Pigee v. Israel

• Decision Date: 01 March 1982
• Docket Number: Nos. 81-1269,81-1508,s. 81-1269
• Parties: Willie Lee PIGEE, Petitioner-Appellant, v. Thomas R. ISRAEL and Bronson C. LaFollette, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 690

670 F.2d 690

Willie Lee PIGEE, Petitioner-Appellant, v. Thomas R. ISRAEL and Bronson C. LaFollette, Respondents-Appellees.

Nos. 81-1269, 81-1508.

United States Court of Appeals Seventh Circuit.

Argued Sept. 14, 1981.

Feb. 3, 1982.

Rehearing and Rehearing En Banc Denied March 1, 1982.

Ben Kempinen, Legal Assistance to Institutionalized Persons Program, Madison, Wis., for petitioner-appellant.

Chris Heikenen, Asst. Atty. Gen., Wis. Dept. of Justice, Bronson C. LaFollette, Atty. Gen., Madison, Wis., for respondents-appellees.

Before BAUER, Circuit Judge, FAIRCHILD, Senior Circuit Judge, and BAKER, District Judge. ^*

FAIRCHILD, Senior Circuit Judge.

This appeal raises the question of whether, in a case in which intent is an element of the crime charged, the jury instruction that "When there are no circumstances to prevent or rebut the presumption, the law presumes that a reasonable person intends all the natural probable and usual consequences of his deliberate acts" risks a violation of the Fourteenth Amendment's requirement that a state prove every element of a criminal offense beyond a reasonable doubt, under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). We hold that the instruction given in this case did not create such a risk. Therefore we affirm the district court's denial of the Petitioner's request for a writ of habeas corpus.

The Petitioner was charged with two counts of attempted murder, arising out of events which occurred at the Club Marquis in Racine, Wisconsin, on April 16, 1972. A main issue at trial was whether the Petitioner intended to kill the two victims.

Alverest Woodson, Myrna Kennedy, and Mr. and Mrs. Walter Baker arrived at the Club Marquis at about midnight. Shortly thereafter, comments were exchanged by the Petitioner and Mr. Woodson about the "hot pants" worn by Mrs. Kennedy.

Mrs. Baker testified at trial that she noticed the Petitioner had a gun under his trench coat and urged her companions to leave the Club. On their way out, a struggle ensued.

Mrs. Kennedy, Mr. Woodson, and other witnesses testified at trial that the Petitioner threatened to "blow" the brains out of Mr. Woodson and then did in fact shoot him. Mr. Woodson was shot twice in the chest. Mrs. Kennedy was shot once in the arm.

The Petitioner admitted the acts of shooting but denied that he intended to kill the victims and in fact denied that he intended to shoot them at all. The Petitioner testified that Mr. Woodson attacked him and that he pulled out his gun, but only to "bluff" Mr. Woodson, not intending to fire the gun.

A Special Agent of the Federal Bureau of Investigation testified that the Petitioner's gun was a type which could be fired only by depressing the grip safety and pulling the trigger. Both actions must be taken each time the weapon is fired.

The trial judge instructed the jury that "When there are no circumstances to prevent or rebut the presumption, the law presumes that a reasonable person intends all the natural probable and usual consequences of his deliberate acts." The jury found the Petitioner guilty of the charge that he attempted to murder Woodson, but not guilty as to Mrs. Kennedy. He was sentenced to twenty years in prison.

The district court denied the Petitioner's request for a writ of habeas corpus, finding that no reasonable jury could have interpreted the instruction on intent in an unconstitutional manner.

The Petitioner contends that the instruction could have been interpreted by the jury to require the Petitioner to prove that he lacked intent to kill, thus shifting the burden of persuasion to him on the element of intent. Such an interpretation would violate the due process principle that the burden is on the state to prove every element of the crime charged beyond a reasonable doubt. In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). See also, Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952).

The threshold inquiry is whether a reasonable jury could have interpreted the instruction in an unconstitutional manner. Sandstrom, supra, 442 U.S. at 514, 99 S.Ct. at 2454.

We begin by recognizing the problem, as courts always have, that state of mind (i.e., intent, mental purpose, knowledge) must be determined circumstantially, by inference. Courts have deemed it wise to point out this problem to juries, lest they be too much troubled by the task of determining a person's state of mind without direct evidence, and usually without evidence of a specific admission or declaration of the person himself.

