Winegeart v. State

$93 spills were ex- to whether JJ., fact exist as SELBY, concur. DICKSON intended, summary judg- making pected or J., separate SULLIVAN, dissents with inappropriate. ment opinion. properly trial court I Because believe Justice, concurring. SHEPARD, Chief summary motion for the insured's denied the re- part from Although I dissented judgment, I dissent. v. Ins. Co. in American States decision cent (Ind.1996), accept I N.E.2d Kiger, 662 this case purposes of decisis

as stare opinion. join in the Court's

thus

SULLIVAN, Justice, dissenting. is im- of this case posture and insurer the insured Both

portant. the insured summary judgment, sought WINEGEART, Defendant- Steve duty to defend insurer had tending that the Appellant, insurer contend- law and the matter of as a duty as a matter no such ing that it had Plaintiff-Appellee. Indiana, STATE appropriate Summary judgment law. material genuine issue as is no if there 20504-9503-CR-344. 56(C). the trial Rule Here fact. Ind.Trial of Indiana. Supreme Court finding that summary judgment, court denied fact of material genuine issues there were May24,1996. affirmed. the Court of here, policies at issue insurance Under in duty to defend had no

the insurer damage property against claims

sured pollution unless

caused environmental and accidental." was "sudden

pollution Kiger, Insurance Co. States

American (Ind.1996), construed this court language and accidental"

the "sudden comprehensive general pollution exclusion than a "nothing more policies to be

liability the fact explicit which made

'clarification' those acts mot cover did the insurance Id. at or intended." expected

which are was evi Here there supplied).

(emphasis multiple barrels stored that SMC

dence identify or facility, not did at its

liquid waste assure in order to the barrels label

otherwise make disposal, did method proper other from separate wastes

any attempt wastes, permitted barrels

incompatible deteriorate, not clean did or otherwise

rust properly spills, did not obvious

up open barrels, types some and received many

cover facili no treatment it had for which

of waste not dis- supports, but is This evidence

ties. of, position that the insurer's

positive "expected or spills were waste hazardous such, of material genuine issues As

tended." Westerfeld,

Brent Indianapolis, Appel- for lant. Carter, General, Attorney

Pamela Jodi Ka- Rowe, thryn Deputy General, Attorney In- dianapolis, Appellee.

ON PETITION TO TRANSFER required by below that the Due Pro- cess Clause of the Amendment Fourteenth DICKSON, Justice. the United States Constitution. After stat- juries How to instruct regarding reason- ing that the burden is the State to long subject able doubt has been a on which prove guilt beyond a reasonable courts, judges, lawyers individual have challenged instruction explained: differing approaches. Today taken we seek A reasonable doubt is such you doubt as not conflicting opinions resolve may your have in mind when having fairly among panels different Ap- of the Court of evidence, you considered all of the do not peals but also to improved wording foster the feel satisfied to a moral certainty of may of instructions so that great- we achieve guilt of the defendant. A reasonable doubt juror understanding er application and better fair, is a actual and logical doubt that rudimentary principle of the proof beyond of arises the mind an impartial as consider- a reasonable doubt. ation of all the evidence and the cireum- trial, Following jury a defendant-appellant stances in every the case. It is not Winegeart Steve was convicted of the crime however, it is a reasonable one. You are burglary, felony. of a B Relying pri class not in considering warranted as reasonable marily Louisiana, Cage on v. 498 U.S. may those doubts merely that specula- 111 S.Ct. (per L.Ed.2d 339 products tive or imagination, of the curiam), the Court of reversed and you may upon whim, not act guess mere trial, remanded for a new finding that upon surmise or possibility the mere of certainty" language "moral in the trial guilt. A arises, reasonable doubt or exists court's may mind, naturally, as a result of the permitted have "to find the defen evidence or the lack of evidence. There is guilty dant upon degree based proof a of nothing in mysterious this that is or fanci- 'beyond below the a reasonable doubt' stan ful. contemplate It does not absolute or required dard the Due Process certainty. mathematical Despite every State, Winegeart Clause." v. 644 N.E.2d precaution may it, that prevent be taken to (Ind.Ct.App.1994). In other Court may there be in all matters depending Appeals opinions reviewing identical or upon testimony human proof, a mere substantively identical "moral certainty" in possibility of error. structions, holding this alternatively has met If, considering evidence, after all of the State, approval, Tobias v. 659 N.E.2d you have reached such a firm belief in the (Ind.Ct.App.1995), disagree and with guilt you of the defendant would feel ment, State, (Ind. Malone v. 660 N.E.2d 619 belief, upon safe to act without hesi- State, Ct.App.1996); Jackson v. 657 N.E.2d tation, highest a matter of the concern (Ind.Ct.App.1995). To resolve this con importance you, you then flict, grant the State's Petition to Trans certainty reached that which ex- fer. cludes reasonable doubt and authorizes conviction. appeal conviction, his from the the de- fendant contends that the trial court erred in This rule on applies reasonable doubt instructing jury regarding you reasonable individually, your each of and it specific doubt and intent. personal duty Because the Court to refuse to long convict as Appeals granted relief on the you defendant's as have a reasonable doubt as to the claim instruction, as to his reasonable-doubt guilt Likewise, charged. defendant's as it did not address your the second claim. personal duty We to vote for conviction shall separately. address each long you beyond as as are convinced reasonable doubt of guilt the defendant's Reasonable-Doubt Instruction charged. The defendant following asserts Record at 56-57. instruction, "actual," which used the words "fair," certainty," and "moral permitted The defendant did not make a time guilt to find ly objection based Alleged to this instruction. er- beyond a reasonable not standard of of instructions giving

