Sandstrom v MN Petitions and Briefs

    The Supreme Court 
of the United States

David Sandstrom
versus

State of Montana

Petition and Briefs

Law Reprints
Criminal Law Series
Volume 10, no. 32 
1978/1979 Term

RE' : e iv e d  
l ib r a r y

j u i  ̂ 2 5  W/,y

Paul, Weiss, ifkind, wuartoii a Samson



IN THE

Supreme Court of tb? Uniteb g>tatfg
OCTOBER TERM, 1978

No. 78-5384

DAVID SANDSTROM,
Petitioner,

v.
STATE OF MONTANA,

Respondent.

BRIEF FOR PETITIONER

BYRON W. BOGGS 
212 East Park Avenue 
Anaconda, Montana 5971 1

Court-appointed Counsel for 
Petitioner



(i)

TABLE OF CONTENTS
Page

OPINIONS BELOW ............................................................ 1
JURISDICTION .................................................................  2
CONSTITUTIONAL PROVISIONS, STATUTES,

AND RULES INVOLVED ....................................   2
QUESTION PRESENTED ...............................................  5
STATEMENT OF THE CASE . ......................................  6
HOW FEDERAL QUESTION WAS RAISED 

BELOW ............................................................................ 8
SUMMARY OF A RGUM ENT.........................................  9
A RG U M EN T.........................................................................11

1. TO PURPOSELY OR KNOWINGLY 
CAUSE A DEATH IS AN ELEMENT 
OF THE OFFENSE CHARGED 
AGAINST PETITIONER AND OF 
WHICH PETITIONER WAS CON­
VICTED ....................................................................11

II. THE QUESTION AS TO WHETHER 
PETITIONER PURPOSELY OR 
KNOWINGLY CAUSED THE DEATH 
WAS PROPERLY RAISED BY THE 
TRIAL EVIDENCE AND PRESENTED 
A QUESTION FOR JURY DETERMI­
NATION UPON PROOF BEYOND A 
REASONABLE DOUBT   ................ ..................14

III. THE JURY INSTRUCTION, “THE 
LAW PRESUMES THAT A PERSON 
INTENDS THE ORDINARY CONSE­
QUENCES OF HIS VOLUNTARY 
ACTS,” SHIFTED THE BURDEN OF 
PROOF ON THE ELEMENT OF PUR­
POSELY OR KNOWINGLY CAUSING 
THE DEATH TO PETITIONER AND



(ii)

THEREBY DENIED HIM HIS CON­
STITUTIONAL RIGHT TO DUE PRO­
CESS OF LAW .......................................................17

CONCLUSION AND PRAYER FOR RELIEF ............23



(in)

TABLE OF AUTHORITIES
Cases Page
Block v. United States,

221 F.2d 786 (9th Cir. 1955) .........................................21
Chappell v. United States,

270 F.2d 274 (9th Cir. 1959) .........................................  21
In Re Winship,

397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d
368 (1970) .............................................................. 10,17,23

Mann v. United States,
319 F.2d 404 (5th Cir., 1963) cert. den.
375 U.S. 986, 84 S.Ct. 520, 11 L.Ed.2d
474 (1964) ........................................................................20

Monahan v. Standard Motor Company,
96 Mont. 165, 29 P.2d 278 (1934)................................  19

Morrissette v. United States,
342 U.S. 246, 72 S.Ct. 240, 96 L.Ed.288
(1952) ......................................................................  10,22,23

Mullaney v. Wilbur,
421 U.S. 684, 44 L.Ed.2d 508, 95
S.Ct. 1881 (1975) .................................................. 10,22,23

Patterson v. New York,
432 U.S. 197, 53 L.Ed.2d 281, 97
S.Ct. 2319 (1977) .............................................. 10,13,22,23

State v. Collins,
___Mont. _ ,  582 P.2d 1179, 35 St.Rptr.
993, 999 (1978) ............................................................  9,12

State v. Carney,
122 Mont. 491, 207 P.2d 506 (1949) ...........................  20

State v. Judd,
20 Mont. 420 ................................................................  20

State v. Klein,
__ Mont____ , 547 P.2d 75, 33
St.Rptr. 283 (1976) ...................................................... 9,12



State v. McKenzie,
___Mont_____ 581 P.2d 1205, 35
St.Rptr. 759 (1978) ......................................................9,13

State v. Schafer,
35 Mont. 217, 88 Pac. 792 (1920) ...............................  20

State v. Sharbono,
___M ont.___ , 563 P.2d 61, 34 St.Rptr.

196, (1977)....................................................................  9,12
United States v. Barash,

365 F.2d 395 (2d Cir. 1966) ...........................................  21
United States v. Bertolotti,

529 F.2d 149, (2d Cir. 1975) .........................................  21
United States v. Chiantese,

560 F.2d 1244 (5th Cir. 1977) ......................................  21
United States v. Garrett,

574 F.2d 778, (3rd Cir. 1978) cert. den.
___U.S____ , ___S.Ct.56 L.Ed.2d
67 (1978) ........................................................................... 21

Statutes
Revised Codes of Montana

94-5-101 ...............................  2>3
94-5-102(a).......................................................2,3,9,11,12,3
94-2-101(27).............................................................. 2,3,11
94-2-101(52) .............................................................. 2,3,11
93-1301-1....................................................................  2,4,10
93-1301-2 .................................................................. 2,4,10
93-1301-3................................................................. 2,4,10,18
93-1301-4 ......................      2,4,10
93-1301-5 .................................................................. 2,4,10
93-1301-7(3) .........................................................  2,5,10,18

(iv)



Rules
Montana Rules of Evidence

301(a) ............................................................................. 5,18
301(b)(2) ....................................................................... 5,19

Other Authorities
Webster’s New Collegiate Dictionary

(1977 e d .) .........................................................   18

(v)



IN THE

Supreme Court of tfjc ®nitrb g>tate£
OCTOBER TERM, 1978

No. 78-5384

DAVID SANDSTROM, 

v.
Petitioner,

STATE OF MONTANA,
Respondent.

BRIEF FOR PETITIONER

OPINIONS BELOW

The Supreme Court of M ontana has issued an 
opinion in this case, a copy of which appears in the 
Appendix, page 45. The opinion is officailly reported at 
35 St.Rptr. 744, 580 P.2d 106. The Judgment of the 
Supreme Court of Montana is printed in the Appendix, 
page 52. An order denying rehearing is also included in 
the Appendix, page 54. The Journal Entry of the 
Judgment of the Supreme Court of M ontana, is 
printed in the Appendix, page 2.

1



2

The Judgment of the Supreme Court of Montana was 
entered on June 29, 1978 [Appendix, page 52]. The 
timely petition for rehearing was denied on June 28,1978 
[Appendix, page 54], The jurisdiction of the Supreme 
Court is invoked pursuant to this Court’s ability to 
review and decide any title, right, privilege or immunity 
specially set up or claimed under the Constitution of the 
United States. 28 U.S.C. §1257(3). Petition for Writ of 
Certiorari to the M ontana Supreme Court was filed 
September 12, 1978; Certiorari granted January 8, 1978.

JURISDICTION

CONSTITUTIONAL PROVISIONS, STATUTES, 
AND RULES INVOLVED

This case involves the first section of the Fourteenth 
Amendment to the Constitution of the United States, 
which provides as follows:

“All persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, are 
citizens of the United States and ol the State 
wherein they reside. No State shall make or enforce 
any law which shall abridge the privileges or im­
munities of citizens of the United States; nor shall 
any State deprive any person o f life, liberty, or 
property, without due process o f law, nor deny to 
any person within its jurisdiction the equal pro­
tection of the laws.” (emphasis added)
This case also involves Sections 94-5-101,94-5-102(a), 

94-2-101(27) and (52), 93-1301-1, 93-1301-2, 93-1301-3, 
93-1301-4, 93-1301-5, and 93-1301-7(3), of the Revised

2



3

Codes of the State of Montana, which provide as 
follows:
Section 94-5-101. CRIMINAL HOMICIDE.

“(1) A person commits the offense of criminal 
homicide if he purposely, knowingly or negligently 
causes the death of another human being.
(2) Criminal homicide is deliberate homicide, mit­

igated deliberate homicide, or negligent homicide.”

Section 94-5-102(a). DELIBERATE HOMICIDE.
“(1) Except as provided in 94-5-103( 1) (a) criminal 
homicide constitutes deliberate homicide if:
(a) it is committed purposely or knowingly;. . . ” 

Section 94-2-101(27)
““Knowingly”—a person acts knowingly with 
respect to conduct or to a circumstance described 
by a statute defining an offense when he is aware of 
his conduct or that the circumstance exists. A 
person acts knowingly with respect to the result of 
conduct described by a statute defining an offense 
when he is aware that it is highly probable that 
such result will be caused by his conduct. When 
knowledge of the existence of a particular fact is an 
element of an offense, such knowledge is estab­
lished if a person is aware of a high probability of 
its existence. Equivalent terms such as “knowing” 
or “with knowledge” have the same meaning.”

Section 94-2-101(52)
““Purposely”—a person acts purposely with re­
spect to a result or to conduct described by a 
statute defining an offense if it is his conscious 
object to engage in that conduct or to cause that 
result. When a particular purpose is an element of 
an offense, the element is established although

3



4

such purpose is conditional, unless the condition 
negatives the harm or evil sought to be prevented 
by the law defining the offense. Equivalent terms 
such as “purpose” and “with the purpose” have the 
same meaning.”

Section 93-1301-1. IN D IRECT EVIDENCE CLAS­
SIFIED.
“Indirect evidence is of two kinds:

1. Inferences; and,
2. Presumptions.”

Section 93-1301-2. INFERENCE DEFINED.
“An inference is a deduction which the reason of 
the jury  makes from the facts proved, without an 
express direction of the law to that effect.”

Section 93-1301-3. PRESUM PTION DEFINED.
“A presumption is a deduction which the law 
expressly directs to be made from particular facts.”

