Respondents (three adult males) and a 16-year-old girl (Jane
Doe) were jointly tried in a New York state court on charges,
inter alia, of illegally possessing two loaded handguns
found in an automobile in which they were riding when it was
stopped for speeding. The guns had been positioned crosswise in
Jane Doe's open handbag on either the front floor or front seat on
the passenger side where she was sitting. All four defendants
objected to the introduction of the guns into evidence, arguing
that the State had not adequately demonstrated a connection between
the guns and the defendants. The trial court overruled the
objection, relying on the presumption of possession created by a
New York statute providing that the presence of a firearm in an
automobile is presumptive evidence of its illegal possession by all
persons then occupying the vehicle, except when,
inter
alia, the firearm is found "upon the person" of one of the
occupants. The trial court also denied respondents' motion to
dismiss the charges on the alleged ground that such exception
applied because the guns were found on Jane Doe's person, the court
concluding that the applicability of the exception was a question
of fact for the jury. After being instructed that it was entitled
to infer possession from the defendants' presence in the car, to
consider all circumstances tending to support or contradict such
inference, and to decide the matter for itself without regard to
how much evidence the defendants introduced, the jury convicted all
four defendants of illegal possession of the handguns. Defendants'
post-trial motion in which they challenged the constitutionality of
the New York statute as applied to them, was denied. Both the
intermediate appellate court and the New York Court of Appeals
affirmed the convictions, the latter court holding that it was a
jury question whether the guns were on Jane Doe's person, treating
this question as having been resolved in the prosecution's favor,
and concluding that, therefore, the presumption applied, and that
there was sufficient evidence to support the convictions. The court
also summarily rejected the argument that the presumption was
unconstitutional as applied in this case. Respondents then filed
a
Page 442 U. S. 141
habeas corpus petition in Federal District Court, contending
that they were denied due process of law by the application of the
statutory presumption. The District Court issued the writ, holding
that respondents had not "deliberately bypassed" their federal
claim by their actions at trial, and that the mere presence of two
guns in a woman's handbag in a car could not reasonably give rise
to the inference that they were in the possession of three other
persons in the car. The United States Court of Appeals affirmed,
holding that the New York Court of Appeals had decided respondents'
constitutional claim on its merits, rather than on any independent
state procedural ground that might have barred collateral relief,
and, without deciding whether the presumption was constitutional as
applied in this case, that the statute is unconstitutional on its
face.
Held:
1. The District Court had jurisdiction to entertain respondents'
claim that the statutory presumption is unconstitutional. There is
no support in New York law or the history of this litigation for an
inference that the New York courts decided such claim on an
independent and adequate state procedural ground that bars the
federal courts from addressing the issue on habeas corpus. If
neither the state legislature nor the state courts indicate that a
federal constitutional claim is barred by some state procedural
rule, a federal court implies no disrespect for the State by
entertaining the claim. Pp.
442 U. S.
147-154.
2. The United States Court of Appeals erred in deciding the
facial constitutionality issue. In analyzing a mandatory
presumption, which the jury must accept even if it is the sole
evidence of an element of an offense (as opposed to a purely
permissive presumption, which allows, but does not require, the
trier of fact to infer the elemental fact from proof by the
prosecutor of the basic one and which places no burden of any kind
on the defendant), it is irrelevant that there is ample evidence in
the record other than the presumption to support a conviction.
Without determining whether the presumption in this case was
mandatory, the Court of Appeals analyzed it on its face as if it
were, despite the fact that the state trial judge's instructions
made it clear that it was not. Pp.
442 U. S.
154-163.
3. As applied to the facts of this case, the statutory
presumption is constitutional. Under the circumstances, the jury
would have been entirely reasonable in rejecting the suggestion
that the guns were in Jane Doe's sole possession. Assuming that the
jury did reject it, the case is tantamount to one in which the guns
were lying on the car's floor or seat in the plain view of
respondents, and in such a case, it is
Page 442 U. S. 142
surely rational to infer that each of the respondents was fully
aware of the guns' presence and had both the ability and the intent
to exercise dominion and control over them. The application of the
presumption in this case thus comports with the standard,
Leary
v. United States, 395 U. S. 6, that
there be a "rational connection" between the basic facts that the
prosecution proved and the ultimate fact presumed, and that the
latter is "more likely than not to flow from" the former. Moreover,
the presumption should not be judged by a more stringent
"reasonable doubt" test, insofar as it is a permissive, rather than
a mandatory, presumption. Pp.
442 U. S.
163-167.
568 F.2d 998, reversed.
STEVENS, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, BLACKMUN, and REHNQUIST, JJ., joined.
BURGER, C.J., filed a concurring opinion,
post, p.
442 U. S. 167.
POWELL, J., filed a dissenting opinion, in which BRENNAN, STEWART,
and MARSHALL, JJ., joined,
post, p.
442 U. S.
168.
MR. JUSTICE STEVENS delivered the opinion of the Court.
A New York statute provides that, with certain exceptions, the
presence of a firearm in an automobile is presumptive evidence of
its illegal possession by all persons then occupying the vehicle.
[
Footnote 1] The United States
Court of Appeals for the
Page 442 U. S. 143
Second Circuit held that respondents may challenge the
constitutionality of this statute in a federal habeas corpus
proceeding and that the statute is "unconstitutional on its face."
568 F.2d 998, 1009. We granted certiorari to review these holdings
and also to consider whether the statute is constitutional in its
application to respondents. 439 U.S. 815.
Four persons, three adult males (respondents) and a 16-year-old
girl (Jane Doe, who is not a respondent here), were jointly tried
on charges that they possessed two loaded handguns, a loaded
machinegun, and over a pound of heroin found in a Chevrolet in
which they were riding when it was stopped for speeding on the New
York Thruway shortly after noon on March 28, 1973. The two
large-caliber handguns, which, together with their ammunition,
weighed approximately six pounds, were seen through the window of
the car by the investigating police officer. They were positioned
crosswise in an open handbag on either the front floor or the front
seat of the car on the passenger side where Jane Doe was sitting.
Jane Doe admitted that the handbag was hers. [
Footnote 2] The machinegun
Page 442 U. S. 144
and the heroin were discovered in the trunk after the police
pried it open. The car had been borrowed from the driver's brother
earlier that day; the key to the trunk could not be found in the
car or on the person of any of its occupants, although there was
testimony that two of the occupants had placed something in the
trunk before embarking in the borrowed car. [
Footnote 3] The jury convicted all four of
possession of the handguns and acquitted them of possession of the
contents of the trunk.
Counsel for all four defendants objected to the introduction
into evidence of the two handguns, the machinegun, and the drugs,
arguing that the State had not adequately demonstrated a connection
between their clients and the contraband. The trial court overruled
the objection, relying on the presumption
Page 442 U. S. 145
of possession created by the New York statute. Tr. 471 483.
Because that presumption does not apply if a weapon is found "upon
the person" of one of the occupants of the car,
see
n 1,
supra, the three
male defendants also moved to dismiss the charges relating to the
handguns on the ground that the guns were found on the person of
Jane Doe. Respondents made this motion both at the close of the
prosecution's case and at the close of all evidence. The trial
judge twice denied it, concluding that the applicability of the
"upon the person" exception was a question of fact for the jury.
Tr. 544-557, 589-590.
At the close of the trial, the judge instructed the jurors that
they were entitled to infer possession from the defendants'
presence in the car. He did not make any reference to the "upon the
person" exception in his explanation of the statutory presumption,
nor did any of the defendants object to this omission or request
alternative or additional instructions on the subject.
Defendants filed a post-trial motion in which they challenged
the constitutionality of the New York statute as applied in this
case. The challenge was made in support of their argument that the
evidence, apart from the presumption, was insufficient to sustain
the convictions. The motion was denied,
id. at 775-776,
and the convictions were affirmed by the Appellate Division without
opinion.
People v. Lemmons, 49 App.Div.2d 639, 370
N.Y.S.2d 243 (1975).
The New York Court of Appeals also affirmed.
People v.
Lemmons, 40 N.Y.2d 505, 354 N.E.2d 836 (1976). It rejected the
argument that, as a matter of law, the guns were on Jane Doe's
person because they were in her pocketbook. Although the court
recognized that, in some circumstances, the evidence could only
lead to the conclusion that the weapons were in one person's sole
possession, it held that this record presented a jury question on
that issue. Since the defendants had not asked the trial judge to
submit the question to the
Page 442 U. S. 146
jury, the Court of Appeals treated the case as though the jury
had resolved this fact question in the prosecution's favor. It
therefore concluded that the presumption did apply, and that there
was sufficient evidence to support the convictions.
Id. at
509-512, 354 N.E.2d at 839-841. It also summarily rejected the
argument that the presumption was unconstitutional as applied in
this case.
See infra at
442 U. S.
153-154.
Respondents filed a petition for a writ of habeas corpus in the
United States District Court for the Southern District of New York
contending that they were denied due process of law by the
application of the statutory presumption of possession. The
District Court issued the writ, holding that respondents had not
"deliberately bypassed" their federal claim by their actions at
trial, and that the mere presence of two guns in a woman's handbag
in a car could not reasonably give rise to the inference that they
were in the possession of three other persons in the car. App. to
Pet. for Cert. 33a-36a.
