Winegeart v. State, CR-344

• Decision Date: 24 May 1996
• Docket Number: CR-344
• Citation: 665 N.E.2d 893
• Parties: Steve WINEGEART, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. 20504-9503-
• Court: Indiana Supreme Court

Page 893

665 N.E.2d 893

Steve WINEGEART, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

20504-9503-CR-344.

Supreme Court of Indiana.

May 24, 1996.

Brent Westerfeld, Indianapolis, for Appellant.

Pamela Carter, Attorney General, Jodi Kathryn Rowe, Deputy Attorney General, Indianapolis, for Appellee.

ON PETITION TO TRANSFER

DICKSON, Justice.

How to instruct juries regarding reasonable doubt has long been a subject on which courts, individual judges, and lawyers have taken differing approaches. Today we seek not only to resolve conflicting opinions among different panels of the Court of Appeals but also to foster the improved wording of instructions so that we may achieve greater juror understanding and better application of the rudimentary principle of proof beyond a reasonable doubt.

Following a jury trial, defendant-appellant Steve Winegeart was convicted of the crime of burglary, a class B felony. Relying primarily on Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) (per curiam), the Court of Appeals reversed and remanded for a new trial, finding that the "moral certainty" language in the trial court's reasonable-doubt instruction may have permitted the jury "to find the defendant guilty based upon a degree of proof below the 'beyond a reasonable doubt' standard ... required by the Due Process Clause." Winegeart v. State, 644 N.E.2d 180, 183 (Ind.Ct.App.1994). In other Court of Appeals opinions reviewing identical or substantively identical "moral certainty" instructions, this holding has met alternatively with approval, Tobias v. State, 659 N.E.2d 246 (Ind.Ct.App.1995), and with disagreement, Malone v. State, 660 N.E.2d 619 (Ind.Ct.App.1996); Jackson v. State, 657 N.E.2d 131 (Ind.Ct.App.1995). To resolve this conflict, we grant the State's Petition to Transfer.

In his appeal from the conviction, the defendant contends that the trial court erred in instructing the jury regarding reasonable doubt and specific intent. Because the Court of Appeals granted relief on the defendant's claim as to his reasonable-doubt instruction, it did not address the second claim. We shall address each separately.

Reasonable-Doubt Instruction

The defendant asserts that the following instruction, which used the words "actual," "fair," and "moral certainty," permitted the jury to find guilt based upon a degree of proof below that required by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. After stating that the burden is upon the State to prove guilt beyond a reasonable doubt, the challenged instruction explained:

A reasonable doubt is such doubt as you may have in your mind when having fairly considered all of the evidence, you do not feel satisfied to a moral certainty of the guilt of the defendant. A reasonable doubt is a fair, actual and logical doubt that arises in the mind as an impartial consideration of all the evidence and the circumstances in the case. It is not every doubt, however, it is a reasonable one. You are not warranted in considering as reasonable those doubts that may be merely speculative or products of the imagination, and you may not act upon mere whim, guess or surmise or upon the mere possibility of guilt. A reasonable doubt arises, or exists in the mind, naturally, as a result of the evidence or the lack of evidence. There is nothing in this that is mysterious or fanciful. It does not contemplate absolute or mathematical certainty. Despite every precaution that may be taken to prevent it, there may be in all matters depending upon human testimony for proof, a mere possibility of error.

If, after considering all of the evidence, you have reached such a firm belief in the guilt of the defendant that you would feel safe to act upon that belief, without hesitation, in a matter of the highest concern and importance to you, then you have reached that degree of certainty which excludes reasonable doubt and authorizes conviction.

This rule on reasonable doubt applies to each of you individually, and it is your personal duty to refuse to convict as long as you have a reasonable doubt as to the defendant's guilt as charged. Likewise, it is your personal duty to vote for conviction as long as you are convinced beyond a reasonable doubt of the defendant's guilt as charged.

Record at 56-57.

The defendant did not make a timely objection to this instruction. Alleged errors in the giving of instructions are not available on appeal unless proper specific objections are made at trial. Ind.Crim.Rule 8(B). However, a trial error may be deemed "fundamental" so as to avoid procedural default if it is a "substantial blatant violation of basic principles" that renders a trial unfair to a defendant. Townsend v. State, 632 N.E.2d 727, 730 (Ind.1994).

