DANIEL GRIFFIN v. UNITED STATES

District of Columbia
Court of Appeals
No. 15-CF-263
AUG - 4 2016
DANIEL GRIFFIN,
Appellant,
v. CF2-20479-13
UNITED STATES,
Appellee.
On Appeal from the Superior Court of the District of Columbia
Criminal Division
BEFORE: FISHER and MCLEESE, Associate Judges; and STEADMAN, Senior
Judge.
JUDGMENT
This case was submitted to the court on the transcript of record and the
briefs filed, and without presentation of oral argument. On consideration whereof, and
for the reasons set forth in the opinion filed this date, it is now hereby
ORDERED and ADJUDGED that the judgment on appeal is affirmed.
For the Court:
Dated: August 4, 2016.
Opinion by Associate Judge John R. Fisher.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 15-CF-263
8/4/16
DANIEL GRIFFIN, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CF2-20479-13)
(Hon. John McCabe, Trial Judge)
(Submitted June 17, 2016 Decided August 4, 2016)
Enid Hinkes was on the brief for appellant.
Channing D. Phillips, United States Attorney, and Elizabeth Trosman,
Lindsey Merikas, Alicia Long, and Danielle M. Kudla, Assistant United States
Attorneys, were on the brief for appellee.
Before FISHER and MCLEESE, Associate Judges, and STEADMAN, Senior
Judge.
FISHER, Associate Judge: Appellant Daniel Griffin challenges his
convictions, arguing that the trial court committed reversible error by omitting part
of the first paragraph of this jurisdiction‟s standard jury instruction defining
reasonable doubt. Finding no plain error, we affirm.
2
I. Background
Appellant was charged with unlawful possession of a firearm, possession of
an unregistered firearm, and unlawful possession of ammunition. On the afternoon
before the jury was to be instructed, the court sent its proposed jury instructions to
counsel by email. Later that evening, defense counsel replied: “I believe the
instructions are fine[.]” The next day, the judge read the following instruction to
the jury:
Reasonable doubt, as the name implies, is a doubt based
on reason, a doubt for which you have a reason based
upon the evidence or lack of evidence in the case. If after
careful, honest and impartial consideration of all the
evidence you cannot say that you are firmly convinced of
a defendant‟s guilt, then you have a reasonable doubt.
Reasonable doubt is the kind of doubt that would cause a
reasonable person after careful and thoughtful reflection
to hesitate to act in the graver or more important matters
in life. However, it is not an imaginary doubt, nor a
doubt based on speculation or guesswork. It is a doubt
based on reason. The government is not required to
prove guilt beyond all doubt or to a mathematical or
scientific certainty. Its burden is to prove guilt beyond a
reasonable doubt.
3
When reading this instruction, the judge omitted the entire first paragraph of
the reasonable doubt instruction we adopted in Smith v. United States, 709 A.2d
78, 82 (D.C. 1998) (en banc):1
The government has the burden of proving the defendant
guilty beyond a reasonable doubt.[2] In civil cases, it is
only necessary to prove that a fact is more likely true
than not, or, in some cases, that its truth is highly
probable. In criminal cases such as this one, the
government‟s proof must be more powerful than that. It
must be beyond a reasonable doubt.
Appellant‟s counsel did not object to the instruction as given. The jury
convicted appellant on all three counts.
1
See also Criminal Jury Instructions for the District of Columbia, No. 2.108
(5th ed. rev. 2015) (the “Red Book”). The Smith instruction is divided into three
paragraphs. The Red Book version of the instruction contains only two—it
combines the first two Smith paragraphs into one. We refer to both formulations in
this opinion.
2
The first sentence of the omitted paragraph was included in the written
version of the jury instructions that the judge emailed to counsel, but omitted from
the oral instruction given. Before deliberations began, the jury was given a copy of
the written instructions containing the first sentence, but not the comparison
between the civil and criminal burdens of proof. The record does not indicate
whether the first sentence was intentionally omitted from the oral instruction.
