State v. McAllister

¶1¶ 24. dissenting. The central point of the majority’s rationale is in its third reason why the motion for acquittal was properly denied:

Third, when asked by the facilities supervisor “what the story was” behind the pills, defendant did not produce the name of a prescribing practitioner, a prescription, or a prescription bottle, nor did she even claim to have a prescription or the direction of a practitioner to take the pills. She merely stated that they were her “meds.” It is a reasonable inference that she did not do any of these things because she did not have a prescription or the direction of a practitioner and because her possession of the pills was unlawful.

¶2Ante, ¶ 16. This was exactly the rationale of the district court, which relied upon “[defendant’s admissions as well as her failure to avail herself of producing a prescription or availing herself of the procedure in place in the correctional facility, that it would allow her to have validly prescribed medication.”

¶3¶ 25. In other words, defendant can be found guilty because she failed to prove to the facilities supervisor that she had a prescription for the pills. Whatever the strength of the inference the majority draws, a subject I address below, I believe that it is an inference fundamentally at odds with the allocation of burdens of proof in a criminal case. At its core, the majority’s holding is that defendant can be found guilty of an essential element of the crimes because she failed to prove her innocence, relieving the State from its constitutional burden to prove all elements of its case. See In re Winship, 397 U.S. 358, 364 (1970) (due process clause requires the State to prove “every fact necessary to constitute the crime” beyond a reasonable doubt). For this primary reason, I dissent from the affirmance of defendant’s conviction.

¶4¶ 26. Ours is an accusatorial system of criminal justice including a high burden of proof on the State and an adversarial process. *138Watts v. Indiana, 338 U.S. 49, 54 (1949). The burden is on the prosecution to “produce sufficient evidence to convince the trier of fact of the accused’s guilt . . . without compelling the accused to assist in this prosecution responsibility.” 1 W. LaFave, J. Israel & N. King, Criminal Procedure § 1.4(d), at 188 (2d ed. 1999) (describing “cornerstones” of the criminal justice process). In short, the prosecution must “shoulder the entire load.” Tehan v. United States ex rel. Shott, 382 U.S. 406, 415 (1966). The defendant can “‘remain inactive and secure, until the prosecution has taken up its burden and produced evidence and effected persuasion.’ ” Taylor v. Kentucky, 436 U.S. 478, 483 n.12 (1978) (quoting 9 J. Wigmore, Evidence §2511, at 407 (3d ed. 1940)). Shifting the prosecution’s burden to the defendant is a violation of due process of law. State v. Cohen, 568 So. 2d 49, 52 (Fla. 1990).

¶5¶ 27. In this case, the State had the burden for one crime to prove that defendant possessed a narcotic drug “knowingly and unlawfully.” 18 V.S.A. § 4234(a). For the other crime, it had the burden to prove that defendant did not have a “prescription or direction of a practitioner.”3Id. § 4249. Defendant said nothing from which we could infer that she possessed the drugs unlawfully. She was never asked whether she had a prescription. When asked the vague question of why she had the pills, she answered that they were her “meds,” an answer entirely consistent with lawful possession. When asked what the pills were, she identified them as methadone and Percocet, an answer that was correct,4 except that she did not disclose the one broken pill was morphine.

¶6*139¶ 28. I recognize that there are instances where defendant’s responses to inquiries, although not admissions, establish a strong enough inference of guilt. This is not such an instance. We explained the distinction in State v. Ovitt, 148 Vt. 398, 402-03, 535 A.2d 1272, 1274 (1986), with respect to statements of alibi. A “false, fabricated or fictitious alibi” is evidence of guilt. Id. at 403, 535 A.2d at 1274. On the other hand, simple failure to prove an alibi is not such evidence. Id. at 402, 535 A.2d at 1274. We explained in Ovitt:

We agree with defendant that it would have been error to instruct the jury that failure to prove an alibi constitutes evidence of guilt. Such an instruction implies that a defendant has some affirmative obligation to establish the alibi. ... An alibi ... is simply a denial of the possibility of having committed a crime because of being somewhere else when it was committed. . . .

A jury instruction that a failed attempt to establish an alibi is evidence of some guilt implies a shifting of the burden of proof from the State to the defendant, and as such, violates due process. . . . “[I]t is the burden of the government to prove the complicity of the defendant, not the burden of the defendant to establish his innocence.” United States v. Burse, 531 F.2d 1151, 1153 (2d Cir. 1976).