rors fact-finder "the impress upon the specific serves to proper unless appeal available subjective state of near need to reach made at trial. Ind.Crim.Rule objections are accused." Jack 8(B). However, be deemed certitude a trial error 99 S.Ct. Virginia, de 443 U.S. as to avoid son v. so "fundamental" blatant violation a "substantial fault if it is requires that a trial unfair to that renders the federal constitution principles" While basic State, necessity juries "on the be instructed a defendant. Townsend (Ind.1994). beyond proven guilt be the defendant's doubt," require claimed error whether a it does In determining "any form of words." Vic trial, particular use we consid- a fair the defendant denies 1, -, Nebraska, potential tor resulting harm or er whether (1994). 583, 1239, 1243, L.Ed.2d 590 127 of The element harm is substantial. for instructions, However, jury taken as the that a by the fact not shown harm is whole, concept of correctly express "the convicted; must ultimately rath- was defendant jury." to the Id. reasonable doubt er, right his to a upon whether depends detrimentally the affected fair trial was 328, 39, 111 112 Cage, In 498 S.Ct. U.S. the opportunities for denial of 339, instruction L.Ed.2d a reasonable-doubt to which he other- of truth ascertainment constitutionally defec was determined to be have been entitled. wise would doubt, defining the tive. In that, recently for a stated Id. We language equated rea included that struction error, "it fundamental mistake to constitute uncertainty" grave and doubt with "a sonable rights of a prejudicial to the be so must stated, substantial doubt" and "an actual impossible." trial to make a fair defendant as required an absolute or math is not "What (Ind. 60, State, 64 Barany v. 658 certainty." certainty, a moral ematical but 1995). 40, 329, 112 L.Ed.2d at at 111 at Id. S.Ct. giving of the Winegeart that the found that the words "sub contends 342. The Court blatantly "higher violat- "grave" suggested a instruction stantial" and reasonable-doubt deprived required acquittal his principles degree and than is ed constitutional of doubt standard," in that the jury trial fairness. He asserts under the reasonable-doubt of statements, together used in his with the ref instruction that these expand trial, and "fair" the words "actual" certainty," rather than "evi- to "moral erence to constitute quantum of doubt needed finding certainty," permitted of dentiary that upon proof the instruction below guilt based "reasonable" certainty" of "evi- Id. at required by instead the Due Process Clause. refers to "moral 329-30, 41, 112 L.Ed.2d at 342. 111 at S.Ct. certainty," authorizing dentiary thus proof below guilt based on find ap principles were discussed These Due Process Clause. required Supreme Court plied by the States United v. Ne companion cases of Victor of the the recent Due Process Clause The California, 511 U.S. braska and Sandoval protects an accused Amendment Fourteenth 1, 1239, 127 L.Ed.2d 583 114 S.Ct. proof beyond exeept upon "against conviction instruc approved reasonable-doubt necessary to which every fact a reasonable doubt of as "to a included such tions that with which he constitute crime 358, 364, certainty," "actual and substantial moral charged." Winship, In 397 U.S. re 368, -, 1073, -, 1068, Victor, 375 doubt." See 25 L.Ed.2d at 1249, -, 1244, 127 -, 114 S.Ct at (1970). transcending interest of the Because 597, 600, In -. both L.Ed.2d at liberty, in his a criminal defendant has approved in Victor and Sando necessitates risk of an erroneous conviction val, certainty language appeared placed the moral that a burden substantial sentences, rea which stated that very Speiser similar prosecution. See 1332, Randall, 513, 525-26, when, 78 "consider 357 S.Ct. after U.S. doubt occurs sonable evidence," juror 2 does L.Ed.2d all the ation of conviction, abiding guage have "an to a moral hand, cer noted in Victor. On the other Victor, tainty" guilt of the accused. the "actual and substantial wording doubt" -, -, at U.S. S.Ct. at the Nebraska instruction in Victor is similar In L.Ed.2d at this con "fair, actual, logical to the phrase doubt" text, Supreme explained Court that "the Winegeart's Victor, used in Compare trial. certainty, conjunction reference to moral -, U.S. abiding language," with the conviction suffi L.Ed.2d at Winegeart, 644 N.E.2d ciently emphasized "the need to reach a sub Moreover, at 181-82. Winegeart jury jective state near certitude of the of was directed to base its decision on all the -, the accused." Id. at 114 S.Ct. at evidence; whim, disregard surmise, guess, 127 L.Ed.2d at 596. The Victor court also possibility guilt; mere and to consider distinguished certainty" its "moral instruc the "hesitate to act" benchmark-all factors Cage, tions from the noting one that "the significant. Victor court found problem Cage was that the rest of the -, 1250-51, id. at 127 L.Ed.2d provided insufficient context at 599-600. meaning phrase." lend case, the Court S.Ct. at rejected Winegeart's challenge to the use of noted, at 596. The "Instructing Court the words "fair" and "actual" as used to abiding must have an convie explain doubt, reasonable but found constitu guilt tion of the defendant's does much to tional error because prominently placed, the any phrase alleviate concerns that the moral first substantive of sentence the definition in certainty might be in misunderstood the ab the equated instruction reasonable doubt -, 1250, stract." Id. at 127 certainty, with moral in Cage. violation of Although clearly L.Ed.2d at 600. stating Winegeart, 644 Applying N.E.2d at 183. the that the Justices "do not condone" and "do methodology appellate review in set out not countenance" phrase the inclusion of the Cage, Appeals the Court of found that the certainty moral in a in reasonable-doubt (rather phrase use of the certainty" "moral struction, the Court found that in the context "evidentiary certainty") than "may have al instruction, of the entire explicitly which di jury lowed" guilt upon the to define based jurors rected the to base their conclusion on required by below that the the evidence of the engage case and not to in Due Process Clause. Id. speculation conjecture, the inclusion of the certainty moral language did not render the however, Cage, the time since the -, instruction unconstitutional. Id. at Supreme United States Court has revised -, 1248,1251, 114 at S.Ct. 127 L.Ed.2d at and clarified determining the test Similarly, noting 600. equat while that constitutionality aof reasonable-doubt ing reasonable doubt with substantial doubt proper struction. The inquiry constitutional problematic," is "somewhat the Court found "is not whether the instruction 'could have' instruction, that the context of the unlike applied manner, been in an unconstitutional Cage, that in contrasted substantial doubt but whether there is a reasonable likelihood conjecture. -, with fanciful Id. at 114 Victor, that jury apply did so it." 511 S.Ct. at 127 L.Ed.2d at 599. It con -, at 114 at S.Ct. 127 L.Ed.2d whole, cluded that "taken as a the instruc McGuire, at 591. Accord Estelle 502 U.S. correctly conveyed tions of rea 62, 72-73, 475, 482, -, sonable jury." doubt to the Id. at 114 385, (disapproving 399 n. the stan S.Ct. at 127 L.Ed.2d at 601. Thus, dard of employed Cage). review challenged Cage, The unlike the Court in words and we must determine "may not whether given reasonable-doubt instruction the instruction have al to the Winegeart guilt lowed" significant upon contain both to find based dif- from, to, constitutionally ferences proof, substantial similarities deficient standard of approved case, in Victor as did the Court of in this Winegeart Winegeart, instruction's reference to "moral 644 N.E.2d at but rather certainty" "abiding conviction" lan- lacks whether "there is a reasonable likelihood" lengthy of the words. Such the substance to con- jury applied the instructions

