Petition — Jago v. Speigner
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DEC A i979
=
IN THE
Supreme Court of The United States at |
No. %9-866
October Term, 1979
ARNOLD R. JAGO, Superintendent
Southern Ohio Correctional Facility,
Petitioner
VS.
HENRY SPEIGNER,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
WILLIAM J. BROWN
Attorney General
SIMON B. KARAS
Assistant Attorney General
State Office Tower
26th Floor
30 East Broad Street
Columbus, Ohio 43215
(614) 466-5414
ATTORNEYS FOR PETITIONER
MIDWEST LAW PRINTERS AND PUBLISHERS, INC., Columbus, Ohio 43216
TABLE OF CONTENTS
UG Ue bes c5 ss vc ess ccs eens 1
ee ee 1
a errr ree eee
WHETHER AN APPELLATE COURT MAY ISSUE
A MANDATE AFFIRMING THE DECISION OF A
DISTRICT COURT GRANTING HABEAS CORPUS
RELIEF WHEN SUBSEQUENT TO ITS OPINION
BUT PRIOR TO ISSUANCE OF THE MANDATE
THE APPELLATE COURT IS NOTIFIED THAT
THE CASE OR CONTROVERSY BETWEEN THE
STATE CUSTODIAN AND THE HABEAS CORPUS
APPLICANT HAS BECOME MOOT BY VIRTUE OF
THE DEATH OF SUCH APPLICANT............. 2
CONSTITUTIONAL PROVISION INVOLVED ........ 2
ce a 2
ARGUMENT IN SUPPORT OF CERTIORARI ........ 5
A. Conflict With Decisions Of
ky owe sd ee nese 5
SE Se 6
C. Timing of Speigner’s Death .................. 9
D. Practical Effect Of Decision.................. 10
EE SE Eee 11
CR ar SCAT OF GE VE, oi rec ievcesce eens 12
ES A Nae NES 5 0 8 8 eee ae BA 13
Opinion, Speigner v. Jago,
_. F.2d. , No. 76-3200,
oe ee ee ree ree 13
Order, July 24, 1979, denying
rehearing and suggestion of
ee ix eee sph aN a wk 54
Order, August 3, 1979,
ee a ge a 5 in be wow 0 6 56
Order, September 7, i979,
granting withdrawal of
ESTEE SUDA AN Oe ae ee 57
paandete, Septemuer 11, TOTS. 26. ee ct eee 58
Order, October 3, 1979, denying
motion to recall, set aside
ONG /Or TOCOMNNEOT TAGNEMES 2 cw. kk bk kk ee ces 59
A ee os ae ee pau 60
Death Certificate for Albert Stewart
es er I Boao ks iy hei ee vee eens 62
il
—
TABLE OF AUTHORITIES
Page
DeF unis v. Odegaard,
Oe Sis PER ERO): 65.5 vO ewe teh Sere e ees s 9
Dove v. United States,
ee ee I oc ek eG beh Che See e es 10
Duke Power Co. v. Greenwood,
ee a CR ies ek kha eee k dicwe bh aens +)
Durham z«. United States,
ee ae TEs 5 ak Se ha WR 10
Flast v. Cohen,
ge BG. Se ee ree a re eee ee 9
Great Western Sugar Co. v. Nelson,
US , 60 L. Ed. 2d 735 (1979) ..... 5,6, 11
Jackson v. Virginia,
US. , 61 L. Ed. 2d 560 (1979)...... 7, 8,10
Knapp v. Baker,
Se f . Oe wae (oem Clr. STO), 6. ceca aces 9
Powell v. McCormack,
rr ee va on abe ehh oa ea eee 9
Roe v. Wade,
ee es a on eR eee a 9
Speigner v. Jago,
450 F. Supp. 799 (N.D. Ohio 1978)............ 3,8
iil
Thompson v. City of Louisville,
362 U.S. 199 (1960)........
United States v. Bechtel,
547 F. 2d 1379 (9th Cir. 1977)
United States v. Moehlenkamp,
557 F. 2d 126 (5th Cir. 1977).
United States v. Munsingwear, Inc.,
340 U.S. 36 (1950).........
United States v. Toney,
527 F. 2d 716 (6th Cir. 1975),
cert. denied, 429 U.S. 838....
Wetzel v. Ohio,
Wek Ua, GRRE. 6 nc wesns
iv
IN THE
SUPREME COURT
OF THE UNITED STATES
OCTOBER TERM, 1979
ARNOLD R. JAGO, Superintendent
Southern Ohio Correctional Facility,
Petitioner,
VS.
HENRY SPEIGNER,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
OPINIONS BELOW
The mandate of the United States Court of Appeals
for the Sixth Circuit is unreported. (Appendix page
58.) Similarly, the order denying the motion to recall,
set aside, and/or reconsider mandate is unreported.
(Appendix page 59). For the reasons which will appear
infra_in this petition for writ of certiorari, it is the above
orders, rather than the underlying opinion, which are
challen
ged.
——
JURISDICTIONAL BASIS
The mandate of the United States Court of Appeals
for the Sixth Circuit was issued September 11, 1979.
(Appendix page 58). The order denying the motion
to recall, set aside, and/or reconsider mandate was issued
October 3, 1979. (Appendix page 59). Jurisdiction is
conferred by 28 U.S.C. Section 1254 (1).
QUESTION PRESENTED
WHETHER AN APPELLATE COURT MAY ISSUE A
MANDATE AFFIRMING THE DECISION OF A DIS-
TRICT COURT GRANTING HABEAS CORPUS RE-
LIEF WHEN SUBSEQUENT TO ITS OPINION BUT
PRIOR TO ISSUANCE OF THE MANDATE THE
APPELLATE COURT IS NOTIFIED THAT THE CASE
OR CONTROVERSY BETWEEN THE STATE CUS-
TODIAN AND THE HABEAS CORPUS APPLICANT
HAS BECOME MOOT BY VIRTUE OF THE DEATH
OF SUCH APPLICANT.
CONSTITUTIONAL PROVISION INVOLVED
This case involves that portion of Article III, Section
2 of the United States Constitution relating to justiciable
cases and controversies:
The judicial power shall extend to all cases in law
and equity, arising under this constitution, the laws
of the United States and treaties made, or which
shall be made under their authority;. . .
STATEMENT OF THE CASE
Respondent Speigner was indicted by the April 1973
Term of the Grand Jury of Cuyahoga County, Ohio for
the crime of murder in the first degree. Upon trial by
jury, Speigner was found to be guilty of the lesser inclu-
ded offense of murder in the second degree. As a result,
Speigner was sentenced on June 20, 1974 to a term of
from fifteen years to life. (Case No. CR-9849B). In
addition, as a result of -the above conviction, a pro-
bation for malicious destruction of property and posses-
sion of burglar tools to which Speigner had previously
pled guilty was revoked on June 26, 1974. (Case No.
CR-6961).
Subsequent to incarceration, Speigner appealed to the
Court of Appeals of Cuyahoga County from both the
murder conviction and the probation revocation. On
July 31, 1975, that court affirmed in all respects. (Case
Nos. 33824 and 33902). A further appeal to the Ohio
Supreme Court was denied on March 19, 1976. (Case
No. 75-916).
On May 7, 1976, Speigner filed a petition for writ
of habeas corpus in the United States District Court for
the Northern District of Ohio, Eastern Division. As one
of the claims of the petition, Speigner alleged that his
conviction was void of evidentiary support.
Approximately two years later, on March 9, 1978, the
district court entered an opinion granting the writ on the
basis claimed above. Speigner v. Jago, 450 F. Supp. 799
(N.D. Ohio 1978). After finalization of the order as a
judgment on March 14, 1978 and after a stay of execu-
tion of judgment was denied by the district court, Speig-
mer was released from prison by the terms of the dis-
trict court order.
lthe order originally granted a condition of retrial
within ninety days. Speigner’s subsequent motion for
modification of the order on double jeopardy grounds
was withdrawn upon stipulation of the parties that no
evidence, other than what was presented at the original
trial, was available for retrial. As a result, Speigner was
given an absolute release from the murder conviction and
returned to the custody of the Cuyahoga County Pro-
bation Department on his other charges.
Petitioner Jago filed his notice of appeal on April 3,
1978 and thereafter sought and was granted an expedited
appeal. Oral argument was heard on October 9, 1978,
and the decision was rendered June 13, 1979. By 2-1
vote, each of the panel members filing an opinion,
the appellate court affirmed. (Appendix page 13). A
timely petition for rehearing and suggestion of rehearing
en banc was denied with “less than a majority having
favored consideration en banc.” (Appendix page 54).
Subsequent to such denial, Jago requested a stay of
the mandate of the court pending his intended filing
of a petition for writ of certiorari. Such order was
granted on August 3, 1979 and preparatory steps were
taken to file such petition. (Appendix page 56). On
August 16, 1979, however, the very same day the print-
er’s proofs for such petition were received, information
was received by Jago’s counsel which led to an inves-
tigation disclosing that Speigner had died in Los Angeles,
California on April 20, 1979, as a result of a suspected
homicide. (Appendix page 60). After verifying such
information, Jago immediately notified the appellate
court by a motion to vacate the stay and by memoran-
dum suggestion of mootness filed August 24, 1979.
Attached to such motion and memorandum were a
copy of the death certificate for Speigner, indicating
that his death was initially listed under the name of
an alias, and an affidavit of Jago’s counsel indicating
that the information received on August 16, 1979 was
the first actual notice of Speigner’s death. (Appendix
pages 62 and 60). In time frame reference, the death oc-
curred approximately two months prior to the issuance
of the appellate court opinion, with the discovery there-
of occurring approximately two months thereafter.
On September 7, 1979, the appellate court granted
Jago’s motion to withdraw the stay of mandate, but did
not act on the memorandum suggestion of mootness.
(Appendix page 57). As a result, the mandate of the
appellate court, affirming the district court’s decision,
was issued September 11, 1979. (Appendix page 58).
On October 3, 1979, the court granted Jago’s motion
to treat a previously filed supplement to the memor-
andum suggestion of mootness as a motion to recall,
set aside, and/or reconsider such mandate, but denied
such relief on the merits without explanation. (Appendix
page 59). This petition for certiorari to challenge the
mandate issued has timely followed within ninety days
of such mandate.
ARGUMENT IN SUPPORT OF CERTIORARI
A. Conflict With Decisions Of This Court.
While more subtle than the situation in Great Western
Sugar Co. v. Nelson, US. , 60 L. Ed. 2d 735
(1979), the refusal of the appellate court below to amend
its mandate so as to require dismissal of the initial com-
plaint for mootness is in direct conflict with applicable
decisions of this Court requiring such relief. United States
v. Munsingwear, Inc., 340 U.S. 36 (1950). In Great
Western Sugar Co. v. Nelson, supra at 736, this Court,
citing Duke Power Co. v. Greenwood, 299 U.S. 259,
267 (1936), reaffirmed long standing precedent that:
Where it appears upon appeal that the controversy
has become entirely moot, it is the duty of the appel-
late court to set aside the decree below and to remand
the cause with directions to dismiss.
