*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
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
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,
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
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
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.