State v. Delmarter

• Decision Date: 19 February 1993
• Docket Number: No. 13661-9-II,13661-9-II
• Citation: 845 P.2d 1340,68 Wn.App. 770
• Court: Washington Court of Appeals
• Parties: The STATE of Washington, Respondent, v. Steven G. DELMARTER, Appellant.

Page 770

68 Wn.App. 770

845 P.2d 1340

The STATE of Washington, Respondent, v. Steven G. DELMARTER, Appellant.

No. 13661-9-II.

Court of Appeals of Washington Division 2.

Feb. 19, 1993.

Thomas E. Doyle, Robert M. Quillian, Olympia (court-appointed), for appellant.

Gary P. Burleson, Pros. Atty., Shelton, for respondent.

MORGAN, Judge.

Steven G. Delmarter appeals his conviction for attempting to elude a pursuing police vehicle. We reverse and remand for new trial.

On July 9, 1989, at about 11:30 p.m., Officer Adams of the Shelton Police Department was parked in a marked police vehicle when Delmarter's car went past. Because the car appeared to be speeding, Adams pulled out and followed.

After a few blocks, Adams turned on his emergency lights and siren, but the car did not stop. Adams testified that the car cut the corner as it made a left turn, then proceeded for about two blocks at about 45-50 m.p.h. in a 25 mph zone. Delmarter testified that he drove the two blocks at about 40-45 m.p.h.

When the car came to an intersection controlled by a stop sign, it slowed but did not stop. It turned right, proceeded one more block, then turned right again and stopped in front of Delmarter's house.

Delmarter apparently tried to hide by putting his head down on the passenger side of the front seat. Within moments, however, he was arrested.

The distance from where Adams turned on his lights and siren to Delmarter's house was about three and one half blocks. Those blocks are in a quiet residential area. The streets were empty except for Delmarter and Adams.

Delmarter was charged with attempting to elude a pursuing police vehicle in violation of RCW 46.61.024. ¹ The case proceeded to jury trial, and without objection from Delmarter, the trial judge gave Instruction 9. That instruction stated:

A person who drives in excess of the maximum lawful speed at the point of operation may be inferred to have driven in a manner indicating a wanton or willful disregard for the lives or property of others.

This inference is not binding upon you, and it is for you to determine what weight, if any, such inference is to be given.

Delmarter was convicted and now appeals. On appeal, he contends for the first time that the trial court erred by giving Instruction 9.

I.

We take up two matters preliminarily. First, we define the terms to be used. Then, we focus the issue to be decided.

A.

Instruction 9 is what is known as a presumption or inference instruction. Tautologically, such an instruction describes a presumption or inference.

Every presumption and inference has three components. The first is the fact from which the presumption or inference arises. It can be called the foundational fact, the basic fact, the predicate fact, or the evidentiary fact. See Francis v. Franklin, 471 U.S. 307, 314, 105 S.Ct. 1965, 1971, 85 L.Ed.2d 344 (1985) (predicate fact); Ulster County Court v. Allen, 442 U.S. 140, 156, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777 (1979) (evidentiary fact, basic fact); State v. Jackson, 112 Wash.2d 867, 875, 774 P.2d 1211 (1989), quoting Ulster County Court. Here, we call it the foundational fact.

The second is the fact that is established as a result of applying the presumption or drawing the inference. That fact is usually but not always an element of the crime charged. See Proposed Federal Rule of Evidence 303(b), 56 F.R.D. 183, 212 (1972). Thus, it usually can be called the elemental fact. Ulster County Court v. Allen, 442 U.S. at 156, 99 S.Ct. at 2224 (elemental fact); State v. Jackson, 112 Wash.2d at 875, 774 P.2d 1211 (same). Alternatively, it can be called the presumed or ultimate fact. See Francis v. Franklin, 471 U.S. at 314, 105 S.Ct. at 1971 (presumed fact); Ulster County Court v. Allen, 442 U.S. at 156, 99 S.Ct. at 2224 (ultimate fact); State v. Jackson, 112 Wash.2d at 875, 774 P.2d 1211 (same). Here, it is an element of the crime, compare Instruction 9 with RCW 46.61.024, and therefore we call it the elemental fact.

The third is a "rational connection" or "rational relationship" between the first two. State v. Jackson, 112 Wash.2d at 875, 774 P.2d 1211; State v. Jeffries, 105 Wash.2d 398, 442, 717 P.2d 722, cert. denied, 479 U.S. 922, 107 S.Ct. 328, 93 L.Ed.2d 301 (1986). Unless such a connection or relationship exists, a presumption or inference may not be submitted to or used by the trier of fact. State v. Jeffries, 105 Wash.2d at 442, 717 P.2d 722.

