Pattison v. State

• Decision Date: 22 June 2016
• Docket Number: No. 27S05–1603–CR–115.,27S05–1603–CR–115.
• Citation: 54 N.E.3d 361
• Parties: Dannie Carl PATTISON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

54 N.E.3d 361

Dannie Carl PATTISON, Appellant (Defendant below)

v.STATE of Indiana, Appellee (Plaintiff below).

No. 27S05–1603–CR–115.

Supreme Court of Indiana.

June 22, 2016.

Jerry T. Drook, Marion, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Larry D. Allen, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition to Transfer from the Indiana Court of Appeals, No. 27A05–1411–CR–517

MASSA, Justice.

At Dannie Pattison's trial for operating a vehicle with an alcohol concentration equivalent of 0.08 or more, his jury was instructed to presume his ACE at the time of the offense based on a chemical test conducted within three of hours of his being stopped by police. Tracking the language of Indiana Code section 9–30–6–15(b), the instruction told the jury it “shall presume,” yet also stated, “the presumption is rebuttable.” We are asked to decide whether that instruction improperly relieved the State of its burden to prove each element beyond a reasonable doubt, amounting to fundamental error. Finding no error in the trial court's instruction, we affirm Pattison's conviction.

Facts and Procedural History

Sometime after midnight, Jonesboro Police Officer Justin Chambers noticed a white Cadillac driving along a county road without its taillights on. Officer Chambers turned on his emergency lights and siren, and the Cadillac's driver, Dannie Pattison, eventually pulled into his driveway and stopped the car. While issuing a traffic citation for Pattison's inoperable taillights, Officer Chambers observed Pattison's watery eyes, slurred speech, and odor of alcohol. Pattison admitted he consumed “a couple of beers,” later stating he'd actually had three. Tr. at 12. Indeed, the horizontal gaze nystagmus test¹ indicated impairment, and the portable breathalyzer tested positive for alcohol. After being advised of the implied consent law, Pattison agreed to take a certified chemical test. Officer Chambers initially took Pattison to the Gas City Police Department due to its close proximity, but no one trained in operating the BAC DataMaster² was available to perform the certified chemical test. So, they went to the Grant County Sheriff's Department where trained Officer Dillon McDaniel conducted it: about an hour and a half after Pattison was pulled over, his alcohol concentration equivalent was 0.10. Pattison was charged with operating a vehicle with an ACE of 0.08 or more. Ind.Code § 9–30–5–1(a).

At trial, the State admitted evidence of the chemical test results, and Chambers, as well as another responding officer, testified as to their observations during the stop. In his defense, Pattison offered evidence that he could not drink due to several health conditions—including liver failure —and that he in fact did not drink that night. He theorized his test results may have been skewed because he used his inhaler several times that night while he was in the police car, although the officers did not see him use an inhaler, nor did they find one during their search of him.

A jury found Pattison guilty as charged, a Class D felony due to a prior conviction,³ and the trial court sentenced him to three years.⁴

On appeal, Pattison challenged the following jury instruction:

6. Rebuttable Presumption

If in a prosecution for operating a vehicle with at least eight hundredths (0.08) gram of alcohol in 210 liters of the breath, if evidence establishes that:

• a chemical test was performed within three (3) hours after the law enforcement officer had probable cause to believe the person committed the crime; and

• the person charged with the offense had an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of alcohol per two hundred ten (210) liters of the person's breath;

the jury shall presume that the person charged with the offense had an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of alcohol per two hundred ten (210) liters of the person's breath at the time the person operated the vehicle. However, the presumption is rebuttable.

Tr. at 205; App. at 33. Although Pattison did not object to the instruction at trial, he argued below that it amounted to fundamental error because it unconstitutionally shifted the burden to him to disprove an element of the crime—his ACE at the time of the offense—in violation of the Due Process Clause. Pattison insisted the jury must be instructed that it is free to accept or reject the presumption.