The Court of Appeals for the Second Circuit affirmed, but for
different reasons. First, the entire panel concluded that the New
York Court of Appeals had decided respondents' constitutional claim
on its merits, rather than on any independent state procedural
ground that might have barred collateral relief. Then, the majority
of the court, without deciding whether the presumption was
constitutional as applied in this case, concluded that the statute
is unconstitutional on its face because the
"presumption obviously sweeps within its compass (1) many
occupants who may not know they are riding with a gun (which may be
out of their sight), and (2) many who may be aware of the presence
of the gun but not permitted access to it. [
Footnote 4]"
Concurring separately, Judge
Page 442 U. S. 147
Timbers agreed with the District Court that the statute was
unconstitutional as applied, but considered it improper to reach
the issue of the statute's facial constitutionality. 568 F.2d at
1011-1012.
The petition for a writ of certiorari presented three questions:
(1) whether the District Court had jurisdiction to entertain
respondents' claim that the presumption is unconstitutional; (2)
whether it was proper for the Court of Appeals to decide the facial
constitutionality issue; and (3) whether the application of the
presumption in this case is unconstitutional. We answer the first
question in the affirmative, the second two in the negative. We
accordingly reverse.
I
This is the sixth time that respondents have asked a court to
hold that it is unconstitutional for the State to rely on the
presumption because the evidence is otherwise insufficient to
convict them. [
Footnote 5] No
court has refused to hear the claim or
Page 442 U. S. 148
suggested that it was improperly presented. Nevertheless,
because respondents made it for the first time only after the jury
had announced its verdict, and because the state courts were less
than explicit in their reasons for rejecting it, the question
arises whether the New York courts did so on the basis of an
independent and adequate state procedural ground that bars the
federal courts from addressing the issue on habeas corpus.
[
Footnote 6]
See Wainwright
v. Sykes, 433 U. S. 72;
Fay
Page 442 U. S. 149
v. Noia, 372 U. S. 391,
372 U. S. 438.
We conclude that there is no support in either the law of New York
or the history of this litigation for an inference that the New
York courts decided respondents' constitutional claim on a
procedural ground, and that the question of the presumption's
constitutionality is therefore properly before us.
See Franks
v. Delaware, 438 U. S. 154,
438 U. S.
161-162;
Mullaney v. Wilbur, 421 U.
S. 684,
421 U. S.
704-705, and n. (REHNQUIST, J., concurring). [
Footnote 7]
Page 442 U. S. 150
New York has no clear contemporaneous objection policy that
applies in this case. [
Footnote
8] No New York court, either in this litigation or in any other
case that we have found, has ever expressly refused on
contemporaneous objection grounds to consider a post-trial claim
such as the one respondents made.
Cf. Wainwright v. Sykes,
supra at
433 U. S. 74.
Indeed, the rule in New York appears to be that "insufficiency of
the evidence" claims may be raised at any time until sentence has
been
Page 442 U. S. 151
imposed. [
Footnote 9]
Moreover, even if New York's contemporaneous objection rule did
generally bar the type of post-verdict insufficiency claim that
respondents made, there are at least two judicially created
exceptions to that rule that might nonetheless apply in this case.
[
Footnote 10]
Page 442 U. S. 152
The conclusion that the New York courts did not rely on a state
procedural ground in rejecting respondents' constitutional claim is
supported not only by the probable unavailability in New York law
of any such ground, but also by three aspects of this record.
First, the prosecution never argued to any state court that a
procedural default had occurred. This omission surely suggests that
the New York courts were not thinking in procedural terms when they
decided the issue. Indeed, the parties did not even apprise the
appellate courts of the timing of respondents' objection to the
presumption; a procedural default would not have been discovered,
therefore, unless those courts combed the transcript themselves. If
they did so without any prompting from the parties and based their
decision on what they found, they surely would have said so.
Second, the trial court ruled on the merits when it denied
respondents' motion to set aside the verdict. Tr. 775-776. Because
it was not authorized to do so unless the issue was preserved for
appeal, the trial court implicitly decided that
Page 442 U. S. 153
there was no procedural default. [
Footnote 11] The most logical inference to be drawn from
the Appellate Division's unexplained affirmance is that that court
accepted not only the judgment but also the reasoning of the trial
court.
Third, it is apparent on careful examination that the New York
Court of Appeals did not ignore respondents' constitutional claim
in its opinion. Instead, it summarily rejected the claim on its
merits. That court had been faced with the issue in several prior
cases, and had always held the presumption constitutional. Indeed,
the State confined its brief on the subject in the Court of Appeals
to a string citation of some of those cases. Respondent's Brief in
the Court of Appeals, p. 9. It is not surprising, therefore, that
the Court of Appeals confined its discussion of the issue to a
reprise of the explanation that its prior cases have traditionally
given for the statute in holding it constitutional and a citation
of two of those cases. 40 N.Y.2d at 509-511, 354 N.E.2d at 839-840,
citing
People v. McCaleb, 25 N.Y.2d 394, 255 N.E.2d 136
(1969);
People v. Leyva, 38 N.Y.2d 160, 341 N.E.2d 546
(1975). Although it omits the word "constitutional," the most
logical interpretation of this discussion is that it was intended
as a passing and summary disposition of an issue that had already
been decided on numerous occasions. This interpretation is borne
out by the fact that the dissenting members of the Court of Appeals
unequivocally addressed the merits of the constitutional claim,
[
Footnote 12] and by the
fact that three Second Circuit Judges, whose experience with New
York
Page 442 U. S. 154
practice is entitled to respect, concluded that the State's
highest court had decided the issue on its merits. 568 F.2d at
1000.
See Bishop v. Wood, 426 U.
S. 341,
426 U. S.
345-346;
Huddleston v. Dwyer, 322 U.
S. 232,
322 U. S.
237.
Our conclusion that it was proper for the federal courts to
address respondents' claim is confirmed by the policies informing
the "adequate state ground" exception to habeas corpus
jurisdiction. The purpose of that exception is to accord
appropriate respect to the sovereignty of the States in our federal
system.
Wainwright v. Sykes, 433 U.S. at
433 U. S. 88.
But if neither the state legislature nor the state courts indicate
that a federal constitutional claim is barred by some state
procedural rule, a federal court implies no disrespect for the
State by entertaining the claim. [
Footnote 13]
II
Although 28 U.S.C. § 2254 authorizes the federal courts to
entertain respondents' claim that they are being held in custody in
violation of the Constitution, it is not a grant of power to decide
constitutional questions not necessarily subsumed within that
claim. Federal courts are courts of limited jurisdiction. They have
the authority to adjudicate specific controversies between adverse
litigants over which and over whom they have jurisdiction. In the
exercise of that authority, they have a duty to decide
constitutional questions when necessary to dispose of the
litigation before them. But they have an equally strong duty to
avoid constitutional issues that need not be resolved in order to
determine the rights of the parties to the case under
consideration.
E.g., New York Transit Authority v. Beazer,
440 U. S. 568,
440 U. S.
582-583.
A party has standing to challenge the constitutionality of
Page 442 U. S. 155
a statute only insofar as it has an adverse impact on his own
rights. As a general rule, if there is no constitutional defect in
the application of the statute to a litigant, he does not have
standing to argue that it would be unconstitutional if applied to
third parties in hypothetical situations.
Broadrick v.
Oklahoma, 413 U. S. 601,
413 U. S. 610
(and cases cited). A limited exception has been recognized for
statutes that broadly prohibit speech protected by the First
Amendment.
Id. at
413 U. S. 611-616. This exception has been justified by
the overriding interest in removing illegal deterrents to the
exercise of the right of free speech.
E.g., Gooding v.
Wilson, 405 U. S. 518,
405 U. S. 520;
Dombrowski v. Pfister, 380 U. S. 479,
380 U. S. 486.
That justification, of course, has no application to a statute that
enhances the legal risks associated with riding in vehicles
containing dangerous weapons.
In this case, the Court of Appeals undertook the task of
deciding the constitutionality of the New York statute "on its
face." Its conclusion that the statutory presumption was arbitrary
rested entirely on its view of the fairness of applying the
presumption in hypothetical situations -- situations, indeed, in
which it is improbable that a jury would return a conviction,
[
Footnote 14] or that a
prosecution would ever be instituted. [
Footnote 15]
Page 442 U. S. 156
We must accordingly inquire whether these respondents had
standing to advance the arguments that the Court of Appeals
considered decisive. An analysis of our prior cases indicates that
the answer to this inquiry depends on the type of presumption that
is involved in the case.
Inferences and presumptions are a staple of our adversary system
of factfinding. It is often necessary for the trier of fact to
determine the existence of an element of the crime -- that is, an
"ultimate" or "elemental" fact -- from the existence of one or more
"evidentiary" or "basic" facts.
E.g., Barnes v. United
States, 412 U. S. 837,
412 U. S.
843-844;
Tot v. United States, 319 U.
S. 463,
319 U. S. 467;
Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U. S.
35,
219 U. S. 42.
The value of these evidentiary devices, and their validity under
the Due Process Clause, vary from case to case, however, depending
on the strength of the connection between the particular basic and
elemental facts involved and on the degree to which the device
curtails the factfinder's freedom to assess the evidence
independently. Nonetheless, in criminal cases, the ultimate test of
any device's constitutional validity in a given case remains
constant: the device must not undermine the factfinder's
responsibility at trial, based on evidence adduced by the State, to
find the ultimate facts beyond a reasonable doubt.
See In re
Winship, 397 U. S. 358,
397 U. S. 364;
Mullaney v. Wilbur, 421 U.S. at
421 U. S.
702-703, n. 31.
