Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of La Salle
County, the Hon. Leonard Hoffman, Judge, presiding.
MR. JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
In this appeal the court is concerned with the perplexing problems caused by the use of presumptions in criminal cases. Presumptions and inferences are evidentiary substitutes for the facts inferred. For that reason, instructions to a jury that it can infer an ultimate fact from a proved fact frequently raise due process objections. The thrust of these objections is that the presumption takes the place of strict proof of the elements of the offense, each of which must be established beyond a reasonable doubt. In re Winship (1970), 397 U.S. 358, 364, 25 L.Ed.2d 368, 375, 90 S.Ct. 1068, 1072-73.
Such an instruction (Illinois Pattern Jury Instructions, Criminal, No. 13.21 (1968)) (hereinafter IPI) was given at defendant Robert Housby's trial in the circuit court of La Salle County on charges of burglary (Ill. Rev. Stat. 1977, ch. 38, par. 19-1) and theft (Ill. Rev. Stat. 1977, ch. 38, par. 16-1(a)). He was convicted of both offenses. A divided appellate court affirmed. (82 Ill. App.3d 537.) The instruction read:
"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."
Housby's brief concedes that the evidence tends to show that he dealt with stolen property, and that this would sustain his conviction for theft. (People v. Marino (1970), 44 Ill.2d 562, 576.) But he attacks his burglary conviction, attributing it to the instruction. He contends the instruction mandated the jury to draw an inference which deprived him of due process and compelled a verdict of guilt. Relying on County Court v. Allen (1979), 442 U.S. 140, 60 L.Ed.2d 777, 99 S.Ct. 2213, Housby argues that the instruction undermined the fact finder's sole responsibility to find the ultimate facts and diluted the State's burden to prove the defendant guilty beyond a reasonable doubt.
Housby's objection to this instruction requires a reevaluation and updating of Illinois decisions allowing the finder of fact to infer guilt from a defendant's exclusive possession of recently stolen property when no reasonable explanation has been advanced for the possession. Reexamination of these decisions is called for by County Court and Sandstrom v. Montana (1979), 442 U.S. 510, 61 L.Ed.2d 39, 99 S.Ct. 2450, the most recent United States Supreme Court decisions dealing with the use of presumptions in criminal cases, and their antecedents, Tot v. United States (1943), 319 U.S. 463, 87 L.Ed. 1519, 63 S.Ct. 1241, and Leary v. United States (1969), 395 U.S. 6, 23 L.Ed.2d 57, 89 S.Ct. 1532. These decisions established the following guidelines to protect against due process violations in criminal cases where presumptions are applied.
When the presumption is mandatory, that is, where the fact finder is not left free to apply or reject the inference, County Court applies the strictest standard and gives the defendant the most complete protection. When the fact finder is compelled to rely upon the presumption, the inferred fact must flow beyond a reasonable doubt from the established fact. 442 U.S. 140, 166, 60 L.Ed.2d 777, 797, 99 S.Ct. 2213, 2229.
Where the inference is only permissive, that is, where the fact finder is given the option of ignoring or relying upon the inference (442 U.S. 140, 157, 60 L.Ed.2d 777, 797, 99 S.Ct. 2213, 2224), County Court prescribes a less stringent standard. The test for dealing with a permissive presumption is derived from Tot v. United States, which required as a minimum that there be a "rational connection" between the facts proved and the facts presumed (319 U.S. 463, 467, 87 L.Ed. 1519, 1524, 63 S.Ct. 1241, 1245), and from Leary v. United States, which promulgated the following standard:
"[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." (395 U.S. 6, 36, 23 L.Ed.2d 57, 82, 89 S.Ct. 1532, 1548.)
County Court combined the Tot and Leary tests stating:
"The application of the statutory presumption in this case therefore comports with the standard laid down in Tot v. United States [(1943), 319 U.S. 462, 467, 87 L.Ed. 1519, 1524, 63 S.Ct. 1241, 1245], and restated in Leary v. United States [(1969), 395 U.S. 6, 36, 23 L.Ed.2d 57, 81, 89 S.Ct. 1532, 1548]. For there is a `rational connection' between the basic facts that the prosecution proved and the ultimate fact presumed, and the latter is `more likely than not to flow from' the former. 442 U.S. 140, 165, 60 L.Ed. 777, 797, 99 S.Ct. 2213, 2229.
