ATTORNEY FOR APPELLANT
Janice L. Stevens
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Sarah E. Scherrer
Deputy Attorney General
SUPREME COURT OF INDIANA
TONY WILLIAMS, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 49S00-9901-CR-45
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Jane Magnus-Stinson, Judge
Cause No. 49G06-9608-CF-126264
ON DIRECT APPEAL
March 7, 2000
Tony Williams was convicted of the murder of Anthony Winston and sentenced to
sixty-five years imprisonment. He raises a single issue in this direct appeal:
Whether the reasonable doubt instruction recommended by this Court in Winegeart v.
State, 665 N.E.2d 893, 902 (Ind. 1996), and given by the trial court
in this case usurped the presumption of innocence and violated his right to
due process. We affirm the trial court.
Factual and Procedural Background
On August 25, 1996, Williams and Anthony Winston got into an argument over
a woman. According to Williams, Winston pointed a gun at him.
Williams then slashed Winston several times with a box cutter knife. Winston
died as the result of bleeding caused by stab wounds to the head,
neck, chest, and extremities. A jury convicted Williams of murder and the trial
court sentenced him to sixty-five years imprisonment.
Reasonable Doubt Instruction
The trial court gave the following instruction defining reasonable doubt:
The State has the burden of proving the defendant guilty beyond a reasonable
doubt. Some of you may have served as jurors in civil cases,
where you were told that it is only necessary to prove that a
fact is more likely true than not true. In criminal cases, the
states proof must be more powerful than that. It must be beyond
a reasonable doubt.
Proof beyond a reasonable doubt is proof that leaves you firmly convinced of
the defendant's guilt. There are very few things in this world that
we know with absolute certainty, and in criminal cases the law does not
require proof that overcomes every possible doubt. If, based on your consideration
of the evidence, you are firmly convinced that the defendant is guilty of
the crime charged, you should find him guilty. If, on the other
hand, you think there is a real possibility that he is not guilty,
you should give him the benefit of the doubt and find him not
This is a near verbatim recitation of the Federal Judicial Center pattern instruction
recommended by a majority of this Court in Winegeart v. State, 665 N.E.2d
893, 902 (Ind. 1996). Williams objected to the last sentence of the
instruction on the ground that it was at odds with the presumption of
He contends that the language if . . . you think
there is a real possibility that he is not guilty, you should give
him the benefit of the doubt is inconsistent with the presumption of innocence.
His contention is that the benefit of the doubt is extended to
all defendants, not only those whom the jury feels there is a real
possibility are not guilty. He further contends that the instruction tells the
jurors if they believe the defendant is actually guilty, they should not apply
the presumption of innocence and the requirement of proof beyond a reasonable doubt
in rendering a verdict.
The Due Process Clause of the Fourteenth Amendment requires the State to prove
every element of a charged offense beyond a reasonable doubt.
re Winship, 397 U.S. 358, 364 (1970). As the Supreme Court of
the United States has observed, [a]lthough this standard is an ancient and honored
aspect of our criminal justice system, it defies easy explication. Victor v.
Nebraska, 511 U.S. 1, 5 (1994); see also United States v. Rodriguez, 162
F.3d 135, 145 (1st Cir. 1998), cert. denied 119 S. Ct. 2034 (1999)
(The term beyond a reasonable doubt is one of the most bandied, but
perhaps least precisely defined phrases in criminal law.). [S]o long as the
court instructs the jury on the necessity that the defendants guilt be proved
beyond a reasonable doubt, the Constitution does not require that any particular form
of words be used in advising the jury of the governments burden of
proof. Victor, 511 U.S. at 5 (citation omitted). The dispositive issue
is whether there is a reasonable likelihood that the jury understood the instructions
to allow conviction based on proof insufficient to meet the Winship standard.
Id. at 6. As a general proposition, jury instruction lies largely within
a trial courts discretion. See Benefiel v. State, 716 N.E.2d 906, 914
(Ind. 1999). To constitute an abuse of discretion, the instruction given must
be erroneous, and the instructions taken as a whole must misstate the law
or otherwise mislead the jury. Coleman v. State, 703 N.E.2d 1022, 1027
(Ind. 1998), petition for cert. filed (U.S. Aug. 9, 1999) (No. 99-5670).
Here, the trial courts instruction began with the statement that [t]he State has
the burden of proving the defendant guilty beyond a reasonable doubt. In
Barber v. State, 715 N.E.2d 848, 851-52 (Ind. 1999), we held that, in
light of the first sentence of the instruction, which clearly stated that the
State bore the burden of proof beyond a reasonable doubt, the Winegeart instruction
did not shift the burden of proof in violation of the Due Process
Clause. In addition, in this case the presumption of innocence and the
States burden to prove Williams guilty beyond a reasonable doubt were explained in
greater detail by other instructions given by the trial court. As the
Court of Appeals for the District of Columbia Circuit observed, the Federal Judicial
Center pattern instruction does not suggest that the defendant must be the source
of the real possibility of innocence; it only discusses the consequences if a
reasonable doubt does arise. United States v. Taylor, 997 F.2d 1551, 1557 (D.C.
Cir. 1993) (citing United States v. Hunt, 794 F.2d 1095, 1101 (5th Cir.
