State v. Leverett

No. 89-189

IN THE SUPREME COURT OF THE STATE OF MONTANA
1990

STATE OF MONTANA,
Plaintiff and Respondent,
v.
CLIFFORD R. LEVERETT,
Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane G. Barz, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Ira Eakin, Billings, Montana
r- For Respondent:
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<> Hon. Marc Racicot, Attorney General; John Paulson,
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, Assistant Attorney General, Helena, Montana
4 ! ' 1:'

Harold Hanser, County Attorney; Brent Brooks, Deputy
County Attorney, Billings, Montana

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- C Submitted on Briefs: May 24, 1990
.Filed:
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2 ~ecided: September 18, 1990
a
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Following trial in the Thirteenth Judicial District Court,
Yellowstone County, a jury found appellant Clifford R. Leverett
guilty of negligent homicide for striking and killing a pedestrian
with his automobile. Leverett now appeals, primarily alleging
errors in evidence and jury instructions related to his driving
under the influence of alcohol. We reverse and remand.

FACTS
Late in the afternoon of September 24, 1988, appellant
Leverett was involved in an automobile accident near the curve
where Sixth Avenue North leads into Division Street in downtown
Billings, Montana. After rounding the curve, Leverett's car
crossed from the outside lane of traffic through the inside lane
and two oncoming lanes and crashed into a parked car. Somewhere
near the centerline, his vehicle struck a pedestrian who died the
next morning of injuries. Following the accident, the appellant
underwent field sobriety tests and a breath test. The breath test
registered his blood alcohol content at .121. The State subsequent-
ly charged Leverett with negligent homicide, and a jury found him
guilty.
Leverett now appeals his conviction and raises a number of
issues related to the evidence and jury instructions concerning
intoxication. We decline to discuss every issue raised by the
appellant because one is sufficient to reverse his conviction and
2
remand the case for a new trial. The District Court's jury
instruction that a blood alcohol level greater than .10 raised a
mandatory rebuttable presumption that the appellant was under the
influence of alcohol violated his right to due process under the
Fourteenth Amendment of the United States Constitution.

THE CHALLENGED INSTRUCTIONS
Instruction No. 11 tracked verbatim 6 61-8-401, MCA, providing
in pertinent part:
Upon the trial of any civil or criminal action
or proceeding arising out of acts alleged to
have been committed by any person driving or
in actual physical control of a vehicle while
under the influence of alcohol, the concentra-
tion of alcohol in the person's blood at the
time alleged, as shown by chemical analysis of
the person's blood, urine, breath, or other
bodily substance, shall give rise to the
following presumptions:

(c) If there was at that time an alcohol
concentration of 0.10 or more, it shall be
presumed that the person was under the in-
fluence of alcohol. Such presumption is
rebuttable.
The provisions of subsections A-C do not limit
the introduction of any other competent evi-
dence bearing upon the issue of whether the
person was under the influence of alcohol.
Jury Instruction No. 12 quoted 3 30-1-201(31), MCA, stating:
"Presumption1' or "presumed" means that the
trier of fact must find the existence of the
fact presumed unless and until evidence is
introduced which would support a finding of
its nonexistence.
 THE SCOPE AND PERSPECTIVE OF ANALYSIS
The current analysis of whether a jury instruction containing
an evidentiary presumption in a criminal case violated the
defendant's due process rights follows a procedure established by
the United States Supreme Court in Sandstrom v. Montana (1979), 442
U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39, and Ulster County Court v.
Allen (1979), 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777. The

United States Supreme Court has most recently reaffirmed that
procedure in Francis v. Franklin (1985), 471 U. S. 307, 105 S.Ct .