The County Court decision supplemented the application of this less stringent test for permissive inferences with the requirement that the inference be supported by corroborating evidence of guilt. (442 U.S. 140, 167, 60 L.Ed.2d 777, 798, 99 S.Ct. 2213, 2229-30.) A permissive inference may always be rejected by the fact finder if it chooses to ignore it, and where there is corroborating evidence, the permissive inference is not the sole and sufficient basis for a finding of guilt. It is unnecessary therefore to establish that the inference follows beyond a reasonable doubt from the proved fact, for while it is necessary to prove the elements of an offense beyond a reasonable doubt, that may be done by resort to all the evidence, including the permissive inference. But, where the permissive inference stands unsupported by corroborating circumstances, the leap from the proved fact to the presumed element must satisfy the higher standard — proof beyond a reasonable doubt — for there is nothing else on which to rest the fact finder's verdict of guilt. 442 U.S. 140, 159, 167, 60 L.Ed. 777, 793, 798, 99 S.Ct. 2213, 2225-26, 2229-30.
Several Illinois decisions have dealt with the type of presumption challenged in this case. In general, they have stated that the inference arising from possession of recently stolen property without reasonable explanation is sufficient to sustain conviction in the absence of other facts and circumstances which leave a reasonable doubt of guilt in the mind of the trier of fact. (People v. Panus (1979), 76 Ill.2d 263, 269-70; People v. Stock (1974), 56 Ill.2d 461, 475; People v. Taylor (1962), 25 Ill.2d 79, 81; People v. Pride (1959), 16 Ill.2d 82, 89; People v. Bennett (1954), 3 Ill.2d 357, 363; People v. Sampson (1929), 337 Ill. 643, 650; Williams v. People (1902), 196 Ill. 173, 178; Smith v. People (1885), 115 Ill. 17, 21.) These decisions preceded County Court and did not consider the principles announced in that opinion or in Leary or Tot to safeguard against due process violations when presumptions are relied upon. In only one opinion, People v. Whittaker (1970), 45 Ill.2d 491, has this court referred to the Tot "rational connection" test or the Leary "more likely than not" test. But in Whittaker the court offered no explanation as to how the tests were satisfied. Moreover, the objection interposed to the instruction in Whittaker was on self-incrimination rather than due process grounds. 45 Ill.2d 491, 497.
The Illinois rule that the recent and exclusive possession of items stolen in a burglary, without reasonable explanation, gives rise to an inference that the possession was obtained by burglary has been justified by the "inherently strong probability" that the inference is accurate. (45 Ill.2d 491, 497.) The inference has been used by Illinois courts> to prove the burglar's identity and the intent to commit a felony or theft. (People v. Panus (1979), 76 Ill.2d 263, 270.) Yet, while there may be a strong probability that the inference is accurate, this does not mean it is "more likely than not" true that the possessor of the property is the burglar. Although the inference has a long history of use in this State going back to at least 1885 (Smith v. People (1885), 115 Ill. 17), no court opinion has yet pointed out why it is more likely that the possessor is the burglar instead of one who received stolen property or simply joined the burglar after the crime had been committed. In Smith, for example, the court simply said:
"The same person that committed the larceny no doubt committed the burglary * * *." (Emphasis added.) 115 Ill. 17, 21.)
Expressions of certainty or long historical practice are not acceptable substitutes for reasoned explanations of why the presumed fact more likely than not flows from the proved fact. (See Barnes v. United States (1973), 412 U.S. 837, 843-44, 37 L.Ed.2d 380, 386-87, 93 S.Ct. 2357, 2362.) The analysis provided by past Illinois decisions clearly does not satisfy the County Court test.
To the extent that past Illinois decisions have held that exclusive and unexplained possession of recently stolen property is sufficient, standing alone and without corroborating evidence of guilt, for conviction of burglary, those decisions, in the light of the United States Supreme Court holding in County Court, can no longer be applied, even when the inference is regarded as permissive. The presumption standing alone does not prove burglary beyond a reasonable doubt. The person in exclusive possession may be the burglar, to be sure, but he might also be a receiver of stolen ...