Page 442 U. S. 157
The most common evidentiary device is the entirely permissive
inference or presumption, which allows -- but does not require --
the trier of fact to infer the elemental fact from proof by the
prosecutor of the basic one and which places no burden of any kind
on the defendant.
See, e.g., Barnes v. United States,
supra at
412 U. S. 840
n. 3. In that situation, the basic fact may constitute
prima
facie evidence of the elemental fact.
See, e.g., Turner v.
United States, 396 U. S. 398,
396 U. S. 402
n. 2. When reviewing this type of device, the Court has required
the party challenging it to demonstrate its invalidity as applied
to him.
E.g., Barnes v. United States, supra at
412 U. S. 845;
Turner v. United States, supra at
396 U. S.
419-424.
See also United States v. Gainey,
380 U. S. 63,
380 U. S. 67-68,
380 U. S. 69-70.
Because this permissive presumption leaves the trier of fact free
to credit or reject the inference and does not shift the burden of
proof, it affects the application of the "beyond a reasonable
doubt" standard only if, under the facts of the case, there is no
rational way the trier could make the connection permitted by the
inference. For only in that situation is there any risk that an
explanation of the permissible inference to a jury, or its use by a
jury, has caused the presumptively rational factfinder to make an
erroneous factual determination.
A mandatory presumption is a far more troublesome evidentiary
device. For it may affect not only the strength of the "no
reasonable doubt" burden, but also the placement of that burden; it
tells the trier that he or they must find the elemental fact upon
proof of the basic fact, at least unless the defendant has come
forward with some evidence to rebut the presumed connection between
the two facts.
E.g., Turner v. United States, supra at
396 U. S.
401-402, and n. 1;
Leary v. United States,
395 U. S. 6,
395 U. S. 30;
United States v. Romano, 382 U. S. 136,
382 U. S. 137,
and n. 4,
382 U. S. 138,
382 U. S. 143;
Tot v. United States, supra at
319 U. S. 469.
[
Footnote 16] In this
situation, the Court
Page 442 U. S. 158
has generally examined the presumption on its face to determine
the extent to which the basic and elemental facts coincide.
E.g., Turner v. United States, supra at
396 U. S.
408-418;
Leary v.
Page 442 U. S. 159
United States, supra, at
395 U. S. 45-52;
United States v. Romano, supra, at
382 U. S.
140-141;
Tot v. United States, 319 U.S. at
319 U. S. 468.
To the extent that the trier of fact is forced to abide by the
presumption, and may not reject it based on an independent
evaluation of the particular facts presented by the State, the
analysis of the presumption's constitutional validity is logically
divorced from those facts and based on the presumption's accuracy
in the run of cases. [
Footnote
17] It is for this reason that the
Page 442 U. S. 160
Court has held it irrelevant in analyzing a mandatory
presumption, but not in analyzing a purely permissive one, that
there is ample evidence in the record other than the presumption to
support a conviction.
E.g., Turner v. United States, 396
U.S. at
396 U. S. 407;
Leary v. United States, 395 U.S. at
395 U. S. 31-32;
United States v. Romano, 382 U.S. at
382 U. S.
138-139.
Without determining whether the presumption in this case was
mandatory, [
Footnote 18] the
Court of Appeals analyzed it on its face as if it were. In fact, it
was not, as the New York Court of Appeals had earlier pointed out.
40 N.Y.2d at 510-511, 354 N.E.2d at 840.
The trial judge's instructions make it clear that the
presumption was merely a part of the prosecution's case, [
Footnote 19] that
Page 442 U. S. 161
it gave rise to a permissive inference available only in certain
circumstances, rather than a mandatory conclusion of possession,
and that it could be ignored by the jury even if there was no
affirmative proof offered by defendants in rebuttal. [
Footnote 20] The judge explained
that possession could be actual or constructive, but that
constructive possession could not exist without the intent and
ability to exercise control or dominion over the weapons. [
Footnote 21] He also carefully
instructed the jury that
Page 442 U. S. 162
there is a mandatory presumption of innocence in favor of the
defendants that controls unless it, as the exclusive trier of fact,
is satisfied beyond a reasonable doubt that the defendants
possessed the handguns in the manner described by the judge.
[
Footnote 22] In short, the
instructions plainly directed the jury to consider all the
circumstances tending to support or contradict the inference that
all four occupants of the car had possession of the two loaded
handguns and to decide the matter for itself without regard to how
much evidence the defendants introduced. [
Footnote 23]
Our cases considering the validity of permissive statutory
presumptions such as the one involved here have rested on
Page 442 U. S. 163
an evaluation of the presumption as applied to the record before
the Court. None suggests that a court should pass on the
constitutionality of this kind of statute "on its face." It was
error for the Court of Appeals to make such a determination in this
case.
III
As applied to the facts of this case, the presumption of
possession is entirely rational. Notwithstanding the Court of
Appeals' analysis, respondents were not "hitchhikers or other
casual passengers," and the guns were neither "a few inches in
length" nor "out of [respondents'] sight."
See n 4,
supra, and accompanying
text. The argument against possession by any of the respondents was
predicated solely on the fact that the guns were in Jane Doe's
pocketbook. But several circumstances -- which, not surprisingly,
her counsel repeatedly emphasized in his questions and his
argument,
e.g., Tr. 282-283, 294-297, 306 -- made it
highly improbable that she was the sole custodian of those
weapons.
Even if it was reasonable to conclude that she had placed the
guns in her purse before the car was stopped by police, the facts
strongly suggest that Jane Doe was not the only person able to
exercise dominion over them. The two guns were too large to be
concealed in her handbag. [
Footnote 24] The bag was consequently open, and part of
one of the guns was in plain view, within easy access of the driver
of the car and even, perhaps, of the other two respondents who were
riding in the rear seat. [
Footnote 25]
Moreover, it is highly improbable that the loaded guns belonged
to Jane Doe or that she was solely responsible for their being in
her purse. As a 16-year-old girl in the company of three adult men,
she was the least likely of the four
Page 442 U. S. 164
to be carrying one, let alone two, heavy handguns. It is far
more probable that she relied on the pocketknife found in her
brassiere for any necessary self-protection. Under these
circumstances, it was not unreasonable for her counsel to argue,
and for the jury to infer, that, when the car was halted for
speeding, the other passengers in the car anticipated the risk of a
search and attempted to conceal their weapons in a pocketbook in
the front seat. The inference is surely more likely than the notion
that these weapons were the sole property of the 16-year-old
girl.
Under these circumstances, the jury would have been entirely
reasonable in rejecting the suggestion -- which, incidentally,
defense counsel did not even advance in their closing arguments to
the jury [
Footnote 26] --
that the handguns were in the sole possession of Jane Doe. Assuming
that the jury did reject it, the case is tantamount to one in which
the guns were lying on the floor or the seat of the car in the
plain view of the three other occupants of the automobile. In such
a case, it is surely rational to infer that each of the respondents
was fully aware of the presence of the guns and had both the
ability and the intent to exercise dominion and control over
Page 442 U. S. 165
the weapons. The application of the statutory presumption in
this case therefore comports with the standard laid down in
Tot
v. United States, 319 U.S. at
319 U. S. 467,
and restated in
Leary v. United States, 395 U.S. at
395 U. S. 36. 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. [
Footnote 27]
Page 442 U. S. 166
Respondents argue, however, that the validity of the New York
presumption must be judged by a "reasonable doubt" test, rather
than the "more likely than not" standard employed in
Leary. [
Footnote
28] Under the more stringent test, it is argued that a
statutory presumption must be rejected unless the evidence
necessary to invoke the inference is sufficient for a rational jury
to find the inferred fact beyond a reasonable doubt.
See Barnes
v. United States, 412 U.S. at
412 U. S.
842-843. Respondents' argument again overlooks the
distinction between a permissive presumption on which the
prosecution is entitled to rely as one not necessarily sufficient
part of its proof and a mandatory presumption which the jury must
accept even if it is the sole evidence of an element of the
offense. [
Footnote 29]
Page 442 U. S. 167
In the latter situation, since the prosecution bears the burden
of establishing guilt, it may not rest its case entirely on a
presumption unless the fact proved is sufficient to support the
inference of guilt beyond a reasonable doubt. But in the former
situation, the prosecution may rely on all of the evidence in the
record to meet the reasonable doubt standard. There is no more
reason to require a permissive statutory presumption to meet a
reasonable doubt standard before it may be permitted to play any
part in a trial than there is to require that degree of probative
force for other relevant evidence before it may be admitted. As
long as it is clear that the presumption is not the sole and
sufficient basis for a finding of guilt, it need only satisfy the
test described in
Leary.
The permissive presumption, as used in this case, satisfied the
Leary test. And, as already noted, the New York Court of
Appeals has concluded that the record as a whole was sufficient to
establish guilt beyond a reasonable doubt.
The judgment is reversed.
So ordered.
[
Footnote 1]
New York Penal Law § 265.15(3) (McKinney 1967):
"The presence in an automobile, other than a stolen one or a
public omnibus, of any firearm, defaced firearm, firearm silencer,
bomb, bombshell, gravity knife, switchblade knife, dagger, dirk,
stiletto, billy, blackjack, metal knuckles, sandbag, sandclub or
slungshot is presumptive evidence of its possession by all persons
occupying such automobile at the time such weapon, instrument or
appliance is found, except under the following circumstances:"
"(a) if such weapon, instrument or appliance is found upon the
person of one of the occupants therein; (b) if such weapon,
instrument or appliance is found in an automobile which is being
operated for hire by a duly licensed driver in the due, lawful and
proper pursuit of his trade, then such presumption shall not apply
to the driver; or (c) if the weapon so found is a pistol or
revolver and one of the occupants, not present under duress, has in
his possession a valid license to have and carry concealed the
same."
