Robert Carter v. Arnold R. Jago

room, Orack, day Knific’s Stanley Mr. CELEBREZZE, Before BROWN and Knific clerk was informed Dora that had KENNEDY, Judges. Circuit guest taken a room. Mr. Orack CELEBREZZE, Judge. living directly adjacent Circuit Knific’s room. m., petitioner approximately Robert Carter was At 3:00 a. Mr. Dora request- degree by convicted of murder in second received a call Knific’s room from Cuyahoga County, The hotel ing Ohio. The an outside number. tele- County Appeals system outgoing af- that all Cuyahoga phone required Court of appeal placed through the main switch- firmed the conviction. In his calls Court, gave first raised several Knific Dora the three Carter board. number, 481, (R. 232). at which time afraid for his life. digits of the The appel- scuffling himself, and a shot. Dora lant made an attempt Dora heard to dress room to inform immediately called Orack’s but at that time grabbed by he was Mr. trouble, appellant, gun then called the and the who had a Knific, him of the police. Dora testified that Knific sounded pocket jacket, of his reached for his requested gun the number. calm when he and shot Mr. appellant Knific. The stated he didn’t intend to shoot the receiving call, Stanley Just Dora’s before pulling decedent but rather that he was watching in his room. Orack was television trigger thought when he the chamber scuffling and two or three loud Orack heard gun of the was empty to.frighten him. crashes from the direction of Knific’s room. (R. 238). The decedent received three telling police, After Dora to call the Orack bullet wounds. The decedent one died went to Room 614 and knocked on the door. shooting, month after the allegedly as the ap- Mr. Orack stated that when first he gunshot result of the wounds. room, proached the he could hear dresser opening closing. his however, After jury, The returned a verdict of drawers knock, quiet, the room became and then guilty of degree. murder the second As opened the door. Orack told result, Carter Carter petitioner was sentenced to life police that he would have to wait until the imprisonment.

arrived, at which time into Carter reached I. his waistband. Orack knocked Carter get up, the floor and when Carter started to Initially, alleges Carter error the dis- pistol he had a in his hand. Orack immedi- failing trict court in to conduct an eviden- ately returned to his room where he waited tiary hearing question on the of exhaustion police he until heard the arrive. While he of state remedies. The basis of this conten- room, waiting in his heard some- Orack tion is difficult Admittedly, to discern. door; rattling one on his when he left the Carter raised several issues for the first room, he noticed blood on his doorknob. appeal time in his to the Ohio solely Court. Since exhaustion was an issue Patrolmen Galka and Couzer received a law, only the district court had to deter- directing radio call them to the Milner Ho- mine any remedy whether state was still approximately they tel at 3:10 a. m. As court, ruling available. The district on arrived on the sixth floor and started down exhaustion appeals noted that the court of hallway they toward Room were petitioner had indicated that could raise the running met Carter who was in their presented delayed appeal issues in the in a direction. Carter had blood his head post proceeding conviction in the trial court. from the blow he received from Orack. He Thus, there was reason to doubt whether searched, apprehended, and found to be Carter had exhausted all available state carrying containing .22 revolver caliber remedies. spent three shells and one live round. John 27, 1973, as a

Knific died on June result of appeal, the interim of this gunshot wounds he received. Perini, court decided Collins v. 594 F.2d 592 Carter testified at trial and' admitted (6th 1979), Ridenour, Cir. and Keener v. having testimony Knific. His shot John 1979), F.2d 581 which hold that appeals summarized the state court of as delayed appeal post neither a nor a convic follows: one, appeal tion would be available to such appellant petitioner, already ap

