Proctor v. United States

PROCTOR, Appellant, Marshall STATES, Appellee.

UNITED

No. 93-CF-739. Appeals.

District Court of Columbia

Argued Sept.

Decided Nov. DC, Greenlee, Washington, Public

Richard Service, Klein with whom James Defender Franklin, Gretchen Public Defender Ser- brief, vice, appellant. were on the for Chaturvedi, DC, Anjali Washington, Assis- Attorney, with whom Eric tant United States Holder, Jr., Attorney, and H. United States Ehlers, Assis- R. Fisher and Mark J. John Attorneys, on the tant United States were brief, appellee. FERREN, SCHWELB, and

Before FARRELL, Judges. Associate FARRELL, Judge: Associate two appellant guilty on A found sodomy enticing a minor and counts each (D.C.Code 22-3501(b), §§ -3502 on a minor (1989)), taking indecent and six counts 22-3501(a)). (id., § All a minor liberties with alleged com- to have been of the acts were victim, seven-year-old on the mitted same L.B., of 1992. September and December sufficiency appellant appeal, On contests the supporting sodomy con- evidence victions, in the com- claims reversible error changes which the bined effect two doubt instruc- made tion, assigns in the conduct other errors Finding two merit the first of the trial. contentions, we reverse. girl” day,

I. had done so. The next when asked again, told her that man she mother had appellant way L.B. first met on her to given gum. her the him She described to day school Septem- on the first of school in her stepfather, including mother and her ber giving away candy when was he to fact limp,”1 that he “walked with a and told King children in front of Martin Luther Ele- them about the assaults. mentary L.B. over appellant School. went to him, gum and received some bubble from and hearing description After of the man gum also day. received from him the next her, stepfather who assaulted took L.B. month, That way same she was to apartment. to appellant’s Appel- downstairs morning appellant school one stopped when child, knowing lant denied and on go her and to Thinking asked her with him. way apartment back their L.B. told her candy he again, would her she followed stepfather appellant was not her attack- him a budding to the rear of near the school. that, though er. L.B. testified she had rec- stairwell, they After appellant went down a ognized appellant day man who pull told pants, her down her which she repeatedly, had assaulted she lied to her did, pulled pants. and he down own his He afraid, stepfather ap- she because was since penis against then vagina rubbed his her and pellant had warned her not tell and threat- vagina finger. touched her with his He told away” ened take “far if her she did. “put her to penis” [her] mouth on his and to place penis; complied her hand on his she On December child’s mother with both demands. When these acts were saw appellant apartment braiding at their gave gum. done he her some bubble and noticed he fit description L.B. given had girl her attacker. She took the Appellant repeated these acts another appellant’s apartment downstairs and morning place, in the same and “the same asked her to tell her if the man Proctor was thing” happened also several times later af- seeing who had her. him assaulted On L.B. Confirming ter testimony school. L.B.’s sure, replied yes, and when asked she was meetings of her appellant some made again appellant as identified her attacker. school, her late for attendance records Sep- showed that she was late for school on showup L.B. later made identification of 22,1992. tember 11 and September appellant, again and identified him court place The final acts took December police as her assailant. When detective appellant when L.B. saw after school and he neighborhood, point- took her around the she told her to they come with him. This time ed out the appellant locations where had steps went down some and entered front candy they assaulted her and a store had building door of the behind which the earlier gone to after some of the assaults. There, testified, acts had occurred. the child appellant “pulled pants pulled down his and I II. put my put my down mine. He told me to — it, penis

mouth put on his and touch and he Appellant guilty was found of two counts of penis against my his it vagina and —rubbed September sodomy, one in one De- there, put he gave his hands too.” He then cember of 1992. As the trial instruct- gum. her stick bubble jury, charges ed the “both relate to [those] returning

