Felix Stroud Hammontree v. C. Paul Phelps, Director, Louisiana Department of Corrections, Respondent

WISDOM, Circuit Judge:

We skate on thin ice. This habeas case involves a statutory presumption in a criminal action, an interpretation of the statute by the Louisiana Supreme Court, and the propriety of the state trial court’s instructions on the “presumption”.¹ The ice was thinned by a recent major decision of the Supreme Court, County Court of Ulster County v. Allen, 1979, - U.S. -, 99 S.Ct. 2213, 60 L.Ed.2d 777. In explication of the decision, the associate justices divided four-four. The Chief Justice concurred fully in the opinion for the Court but found on the facts that it was unnecessary to discuss the problems raised by the statutory presumption. Sandstrom v. Montana, 1979, - U.S. -, 99 S.Ct. 2450, 61 L.Ed.2d 39, thickened the ice.

Louisiana’s negligent homicide statute provides that: “The violation of a statute or ordinance shall be considered only as presumptive evidence of such negligence.” LSA — R.S. 14:32. In Hammontree’s habeas corpus action the district court found that this provision violated due process because it created an unconstitutional presumption that violation of a statute constitutes criminal negligence. Hammontree v. Phelps, W.D.La.1978, 462 F.Supp. 366. The state appeals from the court’s grant of habeas corpus and argues that the statute is not unconstitutional, or, in the alternative, that any constitutional violation constitutes harmless error.

On June 29, 1977, an automobile driven by Felix Hammontree, petitioner, struck a camper truck, causing fatal injuries to a child asleep inside. Hammontree was charged with negligent homicide under LSA-R.S. 14:32. After hearing evidence that the defendant was intoxicated and speeding at the time of the accident, the jury convicted him. The trial judge sentenced him to serve five years at hard labor. The Louisiana Supreme Court affirmed the conviction. State v. Hammontree, La.S.Ct. 1978, 363 So.2d 1364. He then filed this habeas corpus action. The federal district court granted the writ, vacated the judgment of conviction and sentence, and ordered him discharged unless the state appealed. 462 F.Supp. at 370.

I

In 1969 the United States Supreme Court ruled that a criminal statutory presumption was unconstitutional “unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend”. (Emphasis added.) Leary v. United States, 1969, 395 U.S. 6, 36, 89 S.Ct. 1532, 1548, 23 L.Ed.2d 57, 82. The Court refused to decide whether a presumption must satisfy the “beyond a reasonable doubt” standard in situations where “proof of the crime charged or an essential element thereof depends upon its use”. 395 U.S. at 36 n.64, 89 S.Ct. at 1548 n.64; accord, Barnes v. United States, 1973, 412 U.S. 837, 842-43, 93 S.Ct. 2357, 2361-62, 37 L.Ed.2d 380, 386. The formulation of the standard in Leary was a restatement and refinement of the due process requirement as first articulated in Tot v. United States, 1943, 319 U.S. 463, 467, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519, 1524: There must be at least “a rational connection between the facts proved and the fact presumed” — a connection grounded in “common experience”.

This June the Court clarified its earlier decisions on presumptions and delineated when a presumption must indicate the ultimate fact beyond a reasonable doubt. See Sandstrom v. Montana, 1979, - U.S. -, 99 S.Ct. 2450, 61 L.Ed.2d 39; County Court of Ulster County v. Allen, 1979, - U.S. -, 99 S.Ct. 2213, 60 L.Ed.2d 777.

