Krucheck v. State

Decision Date20 October 1983
Docket NumberNo. 83-35,83-35
PartiesMartin KRUCHECK, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Thos. J. Fagan and James W. Fagan of Fagan & Fagan, Casper, for appellant.

A.G. McClintock, Atty. Gen.; Gerald A. Stack, Deputy Atty. Gen.; Mary B. Guthrie, and John W. Renneisen, Senior Asst. Atty. Gen., Cheyenne, for appellee.

Before ROONEY, C.J., and RAPER *, THOMAS, ROSE and BROWN, JJ.

BROWN, Justice.

Appellant was convicted by a jury of second-degree murder which is defined in § 6-2-104, W.S.1977 (June 1983 Replacement). In his appeal, he has raised several issues. Because of our disposition of the case, we only address whether the trial court erred in instructing the jury that "the use of a deadly weapon in a deadly or dangerous manner raises a presumption of malice."

We reverse and remand.

At approximately six o'clock p.m. on February 20, 1982, appellant called his girl friend, Dianne Welsh, because the preceding day she had informed him she was returning to her ex-husband, John Welsh. During their telephone conversation on the 20th, Dianne Welsh told appellant that her ex-husband had arrived and spent the previous night with her. Appellant became angry and threatened to kill John Welsh.

Shortly after the telephone conversation, appellant arrived at the residence of Dianne Welsh and rang the doorbell. John Welsh answered the door, and appellant struck him. As Welsh started to fall, appellant swung his arm around and pointed a gun at him. The gun fired mortally wounding Welsh. Thereafter appellant was charged with first-degree murder.

The case then proceeded to trial on September 20, 1982. The jury was instructed on first-degree murder, second-degree murder, and manslaughter. It was also instructed over an objection that: "You are instructed that the use of a deadly weapon in a deadly or dangerous manner raises a presumption of malice."

After the jury retired for its deliberations, it requested additional instruction. The district court provided it with the following supplemental instruction:

"The Jury having submitted to the Court the following question: 'Does the presence of malice preclude a manslaughter conviction?'; the Court instructs the Jury as follows: 'Not necessarily', but a finding of malice, where the other elements for voluntary manslaughter have also been found, would preclude a manslaughter conviction."

The jury found appellant guilty of second-degree murder after receiving the additional instruction.

Rule 303(c) of the Wyoming Rules of Evidence provides:

"Whenever the existence of a presumed fact against the accused is submitted to the jury, the court shall instruct the jury that it may regard the basic facts as sufficient evidence of the presumed fact but is not required to do so. In addition, if the presumed fact establishes guilt or is an element of the offense or negatives a defense, the court shall instruct the jury that its existence, on all the evidence, must be proved beyond a reasonable doubt." (Emphasis added.)

By using the words "the court shall instruct," the rule mandates that when the rule becomes applicable, the court must instruct the jury as is provided.

Here, the jury was instructed that "the use of a deadly weapon in a deadly or dangerous manner raises a presumption of malice." That constituted the submission to the jury of "the existence of a presumed fact," thus triggering the operation of Rule 303(c), supra. Under that rule the jury then must have been told explicitly that the presumption was permissive and not mandatory in nature.

Rule 303(c), W.R.E., also requires that when the existence of an element of a crime may be presumed, the jury shall be instructed that the element must be proven beyond a reasonable doubt. Here, malice was an element of the offense of second degree murder. Accordingly, contemporaneous with a jury instruction that malice may be presumed from the use of a deadly weapon, the jury should also have been told that the existence of malice must be proven beyond a reasonable doubt. The trial court's failure to so instruct in this case constituted error.

Further, not only was the court's failure to so instruct error under the Wyoming Rules of Evidence, it was also error under the due process clause of the Fourteenth Amendment to the United States Constitution. The United States Supreme Court has stated that the Fourteenth Amendment requires states to "prove every element of a criminal offense beyond a reasonable doubt." Sandstrom v. Montana, 442 U.S. 510, 512, 99 S.Ct. 2450, 2453, 61 L.Ed.2d 39, 43 (1979). 1 This principle was expounded upon at length in the Sandstrom decision and held to prohibit not only a mandatory presumption, but any presumption which a reasonable juror may read as mandatory.

