COMMONWEALTH vs. ALPHONSO PINCKNEY.

NOLAN, J. The sole issue in this appeal from the denial of the defendant's motion for new trial concerns the trial judge's instructions to the jury on the Commonwealth's burden of proving guilt beyond a reasonable doubt. We reverse the judge's denial of the defendant's motion and order a new trial.

The defendant was indicted in 1971 for murder in the first degree and rape. He was tried before a jury, found guilty and was sentenced in early 1972. The convictions were affirmed on direct appeal in 1973. Commonwealth v. A Juvenile, 364 Mass. 103 (1973) (vacated as to death penalty). In 1991, the defendant pro se filed his first motion for new trial, claiming a denial of a fair trial due to errors in the jury instructions

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and a failure to charge on the defendant's theory of the case. The motion was denied in the Superior Court, but a single justice of this court in 1993, pursuant to G. L. c. 278, Section 33E (1992 ed.), allowed an appeal on the sole question "whether, in the circumstances of the entire case, the judge's charge on proof beyond a reasonable doubt was reversible error on the basis of principles of law that have been established since the date his appeal was argued."

In a criminal case, the Commonwealth must prove a defendant's guilt beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970). "[T]he Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof. . . . Rather, `taken as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury.'" (Citation omitted.) Victor v. Nebraska, 114 S. Ct. 1239, 1243 (1994), quoting Holland v. United States, 348 U.S. 121, 140 (1954). When reviewing a jury instruction defining reasonable doubt, the constitutional question is "whether there is a reasonable likelihood that the jury understood the instructions to allow conviction on proof insufficient to meet the Winship standard." Id. A constitutionally deficient reasonable doubt instruction amounts to a structural error which defies analysis by harmless error standards. See Sullivan v. Louisiana, 113 S. Ct. 2078, 2082-2083 (1993).

The defendant argues that the judge's use of the phrase "moral certainty" outside of the context of the Webster charge and in conjunction with language that shifted the burden of proof to the defendant amounted to reversible error. Since the date of the defendant's original appeal in 1973, the use of the phrase moral certainty has come under increasing scrutiny. See Victor v. Nebraska, supra at 1247-1248 & 1250-1251; Cage v. Louisiana, 498 U.S. 39, 41 (1990) (per curiam), rev'd on other grounds, Estelle v. McGuire, 112 S.Ct.475 (1991); Commonwealth v. Gagliardi, 418 Mass. 562, 571, petition for cert. filed, U.S.L.W. (U.S. Nov. 2, 1994) (No. 94-6752); Lanigan v. Maloney, 853 F. 2d 40, 47-48 (1st Cir. 1988), cert. denied, 488 U.S. 1007

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(1989). As case law regarding the constitutionality of the phrase moral certainty in a reasonable doubt instruction developed after the date of the defendant's original appeal, and there were no other postconviction claims, we may properly consider this claim. [Note 1] See Commonwealth v. Ambers, 397 Mass. 705, 708 (1986) (relevant inquiry under c. 278, Section 33E, is whether legal basis for defendant's argument is sufficiently developed at time of appeal).

The use of the phrase moral certainty in a reasonable doubt instruction was first criticized by the Supreme Court of the United States in Cage v. Louisiana, supra at 41. In Cage, the Court reversed a defendant's conviction because of a flawed instruction on reasonable doubt. Id. The trial judge in that case had instructed the jury that reasonable doubt meant "such doubt as would give rise to a grave uncertainty" and "an actual substantial doubt." Id. at 40. The instruction also contained the sentence: "What is required is not an absolute or mathematical certainty, but a moral certainty." Id. The Court held that use of the phrase moral certainty, as opposed to "evidentiary certainty," in conjunction with the words "substantial doubt" and "grave uncertainty," words which suggest a higher degree of doubt than is required for acquittal, could have been interpreted by a reasonable juror to allow a finding of guilt based on a degree below that required by due process. Id. at 41.

The Supreme Court revisited the issue of the propriety of using the phrase moral certainty in a reasonable doubt instruction

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in Victor v. Nebraska, supra. [Note 2] The Court held that, although the moral certainty language was ambiguous in the abstract, use of the phrase was not reversible error where it was used with an additional instruction which impressed upon the factfinder the need to reach a subjective state of near certitude of the guilt of the accused. [Note 3] Id. at 1247. The Court expressed concern, however, over the continued use of the phrase:

"We do not think it reasonably likely that the jury understood the words moral certainty either as suggesting a standard of proof lower than due process requires or as allowing conviction on factors other than the government's proof. At the same time, however, we do not condone the use of the phrase. As modern dictionary definitions of moral certainty attest, the common meaning of the phrase has changed since it was used in the Webster instruction, and it may continue to do so to the point that it conflicts with the Winship standard."

Id. at 1248. Consistent with the Supreme Court's decision in Victor, we have approved of the moral certainty language if used as a part of or in conjunction with the approved charge from Commonwealth v. Webster, 5 Cush. 295, 320 (1850). Commonwealth v. Beldotti, 409 Mass. 553, 562 (1991). See Lanigan v. Maloney, supra at 47 n.4 (context of Webster

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charge lessens the potential for any harmful inferences to be drawn by jury). Even where a Webster charge is not given, we have upheld the use of the moral certainty language in a reasonable doubt instruction if it is linked with language that lends content to the phrase. See Commonwealth v. Gagliardi, supra. We have recognized, however, that the use of this language in isolation, without further explanation, might amount to an erroneous instruction on reasonable doubt. Id.

