APPEAL from the Circuit Court of La Salle County; the Hon.
LEONARD HOFFMAN, Judge, presiding.
MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
This is an appeal by the defendant, Raymond King, from his conviction for burglary which was entered in a jury trial in La Salle County Circuit Court. King was charged with the burglary of the residence of Wilbur Heister on the basis of his possession, on the same night as the burglary, of certain items taken from the Heister residence. A rebuttable common law inference, allowing the jury to find burglary when a defendant is found in possession of recently stolen property, not reasonably explained, was the basis for his conviction. The defendant King was sentenced to prison for a term of 4 1/2 to 13 1/2 years. On appeal, the defense attacks the inference, which has been applied in Illinois for many years, as violative of King's constitutional guarantee to due process of law. An additional issue is also raised with respect to an alleged misuse of the grand jury by the prosecution.
The record discloses that on May 20, 1977, Wilbur Heister left his Tonica, Illinois, home about 7 p.m. When he returned home that night around 10:30 p.m., he found that his John Deere riding mower had been stolen and that his house had been ransacked. Items stolen during the burglary included the riding mower, a Hoover vacuum cleaner and a digital clock radio.
The evidence at trial with regard to Raymond King's activities on the night of the burglary came as a result of planned stakeout and surveillance of one Clifford Evelhoch. Officers participating in the stakeout of the Evelhoch residence testified that at about 10:15 p.m. on the night of May 20, 1977, they observed the defendant, Raymond King, and one Robert Housby arrive at the Evelhoch residence in King's pickup truck. They then observed the defendant, King, carry a vacuum cleaner (identified by Heister as the one stolen from his residence) into the Evelhoch residence. Housby carried the stolen clock radio into the house. Approximately 30 minutes later, King, Housby, Evelhoch and a fourth man exited the residence and drove off in King's truck. They drove to Housby's residence whereupon Housby got out of the pickup and into a van. The men then proceeded, in the two vehicles, to a rural gravel road on the side of which, at one spot, the riding mower was located. They loaded the riding mower into the van and left. Housby drove the van and the others rode in the pickup truck. They then proceeded from the spot alongside of the gravel road to the residence of one Leroy Koch. Koch had apparently arranged to buy the stolen riding mower with a bartender at the Green Front Tavern. At the Koch residence, King and the others unloaded the riding mower from the van. Koch, who testified at trial after having been given immunity, then gave the defendant King a check, made payable to the Green Front Tavern, for "purchase" of the stolen riding mower. Koch had not had previous dealings with King but had been dealing with the bartender at the tavern.
After the sale at the Koch residence, the defendant and the others left and the defendant proceeded to the Green Front Tavern. He later returned to the Evelhoch residence, eventually leaving about 1:30 a.m. In the early morning hours of May 21, 1977, the officers conducting the surveillance returned to the gravel road, where the mower had been loaded into the van, and found various other items taken in the burglary the night before.
Witnesses for the defendant, King, testified, in an attempt to explain King's possession of the items, that King had received a riding mower, a vacuum cleaner and a radio from one Bob Lewis in the early evening of the night of the burglary. The defense produced, in support of that testimony, a bill of sale signed at the defendant's mother's house (co-signed or witnessed by four persons who allegedly saw the sale occur).
After the evidence had been presented and final argument concluded, the jury was instructed on both theft and burglary. Included in the instructions given to the jury was one based upon Illinois Pattern Jury Instruction, Criminal, No. 13.21 (1968), which stated:
"If you find that the defendant had exclusive possession of recently stolen property, and there was no reasonable explanation of his possession, you may infer that the defendant obtained possession of the property by burglary."
Also included in the jury instructions were standard instructions concerning the reasonable-doubt burden of proof upon the State and the defendant's presumption of innocence. The jury returned a verdict finding the defendant, Raymond King, guilty of burglary, and he was sentenced to a term of from 4 1/2 to 13 1/2 years in prison.
