Appeal from the Superior Court of the District of Columbia (CF1-9908-07) (Hon. Geoffrey M. Alprin, Trial Judge)
The opinion of the court was delivered by: Ferren, Senior Judge:
Before GLICKMAN and THOMPSON, Associate Judges, and FERREN, Senior Judge.
Opinion for the court by Senior Judge FERREN.
Opinion concurring in the judgment by Associate Judge GLICKMAN at p. 37.
After a jury trial, Dontrace Blaine was convicted of second- degree murder while armed,*fn1 possessing a firearm during a crime of violence (PFCV),*fn2 and carrying a pistol without a license (CPWL).*fn3 The court sentenced him to prison for terms totaling twenty-six years, coupled with court costs of $1,500 and followed by five years of supervised release. On appeal Blaine contends, primarily, that the trial court erred when reinstructing the jury on the government's burden of proving guilt "beyond a reasonable doubt."*fn4 We agree with appellant that this reinstruction violated his constitutional right to due process. We therefore must reverse and remand for a new trial.
I. RELEVANT FACTS AND PROCEEDINGS
The charges against appellant grew out of a shootout in the parking lot of the Wellington Park apartment complex that resulted in the death of an innocent bystander. The government alleged that on December 29, 2006, appellant and his co-defendant, Norman Burke, had been firing at the other co-defendant, Marco Carter, when the victim was fatally struck by a stray bullet as he left his parked vehicle. Under an urban gun-battle theory,*fn5 the government charged all three men with the victim's death.
At trial, the government offered testimony from five principal witnesses, two of whom had personally observed the shooting and identified appellant as one of the shooters (both recognized him from prior dealings). In their defense, appellant and Burke each offered an alibi. Carter, in his defense, never denied that he had been present during the shootout but presented an eyewitness who testified that Carter had not possessed a gun during the incident and had ducked to avoid the bullets.*fn6
After closing arguments, the trial court instructed the jury, reading the standard Redbook instruction on "reasonable doubt."*fn7 Eventually, the jury sent the trial judge a note asking for "additional guidance" on the burden of proof. Over defense objection, the trial court responded by giving a reinstruction that altered the final sentence of the Redbook instruction given before the jury retired to deliberate. Approximately two hours after reinstruction, the jury found appellant guilty on all charges.*fn8
II. THE REASONABLE DOUBT INSTRUCTION
This case presents the question whether, in reinstructing on reasonable doubt in response to a note from the jury, the trial court "misdescribe[d] or lessen[ed]"*fn9 the government's burden of proof and thus committed constitutional error requiring reversal of appellant's convictions.
A. The Trial Court Decision to Reinstruct on "Reasonable Doubt"
Initially, the trial court instructed the jury on reasonable doubt with the standard, three-paragraph Redbook instruction we crafted en banc in Smith v. United States.*fn10
The government has the burden of proving the defendant guilty beyond a reasonable doubt. In civil cases, it is only necessary to prove that a fact is more likely true than not, or, in some cases, that its truth is highly probable. In criminal cases such as this one, the government's proof must be more powerful than that. It must be beyond a reasonable doubt.
Reasonable doubt, as the name implies, is a doubt based upon reason -- a doubt for which you have a reason based upon the evidence or lack of evidence in the case. If, after careful, honest, and impartial consideration of all the evidence, you cannot say that you are firmly convinced of the defendant's guilt then you have a reasonable doubt.
