State v. Bolin

• Decision Date: 09 October 1984
• Parties: STATE of Tennessee, Appellant, v. Darel BOLIN, Appellee. 678 S.W.2d 40
• Court: Tennessee Supreme Court

Page 40

678 S.W.2d 40

STATE of Tennessee, Appellant, v. Darel BOLIN, Appellee.

678 S.W.2d 40

Supreme Court of Tennessee,

at Nashville.

Oct. 9, 1984.

William M. Leech, Jr., Atty. Gen., Kimberly J. Dean, Asst. Atty. Gen., Nashville, for appellant.

Gary M. Howell, Columbia, for appellee.

OPINION

FONES, Justice.

The issue in this case is whether a jury instruction which states that "the use of a deadly weapon ... raises a presumption of malice, unless rebutted by other facts and circumstances to the contrary" unconstitutionally shifts the burden of persuasion on the element of malice from the State to the defendant.

Defendant was convicted in the trial court of assault with intent to commit murder in the first degree after the above instruction was charged to the jury. The Court of Criminal Appeals found the charge to be constitutionally defective, reduced the offense to aggravated assault set the punishment at the minimum, two years but gave the State the option of rejecting that punishment for a new sentencing hearing to determine the punishment for the offense of aggravated assault.

The relevant facts are summarized by the intermediate appellate court as follows:

The victim, Dennis Pugh, and his wife, Mary Jo, had been separated and were experiencing marital difficulties. On September 30, 1981, Mr. Pugh visited his wife at their home in Maury County to discuss a reconciliation. Between 12:00 and 12:30 p.m., the victim heard noises outside the house and went out the back door to investigate. As he walked around the house, the appellant jumped out from behind a bush, took a police stance, and shot the victim in the abdomen. Mr. Pugh turned and began running, but appellant continued to unleash a fussilade of bullets in his direction. The victim suffered wounds to the head, face, and abdomen, resulting in surgery and a stay in the hospital for eleven or twelve days.

Mrs. Pugh admitted in testimony that appellant had been her paramour for a short time prior to the shooting incident. On the evening in question, she was upset and crying about a problem with her teenage son, but she and her husband did not argue or raise their voices. Both the victim and his wife were able to positively identify appellant as the assailant.

The appellant did not testify but did call his sister as a witness. She related that Mr. Pugh was aware of the affair prior to the shooting.

The instruction in question was taken from Tennessee Pattern Jury Instructions, Criminal 8.03 and reads as follows:

(3) that the attempted killing was malicious; that is, that the defendant was of the state of mind to do the alleged wrongful act without legal justification or excuse; the use of a deadly weapon by a party who assaults another with intent to commit murder in the first degree raises a presumption of malice, unless rebutted by other facts and circumstances to the contrary. A deadly weapon is any weapon or instrument which from the manner in which it is used or attempted to be used is likely to produce death or great bodily injury; (Emphasis added.)

The underlined portion is the critical part that poses the constitutional issue.

I.

The Court of Criminal Appeals relied upon Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) and Phillips v. Rose, 690 F.2d 79 (6th Cir.1982), in finding the jury instruction unconstitutional and, of course, defendant insists that those cases require that result. The State contends that the Court of Criminal Appeals read Sandstrom and Phillips too narrowly, that viewed in the context of the overall charge, the words of the Court merely described a permissive inference. In addition, the State urges that if the instruction was erroneous, it was harmless error.

In our opinion, Sandstrom does not require that we find the jury instruction in this case to be unconstitutional. Sandstrom was charged with "deliberate homicide" defined in the Montana Statute as a criminal homicide committed, "purposely or knowingly." Sandstrom admitted the homicide at his trial in the Montana State Court, but insisted that he did not commit the crime "purposely or knowingly" and was therefore guilty of only a lesser offense. His lawyer argued that the jury instruction, "[t]he law presumes that a person intends the ordinary consequences of his voluntary acts" had the effect of shifting the burden of proof to defendant on the issue of whether defendant acted "purposely or knowingly," a due process of law violation under the federal constitution. The Supreme Court noted that defense counsel's offer to provide the trial judge with federal decisions in support of that position evoked the response, "You can give those to the Supreme Court. The objection is overruled."