that the of- challenging instructions constitutionally conceptually insufficient viet based declaring repetition, a drumbeat guilt. 511 U.S. ten proof of doubt, every not Court is not L.Ed.2d at 591... Our reasonable doubt that S.Ct. surmise, language whim, pos- guess, contested not not mere that the not Appeals found fanciful, ete.; qualify of im- potential and that to sibility, it the distinct "carried with fair, doubt, constitu relieving of its must be the State such doubt permissibly as reasonable Wineg proof." tionally-imposed burden natural, actual, surpris- ete. It is not logical, added). eart, (emphasis difficulty syn- at 183 jurors have ing often evaluation, under appropriate while comprehending This reasonable thesizing the new standard comply with Cage, they may perceive does not doubt or and Estelle. minimizing articulated Victor instructing judge finding guilt. preclude will chal Winegeart's constitutional As to to find reversible error giv Although reluctant instruction lenge explain trial, purporting reason that there is not in instructions conclude en at his we Supreme Court who de the United States that the able likelihood applied acknowledged: "Attempts explain the defendant's has termined usually way that violated the Due do not result in a 'reasonable doubt' term giving of this in making Thus the clearer to the minds of Process Clause. States, error not have constituted jury." struction would Miles v. United objection timely proper would 312, quoted if a even 26 L.Ed. is no at trial. When there made States, 121, 140, been 348 .S. Holland United 127, 138, L.Ed. error, is no fundamental ipso facto, there However, Barany, 658 N.E.2d error. has declared: The Seventh Cireuit use of this disapprove of the continued speak must for itself. "Reasonable doubt" future. instruction are know what is "reasonable" and Jurors meaning of "doubt." quite familiar with the 300 words in eleven instruction uses inject lawyers' attempts to Judges' doubt. This explain to reasonable sentences catch-phrases into the amorphous instruc- atypical for reasonable-doubt other is not standard, tions, conglomera- a such as appear to be "reasonable doubt" which often supplemental highest importance" phrases providing tion of "matter is, therefore, in- It explication muddy of reasonable doubt. the water.... alternative appellate judges give to an instruc- Through years, appropriate decisions doubt," variety defining in- and it is a wide of reasonable-doubt tion "reasonable held to satisfy equally inappropriate minimal constitution- for trial counsel to structions phrase particular provide their own definition. requirements. al After courts, by appellate been thus tolerated has (7th Glass, 386, v. 846 F.2d 387 United States often-usually response to trial courts will Cir.1988). support This view has found counsel-incorporate "ap- by such requests jurisdictions. United other several in- into reasonable-doubt proved" (4th 753, Headspeth, 852 F.2d 755 v. States result, most reasonable- structions. As Cir.1988) (noting term reasonable that "the commonly in our use doubt meaning compre doubt has a 'self-evident today crafted for the have not been courts judicial lay juror, which ef hensible effectively explaining the most purpose of generally do more to obscure forts to define but concept of reasonable doubt Moss, illuminate"); v. United States than to lan- primarily because the rather are used Cir.1985) (4th 329, (stating, 338 756 F.2d adequate considered guage therein is gained can be from "Recognizing that little appellate reversal. avoid doubt, reasonable while attempts to define confusion is often creat admitting intri- that added longer, more As courts utilize such efforts, judicial doubt, by well-intentioned juries ed these explanations of reasonable cate of trial join general condemnation impression we likely to draw an overall doubt attempts to define reasonable meaning of court may transcend the literal which 899 Nevertheless, anything when than instructions"); more v. Borden Smith their (4th kircher, 1273, Cir.1983), 718 F.2d 1276 simple caution and a brief definition is given, denied, 2355, the matter 976, tends to become one of 104 cert. S.Ct. 80 words, mere and the actual effect (1984) (stating, share this L.Ed.2d 828 "We jury, being enlightenment, instead of generally disapproving attempts view" of likely confusion, or, to be rather doubt); explain v. Illinois Mal least, menato, incomprehension. a continued 14 Ill.2d 150 N.E.2d practice, amplifications these detailed denied, cert. U.S. usually degenerated the doctrine have into 148; (observing, "Reasonable a mere tool for counsel who desire to en- is a which no term needs elaboration trap unwary judge forgetfulness into frequently and we have so discussed the precedent, some obscure or to save a cause futility attempting to define it that we by for a quibbling, new trial appeal, might expect practice to be discontin propriety over the verbal of a form of ued"); Larkin, Kansas 209 Kan. words uttered or declined to be uttered (commenting may P.2d. that "it judge. perpetuate The effort questioned well be whether definition is develop these elaborate unserviceable defi- illuminating phrase more than the itself. one, nitions is a useless today and serves ordinary The words are ones meant to be chiefly to purposes aid the of the tactition. popular used their or conventional sense It should be abandoned. person and are understandable of ordi Wigmore, 9 John H. Evidence in Trials at nary intelligence"); Taylor, Missouri (James § Common Law (Mo.1972) 239, 244 (noting, S.W.2d "It is 1981). H. Chadboum rev. explain simple difficult to terms like 'reason plainer," able doubt' so as to make them Several researchers have concluded that jurors' understanding concept rea "Reasonable doubt is reasonable sonable doubt indeed be enhanced after regard that is about all that can be said in it") (citations hearing an omitted). explaining the con cept. See Laurence J. Severance and Eliza "(Elven Ginsburg disagrees: Justice if def Loftus, Improving beth Ability F. necessarily initions of reasonable doubt are Comprehend Apply Jurors to Criminal imperfect, alternative-refusing to define Instructions, Jury Socy 17 L. & Rev. obviously prefera at all-is not (1982); al., Laurence J. Severance et ble." S.Ct. at Toward Criminal Instructions that J., (Ginsburg, 127 L.Ed.2d at 603 con Understand, Jurors Can 75 J.Crim.L. & curring in part concurring judg and (1984). studies, Criminology Other ment). Observing that "American courts however, suggest pattern that conventional have flirted efforts to elaborate on the attempting explain instructions to con words," meaning of these familiar Chief cept of reasonable doubt are ineffective. See Judge of Newman the Second Cireuit Court Geoffrey Koenig, P. Kramer & Dorean M. of it unsettling finds "rather that we Jury Do Jurors Understand In Criminal using a formulation that we believe will Analyzing structions? the Results explain become less clear the more we it." Michigan Comprehension Project, Juror Newman, Beyond John O. "Reasonable (concluding J.L.Reform 414-16 Doubt," 68 N.Y.U.L.Rev. negative that "the minimal and even effects (1993). However, acknowledges he of these instructions should raise serious explanatory jurors concern about whether un instructed currently ambiguous open in use "is and to charge- derstand a crucial element of their widely disparate interpretation by jurors." doubt"); meaning of reasonable Norbert Id. at 985. al., Beyond L. Kerr et. Guilt a Reasonable Concept Doubt: Wigmore, noting Professor that "various Effects of Definition efforts have been made to in Assigned define more Judgments Decision Rule on the Jurors, detail this elusive and undefinable state of J.Personality Soc.Psy Mock & (1976). mind," chol. 285-86 states: that, might speculate about what the answer be maintain commentators Some have been." meaning doubt is of reasonable cause juror, lay the federal not self-evident they prepositional Relocate so 3. any courts to honor requires Constitution sentence; interrupt eg., avoid- do not jury requests defendant "proximate cause ing sentences such Henry A. doubt. See defining reasonable which, and con- a cause in a natural is Diamond, Note, To De Reasonable Doubt: injury." sequence, produces the tinuous Define, 90 Colum.L.Rev. fine, or Not un- Replace words that are difficult to 4. (1990). asserts commentator One ones; eg., chang- simple derstand with "[mjost require considerable ex people negligence imputed ing "agent's parallel articulation example, planation, "agent's negligence trans- plaintiff" to [the contours of grasp the basic plaintiff." fors doubt]," a reasonable- and that of reasonable sentence; negatives in a multiple Avoid 5. instruction, by explanation, unadorned is not un- e.g., "innocent mis recollection invention, its to clothe "is an invitation common." pre it to opportunity to bend flexibility an Uviller, Ac passive H. Richard figured purposes." rather than 6. Use the active Guilty: Two Case Studies quitting voice; changing emphasis eg., "no Misunderstood Misgivings and the Jury "I not intend to intended me" to do (1990). Proof, Crim.L.F. emphasize." Standard of po responses study reports that One (omitting words 7. Avoid "whiz" deletions probability what jurors asked tential is"); eg., by changing "state- "which range "reasonable doubt" associate with to "statements which ments of counsel" Terry percent. Con percent to 100 from 50 by counsel." are made Doubt, Theory, Reasonable nolly, Decision long words with similar Reduce lists of 8. Acquittals, 11 Utility Erroneous and the two; eg., meanings only one or shor- (1987). 101, 102 Hum.Behav. L. & skill, experience, tening "knowledge, psycholo- by linguists, research Substantial "training or training, or education" to many suggests that gists, and others experience." understanding instruc- difficulty have meaningful into Organize instructions difficulty understanding but much less tions connect- structures that avoid discourse light have been rewritten those that ways that make ing unrelated ideas Peter M. principles. psycholinguistic seem related. them Tiersma, Language Reforming the embedding subordinate clauses 10. Avoid Instructions, L.Rev. 22 Hofstra sentences; specu- e.g., "you must not provided valuable Researchers suggested insinuation late to be true compre- to write more suggestions on how a witness." by question asked instructions, illu- including the hensible Tanford, Psychol- modifying The Law jargon clauses J. Alexander mination of Instructions, Jury 69 Neb.L.Rev. Summarizing ogy simpler language. the use of omitted). (1990)(citations Professor suggestions psycholinguists, im- guidelines for the provides ten Tanford agree principle in with the Seventh We provement of instructions. jurisdic- those other Fourth Cireuits (making 1. Eliminate nominalizations phrase that have concluded tions verbs) and substitute verb out of nouns fur- suffice without "reasonable doubt" forms; eg., changing "an of evi- many attempts to and that explication offer ther into evi- were dence" to "items explanation have additional provide offered effective dence." However, not convinced we are fallen short. light in of recent impossible that the task is phrase "as Replace prepositional research, prefer thus to ongoing and we "about;" "you eg., changing to" with a in Indiana courts reason- for use the an- endorse speculate as to what must not that, to the maximum able-doubt "you to must not might have been" swer possible, extent unhesitatingly reflects wisdom of the "in highest a manner of various available resources. importance cern and to" himself or herself. attempts quantify Such to challenge devising There is an in inherent probability have received mixed reviews. comprehensible a and succeinetinstruction ex- plaining lay of reason- analogy The "hesitate to act" is discussed They able doubt. must be informed that Victor, in -, U.S. at guilt depends upon their determination of 1252, 1257, -, -, 127 L.Ed.2d at -. absence of reasonable doubt. The existence majority The Victor comments that "the hesi precludes finding of reasonable doubt a tate gives to act standard a common-sense guilt. way, in Viewed this the reasonable- just benchmark for how substantial such a necessarily doubt instruction is attempt an Victor, -, must be." 511 U.S. at negative concept. define a When court in- 127 L.Ed.2d at 599. In proceed concept by structions to define this contrast, the "hesitate to act" language is not, stating what resulting double problematic criticized as by Justices Gins negative concept juror compre- diminishes burg Blackmun, and Blackmun. Justice addition, hension per- even further. In concurring, Justice Souter states that such ceive that containing repeated language "may in fact make matters worse narrowing statements the class of doubts eli- by analogizing the decision whether to con- gible for consideration as reasonable doubt acquit viet or a defendant to frequently may have a minimizing cumulative effect of high-risk personal people decisions must importance the value and of this bedrock daily Victor, in make their lives." principle justice. of eriminal -, 114S.Ct. at 127 L.Ed.2d at 608 (Blackmun, J., concurring in part and dis Although not utilized the trial senting part). Ginsburg expressly Justice case, court attempt one notes that distinguished "[al committee of suggest improved an judges, federal reporting to the Judicial Con struction is Jury found Indiana Pattern States, ference of the United has criticized Instruction 1.151: this 'hesitate to act' formulation." fair, A reasonable doubt is a actual and 511 U.S. at 114 S.Ct at logical your doubt that arises mind after J., (Ginsburg, L.Ed.2d at 601 concurring in impartial consideration of all of the part concurring judgment). evidence and cireumstances the case. It explained: committee upon should be a doubt based reason and analogy it misplaced. uses seems common sense and not a doubt upon based people the decisions make in the most imagination speculation. affairs, important of their own resolution of prove To the defendant's past conflicts about usually events does not charged beyond elements of the crime major Indeed, play a role. decisions we the evidence must be important make in the most affairs of our you such that it would convince lives-choosing spouse, job, place it, truth of certainty to such a live, Hike-generally, very and the involve a you would feel safe to act such heavy uncertainty element of and risk-tak- conviction, hesitation, without in a matter ing. They wholly unlike the decisions highest importance concern and jurors ought you. to make in eriminal cases. Center, Jury 1 Indiana Pattern Federal Judicial Instructions-Crimi- Pattern Criminal (2d 1991). nal, (commentary instruct. 1.15 ed. Instructions 18-19 This instrue- 21). explain tion seeks to what on instruction reasoning reasonable doubt We find such persuasive that, is and is proceeds equate not and then and believe while the "hesi- "beyond a reasonable doubt" with language may tate to act" bolster an other- juror probability require marginal would to act against wise instruction constitu- Jury pre- The Indiana Pattern Instructions are Criminal and Civil Instruction Committees. Al- pared use, auspices Judges though formally under the of the approved they Indiana not for are tacitly 51(E). Association and the recognized by Indiana Judicial Conference Indiana Trial Rule J., concurring part (Ginsburg, and analogy at 603 of this is neither challenge, use

