State v. Wentworth

• Decision Date: 06 December 1978
• Docket Number: No. 78-149,78-149
• Citation: 118 N.H. 832,395 A.2d 858
• Parties: The STATE of New Hampshire v. Mark C. WENTWORTH.
• Court: New Hampshire Supreme Court

Page 858

395 A.2d 858

118 N.H. 832

The STATE of New Hampshire v. Mark C. WENTWORTH.

No. 78-149.

Supreme Court of New Hampshire.

Dec. 6, 1978.

Thomas D. Rath, Atty. Gen., John C. Boeckeler, Richard B. McNamara, Richard B. Michaud and Peter W. Heed, Asst. Attys. Gen., and Peter W. Mosseau, Concord, by brief for the State.

Upton, Sanders & Smith, Concord, and Eric D. Blumenson, Boston, Mass. (Robert Upton, II, Concord, orally), for defendant.

Harry Jonathan Meyer, Concord, by brief and orally as amicus curiae for New Hampshire Civil Liberties Union.

GRIMES, Justice.

This criminal trespass case presents important issues concerning jury instructions on reasonable doubt, the supervisory function of this court over the trial courts of New Hampshire, and jury instructions on the elements of criminal trespass under RSA 635:2. Defendant raises four questions. This opinion, however, deals with only three; the fourth is fully addressed in the companion case of State v. Dorsey, 118 N.H. ---, 395 A.2d 855 (decided this date) (availability of the competing harms defense).

The issues to be decided are first, whether the trial court committed reversible error in instructing the jury that a reasonable doubt means "a strong and abiding conviction that still remains after a careful consideration of all of the evidence"; second, whether the court erred in instructing the jury on the elements of criminal trespass; and third, whether the court abused its discretion in sentencing the defendant to six months, two months suspended, in the house of correction. We hold that no error was committed.

The pertinent facts are these. The defendant was arrested along with about 1,400 other protesters at the May 1977 occupation of the Seabrook Nuclear Power Plant site. He was charged with the crime of criminal trespass, RSA 635:2, and was convicted in the District Court for the Town of Hampton. Defendant was fined $100, sentenced to fifteen days in the house of correction and appealed his conviction to the superior court. A jury trial resulted in a verdict of guilty, and he excepted to various rulings and instructions, and also to the increase of his sentence. All issues of law were reserved and transferred by Mullavey, J.

I. Jury Instruction on Reasonable Doubt

The defendant challenges the constitutionality of the jury instruction on the reasonable doubt standard given in his trial. The actual charge given follows:

Under our system of justice, which has been time-tested, . . . every person accused of crime who walks into a courtroom is presumed to be innocent. The defendant in a criminal case has no burden of proving anything.

What is this presumption of innocence? Until such time as the State proves beyond a reasonable doubt all of the essential allegations contained in the complaint, the defendant is presumed to be innocent.

I just used the phrase "reasonable doubt." Under our system of justice, we do not require that the State prove their case to a mathematical certainty, Nor do we require that the State remove all slight or frivolous doubt from your minds, but before a verdict of guilty can be returned in any case by a jury, all reasonable doubt must be removed by the evidence which you have heard presented by the State. And once again, upon any issue which you have to determine in this case, you can consider the evidence as you heard it from any witness, no matter who produced it.

In December of last year, the State of New Hampshire Supreme Court decided a case called State v. Black (116 N.H. 836, 368 A.2d 1177 (1976)), and that case probably has as good a definition of what reasonable doubt is as any I've seen. In that case, our Supreme Court defined a reasonable doubt as follows:

"A reasonable doubt can be defined as a strong and abiding conviction that still remains after a careful consideration of all of the evidence ' a strong and abiding conviction ' but where our belief in a fact is so uncertain that we would hesitate to act upon the strength of it to undertake something of importance and seriousness equal to this case, then there is reasonable doubt.'' (Emphasis added.)

Defendant contends that the recent First Circuit opinion of Dunn v. Perrin, 570 F.2d 21 (1st Cir. 1978), Cert. denied, 437 U.S. 910, 98 S.Ct. 3102, 57 L.Ed.2d 1141 (1978), mandates a finding of reversible error based upon the trial court's use of the phrase "a strong and abiding conviction." We disagree with the defendant's position for two reasons: first, we find the present jury instruction distinguishable from that held invalid in Dunn v. Perrin, supra; and second, we are convinced that the First Circuit is in error on this particular point.