In analyzing evidentiary presumptions in a criminal case, the
reviewing court must focus on the particular language used to
charge the jury and determine whether a reasonable juror could have
interpreted the challenged instruction as an unconstitutional
presumption.
Analysis must focus initially on the specific
language challenged, but the inquiry does not
end there. If a specific portion of the jury
charge, considered in isolation, could reason-
ably have been understood as creating [an
unconstitutional presumption], the potentially
offending words must be considered in the
context of the charge as a whole. Other
instructions might explain the particular
infirm language to the extent that a reason-
able juror could not have considered the
charge to have created an unconstitutional
presumption.
Francis, 471 U.S. at 315, 105 S.Ct. at 1971, 85 L.Ed.2d at 354
(citation omitted).
 PRESUMPTIONS OF ESSENTIAL ELEMENTS
We begin our analysis with a preliminary matter which the
United States Supreme Court has not explicitly addressed: whether
the challenged presumption must go to an essential element of the
crime charged. The United States Supreme Court has consistently
reiterated the premise that its holdings on unconstitutional
presumptions apply only to presumptions of facts which must be
proved before the defendant can be found guilty. See e.g. Francis,
471 U.S. at 313, 105 S.Ct. at 1970, 85 L.Ed.2d at 352 (the Due
Process Clause "prohibits the State from using evidentiary
presumptions in a jury charge that have the effect of relieving the
State of its burden of persuasion beyond a reasonable doubt of
every essential element of a crimett) (emphasis added); Ulster
County, 442 U.S. at 156, 99 S.Ct. at 2224, 60 L.Ed.2d at 791 (the
presumption "must not undermine the factfindertsresponsibility at
trial, based on evidence adduced by the State, to find the ultimate
facts beyond a reasonable doubttt)(emphasis added) ; Sandstrom, 442
U.S. at 520, 99 S.Ct. at 2457, 61 L.Ed.2d at 49 (I1[i]t is clear
that under Montana law, whether the crime was committed purposely
or knowingly is a fact necessary to constitute the crime of
deliberate homicidett)(emphasis added) . This Court has specifical-
ly held that presumptions which create affirmative defenses do not
go to an element of the crime charged and, therefore, do not
violate due process. State v. Sunday (1980), 187 Mont. 292, 304,
609 P.2d 1188, 1196; State v. McKenzie (1980), 186 Mont. 481, 525,

In the present case, in view of the wording of the information
and Instruction No. 5, the presumption of intoxication does go to
an element of the crime charged. "A person commits the offense of
negligent homicide if he negligently causes the death of another
human being." Section 45-5-104, MCA. A person is criminally
negligent under the negligent homicide statute when he
consciously disregards a risk that the [death]
will occur ... or when he disregards a risk
of which he should be aware that the [death]
will occur .... The risk must be of such
a nature and degree that to disregard it
involves a gross deviation from the standard
of conduct that a reasonable person would
observe in the actor's situation. "Gross
deviationv1 means a deviation that is con-
siderably greater than lack of ordinary care.
Section 45-2-101(37), MCA. In two previous negligent homicide
cases, this Court held that driving under the influence of alcohol
may be tantamount to criminal negligence. State v. Cook (1982),
198 Mont. 329, 333, 645 P.2d 1367, 1370; State v. Kirkaldie (1978),
179 Mont. 283, 292, 587 P.2d 1298, 1304; see also Lupro v. State
(Alaska 1979), 603 P.2d 468, 474-75; State v. Montieth (Or. 1966),
417 P.2d 1012, 1015. More important to our present analysis is the
language of the instructions to the jury. Instruction No. 5
followed the language of the information filed against the
appellant:
You are instructed that the specific charge in
this case reads as follows: ...
 I ' I ,
I
P

The facts constituting the offense are:
That the defendant CLIFFORD R. LEVERETT negli-
gently caused the death of Ronald Lee Scheetz
as defined at MCA Section 45-2-lOl(37) (1987)
by driving his motor vehicle . . . into a
pedestrian, Ronald Scheetz at an unsafe rate
of speed and with a blood alcohol concentra-
tion in excess of .10 ....
(Emphasis added.) From this instruction, a reasonable juror may
have concluded that a finding of intoxication was necessary for
conviction.