In addition to the three exceptions delineated in §§
265.15(3)(a)-(c) above as well as the stolen vehicle and public
omnibus exception in § 265.15(3) itself, § 265.20 contains various
exceptions that apply when weapons are present in an automobile
pursuant to certain military, law enforcement, recreational, and
commercial endeavors.
[
Footnote 2]
The arrest was made by two state troopers. One officer
approached the driver, advised him that he was going to issue a
ticket for speeding, requested identification, and returned to the
patrol car. After a radio check indicated that the driver was
wanted in Michigan on a weapons charge, the second officer returned
to the vehicle and placed the driver under arrest. Thereafter, he
went around to the right side of the car and, in "open view," saw a
portion of a .45-caliber automatic pistol protruding from the open
purse on the floor or the seat.
People v. Lemmons, 40
N.Y.2d 505, 508-509, 354 N.E.2d 836, 838-839 (1976). He opened the
car door, removed that gun, and saw a .38-caliber revolver in the
same handbag. He testified that the crosswise position of one or
both of the guns kept the handbag from closing. After the weapons
were secured, the two remaining male passengers, who had been
sitting in the rear seat, and Jane Doe were arrested and frisked. A
subsequent search at the police station disclosed a pocketknife and
marihuana concealed on Jane Doe's person. Tr. 187-192, 208-214,
277-278, 291-297, 408.
[
Footnote 3]
Early that morning, the four defendants had arrived at the
Rochester, N.Y. home of the driver's sister in a Cadillac. Using
her telephone, the driver called their brother, advised him that
"his car ran hot" on the way there from Detroit, and asked to
borrow the Chevrolet so that the four could continue on to New York
City. The brother brought the Chevrolet to the sister's home. He
testified that he had recently cleaned out the trunk, and had seen
no weapons or drugs. The sister also testified, stating that she
saw two of the defendants transfer some unidentified item or items
from the trunk of one vehicle to the trunk of the other while both
cars were parked in her driveway.
Id. at 17-19, 69-73,
115-116, 130-131, 193-194.
[
Footnote 4]
The majority continued:
"Nothing about a gun, which may be only a few inches in length
(
e.g., a Baretta or Derringer) and concealed under a seat,
in a glove compartment or beyond the reach of all but one of the
car's occupants, assures that its presence is known to occupants,
who may be hitchhikers or other casual passengers, much less that
they have any dominion or control over it."
568 F.2d at 1007.
[
Footnote 5]
Respondents first made the argument in a memorandum of law in
support of their unsuccessful post-trial motion to set aside the
verdict. App. 36a-38a. That memorandum framed the argument in three
parts precisely as respondents would later frame it in their briefs
in the Appellate Division and Court of Appeals,
see id. at
41a-44a, 50a-52a, and in their petition for a writ of habeas
corpus.
See id. at 6a-10a: first, "[t]he only evidence"
relied upon to convict them was their presence in an automobile in
which the two handguns were found.
Id. at 35a. Second, but
for the presumption of possession, this evidence was "totally
insufficient to sustain the conviction."
Id. at 38a. And
third, that presumption is "unconstitutional as applied" (or,
"
arbitrary,' and hence unconstitutional") under Leary v.
United States, 395 U. S. 6,
395 U. S. 36, a
case in which this Court established standards for determining the
validity under the Due Process Clauses of statutory presumptions in
criminal cases. App. 36a. This sufficiency-focused argument on the
presumption is amply supported in our case law. E.g., Turner v.
United States, 396 U. S. 398,
396 U. S. 424
("[A] conviction resting on [an unconstitutional] presumption
cannot be deemed a conviction based on sufficient evidence").
See also Rossi v. United States, 289 U. S.
89, 289 U. S.
90.
Although respondents' memorandum did not cite the provision of
the Constitution on which they relied, their citation of our
leading case applying that provision, in conjunction with their use
of the word "unconstitutional," left no doubt that they were making
a federal constitutional argument. Indeed, by its responses to that
argument at every step of the way, the State made clear that it, at
least, understood the federal basis for the claim.
E.g.,
Respondent's Brief and Appendix in the Court of Appeals of the
State of New York, p. 9.
[
Footnote 6]
Petitioners contend that, in addition to the timing of
respondents' claim and the alleged silence of the New York courts,
there is another basis for concluding that those courts rejected
respondents' claim on procedural grounds. Petitioners point out
that respondents -- having unsuccessfully argued to the trial court
(as they would unsuccessfully argue on appeal) that the "upon the
person" exception applied as a matter of law in their case --
failed either to ask the trial court to instruct the jury to
consider the exceptions or to object when the court omitted the
instruction. They further point out that the majority of the New
York Court of Appeals, after concluding that the exception's
application was a jury question in this case, refused to review the
trial court's omission of an instruction on the issue because of
respondents' failure to protest that omission. 40 N.Y.2d at 512,
354 N.E.2d at 841.
Petitioners argue that we should infer from the Court of
Appeals' explicit treatment of this state law claim -- a claim
never even pressed on appeal -- how that court implicitly treated
the federal claim that has been the crux of respondents' litigation
strategy from its post-trial motion to the present. There is no
basis for the inference. Arguing on appeal that an instruction that
was never requested should have been given is far more disruptive
to orderly judicial proceedings than arguing in a post-trial motion
that the evidence was insufficient to support the verdict.
Moreover, that the Court of Appeals felt compelled expressly to
reject, on procedural grounds, an argument never made is hardly
proof that they would silently reject on similar grounds an
argument that
was forcefully made. As we discuss,
infra at
442 U. S.
153-154, it is clear that the court did address the
constitutional question, and did so on the merits, albeit
summarily.
Petitioners also contend that respondents, having failed to seek
a jury determination based on state law that the presumption does
not apply, may not now argue that the presumption is void as a
matter of federal constitutional law. The argument is unpersuasive.
Respondents' failure to demand an instruction on the state law
exception is no more and no less than a concession on their part
that as a matter of state law the guns were not found "upon the
person" of any occupant of the car as that phrase is interpreted by
the New York courts, and therefore, again as a matter of state law,
that the presumption of possession is applicable. The New York
Court of Appeals reviewed the case in that posture, and we do the
same.
[
Footnote 7]
Petitioners advance a second reason why there is no federal
jurisdiction in this case. Respondents were convicted on the basis
of a statutory presumption they argue is unconstitutional.
Following the Court of Appeals' affirmance of their conviction,
they could have appealed that decision to this Court under 28
U.S.C. § 1257(2), and thereby forced a binding federal disposition
of the matter. Because respondents failed to do so, petitioners
argue that respondents waived any right to federal review of the
decision on habeas corpus.
In
Fay v. Noia, 372 U. S. 391,
372 U. S.
435-438, we rejected a similar argument that habeas
corpus review was unavailable in advance of a petition for
certiorari.
See also Stevens v. Marks, 383 U.
S. 234, in which the Court entertained a challenge to a
state statute in a federal habeas corpus proceeding even though the
defendant had not pursued that challenge on appeal to this Court
prior to filing his petition for habeas corpus. The analysis of the
federal habeas statute that led us to our conclusion in
Fay is equally applicable in the present situation. That
statute gives federal courts jurisdiction to "entertain an
application for a writ of habeas corpus in behalf of a person in
custody pursuant to the judgment of a State court" if that custody
allegedly violates "the Constitution or laws or treaties of the
United States." 28 U.S.C. § 2254(a). The only statutory exception
to this jurisdiction arises when the petitioner has failed to
exhaust "the remedies available in the courts of the State." §
2254(b). As was said in
Fay with regard to petitions for
certiorari under 28 U.S.C. § 1257(3), direct appeals to this Court
under § 1257(2) are not "
remedies available in the courts of
the State.'" 372 U.S. at 372 U. S. 436.
Accordingly, there is no statutory requirement of an appeal to this
Court as a predicate to habeas jurisdiction.
[
Footnote 8]
New York's cautious contemporaneous objection policy is embodied
in N.Y.Crim.Proc.Law § 470.05(2) (McKinney 1971):
"For purposes of appeal, a question of law with respect to a
ruling or instruction of a criminal court during a trial or
proceeding is presented when a protest thereto was registered, by
the party claiming error, at the time of such ruling or instruction
or at any subsequent time when the court had an opportunity of
effectively changing the same."
(Emphasis added.)
That policy is carefully limited by several statutory
qualifications in addition to the one italicized above. First, the
form of the "protest" is not controlling, so long as its substance
is clear.
Ibid. Second, such protests may be made
"expressly or impliedly."
Ibid. Third, once a protest is
made, it need not be repeated at each subsequent disposition of the
matter.
Ibid. And finally, the Appellate Division of the
New York Supreme Court is authorized in its discretion to
"consider and determine any question of law or issue of fact
involving error or defect in the criminal court proceedings which
may have adversely affected the appellant,"
even if not previously objected to. § 470.15(1).
See, e.g.,
People v. Fragale, 60 App.Div.2d 972, 401 N.Y.S.2d 629 (1978);
People v. Travison, 59 App.Div.2d 404, 408, 400 N.Y.S.2d
188, 191 (1977).
[
Footnote 9]
E.g., People v. Ramos, 33 App.Div.2d 344, 308 N.Y.S.2d
195 (1970);
People v. Walker, 26 Misc.2d 940, 206 N.Y.S.2d
377 (1960).
