Tsoumas v. State of N. H.

• Decision Date: 04 January 1980
• Docket Number: No. 79-1333,79-1333
• Citation: 611 F.2d 412
• Parties: Thomas A. TSOUMAS and David A. Sands, Plaintiffs, Appellants, v. The STATE OF NEW HAMPSHIRE, Attorney General of the State of New Hampshire, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 412

611 F.2d 412

Thomas A. TSOUMAS and David A. Sands, Plaintiffs, Appellants, v. The STATE OF NEW HAMPSHIRE, Attorney General of the State of New Hampshire, Defendants, Appellees.

No. 79-1333.

United States Court of Appeals First Circuit.

Argued Nov. 8, 1979.

Decided Jan. 4, 1980.

David J. Killkelley, Laconia, N. H., and Stanley M. Brown, Manchester, N. H., with whom Nighswander, Lord, Martin & Killkelley, Laconia, N. H., and Brown & Nixon, Manchester, N. H., were on brief, for plaintiffs, appellants.

Andrew R. Grainger, Asst. Atty. Gen., Concord, N. H., with whom Thomas D. Rath, Atty. Gen., Concord, N. H., was on brief, for defendants, appellees.

Before CAMPBELL, Circuit Judge, WYZANSKI, ^* Senior District Judge, and CLARKE, ^** District Judge.

LEVIN H. CAMPBELL, Circuit Judge.

Defendants appeal from the denial of their petitions for habeas corpus. Defendants, who were both convicted of perjury after a consolidated jury trial in a New Hampshire state court, argue the court committed reversible error in its instruction to the jury defining reasonable doubt.

Defendants attack the last two sentences, especially the italicized language, of the following portion of the charge. ¹

"A reasonable doubt, members of the Jury, is just what the words would ordinarily imply. The use of the word reasonable means simply that the doubt must be reasonable, rather than unreasonable; it must be a doubt based on reason. It is not a frivolous or fanciful doubt, Nor is it one that can easily be explained away. Rather, members of the Jury, it is such a doubt, that is reasonable doubt, based upon reason as remains after consideration of all the evidence that the State has offered against it."

This instruction mirrored the language of the model charge on reasonable doubt which the New Hampshire Supreme Court announced in State v. Wentworth, 395 A.2d 858, 863 (N.H.1978.) ²

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), we said that the definition of reasonable doubt as doubt which is reasonable has been upheld by numerous courts, Id., 23 n. 2, and we can here see nothing objectionable in telling a jury that a reasonable doubt is one which is reasonable rather than unreasonable. Such is implicit in the term reasonable doubt. Similarly we see no error in the frivolous or fanciful language, for that which is frivolous or fanciful is not reasonable. Nor, contrary to defendants' contentions, do we think it is reversible error to instruct a jury that a reasonable doubt is not "one that can easily be explained away." Virtually identical language was contained in the charge considered in Dunn v. Perrin, ³ and although this court disapproved major portions of the language on reasonable doubt, it did not mention that language as being in any way objectionable.

Defendants view the italicized language as a requirement that a reasonable doubt be difficult to explain away, an instruction more egregious than that condemned in Dunn explaining reasonable doubt as one "for the existence of which a reasonable person can give or suggest a good and sufficient reason." Id., 23. Defendants' analysis is incorrect. By stating that a reasonable doubt is neither a frivolous one nor one that can be easily explained away the court did not tell that jury, as defendants assume, that a reasonable doubt must be either a substantial one or one that is difficult to negate; rather, it merely delineated, at one end of the spectrum, what a reasonable doubt is not.

Defendants argue the charge subjected them to conviction on less than proof beyond a reasonable doubt because the charge "tells the jury that a doubt which an individual juror might consider to be reasonable is not such if it 'can easily be explained away.' " Thus, defendants contend, the juror who himself cannot easily explain away his doubt may yet vote for conviction because he is not sure but that someone might be able to explain it away easily. Defendants point out that under In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970), a factfinder is supposed to reach a "Subjective state of certitude of the facts in issue" before voting for conviction. (Emphasis added.) By stating that a reasonable doubt is not one that can easily be explained away, rather than one the juror himself can easily explain away, the court unconstitutionally substituted an objective standard for a subjective one, defendants maintain. Defendants seem to us to be grasping at straws. We do not believe that the fair import of the challenged language is an invitation to a juror whose doubt has not been easily explained away to his subjective satisfaction during the deliberation process to engage in an abstract calculation...