CLASSIFYING THE PRESUMPTION
Under the United States Supreme Court's analysis, we must
undertake a step-by-step classification of the presumption used in
this case to determine whether it violated the appellant's right
to due process. The first step in this classification is to
determine whether a reasonable juror would understand it to be a
mandatory or permissive presumption.
The threshold inquiry in ascertaining the
constitutional analysis applicable to this
kind of jury instruction is to determine the
nature of the presumption it describes. The
court must determine whether the challenged
portion of the instruction creates a mandatory
presumption or merely a permissive inference.
A mandatory presumption instructs the jury
that it must infer the presumed fact if the
State proves certain predicate facts. A
permissive inference suggests to the jury a
possible conclusion to be drawn if the State
proves predicate facts, but does not require
the jury to draw that conclusion.
Francis, 471 U.S. at 313-14, 105 S.Ct. at 1971, 85 L.Ed.2d at 353
(quotation and citation omitted). A permissive presumption does
not violate due process so long as a rational connection exists
between the predicate and presumed fact. Ulster County, 442 U.S.
at 157, 99 S.Ct. at 2225, 60 L.Ed.2d at 792. A mandatory presump-
tion, on the other hand, may or may not be constitutional depending
on its type and function.
In determining whether a reasonable juror would have viewed
Instruction Nos. 11 and 12 as mandatory or permissive, we note that
most jurisdictions considering similar jury charges have found that
they create mandatory presumptions unless the language of the
inference is unambiguously permissive. See e.g. State v. McDonald
(S.D. 1988), 421 N.W.2d 492, 496; Barnes v. People (Colo. 1987),
735 P.2d 869, 874; Commonwealth v. Moreira (Mass. 1982), 434 N.E. 2d
196, 200; State v. Vick (Wis. 1981), 312 N.W.2d 489, 497; State v.
Dacey (Vt. 1980), 418 A.2d 856, 859; State v. Berch (Iowa 1974),
222 N.W.2d 741, 746; but see Commonwealth v. DiFrancesco (Pa.
1974), 329 A.2d 204, 211; Hillery v. State (Ga. App. 1983), 299
S.E.2d 421, 422. Here, the challenged instructions clearly are not
permissive. Instruction No. 11 states that "it shall be presumed.
Instruction No. 12 states that "the trier of fact must find." By
their plain language, the instructions create a mandatory presump-
tion of intoxication.
The next classification step is to determine whether the
mandatory presumption is conclusive or rebuttable.
8
 A mandatory presumption may be either con-
clusive or rebuttable. A conclusive presump-
tion removes the presumed element from the
case once the State has proved the predicate
facts giving rise to the presumption. A
rebuttable presumption does not remove the
presumed element from the case but neverthe-
less requires the jury to find the presumed
element unless the defendant persuades the
jury that such a finding is unwarranted.
Francis, 471 U.S. at 314, n.2, 105 S.Ct. at 1971, n.2, 85 L.Ed.2d
at 353, n.2 (citation omitted). A conclusive presumption elimin-
ates the defendant's right to challenge the presumed fact and
violates due process if it goes to an element of the crime charged.
Sandstrom, 442 U.S. at 524, 99 S.Ct. at 2459, 61 L.Ed.2d at 51.
The present presumption of intoxication is plainly not
conclusive. ~nstruction No. 11 specifically provides that the
presumption is rebuttable and does not limit the defendant's
ability to introduce contrary evidence. A reasonable juror could
not have found anything but a mandatory rebuttable presumption of
intoxication.
As the United States Supreme Court made clear in Francis, a
mandatory rebuttable presumption is generally just as unconstitu-
tional as a conclusive presumption because it commonly shifts the
burden of persuasion to the defendant.
A mandatory rebuttable presumption is perhaps
less onerous [than a conclusive presumption]
from the defendant Is perspective, but it is no
less unconstitutional. Our cases make clear
that such shifting of the burden of persuasion
with respect to a fact which the State deems
so important that it must be either proved or
 presumed is impermissible under the Due
Process Clause.
Francis, 471 U.S. at 317, 105 S.Ct. at 1972-73, 85 L.Ed.2d at 355
(quotation and citation deleted) ; see also City of Missoula v. Shea
(1983), 202 Mont 286, 294, 661 P.2d 410, 414.
The final step in classifying the presumption of intoxication
is one not yet reached by any United States Supreme Court decision.
Mandatory rebuttable presumptions may be divided into those which
shift the burden of persuasion to the defendant and those which
shift the burden of production to the defendant. Ulster County,
442 U.S. at 157, n.16, 99 S.Ct. at 2225, n.16, 60 L.Ed.2d at 792,
n.16. The former type is represented by affirmative defenses which
require the defendant to meet some specified degree of persuasion
to overcome the presumption. Affirmative defenses do not violate
due process so long as they do not supplant the traditional
elements of the crime charged. Patterson v. New York (1977), 432
U.S. 197, 205, 97 S.Ct. 2319, 2324, 53 L.Ed.2d 281, 289.
