Young v. Wainwright

• Decision Date: 20 May 1970
• Docket Number: Civ. No. 69-1456.
• Citation: 320 F. Supp. 80
• Parties: Robert Elwood YOUNG, Petitioner, v. Louie L. WAINWRIGHT, etc., Respondent.
• Court: U.S. District Court — Southern District of Florida

320 F. Supp. 80

Robert Elwood YOUNG, Petitioner, v. Louie L. WAINWRIGHT, etc., Respondent.

Civ. No. 69-1456.

United States District Court, S. D. Florida, Miami Division.

April 10, 1970.

Order Denying Motion for New Trial May 20, 1970.

Jack J. Taffer, Miami, Fla., for petitioner.

James M. Adams, Asst. Atty. Gen., West Palm Beach, Fla., for respondent.

JUDGMENT

EATON, District Judge.

This is a habeas corpus proceeding instituted by a state prisoner under 28 U.S.C. § 2254. Counsel for the parties agree that there is no factual dispute.

In State v. Young, 217 So.2d 567 (Fla. 1968), the Supreme Court of Florida recited the facts as follows:

"The defendant, respondent here, was informed against and tried on a charge of breaking and entering with intent to steal. Some of the stolen property was on the seat of the car in which he was riding at the time of his arrest —in fact, it was the presence of the stolen property in the automobile, which had been observed parked near the burglarized premises, which led to the arrest of the defendant and his accomplice. More of the stolen goods were found in the trunk of the automobile. The defendant was interrogated later at the police station by the investigating officer in the presence of the owner of the burglarized premises and the stolen goods. During the interrogation the owner identified a gold wrist watch the defendant was wearing as being a part of the stolen goods. After answering a few routine questions as to his identity and the like— falsely, as it turned out later—the defendant stated that he did not want to answer any more questions, whereupon the interrogation ceased. So far as is shown by the record, the accused made no other statements whatsoever to the police, either exculpatory or incriminating, prior to the trial. At the trial he did not take the stand nor adduce any other evidence in his own defense. The jury returned a verdict of guilty."

The pertinent language of the state trial judge's charge given in Young's trial is as follows:

"The Court further instructs you that where it is known beyond a reasonable doubt that a building has been entered and property stolen therefrom, and soon thereafter the property is found in the possession of the person or persons charged with entering the building with intent to steal, such possession unexplained may warrant the inference that such person not only stole the goods, but that they broke and entered the building with intent to steal.

"The Court further charges you that when a building has been broken and entered without the consent of the owner and personal property is stolen therefrom and the property stolen or some portion thereof is found in the possession of the person charged with the breaking and entering with intent to commit a larceny therein, such possession without a reasonable and plausible explanation of lawful possession of the property or any portion thereof may be sufficient to warrant a verdict of guilty of breaking and entering a building with intent to commit larceny therein, but the guilt of the accused doesn't follow as a presumption of law from the unexplained possession of the property stolen. The presumption of guilt in such a case is one which you may infer as a matter of fact which you, the jury, are the sole judges of, and it is another circumstance which you may consider in connection with all the other facts and circumstances in the case which you believe to be true.

"The Court further charges you that the law does not require a defendant in a criminal case to take the witness stand and to testify and that if the defendant does not do so, you are not to indulge any presumption against the defendant by reason of such failure. The State must prove every element charged as to the exclusion of and beyond every reasonable doubt before you can find the defendant guilty." (Emphasis mine.)

The petitioner says that the portion of the charge quoted above violated the Fifth Amendment prohibition against compulsory self-incrimination and placed a penalty upon him for having exercised his right to the Fifth Amendment protection against compulsory self-incrimination at the time of arrest, interrogation and trial.

This petition presents a question cognizable in the federal courts under 28 U.S.C. § 2254 because of the portion of the charge underlined above. Had the charge regarding recent possession of stolen property and the inference that might arise therefrom been limited to the first paragraph quoted above, this Court would have dismissed the petition.

