People v. Johnson , 783 N.Y.S.2d 5 ( 2004 )

Judgment, Supreme Court, New York County (Edward McLaughlin, J.), rendered June 19, 2002, convicting defendant, after a jury trial, of two counts each of robbery in the first and second degrees, and sentencing him to concurrent terms of 9V2 years, reversed, on the law, and the matter remanded for a new trial.

Defendant challenges the court’s charge on the burden of proof, which included the following instruction:

“During the course of a criminal trial in the United States, every defendant is entitled to every factual inference in his favor which can reasonably be drawn from the evidence. And where two factual inferences can be drawn from the evidence, both being of equal weight and strength, one factual inference consistent with guilt and the other factual inference consistent with innocence, any defendant is entitled to the factual inference of innocence.

“With regard to facts and with regard to the verdict, there are two different burdens of proof operating simultaneously ..... With regard to finding of fact during the course of your deliberations, the burden of proof is simply that it is more likely than not that the fact exists, 50.1 beating 49.9.”

Initially, we reject the People’s contention that defendant’s challenge is unpreserved. At the conclusion of the charge, defense counsel stated that he had “a problem. I understand the 50.1 and 49.9 point. I think it may be confusing to the jury. And it might apply to the evidence charge as opposed to the beyond a reasonable doubt. I think it serves to confuse them.” He requested that the court reread the standard reasonable doubt charge on “to convict or not convict.”

There is no question that counsel “registered” his “protest” to the court’s instruction “when the court had an opportunity of effectively changing the same” (CPL 470.05 [2]). It also is plain that the court understood counsel’s protest as an objection to its elaboration on the “two-inference” charge. Indeed, the court acknowledged that it is aware that the “two-inference” charge is a subject of controversy.

This Court has repeatedly expressed its disapproval of the “two-inference” charge (see e.g. People v Cruz, 172 AD2d 383, 383 [1991] [two-inference “instructions have been criticized as potentially confusing to the jury”], lv denied 78 NY2d 964 [1991]; People v Cohen, 61 AD2d 929 [1978] [use of phrase, “if the scales are even,” a variation on two-inference language, “does not facilitate the resolution of the issues before the jury in a criminal case”], lv denied 44 NY2d 854 [1978]; People v Fox, 72 AD2d 146, 147 [1980] [“We take this opportunity again to repeat the admonition that it is undesirable in criminal cases to refer to . . . ‘the scales are even’ ”], lv denied 49 NY2d 804 [1980]; People v Stinson, 186 AD2d 23, 25 [1992] [“allusions to ‘equal inferences’ . . . pose the same risk recognized in ‘scales are even’ language, namely that, if instructed that a defendant should be acquitted ‘if the scales are even’, a jury may draw the negative implication that, if the scales are not even, there is enough evidence to convict”; People v Allan, 192 AD2d 433, 435 [1993] [referring to “infirmity” in instructions that permit the jury to conclude that if inferences were not equal, evidence was sufficient to convict]; People v Ellis, 202 AD2d 301 [1994] [“we have previously noted that it is undesirable to use the phrase ‘the scales weigh even’ in the reasonable doubt charge in a criminal case”], lv denied 83 NY2d 910 [1994]; People v Durden, 211 AD2d 568, 569 [1995] [referring to “disfavored ‘two-inferences’ charge language”], lv denied 85 NY2d 937 [1995]).

The two-inferences language has been described as “formally correct” (Fox, supra at 147) and “technically correct” (Stinson, supra at 28 [Sullivan, J., dissenting]). And it is “obviously correct as far as it goes. But such an instruction by implication suggests that a preponderance of the evidence standard is relevant, when it is not. Moreover, the instruction does not go far enough. It instructs the jury on how to decide when the evidence of guilt or innocence is evenly balanced, but says nothing on how to decide when the inference of guilt is stronger than the inference of innocence but no[t] strong enough to be beyond a reasonable doubt” (United States v Khan, 821 F2d 90, 93 [1987]).

