Cornell Fuller v. Charles E. Anderson
662 F.2d 420
6th Cir.
1981
Check Treatment

*1 1979). the law of the cir- That decision is

cuit, obliged we would be to adhere to

it, convinced, as indeed even were we are, dispositive. Wil-

we that Sanders Services, F.2d

liams v. Blazer Financial (5th 1979); Cargill Cir. Inc. Offshore

Logistics, Inc., (5th 615 F.2d 212 Cir.

Accordingly, the decision is AFFIRMED. FULLER, Petitioner-Appellee, ANDERSON,

Charles E.

Respondent-Appellant.

No. 80-1808. Appeals,

United States Court

Sixth Circuit.

Argued June Sept.

Decided Kelley, Atty. Michigan,

Frank J. Gen. of Gen., Casey, Atty. Lansing, Thomas L. Asst. Mich., respondent-appellant. for Sasse, Detroit, Mich., peti- Kenneth R. tioner-appellee. EDWARDS, Judge,

Before Chief KEITH, Judges. WEICK and Circuit KEITH, Judge. Circuit appeal by This is an of Michi- State gan from a of the United States the Eastern District District Court for *2 gasoline a for a of writ testified that on por- corpus. granted The district court siding. tions of the house petition- writ because it found that the Brownlee, Helen who lived next-door to er’s jury felony verdict of murder was not residence, Turner that on the testified supported by sufficient evidence. For the morning May boys of 18 she saw five*or six below, reasons discussed we affirm the together group in a in front of the Turner Judge of Chief John Feikens. home. She testified that Fuller was one of the saw boys. She Fuller and one or go boys through gate two other of front Petitioner Cornell Fuller was convicted yard. They Turner went to the of rear by a felony murder in the Record- time, the Turner Detroit, er’s residence. At that she Michigan.1 He was front, sentenced to serve life in prison boys, and has saw one who was still in served at least nine years of that sentence. something. boys throw yelled She , she thought they because had thrown some- On morning of May 1970 a fire thing at her house. She ran out of her destroyed the home of Safronia Turner Lemay house, in Detroit. onto porch, Mrs. Turner and the front and saw that n several managed escape children the Turner on house was fire. blaze,-but two of Mrs. Turner’s children— Coleman, Fourteen-year Jeffrey old a Ruth' Regina and killed in the fire. —were children, friend of one of the Turner testi- A department fire investigation revealed fied that on morning he left 18th apparently the fire was by caused a eight his house at o’clock to for the head deliberately “Molotov cocktail” thrown into Turner’s through residence. When he went the rear of the Turner residence. Petition- backyard neighbor approached of a and er Fuller was arrested and charged rear, the Turner’s residence from the degree first murder in violation of M.C. saw Zerious Meadows the Turner’s back L.A. alleged, 750.316.2 The State § as the porch. He standing saw Cornell Fuller in- underlying felony, that Fuller aided and by backyard gate. side the abetted Zerious Coleman deliberately Meadows in setting-3 the fire at the ig- Turner residence. testified that he saw Zerious Meadows raga nite that was a stuffed inside bottle. The following evidence was introduced at Meadows then threw the against bottle Robinson, Fuller trial. Cap- Marshall house, starting Turner’s fire. He saw a tain of the Department, Detroit Fire testi- Meadows fied then strike a match and start “Molotov appeared cocktail” - Kuntz, Jeffrey caused the another fire. Robert fire. Coleman also testi- chemist with the Detroit Fire Department, as fied follows: by Michigan 1. This provides specific conviction was affirmed 3. M.C.L.A. 750.72 § in- Appeals, People required tent Mich. in order to commit arson: App. (1973), 205 N.W.2d 287 and Any person willfully maliciously who or Court, divided Fuller, any house, dwelling occupied burns or either 395 Mich. 236 N.W.2d 58 thereof, unoccupied, or the contents whether another, any building owned himself or or 750.316; pro- 2. M.C.L.A. § M.S.A. 28.548 § house, curtilage within the of such vides; thereof, or the contents shall be ' felony, punishable by Degree imprisonment First Murder—AH murder which prison years. perpetrated by poison, shall more than 20 be means of or 767.39; provides: lying wait, willful, § M.C.L.A. M.S.A. 28.979 or other kind of Every person premeditated killing, concerned in the commission deliberate and or which offense, directly perpetration, whether he commits shall be committed in the or procures, attempt arson, constituting perpetrate any rape, act offense or rob- counsels, aids, bery burglary, or abets in its commission shall be murder of the first may indicted, degree, prosecuted, punished by solitary be tried hereafter shall be con- punished conviction prison on directly shall be finement at hard labor the state had committed such offense. life. match A. No. Now, struck the he had Q. after hap- fire what the second to them? Q. you say anything and started Did pened then? A. No. Well, porch off the jumped that, he had

