Hanna v. Riveland

• Decision Date: 10 April 1996
• Docket Number: No. 95-35700,95-35700
• Parties: 96 Cal. Daily Op. Serv. 4635, 96 Daily Journal D.A.R. 10,183, 96 Daily Journal D.A.R. 7465 Craig Mitchell HANNA, Petitioner-Appellee, v. Chase RIVELAND, Director, Department of Corrections; Marlin D. Holden, Superintendent, Olympic Correction Center, Respondents-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1034

87 F.3d 1034

96 Cal. Daily Op. Serv. 4635, 96 Daily Journal

D.A.R. 10,183,

96 Daily Journal D.A.R. 7465

Craig Mitchell HANNA, Petitioner-Appellee, v. Chase RIVELAND, Director, Department of Corrections; Marlin D. Holden, Superintendent, Olympic Correction Center, Respondents-Appellants.

No. 95-35700.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted

April 10, 1996.

Decided June 25, 1996.

As Amended on Denial of Rehearing and Suggestion for

Rehearing En Banc Aug. 21, 1996. ^*

David K. Allen, Allen, Hansen & Maybrown, Seattle, Washington, for petitioner-appellee.

Christine O. Gregoire, Attorney General, Donna H. Mullen, Assistant Attorney General, Olympia, Washington, for respondents-appellants.

Appeal from the United States District Court for the Western District of Washington.

Before: WRIGHT, PREGERSON and TASHIMA, Circuit Judges.

Opinion by Judge TASHIMA; Concurrence by Judge WRIGHT.

TASHIMA, Circuit Judge:

Petitioner-appellee Craig Mitchell Hanna ("Hanna") was convicted of vehicular homicide and vehicular assault in King County, Washington, state court. The Supreme Court of Washington affirmed his conviction. State v. Hanna, 123 Wash.2d 704, 871 P.2d 135 (1994), cert. denied, --- U.S. ----, 115 S.Ct. 299, 130 L.Ed.2d 212 (1994). Hanna then filed this federal petition for a writ of habeas corpus. The district court determined that an instruction allowing the jury to infer reckless driving from excessive speeds was a "trial type" constitutional error. Moreover, the district court could not say that the error did not have a "substantial and injurious" influence on the verdict, and therefore granted the writ.

Respondents-appellants (the "state") appeal. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review de novo the decision to grant a petition for habeas corpus, Calderon v. Prunty, 59 F.3d 1005, 1008 (9th Cir.1995), and we affirm.

FACTS AND PRIOR PROCEEDINGS

I. The Accident.

During the daylight hours of August 22, 1989, Hanna was driving his Mustang on a highway in south Seattle in a 55 mile per hour ("m.p.h.") zone. He lost control of his car, crossed over a grass median into opposing traffic and collided with a Toyota occupied by Roy and Frances Fellows. Roy was killed in the accident and Frances sustained serious injuries.

II. The Trial.

Hanna was charged with one count of vehicular homicide and one count of vehicular assault in violation of Wash.Rev.Code §§ 46.61.520 and 46.61.522. Both of these crimes incorporate an element of reckless driving, defined as driving a vehicle "in willful or wanton disregard for the safety of persons or property." Wash.Rev.Code § 46.61.500(1).

At trial, the parties disputed the facts leading up to the accident. The following summary is from the Washington Supreme Court's opinion:

The facts leading up to the accident were disputed at trial. The State presented testimony from four eyewitnesses who were traveling in the same direction as the defendant[.] They testified that prior to the collision Hanna's Mustang and another vehicle, a blue car with Oregon plates, were traveling northbound on Route 599 ... at approximately 80 to 100 m.p.h.

Three eyewitnesses testified Hanna was traveling at this speed while trailing the blue car by only one-to-three car lengths. [Two eyewitnesses] stated the two cars appeared to be "racing" or "chasing" each other.

[Three eyewitnesses] observed the collision. They stated the two cars were speeding in the left lane when they approached a slower moving car. Just prior to passing the slower vehicle, the driver of the blue car tapped the brakes. Hanna's Mustang then came into contact with the blue car and swerved across the median into opposing traffic colliding with the Fellows' Toyota.

.... The defense [presented testimony from] a truck driver stopped along the road about 500 feet from the scene, [who] testified the Mustang and the blue car were going "highway speeds" prior to the collision.

.... Hanna testified he was traveling in the left lane at 75 m.p.h. when the blue car appeared and began to jog left and right in front of him. Hanna then slowed to 60 m.p.h. before the car cut him off and Hanna was forced to hit the brakes and spin onto the median and into opposing traffic.

Hanna, 871 P.2d at 137. Both the defense and prosecution also presented testimony from accident reconstruction experts who verified the respective versions of the accident. Id.

