Tsoumas v. State of New Hampshire

Decision Date26 June 1979
Docket NumberCiv. No. 78-447-D,79-5-D.
Citation472 F. Supp. 1134
PartiesThomas A. TSOUMAS and David S. Sands v. The STATE OF NEW HAMPSHIRE and the Attorney General of the State of New Hampshire. Mark C. WENTWORTH v. Unwar J. SAMAHA, in his capacity as Clerk of the Rockingham County Superior Court and Thomas Rath, in his capacity as Attorney General for the State of New Hampshire.
CourtU.S. District Court — District of New Hampshire

Stanley M. Brown, Manchester, N. H., David J. KillKelley, Laconia, N. H., Thomas R. Watson, Portsmouth, N. H., for Tsoumas and Sands.

Robert Upton, II, Jon Meyer, N. H. Civil Liberties Union, Concord, N. H., for Wentworth.

John C. Boeckeler, Asst. Atty. Gen., Concord, N. H., for respondents.

ORDER AND OPINION

DEVINE, Chief Judge.

These are consolidated habeas corpus petitions (28 U.S.C. § 2254) in each of which the primary issue presented is the correctness of the state trial court's jury instructions on "reasonable doubt".1 The Court has had the opportunity to hear oral argument and review the briefs of counsel together with the trial transcripts.2

Petitioner Wentworth was one of approximately 1400 anti-nuclear demonstrators arrested on May 1, 1977, at the site of the ongoing construction of the Seabrook Nuclear Power Plant. He was subsequently charged with and convicted of criminal trespass (RSA 635:23) in the Hampton District Court. Sentenced to fifteen days in jail and a fine of one hundred dollars, he appealed to Rockingham County Superior Court.4 Jury trial therein resulted in a verdict of guilty, and Wentworth was then sentenced to a jail term of six months, two months of which were suspended. On appeal the Supreme Court of New Hampshire overruled his exceptions on December 6, 1978. State v. Wentworth, 118 N.H. ___, 395 A.2d 858 (1978).5

Wentworth relied in the Supreme Court of New Hampshire on the decision (decided after his conviction) of the First Circuit in Dunn v. Perrin, 570 F.2d 21 (1st Cir.), cert. denied, 437 U.S. 910, 98 S.Ct. 3102, 57 L.Ed.2d 1141 (1978). The Court found the jury instruction distinguishable from that held invalid in Dunn, and further held that Dunn was erroneously decided, at least in part (395 A.2d at 860, 861, 862). However, the Court then went on to exercise its supervisory jurisdiction and to set forth a "Model Charge" on reasonable doubt for future use by the superior courts (395 A.2d 862, 863).

Petitioners Sands and Tsoumas were indicted by a Carroll County grand jury for the crime of perjury (RSA 641:16) in connection with statements made by them under oath concerning the "Forest Preservation Trust" and the identity of its trustee, "William Smith". Their trial concluded on December 13, 1978, and resulted in conviction. Inasmuch as Wentworth, supra, had been decided prior to the conclusion of their trial, the trial court largely adopted the "Model Charge" therein set forth.

Because the only issue raised by Sands and Tsoumas concerns the trial court's instructions to the jury on reasonable doubt, we permitted them to proceed directly in this court without requiring exhaustion of state avenues of appeal. See: Sarzen v. Gaughan, 489 F.2d 1076, 1082 (1st Cir. 1973).

I. C. 79-5, Wentworth

The charge on the reasonable doubt standard, to which Wentworth objects, is as follows:

Under our system of justice, which has been time-tested, not only in this nation but in England where we inherited our judicial system, 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, 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.'

Vol. II, Tr. pp. 101, 102. (Emphasis supplied.)

Petitioner herein argues that the language above emphasized worked an impermissible shift of the state's burden to prove him guilty of the offense charged beyond a reasonable doubt. Analysis of this contention in the context of a habeas petition requires resolution of two issues. First, did the inclusion in the jury charge of the "strong and abiding conviction" language constitute an error of constitutional magnitude? 28 U.S.C. § 2254(a); Grieco v. Meachum, 533 F.2d 713, 716 (1st Cir.), cert. denied sub nom. Cassesso v. Meachum, 429 U.S. 858, 97 S.Ct. 158, 50 L.Ed.2d 135 (1976). If we find such error to exist, we must then go on to consider whether it was "harmless" in light of the jury charge taken as a whole or in the face of the evidence of the petitioner's guilt. See generally: Vitello v. Gaughan, 544 F.2d 17, 18 (1st Cir. 1976), cert. denied, 431 U.S. 904, 97 S.Ct. 1696, 52 L.Ed.2d 388 (1977).

