Crowley v. Winans, 89-1246

• Citation: 920 F.2d 454
• Decision Date: 26 December 1990
• Docket Number: No. 89-1246,89-1246
• Parties: Kevin CROWLEY, Petitioner-Appellant, v. Harvey WINANS, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 454

920 F.2d 454

Kevin CROWLEY, Petitioner-Appellant, v. Harvey WINANS, Respondent-Appellee.

No. 89-1246.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 13, 1990.

Decided Dec. 13, 1990.

As Corrected Dec. 26, 1990.

Charles B. Vetzner, Office of the State Public Defender, Madison, Wis., for petitioner-appellant.

Christopher Wren, Asst. Atty. Gen., Office of the Atty. Gen., Wisconsin Dept. of Justice, Madison, Wis., for respondent-appellee.

Before BAUER, Chief Judge, and CUMMINGS and EASTERBROOK, Circuit Judges.

BAUER, Chief Judge.

Kevin Crowley filed a petition for a writ of habeas corpus challenging his conviction for aggravated battery. The basis for that petition was his claim that the trial court allowed the jury to rely on an unconstitutional presumption. Specifically, Crowley asserted that the presumption in the aggravated battery statute denied him due process because there was no rational connection between the basic fact proven by the state and the ultimate fact presumed. The district court denied the writ of habeas corpus, and Crowley appealed that decision.

The facts at trial, taken in the light most favorable to the state, revealed the following sequence of events. On April 30, 1985, Kevin Crowley stopped at a tavern at which Billy Zinkle was drinking. Crowley told Zinkle to come outside, and that he was going to beat him up. Zinkle refused to leave the bar and Crowley left. As Zinkle was walking home later that night, Crowley came up to him, removed his glasses, and hit him a number of times in the face. Crowley and a friend who was with him then took Zinkle home, gave him something to drink, and put him to bed. Zinkle was ill for a number of days as a result of the beating, and sustained severe contusions and minor abrasions to the forehead and upper face. The record does not include a detailed physical description of Crowley, but he is characterized as a physically healthy, normal-sized eighteen-year-old. Zinkle is described as a slightly retarded forty-eight-year-old person who stands 4'9" tall, weighs 96 pounds, and wears glasses without which he is legally blind.

The jury instruction at issue provides:

The fourth element of this offense requires that the defendant's conduct created a high probability of great bodily harm. Under the criminal code great bodily harm means bodily harm which creates a high probability of death or which causes serious permanent disfigurement or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury. If you find that the victim had a physical disability at the time of the offense and that such disability was discernible by an ordinary person viewing the victim you may find from that fact alone that the defendant's conduct created a high probability of great bodily harm, but you're not required to do so and you must be satisfied beyond a reasonable doubt from all the evidence that the defendant's conduct created a high probability of great bodily harm.

At the trial, the state relied on two alternative methods of proving conduct creating a "high probability of great bodily harm." First, the state introduced evidence regarding the harm actually suffered by the victim, Billy Zinkle, and the type of actions likely to cause that injury. Second, the state relied upon the presumption set forth in the jury instruction above. The state introduced testimony indicating that Zinkle's short stature and his vision problems constituted physical disabilities under the statute. ¹ The state supreme court on appeal held that both Zinkle's height and his visual difficulties constituted physical disabilities within the meaning of the statute and that determination is not challenged in this petition for a writ of habeas corpus.

Because the state relied upon alternative grounds and we cannot know which ground formed the basis for the conviction, we must address whether the use of the presumption deprived Crowley of due process. The Supreme Court has identified different tests which are designed to ensure that the presumption does not undermine the factfinder's responsibility at trial to find guilt beyond a reasonable doubt based upon evidence adduced by the state. County Court of Ulster County v. Allen, 442 U.S. 140, 156, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777 (1979). In this case, all parties agree that the statute incorporates a permissive, rather than a mandatory, presumption.

A permissive inference or presumption allows the factfinder to infer the elemental fact from proof by the state of the basic fact, but does not require the factfinder to reach that conclusion and does not shift the burden to the defendant. Ulster County, 442 U.S. at 157, 99 S.Ct. at 2224. This type of presumption satisfies due process if "there is a 'rational connection' between the basic facts that the prosecution proved and the ultimate fact presumed, and the latter is 'more likely than not to flow from' the former." Ulster County, 442 U.S. at 165, 99 S.Ct. at 2228 (quoting Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1244, 87 L.Ed. 1519 (1943), and Leary v. United States, 395 U.S. 6, 36, 89 S.Ct. 1532, 1548, 23 L.Ed.2d 57 (1969)). In conducting this analysis, the proper focus is on the facts of the individual case, and therefore the question is whether the jury, considering the facts presented in this case, could rationally make the connection allowed in the presumption. Ulster County, 442 U.S. at 157, 99 S.Ct. at 2224.

In the present case,...