The more detailed analysis is in Ulster County. The Supreme Court had before it a constitutional attack on a New York statute which provides that, with certain exceptions, the presence of a firearm in an automobile is presumptive evidence of its illegal possession by all persons occupying the vehicle. A majority of the Court held that the judgment of the New York Court of Appeals for the defendant should be reversed. Justice Stevens, for the Court, held that the “permissive presumption, as used in this case, satisfied Leary’s [“more likely than not”] test”.² Justice Stevens prefaced his discussion of presumptions by noting that the “ultimate test” of a statutory presumption or any other factfinding device used in a criminal trial is whether it “undermine[s] the factfinder’s responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt”. - U.S. at -, 99 S.Ct. at 2224, 60 L.Ed.2d at 791. The Court then divided statutory presumptions into permissive presumptions and mandatory presumptions, of which there are two subclasses.³

A permissive 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”. Id. at -, 99 S.Ct. at 2224, 60 L.Ed.2d at 792. The Court added:

Because this permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the “beyond a reasonable doubt” standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference. For only in that situation is there any risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination.

Id.

A mandatory presumption “may affect not only the strength of the ‘no reasonable doubt’ burden but also the placement of that burden; it 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”. Id. at -, 99 S.Ct. at 2224-25, 60 L.Ed.2d at 792. Weak mandatory presumptions “merely shift the burden of production to the defendant, following the satisfaction of which the ultimate burden of persuasion returns to the prosecution”. Id. at -, 99 S.Ct. at 2225 n.16, 60 L.Ed.2d at 792 n.16. “To the extent that a presumption imposes an extremely low burden of production — e. g., being satisfied by ‘any’ evidence — it may well be that its impact is no greater than that of a permissive inference and it may be proper to analyze it as such.” Id. A strong mandatory presumption “entirely shift[s] the burden of proof to the defendant. The mandatory presumptions examined by our cases have almost uniformly fit into the former subclass, in that they never totally removed the ultimate burden of proof beyond a reasonable doubt from the prosecution. E. g., Tot v. United States, supra, 319 U.S. at 469, 63 S.Ct. 1241, 87 L.Ed. 1519. See Roviaro v. United States, 353 U.S. 53, 63, 77 S.Ct. 623, 1 L.Ed.2d 639.” Id.

A mandatory presumption violates due process “unless the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt”. Id., - U.S. at -, 99 S.Ct. at 2229, 60 L.Ed.2d at 798. This standard is appropriate because the trier of fact must abide by the presumption and cannot make an independent evaluation of the evidence supporting the ultimate fact presumed; “the analysis of the presumption’s constitutional validity is logically divorced from those facts and based on the presumption’s accuracy in the run of cases”. Id. at -, 99 S.Ct. at 2226, 60 L.Ed.2d at 793. Whether other evidence in the record supports the ultimate finding is irrelevant. Id.

Chief Justice Burger concurred “fully in the Court’s opinion reversing the judgment under review,” but concluded that “the jury could readily have reached the same result without benefit of the challenged statutory presumption”. Id. at 798 (Burger, C.J., con-curing).

Justice Powell, with whom Justices Brennan, Stewart, and Marshall joined, wrote a dissenting opinion: “[Tjhe presumption as charged to the jury in this case [fails to meet] the constitutional requirements of due process . . . . [A]n individual’s mere presence in an automobile where there is a handgun does not even make it ‘more likely than not’ that the individual possesses the weapon”.

Justice Powell viewed a statutory presumption as posing two constitutional problems: first, it could lessen the jury’s burden to find the ultimate facts beyond a reasonable doubt, id. at -, 99 S.Ct. at 2230, 60 L.Ed.2d at 799, (Powell, Jr., dissenting and second, it might violate “the due process rule that when the jury is encouraged to make factual inferences, those inferences must reflect some valid general observation about the natural connection between events as they occur in our society”. Id. at -, 99 S.Ct. at 2231, 60 L.Ed.2d at 800. (Powell, Jr., dissenting). As established in Tot, there must be at least “a rational connection between the facts proved and the fact presumed” — a connection grounded in “common experience”. Relying also on Leary and Barnes, Justice Powell summarized the three decisions:

In sum, our decisions uniformly have recognized that due process requires more than merely that the prosecution be put to its proof. In addition, the Constitution restricts the court in its charge to the jury by requiring that, when particular factual inferences are recommended to the jury, those factual inferences be accurate reflections of what history, common sense, and experience tell us about the relations between events in our society. Generally this due process rule has been articulated as requiring that the truth of the inferred fact be more likely than not whenever the premise for the inference is true. Thus, to be constitutional a presumption must be at least more likely than not true.