The testified that and Mr. who has had an peal. petition proper Knific went Petitioner’s habeas to Mr. Knific’s hotel room to ly acts. When both before the court for decision then. The engage in homosexual decision, however, undressed, was not men were Mr. district court’s Knific allegedly only upon the issue. appellant enjoyed told the that he beat- founded exhaustion (R. 232). might have ing people. appellant petitioner fur- The observation that that this remark made him further state remedies available was an aft- ther testified person similarly situated that Carter had erthought a conclusion present sought as the defendant and the defendant acted claims he waived several viewing turn to those petition. good We now faith and in situation in his standpoint, and circumstances from claims. acted under the influence of such really II. spirit not in of malice or fear and revenge. jury the trial In his instruction judge charged Now, that is to look at this: the defendant proof was on standpoint situation from the by a defense of self-defense affirmative himself at the time he acted as evidence. At preponderance and determine charged indictment trial, clearly time of state law mandated of stress and ex- under the circumstance judge. issued instruction whether, with- surrounding citement him 95, Seliskar, v. 35 St.2d 298 State Ohio part out he fault or carelessness his (1973).1 portions critical of N.E.2d 582 The honestly did he was in imminent believe charge follows: the are as receiving or danger losing of his life harm, great bodily prevent cannot be to this it says The law this defendant and any charge necessary in the of for him to act he did convicted of offense was notwithstanding the fact act. indictment that may if, he have John killed Knific person pursuit When a in the lawful of committing the time of such offense business, blame, vio- his and without acting in self-defense. manifestly lently by assaulted one who in a case is the proper maliciously Self-defense and to intends endeavors right person. him, assaulted, The ele- every person of essential kill without the so ments of self-defense are these: it retreating, although says may it increasing his power his to do without so

First, the defendant must be free from may kill his danger, his assailant to save fault, is, provoked he must not have protect great own life or himself from brought on purposely the defendant or bodily harm. the combat. of of

Second, The law self-defense the law pend- a present there must be harm, necessity, pure simple. It is not an bodily ing peril great life or to law, a law offensive but it is defensive apparent either as to create the real or it proving upon rests existing bona belief of an assassin. fide defendant, so to upon the he is not called Now, by force force may repel a man a beyond the defense reasonable establish taking extent a life in the even to the of doubt. fear, person. A how- defense of his bare

ever, it a receiving bodily It is sufficient if he establishes being of killed or Now, by of evidence. justify preponderance one in- the harm is not sufficient to is meant upon preponderance of the evidence flicting injury death an- serious or evidence, weight of the appear greater the circum- the other. It must con- which more excite the fear evidence case stances were sufficient to going grounded upon with sufficient to raise forward evidence the well-estab Seliskar was ef Robinson received retroactive lished law that allocated to the that defense. common rule 95, Humphries, Ohio St.2d fect in State v. 51 the burden affirmative defendant of (1977). 1978 preponderance 364 1354 The Amendment of the N.E.2d defenses a evidence. 