*2 Jr., Cleveland, (court- Paul Mancino Ohio body sight- William Bell’s murdered appointed), petitioner-appellee. morning July ed in Cleveland on Layelle of 1973. Detective the Cleveland ENGEL, JONES, Before MERRITT and proceeded Police Department homicide unit Judges. Circuit assignment on to the isolated area of East 76th and Platt Avenue where he found Bell ENGEL, Judge. Circuit lying up among face the debris on Roger Henry Petitioner L. Scott and F. body street. When the was moved for Speigner, Mathews, also known as Frank transport morgue, Detective LaVelle charged in an by large spot indictment issued observed a blood where Bell’s grand jury Ohio, asphalt. back Cuyahoga County, had been in contact with the degree the first murder William Bell on place A detailed examination took at the June 1973. The two men were tried morgue. a small man 5’5” separately. juryA guilty of pounds, was watch fully clothed. A Timex degree first murder. Speigner subse- on his stopped left wrist had at 10:53. De- quently degree convicted of second murder. empty tective LaVelle testified that an The Ohio Court of Appeals reduced Scott’s black leather holster was found conviction to the lesser Adelson, included offense of body. deputy Dr. the chief coro- degree second finding murder insufficient Cuyahoga County ner Of- Coroner’s fice, the first murder observed marks arms track on Bell’s previous conviction. which indicated narcotics use. Dr. opined Adelson been that the use had not alleged petition in his for habeas recent, possi- but was unable rule out the corpus relief that the evidence was insuffi- bility Bell early had used narcotics as cient to sustain his conviction for second as two weeks before his murder. degree murder under Ohio law. The dis- autopsy, As a result of his Dr. Adelson agreed trict accordingly court granted by discovered that Bell’s death was caused Scott relief. The State of appeals. gunshot two wounds. One entered bullet We reverse. chest, passed through lung, Bell’s frac- Because our court evi held has ribs, tured in the left some and came to rest presented dence in Speigner’s case was in back area. Dr. Adelson stated this wound law, sufficient as a matter of Speigner v. by weapon. rifled Detective inflicted Jago, (6th 603 F.2d 1208 Cir. cert. La Velle identified the bullet recovered denied 444 being Dr. .32 caliber. The Adelson as and because the suffi gunshot second from a shot- wound resulted ciency of the evidence is also an issue this gun range blast fired from close at the left required we are to review the evidence region Dr. shoulder blade of Bell’s back. in considerable detail. left Adelson described the wound being pear shaped shot as with a diameter I. x-ray of one and a half inches. An revealed William year Bell was a 32 old black pellets male Bell’s head thirteen in the back of Cleveland, who lived and worked neck. Ohio. uncancelled taining that Bell had court documents and also determined