tional judgment) (stating, "This concurring desirable ex- particularly required nor surpasses doubt. others I have concept of reasonable instruction plaining the model stating doubt stan seen reasonable Jury the Indiana Pattern In contrast Ari succinetly comprehensibly"); and dard instructions and other common Instruction Ariz. 898 P.2d zona v. Portillo 182 negative concept attempt to define that (finding to be the this definition proposal from the of reasonable accurately conveys fairly and one that "most focuses Judicial Center Federal doubt," the "con meaning of reasonable beyond a proof reasonable positive jurors, "will be term, use" of which assist succinetly, as sistent that It defines doubt. defendants, convinced," and firmly the state and you fair to both proof "that leaves appeals on greater future that reasonable doubt is obviate the need explains merely "possible issue," given "in ordering than that it be of doubt this Jackson, juror's case"); explains that a choice every doubt." It future criminal equ- guilty not should be guilty (agreeing between at 138 n. 2 with Justice "firmly endorsement). between to the distinction ated Ginsburg's possibility" "a real versus vinced" and consti In the exercise of our inherent guilty. The in- is not that the defendant supervisory responsibilities, see Ind. tutional states: struction VII, 4,§ seek to assure that Art. we Const. prov- government has the burden [The juries equipped with in criminal cases are guilty beyond a reason- ing defendant that allow them to under will you may have served able doubt. Some correctly concept of apply rea stand cases, you were jurors in civil where by numerous stud sonable doubt. Informed only necessary prove that that it is told and recommendations from academic ies likely true than not true. a fact is more authorities, judicial acknowledge cases, proof government's criminal Jury In shortcomings Pattern Indiana than that. It must powerful more must be 1.15, Wineg- in the instruction at struction beyond doubt. a reasonable be trial, and in the various other reason eart's is beyond a reasonable doubt Proof commonly in A explanations use. able-doubt you firmly convinced of proof that leaves improvement in effective commu substantial very guilt. There are few the defendant's may achieved utilization of the nication that we know with things in this world proposed Center's instruc Federal Judicial certainty, and criminal cases absolute therefore authorize and recom tion. We require proof that over- does not the law (but, acknowledging mend that two If, every possible doubt. based on comes find the five members of this Court evidence, you your consideration Jury preferable, Indiana Pattern Instruction is firmly the defendant convinced mandate) Indiana trial courts do not you charged, crime guilty [should] regarding instruct henceforth guilty. If on the other find [him/her] above-quoted Federal by giving the hand, possibility you think there is real instruction,2 preferably with Judicial Center you give guilty, not [he/she] [should] supplementation or embellishment. We no of the doubt and find the benefit [him/her] request that this instruction be added also guilty. [him/her] of the Indiana Pattern the next revision Center, Pattern Criminal Federal Judicial Instructions-Criminal. (1987) (instruction Jury Instructions 21). challenged instruction While the of this instruction has received The use than we would present case is less effective significant endorsement. prefer, it not so deficient as to be constitu- actually experience, but it will also jurors have such 2. We believe that will benefit from juries may inapplicable concepts jurors help dispel that refers to civil on which previously popu- have served and the differ- television or obtained from national proceedings. civil ent standards of used in lar novels. helpful this be who Not should

