Cool v. United States/Dissent Rehnquist

by William Rehnquist

[p105] MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN concur, dissenting.

I believe that the Court's fine-spun parsing of the trial judge's charge to the jury turns the appellate review of this case into the sort of "quest for error" which was said in Bihn v. United States, 328 U.S. 633, 638 (1946), to be forbidden by Rule 52 (a) of the Federal Rules of Criminal Procedure,^[1] and by 28 U.S.C. § 2111.^[2]

The testimony of the witness Voyles, called by petitioner as a witness in her behalf, presented the trial judge with something of a dilemma in determining how he should charge the jury. Much of Voyles' testimony tended to exculpate the petitioner, but there were significant aspects of it that did not. He substantiated the fact that the petitioner and her husband^[3] had traveled with him from St. Louis to Brazil, Indiana. He corroborated prosecution evidence that both petitioner and her husband gave the same false last name of Gibbs when booked at the police station in Brazil. He also suggested a closeness to petitioner's husband which was scarcely helpful to their defense when he testified that "I was a little sore at Mike [petitioner's husband], because I thought Mike should help me [get out on bond]."

The trial judge made clear in his colloquy with counsel, while dealing with their objections to the charge, that he [p106] was concerned about the ambivalence of Voyles' testimony and felt it necessary to give the charge relating to accomplices. Petitioner's counsel in objecting to that portion of the charge did so on a quite different ground from that now sustained by the Court; the ground of objection stated to the trial court was apparently that the mention of the term "accomplice" to the jury suggested that petitioner and her husband were in fact guilty. Such a ground of objection was wholly without merit, since, as the Court of Appeals pointed out in its opinion in this case, the instruction left it entirely to the jury to determine whether or not the facts existed that would make Voyles an accomplice.

The trial court gave 36 separate instructions to the jury, which covered some 52 pages of the transcript in this case. The instruction in question covers two pages, and the Court reverses the conviction on the basis of one sentence in that one instruction. The trial judge repeatedly emphasized to the jury that the Government was obligated to prove guilt beyond a reasonable doubt. Typical is the following statement, which is repeated throughout the instructions in at least half a dozen places:

"The entire burden of proof is upon the Government from the beginning to the end of the trial and this burden of proof never shifts from the Government to the defendants, and the defendants are not bound to prove their innocence, offer any excuse, or explain anything...."

The record before us does not indicate that either counsel so much as mentioned the accomplice instruction in his argument to the jury. Nonetheless, the Court concludes that because the instruction contained a "negative pregnant" that could be taken to mean that the jurors should reject Voyles' testimony if they had a reasonable [p107] doubt as to its veracity, the conviction is to be reversed.

I had thought the day long past when even appellate courts of the first instance, such as the Court of Appeals in this case, parsed instructions and engaged in nice semantic distinctions in the absence of any showing that would satisfy an ordinary lawyer or layman that substantial rights of one of the parties had been prejudiced by the supposed error. If the nuance of the instruction upon which reversal is now based did not suggest itself to petitioner's trial counsel, it seems doubtful that it suggested itself to the jury either:

"A party must make any reasonable effort to secure from the trial court correct rulings or such at least as are satisfactory to him before he will be permitted to ask any review by the appellate tribunal; and to that end he must be distinct and specific in his objections and exceptions.... '...[J]ustice itself and fairness to the court which makes the rulings complained of, require that the attention of that court shall be specifically called to the precise point to which exception is taken, that it may have an opportunity to reconsider the matter and remove the ground of exception.'" Allis v. United States, 155 U.S. 117, 122 (1894), quoting Harvey v. Tyler, 2 Wall. 328, 339 (1865).

Nor, as pointed out above, did this particular instruction of the trial court stand alone; it was incorporated into a series of instructions that had as their predominant theme that the burden of proof was upon the Government at every stage to prove guilt beyond a reasonable doubt. The trial court's instructions are to be taken as a whole, and even if an isolated passage might be error if standing by itself, that alone is not a sufficient ground [p108] for reversal. Boyd v. United States, 271 U.S. 104, 107 (1926).

The Court's reversal on the ground that one of the instructions contained a "negative pregnant" smacks more of the scholastic jurisprudence whose shortcomings led to the enactment of 28 U.S.C. § 2111 than it does of the commonsense approach to appellate review that that section mandates.

Notes

1. "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." Fed. Rule Crim. Proc. 52 (a).
2. "On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties." 28 U.S.C. § 2111.
3. The petitioner and her husband were tried and convicted together on the counterfeiting charges. Both appealed their convictions to the Seventh Circuit, which affirmed both. Petitioner's husband has not sought certiorari to have his conviction reviewed.