## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 29 2003 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROMAN PETE WANSING,

Petitioner-Appellant,

v. STEVE HARGETT, Warden; STATE OF OKLAHOMA,

Respondents-Appellees. No. 01-7163

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA

(D.C. NO. 99-CV-645-P)

Roman Pete Wansing filed a pro se brief. Madeline S. Cohen, Assistant Federal Public Defende r (Michael G. Katz, Federal Public Defender, and James P. Moran, Assistant Fede ral Public Defender, with her on the briefs), Denver, Colorado, for Petitione r-Appellant. Patrick T. Crawley, Assistant Attorney General (W.A . Drew Edmondson, Attorney General of Oklahoma, with him on the brief), Oklaho ma City, Oklahoma, for Respondents-Appellees.

Before TACHA , Chief Judge, McWILLIAMS , and McCONNELL , Circuit Judges.

McCONNELL , Circuit Judge.-2-

In the final scene of The Philadelphia Story , the late Katherine Hepburn faces a room packed with wedding guests and calls o ff her impending marriage to a man she has come to despise. She begins hesitant ly and apologetically, showing just how mortifying the experience must be, but gai ns in confidence as she speaks – perhaps emboldened by the knowledge that a debona ir Cary Grant and an earthy Jimmy Stewart are waiting in the wings as possible replacements for the rejected groom. The question in this case is whether the de gree of certitude required to cancel a wedding at the last minute provides so flawed an analogy to the degree of certitude required to convict a defendant of man slaughter that a verdict rendered by a jury under the influence of such an a nalogy must be overturned on habeas review. I. Background On August 25, 1995, habeas petitioner Roman Pete Wansing, an Oklahoma businessman, shot and killed former employee Tim Jo hnson. Mr. Johnson had won the affections of Mr. Wansing’s ex-girlfriend, Anita Stagner, and obtained control of Mr. Wansing’s pallet shop business, whic h was in Ms. Stagner’s name. Mr. Wansing continued to pursue Ms. Stagner, demand ing that both she and the shop be returned to him. The feud escalated until the August 25 shooting, after which Mr. Wansing was apprehended and charged with first-degree murder.-3-

According to a prosecution eyewitness, Mr. Wansing pulled into a parking lot less than a minute after Mr. Johnson. The two got out of their cars and engaged in some apparently unheated conversation. Then Mr. Wansing went back to his truck, pulled out a garbage bag concealing a n assault rifle, and shot the unsuspecting Mr. Johnson, who was just standing the re until he tried at the last minute to duck. According to Mr. Wansing’s versionof the events, on several occasions Mr. Johnson had assaulted and threatened to kill him, and on the day in question chased him into the parking lot, repeating the threat. Confronted with these conflicting stories, the jury convicted Mr. W ansing of first-degree manslaughter. This case hinges on the burden of proof applied by the jury in reaching its verdict. Oklahoma law does not allow jury instruct ions as to the meaning of “reasonable doubt.” See Smallwood v. State , 907 P.2d 217, 231 (Okla. Crim. App. 1995). During voir dire, one prospective juror complained that he would like more guidance as to the meaning of that standa rd. In response, the trial judge made the following remarks:

We do not define reasonable doubt, and it is error to instruct on a definition of reasonable doubt. This is not t rue in some other jurisdictions. And if you all will accept my cauti on to you, that I in no way intend to express or imply a definition of r easonable doubt, or beyond reasonable doubt, I’ll tell you about an episode that I had when I was a brand new lawyer. I was in federal court, representing a guy who was charged with kidnapping. And I heard the federal prosecuto r define-4-