At the outset, we reject the suggestion of respondents that since Dunn v. Perrin, supra, was decided after Wentworth's conviction, the logic of that opinion is not here applicable. The concern of New Hampshire with regard to past reliance on ancient jury instructions, and its fears about the potentially adverse impact upon the administration of justice, are not here significantly implicated. See: Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977). Our determination that Dunn applies to the case at bar does not reach the question of whether its holdings bear upon cases, unlike the instant case, for which ordinary avenues of appeal have been exhausted. Cf., Hancock v. White, 378 F.2d 479 (1st Cir. 1967). Moreover, the New Hampshire Court itself chose to deal with Dunn's implications for this case without comment upon its retroactive application, which was also briefed before it.7

In rejecting the application of Dunn to the instant case, the New Hampshire Court stressed the fact that the Circuit had found three errors in the definition of reasonable doubt, but then went on to disagree with its conclusion that one of those errors which dealt with the "strong and abiding conviction" language was properly so classified. (395 A.2d at 861, 862.) With all due respect, we find this conclusion to be constitutionally impermissible.

In Dunn, the Court analyzed an instruction which stated:

It reasonable doubt does not mean a trivial or a frivolous or a fanciful doubt nor one which can be readily or easily explained away, but rather such a strong and abiding conviction as still remains after careful consideration of all the facts and arguments . . ..

Immediately after quoting the above language of the trial court, 570 F.2d at 23, 24, the Dunn court went on to state:

In United States v. Flannery, 451 F.2d 880, 883 (1st Cir. 1971), we condemned virtually that exact wording. Although the existence of other reversible error in Flannery made it unnecessary for us to resolve the constitutional implications of such a charge, we do so now. That definition of reasonable doubt was the exact inverse of what it should have been. See United States v. Magnano, 543 F.2d 431, 436 (2d Cir. 1976); Bernstein v. United States, 234 F.2d 475, 486 n. 8 (5th Cir. 1956). Instead of requiring the government to prove guilt, it called upon petitioners to establish doubt in the jurors' minds. That is an inescapable violation of In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1969).

570 F.2d at 24.

United States v. Flannery, 451 F.2d 880, was decided on November 12, 1971. Therein, Chief Judge Aldrich, speaking for a unanimous court, stated as follows:

We believe that in charging the jury, with respect to reasonable doubt, that `a reasonable doubt can be defined as a strong and abiding conviction that still remains after careful consideration of all the evidence,' the court must have misspoken itself. A reasonable doubt by definition means a doubt founded upon reason and not speculation, but it certainly does not require, as charged by the court, a `strong and abiding conviction.' This is the burden that is on the government. See United States v. Byrd, 2 Cir., 1965, 352 F.2d 570, 575; Commonwealth v. Webster, 1850, 5 Cush. (59 Mass.) 295, 320.

451 F.2d at 882-883.

In addition, on November 14, 1978, prior to the state court decision in the instant case, the First Circuit (Bownes, J., speaking for a unanimous court) again addressed the issue of burden of proof as to reasonable doubt and quoted with approval the language we have hereinabove set forth from Dunn. United States v. Harrigan, 586 F.2d 860, at 862 (1st Cir. 1978). We, therefore, find and rule that the instruction here challenged is virtually indistinguishable from, and therefore no less "clearly wrong" constitutionally than, the language considered in Dunn and Flannery. The respondents argue, however, that if such error exists, it either vanishes in the context of the jury charge...

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4 cases
  • Breest v. Perrin
    • United States
    • U.S. District Court — District of New Hampshire
    • August 22, 1980
    ...reasonable doubt. Id. at 25, quoting In re Winship, 397 U.S. 358, 359 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). See also Tsoumas v. New Hampshire, 472 F.Supp. 1134 (D.N.H. 1979) (as to petitioner Wentworth). Nevertheless, respondents argue that the holding in Dunn has no retroactive application......
  • Koski v. Samaha
    • United States
    • U.S. Court of Appeals — First Circuit
    • May 20, 1981
    ... ... Hampshire brings this appeal from the district court's grant of habeas corpus 1 to Norma A. Koski, freeing her from a state conviction for criminal trespass ...         New Hampshire has a two-tiered system for ... ...
  • Koski v. Samaha
    • United States
    • U.S. District Court — District of New Hampshire
    • June 23, 1980
    ...for the original complaint. State v. Green, 105 N.H. 260, 261, 197 A.2d 204, 205 (1964). As we noted in Tsoumas v. State of New Hampshire, 472 F.Supp. 1134, 1135 (D.N.H. 1979), aff'd, 611 F.2d 412 (1st Cir. 1980), approximately 1400 anti-nuclear demonstrators were arrested following the dem......
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    • United States
    • Appeals Court of Massachusetts
    • July 15, 1981
    ...247 (1980); State v. Dorsey, 118 N.H. 844, 395 A.2d 855 (1978), habeas corpus granted on other grounds sub nom. Tsoumas v. New Hampshire, 472 F.Supp. 1134 (D.N.H.1979). An essential element of the justification defenses, e. g., duress, necessity and aiding another, is that the actor reasona......

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