Harris v. Israel
| Decision Date | 03 June 1981 |
| Docket Number | Civ. A. No. 76-C-736. |
| Citation | 515 F. Supp. 568 |
| Parties | James Lee HARRIS, Petitioner, v. Thomas R. ISRAEL, Respondent. |
| Court | U.S. District Court — Eastern District of Wisconsin |
James Lee Harris, pro se.
Bronson C. LaFollette, Atty. Gen. of Wisconsin and Pamela Magee-Heilprin, Asst. Atty. Gen., Madison, Wis., for respondent.
DECISION AND ORDER
This is a habeas corpus action brought by James Lee Harris, an inmate of the Wisconsin State Prison at Waupun, Wisconsin. The court has jurisdiction over the action pursuant to 28 U.S.C. § 2254.
In 1973, petitioner was convicted of first degree murder, in violation of § 940.01 of the Wisconsin Statutes. The conviction arose out of an attempted armed robbery of a supermarket, during the course of which petitioner shot and killed a store employee. Petitioner did not deny firing the fatal shot but claimed that he only meant to strike the victim on the side of the head with his gun as he was making his exit. Petitioner denied that he intended to fire the gun or kill the victim.
Petitioner's claim of constitutional error rests on the instructions regarding intent, which instructions were read to the jury. In particular, petitioner claims that Wisconsin Jury Instruction — Criminal No. 1100 unconstitutionally shifted the burden of proof on the issue of intent to the defendant.
The portion of the jury instruction challenged by petitioner reads as follows:
In Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), the United States Supreme Court held that an instruction which provided that "`the law presumes that a person intends the ordinary consequences of his voluntary acts,'" could have been interpreted by the jury as shifting the burden of proof on the issue of intent from the prosecution to the defendant. Such an interpretation would violate the constitutional principle that due process requires that in a criminal case the prosecution prove every element of the crime charged beyond a reasonable doubt. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
In Dreske v. Wisconsin Department of Health and Social Services, D.C., 483 F.Supp. 783, 787 (1980), this Court held that a Wisconsin jury instruction providing that "`when there are no circumstances to rebut the presumption, the law presumes that a person intends all of the natural, probable, and usual consequences of his deliberate acts'" suffered from the same infirmity as the instruction struck down in Sandstrom. Respondent urges the Court to reconsider that holding. In the alternative, respondent argues that Sandstrom should not be applied retroactively and that use of the challenged instruction constitutes harmless error.
In Sandstrom, the Supreme Court identified four types of presumptions. The strongest presumption is the conclusive presumption. With a conclusive presumption, since the antecedent facts have been established, the jury is required to find the presumed fact regardless of evidence to the contrary. A conclusive presumption is irrebuttable.
There is a second type of presumption which acts to shift the burden of proof. With this type of presumption, once the jury has found the existence of the antecedent facts, it must find the presumed fact unless enough evidence is produced to establish the contrary.
The third type of presumption acts merely to shift the burden of production. Here the jury must find the presumed fact only if no evidence has been produced that would establish the contrary. This is the so-called "bursting bubble" presumption.
Finally, the weakest presumption is the permissive inference. This is not really a presumption at all but an instruction informing the jury that it may find the existence of the presumed fact once the antecedent facts have been established but that it is not required to do so.
The instruction at issue in Sandstrom was invalidated because the jury could have come to the conclusion that it created either a conclusive presumption or a presumption that shifted the burden of proof. The instruction in the instant case is identical to the Sandstrom instruction except that it is preceded by the phrase "when there are no circumstances to prevent or rebut the presumption * * *." Wisconsin Jury Instructions — Criminal No. 1100. It was correctly pointed out by the Wisconsin Supreme Court in Muller v. State, 94 Wis.2d 450, 289 N.W.2d 570 (1980), that this phrase eliminates the possibility that the jury could have interpreted the presumption as conclusive since they are explicitly instructed that the presumption may be rebutted.
This Court is convinced, however, that there remains the possibility that the jury concluded that the presumption required the defendant to prove that he did not intend the natural consequences of his acts, thereby unconstitutionally shifting the burden of proof. The Court in Muller discounted this possibility by focusing on the phrase "no circumstances." According to the Muller court, that phrase should have made it clear to the jury that the defendant was only required to submit "some" evidence to avoid the presumption and that the burden of proof remained at all times with the prosecution.
This is indeed a subtle notion. While one schooled in the fine distinctions of the law may appreciate the idea of a presumption which is countered by the production of evidence that does not persuade one to the contrary, the idea is foreign to the layman. The usual and customary meaning of the term "rebut" is "to contradict * * * by countervailing proof." Webster's New Collegiate Dictionary at 714 (1970). A proposition is generally not thought to have been rebutted until it has been shown that it is more likely than not that the contrary is true. Thus, there is at least the possibility that the jury interpreted the instruction at issue as requiring them to find intent unless the defendant persuaded them to the contrary. Under Sandstrom, the mere possibility that the instruction could be so interpreted is enough to invalidate the instruction.
The intent instruction challenged in this action so closely parallels the instruction struck down in Sandstrom that any attempt to distinguish the two can amount to little more than semantic legerdemain. The same constitutional defect that was present in Sandstrom is present in the instant case. Accordingly, this Court's decision in Dreske must stand.
This Court is also convinced that Sandstrom must be applied retroactively. In Ivan v. City of New York, 407 U.S. 203, 92 S.Ct. 1951, 32 L.Ed.2d 659 (1972), the United States Supreme Court addressed the issue of whether In re Winship, supra, holding that the reasonable doubt standard was to be applied to juvenile proceedings, was to be applied retroactively. The Court stated 407 U.S. at 204-205, 92 S.Ct. at 1952:
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