Cf. Fed.Rule Crim.Proc. 29(c) ("It shall not
be necessary to the making of [a motion for judgment of acquittal]
that a similar motion has been made prior to the submission of the
case to the jury");
Burks v. United States, 437 U. S.
1,
437 U. S. 17-18
(under federal law, a post-trial motion for a new trial based on
insufficiency of the evidence is not a waiver of the right to
acquittal at that point if the evidence is found to be
insufficient).
[
Footnote 10]
First, the New York Court of Appeals has developed an exception
to the State's contemporaneous objection policy that allows review
of unobjected-to errors that affect "a fundamental constitutional
right."
People v. McLucas, 15 N.Y.2d 167, 172, 204 N.E.2d
846, 848 (1965).
Accord, People v. Arthur, 22 N.Y.2d 325,
239 N.E.2d 537 (1968);
People v. DeRenzzio, 19 N.Y.2d 45,
224 N.E.2d 97 (1966). Indeed, this Court recognized that exception
in concluding that an ambiguously presented federal claim had been
properly raised in New York trial and appellate courts, and was
therefore cognizable by this Court on appeal.
Street v. New
York, 394 U. S. 576,
394 U. S.
583-584. Although this exception has been narrowed more
recently,
e.g., People v. Robinson, 36 N.Y.2d 224, 326
N.E.2d 784 (1975), it continues to have currency within the State
where there has been a denial of a "fair trial."
E.g., La Rocca
v. Lane, 37 N.Y.2d 575, 584, 338 N.E.2d 606, 613 (1975);
People v. Bennett, 29 N.Y.2d 462, 467, 280 N.E.2d 637, 639
(1972);
People v. White, 86 Misc.2d 803, 809, 383 N.Y.S.2d
800, 804 (1976). The relevance of this exception is apparent from
the Second Circuit opinion in this case which held that respondents
"were denied a fair trial when the jury was charged that they could
rely on the presumption. . . ." 568 F.2d at 1011.
Second, the New York courts will also entertain a federal
constitutional claim on appeal even though it was not expressly
raised at trial if a similar claim seeking similar relief was
clearly raised.
E.g., People v. De Bour, 40 N.Y.2d 210,
214-215, 352 N.E.2d 562, 565-566 (1976);
People v.
Robbins, 38 N.Y.2d 913, 346 N.E.2d 815 (1976);
People v.
Arthur, supra. Cf. United States v. Mauro,
436 U. S. 340,
436 U. S.
364-365 (failure to invoke Interstate Agreement on
Detainers time limit in a speedy trial motion is not a waiver of
the former argument). In this case, respondents made two arguments
based on the unavailability of the presumption and the consequent
total absence, in their view, of proof of the crime. The first,
that the statutory "upon the person" exception to the presumption
should apply in this case, was made in the middle of trial at the
close of the prosecutor's case and then repeated at the close of
the defendants' case. Tr. 554-590; App. 12a-17a. Indeed,
respondents arguably made this claim even earlier, during the
middle of the government's case, when they unsuccessfully objected
to the introduction of the handguns in evidence on the ground that
there was "nothing [in the record up to that point] to connect this
weapon with the . . . defendants." Tr. 474-502. Although the
constitutional counterpart to this argument was not made until just
after the verdict was announced, the earlier objection to the
State's reliance on the presumption might suffice under these cases
as an adequate contemporaneous objection.
See
N.Y.Crim.Proc.Law § 470.05(2) (McKinney 1971);
n 8,
supra. The logical linkage between
the two objections is suggested by legislative history and case law
in New York indicating that the "upon the person" exception was
included in the presumption statute to avoid constitutional
problems.
See People v. Logan, 94 N.Y.S.2d 681, 684
(Sup.Ct., 1949); Report of the New York State Joint Legislative
Committee on Firearms and Ammunition, N.Y.Leg.Doc. No. 29, p. 21
(1962).
[
Footnote 11]
Section 330.30(1) of the N.Y.Crim.Proc.Law (McKinney 1971)
authorizes a trial court to grant a motion to set aside the verdict
"[a]t any time after rendition of a verdict of guilty and before
sentence" on
"[a]ny ground appearing in the record which, if raised upon an
appeal from a prospective judgment of conviction, would require a
reversal or modification of the judgment as a matter of law by an
appellate court."
[
Footnote 12]
40 N.Y.2d at 514-515, 354 N.E.2d at 842-843 (Wachtler, J.,
concurring and dissenting);
id. at 516, 354 N.E.2d at
843-844 (Fuchsberg, J., concurring and dissenting).
[
Footnote 13]
Moreover, looking beyond its position as an adversary in this
litigation, it is arguable that the State of New York will benefit
from an authoritative resolution of the conflict between its own
courts and the federal courts sitting in New York concerning the
constitutionality of one of its statutes.
[
Footnote 14]
Indeed, in this very case, the permissive presumptions in §
265.15(3) and its companion drug statute, N.Y.Penal Law § 220.25(1)
(McKinney Supp. 1978), were insufficient to persuade the jury to
convict the defendants of possession of the loaded machinegun and
heroin in the trunk of the car, notwithstanding the supporting
testimony that at least two of them had been seen transferring
something into the trunk that morning.
See n 3,
supra.
The hypothetical, even implausible, nature of the situations
relied upon by the Court of Appeals is illustrated by the fact that
there are no reported cases in which the presumption led to
convictions in circumstances even remotely similar to the posited
situations. In those occasional cases in which a jury has reached a
guilty verdict on the basis of evidence insufficient to justify an
inference of possession from presence, the New York appellate
courts have not hesitated to reverse.
E.g., People v.
Scott, 53 App.Div.2d 703, 38 N.Y.S.2d 878 (1976);
People
v. Garcia, 41 App.Div.2d 560, 340 N.Y.S.2d 35 (1973).
In light of the improbable character of the situations
hypothesized by the Court of Appeals, its facial analysis would
still be unconvincing even were that type of analysis appropriate.
This Court has never required that a presumption be accurate in
every imaginable case.
See Leary v. United States, 395
U.S. at
395 U. S. 53.
[
Footnote 15]
See n 4,
supra, and accompanying text. Thus, the assumption that it
would be unconstitutional to apply the statutory presumption to a
hitchhiker in a car containing a concealed weapon does not
necessarily advance the constitutional claim of the driver of a car
in which a gun was found on the front seat, or of other defendants
in entirely different situations.
[
Footnote 16]
This class of more or less mandatory presumptions can be
subdivided into two parts: presumptions that merely shift the
burden of production to the defendant, following the satisfaction
of which the ultimate burden of persuasion returns to the
prosecution; and presumptions that entirely shift the burden of
proof to the defendant. The mandatory presumptions examined by our
cases have almost uniformly fit into the former subclass, in that
they never totally removed the ultimate burden of proof beyond a
reasonable doubt from the prosecution.
E.g., Tot v. United
States, 319 U.S. at
319 U. S. 469.
See Roviaro v. United States, 353 U. S.
53,
353 U. S. 63,
describing the operation of the presumption involved in
Turner,
Leary, and
Romano.
To the extent that a presumption imposes an extremely low burden
of production --
e.g., being satisfied by "any" evidence
-- it may well be that its impact is no greater than that of a
permissive inference, and it may be proper to analyze it as such.
See generally Mullaney v. Wilbur, 421 U.
S. 684,
421 U. S. 703
n. 31.
In deciding what type of inference or presumption is involved in
a case, the jury instructions will generally be controlling,
although their interpretation may require recourse to the statute
involved and the cases decided under it.
Turner v. United
States provides a useful illustration of the different types of
presumptions. It analyzes the constitutionality of two different
presumption statutes (one mandatory and one permissive) as they
apply to the basic fact of possession of both heroin and cocaine,
and the presumed facts of importation and distribution of narcotic
drugs. The jury was charged essentially in the terms of the two
statutes.
The importance of focusing attention on the precise presentation
of the presumption to the jury and the scope of that presumption is
illustrated by a comparison of
United States v. Gainey,
380 U. S. 63, with
United States v. Romano. Both cases involved statutory
presumptions based on proof that the defendant was present at the
site of an illegal still. In
Gainey, the Court sustained a
conviction "for carrying on" the business of the distillery in
violation of 26 U.S.C. § 5601(a)(4), whereas in
Romano,
the Court set aside a conviction for being in "possession, or
custody, or . . . control" of such a distillery in violation of §
5601(a)(1). The difference in outcome was attributable to two
important differences between the cases. Because the statute
involved in
Gainey was a sweeping prohibition of almost
any activity associated with the still, whereas the
Romano
statute involved only one narrow aspect of the total undertaking,
there was a much higher probability that mere presence could
support an inference of guilt in the former case than in the
latter.
Of perhaps greater importance, however, was the difference
between the trial judge's instructions to the jury in the two
cases. In
Gainey, the judge had explained that the
presumption was permissive; it did not require the jury to convict
the defendant even if it was convinced that he was present at the
site. On the contrary, the instructions made it clear that presence
was only "
a circumstance to be considered along with all the
other circumstances in the case.'" As we emphasized, the "jury was
thus specifically told that the statutory inference was not
conclusive." 380 U.S. at 380 U. S. 69-70.
In Romano, the trial judge told the jury that the
defendant's presence at the still "`shall be deemed sufficient
evidence to authorize conviction.'" 382 U.S. at 382 U. S. 138.