4
II. Analysis
It is well settled that “[t]he prosecution bears the burden of proving all
elements of the offense charged, and must persuade the factfinder „beyond a
reasonable doubt‟ of the facts necessary to establish each of those elements.”
Sullivan v. Louisiana, 508 U.S. 275, 277-78 (1993) (internal citations omitted).
“[T]aken as a whole, the instructions must correctly convey the concept of
reasonable doubt to the jury.” Victor v. Nebraska, 511 U.S. 1, 5 (1994) (brackets
and citation omitted).
Under the harmless-error standard applicable to claims of error that were
preserved by proper objection at trial, a constitutionally deficient reasonable-doubt
instruction automatically requires reversal. See Sullivan, 508 U.S. at 278-82; see
also Super. Ct. Crim. R. 52. For if “the instructional error consists of a
misdescription of the burden of proof,” Sullivan, 508 U.S. at 281, the jury‟s verdict
is not based on a finding of guilt beyond a reasonable doubt, and thus, “there has
been no jury verdict within the meaning of the Sixth Amendment,” id. at 280.
Such an error is structural, meaning that it is a “defect[] [that] affect[s] the
5
framework within which the trial proceeds.” Kidd v. United States, 940 A.2d 118,
125 (D.C. 2007) (internal quotation marks omitted).
However, if the issue has not been preserved for review because there was
no timely objection below, plain error review applies. Johnson v. United States,
520 U.S. 461, 465-66 (1997). This is true even for structural errors because “the
seriousness of the error claimed does not remove consideration of it from the ambit
of the” rules of criminal procedure that require contemporaneous objection to
preserve an error for review. Id. at 466; see also In re Taylor, 73 A.3d 85, 95-106
(D.C. 2013) (plain error review of structural error); Williams v. United States,
51 A.3d 1273, 1282-85 (D.C. 2012) (plain error review of structural error); State v.
Cruz, 122 P.3d 543, 549-51 (Utah 2005) (“Cruz never objected to the substance of
the [reasonable doubt] jury instructions . . . . In Johnson[], the United States
Supreme Court held that, where the defendant failed to properly object at trial, rule
52(b) of the Federal Rules of Criminal Procedure mandated plain error review, . . .
even if the trial court‟s error was structural in nature.”).3
3
Not every error in a reasonable doubt instruction is a structural error.
There may be instructional errors that, when preserved, are subject to harmless
error review because they do not misdescribe the burden of proof. See, e.g., Blaine
v. United States, 18 A.3d 766, 774-76, 781-83 (D.C. 2011).
6
In this case, appellant‟s counsel did not object to the altered instruction,
despite multiple opportunities to do so—when the judge emailed his proposed
instructions to counsel, when counsel and the court discussed the instructions the
next day, and after the instruction was read to the jury at trial. “As a result, our
review is for plain error.” Payne v. United States, 932 A.2d 1095, 1101 n.3 (D.C.
2007) (rejecting challenge to reasonable doubt instruction on plain error review).
“[A]ppellant bears the burden of persuasion on each of the four prongs of the plain
error standard[,]” Lowery v. United States, 3 A.3d 1169, 1173 (D.C. 2010), and
that burden “is, and should be, a formidable one,” Comford v. United States, 947
A.2d 1181, 1189 (D.C. 2008).
Under the four-pronged plain error standard, appellant must establish first
that the court erred and, second, that the error was “obvious or readily apparent,
and clear under current law.” Payne, 932 A.2d at 1101 n.3 (citation omitted).
Third, appellant must show that the error “affected [his] substantial rights.” Brown
v. United States, 881 A.2d 586, 596 (D.C. 2005). Finally, if appellant satisfies the
first three prongs of this test, he “must then show either a „miscarriage of justice,‟
that is, actual innocence; or that the trial court‟s error „seriously affect[ed] the
fairness, integrity or public reputation of judicial proceedings.‟” Beaner v. United
States, 845 A.2d 525, 539 (D.C. 2004) (alteration in original) (internal quotation
7
marks omitted). Only if all four prongs are met will we reverse appellant‟s
conviction. See Payne, 932 A.2d at 1101-02 & n.3.