In Commonwealth v. Gagliardi, supra, we held that the use of the moral certainty phrase in a reasonable doubt instruction did not constitute error where, in each instance the phrase was used, the judge immediately expounded on that concept informing the jury of the high degree of certainty they must possess in order to convict a defendant. Unlike the charge in Gagliardi, the judge in this case did not use the phrase moral certainty in conjunction with language that stressed the high degree of certainty required to convict a defendant. [Note 4] Rather, following each use of the phrase, the judge gave conflicting formulations of the reasonable doubt standard. In light of the judge's use of the moral certainty

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language in conjunction with conflicting definitions of reasonable doubt, it is reasonably likely that the jury understood

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the instructions to allow conviction on a standard of proof lower than that required by due process.

The judge used the phrase moral certainty three times in the reasonable doubt instruction. The first two times, the phrase was used in isolation without further explanation as to the meaning of the phrase. Following the third use of the phrase, the judge included language which properly impressed upon the jury the need to reach a subjective state of near certitude of the guilt of the accused. The numerous inconsistencies that permeated the charge on the definition of reasonable doubt, however, undermined the effectiveness of this mitigating language.

The judge's first use of the moral certainty language was followed by an incorrect definition of reasonable doubt. The judge equated reasonable doubt with "some doubt" a juror can find "if he goes looking for doubt." Although this instruction may have had the effect of increasing the Commonwealth's burden, the incorrect instruction contributed to the potential confusion of the jurors. The judge then defined reasonable doubt as a doubt which a juror "finds abiding in his mind at the end of a full consideration of the facts of the case." Instead of requiring the Commonwealth to prove guilt, the jury could have interpreted this language as calling upon the defendant to establish doubt in the jurors' minds, thereby lowering the Commonwealth's burden of proof. See Dunn v. Perrin, 570 F.2d 21, 23-24 (1st Cir.), cert. denied, 437 U.S. 910 (1978).

Further confusion as to the correct standard of proof resulted from the judge's use of language based on the charge in Commonwealth v. Madeiros, 255 Mass. 304 (1926). The judge instructed the jury:

"Proof beyond a reasonable doubt does not mean beyond all doubt, nor beyond a whimsical or fanciful

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doubt, nor proof beyond the possibility of innocence. It is rarely if ever possible to find a case so clear that there cannot be a possibility of innocence. If a reasonable doubt or a mere possibility of innocence were sufficient to prevent a conviction, practically every criminal would be set free to prey upon the community, and such a rule would be wholly impractical and would break down the forces of law and order and make the lawless supreme."

Although the use of the Madeiros charge was acceptable at the time of the defendant's direct appeal, the Madeiros language has since been criticized as warning the jury of holding the prosecution to too high a standard of proof. See Commonwealth v. Sheline, 391 Mass. 279, 295 (1984) (Madeiros charge criticized as inviting jurors' attention to general consequences of verdict rather than to obligation to decide case on evidence); Commonwealth v. Tavares, 385 Mass. 140, 148, cert. denied, 457 U.S. 1137 (1982) (emotional overtones of Madeiros rhetoric criticized as subtly encouraging a jury to accept less proof than it should so that "the lawless" will not be "supreme"). Exacerbating the potential danger of using the Madeiros charge, however, was the fact that the judge clearly misstated the law. There was a critical difference between the judge's charge in this case and the charge in Madeiros. In Madeiros, the charge read "if an unreasonable doubt or a mere possibility of innocence were sufficient to prevent a conviction," whereas in the present the judge instructed that "[i]f a reasonable doubt or a mere possibility of innocence were sufficient to prevent a conviction, practically every criminal would be set free to prey upon the community." With this statement, the judge clearly misstated the law and again gave an incorrect explanation as to the proper standard of proof. Having just instructed the jury that reasonable doubt would be insufficient to acquit the defendant, the judge went on to instruct properly that the jury must have a "clear and settled conviction of guilt" and that if there "remains . . . any reasonable doubt . . . the defendant . . . cannot be found guilty of the charge." "At worst, the

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charge could well have led the jury to believe that the degree of certainty required to convict was far lower than that properly demanded in a criminal case. At a minimum, these instructions must have left the jury badly confused." Commonwealth v. Wood, 380 Mass. 545, 548 (1980).

Because the inconsistencies throughout the instruction failed adequately to lend meaning to the phrase moral certainty, we conclude that there was a reasonable likelihood that the jurors understood the reference to moral certainty to allow a conviction on a standard insufficient to satisfy due process. The moral certainty phrase in the defendant's instruction was used in conjunction with language that both overstated and understated the degree of certainty necessary to convict. The use of the moral certainty language, which potentially understated the degree of certainty required to convict, in conjunction with conflicting reasonable doubt definitions, inevitably lead us to the conclusion that the instruction failed to convey accurately to the jury the meaning of reasonable doubt.

Accordingly, the order denying the defendant's motion for new trial is reversed, and the case is remanded to the Superior Court for a new trial.

So ordered.