When L.B. late allegation placed home from the that the defendant his day, penis school complaining that December her mother went in the mouth of the wit- looking Appellant her. She located the child walk- ness.” contends evidence was ing support towards home asked her where she convictions insufficient these be- had placed been. L.B. told her she had been at cause it failed to establish that he his L.B., finishing penis school work. her When her mother mouth and so did not gum, penetration required by asked about the the child stated that a show the then- her, given to existing agree. teacher had then that “a little crime. We appellant very limp.” 1. Police officers walked testified that with “a obvious denied, statute, 393 U.S. time of 658 cert. sodomy at the (where evi conduct, part as stated in relevant appellant’s only “told to that victim was follows: dence showed ” [penis],’ proof of my mouth on his (a) ‘put Every person who shall be convicted insufficient); Angier, People sodomy was organ ... placing her sexual (1941) 417, 659, Cal.App.2d P.2d any person ... the mouth ... of other $1,000 pen (kissing [if shall be fined not more than or not sufficient evidence of person etration). case, then, a having committed such act with this there must imprisoned a age for 16] under the be penis “pass[ed] the have evidence that been period exceeding years. victim, not even through” lips the into or

(b) statutory requirement of a Any slightly, is or the penetration, slight, however specified complete to crime ... in the mouth” not met. “placing sufficient the in this section. Proof of emission shall acts, September describing necessary. however, “put only that she L.B. testified § adde (emphasis 22-3502 D.C.Code penis.” She described the mouth on his [her] d).2 Therefore, judge as the told way through December incident in the same jury (elucidating earlier-quoted his state penis, leading questions: appellant’s saw she ment), prove government “that the had agreed “put that she mouth there.” [her] and penis placed defendant into the mouth prosecutor questions no The asked further added). complaining (emphasis witness” clarifying point, did not ask the child course, “any explained Of also that at all the contact between her demonstrate penetration, slight,” enough to however is Walker, v. penis. mouth and the State Cf. requirement “[proof] meet and that that 117, (1992) (complain 252 Kan. 843 P.2d ejaculation required.” is not But while the pe of how ant made in-court demonstration “slight penetration” requirement is unde “[j]ust lips, right saying nis her touched States, manding, see Barrera v. United pointing; there” and since record was “de (D.C.1991) (on appellate 4n. [by amplification of her defense] void review, “any tending evidence to show demonstration,” court could not exclude rea slightest penetration re ... is sufficient to by jury penis pen sonable inference quire judgment of a denial motion Ups). Though agree with etrated victim’s acquittal”), differentiating it fea remains a anatomically legal government, both sodomy punished ture between and crimes to, ly, Ups constitute the entrance “[t]he severely taking less such as indecent libert of, mouth,” id., part a 843 P.2d at and are use, ordinary pene ies.3 In “to verb instruction),4 no (quoting stiU there was pass through.” into trate” means “to or could reason evidence from which DIC WEBSTER’S NEW INTERNATIONAL THIRD ably appeUant’s find that the contact with Decisional law reflects TIONARY enough pressure penis had been made with that, slight meaning by providing this while part, sUghtly, Ups the child’s even to cause enough, touching is does penetration “a mere in”) (a amounting entry “placing into an 70A Am. not make out the offense.” 2d Jur. (1987). See, argument government’s Sodomy Ashby § the mouth. e.g., Commonwealth, that, given to the assertion 208 Va. 158 S.E.2d thus comes down (D.C.1990). pen- repealed May § 581 A.2d 2. D.C.Code 22-3502 was 1994,” 1995, by requirement inapplicable Abuse Act "Anti-Sexual is to cunnilin- etration seq. §§ 22-4101 et D.C. Law D.C.Code sodomy genitalia. gus Id. oral on a woman's or act, "sodomy” no 10-257. Under the new is offense; rather, longer "sexual abuse" is an rape knowl- context of or carnal 4.In the related involving participation prohibited crime "[e]ntry edge, is of the anterior it well settled force, threats, involving drugs or "sexual act” organ, genital as the vulva known of the female Id. act” is as lack of consent. including "Sexual defined labia, penetration is not ... sufficient "[c]ontact between the mouth and vagina penetrat- necessary ed_” itself be 22-4101(8)(B). penis." § D.C.Code Torcía, Charles E. 3 Wharton’s Criminal pertains precisely, of sod- 3. More to "forms (15th ed.1995). § at 17-18 Law omy involving penis.” Roundtree United cylindrical object penis shaft, any contrast, like the The standard contact oral between it and the mouth infer- states follows: ably lips open. would have caused the doubt, implies, Reasonable name That seems to us a matter of surmise and not reason, a doubt based on a doubt for which beyond a rational inference a reasonable you a reason. It is such a doubt doubt from fact alone the victim juror, as would cause after careful and placed lips her “on” penis.5 The evidence impartial candid and all consideration of was insufficient to sustain appellant’s evidence, convic- to be so undecided that he sodomy.6 Ashby tions for say v. Common- she cannot that he or she wealth, supra. abiding guilt. conviction of the defendant’s

