State v. Odom

• Citation: 520 P.2d 152,83 Wn.2d 541
• Decision Date: 21 March 1974
• Docket Number: No. 42755,42755
• Parties: The STATE of Washington, Petitioner, v. Giles S. ODOM, Respondent.
• Court: United States State Supreme Court of Washington

Page 541

83 Wn.2d 541

520 P.2d 152

The STATE of Washington, Petitioner, v. Giles S. ODOM, Respondent.

No. 42755.

Supreme Court of Washington, En Banc.

March 21, 1974.

Joseph D. Mladinov, Sp. Counsel to Pros. Atty., for Pierce County, Tacoma (Ronald L. Hendry, Pros. Atty., Tacoma, with him on the brief), for the State.

Betzendorfer & Deutscher, Joseph Q. Betzendorfer, Jr., Sterbick, Manza, Moceri, Gustafson & Narigi, Richard I. Gustafson, Tacoma, for respondent.

UTTER, Associate Justice.

The state appeals from a judgment of the Court of Appeals reversing the defendant's conviction on one count of first-degree assault. That opinion in 8 Wash.App. 180, 504 P.2d 1186 (1973), affirmed the defendant's conviction on three other counts of first-degree assault. We affirm the judgment of the Court of Appeals and adopt their reasoning on the issue whether there was sufficient evidence that three of the four counts of assault were committed 'with intent to kill' the alleged victims.

The remaining issue, which requires further discussion, deals with the constitutional validity of the statutory presumption that when a defendant is charged with a crime of violence and is armed with an unlicensed pistol, it is prima facie evidence of his intent to commit such a crime of violence.

The necessary facts from which the jury could have determined the guilt of the defendant, as set forth in the Court of Appeals opinion, are:

(O)n November 24, 1970, the defendant went to the Tacoma offices of the Department of Employment Security to make his weekly report in support of his application for unemployment compensation benefits. While there, he objected to filling out a particular form and to reporting to the adjudication section. After having been told by the supervisor of benefits to complete the form and return with it the next week, and after having expressed his dissatisfaction with that procedure in an angry fashion, he left the office only to return within a half hour. Upon his return, he approached the supervisor's desk, declared that he was tired of being pushed around, and announced an intention to settle this matter once and for all. At that time he was carrying a holstered .44 caliber magnum pistol in his left hand. He grasped the pistol in his right hand, pointed it at the supervisor and fired twice. On one occasion the projectile pierced through the supervisor's left lower chest, exiting to the right of the lumbar area of the spine. As a result of this gunshot wound, the supervisor suffered permanent paralysis of both lower extremities together with other permanent and incapacitating internal injuries.

After firing the pistol, he reloaded it, left the office by a rear exit and returned to his automobile in a nearby alley. In the meantime, police had been summoned. Two patrolmen approached in a 'paddy wagon' and noticed the defendant sitting in his vehicle. The patrolman driver emerged from the police vehicle and the defendant fired at him. The patrolman returned the fire, and the defendant then fired at and into the windshield of the 'paddy wagon' while the other patrolman was still sitting in the front seat. After a brief exchange of gunfire during which no one appears to have been hit by a projectile, the defendant ran down the alley and into another street, reloading his pistol as he ran.

At this point, a police lieutenant, driving a police prowl car, approached the defendant. The defendant pointed his pistol toward the windshield of the prowl car, but apparently did not fire the weapon. When the prowl car was approximately 25 feet from the defendant, the police lieutenant saw the gun pointed in his direction, and he believed Odom 'was trying to kill me.' He accelerated the vehicle and ran into the defendant, knocking him over and leaving him momentarily in a dazed condition. The lieutenant jumped out of the police car, approached the defendant from behind, and took the pistol from him. At that time the pistol was in a cocked position and was still loaded with two live rounds of ammunition. Before the gun was taken from the defendant, he said, 'I've had enough,' and after having been relieved of the gun, he addressed the lieutenant, 'You son of a bitch, I wish I had shot you.'

Mr. Odom purchased the gun in 1969. He applied for a permit to carry the weapon while he was working alone late at night in a drive-in restaurant. His application was denied.