1, changed 2901.05(A) effectively January of 2901.05(A), the rule to Ohio Rev.Stat. effective law language so as reinstate common no relative to the Robinson contained prove requiring an affirma proof rule a defendant burden for affirmative defenses. preponderance 2901.05(A) the evi Supreme tive defense Ohio Court construed Robinson, requirement been to be has held 47 dence. This State St.2d 351 Ohio - Newell, (1976), State in a constitutional N.E.2d 88 and held that criminal 28, 1979) (8th App. App.2d ---- (# Dec. involving case the affirmative defense of self- defense, Dist.). only . the defendant has which cution must vincing prove beyond its truth and influences reasonable jury; minds of the every necessary minds of doubt fact constitute the reach, you evi- jury in the conclusion charged, Winship, crime In re 397 U.S. you enti- dence in the case find be (1969), it S.Ct. 25 L.Ed.2d 368 must weight. greater tled to the passion, also the absence of heat of Now, preponderance you if find which is malice a reasonable doubt.2 defendant, the evidence that Robert terms, general Mullaney held that the Carter, proper in careful and use of his guarantees Fourteenth pro- Amendment’s wrong part, faculties and without on his shifting hibit a State from defendant good and had faith believed burden of disproving an element that at the to believe time of the charged presumed crime when the state has danger in imminent shooting he was existence. its In Hankerson v. North Caro- great bodily death or of harm at lina, L.Ed.2d deceased, Knific, hands of the John (1977), a unanimous Court escape only means from gave Mullaney retroactive effect because danger taking the life of the de- major purpose of doctrine illuminat- ceased, justified doing he would be in so ed in Mullaney was to enhance truth- even fact the though may finding function of a criminal trial so as to have as to the been mistaken imminence erase the about the questions serious accu- danger. racy guilty past verdicts in trials. Although objection was to this no raised that, The state even argues though first charge registered in of at trial or the court had in proof Carter the burden of appeals, this as Carter raised instruction an self-defense, corpus federal habeas review assignment error in his of memorandum precluded is object his failure to at support jurisdiction in the Ohio trial of Court, appeal the jury which dismissed for want to the instructions. Hankerson v. question. n.8, of substantial constitutional He Carolina, North 245 432 U.S. 97 in his peti- now reiterates this claim habeas 2345, n.8, 306 is S.Ct. 53 L.Ed.2d cited tion. proposition the for that failure to comply procedural objection require- with state imposition argues that the of Petitioner ments, regards jury objecting to instruc- proof regarding the on him the burden tions, procedur- bars This collateral attack. process. issue of self-defense violated due argument al default centers around lan- Primary placed upon v. Mullaney reliance is guage suggesting Hankerson that a state Wilbur, 95 S.Ct. 44 U.S. impact could of retroactively minimize the (1975), which makes L.Ed.2d 508 clear applying enforcing its Mullaney by “normal proving every the state has procedural valid” and rule “that failure to beyond a element of the crime reasonable object to a is a jury instruction waiver of the state doubt. In that case of Maine any claim of error.” This notation conse- required charged murder a defendant with quently contemporaneous objec- the passion in the heat raises to that he acted Wainwright Sykes, rule tion discussed in provocation on sudden in order to reduce a manslaughter. The 53 L.Ed.2d charge homicide to Su- S.Ct. (1977).3 since preme prose- concluded that the Court facts, establishing In a indicated states for not the footnote the Court certain decision did procedural presumptions may place production all on the de- circumscribe a burden require offending which a defendant to introduce evi- the intent of Mulla- fendant without ney. contesting presumed require pro- dence inferred otherwise the or the to States can defendant demonstrating facts. duce “some evidence” the action requiring prose- passion before the heat of requires negate 701 3. Ohio Rule of Procedure 30 cution n.28, this element. U.S. at Criminal to Thus, prerequisite raising allegation as a error object to an n.28. Mulla- at 1891 while party regarding jury ney proscribed presumptions that the instruction the use of trial, stating specifically evidentiary at the onto shift the defendant the object presumption a fact or to of the existence of petitioner failed