Dr. Adelson Sergeant ulna in his left arm Little also discovered nine broken ribs. The checks. were lacera- clothing There on the floor of vehicle. had been fractured. some face, tions, abrasions over Bell’s tears and Hawkins, of the Ohio Patrolman also found from neck and chest. Dr. Adelson Patrol, Sergeant Little in Highway assisted *3 he and urine that had testing Bell’s blood car. He inventorying the contents of the alcohol was .19. drinking; been his blood shotgun under the discovered a sawed-off His urine indicated also Patrolman passenger seat of the vehicle. phenothiazine, tranquilizer. a not locate ammunition. Hawkins did Dr. estimated the time of death Sergeant Adelson Lit- He corroborated much of also 2:00 a. m. the p. as between 11:00 m. and that there were testimony tle’s and asserted before, night part on the fact that based the rear seat stains both across dried blood rigor mortis set in. The time of death had the car. passenger on the front seat of m., could have as late as 3:30 a. how- been were in exam- policemen Three involved ever, physical if there had been a violent a ining the car been towed to after had struggle which would hasten the onset yard. tow Detective Tekautz of the Cleve- rigor mortis. the interior Department land Police dusted was Bell’s 1964 Chevrolet also found fingerprints. He and exterior of the car for police morning July on the right prints was able to obtain from the At Sergeant 5:00 a. m. Little of the Ohio post, paper bag a under the door Highway stopped Patrol a car at wheel, mirror, view steering the rear Youngstown Interchange of the turn- cover, ashtray left the left door rear door pike apparent because of its unsafe condi- window, portion vent and the outside tion. Sergeant Little observed that the car passenger’s window. Detective Birt no taillights quite noisy. had and that it was attempted Department Cleveland Police to fingerprints match these with those of Roger driving was Scott the car and Hen- Scott, victim Bell. A Speigner and the ry Mathews, Speigner, also known as Frank print right post found on the door matched passenger. was a pro- Scott was unable to Speigner print that of found on the registration duce the to the vehicle and paper bag matched that of Bell. None of possessed only expired an driver’s license. prints those Detec- matched of Scott. Sergeant Scott indicated to they Little that tive Palahunic of the Police De- had borrowed the car from William for Bell partment performed analysis an on the Since Scott was unable post $15.00. seat. He determined stain across the back required bond for the unsafe vehicle cita- Type Mary the dried stain to A blood. tion, transported Mahoning Cowan, technologist a medical on the coro- County jail. Speigner was released and staff, blood was ner’s testified that Bell’s failed to return with the bond for Scott. Type testimony A. There also was He was eventually apprehended on armed common, Type was the most but O blood robbery charges in New York. twenty percent population had Sergeant Little inventoried the 1964 Type A blood. Chevrolet, pulled which had been an into July Later on the adjacent lot, afternoon parking around 7:30 that being that he under arrest informed morning. He discovered a blood stain with a homi- investigation across in connection the back seat of the car where a cide, person’s was taken Detective LaVelle back Scott would rest. He noted that Youngs- Mahoning County jail the front from the vent window was broken and that Cleveland, glass trip ap- from which takes town to window was on the floor route, the car. Sergeant proximately Little testified that one hour. En Scott ignition previous sought explain was intact and that the events of the key present. trunk, Upon having evening. examination of the He stated that he Sergeant Little found an attaché case con- in Ellis’ with Frank Math- few drinks bar Central, pick up Bell. and Mathews but ews and William He returned him evening. midnight. They rented Bell’s car for the $15.00 close to continued cruise They vicinity took Bell to the of East 76th finally proceed around decided to- “dropped Youngstown. and Central Avenue where changing ward After flat while, tire, They driving. him off.” rode around for took over the Scott stopping belonged at various locations in Cleveland. knew the car Scott, According Mathews then decided informed him that he had rented the car Youngstown. to drive to relieved him Significantly, from Bell. Scott denied see- at the wheel when he Detec- ing evening became tired. Bell but tive the police p. LaVelle stated that asserted had him he seen before 5:00 m. unable to obtain corroboration of Scott’s day.

explanation anyone at Ellis’ bar. He In explanation, addition to this Scott de- give also testified that Scott refused to him telling Leppelmeier nied Detectives and La- *4 days a written statement two later. Velle much of the statements recount- day, the same Cleveland knowing Speigner

On Police Detec- ed. He denied under the Leppelmeier tive at the of interrogated explained Scott alias Frank Mathews and that interrogation picture Prison inability identify Speig- Central Unit his to of gave room. of by Leppelmeier Scott a different version the ner shown to him Detective place during previous events which took the on June 26 was the use of the caused evening. He asserted that a friend of his name Frank Mathews and the fact that Frank, years, picture. for about six known Speigner sported facial hair in the p. offered him a ride m. on past around 10:00 the Scott also admitted convictions for drug possession (1958), (1965), corner of Quincy burglary East 83rd and Avenue. Scott, (1969). grand larceny Speigner who admitted knowing Bell for 15 He had spent years, explained previously together prison. that he time in thought the car belonged through to Frank. After driving any knowledge denied of involve- Scott or city hours, couple for a of Frank ment in Bell’s murder. dropped Grape off at the Vine Tavern said going that he was look for II. someone named “Willie.” Frank returned constitutional standard re picked up twenty Scott about fifteen or sufficiency viewing the of evidence was minutes They proceeded later. toward Virginia, in Jackson v. 443 established U.S. Youngstown suggestion. at Frank’s 307, 2781, (1979). 99 61 L.Ed.2d 560 S.Ct. driving

took over the vehicle when Frank Justice held that the “relevant Stewart became tired. whether, question viewing the evi is