The burden-of-production shifting presumptions, however, are
much more problematic. They generally go to an element of the
crime charged and allow the defendant to overcome the presumption
by introducing any contrary evidence. The United States Supreme
Court has not yet been faced with the question of whether such
presumptions violate due process, Francis, 471 U.S. at 314, n.3,
105 S.Ct. at 1971, n.3, 85 L.Ed.2d at 353, n.3, but the Court has
indicated in dicta that they may be constitutional in some
instances:
To the extent that a presumption imposes an
extremely low burden of production--e.g.,
being satisfied by ttanyww
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.
Ulster County, 442 U.S. at 157, n.16, 99 S.Ct. at 2225, n.16, 60
L.Ed. 2d at 792, n. 16. It would appear, however, that the United
States Supreme Courtws supposition would not apply to the present
case because the presumption of intoxication was presented to the
jury .
Were we not looking through the eyes of a reasonable juror,
we might understand Instruction No. 12 to make the presumption of
intoxication a burden-of-production shifting presumption. Instruc-
tion No. 12 states:
ttPre~~mptiontwttpresumedwmeans that the
or
trier of fact must find the existence of the
fact presumed unless and until evidence is
introduced which would support a finding of
its nonexistence.
The wtunless untilt8
or language indicates that the presumption might
be overcome as soon as the defendant introduced any contrary
evidence.
If this is a burden-of-production presumption, we must ask why
it was given as a jury instruction. Such presumptions may serve
several purposes, none of which appear to be constitutional when
the presumption is presented to the jury. A burden-of-production
presumption may establish the State's prima facia case against the
defendant's motion for a directed verdict or it may streamline the
prosecution by eliminating collateral issues, such as affirmative
defenses, until raised by the defendant. See 1 Weinstein's
Evidence, n 300[02] (1989). As a procedural device, the presump-
tion presents a question of law for the court. A question of law
has no place in the jury charge. State v. Poncelet (1980), 187
Mont. 528, 542, 610 P.2d 698, 706. In the present case, the
appellant presented considerable evidence that he was not intoxi-
cated at the time of the accident. As soon as he presented his
first witness on the issue, the presumption of intoxication had
sewed its purpose as a procedural device and should have been
eliminated for the case. See United States v. Hendrix (2nd Cir.
1976), 542 F.2d 879, 882, cert. den. 430 U.S. 957, 97 S.Ct. 1609,
51 L.Ed.2d 810 (1977); Commonwealth v. Moreira (Mass. 1982), 434
N.E.2d 196, 199; but see State v. Trujillo (N.M. 1973), 510 P.2d
1079, 1084.
Like any other presumption, a burden-of-production presumption
may also represent scientific, statistical, or common-knowledge
evidence linking the predicate and presumed facts. See 1 Wein-
stein's Evidence, 9 300[02] (1989). Montana's presumption of
intoxication is apparently based on evidence demonstrating that a
person with a blood-alcohol level of greater than .10 cannot safely
operate a motor vehicle. However, even if the presumptionlsonly
function is to point out that well recognized relationship to the
12
jury, it still should not be presented to the jury in a manner
which places a burden of production on the defendant. If the
defendant came forward with no contrary evidence, the presumption
would act as a directed verdict for the State on the issue of
intoxication. That would be contrary to the due process axiom that
the criminal defendant is entitled to sit silent and go free if the
prosecution fails to prove every element of the crime beyond a
reasonable doubt. See State v. Greeno (1959), 135 Mont. 580, 592,
342 P.2d 1052, 1058. If, on the other hand, the defendant does
present contrary evidence, as he did in this case, the presumption
is overcome. Presenting the presumption to the jury then serves
no purpose except to imply that the defendant has some burden of
proof on an element of the crime. The danger of that implication
was particularly great in this case because Instruction No. 12 was
not unmistakably clear that the appellant could overcome the
presumption by producing any evidence that he was not intoxicated.
A reasonable juror could easily have interpreted Instruction
No. 12 as shifting the burden of persuasion to the appellant and
not as merely shifting the burden of production. The instruction
required the jury to find intoxication tlunless
and until evidence
is introduced which would support a finding of its nonexistence."
It did not state what quantum of evidence was necessary to support
a finding of its nonexistence. A reasonable juror may have
believed that the appellant not only had to introduce contrary
evidence, but that he had an affirmative duty to convince the jury
13
that he was not intoxicated. As noted above, under Francis, such
a mandatory rebuttable presumption which shifts the burden of
persuasion to the defendant violates due process.