¶7Id.(some citations omitted). Nothing in defendant’s response demonstrates falsity to mislead the prison workers. While defendant’s response was incomplete as to one of fifteen drugs, the variance is unimportant because defendant admitted all the drugs were narcotics that could be possessed only with a prescription.

¶8¶ 29. Even if the burden shifting adopted by the majority were constitutional, it represents a policy choice we have never adopted and should never adopt. The choice before us is similar to that before the United States Court of Appeals for the Second Circuit in United States v. Jackson, 368 F.3d 59 (2004). In that case, the prosecution had to prove that the defendant was a convicted felon and attempted to do so by offering proof that a person with the same first and last name as the defendant had been convicted of a felony, arguing that the proof of the criminal record shifted to the defendant the burden to prove he was not the same person *140named in the conviction record. The court rejected the burden shifting sought by the prosecution:

[W]e do not rest our holding on a constitutional ground. It suffices to say that, at least in this circuit, the rule proposed by the government has never been recognized, and we see no reason why it should be. Putting aside the question whether the courts or Congress or a state legislature could lawfully establish a presumption that would deem an essential element of a crime sufficiently proved by some specified evidence, in the absence of evidence to the contrary, we can see no reason to establish such a presumption for proof of a prior conviction as an element of the offense. . . .

[Ajpart from the tensions such a rule would create with the presumption of innocence, there is no need for such a rule, no logic to support it, and no precedent in our circuit to justify it. We decline to create the rule the government advocates.

¶9Id. at 65, 68. The court found the presumption unnecessary and of dubious accuracy.

¶10¶ 30. The same reasons expressed by the court in Jacksonapply here. The corrections intake workers made no serious attempt to determine the status of the drugs they found. They did not ask defendant whether she had a prescription or how she came to possess the drugs. They made no independent attempt to determine whether defendant possessed them lawfully. On the other hand, the rule that the majority endorses, apart from its inconsistency with the presumption of innocence, rests on the dubious assessment that defendant’s failure to volunteer an unrequested explanation for her possession of the drugs shows she possessed them unlawfully. Even if the rule were consistent with defendant’s due process rights, we should not adopt it.

¶11¶ 31. I see equal, although different, difficulties with the other reason the majority gives for finding sufficient evidence of guilt: that defendant tried to secret the drugs and would not immediately give them to the prison workers when requested. The majority’s logic is that if defendant had a prescription, she would have disclosed the drugs and requested to keep them in accor*141dance with the medical intake policy. There is, however, no evidence that defendant knew of this policy or ever had an interview with a facility nurse, evidence the State could have easily provided if it existed. In the absence of such evidence, there are myriad reasons why defendant would attempt to hide the drugs, most entirely unrelated to guilt.

¶12¶ 32. The use of this evidence is based on the rationale that defendant’s conduct shows consciousness of guilt: “it was reasonable for the jury to infer that defendant secreted the pills in this manner because she knew they were regulated drugs, and she believed she would not be allowed to bring them into the correctional facility. Her actions suggest that she did not have a prescription or the direction of a practitioner, or have legal possession of the pills.” Ante, ¶ 16. This consciousness-of-guilt logic is precisely what we employ for evidence of flight to avoid prosecution, evidence we have said has “little probative value” and “is not sufficient by itself to support a conviction.” State v. Unwin, 139 Vt. 186, 193, 424 A.2d 251, 255 (1980); see generally 2 J. Wigmore, Evidence § 276, at 122 (Chadbourn rev. 1979) (“the fact of an accused’s flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt”); see also State v. Onorato, 171 Vt. 577, 579, 762 A.2d 858, 859 (2000) (mem.) (same as to evidence of a suicide attempt); State v. Giroux, 151 Vt. 361, 366, 561 A.2d 403, 406 (1989) (upholding jury instruction that flight has “very, very limited probative value” (citation omitted)). We have emphasized the ambiguity of the evidence: “there may be multiple reasons to explain the flight of an innocent person, such as panic, the fear of being apprehended or confronting the police, and the unwillingness to appear as a witness.” Onorato, 171 Vt. at 579, 762 A.2d at 859. We have also noted that it depends upon multiple inferential steps “‘from the defendant’s behavior to flight!,] • • • from flight to consciousness of guilt!,] • • • from consciousness of guilt to consciousness of guilt concerning the crime charged!,] • • • from consciousness of guilt concerning the crime charged to actual guilt of the crime charged.’ ” State v. Perrillo, 162 Vt. 566, 570, 649 A.2d 1031, 1034 (1994) (quoting United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977)). We have concluded that “[c]ommon experience does not necessarily support the second and fourth inferences.” Id.