Scott testified at light on own behalf dence in the most favorable to the explained trial. He night the events prosecution, any of rational trier of fact could before and came up with a third account of have elements of the essential account, his activities. According to this crime beyond reasonable doubt.”1 443 Henry Speigner picked up 319, him cor- at 99 at U.S. S.Ct. standard of ner 83rd and Quincy. The of them not two whether evidence is sufficient to visited different bars people’s houses. petitioner’s convince the habeas court of the Speigner dropped him off for a short time beyond a Nor does reasonable doubt.2 applied 1. The Jackson standard is to be The Jackson standard followed from deci- 358, Winship, convictions obtained before the date Jackson sion In re 397 U.S. 90 S.Ct. 1068, Virginia, 307, 2781, v. 443 25 L.Ed.2d which held that U.S. 99 368 S.Ct. 61 process required Bordenkircher, (1979). there L.Ed.2d due be sufficient 560 Pilon v. necessary 1, proof, 7, (1979). defined as evidence con- 100 S.Ct. 62 1 L.Ed.2d vince trier of fact a reasonable Virginia, supra, Prior to Jackson v. courts every element of offense. applied the “no evidence” standard review Louisville, Thompson City set forth in v. 362 2. The of the dissent illustrates first sentence 199, 624, (1960). U.S. 80 4 S.Ct. assessing the different standards used a reasonable doubt under a guilt beyond prosecution require that standard except that of the “no evidence” stan- hypothesis reading of every rule out broader Louisville, City reasonable doubt.3 Id. v. Thompson dard of 326, (1960). The Jackson standard 624, at 2793. 99 S.Ct. 4 L.Ed.2d U.S. explicit “with reference applied is to be evi- found the Judge Edwards also Chief criminal elements of the the substantive a convic- support to be insufficient dence state law.” at 324 defined Id. offense as interpreta- Applying traditional tion. also at 2792 n. 16. This n. 99 S.Ct. stan- Thompson “no evidence” tion of evidentiary state law. reference to includes any dard, the record devoid of he found Duckworth, Moore v. (1) fired either evidence we Thus 61 L.Ed.2d shots, (2) ever on the scene fatal Anderson, 625 F.2d 135 held in Goldman way (3) participated or (6th proper Cir. He Judge Weick dissented. killing. cognizance to take federal habeas court a restric- required argued that stare decisis wheth- evidentiary determining state law in “no Applying the Thompson. tive view of particular criminal er an element of test, he found sufficient evidence” proved. has been offense the conviction. case found The district court III. trials were the two the differences between Speigner’s challenge to his successful the additional material. It found *5 Speig- degree murder conviction in second testimony explana- and element of Scott’s Jago, supra, inevitably ner v. invites com- transpired on the of the events which tions panel of parison with this case. A divided by the upon relied night of the proof Speigner’s in our court found that the difference, providing the essential state constitutionally trial4 was insufficient the mur- link sufficiently did not support upheld the dis- conviction Therefore, judge the district conclud- der. grant corpus of relief. trict court’s habeas ed: judge Each the evi- panel on the viewed petitioner presented against The evidence applicable legal dence and the standard for at three lacking respect with least is reviewing differently. Judge it somewhat degree Peck, the crime of second elements of accurately anticipating Supreme First, proof petition- no murder. there is Virginia, Court’s decision in v. su- Jackson the mur- participated any way in with pra, er although held that there “some” Second, is evidence to es- Speigner’s guilt, evidence in the evidence der. there no at finding petitioner, was insufficient of tablish whether evidence. The dissent observes that “[b]ecause Scott’s conviction for second sonable federal court in its review the evidence in a state conviction: tion.” That is not life in violation of the United States Constitu- v. 362] reasonable doubt.” dence But this “ask itself question dence in the ecution, found the beyond a reasonable doubt. ^[276] Virginia, supported by proof (emphasis added). at 282 inquiry the trial supra, specifically imposes whether essential elements of the whether, light [87 rational I believe he is incarcerated for S.Ct. 483 at the standard does not most favorable to the established Woodby it believes that trier of fact could of Instead, require viewing 486, v. which Jackson sufficiency INS, the relevant 17 L.Ed.2d a court murder is 385 U.S. upon a rea- crime pros- evi- evi- of 3. Ohio 4. The standard does own 443 U.S. at finding n. 13. cence.” 443 U.S. at 319 n. relied (1974). lig, reasonable marized in 1209-10, theory 37 Ohio St.2d subjective where “circumstantial proof upon apparently 1223-24 guilt, theory adduced Speigner 318-19, 99 guilt and irreconcilable with not prove determination of it must be consistent (6th continues to follow permit 157, innocence.” an element essential v. Cir. Speigner’s Jago, 309 N.E.2d 1023, S.Ct. a court 13, evidence alone 99 S.Ct. 603 F.2d 62 L.Ed.2d at 2789. The guilt to “make case cert. State 897, or inno- the rule at 2790 is sum denied, v. Ku 1208, to a any 899 758 is