In that case, Sandstrom was charged with the crime of "purposely or knowingly caus[ing] the death of Annie Jessen." The jury was instructed that "the law presumes that a person intends the ordinary consequences of his voluntary acts." Sandstrom v. Montana, supra, 442 U.S. 512, 99 S.Ct. 2453, 61 L.Ed.2d 43. The Supreme Court observed that it was possible for the jury to have viewed that instruction as requiring it to apply the presumption. Specifically, that court noted:

" * * * They [the jurors] were not told that they had a choice, or that they might infer that conclusion; they were told only that the law presumed it. It is clear that a reasonable juror could easily have viewed such an instruction as mandatory. [Citations.]" Sandstrom v. Montana, supra, 442 U.S. 515, 99 S.Ct. 2454, 61 L.Ed.2d 45.

In a case decided within two weeks of Sandstrom, the United States Supreme Court set out an example of a presumption that the constitution sanctioned. County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). There, three males were prosecuted for possession of a firearm. The New York statute in question specifically provided that the presence of a firearm in an automobile was presumptive evidence of its possession by all persons occupying the vehicle. The judge instructed the jury that:

" 'Our Penal Law also provides that the presence in an automobile of any machine gun or of any handgun or firearm which is loaded is presumptive evidence of their unlawful possession.

" 'In other words, those presumptions or this latter presumption upon proof of the presence of the machine gun and the hand weapons, you may infer and draw a conclusion that such prohibited weapon was possessed by each of the defendants who occupied the automobile at the time when such instruments were found. The presumption or presumptions is [sic] effective only so long as there is no substantial evidence contradicting the conclusion flowing from the presumption, and the presumption is said to disappear when such contradictory evidence is adduced.

" 'The presumption or presumptions which I discussed with the jury relative to the drugs or weapons in this case need not be rebutted by affirmative proof or affirmative evidence but may be rebutted by any evidence or lack of evidence in the case.' " (Emphasis added.) County Court of Ulster County v. Allen, supra, 442 U.S. 161, 99 S.Ct. 2227, 60 L.Ed.2d 794, fn. 20.

The Court concluded that the instructions comported with the requirements of the Fourteenth Amendment.

The case before us, however, cannot be distinguished from Sandstrom, supra, on the basis of County Court of Ulster County, supra. Here the challenged instruction indicated that the use of a deadly weapon raised a presumption of malice. The word "may" was not included as it had been in County Court of Ulster County v. Allen, supra. Nothing in the instructions told the jurors that the presumption was not mandatory in nature. Granted, other instructions were given requiring the jury to find the elements of the crime beyond a reasonable doubt in order to convict. But that was also done in Sandstrom, and the Supreme Court stated that that was not enough. "The potential for these interpretations of the presumption was not removed by the other instructions given at the trial. It is true that the jury was instructed generally that the accused was presumed innocent until proved guilty, and that the State had the burden of proving beyond a reasonable doubt that the defendant caused the death of the deceased purposely or knowingly. [Citation.] But this is not rhetorically inconsistent with a conclusive or burden-shifting presumption. The jury could have interpreted the two sets of instructions as indicating that the presumption was a means by which proof beyond a reasonable doubt as to intent could be satisfied. For example, if the presumption were viewed as conclusive, the jury could have believed that although intent must be proved beyond a reasonable doubt, proof of the voluntary slaying and its ordinary consequences constituted proof of intent beyond a reasonable doubt. * * * " Sandstrom v. Montana, 442 U.S. 518, 99 S.Ct. 2457, 61 L.Ed.2d 47, fn. 7.

Clearly the Wyoming Rules of Evidence were violated, as was the Fourteenth Amendment. When a jury is authorized to make use of presumptions, it must be informed that it may refuse to use them. As this court has previously said:

" * * * The use of the presumption assists the prosecutor in not having to produce evidence of intention, at least until the presumption is rebutted. But it clearly denies the jury of the opportunity to make up its own minds on the question of intention because there is no probative evidence introduced from which it can base its own finding. In this respect, the presumption instruction is diametrically opposite that of the use of deductions and inferences which the jury may logically and properly draw from facts and circumstances introduced which point toward intention. [Citations.]" Stuebgen v. State, Wyo., 548 P.2d 870, 884-885 (1976).

The only question remaining is whether the error should be considered...

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