Wills v. State

CHARLES E. ORTH, Jr. Judge, Specially Assigned. I The administration of justice in Maryland recognizes three standards of proof to test the sufficiency of the ³⁷⁴ evidence. The lowest standard requires proof by a “preponderance” of the evidence; the highest standard demands proof “beyond a reasonable doubt;” an intermediate standard calls for proof that is “clear and convincing.” 1 We expect the trier of the facts to distinguish the subtle distinctions and nuances of a standard when called upon to apply it. But the terms “preponderance,” “clear and convincing” and “reasonable doubt” are not, at least in their legal sense, street familiar.

Therefore, when the trier of facts is a jury, some authoritative explanation of the applicable term is advisable. To that end we adopted what is now Md.Rule 4-325. Section (c) of the rule reads: The court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding____ The court need ³⁷⁵ not grant a requested instruction if the matter is fairly covered by instructions actually given. Thus the rule is generally permissive.

It becomes mandatory, however, when an instruction on the applicable law is requested by a party. But the mandatory aspect has a proviso—the requested instruction need not be given if the matter has been fairly covered. We are called upon on this appeal to examine the reasonable doubt standard through the eyes of the rule. 2 II A We have been taught by the Supreme Court of the United States that the reasonable doubt standard is constitutionally mandated by the due process clause of the Fourteenth Amendment to the Constitution of the United States, and is an indispensable component of every criminal proceeding. In re Winship, 397 U.S. 358, 361-364 , 90 S.Ct. 1068, 1071-1073 , 25 L.Ed.2d 368 (1970).

The reasonable doubt standard is firmly fixed today in our system of criminal justice. We declared in Lambert v. State, 193 Md. 551, 558 , 69 A.2d 461 (1949): It is a fundamental rule that the jury in a criminal case, before finding a verdict of guilty, must be satisfied of the guilt of the accused beyond a reasonable doubt. So the test for the sufficiency of the evidence in a criminal cause is ³⁷⁶ whether the evidence either shows directly or supports a rational inference of the facts to be proved, from which the trier of fact could be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged. See Wilson v. State, 261 Md 551, 564, 276 A.2d 214 (1971); Royal v. State, 236 Md. 443, 448-449 , 204 A.2d 500 (1964).

We have declared that because the standard is constitutionally mandated, it is within the ambit of Rule 4-325. See Williams v. State, 322 Md. 35, 42 , 585 A.2d 209 (1991); Lansdowne v. State, 287 Md. 232, 239 , 412 A.2d 88 (1980). Therefore, “a trial judge in a criminal case must give an instruction correctly explaining ‘reasonable doubt’ if requested by the accused,” Lansdowne at 243, 412 A.2d 88 . Its inclusion in the court’s charge is so indispensable that the Supreme Court has indicated that failure to instruct the jury of the requirement of the reasonable doubt standard is never harmless error.

Jackson v. Virginia, 443 U.S. 307, 320, n. 14 , 99 S.Ct. 2781 [2790 n. 14], 61 L.Ed.2d 560 , reh. denied, 444 U.S. 890 , 100 S.Ct. 195 , 62 L.Ed.2d 126 (1979). Montgomery v. State, 292 Md. 84, 93 , 437 A.2d 654 (1981). See Williams, 322 Md. at 42 , 585 A.2d 209 . The difficulty with the reasonable doubt standard is its nebulous nature.

See Charles E. Torcia, Wharton’s Criminal Evidence, § 14 (14th ed. 1985). Courts, legislatures, scholars, legal literati, and authors of academic literature have wrestled with the problem of defining the standard. None of them has been able to come up with a definition that is generally acceptable. “[S]ome of the courts have expressed the opinion that the English language is not adequate to give a specific definition of “reasonable doubt” that would simplify its meaning, for the rule requiring that the jury must be satisfied beyond a reasonable doubt is generally as simple and intelligible as a guide for the jury as any rule that could be formulated. Lambert, 193 Md. at 559 , 69 A.2d 461 . “In fact,” the Court continued, ³⁷⁷ it is recognized that the rule is quite frequently made obscure by attempts at definition, which serve to create doubts instead of removing them.