Although there was other evidence of guilt, that instruction
authorized conviction even if the jury disbelieved all of the
testimony except the proof of presence at the site. This Court's
holding that the statutory presumption could not support the
Romano conviction was thus dependent, in part, on the
specific instructions given by the trial judge. Under those
instructions, it was necessary to decide whether, regardless of the
specific circumstances of the particular case, the statutory
presumption adequately supported the guilty verdict.
[
Footnote 17]
In addition to the discussion of
Romano in
n 16,
supra, this point is
illustrated by
Leary v. United States. In that case, Dr.
Timothy Leary, a professor at Harvard University, was stopped by
customs inspectors in Laredo, Tex., as he was returning from the
Mexican side of the international border. Marihuana seeds and a
silver snuffbox filled with semi-refined marihuana and three
partially smoked marihuana cigarettes were discovered in his car.
He was convicted of having knowingly transported marihuana which he
knew had been illegally imported into this country in violation of
21 U.S.C. § 176a (1964 ed.). That statute included a mandatory
presumption:
"possession shall be deemed sufficient evidence to authorize
conviction [for importation] unless the defendant explains his
possession to the satisfaction of the jury."
Leary admitted possession of the marihuana and claimed that he
had carried it from New York to Mexico and then back.
Mr. Justice Harlan for the Court noted that, under one theory of
the case, the jury could have found direct proof of all of the
necessary elements of the offense without recourse to the
presumption. But he deemed that insufficient reason to affirm the
conviction because, under another theory, the jury might have found
knowledge of importation on the basis of either direct evidence or
the presumption, and there was accordingly no certainty that the
jury had not relied on the presumption. 395 U.S. at
395 U. S. 31-32.
The Court therefore found it necessary to test the presumption
against the Due Process Clause. Its analysis was facial. Despite
the fact that the defendant was well educated and had recently
traveled to a country that is a major exporter of marihuana to this
country, the Court found the presumption of knowledge of
importation from possession irrational. It did so not because Dr.
Leary was unlikely to know the source of the marihuana, but instead
because "a majority of possessors" were unlikely to have such
knowledge.
Id. at
395 U. S. 53. Because the jury had been instructed to
rely on the presumption even if it did not believe the Government's
direct evidence of knowledge of importation (unless, of course, the
defendant met his burden of "satisfying" the jury to the contrary),
the Court reversed the conviction.
[
Footnote 18]
Indeed, the court never even discussed the jury
instructions.
[
Footnote 19]
"It is your duty to consider all the testimony in this case, to
weigh it carefully and to test the credit to be given to a witness
by his apparent intention to speak the truth and by the accuracy of
his memory to reconcile, if possible, conflicting statements as to
material facts and in such ways to try and get at the truth and to
reach a verdict upon the evidence."
Tr. 739-740.
"To establish the unlawful possession of the weapons, again the
People relied upon the presumption and, in addition thereto, the
testimony of Anderson and Lemmons, who testified in their case in
chief."
Id. at 744.
"Accordingly, you would be warranted in returning a verdict of
guilt against the defendants or defendant if you find the
defendants or defendant was in possession of a machine gun and the
other weapons and that the fact of possession was proven to you by
the People beyond a reasonable doubt, and an element of such proof
is the reasonable presumption of illegal possession of a machine
gun or the presumption of illegal possession of firearms, as I have
just before explained to you."
Id. at 746.
[
Footnote 20]
"Our Penal Law also provides that the presence in an automobile
of any machine gun or of any handgun or firearm which is loaded is
presumptive evidence of their unlawful possession."
"In other words, these presumptions or this latter presumption
upon proof of the presence of the machine gun and the hand weapons,
you may infer and draw a conclusion that such prohibited weapon was
possessed by each of the defendants who occupied the automobile at
the time when such instruments were found. The presumption or
presumptions is effective only so long as there is no substantial
evidence contradicting the conclusion flowing from the presumption,
and the presumption is said to disappear when such contradictory
evidence is adduced."
Id. at 743.
"The presumption or presumptions which I discussed with the jury
relative to the drugs or weapons in this case need not be rebutted
by affirmative proof or affirmative evidence, but may be rebutted
by any evidence or lack of evidence in the case."
Id. at 760.
[
Footnote 21]
"As so defined, possession means actual physical possession,
just as having the drugs or weapons in one's hand, in one's home or
other place under one's exclusive control, or constructive
possession which may exist without personal dominion over the drugs
or weapons but with the intent and ability to retain such control
or dominion."
Id. at 742.
[
Footnote 22]
"[Y]ou are the exclusive judges of all the questions of fact in
this case. That means that you are the sole judges as to the weight
to be given to the evidence and to the weight and probative value
to be given to the testimony of each particular witness and to the
credibility of any witness."
Id. at 730.
"Under our law, every defendant in a criminal trial starts the
trial with the presumption in his favor that he is innocent, and
this presumption follows him throughout the entire trial and
remains with him until such time as you, by your verdict, find him
or her guilty beyond a reasonable doubt or innocent of the charge.
If you find him or her not guilty, then, of course, this
presumption ripens into an established fact. On the other hand, if
you find him or her guilty, then this presumption has been
overcome, and is destroyed."
Id. at 734.
"Now, in order to find any of the defendants guilty of the
unlawful possession of the weapons, the machine gun, the .45 and
the .38, you must be satisfied beyond a reasonable doubt that the
defendants possessed the machine gun and the .45 and the .38,
possessed it as I defined it to you before."
Id. at 745.
[
Footnote 23]
The verdict announced by the jury clearly indicates that it
understood its duty to evaluate the presumption independently and
to reject it if it was not supported in the record. Despite
receiving almost identical instructions on the applicability of the
presumption of possession to the contraband found in the front seat
and in the trunk, the jury convicted all four defendants of
possession of the former, but acquitted all of them of possession
of the latter.
See n 14,
supra.
[
Footnote 24]
Jane Doe's counsel referred to the .45-caliber automatic pistol
as a "cannon." Tr. 306.
[
Footnote 25]
The evidence would have allowed the jury to conclude either that
the handbag was on the front floor or front seat.
[
Footnote 26]
Indeed, counsel for two of the respondents virtually invited the
jury to find to the contrary:
"One more thing. You know, different people live in different
cultures and different societies. You may think that the way
[respondent] Hardrick has his hair done up is unusual; it may seem
strange to you. People live differently. . . . For example, if you
were living under their times and conditions and you traveled from
a big city, Detroit, to a bigger city, New York City,
it is not
unusual for people to carry guns, small arms, to protect
themselves, is it? There are places in New York City policemen
fear to go. But you have got to understand; you are sitting here as
jurors. These are people, live flesh and blood, the same as you,
different motives, different objectives."
Id. at 653-654 (emphasis added).
See also id.
at 634.
It is also important in this regard that respondents passed up
the opportunity to have the jury instructed not to apply the
presumption if it determined that the handguns were "upon the
person" of Jane Doe.
[
Footnote 27]
The New York Court of Appeals first upheld the constitutionality
of the presumption involved in this case in
People v.
Russo, 303 N.Y. 673, 102 N.E.2d 834 (1951). That decision
relied upon the earlier case of
People v. Terra, 303 N.Y.
332, 102 N.E.2d 576 (1951), which upheld the constitutionality of
another New York statute that allowed a jury to presume that the
occupants of a room in which a firearm was located possessed the
weapon. The analysis in
Terra, the appeal in which this
Court dismissed for want of a substantial federal question, 342
U.S. 938, is persuasive:
"[T]here can be no doubt about the 'sinister significance' of
proof of a machine gun in a room occupied by an accused or about
the reasonableness of the connection between its illegal possession
and occupancy of the room where it is kept. Persons who occupy a
room, who either reside in it or use it in the conduct and
operation of a business or other venture -- and that is what in its
present context the statutory term 'occupying' signifies . . . --
normally know what is in it; and, certainly, when the object is as
large and uncommon as a machine gun, it is neither unreasonable nor
unfair to presume that the room's occupants are aware of its
presence. That being so, the legislature may not be considered
arbitrary if it acts upon the presumption and erects it into
evidence of a possession that is 'conscious' and 'knowing.'"
303 N.Y. at 335-336, 102 N.E.2d at 578-579.
See also Interim Report of Temporary State Commission
to Evaluate the Drug Laws, N.Y.Leg.Doc.No. 10, p. 69 (1972), in
which the drafters of the analogous automobile/narcotics
presumption in N.Y. Penal Law § 220.25 (McKinney Supp. 1978),
explained the basis for that presumption:
"We believe, and find, that it is rational and logical to
presume that all occupants of a vehicle are aware of, and culpably
involved in, possession of dangerous drugs found abandoned or
secreted in a vehicle when the quantity of the drug is such that it
would be extremely unlikely for an occupant to be unaware of its
presence. . . ."
"We do not believe that persons transporting dealership
quantities of contraband are likely to go driving about with
innocent friends, or that they are likely to pick up strangers. We
do not doubt that this can and does in fact occasionally happen,
but because we find it more reasonable to believe that the bare
presence in the vehicle is culpable, we think it reasonable to
presume culpability in the direction which the proven facts already
point. Since the presumption is an evidentiary one, it may be
offset by any evidence, including the testimony of the defendant,
which would negate the defendant's culpable involvement."
Legislative judgments such as this one deserve respect in
assessing the constitutionality of evidentiary presumptions.
E.g., Leary v. United States, 395 U.S. at
395 U. S. 39;
United States v. Gainey, 380 U.S. at
380 U. S.
67.