reasonable doubt to the jury. And I checked on that later, and that apparently was permissible at that time, in that fe deral jurisdiction. And what she said was, reasonable doubt is the kindof serious doubt that causes you to act or not act in matters that a re serious, like calling off a wedding at the last minute, after you ’ve walked down the aisle and are waiting on the other party or wai ting on the best man, or something like that, all of a sudden just s aying, “No, it’s all off, I’m not going to get married,” and just quitti ng right there after all the announcements are out and the gifts have be en received and everybody’s all dressed up and sitting in church, and the minister’s looking at you, and all of a sudden you walk out. And I thought about that later, and I thought some people, if they were considering their future happiness, and the seriousness with which marital vows ought to be taken, would pr obably, if they had the slightest bit of doubt, stop a wedding. Other persons might think that they were absolutely going to live a lif e of misery, they’ve made a terrible, bad decision, and they might drop dead of a heart attack or stroke right there, because they were so nervous about the wedding, and they thought it was a bad idea, but th ey still wouldn’t walk out because of the embarrassment it would caus e their mother or their intended, and all the inconvenience and tr ouble everybody had gone to. And they wouldn’t budge. They’d sit right there and get married and say, “Well, if it doesn’t work out, I’ll get it annulled, or I’ll get a divorce or something, but I’m not goi ng to ruin this party.” And, so, it didn’t matter. The fact of the matter was, that reasonable doubt i s a subjective matter that has to be resolved by each p erson, and each person in the individuality of his or her own consc ience and reason. And furthermore, it’s going to vary every case, bec ause every case is different. The facts and the evidence are always d ifferent. So, Oklahoma takes the position that it’s wrong to tell you what reasonable doubt is. Only you can decide whatis reasonable, in the light and under the circumstances of each indiv idual case. Because, after all, it is your reason that we rely on to decide the evidentiary issues in the case. And, so, who are w e to tell you what is reasonable and what is not? That is wholly with in your province. (R., supp. vol. 7, at 41-43.)-5-

Defense counsel immediately moved for a mistrial onthe ground that the anecdote misled the jury as to the nature of reason able doubt. The motion was denied, and after a three-day trial, the jury found the defendant guilty of manslaughter. The jury received no further instruc tions on the meaning of the reasonable doubt standard. Petitioner raised his objection to the judge’s remarks on appeal to the Oklahoma Court of Criminal Appeals (OCCA), contendi ng that the judge’s anecdote about the cancelled wedding misled the jury about the meaning of the reasonable doubt standard, and thus violated his ri ght to a fair trial. By a divided vote, the OCCA affirmed the conviction. Wansing v. State , No. F 96-1307, at 1 (Okla. Crim. App. Feb. 25, 1998) (per curiam). The majority rejected Mr. Wansing’s claim because it decided that the trial j udge’s comments did not constitute a definition of reasonable doubt. Id. at 2. The dissent objected that there was a real possibility that the jury would take the story as providing a definition: “[A]t the very least [the comments] cre ated confusion in the minds of the jurors. Were the jurors to use their own defin ition of the term as implied by the jury instructions which did not define the term , or did reasonable doubt really mean that doubt sufficient to abandon a betrothed at the altar?” Id. at 5.-6-

After exhausting his state remedies, Mr. Wansing so ught a writ of habeas corpus in federal court, on several grounds. The d istrict court denied his request, and this Court granted a certificate of appealabili ty on the issue of whether the judge’s remarks violated Mr. Wansing’s right to a f air trial, as well as the issue of his competence to stand trial. Petitioner has aban doned the competency claim, leaving only the due process claim before us now. Because we are in the same position with respect to the record as the districtcourt, we review its adjudication of that claim de novo, subject to any deference due to the OCCA under 28 U.S.C. § 2254. See Sallahdin v. Gibson , 275 F.3d 1211, 1222 (10th Cir. 2002); Smallwood v. Gibson , 191 F.3d 1257, 1264 n.1 (10th Cir. 1999).