Instructions 1, 8 and 13 of the jury instructions all cautioned the jurors to weigh "all of the evidence." Instruction 9 provided:

A person who drives in excess of the maximum lawful speed at the point of operation may be inferred to have driven in a reckless manner.

This inference is not binding upon you and it is for you to determine what weight, if any, such inference is to be given.

The jury convicted Hanna on both counts.

III. Supreme Court of Washington.

Hanna appealed his conviction contending that Instruction 9 was constitutional error. ¹ He argued that the instruction impermissibly allowed the jury to ignore the evidence and to convict him based solely on its determination that he was driving in excess of the speed limit.

The Supreme Court of Washington rejected Hanna's argument. Hanna, 871 P.2d at 139-40. It first noted that Instructions 1, 8 and 13 cautioned the jurors to consider all of the evidence before accepting the inference. Id. 871 P.2d at 139. In consideration of all of the evidence, the inference was adequately supported by the prosecution's case. Id. 871 P.2d at 140. "If the prosecution introduces facts which support the inference to the degree required by due process, it is entitled to an inference instruction. In that event, it is irrelevant whether the defendant's version of facts also supports the inference." Id. Three justices dissented, criticizing the majority for reducing "a significant constitutional question to a determination whether there was sufficient evidence to convict." Id. 871 P.2d at 142 (Johnson, J., dissenting).

Under the instructions taken as a whole, a reasonable juror was entitled to satisfy the element of recklessness with all the evidence available or with the evidence Hanna was speeding. Thus, instruction 9 yields an unconstitutional result that the remaining instructions failed to cure.

Id. 871 P.2d at 143.

IV. District Court.

The district court disagreed with the Washington Supreme Court, and concluded that it was impossible to tell if the jury decided to convict by applying the unconstitutional instruction to the undisputed evidence that Hanna had been speeding. It therefore granted the writ of habeas corpus.

DISCUSSION

I. Was Instruction 9 Constitutional Error?

A. Standard of Review.

We review de novo whether an instruction violates due process by creating an unconstitutional presumption or inference. United States v. Warren, 25 F.3d 890, 897 (9th Cir.1994).

B. The Merits.

Instruction 9 allows, but does not mandate, a jury to infer recklessness solely from proof of excessive speed. The inference is therefore permissive. See Schwendeman v. Wallenstein, 971 F.2d 313, 316 (9th Cir.1992) (finding this instruction is permissive), cert. denied, 506 U.S. 1052, 113 S.Ct. 975, 122 L.Ed.2d 130 (1993). Permissive inference instructions are disfavored because they "tend to take the focus away from the elements that must be proved." Warren, 25 F.3d at 900 (Rymer, J., concurring).

Permissive inference jury instructions are constitutional, however, "so long as it can be said 'with substantial assurance' that the inferred fact is 'more likely than not to flow from the proved fact on which it is made to depend.' " Schwendeman, 971 F.2d at 316 (quoting United States v. Rubio-Villareal, 967 F.2d 294, 296 (9th Cir.1992) (en banc) (citing Ulster County v. Allen, 442 U.S. 140, 166 n. 28, 99 S.Ct. 2213, 2229 n. 28, 60 L.Ed.2d 777 (1979)). If, on the other hand, the inference relieves the prosecution of its burden of proving every element beyond a reasonable doubt, then the inference violates the Due Process Clause. Ulster, 442 U.S. at 156, 99 S.Ct. at 2224. "A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury." Francis v. Franklin, 471 U.S. 307, 316, 105 S.Ct. 1965, 1972, 85 L.Ed.2d 344 (1985) (citing Ulster, 442 U.S. at 157-63, 99 S.Ct. at 2224-28).

In Schwendeman, a case directly on point, we held that an identical jury instruction was constitutional error. 971 F.2d at 316. There, the prosecution presented evidence that Schwendeman had been drinking at a local tavern for two hours before driving away in his pickup truck with several passengers. Id. at 315. Schwendeman admitted that he had been driving 37 m.p.h. in a 25 m.p.h. zone. Id. A passenger testified that Schwendeman swerved all over the road, purposely trying to hit potholes. Id. Eventually, he lost control of the truck and hit a telephone pole. Id.

While noting "there was plenty of evidence to support Schwendeman's conviction" for reckless driving, the court held that Schwendeman's petition for a writ of habeas corpus should be granted. Id. at 314. "Although it is certainly true that excessive speed is probative of a jury's determination of recklessness, here we cannot say with substantial assurance that the inferred fact of reckless driving more likely than not flowed from the proved fact of excessive speed. Under Ulster County, the instruction was constitutionally deficient." Id. at 316.

Although acknowledging that the identical instruction was found to be constitutional error in Schwendeman, the state argues that in this trial the instruction was not error. See Warren, 25 F.3d at 898 ("we determine the constitutionality of a permissive inference instruction on a case-by-case basis"). It attempts to distinguish Schwendeman by arguing that in the case before us, recklessness did flow "more likely than...