A. Q. Now, please after —strike —af- alley down the to- began, you ran fire testified the second then ter *3 back- left the Kercheval. that Zerious and Cornell wards yard; is that correct? Q. say they ran down the you When Yes, alley? A. sir. alley, who ran down Q. they alley? Did enter and Cornell. A. Zerious Yes, A. sir. Q. Towards Kercheval? alley through the Q. they Did enter the Yes,

A. sir. standing gate that Fuller Q. Zerious Mead- During the time that by? throwing against the bottle ows was Yes, A. sir. against the house or the side side of is running; Q. they And then started porch lighting the match that correct? the second fire did which set —started doing? you see what Cornell Yes, A. sir. looking standing by gate, Q. together sepa-

A. He was or they running Were around. rately, Jefferey?

Q. you looking he was around say Together. When A.

what, exactly, doing? hewas towards Ker- Q. they running And were cheval; guess watching A. he was out for Zeri- that correct? Jefferson and he ous—he had looked to Yes, A. sir. looked back towards Kercheval. App. 83-86. Q. Jefferson and He looked towards cross-examination, Coleman young On looked towards Kercheval? back school”, “special that he attended testified Yes,

A. sir. public schools regular attended having Q. Did he do that once or more than time of grade. third At the until the once? home young youth resided Coleman stated, A. He because, away did it more than once. run as he he had from testified that he Although home. Coleman Q. many He did it more than once—how from the approached the Turner residence times— the events as related rear and then saw THE alley gate COURT: Was this the above, testimony quoted may his gate toward the front of the house? were huddled in boys one of the who been It alley gate. A. was the shortly before front of the Turner house Q. many you say How times would Cor- witness Helen Brownlee fire. Prosecution nell Fuller towards Jefferson looked “Jeffrey” was thought a that she testified and then looked back towards Kerche- at boys, (transcript group with the val? addition, undisputed it is In IA. wouldn’t know. to warn the Turner’s Coleman failed once; Q. itBut was more than is that though even he was their house was on fire correct? began. time the fire at the scene at the Yes, A. sir. Further, one of fight had a Coleman Q. Was it more than twice? month before the Turner children about a Yes, A. sir. 235), (transcript at 195-6 and the fire Now, Q. during taking initially time this was were of the investigators at least you hear place, Jeffrey, perpetra- words was one of the view that Coleman spoken between Zerious and Cornell? tors of the arson.4 questioned ed, police precinct, Meadows, local Jeffrey to a taken At the trial Zerious Cole- juvenile to the and taken his involvement about the fire he was arrest- man testified that after Gary corpus Martin testified the morn- relief if it is upon found that stopped by Coleman Jeffrey fire ing of the record evidence at adduced the trial no window, his house. Martin looked out his rational trier of fact could have found left, after Coleman and saw Cornell proof guilt beyond reasonable doubt. Zerious boys Meadows and four other in the Id. alley near the Turner house. A few min- applying In this standard later, utes boys saw the again when cases, corpus the federal courts must review through came yard running toward the light evidence most favorable to alley. Fuller and Meadows were still the prosecution. de must be Jeffrey Finally, Coleman group. returned if “any nied rational trier of fact could have to Martin’s residence and said that found the essential elements of the crime Turner house was on fire. beyond a reasonable doubt.” Id. at *4 Sergeant Detective Roffey John testified at S.Ct. also v. See Moore Duck that he interviewed Mrs. day Brownlee the worth, 713, 3088, 443 U.S. 99 61 S.Ct. after the fire. She not identify anyone (1979); L.Ed.2d Overberg, 865 v. Brewer at fire, that time being involved (6th 624 1980), denied, F.2d 51 Cir. cert. 449 and Detective Roffey testified that her in- 1085, 873, U.S. 101 66 S.Ct. L.Ed.2d 810 Fuller, testimony, implicating was a (1981); Campbell, (8th Davis v. 608 F.2d 317 surprise to him. Cir. The recognized district court The lone witness for the defense was that conflicts in the evidence must re be Fuller, Hattie petitioner. mother of the State, solved in favor of the but neverthe She testified that on the morning of the less found that the evidence introduced at fire her son asleep home until about trial was too meager support peti to 9:00 a. m. tioner’s agree conviction. We with the dis trict court’s conclusion.

