Appendix — Engle v. Isaac

Office -Su a, US,

“elUE D

E NO. 80-1430

—_ JUN 8 1981

IN THE

SUPREME COURT OF THE UNITED STATES AL@ANDER L. STEVAS,

CLERK

OCTOBER TERM 1980

TED ENGLE, Superintendent,

Chillicothe Correctional Institute,

Petitioner,

Vv.

LINCOLN ISAAC,

Respondent

E.P. PERINI, Superintendent,

Marion Correctional Institution,

Petitioner,

Vv.

KENNETH L. BELL,

Respondent.

TED ENGLE, Superintendent,

Chillicothe Correctiowal Institute,

Petitioner,

Vv.

HOWARD HUGHES,

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOINT APPENDIX

JAMES R. KINGSLEY WILLIAM J. BROWN

Counsel of Record Attorney General

for Isaac

SIMON B. KARAS

157 West Main Street Counsel of Record

Circleville, Ohio 43113

(614) 477-2546 RICHARD DAVID DRAKE

Assistant Attorneys General

JAY MoKIRAMHAN State Office Tower, 26th Floor

Suite 330 30 East Broad Street

22 E. Gay Street Columbus, Ohio 43215

Columbus, Ohio 43215 (614) 466-5414

(614) 464-3202 ATTORNEYS FOR PETITIONERS

ATTORNEYS FOR RESPONDENT ISAAC

(continued on inside front cover)

PETITION FOR WRIT OF CERTIORARI FILED FEBRUARY 23, 1961

CERTIORARI GRANTED APRIL 20, 1981

RICHARD L. AYNES

Counsel of Record

for Bell and Hughes

J. DEAN CARRO

Appellate Review Office

School of Law

The University of Akron

Akron, Ohio 44325

(216) 375-7331

(216) 375-7751

ATTORNEYS FOR RESPONDENTS

BELL AND HUGHES

4

CONTENTS

PAGE

Relevant Docket Entries—isaac ...................6.5. JA1

Relevant Docket Entries—Bell ...................0045. JA1

Relevant Docket Entries—Hughes....................JA1

State v. Isaac,

75 CR 83, (CCP Pickaway) indictment... ...........JA2

State v. Isaac,

75 CR 83 (CCP Pickaway) transcript, pages 227-230 . JA3

State v. isaac,

346 (CA Pickaway) Opinion, February 8, 1977 ........ JA6

State v. Isaac,

77-412 (Ohio Supreme Court) Entry, July 20, 1977 . .JA12

State v. Bell,

16366 (CCP Cuyahoga) indictment... ............. JA14

State v. Bell

34727 (CA Cuyahoga) Opinion, April 8, 1976 ........ JA15

State v. Bell,

76-573 (Ohio Supreme Court)

Entry, September 17, 1976 .... 2.6... cece JA23

H. s v. Engle,

Crrieen .D. Ohio) Magistrate's Report,

eC. bcd ape caves's weckee dead JA24

—_— s v. Engle,

77-156A ( D. Ohio) Order on exhaustion,

Moveraier al Ga SPARE Sa a Re Ss JA38

Hughes v. Engle,

C77-156A (N.D. Ohio) Order on exhaustion,

Fee ce deceeuepens JA40

State v. Hughes,

74-11-1 (CCP Summit) indictment ............. .JA41

State v. Hughes,

74-11-1 (CCP Summit) transcript, pages 288-289,

SSO, SBO-G44, S4B-SE4 occ ccc ccccccccccccccess JA42

State v. Hughes,

7717 (CA Summit) Opinion, September 24, 1975 . ...JA51

State v. Hughes,

75-1026 (Ohio Supreme Court) Entry,

ss be ccc ceccceseseheben JA55

Certificate of Service «ccc cee JA57

The following documents of the joint appendix have been

reproduced in the appendix to the petition | or writ of certiorari

and are designated in the brief by reference (A ___).