In determining whether a claimed error denies the defendant a fair trial, we consider whether the resulting harm or potential for harm is substantial. The element of harm is not shown by the fact that a defendant was ultimately convicted; rather, it depends upon whether his right to a fair trial was detrimentally affected by the denial of procedural opportunities for the ascertainment of truth to which he otherwise would have been entitled.

Id. We have recently stated that, for a mistake to constitute fundamental error, "it must be so prejudicial to the rights of a defendant as to make a fair trial impossible." Barany v. State, 658 N.E.2d 60, 64 (Ind.1995).

Winegeart contends that the giving of the reasonable-doubt instruction blatantly violated constitutional principles and deprived his jury trial of fairness. He asserts that in the reasonable-doubt instruction used in his jury trial, the words "actual" and "fair" expand the quantum of doubt needed to constitute "reasonable" doubt, and that the instruction refers to "moral certainty" instead of "evidentiary certainty," thus authorizing the jury to find guilt based on a degree of proof below that required by the Due Process Clause.

The Due Process Clause of the Fourteenth Amendment protects an accused "against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970). Because of the transcending interest a criminal defendant has in his liberty, the risk of an erroneous conviction necessitates that a substantial burden of proof be placed upon the prosecution. See Speiser v. Randall, 357 U.S. 513, 525-26, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460, 1472-73 (1958). The standard of proof beyond a reasonable doubt serves to impress upon the fact-finder "the need to reach a subjective state of near certitude of the guilt of the accused." Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560, 571 (1979). While the federal constitution requires that juries be instructed "on the necessity that the defendant's guilt be proven beyond a reasonable doubt," it does not require the use of "any particular form of words." Victor v. Nebraska, 511 U.S. 1, ----, 114 S.Ct. 1239, 1243, 127 L.Ed.2d 583, 590 (1994). However, the jury instructions, taken as a whole, must correctly express "the concept of reasonable doubt to the jury." Id.

In Cage, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339, a reasonable-doubt instruction was determined to be constitutionally defective. In defining reasonable doubt, the instruction included language that equated reasonable doubt with "a grave uncertainty" and "an actual substantial doubt" and stated, "What is required is not an absolute or mathematical certainty, but a moral certainty." Id. at 40, 111 S.Ct. at 329, 112 L.Ed.2d at 342. The Court found that the words "substantial" and "grave" suggested a "higher degree of doubt than is required for acquittal under the reasonable-doubt standard," and that these statements, together with the reference to "moral certainty," rather than "evidentiary certainty," permitted a finding of guilt based upon a degree of proof below that required by the Due Process Clause. Id. at 41, 111 S.Ct. at 329-30, 112 L.Ed.2d at 342.

These principles were discussed and applied by the United States Supreme Court in the recent companion cases of Victor v. Nebraska and Sandoval v. California, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994), which approved reasonable-doubt instructions that included phrases such as "to a moral certainty," and "actual and substantial doubt." See Victor, 511 U.S. at ----, ----, ----, 114 S.Ct. at 1244, 1249, ----, 127 L.Ed.2d at 597, 600, ----. In both of the instructions approved in Victor and Sandoval, the moral certainty language appeared in very similar sentences, which stated that reasonable doubt occurs when, after "consideration of all the evidence," the juror does not have "an abiding conviction, to a moral certainty" of the guilt of the accused. Victor, 511 U.S. at ----, ----, 114 S.Ct. at 1244, 1249, 127 L.Ed.2d at 592, 598. In this context, the Supreme Court explained that "the reference to moral certainty, in conjunction with the abiding conviction language," sufficiently emphasized "the need to reach a subjective state of near certitude of the guilt of the accused." Id. at ----, 114 S.Ct. at 1247, 127 L.Ed.2d at 596. The Victor court also distinguished its "moral certainty" instructions from the one in Cage, noting that "the problem in Cage was that the rest of the instruction provided insufficient context to lend meaning to the phrase." Victor, 511 U.S. at ----, 114 S.Ct. at 1250, 127 L.Ed.2d at 596. The Court noted, "Instructing the jurors that they must have an abiding conviction of the defendant's guilt does much to alleviate any concerns that the phrase moral certainty might be misunderstood in the abstract." Id. at ----, 114 S.Ct. at 1250, 127 L.Ed.2d at 600. Although clearly stating that the Justices "do not condone" and "do not countenance" the inclusion of the phrase moral certainty in...