II The Under v. appeal Virginia, issue on Jackson we ex- must whether the fore- going amine sufficiency facts are sufficient the evidence here to sustain the murder in support conviction of In petition- Cornell Fuller. In each element of the Winship, 358, 364, 1068, re 397 U.S. 90 er’s felony offense. Fuller was convicted 1072, (1970), 25 L.Ed.2d 368 murder in Michigan. felony A murder con- Court held that process 750.316; due clause re- viction under M.C.L.A. M.S.A. § quires that all criminal convictions must be requires proof 28.548 § of each element based upon proof beyond a reasonable Allen, the underlying felony. People v. 39 doubt. In Virginia, 307, Jackson v. 443 U.S. 483, Mich.App. 494, (1972) 874 N.W.2d 2781, (1979), L.Ed.2d 560 (Levin, J., dissenting), adopted, 390 Mich. Supreme Court held that this standard has 383, Thus, (1973). 212 N.W.2d 21 Fuller application in the corpus: law of habeas could be convicted under this statute challenge to a state criminal con- rationally

[I]n could have found him brought viction under 28 U.S.C. 2254 guilty attempted beyond arson reason- . . . applicant is entitled to habeas able doubt.5 Meadows, People People Aaron, 733, See v. Recorder’s home. v. 409 Mich. 71-01558, transcript pp. 257-58. No. trial (1980), felony-mur- N.W.2d 304 abolished the Michigan. ruling der rule in After this category arising of malice from the to intent alleged petition, In instant habeas felony commit a was struck down. Michi- prosecutor to that the failure of the disclose gan Supreme Court held that malice would during and the failure above facts Fuller’s independently proven be each ele- juve- prosecutor of the to disclose Coleman’s However, alleged ment of an offense. this deci- record, deprived process of nile Fuller of due prospective only, sion has effect id. at Judge law. Feikens in petitioner’s N.W.2d and has no effect on unnecessary to reach this issue. found it case. Michigan, in order to burn the Turner home. The evidence In establish arson, must show that a prosecution that he knew that Zerious Meadows maliciously willfully and burned a person meager planned simply to do is too conviction, supra. note 3 In dwelling house. See order support (emphasis origi- prove attempted prosecution arson the nal) abettor, the aider and “if must show that We note that there no evidence possessed requisite spe of the not himself which trial the “Molotov cocktail” intent, cific ... rendered his aid least] [at advance, prepared started the fire was principal and assistance to the actor or, was, any boys if it whether of the other knowledge principal himself than Zerious Meadows knew that “Mo- necessary to be possessed the intent lotov cocktail” existed. There was People Rigsby, 92 Mich. crime.” boys, course no evidence that 95, 97, (1979). App. 284 N.W.2d 499 See except participated in the manufac- Gordon, Mich.App. People also ture of the “Molotov cocktail”. (1975); Poplar, N.W.2d 409 Moreover, there was Mich.App. 173 N.W.2d 732 no direct evidence Michigan Supreme youths approached Court has held: the Turner house with intent to set the on fire. house presence, knowledge Mere even with intent, Assuming Zerious Meadows had this