Section 93-1301-4. WHEN AN INFERENCE ARISES.
“An inference must be founded:

1. On a fact legally proved; and,
2. On such a deduction from that fact as is 

warranted by a consideration of the usual pro­
pensities or passions of men, the particular pro­
pensities or passions of the person whose act is in 
question, the course of business, or the course of 
nature . . . ”

Section 93-1301-5. PRESUMPTIONS MAY BE CON­
TROVERTED, WHEN.
“A presumption (unless declared by law to be con­
clusive) may be controverted by other evidence, 
direct or indirect; but unless so controverted, the 
jury are bound to find according to the presump­
tion.”

4



5

Section 93-1301-7(3). ALL OTHER PRESUM P­
TIONS MAY BE CONTROVERTED.

“All other presumptions are satisfactory, if uncon­
tradicted. They are denominated disputable pre­
sumptions; and may be controverted by other 
evidence. The following are of that kind:
(3) That a person intends the ordinary conse­

quences of his voluntary act.”
And the Rules 301(a) and 301(b)(2) of the Montana 
Rules of Evidence:

Rule 301. PRESUMPTIONS IN GENERAL.

“(a) Presumption defined. A presumption is an 
assumption of fact that the law requires to be made 
from another fact or group of facts found or 
otherwise established in the action or proceeding.
(b) CLASSIFICATION AND EFFECT OF PRE­
SUMPTIONS
(2) All presumptions, other than conclusive pre­
sumptions, are disputable presumptions and may be 
controverted. A disputable presumption may be 
overcome by a preponderance of evidence contrary 
to the presumption. Unless the presumption is 
overcome, the trier of fact must find the assumed 
fact in accordance with the presumption.”

QUESTION PRESENTED

Did the Jury Instruction, “The law presumes that a 
person intends the ordinary consequences of his 
voluntary acts.,” given at Petitioner’s trial on the charge 
of Deliberate Homicide committed purposely or know­
ingly deprive him of his Fourteenth Amendment right to

5



6

a jury determination as to every element of the crime 
charged against him upon proof of guilt beyond a 
reasonable doubt?

STATEMENT OF THE CASE

On November 1, 1976, Mrs. Annie Jessen, eighty-nine 
years of age and a life-long resident of Anaconda, 
Montana, was found dead in her home. She was the 
victim of an assault involving a blow to her head by a 
shovel and five stab wounds in her back from a kitchen 
knife. Mrs. Jessen had also been sexually assaulted, 
apparently after her death.

On or about November 22, 1976, Petitioner, David 
Sandstrom, eighteen years of age, and also of Anaconda, 
was arrested with regard to an unrelated burglary. 
Shortly thereafter, while in custody of the Deer Lodge 
County Sheriff, Petitioner confessed to causing the 
death of Mrs. Jessen. This confession was later 
collaborated by various circumstantial facts; notably, 
the identification of a pubic hair found on Mrs. Jessen as 
being probably that of Petitioner’s; and by Petitioner 
leading Deer Lodge County law enforcement officers to 
Warm Springs Creek in Anaconda where he had thrown 
the knife. Based upon the confession and collaborating 
evidence, Petitioner was charged on December 2, 1976, 
with Deliberate Homicide in that he, “purposely or 
knowingly caused the death of Annie Jessen.” [Informa­
tion, Appendix page 3],

At his arraignment on this charge, Petitioner entered a 
plea of not guilty and simultaneously filed a notice of 
intent to rely on a mental disease or defect excluding

6



7

responsibility for the alleged crime. [Appendix page 4]. 
Pursuant to such notice, Petitioner was examined by two 
court-appointed mental health experts, Dr. William 
Stratford, a psychiatrist practicing in Missoula, Mon­
tana, and Dr. Michael Nash, a clinical psychologist 
practicing in Bozeman, Montana. The independently 
prepared reports of both doctors were in agreement as to 
their evaluation of Petitioner’s mental condition at the 
time of the death of Mrs. Jessen. Both men found that 
Petitioner did not suffer from a mental disease or defect 
which under the Montana Criminal Code would relieve 
him of responsibility for his acts. Both men did find, 
however, that Petitioner, a person of borderline retarded 
intelligence, suffered from a personality disorder marked 
by impulsiveness, aggressiveness, and a lack of planning. 
Additionally, the doctors stated that the characteristics 
of Petitioner’s personality disorder, impulsiveness and 
aggressiveness, would be aggravated to a serious degree 
by alcohol consumption. [Appendix pp. 12-15, 22-26], 
On the night the Petitioner caused the death of Mrs. 
Jessen, evidence shows that he had consumed between 
three and four six-packs of beer and some whiskey. 
[Appendix p. 9-10], The doctors formed the opinion, 
after considering the combination of Petitioner’s per­
sonality, the evidence of intoxication, and the circum­
stances surrounding the fatal acts as stated in Petitioner’s 
confession, that Petitioner did not intend the death of 
Mrs. Jessen. [Appendix pp. 16, 17, 21, 22, 26, 27, 33], 
Based on the expert opinions of Drs. Stratford and 
Nash, Petitioner’s attorney informed the jury in his 
opening remarks that he no longer intended to rely on a 
mental disease or defect excluding responsibility, but 
rather, intended to contest the allegation that Petitioner

7



8

acted purposely or knowingly in taking Mrs. Jessen’s 
life. [Appendix pp. 6-8],

Petitioner’s trial commenced July 18, 1977. The 
Prosecution case consisted of the confession together 
with collaborating evidence. The defense case consisted 
of the testimony of Drs. Stratford and Nash which was 
to the effect that the Petitioner did not have either 
“purpose” or “knowledge”, required by Montana law as 
an element of the offense of Deliberate Homicide, in 
causing Mrs. Jessen’s death. The jury found the 
Petitioner guilty of Deliberate Homicide and he was 
sentenced to one hundred years confinement in the 
Montana State Prison. [Appendix pp. 38, 39, 42],

HOW THE FEDERAL QUESTION WAS RAISED 
BELOW

Following presentation of all the evidence, the Court 
included in its instructions to the jury the instruction, 
“The law presumes that a person intends the ordinary 
consequences of his voluntary acts.” [Appendix p. 35]. 
This instruction, requested by the Prosecution, was 
objected to by Petitioner’s attorney as violating the Due 
Process Clause of the Fourteenth Amendment of the 
Constitution of the United States by shifting the burden 
of proof to the Petitioner on the issue of intent. The trial 
Court, however, overruled the objection. [Appendix p. 
34].

The verdict and judgment of the Trial Court was 
timely appealed to the Supreme Court of Montana. A 
principle question raised in that appeal concerned the 
Constitutionality of Jury Instruction No. 5. [Appendix 
p. 49-51], The Supreme Court of Montana affirmed the 
Trial Court’s verdict and judgment in a decision dated

8



9

June 8, 1978. In that decision, the Court stated that the 
instruction was not violative of due process standards. 
[Appendix pp. 49-51],

A timely petition for rehearing, again questioning the 
Constitutionality of Jury Instruction No. 5, was denied 
June 28, 1978. [Appendix p. 54],

On September 12, 1978, the Petition for Writ of 
Certiorari was filed in this Court. On January 8, 1979, 
the Writ of Certiorari to the Supreme Court of Montana 
was granted [Appendix p. 55],

SUMMARY OF ARGUMENT

Petitioner was charged and convicted of Deliberate 
Homicide committed purposely or knowingly under 
Section 94-5-102(a) of the Montana Criminal Code. 
From the plain language of this statute and from the 
interpretations given it by the Montana Supreme Court, 
it is clear beyond question that to purposely or 
knowingly cause a death is an element of this crime and 
that these terms embody the concepts of mens rea and
criminal intent. State v. Collins,___Mont___ , 582 P.2d
1179, 1184, 35 St.Rptr. 993, 999 (1978); State v. Klein,
___Mont___ , 547 P.2d 75, 78, 33 St.Rptr. 283, 288
(1976); State v. Sharbono,___Mont___ , 563 P.2d 61,
72, 34 St.Rptr. 196, 211 (1977). State v. McKenzie,
___M ont___ _ 581 P.2d 1205, 1232, 35 St.Rptr. 759, 794
(1978).

The trial evidence consisted of Petitioner’s confession, 
collaborating evidence and the testimony of two court- 
appointed mental health experts, a psychiatrist and a 
psychologist. The opinions of the mental health experts 
were that Petitioner neither purposely or knowingly

9



10

caused the death in undertaking the fatal acts as 
described in the confession. A question thus being raised 
as to an element of the crime charged against Petitioner 
he was entitled to a jury determination as to this element 
upon proof of guilt beyond a reasonable doubt. In Re 
Winship, 397 U.S. 358,*90 S.Ct. 1068, 1073, 25 L.Ed.2d 
368 (1970).

Upon request of the Prosecution and over Defense 
objection, the jury was instructed that, “The law 
presumes a person intends the ordinary consequences of 
his voluntary acts.” The common meaning of this 
instruction is that the jury should accept the fact that 
Petitioner intended to cause the death without proof. 
Under Montana law the instruction placed upon 
Petitioner the burden of proving that he did not intend 
the death by a preponderance of the evidence. Sections 
93-1301 et.seq. quoted supra., p. 4, 5 and Rule 301, 
Montana Rules of Evidence, quoted supra., p. 5. 
Petitioner argues that this shifting of the burden of proof 
to him on the element of intent deprived him of his right 
to due process of law under the Fourteenth Amendment 
to the United States Constitution. Upon appeal, the 
Montana Supreme Court affirmed the use of this 
presumption against Petitioner in direct contradiction of 
this Court’s holdings in Mullaney v. Wilbur, 421 U.S. 
684, 44 L.Ed.2d 508, 95 S.Ct. 1881 (1975); Morrissette v. 
United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 
(1952); and, Patterson v. New York, 432 U.S. 197, 53 
L.Ed.2d 281, 97 S.Ct. 2319 (1977).

10



11

ARGUMENT

I. TO PURPOSELY OR KNOWINGLY 
CAUSE A DEATH IS AN ELEMENT OF 
THE OFFENSE CHARGED AGAINST 
PETITIONER AND OF WHICH PETI­
TIONER WAS CONVICTED.