The error therein, as noted by this Court, was that the
appellate court had dismissed an appeal as being moot,
but had specifically allowed the judgment of the dis-
trict court to stand in contravention of the above prin-
ciple. Similarly, the appellate court herein, in issuing
its mandate of affirmance, has retained precedential
authority for a decision that was moot in the ultimate
sense. Certiorari should be granted for the sole reason
of redressing a failure to follow the dictates of this
Court. Each litigant is entitled to the knowledge that
departure from the prevailing principle of law will be
dealt with accordingly and the case is of national im-
portance for that reason alone.
B. Mootness.
Unlike Great Western Sugar Co. v. Nelson, supra, the
appellate court herein did not make a specific finding of
mootness of the decision before issuing its approval of
the district court opinion. Any question that the case
is not moot however would seem to be foreclosed by the
very fact that due to Speigner’s death, Jago had to
terminate his initial petition for certiorari to challenge
the correctness of the appellate court decision. Given
Speigner’s death, the sole purpose of a reversal, if given,
would have been to render an advisory opinion, for no
live person existed to return to prison. Yet, by not
remanding to the district court to dismiss the initial
complaint as moot, but affirming, the appellate court
has retained precedential value for a decision which Jago
cannot further litigate and which as a representative of
the State and the courts thereof which affirmed Speig-
ner’s conviction, it was his intention to so challenge. In
this regard, it shouid be noted that such petition would
have been far from frivolous:
An even more recent case in that court provoked
a lively debate among three of its members regard-
ing the effect of Winship, upon federal habeas
corpus. The writ was granted in that case, even
though the trial record contained ‘“‘some evidence
of the applicant’s guilt.” See Speigner v. Jago,
F. 2d (6th Cir., June 13, 1979).
Jackson v. Virginia, US. , 61 L. Ed. 2d 560,
572, footnote 7 (1979). The district court in this mat-
ter, allegedly under the “no evidence” rule of Thompson
v. City of Louisville, 362 U.S. 199 (1960), held:
The prosecutor’s theory of the case, which evidently
assumed [ without evidentiary basis] that petitioner
and the driver of the victim’s car had robbed and
beaten Bell, shot him, and stolen his car, is one
explanation for the facts that were proven. It would
however, be equally reasonable to infer that a
third person killed Bell in a fight since there is no
evidence, direct or circumstantial, connecting
petitioner to the time or place of the crime. The
defense’s failure to set forth an alternative theory
does not mean that the facts “are consistent only
with the theory of guilt and irreconcilable with
any_reasonable theory of [ petitioner’s] innocence’’.
State v. Kulig, 37 Ohio St. 2d 157, 160, 309 N.E.
2d 897, 899 (1974).
In accordance with Ohio law, the trial judge charged
the jury that the prosecutor was required to prove
that “a person, that is the Defendant, committed
the crime as described to [the jury].” Tr. 379-80.
However, since there was simply no proof of this
element of the crime, the jury should not have been
permitted to consider it. Without proof of each and
every essential element of the crime charged, the
state has not met its burden of proof under Ohio
law. . . .A conviction which does not satisfy the
state standard certainly fails to afford the due
450 F. Supp. supra at 800. In affirming, the majority of
the appellate court intimated error by the district court
in finding ‘“‘no evidence”’ in its strict sense, but in antici-
pation of this Court’s decision in Jackson v. Virginia,
supra, affirmed on the basis that even under the “no
evidence” rule, considerations of weight and sufficiency
could be taken into account. The appellate court opinion
however did not reject the district court decision that the
constitution requires that circumstantial evidence must
exclude every reasonable hypothesis other than guilt:
Only under a theory that the prosecution was under
an affirmative duty to rule out every hypothesis
except that of guilt beyond a reasonable doubt
could this petitioner’s challenge be sustained.
That theory the Court has rejected in the past.
Holland v. United States, 348 U.S. 121, 140. We
decline to adopt it today. Under the standard es-
tablished in this opinion as necessary to preserve
the due process protection recognized in Winship,
a federal habeas corpus court faced with a record
of historical facts that supports conflicting infer-
ences - must presume - even if it does not affirma-
tively appear in the record - that the trier of fact
resolved any such conflicts in favor of the prose-
cution, and must defer to that resolution.
Jackson v. Virginia, supra at 578. It was thus Jago’s
intention in the initial petition, despite this Court’s
decision in Jackson v. Virginia, supra, to question,
whether in anticipation of Jackson, the appellate court
below established a standard beyond that of Jackson it-
self, and allowance of this precedent to stand without
Jago being able to challenge it is exactly why moot cases
should be properly labeled as such.
C. Timing of Speigner’s Death.
To be sure, the discovery of Speigner’s death, occur-
ring subsequent to argument, but prior to issuance of the
opinion, and being discovered after issuance of the opin-
ion, but prior to issuance of the mandate, presents a
somewhat unusual and novel factual sequence. The
closest analogous case appears to be Knapp v. Baker, 509
F. 2d 922 (5th Cir. 1975), which also involved an appeal
by the State from a grant of habeas corpus where the
suggestion of death was made subsequent to argument
but prior to issuance of the opinion. Factually novel or
not however, the applicable principles of law still require
a finding of mootness. Since Speigner’s death occurred
prior to issuance of the opinion, even though not dis-
covered until after the date of death, it would relate
back. In this regard, it should be noted that Speigner
was at liberty, died under an alias, and in a location
far removed from Ohio’s jurisdiction. Under such cir-
cumstances, the belated discovery of his death as set
forth in the affidavit presented to the appellate court
(Appendix page 60) is not unexpected. Moreover, it
is the mandate of the court which acts as the official
record of proceedings. The suggestion of death was pre-
sented with diligence upon discovery and the appellate
court was provided with every opportunity to sua sponte
amend its mandate. Finally, the timing of Speigner’s
death and discovery thereof is somewhat irrelevant as a
“case or controversy” must exist at every stage of pro-
ceedings. Powell v. McCormack, 395 U.S. 486 (1969);
DeFunis v. Odegaard, 416 U.S. 312 (1974); Flast v.
Cohen, 392 U.S. 83 (1968); Roe v. Wade, 410 US.
113 (1973). The central question is whether the court
can provide any actual relief to the litigants. Thus, for
example, if Speigner had died after filing of Jago’s pe-
10
tition, this Court would properly have declared the case
moot and ordered appropriate relief. A more concrete
example has been this Court’s disposition of criminal
cases in which the criminal defendant has died during the
pendency of appeals and certiorari. Dove v. United
States, 482 U.S. 325 (1976); Durham v. United States,
401 U.S. 481 (1971); Wetzel v. Ohio, 371 U.S. 62 (1962);
United States v. Toney, 527 F. 2d 716 (6th Cir. 1975),
cert. denied, 429 U.S. 838; United States v. Bechtel,
547 F. 2d 1379 (9th Cir. 1977); United States v. Moehl-
enkamp, 557 F. 2d 126 (5th Cir. 1977). In such circum-
stances, this Court has held that upon death of the
defendent, the entire criminal proceedings should abate.
Under a similar view, the entire federal proceedings
herein should have been dismissed.
D. Practical Effect of Decision.
In the pleadings in the appellate court, Jago specifi-
cally asserted that the issue herein involved more than
mere technical pleading and a general desire to obivate
an unfavorable decision. Not only does the existence of
the appellate court opinion act as general precedent, but
at the present time, Speigner’s co-defendant has pending
before the same district court as decided this case, a
habeas corpus petition on the exact same basis. An af-
firmance in this case, rather than dismissal for mootness,
would seem to require relief and affirmance at two levels
of the judiciary without de novo review. While as a prac-
tical matter, Jago would not request the impossible —
treating this case as never having arisen, a decision strip-
ping the opinion of precedent at least allows the request
for de novo review without the preclusion of an existing
and binding precedent. This is especially important in
light of the multi-faceted split in the court below in its
opinion and on request for rehearing en banc, this Court’s
subsequent decision in Jackson, supra, and the fact
11
that, but for Speigner’s death, it was Jago’s intention,
now precluded solely by mootness, to petition this Court
for review under the Jackson, supra standard. To allow
this case to stand as binding precedent therefore allows
this case not only to control numerous habeas corpus
cases generally, but a specific matter as well. In keeping
with Great Western Sugar Co. v. Nelson, supra, this
Court should specifically uphold the validity of its
decisions. 7
CONCLUSION
For the above reasons, this Court should grant cer-
tiorari. As summary relief, this Court should vacate
the mandate of the court below and remand with in-
structions that the district court dismiss the matter
as moot.
Respectfully submitted,
WILLIAM J. BROWN
Attorney General
SIMON B. KARAS
Assistant Attorney General
State Office Tower, 26th Floor
30 East Broad Street
Columbus, Ohio 43215
(614) 466-5414
ATTORNEYS FOR PETITIONER
12
CERTIFICATE OF SERVICE
I hereby certify that three (3) copies of the foregoing
Petition For Writ Of Certiorari has been forwarded to
Elliot R. Levine, 8 Caldwell Avenue, Somerville, Massa-
chusetts, 02143, counsel for respondent Henry Speigner,
by U.S. mail, postage prepaid, this day of
, 1979. I further certify that
all persons required to be served have been so served.
SIMON B. KARAS
Assistant Attorney General
13
No. 78-3290
UNITED STATES COURT OF APPEALS
For The Sixth Circuit
HENRY SPEIGNER,
Petitioner-A ppellee,
Ve
ARNOLD R. JAGO, SUPERINTENDENT,
Respondent-A ppellant.
Appeal from the United States District Court for the
Northern District of Ohio, Eastern Division.
Decided and Filed June 13, 1979.
Before: EDWARDS, Chief Judge, WEICK, Circuit
Judge, and PECK, Senior Circuit Judge.
PECK, Senior Circuit Judge, delivered the opinion of
the Court. EDWARDS, Chief Judge, (pp. 13-16) de-
livered a separate concurring opinion. WEICK, Circuit
Judge, (pp. 16-36) delivered a separate dissenting
opinion.
PECK, Senior Circuit Judge. At a jury trial in the
state court, petitioner Henry Speigner was convicted
of second degree murder under O.R.C. §2901.05.' After
1 Petitioner Henry Speigner was indicted by the Grand Jury
of Cuyahoga County, Ohio, in April 1973, for the crime of
murder in the first degree, in violation of former O.R.C.
$2901.01. Petitioner was convicted of the lesser included
offense of murder in the second degree under O.R.C.
§2901.05.
2901.05 (12403). Murder in second degree.
No person shall purposely and maliciously kill another.
14
unsuccessfully exercising his rights to direct appeal,
Speigner petitioned the district court for a writ of
habeas corpus. The district judge, in granting the writ,
concluded that petitioner’s conviction was “totally de-
void of evidentiary support.”
