State v. Neary, 77-454-C
| Decision Date | 24 December 1979 |
| Docket Number | No. 77-454-C,77-454-C |
| Parties | STATE v. George F. NEARY et al. A. |
| Court | Rhode Island Supreme Court |
Defendants George F. Neary (Neary) and Roland F. Martell, Jr. (Martell) were indicted on September 2, 1976, by the grand jury on charges of robbery in violation of G.L. 1956 (1969 Reenactment) § 11-39-1, carrying a pistol without a license in violation of § 11-47-8, P.L. 1975, ch. 278, § 1, assault with intent to murder in violation of § 11-5-1, assault with a dangerous weapon in violation of § 11-5-2, and assault with a dangerous weapon in a dwelling house in violation of § 11-5-4. Prior to trial, a justice of the Superior Court granted defendant Martell's motion to sever a companion charge of possession of a firearm after a previous conviction of a crime of violence, in violation of § 11-47-5.
Trial was held in Providence County Superior Court before a jury which returned verdicts of guilty as charged on February 8, 1977, with respect to the three counts of carrying a weapon without a license, assault with intent to murder, and assault with a dangerous weapon, after the trial justice had granted defendants' motions for acquittal on the charges of robbery and assault with a dangerous weapon in a dwelling house. The defendants subsequently filed motions for new trial, which motions the trial justice denied, and judgments of conviction were entered. Both defendants join in appealing from these judgments.
The events which culminated in the grand jury's indictment and defendants' subsequent convictions began during the early morning hours of July 6, 1976, when Thomas Edward Dauphinee (Thomas) heard a knock on the door of the apartment he shared with his father, Bernard, and went to answer it. Defendant Martell grabbed him and pulled out a gun. After Thomas knocked the weapon from defendant's grasp, a number of encounters and struggles ensued, both inside and outside of the apartment, involving Thomas, Bernard, both defendants, and two other individuals. In the course of these confrontations, Thomas was hit over the head with a beer bottle, and Bernard was severely beaten with a baseball bat, suffering injuries which necessitated a hospital stay of several months' duration. The defendants' grievance with the Dauphinee family seems to have stemmed from the fact that Thomas and another person who participated in the incident had earlier borrowed Martell's car and allegedly damaged it.
Soon after the assaults, while in the hospital, Thomas viewed an array of thirteen photographs, two of which, having just been taken that morning, depicted defendants Neary and Martell with the date July 6, 1976, conspicuously positioned upon them. A detective had chosen the remaining photographs at random, making no attempt in his process of selection to approximate the likenesses of the men only just then arrested for the crimes. At the voir dire hearing conducted to determine the admissibility of Thomas' in-court identification of defendants, the trial justice ruled that the photographic display viewed by the victim had been an impermissibly suggestive one, but that the in-court identifications, nevertheless, had been predicated upon independent sources; 1 and the photographic identification was not such as to have led to the likelihood of irreparable mistaken identification. 2
During the suppression hearing it was mentioned by defense counsel that Thomas had also examined approximately six to eight "mug books" directly after the assaults and somewhat earlier in time than the photographic array produced by the detective. 3 After regarding the "mug books" for thirty or forty minutes, the victim failed to make any positive identification; but the police officer who had conducted the mug-book display testified that he did not know whether or not the pictures of either or both defendants had been among those contained in the "mug books" shown to Thomas. Defendant Martell moved for production of the "mug books," but the trial justice refused to order such production, noting that defendants were free to subpoena the books for trial should they desire to view and introduce them. In addition, the trial justice denied Martell's request that he defer ruling on the admissibility of Thomas' in-court identification of his assailants until he could subpoena the books. Evidently, Martell's counsel theorized that such books, if defendants' photographs were included in them, would constitute exculpatory evidence which might then impugn the reliability of the allegedly independently based identifications by Thomas.