II. Section 2254(d) Deference The Antiterrorism and Effective Death Penalty Act ( AEDPA) forbids federal courts from granting habeas relief on any c laim “adjudicated on the merits in State court proceedings” unless the state decisi on “was contrary to, or involved an unreasonable application of, clearly establishedFederal law, as determined by the Supreme Court of the United States,” or “was ba sed on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). In this case, it is far from clear whether the OCCAactually adjudicated petitioner’s federal due process claim on the merit s. According to the OCCA’s-7-

statement of the case, one of the issues on appeal was the claim that “[t]he trial court deprived Mr. Wansing of a fair trial when he discussed what constituted reasonable doubt.” Wansing , No. F 96-1307, at 1. The OCCA disposed of this claim as follows: The trial court expressly told the jury he was not defining reasonable doubt when he discussed an illustrative example of the meaning of the term. We find no reason to go behind the plain meaning of the trial court’s words. See, Vaughn v. State , 697 P.2d 963, 966 (Okl. Cr. 1985). The [claim in question] does not warrant relief. Id. at 2. Mr. Wansing contends that the OCCA addressedonly the issue of whether the trial court “defined” reasonable doubt (which would be error under Oklahoma law) and not the federal due process issue of whether the statement misled the jury regarding the standard of proof. Appellee (hereinafter “the State”) does not explici tly argue in its brief that the OCCA addressed petitioner’s federal constitutio nal claim on the merits. Rather, the State argues: The finding by the Oklahoma Court of Criminal Appea ls, that the trial judge did not define “reasonable doubt” was a factu al finding that is presumed correct in this federal habeas corpus acti on. Petitioner has wholly failed to overcome this presumption of corre ctness by any evidence, much less, by clear and convincing evidence. Nevertheless, there being no cases cited that stand for the proposition that the trial court in this case defined “reasonable doubt” the state appellate court’s finding in this regard is not contrary to, nor and [sic] unreasonable appl ication of, firmly established federal law as determined by the UnitedStates Supreme Court. Similarly, the state appellate court’s decision can not be said to have been based on an unreasonable application of the facts i n light of the evidence presented in the State court proceeding. 28 U.S.C. §2254(d)(1).-8-

State Br. 3-4; see also id. at 8 (arguing that the OCCA’s “finding mooted Petitioner’s claim that his federal due process rig hts were violated by the purported definition”). The State thus characterizes the OCCA’s opinion as a “factual finding” that the trial court’s wedding story did not constitute a “definition” of reasonable doubt, argues that this factual finding is uncontes ted and neither contrary to nor an unreasonable application of Supreme Court preced ent, and claims that it “mooted” Petitioner’s federal constitutional claim. The problem with this argument is that the federal constitutional questio n does not hinge on whether the trial court’s statement did, or did not, amount to a “definition” of the term. The federal constitutional right in question is the right to a “fair trial.” See, e.g. , Taylor v. Kentucky , 436 U.S. 478, 490 (1978) (“[R]efusal to give peti tioner’s requested instruction on the presumption of innocen ce resulted in a violation of his right to a fair trial as guaranteed by the Due Process Clause of the Fourteenth Amendment.”); Cupp v. Naughten , 414 U.S. 141, 145, 147 (1973). The “fact” (even assuming it is a “fact” and not a conclusion of law) that the trial court did not provide a “definition” of reasonable doubt is n ot inconsistent with the possibility that the jury was misled in a way that made his trial unfair. Beyond that, the State does not contend that the OCCA addr essed Petitioner’s federal claim on the merits.-9-

It remains possible, however, that the OCCA discuss ion of state law constitutes an implicit judgment on the federal issue. See Early v. Packer , 537 U.S. 3, 8 (2002) (per curiam); Cook v. McKune , 323 F.3d 825, 830-31 (10th Cir. 2003). Under Oklahoma law, it is error for a trial court to attempt to define reasonable doubt. Smallwood , 907 P.2d at 231; Summers v. State , 704 P.2d 91, 92 (Okla. Crim. App. 1985). This is because Oklahoma has determined that such definitions are more likely to confuse than to clarify the standard. See Romano v.
State , 909 P.2d 92, 124-25 (Okla. Crim. App. 1995); Smallwood , 907 P.2d at 231.
In Williams v. State , 572 P.2d 257, 259 (Okla. Crim. App. 1977), the co urt explained that “‘reasonable doubt’ is self-explanat ory, and . . . therefore definitions thereof do not clarify the meaning of t he phrase, but rather tend to confuse the jury.” The underlying purpose of the rule – ensuring that the jury is not misled – thus bears some resemblance to the fed eral constitutional inquiry. Oklahoma appellate courts do not apply the “no defi nition” rule mechanically – reversing if there was a definition and affirming if there was not. Rather, even when the appellate court finds that th e judge or prosecutor improperly defined “reasonable doubt” for the jury, it will not reverse the conviction unless it also finds that the definitionmisled the jury in a way that “prejudiced the rights of the [defendant] or affect ed the verdict to his detriment.” Johnson v. State , 632 P.2d 1231, 1233 (Okla. Crim. App. 1981); accord ,-10-

