No. 84-276 

IN THE SUPREIllE COURT OF THE STATE OF MONTANA 

1984 

STATE OF MONTANA, 

Plaintiff and Xespondent, 

-vsJOHN LYNN LUCERO, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Diane G. Barz, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant : 

John L. Adams, Billings, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Harold Hanser, County Attorney, Billings, Montana 

Klaus Richter, Deputy County Atty., Billings, Montana 

Submitted on Briefs: Nov. 2, 1984 

Decided: December 31, 1984 

- - -- -- Clerk 
Mr. Justice John C. Sheehy d.elivered t.he Opinion of the 

Court. 

Appellant John L. Lucero appeals fr~m a judgment of 

conviction for burglary, $ 45-6-204, MCA, in the District 

Court, Thirteenth Judicial District, Yellowstone County. 

Lucero was convicted in a trial. by a jury and sentenced to 

ten years in the Montana State Prison with two years 

suspended. 

Sometime between the hours of 8:30 p.m. on October 23, 

1983 and 7:00 a.m. on October 24, 1983, Kon's Supermarket 

located at 708 Rroadwater Street, Billings, Montana, was 

entered by someone through a trap door on the roof of the 

building. A safe that had been imbedded j.n concrete and 

which contained approximately $7,000 in cash, $17,000 in 

checks and $1,000 in green stamps was forcibly uprooted and 

remo~red through the back door of the premises. The manager, 

Gordon McCann, arrived at 7:00 a.m., noticed that the 

Courtesy Counter where the safe had been located was in 

shambles and summoned the police. Officers found three cans 

of beef jerky in the area of the Courtesy Counter; one can 

had been partially emptied and was located on a shelf inside 

the counter. The other two cans were in the area unopened. 

Detectives lifted fingerprints from all three cans hu-t coul-d 

only positive]-y identify two thumbprints from the opened can. 

These thumbprints matched those of defendant-appellant 

Lucero. No other fingerprint matching Lucero's or any other 

suspicious fingerprints were found by the police during their 

investj gation. 

From September 17, 1983 to October 6, 1983, John Lucero 

worked for George Maddox who operated a janitorial service 
that was under contract to clean Kon ' s Supermarket. Lucero 

worked at the Kon's store on Broadwater Street and had 

occasion to be in the vicinity of the beef jerky display 

while at work. Maddox fired Lucero on October 6, 1.983, about 

17 days before the break-in, because his work performance was 

unsatisfactory. 

Rased on the fingerprint evidence, Lucero was arrested, 

charged, and brought to trial on January 30, 1984. The jury 

returned a verdict of guilty and Lucero was sentenced to a 

term of 10 years in prison with two years suspended. 

From inside the prison wal-1s Lucero personally filed a 

notice of appeal, and a motion to proceed in forma pauperis. 

Judge Ba.rz granted leave to proceed in forma pauperis. 

Beca.use the appellant had become dissatisfied with his trial 

counsel, Allen Beck, the court appointed John L. Adams to 

represent Lucero on appeal. 

Appellant raises five issues in his notice of appeal. 

(1) Whether the judgment of conviction is void for 

insufficient evidence to sustain the verdict where, as here, 

the circumstantial evidence does not exclude every reasonable 

hypothesj-s other than guilt? 

(2) Whether prosecutorial- suppression of material 

evidence favorable to the accused invalidates the judgment of 

conviction? 

(3) Whether the accused was deprived of his right to a 

fair trial based on cumulative error? 

(4) Whether judgment of conviction was obtained in 

violation of the right of the accused to effective counsel 

where, as here, defense counsel neither investigated nor 

developed the affirmative defenses interposed by the accused 

to counsel before trial and defense counsel consistently 
committed shockingly prejudicial errors aga.inst the accused 

at trial.? 

(5) Whether the District Court erred a.s a matter of law 

hq7 its improper instruct.ions given to the jury and by its 

failure to fairly and properly instruct the jury? 

Appellant's counsel deemed appellant's first four issues 

C 

to be without merit and did not argue them in his brief. 

Appellant in his brief concentrated his argument on the fifth 

issue which concerns the instructions to the jury. The State 

only responded to that argument. 

