State v. Dusablon

• Citation: 142 Vt. 95,453 A.2d 79
• Decision Date: 14 October 1982
• Docket Number: No. 431-80,431-80
• Parties: STATE of Vermont v. Michael S. DUSABLON.
• Court: United States State Supreme Court of Vermont

Page 79

453 A.2d 79

142 Vt. 95

STATE of Vermont v. Michael S. DUSABLON.

No. 431-80.

Supreme Court of Vermont.

Oct. 14, 1982.

Mark J. Keller, Chittenden County State's Atty., and Mark Brierre and Thomas Fitzpatrick, Law Clerks (on the brief), Burlington, for plaintiff-appellee.

Andrew B. Crane, Defender Gen., and William A. Nelson, Appellate Defender, Montpelier, for defendant-appellant.

Before BARNEY, C.J., and BILLINGS, HILL, UNDERWOOD and PECK, JJ.

UNDERWOOD, Justice.

This is an appeal from a guilty verdict for the offense of breaking and entering in the nighttime with the intent to commit larceny. 13 V.S.A. § 1201. The only contested issue at trial was whether the defendant intended to commit larceny. The defense was diminished mental capacity. Defendant argued that due to voluntary intoxication he lacked the specific intent to steal. On appeal, the defendant claims that the court's charge to the jury on the element of specific intent constituted reversible error.

The court instructed the jury that the offense charged required proof of specific intent as an essential element. As requested by the State, and over defense objections, the court then charged, in part, as follows:

The evidence of intent to commit larceny in this case is purely circumstantial and therefore the prosecution must by law exclude every reasonable hypothesis consistent with innocence. Therefore, unless the prosecution has excluded by cogent evidence every reasonable hypothesis of innocence of Mr. Dusablon, you must find him not guilty.

....

Now intent may ordinarily not be proved directly because there is no way of fathoming or scrutinizing the operation of the human mind. But you may infer the defendant's intent from the surrounding circumstances. As I indicated, you may consider any statement made or act committed by the defendant, and all other facts and circumstances in evidence which indicate his state of mind. It is ordinarily reasonable to infer that a person intends the reasonable and probable consequences of an act knowingly done or knowingly committed. (emphasis added).

Now, where the evidence of specific intent is entirely circumstantial as it is here, the law requires your strict scrutiny. The circumstances when proved must do more than create a mere suspicion of guilt, however strong. Mere suspicion, however strong, will not take the place of evidence of guilt of a crime.

....

Since there is evidence in the case of voluntary intoxication, it is for you the jury to determine the effect on the defendant's mental processes and whether his mental capacity was so diminished as to prevent him from forming the requisite specific intent.

The defendant contends that the italicized portion of the charge was prejudicial error because it shifted the burden of proof on an essential element of the crime from the State to him.

The due process clause of the Fourteenth Amendment requires that the state prove every element of a crime charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). It violates due process to shift the burden of proof on an essential element from the state to the defendant. Patterson v. New York, 432 U.S. 197, 215, 97 S.Ct. 2319, 2329, 53 L.Ed.2d 281 (1977); Mullaney v. Wilbur, 421 U.S. 684, 701, 95 S.Ct. 1881, 1890, 44 L.Ed.2d 508 (1975). From these fundamental principles the United States Supreme Court has held that the following jury instruction violates due process: "The law presumes that a person intends the ordinary consequences of his voluntary acts." Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). This charge, the Court wrote, might have been interpreted either as a conclusive presumption or a burden-shifting presumption, either of which would have deprived the defendant of his right to due process. Id. at 525, 99 S.Ct. at 2459.

The defendant argues that the charge in the instant case is objectionable for the same reasons as the charge in Sandstrom. We disagree.

The threshold inquiry in ascertaining whether the jury instruction given by the court constitutes reversible error is to determine the nature of the presumption it describes. Id. at 514, 99 S.Ct. at 2454. If it is mandatory, that is, conclusive or burden-shifting, it violates defendant's right to due process of law. Id. at 525, 99 S.Ct. at 2459; United States v. United States Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978); State v. Gokey, 136 Vt. 33, 36, 383 A.2d 601, 604 (1978). If, on the other hand, an instruction could only be interpreted as a permissive inference, one which allows but does not require the trier of fact to find the inferred fact from the basic fact and which places no burden of any kind on the defendant, it is not unconstitutional. Ulster County Court v. Allen, 442 U.S. 140, 156-57, 99 S.Ct. 2213, 2224-25, 60...