1 . For a discussion of presumptions, see C. McCormick, The Law of Evidence §§ 342-46 (2d ed. 1972); J. Thayer, Preliminary Treatise on Evidence at the Common Law 313-52 (1898); 9 J. Wigmore, Evidence §§ 2490-540 (3d ed. 1940); Ashford & Risinger, Presumptions, Assumptions and Due Process in Criminal Cases: A Theoretical Overview, 79 Yale L.J. 165 (1969); Bohlen, The Effect of Rebuttable Presumptions of Law Upon the Burden of Proof, 68 U.Pa.L.Rev. 307 (1920); Brosman, Statutory Presumptions (pts. 1-2), 5 Tul.L.Rev. 17, 178 (1930); Jeffries & Stephan, Defenses, Presumptions and Burden of Proof in the Criminal Law, 88 Yale L.J. (1979); Morgan, How to Approach Burden of Proof and Presumptions, 25 Rocky Mt.L.Rev. 34 (1952); Morgan, Further Observations on Presumptions, 16 S.Cal.L. Rev. 245 (1943); Morgan, Some Observations Concerning Presumptions, 44 Harv.L.Rev. 906 (1931); Stumbo, Presumptions—A View at Chaos, 3 Washburn L.J. 182 (1964); Note, Constitutionality of Rebuttable Statutory Presumptions, 55 Colum.L.Rev. 527 (1955); Note, The Validity of Criminal Presumptions in Louisiana, 37 La.L.Rev. 1155 (1977); Note, The Unconstitutionality of Criminal Statutory Presumptions, 22 Stan.L.Rev. 341 (1970); Comment, Presumptions in the Criminal Law of Louisiana, 52 Tul.L.Rev. 793 (1978); Comment, Statutory Criminal Presumptions: Reconciling the Practical With the Sacrosanct, 18 U.C.L.A.L.Rev. 157 (1970); Comment, The Constitutionality of Statutory Criminal Presumptions, 34 U.Chi.L. Rev. 141 (1966).

2 . A permissive presumption need not meet the beyond a reasonable doubt standard because the prosecution could rely on all of the evidence presented to meet its burden of proving the issue:

There is no more reason to require a permissive statutory presumption to meet a reasonable doubt standard before it may be permitted to play any part in a trial than there is to require that degree of probative force for other relevant evidence before it may be admitted. As long as it is clear that the presumption is not the sole and sufficient basis for a finding of guilt, it need only satisfy the test described in Leary.

— U.S. at -, 99 S.Ct. at 2229-30, 60 L.Ed.2d at 798. Of course, if a permissive presumption is the only evidence introduced on an element of the offense or on some other issue where the prosecution must satisfy the beyond a reasonable doubt standard, the basic fact must prove the ultimate fact beyond a reasonable doubt.

3 . The opinion did not discuss conclusive presumptions. A conclusive presumption is irrebuttable; “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, The Law of Evidence § 342 at 804 (2d ed. 1972); accord, Note, The Unconstitutionality of Statutory Criminal Presumptions, 22 Stan.L.Rev. 341, 342 (1970).

Sandstrom did discuss conclusive presumptions. See - U.S. at -, 99 S.Ct. at 2455-2459, 61 L.Ed.2d at 46-51. It noted that on two previous occasions the Court had ruled certain conclusive presumptions unconstitutional. See United States v. United States Gypsum, 1978, 438 U.S. 422, 435, 446, 98 S.Ct. 2864, 2872, 2878, 57 L.Ed.2d 854, 868, 875; Morissette v. United States, 1952, 342 U.S. 246, 274-75, 72 S.Ct. 240, 255-56, 96 L.Ed. 288, 306. The Sandstrom opinion held that “a conclusive presumption in this case 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”. — U.S. at-, 99 S.Ct. at 2459, 61 L.Ed.2d at 50.