It is such a doubt as would cause a rea- person pause sonable hesitate III. graver important or more transactions in In respects, two material the trial However, doubt, it is not fanciful a life. judge altered the standard instruction doubt, nor a whimsical nor a doubt based on in jurisdiction. Ap reasonable doubt this conjecture. on It is a doubt which is based that, pellant argues under recent of decisions on reason. changes these combined were re Jury Cbiminal Instructions FOR the Dis- agree. versible error. We (4th ed.1993) Columbia, No. 2.09 of trict judge’s added) (hereafter “Redbook”).7 instruction on reasonable (emphasis doubt was as follows: apparent, As is deviated from the ways. Redbook in instruction two material doubt, Reasonable name implies, is phrase “abiding For the conviction” he sub- a on doubt based It is reason. a doubt for abiding stituted “an deep-seated or belief.” you a It reason. is such a defining And he deleted sentence reason- juror doubt as would cause a after careful able doubt as a a “such doubt as would cause impartial and candid and of consideration person pause or hesitate in the of all evidence be so that undecided graver important or more transactions or say they he she cannot that an have Appellant objected life.” to the substitution abiding deep-seated or of the defen- belief but not the deletion. guilt. dant’s doubt Reasonable is not a doubt, States,

fanciful nor a based on doubt fanta- In Foreman v. United A.2d sy, (D.C.1993), nor a doubt based on a “disapproved” whimsical we of a trial doubt, whim, or ‘belief,’ nor a doubt based on of “use ... the word even ” conjecture guesswork. It adjective] rooted,’ is a by ‘deep doubt intensified [the [Emphasis which is based on reason. add- as a substitute for an conviction.” ed.] potential We concluded ambiguity “[t]he Thus, Pettijohn, (Mo.App. 5.In State v. proposition— 541 S.W.2d 74 we need not consider 1976) by government, police cited officer proof which would render the even more insuffi- asleep testified that he saw the defendant in a car only proof cient here—that insertion "the of of “penis pants girl with his of out and a little glans organ" opening virile end into the penis.” "[V]ig- her mouth on his Id. at 75. enough satisfy penetration requirement, questioning by attorneys orous" "could not proof “nibbling" so that even on the defen- ” clarify the testimony officer’s as to what ‘on’ penis by dant's have the victim would been insuf- meant in those Id. circumstances. While there State, 207, Ga.App. ficient. v. Rozar fore there total was "a lack of direct evidence” of (1956). S.E.2d Jenkins, penetration, State v. 733 S.W.2d (Mo.App.1987) Pettijohn), (discussing there fourth edition the standard instruc- nonetheless was evidence that the child en had significantly does not from tions differ the third gaged sodomy in oral with the defendant while occasion, at the edition existence time trial. asleep whiskey he was another petroleum Butler United jelly A.2d 334 n. arid were found car on (D.C.1994), denied, - U.S. -, present occasion. cert. 115 S.Ct. these circumstances Pettijohn gave court found that the evidence "rise penetration to an had occurred.” inference 541 S.W.2d at 76. No such evi circumstantial dence was in this offered case. constitutionally deficient room for the instruction leaves too much change and, objection made error, other has been especially combined with at least where shortcoming [given],” be- appel must reverse intensified, “belief,” “may however holding cause conviction.” Id.8 lant’s certainty of the convey less confidence of the standard sentence judge’s omission fact than ‘convic- [the word] existence improper but did not create constitu “was Foreman, tion.’” Id. at 794. At issue in partic tionally deficient instruction under however, was whether that substitution con- case,” at 337 of this id. ular circumstances “plain had error” since defendant stituted (footnote omitted), we relied on three factors. object change. acknowl- failed We omission, First, in the defect os Louisiana, that, edged under Sullivan likely prejudicial “less struction was 2078, 124 L.Ed.2d 182 113 S.Ct. of the misstatement [an affirmative] than doubt in- “some defective reasonable (citation omitted). Second, law.” Id. at 338 error, plain since structions would constitute case, necessary in this as it had it was not kind undermines a ‘structural error’ Foreman, court to been ‘reliability]’ integrity and hence doubt definition “save” the reasonable Foreman, 633 at 796 criminal trial.” using the clause omitted here. definitional Foreman) (quot- alteration in (emphasis and in this case contained no The instruction Sullivan, ing 508 U.S. at 113 S.Ct. at phrases of or other improper substitutions 2082). judge’s single But “the we held that clari- infirmities that definitional clause modification of the instruction did not work a fying helped would have reasonable doubt in defeet[ ] ‘structural the constitution cure. deprive appellant of trial mechanism’ and so Third, relatedly, Id. was not left “[t]he right jury...Id. to trial at 797 ‘[t]he definition of term without workable Sullivan, 281, (quoting at 508 U.S. 113 S.Ct. instruction doubt]” because the [reasonable Foreman). 