State v. Savage

• Decision Date: 16 October 1980
• Docket Number: No. 46227,46227
• Citation: 618 P.2d 82,94 Wn.2d 569
• Parties: The STATE of Washington, Respondent, v. Dorothy LaVonne SAVAGE, Petitioner.
• Court: Washington Supreme Court

Page 569

94 Wn.2d 569

618 P.2d 82

The STATE of Washington, Respondent, v. Dorothy LaVonne SAVAGE, Petitioner.

No. 46227.

Supreme Court of Washington, En Banc.

Oct. 16, 1980.

Felker & Lazares, Danny E. Lazares, Tacoma, for petitioner.

Don Herron, Pierce County Pros. Atty., Joseph Mladinov, Sr., Deputy Pros. Atty., Tacoma, for respondent.

UTTER, Chief Justice.

In this case we determine whether the jury instructions stating that intent to kill could be presumed from the defendant's use of a dangerous weapon, conformed to the due process standards for use of presumptions in criminal cases. We hold that the instructions did not comply with due process because they did not adequately explain the nature and operation of the presumption and did not specifically inform the jury that it was free to reject the presumption even if the defendant failed to present evidence rebutting the presumed fact.

On March 7, 1977, petitioner Dorothy LaVonne Savage shot and killed her husband, Daniel Savage. There were no witnesses to the fatal shooting. Petitioner was charged with first-degree murder.

At trial, the prosecution's theory of the case was that Dorothy Savage committed the fatal shooting with premeditated intent to kill. In support of this theory, the prosecution presented a pathologist who testified that the nature of the wound indicated that Daniel Savage was shot in the head at close range while in a prone position. The prosecution also presented the testimony of a police officer who overheard Dorothy Savage saying to her daughter that the deceased "deserved what he got."

The defendant's evidence focused exclusively on facts supporting a theory of self-defense. Dorothy Savage testified that on the night of the killing, her husband was intoxicated, began to beat her, and produced a gun. She stated that she grabbed the gun, pulled the trigger and fired the fatal shot. She explained that she shot her husband because she thought that he was going to kill her. However, the defense did not present any evidence on the specific question of whether Mrs. Savage intended or did not intend to kill her husband when she fired in self-defense, and that fact also was not established in cross-examination.

The trial court instructed the jury on both first-degree and second-degree murder. The second-degree murder instructions stated that the jury should find Dorothy Savage guilty of second-degree murder if it concluded that "the killing not being justifiable or excusable, was done with intent to cause the death of Daniel Savage, but without premeditation." In additional instructions on the element of intent, the trial court stated:

If and when the evidence shows that one person assailed another violently with a dangerous weapon likely to kill and which in fact did kill the person attacked, such evidence gives rise to a presumption that the assailant intended death or great bodily harm.

The presumption, however, may be overcome by contrary evidence, and any such evidence is sufficient to overcome it which creates in the mind of the jurors a reasonable doubt that the defendant's intent was so presumed. In the absence of evidence to the contrary, the presumption must prevail.

Instruction No. 17. Defense counsel objected to the instruction on the ground that it failed to properly state the rules governing use of presumptions.

The trial court also instructed the jury on self-defense. These instructions stated:

When a defendant claims that she killed another in self defense of her own person, the burden is upon the defendant to produce some evidence that the homicide was done in self defense. It is not necessary for the defendant to prove this to you beyond a reasonable doubt, nor by a preponderance of the evidence.

Instruction No. 21. The jury found Dorothy Savage guilty of second-degree murder. Savage appealed the conviction on the basis of several claims, including the contentions that the instructions on presumption of intent from use of a dangerous weapon and the instructions on self-defense did not comply with due process requirements. The Court of Appeals, 22 Wash.App. 659, 591 P.2d 851, affirmed the conviction. Savage then sought, and we granted, review of those parts of the Court of Appeals' decision resolving the claims concerning the presumption and self-defense instructions.

I

A presumption is an evidentiary device which enables the "trier of fact to determine the existence of an element of the crime-that is, an 'ultimate' or 'elemental' fact-from the existence of one or more 'evidentiary' or 'basic' facts." County Court of Ulster County v. Allen, 442 U.S. 140, 155-156, 99 S.Ct. 2213, 2223-2224, 60 L.Ed.2d 777, 791 (1979). The use of a presumption in a particular criminal case must conform to several requirements which have been established to ensure that the burden always remains upon the prosecution to prove every element of the crime charged beyond a reasonable doubt. Ulster County, 442 U.S. at 155-157, 99 S.Ct. at 2223-2225, 60 L.Ed.2d at 791-92; State v. Roberts, 88 Wash.2d 337, 340, 562 P.2d 1259 (1977).

