Assadollah v. State

¶1concurs in part and dissents in part:

¶2I concur that appellant should stand convicted, but I would modify the judgment to First Degree Manslaughter and modify the sentence to forty-five (45) years’ imprisonment.

¶3In a supplemental assignment of error, the issue is proof of intent, which is specifically required by the statute under which the appellant was convicted. Appellant contends that he was denied his right to due process by the court’s following instruction to the jury,1 which allegedly relieved the State of its burden to prove each and every element of the crime:

The design to effect death may be inferred from the fact of the killing, unless the circumstances raise a reasonable doubt as to whether or not such design existed.

¶4This instruction is in accord with 21 O.S. 1971, § 702, which reads as follows:

A design to effect death is inferred from the fact of killing, unless the circumstances raise a reasonable doubt as to whether or not such design existed.

¶5I first must note, regarding the appellant’s failure to object, our long-standing preference is that any error be cured at trial in order to avoid relitigation. Daniels v. State, 554 P.2d 88 (Okl.Cr.1976). However, even a failure to draw error to the attention of the court below will not result in a permanent waiver of that error when it is fundamental. See Rea v. State, 3 Okl.Cr. 281, 105 P. 386 (1909). That opinion also defined fundamental error as any error which goes to the foundation of the case or which denies the defendant a right essential to his defense. In accord, Stowe v. State, 397 P.2d 693 (Okl.Cr.1964). When intent is an element of the crime, and instruction *1221absolving the State of its burden to prove that element beyond a reasonable doubt is a fundamental error going to the very foundation of the ease. It cannot be waived.

¶6The second consideration in addressing this issue is the effect of the recent United States Supreme Court decision of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), in which the following instruction was held unconstitutional:

[T]he law presumes that a person intends the ordinary consequences of his voluntary acts.

¶7I cannot avoid the conclusion that the 702 instruction, supra, is, in effect, the same instruction struck down in Sandstrom. Like the Sandstrominstruction, a 702 instruction shifts the burden of proving intent to the defendant. However, the Supreme Court does not indicate whether Sandstromwill be prospective or retroactive, although we have some indication of its effect in that a similar decision, In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), was held retroactive in Ivan v. City of New York, 407 U.S. 203, 92 S.Ct. 1951, 32 L.Ed.2d 659 (1972).

¶8However, the retroactivity problem becomes insubstantial in light of the opinions which preceded the trial of this appellant, and which provide a basis for this claim, as Sandstromclearly indicates. A brief analysis follows.

¶9Intent, as an element of the first degree murder statute under which appellant was convicted, must be proved beyond a reasonable doubt. The 1970 decision of In re Winship, supra, leaves no doubt in holding that it is a matter of due process that each and every element of a crime be proven beyond a reasonable doubt.

¶10The challenged instruction raises a presumption: That the fact of the homicide leads to an inference of its intentionality. The presumption must be rebutted by the defendant. The United States Supreme Court has consistently held unconstitutional conclusive presumptions as to intent. See Morrissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), reaffirmed by U.S. v. U.S. Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978). A conclusive presumption of intent is in conflict with the presumption of innocence inherent to each element of the crime. As such, it withdraws from the jury their fact function.

¶11Even a presumption which shifts the burden, as does the 702 instruction, is constitutionally unsound. See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). In Muilaney, the jury was told that malice could be implied, absent a fair preponderance of proof by the defendant that he had acted in the heat of passion on sudden provocation. As the Court said in Mullaney, 421 U.S. at 702, 95 S.Ct. at 1891, 44 L.Ed.2d at page 521,

. . . proving that defendant did not act in the heat of passion on sudden provocation is similar to proving any other element of intent … It may be established by adducing evidence of factual circumstances surrounding the commission of the homicide. And although intent is typically considered a fact within the knowledge of the defendant, this does not, as the Court has long recognized, justify shifting the burden to him. [Citations omitted] Mullaney v. Wilbur, supra, 421 U.S. at page 702, 95 S.Ct. at page 1891, 44 L.Ed.2d at page 521.

¶12Any use of 21 O.S.1971, § 702, alone, to establish intent, where intent is an element of the crime, is unconstitutional, and its use, in the case before this Court, prejudiced the appellant.

¶13I would, therefore, modify the judgment to Manslaughter in the First Degree, under which a specific intent is not required.