1986). Moreover, the trial court had charged the jury on the presumption
of innocence and the governments burden of proof, thus eliminating any concern that
the jury might think the defendant was required to show a real possibility
of his own innocence. Id.
Although this instruction appears to be widely used as a means of explaining
the nebulous concept of reasonable doubt to jurors in many jurisdictions, Williams points
to no case from any jurisdiction that has found it to undermine the
presumption of innocence or otherwise deprive a defendant of his or her liberty
without due process of law in violation of the Fourteenth Amendment.
a number of federal courts have rejected Fifth Amendment challenges to the final
sentence of this instruction. See Rodriguez, 162 F.3d at 146 (The phrase
real doubt does not suffer the infirmity of requiring the jury to have
grave uncertainty, substantial doubt, and a real tangible substantial basis for doubt, before
they can acquit, as the unconstitutional instruction did in Cage v. Louisiana.) (citation
; United States v. Artero, 121 F.3d 1256, 1258 (9th Cir. 1997); United
States v. Conway, 73 F.3d 975, 980 (10th Cir. 1995) ([T]he firmly convinced
language, juxtaposed with the insistence that a jury must acquit in the presence
of a real possibility that the defendant is not guilty, is a correct
and comprehensible statement of the reasonable doubt standard. Also, we reject the
defendants contention that the phrase real possibility, as opposed to possibility, impermissibly shifts
the burden of proof.); United States v. Williams, 20 F.3d 125, 131 (5th
Cir. 1994); United States v. Bustillo, 789 F.2d 1364, 1368 (9th Cir. 1986).
In sum, the trial court did not abuse its discretion by giving the
instruction a majority of this Court recommended in
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.
Williams also tendered, and the trial court gave, the alternative definition of
reasonable doubt that appears as Pattern Instruction 1.16.
A reasonable doubt is a fair, actual and logical
doubt that arises in your mind after an impartial consideration of all the
evidence and circumstances in the case. It should be a doubt based
upon reason and common sense and not a doubt based upon imagination or
To prove the defendants guilt of the elements of
the crime charged beyond a reasonable doubt, the evidence must be such that
it would convince you of the truth of it, to such a degree
of certainty that you would feel safe to act upon such conviction, without
hesitation, in a matter of the highest concern and importance to you.
Although Williams argument in this appeal focuses on the
Winegeart instruction, he also
suggests that giving two instructions on the subject was confusing. However,
because any confusion was created by the trial court giving the instruction he
tendered, he cannot claim error on this basis.
Although not cited by Williams, we note that two federal cases
have cautioned against the use of the words "real possibility" in a reasonable
See United States v. Porter, 821 F.2d 968, 973 (4th
Cir. 1987); United States v. McBride, 786 F.2d 45, 51-52 (2d Cir. 1986).
In addition, the Hawaii Court of Appeals has also expressed disapproval of
this language, and found an instruction similar to the one in this case
to be reversible error based on the "firmly convinced" language. See State
v. Perez, 976 P.2d 427, 441-42 (Haw. Ct. App. 1998), cert. granted on
other grounds by 976 P.2d 379 (Haw. 1999). This decision was based
on the due process clause of the Hawaii Constitution, see Haw. Const. art.
I, §5, which is identical to the Fourteenth Amendment. We have found
no other decisions holding this instruction to violate either a state constitution or
the federal constitution. As this Court observed in Winegeart, the Arizona Supreme
Court found this instruction to be the one that "most fairly and accurately
conveys the meaning of reasonable doubt" and ordered it be given in every
future criminal case. See 665 N.E.2d at 902 (quoting State v. Portillo,
898 P.2d 970, 974 (Ariz. 1995)). Although not specifically recommending or requiring
its use, a number of other state courts have upheld the giving of
substantially similar versions of this instruction. See, e.g., State v. Merwin, 962
P.2d 1026, 1031-32 (Idaho 1998); State v. Darby, 477 S.E.2d 710 (S.C. 1996);
State v. Castle, 935 P.2d 656, 657-61 (Wash. Ct. App. 1997).
As the U.S. Supreme Court observed in
Victor, [i]n only one
case have we held that a definition of reasonable doubt violated the Due
Process Clause. 511 U.S. at 5 (citing Cage v. Louisiana, 498 U.S.
39 (1990)). Williams does not claim the instruction in his case suffers
from the deficiencies identified in Cage.
In addition, as this Court observed in
Winegeart, 665 N.E.2d at
902, this instruction has also received the endorsement of Justice Ginsburg: "This
model instruction surpasses others I have seen in stating the reasonable doubt standard
succinctly and comprehensibly." Victor, 511 U.S. at 27 (Ginsburg, J., concurring in
part and concurring in the judgment).
Williams concludes his brief with the assertion that his conviction violates his
"right to due process and due course of law," citing both the Fifth
and Fourteenth Amendments and Article I, §12 of the Indiana Constitution. This
is the only mention of the state constitution. Because Williams provides no
authority or independent analysis supporting a separate standard under the state constitution, any
state constitutional claim is waived.
See Brown v. State, 703 N.E.2d 1010,
1015 n.4 (Ind. 1998).