We consider five points of claimed error in the notice 

of appeal even though appellant's appointed counsel. did not 

argue four of them. Although we do not find that any of 

appellant's first four points of error can he sustained, we 

respect appellant's right in this case to raise such issues. 

Appellant contends that there was insufficient evidence 

as a matter of 1.aw to convict him. The law concerning 

questions of sufficiency of: evidence is settled in Montana 

and is aptly expressed in the following quote: 

"As this Court has held many times over, the jury 

is the fact finding body in our system of 

jurisprudence, and its decision is controlling. 

The jury is free to consider all the evidence 

presented and to pick and choose which of the 

witnesses it wishes to believe. If sufficient 

testimony was introduced, as well as exhibits to 

iustify the jury's findj-ngs, then its conclusions 

will not he disturbed unless it is apparent there 

was a clear misunderstanding by the jury or that 

there was a misrepresentation made to the jury." 

State v. Swazio (1977), 173 Mont. 440, 445, 568 ~.2d 124, 

127; State v. Fitzpatrick (1973) , 163 Mont- 2201 2261 516 

The jury may pick and choose between contradictory 

testimony or other evidence in reaching its conclusion. In 

this case there was no direct conflict in the evidence but a 
question of inferences to he drawn from circumstantial 

evidence presented. The State's case hinged on the fact that 

two of defendant's thumbprints were found on one can of beef 

ierky left at the scene. Evidence was presented that tended 

to show that it was unlikely but not impossible that the 

defendant's fingerprints were placed on that particular can 

of beef jerky while defendant worked as a janitor in the 

store approximately 17 days before the break-in. 

We stated in Fitzpatrick, supra, that to justify a 

conviction in a case based solely on circumst.antia1 evidence, 

the facts and circumstances must not only be entirely 

consistent with the theory of guilt, but must be inconsistent 

with any other rational (reasonable) conclusion. 3.63 Eont. 

220, 225, 516 P.2d 605, 609. 

Defendant's proposed jury instruction no. 2 was given by 

the court as instruction no. 15. This instruction was an 

accurate statement of the law as we set forth in Fitzpatrick. 

It correctly stated that if the circumstantial evidence was 

susceptible to two reasonable interpretations, one of which 

points to the defendant's guilt and the other to his 

innocence, it is the duty of the jury to adopt. the 

interpretation which points to the defendant's innocence and 

reject that interpretation which points to his guilt. We 

must decide as a matter of law whether the jury totally 

misunderstood this instruction or whether they acted 

consistently with it. 

From the evidence presented it is consistent for the 

jury to have inferred that the defendant's thumbprints were 

!-eft on the can of beef jerky during the night of burqlary. 

The jury could have then concluded that the defendant had 

illegally entered the store wjth the intent to commit a 
criminal. offense therein. The circumstantial evidence is 

consistent with the prosecution's theory of guilt. 

The evidence is not inconsistent with the theory that 

Appellant's thumbprints were left on the can of beef jerky 

when he picked up the can in question during his employment 

as a custodian. The question arises whether this is a 

reasonable conclusion. We think it was within the provi~ce 

of the jury to conclude it was not reasonable. 

Mr. Kraft, the meat manager at Kon's, testified that he 

restocked the beef jerky display twice, once on the 8th of 

October and once on the 15th of October, 1983. He stated 

that he put out a case (24 cans) of beef jerky each time he 

stocked the display. The evidence tended to show that Lucero 

would only have had reason to touch a can of beef ierky if he 

disturbed the display while cl eanins. There was no 

affirmative evidence offered as to whether Lucero did in fact 

touch a can or cans of beef jerky during the course of his 

employment or at any other time. We conclude that the jury 

did not as a matter of law err in concluding that the 

defendant's interpretation of the circumstantial evidence was 

not a reasonable one. 

Appellant contends that the prosecution suppressed 

material evidence favorable to the accused. We have searched 

the record and find no evidence that anything was suppressed. 

It appears that both sides were able to adequately present 

their evidence and theory of the case a-t trial. 