Since “[i]n a charge that properly instructs the jury on reasonable doubt, the two-inference language adds nothing” (id. [internal quotations marks and citation omitted]), to the extent that it does not taint the entire charge, we have held that it is not reversible error (see, Cruz; Cohen; Ellis; Durden; but see Stinson [reversing in part on ground of error in “equal inferences” charge]; Allan at 435 [reversing in part on ground of “infirmity” in two-inference instructions]). Of course, language that explicitly authorizes the improper inference, i.e., a charge that “there must be a preponderance in order to establish guilt,” is error so egregious as to warrant reversal (People v Bailey, 121 AD2d 189, 191 [1986]). The lesson with respect to the disfavored if not fatal two-inference charge is that “[i]t is . . . better to reduce the risk, however remote, that a juror might draw the negative inference that if the scales are uneven, that is enough to convict” (Fox, supra at 147-148).

The lesson apparently has gone unheeded in at least one courtroom.

The instant charge began with the two-inference instructions that “have been criticized as potentially confusing to the jury” (Cruz, supra, 172 AD2d at 383) because they permit the jury to find the defendant guilty “when the inference of guilt is stronger than the inference of innocence but no[t] strong enough to be beyond a reasonable doubt” (Khan, supra, 821 F2d at 93). That is, the court instructed that “where two factual inferences can be drawn from the evidence, both being of equal weight and strength, one factual inference consistent with guilt and the other factual inference consistent with innocence: any defendant is entitled to the factual inference of innocence.” The court then instructed the jury that “[w]ith regard to facts and with regard to the verdict, there are two different burdens of proof operating simultaneously”; that “[w]ith regard to finding of fact during the course of your deliberations, the burden of proof is simply that it is more likely than not that the fact exists, 50.1 beating 49.9”; and that “the People’s obligation is to prove a defendant’s guilt beyond a reasonable doubt.”

These instructions are not merely potentially confusing. They could undermine the jury’s understanding of the presumption of innocence, the burden of proof and the standard of proof beyond a reasonable doubt. Instead of reducing the risk “that a juror might draw the negative inference that if the scales are uneven, that is enough to convict” (Fox, supra at 147-148), they increase it. They risk eliminating the reasonable doubt standard from the trial. While the remainder of the court’s instructions on reasonable doubt were proper, they did not remove the taint from the reasonable doubt charge as a whole.

Moreover, in its final instruction to the jury, which addressed the requirement of a unanimous verdict, the court repeated language that it had used to explain the burden of proof. “The two most important civic functions that citizens do are to vote and to serve on juries. In voting in elections, close counts, 50.1 beats 49.9 every time. . . . The same group, citizens who can’t elect anybody by acclamation, who elect some people 50.1 vote to 49.9, minus one vote, have for about two hundred thirty years rendered unanimous verdicts. How does that happen[?] . . . [Y]ou can change your opinion, your vote, provided based on reason, logic, common sense, and reliance on the record of this case if somebody can cause you to change your mind. . . .”

Thus, the last instruction the jurors heard before they began deliberating was a numerical expression of the simple majority in voting that echoed the numerical expression of the preponderance standard that the court had used earlier in explaining the burden of proof. This instruction could only have reinforced the court’s improper instruction on the standard of proof.

Justice Saxe’s concurrence sets forth the additional reasons for the deficiency of the preponderance charge on factfinding when given without proper explanation.

We have held that, while the trial court in a criminal case should use the statutory phrase “beyond a reasonable doubt” (CPL 300.10 [2]) in “explicitly” charging that “guilt must be proved beyond a reasonable doubt,” “this does not mean that elaboration and semantic variations on this theme which do not reduce the standard are error” (Fox, supra at 146-147). We added parenthetically on that occasion that “[i]n an unpredictable world, cautious Trial Judges will of course continue to try not to stray from language that has been approved by appellate courts” (id. at 147). The instant case compels us to admonish that elaboration and semantic variations on the theme of reasonable doubt that reduce the standard are error and cautious trial judges will continue to try to avoid using language that has met with disapproval by appellate courts. “[A] Judge should think long and hard about the wisdom of departing from the standard charge on such elementary matters as reasonable doubt [and] burden of proof’ (People v Nunez, 182 AD2d 527, 528 [1992] [Sullivan, J., concurring], lv denied 80 NY2d 836 [1992]). Concur—Ellerin, Lerner and Gonzalez, JJ. Tom, J.P., and Saxe, J., concur in separate memoranda. Gonzalez, J., also concurs in the separate memorandum of Saxe, J.