A unanimous panel of our Court of Appeals agreed with Pattison and reversed his conviction, finding the instruction did not make clear the presumption was merely permissible. Pattison v. State, 47 N.E.3d 621, 628 (Ind.Ct.App.2015). The panel acknowledged Instruction 6 closely mirrors the language of Indiana Code section 9–30–6–15(b),⁵ which was upheld as constitutional in Chilcutt v. State because the State was still required to prove every element beyond a reasonable doubt, which it quite clearly did in that case. Id. at 625–26 (citing Chilcutt v. State, 544 N.E.2d 856, 858 (Ind.Ct.App.1989) ). Nevertheless, the panel here ultimately relied upon subsequent Court of Appeals precedent that found a jury instruction erroneous even though it was based on that very statute, because the phrase “shall presume” could mislead the jury into believing the presumption was a mandatory one that placed the burden on the defendant to prove his ACE. Id. at 626–27 (citing Hall v. State, 560 N.E.2d 561, 564 (Ind.Ct.App.1990) ). Because the panel determined Pattison's instruction was essentially the same as that in Hall, it found there was error. Id. at 627. And, because the instruction shifted the burden of proof on the only contested element of the crime, it held that constitutional error was not harmless. Id. at 628.

The State sought transfer on the grounds that this Court has found similar jury instructions, which likewise tracked the language of this statute, “were innocuous and not error at all—much less fundamental error.” Pet. for Trans. at 6 (citing Smith v. State, 681 N.E.2d 687 (Ind.1997) and Platt v. State, 589 N.E.2d 222 (Ind.1992) ). The State also argued that, even if the instruction was erroneous, the Court of Appeals improperly “conflated the standards” for analyzing harmful versus fundamental errors. Pet. for Trans. at 14. We granted the State's petition, thereby vacating the opinion below. Pattison v. State, 46 N.E.3d 445 (Ind.2016) (table); Ind. Appellate Rule 58(A).

Standard of Review

Because instructing the jury is a matter within the sound discretion of the trial court, we will reverse a trial court's decision to tender or reject a jury instruction only if there is an abuse of that discretion. Washington v. State, 997 N.E.2d 342, 345 (Ind.2013). We determine whether the instruction states the law correctly, whether it is supported by record evidence, and whether its substance is covered by other instructions. Id. at 345–46. “Jury instructions are to be considered as a whole and in reference to each other; error in a particular instruction will not result in reversal unless the entire jury charge misleads the jury as to the law in the case.” Whitney v. State, 750 N.E.2d 342, 344 (Ind.2001) (quoting Edgecomb v. State, 673 N.E.2d 1185, 1196 (Ind.1996) ).

Where, as here, the defendant failed to preserve an alleged instructional defect, the objection is waived, and reversal is warranted only in instances of fundamental error. Wright v. State, 730 N.E.2d 713, 716 (Ind.2000). “Error is fundamental if it is ‘a substantial blatant violation of basic principles' and where, if not corrected, it would deny a defendant fundamental due process.” Id. (quoting Brown v. State, 691 N.E.2d 438, 444 (Ind.1998) ). This exception to the general rule requiring a contemporaneous objection is narrow, providing relief only in “egregious circumstances” that made a fair trial impossible. Halliburton v. State, 1 N.E.3d 670, 678 (Ind.2013).

The Trial Court's Instruction Was Not Error.

Pattison argues Instruction 6 improperly shifted the burden of proof because it created a “mandatory presumption” by instructing the jury it “shall presume” an element of the crime: his alcohol concentration equivalent while driving. Appellant's Br. at 10. He says the trial court should have advised the jury the presumption was merely permissive; in other words, the jury could accept or reject the presumption even in the absence of evidence to rebut it. The State concedes Pattison may well have been entitled to such language, but it nevertheless responds that the instruction is proper in light of Platt and Chilcutt, which determined the instruction did not “create a conclusive presumption,” but a rebuttable one. Pet. for Trans. at 13.

The Due Process Clause prohibits the State from relying upon an evidentiary presumption that has the effect of relieving it of its burden to prove every essential element of a crime beyond a reasonable doubt. Sandstrom v. Montana, 442 U.S. 510, 524, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) ; McCorker v. State, 797 N.E.2d 257, 263 (Ind.2003). As a threshold matter, we must first determine whether the challenged instruction creates a mandatory presumption or merely a permissive inference. Francis v. Franklin, 471 U.S. 307, 313–14, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). “A mandatory presumption instructs the jury that it must infer the presumed facts if the State proves certain predicate facts.” Winegeart v. State, 665 N.E.2d 893, 904 (Ind.1996) (emphasis added). If that presumption amounts to a shift in the burden of proof, it is unconstitutional. Francis, 471 U.S. at 315–16, 105 S.Ct. 1965.⁶ Such was the outcome in Francis, where the defendant shot and killed a man but claimed the firing of the gun was accidental, making intent the only disputed issue at trial. Id. at 310–11, 105 S.Ct. 1965. The jury was instructed to presume that the acts of a person of sound mind are the product of his will. Id. at 311–12, 105 S.Ct. 1965. Because that...