Appellant contends that his convictjon should be 

reversed based on cumulative error. Appellant does not point 

to any instances of harmless error that could accumulate to 

produce sufficient prejudice to warrant reversal. 
Appellant's contention that he was not represented by 

effective counsel at trial is without merit. We have 

searched the record and are satisfied that Mr. Beck presented 

an adequate defense. Counsel clearly presented appellant's 

theory of the case. His cross-examination of prosecution 

witnesses was aimed at eliciting discrepancies in their 

testimony and drawing out evidence favorable to his client. 

Appellant Lucero chose not to testify j.n his own behalf. 

Such is his right. Counsel did not coerce the appellant to 

make this election. Nowhere has it heen shown that counsel 

for the appellant a.cted in such a manner as to deprive the 

appellant of a fair trial. 

Appellant contends the District Court gave the iury an 

erroneous and clearly prejudicial instruction on the meaning 

of "reasonable doubt." Defense counsel objected to the 

instruction on the grounds that it was ambiguous and 

confusing and it impermissibly shifted the burden of proof to 

the appellant. Appellant alleges that instruction no. 6 as 

given states the only way a reasonable doubt can be found in 

the minds of the jury is if the doubt has foundation in fact 

or testimony in evidence. Appellant contends the instruction 

should clearly state that a reasonable doubt can arise from 

lack of testj-mony or lack of evidence. Instruction no. 6 

follows: 

"You are instructed that the doubt which a juror is 

a1.I.owed to retain in his mind and under the 

influence of which he should form a verdict of not 

guilty, must always he a reasonable one. 

"A reasonable doubt is not such a doubt as a man 

may start by questioning for the sake of a doubt, 

nor a doubt suggested or surmised without 

foundation in the facts or testimony. It is such 

doubt as in a fair, reasonable effort to reach a 

conclusion upon the evidence, using the mind in the 

same manner as in other matters of the highest and 

gravest importance, prevents the jury from coming 
to a conclusion in which their minds rest 

satisfied. 

"If, in so using the mind and considering a11 the 

evidence produced, it 1ead.s to a conclusion which 

satisfied the judgment and leaves upon the mind a 

settled conviction of the truth of the fact, it is 

the duty of the jury to declare the fact by their 

verdict. 

"It is possible always to question any conclusion 

derived from testimony, but such questioning is not 

what is a reasonable doubt. A reasonable doubt 

exists in that state of the case which, after the 

entire comparison and consideration of all the 

evidence leaves the minds of the jurors in that 

condition that they cannot say that they feel an 

abiding conviction to a moral certainty of the 

truth of the charge. 

"A doubt produced by undue sensibility in the mind 

of any juror, in view of the consequences of his 

verdict, is not a reasonable one, and a juror is 

not allowed to create sources or materials of doubt 

by resorting to trivial and fanciful suppositions 

and remote conjectures as to a possible state of 

facts differing from that established by the 

evidence. 

"Simply stated, a reasonable doubt is a doubt for 

which there is a reason and the reason must be 

founded upon the evidence received in the course of 

the trial and not from any other source." 

The State contends that because appellant did not submit 

a jury instruction defining "reasonable doubt" he should be 

barred from complaining about the State's instruction that 

was given by the court. That rule applies, however, only 

when the court fails to instruct on a. point of law. Rule 51, 

K.R.Civ.P. The appellant clearly voiced his objection to the 

instruction and stated his reasons with particularity. The 

court, nonetheless, overruled the objection and made no 

effort to strike, clarify or alter the instruction in 

response to appellant's objection. We find that the 

appellant preserved his assignnent of error. Rule 51, 

The State argues that although instruction no. 6 d-id not 

specifically mention tha.t a reasonable doubt could arise from 
a lack of evidence the idea is impl.icit in the instruction. 

Common sense reveals the message intended by the instruction. 

The State further contends that the cumulative effect of al-1. 

the jury instructions clearly conveys the legal meaning of 

reasonable doubt. We disagree. 

The jury instructions to which the State refers do not 

clarify the meaning of "reasonable doubt." Instruction nos. 

4, 5, 9, and 15 merely mention that the State has the burden 

of proving the elements of the crime beyond a reasonable 

doubt. 

These instructions by their terms solicit reference to 

instruction no. 6. The jury may have focused on instruction 

no. 6 in order to apply the meaning of "reasonable doubt" 

contained in the other jury instructi.ons. 