This danger of confusing the minds of the jurors in attempting to define “reasonable doubt” has prompted some of the trial judges to refuse to attempt to give any definition. Id. We opined, however, in Lansdowne, 287 Md. at 242 , 412 A.2d 88 : In our view, the term “reasonable doubt” is not so commonplace, simple, and clear that its meaning is self-evident to a jury. Even judges, who have “professional expertise” and “experience,” and who, by their “legal training, traditional approach to problems, and the very state of the art of [their] profession ... learn to perceive, distinguish and interpret the nuances of the law which are its ‘warp and woof,’ ” State v. Hutchinson, 260 Md. 227, 233 , 271 A.2d 641, 644 (1970), have difficulty construing the meaning of “reasonable doubt.” Indeed, in myriads of cases, trial judges have committed error by incorrectly explaining “reasonable doubt.” Some unskilled and untutored lay jurors are at least as likely as some judges to misconstrue the meaning of “reasonable doubt.” (Footnote omitted). “Consequently,” we concluded, “a correct explanation may well serve the useful function of enlightening rather than confusing a jury.” Id. 3 But we have made clear that there is not just one “satisfactory explanation of reasonable doubt and we decline to prescribe an instruction that will apply in every case.” Poole v. State, 295 Md. 167, 186 , 453 A.2d 1218 (1983), quoting Montgomery, 292 Md. at 95 , 437 A.2d 654 . ³⁷⁸ B Our predecessors have struggled to express a suitable explanation of the reasonable doubt standard.

In Lambert, 193 Md. at 560-561 , 69 A.2d 461 , the Court held: [I]t is not erroneous to instruct the jury that evidence is sufficient to remove a reasonable doubt when it convinces the judgment of an ordinarily prudent man of the truth of a proposition with such force that he would act upon that conviction without hesitation in his own most important affairs. Lansdowne, 287 Md. at 241-242 , 412 A.2d 88 , affirmed that an instruction similar to that given in Lambert “was a correct statement of the law which did not constitute error.” The Court explained, “It did not confuse the jury and was not prejudicial to the accused.” Id. at 242, 412 A.2d 88 . Montgomery, 292 Md. at 95 , 437 A.2d 654 , reaffirmed the sufficiency of the Lambert instruction. It observed, however, that in our opinion instructing a jury [as the judge did in that case] that reasonable doubt is a doubt which is founded upon reason without focusing their attention on the grave importance of their decision based on the evidence and their commitment to be bound by the result is a circular attempt at explanation which does nothing more than define the term by using the term.

Id. Such an explanation was not a proper instruction. Id. In Poole, 295 Md. 167 , 453 A.2d 1218 , the Court commented on the trial court’s instruction even though the point was not preserved for appeal.

The Court noted: In defining reasonable doubt, the [trial] court stated, in pertinent part, “It is such a doubt that would cause a reasonable person to hesitate to act in the graver or more important transactions of life.” (Emphasis supplied). Id. at 186 n. 4, 453 A.2d 1218 . The Court said: [Poole] seems to argue that the concept of the “without hesitation” requirement, as explicated in Lansdowne v. State, 287 Md. 232, 241 , 412 A.2d 88, 92-93 (1980), and ³⁷⁹ Montgomery v. State, 292 Md. 84, 95 , 437 A.2d 654, 659 (1981), was left out of the instructions here. Id. at 186 , 453 A.2d 1218 . “However,” the Court found it clear from its review of the records “that the factor of hesitation was given by the trial judge.” Id. “Moreover,” the Court observed, “as the State has aptly pointed out,” this Court recently held that there is not just one “satisfactory explanation of reasonable doubt and we decline to prescribe an instruction that will apply in every case.” 295 Md. at 186 , 453 A.2d 1218 , quoting Montgomery, 292 Md. at 95 , 437 A.2d 654 .