that an offense is about to be committed however, there was no evidence that it was committed, is being enough is not *5 by petitioner boys. shared or the other person make a an aider or abettor or a principal in the second nor mere degree only supporting The direct evidence sufficient, approval, passive mental nor guard State’s contention that Fuller “stood ' acquiescence or consent. and acted as a lookout” for Zerious Mead- Burrel, People v. 253 Mich. Jeffrey ows was Coleman’s testimony that (1931) N.W.2d 170 (quoting Cyc.Crim.Law period over a of several minutes Fuller 233); People Casper, v. 25 Mich. [Brill] turned his head from side to side “more 1, 5, App. 180 N.W.2d 906 In other agree than twice.” We with the district words, the accused take must some con- establish court this is insufficient scious designed action to make the criminal beyond a reasonable doubt that Fuller took venture succeed in order to be of commis- conscious action to aid Meadows’ aiding abetting. People Cooper, and v. 326 sion of arson. (1950); Mich. People N.W.2d 708 Accordingly, judgment of the district Gordon, 412, 418, Mich.App. 231 N.W.2d for habeas cor- 409 (1975). pus is affirmed. correctly The district court conclud ed that the petition evidence introduced at WEICK, Judge, dissenting: Circuit only er’s trial morning showed that on May of 18 Fuller respectfully was at the Turner dissent. Petitioner Fuller along residence with Zerious Meadows was in jury and convicted a the Recorder’s the other boys. Detroit, The evidence showed that and Michigan, Court of as an aider Fuller looked around while Meadows start abettor of the arson murder of one of two ed the Judge pointed fires. But as Feikens young girls in the fire. His de- who died out: in fense was an alibi and his motion for acquittal of after the ver- suggests, Jeffrey

This as filed Coleman sur- mised, dict, sufficiency petitioner challenged that the may have been acting presiding judge as a lookout evidence. The for Meadows. It is Re- speculation. reasonable But could a ra- corder’s Court denied his motion. In his jury tional find proof beyond opinion it to be a and denying order Fuller’s motion reasonable doubt? Judge No evidence was for a new of the Recorder’s presented petitioner stated, that the intended to Court inter alia : jury reasonably these was not contended that the defendant facts a could infer It party was the one who threw the bomb defendant a of- fire fense. house, which the evidence burned but that he was

established the look-out while Michigan The in Peo- (subsequently Meadows in a Zerious tried Fuller, ple N.W.2d separate charge) case on this threw same (1975), split affirmed the conviction in set by pouring fire bomb and a fire decision holding: gasoline question. by jury Cornell Fuller was convicted Defense counsel in his Motion for a New Detroit, of Recorder’s Court Thomas L. Trial of Poindexter, makes much the fact that J., first-degree murder. alley seen to run to the prosecution that he aided contended abetted, lookout, premises and up by acting here involved and look in an arson which alley, and down the but the resulted in death two evidence also girls. J., Quinn, The Court of P. and, Appeals, indicated that he was the look-out O’Hara, JJ., J.V. Brennan therefore, af- crime, accessory to the (Docket firmed No. Defendant chargeable equally principal as a under appeals. Held: Laws, 767.26, Compiled Section 1948. disbelieve, juryA may believe Upon appeal to the part, any whole or in of the evidence held, Appeals, the court unanimous presented. opinion 44 Mich.App. which, 2. Evidence presented if be- (1973): 205 N.W.2d 287 lieved by jury, showed that 1. Homicide —Murder—Evidence—In- defendant acted as a lookout for the ferences. arsonist. A jury reasonably could infer that the prose- determined that party defendant was a offense negated every cution had reasonable aiding abetting in the commission theory consistent with the defend- of murder where was shown charged. ant’s innocence of the crime come to the company scene in the *6 Conviction affirmed. principal, gate stood at a near the alley noteworthy It is affirming behind that in the house while the princi- conviction, Supreme pal cocktail, Michigan Court of lit and threw Molotov jury pros- held that the determined that up looked down the alley more negated ecution had every reasonable theo- once, than and ran from the scene with ry consistent with the defendant’s inno- the principal. Supreme cence charged. crime Quinn, Presiding Judge who wrote the Court of the that United States held this opinion for the court stated: require- was more than the constitutional weight The first issue is a of the evidence Virginia, ment in 443 Jackson U.S. question. is, inquiry Our was evidence 326, 2781, 2793, S.Ct. L.Ed.2d 560 which, believed, produced could certain- States, (1979), citing Holland v. United ly lead to a reasonable inference that 121, 140, 127,138, U.S. 99 L.Ed. 150 S.Ct. defendant party was a to the offense? (1954). words, Michigan In other Su- Ford, Mich.App. 519 [173 preme affirming the conviction (1969). N.W.2d There was evidence 3] applied a standard review more strict that defendant came to the scene with petition- than requires the constitution others; Meadows and that defendant er received the benefit of this erroneous gate stood at alley near the behind the Michigan standard. decision house while Meadows lit and threw Supreme great weight Court is to entitled cocktail; time, Molotov during that this applied since it of review more standard up defendant looked alley and down the constitution, required by strict than once; more than and that defendant ran p. v. Virginia, supra, Jackson 443 U.S. from the scene with From p. Meadows. pitiful. not where the deaths were There is petitioner’s