Due process constitutionally mandates that the guilt of 

the accused be proven beyond a reasonable doubt. In Re 

Winship (1970), 397 U.S. 358, 90 S.Ct. 1068; 25 L.Ed..2d 368. 

An ambiguous, erroneous or misleading jury instruction 

defining reasonable doubt would deprive the accused of his 

constitutional right to due process. See State v. Berberick 

(1909), 38 Mont. 423, 100 P. 209. 

Some states expressly disapprove of giving any 

instruction that attempts to define reasonable doubt. They 

consider the term "reasonable doubt" is clearly expressed by 

the term itself, and attempts to elaborate on its plain 

meaning tend to mislead and confuse. See Parnell 17. State 

(Okla. 19821, 640 P.2d 568; State v. Douglas (1982), 640 P.2d 

1.259; Bentley v. State (Wyo. 1972), 502 P.2d 203. 

Oklahoma has held it is reversible error to give any 

instruction defining reasonable doubt, Parnell, supra; 

Fellows v. State (Okla. 1973), 5Q8 P.2d 1089. In the other 
cases cited above, after expressing disapproval, the Courts 

determined whether the instruction was misleading. 

In the past, Montana courts have given an instruction 

defining reasonable doubt. See Territory of Montana v. 

McAndrews (1878), 3 Mont. 158; State v. Zorn (1935), 99 Mont. 

63, 41 P.2d 513; State v. Phillips (1953), 127 Mont. 395, 264 

P.2d 1009. 

An instruction on reasonable doubt similar to the one we 

are here considering was approved by this Court in State v. 

DeLea (1908), 36 Mont. 531, 98 P. 814. Justice Henry C. 

Smith commented however, on the impossibility of 

satisfactorily defining "reasonable doubt," perhaps because 

the words were so "ordinary and simple." He contended the 

instruction was so laborious and technical that it really 

confused a jury, conveyed to them the feeling that 

common-sense words were twisted by the law into 

technicalities, and led to verdicts which jurors would later 

bl-ame, saying, "It was the only thing we could do under the 

charge of the court." 

We are convinced that the definition of reasonable doubt 

given in past cases a~cl the instruction qiven here do not 

help clarify the State's burden of proof but have a tendency 

to confuse the jury. The well-crafted arguments of counsel 

in this case further demonstrate that analysis of the 

instruction is primarily an exercise in semantics. This 

exercise invites appeal and does not serve the interests of 

justice. 

Recently, this Court received from the Commission on 

District Courts a set of pattern jury instructions which the 

Commission recommended for use in criminal cases in this 

State. Its general instruction no. 1-004 contained a 
definition of reasonable doubt. We suggest for use in future 

criminal cases that instruction and no further elaboration of 

the definition would be needed. The perti~ent part of the 

pattern imstruction follows: 

"3. The State of Mon.tana has the burden of proving 

the guilt of the defendant beyond a reasonable 

d.oub t . 

"4. Proof beyond a reasonable doubt is proof of 

such a convincing cha-racter that a reasonable 

person would rely and act upon it in the most 

important of his own affairs. Beyond a reasonable 

doubt does not mean beyond any doubt or beyond a 

shadow of a doubt." 

We believe the instruction given in the present case was 

misleading because the jury was instructed that a reasonable 

doubt could only be surmised from the evidence or testimony 

presented at trial and not from any other source. A lawyer 

or one trained in the law may recognize that a lack of 

evidence or an insufficiency of evidence presented. at trial 

may give use to a reasonable doubt but a juror relying on the 

letter of this instruction may not. The effect of a iury 

instruction is determined by the way in which a reasonable 

iuror could have interpreted it, not by the state courts' 

interpretation of its 1-egal import. Sandstrom v. Montana 

(1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39. he jury 

could reasonably interpret the instruction to mean that 

affirmative evidence supporting the appell-ant's innocence was 

required as the basis for a reasonable doubt. The effect is 

to shift the burden of proof to the appellant and such is not 

constitutionally permissible. 

