Appeal from Superior Court of King County. Docket No: 95-1-06147-4. Date filed: 12/18/95. Judge signing: Hon. Patricia H. Aitken.
Petition for Review Denied October 7, 1997,
Authored by Ann L. Ellington. Concurring: William W. Baker, Susan R. Agid.
The opinion of the court was delivered by: Ellington
ELLINGTON, J. -- When police arrested Michael Castle and searched his car, they found a black zippered bag containing several items of drug paraphernalia with cocaine residue. Mr. Castle was convicted of possession of cocaine. The central question we confront in this appeal is whether the court's non-standard instruction on reasonable doubt was constitutionally valid. We hold the instruction properly advised the jury as to the presumption of innocence, the State's burden of proof, and the concept of reasonable doubt. The instruction therefore did not infringe on Mr. Castle's due process rights, and we affirm.
Early one morning, Seattle Police Officer William Howe noticed a car with a broken left brake light. He stopped the car and asked the driver, Michael Castle, for his license. Mr. Castle told Officer Howe his license was suspended. A computer check indicated Mr. Castle had two outstanding arrest warrants, so Officer Howe arrested him and searched his car. Behind the driver's seat, Officer Howe discovered a black zippered bag containing two glass pipes, a lighter, a vial with a plastic cap, two small screens, a scale, two measuring spoons, and a grinder, all of which bore a residue that field-tested positive for cocaine. Officer Howe also found in the bag a letter addressed to "Mike," a gold and silver watch, a pager, and a spare battery for a cellular telephone. Mr. Castle had a cellular phone in his jacket pocket.
Mr. Castle waived his right to remain silent and told Officer Howe the black bag was not his. He claimed his car had been stolen about a month before and he had just recovered it. He acknowledged, however, that the letter found in the bag was his, and asked how he could get his cellular phone and pager back.
Mr. Castle was charged by information with one count of unlawful possession of cocaine. The information was later amended to include a second count of possession of drug paraphernalia.
Judge Patricia Aitken, a very able and respected trial Judge who has for many years chaired the Washington Pattern Jury Instruction Committee, indicated she has "long been dissatisfied" with the usual pattern instructions on reasonable doubt. She gave instead an instruction nearly identical to one proposed by the Federal Judicial Center. The instruction informed the jury it should convict Mr. Castle if "firmly convinced" of his guilt, but must give Mr. Castle the benefit of the doubt and find him not guilty if there was a "real possibility" he was not guilty. The court refused to add that a reasonable doubt may arise from "lack of evidence." The court also refused to instruct the jury that "mere proximity of the defendant to an alleged controlled substance is not sufficient evidence to establish possession." These instructions are the focus of Mr. Castle's appeal.
Reasonable Doubt Instruction
In a criminal case, the jury must be instructed that the State has the burden to prove each essential element of the crime beyond a reasonable doubt. It is reversible error if the instructions relieve the State of that burden. State v. Pirtle, 127 Wash.2d 628, 656, 904 P.2d 245 (1995), cert. denied, 116 S. Ct. 2568, 135 L. Ed. 2d 1084 (1996). The instructions must define reasonable doubt, although no particular wording is required. State v. Coe, 101 Wash.2d 772, 787, 684 P.2d 668 (1984). Various forms of instructions on reasonable doubt have been approved in Washington, so long as allocation of the burden of proof is clearly communicated. Coe, 101 Wash.2d at 787. The effect of a particular phrase in an instruction is determined by considering the instruction as a whole, and reading it in the context of all the instructions given. State v. Benn, 120 Wash.2d 631, 845 P.2d 289 (1993); see also Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973).
Here, the trial court instructed the jury as follows: *fn1
The defendant has entered a plea of not guilty. That plea puts in issue every element of the crime charged. The State is the plaintiff and has the burden of proving each element of the crime beyond a reasonable doubt.
A defendant is presumed innocent. This presumption continues throughout the entire trial unless during your deliberations you find it has been overcome by the evidence 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 must find him guilty. If on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.
Mr. Castle's challenge focuses on the phrase "a real possibility that he is not guilty," which he claims imposes a higher standard of doubt for acquittal (and a lower standard of proof for conviction) than is constitutionally permissible. Mr. Castle relies principally on the Supreme Court holding in Cage v. Louisiana, 498 U.S. 39, 111 S. Ct. 328, 112 L. Ed. 2d 339 (1990). In Cage, the jury was instructed that a reasonable doubt is one that is founded upon a real tangible substantial basis and not upon mere caprice and conjecture. It must be such doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. It is an actual substantial doubt. . . . What is required is not an absolute or mathematical certainty, but a moral certainty.
498 U.S. at 40. In a short per curiam opinion, the Supreme Court held the instruction impermissibly lowered the ...