Petitioner was charged under Section 94-5-102(l)(a) 
Montana Criminal Code, Deliberate Homicide Com­
mitted Purposely or Knowingly, [Appendix p. 3]. This 
Section (quoted supra., p. 3) is part of the Montana 
Criminal Code enacted in 1973. It represents an 
abandonment of the old terms defining first degree 
murder: “premeditation” and “malice aforethought.” 
These terms are replaced by the terms “purposely” or 
“knowingly,” which are defined in Sections 94-2-101, 
(27) and (52) of the Montana Criminal Code. These 
definitions were given to the jury in Petitioner’s trial by 
Instructions Nos. 7 and 8:
INSTRUCTION NO. 7:

““Knowingly” is defined as follows: A person acts 
knowingly with respect to conduct or to a circum­
stance described by a statute defining an offense 
when he is aware of his conduct or that the 
circumstances exists. A person acts knowingly with 
respect to the result of conduct described by a 
statute defining an offense when he is aware that it is 
highly probable that such result will be caused by his 
conduct. When knowledge of the existence of a 
particular fact is an element of an offense, such 
knowledge is established if a person is aware of a 
high probability of its existence. Equivalent terms 
such as “knowing” or “with knowledge” have the 
same meaning.” [Appendix pp. 35, 6],

l l



12

INSTRUCTION NO. 8:

““Purposely” is defined as follows: A person acts 
purposely with respect to a result or to conduct 
described by a statute defining an offense if it is his 
conscious object to engage in that conduct or to 
cause that result.” [Appendix p. 36]
Section 94-5-102( 1 )(a) Montana Criminal Code is on 

its face perfectly clear that purposely or knowingly 
causing a death is an element of this crime. Beyond this, 
the Montana Supreme Court has stated unambiguously 
that purposely or knowingly causing a death is an 
element of deliberate homicide charged under this 
section and that these terms embody the mens rea or 
criminal intent element of this crime:

“It is to be noted from the definitions that 
committing the homicide ‘purposely or knowingly’ 
is an element of deliberate homicide, . . . ”

State v. Collins, __ Mont____, 582 P.2d 1179, 1184, 35
St.Rptr. 993, 999 (1978).

“It is clear that the legislature intended the words 
“purposely” and “knowingly” would substitute for 
the word feloniously (i.e. intentionally) as used in 
the old code. . . . ”

State v. Klein, ___M ont___ , 547 P.2d 75, 78, 33
St.Rptr. 283, 288 (1976).

“The necessary requirements for “Mens Rea" and 
“Criminal Intent” are embodied in the use of the 
new language of the statute “purposely” and 
“knowingly”.”

State v. Sharbono, ___M ont___ , 563 P.2d 61, 72, 34
St.Rptr. 196, 211 (1977).

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13

“In Montana, a person commits the offense of 
deliberate homicide if he purposely or knowingly 
causes the death of another human being. Sections 
94-5-102(l)(a), 94-5-101(1), R.C.M. 1947. The 
statutorily defined elements of the offense, each of 
which the State must prove beyond a reasonable 
doubt, are therefore, causing the death of another 
human being with the knowledge that you are 
causing or with the purpose to cause the death of 
that human being.”

State v. M cKenzie,___M ont___ , 581 P.2d 1205, 1232,
35 St.Rptr. 759, 794 (1978).

McKenzie was decided by the Montana Supreme 
Court on remand from this Court for further considera­
tion in light of Patterson v. New York, 432 U.S. 197, 53 
L.Ed.2d 281, 97 S.Ct. 2319 (1977); and was cited as 
precedent for the holding in Petitioner’s appeal [Appen­
dix p. 50], Because purposely or knowingly causing a 
death is held in McKenzie to be an element of Deliberate 
Homicide, McKenzie does not bring Petitioner’s case 
under the holding of Patterson that state legislatures 
may designate some factual matters which are not 
elements of offenses as affirmative defenses.

The jury in Petitioner’s trial was instructed without 
objection that an element of deliberate homicide was 
that the Defendant caused the death of the victim 
purposely or knowingly, Instruction No. 3 [Appendix p. 
34, 5], The Verdict and Judgment was: Guilty of the 
charge Deliberate Homicide [Appendix p. 38], From all 
the foregoing, the fact that purposely or knowingly 
causing the death was an element of the crime charged 
against the Petitioner and of which he was convicted is 
clear beyond question.

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14

II. THE QUESTION AS TO WHETHER 
PETITIONER PURPOSELY OR KNOW­
INGLY CAUSED THE DEATH WAS 
PROPERLY RAISED BY THE TRIAL 
EVIDENCE AND PRESENTED A QUES­
TION FOR JURY DETERMINATION 
UPON PROOF BEYOND A REASONABLE 
DOUBT.

In his opening remarks, Petitioner’s attorney in­
formed the jury that he intended to contest the allegation 
that Petitioner had caused the death purposely or 
knowingly. [Appendix pp. 6-8], The evidence presented 
by the State at Petitioner’s trial consisted of Petitioner’s 
confession, [Appendix pp. 9-11] together with evidence 
tending to show the validity of the confession. The 
evidence presented by the defense consisted of the 
testimony of two Court-appointed mental health ex­
perts, Dr. William Stratford, Psychiatrist practicing in 
Missoula, Montana, and Dr. Michael Nash, Psycholo­
gist, practicing in Bozeman, Montana. Both men were 
well versed in the forensic aspects of psychiatry or 
psychology, Dr. Stratford being a consulting psychiatrist 
with the Montana State Prison [Appendix p. 13], and, 
Dr. Nash being past chief of clinical services at the 
Montana State Prison and continuing as a consultant 
there [Appendix p. 23], Each of these doctors had 
examined Petitioner and were acquainted with the facts 
stated in the confession. Assuming those facts to be true 
and based upon their examination and the circumstances 
of the case both men stated the opinion that the 
defendant did not intend to kill Mrs. Jessen. Specifically, Dr. 
Stratford to the question,

“Do you think he formed the intent and purpose of 
taking her life?”

14



15

Answered,
“ In my opinion—he did not intend to kill her. . . 
[Appendix p. 21].

In answer to the question,
“Do you think he was aware of that fact and he 
was—he knew he was taking her life?”

Dr. Stratford stated,
“In my opinion I believe that his intent was merely 
to silence her I don’t think he really considered it.” 
[Appendix pp. 21, 22],

And in response to the question,
“Would it be fair to say that this was an act, an 
impulsive act?”

Dr. Stratford answered,
“Yes, in my opinion it was impulsive. As I have tried 
to indicate, I do not think it was his purpose to kill 
her. . . .’’[Appendix p. 22].

Dr. Nash, in response to the question,
“Do you have an opinion as to whether or not David 
Sandstrom deliberated on the death of Mrs. 
Jessen?”

Answered,
“In my opinion he did not anticipate or plan the 
death of Mrs. Jessen.” [Appendix pp. 26, 27],

And, to the question,
“Dr. Nash in response to the cross examination 
question do you believe David Sandstrom had the 
capacity to comprehend or know what he was 
doing—stabbing Mrs. Jessen and as a result taking

15



16

her life. Do you have an opinion as to whether he 
had that knowledge in the sense of a present 
awareness that that is what he was doing?”

Answered,

“In my opinion at the time the killing took place he 
was in a—had a condition which is described as a 
rage, meaning that he was less conscious of 
awareness of the activities that were going on. This 
is partly a result of his intelligence, partly a result of 
the fact that he had some alcohol, partly the result of 
the fact that he had tendencies of repressive feelings 
of guilt that when they are provoked to, flooding 
out, his anger projection and at that time that the act 
was going on he had a less appreciation for the 
logical consequences of the behavior that he was 
engaging in than he would have ordinarily. But, this 
did not approach a psychotic condition so therefore 
he had the capacity to appreciate it. If he would have 
been in a psychotic condition he would have had 
little memory of the events but, in fact, he does 
remember them so psychologically the capacity was 
there but the likelihood or the nature of that 
appreciation have been somewhat reduced.” [Ap­
pendix p. 33].

The opinions of both these experts were based upon their 
findings that Petitioner suffered from a borderline 
retarded intelligence and a personality disorder marked 
by impulsiveness and a lack of planning which would be 
aggravated to a significant degree by the amount of 
alcohol that he had consumed on the night of the fatal 
acts. [Appendix pp. 13-15, 24-26]. Both experts had 
formed the opinion that Petitioner’s specific intent in 
undertaking the acts which caused the death of Mrs. 
lessen was to stop her from screaming and that he did 
not have in mind causing her death. [Appendix pp. 16,

16



17

17, 27], No attempt was made to rebut this expert 
testimony by the State.

Clearly the testimony of Drs. Stratford and Nash 
raised a question as to an element of the crime with which 
Petitioner was charged; that is, “Did Petitioner act 
purposely or knowingly in causing the death?” Such 
question being raised, Petitioner had the constitutional 
right to a jury determination of this factual question 
upon proof of guilt beyond a reasonable doubt. In Re 
Winship, 397 U.S. 358, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 
368, (1970).

III. THE JURY INSTRUCTION, “THE LAW 
PRESUMES THAT A PERSON INTENDS 
THE ORDINARY CONSEQUENCES OF 
HIS VOLUNTARY ACTS,” SHIFTED THE 
BURDEN OF PROOF OF THE ELEMENT 
OF PURPOSELY OR KNOWINGLY 
CAUSING THE DEATH TO PETITIONER 
AND THEREBY DENIED HIM HIS 
CONSTITUTIONAL RIGHT TO DUE 
PROCESS OF LAW.

At the time of settlement of Jury Instructions, 
Petitioner’s attorney objected to Proposed Instruction 
No. 5: “The law presumes that a person intends the 
ordinary consequences of his voluntary acts.”, upon the 
grounds that this instruction shifted the burden of proof 
on the element of intent to the defense in violation of Due 
Process Clause of the Fourteenth Amendment. This 
objection was overruled by the trial Court and the 
Instruction was given. [Appendix p. 34], No instructions 
were given to the jury defining the classification, nature 
or effects of presumptions in criminal proceedings.