2082) (citations in at omitted given features of the preserved two other case, mentioned, present appellant as instruction, including explication of standard objected “abiding deep-seated or be- that a reasonable doubt such indecision lief’ instruction. firmly juror say he [or she] “cannot that 7, supra In Butler v. United note (em- guilt.” Id. Defendant’s convinced of the later, year objected decided the defendant ).9 added; in phasis alterations Butler deletion, case, of as in this points out Foreman government The that explaining a doubt as sentence “deep of did not hold that the substitution person one “would cause that a reasonable rooted belief’ for conviction” graver in pause hesitate more true, That is since con reversible error. important life.” transactions in 646 A.2d at chal in the instruction was text which Relying Supreme 334. and the Sullivan that de lenged unobjected-to error —made intervening in v. Court’s decision Ne Victor — unnecessary. left But our discussion cision braska, 1239, 511 114 S.Ct. 127 U.S. judge can asserting that a little room for expressed 583 the con L.Ed.2d we objection substituting “belief’ for override trolling principle as has been “whether there We ex and avoid reversal. “conviction” misdescription proof,’ ‘a the burden agreement v. pressed with United States producing a that ‘reasonable likelihood’ Merlos, F.2d U.S.App. D.C. jury understood the instructions to allow con (1993) (Merlos I), in Circuit Court proof than viction based on lesser standard Butler, error beyond found constitutional a reasonable doubt.” omitted). (citations so, replaced “abiding conviction” with If “then that A.2d at 334 dicta, Foreman, event, said, approved as the necessary we had we Reversal conviction,” misdescription” "abiding equivalent such there is no legitimate because "absent all, at "with such misde- employed constitutional error but phrase "firmly in the Fed- convinced" per scription, error.” 646 there is se reversible Jury Instructions. Pattern Criminal eral (analyzing accompanying at 337 7 & text n. at A.2d 794-95. Sullivan). Victor and belief’; “strong noted subsequent reversing, we holdings we adhere to the our history of that past ease in which the after decisions. from the because, in not needed to “save” the overall instruction 1250), we found judge’s single standing reasonable (quoting versal. ing context of firmed this that we require reversal at deletion able additional plain error in trial. reversed itself (citing objected to U.S.App. curiam)). Moreover, holding ana “ value of ‘a doubt] appellant objected eommonsense benchmark’ for under Foreman, the ease of a co-defendant who had conveyed Id. at 797 (emphasis the error Victor, United States very D.C. weakening the same understanding critical instruction” did not warrant re objected-to omitted here. After “misstatement in light Foreman, modification “hesitate change, no constitutional error our 633 A.2d at 794 & n. 4 originally least part, 996 F.2d “prescribed doubt,” understanding of the 'definition would of Sullivan v. Louisi even and ordered a new that definition was at error. Butler con we held that “the when faced with a the less demand pause” 646 A.2d at 336 to be of the [reason Loriano, reviewing added). present definitionf the law” to definition harmless, stressing case. With only (per at ]” ual trial time in the has been definition of reasonable doubt. Other such cases the author of remaining charges against appellant must therefore be retried.11 whether fit of tional those cases had announced a new constitu 107 S.Ct. us”),10 it does not matter that this case was viction”). tried before review for judge responding replacement of “conviction” with “belief’ cipal seated this case: objection preserved. Moreover, appellant ^[*] it. defect in the rule, appellant may remaining belief is confronted judges to the standard Redbook The the error was Griffith Since objected-to Hi be past Foreman and Butler. Even government only concedes synonymous in appellant few remarks are those opinion. ^[*] that he the with changes by Kentucky, would receive the bene years preserved error pipeline. ^[*] identified the “plain” This is thought where this court (hence he 479 U.S. ^[*] half we consider abiding objected That fact or “obvio “a suggests since mooting individ- error only fourth 4s deep- prin con (the together