The defense's principal argument on this appeal is that the rebuttable common law inference of burglary, which arises from evidence of possession of recently stolen property, not reasonably explained, is violative of the constitutional guarantee of due process of law. It is the defense position that in order to pass muster under the due process clause the validity of the inference must satisfy the reasonable-doubt standard. That is, the evidence necessary to invoke the inference (arising from the unsatisfactorily explained possession of recently stolen property) must be sufficient for a rational juror to find the inferred fact (herein burglary) beyond a reasonable doubt. The defense contends that the common law inference at issue in the instant case fails to satisfy that standard. The necessity for application of that standard, according to the defense, lies in the constitutional requirement of proof beyond a reasonable doubt and in recent Supreme Court cases dealing with inferences and presumptions in the criminal area. (See Barnes v. United States (1973), 412 U.S. 837, 37 L.Ed.2d 380, 93 S.Ct. 2357; Turner v. United States (1970), 396 U.S. 398, 24 L.Ed.2d 610, 90 S.Ct. 642; Leary v. United States (1969), 395 U.S. 6, 23 L.Ed.2d 57, 89 S.Ct. 1532.) The State, on the other hand, argues that the criminal common law inference in the instant case need only satisfy a "more likely than not" standard, with the result that the due process clause would not be violated so long as the inferred fact was more likely than not to flow from the established facts. See Leary v. United States; People v. Hood (1971), 49 Ill.2d 526, 276 N.E.2d 310; People v. Harris (1971), 131 Ill. App.2d 824, 268 N.E.2d 724.
The central issue thus presented on this appeal is one which has received a great deal of recent attention from both the courts> and commentators. However, while a number of States and several courts> of appeal of the United States have decided the broad question presented herein, apparently neither the United States Supreme Court, nor any Illinois court, has definitely met the issue. A review of the Supreme Court's pronouncements on the subject is somewhat helpful, and to that we now proceed.
The Supreme Court in Leary v. United States was faced with the question as to the constitutionality of the statutory presumption which presumed knowledge of the importation into the United States of marijuana from the mere fact of possession of marijuana. The court was dealing with a rebuttable statutory presumption within the context of criminal sanctions for failure to pay a tax upon the importation of marijuana into this country. The Supreme Court therein stated:
"* * * a criminal statutory presumption must be regarded as `irrational' or `arbitrary,' and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend." (Leary v. United States, 395 U.S. 6, 36, 23 L.Ed. 57, 82, 89 S.Ct. 1532.)
While stating and using the more-likely-than-not standard, the court, in a footnote, added:
"Since we find that the § 176a presumption is unconstitutional under this standard, we need not reach the question whether a criminal presumption which passes muster when so judged must also satisfy the criminal `reasonable doubt' standard if proof of the crime charged or an essential element thereof depends upon its use. [Citations.]" (395 U.S. 6, 36 n. 64, 23 L.Ed.2d 57, 82 n. 64, 89 S.Ct. 1532, 1548 n. 64.)
In Turner v. United States, the court considered the constitutionality of instructing a jury that it could infer from possession of heroin and cocaine that the defendant knew the drugs had been illegally imported. The court therein noted that Leary reserved the question of whether the more-likely-than-not or the reasonable-doubt standard controlled in the criminal cases, but it likewise found no need to reach that question. The Turner court held that the inference with regard to heroin was valid under either standard and that the inference with regard to cocaine was invalid under either standard. (396 U.S. 398, 416, 419, 24 L.Ed.2d 610, 623, 625, 90 S.Ct. 642, 653, 654.) Then, in Barnes v. United States the court was faced with the issue of whether the traditional common law inference permitting guilty knowledge to be inferred from the unexplained possession of stolen goods was consistent with constitutional due process. Barnes dealt with the crime of possession of stolen checks knowing them to be stolen, wherein the jury was allowed to infer knowledge from the unexplained possession of recently stolen mail. In that case, the court, while acknowledging that teaching of their previous cases was not altogether clear, refused to expressly resolve the lack of clarity. It stated:
"What has been established by the cases, however, is at least this: that if a statutory inference submitted to the jury as sufficient to support conviction satisfies the reasonable-doubt standard (that is, the evidence necessary to invoke the inference is sufficient for a rational juror to find the inferred fact beyond a reasonable doubt) as well as the more-likely-than-not standard, then it clearly accords with due process." (412 U.S. 837, 843, 37 L.Ed.2d 380, 386, 93 S.Ct. 2357, 2361-62.)
The court then went on to find that the inference therein at issue, in the circumstances of that case, satisfied the reasonable doubt standard, "the most stringent standard the Court has applied in judging permissive criminal law inferences * * ...