In Bowers v. State, 298 Md. 115 , 468 A.2d 101 (1983), the trial court defined reasonable doubt as “such doubt as would cause a reasonable person to hesitate to act in the graver or more important transactions of his life.” Id. at 157 , 468 A.2d 101 . The trial court continued: “Thus, if the evidence is of a character as to persuade you of the truth of the charges against the Defendant, with the same force that would be sufficient to persuade you to act in the more important transactions in your life then you would conclude the State has proven aggravating circumstances beyond a reasonable doubt. “If, on the other hand, you could not act based on that evidence in the more important transactions in your life, then you would conclude that the State had not met the burden of proof and therefore had not proven the aggravating circumstances.” Id. Defense counsel objected: Your Honor, you said that if they find evidence sufficient to act in the more important, on which they would act in the more important transactions of their life to find the Defendant guilty, I would ask you to insert the words “without hesitation and if they were to find evidence sufficient to act without hesitation in the more important transactions.” ³⁸⁰ Id. The judge thought that he had previously covered that when he said to the jury “if your doubt is such as would cause you to hesitate in the more important transactions in your life then you would conclude that the burden of proof had not been met.” Id.

Defense counsel acknowledged that the judge had indeed said that, “but,” counsel claimed I think the way I am asking you to say it is different and it conveys a different thought. Id. The judge replied, “You argue the hesitation point, but I think I have covered it in the instruction.” Id. On appeal Bowers claimed that the instruction “conveys not the reasonable doubt standard but rather the ‘preponderance of evidence’ standard.” Id. at 158 , 468 A.2d 101 .

This Court referred to Lambert in which the phrase “act without hesitation” was used, and to Holland v. United States, 348 U.S. 121 , 75 S.Ct. 127 , 99 L.Ed 150 (1954) in which the jury instruction used the words “would be willing to act.” 298 Md. at 158 , 468 A.2d 101 . We quoted the Supreme Court: “We think this section of the charge should have been in terms of the kind of doubt that would make a person hesitate to act, ... rather than the kind on which he would be willing to act.... 348 U.S. at 140 [ 75 S.Ct. at 138 ]....” 298 Md. at 159 , 468 A.2d 101 . We pointed out, however, that the Supreme Court explained, “we believe the instruction as given was not of the type that could mislead the jury into finding no reasonable doubt when in fact there was some. A definition of the doubt as something the jury would act upon would seem to create confusion rather than misapprehension. ‘Attempts to explain the term “reasonable doubt” do not usually result in making it any clearer to the minds of the jury,’ Miles v. United States, 103 U.S. 304, 312 , [ 26 L.Ed. 481 (1881),] and we feel that, taken as a whole, the instructions correctly conveyed the concept of reasonable doubt to the jury. 348 U.S. at 140 [ 75 S.Ct. at 138 ]....” 298 Md. at 159 , 468 A.2d 101 .

We noted that legions of our cases have held that when ³⁸¹ an objection is raised to a court’s instruction, attention should not be focused on a particular portion lifted out of context, but rather on the jury instruction as a whole. Id. The Court “perceived no error in the instruction here as a whole.” Id. In Collins v. State, 318 Md. 269 , 568 A.2d 1 , cert. denied, 497 U.S. 1032 , 110 S.Ct 3296 , 111 L.Ed.2d 805 (1990), the trial judge, as part of his instruction on reasonable doubt said: All that is necessary is that the State prove guilt beyond a reasonable doubt, beyond a doubt based on reason.

In other words, you must be reasonably certain of the guilt of the accused in order to convict. You can have some doubt and still have the finding of guilt. The proof necessary is that which you would act upon in important matters involving important affairs in your own personal lives or businesses. Id. at 283 , 568 A.2d 1 .

Defense counsel objected to the instruction. The court then reinstructed the jury: Also in the burden of proof that the State must meet ... is proof beyond a reasonable doubt and to a moral certainty. You must be satisfied to that extent as to each element of the various charges. Before us, Collins’ attorney maintained that the phrase “reasonably certain” was misleading and significantly lowered the burden of proof.