Foreman and Butler dictate that raises a question superviso- critical about the changes ry combined standard defini- role of In this court. course of dissent, tion here created “a ‘reasonable Judge likelihood’ that “[appel- Schwelb states jury that the judges understood instructions to late ought not [to] substitute their allow prejudices jury conviction based on a lesser regarding standard instructions or proof beyond than a reasonable apt phraseology doubt.” their notions of expe- for the Butler, Judge 646 A.2d at 334. Schwelb rience of in judges trial such matters.” Post dismisses much of language Yunis, in at 744 (quoting those deci- United States v. 288 dictum, as foregoing analysis 129, 139, 1086, sions but U.S.App. D.C. 924 F.2d (1991)). observation, demonstrates that drain we would them of general As a is their if indisputable. true, substance we affirmed these Judge convic- It also is Butler, particular, applied states, tions. Schwelb Su- that “the re- Constitution preme analysis Court’s Judge quires conformity in Victor which any prescribed no ... ” says Schwelb controls “a here. recitation” of the reasonable doubt standard. fortiori Merlos, cedes, U.S.App. See United agree, States v. police- D.C. and we fruits of the 395, 398-99, 48, (1993) (Merlos II) 8 F.3d 51-52 showup initiated identification are not available (holding that the error found in Merlos I was not retrial, police appel- to it on since the entered plain error as to the who defendant had not warrant, consent, apartment lant’s without cert, - denied, -, objected), U.S. 114 S.Ct. exigent Bryant circumstances. v. United 128 L.Ed.2d 358 States, (D.C.1991) (post-seizure 599 A.2d 1107 identification evidence inadmissible where it was disposition 11. Our of the case makes it unneces- product entry sary appellant’s of warrantless into defen- remaining to consider claims of error, exception. government house). rooming with one con- dant’s many us judges that will force to review ends trial Post at 744. But neither observation conformity here for to an uncer- the matter. We do deal with variations such is ordinary but with what should standard. We tain constitutional aspect “perhaps important the most use of a new reason- adopt and mandate the closing in a criminal instruction of this courts able doubt instruction (1st Perrin, trial.” F.2d Dunn v. supervisoxy power jurisdiction. We have denied, Cir.), cert. 98 S.Ct. See, e.g., v. step. Unit- to take that Winters (1978). Moreover, (en (D.C.1974) States, ed 317 A.2d explained, prob this court a recurrent faces banc) of our su (adopting, “in the exercise by judges lem of dissatisfaction with responsibility,” anti- perintendent a standard traditional instruction which version cases as instruction future deadlock modify prompted them to or even discard “serv[ing] justice”); Ki the administration of entirely of the in their the text instruction 1232, 1235 & 416 A.2d nard United circumstances, In these I am courtrooms.12 (D.C.1980) (holding, poll after of the en n. 3 supervisory en of the view that action longer ... use [of that “no shall banc authority un banc court consistent with our uno be instruction] deemed falsus (1995) § 11-102 for. der D.C.Code called appropriate in the District of Columbia court act, If especially we do not the dis system”). para And we use it. To should prevail sent’s view were to as to the relative Appeals, Court of phrase the United States insignificance of deviations from the current longer “should no be burdened this court case, I those made in like the necessities and niceties —and with have no doubt we will continue to met gauging uncertainties —of vari concomitant challenging by in appeals modifications [Redbook]-type renditions the reason [of ous judges they dividual who are convinced that of’ their risk able doubt terms instruction] do better. misdescribing government’s burden of in- The dissatisfaction with the Redbook Thomas, proof. States United language struction stems from there which 101, 110, 449 U.S.App. F.2d D.C. archaic, judges awkward, consider hard-to- (en banc) (adopting anti- standard comprehend, misleading. Their criticism charge supervisory deadlock exercise its justified. recognized Foreman we authority). Subject being further educat unclarity phrase convic- adopt point, on the I we should ed believe tion,” placement as well as its a double “clear, in straightforward, and accurate” negative jury may sentence which the have by the proposed struction Federal Judicial difficulty 794-95, grasping. 