433 Third, there who aids and another commis- scene crime. is no abets in the of the in the evidence that (principal sion of the offenses second was the used in the gun victim’s car degree). provides The current statute murder. person no or abet another com- shall aid mitting the and that: offense simply compare We disagree. We cannot the incremental evidence in this case with guilty Whoever violates this section is Speigner that found to be insufficient v. an complicity in the commission of of- Rather, Jago, supra. the Jackson standard fense, prosecuted pun- be shall requires us to consider all of ished as if he were a offender. principal jury before all infer- to consider A stated in charge complicity may be ences light most favorable section, terms of or in of the terms prosecution. supra, Jackson v. Virginia, principal offense. 319, 99 U.S. at S.Ct. at We must (Baldwin). Ohio Ann. Rev. Code 2923.03 § independent make an analysis.5 Contrary Thus, if Scott could convicted judge, conclusion district we principal found to be a or an aider and significant believe there is a difference be- Moreover, abettor to the murder. the evi- tween the two trials and that incremen- dence is not Ohio law insufficient under quantum tal of evidence in Scott’s case because there no evidence which a compels a different result. was Scott could determine whether Speigner or fired the that killed who shots

IV. William Bell. v. Ohio St.2d State judge correctly As district modified, N.E.2d pointed out, elements second de “[t]he 57 L.Ed.2d 1010 gree murder, under former Revised (1978).6 We analysis note mode of 2901.05, Code are when the § established assessing sufficiency of the evidence prosecution proves pur the defendant under v. Virginia, supra, Jackson is not posely maliciously killed another.” significantly because this like Ohio law makes no altered culpability distinction totally upon between direct perpetrator Jago, supra, of the kill rests *6 ing (principal of the first and degree) one circumstantial evidence.7 tively Appel- respects, participated 5. If the were in all two cases the same murder. required we would course to affirm the lant’s own statement confirms his involve- kidnapping issuance of the writ as a of the matter estab- armed rob- ment the and the that, bery, lished law our circuit. after he and concedes further cemetery, drove into he asked Hall what the Bell, 6. In State v. 48 Ohio St.2d 358 N.E.2d going court could was reasonably to be done next. The modified, (1976), disbelieve, do, as we that Graber 57 L.Ed.2d the Ohio Su- lay quietly with his hands behind head preme Court noted that the evidence suffi- while Hall him alone to return his car left appellant cient to find that the assisted had and shotgun. to reload his Evidence bruises complete acted to The murder. court held body, appellant’s on police, Graber’s statement that this evidence would be sufficient to sustain physical circumstances finding aiding abetting under eyewitness slaying, testimony and the of the statute. court The continued: justified panel’s Pierce all would have rejection But, capital proposition in this appellant’s version its con- solely need not be overruled on the above committed, actively clusion that either or Bell grounds. panel required The was not to ac- in, propo- assisted murder. The seventh cept appellant’s version of the murder. As (Empha- sition of law therefore overruled. fact, province the trier of it was within added). sis panel to determine was the which credi- 358 N.E.2d at 563. Thus, appellant’s gist ble evidence. proposition concerning seventh aggravated is that the conviction of Much written the rela- has been contrary weight direct evi- murder was tive of circumstantial and mani- weight Upon opinion ranges fest of the evidence. review of dence. from that Generalized record, place the entire we hold which lesser in circum- there was tends to credence ample, great- pan- assigns credible which the it evidence from evidence to that which stantial appellant reliability premise el could have concluded that er ac- the witness explanation The inconsistencies in the have found that Speigner Scott and took given by concerning his actions on the Scott dead or Bell to the dying vicinity of East night appar- William Bell was murdered are 76th and Central Avenue where he was sequence suggests ent. Their that Scott “dropped (to phraseology), use off” Scott’s crafted their perceived content what he particularly body since his was found at to be they the need when were made. It is 75th and Platt. explanations, true that Bell’s last two if jury reasonably The could have disbe- believed, theory would explanations lieved Scott’s that the car was Speigner during killed Bell the time he had There rented from William Bell for $15.00. mysteriously dropped off either at the was evidence that the car window had been Grape Vine jury Tavern or on