State v. Roberts

• Decision Date: 24 February 1977
• Docket Number: No. 44361,44361
• Parties: The STATE of Washington, Respondent, v. Steven W. ROBERTS, Appellant.
• Court: Washington Supreme Court

Page 337

88 Wn.2d 337

562 P.2d 1259

The STATE of Washington, Respondent, v. Steven W. ROBERTS, Appellant.

No. 44361.

Supreme Court of Washington, En Banc.

Feb. 24, 1977.

Francis J. Conklin, Sp. Public Defender, Richard L. Cease, Public Defender, Spokane, for appellant.

Donald C. Brockett, Pros. Atty., Spokane County, LeRoy C. Kinnie, Deputy Pros. Atty., Spokane, for respondent.

Associate Professor John A. Straight, University of Puget Sound School of Law, Tacoma, for amicus curiae.

UTTER, Associate Justice.

Defendant Roberts appeals from a judgment and sentence entered upon a jury verdict finding him guilty of second-degree murder. Appellant contends that the instruction given by the trial court concerning the presumption of second-degree murder is repugnant to the due process clause of the fourteenth amendment to the United States Constitution. We agree, reverse the conviction, and remand for new trial.

Near midnight on April 27, 1975, the appellant emerged from a tavern in the Hillyard district of Spokane. He discovered a woman lying in the street, approximately four feet in front of a parked car, and bleeding from the mouth and nose. Along with others at the scene, he went to the woman's assistance. While so engaged, appellant saw the victim of the homicide here in question seated in the driver's seat of the parked car and realized the engine of the vehicle was running. He then approached the driver's side of the car, presumably to inform the person inside of the presence of the woman. The testimony as to what next took place is conflicting and incomplete. The victim did not immediately respond to the defendant's efforts to gain his attention and was, at this time, extremely intoxicated (he was found after his death to have a blood alcohol level of .33). After an exchange of words the door of the car was opened, either by the appellant or the victim. A brief scuffle ensued, during which appellant pulled a gun. A bullet was discharged, striking the victim who died shortly thereafter.

Appellant testified on his own behalf to the effect that he approached the car to warn the driver of the presence of the woman; the driver appeared to ignore him, then called him profane names, opened the door and attempted to assault him. Appellant admitted having pulled the gun but claimed that he only attempted to strike the victim with it, at which time it accidentally discharged. The case was tried with an information charging first-degree murder and a jury verdict was reached finding the defendant guilty of murder in the second degree. Appellant assigns error to a number of the instructions given to the jury. The first is instruction No. 19, which states:

When the fact that a human being was killed by the accused is either admitted or proved beyond a reasonable doubt, and the killing is neither excusable or justifiable then there is a presumption of law that the killing is murder in the second degree.

This presumption, of course, is only as to the degree of crime of which the defendant is alleged to be guilty, and is not proof beyond a reasonable doubt that he is guilty of any crime.

An instruction substantially similar to this one was adopted as a rule of law in this state as early as Sate v. Payne, 10 Wash. 545, 39 P. 157 (1895), and has been, until very recently, consistently approved by this court. See State v. Mays, 65 Wash.2d 58, 395 P.2d 758 (1964), and cases therein cited. However, recent developments in the standards of due process applicable to criminal presumptions require that we reconsider the continuing validity of the instruction here challenged.

In our legal system, the burden is always upon the prosecution to establish every element of the crime charged by proof beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). As an outgrowth of this fundamental principle, an evidentiary presumption which is used by the prosecution to aid in establishing any of the elements of a crime must survive scrutiny under three separate tests, each of which is based upon protection of the defendant's right to due process of law.

First, while a presumption may still be employed for the purpose of shifting the initial burden of producing evidence with regard to an element of the crime charged, it may not operate so as to alter the ultimate burden of persuasion by proof beyond a reasonable doubt. This burden must, at all times, remain with the prosecution. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); State v. Kroll, 87 Wash.2d 829, 558 P.2d 173 (1976).