903 reject preclude appellate the will not tionally We therefore default review of defective. issues of fundamental error. Townsend v. of reversible error re- defendant's contention State, (Ind.1994). 727 632 N.E.2d Because in- garding trial the court's the defendant here claims that Instruction 18 struction. impermissible was under Sandstrom v. Mon Specific-Intent Instruction tana, 510, 2450, 99 S.Ct. 61 L.Ed.2d presented in the The second issue (1979), progeny, 39 and its and a because appeal that Final defendant's is his assertion violation Sandstrom is considered fundamen impermissibly the Instruction 183 relieved error, State, tal v. see Walker 632 N.E.2d proof on the issue of State of its burden 723, (Ind.1994); State, 724 Reid 529 that, specific responds be intent. The State 1309, (Ind.1988), procedural N.E.2d 1309 de ground cause the on which the defendant precluded fault will be if such an error objected to this instruction at trial was differ found. appeal, ent than that now advanced on the juryA instruction will be found to violate fur allegation of error has been waived. It the Fourteenth Amendment where it is rea responds ther that the instruction is substan sonably likely jury interpreted tially similar to some that have been likewise shifting instruction as to the defendant a by challenged upheld appel in and Indiana persuasion burden of on the intent element. State, late courts. See Henderson v. 544 Estelle, 72-73, 502 62 at 112 U.S. S.Ct. (Ind.1989); N.E.2d 509 Blackburn v. 4; 475 at 116 L.Ed.2d 385 at 399 n. State, (Ind.1988); N.E.2d War Sandstrom, 523-24, 442 U.S. at at S.Ct. State, (Ind.Ct. mer 2458-59, However, 61 L.Ed.2d at 50-51. State, App.1991); Beecher v. 567 N.E.2d Henderson, Jacks, 544 N.E.2d at (Ind.Ct.App.1991). 175,4 rejected at 394 N.E.2d this Court trial, objected regarding At the defendant claims of Sandstrom violations giving ground substantially of Instruction 18 not on the structions were similar to ground that he that it Instruction 18 case. See also raises here but Blackburn, Following 519 N.E.2d at 557. by was covered other instructions. Record Sandstrom, 8(b) Supreme Court Francis v. pro- at 240-41. Indiana Criminal Rule Franklin, party specific that a must vides state his reviewing L.Ed.2d 344 held that a