In light of the quantum of evidence presented against 

the appellant in this case we hold that instruction no. 6 

deprived the appellant of his right to due process under the 
1-aw. We reverse the conviction of the appellant and remand 

to the District Court for a new trial. Reversed. 

-, . >L~/.IL '$/kuL7 

; Justice 

1 

We Concur: 

Chief Justlce 
Mr. Justice L. C. Gulbrandson, dissenting. 

I respectfully dissent. 

Court's instruction no. 6, defining reasonable doubt, 

now disapproved by the majority, was, in substance, 

formulated by Chief Justice Shaw of the Supreme Court of 

Massachusetts in the case of Commonwealth v. Webster (1850), 

5 Cush. 295, 52 Am.Dec 711. 

The pertinent language of instruction no. 6, now found 

to be offensive, was set forth word for word, and approved, 

in Territory of Montana v.McAndrews (1878), 3 Mont. 158. 

In the case of State v. De Lea (1908), 36 Mont. 531, 93 

P. 81-4, the appellant made precisely the same attack used by 

appellant here on the same Language and this Court affirmed 

the use of the instruction with the following comment: 

I' [A doubt] always does, and of necessity 

must, arise from a want of evidence, by 

which we mean a want of sufficient 

evidence; for in every criminal case 

where there is a plea of not guilty, if 

the state does not introduce any 

evidence, the question of a reasonable 

doubt never arises; for there is not a 

court in the land but what under those 

circumstances would peremptorily direct a 

verdict of not guilty. But, if the state 

does offer evidence sufficient in the 

iudgment of the trial court to go to the 

jury, then the jurors under their oaths 

must consider such evidence, and such 

evidence alone, in determining whether 

the safeguard erected by the presumption 

of innocence has been completely 

destroyed. It is completely destroyed 

when, and only when, the jurors can say 

from the evidence introduced that they 

feel an abiding conviction to a moral 

certainty of the truth of the charge 

against the accused. If the evidence 

leads to a conclusion which satisfies the 

judgment of the jurors, and leaves upon 

their minds a settled conviction of the 

truth of the charge, it is then their 

duty to so declare by their verdict. But 

in every such contested case their 

consideration is directed to the evidence 
introduced, and from that evidence they 

must say whether they still retain a 

reasonable doubt of the guilt of the 

accused. It is in this sense that it is 

said that a reasonable doubt is not a 

doubt suggested or surmised without 

foundation in facts or testimony. In 

other words, the jurors may not predicate 

a doubt upon street rumor, or facts not 

in evidence, nor upon theories outside of 

the record, which may he suggested by the 

ingenuity of counsel, or upon a merciful 

inclination to permit the accused to 

escape, prompted by sympathy for him in 

his apparently unequal contest with the 

state." 36 Mont. at 540. 

I would affirm the trial court on the authority of 

State v. De Lea, supra, but as a second basis for affirmance, 

I note that the appellant failed to offer an alternative 

instruction on "reasonable doubt. I' In State v. Schleining 

(1965), 146 Mont. 1,13, 403 P.2d 625, 632, this Court stated: 

"[Ilt is well-settled in this state that 

if a party is not satisfied with an 

instruction or instructions proposed to 

be given, he must submit an instruction 

which more fully covers the particular 

matter, or he cannot be heard to 

complain, unless the instruction given is 

inherently wrong. " (Citations omitted. ) 

The fact that instruction no. 6 has been relied upon by 

the trial courts of this state for seventy-six years since 

the same attack was heard and rejected by this Court, leads 

me to believe that the instruction as given was not 

"inherently wrong," and., therefore the appellant should be 

precluded from alleging prejudicial error where he failed to 

offer an alternative instruction. 

Regarding the effect of instruction no. 6, it is my 

view that if the jury, after reading all the instructions 

together, and considering all the evidence, determined that 

the State had failed to produce enough evidence to meet its 

burden, they would have concluded that there was a reasonable 
doubt as to defendant's guilt, and would have returned a 

verdict of "not guilty. " 

It seems clear that the jury was not misled into 

believing that somehow the burden of proof shifted from the 

State to the defendant, and the instructions certainly did 

not take from the jury the concept that a lack of evidence 

could give rise to a reasonable doubt. 

I would affirm. 

I 

Justice /