Wilson v. Com., 812049

• Decision Date: 11 March 1983
• Docket Number: No. 812049,812049
• Citation: 301 S.E.2d 1,225 Va. 33
• Parties: Clifford M. WILSON, et al. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 1

301 S.E.2d 1

225 Va. 33

Clifford M. WILSON, et al. v. COMMONWEALTH of Virginia.

Record No. 812049.

Supreme Court of Virginia.

March 11, 1983.

Robert T. Wandrei, Bedford (Radford & Wandrei, Bedford, on brief), for appellants.

Robert Harris, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.

Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, THOMPSON, ^* STEPHENSON, and RUSSELL, JJ.

COCHRAN, Justice.

Clifford M. Wilson and Russell Wayne Burks were tried jointly by a jury and found guilty of attempting to kill deer at night by use of headlights in violation of Code § 29-144.2; punishment was fixed at payment by each of a fine of $500. The trial court entered judgment on the verdict. On appeal, as at trial, Wilson and Burks challenge the constitutionality of the statute and the admissibility of certain evidence.

Code § 29-144.2 provides in pertinent part:

§ 29-144.2. Killing deer or elk by use of certain lights; acts raising presumption of attempt to kill.--Any person who kills or attempts to kill any deer or elk between a half hour after sunset on any day and a half hour before sunrise the following day by use of a light attached to any vehicle or a spotlight or flashlight shall be guilty of a misdemeanor and shall be punished by a fine of not less than one hundred fifty dollars nor more than five hundred dollars or by confinement in jail for not less than thirty days nor more than ninety days, either or both. The flashing of a light attached to any vehicle or a spotlight or flashlight from any vehicle between a half hour after sunset on any day and a half hour before sunrise the following day by any person or persons, then in possession of a rifle, shotgun, pistol, crossbow, or bow and arrow or speargun, without good cause, shall raise a presumption of an attempt to kill deer or elk in violation of this section. Every person in or on any such vehicle shall be deemed a principal in the second degree and subject to the same punishment as a principal in the first degree. Every person who, in any manner, aids, abets or acts in concert with any person or persons in committing an act in violation of this section shall be deemed a principal in the second degree and subject to the same punishment as a principal in the first degree.

The evidence was stipulated. State Game Warden E.M. Ashworth testified that on March 31, 1981, at 8:20 p.m., he was traveling south on State Route 122 when he saw several deer in an open area on the side of the road. About one mile south of this area he passed an automobile proceeding north "at a very slow rate of speed." Turning back, Ashworth followed the vehicle until, from a distance of 1,000 feet, he observed it stop with its headlights pointed at a 45? angle into the area where the deer were standing. The lights revealed a deer running away about 20 yards from the car. Ashworth followed the vehicle as it again proceeded slowly along the road and from a distance of 350 feet he saw it make another stop at a 45? angle. In the beam of its headlights he observed a deer approximately 50 yards from the vehicle.

Ashworth stopped the car, a two-door Opel sedan. Mrs. Shelby Emerson was the driver, Wilson was in the front passenger seat, and Burks, Burks's wife, and two Emerson children occupied the rear seat. A .22 caliber rifle with one round in the chamber was lying between the front seats. Wilson became abusive when Ashworth asked him to get out of the car. Ashworth called the sheriff's department for assistance, a deputy sheriff came to the scene, and Ashworth arrested Wilson and Burks for violating Code § 29-144.2.

On cross-examination, Ashworth was asked whether his reason for following the vehicle was that five days earlier, when the car was being operated by Wilson and Burks, he had an altercation with them. Ashworth replied that he had charged the two men on that occasion with a violation of the game laws, but he acknowledged, in answer to an additional question, that the charges against them had been dismissed. He also conceded that on the evening of March 31 he did not see anyone in actual possession of the rifle and did not see Wilson or Burks aiding or abetting in the "spotlighting" ¹ of deer, but he stated that both were occupants of the automobile he stopped.

On re-direct examination, Ashworth, over the defendants' objection, related particulars of the earlier charges. The stipulation does not set forth these particulars but states that the trial court ruled the testimony admissible because defense counsel had opened up the subject by initiating the inquiry into the altercation.

