Judge.

Instructing the jury in a murder case sixteen years ago, a Massachusetts state superior court judge defined the concept of reasonable doubt by employing forms of explanation which are now recognized as erroneous in the federal courts of this Circuit. The question whether the errors in his reasonable doubt instruction justify a new trial has been presented by the defendant to the state courts without success. The issue comes before me belatedly through the state habeas corpus jurisdiction of the federal courts, 28 U.S.C. § 2254. Under controlling case law, I must find the instructional errors to be serious. However, under controlling case law I must also find them constitutionally tolerable and so decline to grant the writ.


The petitioner, Willie F. Smith, was convicted on February 17, 1973, of murder in the second degree. He was sentenced to life imprisonment.

Mr. Smith's direct appeal was never perfected. However, in 1979, he filed a motion for a new trial on the same basic grounds now raised in this petition for habeas corpus. He argued then, as he does now, that in instructing the jury as to proof beyond a reasonable doubt, the trial judge trivialized the Commonwealth's burden of proof by drawing improper analogies between proof beyond a reasonable doubt and the quantum of assurance necessary before the jurors would make various important decisions in their personal lives.

The petitioner's motion for a new trial was denied in the Superior Court and that decision was affirmed by the Supreme Judicial Court ("SJC"), which considered the charge as a whole in connection with his appeal from the denial.1Commonwealth v. Smith, 381 Mass. 141, 145-46, 407 N.E. 2d 1291 (1980). In the instant habeas corpus petition filed some six years after the rejection of his contentions by the SJC, Mr. Smith maintains that the Massachusetts courts committed constitutional error by countenancing instructions which placed the Commonwealth's burden of proof in his criminal case below the standard required by In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).


In its opinion, the SJC concisely summarized certain of the evidence at the joint trial of Mr. Smith and his co-defendants Hubert Bonds and Willie J. Scott:

The homicide occurred at the R & P Restaurant in Springfield on June 11, 1972. The Commonwealth offered as its principal witness Mrs. Esther Shaw. The victim Edward Shaw was the brother-in-law of Mrs. Shaw. Mrs. Shaw and her husband Henry owned the restaurant. They were working at the restaurant, along with Edward Shaw and John Carroll, at the time of the shooting. Mrs. Shaw testified that at approximately 10 p.m. on June 11, 1972, Willie F. Smith entered the kitchen of the R & P Restaurant. Shortly after this, Hubert Bonds and Willie J. Scott also walked into the kitchen.
Mrs. Shaw testified that a conversation took place between her and Smith while they were in the kitchen. Scott then pulled out a gun. Both Smith and Bonds also pulled out guns. Henry Shaw then left the kitchen, and as he was leaving he handed a gun to Edward Shaw, who was entering the kitchen.
Mrs. Shaw testified that Bonds then shot at Edward Shaw, and Shaw fell to the floor. Furthermore, she testified that after the first shot, Smith said to Bondsic: "Kill that son-of-a-bitch." Bonds walked over to Edward Shaw and shot him once again. Bonds, Smith, and Scott then left the restaurant. Mrs. Shaw picked up the gun which was at Edward Shaw's side. Mrs. Shaw fired a shot into the area above the kitchen door. She then ran into the street where she fired the gun until it was empty.
Bonds testified before the jury that he went to the R & P Restaurant on June 11, 1972, along with Smith and Scott, in order to buy liquor. Bonds stated that while he was in the kitchen purchasing liquor, Edward Shaw pointed a gun at Bonds and fired it twice. Bonds stated that he fired his gun in return.
Smith testified before the jury that he was not in the kitchen at the time of the shooting. Furthermore, Smith stated that when the shooting started, he left the restaurant by way of the front door. Smith testified that he was joined outside by Bonds and Scott, and the three men drove away in Scott's car. Bonds was driven to the Wesson Memorial Hospital where he was treated for a gunshot wound to the left arm. A ballistics expert testified for the Commonwealth that in his opinion the spent projectile removed from Bonds' left arm was fired from Bonds' gun.

Commonwealth v. Smith, 381 Mass. at 142-43, 407 N.E.2d 1291.