The defendant was arrested and subsequently was charged with having committed four counts of first degree assault--each count alleging a separate victim which he had assaulted 'with intent to kill.' The victims were--the supervisor of benefits, the two patrolmen who had been in the 'paddy wagon', and the lieutenant who had been in the prowl car.

The defendant assigned error to the giving of instruction No. 25, which reads:

You are instructed that under the laws of the State of Washington no person shall carry a pistol concealed on or about his person, except in his place of abode or place of business, without a license therefor.

You are further instructed that in the trial of a person who has been charged with a crime of violence, the fact that the defendant was armed with a pistol and had no license to carry the same shall be prima facie evidence of his intention to commit such crime of violence.

'Prima facie evidence' means evidence which may be accepted for proof of a particular fact. Such evidence even if not refuted by the defendant, should be given just such weight as it seems to you to merit.

He contends that the statute upon which this instruction is based deprives him of his presumption of innocence and allows the jury to convict him on proof of guilt less than beyond a reasonable doubt. RCW 9.41.030 provides: 'In the trial of a person for committing or attempting to commit a crime of violence, the fact that he was armed with a pistol and had no license to carry the same shall be prima facie evidence of his intention to commit said crime of violence.'

It is further urged that even if the statutory presumption is valid, the instruction improperly extends the use the jury may make of it.

The constitutionality of the statute in question has been affirmed in State v. Person, 56 Wash.2d 283, 352 P.2d 189 (1960), and in State v. Thomas, 58 Wash.2d 746, 364 P.2d 930 (1961) as applied to first-degree assault. Statutory criminal presumptions in Washington have established a prima facie case for the prosecution by allowing, but not requiring, the jury to infer the presumed fact from proof of the operative facts. State v. Person, Supra, 56 Wash.2d at 288, 352 P.2d at 193. There we stated, 'the statutory presumption permits, but in no way directs, the jury to convict the accused, and must be considered by the jury in the light of the presumption of innocence which arises upon a plea of not guilty and accompanies the accused throughout the trial until overcome by evidence which convinces the jury of the accused's guilt beyond a reasonable doubt.'

As for the statute in this case, we held in State v. Thomas, Supra, 58 Wash.2d at page 748, 364 P.2d at page 932, that

the statute does not make the possession of a pistol without a license evidence of the commission of crime, but evidence of intent. This inference of intent is, of course, rebuttable; but, more important, it is not conclusive even if no attempt is made to rebut it. It is sufficient evidence to take the case to the jury on the issue of intent, but the jury is not obligated to attach any weight to it. It considers it for what it may be worth.

The evidentiary effect of this presumption is that once the operative facts are proved and that presumption attaches, the case must go to the jury and there can be no directed verdict of acquittal.

Subsequent to our decisions in Person and Thomas, the United States Supreme Court expanded its development of the 'rational connection' test. The previous test, stated in Thomas, 58 Wash.2d at page 747, 364 P.2d at page 931, was that 'the fact proved must bear a rational connection to the ultimate fact presumed.' We there required that our experience demonstrate that the fact presumed is usually and probably coexistent with the fact from which the presumption flows.

Substantial changes in the law have occurred since these opinions, which force a reexamination of our position taken in them and the other cases based upon them.

Two theories, closely related, apply to the administration of the criminal laws of this state. The defendant is presumed innocent until proven guilty and his guilt must be proved by competent evidence beyond a reasonable doubt. RCW 10.58.020; In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The presumption of innocence stresses that the jury is to consider in the material for their belief 'nothing but the evidence, i.e., no surmises based on the present situation of the accused.' 9 J. Wigmore, Evidence, § 2511 at 407 (3d ed. 1940). The requirement of proof beyond a reasonable doubt has not only common law and statutory origins but also has been recently given constitutional stature in Winship, where the court stated, at page 364 of 397 U.S., at page 1073 of 90 S.Ct.: 'we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.' The court described the reasonable doubt standard as a 'prime instrument for reducing the risk of convictions resting on factual error.' Its role in criminal prosecution was recognized as vital to an accused because 'he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction.' The fact that in litigation there is always a margin of error was conceded by the court, and in recognition of this they held the reasonable doubt standard indispensible because it "impresses on the trier of fact the necessity of...