Since instructions, not guilt, process his threshold essential to due has the facts “preju Patterson makes clear satisfy is to “cause” been violated. task Sykes, Wainwright doubt applicability standards of dice” intervening upon that the is how the State supra. dependent Carter submits standard adequate any for Mullaney charged cause is decision defines the offense that argument case; assumes object. This given expressly failure unless defined statute, would invalidate Mullaney not include material elements do that be which, instructions on self-defense proven, a fact if the nonexistence of anticip development could not cause Yet statutory would constitute a defense. object be ex should ated,4 failure of a crime are defined once elements least, Mullaney raised a very At cused. prov- legislature, element must be each of doubt as to the consti spectre substantial the State. en reasonable doubt tutionality placement the bur of Ohio’s charged Petitioner with murder And, proof regarding self-defense. den of degree the second the first and murder in responsibility of trial counsel it was 2901.01, degree. in effect at O.R.C. in due change predict to fathom or trial, following defini- time of contained occa Mullaney doctrine that would tion: 1980) (en Engle, Isaac v. sion. degree. 2901.01 in the first Murder banc) in such a situation holds that (GC 12400, 12399) raising reason for any plausible absence person No either of purposely, shall necessary provide objection will an malice, byor premeditated deliberate and “cause,” presumed will be “prejudice” poison, perpetrating means of or in or to the proof shifted if the burden arson, rob- attempting perpetrate rape, produced has sufficient when he bery, burglary, or kill another. self-de the defense of evidence raise guilty Whoever violates this section is petitioner’s claim Accordingly, fense. degree murder first and shall be cognizable corpus proceeding. habeas in this punished jury trying unless by death mercy, in which the accused recommends petitioner’s The claim gravamen imprison- the punishment case will be the de allocating is that law Ohio for ment life. fendant self-defense degree capital first a Murder in the is by preponderance a evidence violates Article, 9 and 10 of crime under Sections in Mul principles explicated of due Ohio Constitution. laney. Mullaney prohibits the from State interpretation iso- presuming an element of the crime Court of the statute has prov and lated three “elements” of murder placing exists then 2) intent, degree: 1) killing; first an actual ing otherwise the accused. Patterson v. on York, 197, 2319, Farmer, 214, v. 156 53 Ohio St. 102 New 97 S.Ct. State Cardwell, (1952); 11 (1977), principle Paltry 281 N.E.2d v. 448 L.Ed.2d reinforces this (6th 1971); 3) 328 legislature so does not F.2d Cir. and deliberate long malice, Butler, by premeditated and State v. 11 transgress defining constitutional limits 23, (1967). 227 N.E.2d a crime as to create a Ohio St.2d 627 the elements of so 3133, objection (1978). objection. U.S. 98 57 Failure to an L.Ed.2d 1153 for his raise Sowders, Hockenbury procedural 620 111 and is not v. F.2d is tantamount to a default 1980), appeal plain error or a makes clear that the standard of review reviewable absent on Wainwright by petitioner’s affecting rights. established controls substantial O.R.C.P. defect 52a; Long, 372 claims. State v. 53 Ohio St.2d Sec. Lockett, (1978); v. N.E.2d 804 State Ohio (1976), historically regarded overruled in St.2d 358 N.E.2d 1062 had 4. The common law Downs, part on other State self-defense as an affirmative defense to vacated, by proved Ohio St.2d 364 N.E.2d the accused. surrounding The case law the statute by the instructions issued jury The pur- require- killing, an actual intent and with these identified judge were in accord kill, simple malice as elements pose to and ments: Butler, supra; In re of the crime. State killing degree the first Murder in Williams, App.2d 324 N.E.2d with deliberate purposely and another (1974). malice. premeditated and the defendant say you Let me these jury paralleled instructions also plea a of not case has entered in this requirements: in issue doing puts so guilty and degree Murder in the second is the ele- the essential every each and one of mali- killing purposely of another and in the first of the crime of murder ments can find the de- ciously you and before degree you can find the defendant before in the second guilty fendant of murder beyond a reasonable guilty, you must find beyond a reasona- degree you must find doubt, one, living that John Knific was doubt, one, ble that John Knific was a he was killed the defend- person and living person and he was killed County on or about the Cuyahoga ant or Cuyahoga County Two, June, day 27th 1973. June, day of 1973. about the 27th Three, that purposely. killing was done Two, killing purpose- was done that the with deliberate and killing was done ly maliciously. premeditated malice. under Mul inquiry The thrust of an with, charged and even- was also Carter Patterson is whether the State laney of, in the second tually convicted murder defined the elements of the crime so as has degree. guilt and then presume a fact essential degree was defined Murder in the second negate that ele compelled the accused by statute as follows: analytical the crime. Under this ment of degree Murder in second 2901.05 framework, passes constitutional Ohio’s law 12403) (CC three elements of murder— muster. The homicide, pre intent and malice are not and mali- person purposely, No shall sumed; proven be violates each element must be Whoever ciously kill another. section, yond doubt. The instruc except the manner de- 2901.03, 2901.01, 2901.02, reflect the lack tions on intent and malice scribed Rather, Code, any presumption. intent guilty 2901.04 of the Revised be inferred from may degree and shall be malice murder in the second While given and circumstances.5 facts imprisoned for life. Now, hostility against person purpose Ill-will or of an- of the mind of decision required. design knowingly doing The word malice has a a to accom- other are not an act with special meaning plish specific when used in law. For the a result. instructions, purpose of these malice is the purposely do an act is to do it intentional- To purpose state of or which characterizes mind person ly. purpose design which a The or with doing wrongful, of a unlawful act intention- the only usually known to himself does an act justification ally legal or without excuse. expresses it it others or indicates unless he to Legal may anger, malice include ill-will or by his conduct. However, hostility against they are another. person presumed purpose a to have a or A sense, required. legal In its malice means not design voluntary his ac- behind his acts unless wrongful, doing of a unlawful act intention- duty. the explained by the evidence. tions are otherwise ally regardless of social upon person a with a If a wound is inflicted from The existence of malice determined deadly weapon to de- in manner calculated a means, done, in which the act is the the manner weapons life, may stroy purpose kill intent or the facts used and from all of the other weapon. inferred from the use of the in the evidence. and circumstances is that the An essential element of this crime intentionally with Where one shoots another maliciously Malice or with malice. act be done weapon in calculated to cause a a manner the mind characterizes is a state of the death, you may infer that the act was done intentionally doing wrongful, of a unlawful act maliciously. legal justification or excuse. without 456 upon disproving that element the burden of clearly are un- an element of