According to the terminology that we will use, a presumption can be mandatory or permissive, but an inference is permissive. See M. Graham "Presumptions--More Than You Ever Wanted to Know and Yet Were Too Disinterested to Ask," 17 Crim.Law Bulletin 431 (1981). Thus, the terms "permissive presumption," "inference" and "permissive inference" are synonymous, and the term "permissive inference" is redundant. To approximately the same effect, see State v. Jackson, 112 Wash.2d at 874, 875, 774 P.2d 1211. A mandatory presumption instruction describes a mandatory presumption, while an inference instruction describes a permissive presumption, inference or permissive inference.

B.

Two basic questions arise when the propriety of a presumption or inference instruction is challenged. One is whether the instruction is authorized by statute or common law. The other is whether the instruction, despite being authorized by statute or common law, is prohibited by the federal or state constitution.

Delmarter does not brief or argue the first question, ² nor could he do so. Having failed to object at the trial level, he is limited in this court to arguments of constitutional magnitude. RAP 2.5(a).

Delmarter presents two arguments of constitutional magnitude. Relying on the Fourteenth Amendment to the United States Constitution and Article I, § 3 of the Washington Constitution, ³ he argues that Instruction 9 violated due process of law. Relying on Article IV, § 16 of the Washington Constitution, he argues that Instruction 9 was a comment on the evidence. Because due process is dispositive, we do not reach Article IV, § 16.

Due process includes at least three ideas pertinent to presumption and inference instructions. First, due process prohibits the trial judge in a criminal case from directing a verdict for the State on any element of the crime charged. Rose v. Clark, 478 U.S. 570, 578, 106 S.Ct. 3101, 3105, 92 L.Ed.2d 460 (1986); Sandstrom v. Montana, 442 U.S. 510, 516 n. 5, 99 S.Ct. 2450, 2455 n. 5, 61 L.Ed.2d 39 (1979); United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73, 97 S.Ct. 1349, 1355-56, 51 L.Ed.2d 642 (1977). A corollary is that the trial judge in a criminal case may not give a mandatory presumption instruction. Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985); Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Because such an instruction requires the jury to find an elemental fact simply because a foundational fact has been proven, it "is in reality just a polite form of a partial directed verdict." State v. Johnson, 100 Wash.2d 607, 617, 674 P.2d 145 (1983), overruled on other grounds, State v. Bergeron, 105 Wash.2d 1, 711 P.2d 1000 (1985).

Second, due process prohibits the trial judge from instructing in a way that authorizes the jury to convict without first finding that each element of the crime charged has been proved beyond a reasonable doubt. State v. Fowler, 114 Wash.2d 59, 69, 785 P.2d 808 (1990), disapproved on other grounds, State v. Blair, 117 Wash.2d 479, 487, 816 P.2d 718 (1991) (constitution requires that jury be instructed on each element of crime); State v. Scott, 110 Wash.2d 682, 690, 757 P.2d 492 (1988) (due process usually met when jury informed all elements of offense must be proved beyond reasonable doubt); State v. Johnson, 100 Wash.2d at 623, 674 P.2d 145 (due process requires that instructions define every element of crime); State v. McHenry, 88 Wash.2d 211, 214, 558 P.2d 188 (1977) (due process requires reasonable doubt instruction). A corollary is that a presumption or inference instruction may not shift the burden of proof on any element from the State to the defendant, Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) Francis v. Franklin, supra, for that is simply one way of authorizing the jury to convict without first finding that each element of the crime has been proved to exist. State v. Johnson, 100 Wash.2d 607, 617, 674 P.2d 145 (1983) (shifting burden of proof effectively removes element from jury's consideration). The purpose is to assure, to the extent possible, that the jury will not convict except after reaching "a subjective state of near certitude" regarding each element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2786, 61 L.Ed.2d 560 (1979).

Third, due process prohibits the judge from inviting the jury to find one or more elements of the crime irrationally or arbitrarily. Thus, due process bars the judge from submitting the case to the jury (and thereby inviting the jury to find each element of the crime) when the evidence is such that no rational trier could find each element of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. at 2789. Additionally, due process bars the judge from instructing on an inference (and thereby inviting the jury to find an element of the crime charged by drawing that inference) except when its foundational and elemental facts are "rationally connected." Ulster County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979); see Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943). The purpose is to assure not only that the jury will reach a "subjective state of near certitude" before convicting, but that it will reach that state in a way that is not demonstrably irrational or arbitrary. ⁴ Cf. Ulster County Court v. Allen, supra; Leary...