Summers , 704 P.2d at 92; Jones v. State , 554 P.2d 830, 835 (Okla. Crim. App. 1976). More significantly, at least in some cases, even when the appellate court has concluded that a discussion of “reasonable doub t” by a trial judge or prosecutor did not constitute a “definition,” the court has gone on t o inquire whether, even so, the discussion created an “erroneous impression,” Vaughn v.
State , 697 P.2d 963, 967 (Okla. Crim. App. 1985), or “pr ejudiced the rights of the appellant,” Johnson , 632 P.2d at 1233. No Oklahoma opinion of which w e are aware avers that this is required by state law, butit is at least sometimes the practice. Indeed, the OCCA in this case cited one such decision, Vaughn , and Vaughn cited another, Johnson . It is possible to construe the OCCA’s citation t o Vaughn as indicating that the court implicitly considered , and rejected, the possibility that the trial court’s wedding story wa s unconstitutionally misleading or prejudicial. If so, we would treat that implici t conclusion as “an adjudication on the merits” of Mr. Wansing’s fair trial claim, d espite its summary character. This conclusion is bolstered by the fact that, as t he State noted during oral argument, the OCCA summarized the issue presented a s whether “[t]he trial court deprived Mr. Wansing of a fair trial when he discus sed what constituted reasonable doubt.” See Mitchell v. Gibson , 262 F.3d 1036, 1049-50 (10th Cir.-11-

2001) (deferring under § 2254(d) because the state court identified the federal claim even though it explicitly resolved only a rel ated state claim). In light of our disposition in the next section, itis not essential to parse more carefully whether the OCCA decision constitute d an adjudication on the merits. Instead, giving the OCCA decision “the benefit of the doubt,” Woodford
v. Visciotti , 537 U.S. 19, 24 (2002) (per curiam), we now proceed to the question whether it was an unreasonable application of feder al law, as articulated by the Supreme Court, to uphold Mr. Wansing’s conviction.

III. The Merits of the Fair Trial Claim As the Supreme Court has repeatedly emphasized, “[t ]he reasonable-doubt standard plays a vital role in the American scheme of criminal procedure

. ” In re Winship , 397 U.S. 358, 363 (1970). Trial courts have cons iderable latitude in determining how to convey the concept of reasonable doubt to the jury; the constitutional requirement is only that “‘taken as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury.” Victor v. Nebraska , 511 U.S. 1, 5 (1994) (quoting Holland v. United States , 348 U.S. 121, 140 (1954)) (modifications in original). The quest ion we must answer is whether “there is a reasonable likelihood that the jury und erstood the instructions to allow conviction based on proof insufficient to meet the [constitutional requirement].” Id. at 6.-12-

The leading Supreme Court cases regarding the defin ition of reasonable doubt are Victor and Cage v. Louisiana , 498 U.S. 39 (1990) (per curiam). In Cage , the Court disapproved an instruction that describ ed reasonable doubt as “such doubt as would give rise to a grave uncertainty” and “an actual substantial doubt,” and said that the certainty required “is no t an absolute or mathematical certainty, but a moral certainty.” 498 U.S. at 40. The Court’s primary objection was to the modifiers “grave” and “substantial,” whi ch, in conjunction with the reference to “moral certainty,” suggested a higher degree of doubt for acquittal than the constitutional standard requires. Id. at 41. Later, Victor made it clear that Cage was a narrow decision. The Court upheld two jury i nstructions with the “moral certainty” and “substantial doubt” language, and explained that the Cage instruction had been unconstitutional only because of the confluence of several damning factors, notably the juxtaposition of the “ grave uncertainty” language with the “substantial doubt” language . Victor , 511 U.S. at 20. The Victor Court also noted that Cage ’s formulation of the standard of review had been disapproved. Id. at 6 (citing Estelle v. McGuire , 502 U.S. 62, 72 & n.4 (1991)). In this case, the trial court expressly declined to provide a definition of “reasonable doubt” for the jury, but told a story t hat contained a definition based on an analogy to the doubt necessary to call off a wedding. The judge attributed the definition to a “federal prosecutor” and inform ed the jury that the definition-13-