CORRECTIVE INSTRUCTIONS
An unconstitutional mandatory presumption charged to the jury
cannot be cured by other instructions giving a correct statement
of the law. The reviewing court cannot determine whether the jury
improperly relied upon the unconstitutional instructions or
properly relied on the correct instructions but found the defendant
guilty anyway. Francis, 471 U.S. at 322, 105 S.Ct. at 1979, 85
L.Ed.2d at 358. It is, therefore, no answer to say that Instruc-
tion Nos. 3 and 8 informed the jury that the defendant was cloaked
in a presumption of innocence throughout the proceeding and that
the State could overcome that presumption only by proving every
element of negligent homicide beyond a reasonable doubt.

HARMLESS ERROR
A resort to harmless error analysis also fails to save the
unconstitutional instructions. Although at one time the United
States Supreme Court refused to apply harmless error analysis to
unconstitutional presumptions, Sandstrom, 442 U.S. at 526-27, 99
S.Ct. at 2460-61, 61 L.Ed.2d at 52-53, in Rose v. Clark the Court
adopted the same harmless error test applied to other types of
constitutional errors.
14
 [I]f the defendant had counsel and was tried
by an impartial adjudicator, there is a strong
presumption that any other errors that may
have occurred are subject to harmless error
analysis. ... Where a reviewing court can
find that the record developed at trial es-
tablishes guilt beyond a reasonable doubt,
... the judgment should be affirmed.
Rose (1986), 478 U.S. 570, 579, 106 S.Ct. 3101, 3106, 92 L.Ed.2d
460, 471. A finding of guilt beyond a reasonable doubt does not
require that defendant conceded the presumed fact. The question
is to be determined from the entire record. Rose, 478 U.S. at 583,

