No. 14463
IN THE S P
U- COURT OF' THE STATE O MINTANA
F
THE STATE O MXCANA,
F
P l a i n t i f f and Respondent,
-VS-
JOSEPH S
T
- WILL=,
Defendant and Appellant.
Appeal f m : D i s t r i c t Court of t h e Eighth Judicial D i s t r i c t ,
Honorable Joel G. mth, Judge presiding.
Counsel of Record:
For Appellant:
Daniel Donovan, Public Defender argued, G r e a t Falls, Mntana
Larry Anderson, Etblic Defender argued, Great Falls, Mntana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Mntana
J. Fred Bourdeau, County Attorney, Great F a l l s , Montana
Carroll Blend argued, Deputy County Attorney, Great F a l l s , mntana
Sutmitted: June 4 , 1979
Decided: NO\' 5 lm-
Honorable James B. Wheelis, District Judge, sitting in place of
Mr. Justice John C. Sheehy, who deems himself disqualified.
Joseph Stanley Williams, the appellant, was charged
with felony theft and found guilty of having purposely or know-
ingly exerted unauthorized control over a pickup belonging to
Bison Motors in Great Falls.
Before the taking of evidence at the trial, the defendant
requested that the District Court preliminarily instruct the
jury with respect to the presumption of innocence. The court
refused the request and advised defendant that the instruction
would be given in final instructions. At the settlement of final
instructions, the defendant renewed his request, but it was denied.
The court refused the instruction, which included a statement
of the law on both the presumption of innocence and the State's
burden of proof ruling that it duplicated another instruction.
The instruction proposed by the State and adopted by the trial
court instructed the jury that the State must prove the defendant's
guilt beyond a reasonable doubt. It did not instruct them to pre-
sume the defendant innocent.
The first issue presented upon appeal is whether the trial
court's refusal to give the defendant's requested instruction on
the presumption of innocence results in a violation of his right
to a fair trial as guaranteed by the Due Process Clause of the
Fourteenth Amendment to the United States Constitution and Article
11, Section 17 of the 1972 Montana Constitution.
On this issue we must reverse. We think even though the
jury was properly instructed as to the burden of proof beyond a
reasonable doubt, when he so requests, the defendant is still en-
titled to an instruction as to the presumption of innocence which
exists in his favor. As Justice White noted in Coffin v. United
States (1895), 156 U.S. 432, 453, 15 S.Ct. 394, 403, 39 L.Ed. 481,
491:
"The principle that there is a presumption of
innocence in favor of the accused is the undoubted
law, axiomatic and elementary, and its enforcement
- 2 -
lies at the foundation of the administration of
our criminal law."
Though the trial court thought it unnecessary to instruct
the jury on the presumption of innocence as well as on the State's
burden of proof, we think it is a constitutional safeguard to use
both.
Appellant relies heavily on Taylor v. Kentucky (1978), 436
U.S. 478, 98 S.Ct. 1930, 56 L Ed 2d 468, in which the United
States Supreme Court reversed a criminal conviction resulting
from a trial in which the judge refused to give a requested jury
instruction on the presumption of innocence. The State of Ken-
tucky argued that the burden of proof beyond a reasonable doubt
instruction effectively duplicated the presumption of innocence
instruction, but the Supreme Court in Taylor said:
"While the legal scholar may understand that the
presumption of innocence and the prosecution's
burden of proof are logically similar, the ordinary
citizen may well draw significant additional guid-
ance from an instruction on the presumption of
innocence. Wigmore described this effect as follows:
II I ...
In a criminal case the term [presumption of
innocence] does convey a special and perhaps useful
hint over and above the other form of the rule about
the burden of proof, in that it cautions the jury
to put away from their minds all the suspicion that
arises from the arrest, the indictment, and the arraign-
ment, and to reach their conclusion solely from the
legal evidence adduced.
"'In other words, the rule about burden of proof re-
quires the prosecution by evidence to convince the
jury of the accused's guilt; while the presumption
of innocence, too, requires this, but conveys for the
jury a special and additional caution (which is per-
haps only an implied corollary to the other) to con-
sider, in the material for their belief, nothing but
the evidence, i-e., no surmises based on the present
situation of the accused. This caution is indeed
particularly needed in criminal cases.' Wigmore 407.
"This court has declared that one accused of a crime
is entitled to have his guilt or innocence determined
solely on the basis of the evidence introduced at trial,
and not on grounds of official suspicion, indictment,
continued custody, or other circumstances not adduced
as proof at trial. . . it long has been recognized
that an instruction on the presumption [of innocence]
is one way of impressing upon the jury the importance
of that right." Taylor v. Kentucky, 436 U.S. at 484-
485, 98 S.Ct. at , 56 L Ed 2d at 474-475.
The Taylor decision does not, however, announce an ab-
solute rule that denial of a requested instruction on the pre-
sumption of innocence results in reversible error. The holding
was explicitly limited to its facts, and later in Kentucky v.
Whorton (1979), U.S. -
1 -S.Ct. , 60 L Ed 2d 640,
the court held that failure to give a requested instruction on
the presumption 0.finnocence does not in and of itself violate
the Constitution. The court said:
"Under Taylor, such a failure must be evaluated in
light of the totality of the circumstances--includ-
ing all the instructions to the jury, the arguments
of counsel, whether the weight of the evidence was
overwhelming, and other relevant factors--to deter-
mine whether the defendant received a constitutionally
fair trial." Whorton, 60 L Ed 2d at 643.
Hence, the United States Supreme Court has decided that the
totality of the circumstances shall dictate whether the issuance
of a presumption of innocence instruction is necessary. Histor-
ically, though, Montana has set higher standards on this issue,
as we are allowed to do, and we decline this opportunity to lower
those standards.
In an 1899 case, State v. Harrison (1899), 23 Mont. 79,
57 P. 647, this Court flatly ruled without examination of the
facts that failure to give a requested instruction on the pre-
sumption of innocence was reversible error.
In State v. Howell (1901), 26 Mont. 3, 5, 66 P. 291, 292,
this Court said "The defendant in a criminal case is always
entitled to have the jury take into consideration the presump-
tion of innocence which the law throws about him."
This Court reiterated the Harrison ruling in 1951 when
it stated:
"The presumption of innocence surrounds the Defendant
at every step in the trial and to its benefits he
is entitled in the determination of every fact by the
jury .
"It has the weight and effect of evidence in the
Defendant's behalf." State v. Gilbert (1951), 125
Mont. 104, 109, 232 P.2d 338, 341. (Emphasis
supplied.)
We hold steadfast to this per se rule that an instruction
on the presumption of innocence is required in every case when
a timely request has been made and think it preferable to the
totality of the circumstances test articulated in Kentucky v.
Whorton, supra. This test allows a defendant's right to an in-
struction on the presumption of innocence to ultimately stand
or fall on the weight of the evidence. In determining whether
to give the instruction, the trial court would, of necessity, be
required to pass judgment on both the quantity and quality of the
evidence presented. We think that this evaluation by the trial
court would be a usurping of the jury's role as the judge of fact
and a partial denial of the defendant's right to a trial by jury
as guaranteed by the Sixth and Fourteenth Amendments of the United
States Constitution and Article 11, Section 26, 1972 Montana Con-
stitution.
It having been stipulated by counsel at oral argument that
other grounds raised on appeal are not ripe for decision, we do
not reach them, and reverse and remand for a new trial consistent
with the conclusions in this opinion.
ames B. Wheelis, District
sitting in place of Mr. Jus-
ohn C. Sheehy.
We concur: I
Chief Justice
-
A/
Justices