In Smith, this court sitting en banc formulated a new reasonable doubt
instruction and, “in the strongest terms,” advised trial courts against altering the
instruction in any way:
Given the great risks to the integrity of the trial which
attend a deficient reasonable doubt instruction, the
uncertainties and controversies generated by varying
definitions, and the importance of fairness and the
appearance of fairness in our justice system, the greater
part of wisdom would dictate that the trial court give the
standard instruction approved here, which has been
determined to be faithful to the constitutional meaning of
reasonable doubt. Therefore, we state, in the strongest
terms, that the trial court should resist the temptation to
stray from, or embellish upon, that instruction.
709 A.2d at 82-83 (internal quotation marks omitted).
As the government concedes, by excising the first paragraph of the
instruction, in clear disregard of our admonition in Smith, the judge committed an
error that was “obvious [and] readily apparent, and clear under current law.”
8
Payne, 932 A.2d at 1101 n.3 (citation omitted). Thus, appellant has satisfied the
first and second prongs of plain error review.
Nevertheless, “we have never said . . . that a failure to use Smith‟s language
automatically violates due process.” Blaine v. United States, 18 A.3d 766, 781
n.65 (D.C. 2011). Rather, “our en banc rule making the Smith instruction
mandatory reflects an effort to avoid constitutional error, not to create such error
per se upon violation.” Id. We therefore must determine whether the error
affected appellant‟s substantial rights. Brown, 881 A.2d at 596.
In two previous cases, we reviewed for plain error after a trial court deviated
from the Smith instruction; in each case we affirmed the conviction. In Brown, the
trial court used the standard instruction that predated Smith. 4 881 A.2d at 592
nn.9 & 10. Nevertheless, we affirmed Brown‟s conviction. Id. at 598. “Although
the trial court‟s failure to read the Smith reasonable doubt instruction was
erroneous, we d[id] not conclude that the reasonable doubt instruction given by the
trial court was constitutionally deficient[,]” and we were “unconvinced” that it,
4
That instruction did not contrast the burdens of proof in civil and criminal
cases. Compare Brown, 881 A.2d at 592 n.9, with id. at 592 n.10. However,
Brown did not claim that this omission was error. See id. at 595-97.
 9
combined with the other instruction he challenged, “prejudiced Brown in any
way.” Id. at 596-97.
In Payne, the appellant argued his conviction should be reversed because the
trial court changed the last two sentences of the Red Book instruction to, among
other alterations, break up the second-to-last sentence and insert three new
sentences:
The government never has to prove guilt beyond all
doubt. That’s impossible. They [the government] do not
have to prove guilty beyond a shadow of a doubt.
There’s no such thing. They do not have to prove guilt to
a mathematical certainty and they do not have to prove
guilt to a scientific certainty. Its burden is to prove guilt
beyond a reasonable doubt.
932 A.2d at 1102 & n.6. We affirmed because we saw “no way in which this
language conveyed a faulty legal principle, prejudiced Payne, or improperly
bolstered the government‟s case.” Id. at 1102. But see Blaine, 18 A.3d at 769-71,
778-79 (reversing because use of modified Payne paragraph to reinstruct jury
“appeared to lighten the government‟s burden of persuasion”).
10
Mr. Griffin contends that the instruction given in this case, omitting the
comparison between the civil and criminal burdens of proof, is constitutionally
deficient, mandating reversal. We disagree and hold that it did not affect
appellant‟s substantial rights.
When reviewing a challenge to an instruction on reasonable doubt, we have
recognized that “an omission or an incomplete instruction is less likely to be
prejudicial than a misstatement of the law.” Butler v. United States, 646 A.2d 331,
337-38 (D.C. 1994) (alteration and citation omitted). When read together, the
instructions given in this case correctly convey the concept of reasonable doubt;
they do not inaccurately describe that concept or lessen the government‟s burden.