Language to the effect that

"possession of recently stolen property, if not reasonably explained, is a circumstance from which the jury might be justified in drawing the inference that the person in possession had stolen the property or had received the property knowing it to have been stolen"

has been employed in federal and state courts throughout the country for many years.¹ Justice Black confirms in his dissent in Bollenbach v. United States, 326 U.S. 607, 616, 66 S.Ct. 402, 90 L.Ed. 350, that the "permissible inference" charge regarding possession of recently stolen property is based on what he categorizes as a "rule of law" established since "time immemorial."²

Of course, the fact of possession of recently stolen property may give rise to a reasonable inference that the possessor stole it. When goods have been taken from one person and quickly thereafter found in the possession of another, it may reasonably be inferred that they were taken by the latter—unless the circumstances as shown by the evidence otherwise explain the possession so that such inference would not be reasonable. It is the underlined portion of the charge recited above, in my judgment, that violates the Fifth Amendment right against compulsory self-incrimination. I think it unavoidable that a juror would understand that portion of the charge as authorizing the juror's consideration of the accused's having failed to come forward to explain his possession as a circumstance from which guilt might be inferred.³ I can read the charge no other way and my feeling is borne out by every Florida appellate Justice and Judge who has considered the impact of the charge given in this petitioner's state court trial.⁴ Young v. State, 203 So.2d 650 (Fla.App.1967), and both the majority and dissenting opinions in State v. Young, supra, show that the charge was directed towards the accused's "duty to explain" when found in possession of recently stolen property. The underlined portion of the charge was designed for the purpose of having the jury understand that the failure to explain on the part of one found in possession of recently stolen property might be considered as a factual circumstance in the jury's deliberation. The following language is taken from the majority opinion of the Supreme Court of Florida in State v. Young, supra.

"The fact that the accused does not come forward at his earliest opportunity and explain his possession is an additional circumstance from which the jury may draw an inference of guilt, the basis for this inference being

`* * * the obvious consideration that, if the possession was lawfully acquired, the party would be able, at least shortly after its acquisition, to give an account of the manner in which such possession was obtained.' State v. Hodge, 50 N.H. 510, cited with approval in Tilly v. State, 1885, 21 Fla. 242."

We learn from the opinion in Young v. State, supra, and from the majority opinion in State v. Young, supra, that the charge given in Young's trial was taken directly from the Florida case of McClain v. State, 185 So.2d 707 (Fla. App.1966). There the Second District Court of Appeal of Florida wrote that:

"It the Fifth Amendment does not go so far as to prohibit a jury from considering as circumstantial evidence the possession of stolen property, for which possession the defendant, at a time prior to trial has offered no explanation." (Emphasis theirs.)

citing other Florida cases, the court, in McClain quoting from Romanello v. State, 160 So.2d 529, 534 (1 DCA, 1964), added that the explanation of possession thus referred to is that

"given by the accused when he is first under duty to speak after such recently stolen property is discovered in his possession. There is no burden upon defendant to take the stand and explain such possession at the trial."⁵

It should be made clear here that this Court has neither the inclination nor the authority to review the work of the Florida appellate courts. This Court's function, in a § 2254 proceeding filed by a state prisoner, is a separate function from the appellate function performed by the Fourth District Court of Appeal of Florida and the Supreme Court of Florida. Reference is made to the language in opinions rendered by those courts as they considered Young's case only for the purpose of showing that the judicial officers who serve there interpreted the charge as I do.

We learn from those opinions that the concept that one in possession of recently stolen property should have the impulse to explain his possession at his first opportunity came into our law from the English common law—and that is so.⁶ But England had no constitutional prohibition against compulsory self-incrimination as that common law developed.

The Fifth Amendment protection against compulsory self-incrimination was ratified as a part of our Constitution in 1791 to the benefit of every citizen, including the innocent as well as the guilty. Grunewald v. United States, 353 U.S. 391, 421, 77 S.Ct. 963, 1 L.Ed.2d 931 (1956). I do not believe that we can justify the charge given in Young's case by general reference to the English common law.

It is plain common sense that inferences arise from established fact. An inference arises through the process of reasoning by finders of fact. We need not rely on England there. Flight, concealment, resistance to lawful arrest, presence at the scene of a crime, incriminating...