17



18

Under the common meaning of the word “presume,” the 
instruction directed the jury to believe the fact presumed 
without proof. Webster’s New Collegiate Dictionary 
(1977 ed.), “Presume,” def. No. 3 p. 911. The word, 
“intent,” means “purpose.” Webster’s New Collegiate 
Dictionary (1977 ed.): “Intent,” def. No. 1 (a) p. 601. In 
other words, Jury Instruction No. 5 misled the jury to take 
for granted that the Petitioner had the requisite intent or 
purpose to kill if his act was proven as causing Mrs. 
Jessen’s death. The effect of Jury Instruction No. 5 was to 
direct the jury to accept, without question, the existence of 
purpose in Petitioner’s act. This deprived Petitioner of his 
due process right to have a jury determination as to every 
element of the charge against him upon proof of guilt 
beyond a reasonable doubt.

Even if it is assumed for argument that the jury 
understood the meaning of the word, “presume,” as that 
term is used in Montana law, the Petitioner would still be 
deprived of his right to have a jury determination of the 
proof of every element of the charge against him beyond 
a reasonable doubt. A presumption under Montana law 
is, “[A] deduction which the law expressly directs to be 
made from particular facts.” Sec. 93-1301-3 R.C.M. 
1947; quoted supra, p. 4; or as otherwise stated, “[A]n 
assumption of fact that the law requires to be made from 
another fact or group of facts found or otherwise 
established in the action or proceeding.” Montana Rules 
of Evidence Rule 301(a). The particular presumption 
here at issue is statutorily stated to be a disputable 
presumption. Section 93-1301-7(3) R.C.M. 1947, quoted 
supra., p. 5. With respect to disputable presumptions,

18



19

Rule 301(b)(2) of the Montana Rules of Evidence states:

“All presumptions, other than conclusive presump­
tions, are disputable presumptions and may be 
controverted. A disputable presumption may be 
overcome by a preponderance of the evidence 
contrary to the presumption. Unless the presump­
tion is overcome, the trier of fact must find the 
assumed fact in accordance with the presumption.”

This rule codifies earlier Montana case law. Monahan v. 
Standard Motor Company, 96 Mont. 165, 173-74, 29 
P.2d 278 (1934). See also, Sec. 93-1301-5 R.C.M. 1947, 
quoted supra., p. 4. It is clear from these authorities that 
under Montana law Instruction No. 5 shifted the burden 
of proof on the element of purpose or knowledge, i.e., 
intent, to the Petitioner to prove by a preponderance of 
the evidence that he did not intend to kill.

The statement made by the Montana Supreme Court 
in its opinion on Petitioner’s appeal that,

“Defendant’s sole burden under Instruction No. 5 
was to produce some evidence that he did not intend 
the ordinary consequences of his voluntary acts not 
to disprove that he acted purposely or knowingly.,” 
[Appendix p. 50],

is without foundation in statute or rule, and ignores the 
plain meaning of this instruction. Further, this statement 
is not meaningful in terms of the facts of the case: As 
characterized by the Court itself, the testimony of Drs. 
Stratford and Nash was that Defendant may not have had 
the specific intent to kill at the time of the offense 
[Appendix p. 47], This was certainly “some evidence,” 
that Petitioner did not intend the ordinary consequences 
of his voluntary acts. If this was Petitioner’s sole burden 
under the presumption, he would have met it and there

19



20

would be no reason to state the presumption to the jury. 
Further, no instruction was given to the jury explaining 
to them that Instruction No. 5 required only the 
production of “some evidence.” The opinion of the 
Montana Supreme Court ignores the clear effect of 
Instruction No. 5 on the jury both under its common 
meaning and its meaning under Montana law.

At least four Federal Circuit Courts of Appeal have 
disapproved instructions embodying the concept ex­
pressed in Instruction No. 5. The history of this 
instruction in the Fifth Circuit can be traced to Mann v. 
United States, 319 F.2d 404 (5th Cir., 1963) cert, denied, 
375 U.S. 986, 84 S.Ct. 520, 11 L.Ed.2d 474 (1964) 
(Although, the Mann holding certainly does not 
represent the first time this question was dealt with. In 
fact, The Montana Supreme Court, itself, as early as 
1898, found an instruction of similar effect to be 
reversible error, State v. Judd, 20 Mont. 420; see also, 
State v. Schafer, 35 Mont. 217, 88 Pac. 792 (1920); and, 
State v. Garney, 122 Mont. 491,207 P.2d 506 (1949).) In 
the Mann case the Fifth Circuit Court of Appeals 
disapproved of an instruction which shifted the burden 
of proof on the element of intent to the Defendant, 
stating,

“If an inference . . . must be overcome with 
opposing evidence, then the inference becomes a 
presumption and places a burden on the accused to 
overcome that presumption.” p. 1246

Since Mann, cases too numerous to cite challenging the 
instruction have been brought in the Fifth Circuit. For 
economy reference may be made to the concise history of 
these cases as presented by Judge Clark, writing for the

20



21

Circuit sitting en banc, in United States v. Chiantese. 560 
F.2d 1244, 1245-1255 (1977). This state of affairs caused 
the Fifth Circuit, to direct that:

“No district Court in this Circuit shall include in its 
charge to the jury an instruction on proof of intent 
which in couched in language which could reason­
ably be interpreted as shifting the burden to the 
accused to produce proof of innocence.” United 
States v. Chiantese, supra., p. 1255.

Similarly, the Third Circuit recently banned the use of 
this type of Instruction in United States v. Garrett, 574
F.2d 778, (3rd Cir. 1978) Cert, denied ___ U.S.
----  S.Ct. 56 L.Ed.2d 67 (1978); wherein the Court
stated,

“Hereafter District Courts in this Circuit shall not 
use language in instructions that reasonably can be 
interpreted as shifting the burden to the accused to 
produce proof of innocence. This includes charges 
indicating that the law presumes a person to intend 
the natural and probable consequences of his 
knowing acts, as well as charges substantially 
similar to that given in this case.” p. 782

The Second Circuit strongly disapproved the instruc­
tion in United States v. Bertolotti, 529 F.2d 149,159 (2nd 
Cir. 1975.) and United States v. Barash, 365 F.2d 395 (2d 
Cir. 1966). The Ninth Circuit, has also disapproved of 
intent-presumption instructions. See, Block v. United 
States, 221 F,2d 786, 788-89 (9th Cir. 1955); and, 
Chappell v. United States, 270 F.2d 274, 279, 280 (9th 
Cir. 1959).

The rationale of all these Federal Circuit Courts of 
Appeal cases clearly shows that rather than requiring 
Petitioner to merely produce some evidence that he did

21



22

not intend to kill, Instruction No. 5, at the least, shifted 
to him the burden of proving by a preponderance of the 
evidence that he did not purposely or knowingly cause a 
death and more probably allowed the jury to assume 
intent to kill without proof.

This Court has held that the Due Process Clause 
requires of the States that in criminal prosecutions they 
prove every ingredient of an offense beyond a reasonable 
doubt and that they may not shift the burden of proof to 
the Defendant by presuming that ingredient upon proof 
of other elements of the offense. Mullaney v. Wilbur, 421 
U.S. 684, 44 L.Ed.2d 508, 95 S.Ct. 1881 (1975); 
Morrissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 
96 L.Ed. 288 (1952), and Patterson v. New York, 432 
U.S. 197, 53 L.Ed.2d 281, 295, 97 S.Ct. 2319 (1977). 
Instruction No. 5 instructed the jury in Petitioner’s trial 
to presume the element of purposely or knowingly 
causing the death, i.e. intent to kill, which was the very 
crux of the case, from the element of causing the death; 
this instruction thereby deprived Petitioner of his right to 
due process of law under the Fourteenth Amendment to 
the United States Constitution.

22



23

CONCLUSION AND PRAYER FOR RELIEF

Petitioner was charged and convicted of Deliberate 
Homicide committed purposely or knowingly. The 
element of this crime, that Petitioner purposely or 
knowingly caused a death was contested by the defense 
and presented a question for jury determination. Due 
process of law requires that every element of the crime 
charged be proved beyond a reasonable doubt. In Re 
Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed. 368 
(1970). Petitioner’s jury was, however, instructed that, 
“The law presumes a person intends the ordinary 
consequences of his voluntary acts.” This instruction 
shifted the burden of proof to Petitioner as to the intent 
element of the crime charged in violation of this Court’s 
holdings in Mullaney v. Wilbur, 421 U.S. 684, 44 
L.Ed.2d 508, 95 S.Ct. 1881 (1975) and Patterson v. New 
York, 432 U.S. 197, 53 L.Ed.2d 281, 97 S.Ct. 2319 
(1977).

The question presented by this case is the same as that 
presented in Morrissette v. United States, 342 U.S. 246, 
72 S.Ct. 240, 96 L.Ed. 288 (1952) wherein Justice 
Jackson analyzed the case as being presented on the 
theory that even if criminal intent were essential its 
presence should be decided by the Court as a presump­
tion of law, apparently conclusive. And wherein, the 
Court held that where intent of the accused is an 
ingredient of the crime charged its existence is a question 
of fact which must be submitted to the jury, and that the 
Trial Court may not withdraw or prejudge the issue by 
instruction that the law raises a presumption of intent 
from an act.

23



24

To maintain the integrity of the right to trial by jury, it 
is essential that the jury and not the Court make the 
determination as to what inferences are reasonable to be 
drawn from the particular facts of the case, as those facts 
can be determined from the evidence, and what 
inferences shall not be drawn. The proper role of the 
Court is but to instruct the jury on the standard of proof 
applicable.

Surely the time has come to put and end to the use of 
an instruction which deprives defendants of their 
Constitutional right to due process of the law with regard 
to a right so essential to criminal justice as the standard of 
proof of guilt beyond a reasonable doubt. And, that this 
instruction be ruled finally and conclusively to be 
reversible error no longer acceptable in the Courts of the 
Nation.

WHEREFORE, Petitioner prays that his conviction 
of the crime, Deliberate Homicide committed purposely 
or knowingly, be reversed.

Respectfully submitted,

/ s/ Byron W. Boggs 
Byron W. Boggs 
212 East Park Avenue 
Anaconda, Montana 59711

Court-appointed Attorney fo r  
Petitioner

24



In The

Supreme Court of the United States
October Term, 1978

----------- o------------
No. 78-5384

■--------------------------------- o ------------------------— -

DAVID SANDSTROM, 

vs.
Petitioner,

STATE OF MONTANA,
Respondent.