The present case is a difficult one because of the small
quantum of evidence presented to support petitioner’s
conviction of second degree murder. On the one hand,
there is “some evidence of record which tends to make
petitioner’s guilt as to the crime charged more likely
than not.” On the other hand, and contrary to the con-
clusion of the state appellate court, the totality of the
evidence against petitioner does not amount to evidence
sufficient to suport, as a matter of law, guilt beyond a
reasonable doubt. Thus, the present case requires this
Court to carefully delineate the extent to which a fed-
eral court is obligated to review, under Fourteenth
Amendment due process, a state criminal conviction.
EVIDENCE OF RECORD
A review of the trial transcript reveals that the vic-
tim, William Bell, was murdered either late in the night
of June 25, 1973, cr early in the morning of June 26,
Whoever violates this section, except in the manner de-
scribed in sections 2901.01, 2901.02, 2901.03, and 2901.04
of the Revised Code, is guilty of murder in the second
degree and shall be imprisoned for life.
- Rule 401, Federal Rules of Evidence reads as follows:
Definition of “Relevant Evidence.”
“Relevant evidence’ means evidence having any ten-
dency to make the existence of any fact that is of con-
sequence to the determination of the action more probable
or less probable than it would be without the evidence.
15
1973. His body which had been badly beaten, was found
lying in a street in Cleveland, Ohio, at approximately
7:00 a.m., June 26. It was established at trial that Bell
had died of two fatal gun shots, a .32 caliber pistol shot
from the front and a shotgun blast from the back.
During trial the state presented evidence that a high-
way patrolman had stopped Bell’s automobile for a
routine safety inspection at 5:02 a.m. on June 26, 1973,
at a location approximately one hour’s drive from the
spot where the victim’s body was found. When the ve-
hicle was stopped, Speigner was a passenger in the
automobile. He identified himself by use of an alias,
Frank Mathews, and he presented the patrolman with
a welfare card. In the course of the officer’s questioning
of the driver of the car, Roger Scott, Scott stated that
he had rented the vehicle from the victim for $15.
Speigner heard Scott’s statement, and both men
laughed at the fact that they had been “stuck” with an
unsafe vehicle. Certain evidence presented at trial
specifically refuted the rental story offered by the driv-
er. First, testimony disclosed that Bell had used his
car in his business and that he had followed a rule of
never lending it to anyone, not even his brothers. Fur-
ther, various checks and documents were found in a
briefcase in the trunk of Bell’s car, and these items
were to be filed by the victim on the morning of June
26, 1978.
Speigner was released after a short detention by the
highway patrol, but he stated he would return and post
a $50 bond for the driver Scott. Without fulfilling this
promise, Speigner left the Celevland area within a few
days. During the period of the next ten months, Speig-
ner traveled to various cities across the country, includ-
ing San Francisco, Las Vegas, St. Louis and New York
16
City. When he was apprehended by New York police
on April 10, 1974, Speigner stated that he was aware
the Cleveland police had been looking for him and he
admitted that he had been acquainted with both the vic-
tim Bell and Scott, the driver of the vehicle.
An inventory of the victim’s car was conducted in the
morning hours of June 26, 1973. This inventory re-
vealed a shattered vent window on the driver’s side of
the vehicle, window glass on the front floor, blood stains
of the victim’s (A) on the rear seat, a bloody finger-
print of a undetermined origin on the right front door,
and a sawed-off shotgun under the seat which Speigner
had been occupying. Subsequent scientific examination
of the shotgun did not, in any way, connect the gun to
petitioner and the gun was not testfired or otherwise
proven to be the murder weapon.
THE “NO EVIDENCE” STANDARD
In reviewing the district court’s grant of a writ of
habeas corpus, we are obligated to adhere to the pre-
vailing standard of review in habeas corpus proceed-
ings, the so-called ‘“‘no evidence” standard, enunciated
by the Supreme Court in Thompson v. City of Louis-
ville, 362 U.S. 199 (1960). Therein, the Court con-
cluded that a state violates a defendant’s constitutional
due process when it convicts the defendant of a crime
without evidence to support an essential element of the
crime. 362 U.S. at 204, Cf. Vachon v. New Hampshire,
414 U.S. 478, 480 (1974) ; Harris v. United States, 404
U.S. 1232, 1233 (1971).
The ultimate question presented to us is whether
the charges against petitioner were so totally de-
void ef evidentiary support as to render his convic-
tion unconstitutional under the Due Process Clause
17
of the Fourteenth Amendment. Decision of this
question turns not on the sufficiency of the evi-
dence, but on whether this conviction rests upon
any evidence at all.
* * *
Under the words of the [city] ordinance itself, if the
evidence fails to prove all three elements of this
loitering charge, the conviction is not supported by
evidence, in which event it does not comport with
due process of law.
* * *
Just as “conviction upon a charge not made would
be sheer denial of due process,” so is it a violation
of due process to convict and punish a man without
evidence of his guilt.
Thompson, supra, 362 U.S. at 199, 204, 206.
On a superficial level of analysis, the ‘no evidence”
standard of Thompson appears to quickly dispose of
the present appeal. As we previously stated, there is
“some” evidence of record which tends to establish, to
a degree, that petitioner is guilty of the crime of second
degree murder. For example, the victim’s automobile
was stopped at 5:02 a.m., a few hours after his murder,
a short distance from the place where his body was dis-
covered. At that time blood stains of the victim’s type
were in the car; a bloody but unidentified fingerprint
was on the door; a sawed-off shotgun was under the
passenger’s seat; a vent window was shattered and
glass was strewn on the floor. From this evidence, a
jury could reasonably infer that the victim’s car might
have been at the scene of his murder. When we add to
this inference the facts that petitioner was a passenger
in the vehicle when it was stopped at 5:02 a.m., that he
was seated directly over the shotgun, and that he later
admitted knowing both the victim and the driver of the
18
vehicle, we must conclude that the record in this case
contains “some” evidence relevant to the elements
of second degree murder.
On a deeper level of analysis, however, the “no evi-
dence” standard of Thompson does not automatically
bar petitioner’s request for relief. In decisions subse-
quent to Thompson, the Supreme Court has interpreted
the “no evidence”’ standard in a manner not consistent
with the narrow, literal meaning of the words, “no evi-
dence.” In these decisions, the Court has given the
Thompson standard a more flexible construction, one
which takes into account the fact that in virtually
every criminal prosecution there is “some” evidence of
record to support a conviction.
Two cases, Vachon v. New Hampshire, supra, 414
U.S. 478 (1974), and Johnson v. Florida, 391 U.S. 596
(1968) (per curiam), illustrate the current meaning
of the Thompson standard. In Johnson a defendant had
been found guilty of vagrancy under a Florida statute
that made it unlawful to be found “wandering or strol-
ling” from place to place without any lawful purpose
or object. At trial, the state had established that the de-
fendant had been seated on a park bench at 4:25 in the
morning; that just prior to his arrest the defendant had
told the officers; that he was waiting fr a bus; that the
buses had stopped service some five and one-half hours
prior to the defendant’s .rrest and that, when ques-
tioned by the officers, the defendant offered no explana-
tion of what he had been doing for the previous three
hours. This evidence notwithstanding, the majority of
the Court concluded “. . . that so far as the ‘wandering
or strolling’ ingredient of the crime is concerned, the
record is lacking in any evidence to support the judg-
ment.” 391 U.S. at 598. As to the single evidentiary
19
fact that the defendant had been seated on a park
bench, allegedly for some three hours, Mr. Justice
White wrote in dissent, “Most inhabitants of park
benches reach their bench by wandering or strolling.”
391 U.S. at 599 (White, J., dissenting). In Vachon v.
New Hampshire, supra, a case decided some six years
after Johnson, the Supreme Court again adopted a fiex-
ible interpretation of the Thompson standard. In Vach-
on the operator of the Head Shop in Manchester, New
Hampshire, had been convicted of contributing to the
delinquency of a minor in violation of a state statute.
The minor had purchased a button inscriped ‘‘Copula-
tion Not Masturbation” at the Head Shop from an un-
identified saleperson who may or may not have been
the defendant. The majority of the Court, in vacating
the state’s judgment of conviction, concluded that the
record was “completely lacking” in evidence on the
element of wilfulness, an essential element of the
charge. 414 U.S. at 479. The Court reached this conclu-
sion despite the facts that the defendant, according to
his own trial testimony, had controlled and operated the
shop on the day of the sale in question; that the button
sold to the minor had been prominently offered for sale
on a velvet display card on a counter in the shop; and
that the same type of button had been previously pur-
chased at the shop during the time the defendant was
its operator. 414 U.S. at 486 (Rehnquist, J., dissent-
ing).
Decisions such a Vachon and Johnson implicitly rec-
ognize that a federal court’s review of a state trial rec-
ord must be, to a certain extent, a matter of degree.
Recognition of this fact is essential if habeas corpus
review of evidentiary matters is to fulfill any meaning-
ful purpose. Although trial records at times contain
20
only small amounts of circumstantial and highly specu-
lative evidence, virtually every record contains “some”
evidence, in an absolute sense, that tends to establish
the guilt of the accused. Thus, if the Supreme Court
were to exclude all notions of degree from habeas cor-
pus review, the Thompson “no evidence” standard
would be rendered an Iron Curtain type blockade in the
path of every state prisoner who seeks federal court re-
view of the evidence supporting his conviction.
Even though the Supreme Court, in decisions such as
Vachon and Johnson, has implicitly rejected a rigid in-
terpretation of the “‘no evidence” standard, the absolute
language of the Thompson decision continues to pose a
fundamental dilemma. When a federal court denies a
petitioner habeas corpus relief, the court can simply
cite the language of the Thompson standard and refer
to an “iota of evidence” found in the state trial record.
See, e.g., Brooks v. Rose, 520 F.2d 775, 777 (6th Cir.
1975). However, when a federal court grants a peti-
tioner habeas corpus relief, the court is frequently
forced to ignore certain relevant evidence in order to
make its decision consistent with the literal meaning of
the words, “‘no evidence.” In view of the continuing na-
ture of this dilemma, we are convinced that it is time
to forthrightly recognize that the ‘‘no evidence” stand-
ard of Thompson, as it prevails today, incorporates
some notion of degree or weight of evidence.* Consis-
tent with this recognition, I would disavow the literal
3 For example, if to make a case, it is necessary to prove that
a defendant was in a given Cincinnati motel room at a par-
ticular time in question, testimony that he was in the State
of Ohio would clearly be ‘“‘no evidence” as to the critical fact.
Testimony placing him in the building, however, might pre-
sent a close question; while evidence that the defendant had
gotten off the elevator on the particular floor of the motel
within the crucial time frame would properly support a
jury’s finding in the face of a constitutional challenge.
