Smith v. State12/22/2000
oubt violated Cage v. Louisiana, 498 U.S. 39 (1990), because it stated, " he doubt which would justify an acquittal in this case must be a doubt for which you have a reason arising from all the evidence or lack of evidence ...." (R. 1835-36.)
The appellant is correct in his assertion that other jurisdictions have condemned such an instruction. See both state and federal cases cited in Adams v. South Carolina, 464 U.S. 1023, 1025-26 & nn.3-4 (1983) (Marshall and Brennan, JJ., dissenting from denial of certiorari review), wherein Justice Marshall stated:
"I continue to believe that trial courts err when they instruct juries that a reasonable doubt means `a substantial doubt' or `a strong and well-founded doubt' or `a doubt for which you give a reason.' The Fourteenth Amendment requires prosecutors to prove beyond a reasonable doubt every element of a crime. In re Winship, 397 U.S. 358 (1970). ... hen a jury is told that a reasonable doubt is a doubt that can be articulated, the prosecutor's burden of proof is unconstitutionally eased." Id. at 1025. See also Butler v. South Carolina, 459 U.S. 932, 935 n.3 (1982) (Marshall, J., dissenting from denial of certiorari review) ("Many courts have disapproved the requirement that a juror be able to articulate a reason for his doubt.").
We first point out that defense counsel included language to which he now objects in his requested charge no. 10. Thus, assuming the giving of the contested instruction was error, any error was invited by the appellant's specific request for the charge and therefore would not constitute ground for reversal. See McLaughlin v. State, 586 So. 2d 267, 271 (Ala. Crim. App. 1991) (quoting Leverett v. State, 462 So. 2d 972, 977 (Ala. Crim. App. 1984) ("`The doctrine of invited error has been specifically applied to possible error resulting from the defendant's request for a particular jury instruction.'"), overruled on other ground, Quinlivan v. State, 627 So. 2d 1082, 1088-89 (Ala. Crim. App. 1992).
We further find this issue to be without merit under Alabama caselaw. The appellant argues this instruction met the standard expressed in Cage v. Louisiana for unconstitutionality: whether "a reasonable juror could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause." 498 U.S. at 41. However, this standard of review for jury instructions on reasonable doubt has been supplanted by the following: "`whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution. Boyde v. California, 494 U.S. 370, 380 (1990)." Estelle v. McGuire, 502 U.S. 62, 72 (1991), We now follow this standard. Ingram v. State, [Ms. CR-94-1733, August 27, 1999] __ So. 2d __ (Ala. Crim. App. 1999). "The constitutional question in the present case , therefore, is whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the [In re] Winship[, 397 U.S. 358 (1970)] standard." Victor v. Nebraska, 511 U.S. 1, 6 (1994).
Alabama courts have held that the statement that a reasonable doubt is a doubt for which a reason can be given does not violate Cage and does not improperly lessen the prosecution's burden of proof. Jackson v. State, [Ms. CR-97-2050, May 28, 1999] __ So. 2d __, __ (Ala. Crim. App. 1999), citing Ex parte McWilliams, 640 So. 2d 1015, 1023-24 (Ala. 1993); Burgess v. State, [Ms. CR-93-2054, November 20, 1998] __ So. 2d __ (Ala. Crim. App. 1998), aff'd, [Ms. 1980803, August 25, 2000] __ So. 2d __ (Ala. 2000). See also Ex parte Taylor, 666 So. 2d 73, 82-85 (Ala. 1995), disagreed with on othe
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