Courts have accordingly instructed juries that a particular state of mind can be inferred from a person's acts and utterances, and that it is rational and fair, where a determination must be made as to intent, to reason that a person intends the natural, probable, and usual consequences of his acts. Unfortunately, courts in phrasing the proposition have often used the word "presumed" instead of "inferred," leading to argument that the word "presumed" connotes that a fact exists unless disproved.

The Supreme Court has identified three types of presumptions of an element of the crime. Sandstrom, supra, and Ulster County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). First, a "conclusive presumption" is technically not a presumption at all, but is rather an irrebuttable direction by the court to find the elemental fact once convinced of the basic facts triggering the presumption. Sandstrom supra, 442 U.S. at 517, 99 S.Ct. at 2455. ¹

Second, a "mandatory presumption" requires the jury to find the elemental fact once convinced of the basic facts triggering the presumption, unless the defendant offers evidence to the contrary. Sandstrom, supra, 442 U.S. at 515, 99 S.Ct. at 2454. A mandatory presumption can be subdivided into two parts. The presumption can require the jury to find the elemental fact unless the defendant offers "some" evidence to the contrary. Sandstrom, supra, 442 U.S. at 517, 99 S.Ct. at 2455; Ulster County Court, supra, 442 U.S. at 157-158, 99 S.Ct. at 2224-2226. Such a presumption shifts the burden of production to the defendant on that element of the crime. Sandstrom, supra, 442 U.S. at 517, 99 S.Ct. at 2455.

Alternatively, the presumption can require the jury to find the elemental fact unless the defendant proves the contrary by "some quantum of proof" greater than "some" evidence. Id. Such a presumption effectively shifts the burden of persuasion to the defendant on that element of the crime. Id.

Third, a "permissive presumption" allows, but does not require, the jury to infer the elemental fact once convinced of the basic facts, but places no burden of proof of any kind on the defendant. Ulster County Court, supra, 442 U.S. at 157, 99 S.Ct. at 2224. This "presumption" is technically not a presumption at all; it is merely an inference available to assist the factfinder, at his option, in evaluating the evidence. ²

In Sandstrom, the Supreme Court concluded that a reasonable jury could have interpreted the instruction given in that case by a Montana trial court as stating a mandatory presumption, rebuttable only by proof to the contrary by some quantum of proof greater than "some" evidence, thus shifting the burden of persuasion to the defendant on that element of the crime. 442 U.S. at 517, 99 S.Ct. at 2455. The Court further decided that the instruction could even have been interpreted as stating a conclusive presumption. Id.

The fatal flaw in the instruction in Sandstrom was that the jury was not told the presumption could be rebutted by "some" evidence or by any evidence at all. The instruction simply told the jury that "the law presumes that a person intends the ordinary consequences of his voluntary acts." Id. The Court was concerned that the lack of qualifying instructions as to the legal effect of the presumption might lead the jury to construe the instruction as stating either a conclusive presumption or the type of mandatory presumption which shifts the burden of persuasion to the defendant. Id.

Both of these possible interpretations of the instruction by the jury conflicted with the overriding presumption of the innocence of the accused and with the state's burden of proving beyond a reasonable doubt all elements of the crime charged. Id., at 524, 99 S.Ct. at 2459. ³ Thus the instruction posed a risk that Sandstrom was convicted without due process of law. In Ulster County Court, the trial judge instructed the jury that:

"Our Penal Law ... provides that the presence in any automobile of any ... firearm which is loaded is presumptive evidence of (its) unlawful possession.

"In other words, ... you may infer and draw a conclusion.... The presumption ... is effective only so long as there is no evidence contradicting the conclusion flowing from the presumption, and the presumption is said to disappear when such contradictory evidence is adduced."

442 U.S. at 161, 99 S.Ct. at 2226.

The Supreme Court concluded that no reasonable jury could have interpreted this instruction in an unconstitutional manner. The instructions as a whole made it clear that the presumption was merely a permissive inference which the jury knew it was free to accept or reject. Id., at 161-162, 99 S.Ct. 2226.

The instruction on intent in this case is substantially different from the instruction given in Sandstrom. The instruction contains the crucial qualifying language which the Supreme Court found lacking in Sandstrom. 442 U.S. at 517, 99 S.Ct. at 2455. It is prefaced by the phrase, "When there are no circumstances to prevent or rebut...."

Furthermore, the challenged instruction refers to the consequences of "deliberate" acts. The instruction in Sandstrom, referred to the consequences of "voluntary" acts. ⁴

A voluntary ⁵ act is intended, and not merely an accident. A deliberate ⁶ act is...