21
interpretation of the “no evidence” standard adopted
by this Circuit in Brooks v. Rose, supra, and would
adopt the dissenting views of Judge McCree therein.*
In Brooks, despite the existence of some speculative
evidence that the defendant was sane at the time of
the acts in question, the record was without eviden-
tiary support within the context of the Fourteenth
Amendment.’ As Judge McCree wrote:
4 But see Judge Edwards’ concurring opinion and Judge
Weick’s dissenting opinion, infra.
The dissenting opinion herein states that “no panel of
this Court has the power or right to overrule the decision of
another panel.” The opinion concludes that “the overruling
should be a function of an en banc court, and not that of
a single panel, unless a subsequent Supreme Court decision
overrules the decision on which the panel relied.” However,
there is no rule in this Circuit which requires an en banc
hearing to overrule a decision of a three-judge panel. Fur-
ther, such requirement has not been followed in practice by
this Court. See, e.g., United States v. Bess, F.2d ;
No. 78-5095, slip opinion page 13 (6th Cir., filed February
28, 1979) ; Beasley v. United States, 491 F.2d 687, 696 (6th
Cir. 1974). Finally, the wisdom of such requirement is
questionable. The existence of the machinery for an en
banc hearing serves as a necessary and effective check on
one panel’s power to overrule another panel’s decision.
However, it would be a waste of judicial time and resources
to automatically require an en banc hearing each and every
time this Court overrules or modifies one of its previous
decisions.
5 Although I would reverse the decision of Brooks v. Rose,
520 F.2d 775 (6th Cir 1975), I do not suggest that expert
testimony supporting a finding of insanity can be refuted
only by expert testimony to the contrary. Rather, I conclude
simply that in Brooks the particular testimony relied upon
to establish the defendant’s sanity was so overwhelmed
by the opposing testimony of legal insanity that the result
was “no evidence” for the purpose of Fourteenth Amend-
ment due process.
22
I respectfully dissent. The question presented by
this appeal is whether a jury may arbitrarily dis-
regard overwhelming and uncontradicted expert
opinion evidence that a defendant was insane when
he committed the act for which he was tried, and
find him sane beyond a reasonable doubt solely on
the basis of eyewitness testimony of his behavior
that afforded no direct evidence of his mental state
and permitted only speculative inferences about it.
I would hold that this conviction is without evi-
dentiary support of a critical element of the offense
charged and that it therefore offends the due pro-
cess guarantee of the Fourteenth Amendment.
520 F.2d at 780 (McCree, J., dissenting).
Turning once again to the evidence of record in the
present case, and in the light of our reasoning above,
we conclude that the record before us lacks the required
evidentiary support for petitioner’s conviction of second
degree murder. First, there is no evidence of record to
indicate the length of time that petitioner was in the
victim’s car when it was stopped at 5:02 a.m. on June
26, 1973. Second, other than the fact that petitioner
had been sitting directly over the shotgun found un-
derneath a seat in the victim’s car, there is no evidence
that connects petitioner to the gun. In fact, the only
piece of identifying evidence produced in regard to the
gun is a blond hair and petitioner is black. Third, there
is no evidence that the shotgun found in the victim’s car
was the shotgun used in the victim’s murder. Finally,
there is no evidence either to establish that petitioner
had recently used a gun of any kind or that petitioner
had recently been involved in a fight, when he was
stopped on June 26, 1973. In summary, although there
is evidence to constitutionally support a finding that
petitioner committed some crime, for example posses-
23
sion of a stolen vehicle or obstruction of justice,° the
record on appeal does not constitutionally support a
finding that petitioner actually killed or participated in
the killing of the victim, an essential element of second
degree murder under O.R.C. §2901.05.
CONCLUSION
In Thompson v. City of Louisville, supra, the Su-
preme Court considered the extent to which the Due
Process Clause of the Fourteenth Amendment requires
a federal court to review the evidence supporting a
state criminal conviction. In its decision in Thomp-
son, the Court set forth what has come to be called the
“no evidence” standard of review. As is apparent from
the absolute language of the Thompson decision, the
‘no evidence” standard was designed to prevent any
unwarranted intrusions by the federal courts into the
process of state criminal trials. Although the standard
has effectively furthered this purpose, a literal meaning
of the standard virtually eliminates the very function
served by habeas corpus review of evidentiary records.
Practically speaking, in every criminal prosecution,
there is “some” evidence of record, in an absolute sense,
that tends to establish the guilt of the accused as to
the crime charged. As a result of this fact, when the
Thompson “no evidence” standard is applied in a literal
6 In addition to the evidence previously considered in the
text, the record below contains evidence that petitioner
cooperated with the driver Scott in giving a false rental
story and that petitioner evaded the Cleveland police for
some ten months after his June 26, 1973, release. Although
these facts may tend to prove that petitioner committed
some crime, they do not tend to prove that petitioner com-
mitted the crime of second degree murder.
————— ————
24
manner, the result invariably is the dismissal of the
state prisoner’s request for federal court relief. It is
true that the Supreme Court has repeatedly adhered to
the absolute language of the Thompson decision; yet in
a number of decisions relying on Thompson, the Court
has implicitly recognized the potentially restrictive im-
pact of the “no evidence” language. In short, the
Supreme Court, in decisions subsequent to Thompson,
has given the “no evidence” standard a flexible con-
struction; one which does not openly comprehend the
principles of “sufficiency of evidence,” but one which
does not rigidly adhere to a “totally devoid of eviden-
tiary support” standard. See, e.g., Vachon v. New
Hampshire, supra; Johnson v. Florida, supra. We con-
clude that the substance of the ‘‘no evidence” standard,
as it has been developed in decisions such as Vachon and
Johnson, must prevail over the form of its language.
Recently the Supreme Court granted certiorari in the
Fourth Circuit opinion of Jackson v. Virginia, 47 L.W.
3415, in part to review the “no evidence” standard in
relation to the holding of In re Winship, 397 U.S. 358
(1970). Mr. Justice Brennan, writing for the majority
in Winship, strongly asserted the “constitutional stat-
ure” of the principle of guilt beyond a reasonable
doubt.”
Lest there remain any doubt about the constitu-
tional stature of the reasonable-doubt standard, we
explicity hold that the Due Process Clause protects
the accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary
to constitute the crime with which he is charged.
397 U.S. at 364. Two years ago, Mr. Justice Stewart, in
his persuasive dissent in Freeman v. Zahradnick, 429
U.S. 111 (1977) (denial of a grant of certiorari),
25
suggested that the holding of the Court in Winship may
have effectively modified the Thompson standard.
The Winship case held that the Due Process
Clause requires proof beyond a reasonable doubt
of every element of a criminal offense. A jury must
be instructed accordingly. Properly instructed
juries, however, occasionally convict even when it
can be said that no rational trier of fact could find
guilt beyond a reasonable doubt — even when it is
clear that the defendant was entitled to a directed
verdict of acquittal as a matter of law. In a federal
trial, such improper apnlication of law (as defined
by Winship) to fact requires reversal of the con-
viction on the ground of insufficient evident.
The power of a federal court to review the appli-
cation of federal law to the facts as found also op-
erates, however, in criminal cases originating in
state courts. On <lirect review of a state-court con-
viction, this Court reviews the application of the
“voluntariness” standard to the historical facts to
determine whether a confession was admissible, or
the application of First Amendment standards to
the facts as found to determine whether the con-
duct in issue was constitutionally protected, to take
but two examples. The same rule is applied in fed-
eral habeas corpus actions. See generally Town-
send v. Sain, 372 U.S. 293, 318; Brown v. Allen,
344 U.S. 443, 506-507 (opinion of Frankfurter,
J.). It is not immediately apparent why application
of the beyond-a-reasonable-doubt standard of Win-
ship to the historical facts should be any more im-
mune from constitutional scrutiny. If, after view-
ing the evidence in the light most favorable to the
State, ef. Glasser v. United States, 315 U. S. 60,
80, a federal court determines that no rational trier
of fact could have found a defendant guilty beyond
a reasonable doubt of the state offense with which
he was charged, it is surely arguable that the court
26
must hold, under Winship, that the convicted de-
fendant was denied due process of law.
What I am suggesting is simply that the question
whether there was sufficient evidence to support a
finding by a rational trier of fact of guilt beyond a
reasonable doubt may be of constitutional dimen-
sion. Such a view would not require federal courts
to second-guess state-court findings of fact or a
State’s definition of the elements of a crime.
Rather, the federal courts would no more than per-
form a familiar and appropriate role — reviewing
the application of a substantive federal standard
(the requirement of proof beyond a reasonable
doubt) to the historical facts.
429 U.S. at 1112-1113. In its Jackson decision, the Su-
preme Court may well adopt a “sufficiency of evidence”
standard for habeas corpus review, in accordance with
the above reasoning of Mr. Justice Stewart.
However, we do not decide the present case on the
basis of a conjecture of what the Supreme Court will
decide in the future. We conclude that under the pre-
vailing “‘no evidence” standard of Thompson v. City of
Louisville, as interpreted in cases such as Vachon v.
New Hampshire and Johnson v. Florida, petitioner is
entitled to habeas corpus relief. In so deciding, we do
not deem it necessary to determine the applicability of
the “totally devoid of evidentiary support” standard
relied upon by the district court. Moreover, our decision
today does not restrict any option open to the State of
Ohio to try petitioner on the various non-murder
charges that are suggested by the evidence contained
in the present record. The district court’s issuance of a
writ of habeas corpus is affirmed, for the reasons
stated above.
27
EDWARDS, Chief Judge, concurring. I concur with
Judge Peck in affirming the District Judge’s grant of
the writ of habeas corpus. I also join his opinion’s re-
cital of the facts in this case. I write separately only
because I feel I should state my views on the some-
what difficult constitutional problem upon which de-
cision of this case turns.
There are three Supreme Court cases which, taken
together, seem to me to require the result which we
reach: Thompson v. Louisville, 362 U.S. 199 (1960) ;
In re Winship, 397 U.S. 358 (1969); Vachon v. New
Hampshire, 414 U.S. 478 (1974).
The holding of the Thompson case is:
The ultimate question presented to us is whether
the charges against petitioner were so totally de-
void of evidentiary support as to render his con-
viction unconstitutional under the Due Process
Clause of the Fourteenth Amendment. Decision of
this question turns not on the sufficiency of the
evidence, but on whether this conviction rests upon
any evidence at all.
Thompson v. Louisville, supra at 199.
The holding in the Winship case is:
Lest there remain any doubt about the constitu-
tional stature of the reasonable-doubt standard, we
explicitly hold that the Due Process Clause pro-
tects the accused against conviction except upon
proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is
charged.
In re Winship, supra at 364.
The holding in the Vachon case is:
In these circumstances, the conviction must be
28
reversed. “It is beyond question, of course, that a
conviction based on a record lacking any relevant
evidence as to a crucial element of the offense
charged . . . violate[s] due process.” Harris v.
United States, 404 U. S. 1232, 1233 (1971).