presumptions constitutional, do not inferences permissive on the other procedure, Ohio’s the accused. the Sandstrom afoul of Constitution. run hand, presence but presume not malice’s did Montana, 61 99 v. beyond it to establish required the State (1979). 39 L.Ed.2d doubt. reasonable presume does not Ohio law Since in accordance The was instructed murder crime of any element of the verdict con- guilty the with the statute and Mullaney exists, offended. Mullaney is not its successfully carried firms that the State established upon principle the grounded of the crime proving of the elements burden must the state Winship: In re evidence, The a reasonable doubt. beyond beyond the crime each element of prove respect with to Car- including that offered struck practice The reasonable doubt. self-defense, was insuffi- ter’s defense of Winship’s no Mullaney offended down about his to raise a reasonable doubt cient pre Maine law process due because tion of The had satis- placed guilt as a murderer.6 State malice and the existence of sumed denied, Cir.) Egeler, (6th degree, 583 F.2d 515 cert. 439 mal- in the first To constitute malice premeditated. (1978); 347 both deliberate and 99 S.Ct. 58 L.Ed.2d ice must be U.S. Holloway McElroy, F.Supp. (M.D. was not the result Deliberation means the act v. 1363 thought impulse, Stevenson, Ga.1979); F.Supp. sudden that some of a Cole given the defendant be- consideration (E.D.N.C.1978) grounds, 620 rev'd on other arriving purpose or intent to kill. at the fore 1980) (en banc); Porter F.2d thought proc- means that this Premeditation Leeke, (D.S.C.1978). F.Supp. purpose to kill was ess was used and that glance, might appear At first it that the Ohio mind and the over in the defendant’s turned an element courts consider unlawfulness to be prior to kill made to the commission decision Simon, (No. In State v. of the crime of murder. the act. 16, 1980) Appeals 6262 Jan. the Court period of time that There is no definite must Montgomery County, considered a due purpose elapse to kill. for the formation of the 2901.05(A) process challenge to O.R.C. is not' the duration of time but The test for a concluded that because an indictment requires existence of the reflection. law charge general alle- criminal offense must composed sufficiently re- mind be that the unlawfulness, allegation gation of of unlaw- killing upon the nature flect and understand proved Since fulness must be the state. consequence. the act and its and character of unlawfulness, negates the court self-defense actually you formed If find that the defendant held that the state cannot shift maliciously purpose kill and deliberated proving self-defense to the defendant. On Jan- performed premeditated upon it before 22, 1980, uary supplemental court issued a act, element of the that is sufficient for this retracting regard opinion its decision with crime. constitutionality 2901.05(A) on the you proved find the State has If question not been at issue that the had doubt all of the essential elements appeal. murder, your degree then of the crime of first Tuncle, (No. However, State v. March you guilty. if find verdict must be 1979), Appeals Cuyahoga Coun prove any Court one or more of the State has failed ty gave to the due full consideration of the crime of first de- the essential elements murder, you problems placing gree find the defendant associated with then must degree Although guilty proof murder .... of first on the accused. of self-defense 2901.05(A) constitutionality be was not an absolute 6. Proof of self-defense constitutes court, judge the lead concluded that fore justifia- homicide defense in that it renders the proved state is a fact to be unlawfulness finding negates A of self-defense ble or lawful. voluntary manslaughter. prosecution in a for if the relevant the element of unlawfulness and self-defense could Thus the burden prove unlawful- statute commands a state to placed on the defendant. To reach this not be ness, must the absence of then state writing judge relied on the Ohio Con result the self-defense. every requires which that indictment stitution state law includes unlawfulness or the Where statute) (but allege not the offense mur absence of self-defense as an element of der, dignity “against peace of the State of putting instructions the courts have held Ohio,” finding language to be the function this proving upon self-defense equivalent While this of “unlawfulness.” al constitutionally to be infirm under supported by defines- the fact that Ohio result voluntary manslaughter Mullaney. Wynn Mahoney, 600 F.2d 448 950, denied, an kill (4th 1979) “unlawful Cir. cert. by sapped vitality (1980); ing”, of Tunde Berrier v. S.Ct. 62 L.Ed.2d 320 1) it Winship on In re Sadler was unrelated to the shooting fied the command Knific; 2) prejudicial was beyond “every a reasonable doubt insofar as prove Sadler wheelchair; 3) by crime with testified from a was used necessary fact to constitute the prosecution solely pas- to inflame the (Carter was) charged.” 397 at which U.S. prejudices 4) jury; sions Supreme And as the at 1072. S.Ct. improperly charged pur- about the Patterson, 432 Court noted in U.S. pose of testimony.7 Sadler’s at 2324: convicting under its murder Patterson attempts Petitioner to raise these statute, New did no more than Le- York by claims to a constitutional dimension permitted land and Rivera it to do with- alleging prejudi errors these were so violating the Due Process Clause. out process right cial that he was denied his due cases, Under once the facts consti- those inquiry reviewing to a fair trial. Our tuting beyond a crime are established a this claim is directed to whether the evi doubt, on all the evi- based rationally dence was to the connected crime including dence the evidence of de- Rose, charged. Manning v. 507 F.2d 889 state, may fendant’s mental State 1974). (6th Cir. That connection is estab refuse to sustain the affirmative defense by similarity lished here of the crimes. insanity by pre- unless demonstrated a Petitioner’s defense was self-defense in ponderance of the evidence. cases, both cases. In both Carter had a both, deadly weapon person; on his he with analysis applies The above drinking prior shooting; had been equal According force to the instant case. both, and in the victim was a homosexual ly, under the statutes in effect at the Ohio relationship. with whom Carter had had a trial, petitioner’s time of it was not a due process compel violation for Ohio to a de Carter also contends that he was fender to shoulder by prosecutorial denied a fair trial virtue of the affirmative defense self-defense presentation misconduct in the of Sadler’s preponderance evidence. of the testimony. rejected The District Court