At counsel did his the trial object of the instructions of is question question no about that. The was jury. fact, to the His sole defense defendant, whether or not the jury, opening statement to the alibi. In his party standing the scene. was counsel for Fuller stated: you have to only question That is the that Court, (Fuller) As indicated you find —the fact determine. party who threw the not named as the that the witnesses It is indeed conceivable building; this incendiary against device testify that will that saw the de- party who merely he was named as fendant at the scene could have been you must be convinced standing by, but you that mistaken. I want to consider was, fact, identity; as to his also. accessory party that was an to this only Fuller’s witness as to the alibi his standing by. crime and petitioner mother testified that who defendant, Now, we will on behalf of at the time the sleeping home on his bed that will establish his produce witnesses only arson was committed. The trouble at the time of this incident. whereabouts it testimony with the mother’s was that They testify place will that he was at a three other testimony conflicted with the Taylor’s other than the home of the testify although witnesses. not May 1970— he was in court at the trial. It was THE COURT: I think it is the Turner solely jury telling to decide who was home, Reilly. Mr. the truth. Honor, MR. Sorry, your REILLY: home of the Turner’s —this The decision of the incident oc- early curred morning. The wit- is final that Fuller’s conviction testify nesses will that the defendant was conformity was in with the law of the State asleep. in bed—home in bed binding and it is on federal Now, respect courts with to the factual ap- the Prosecutor has a different this; proach findings it but also as to the law of the question you is a of who State. 2254(d); Mata, telling believe—who is the truth which is 28 U.S.C. Sumner very often a different task to decide but I U.S. 66 L.Ed.2d 722 think the defense will clearly indicate was, fact, the defendant in bed proof abundant offered There was

the Morning that this incident occurred. support finding Aiding abetting and abet- —aided only accompanied Fuller not the arsonist to legal concept, ted —the as the Court indi- fire, set on but also acted as a *7 cated, that would somebody mean that is lookout. After the had been set party a you to an incident —I think are all fire, away on the arsonist and Fuller ran familiar with that. firmly You must be together. If Fuller was innocent of convinced that the defendant was the wrongdoing, why away? did he run party who aided and abetted in this inci- aiding Every element of the crime of and dent. There question is no here the as to abetting proven beyond the arsonist was a fact the incident occurred and the by reasonable doubt as was held the Su- deaths were a result of this incident and preme Michigan Court of and is in conform- the Prosecution will show that the burn- ity Supreme with the the Court decision of fact, ing, in place did take and the deaths Winship, 397 of the in In re United States were a burning result of the burn- —the 1068, 25 368 U.S. L.Ed.2d ing device, emanated from an incendiary (1970). corpus proceeding, a the In habeas commonly known as a Molotov cocktail. jurisdiction federal courts do not have for Testimony given will be with a regard to every In almost appellate chemical direct review. analysis happened. as to what issue; state, That federal is not the criminal trial in the as well as the issue is the incident, tragic courts, very conflicting a sordid the and must situation evidence Michigan judges Appeals In proceeding be resolved. a collateral in in by Supreme judgment was held the Court Jackson the affirming of conviction. Nor Virginia, supra, v. must be of majority judges the evidence did the the of the Su- light the preme affirming viewed in the most favorable to of Court the prosecution judgment Ap- and the habeas denied of of Court “any peals. rational of fact could have trier of the crime found essential elements again submit the federal courts in beyond a reasonable doubt.” Id. 448 U.S. habeas are proceedings by bound the factu- at 2789. This standard S.Ct. findings al of the state courts. We are applies retroactively. Pilon v. Bordenkirch deluged corpus proceedings, with habeas er, U.S. L.Ed.2d 1 most of which involve the issue as to the incorrectly ap The standard was sufficiency of the evidence. The rule for- plied by the it granted district court when merly was the no evidence standard which the writ. authorized collateral intervention