objections to the trial court's court: argument before the commencement appeal challenged

that no claim of error is available on must determine whether objections exeept upon specific properly portion a of the instruction creates manda- However, tory presumption, merely permissive made at trial. such or provided: sence of such intent. A determination of the Final Instruction 18 arrived at defendant's intent be specific You in- are instructed where jury from a consideration of the defendant's culpability required tent or kind of to make conduct and the natural and usual conse- offense, charge pre- an act an such quences logically such conduct which defendant, against [sic] ferred the State is reasonably points. required proof specific to make intent act, however, Where an unlawful is proved evidence, direct since and intent purpose done, knowingly no further is need- is, subjective they exist facts. That within part ed on the of the State in the absence of man, mind of and since cannot delve into you justifying excusing facts. person's purpose mind and determine his Record at 54. intent, you may surrounding all the look to including circumstances, what was said and in Jacks 4. We note that the Court's reliance done in relation thereto. The State is the nature of the instruction as not "conclusive" required produce Francis, such evidence as will sat- misplaced was under Sandstrom see isfy beyond a reasonable doubt that at Sandstrom, 523-24, 442 U.S. at 2458- charged by the de- the crime was committed 50-51; Francis, 471 U.S. at culpability charged fendant with the 1972-73, 85 L.Ed.2d at 355. 316-17, 105 S.Ct. It is the Jacks court's alternate rationale however, You infer information. may, every person prob- upholding intends the natural and the instructions-that lack "burden-shifting Jacks, 394 N.E.2d acts, effect," able of his unless voluntary consequences following we are here. the circumstances are such to indicate the ab- 175-that merely permitted it mandatory presumptions in- but presumption A inference. from the evi- jury appropriate it must infer the draw inferences the structs dence. proves if certain presumed facts the State permissive A inference predicate facts. whole, Considering the instruction as a jury possible conclusion suggests to the conclude that there is no reasonable likeli- proves predicate if the to be drawn State jury interpreted Instruction 18 hood that the