Allegedly, it conveyed “a confusing message as to a vital component of every criminal trial.” Id. This Court referred to Poole, Lambert, Lansdowne and Montgomery. The Court indicated that the instruction considered in its entirety was not erroneous: In reviewing the instructions given as a whole in the instant case, including the reinstruction, we find that the trial judge repeatedly and properly focused on the term “reasonable doubt” as the appropriate standard of proof required. The court’s reinstruction emphasized that the ³⁸² State must prove each and every element of the case beyond a reasonable doubt.

Id. at 284 , 568 A.2d 1 . But, it made no express rule as to the propriety of the instruction. It observed: Counsel’s failure to except to the reinstruction is indicative of an acceptance and approval of the amended form used. Under these circumstances, defense counsel has failed to preserve the challenge to the court’s instructions on reasonable doubt.

Id. at 284-285 , 568 A.2d 1 . Williams, 322 Md. 35 , 585 A.2d 209 , was primarily concerned with presumption of innocence. We held that the refusal of the trial judge to give an instruction on that principle when requested was erroneous under Rule 4-325(c) and that, in the circumstances, the error was not harmless. We coupled an instruction on the presumption of innocence, however, with an instruction on reasonable doubt.

We recalled that we said in Montgomery, 292 Md. at 95 , 437 A.2d 654 , that reasonable doubt cannot be defined by itself and must be explained to the jury in a manner indicating the degree of gravity with which the decision making process should be endowed. 322 Md. at 44 , 585 A.2d 209 . We observed in Williams, id., that the close alliance between the reasonable doubt principle and the presumption of innocence principle clearly indicates that the latter would aid in explaining the former. Our opinions reflect an appreciation that the reasonable doubt standard is difficult to explain. But when the opinions are stirred together and alembicated, the essence of the standard is left and some guidelines emerge.

We extract the guidelines. Our opinions have refrained from adopting a boiler plate explanation of reasonable doubt, but when an explanation is given to the jury, whether at the instance of the judge or at the request of a party, it must be such as does not tend to confuse, mislead or prejudice the accused. It is better that the explanation begin with a statement of ³⁸³ the principle of presumption of innocence which places the burden of proof on the State, where it remains throughout the trial. The State is not required to prove guilt beyond all possible doubt or to a mathematical certainty, but it is not enough if the evidence shows that the defendant is probably guilty.

Nor is it sufficient that reasonable doubt is defined only by its own terms. The explanation should focus on the term “reasonable doubt,” so as to bring home to the jury clearly that the corpus delicti of the crime and the criminal agency of the accused must be proved beyond a reasonable doubt. As we have seen, for almost half a century, we have maintained that an instruction which contained the phrase “without hesitation” was not erroneous. It seems, however, that in practical application at a trial, the words “without hesitation” or “hesitate to act” may tend to confuse the jury more than afford them an understandable explanation of the true reasonable doubt standard.

The fourteen members of the Committee which fashioned the Maryland Pattern Jury Instructions—Criminal 1991 (MPJI-CR) consisted of judges at the trial and appellate level, prosecutors and former prosecutors, defense attorneys, law professors and other distinguished members of the Maryland bar. The instruction on reasonable doubt which the Committee endorsed, MPJI-CR 2:02, begins with a suggested instruction on presumption of innocence. Then, after pointing out that “the State is not required to prove guilt beyond all possible doubt or to a mathematical certainty,” it states: A reasonable doubt is a doubt founded upon reason. It is not a fanciful doubt, a whimsical doubt or a capricious doubt.

Proof beyond a reasonable doubt requires such proof as would convince you of the truth of a fact to the extent that you would be willing to act upon such belief without reservation in an important matter in your own business or personal affairs. However, if you are not satisfied of the defendant’s guilt to that extent, then ³⁸⁴ reasonable doubt exists and the defendant must be found not guilty. (Emphasis added). The Committee made this comment: This instruction replaces the traditional “without hesitation” phrase with the phrase “without