(DOUGLAS, J., in chambers) ; Thompson v. Louis-
ville, 362 U.S. 199 (1960) ; Johnson v. Florida, 391
U.S. 569 (1968) : see also Adderley v. Florida, 385
U.S. 39, 44 (1966).
Vachon v. New Hampshire, supra at 480.
These cases show that state court criminal convic-
tions are vulnerable to federal habeas corpus attack
where there is failure of proof of an essential element
of the crime. Mullaney v. Wilbur, 421 U.S. 684 (1975).
In Brooks v. Rose, 520 F.2d 775 (6th Cir. 1975), Judge
Weick accurately stated the habeas corpus law which
may be deduced from the Supreme Court cases cited
above :’ |
[A] conviction which is totally devoid of eviden-
tiary support as to a crucial element of the offense
is unconstitutional under the Due Process Clause of
the Fourteenth Amendment. Vachon v. New
Hampshire, 414 U.S. 478, 94 S.Ct. 664, 38 L.Ed.2d
666 (1974) ; Thompson v. Louisville, 362 U.S. 199,
80 S.Ct. 625, 4 L.Ed.2d 654 (1960); Philips v.
Neil, 452 F.2d 337, 342 (6th Cir. 1971). Such a
claim is reviewable in a federal habeas corpus
proceeding.
Brooks v. Rose, supra at 777.
Turning now to the facts of our present appeal, both
1 The dispute between the majority and minority opinion in
the Brooks case hinged largely upon the question of whether
expert testimony of legal insanity was rebutted by the lay
testimony. This question is not involved in the instant case
and, hence, I see no challenge to the validity of Brooks.
29
my colleagues agree there is evidence of guilty conduct
on the part of habeas petitioner Speigner. If this record
involved Speigner’s conviction for possession of a stolen
automobile, the habeas petition would doubtless have
been summarily dismissed. The same may likewise
be said if he, on this same record, had been tried for
violating one of the Ohio criminal statutes derived
from the common law offense of accessory after the
fact of murder. E.g., OHIO REV. CODE ANN. § 2917.22;
State v. Young, 7 Ohio App.2d 194, 200-01,'220 N.E.2d
146, 151 (1966).
What is clearly lacking in this record is any evidence
at all that petitioner Speigner 1) fired either of the
fatal shots, or 2) was ever on the scene of the murder
or 3) participated in any way in the killing.
Second degree murder in Ohio is defined by statute:
No person shall purposely and maliciously kill
another. Whoever violates this section, except in
the manner decribed in sections 2901.01, 2901.02,
2901.03, and 2901.04 of the Revised Code, is guilty
of murder in the second degree and shall be im-
prisoned for life.
OHIO REV. CODE ANN. § 2901.05.
In the Vachon case the Supreme Court opinion sum-
marized the missing element of the crime there in-
volved as follows:
We therefore agree with Justice Grimes, dis-
senting, that “‘there is no evidence whatever that
the defendant sold the button, that he knew it
had been sold to a minor, that he authorized such
sales to minors, or that he was even in the store
at the time of the sale.”
Vachon v. New Hampshire, supra at 480.
30
Paraphrasing the above, the factual record in this
case shows: There is no evidence whatever that the
defendant killed Bell, that he participated in any way
in the killing, or that he was ever on the scene of the
killing. Thus there is no proof whatever of the most
essential element of the crime of second degree murder.
I join in the affirmance of the District Court’s issu-
ance of the writ in case Ohio does not see fit to try
him upon another charge arising out of the events
portrayed in this record.
WEICK, Circuit Judge, dissenting. This appeal in my
judgment is governed entirely by the unanimous opin-
ion of the Supreme Court in Thompson v. City of Louwis-
ville, 362 U.S. 199, 206 (1960). Thompson was cited
with approval in Johnson v. Florida, 391 U.S. 596
(1968) (Per Curiam), and has been repeatedly fol-
lowed by our Court: Pilon v. Bordenkircher,
F.2d , No. 78-3314 (6th Cir. Feb. 26, 1979);
Blockson v. Jago, 587 F.2d 1016 (6th Cir. 1978) (Per
Curiam) ; Salter v. Johnson, 579, F.2d 1007 (6th Cir.
1978) (Per Curiam), cert. denied, 99 S.Ct. 887
(1978) ; Brooks v. Rose, 520 F.2d 775 (6th Cir. 1975) ;
Ballard v. Howard, 403 F.2d 653 (6th Cir. 1968) (Per
Curiam).
The rule of Thompson v. City of Louisville was well
stated by the Court, and it is not unclear nor ambigu-
ous:
Decision of this question [due process] turns not
on the sufficiency of the evidence but on whether
this conviction rests upon any evidence at all.
[Underscoring added.] [862 U.S. at 199.]
31
And further:
Thus we find no evidence whatever in the record
to support these convictions. [Underscoring added.]
[Zd. at 206.]
To the same effect is Vachon v. New Hampshire, 414
U.S. 478 (1974 (Per Curiam), and cases therein cited.
I do not regard the decision in In Re Winship, 397
U.S. 358 (1970) as modifying in any respect the settled
rule. In Winship the Judge, trying a delinquency case
involving a juvenile, applied the preponderance of evi-
dence rule for conviction of an offense which, if it in-
volved an adult, would require the application of the
reasonable doubt rule. This was clearly error, and the
Supreme Court was correct in so holding.
In my opinion the rule in Thompson is binding upon
us and we have no right to change or to modify it. We
ought not to anticipate that the Supreme Court will
change this well-established rule.
And, of course, if we have any regard for the rule
of stare decisis, we ought to follow our own decisions.
Other panels of the Court should respect them. No
panel of this Court has the power or right to overrule
the decision of another panel. Timmerck v. United
States, 577 F.2d 372, 376 n.15 (6th Cir. 1978), rev’d
on other grounds, 47 U.S.L.W. 4577 (May 21, 1979).
Particularly ought this to be true with respect to the
consistent decisions of other panels in five additional
eases. The overruling should be the function of an
en banc court, and not that of a single panel, unless a
subsequent Supreme Court decision overrules the de-
cision on which the panel relied.
The majority opinion in the present case admits that
32
“there is ‘some’ evidence of record which tends to make
petitioner’s guilt as to the crime charged more likely
than not.” p.2 “As previously stated, there is ‘some’
evidence of record which tends to establish to a degree,
that petitioner is guilty of second degree murder.”
p.5 It is of the view, however, —
“«’.. that the ‘no evidence’ standard of Thompson,
as it prevails today, incorporates some notion of
degree or weight of evidence.” (p.7)
This view, in my judgment, is incorrect.
It is clear that if such an unwarranted view of the
majority is ever adopted by the Supreme Court, the
federal courts will be deluged with habeas corpus cases
seeking to review state court convictions on the weight
or sufficiency of the evidence, which review is not per-
mitted at the present time. In sum, as in the present
case and in almost every appeal from a state court
criminal conviction, there is included an assignment of
error that the conviction is against the manifest weight
of the evidence and is not supported by sufficient evi-
dence.
A single District Judge, as in the present case, will,
if permitted by a change in the rule, pass upon the
weight or sufficiency of the evidence, and will draw
inferences from circumstantial evidence, which infer-
ences were within the sole domain of the trier of the
facts, namely, the state court jury, subject of course
to review for errors cognizable under state law, by the
state court trial judge, the state court of appeals, and
the state supreme court. State court judges are cer-
tainly more adept to rule on these matters of state law
than are the federal judges.
We ought not to forget the Resolution adopted some
33
time ago by the Conference of Chief Justices of the
State Supreme Courts, which Resolution severely criti-
cized the federal practice then prevailing of a single
federal District Judge reviewing, as if on direct appeal,
and setting aside, as in the present case, a state court
conviction that had been affirmed by the highest courts
in the state.
Obviously the rule in Thompson was designed to cur-
tail unnecessary federal intrusions upon state court
convictions. In order to ameliorate the ill feeling caused
thereby, Chief Justice Burger appointed Federal-State
Judicial Councils to meet and discuss the problems.
To now change the rules, as the majority suggests, the
former practice, accompanied by all the ill feeling
caused thereby, will certainly be revisited upon us.
Although the majority opinion admits that there was
“some” evidence, what it is really complaining about
is that there were no eye witnesses to the brutal assault,
murder, and theft of the victim’s car. There was, how-
ever, an abundance of circumstantial evidence from
which the trier of the facts could and did draw infer-
ences as to the assault, theft, and murder. Circumstan-
tial evidence is just as reliable as direct evidence, and
could be more reliable because witnesses can lie.
The circumstantial evidence is detailed in the opin-
ion of the state court of appeals, a copy of which opin-
ion is annexed hereto as Exhibit “A”. The instructions
to the jury of the learned trial judge are also annexed
thereto as Exhibit “B’’. No claim was made that these
instructions were erroneous.
In brief, the evidence tends to prove that the vicious
assault and murder were committed upon the innocent
black victim by the two thugs who stole his automobile.
This was shown conclusively by the circumstance that
34
the victim was shot from the front with a pistol, and
in the back by a shotgun. The victim’s type “A” blood
was spattered over the back seat of his automobile. A
shotgun was found protruding from under the front
seat in the stolen automobile, which seat was occupied
by the passenger Speigner. The pistol was never found.
It could have been thrown away by Scott, the driver
of the stolen car, while Scott was driving to Youngs-
town. A single individual with a pistol would not or-
dinarily shoot a person with a pistol, from the front,
then use a shotgun to shoot him from the back. At least
the jury could and did, rightfully, infer that two per-
sons were involved in the assault, murder, and theft
of the car.
The victim’s automobile was stopped by the state
highway police for a routine safety inspection, at the
Niles-Youngstown interchange of the Ohio turnpike,
at 5.02 a.m., on June 26, 1973, because the car appeared
to be in an unsafe condition. This interchange is lo-
cated about an hour’s drive from Cleveland where the
body of the victim was found a short time later, lying
in a street.
The dr:ver of the victim’s automobile was Roger
Scott, who was on parole from an earlier felony con-
viction in Ohio for grand larceny. Riding in the pas-
senger’s seat was Scott’s confederate, appellant Henry
Speigner, alias Frank Mathews, who also was on parole
for a previous Ohio felony conviction, namely, upon his
plea of guilty to malicious destruction of property and
possession of burglary tools. It is again noteworthy
that a shotgun was protruding from underneath the
seat in the victim’s car occupied by Speigner.
At the time of the safety inspection by the police,
Speigner identified himself as Frank Mathews, by ex-
35
hibiting an alias welfare card. Upon questioning by
the police it was stated by Scott that they had borrowed
the car from the black victim, William Bell, for fifteen
dollars, and both men laughed at the fact that they
had been “stuck” with an unsafe vehicle.’ The highway
patrol officer verified that the car belonged to Bell.