Second, the state must establish that a presumption which it seeks to employ for the limited purpose permissible under Mullaney meets the test established by this court in State v. Odom, 83 Wash.2d 541, 520 P.2d 152 (1974) and State v. Alcantara, 87 Wash.2d 393, 552 P.2d 1049 (1976). We there held a presumption may only be used to establish an element of a criminal offense when it is established that the fact presumed follows from the facts proven in support thereof beyond a reasonable doubt. See Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970); Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973).

Finally, the instruction presenting a presumption to the jury which is valid under the two previous tests must adequately explain the operation of the presumption in accordance with the standards set forth in State v. Person, 56 Wash.2d 283, 352 P.2d 189 (1960) and reaffirmed in State v. Odom, supra.

In Kroll we concluded an instruction which establishes a presumption of second-degree murder based upon proof of an inexcusable and unjustifiable killing and affirmatively places the burden of creating reasonable doubt as to the presumed element upon the defendant, violates the concept of due process enunciated in Mullaney v. Wilbur, supra. Instruction No. 19 allows the statutory intent element of second-degree murder (See RCW 9.48.040) to be presumed, upon proof of other facts. Mullaney, standing alone, does not render unconstitutional all such presumptions in the criminal law. It permits the use of an otherwise valid presumption, so long as the ultimate burden of persuasion as to the issue remains with the prosecution and the defendant is at most only required to produce some evidence, from whatever source, in opposition to it. (See Mullaney, 421 U.S. at 701, n.28, 702--03, n.31, 95 S.Ct. 1881.) A substantial majority of state courts have construed Mullaney in this fashion. See, e.g., State v. Inman, 350 A.2d 582 (Me.1976); State v. Gibbs, 239 N.W.2d 866 (Iowa 1976); Adams v. State, 236 Ga. 468, 224 S.E.2d 32 (1976); State v. Keys, 25 Or.App. 15, 548 P.2d 205 (1976).

The instruction here challenged differs from that considered in Kroll and Mullaney in that it is silent as to how the presumption, once created, may be overcome. ¹ The State has contended that, because this instruction does not on its face compel 'anyone to do anything', it cannot be said to result in an impermissible shift of the burden of persuasion in the face of other instructions requiring the State to establish proof beyond a reasonable doubt of every element of the crime charged. Mullaney holds that the ultimate burden must lie with the State. The challenged instruction represents as effort by the prosecution to gain the benefits of the presumption by announcing its existence and then allowing the jury to determine what to do with it. Faced with such an instruction the defendant is required to come forward and show, by some unstated standard of proof, facts refuting the presumption. Such a result is no longer permissible. See Perkins v. State, 528 S.W.2d 598 (Tex.Crim.App.1975). We read Mullaney as prohibiting the use in a criminal case of any presumption which is not expressly limited to placing a burden, in the proper circumstances, of producing evidence upon the defendant. This instruction is not so limited.

Under the third test above set forth, an instruction by the trial court which includes a presumption must, to be upheld, adequately explain its operation. As we said in Person,

the jury should be further instructed that the presumption is not binding upon the jury even though the fact to be presumed is unrefuted by the defendant, and that the state must still sustain the burden of proving the defendant's guilt beyond a reasonable doubt. In other words, it should be made clear that 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 State v. Person, supra, 56 Wash.2d at 288, 352 P.2d at 192. See also State v. Odom, supra, 83 Wash.2d at 545, 520 P.2d 152. The instruction here at issue is, on this basis alone, inadequate.

While the objections above set forth are in themselves sufficient to establish the impropriety of this particular instruction, we also conclude that the presumption of second-degree murder cannot, standing alone, be sustained under the Odom test. In the context of the presumption before us, the proven facts are: (a) a killing by the accused, (b) neither justified nor excused. The presumed element flowing therefrom is that the defendant intended to kill (I.e., the killing was accomplished 'with a design to effect the death' RCW 9.48.040(1)). ² This presumed element must be shown to follow from the facts proven beyond a reasonable doubt 'in light of present-day experience.' Barnes v. United States, 412 U.S. 837, 844--45, 93 S.Ct. 2357, 2362, 37 L.Ed.2d 380 (1973). In determining whether or not the presumption meets this test, the court may utilize common experience, as well as empirical data and evidence which establishes a factual basis for the presumption. State v. Alcantara, supra. The State has not submitted empirical evidence which supports this presumption. Common knowledge and...