Isaac v. Engle, F.2d (No. 78-3488, 6th Cir. — bearers

December 12, 1980 (en banc.) . AI

Isaac v. Engle, supra

Order, December 16, 1980 clarifying en banc

ean ee Cage, on eae ee CL. eieect A23

Isaac v. Engle, supra

Opinion, February 8, 1980 (panel)...................A24

Isaac v. Engle, supra

Order, March 24, 1980 granting rehearing en banc... A36

Isaac v. Engle, supra

Order, December 31, 1980 staying the mandate

RS Ge tuads see sama e new eaa A37

Isaac v. Engle, No. C-2-78-278 (S.D. Ohio, June 26, 1978)

REE aE ag AEN IIR ae RE AF ARN sete PILE A38

Beil v. Perini, 535 F. 2d 575 (No. 79-3153, 6th Cir. 1980)

Opinion, December 12, 1980 ....... 2.6... cen, A42

Bell v. Perini, supra

Order, December 31, 1980 staying the mandate

rN oo dane ed cae aemnbaeseaeeo A48

Bell v. Perini, No. C78-343 (N.D. Ohio, December 26,

Ps a oe etcckwecedenee’ A49

Beil v. Perini, No. C78-343, supra

Order, January 23, 1979, denying reconsideration ...A56

Hughes v. Engle, (No. 79-3570, 6th Cir. December 18,

at Seer d cat, che eee uh x denen aaeled A60

Hughes v. Engle, supra

Order, January 21, 1981 staying the mandate pending

NG ack cman at ckdokawa casas aden os vewaswatn A61

Hughes v. Engle, No. C77-156A (N.D. Ohio, June 26,

RS oo. ss ween a ds ndeaun dneetekes cassie A62

JA1

RELEVANT DOCKET ENTRIES—ISAAC

Petition for Writ of Habeas Corpus—filed March 31, 1978

(omitted from appendix).

Oninion—filed June 26, 1978 (A38), denying petition.

Opinion—filed February 8, 1980(A24), by panel reversing the

district court.

Order—filed March 24, 1980 (A36), granting rehearing

en banc.

Opinion—filed December 12, 1980 (A1), by en banc court re-

versing the district court.

Order—filed December 16, 1980 (A23), clarifying en banc

decision.

Order—filed December 31, 1980(A37), staying the mandate.

RELEVANT DOCKET ENTRIES—BELL

Patition for Writ of Habeas Corpus—filed August 1, 1978

(omitted from appendix).

Opinion—filed December 26, 1978 (A49), denying petition.

Opinion—filed January 23, 1979(A56), denying reconsidera-

tion.

Opinion—filed December 12, 1980 (A42), reversing district

court. 535 F. 2d 575.

Order—filed December 31, 1980 (A48) staying the mandate.

RELEVANT DOCKET ENTRIES—HUGHES

Petition for Writ of Habeas Corpus—filed April 26, 1977

(omitted from appendix).

Magistrate's Report—filed August 18, 1977 (JA 24)

recommending denial of petition.

Order—filed November 2, 1978 (JA 38), requiring supple-

mental briefing on exhaustion.

Order—filed June 4, 1979 (JA 40), finding exhaustion.

Opinion—filed June 26, 1979 (A62), denying petition.

Opinion—filed December 18, 1980 (A6O) reversing district

court.

Order—filed January 21, 1981 (A61), staying the mandate.

JA2

State v. isaac CCP Pickaway Cty. #75-CR-83

NO. 75-CR-83

(FILED MAY 30, 1975)

*Clerk Stamp Deleted

indictment for Felonious Assault, Crim,R, 7, ORC 2945.75,

2941.17, 2941.25, 2941.060

The State of Ohio, Pickaway County, ss: Court of Common

Pleas of the April Term, second session of the grand jury in the

year of our Lord One Thousand Nine Hundred and Seventy-

Five.