facts, jury require the to draw but does not shifting to the defendant burden that conclusion. persuasion on intent element of the the ... violate the Mandatory presumptions this charged offense. We find no error as to if relieve the Due Process Clause issue. persuasion of the burden State Conclusion permissive A infer- element of an offense. granted opinion of the Transfer is and the the State of its bur- ence does not relieve pursuant vacated Court of requires persuasion because it still den of 11(B)8). Appellate judg- Indiana Rule to convince State ment of the trial court is affirmed. should be inferred suggested conclusion predicate proved.... facts based on the SELBY, JJ., concur. SULLIVAN and Due permissive A inference violates the suggested if Process Clause DeBRULER, J., concurs result with that reason and common clusion is not one SHEPARD, C.J., separate opinion in which justify light proven facts sense concurs. jury. before the Justice, DeBRULER, concurring in result. 314-315, Francis, at 105 S.Ct. at 471 U.S. (citations preserve for Appellant did not raise and L.Ed.2d at 353-54 omit allegedly erroneous appeal the issue of the ted) (footnote omitted). Furthermore, This default instructions. explained, challenged if the Francis court ordinarily appellate renders review unavail appear portion the instruction does not State, 8(B); able. Ind.Crim.Rule Thomas muster, con pass constitutional "must be Sulli 264 Ind. charge as a in the context of the sidered Louisiana, van whole," explained other because it 2078, 124 holds that a L.Ed.2d sufficiently to avoid the creation constitutionally defective reasonable doubt presumption. Id. at an unconstitutional subject error instruction is not to harmless 85 L.Ed.2d at 354. analysis. holding does not obviate the This disapproved Francis The instructions timely appropriate liti requirement person jurors that "'acts of a of sound told the instruction gation of the issue of whether presumed to be the mind and discretion are case, actually In this the trial was defective. that a product person's of the will" potential court was not made aware of presumed the natural person ""%s to intend and, the record does not reveal error since acts," probable consequences of his elementary blatant violation of basic and thereby mandating jurors make State, N.E.2d 355 principles, Smith v. presumptions. Id. at particular (Ind.1984), potential er consideration In con available, join in and I affirm ror is not now trast, of what Instruction 18 talks terms ing the conviction and sentence. to," infer," jury "may "may look addition, majority's I do not share may consider in order to arrive at "a deter area, this perception deep problems within mination defendant's intent." Record added). Cen- nor the belief that the Federal Judicial (emphases These de- ter, 17- inferences, Jury Instructions mandatory Pattern Criminal permissive seribe remedy. Specifically, Moreover, appropriate 18 are the presumptions. we note "firmly convinced" I not believe that do "may" used here three permissive term Overall, "beyond a reasonable doubt." equates man- Instruction 18 did not times. "firmly subjectively, objectively and jury employ any particular Both date that more convinced" seems similar "clear and "beyond

convincing" than to a reasonable

doubt." I find the Indiana Pattern

Instruction, Op. adequate. more than

SHEPARD, C.J., concurs. Broden,

Timothy Lafayette, P. Appel- for lant. MILLER,1 Nathaneal C. Bailey, Patton, Jr., George Jon M. T. Bose Appellant-Plaintiff, Evans, McKinney Indianapolis, & Appel- for lees. WEST LAFAYETTE COMMUNITY ON PETITION TO TRANSFER SCHOOL CORPORATION Greater DICKSON, Justice. Lafayette Special Services, Appel Area

lees-Defendants. Addressing question impression of first Indiana, the Court of reversed the

No. 79S02-9505-CV-499. trial attorneys' court and held that fees attorney-parent should be awarded to the Supreme Court of Indiana. prevailing party brought of a suit under May28,1996. the federal Individuals Disabilities Education (IDEA). Lafay Act Miller v. West Community Corp., ette Sch. 645 N.E.2d 1085 (Ind.Ct.App.1995). appellant-defendant transfer, petitions asserting opin that the Appeals erroneously ion of the Court of de question Ind.Appellate cides a new of law. 11(B)(2)(d). granted. Rule Transfer is action, appellee-plaintiff In this prevail- tends that Nathaneal Miller was the ing party proceedings brought under judgment requiring IDEA and seeks a Lafayette Community Corpora- West School Lafayette Special tion and Greater Area Ser- School"), (together, pay vices "the lawyer-father attorneys' fees "which are cur- $16,100 rently approximately ongo- and are ing" and which "should be enhanced appropriate multiplier." Record at 10. Summarized, February the facts are that on originally naming §§ 1. This action was filed 2. 20 U.S.C. plaintiff parents as "Nathaneal C. Miller his Stanley cap- N. Miller and Jimi C. Miller." The tion was amended to its form after Na- years thaneal became 18 old.

Case Details

Case Name: Winegeart v. State

Court Name: Indiana Supreme Court

Date Published: May 24, 1996

Citation: 665 N.E.2d 893

Docket Number: 20504-9503-CR-344

Court Abbreviation: Ind.