State v. McMahon

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 90Ä464

                            NOVEMBER TERM, 1991



State of Vermont                  }          APPEALED FROM:
                                  }
                                  }
     v.                           }          District Court of Vermont,
                                  }          Unit No. 3, Orleans Circuit
                                  }
Patrick McMahon                   }
                                  }          DOCKET NO. 817Ä10Ä890 OsCr



             In the above entitled cause the Clerk will enter:

     Defendant appeals his conviction of arson, assigning error to the trial
court's failure to define "reasonable doubt" in its instruction to the jury.
We hold that such definition is not required and affirm.

     At trial, the court used the phrase "reasonable doubt" numerous times
in its charge to the jury.  The court never, however, defined reasonable
doubt and defendant never requested such definition.  As no objection was
made at trial, we confine our analysis to plain error.  We find that the
court did not err in declining to define "reasonable doubt."

     Defendant, relying on authority from other jurisdictions, asserts that
failure to define reasonable doubt to the jury is plain error.  We need not
look outside Vermont case law, however, to resolve this issue.  In State v.
Derouchie, 140 Vt. 437, 442Ä43, 440 A.2d 146, 148 (1981), we emphasized that
the trier of fact "must be properly advised of the reasonable doubt stand-
ard" in criminal trials, but we offered no guidance on the particular means
of properly advising a jury.  In State v. Francis, 151 Vt. 296, 302, 561 A.2d 392, 396 (1989), we found two explanations of reasonable doubt to be
"potentially misleading."  We warned that "[d]efining 'reasonable doubt' is
a hazardous undertaking because it seems the more said about it to the
jury, the less protection that concept provides the accused."  Id.  We
quoted from the United States Supreme Court: "'Attempts to explain the term
"reasonable doubt" do not usually result in making it any clearer to the
minds of the jury.'" Id., quoting Miles v. United States, 103 U.S. 304, 312
(1880).

     Earlier Vermont cases squarely hold that a definition of reasonable
doubt is not required.  In State v. Blay, 77 Vt. 56, 60, 58 A. 794, 795
(1904), the Court wrote:

  In Bish. Crim. Pro. { 1194, it is said, "There are no
words plainer than reasonable doubt and none so exact
to the idea meant." . . . In 23 Am. & Eng. Ency. 955, it
is said that attempts to define the term are futile;
"that the words are of plain and unmistakable meaning,
and that any definition on the part of the court tends
only to confuse the jury and to render uncertain an
expression which, standing alone, is certain and
intelligible."

This reasoning is as valid today as it was in 1904, and we see no reason to
depart from it.  We agree with State v. Marston, 82 Vt. 250, 251, 72 A. 1075, 1076 (1909), where the Court said that once the trial court stated the
rule of reasonable doubt correctly, "[n]othing further by way of definition
was required."

     The difficulties associated with attempts to define "reasonable doubt"
are recognized even by those jurisdictions which require such definition.
See, e.g., State v. Thorpe, 429 A.2d 785, 789 (R.I. 1981) ("Discussion of
the concept [of reasonable doubt] is perhaps the most important aspect of
the closing instruction . . . .  Unfortunately, 'reasonable doubt' is at
best a difficult concept to explain to a lay jury.  Indeed, some courts have
refused to define the words in order to avoid confusion.").

     We have never held that a defendant is entitled to an explanation of
"reasonable doubt," and the court did not err in declining to offer a
definition of that phrase once it had correctly stated the rule.

     Affirmed.






                                   BY THE COURT:


                                   _______________________________________
                                   Frederic W. Allen, Chief Justice

                                   _______________________________________
                                   Ernest W. Gibson III, Associate Justice

                                   _______________________________________
                                   John A. Dooley, Associate Justice

                                   _______________________________________
                                   James L. Morse, Associate Justice
[ ] Publish
                                   _______________________________________
                                   Denise R. Johnson, Associate Justice
[ ] Do Not Publish