Reasonable doubt is the kind of doubt that would cause a reasonable person, after careful and thoughtful reflection, to hesitate to act in the graver or more important matters in life. However, it is not an imaginary doubt, nor a doubt based on speculation or guesswork; it is a doubt based upon reason. The government is not required to prove guilt beyond all doubt, or to a mathematical or scientific certainty. Its burden is to prove guilt beyond a reasonable doubt.*fn11
After deliberating for more than four days, the jury sent the following note to the trial judge: "Could we please get further clarification and instruction as to the reasonable doubt standard. We have reread the instructions provided numerous times, and we would request additional guidance." The prosecutor was skeptical: the jury had "already reread the instruction, and I don't know that there's a whole lot more explanation that we can provide to the jury beyond the red book explanation." The trial judge, however, noted commentary in the Redbook that referenced a decision of this court, Payne v. United States,*fn12 which found no plain error necessitating reversal following revisions (reflected in strikeouts and italics) to the third paragraph of our mandated instruction:
Reasonable doubt is the kind of doubt that would cause a reasonable person, after careful and thoughtful reflection, to hesitate to act in the graver or more important matters in life. However, it Reasonable doubt is not an imaginary doubt, nor[.] It is not a doubt based on guesswork or speculation or guesswork; it is a doubt based upon reason. The government is not required never has to prove guilt beyond all doubt, [.] That's impossible. They do not have to prove guilty beyond a shadow of a doubt. There's no such thing. or They do not have to prove guilt to a mathematical or scientific certainty. and they do not have to prove guilt to a scientific certainty. Its burden is They have to prove guilt beyond a reasonable doubt.*fn13
The trial judge proposed to reinstruct the jury by repeating Smith's reasonable doubt instruction, augmented in paragraph three by the language from Payne. The judge explained that the Smith/Redbook instruction "is so heavily weighted to the defense, in my judgment, that an improvement, or at least a change as approved by the Payne court, is long overdue." The government echoed the trial judge -- "the original reasonable doubt instruction . . . is heavily weighted toward the defense" -- and then agreed with the court's proposal. All defendants strongly objected. Counsel referenced this court's admonition in Smith, where we stressed, "in the strongest terms, that the trial court should 'resist the temptation to stray from, or embellish upon, that instruction.'"*fn14 Furthermore, they noted, the Payne court, a three-judge division, had no authority to modify the en banc mandate.*fn15 The trial judge acknowledged that defense counsel had made "a point," agreeing that the reinstruction "is in one direction here, and that may be a problem." A colloquy then ensued in which defense counsel convinced the judge to omit two brief sentences from Payne: "That's impossible" and "There's no such thing."*fn16 Even with those omissions, however, counsel argued that the cumulative impact of the revised instruction would amount to "cheerleading for the government without any sort of really substantial clarification of the standard." The judge (while acknowledging that his "reexplaining" would be "more graphic") was not moved. Finally, counsel offered language to counterbalance the additional language from Payne -- again, without success.*fn17
The judge then brought the jurors into the courtroom and answered their note, first, by saying: "I'm going to . . . give you an instruction now that is much like the reasonable doubt instruction originally given, but with some change that may be helpful." Whereupon he read the first two paragraphs of our en banc Smith instruction, followed by his revised Payne instruction.
Reasonable doubt is the kind of doubt that would cause a reasonable person, after careful and thoughtful reflection, to hesitate to act in the graver or more important matters in life. However, it is not an imaginary doubt, nor a doubt based on speculation or guesswork; it is a doubt based upon reason. The government never has to prove guilt beyond all doubt, they do not have to prove guilt beyond a shadow of a doubt, they do not have to prove guilt to a mathematical certainty, and they do not have to prove guilt to a scientific certainty; they have to prove guilt beyond a reasonable doubt. (Emphasis added.)
B. Appellant's Contentions
Appellant contends that the reinstruction violated his right to constitutional due process. As orally conveyed by the trial judge, he says, the revised third paragraph, incorporating language from Payne,*fn18 added heft to the government's case at the expense of the defense. It transmuted the carefully balanced Smith instruction into an unbalanced one in the government's favor amounting to a virtual invitation to convict.
In the first place, in response to the jurors' note, the trial judge told them that he would give them "an instruction now that is much like the reasonable doubt instruction originally given, but with some change that may be helpful." (Emphasis added.) The jurors then heard again the first two paragraphs of the Smith instruction, followed by the new ...