was “permissible at that time, in that federal juri sdiction.” The judge quoted the prosecutor as equating reasonable doubt to “the kin d of serious doubt that causes you to act or not act in matters that are serious, like calling off a wedding at the last minute.” The judge dwelt on certain details – reminiscent of The Philadelphia Story – including the fact that the decision to call off the wedding came “at the last minute, after you’ve walked down the aisle and are waiting on the other party or waiting on the best man, or some thing like that, . . . after all the announcements are out and the gifts have been recei ved and everybody’s all dressed up and sitting in church, and the minister’ s looking at you, and all of a sudden you walk out.” The judge pointed out the imprecision in that definition. Some people might stop a wedding at “the slightest bit of doubt.” But others, he said, might not call off a wedding even if they tho ught they were “absolutely going to live a life of misery” and that the marria ge was a “terrible, bad decision.” The embarrassment and inconvenience to others would be too great. They “wouldn’t budge.” (R., supp. vol. 7, at 41-42 .) We agree with the OCCA that the trial judge in this case was not attempting to adopt that hypothetical interpretation as a defi nition of the reasonable doubt standard, and so we presume that the jury did not t ake him to be providing that definition. See Weeks v. Angelone , 528 U.S. 225, 234 (2000) (a jury is presumed to follow its instructions and understand the judge ’s answers to its questions).-14-

Furthermore, we recognize that the judge recounted the wedding-day standard of reasonable doubt only to criticize it – a fact upon which the State heavily relies. However, not every criticism of a mistaken standardis itself correct. The judge did not go on to say that the range of standa rds that individuals might derive from the wedding-day analogy is far broader than is constitutionally permissible. Specifically, he did not say that the standard for acquittal employed by the second group of people – those who “wouldn’tbudge” – was unconstitutionally high. Even granting that the ju ry did not take the wedding analogy as a mandatory definition of reasonable dou bt, the judge’s discourse misleadingly suggested that they had a degree of le eway broader than the Constitution permits. That suggestion was immediately confirmed by the mo ral of the judge’s story: The fact of the matter was, that reasonable doubt

is a subjective matter that has to be resolved by e ach person, and each person in the individuality of his or her own conscience and reason. And furthermore, it’s g oing to vary every case, because every case is different. . . . So, Oklahoma takes the position that it’s wrong to tell you what reasonable doubt is. Only you can de cide what is reasonable, in the light and under the circumstances of each individual case. Because, af ter all, it is your reason that we rely on to decide th e evidentiary issues in the case. And, so, who are w e to tell you what is reasonable and what is not? That is wholly within your province.-15-

(R., supp. vol. 7, at 42-43.) This summation informed the jury that attempted definitions are not only ineffective but impermissi ble, not just because they might be confusing, but because they are intrusions on th e discretion of each juror to make his or her own “subjective” determination of w hat is reasonable doubt. As we see it, the problem is not that the jurors may have thought the judge was endorsing the “wedding cancellation” definition . He made quite clear that he disapproved of that definition. The problem is that the reasons the trial court gave the jury for why the definition was flawed wer e themselves misleading. The Oklahoma courts discourage providing a definition o f reasonable doubt not because the term has a broad range of meanings, or because jurors are entitled to decide the meaning for themselves, but because the term is “self-explanatory.” Williams , 572 P.2d at 259; Underwood v. State , 659 P.2d 948, 950 (Okla. Crim. App. 1983). Some terms – like “game” in Wittgenste in’s celebrated example – carry distinct meanings to ordinary speakers of the English language even though they defy definition. See Ludwig Wittgenstein, Philosophical Investigations paras. 66-78 (G.E.M. Anscombe trans., 3d ed. 1958). To provide a definition of “reasonable doubt,” the Oklahoma courts have conclu ded, is more likely to confuse the jury than to clarify its task. Williams , 572 P.2d at 259; Underwood, 659 P.2d at 950. The point is not that jurors shou ld be unconstrained in their-16-