Central. A testimony by broken. There was Bell’s fa- could Speigner believe that alone commit- seldom, ever, ther that Bell if lent his car to ted the murder and dumped body dur- anybody he it for his because needed busi- ing might possibly this short interval. It Moreover, ness. the trunk contained un- concluded that Bell shot fa- cashed checks and other documents which tally rear, from the front and from the business, required yet Bell for his the car single-handedly placed weight the dead stopped when traveling in a direction car, area, drove to the isolated away from Cleveland. pushed body Bell’s pavement. onto the The precisely time of Bell’s death is not However, jury right had the established, placed but within a time observations of Scott and other witness- jury frame from which the could conclude statements, es to select which of Scott’s if Speigner, togeth- Scott and Bell were any, were true. Jackson v. Virginia, supra; jury conclude, er. The upon could based Bell, supra. State v. The statements Scott wristwatch, the broken that Bell had been made on the trip Mahoning jail from the killed at or shortly night after 10:53 placed Scott, Speigner and Bell apprehended. before The blood together in the car at approximate time back seat was not identified as be- the murder took,place. jury like- could longing sample but both the blood concluded, wise have and with far more A, Type type and Bell’s blood were shared justification reason, that Scott and by only population. 20% of the The infer- Speigner formed a decision to kill Bell and ence that the blood was Bell’s becomes either or plan both of them out the carried stronger coupled when state- shooting Bell with pistol, his own later discarded, ment placed which all three men in the car. shooting him in the back person’s head with the The stain was at a location where a sawed-off which was rest; later found in normally the car back would it was located stopped.8 could precisely suffering also person where a wounds *7 giving testimony lie, may direct person but circum crime. In each of those cases the al Wigmore stances do not. I leged part See on Evidence only to be a of the crime was a (3rd 1940). case, 26§ ed. In a civil Michalic v. passive Russell, In observer. Columbus v. Tankers, Inc., 325, 330, App.2d (1973), 316 N.E.2d 897 a 6, 10, (1960), Supreme 5 L.Ed.2d 20 the person bicycle present who was at the time a Court stated: “But direct evidence of a fact is stolen, participate was but who did not in the required. not Circumstantial evidence is not theft, could not be held as an aider or abettor. certain, sufficient, may but also be more Clifton, App.2d In State v. 32 Ohio satisfying persuasive than direct evi party N.E.2d 921 a who had entered a gen dence.” The modern view is that the law perpetrator store the of an attack could erally makes no distinction between direct or part conspiracy not be considered to be of a requires particular circumstantial evidence nor perpetrator. from his mere association with the jury, jurors allowing give instruction to the Here, demonstrates, as the recited evidence the weight evidence the which believe it is jury could have concluded that the re murder entitled. quired accomplishment for its successful the participation persons, of two who could have 8. This case is thus different those from cases Speigner. been Scott and cited the dissent where the evidence demon- presence strated mere the- scene of the bring on the to the evidence and it within such as Bell’s would have bled seat. Moreover, transported body had to be Bell’s range Judge Peck would observed a dumped. to the isolated area where it was jury’s finding. permissible inferences of testimony from the statements temptation is in case to There a place Bell presence in his own car in the of speculate might on evidence which both Scott and Speigner at time rather than the evidence been offered on altogether a circumstance which is actually placed Why, in jury. front of the missing presented in the Speig- evidence in example, for a particular wasn’t motive ner’s trial. Why shown?9 any weren’t fin- Scott’s gerprints Why found on Bell’s vehicle? V. any weren’t fingerprints gun why prosecution didn’t show writ solely upon Since the was based shotgun weapon actually was the trial court’s determination of insufficient in used the murder?10 Jackson v. Under evidence, other issues raised Scott in Virginia, supra, emphasis the primary must petition his were According- not addressed. always be upon that evidence which was in ly, the judgment of the district court is presented jury. fact When sufficient reversed and the cause remanded for fur- presented evidence is a can proceedings ther consistent herewith. conclude a reasonable it MERRITT, is appellate ponder court to why Judge, concurring. Circuit other presented. evidence was not Despite strong language used course, recognize,