[
Footnote 28]
"The upshot of
Tot, Gainey, and
Romano is, we
think, that 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. at
395 U. S. 36.
[
Footnote 29]
The dissenting argument rests on the assumption that "the jury
[may have] rejected all of the prosecution's evidence concerning
the location and origin of the guns."
Post at
442 U. S.
175-176. Even if that assumption were plausible, the
jury was plainly told that it was free to disregard tho
presumption. But the dissent's assumption is not plausible; for if
the jury rejected the testimony describing where the guns were
found, it would necessarily also have rejected the only evidence in
the record proving that the guns were found in the car. The
conclusion that the jury attached significance to the particular
location of the handguns follows inexorably from the acquittal on
the charge of possession of the machinegun and heroin in the
trunk.
MR. CHIEF JUSTICE BURGER, concurring.
I join fully in the Court's opinion reversing the judgment under
review. In the necessarily detailed step-by-step analysis of the
legal issues, the central and controlling facts of a case often can
become lost. The "underbrush" of finely tuned legal analysis of
complex issues tends to bury the facts.
On this record, the jury could readily have reached the same
result without benefit of the challenged statutory presumption;
here it reached what was rather obviously a compromise verdict.
Even without relying on evidence that two people had been seen
placing something in the car trunk shortly before respondents
occupied it, and that a machinegun and a package of heroin were
soon after found in that trunk, the jury apparently decided that it
was enough to hold the passengers to knowledge of the two handguns
which were in
Page 442 U. S. 168
such plain view that the officer could see them from outside the
car. Reasonable jurors could reasonably find that what the officer
could see from outside, the passengers within the car could hardly
miss seeing. Courts have long held that, in the practical business
of deciding cases, the factfinders, not unlike negotiators, are
permitted the luxury of verdicts reached by compromise.
MR. JUSTICE POWELL, with whom MR. JUSTICE BRENNAN, MR JUSTICE
STEWART, and MR JUSTICE MARSHALL join, dissenting.
I agree with the Court that there is no procedural bar to our
considering the underlying constitutional question presented by
this case. I am not in agreement, however, with the Court's
conclusion that the presumption as charged to the jury in this case
meets the constitutional requirements of due process as set forth
in our prior decisions. On the contrary, an individual's mere
presence in an automobile where there is a handgun does not even
make it "more likely than not" that the individual possesses the
weapon
I
In the criminal law, presumptions are used to encourage the jury
to find certain facts, with respect to which no direct evidence is
presented, solely because other facts have been proved. [
Footnote 2/1]
See, e.g., Barnes v.
United States, 412 U. S. 837,
412 U. S. 840
n. 3 (1973);
United States v. Romano, 382 U.
S. 136,
382 U. S. 138
(1965). The purpose of such presumptions is plain: like certain
other jury instructions, they provide guidance for jurors' thinking
in considering the evidence laid before them.
Page 442 U. S. 169
Once in the jury room, jurors necessarily draw inferences from
the evidence -- both direct and circumstantial. Through the use of
presumptions, certain inferences are commended to the attention of
jurors by legislatures or courts.
Legitimate guidance of a jury's deliberations is an
indispensable part of our criminal justice system. Nonetheless, the
use of presumptions in criminal cases poses at least two distinct
perils for defendants' constitutional rights. The Court accurately
identifies the first of these as being the danger of interference
with "the factfinder's responsibility at trial, based on evidence
adduced by the State, to find the ultimate facts beyond a
reasonable doubt."
Ante at
442 U. S. 156.
If the jury is instructed that it must infer some ultimate fact
(that is, some element of the offense) from proof of other facts
unless the defendant disproves the ultimate fact by a preponderance
of the evidence, then the presumption shifts the burden of proof to
the defendant concerning the element thus inferred. [
Footnote 2/2]
But I do not agree with the Court's conclusion that the only
constitutional difficulty with presumptions lies in the danger of
lessening the burden of proof the prosecution must bear. As the
Court notes, the presumptions thus far reviewed by the Court have
not shifted the burden of persuasion,
see ante at
442 U. S.
157-159, n. 16; instead, they either have required only
that the defendant produce some evidence to rebut the inference
suggested by the prosecution's evidence,
see Tot v. United
States, 319 U. S. 463
(1943), or merely have been suggestions to the
Page 442 U. S. 170
jury that it would be sensible to draw certain conclusions on
the basis of the evidence presented. [
Footnote 2/3]
See Barnes v. United States,
supra at
412 U. S. 840
n. 3. Evolving from our decisions, therefore, is a second standard
for judging the constitutionality of criminal presumptions which is
based -- not on the constitutional requirement that the State be
put to its proof -- but rather on the due process rule that, when
the jury is encouraged to make factual inferences, those inferences
must reflect some valid general observation about the natural
connection between events as they occur in our society.
This due process rule was first articulated by the Court in
Tot v. United States, supra, in which the Court reviewed
the constitutionality of § 2(f) of the Federal Firearms Act. That
statute provided in part that
"possession of a firearm or ammunition by any . . . person [who
has been convicted of a crime of violence] shall be presumptive
evidence that such firearm or ammunition was shipped or transported
[in interstate or foreign commerce]."
As the Court interpreted the presumption, it placed upon a
defendant only the obligation of presenting some exculpatory
evidence concerning the origins of a firearm or ammunition, once
the Government proved that the defendant had possessed the weapon
and had been convicted of a crime of violence. Noting that juries
must be permitted to infer from one fact the existence of another
essential to guilt, "if reason and experience support the
inference," 319 U.S. at
319 U. S. 467,
the Court concluded that, under some circumstances, juries may be
guided in making these inferences by legislative or common law
presumptions, even though they
Page 442 U. S. 171
may be based "upon a view of relation broader than that a jury
might take in a specific case,"
id. at
319 U. S. 468.
To provide due process, however, there must be at let a "rational
connection between the fact proved and the ultimate fact presumed"
-- a connection grounded in "common experience."
Id. at
319 U. S.
467-468. In
Tot, the Court found that
connection to be lacking. [
Footnote
2/4]
Subsequently, in
Leary v. United States, 395 U. S.
6 (1969), the Court reaffirmed and refined the due
process requirement of
Tot that inferences specifically
commended to the attention of jurors must reflect generally
accepted connections between related events. At issue in
Leary was the constitutionality of a federal statute
making it a crime to receive, conceal, buy, or sell marihuana
illegally brought into the United States, knowing it to have been
illegally imported. The statute provided that mere possession of
marihuana "shall be deemed sufficient evidence to authorize
conviction unless the defendant explains his possession to the
satisfaction of the jury." After reviewing the Court's decisions in
Tot v. United States, supra, and other criminal
presumption cases, Mr. Justice Harlan, writing for the Court,
concluded
"that 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. at 36 (footnote omitted). The Court invalidated the
statute, finding there to be insufficient basis in fact for the
conclusion that those who possess marihuana are more likely than
not to know that it was imported illegally. [
Footnote 2/5]
Page 442 U. S. 172
Most recently, in
Barnes v. United States, we
considered the constitutionality of a quite different sort of
presumption -- one that suggested to the jury that
"'[p]ossession of recently stolen property, if not
satisfactorily explained, is ordinarily a circumstance from which
you may reasonably draw the inference . . . that the person in
possession knew the property had been stolen.'"
412 U.S. at
412 U. S. 840
n. 3. After reviewing the various formulations used by the Court to
articulate the constitutionally required basis for a criminal
presumption, we once again found it unnecessary to choose among
them. As for the presumption suggested to the jury in
Barnes, we found that it was well founded in history,
common sense, and experience, and therefore upheld it as being
"clearly sufficient to enable the jury to find beyond a reasonable
doubt" that those in the unexplained possession of recently stolen
property know it to have been stolen.
Id. at 845.
In sum, our decisions uniformly have recognized that due process
requires more than merely that the prosecution be put to its proof.
[
Footnote 2/6] In addition, the
Constitution restricts the court in its charge to the jury by
requiring that, when particular factual inferences are recommended
to the jury, those factual inferences be accurate reflections of
what history, common sense, and experience tell us about the
relations between events in our society. Generally, this due
process rule has been articulated as requiring that the truth of
the inferred fact be more likely than not whenever the premise for
the inference is true. Thus, to be constitutional, a presumption
must be at least more likely than not true.
Page 442 U. S. 173
II
In the present case, the jury was told:
"Our Penal Law also provides that the presence in an automobile
of any machine gun or of any handgun or firearm which is loaded is
presumptive evidence of their unlawful possession. In other words,
[under] these presumptions or this latter presumption, upon proof
of the presence of the machine gun and the hand weapons, you may
infer and draw a conclusion that such prohibited weapon was
possessed by each of the defendants who occupied the automobile at
the time when such instruments were found. The presumption or
presumptions is effective only so long as there is no substantial
evidence contradicting the conclusion flowing from the presumption,
and the presumption is said to disappear when such contradictory
evidence is adduced."
Undeniably, the presumption charged in this case encouraged the
jury to draw a particular factual inference regardless of any other
evidence presented: to infer that respondents possessed the weapons
found in the automobile "upon proof of the presence of the machine
gun and the hand weapon" and proof that respondents "occupied the
automobile at the time such instruments were found." I believe that
the presumption thus charged was unconstitutional because it did
not fairly reflect what common sense and experience tell us about
passengers in automobiles and the possession of handguns. People
present in automobiles where there are weapons simply are not "more
likely than not" the possessors of those weapons.