633 at Victor, 26, at Victor, 511 U.S. at S.Ct. Ginsburg’s Center. supra, n. 8. In Justice pointed J., “distinguished (Ginsburg, concurring; quoting concurrence out in that judges” struction). federal have criticized traditional citing this both While to corresponds “hesitate to act” formula that Ginsburg in majority and Justice Victor pause” language. our “hesitate or 511 U.S. “no explained Supreme Court view, And, my a at 114 S.Ct. at 1252. supervisory power the state courts”— over help by being receives little additional problem implying if it a recurrent faced told a doubt is a doubt courts, experimentation in the federal trial you or “for “based on reason” at using power. Id. it would consider a reason.” 1248, 1253. 27,114 at The issue for S.Ct. authority to too is whether use this court to well- respond This court should have; no one would unquestionably and while founded dislike of the Redbook instruction very by disagree sparingly, so ending improvisation that we should do the sort of while ‘abiding’ adjective borders on archa- pending a of this 13. "The 12. A fourth case division before ic, precise meaning rejection may cany to complete little of the Redbook hence court involves ears; poten- by and has its own model modem 'conviction' instruction in favor with, doubt, say, conviction for dis- tial for confusion on reasonable federal Foreman, at 633 A.2d 794-95. crime.” cussed infra. Now, extraordinary years later, situation majori- that calls as a result of the its case, use. ty’s disposition of this L.B. to will have prepare go all again. to to court over All of Reversed. the horror which she was forced to endure dredged will be up once more. will SCHWELB, She Judge, concurring Associate again strangers have to with experi- share part dissenting part: and ences which no should to child ever have On several occasions the autumn of Moreover, if endure. L.B.’s recollection 1992, appellant Marshall Proctor rubbed his clouded, events, half a decade after the ifor penis against vagina and L.B.’s directed her simply testify she cannot bear to a second penis. kiss to He threatened to take the time, go may Proctor well free. away” anybody child “far if she told what he years had done. L.B. was seven old. accept I proposition any judge — L.B. initially was to requiring afraid disclose what must —that L.B. to suffer the tra- happened. finally had When she did tell her vail of a price second trial would be a stepfather, provided mother and and also would paid have to be the first trial not had assailant, description however, par- Proctor, detailed of her her been fair. received a fair might ents believed that Proctor trial. I judge’s the man. am that the minor satisfied times, Three L.B. was taken to Proctor’s deviation from the Redbook’s instruction on home determine whether she could identi- reasonable doubt —the sole basis for the ma- fy occasion, him. jority’s On the evidently first out reversal of Proctor’s convictions of fear, she told enticing her mother that Proctor was minor and indecent liberties1— visit, or, her indeed, assailant. second On the how- was not error constitutional error ever, Proctor, she police identified and the at all. perhaps light While defensible in A showup arranged, were called. language and a some discursive two of our re- States, police officer who L.B. opinions, escorted to the show- cent see Foreman v. United (D.C.1993), up appeared, testified that Proctor when L.B. 633 A.2d 792 and Butler v. Unit- prior (D.C.1994), confirmed her identification but “froze” ed 646 A.2d 331 cert. de —nied, attempted pull away. -, by L.Ed.2d 206 result reached L.B.’s far ordeal was still from over. She majority cases, compelled is not those subsequently had to discuss the molestation court, me, seems attaches undue police prosecutors. officers and significance phrasing to trivial variations in trial, then case came to and L.B. was forced judge’s charge when the as a whole was experiences by relive testifying her about eminently fair.2 in open presence them of her however, Finally, abuser. Proctor was con- appar-