------------- o--------------
BRIEF OF RESPONDENT

------------- o-------------

M ic h a el  T. Greely  
Attorney General 
State of Montana 

State Capitol 
Helena, Montana 59601

M ik e  M cCarter 
Assistant Attorney General
D e n n y  M oreen  
Assistant Attorney General
J o h n  R adonich  
Deer Lodge County Attorney 

Anaconda, Montana 59711
Attorneys for Respondent

B yron W. B oggs 
212 East Park Avenue 
Anaconda, Montana 59711 

Attorney for Petitioner

25



1

TABLE OF CONTENTS

Question Presented ..........................................................  1

Statutes Involved ............................................................  1

Summary of the Argument ...;................................... ...... 3

Argument:

P ages

I. The petition should be dismissed because the de­
fendant admitted all of the elements of the crime 
charged: error, if any, in giving an instruction 
that “ the law presumes that a person intends 
the ordinary consequences of his voluntary acts ” 
was harmless beyond a reasonable doubt. ........... 4

II. The instruction that the law presumes that a 
person intends the ordinary consequences of his
voluntary acts did not relieve the state of its 
burden of proving all elements of deliberate 
homicide beyond a reasonable doubt....................  13

A. The presumption as used in the case below
placed a burden of production on the peti­
tioner.....................................................................  16

B. The presumption in this case comports with
the due process standard's under B a r n e s  v . 

U n ite d  S ta t e s .  .........................................   18

C. The instructions as a whole required the
state to prove all elements beyond a, reason­
able doubt...... ............     21

Conclusion ......................   22

27



ii

G A SES C IT E D

P ag es

Agnew v. United States, 165 U. S. 36, 50 (1897)     15

Barnes v. United States, 412 U. S. 837 (1973) .......... 3,19,
20, 21, 22

Bishop v. People, 165 Colo. 423, 439 P. 2d 342 (1968) ... 18

Bollenbach v. United States, 326 U. S. 607, 614 (1946) 16

Brown v. United States, 411 U. S. 223, 231 (1973) ... 12

Chapman v. California, 386 U. S. 18, 24, rehearing 
denied, 386 U.S. 987 (1967) .......................... ........... 12

Cramer v. United States, 325 U. S. 1, 31 (1944) ..... :... 15

Cullin v. State, 565 P. 2d 445 (Wyo., 1977) ................  18

Cupp v. Naughten, 414 IT. S. 141, 146 (1973) ............... 21

Hall v. 'State, 49 Ala. 381, 272 So. 2d 590 (1973) .......  17

Harrington v. California, 395 U. S. 250, 254 (1969) ...  12

In re Winship, 397 U. S. 358 (1970) ...................... 16,19, 20

McCarthy v. Bruner, 323 U. S. 673 (1944) ..................  13

Mullaney v. Wilbur, 421 U.S. 684 (1975) ...16,19,20,21,22

Needelman v. United States, 362 U. S. 600 (1960) ....... 13

Patterson v. New York, 432 U. S. 197 (1977) .......16,19, 20

Patterson v. State, 239 Ga. 409, 238 S. E. 2d 2 (1977) 18,19

Radio Officers v. Labor Board, 347 U. S. 17, 45
(1953) ............................. ........... ................................... . 15

Reynolds v. United States, 98 U. S. 244 (1878) .........  15

Schneble v. Florida, 405 U. S. 427, 430 (1972) ...........  12

28



I l l

State v. McKenzie, 581 P. 2d 1205, 1232 (Mont. 1978) 3, 7

State v. Preis, 89 Ariz. 336, 362 P. 2d 660 (1961) .... . 18

State v. Roberts, 88 Wash. 2d 337, 562 P. 1259 (1977) 17

State v. Sandstrom, — Mont. -—, 580 P. 2d 106
(1978) .. ,.......... ........................................................ .......  3

State v. Vandiver, 584 P. 2d 978 (Wash., 1978) .._... 18

State v. Warbritton, 211 Kan. 506, 506 P. 2d 1152
(1973) .............. ...............................................................  18

Turner v. United States, 396 U. S. 489, 406 (1970) ... 18

United States v. Gainey, 380 U. S. 63 (1965) .......... „...  19

STATUTES CITED
Section 94-5-101 (1), R . C. M. 1947 ...............................  5

•Section 94-2-101 (27), R. C. M. 1947 ........... ... .............. 3,6

Section 94-5-102, R. C. M. 1947 .....................................3, 4, 6

Section 94-5-105 ( 2), R. C. M. 1947 ............... ................  1, 3

Montana Criminal Code 1973, Annot. at 73   ............  5

Montana Criminal Code 1973, Annot. at 115 ..............  5

TEXTS CITED
1 G r e e n le a f  O n E v id e n c e , 16th Ed., § 13, p. 113 (1899) 13

Thayer, A  P r e l im in a r y  T r e a t i s e  o n  E v id e n c e , p.
326 (1898) ...... ............. ............................. ........... ............. ............. .............  14

1 J o n e s  O n  E v id e n c e ,  % 130, p. 211 (2nd Ed., 1926) ...  15

C A S E S  C IT E D — C ontinued

P ages

29



IV

Vol. 2, Stephen, H is to r y  o f  C r im in a l  L a w  o f  E n g ­

la n d , p. I l l  (1883) .. ;.................................................14,15

Clark and Marshall, C r im e s , p. 243, $ 5.03 (6th 
Ed. 1958) .......... ....... ..........................._..... ..................  14

RULE CITED
Rule 301 (b) (2), The Montana Rules of Evidence ...  16

T E X T S  C IT E D — C ontinued

P ages

30



In The

Supreme Court of the United States
October Term, 1978

--------------------- o----------------------

No. 78-5384

DAVID SANDSTEOM,
P e t i t io n e r ,

vs.
STATE OF MONTANA,

R e s p o n d e n t .

BRIEF OF RESPONDENT

QUESTION PRESENTED
The question presented, as set forth in petitioner’s 

brief, raises the following subsidiary issue:

Did petitioner’s admission of the requisite crim­
inal mental state at trial render the error, if any, 
harmless ?

■----------------------- --— o ---------------------------------

STATUTES INVOLVED
In addition to those statutes set forth in the peti­

tioner’s brief, this case involves section 94-2-105 (2), 
R. C. M. 1947, which provides:

C a u sa l r e la t io n s h ip  b e tw e e n  c o n d u c t a n d  r e s u l t .

(1) Conduct is the cause of a result if:

31



2

(a) without the conduct the result would not have 
occurred; and

(b) 'any additional causal requirements imposed 
by the specific statute defining the offense are satisfied.

(2) If  purposely or knowingly causing a result 
is an element of an offense, and the result is not within 
the contemplation or purpose of the offender, either 
element can nevertheless be established i f :

(a) the result differs from that contemplated 
only in the respect that a different person or different 
property is affected, or that the injury or harm caused 
is less than contemplated; or

(b) the result involves the same kind of harm 
or injury as contemplated but the precise harm or in­
jury was different or occurred in a different way, unless 
the actual result is too remote or accidental to have a 
bearing on the offender’s liability or on the gravity 
of the offense.

(3) If negligently causing a particular result 
is an element of an offense, and the result is not within 
the risk of which the offender is aware, or should be 
aware, either element can nevertheless be established 
if:

(a) the actual result differs from the probable 
result only in the respect that a different person or 
different property is affected, or that the actual injury 
or harm is less; or

(b) the actual result involves the same kind of 
injury or harm as the probable result, unless the actual 
result is too remote or accidental to have a bearing on 
the offender’s liability or on the gravity of the offense.

--------------- o—.—  -------- .

32



3

SUMMARY OF THE ARGUMENT

The respondent, as an initial matter, requests this 
Court to reconsider its grant of a Writ of Certiorari, or in 
the alternative to affirm petitioner’s conviction of deli­
berate homicide because error, of any, was harmless beyond 
a reasonable doubt. The State was not required to prove 
that petitioner specifically intended the death of his vic­
tim. I t was sufficient, that he committed the homicide 
knowingly, i.e., that he was aware of the high probability 
that death would result from his attack. Sections 94-2- 
101(27), 94-5-102 and 94-5-106(2), R, C. M. 1947, and see 
S ta t e  v . M c K e n z ie , 581 P. 2d 1205, 1232 (Mont. 1978). Pe­
titioner’s confession, which was reaffirmed as accurate in 
defense counsel’s statement and his own experts ’ testimony 
unequivocally stated that petitioner caused the death with 
the intent to inflict severe injury knowing his actions would 
probably result in her death. Therefore, even if the in­
struction was error, the error was harmless. The Writ 
should be dismissed as improvidently granted.

The challenged presumption originated in the common 
law, and is no more and no less than common sense and 
experience. I t  simply allows the jury to look at facts and 
circumstances of the crime as well as the accused’s version 
in determining his state of mind. The presumption did not 
shift to petitioner the burden of persuasion with respect 
to any element of the offense charged or relieve the prose­
cution of its burden of proving all elements beyond a rea­
sonable doubt. At most, it placed a burden of production 
on the petitioner. S ta t e  v .  S a n d s tr o m ,  — Mont. —, 580 
P. 2d 106 (1978). The presumption has the same form and 
effect as the inference in B a r n e s  v . U n ite d  S ta t e s ,  412 U. S.

33



4

837 (1973), and does not allow the jury to presume one 
element of the offense from proof of the other elements.

-------------- o---------------

ARGUMENT
I.

The petition should be dismissed because the 
defendant admitted all of the elements of the 
crime charged: error, if any, in giving an instruc­
tion that “the law presumes that a person intends 
the ordinary consequences of his voluntary acts” 
was harmless beyond a reasonable doubt.
Although the Court has already granted a W rit of Cer­

tiorari in the present case, the respondent urges the Court 
to reconsider its grant of the Writ, or in the alternative 
to affirm petitioner’s conviction. Petitioner’s confession, 
which he expressly reaffirmed during trial, and the testi­
mony of >a psychiatrist and a psychologist on petitioner ’s 
behalf admit without contradiction the existence of the es­
sential elements of the crime of deliberate homicide.