With the of abundance evidence in the where sup- there was no evidence all case, together port important with the inferences element of the crime. therefrom, properly deducible I submit that The no evidence standard was modified to irrationally finding standard, did not act of “rational trier fact” Jack- defendant Fuller as an aider and v. Virginia, supra, son but this new stan- abettor, denying nor did the judge trial has not ap- dard stemmed the tide which judgment acquittal the motion for of and in pears increasing to be has and added defendant, sentencing the nor the three confusion.1 ground Virginia

1. Footnote 7 in Jackson v. states: that there was no debatable constitu- Appeals question. granted And the Court of tional for Sixth Cir- district court recently recognized impact possible corpus cuit writ of habeas which court affirmed Winship corpus dissent, indicated, on federal habeas in a Speig- with a as above and case which it held “a rational trier of ner was set free. fact could have found the defendant ... Speigner’s cohort Scott was likewise convict- guilty beyond Spruytte a reasonable doubt.” ed in the state court which conviction was Koehler, order, affirmance 590 F.2d 335 by appellate ap- affirmed peal and state court [CA6], An even more recent case in that by denied Ohio. provoked lively among court debate three granted application The district court Scott’s regarding of its members the effect Win- appeal corpus upon a writ habeas and ship upon corpus. federal habeas The writ this court district granted case, though in that even corpus writ habeas was re- concededly trial record contained “some evi- versed, pro- the cause remanded for further applicant’s guilt. Speigner dence” of the See ceedings opinion, with consistent this court Jago, (CA6). F.2d distinguishing Speigner basis addi- Speigner, kidnapped, In the victim was linking tional with evidence Scott the crime not brutally robbed and beaten shot and Speigner. Scott, (6th shown in Perini Cir. pistol shotgun by criminals, Roger the two 80-3219). No. one murderer Thus Henry Speigner, Scott and alias Frank Math- set free decision of this court while his pistol ews. He was shot in the chest with a granted confederate relief. and in the back of head and neck with a involving Another case a criminal who was shotgun. two criminals then stole vic- split set free relief in a decision of dumped body tim’s automobile his girl- this court. He had stabbed his former directly proceeded street in Cleveland then pen perma- friend nently maiming some times with a knife Ohio, Youngstown, where were arrest- been her and had convicted in day by police. ed later in the same Scott *8 attempted court of His state murder. con- police told the that he rented the automobile by viction had been affirmed $15.00. from the victim The back seat Appeals appeal by and leave to denied was automobile covered with the victim’s Michigan Supreme type damaged. Court. district blood and the automobile was Speigner pas- denied habeas relief and we reversed for when arrested was seated unobjected alleged senger’s shotgun trivial error in an seat. The was under his seat. Speigner charge jury. by jury court to the Burton v. convicted murder court, Bergman, (6th Cir.). the state which was affirmed F.2d Burton did appellate appeal testify testimony court and leave to not even victim’s denied Court of Ohio on the unrefuted. The case should also have been grant court’s I would reverse the district corpus writ and remand petition.

for dismissal of

Roger SCOTT, Petitioner-Appellee, PERINI, Superintendent,

E. P.

Respondent-Appellant.

No. 80-3219. Appeals,

United States Court of Circuit.

Sixth

Argued Dec.

Decided Sept. Rehearing En Banc

Rehearing and 10, 1981. Dec.

Denied fornia, ground alleged affirmed on the that the error 386 U.S. 17 L.Ed.2d 705 instruction, any, the court’s was harmless beyond Chapman a reasonable doubt. v. Cali-