We Judge dissenting opinion once the Jones’ and the ac- abandoned, “no evidence” rule is the suffi- majority “acting cusation that ciency will always grand jury, prosecutor, be a and state trial degree. court,” Judge recognized matter Peck rather than as a neutral federal tribunal, this in Speigner Jago.11 explana- I my original continue to adhere to tions made by Scott add weight incremental Engel’s opinion concurrence be- Judge 9. unnecessary It is to show motive under Ohio used to shoot Bell is also not conclusive. One killing It law. explanation sufficient be shotgun done is that a different was purposely maliciously. These elements used the murder. There was no evidence be can inferred from the facts and however, circumstanc- suggesting, shotgun belonged surrounding killing deadly weapon es a where explain which would Williams, App.2d is used. In re 41 Ohio explanation shotgun car. Another is that the N.E.2d The evidence does wiped lapse clean after use and present suggestions particular motives. police investigation caused the failure suggestion One is that Scott and examine the chamber for evidence of recent They determined steal Bell’scar. could have course, firing. using shotgun, The value of broken into car where an inebriated Bell projectile. is that is not there a traceable Thus located, him, body, dumped killed clearly it could not established in event proceeded Alternatively, out town. the kill- sawed-off found in the car ing could have had some relation to work Bell’s one used to murder Bell. private investigator. as a matter No what mo- conjured up, credulity tive is stretches Judge Peck observed: conclude that both of the shots which killed example, For if make a it is neces- accidently Bell were fired. sary prove given that a defendant was in particular Cincinnati motel at a time in room 10. The fact that the police were unable to ob- *8 question, testimony that he was in the State any fingerprints tain of Scott on either the car clearly of Ohio would be “no evidence” as to First, shotgun or the is not conclusive. no Testimony placing the critical fact. him in prints shotgun at all were on al- however, building, present might a close though surely someone handled it. Since question; while evidence defendant established, in the car is gotten particular had off elevator on the fingerprints merely sug- lack car floor of the motel within the crucial time gests prints sufficiently that his were not clear properly jury’s frame would find- wiped away. to be lifted or that had been ing challenge. in the fact of a constitutional The fact that there was no affirmative evi- Jago, supra, at 1212 n.3. shotgun dence that the under the seat was that