claim: III. argues Petitioner next that he was de- argues right Petitioner also that his constitu- nied his to a fair because Sa- wheelchair, rights tional were violated the admission dler testified from a and was testimony Specif- questioned inju- of Howard about the extent of his Sadler. testimony judge’s ically, Carter submits that the ries. The trial remarks at the express disagreement judge proof on the same burden of the second on a defendant as panel judge imposed petitioner the only the third who concurred in his 1973 trial. Allowing a state to in the result. treat self-defense as an Moreover, superseded by affirmative defense is consistent con- Tuncle is State v. with the 28, 1979) expressed allowing (No. cerns in Patterson for Newell December legislative upheld branch sufficient latitude to define which the same court the constitution mitigating criminality. ality 2901.05(A) rejecting process factors affect the due forcing disprove While may the state to self-defense supra. challenges Mascatello, discussed See also State policy, be wise as a matter of Patterson (No. 40484) (8th App.Dist., March judicial does authorize Abner, modification of a 13, 1980). significant Also is State v. legislature’s evidentiary standard in the ab- (1978), 379 N.E.2d 228 in which St.2d sence of constitutional infirmities. judge the Ohio Court held a trial did refusing give not err in an instruction that petitioner’s attempts Insofar as counsel prosecution disprove the affirmative must law, relitigate these claims as a matter of state defense of self-defense a reasonable misunderstanding evinces fundamental Thus, controlling doubt. the current Ohio law purpose corpus the nature and of habeas re- indicates that it is not a due violation view. This court does not sit to exercise direct to force a defendant to self-defense Rather, review over state court decisions. scope preponderance of These recent the evidence. corpus of habeas review is confined to light decisions are of the fact that relevant Arn, errors of constitutional dimension. Bell v. they interpret imposes the 1978 statute 1976). 536 F.2d circumstances, 327). testify Under these the indicate was called to

