No. 84-276 IN THE SUPREIllE COURT OF THE STATEOF MONTANA 1984

STATE OF MONTANA, Plaintiffand Xespondent,

-vsJOHN LYNN LUCERO, Defendantand Appellant.

APPEAL FROM: District Court of the Thirteenth JudicialDistrict, In and for the County of Yellowstone, The Honorable Diane G. Barz,Judgepresiding.

COUNSEL OF RECORD: ForAppellant: John L. Adams, Billings,Montana

For Respondent: Hon. Mike Greely,Attorney General, Helena,Montana Harold Hanser,CountyAttorney, Billings, Montana Klaus Richter, DeputyCounty Atty., Billings, Montana

Submitted on Briefs: Nov. 2, 1984 Decided: December 31, 1984

------ ClerkMr. 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~redthrough 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-tcoul-d onlypositive]-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 fingerprintswere 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 servicethat 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 atwork. Maddox fired Lucero on October 6,1.983,about 17days before thebreak-in, becausehiswork performancewas 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 10years inprison with twoyears suspended. From inside the prison wal-1sLucero personally filed a notice of appeal,and amotion to proceed in formapauperis. Judge Ba.rz granted leave to proceed in forma pauperis. Beca.usethe appellant had become dissatisfiedwith 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 verdictwhere, as here, the circumstantial evidence doesnot exclude every reasonable hypothesj-sother than guilt? (2) Whether prosecutorial- suppression of material evidence favorableto the accused invalidates the judgment of conviction? (3) Whether the accused was deprived of his right to a fair trialbased 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 consistentlycommitted shockingly prejudicial errors aga.instthe accused at trial.? (5) Whether theDistrict Court erred a.sa matter of law hq7 its improper instruct.ionsgiven to the jury and by its failure to fairly and properly instructthe jury? Appellant's counseldeemed appellant's first four issues

Cto be without merit and did not argue them in his brief. Appellant inhisbrief concentrated his argument on the fifth issue which concerns the instructionsto 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 isaptly 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 therewas no direct conflict in the evidencebut aquestion of inferences to he drawn from circumstantial evidencepresented. The State's casehinged on the fact that two of defendant's thumbprints were found on one can of beef ierky left at the scene. Evidencewas 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 17days before the break-in. We stated in Fitzpatrick, supra, that to justify a conviction in a casebased solelyon circumst.antia1evidence, the facts and circumstances must not only be entirely consistent with the theory of guilt, but mustbe inconsistent with any other rational (reasonable)conclusion. 3.63 Eont. 220, 225, 516 P.2d 605, 609. Defendant'sproposed jury instruction no. 2was givenby the court as instruction no. 15. This instruction was an accurate statementof the lawaswe 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 thumbprintswere !-efton 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 acriminal. 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 itwas not reasonable. Mr. Kraft, the meatmanager 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 (24cans) of beef jerky each time he stocked the display. The evidence tended to show that Lucero would only havehad reason to touch a can ofbeef ierky if he disturbed the display while cleanins. There was no affirmative evidence offered as towhether Lucerodid 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 interpretationof the circumstantial evidencewas not a reasonableone. Appellant contends that the prosecution suppressed material evidence favorable to the accused. We have searched the record and find no evidence that anythingwas suppressed. It appears that both sides were able to adequately present their evidence and theory of the case a-ttrial. Appellant contends that his convictjon should be reversed based on cumulative error. Appellantdoes notpoint to any instances of harmless error that could accumulate to produce sufficient prejudice towarrant 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 thatMr. 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 itheen shown that counsel for the appellant a.ctedin 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 themeaning of "reasonable doubt." Defense counsel objected to the instruction on the grounds that it was ambiguous and confusing and it impermissiblyshifted the burden ofproof to the appellant. Appellant alleges that instructionno. 6 as given states the only way a reasonable doubt canbe found in theminds 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-monyor lack of evidence. Instruction no. 6 follows: "Youare 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 alwayshe a reasonableone. "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 themind in the same manner as in othermatters of the highest and gravest importance, prevents the jury from comingto 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 factby their verdict. "It is possible always to question any conclusion derived from testimony,but such questioning isnot 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. "Adoubt produced by undue sensibility in themind 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 thatbecause appellantdid 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 instructon 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 Stateargues that although instructionno. 6d-idnot specificallymention tha.ta reasonabledoubt could arise froma lack of evidence the idea is impl.icitin the instruction. Common sense reveals themessage intendedby the instruction. The State further contends that the cumulative effect of al-1. the jury instructions clearly conveys the legal meaning of reasonabledoubt. We disagree. The jury instructions to which the State refers do not clarify the meaning of "reasonabledoubt." Instructionnos. 4, 5, 9,and 15 merely mention that the Statehas 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 jurymay 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; Bentleyv. 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), 5Q8P.2d 1089. In the othercases cited above, after expressing disapproval, the Courts determined whether the instructionwasmisleading. In the past, Montana courts have given an instruction defining reasonable doubt. See Territory of Montana v. McAndrews (1878),3Mont. 158; Statev. Zorn (1935),99Mont. 63,41 P.2d 513; Statev. Phillips (1953),127Mont. 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 verdictswhich jurors would later bl-ame,saying, "Itwas the only thing we could do under the chargeof the court." We are convinced that the definition of reasonabledoubt given in past cases a~clthe instruction qiven here do not help clarify the State's burden of proof but have a tendency to confuse the jury. Thewell-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 adefinition of reasonable doubt. We suggest foruse infuture criminal cases that instructionand no further elaborationof the definition would be needed. The perti~ent part of the pattern imstruction follows: "3. The Stateof Mon.tanahas theburden of proving the guilt of the defendant beyond a reasonable d.oubt