The United States Supreme Court has described several types of presumptions which vary with the strength of the requisite connection between the basic and elemental facts, and the degree to which the device restricts the factfinder's freedom to assess the evidence independently. The most restrictive type of presumption is the "conclusive" or "irrebuttable" presumption which declares that "when fact B is proven, fact A must be taken as true, and the adversary is not allowed to dispute this at all." C. McCormick, Handbook on the Law of Evidence 804 (2d ed. 1972). Due process prohibits the use of a conclusive or irrebuttable presumption to find an element of a criminal offense, because such use of a conclusive presumption "would 'conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime,' and would 'invade (the) factfinding function' which in a criminal case the law assigns solely to the jury." Sandstrom v. Montana, 442 U.S. 510, 523, 99 S.Ct. 2450, 2459, 61 L.Ed.2d 39, 50 (1979); Morissette v. United States, 342 U.S. 246, 274-75, 72 S.Ct. 240, 255, 96 L.Ed. 288 (1952).

On a spectrum of presumptions ordered by the degree to which they restrict the factfinder from assessing facts independently, the next most restrictive form is the "mandatory presumption." A mandatory presumption tells the trier of fact that it must find the elemental fact upon proof of the basic fact at least unless the defendant has come forward with a certain quantum of evidence to rebut the presumed connection between the two facts. Ulster County, 442 U.S. at 156-157, 99 S.Ct. at 2224, 60 L.Ed.2d at 792. A mandatory presumption can take any one of three different forms, depending on the degree of burden which it imposes upon the defendant in attempting to rebut the presumption. The first type, which has been employed in some prior cases, informs the trier of fact that, upon finding the basic fact, it must follow the presumption unless the defendant rebuts it with some quantum of evidence that is greater than "some evidence." Sandstrom v. Montana, supra, 442 U.S. at 517-518, 99 S.Ct. at 2456, 61 L.Ed.2d at 47. Such presumptions are constitutionally deficient because they shift the "burden of persuasion" to the defendant on an element of the offense. The second type of mandatory presumption is a mandatory presumption which assigns a "strong" "burden of production" to the defendant. This form of presumption tells the "trier that he or they 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." (Italics ours.) Ulster County, 442 U.S. at 156-157, 99 S.Ct. at 2224-2225, 60 L.Ed.2d at 792. Finally, the least restrictive type of "mandatory presumption" is the mandatory presumption which assigns a "weak" burden of production to the defendant. This type of presumption informs the trier that it must find the elemental fact upon proof of the basic fact, unless the defendant has come forward with "any evidence." Ulster County, 442 U.S. at 157-158 n.16, 99 S.Ct. at 2225 n.16, 60 L.Ed.2d at 792, n.16.

The least restrictive form of presumption is the "permissive presumption," often referred to as a "permissive inference." This type of presumption "allows-but does not require-the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and ... places no burden of any kind on the defendant." Ulster County, 442 U.S. at 157, 99 S.Ct. at 2224, 60 L.Ed.2d at 792. "(T)his permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof ..." Ulster County, 442 U.S. at 157, 99 S.Ct. at 2224, 60 L.Ed.2d at 792.

Thus, the United States Supreme Court has described a spectrum of presumptions which range from conclusive and mandatory presumptions to permissive presumptions. As the court has explained, it is of course the function of the state courts to authoritatively define the "legal weight to be given a presumption under (state) law," within the limits of federal and state constitutional standards. Sandstrom v. Montana, supra, 442 U.S. at 515-517, 99 S.Ct. at 2455, 61 L.Ed.2d at 46.

The nature of presumptions under Washington law is well established. In prior decisions, we have held that it is permissible to employ a presumption which shifts to the defendant the burden of producing "some evidence." State v. Bishop, 90 Wash.2d 185, 188-89, 580 P.2d 259 (1978); State v. Roberts, 88 Wash.2d 337, 341, 562 P.2d 1259 (1977). We have simultaneously held on the basis of the due process protections of the federal and state constitutions, that the jury must in all cases be " 'instructed that the presumption is not binding upon the jury even though the fact to be...