The crime of “ deliberate homicide”  is defined in sec­
tion. 94-5-102, R. C. M. 1947, which was enacted in 1973 as 
a part of the “ Montana Criminal Code.” 1 The Criminal

1 Subsequent to the decision of the Montana Supreme Court 
in the case below, State v. Sandstrom, 580 P. 2d 106 (1978), 
the Montana legislature recodified the statutes of Montana, 
supplanting the 1947 Revised Codes of Montana (herein­
after designated as R. C. M. 1947) with the Montana Code 
Annotated (Mont. Code Annot.). The recodification was ef-

(Continued on next page)

34



5

Code abolishes definitions of mental states historically 
associated with criminal culpability, substituting more un­
derstandable and straightforward concepts. One of the 
stated purposes of the Code was to do away with the ill 
defined and nebulous terms traditionally describing crim­
inal mental states:

A major problem of prior Montana criminal law was 
the use on the code of numerous terms affecting cul­
pability that were largely undefined. Under the new 
Code, the mental states required for various degrees
of culpability are defined carefully in a heirarchy. 
* * #

Annotator’s Notes, Montana Criminal Code 1973, Annot. at 
73. With respect to homicide, the common law mental 
states of premeditation, deliberation and malice afore­
thought have been abandoned. Annotator’s Notes, Mon­
tana Criminal Code 1973, Annot. at 115. Under the new 
Criminal Code, “ A person commits the offense of criminal 
homicide if he purposely, knowingly or negligently causes 
the death of another human being.”2 Section 94-5-101 (1),

(Continued from previous page)
fective January 1979. (Montana Legislature, House Bill 1.) 
The following is a cross-reference of pertinent sections here­
in: For the purposes of this case respondent will continue 
to use Revised Codes of Montana section numbers.

Revised Codes of Montana 
94-2-101 (27) 
94-2-101 (52) 
94-2-105 (2)
94-5-101 (1)
94-5-102
94-5-103

Montana Codes Annotated 
‘ 45-2-i 01 (27) 

45-2-101 (52) 
45-2-105 (2) 
45-5-101 
45-5-102 
45-5-103

2 Section 94-5-101 (1), R. C. M. 1947:
Criminal homicide. A person commits the offense of 
criminal homicide if he purposely, knowingly or negli­
gently causes the death of another human being.

35



6

R- C. M. 1947. Criminal homicide constitutes deliberate 
homicide if, “ it is committed p u r p o s e ly  o r  k n o w in g ly ,  . . . ” 3 

Section 94-5-102, R. C. M. 1947. The requisite mental state 
for deliberate homicide under Montana law is phrased in 
the alternative. The death may be caused purposely or  
k n o w in g ly . “ Purposely” is defined by section 94-2- 
101 (52), R. C.M. 1947:

A person acts purposely with respect to a result or to 
conduct described by a statute defining an offense if 
it is his conscious object to engage in that conduct or 
to cause that result.

“ Knowingly” is defined by section 94-2-101(27), R. C. M. 
1947:

A person acts knowingly with respect to conduct or to 
a eirmcumstanee described by statute defining an of­
fense when he is aware of his conduct or that the cir­
cumstance exists. A person acts knowingly with re­
spect to the result of conduct described by a statute 
defining an offense when he is aware that it is highly 
probable that such result will be caused by his conduct.

3 Section 94-5-102, R. C. M. 1947:
Deliberate homicide. (1) Except as provided in 94-5-103 
(1) (a), criminal homicide constitutes deliberate homi­
cide if:

(a) it is committed purposely or knowingly; or
(b) it is committed while the offender is engaged 

in or is an accomplice in the commission of, an attempt 
to commit, or flight after committing or attempting to 
commit robbery, sexual intercourse without consent, 
arson, burglary, kidnapping, felonious escape, or any 
other felony which involves the use or threat of physi­
cal force or violence against any individual.

If the homicide is committed "purposely and knowingly" 
but "under the influence of extreme mental or emotional 
distress for which there is reasonable explanation or excuse," 
the crime is reduced to mitigated deliberate homicide. Sec­
tion 94-5-103, R. C. M. 1947.

36



7

A defendant need not intend the death of his victim; it is 
sufficient that he was aware that it was highly probably 
that his actions would result in the death of another human 
being. Thus, in S t a t e  v . M c K e n z ie , 581 P. 2d 1205, 1231- 
1232 (Mont. 1978), the Montana Supreme Court generally 
described the requisite mental state for deliberate homicide 
as follows:

The prescribed mental state of “ purposely or know­
ingly” applies to each element of the crime of deli­
berate homicide, Section 94-2-103 (1) and (2), R. C. M. 
1947. To be guilty of deliberate homicide, therefore, 
one must e i th e r  have the purpose to kill o r  k n o w  th a t  i t  
w a s  h ig h ly  p r o b a b le  th a t  h is  a c tio n s  w o u ld  r e s u l t  i n  th e  
d e a th  o f  a n o th e r  hum ,an  b e in g .

In Montana a person commits the offense of deliberate 
homicide if he purposely or knowingly causes the 
death of another human being. Sections 94-5-102 (1) 
(a), 94-5-101 (1), R. C. M. 1947. The statutorily de­
fined elements of the offense, each of which the State 
must prove beyond a reasonable doubt, are therefore 
causing the death of another human being with the 
knowledge that you are causing or with the purpose to 
cause the death of that human being. A  p e r s o n  a d s  
“ w i th  k n o w le d g e ”  o r  “ k n o w in g ly ” “ # * * w i th  r e ­
s p e c t  to  th e  r e s u l t  o f  c o n d u c t d e s c r ib e d  b y  a  s ta tu te  
d e f in in g  a n  o f fe n s e  w h e n  he  is  a w a r e  th a t  i t  is  h ig h ly  
p r o b a b le  th a t  s u c h  r e s u l t  w il l  be c a u se d  b y  h is  cow- 
d u c t.*  * * ” Section 94-2-101 (27), R. C. M. 1947. 
(Emphasis added.)4

Petitioner in his quotation of M c K e n z ie  at p. 13 of his
brief has omitted the italicized language.

4 But see note 6, infra.

37



Petitioner’s argument in the present dase derails in 
its exclusive focus on the mental state of “ purposely” and 
its complete disregard of the alternative mental state of 
“knowingly.” His arguments are predicated upon an as­
sertion that petitioner did not have the “ specific intent” 
to kill the deceased, Annie Jessen.

In his opening statement to the jury (App, 6) peti­
tioner’s attorney told the jury that petitioner admitted the 
facts stated in his prior confession. (App. 10). In that 
confession, petitioner admits he purposely and intentionally 
struck and stabbed the deceased:

I got worried that someone would hear her so I picked 
up the shovel and hit her with it. I hit her in the back 
of the head. I thought it would stop her screaming, 
but it never. I  couldn’t understand -what she was 
screaming about.
She started to wheel her wheelchair and I got scared 
and didn’t know what to do. There was a knife laying 
up on the counter, so I grabbed that and stabbed her. 
I stabbed her in the back five times. The knife went 
through the back of the wheelchair. She quit moving 
around and there was blood all over the place.

The thrust of his defense was that he only intended to 
silence her, not to kill her.5

8

5 In opening argument, defense counsel informed the jury 
that defendant would demonstrate that he took the life of 
Mrs. Jessen "impulsively", without planning or delibera­
tion. (App. 6-8.) He closed by requesting:

* * * *
I will ask of you at that time to look at the conse­
quences and return a verdict of not guilty of deliberate 
homicide requested by the prosecutor but a verdict of 
mitigated homicide based on the position that the de-

(Continued on the next page)

38



9

Petitioner’s evidence as to Ms state of mind consisted 
of the testimony of a psychiatrist and a psychologist. That 
testimony, along with petitioner’s confession, may be fairly 
characterized as raising an issue as to whether he spe­
cifically intended Annie Jessen’s death. However, that 
same confession and expert testimony established without 
contradiction that while beating and stabbing Annie Jessen 
he was aware of the high probability that his victim would 
die as the consequence of his attack.

Hr. William Stratford, a psychiatrist, testifying on de­
fendant’s behalf, was asked if he had an opinion concern­
ing whether petitioner “ deliberated” as to the death of the 
deceased. The doctor responded:

I  understand the question, I am not sure of the con­
text when you are using the word deliberation. If you 
use it in the sense that it was planned, I don’t think 
that it was planned to cause her death. I f  you, a re  
u s in g  th e  t e r m  d e l ib e r a t io n  to  in d ic a te  th a t  h e  p e r h a p s

(Continued from previous page)
fendant did not act with knowledge or purpose in tak­
ing Mrs. Jessen's life. Thank you. (App. 8.) (Emphasis 
added.)

The closing request was reflected in jury instruction No. 13 
(App. 37) wherein the court instructed:

If you are convinced beyond a reasonable doubt that 
the defendant, David Sandstrom, caused the death of 
Annie Jessen on November 1, 1976, in Deer Lodge 
County, Montana, but you are not convinced beyond 
a reasonable doubt that the defendant caused the death 
of Annie Jessen purposely or knowingly, then you 
should find the defendant guilty of mitigated deliberate 
homicide.

The instruction was erroneous. “ Purposely or knowingly" is 
an element of both deliberate and mitigated deliberate 
homicide. Sections 94-5-102 and 94-5-103, R. C. M. 1947, 
and see Patterson v. New York, 432 U. S. 197, 206-207 
(1977). However, in convicting petitioner of deliberate 
homicide, the jury implicitly rejected petitioner's assertion 
that he did not act “ purposely or knowingly."

39



10

p u r p o s e ly r i n f l i c t e d  d a m a g e  u p o n  Ite r  i n  th e  d e l ib e r a te  
se n s e , u s in g  th e  w o r d  in  th a t  c o n te x t ,  I  t l i in h  th a t  is  
t r u e , h e  d id  d e l ib e r a te ly  do  th a t .  H e  d id  d e l ib e r a te ly  
h a r m  h e r . (Emphasis added.)