In the cases of State v. Black, 116 N.H. 836, 368 A.2d 1177 (1976), and State v. Belkner, 117 N.H. 462, 374 A.2d 938 (1977) this court refused to find reversible error in jury instructions containing, among others, the questioned definition of reasonable doubt. In both cases, this court made it clear that it was on the basis of the entire charge that we found no reversible error. State v. Belkner, 117 N.H. at 471, 374 A.2d at 944; State v. Black, 116 N.H. at 838, 368 A.2d at 1179. Both cases, moreover, quoted the Supreme Court of the United States to the effect that "a single instruction to a jury 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, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). Accord, United States v. Park, 421 U.S. 658, 674, 95 S.Ct. 1903, 44 L.Ed.2d 489 (1974). In Dunn v. Perrin, 570 F.2d 21 (1st Cir. 1978), Cert. denied, 437 U.S. 910, 98 S.Ct. 3102, 57 L.Ed.2d 1141 (1978), the defendants from the two New Hampshire cases sought relief by petitions for habeas corpus in the federal district court, but the district court agreed with this court and denied the requested relief. On appeal, the Court of Appeals for the First Circuit reversed, holding that the instruction given contained three erroneous definitions of the reasonable doubt standard. Dunn v. Perrin, supra.

The court of appeals was quite specific as to its perceived need for a reversal:

Here reasonable doubt was improperly defined three times. This is thus not a technical error appearing in "artificial isolation," or one that was cured by an otherwise proper charge. The cumulative effect of the three errors was to obfuscate one of the "essentials of due process and fair treatment."

Dunn v. Perrin, 570 F.2d at 25 (citations omitted).

The jury instruction held invalid in Dunn v. Perrin supra defined reasonable doubt (1) as "doubt as for the existence of which a reasonable person can give or suggest a good and sufficient reason," (2) as "a strong and abiding conviction as still remains after careful consideration of all the facts and arguments," and (3) as a standard requiring proof to a moral certainty. Such instructions have been used in this State for decades without challenge. The jury instruction in the present case, however, included only the second of those three definitions.

It is the opinion of this court that the Dunn case must be limited to its facts. The First Circuit twice emphasized that its decision was based upon the cumulative effect of the three reasonable doubt definitions. Aside from the earlier-quoted language, the First Circuit opinion states: "(T)he passage defining that critical concept contained no fewer than three different misstatements, ranging from the dubious to the patently erroneous. With this linchpin so weakened we cannot label the errors harmless beyond a reasonable doubt." Dunn v. Perrin, 570 F.2d at 23.

We now hold that considering the charge as a whole the instruction given in the present case is not such error as to require a reversal. Even assuming that the defendant is correct in his assertion that the Dunn case is controlling on this court, we hold that, on its facts, it is not controlling in this case.

This court further disagrees with the contention of the defendant and the First Circuit that the language "a strong and abiding conviction as still remains after careful consideration of all the facts" works a reversal of the burden of proof. The defendant argues strenuously that this definition, "(i) nstead of requiring the government to prove guilt, . . . called upon (the defendant) to establish doubt in the jurors' minds." Dunn v. Perrin, 570 F.2d at 24. We are unable to see how this is so. The definition given by the trial judge in the present case simply contrasts a reasonable doubt with one that is slight or frivolous. The judge stated: "(N)or do we require that the State remove all Slight or frivolous doubt from your minds, but . . . All reasonable doubt must be removed by the evidence which you have heard presented by the State." (Emphasis added.) The judge then attempted to define the elusive standard of reasonable doubt. Taken in context, we cannot agree that the burden of proof was shifted to the defendant. Rather than placing the burden on the defendant to create the doubt, the instruction required the State to remove it.

The charge plainly stated that "(t)he defendant . . . (had) no burden of proving anything." The charge also made it clear that the burden was on the State to prove each element of the offense beyond a reasonable doubt. These repeated admonitions to the jury undermine any argument that the "strong and abiding conviction" language shifted the burden of proof to the defendant. Taken in its entirety the instruction "conveyed the correct concept of reasonable doubt." State v. Belkner, 117 N.H. 462, 471, 374 A.2d 938, 944 (1977); State v. Black, 116 N.H. 836, 368 A.2d 1177 (1976). See also Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). In addition, even assuming that it was error to instruct the jury in the manner selected, "any possible prejudicial effect of the phrase was harmlessly lost in the totality of the instructions." State v. Black, ...