State v. Hanna

• Decision Date: 31 March 1994
• Docket Number: No. 60308-1,60308-1
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Craig Mitchell HANNA, Appellant.

Page 704

123 Wn.2d 704

871 P.2d 135

The STATE of Washington, Respondent, v. Craig Mitchell HANNA, Appellant.

No. 60308-1.

Supreme Court of Washington,

En Banc.

March 31, 1994.

Reconsideration Denied May 19, 1994.

Washington Appellate Defender Ass'n, Andrew P. Zinner, Seattle, for appellant.

Norm Maleng, King County Prosecutor and Peter Goldman, Deputy County Prosecutor, Seattle, for respondent.

DOLLIVER, Justice.

On August 22, 1989, the red Mustang driven by Craig Mitchell Hanna crossed the grass median into opposing traffic and collided with the Toyota occupied by Roy and Frances Fellows. Mr. Fellows was killed and Mrs. Fellows sustained serious injuries. Hanna was convicted of vehicular homicide and vehicular assault in violation of RCW 46.61.520 and RCW 46.61.522. On appeal, Hanna contends his due process rights were violated by the giving of instruction 9 which allowed the jury to infer Hanna drove in a reckless manner, a predicate act required for his convictions, from evidence that he exceeded the speed limit. Hanna also contends the trial court erred in denying his motions to dismiss for failure to preserve evidence and for case mismanagement.

The facts leading up to the accident were disputed at trial. The State presented testimony from four eyewitnesses who were traveling in the same direction as the defendant: Cheryl Buckel, Robert Parry, William Dechon, and Klaus Ruckedeschel. They testified that prior to the collision Hanna's Mustang and another vehicle, a blue car with Oregon plates, were traveling northbound on Route 599 in south Seattle at approximately 80-to-100 m.p.h. Three eyewitnesses testified Hanna was traveling at this speed while trailing the blue car by only one-to-three car lengths. Buckel and Ruckedeschel stated the two cars appeared to be "racing" or "chasing" each other.

Buckel, Parry, and Dechon observed the collision. They stated the two cars were speeding in the left lane when they approached a slower moving car. Just prior to passing the slower vehicle, the driver of the blue car tapped the brakes. Hanna's Mustang then came into contact with the blue car and swerved across the median into opposing traffic colliding with the Fellows' Toyota.

The State admitted numerous photos of the accident scene through police witnesses, Captain L. Forrester and Sergeant F. Walser, who described the collision scene and the relative positions of the vehicles. The State also introduced testimony from Detective Scott Beasley, an accident reconstruction expert. Beasley testified that Hanna applied the brakes just before the Mustang entered the median strip. The brakes immediately locked and the car rotated out of control and spun across the median. Beasley used the "conservation of momentum" theory, which measures trajectories and skid marks, to calculate the Mustang's pre-collision speed. Using this method, Beasley opined the car was traveling 103 m.p.h. before the brakes locked and 47-to-48 m.p.h. at the point of impact.

The defense contended Hanna was not speeding prior to the collision. One eyewitness, Steven Neel, a truck driver stopped along the road about 500 feet from the scene, testified the Mustang and the blue car were going "highway speeds" prior to the collision. The defense also presented testimony from its own accident reconstruction expert, Kenneth Tharp. Tharp testified the "crush" method, which measures the amount of damage or deformation sustained by each vehicle, is the only accurate way to estimate pre-collision speeds of vehicles in a head-on collision. Tharp stated his ability accurately to estimate Hanna's pre-collision speed under this method was impaired because the State Patrol failed to preserve the victim's vehicle. Without direct measurements, Tharp used photographs of the victims' vehicle to estimate Hanna's speed at 60-to-64 m.p.h.

The defense also presented evidence supporting an alternate theory of the proximate cause of the accident. Hanna testified he was traveling in the left lane at 75 m.p.h. when the blue car appeared and began to jog left and right in front of him. Hanna then slowed to 60 m.p.h. before the car cut him off and Hanna was forced to hit the brakes and spin onto the median and into opposing traffic.

After the accident, the State Patrol photographed the scene, measured Hanna's skid marks across the median and in the southbound lanes, and impounded Hanna's Mustang. The State Patrol, however, did not measure or photograph the skid marks in the northbound lane or retain the Fellows' Toyota believing neither would be relevant in investigating the collision.