The Supreme Court said that the threshold inquiry in determining the constitutionality of that kind of jury instruction was to determine the nature of the presumption it described, which determination required

"careful attention to the words actually spoken to the jury, see id., [Ulster County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979) ] at 157-159, n. 16, 99 S.Ct., at 2225, for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction." Id. 442 U.S. at 514, 99 S.Ct. at 2454.

Apparently, the "nature" of presumptions must be gleaned from Ulster and the lengthy footnote at 99 S.Ct. page 2225 of that opinion. In Ulster, the Court was distinguishing between two types of evidentiary devices, the entirely permissive inference and the mandatory presumption. The permissive inference allows, but does not require, the triers of fact to infer the elemental fact from proof by the State of the basic fact and places no burden of any kind on the defendant. The mandatory presumption tells the triers of fact that they must find the elemental fact upon proof of the basic fact unless defendant comes forward with some evidence to rebut the presumed connection between the two facts.

In Sandstrom, the Supreme Court noted that the state had admitted that it was "possible" that the jury believed that they were required to apply the presumption. The Court then moved swiftly to its conclusion, as follows:

"Sandstrom's jurors were told that '[t]he law presumes that a person intends the ordinary consequences of his voluntary acts.' They 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. See generally United States v. Wharton, 139 U.S.App.D.C. 293, 298, 433 F.2d 451, 456 (1970); Green v. United States, 132 U.S.App.D.C. 98, 99, 405 F.2d 1368, 1369 (1968). See also Montana Rule of Evidence 301(a). ⁴

Id. 442 U.S. at 515, 99 S.Ct. at 2454.

Next, the Supreme Court concludes that a reasonable jury could have interpreted the jury instruction, "as a direction to find intent upon proof of the defendant's voluntary actions (and their 'ordinary' consequences), unless the defendant proved the contrary by some quantum of proof which may well have been considerably greater than 'some' evidence--thus effectively shifting the burden of persuasion on the element of intent." (Court's emphasis.) Id. 442 U.S. at 517, 99 S.Ct. at 2456. That conclusion, like the conclusive presumption defect, was bottomed upon the force of the words "the law presumes" and the failure of the trial judge to instruct the jury that the presumption could be rebutted.

Montana's Rules of Evidence expressly state that the presumption at issue could be overcome only, "by a preponderance of evidence contrary to the presumption." The Supreme Court concluded that both the burden of production and the ultimate burden of persuasion on the issue of intent were thus shifted to defendant in violation of the due process principle that protects the accused against conviction, except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which defendant was charged.

II.

The words of the presumption, the immediate context in which they appear, and the overall context of the jury instructions, remove this case from the due process trap adjudicated in Sandstrom, in our opinion.

In the immediate context of the reference to the presumption of malice, the trial judge prefaced the delineation of the six separate elements of the offense as follows:

For you to find the defendant guilty of assault with intent to commit murder in the first degree, the state must have proven beyond a reasonable doubt:

(1) that the defendant unlawfully assaulted the alleged victim;

(2) that the defendant intended to commit the specific felony of murder in the first degree;

(3) that the attempted killing was malicious; that is, that the defendant was of the state of mind to do the alleged wrongful act without legal justification or excuse; the use of a deadly weapon by a party who assaults, another with intent to commit murder in the first degree raises a presumption of malice, unless rebutted by other facts and circumstances to the contrary....

The words of the presumption that, "the use of a deadly weapon ... raises a presumption of malice," is more permissive than, "the law presumes that a person intends the ordinary consequences of his voluntary acts." The instruction in the instant case immediately stated that the presumption may be "rebutted by other facts and circumstances to the contrary" and there was no suggestion that those facts and circumstances must have been established by the defendant or that he had any burden of proof whatever with respect to them. The Sandstrom court repeatedly emphasized the significance of the failure to tell the jury that the presumption could be rebutted.

The instructions at the conclusion of this portion of the charge were as follows:

"If you find the defendant not guilty of assault with...