# . "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." Webelieve theinstructiongiven inthepresent casewas misleading because the jury was instructed that a reasonable doubt could only be surmised from the evidence or testimony presented attrial 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. attrial may giveuse toa reasonable doubtbut 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, 61L.Ed.2d 39. he jury could reasonably interpret the instruction to mean that affirmative evidence supportingthe appell-ant's innocencewas required asthe basis for a reasonable doubt. The effect is toshifttheburden of proof tothe appellant and such isnot constitutionallypermissible. In light of the quantum of evidence presented against the appellant in this case we hold that instruction no. 6 deprived the appellant of hisright todue process under the1-aw. We reverse the conviction of the appellant and remand totheDistrictCourt fora new trial. Reversed.

-,

. >L~/.IL 

## '$/kuL7 ; Justice 1

WeConcur:

Chief JustlceMr. Justice L. C. Gulbrandson,dissenting.

Irespectfully 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 ofCommonwealth

### v. Webster (1850), 5 Cush. 295, 52Am.Dec 711. The pertinent language of instructionno. 6,now found to be offensive,was set forth word forword, and approved, in Territory of Montana v.McAndrews (1878), 3 Mont. 158. In the case of State

### v. DeLea (1908),36Mont. 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 followingcomment:

I' [Adoubt] 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 peremptorilydirect a verdict ofnotguilty. 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 conclusionwhich 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 sodeclareby theirverdict. But in every such contested case their consideration isdirected to the evidenceintroduced, 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 otherwords,the jurors may notpredicate a doubt upon street rumor, or facts not in evidence,nor upon theories outsideof the record, whichmay he suggestedby 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 Statev. DeLea, supra,but as a secondbasis for affirmance, I note that the appellant failed to offer an alternative instruction on "reasonable doubt.I' In State v. Schleining (1965),146Mont. 1,13, 403 P.2d 625, 632,thisCourt 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 instructionno. 6 has been relied uponby 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 errorwhere 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 therewas a reasonabledoubt as to defendant's guilt, and would have returned a verdictof "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 couldgiverisetoa reasonabledoubt. I would affirm.

I Justice

### /