State v. Brighter, 6634

• Decision Date: 01 June 1979
• Docket Number: No. 6634,6634
• Citation: 595 P.2d 1072,61 Haw. 99
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. David BRIGHTER, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 1072

595 P.2d 1072

61 Haw. 99

STATE of Hawaii, Plaintiff-Appellee, v. David BRIGHTER, Defendant-Appellant.

No. 6634.

Supreme Court of Hawai'i.

June 1, 1979.

Syllabus by the Court

1. In enacting HRS § 712-1251 (1976), our legislature was concerned with the practical impossibility of proving by direct evidence the knowing possession of drugs when such drugs, although discovered in a motor vehicle, are not actually upon the person of any of the occupants. Under HRS § 712-1251 (1976), the presence of any drug in a motor vehicle is prima facie evidence of knowing possession of the drug by each and every person in the vehicle at the time the drug was found.

2. As utilized in HRS § 712-1251 (1976), the phrase "prima facie evidence" (defined in HRS § 701-117 (1976)) constitutes a permissive inference, thus permitting but not compelling the inference of guilt.

3. A statutory inference may be authorized only if there is a natural and rational evidentiary relation between the facts proven and the ultimate fact which the statute authorizes to be found.

4. In assessing the constitutionality of statutory inferences, significant weight should be accorded to legislative determinations upon which such inferences are based. However, a court may also take into account through judicial notice, if necessary, other pertinent and helpful information which may be available.

5. HRS § 712-1251 (1976) is constitutional as applied to dealership quantities of contraband drugs, as distinguished from small quantities of such drugs which may be possessed merely for personal use.

6. Absent a clarifying instruction, a jury instruction which merely tracked the language of HRS § 701-117 (1976) served to shift the burden of proof to the defendant; hence, the resulting conviction does not comport with due process of law.

Edmund K. U. Yee, Deputy Public Defender, Honolulu (Donna M. Woo, Deputy Public Defender, Honolulu, on the brief), for defendant-appellant.

Faye M. Koyanagi, Deputy Pros. Atty. (Cora K. Lum, Deputy Pros. Atty., on the brief), for plaintiff-appellee.

Before RICHARDSON, C. J., OGATA and MENOR, JJ., and MARUMOTO and KOBAYASHI Retired JJ., assigned by reason of vacancies.

OGATA, Justice.

Defendant-appellant David Brighter (hereinafter appellant) was convicted by a jury of the offense of promoting a detrimental drug in the second degree. He now alleges error in the giving of a jury instruction relating to the statutory inference set out in HRS § 712-1251 (1976). ¹ Appellant contends that the inference permitted by that statute constitutes a violation of due process.

We uphold the constitutional validity of HRS § 712-1251 (1976) as we have restrictively construed it. However, we reverse appellant's conviction due to inadequacy of jury instructions given with respect to the statutory inference.

I

The facts are relatively uncomplicated. On the evening of January 8, 1976, appellant and a companion, Steven Manning, were arrested when marijuana was discovered in the back seat of the automobile in which they had been traveling. Appellant was the driver of the automobile, which was stopped by Honolulu Police Officer Kevin Shannon for a traffic violation.

Officer Shannon testified that as he stood on the passenger side of the vehicle while writing out a traffic citation, he noticed an open shopping bag containing what appeared to be marijuana on the right rear seat of the vehicle. After issuing the citation to appellant, Officer Shannon ordered appellant and Manning out of the vehicle. The shopping bag was then retrieved from the rear seat. It was found to contain seven clear, plastic "Ziploc" bags, each containing marijuana. The aggregate weight of the marijuana was 468.9 grams, or slightly over one pound.

The evidence offered by appellant indicated that he had borrowed the automobile that evening from a friend in Kailua in order to go shopping. ² Appellant and Manning then drove to Ala Moana Shopping Center, where they shopped separately for a period of time. ³ After completing their shopping, appellant and Manning met at a prearranged location and returned to the automobile. Upon returning to the automobile, it was discovered that one of the tires had gone flat. Appellant testified that he removed the flat tire and took it to have it repaired at a service station. He stated that by the time he returned with the repaired tire, Manning had arranged all of their packages in the rear seat of the automobile. Appellant replaced the tire and he and Manning proceeded to drive home. Shortly after leaving Ala Moana Shopping Center, they were stopped by Officer Shannon. Appellant has disclaimed any knowledge of the presence of the marijuana in the automobile.