time Sadler remark cannot be said to prosecutor’s unable “physically was that Sadler respondent’s so have “made funda chair,” 148) and (Tr. witness the take deny proc due mentally unfair him as testify from permitted to was therefore DeChristofaro, Donnelly supra, ess.” instance, an This is not wheelchair. his at 94 S.Ct. at 1872. in- therefore, attempt to gratuitous aof Certainly jury. passions the flame that evidence Finally, Carter claims wheelchair was in a fact that Sadler support insufficient to his conviction. was judge’s impact an have would evidentiary wholly This claim is devoid prej- and probative value weighing of the recognized District support Court: But testimony. of Sadler’s udicial effect clearly supports The record this case say the decision court cannot that this appeals’ that the court determination wheel- testify from a permit Sadler was evidence to sustain a there sufficient right to a petitioner deprived chair degree murder. of second conviction fair trial. finding Among supporting other facts about prosecutor’s question As far as malice and to kill are the follow intent concerned, injury is the extent of Sadler’s times, (1) three ing: decedent was shot ap- agrees with the court this court in the abdo twice in the head and once question, though perhaps that the peals men; (2) just prior shooting, dece to the error; irrelevant, and prejudicial was not and called the hotel desk seemed dent petitioner any deprive event did not calm, negating suggestion right trial. to a fair his due (3) shooting provoked; was after at the end single question was a question shooting, Mr. dresser Orack heard draw con- testimony, basically and of Sadler’s opening closing, suggesting and ers already been ob- what must have firmed robbery shooting; for the impetus was unable vious to the Sadler —that (4) for the petitioner’s explanation shoot Moreover, ade- jury was to walk. prosecu ing, as was demonstrated purpose limited quately instructed on the remarks, closing was so inconsistent tor’s 327). Taken testimony. (Tr. of Sadler’s hardly be implausible it can said context, question pro- answer this province have been relief. basis for federal habeas vides no reject jury to it. * * * # * * Applying the standard Jackson v. Virgin- pros Finally, petitioner contends that ia, U.S. 99 S.Ct. 61 L.Ed.2d closing about Sadler’s remarks ecutor’s (1979), a review of the record in this deny prejudicial were so as to testimony light case in the most favorable pros- to the appeals As a fair trial. the court him ecution shows that a rational factfinder held, relevant remarks were not these could have petitioner found guilty beyond a (Footnote inappropriate.4 were reasonable doubt of murder in the second Nonetheless, omitted). Donnelly v. De degree under Ohio law. Christofaro, 94 S.Ct. For the above, reasons stated the decision (1974), L.Ed.2d 431 teaches of the District Court denying a writ of prosecutor improper remark every habeas corpus is affirmed. relief. The for federal habeas context; must be viewed in remark argument case it was an isolated KENNEDY, Judge, Circuit concurring in unob coming the end of an otherwise part and dissenting part. closing argument. The

jectionable opinion Judge concur in Celebrezze’s I of coun instructed that the remarks analysis of Wain- exception of his 276, 324), with (Tr. were not evidence sel judg- Sykes. I would affirm wright v. the lim was further instructed about ground as on this of the District Court ment (Tr. testimony purpose ited of Sadler’s my dissent in well for the reasons stated 78-3488, Cir., Engle; No. Isaac J., banc) (Kennedy, dissenting).

1980) (en COMMUNICATIONS

CHARTWELL Subscription

GROUP, Tel- and National Detroit, Plaintiffs-Appellants,

evision — WESTBROOK, Pony

Philip Ind. & d/b/a Moser, Jr.,

Electronics; Ind. & Robert Vend, Defendants-Appel-

d/b/a Video

lees.

No. 80-1566. Appeals, Court of

United States Circuit.

Sixth

Argued 1980. Oct. Dec.

Decided

Case Details

Case Name: Robert Carter v. Arnold R. Jago

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Dec 22, 1980

Citation: 637 F.2d 449

Docket Number: 79-3317

Court Abbreviation: 6th Cir.