On August 3, 1990, the State charged Hanna with vehicular homicide. The information was later amended to include vehicular assault. The trial date, originally scheduled for November 26, 1990, was extended five times. The extensions were necessary due to late discovery and accommodations necessary to meet the needs of the court, the prosecution, and the defense.

The trial commenced on January 29, 1991. Defense counsel moved for dismissal, alleging the State's failure to preserve the Fellows' vehicle deprived the defendant of evidence critical to his defense. The motion was denied and the trial was continued until February 1, 1991. On February 1, defense counsel moved in the alternative to dismiss or continue the case because the defendant objected to the State's announced rebuttal witness and because more time was needed to incorporate information provided by the State. The court granted the continuance to February 6, 1991. On February 5, 1991, the State moved for a further continuance because an eyewitness would be unavailable beginning February 7. The case was continued to March 11, 1991, to accommodate the schedules of witnesses and counsel.

Prior to the March 11 trial date, the defendant filed another motion to dismiss based on late discovery. The court denied the motion because the defendant had not been prejudiced. The trial resumed on March 11, 1991. At the close of the State's case, the defendant renewed his motion to dismiss for late discovery. The court denied the motion because the State had adequately answered the defendant's discovery requests.

In its charge to the jury, the court, without objection from Hanna, gave instruction 9 which permitted the jury to infer that Hanna drove in a reckless manner, an element of vehicular homicide and vehicular assault, from the fact that he drove in excess of the lawful speed. The jury returned a special verdict finding Hanna drove in a reckless manner and convicted him on both counts.

Hanna appealed to Division One of the Court of Appeals and moved to transfer the case to this court pursuant to RAP 4.3. On August 11, 1991, the Commissioner granted the motion to transfer.

I

On appeal, Hanna contends his due process rights were violated by the use of instruction 9, which provides:

A person who drives in excess of the maximum lawful speed at the point of operation may be inferred to have driven in a reckless manner.

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

See WPIC 95.03. Constitutional challenges may be raised for the first time on appeal. RAP 2.5(a). Hanna's due process challenge is limited to that under the fourteenth amendment to the United States Constitution. Therefore we address this challenge only under the federal due process clause.

Due process requires the State bear the "burden of persuasion beyond a reasonable doubt of every essential element of a crime." Francis v. Franklin, 471 U.S. 307, 313, 105 S.Ct. 1965, 1970, 85 L.Ed.2d 344 (1985); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). The State may, however, use evidentiary devices, such as inferences and presumptions, to assist in meeting its burden of proof. A mandatory presumption instructs the jury that it "must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts." County Court of Ulster Cy. v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 2225, 60 L.Ed.2d 777 (1979). The constitutionality of a mandatory presumption is evaluated in light of the jury charge read as a whole to ensure it does not shift the burden of persuasion on any element of the offense. Francis, 471 U.S. at 314, 325, 105 S.Ct. at 1971, 1977.

A permissive inference or presumption permits, but does not require, the jury to infer an element of the offense, an "elemental" or "presumed" fact, from an "evidentiary" or "proved" fact. See State v. Jackson, 112 Wash.2d 867, 875, 774 P.2d 1211 (1989) (citing Ulster, 442 U.S. at 157, 99 S.Ct. at 2224-25). Permissive inferences do not relieve the State of its burden of persuasion because the State must still convince the jury the suggested conclusion should be inferred from the basic facts proved. See Francis, 471 U.S. at 314, 105 S.Ct. at 1971.

When an inference is only part of the prosecution's proof supporting an element of the crime, due process requires the presumed fact to flow "more likely than not" from proof of the basic fact. Ulster, 442 U.S. at 165, 167, 99 S.Ct. at 2229, 2230. As explained by the Supreme Court:

[There is a] distinction between a permissive presumption on which the prosecution is entitled to rely as one not necessarily sufficient part of its proof and a mandatory presumption which the jury must accept even if it is the sole evidence of an element of the offense.

In the latter situation, since the prosecution bears the burden of establishing guilt, it may not rest its case entirely on a presumption unless the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt. But in the former situation, the prosecution may rely on all of the evidence in the record to meet the reasonable-doubt standard. There is no more reason to require a permissive statutory presumption...