The SJC's concise summary of the evidence set forth above puts the case in the light most favorable to the prosecution. This is not surprising because the Court's summary is virtually a verbatim recitation —with only citations and introduction omitted —of the entire "Statement of the Facts" contained at page 3 through 6 of the Brief for the Commonwealth. But recourse to the Commonwealth's narrative—appropriated by the state court—elides certain other relevant evidence available in the trial record.2

While circumstantial evidence supported the Commonwealth's case, the prosecution of Mr. Smith essentially involved a credibility contest between Mrs. Shaw and Mr. Smith. The SJC's concise narrative summary does not make clear that Mrs. Shaw was the only witness who claimed to have seen Mr. Smith in the kitchen after the first shot when, according to Mrs. Shaw, Smith directed Bonds to kill Edward Shaw. All of the other witnesses—including John Carroll, an employee at the restaurant, who testified on behalf of the Commonwealth— either did not directly observe where Mr. Smith was at the time of the killing, or placed him outside of the kitchen.

No one other than Mrs. Shaw heard Mr. Smith issue the specific directive: "Kill the son-of-a-bitch." Mr. Carroll testified that he had been outside of the kitchen at the time of the gunfire and had merely heard a voice he could not identify say, "Kill him," after the first shot.

Mr. Smith thus was convicted primarily on the direct evidence of Mrs. Shaw; and the trial record suggests that Mrs. Shaw was not without bias against Mr. Smith. The jury heard evidence that the shooting was preceded by an argument among Mrs. Shaw, Mr. Shaw and Mr. Smith.3 Moreover, Mrs. Shaw, who was impeached with a prior statement to the police regarding details of the events, conceded during cross examination that when the various guns were drawn she was distracted by events:

At this time I wasn't paying too much attention. The gun dropping on the floor and one pointing one and the other one getting his out, and I couldn't tell who was doing what at this point.

For his own part, the 35-year-old Mr. Smith would hardly have made an impressive witness. He had spent the first 25 years of his life in rural Georgia, had gone no farther than seventh grade in school and was unable either to read or write. The transcript of his answers at trial discloses a person ill at ease with formal English. He worked making cinder blocks outside Hartford but had spent the day of the incident in Springfield drinking with relatives, friends and acquaintances.

Mr. Smith's limited inherent credibility was further undermined by the introduction in evidence of a statement he made without Miranda warnings and then "signed"—by placing his mark on it—the day after the killing. The statement indirectly suggested that Smith may have been in the kitchen at the time of the killing. The statement was introduced in evidence with a limiting instruction that it be considered not for its truth, but only for its bearing upon Mr. Smith's credibility.

Obviously the members of the jury chose to believe that Mrs. Shaw—who apparently was pregnant when she testified—had not lied or otherwise overstated her testimony; but upon this evidence they could also have come to the opposite conclusion and reasonably have entertained doubt about her story.

I have elaborated upon evidence at Smith's murder trial to illustrate the context in which jury instructions were received in this case. Because the case turned largely on the credibility of two witnesses, the jury's understanding of the quantum of proof necessary to convict was critical to the outcome of the trial. Consequently, the customary role of the concept of "reasonable doubt" in a jury instruction was enhanced at Mr. Smith's trial.


Quite apart from its role in this case, the importance of the concept of reasonable doubt in our criminal jurisprudence cannot be overemphasized. The Supreme Court in modern times has been satisfied to reiterate this importance by quoting from venerable4 text:

The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence—that bedrock "axiomatic and elementary" principle whose "enforcement lies at the foundation of the administration of our criminal law."

In re Winship, 397 U.S. 358, 363, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970) quoting Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 402, 39 L.Ed. 481 (1895).

For the First Circuit, "discussion of the concept is perhaps the most important aspect of the closing instruction to the jury in a criminal trial." Dunn v. Perrin, 570 F.2d 21, 25 (1st Cir.), cert. denied 437 U.S. 910, 98 S.Ct. 3102, 57 L.Ed.2d 1141 (1978). See also Lanigan v. Maloney, 853 F.2d at 48.

In this case, the discussion of that vitally important concept was pock-marked with...

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