choice of meanings, but that they will be more effe ctually constrained by the unadorned term “reasonable doubt” than by any conce ivable definition. The judge’s explanation, however, implied that ther e is an extraordinarily broad range of possible meanings, including some wh ich are plainly unconstitutional, and informed the jurors that theyhad to resolve the definitional issue for themselves, in the “individuality” of the ir own “conscience and reason.” He thus subverted the “self-explanatory” character of the term and invited the jury to treat as “reasonable doubt” everything from “the slightest bit of doubt” to a stubborn refusal to budge even in the face of the s trongest possible reasons, and suggested that any attempt to cabin their definitio nary discretion is an invasion of their “province.” This created a “reasonable likel ihood that the jury understood the [remarks] to allow conviction” based on “a degr ee of proof below that required by the Due Process Clause.” Victor , 511 U.S. at 6 (quoting Cage , 498 U.S. at 41). Furthermore, given the sweeping natur e of the judge’s language, it would have been unreasonable for the OCCA to conclu de otherwise – especially if it did so, as appears, solely because the remark s were not technically a definition. To be sure, the lack of a formal definition makes t his case different from Cage andVictor . Those cases also involved formal instructions gi ven to the jury prior to deliberation, not extemporaneous commentary during voir dire. However,-17-

nothing in their rationale turns on whether the misleading statement s are properly characterized as a definition or as instructions. Rather, the central question is the substantive one: whether the jury was reasonably li kely to think it could convict using an improper standard. If it was, the OCCA co uld not reasonably refuse to grant relief solely because the jury’s misimpressio n was caused by a different kind of statement. Differences in the timing and purpose of potentiall y misleading comments are undoubtedly relevant in determining the likelih ood that the comments influenced the jury. But in this case, it seems be yond reasonable disagreement that the remarks were influential. Although they o ccurred during voir dire, the three-day trial was short enough that they would no t be a distant memory when the jury went to deliberate. And although the info rmality of voir dire might make judicial comments during voir dire less influential than formal instructions, the circumstances of this case suggest that the remarks were delivered at a particularly potent time. The judge delivered the wedding story in direct response to a potential juror’s question about the meaning o f “reasonable doubt.” The juror’s question highlighted to the entire jury poo l the potential uncertainty in the standard. It is likely that the jurors were partic ularly receptive to the guidance they received at that time, when they were thinking about the issue and not overburdened with other issues and other instructio ns. Indeed, when the-18-

prosecutor asked one prospective juror whether she could assess punishment “providing that we prove them guilty beyond a reaso nable doubt, and the evidence is there,” the juror clarified, “In my own mind.” (R., supp. vol. 7, at 56.) This shows that the lesson of the judge’s remarks had no t been lost. Moreover, because of the Oklahoma rule, the jury instructions included no correct definition of “reasonable doubt” that might have dispelled the misleading impression the jury received during voir dire. The judge’s remarks made it reasonably likely that the jury would overestimate the amount of latitude it had in defin ing the reasonable doubt standard. His story, in combination with his empha sis on the subjective nature of each juror’s decision regarding the meaning of the term, sent two unconstitutional messages: (1) that the reasonable doubt standard co mprises as broad a range of burdens of proof as that suggested by the wedding analogy; and (2) that jurors have discretion to make their own subjective determ ination as to what that standard should be. We conclude that it would be a n unreasonable application of clearly established federal law, as interpreted in Cage and Victor , to uphold this conviction.
Conclusion The decision of the district court is therefore REVERSED and
REMANDED , with instructions to enter judgment granting Mr. Wansing’s-19-

petition for writ of habeas corpus unless the state retries him within a reasonable time to be determined by the district court. Appel lant’s motion to supplement the record is granted.