See Victor, 511 U.S at 5; see also Sullivan, 508 U.S. at 278-82. Therefore, the
erroneous instruction in this case did not amount to a structural error that would
automatically satisfy the third prong of plain error review. Cf. Taylor, 73 A.3d at
99-100 (deeming appellant‟s substantial rights affected “[b]ecause structural errors
are . . . intrinsically harmful” (internal quotation marks omitted)). However, our
analysis does not stop there; we must still analyze the error under the third prong.
See Brown, 881 A.2d at 596-97.
11
The court here instructed the jury that the government had the burden to
prove that appellant was “guilty beyond a reasonable doubt” of each element of
every charged offense, and that “if you [the jury] find the government has failed to
prove any element of a particular offense beyond a reasonable doubt, it is your
duty to find the defendant not guilty of that offense.” The court then read the
remainder of the Red Book instruction. Nothing in the reasonable doubt
instruction was erroneous or misleading.
Focusing on the missing first paragraph from Smith, we begin by addressing
the first sentence, which was included in the written jury instructions but
seemingly passed over when delivered orally: “The government has the burden of
proving the defendant guilty beyond a reasonable doubt.” Smith, 709 A.2d at 82.
This sentence undoubtedly explains a bedrock principle. However, “examin[ing]
the trial as a whole,” Brown, 881 A.2d at 596, appellant‟s substantial rights were
not affected by the omission. In its opening instructions, the court told the jury,
“The burden is on the government to prove guilt beyond a reasonable doubt . . . .”
The court reiterated the government‟s burden numerous times throughout the
closing instructions, and both parties acknowledged the government‟s burden in
their closing arguments. Moreover, the jury was given a copy of the written
instructions before beginning deliberations. In light of the many repetitions of the
12
government‟s burden, we hold that omitting the first sentence from the oral
instruction did not affect appellant‟s substantial rights.
We next weigh appellant‟s contention that excising the three sentences
which describe the civil and criminal burdens of proof was a constitutional
violation. We have explicitly held that the pre-Smith instruction, which did not
contain the burden-of-proof comparison, “is not[,] by itself[,] constitutionally
deficient.” Brown, 881 A.2d at 596. In addition, the parties‟ briefs and our own
research show that the vast majority of state and federal jurisdictions either do not
define “reasonable doubt” at all or do not do so by comparing the civil and
criminal burdens of proof in their pattern instruction on reasonable doubt. Thus,
we cannot say that omitting the comparison affected appellant‟s substantial rights.
Therefore, appellant has not carried his burden to establish that plain error
requiring reversal occurred.5
5
Appellant also asserts that the trial court erred by “fail[ing] to give the
proper cautionary instruction when [Officer] Khan was impeached [by the defense]
with his prior testimony under oath.” Assuming, without deciding, that appellant
sufficiently briefed this argument, but see Stone v. Alexander, 6 A.3d 847, 849 n.4
(D.C. 2010), there was no request for, or objection to the lack of, a cautionary
instruction, so we again review for plain error. Cf. Gilliam v. United States, 707
A.2d 784, 785 (D.C. 1998) (en banc) (“[I]n any case—without exception—in
which evidence has been properly admitted for a specific purpose and the defense
has not requested an instruction limiting jury consideration of it to that use, the trial
court‟s failure to instruct in that manner on its own initiative is reviewable only for
(continued…)
13
III. Conclusion
We continue to discourage, “in the strongest terms,” any deviation from the
instruction prescribed in Smith. 709 A.2d at 83. Nevertheless, appellant did not
object to the instruction given. Under review for plain error, appellant‟s
convictions are
Affirmed.
(…continued)
plain error.”). Appellant has failed to establish that he was prejudiced by the lack
of a cautionary instruction, especially considering that he acknowledged that the
prior testimony was given under oath and was admissible not only to impeach but
also as substantive evidence. See D.C. Code § 14-102 (b) (2016 Supp.); Bell v.
United States, 790 A.2d 523, 528-29 & n.3 (D.C. 2002).