(App. 16.) The doctor was then asked, “ Do you believe 
that he formed the intent to take her life!” The answer 
was, “ In my opinion his intention was to silence Mrs. 
Jessen.” Following that same line of questioning, peti­
tioner’s attorney asked, “ And you believe Ms intention 
was to stop her from screaming?” His answer was, “ Yes.” 
(App. 17.) The doctor later reiterated his opinion:

And I think in my opinion that when he was con­
fronted with her presence and confronted with the 
screaming that his intention was at that point to 
'silence Mrs. Jessen a n d  w h e n  h e  w a s  u n a b le  to  do  
so  w i th  th e  s h o v e l ,  p u r s u e d  th e  c o u r se  o f  e v e n ts .  
(Emphasis added.)

(App. 17.) On cross-examination the doctor further de­
limited his opinion of petitioner’s mental state:

In my opinion he purposely hit her with the shovel 
first and he purposely picked up the knife and h e  
purposely inflicted the stab wounds on Mrs. Jessen.

(App. 20.) Defendant’s other expert witness, Dr. Nash, a 
psychologist, testified:

In my opinion he did not anticipate or plan the death 
of Mrs. Jessen. He was in the reacting—at the time 
of the offense I believe his mental condition could best 
be described as a condition of—a range of frustration 
and anger and that lie was trying to prevent her from 
screaming and that if that had occurred at some 
earlier stage he may not have gone any further, b u t  
th a t  he  to o k , in c r e a s in g ly  m o r e  s e v e r e  s te p s  to  t r y  to  
s to p  h e r  f r o m  s c r e a m in g  a n d  th e n  th a t  u l t im a te ly  
b r o u g h t  h e r  to  h e r  d e a th . (Emphasis added.)

40



11

(App. 27.)

Finally, both Dr. Stratford and Dr. Nash testified 
concerning the petitioner’s awareness of the consequences 
of his acts. Dr. Stratford testified:

In my opinion he did—he did not intend to kill her, 
b u t  th a t  h e  w a s  a w a re  o f  th e  fa c t  t h a t  th e  in s t r u m e n ts  
t h a t  h e  u t i l i z e d  w e r e  c a p a b le  o f  c a u s in g  h e r  d e a th .  
(Emphasis added.)

(App. 21.)

Dr. Nash, in a response to the prosecutor’s questions, 
testified:

Q. And did he have the capacity to know when he 
picked up the shovel that hitting Mrs. Jessen 
would harm her?

A. Yes.
Q. When he began stabbing Mrs. Jessen, did he have 

the capacity to know that stabbing her could 
result in her death?

A. I  believe he had the basic capacity to do so.
Q. To know that this would be the result?
A. Yes.

(App. 31-32.) In summary, in attempting to show that he 
did not specifically intend Annie Jessen’s death, petitioner 
affirmatively established that he was aware of the high 
probability that his actions would cause the death of 
Annie Jessen. Petitioner’s version of the crime amounts 
to a confession—that he “ knowingly”  caused the death of 
Annie Jessen.6 By the time the jury was instructed, the

6 Deliberate homicide could have been established even if 
the petitioner was unaware of the high probability that his

(Continued on the next page)

41



12

petitioner has already admitted the existence of all of the 
elements required to prove that petitioner “ knowingly” 
caused the death of Annie Jessen. Thus, even if the in­
struction that, “ The law presumes that a person intends 
the ordinary consequences of his voluntary acts,” was 
error, the error was harmless.

Respondent acknowledges that it carries a heavy 
burden in showing that error, if any, was harmless. See 
C h a p m a n  v .  C a li fo r n ia , 386 U. S. 18, 24, rehearing denied, 
386 IX. S. 987 (1967). Nonetheless, not every “ departure 
from constitutional procedures should result in an auto­
matic reversal . . . ” H a r r in g to n  v . C a li fo r n ia , 395 U. S. 
250, 254 (1969); and C h a p m a n , 22. Evidence of guilt in 
a particular case may be so “ overwhelming” and “ cumu­
lative” , H a r r in g to n  v . C a l i fo r n ia , 254; S c h n e h le  v .  F lo r ­

id a , 405 U. S. 427, 430 (1972); or so “ cumulative”, “ over­
whelmingly” and “ largely uncontroverted”, B r o w n  v .  
U n ite d  S ta t e s ,  411 U. S. 223, 231 (1973), ‘that it compels a 
conclusion that there was no reasonable possibility that 
the error affected the outcome of the trial, see C h a p m a n ,

(Continued from previous page)
action would cause Mrs. Jessen's death or was aware of the 
high probability that his acts would inflict serious bodily 
injury on Mrs. Jessen. Section 95-2-105 (2), R. C. M. 1947, 
provides:

If purposely or knowingly causing a result is an ele­
ment of an offense, and the result is not within the 
contemplation or purpose of the offender, either ele­
ment can nevertheless be established if:

(a) * * *
(b) the result involves the same kind of harm or 

injury as contemplated but the precise harm or injury 
was different or occurred in a different way, . . .

The section was not considered in McKenzie, quoted supra 
at p. 3.

42



13

24. This is one of those cases: For while petitioner 
focused his trial efforts upon persuading the jury that he 
did not specifically “ intend” Annie Jessen’s death, he was 
presenting uncontroverted evidence that he “ knowingly” 
caused her death.

Therefore, the facts of this ease do not present a 
justiciable federal question and the writ should be dis­
missed as improvidently granted. M c C a r th y  v . B r u n e r ,  
323 U. S. 673 (1944), N  e e d e lm a n  v . U n ite d  S ta t e s ,  362 
U. S. 600 (1960).

II.

The instruction that the law presumes that a 
person intends the ordinary consequences of his 
voluntary acts did not relieve the state of its 
burden of proving all elements of deliberate hom­
icide beyond a reasonable doubt.
The presumption that a person intends the ordinary 

consequences of his voluntary acts is not new. Rather, it 
is a rule of common experience handed down through the 
common law from antiquity. Gfreenleaf asserts that the 
presumption is found in the Mosaic code in the form that 
intent to murder is inferred from the deliberate use of a 
deadly weapon. 1 G r e e n le a f  O n  E v id e n c e , 16th Ed., § 13, 
p. 113 (1899). The rule is nothing more than a restate­
ment of human experience and common sense. Thayer 
describes this application of common sense to law:

Many facts and groups of facts often recur, and when 
a body of men with a continuous tradition has carried 
on for some length of time this process of reasoning 
upon facts' that often repeat themselves, they cut

43



14

short the process and law down a rale. To such facts 
they affix, by a general declaration, the character and 
operation which common experience has assigned to 
them.

Thayer, A  P r e l im in a r y  T r e a t i s e  o n  E v id e n c e , p. 326 
(1898).

The reasons for applying this maxim to the criminal 
law is obvious:

1 do not think the rule in question is really a rule 
of law, further or otherwise than as it is a rule of 
common sense. The only possible way of discovering 
a man’s intention is by looking at what he actually 
did, and by considering what must have appeared to 
him at the time the natural consequence of his con­
duct.

Vol. 2, Stephen, H is to r y  o f  C r im in a l  L a w  o f  E n g la n d ,  p. 
I l l  (1883).

In other words, the rule is one of a logical probability 
from the usual course of events. Clark and Marshall, 
C r im e s , p. 243, § 5.03 (6th Ed. 1958). Thayer thought 
such presumptions not to be even part of the law of evi­
dence :

In whatever form they are made or ought to be made, 
their character is the -same, that of general maxims 
and legal reasoning, having no peculiar relation to the 
law of evidence.

Thayer, supra, p. 335.

This presumption is related to a recurring problem of 
the criminal justice system, specifically the frequent con­
fusion of motive and intent. Stephen believed the exist­
ence of the presumption is explained by the distinction 
between intention and motive:

44



15

It is very common to say that a man’s intentions were 
good when it is meant that his motives were good, and 
argue that his intention was not what it really was, 
because the motive which lead him to act as he did was 
the prevailing feeling in his mind at the time when he 
acted rather than the desire to produce the particular 
result which his conduct was intended to produce. This 
confusion of ideas not unfrequently leads to failures of 
justice.

Stephen, supra, 110. Evidentiary scholars hold that the 
presumption prevents an accused from using his ultimate 
motive to relieve himself of the immediate intent of his 
acts.

Notwithstanding the compelling force o f  the reason 
underlying this presumption, it has often been sub­
jected to criticism which has challenged its necessity. 
But it has withstood the attacks, safe on its foundation 
of authority and public policy. It will readily be seen 
that were no such presumption raised, crime would 
still more often go unwhipped of justice, and the crim­
inal could carry his “I don’t mean it” as a safe and 
certain talisman to keep him immune from the conse­
quences of his misdemeanor.

1 J o n e s  O n  E v id e n c e , § 130, p. 211 (2nd Ed., 1926).

In other words, the presumption is utilized to tell the 
jury it does not have to accept the defendant’s version as 
to his state of mind but that it may also look to defendant’s 
acts and the facts and circumstances of the crime to deduce 
or infer his state of mind.

This Court in following the 19th century scholars has 
invoked the application of the presumption on several oc­
casions. R a d io  O f f ic e r s  v . L a b o r  B o a r d , 347 U. S. 17, 
45 (1953), C r a m e r  v . U n i te d  S ta t e s ,  325 U. S. 1, 31 (1944), 
A g n e w  v . U n i te d  S ta t e s ,  165 U. S. 36, 50 (1897); R e y n o ld s  
v . U n i te d  S ta te s ,  98 U. S. 244 (1878).

45



16

A. The presumption as used in the case 
below placed a burden of production on the 
petitioner.
Petitioner asserts that the presumption relieves the 

state of its burden of proving the requisite mental state of 
deliberate homicide beyond a reasonable doubt, citing I n  re  
W in s M p , 397 U. S. 358 (1970'), M u lla n e y  v .  W ilb u r , 421 
U.S. 684 (1975), and P a t te r s o n  v . N e w  Y o r k ,  432 TJ. S. 197 
(1977). Crucial to petitioner’s contention is his character­
ization of the effect of the jury instruction. Contrary to 
his position, the Montana Supreme Court found, and re­
spondent submits, that the use of the presumption in this 
case does not relieve the state of proving all the elements 
of the crime charged beyond1 a reasonable doubt. Rule 
301 (b) (2) of The Montana' Rules of Evidence provide that 
a disputable presumption must be overcome by a prepond­
erance of evidence. Petitioner argues this was the burden 
placed on him by the instruction. However, the jury was 
given no instructions describing or defining the effect of 
presumption. The presumption was given in a simple one 
sentence statement without further explanation. Statutory 
provisions and rules of court defining the applications and 
limitations of presumptions and inferences have no appli­
cation to the inquiry. The question is presented, what is 
the effect of the presumption when the jury is not given 
direction with regard to its use?

