
    No. 83-5547.
    Adams v. South Carolina.
   Sup. Ct. S. C. Certiorari denied.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

Adhering to my view that the death penalty is under all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, I would vacate the judgment of the Supreme Court of South Carolina insofar as it left undisturbed the death sentence imposed in this case. Gregg v. Georgia, 428 U. S. 153, 231 (1976) (Marshall, J., dissenting). However, even if I believed that the death penalty could be imposed constitutionally under certain circumstances, I nevertheless would grant certiorari because this petition presents an important issue of federal constitutional law, upon which State Supreme Courts and a Federc Court of Appeals are divided.

At petitioner’s trial, the judge made the following comments o the reasonable-doubt standard:

“If upon the whole case you have a reasonable doubt as to th guilt of the defendant, he’s entitled to that doubt and woul be entitled to an acquittal. ... Now I do not mean, ladi< and gentlemen, by the term reasonable doubt that it is sort whimsical o[r] imaginary doubt. It is not a weak doubt, it not a slight doubt. It is a substantial doubt, a doubt f< which you give a reason. It is a substantial doubt arising o of the testimony or lack of testimony in the case for which person honestly seeking to find the truth can give a reaso If you have such a doubt in your mind as to whether the Sta has proven this defendant guilty, you should resolve th doubt in his favor and write a verdict of not guilty and acqi him.
“. . . I would tell you that the two phrases reasonable doi and proof to a moral certainty are synonymous and the le| equivalent of each other. These phrases connote, however degree of proof distinguished from an absolute certain The reasonable doubt that the law gives the accused is no weak or a slight doubt, but a strong and well-founded doi as to the truth of the charge.”

These instructions guided the jury when it found petitioner gui of murder and again at the sentencing hearing when it found yond a reasonable doubt the existence of two statutory aggra\ ing circumstances.

Petitioner objected to the reasonable-doubt instruction at t: and sought to challenge its constitutionality on appeal to South Carolina Supreme Court. Having recently upheld sim easonable-doubt instructions in capital cases, see, e. g., State v. Copeland, 278 S. C. 572, 300 S. E. 2d 63 (1982); State v. Butler, 77 S. C. 452, 290 S. E. 2d 1, cert. denied, 455 U. S. 945 (1982), ¡he South Carolina Supreme Court denied petitioner an opportuity to brief or argue the issue, and the court’s decision affirming etitioner’s convictions and death sentence summarily disposed of etitioner’s challenge to the trial court’s reasonable-doubt instruc-on. 279 S. C. 228, 306 S. E. 2d 208 (1983).

Last Term, in Butler v. South Carolina, 459 U. S. 932 (1982) lissenting from denial of certioriari), I outlined my objections to hat apparently has become the standard instruction on reason-)le doubt in South Carolina. I continue to believe that trial rnrts err when they instruct juries that a reasonable doubt eans “a substantial doubt” or “a strong and well-founded doubt” • “a doubt for which you give a reason.” The Fourteenth Amend-ent requires prosecutors to prove beyond a reasonable doubt ery element of a crime. In re Winship, 397 U. S. 358 (1970). hen a criminal defendant is convicted by proof beyond a strong substantial doubt, that defendant has not been afforded the full otections of the Federal Constitution. Moreover, when a jury told that a reasonable doubt is a doubt that can be articulated, e prosecutor’s burden of proof is unconstitutionally eased.

For substantially these reasons, the First Circuit struck down a isonable-doubt instruction virtually identical to the one given by 3 trial court in this case. Dunn v. Perrin, 570 F. 2d 21, cert. denied, 437 U. S. 910 (1978); see also United States v. Flannery, L F. 2d 880, 883 (CA1 1971). The First Circuit noted:

“Th[e] definition of reasonable doubt was the exact inverse of what it should have been. . . . Instead of requiring the government to prove guilt, it called upon petitioners to establish doubt in the jurors’ minds. That is an inescapable violation of In re Winship . . . .” 570 F. 2d, at 24 (footnote and citations omitted).