Initially, defendants attack the evidentiary statute, G.L. 1956 (1969 Reenactment) § 11-47-27, on the ground that their convictions of possession of a firearm without a license in violation of § 11-47-8 4 through reliance on the evidentiary provision of § 11-47-27 5 to prove the absence of the licenses violated their right to due process of the law. In short, defendants claim that § 11-47-27, by itself, may not satisfy constitutionally the state's burden of proof that they had no licenses, since such absence, by definition, constitutes an element of the offense, and the state failed to adduce any evidence bearing upon the possession or lack of firearm licenses on behalf of either or both of the defendants.
Section 11-47-27 creates a statutory mandate that the carrying or use of any firearm contrary to the provisions of §§ 11-47-1 to 11-47-34 shall be evidence of the unlawfulness of such carrying or use, thus easing the burden cast upon the state and, further, eliminating any requirement that the prosecution advance affirmative evidence to support a negative averment in this instance, the lack of a license. In the event that there is evidence sufficient to warrant a finding of possession, it then becomes incumbent upon the defendant to raise the issue of the fact of his possession of a license.
The defendants have overlooked the manifest distinction between the evidentiary concepts of the burden of production and the ultimate burden of proof. While the accused never bears the burden of satisfying the factfinder of his innocence or justification, and the prosecution always bears the burden of proving the guilt of an accused beyond a reasonable doubt in a criminal prosecution (State v. Brown, 97 R.I. 95, 196 A.2d 138 (1963); State v. Stallman, 78 R.I. 90, 79 A.2d 611 (1951)), the burden of going forward with the evidence may indeed shift from side to side, and this same burden may properly devolve upon a defendant once the state has developed a prima facie case and has adduced evidence sufficient to make it just that the defendant be required to challenge the proof with excuse or explanation. See Patterson v. New York, 432 U.S. 197, 203 n. 9, 97 S.Ct. 2319, 2323 n. 9, 53 L.Ed.2d 281, 287 n. 9 (1977), Citing Morrison v. California, 291 U.S. 82, 54 S.Ct. 281, 78 L.Ed. 664 (1934).
Under our statute prohibiting the carrying of a pistol without a license, the latter phrase is a descriptive negative which constitutes an essential element of the offense. The statutory inference formulated in § 11-47-27, which places the burden upon a defendant to introduce evidence of circumstances that would render his possession lawful, does no more than require the defendant to raise the issue of justification by evidence peculiarly within his own control and based upon knowledge immediately within his personal reach. Such legislation which provides that proof of one fact shall be evidence of an ultimate fact in issue is merely the enactment of a rule of evidence and in no way violates one's right to due process of law. Mobile, Jackson & Kansas City Railroad v. Turnipseed, 219 U.S. 35, 31 S.Ct. 136, 55 L.Ed. 78 (1910). 6 In order for such a legislative presumption to survive a constitutional attack, there must exist a rational relation " 'between the facts proved and the ultimate fact presumed.' " United States v. Gainey, 380 U.S. 63, 66, 85 S.Ct. 754, 757, 13 L.Ed.2d 658, 662 (1965), Quoting Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519, 1523 (1943). We recognized that standard in State v. Tutalo, 99 R.I. 14, 205 A.2d 137 (1964), and cautioned that "the fact inferred from the fact actually proved cannot be purely arbitrary or wholly unreasonable * * *." Id. at 19, 205 A.2d at 140.
To rebut the statutory presumption of the unlawful carrying of a weapon, defendants were free to introduce evidence of the existence of their licenses to carry the weapons in question by producing such licenses or records of a proper licensing authority or other admissible testimony or documentation. At trial, the state adduced evidence sufficient to show that both defendants had been in possession of a pistol at some point during the morning's episode here at issue. From the fact of their mere possession of the weapon, the legislative rule of evidence authorized the drawing of the inference that they did in fact lack appropriate permits or licenses.
We reiterate that it is not beyond the bounds of either our own or the Federal Constitution to infer that one apprehended by police with a pistol upon his person or in his automobile has no license if he fails to produce one or even to claim at trial that such license exists. Since a presumption is an inference sanctioned by statute or judicially created rule, if the inference is a rational one, then so too is the presumption. In the light of our everyday experience and common sense, as well as the application of reasonable principles of logical analysis, we cannot say that the presumption of the want of a license from the...
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