Initially, the effect of presumptions is not without 
doubt or controversy. “ [LJegal presumptions involve 
subtle conceptions to which not even judges always bring 
clear understanding.” B o lle n b a c h  v . U n i te d  S ta te s ,  326 
U. S. 607, 614 (1946). The term “ presumption” has been

46



17

subject to divergent definitions and applications,7 as can 
be particularly illustrated in the case of the presumption 
that the law presumes that a person intends the ordinary 
consequences of his voluntary acts. That presumption has 
been used in connection with determining whether a prima 
facia case has been established.8 I t has also been used to 
supply by implication an allegation.

More specifically, in the context of the present case, 
courts have differed as to the effect of the presumption 
when given as a jury instruction without further explana­
tions as to its use by the jury. State courts have reached 
conclusions as diverse as the locations of the courts.

The Alabama Supreme Court concludes that the in­
struction is misleading in that the jury could believe that 
the occurrence of the particular facts giving rise to the pre­
sumption shifts the burden of proof of knowledge or intent. 
H a ll  v .  S ta t e ,  49 Ala. 381, 272 S. 2d 590 (1973). The Wash­
ington court holds that when the operation of the presump­
tion is not qualified it has the effect of requiring the de­
fendant, by some unexplained standard of proof, to refute 
the presumption.. (This unexplained standard is charac­
terized as more than a shifting of the burden of produc­
tion.) S t a t e  v . R o b e r ts , 88 Wash. 2d 337, 562 P. 1259 
(1977). The Kansas court holds the unqualified presump­
tion has a conclusive effect and required that the jury be

7 See generally Thayer, supra, ch. 8-9; Wigmore, Evidence 
(3rd Ed., 1940) §§2490-2540; Morgan, Some Observations 
Concerning Presumptions (1931), 44 Harv. L. Rev. 906; Den­
ning, Presumptions and Burdens, (1945) 61 L. Q. Rev. 379.

8 E. g., State v. Walker, 35 N. C. App. 182, 241 S. E. 2d 89, 921 
(1978); State v. Holley, 174 Conn. 22, 381 A. 2d 539, 541 
(1977).

47



18

instructed that the presumption can be overcome by con­
trary evidence. S t a t e  v . W a r b r i t to n ,  211 Kan. 506, 506 P. 
2d 1152 (1973).

On the other hand, the Arizona court finds the un­
qualified presumption to be nothing more than a prirna 
facia inference which shifts the burden of production to 
the defendant. S t a t e  v . P r e is , 89 Ariz. 336, 362 P. 2d 660 
(1961). Arizona’s position is supported by courts of other 
states, including the courts of Washington and Kansas, 
which hold that if other instructions clearly indicate the 
burden of proof is on the prosecution to prove every ele­
ment beyond a reasonable doubt, the unqualified instruc­
tion does not shift any burden of proof to the defendant. 
S t a t e  v .  V a n d iv e r , 584 P. 2d 978 (Wash. 1978); S t a t e  v . 
W a r b r i t t e n ,  supra; B is h o p  v .  P e o p le , 165 Colo. 423, 439 P. 
2d 342 (1968); C u llin  v . S ta te ,  565 P. 2d 445 (Wyo., 1977); 
and cf. P a t t e r s o n  v . S ta t e ,  239 Ga. 409, 238 S. E. 2d 2 
(1977); T u r n e r  v . U n i te d  S ta t e s ,  396 U. S. 489, 406 (1970).

The Montana Supreme Court has adopted the latter 
position in its decision below, finding the unqualified in­
struction to shift o n ly  the burden of production. I t said:

Defendant’s sole burden under instruction No. 5 was 
to produce some evidence that he did not intend the 
ordinary consequences of his voluntary acts, not to dis­
prove that he acted “ purposely” or “ knowingly” .

By so ruling, the Montana court adopted the interpreta­
tion of the presumption espoused by Stephen, Jones and 
Thayer.

B. The presumption in this case comports 
with the due process standards under Barnes v. 
United States.

48



19
Petitioner’s reliance on W in s h ip ,  M u l la n e y  and P a t t e r ­

s o n  is misplaced. M u lla n e y  precludes the use of a pre­
sumption which establishes one element of an offense after 
the jury finds the other elements to exist. In other words, 
it precludes the use of an elemental presumption which 
shifts the burden of persuasion to the defendant to dis­
prove the element so established.

The presumption in this case differs. It is an evi­
dentiary presumption and does not arise automatically on 
the finding of the other elements of the offense. Bather, 
the presumption comes into use only after, the jury is 
satisfied as to the existence of the additional certain pre­
liminary fact that the result (death) is an “ ordinary con­
sequence” of the act.

Further, the presumption did not place a burden of 
persuasion of the petition, but merely shifts the burden 
of production. The burden of proving all the elements 
remains on the prosecution. The presumption is of the 
same effect as the inference approved in B a r n e s  v . U n ite d  
S ta t e s ,  412 U. S. 837 (1973). Compare T u r n e r  v . U n ite d  
S ta t e s ,  supra, 396 U. :S. 489 (1970); U n ite d  S ta t e s  v .  
G a in e y , 380 U. S, 63 (1965).

The jury instruction considered in B a r n e s  was to the 
effect that from unexplained possession of recently stolen 
property the jury could infer knowledge that the property 
was stolen. B a r n e s ,  839. The instruction was a traditional 
common law inference transported from England and in­
fused into the American criminal system. B a r n e s ,  843- 
844. It has consistent and longstanding judicial approval. 
B a r n e s , 844. In passing upon the constitutionality of the 
inference the Court used the test long ago established by 
the common law theoreticians :

49



20

The evidence established that petitioner possessed re­
cently stolen treasury checks payable to persons he 
did not know, and it provided no plausible explana­
tion for such possession consistent with innocence. 
On the basis of this experience alone c o m m o n  se n se  
a n d  e x p e r ie n c e  tells us that petitioner must have 
known or been aware of the high probability that the 
checks were stolen. (Citations omitted.) (Emphasis 
added.)

Applying this common sense and experience test and rely­
ing on the long established use of the common law in­
ference, the inference was found to comport with due 
process because the jury could find beyond a reasonable 
doubt upon the evidence that the accused knew the prop­
erty was stolen. B a r n e s , 845.

The presumption is here strikingly similar in both 
form and effect to the inference in B a r n e s . Both allow 
an inference as to state of mind to be drawn from the 
facts and circumstances. Both are derived from the com­
mon law and have long standing judicial approval. Both 
are an embodiment of common sense and experience. Both 
expressly recognize normal and ordinary probabilities of 
human conduct, and permit a jury to employ that recogni­
tion in reaching a verdict. Both are procedural devices 
permitting the trier of fact to conclude that the prosecu­
tion has met its burden of proof with respect to the 
presumed or inferred fact by having satisfactorily estab­
lished other facts. M u lla n e y , 703, N. 31.

B a r n e s  was the culmination of a line of cases dealing 
with presumptions under the due process clause. The 
recent cases of I n  r e  W in s h ip  and its progeny; M u lla n e y  
v . W i lb u r  and P a t te r s o n  v .  N e w  Y o r k  do not undermine

50



21

the holdings of B a r n e s  and its ancestors. M u lla n e y  ex­
plicitly recognized the continuing vitality of B a r n e s . M u l­
la n e y , 703, N. 31.

0. The instructions as a whole required the 
state to prove all elements beyond a reasonable 
doubt.

Jury instructions must be reviewed as a cohesive 
whole rather than in dismembered isolation under the cold 
microscopic lens. C u p p  v . N a u g h te n ,  414 U. S. 141, 146 
(1973).

The jury in the present case was instructed that: 
before they could convict they had to be convinced beyond 
a reasonable doubt that the defendant caused the death 
of the deceased purposely or knowingly (Inst. 3, App. 34); 
the accused is presumed innocent until proven guilty be­
yond a reasonable doubt and this presumption continues 
until overcome by competent evidence which displaces any 
reasonable doubt of guilt (Inst. 4, App. 35); and the 
burden of proof rests upon the state to establish guilt 
beyond a reasonable doubt 'and a conviction is unwar­
ranted unless the burden is sustained (Inst. 2).

Read together, the jury was clearly and unequivocally 
instructed that the prosecution had to establish the ele­
ments of the crime beyond a reasonable doubt.9 M u lla n e y  

and P a t te r s o n  require no more.

9 The Federal Circuit Court cases cited by petitioner (App. 
20-21) reinforce this argument. Most upheld the convic­
tions even though the opinions disapproved of the particular 
instruction challenged. In fact, United States v. Garrett, 574 
F. 2d 778 (3d Cir. 1978), cert, denied — U. S. — (1978),

(Continued on the next page)

51



2 2

CONCLUSION

The petitioner by his own evidence established the 
mental state necessary for his conviction of deliberate 
homicide. Any alleged error in giving the instruction is 
thereby rendered harmless. The instruction was found by 
the Montana Supreme Court to have the same form and 
effect as the inference in B a r n e s  and under that ruling 
has the same effect subscribed to it by the common law 
scholars. The ruling in M u lla n e y  is not applicable. The 
instruction was properly given and respondent, State of 
Montana, respectfully requests the writ be dismissed.

Respectfully submitted this 24th day of March 1979.

M ic h a el  T. Greely

Attorney General 
State of Montana 
Helena, Montana 59601

M ik e  M c Carter
Assistant Attorney General
D e n n y  M oreen
Assistant Attorney General
J o h n  R adonich

Deer Lodge County Attorney 
Anaconda, Montana 59711

A t t o r n e y s  f o r  R e s p o n d e n t

(Continued from previous page)
affirmed the defendant's conviction because the court said 
other instructions given to the jury regarding the govern­
ment's burden of proof cured any defect in the specific 
instruction challenged. See United States v. Netterville, 553 
F. 2d 903 (1977), cert, denied 434 U. S. 1009 (1978).

52



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