Though reviewing a state conviction on collateral review, the Dunn panel concluded that the defect in the trial court’s instruction was of sufficient magnitude to warrant a retrial. Id., at 25.

The First Circuit’s analysis of the reasonable-doubt instructions in Dunn directly conflicts with rulings of the South Carolina Supreme Court applied in this case as well as recent decisions of several other State Supreme Courts. Since this conflict is the culmination of chronic disagreement over the correct definition of reasonable doubt,1 find this petition an appropriate candidate for review. See this Court’s Rule 17.1(b).

I would grant the petition. 
      
       The State argues that petitioner waived his right to object to reasonable-doubt instruction because, following petitioner’s initial objecl the trial court issued a supplementary instruction to which petitioner faile file a second objection. I discount this argument because South Carolina < not strictly enforce its contemporaneous-objection rule to assignment of 1 error in capital cases. See State v. Adams, 277 S. C. 115, 288 S. E. 2d (1981). Indeed, the court in this case ignored petitioner’s failure to obje the trial court’s supplementary instruction, and dealt with the claim or cits. Under these circumstances, I see no barrier to reviewing South •olina’s disposition of this federal issue.
     
      
       The instruction at issue in Dunn read as follows:
      The term reasonable doubt, as I use it, means just what those words ordi-ily imply. It is a doubt which is reasonable and excludes a doubt which is easonable. It is such a doubt as for the existence of which a reasonable son can give or suggest a good and sufficient reason. It does not mean a ial or a frivolous or a fanciful doubt nor one which can be readily or easily lained away, but rather such a strong and abiding conviction as still re-ns after careful consideration of all the facts and arguments against it and Id cause a fair-minded person to refrain from acting in regard to some saction of importance and seriousness equal to this case.” 570 F. 2d, at a. 1.
      .ough the trial court in Dunn, unlike the court at petitioner’s trial, likened onable doubt to the degree of uncertainty that would cause a prudent person to hesitate before making an important personal decision, the First Circuit made clear in its decision that the constitutionally defective portion of the Dunn instruction was the equation of a reasonable doubt to a substantial and articulable doubt. Id., at 24-25. In these two respects, the Dunn instruction and the instruction given at petitioner’s trial are identical. As the instruction in petitioner’s case equated reasonable doubt with “a strong and well-founded doubt,” the trial court in Dunn defined reasonable doubt to be “a strong and abiding conviction.”. Where petitioner’s instruction likened a reasonable doubt to “a doubt for which you can give a reason,” the Dunn instruction referred to a reasonable doubt as a “doubt as for the existence of which a reasonable person can give or suggest a good and sufficient reason.”
     
      
       See, e. g., State v. Derrico, 181 Conn. 151, 169-171 434 A. 2d 356, 367-368 (1980); Stirparo v. State, 287 A. 2d 394 (Del. 1972); State v. Osbey, 213 Kan. 564, 571-573, 517 P. 2d 141, 148 (1973); State v. Davis, 482 S. W. 2d 486, 489 (Mo. 1972).
     
      
       Throughout this century, both federal and state courts have criticized reasonable-doubt instructions similar to the South Carolina charge given in this case. See, e. g., Taylor v. Kentucky, 436 U. S. 478, 488 (1978); Pettine v. Territory of New Mexico, 201 F. 489, 495-497 (CA8 1912); Laird v. State, 251 Ark. 1074, 476 S. W. 2d 811, 813 (1972); State v. Davis, supra, at 490 (Seiler, J., concurring); Frazier v. State, 117 Tenn. 430, 459-467, 100 S. W. 94, 102-103 (1907); Owens v. Commonwealth, 186 Va. 689, 704-706, 43 S. E. 2d 895, 902 (1947); State v. McDonald, 89 Wash. 2d 256, 273-274, 571 P. 2d 930, 940 (1977).
     