Scott was held in lieu of $50-bond on the unsafe vehicle.
charge, and because Scott was apparently a parole
violator. Speigner was released when he promised to
obtain the $50-bail for Scott. Speigner never returned.
Instead, the evidence was to the effect that Speigner
traveled to Cleveland, stayed for a few days, and then
left for various cities, including San Francisco, Las
Vegas, St. Louis, and New York. When apprehended
by New York authorities on April 10, 1974, over a
year later, and turned over to the Cleveland police,
Speigner admitted that he knew that the Cleveland
police had been looking for him. He also acknowledged
that he knew both the victim, William Bell, and Roger
Scott.
An inventory of Bell’s car on the morning of June
26th disclosed that the vent window of the driver’s
door had been broken and that glass was scattered on
the floor. There were blood stains on the rear seat which
matched the victim’s blood type “A”, as well as a bloody
fingerprint of undetermined origin on the right front
door. In addition, a sawed off shotgun was found pro-
truding several inches from under the front pas-
1 Scott testified in his separate trial that Speigner told him
that he, Speigner, had borrowed the car from Bell; that he,
Scott, knew nothing of Bell’s death. This testimony con-
flicted with statements which Scott had earlier given to
police. Appellee’s App. 64b, filed in Scott v. Perini, No. 77-
3025, Sixth Circuit Court of Appeals.
36
senger’s seat, which had been occupied by Speigner.
A subsequent scientific examination did not indicate
any fingerprints on the shotgun, nor was it testfired,
as it would not be possible to test the pellets. There was
ample proof to establish that Bell was shot in the back
by a shotgun, even though the particular shotgun was
not received in evidence. Fingerprints of both the vic-
tim Bell and Speigner were found on the car, although
neither were bloody fingerprints. Finally, the trunk
of Bell’s car contained his briefcase filled with court
documents and checks made out to Bell. Testimony
disclosed that Bell had been retained as a filing clerk
by a number of Cleveland attorneys, and was subject
to call 24 hours a day; and that the items found in his
briefcase were the filings for the morning of June 26,
1973. Testimony by Bell’s father indicated that Bell’s
car was used all the time by Bell in his business and
that Bell would not lend his car to anyone, not even to
his brothers. The testimony of Bell’s father was cor-
roborated in part by the testimony of Attorney Sum-
mers.
In concluding that the conviction was devoid of evi-
dentiary support Federal District Judge Battisti dis-
agreed with the state trial judge, the state Court of
Appeals, and the Supreme Court of Ohio. The state
appellate court, in addressing this issue, and after sum-
marizing the circumstantial evidence, stated:
As can be seen from this summary of the state’s
case, there was sufficient amount of probative evi-
dence presented to the jury to enable it to find
beyond a reasonable doubt that the appellant pur-
posely and maliciously killed William Bell. The
state’s evidence, although largely circumstantial,
was of such a nature as to be irreconcilable with
any reasonable theory of the appellant’s innocence.
State v. Kulig, (1974), 37 Ohio St. 2d 157. The
‘=
37
trial court acted correctly in not granting a di-
rected verdict to the appellant.’
[A. 32b]
The Supreme Court of Ohio, in sua sponte dismissing
Speigner’s appeal, decided:
75-916 State, Appellee, v. Henry Speigner, Ap-
pellant, Cuyahoga County. Appeal from the Court
of Appeals. Dismissed sua sponte, no substantial
constitutional question involved. O’Neill, C.J.,
Herbert, Corrigan, Stern, Celebrezze, W. Brown,
and P. Brown, JJ., concur.
Thus we have a situation where a single Federal
District Judge in a collateral attack has overruled and
set aside the decisions of the Common Pleas Court, the
State Court of Appeals, and the state’s highest court,
namely, the Supreme Court of Ohio, the disagreement
being over evidentiary issues, namely, circumstantial
evidence and the inferences properly deducible there-
from, all of which were properly within the domain
of the state courts to determine under state law.
The Supreme Court of Ohio has adopted our standard
for review, set forth in United States v. Collon, 426
F.2d 939 (6th Cir. 1970), governing the determination
of motions for judgment of acquittal, in State v. Han-
cock, 48 Ohio St.2d 147, 151-52 (1076), quoting from
Collon, as follows:
In determining the sufficiency of the evidence
to withstand a motion for a judgment of acquittal,
the evidence and all reasonable inferences that
2 In the same opinion the state Court of Appeals affirmed an-
other judgment of the Common Pleas Court which sentenced
Speigner to the Ohio penitentiary for violation of his parole
on a previous conviction upon his plea of guilty to the
crime of malicious destruction of property and possession
of burglary tools.
38
may be drawn therefrom must be viewed in the
light most favorable to the government. * * * And
if under such view of the evidence it is concluded
that a reasonable mind might fairly find guilt
beyond a reasonable doubt, the issue is for the
jury. However, if under such view of the evidence
it is concluded there must be some doubt in a rea-
sonable mind, the motion for acquittal must be
sustained.
See also Glasser v. United States, 315 U.S. 60, 80
(1942) ; United States v. Scott, 578 F.2d 1186, 1192
(6th Cir.), cert. denied, 99 S.Ct. 201 (1978).
It is significant that in the state Court of Appeals
Speigner’s claim of error was not that his conviction
was unsupported by any evidence, but only that his
conviction was against the manifest weight of the evi-
dence and was not sustained by sufficient eviderice.
He made no claim in the state courts that there was
not any evidence to support his conviction. The state
courts therefore were not called upon and were never
given opportunity to rule on the constitutional issue
which Speigner raised for the first time in his habeas
corpus petition filed in the District Court. He has not
exhausted his state remedy.
From the established circumstances it could reason-
ably be inferred that the shots were fired by two people
who had brutally beaten Bell. The two people in Bell’s
car when it was stopped by the police shortly after
the assault, murder, and theft, were Scott and Speig-
ner. They gave no explanation to the police as to how
the front vent window of the car happened to be broken,
or how it happened that blood was splattered on the
rear seat of the car and on the right front door. The
jury had the right to draw inferences from these estab-
lished circumstances.
39
Speigner gave an assumed name, Mathews, to the
police when they were stopped near Youngstown, then
he left, as he stated, to get bail for Scott, but he never
returned; instead, he proceeded to a number of differ-
ent cities until the police finally caught him in New
York, seven months later. This constituted flight.
The jury could find from the evidence that Scott and
Speigner were in the exclusive possession of an auto-
mobile recently stolen by them from Bell; that the
explanation which they gave was unsatisfactory, and
indeed was false; that because blood of Bell’s type ‘‘A”’
was found in Bell’s car, Bell was shot in his car, or
that his body was placed in his car after he was shot.
In United States v. Jennewein, 590 F.2d 191, 192
(6th Cir. 1978), we stated:
Upon reconsideration it is concluded that the
instruction, ‘“[plossession of property recently
stolen if not satisfactorily explained is... ordinar-
ily a circumstance from which the jury may rea-
sonably draw the inference and find in the light
of surrounding circumstances shown by the evi-
dence in this case that the person in possession
not only knew it was stolen property but also
participated in some way in the theft of the prop-
erty,” did not misstate the applicable law. See
United States v. Nalley, 455 F.2d 259 (6th Cir.
(1972) ; United States v. Lipscomb, 425 F.2d 226
(6th Cir. 1970) ; Prince v. United States, 217 F.2d
838 (6th Cir. 1954), and cases therein cited.
See also Pedergrast v. United States, 416 F.2d 776
(D.C. Cir.), cert. denied, 395 U.S. 926 (1969) ; Devitt
and Blackmar, Federal Jury Practice and Instruc-
tions, Vol. 1 $$ 15, 29, 44.11; 34 O. Jur.2d Larceny
§ 71. Flight is regarded in Ohio as evidence of guilt
unless satisfactorily explained. Temp.15-A O. Jur.2d
40
Criminal Practice and Procedure § 343. Speigner and
Scott’s explanation was not satisfactory. It was a de-
liberate falsehood.
In his opinion granting the writ the District Judge
stated:
However, to find guilt in this case, the jury must
have made a series of double inferences, basing
one inference upon another. Where one inference
is based not upon fact, but only upon conjecture
or speculation, and the prosecution’s case is com-
posed entirely of these inferences, there must be
reasonable doubt of the defendant’s guilt, and
therefore, the prosecution has not proven its case.
Cf., United States v. Ravich, 421 F.2d 1196, 1204
n. 10 (2d Cir.), cert. den’d, 400 U.S. 834 (1970).
This statement presents the issue in the present ap-
peal as to who should draw the inferences from the
proven circumstances. It is respectfully submitted that
the jury in the state court which heard the evidence
and observed the demeanor of the witnesses, had the
lawful right and was in a better position to draw the
inferences than a single federal judge, examining a
cold record. The inferences were drawn from proven
circumstances and were not drawn upon conjecture or
speculation as was erroneously stated by the District
Judge.
In United States v. Johnson, 412 F.2d 787, 788 (6th
Cir.), cert. denied, 396 U.S. 993 (1969), Judge Mc-
Cree, who wrote the opinion for the Court, stated:
Nevertheless, possession may be proved circum-
stantially and may thus serve as the basis for an
inference of the other elements of the offense.
United States v. Costanzo, 395 F.2d 441 (4th Cir.
1968). Also, possession may be in more than one
person. Garrison v. United States, 353 F.2d 94
41
(10th Cir. 1965) ; Wheeler v. United States, ; 382
F.2d 998 (10th Cir. 1967).
Although the evidence offered here to establish
possession was neither direct nor extensive, it was
sufficient to seca the jury to find that appellant
was more than a mere passenger in the stolen
vehicle. He had been traveling with his brother
before the theft and was apprehended with his
brother afterwards. The luggage they were ob-
served to possess before the theft somehow had
been transferred to the stolen car. The car in which
he was seen in Orlando before the theft had appar-
ently been abandoned. We hold that the foregoing
evidence sufficed to permit a jury to find that ap-
pellant had at least joint possession of the stolen
motor vehicle and that from this fact it could infer
the other elements of the offense charged in the
indictment. Burke v. United States, 388 F.2d 286
(8th Cir. 1968).
See also United States v. Tate, 575 F.2d 1152 (6th
Cir.) (Per Curiam), cert. denied, 99 S.Ct. 170, 175
(1978).
Thus, as before related, there was substantial cir-
cumstantial evidence tending to prove every crucial
element of the crime of murder in the second degree.
These circumstances include:
1 Exclusive possession of the recently stolen
automobile of the victim, with its rear seat spat-
tered with the victim’s blood;
2 Instead of giving a satisfactory explanation
of the possession of the stolen automobile, the ex-
planation given was a deliberate falsehood;
3 Flight.
The District Judge did not explain how, not being in
_ the jury room, he could divine that the jury made a
42
series of double inferences. He was in error in his state-
ment that the prosecution’s case is based on conjecture
or speculation, and is composed entirely of a series of
double inferences. The wealth of circumstantial evi-
dence hereinbefore related and stated in the opinion
of the state appellate court, from which legitimate
inferences may be drawn, refutes the statements made
by the District Judge and establishes his error.