victed and sentenced. The case was I. ently over, family and L.B. and her were finally in position attempt put only portion Proc- the trial rea- tor’s crimes behind and to them resume their sonable doubt to which Proctor’s attorney objected lives. the at all3 was substitution agree my colleagues' I abiding deep-seated 1. with conclusion that the tion of ... [for] belief prosecution's prove abiding evidence was insufficient to conviction.... sodomy. conviction, Abiding deep-seated THE COURT: belief. You a think there’s difference between joined Superior 2. When I first bench the of the the two? Court, experienced colleague a more told me may [DEFENSE COUNSEL]: There be. semi-facetiously "you appel- instruct for the Very THE COURT: well. jury.” might late not for the He well have Butler, added.) (Emphasis supra, at 646 A.2d Cf present theory. used the case to bolster ("[i]n cases, example, 337 for where counsel of- forceful, objection why par- a reasoned as to fers "objection" defense was not much of an language ticular is critical standard ... devi- objection: may ation from ... a [Redbook] the result in Honor, misdescription proof [DEFENSE Your burden of ..." COUNSEL]: for the of the convictions.) object require record I would the to court's substitu- reversal of the defendant’s doubt, to guilt beyond all or a mathe- deep-seated of the or belief’ tablish words guilt certainty, for the words “abid- or a certain- [to] in the defendant’s matic scientific added.) conviction,” A ing in the Redbook.4 (Emphasis as stated ty.” reading in- of the reasonable doubt surely language is foregoing italicized that, persuades in struction as a whole me portion of challenged the with the consistent context, in a this deviation did not result certainty required, If is not then instruction. proof. of If misdescription burden Here, level must be sufficient. some of belief trial, subject the at end the quizzed on the of in terms judge formulated the standard jurors probably no most would have idea belief, words “abiding” “deep-seated” of or used, phrases judge of the two or which strongest convey the notion of which to supposed is be more favorable one cer- possible kind of belief short of absolute prosecution. logic a of tainty. Perhaps professor abstract beginning Both at the reasonable discipline could philology or or other such it, instruction and near the end of doubt meaning in shade of difference find some jurors judge told the a reasonable doubt judge’s phrasing and the various between the on He also de “is doubt based reason.” say essen- attempts the Redbook other you a doubt “for which fined confident, I tially thing. am how- same words, simple judge In reason.” those ever, that the difference nuance which has captured the essence of what “reasonable convictions led to the reversal Proctor’s constitutionally more doubt” means. No entirely ordinary on the citi- would be lost Victor, supra required. note U.S. juries on and who are zens who serve our Utah, 5, 114 1243; Hopt at at S.Ct. cf. bring common sense bear asked their 614, 618-20, 430, 440-41, 7 U.S. S.Ct. on the task at hand.5 L.Ed. 708 Victor, supra, judge instructed the My colleagues appear to believe that the may guilty find “[y]ou the accused phrase “abiding deep-seated or is belief’ ob- case," upon strong probabilities jectionable because it would countenance and that “a reasonable doubt an actual finding guilt notwithstanding mini- some 511 U.S. at and substantial doubt.” uncertainty. conformity mal level of with original). (emphasis at 1255. These Redbook, however, S.Ct. judge also told phrases surely great proble are deal more jurors fantasy, that a doubt based or whim, judge’s instruction conjecture, matic than the trial guesswork or or is not a assessing judge’s charge case. After reasonable doubt. He then instructed them entirely, Supreme government required that “the Court es- in its extent, added.) (Emphasis question any, objec- United States v. I whether the To 401, 403, attorney Merlos, fairly tion Proctor’s in this case could U.S.App. D.C. 984 F.2d or 1239, 1241, (Merlos I), be characterized as "forceful” "reasoned.” grounds, vacated on other U.S.App. D.C. F.3d cert. 303 denied, judge 4. The also omitted from the Redbook in- - -, U.S. characterizing struction the sentence a reason- (Merlos II), is inconsistent L.Ed.2d 358 able doubt "such doubt as would cause a my analysis, respectfully suggest must I person pause hesitate ought not to follow Merlos. Neither Merlos graver important or more transactions in life.” case, directly point, for in that decision is withering critique pause” A language this "hesitate “strong belief” had substituted Ginsburg's sep- can be found in Justice Nebraska, abiding "Strong” arguably opinion belief is conviction. arate Victor 583, (1994) “deep-seated" exacting and in 114 S.Ct. a less standard than cited; at-, I, Moreover, "abiding” the authorities there see also id. belief. in Merlos Blackmun, J., (opinion 114 S.Ct. at 1257 initially con- found the error harmless —a court Souter, J.). attorney joined by did not Proctor’s recogni- suggests a common-sense clusion which omission, plain object error, there was no and departure part judges the that the tion on the of for the instruction without the “hesitate Redbook, doctrinally imper- however from fect, "obviously" wrong, pause” language was not nor really did affect result. not miscarriage justice. did it in a result event, reasoning 734-36, any Olano, I believe that Merlos’ In States v. 507 U.S. United superseded by Supreme 1770, 1777, (1993) (de- effectively been 123 L.Ed.2d error). approach exacting scribing plain less Victor. Court’s elements discerned “no reasonable disposition likelihood that the of the case before the court. jurors who guilt ap determined necessary [Victor’s] It was not for the court in Butler plied the way instructions in a telegraph violated in advance appeals the results of 22-23, Constitution.” 511 U.S. at yet filed; that had not been future cases S.Ct. at Supreme 1251. The analysis Court’s could good be decided in time on their merits applies in Victor to the record, case at on a real imaginary hypo- an fortiori hand; there is no “reasonable likelihood” “Language thetical one. opinion an that the use of the “abiding deep- words dictum, entirely constitutes obiter unneces- seated jury belief1’led the misapprehend sary for the decision of the ... case no [has] applicable standard. indicating effect as the law of the District.”