At trial, the prosecution relied entirely upon HRS § 712-1251 (1976) to establish the element of appellant's "knowing possession" of the marijuana. ⁴ The jury found appellant guilty as charged, ⁵ and he was consequently placed on probation for a period of one year, with the special condition that he spend 13 weekends in Halawa Correctional Facility.

II

Appellant objects solely to the giving of State's Requested Instruction No. 2, ⁶ which was grounded upon HRS § 712-1251(1) (1976). In essence, appellant argues that the provisions of HRS § 712-1251(1) (1976) impermissibly shift the burden of proof to the defense, thus depriving him in this instance of his due process right to be convicted only upon proof by the prosecution of guilt beyond a reasonable doubt.

Cognizant of those circumstances under which proof of an element of a crime cannot be shown by direct evidence, legislatures often provide for the inference of such elements of a crime based upon the existence of other proven facts. HRS § 712-1251 (1976) provides such an inference. However, as this Court has stated, "(t)he requirements of due process impose limitations on the power of the legislature to authorize inferences of fact to be drawn." State v. Dwyer, 57 Haw. 526, 529, 560 P.2d 110, 112 (1977).

In enacting HRS § 712-1251 (1976), our legislature was concerned with the practical impossibility of proving by direct evidence the knowing possession of drugs when such drugs, although discovered in a motor vehicle, are not actually upon the person of any of the occupants. Commentary on HRS § 712-1251 (1976). Under HRS § 712-1251(1) (1976), the presence of any drug in a motor vehicle is prima facie evidence of knowing possession of the drug by each and every person in the vehicle at the time the drug was found.

The phrase "prima facie evidence", defined in HRS § 701-117 (1976), constitutes a permissive inference, thus permitting but not compelling the inference of guilt. Dwyer, supra, 57 Haw. at 529, 560 P.2d at 112. ⁷ In Dwyer, supra, this Court stated that a statute may authorize an inference "only if there is a natural and rational evidentiary relation between the facts proven and the ultimate fact which the statute authorizes to be found." 57 Haw. at 529, 560 P.2d at 112.

Appellant urges, however, that an inference may be sustained only where the fact inferred follows Beyond a reasonable doubt from the fact proven. Absent such a relationship between the fact inferred and the fact proven, it cannot, appellant asserts, be said that a defendant has been convicted upon proof beyond a reasonable doubt of all the elements of the offense. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); State v. Bannister, 60 Haw. ---, 594 P.2d 133 (1979); State v. Napeahi, 57 Haw. 365, 556 P.2d 569 (1976); State v. Cuevas, 53 Haw. 110, 488 P.2d 322 (1971).

Although courts have acknowledged the ability of legislatures to provide that a jury may infer from one fact another fact essential to a finding of guilt, See Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), much debate has centered around the strength of the relationship which must exist between the fact proven and the fact inferred. In Tot v. United States, supra, the Supreme Court declared that a "rational connection" must exist between the fact proven and the fact inferred in order to satisfy the requirements of due process. ⁸ This "rational connection" test was followed in United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965), and in United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965).

Later, in Leary v. United States, 395 U.S. 6, 36, 89 S.Ct. 1532, 1548, 23 L.Ed.2d 57 (1969), the Supreme Court determined that a criminal statutory inference is unconstitutional "unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend." However, because the Court in Leary found the statute in question to be unconstitutional under the "more likely than not" standard, it went on to state that "we need not reach the question whether a criminal presumption (inference) which passes muster when so judged must also satisfy the criminal 'reasonable doubt' standard if proof of the crime charged or an essential element thereof depends upon its use." 395 U.S. at 36 n. 64, 89 S.Ct. at 1548 n. 64.

In Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970), the Court utilized both the "more likely than not" and the "reasonable doubt" standards to assess the validity of four statutory inferences relating to possession of heroin and cocaine. In deciding that the inferences relating to heroin were valid under either standard, the Court clearly refrained from expressing a preference for the use of one test over the other.

Finally, in Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973), the Court again reserved judgment as to the determinative standard by which the validity of statutory inferences are to be assessed. After acknowledging that Gainey, Romano, Leary, and Turner fail to resolve the issue, the Court in Barnes merely concluded that "if a statutory...