¶13¶ 33. Our assessment of the weight of consciousness-of-guilt evidence is similar to that of other courts around the country. *142Thus, the United States Court of Appeals for the Second Circuit recently said about false exculpatory statements, another variation of the consciousness-of-guilt rationale:

Although false exculpatory statements to law enforcement officials may be circumstantial evidence of consciousness of guilt and may strengthen inferences supplied by other pieces of evidence, they do not alone prove guilt. As we [have] explained . . . , falsehoods told by a defendant in the hope of extricating himself from suspicious circumstances are insufficient proof on which to convict where other evidence of guilt is weak and the evidence before the court is as hospitable to an interpretation consistent with the defendant’s innocence as it is to the Government’s theory of guilt.

¶14United States v. Glenn, 312 F.3d 58, 69 (2d Cir. 2002) (citations omitted).

¶15¶ 34. The evidence here has exactly the deficiencies of the flight evidence. It is a logical inference that defendant secreted the pills because she feared that she could not get them into the correctional facility. Beyond that first step, the inferences dissolve into speculation. Defendant could well have believed that she could not get the drugs into the correctional center irrespective of whether she had a prescription. It is, of course, the nature of a correctional center that many items that are lawful to possess cannot be possessed in the facility. Indeed, this belief was very likely because the Vermont Department of Corrections was prohibiting access to methadone in prison for all but a few short-term offenders and department policy was widely covered in the press. See Bazilchuk, Nine Days of Hell: If Judges Are Ordering Methadone Treatment, Some Parolees Will End up in Jail, The Burlington Free Press, July 8, 2001 (“The state does have a policy: ... No opiates, not even synthetic opiates such as methadone, in prison”)5; Vermont Department of Corrections, Directive: #363.01 (April 9, 2004) (inmates may be allowed access *143to methadone, in the sole discretion of the department, but only if incarcerated for a period that does not exceed thirty days). Even assuming defendant herself believed that her behavior was illegal, defendant’s subjective belief that an act is illegal does not make it so any more than a defendant’s mistaken belief that her conduct is legal would necessarily excuse potential wrongdoing.

¶16¶ 35. In response to this dissent, the majority attempts to embellish the facts to create a greater inference of guilt. Thus, the majority now says that defendant engaged in an “uncouth method of transportation,” as if an unrefined or boorish method of hiding drugs somehow adds to the inference of unlawful possession. The majority says that defendant attempted to destroy the evidence, apparently by crushing the bag in which the pills were found, although at best one pill was broken in two and the chemical makeup of the pills was easy to determine irrespective of their form.

¶17¶ 36. The overall standard for conviction is that the evidence must “sufficiently and fairly” support a finding of guilt beyond a reasonable doubt. State v. Baird, 2006 VT 86, ¶ 13, 180 Vt. 243, 908 A.2d 475. The evidence in this case does not meet that standard, whether viewed in isolation or in combination. It is a combination of consciousness-of-guilt evidence that is not sufficient to meet the State’s burden of proof and impermissible inferences drawn from improperly placing the burden of proof on defendant. Only the State had the burden to prove that defendant possessed the drugs unlawfully, and it totally failed to meet that burden. If the evidence is sufficient in this case, the unlawful-possession element has essentially been removed from the crime.

¶18¶ 37. I reiterate that it was a simple matter in these circumstances for the corrections officers to ask defendant whether she had a prescription or other direction from a doctor for the drugs she possessed. If she asserted that she possessed the drug lawfully, they could follow up with questions that would enable them to check the accuracy of defendant’s representations. It is also a simple matter to inform a person being admitted to a correctional center of the medical-intake policy with respect to drugs before the admission occurs. The failure to take those obvious steps leaves this Court in a position in which we can *144affirm a conviction only by improperly shifting the burden of proof to defendant to explain her actions and relying on evidence of a type we have found to be inadequate in the past. Unlike the majority, I do not believe we can affirm the conviction in these circumstances. I would reverse defendant’s convictions.

¶19¶ 38. I am authorized to state that Justice Johnson joins this dissent.