Under New York law, "to possess" is "to have physical possession
or otherwise to exercise dominion or control over tangible
property." N.Y. Penal Law § 10.00 (8) (McKinney 1975). Plainly, the
mere presence of an individual in an automobile -- without more --
does not indicate that he exercises "dominion or control over"
everything within it. As the
Page 442 U. S. 174
Court of Appeals noted, there are countless situations in which
individuals are invited as guests into vehicles the contents of
which they know nothing about, much less have control over.
Similarly, those who invite others into their automobile do not
generally search them to determine what they may have on their
person; nor do they insist that any handguns be identified and
placed within reach of the occupants of the automobile. Indeed,
handguns are particularly susceptible to concealment, and therefore
are less likely than are other objects to be observed by those in
an automobile.
In another context, this Court has been particularly hesitant to
infer possession from mere presence in a location, noting that
"[p]resence is relevant and admissible evidence in a trial on a
possession charge; but absent some showing of the defendant's
function at the [illegal] still, its connection with possession is
too tenuous to permit a reasonable inference of guilt -- 'the
inference of the one from proof of the other is arbitrary. . . .'
Tot v. United States, 319 U. S. 463,
319 U. S.
467."
United States v. Romano, 382 U.S. at
382 U. S. 141.
We should be even more hesitant to uphold the inference of
possession of a handgun from mere presence in an automobile, in
light of common experience concerning automobiles and handguns.
Because the specific factual inference recommended to the jury in
this case is not one that is supported by the general experience of
our society, I cannot say that the presumption charged is "more
likely than not" to be true. Accordingly, respondents' due process
rights were violated by the presumption's use.
As I understand it, the Court today does not contend that, in
general, those who are present in automobiles are more likely than
not to possess any gun contained within their vehicles. It argues,
however, that the nature of the presumption here involved requires
that we look, not only to the immediate facts upon which the jury
was encouraged to base its inference, but to the other facts
"proved" by the prosecution
Page 442 U. S. 175
as well. The Court suggests that this is the proper approach
when reviewing what it calls "permissive" presumptions because the
jury was urged "to consider all the circumstances tending to
support or contradict the inference."
Ante at
442 U. S.
162.
It seems to me that the Court mischaracterizes the function of
the presumption charged in this case. As it acknowledges was the
case in
Romano, supra, the "instruction authorized
conviction even if the jury disbelieved all of the testimony except
the proof of presence" in the automobile. [
Footnote 2/7]
Ante at
442 U. S. 159
n. 16. The Court nevertheless relies on all of the evidence
introduced by the prosecution and argues that the "permissive"
presumption could not have prejudiced defendants. The possibility
that the jury disbelieved all of this evidence, and relied on the
presumption, is simply ignored.
I agree that the circumstances relied upon by the Court in
determining the plausibility of the presumption charged in this
case would have made it reasonable for the jury to
"infer that each of the respondents was fully aware of the
presence of the guns and had both the ability and the intent to
exercise dominion and control over the weapons."
But the jury was told that it could conclude that respondents
possessed the weapons found therein from proof of the mere fact of
respondents' presence in the automobile. For all we know, the jury
rejected all of the prosecution's evidence
Page 442 U. S. 176
concerning the location and origin of the guns, and based its
conclusion that respondents possessed the weapons solely upon its
belief that respondents had been present in the automobile.
[
Footnote 2/8] For purposes of
reviewing the constitutionality of the presumption at issue here,
we must assume that this was the case.
See Bollenbach v. United
States, 326 U. S. 607,
326 U. S. 613
(1946);
cf. Leary v. United States, 395 U.S. at
395 U. S. 31.
The Court's novel approach in this case appears to contradict
prior decisions of this Court reviewing such presumptions. Under
the Court's analysis, whenever it is determined that an inference
is "permissive," the only question is whether, in light of all of
the evidence adduced at trial, the inference recommended to the
jury is a reasonable one. The Court has never suggested that the
inquiry into the rational basis of a permissible inference may be
circumvented in this manner. Quite the contrary, the Court has
required that the "evidence
necessary to invoke the
inference [be] sufficient for a rational juror to find the
inferred fact. . . ."
Barnes v. United States, 412 U.S. at
843 (emphasis supplied).
See Turner v. United States,
396 U. S. 398,
396 U. S. 407
(1970). Under the presumption charged in this case, the only
evidence necessary to invoke the inference was the presence of the
weapons in the automobile with respondents -- an inference that is
plainly irrational.
Page 442 U. S. 177
In sum, it seems to me that the Court today ignores the teaching
of our prior decisions. By speculating about what the jury may have
done with the factual inference thrust upon it, the Court in effect
assumes away the inference altogether, constructing a rule that
permits the use of any inference -- no matter how irrational in
itself -- provided that otherwise there is sufficient evidence in
the record to support a finding of guilt. Applying this novel
analysis to the present case, the Court upholds the use of a
presumption that it makes no effort to defend in isolation. In
substance, the Court -- applying an unarticulated harmless error
standard -- simply finds that the respondents were guilty as
charged. They may well have been, but rather than acknowledging
this rationale, the Court seems to have made new law with respect
to presumptions that could seriously jeopardize a defendant's right
to a fair trial. Accordingly, I dissent.
[
Footnote 2/1]
Such encouragement can be provided either by statutory
presumptions,
see, e.g., 18 U.S.C. § 1201(b), or by
presumptions created in the common law.
See, e.g., Barnes v.
United States, 412 U. S. 837
(1973). Unless otherwise specified, "presumption" will be used
herein to refer to "permissible inferences," as well as to "true"
presumptions.
See F. James, Civil Procedure § 7.9
(1965).
[
Footnote 2/2]
The Court suggests that presumptions that shift the burden of
persuasion to the defendant in this way can be upheld provided that
"the fact proved is sufficient to support the inference of guilt
beyond a reasonable doubt."
Ante at
442 U. S. 167.
As the present case involves no shifting of the burden of
persuasion, the constitutional restrictions on such presumptions
are not before us, and I express no views on them.
It may well be that even those presumptions that do not shift
the burden of persuasion cannot be used to prove an element of the
offense, if the facts proved would not permit a reasonable mind to
find the presumed fact beyond a reasonable doubt. My conclusion in
442 U. S.
infra, makes it unnecessary for me to address this concern
here.
[
Footnote 2/3]
The Court suggests as the touchstone for its analysis a
distinction between "mandatory" and "permissive" presumptions.
See ante at
442 U. S. 157.
For general discussions of the various forms of presumptions,
see Jeffries & Stephan, Defenses, Presumptions, and
Burden of Proof in the Criminal Law, 88 Yale L.J. 1325 (1979); F.
James, Civil Procedure § 7.9 (1965). I have found no recognition in
the Court's prior decisions that this distinction is important in
analyzing presumptions used in criminal cases.
Cf. ibid.
(distinguishing true "presumptions" from "permissible
inferences").
[
Footnote 2/4]
The analysis of
Tot v. United States was used by the
Court in
United States v. Gainey, 380 U. S.
63 (1965), and
United States v. Romano,
382 U. S. 136
(1965).
[
Footnote 2/5]
Because the statute in
Leary v. United States was found
to be unconstitutional under the "more likely than not" standard,
the Court explicitly declined to consider whether criminal
presumptions also must follow "beyond a reasonable doubt" from
their premises, if an essential element of the crime depends upon
the presumption's use. 395 U.S. at
395 U. S. 36 n.
64.
See 442
U.S. 140fn2/2|>n. 2,
supra. The Court similarly
avoided this question in
Turner v. United States,
396 U. S. 398,
396 U. S. 416
(1970).
[
Footnote 2/6]
The Court apparently disagrees, contending that "the
factfinder's responsibility . . . to find the ultimate facts beyond
a reasonable doubt" is the only constitutional restraint upon the
use of criminal presumptions at trial.
See ante at
442 U. S.
156.
[
Footnote 2/7]
In commending the presumption to the jury, the court gave no
instruction that would have required a finding of possession to be
based on anything more than mere presence in the automobile. Thus,
the jury was not instructed that it should infer that respondents
possessed the handguns only if it found that the guns were too
large to be concealed in Jane Doe's handbag,
ante at
442 U. S. 163;
that the guns accordingly were in the plain view of respondents,
ibid.; that the weapons were within "easy access of the
driver of the car and even, perhaps, of the other two respondents
who were riding in the rear seat,"
ibid.; that it was
unlikely that Jane Doe was solely responsible for the placement of
the weapons in her purse,
ibid.; or that the case was
"tantamount to one in which the guns were lying on the floor or the
seat of the car in the plain view of the three other occupants of
the automobile."
Ante at
442 U. S.
164.
[
Footnote 2/8]
The Court is therefore mistaken in its conclusion that,
because
"respondents were not 'hitchhikers or other casual passengers,'
and the guns were neither 'a few inches in length' nor 'out of
[respondents'] sight,'"
reference to these possibilities is inappropriate in considering
the constitutionality of the presumption as charged in this case.
Ante at
442 U. S. 163.
To be sure, respondents' challenge is to the presumption as charged
to the jury in this case. But in assessing its application here, we
are not free, as the Court apparently believes, to disregard the
possibility that the jury may have disbelieved all other evidence
supporting an inference of possession. The jury may have concluded
that respondents -- like hitchhikers -- had only an incidental
relationship to the auto in which they were traveling, or that,
contrary to some of the testimony at trial, the weapons were indeed
out of respondents' sight.