Here the record indicates that intoxication was a hotly
debated trial issue. Several witnesses testified that the
appellant had little to drink and did not appear to be intoxicated
immediately before or after the accident. Two police officers,
however, testified that the appellant later failed field sobriety
tests. Both parties presented expert witnesses who testified for
and against the accuracy of the breath test which registered .121.
The evidence also conflicted on the appellant's driving immediately
prior to the accident and on how the accident occurred. The
recorded evidence is not so clear that we can now step into the
shoes of the jury and find the appellant guilty beyond a reasonable
doubt. Compare People v. Hickox (Colo. App. 1987), 751 P.2d 645,
647-48 (presumption of intoxication held unconstitutional but
harmless because the record contained overwhelming evidence of
intoxication) .
 THE STATUTE
Our holding that the jury instructions on the presumption of
intoxication were unconstitutional does not reach the statute
itself. By its plain language, § 61-8-401, MCA, creates a
mandatory rebuttable presumption of intoxication. When the 1983
Legislature amended the statute to make the presumption rebuttable,
it considered the implications of Sandstrom and apparently decided
that the statute was constitutional because the presumption was
rebuttable. Consideration of H.B. 540 Before the Senate Judiciary
Comm., 48th Leg., (February 10, 1983) at 3-4, and Exhibit A at 5-
6 (Testimony of Asst. Attgy. Gen. Steve Johnson). In Francis, the
United States Supreme Court nullified that theory by holding that
even mandatory rebuttable presumptions are unconstitutional.
Francis, 471 U.S. at 317, 105 S.Ct. at 1972-73, 85 L.Ed.2d at 355.
Like every other state in the union, Montana adopted the presump-
tion of intoxication to fulfill federal highway funding require-
ments. See 23 U.S.C. § 408(e) (1)(C); 23 C.F.R. § 1204.4, Highway
Safety Program Guideline No. 8, IB. A number of states have saved
their unconstitutional statutory versions of the presumption by
reading indisputably mandatory language as permissive; in effect,
the courts have held that "shallgg
means "may." See e.g. Barnes v.
People (Colo. 1987), 735 P.2d 869, 873; State v. Dacey (Vt. 1980),
418 A.2d 856, 859.

We do not find it necessary to go to such lengths to avoid
striking down the statute. The introductory language of S 61-8-
16
401, MCA, provides that it applies to "any civil or criminal action
or proceeding . . . ." In some of the many contexts in which the
presumption of intoxication might come into play, it may be
constitutional; in others, it may not. That determination will
depend on the purpose of the presumption, the type of proceeding,
and the particular language used to convey the presumption to the
jury. Under our holding today, the presumption of intoxication
violates the criminal defendant's right to due process only if the
presumption goes to an element of the crime charged and a reason-
able juror could read the presumption as mandatory.

CONCLUSION
The solution to the due process problems of using presumptions
in jury charges is not, as was attempted in this case, to make them
burden-of-production shifting presumptions. The solution is to
make the presumptions unambiguously permissive.
Because [a] 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 doubtvvstandard only if,
under the facts of the case, there is no
rational way the trier could make the connec-
tion 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.
Ulster County, 442 U.S. at 157, 99 S.Ct. at 2225, 60 L.Ed.2d at
792. While Montana has not yet done so, a large number of
17
jurisdictions have followed the federal courts in adopting
evidentiary rules which require that all presumptions presented to
juries be clearly permissive. See 1 Weinstein s Evidence,
9 303[08] (1989). In the present case, had the language of
Instruction Nos. 11 and 12 been modified to make the presumption
unmistakably permissive, the instructions would have passed
constitutional muster.
In addition, we specifically disapprove the trial court's use
of Instruction No. 13, a civil instruction on proximate cause. In
drafting appropriate instructions on causation on retrial, the
trial court should refer to 5 45-2-201, MCA, and to Instruction No.
14 of the Montana Criminal Instructions Guide, along with the
evidence presented at trial.
By copy of this opinion, we ask the Supreme Court Commission
on Rules of Evidence to consider the advisability of adopting a
rule of evidence addressed to presumptions in criminal cases. See
Uniform Rules of Evidence, Rule 303 (1974); also 1 Weinstein's
Evidence, 9 303 (1989) .
The case is reversed and remanded for a new trial.
 We concur:

r
Justices

Judge, sitting in place
Justice Diane G. Barz

*on-. Ted L. -~izngr/]-District
Judge, s i t t i n p $ l a c e of
J u s t i w John, Sheehy

p'fa,
i?
Hon. L. (t/. Gulbrandson, Retired
sitting in place of
Just
Justic R. C. McDonough