436 to think that the circum- A

cause I continue careful review of the record demon- is proof strong. stantial in this case strates that there was a sufficient flight found in in the dead defendant was probative presented amount of evidence few man’s car within a hours jury beyond to enable it to find with the sawed off was most purposely reasonable that doubt [Scott] likely weapon the murder under the seat. ... killed the .... At the [decedent] Thereafter, he made three different incon- evidence, same time the record reveals no sistent statements about how he came into otherwise, circumstantial or from which possession of the This ought automobile. it could be concluded or inferred that the be sufficient circumstantial evidence for a killing was premeditated. ... jury rational to convict under Jackson v. Accordingly guilty we ... find [Scott] Virginia, 99 degree murder in the second and order if, weighing that imprisoned for life. [Scott] evidence, jury firmly and all the other guilty believes that the defendant is added). Thus, App. (emphasis Joint beyond murder a reasonable doubt. appeals pur- Ohio court of that held posely Unfortunately, killed the decedent. JONES, NATHANIEL R. Judge, Circuit majority opinion inexplicably fails to dissenting. answer the question presented to us: Because Scott’s conviction for second de- proof whether there is from which a ration- gree murder is supported by proof al trier of fact could find each element of doubt, beyond a reasonable I believe beyond offense a reasonable doubt. he is incarcerated for life in violation of the Rather, the majority, acting grand jury, as United States Constitution. I reach this prosecutor, court, posits and state trial conclusion from my review of the record degree Scott’s conviction for second murder teaching Virginia, Jackson v. supported by proof is that he “aided and 307, 319, U.S. 99 S.Ct. 61 L.Ed.2d abetted” the murder of the decedent. (1979). Consequently, I dissent from Though under law charge aiding my brethren’s reversal of the district court’s abetting may be stated in terms of the issuance of a corpus. writ of habeas offense, principal 2923.03(F) (Bald- O.R.C. § win’s there is no evidence that Scott I. had actual notice in his indictment of a The sole issue before our Court is wheth- charge aiding abetting. Nor is there er after reviewing the undergird- evidence that was instructed on ing Scott’s conviction for second clear, however, charge. It murder in light most favorable to the Scott was not convicted in state court of prosecution, we can conclude that any ra- aiding abetting. Nor did the state tional trier of fact could have found the appeals Rather, court affirm on that basis. essential elements of the crime it found guilty charge. him of a lesser reasonable doubt. Virginia, Jackson v. process Fundamental rights due to notice of 307, 319, 2781, 2789, 61 L.Ed.2d charges and opportunity to defend one- inquiry governed Our by the deprive self restrain the ability state’s holding of the appeals, Ohio court of liberty. citizens of their Absent an indict- journal reflected in their entry: ment, prosecution, jury instructions and The trial judge correctly instructed the conviction in aiding a state court for jury in order to reach a verdict of abetting, process rights Scott’s due guilty of murder in the first degree it been abrogated by the conclude, majority. peti- must His beyond a reasonable (1) corpus tion for habeas challenges that: the only was a [the decedent] living person offense of which ... who had been killed convicted (2) [Scott]; killing Ohio court appeals, done purposely killing purposely. decedent.