The jury could have drawn inferences from a num-
ber of different facts and circumstances established
by the evidence. These are not double inferences, as
they were drawn from different circumstances.
The District Court further stated:
The prosecutor’s theory of the case, which evi-
dently assumed (without evidentiary basis) that
petitioner and the driver of the victim’s car had
robbed and beaten Bell, shot him, and stolen his
car, is one explanation for the facts that were
proven. It would, however, be equally reasonable
to infer that a third person killed Bell in a fight
since there is no evidence, direct or circumstantial,
connecting petitioner to the time or place of the
crime. The defense’s failure to set forth an alter-
native theory does not mean that the facts “are
consistent only with the theory of guilt and irrec-
oncilable with any reasonable theory of [petition-
er’s] innocence.” State v. Kulig, 37 Ohio St. 2d 167
[157], 160 (1974).
In accordance with Ohio law, the trial judge
charged the jury that the prosecutor was required
to prove that “a person, that is, the Defendant,
committed the crime as described to [the jury].”
TR. 379-80. However, since there was simply no
proof of this element of the crime, the jury should
not have been permitted to consider it. Without
proof of each and every essential element of the
43
crime charged, the state has not ret its burden of
proof under Ohio law. State v. Ellis, 61 Ohio L.
Abs. 434, 105 N.E. 2d 65 (Ct.App. Franklin
[County] 1951). A conviction which does not sat-
isfy the state standard certainly fails to afford
the due process guaranteed by the fourteenth
amendment to the federal constitution.
[A. 61b]
It is obvious from the above that the District Judge
has denied the state court jury the right to draw in-
ferences from the proven circumstances, and arrogates
to himself the right to draw inferences different from
those drawn by the jury, which inferences he admits to
be equally reasonable to the inferences which he has
drawn. The District Judge did not follow the state
law and the decisions of this Court that the evi-
dence must be considered in the light most favorable
to the government. The state standard was satisfied
as the state courts held. There was substantial evi-
dentiary basis for the state’s case, as we have recited
herein. Much of the evidence supporting the conviction
is not even mentioned by the District Judge in his
opinion.
It is submitted that no constitutional violation of
Speigner’s rights can be found in his state court con-
viction.
The crime of murder is not ordinarily committed
in the presence of witnesses. In many criminal cases
the state must rely on circumstantial evidence in order
to obtain a conviction. Circumstantial evidence is just
as trust worthy as direct evidence, and is regarded by
many as more trustworthy because eye witnesses will
lie sometimes.
The inferences to be drawn from proven circum-
44
stantial evidence are drawn by the trier of the facts,
the juries in criminal cases, and cannot be drawn by
either state or federal Judges. The Judges have no
right to substitute their judgment for that of the jury
on the factual issues. Under the proven circumstances
in the present case, and the inferences logically deduci-
ble therefrom, the verdict of the jury finding Speigner
guilty of second degree murder was supported by sub-
stantial evidence, as was held by all of Ohio’s courts.
Likewise, it is for the state jury to determine whether
the evidence is beyond a reasonable doubt and the
judgment of conviction affirmed by the state’s highest
courts cannot be collaterally attacked in the federal
courts.
It is interesting to note that Scott and Speigner were
tried separately in the Court of Common Pleas of
Cuyahoga County, Ohio. They were each convicted by
juries, Scott of murder in the first degree, and Speig-
ner of murder in the second degree. They were each
sentenced to life imprisonment. Both appealed to the
Court of Appeals of the Eighth District of Ohio, which
Court sits in Cleveland. On appeal each asserted, among
other errors, that his conviction was against the mani-
fest weight of the evidence. The appellate court af-
firmed Speigner’s conviction on July 31, 1975, and
modified Scott’s conviction on November 24, 1975, by
reducing it to murder in the second degree, and affirmed
it as modified.
Scott’s habeas corpus petition was heard by District
Judge Walinski of the Northern District of Ohio, West-
ern Division. In his petition Scott relied on errors
other than the weight or sufficiency of the evidence.
Judge Walinski denied the writ and we affirmed by
order in Scott v. Perini, No. 77-8025, on October 18,
45
1977, panel Phillips, Chief Judge, Peck, Circuit Judge,
and Gray, Senior District Judge. —
Since the decision of the majority affirms the judg-
ment of the District Court, Judge Battisti granting the
writ of habeas corpus, Speigner is set free and cannot
be retried (as the state has no eye witnesses) except
that he may be tried—
..on the various non-murder charges as are sug-
gested by the evidence contained in the present
record. [Majority opinion, p.13.]
These “non-murder charges” are assault and theft of
the victim’s automobile. Theft may be inferred by
possession of a recently stolen automobile without giv-
ing any satisfactory explanation. The majority does
not explain how circumstantial evidence could possibly
convict Speigner on the non-murder and theft charges
if it was insufficient, as the majority holds, to convict
him on the murder charge.
The result of the holding of the majority also pre-
sents a very anomalous situation where Speigner’s con-
federate, Scott, is denied a writ of habeas corpus on
sustantially the same evidence, by a Judge sitting in
the Western Division of the Northern District of Ohio,
and our Court, by a different panel except for the Judge
who wrote the majority opinion in the present case,
affirms the denial of the writ to Scott. Scott’s confeder-
ate, Speigner, however, filed his petition for writ of
habeas corpus which was heard by a different District
Judge (Judge Battisti, who sits in the Eastern Division
of the Northern District of Ohio), and Judge Battisti
granted the writ, and upon appeal the majority in the
present case affirms.
We can all rest assured, however, that as soon as
A
46
Scott learns of the good fortune of his confederate
Speigner, he wiil file a new habeas petition so that he
likewise can be set free. We ought not to denigrate
circumstantial evidence which was adequate to convict
both Scott and Speigner. It certainly can never be said
that the judgments of conviction were not supported
by “‘any evidence at all.” Thompson, at 199-206.
The cause of justice will be promoted only when the
two murderers of William Bell are punished for their
crimes. The crime wave existing in Cleveland will never
be curtailed if Federal Courts persist in intruding
upon the setting aside state court convictions approved
by the state’s highest court, and upon such unsubstan-
tial grounds as exist in the present case.
I would reverse the judgment of the District Court
granting the writ of habeas corpus to Speigner, so that
the two murderers of William Bell will receive the
same punishment for the crimes which they committed.
47
EXHIBIT “A”
In his first assignment of error the appellant con-
tends that the verdict finding him guilty of second de-
gree murder is against the weight of the evidence.
He argues that the evidence adduced at trial against
him is insufficient to support a conviction. We disagree.
The first assignment of error is not well taken.
A summary of the key testimony in the case will
disclose just what the state’s evidence consisted of and
how it was sufficient to enable a jury of reasonable
persons to find the appellant guilty of second degree
murder beyond a reasonable doubt.
Doctor Charles Hirsch of the Coroner’s Office testified
that the causes of the death of the victim, William
Bell, were a gunshot wound to the chest and a shotgun
wound to the back. Doctor Hirsch indicated that the
victim had suffered many broken ribs and scrapes,
and that he had died sometime late on the evening of
June 25, 1973 or sometime early in the morning on
June 26, 1973. Doctor Hirsch also testified that the
victim had type “A” blood.
Mary Cowan of the Trace Evidence Department of
the Coroner’s Office testified that both shots fatal to
Bell had been fired at close range, and that a residue
test administered to the hands of the victim indicated
either that he had fired a weapon before he died or
that possibly residue from a gun fired at him had come
to rest on his hands.
A Mr. Larue Perryman testified that on the morning
of June 26, 1973 a lady told him there was a body lay-
ing in the street. He testified that he went to the body,
which was laying at E. 75th and Platt Ave. in the City
of Cleveland, and that after he saw it he then called
48
the police. Perryman identified the body he saw on the
morning of June 26, 1973 as that of William Bell.
Sergeant Donald R. Little of the Ohio State Highway
Patrol testified that on June 26, 1973 he was working
on the Ohio Turnpike, that at about 5:02 a.m. he ob-
served a 1964 Chevrolet Nova approach the toll booths
for the Niles-Youngstown interchange, that he ob-
served the car to be an unsafe vehicle and therefore
stopped it, that there were two occupants of the car, a
driver named Roger L. Scott and a passenger identified
as the appellant, and that he ascertained that the owner
of the vehicle was one William Bell of Cleveland. Ser-
geant Little indicated that neither Scott nor the appel-
lant could produce proof of ownership of the car and
that Scott told him that they had borrowed the car
from William Bell for $15. Little further testified that
he arrested Scott but that the appellant was released,
that at the time he was released the appellant stated
to him (Little) that he was going to obtain bond money
for Scott, but that the appellant never returned to bail
out Scott. Sergeant Little further testified that he and
Parolman Hawkins conducted a routine inventory of
the 1964 Nova; that in doing so they found a bloody
fingerprint on the right hand passenger door and a
large smudge of blood on the upper left portion of the
rear seat; that he found an attache case in the trunk
of the car filled with court documents and checks be-
longing to William Bell or bearing the name of William
Bell; that Patrolman Hawkins found a sawed-off shot-
gun underneath the front seat on the passenger side,
and that they observed that the glass was broken out of
the vent window located on the left front driver’s door
of the car. Little indicated that he had stopped the
49
appellant and Scott approximately sixty miles from
downtown Cleveland.
Patrolman Robert Hawkins of the Highway Patrol
essentially corroborated the testimony of Sergeant Lit-
tle. Hawkins described the blood on the upper left por-
tion of the rear seat as being at about shoulder height.
One of the exhibits admitted into evidence indicated
that the victim had a gaping shotgun wound in the
upper left portion of his back just below his left shoul-
der. Hawkins described for the jury how he found the
sawed-off shotgun under the front passenger seat of
the car.
John Busher of the Automobile Title Department of
the Cuyahoga County Clerk’s Office testified that the
owner of the 1964 Nova was the victim, William Bell.
Robert Bell, the victim’s father, and William Sum-
mers, an attorney who was one of the users of the vic-
tim’s court filing service, both presented testimony in-
consistent with the statement of Roger Scott to Ser-
geant Little that Bell had made a loan of his car for
$15. Robert Bell testified that his son William never
let his brothers use his car. Summers testified that the
victim’s filing service required him to be on call twenty-
four hours a day and required him to use a car.
Detective John Lavelle of the Cleveland Police De-
partment testified that he and his partner Timothy Pat-
ton had investigated this homicide and that they had
taken custody of the appellant from the New York City
Police Department on April 10, 1974. Detective Lavelle
stated that while in custody and after he had been ad-
vised of his rights the appellant had told him that he
(the appellant) knew the Cleveland Police were look-
ing for him, that between June 26, 1973 and April 10,
50
1974 he had been in Cleveland, San Francisco, Las
Vegas, St. Louis and New York City, that he knew the
deceased William Bell, and that he knew Roger Scott.