After presenting the testimony of Ashworth, its only witness, the Commonwealth rested. The defendants moved to strike the Commonwealth's evidence on the ground that it failed to show that they aided or abetted but showed only that they were present in the automobile, and that the statute was unconstitutional in presuming guilt from their mere presence. The trial court overruled the motion.

Burks, testifying for the defense, said that he and Wilson had gone to Bedford with Shelby Emerson to get a truck. As the men began the trip home in their truck, Emerson followed them in the car. When one of the truck tires went flat about one and one-half miles south of the place where they were arrested, Emerson stopped and gave them a ride. At the point where they saw the deer, "one of the deer jumped across the road" and caused Emerson to veer to the side. Burks warned her to be careful because of the probability that other deer were in the vicinity. Burks said that he did not know there was a rifle in the car until he got in. He denied that he or any other occupant of the vehicle was "spotlighting" deer.

After all the evidence had been presented, Wilson and Burks moved to strike the Commonwealth's evidence on the grounds that it did not establish a prima facie case and the statute was unconstitutional to the extent it implied that mere presence in the vehicle was sufficient to support a conviction. The trial court overruled the motion and submitted the case to the jury. After the jury found them guilty, the defendants moved the court to set aside the verdicts; this motion likewise was overruled.

There is no merit in the contention of Wilson and Burks that the trial court erred in permitting Ashworth to give particulars of the earlier charges against them which were dismissed. The record does not reveal the particulars of which they complain, but, as the trial court ruled, the defendants themselves initiated the inquiry into their earlier confrontation with Ashworth. The purpose obviously was to challenge the warden's motive in stopping the same car in which they were riding five days later. Having elected to raise the question of motivation, Wilson and Burks will not be heard to complain when the Commonwealth pursued the matter further to complete the inquiry. See Linwood Earl Briley v. Commonwealth, 221 Va. 532, 540, 273 S.E.2d 48, 53 (1980), cert. denied, 451 U.S. 1031, 101 S.Ct. 3022, 69 L.Ed.2d 400 (1981).

We turn now to the constitutional challenge to the statute. In their motions to strike the evidence, Wilson and Burks contended that to the extent the statute presumed or implied guilt from mere presence in a vehicle it was unconstitutional.

The trial court gave an instruction which was a verbatim recitation of Code § 29-144.2. The statute first provides a presumption that any person is guilty of a violation who at night in possession of a specified type of weapon flashes a light from a vehicle without good cause. The statute then provides a second presumption that every person in or on "such vehicle" is a principal in the second degree. Thus, the second presumption incorporates the first. Only a person in or on a vehicle meeting the requirements of the first presumption is "deemed" to be a principal in the second degree under the second presumption. If the first presumption is invalid, the second necessarily falls; if the first is valid, the second may not necessarily survive.

Wilson and Burks contend that both presumptions are invalid. They say that the first presumption is mandatory but, even if construed as a permissible inference, it could cause a juror to conclude that the defendants had the burden of proving "good cause," in violation of principles enunciated in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

In Sandstrom, the Supreme Court analyzed an instruction, given over the defendant's objection, that "[t]he law presumes that a person intends the ordinary consequences of his voluntary acts." Id. at 513, 99 S.Ct. at 2453. The Montana Supreme Court affirmed the conviction, holding that the instruction did not shift the burden of persuasion to the defendant, but only placed on him the burden to produce some evidence. The Supreme Court said that although the Montana court is the final authority on construing a presumption under Montana law, it is not the final authority on the interpretation which a jury could have given the instruction. Id. at 516-17, 99 S.Ct. at 2455-2456. Noting the failure of the trial court to tell the jury that the presumption could be rebutted by the production of some evidence, or even that it was rebuttable, the Supreme Court ruled that a reasonable juror could have interpreted the presumption as conclusive or as shifting the burden of persuasion to the defendant. As either interpretation would have deprived the defendant of his due process right under the Fourteenth Amendment to have the prosecution prove every element of the crime, the Court held that the instruction was unconstitutional.

In County Court of Ulster County, New York v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), however, the Supreme Court upheld the constitutionality of a New York statute providing that the presence of a firearm in an automobile is "presumptive evidence" of its illegal possession by all...