437 (1973). II. N.E.2d 897 “The mere association perpetrates one who an unlawful act event, In any I would hold that Scott’s does person particaps not render a crimmes conviction for second murder is not (a in participant crime) long the so as his supported by proof a rea- Clifton, acts are innocent.” 32 State sonable no rational fact trier of 284, App.2d (1972). Ohio N.E.2d could that ele- have found the essential These in principles are the con- embodied ments of the crime murder were shown. cept of process constitutional due articulat- majority The opinion recites in extended 307, ed in v. Virginia, Jackson detail facts of record. Nowhere does that 307, L.Ed.2d 560 and In re recital in support refer to ele- facts of the Winship, 397 ments of the crime for which he con- was victed. The silence of the that record on recognition in the Perhaps fundamen- score apparently the majority led to seek principle tal mere constitutional that Scott’s justification grounds of aiding and abet- presence opportunity at the scene to and ting. the perpetrate proof necessary crime is not In of its conclusion evi- conviction, holds: majority also dence is sufficient convict for the Scott concluded, jury could likewise have decedent, murder majority con- reason, justification with far more and cludes that “the statement made on Scott and formed [his co-defendant] trip Mahoning jail to Cleveland to kill and decision either [the decedent] placed Scott, co-defendant and the de- [his plan or both them carried out the together approxi- in the car at the cedent] shooting pistol, him with his own later mate time place.” the murder took discarded, shooting him and three concerning inconsistent statements back of head with a sawed-off shot- evening whereabouts the of decedent’s in gun which was later found the car in death are evidence relevant from which a stopped. jury which could jury can infer no more than that Scott was Scott, also have found that and co-de- [his in the decedent’s car on the of his evening took dying [body] a dead or fendant] death. vicinity of East 76th Central Av- Additionally, majority ex- notes that “dropped enue where he was off” . . . pert testimony estimated dece- the time of particularly body since his was found at dent’s death as between p. 11:00 m. 75th Platt. m., Thus, 2:00 a. and as late as 3:30 a. m. However, conclusion, “justified such a proved state that Scott present reasonable,” predicated upon must be four, during the decedent hours majority points Significantly, evidence. which he was short and had the opportunity jury may to no evidence from which the perpetrate crime. Proof of Scott’s infer Scott formed a to kill the decision presence (not scene) in the car at the Nor evidence that decedent. was there his opportunity perpetrate are the crime under seat of the the front inferences the state’s favor car stopped defendant’s in which rationally evidence will Under support. at 5:30 commission a. m. used in the law, Ohio principle it is a fundamental against The majority crime. cautions crime, even presence at the scene aof on evidence temptation “speculate standing alone, prove never suffices to might have rather than been offered beyond a reasonable doubt. The law actually on that in front of placed Ohio is clear that “the mere of an jury.” discussing Yet “theories” accused at the scene of a crime and the fact accepted, the may which the ma- acquainted perpetra- with the jority plain speculation. Specu- engages itself, tor is proof, not sufficient in and of contrary lation the Supreme Court’s that he was an “aider and abettor.” Co- Winship, supra, in In re admonition Russell, lumbus v. App.2d 316 90 1072: S.Ct. at *10 man The majority Due commands that no shall contended not process liberty falsehood, government lose his unless the has only with the fact of a but also convincing of borne the burden ... flight fugi- with the fact of and Speigner’s guilt. his factfinder of nearly year. for a a period tive status of so, It that is critical the moral of the this Speigner recognized force Even Court in not be criminal law diluted a standard these that events and the inferences proof of people that leaves in doubt evidentiary drawn therefrom did not fill the whether being innocent men are con- necessary gap charge to meet the of murder important demned. It is also our free Judge second degree. in the Peck ob- society every going individual about served: his ordinary affairs have confidence that In addition to the previously his government adjudge cannot him text, the record below considered guilty of a criminal offense con- without coopera- contains evidence that petitioner vincing a proper guilt factfinder his in giving ted with the driver a false certainty. with utmost story petitioner rental and that evaded A full majority’s distillation of the rea- police ten the Cleveland for some months soning explication and leaves us with noth- 26,1973 his Although June release. ing conjecture, more than suppositions and may prove peti- these facts tend to speculation may as to what not have may or they committed some do not tioner crime jury to motivated the convict. None prove petitioner tend committed adds up to or is a proof, substitute for nor the crime of second murder. degree give does it rise to inferences supportive Similarly, petitioner the fact guilt. evidentiary gap and the remains gave varying explanations acquaintance requirements Virginia in Jackson v. are with the victim and in the victim’s thus unmet. The way conceivable a during automobile events hours trier of fact in Ohio could find is to arrest, preceding Speigner, as would did pyramid an atop inference an inference. second conviction for impermissible This is in Ohio. murder. majority places great stress protection In this the fundamental various explana inconsistencies in Scott’s process law due necessitates an af- tions of night his movements on the firmance the district court because no victim was murdered. It is this series of trier “rational of fact could have found the contradictions as well as the Ohio statute of crime essential elements of the aiding abetting complicity Virginia, doubt.” su- reasonable Jackson majority lead the distinguish Speigner v. pra, 443 at 2789. 99 S.Ct. Jago, (6th 603 F.2d 1208 Cir. cert. denied, it great is with reluctance that Though upon finality federal court intrudes conviction, of a state criminal this Circuit is

I again turn to the question of the incon- sistent all likelihood the final arbiter between statements my view reiterate guarantee proc- due fundamental explana- inconsistencies in Scott’s tions law amount to ess of and Ohio’s to make nothing more a credi- interest than bility deficit. pay for the killing someone decedent. proof Absent of Scott’s rea- I am deeply majority troubled sonable our Court must not be the resting holding on such a nebulous trough from which Ohio satisfies its thirst improper basis as “their sequence [Scott’s I dissent. avenge killing. brutal suggest that Scott crafted inconsistencies] their content to what to be perceived he need made,” when (emphasis

added), though proof substantive

murder. a suggestion Such in- regarding

consistencies, submit, proof I is not in Ohio.