Albertie v. Louis Corp., & Alexander (D.C.1994) (citations and in- II. omitted). quotation ternal According- marks Proctor primarily relies on our decisions ly, although gainsaid it cannot be Butler, Foreman and both of which were majority opinion in this ease is consistent in issued after present the trial in the case. spirit with various dicta in Foreman and Foreman, this court held that it was not Butler, neither of these compels decisions us “plain error” for judge to substitute the to reverse Proctor’s convictions on the basis “deep-rooted words belief’ for con- of the trial departure minor from the viction” and we affirmed the defendant’s con- Redbook. Butler, viction. 633 A.2d at 795-97. In not- Judge Chief Mikva “Ap- has said it well: withstanding timely objections defense pellate judges ought not [to] substitute their judge’s departures trial Redbook, from the prejudices regarding jury instructions or “firmly court ruled that convinced” was apt phraseology their notions of expe- for the acceptable substitute for “abiding convic- matters; tion,” judges rience trial in such our 646 A.2d at and that the omission responsibility more limited is to ensure that pause” “hesitate or sentence from the correctly the law is jurors stated for the reasonable doubt prejudi- instruction was not apply.” Yunis, United States v. cial error. Id. at 337-38. In each of these U.S.App. 129, 139, D.C. cases, F.2d however, Butler, especially (1991). Recently, Supreme Court has beyond court went well necessary what was long-held reiterated its doctrine that pending decide the appeal opined forcefully that variations from the Redbook long so as the court instructs the generally instruction were unacceptable. necessity guilt that the defendant’s Foreman, 794; Butler, 633 A.2d at 646 A.2d proven beyond a reasonable doubt ... 333-35, at 337. The extensive discussion in Constitution require any does not Butler of apparently what the court viewed particular words be used in advis- form of as the all-but-saerosanct character of the ing government’s burden Redbook’s reasonable doubt instruction fore- Rather, proof whole, taken as a the in- regard shadowed what I as the unfortunate correctly convey structions must the con- result in present case. cept jury. reasonable doubt to the holdings Victor, in Foreman 5, 114 and Butler af- supra, 511 at S.Ct. at 1243 firming added; each defendant’s (emphasis conviction are con- quo citations and internal omitted). sistent with the affirmance of Butler, Proctor’s con- tation marks the court enticing victions for and indecent quoted foregoing liberties. language, 646 A.2d at Butler, Although opinion reject- while but nevertheless insisted that in future ing appeal, cases, the defendant’s own contains judges re- effectively parrot must peated warnings about what this court Supreme would Redbook. The Court made clear do in future cases if a trial were to in Victor that the requires Constitution no change word the Redbook conformity such prescribed recitation.6 prophetic these homilies were not essential to We should follow that Court’s lead. majority opinion 6. The does not base its “supervi- reversal of Proctor’s convictions on the court's

III. reasons, I foregoing vacate

For would sodomy. all other

Proctor’s conviction judgment I

respects, would affirm

trial court. THOMAS, Appellant, C.

Jermaine STATES, Appellee.

UNITED 92-CF-1349,

Nos. 95-CO-1577. Appeals.

District of Columbia Court of

Argued Oct.

Decided Nov. supervi- using the Accordingly, about sory power.” I do but I have reservations not address open-ended applicabilily power and elu- constitu- sory of that rather ordain which of several Judge agree Farrell that the sive doctrine. X tionally permissible must definitions doubt in- Federal Judicial Center's reasonable choose. Redbook, superior the one in the struction

Case Details

Case Name: Proctor v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Nov 7, 1996

Citation: 685 A.2d 735

Docket Number: 93-CF-739

Court Abbreviation: D.C.