Lawrence Palahunic of the Scientific Investigation
Unit of the Cleveland Police Department was the last
state’s witness. He testified that the bloodstains found
on the upper left portion of the rear seat of the 1964
Nova consisted of type “‘A”’ blood.
Although the sawed-off shotgun was not admitted
into evidence by the trial court, several state’s witnesses
gave testimony, heard by the jury, identifying it and
describing the conditions under which it was found
while attempting to lay a foundation for the shotgun’s
admission. Therefore, even though the jury was not
able to take the shotgun to the jury room with it, it had
ample testimony on this item of evidence anyway.
As can be seen from this summary of the state’s case,
there was a sufficient amount of probative evidence
presented to the jury to enable it to find beyond a rea-
sonable doubt that the appellant purposely and malici-
ously killed William Bell. The state’s evidence, although
largely circumstantial, was of such a nature as to be
irreconcilable with any reasonable theory of the appel-
lant’s innocence. State v. Kulig (1974), 37 Ohio St. 2d
157. The trial court acted correctly in not granting a
directed verdict to the appellant.
51
EXHIBIT “B”
[From Common Pleas Court Judge’s instruction to the
jury]
Now, there are two kinds of evidence, generally
speaking. One is positive and direct, and the other is
circumstantial.
That which is positive or direct is that which we see
or hear with our senses or we feel it with our hands or
through a sense of feeling. So if a witness testifies from
his personal knowledge to the commission of an act or
any circumstances to be proven in order to establish an
offense, that is called direct.and positive evidence.
Now, it is not always possiole to ascertain the truth
by evidence of this character. Hence, the law permits
the introduction and consideration of what is called cir-
cumstantial evidence.
Evidence may also be used to prove a fact by infer-
ence. This is referred to as circumstantial evidence.
That is different from the direct or positive evidence,
when you say, “I saw something, I saw this, I saw that,
I heard this, I felt this.”
So from the positive evidence that you may have
heard, you have the right to infer other facts reasonable
facts or conclusions which usually follow the facts that
you have heard.
Circumstantial evidence is the proof of facts by di-
rect evidence from which you may infer other reason-
able facts or conclusions.
In the absence of direct evidence, circumstantial evi-
dence by itself will justify a finding of guilty only if
the circumstances are entirely consistent with the De-
52
fendant’s guilt, are wholly inconsistent with any rea-
sonable theory of the Defendant’s innocence and are so
convincing as to exclude a reasonable doubt of the De-
fendant’s guilt.
Where the evidence is both direct and circumstantial,
the combination of the two must satisfy you of the De-
fendant’s guilt beyond a reasonable doubt.
On drawing inferences, you may not make one in-
ference from another inference, but you may draw
more than one inference from the same facts or circum-
stances. If the circumstances create inferences that are
equally consistent with either innocence or guilt, such
inferences must be resolved in favor of the Defendant’s
innocence.
I think an illustration was given to you by one of the
counsel, that if you come into this building, when you
come in, all of the streets outside are dry, the tops of
the roofs are dry and the tops of automobiles are dry,
and you do not have an opportunity to look out, but
when you go outside the street is covered with snow or
automobiles are covered with snow, you didn’t see it
snow because you didn’t look, but you have a right to
infer what is reasonable, that it did snow while you
were inside. That is what we mean by circumstantial
evidence. It is a law of inference based upon proven
facts. |
If the circumstances create inferences that are
equally consistent with either innocence or guilt, such
inferences must be resolved in favor of the Defendant’s
innocence.
Now, in the illustration the Court gave you, you
would not have a right to go ahead and infer what time
it snowed and the kind of snow, and that sort of thing,
53
unless you had some facts outside that you saw by direct
evidence upon which you could base your inference.
You are the sole judges of the weight to be given to
the circumstantial evidence, as you are to the direct
evidence.
When circumstantial evidence is of the nature and
character that it satisfies and convinces the minds of
the jury beyond a reasonable doubt, then such circum-
stantial evidence alone is sufficient upon which to base
a verdict of guilty.
However, to warrant you in finding the Defendant
guilty on circumstantial evidence alone, each material
and important link in the chain of circumstances relied
upon for conviction must be proven to your satisfaction
beyond a reasonable doubt.
54
No. 78-3290
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
HENRY SPEIGNER
Petitioner-Appellee
v.
ARNOLD R. JAGO, SUPERINTENDENT
Respondent-Appellant
Before: EDWARDS, Chief Judge, WEICK, Circuit
Judge, and PECK, Senior Circuit Judge.
Respondent-appellant’s motion for rehearing having
come on to be considered and of the judges of this Court
who are in regular active service less than a majority
having favored ordering consideration en banc, the
motion has been referred to the panel which heard the
appeal. Because the Supreme Court in effect broadened
the scope of federal habeas corpus review in Jackson
v. Virginia, .... U.S. ...., 47 U.S.L.W. 4883 (June
28, 1979), we see no need to reconsider our decision in
Speigner v. Jago,.... F.2d .... (6th Cir., June 13,
1979). Obviously, the grant of habeas corpus relief
under the narrow “no evidence” standard of Thompson
v. Louisville, 326 U.S. 199 (1960), is not effected by
the establishment of the broader standard of Jackson.
Accordingly,
IT IS ORDERED that the petition for rehearing be
and it hereby is denied. Judge Weick adheres to his
dissent for the reasons stated therein. Judge Weick is
of the opinion that the inferences drawn from the
59
record by the jury were permissible and the rulings
thereon by the Ohio courts were not irrational.
ENTERED BY ORDER OF THE COURT
/s/John P. Hehman, Clerk of Court
56
No. 78-3290
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCU!T
HENRY SPEIGNER,
Petitioner-Appellee,
Vv.
ARNOLD R. JAGO, SUPERINTENDENT
Respondent-Appellant.
ORDER STAYING MANDATE
ORDERED, That motion to stay mandate herein pend-
ing application to the Supreme Court for writ of certior-
ari is hereby granted and the mandate is stayed for thirty
days from this date; provided that, if within such thirty
days, the applicant shall file with the Clerk of this Court
the certificate of the Clerk of the Supreme Court that the
certiorari petition, record, and brief have been filed,
that stay shall continue until the final disposition of the
case by the Supreme Court. Unless this condition is com-
plied with within such thirty days or any extension
thereof made by the Court or any judge thereof, or if
the condition is complied with, then upon filing of copy
of an order denying the writ applied for, the mandate
shall issue.
ENTERED BY ORDER OF THE COURT
/s/ John P. Hehman, Clerk
o7
No. 78-3290
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
HENRY SPEIGNER,
Petitioner-Appellee,
Vi
ARNOLD R. JAGO, SUPERINTENDENT
Respondent-Appellant
Upon consideration of the respondent-appellant’s
motion to withdraw stay of mandate and memorandum
suggestion of mootness,
It is ORDERED that the motion to withdraw stay
of mandate be and it hereby is granted.
ENTERED BY ORDER OT THE COURT
/s/ John P. Hehman, Clerk
58
No. 78-3290
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
HENRY SPEIGNER,
Petitioner-Appellee,
Vv.
ARNOLD R. JAGO, SUPERINTENDENT
Respondent-Appellant.
Before: EDWARDS, Chief Judge, WEICK, Circuit
Judge, and PECK, Senior Circuit Judge.
JUDGMENT
APPEAL from the United States District Court for the
Northern District of Ohio.
THIS CAUSE came on to be heard on the record from
the United States District Court for the Northern District
of Ohio and was argued by counsel.
ON CONSIDERATION WHEREOF, It is now here
ordered and adjudged by this Court that the judgment of
the said District Court in this cause be and the same is
hereby affirmed.
No costs taxed.
ENTERED BY ORDER OF THE COURT.
/s/ John P. Helman, Clerk
59
No. 78-3290
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
HENRY SPEIGNER
Petitioner-Appellee
Vv.
ARNOLD R. JAGO, SUPT.
Respondent-Appellant
Respondent-Appellant’s Motion for Leave to Treat
Supplement to Memorandum Suggestion of Mootness
as Motion to Recall, Set Aside, and/or Reconsider Man-
date and For Such Relief is hereby granted, and upon
consideration,
IT IS ORDERED that the Motion to Recall, Set Aside,
and/or Reconsider Mandate and For Such Relief be and
it hereby is denied.
ENTERED BY ORDER OF THE COURT
/s/ John P. Helman, Clerk of Court
60
No. 78-3290
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
HENRY SPEIGNER,
Petitioner-Appellee,
v.
ARNOLD R. JAGO, SUPT.,
Respondent-Appellant.
STATE OF OHIO
COUNTY OF FRANKLIN
AFFIDAVIT
Affiant, Simon B. Karas, being duly sworn under oath,
deposes and says:
1. That affiant is an Assistant Attorney General em-
ployed as Chief of the Division of Criminal Activities of
the Office of the Attorney General of Ohio.
2. That in such capacity, affiant was counsel for
Arnold R. Jago in the appeal from the grant of habeas
corpus in the above styled case.
3. That subsequent to this Court’s decision, rendered
June 13, 1979, affirming the grant of habeas corpus,
affiant filed a petition for rehearing and suggestion of
rehearing en banc, denied July 24, 1979.
4. That subsequent to such denial of rehearing, affiant
filed a motion to stay the mandate, granted August 3,
1979, and took other steps preparatory to filing a pe-
tition for writ of certiorari to the United States Supreme
Court.
5. That on August 15, 1979, the day affiant received
the printer’s proofs on the petition which had been pre-
pared, affiant received a telephone call from the Chief
Record Officer of the Southern Ohio Correctional
“"
61
Facility advising affiant of information circulating at
the institution that Henry Speigner had died in Cali-
fornia some months previous.
6. That based on such information, affiant utilized
criminal justice agencies and conducted independent
investigation as to the validity of such information.
7. That through such investigation, affiant has satis-
fied himself as to the veracity of the following infor-
ination:
(a) That Henry Speigner died in Los Angeles, Cali-
fornia on April 20, 1979, as a result of a suspected
homicide.
(b) That on May 7, 1979, his body was cremated at
the Harrison and Ross Funeral Home, Los Angeles,
California, and that the remains were sent to the
House of Wills Funeral Home, Cleveland, Ohio.
(c) That Death Certificate No. 21139, State of Cali-
fornia, listed for Albert Stewart, attached hereto,
is a true death certificate for Henry Speigner.
8. That the telephone communication of August 16,
1979 was the first actual notice to affiant of the death
of Henry Speigner.
9. That had affiant learned of this information at an
earlier time, he would have immediately advised this
Court.
Further affiant sayeth not.
/s/ SIMON B. KARAS
Assistant Attorney General
Sworn to and subscribed before me this 23rd day of
August, 1979.
/s/
NOTARY PUBLIC
ATTORNEY AT LAW
My commission has no
expiration date.
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