The jurors and the grand jury of the State of Ohio, within

and for the body of Pickaway County, on their oaths, in the

name and by the authority of the State of Ohio, do find and

present that Lincoln Isaac on the 29th day of April, 1975, at the

County of Pickaway, or by some manner eiumerated in section

2901.12 of The Ohio Revised Code whereby proper venue is

placed in the County aforementioned, did unlawfully, did, know-

ingly, cause serious physical harm to Bernard Engie.

Contrary to and in violation of section 2903.11 of the Ohio

Revised Code and being a felony of the second degree and

being against the peace and dignity of The State of Ohio.

| do hereby certify that this is a true and correct copy of the

pleading on file in this office.

*Signature deleted

Clerk of Courts, Pickaway County

*Signature deleted

Prosecuting Attorney for Pickaway County

Prosecuting Attorney for Pickaway County, by

Assistant Prosecuting Attorney

ENDORSED: A TRUE BILL

JA3

State v. isaac CCP Pickaway Cty. #75-CR-83

(227)

position of this defendant, with his characteristics, his knowledge

or lack of knowledge, and under the circumstances and

conditions that surround him at that time. You must consider

the conduct of the defendant and determine if his acts and

words—the conduct of Bernard Engle, and determine if his

acts or words caused the defendant to reasonably and honestly

believe that he was about to he killed or to receive great bodily

harm. The law does not measure nicely the degree of force

which may be used to repel an assault. However, if a person

who is assaulted uses more force than reasonably appears to

be necessary under the circumstances and if the force used is

so grossly disproportionate to his apparent danger as to show

revenge or an evil purpose to injure his assailant, then the

defense of self defense is not available.

The burden of proving the defense of self defense is upon

the defendant. He must establish such defense by a prepon-

derance of the evidence. Now a preponderance of the evidence

is the greater weight o! the evidence, thatis, evidence that you

believe because it outweighs or overbalances in your mind the

evidence that is opposed to it. A preponderance means evidence

that is more probable, more persuasive, or of greater probative

value. It is the quality of the evidence that must be weighed.

Quality may or may not be identical with quantity, that is, the

greater

[228]

number of witnesses. in determining whether or not an

issue has been proved by a preponderance of the evidence,

you should consider all the evidence bearing upon that issue,

regardiess of who produced it. If the weight of the evidence is

equally balanced or if you are unable to determine which side

of an issue has the preponderance, then the defendant has not

established such issue of self defense.

Now, further defining the matter of self defense, Ladies

and Gentlemen of the Jury, the defendant must establish that

the other party was the aggressor and that the defendant did

not himself provoke and cause the injury. The plea of self

defense is not available to the person who starts a fight unless,

in good faith, he withdraws from the contest and informs the

other party of his withdrawal, or by words or acts reasonably

indicates that he has withdrawn and is no longer participating

in the fight. A defendant is not in a position to claim self

defense, if he sought trouble and he provoked a fight and did

JA4

not attempt to avoid it or to leave the scene of the trouble. If, in

the careful and proper use of his faculties, the defendant

honestly believed and had reasonable grounds to believe that

an assailant was not able and did not intend to kill or do great

bodily harm to the defendant, then the defendant having notice

of his adversary's position

[229]

was released from the danger, and the right to use force in self

defense ended. If thereafter the defendant continued to fight,

he becomes the aggressor and a subsequent injury to another

is unlawful. Therefore, Ladies and Gentiemen of the Jury, you

will then consider the matter of self defense which | gave to

you, and the burden of proof of self defense is upon the

defendant by a preponderance of the evidence.

Now, | will attempt, Ladies and Gentlemen of the Jury, to

summarize for you the matters relative to the defense of the

lesser included offense and self defense. If the State has

proven to you beyond a reasonable doubt all of the essential

elements of the crime of felonious assault, if the defendant has

failed to prove by a preponderance of the evidence the defense

of self defense, then your verdict would be one finding the

defendant guilty of the offense charged, felonious assault

However, if you find the State has failed to prove any one of

the essential elements of the crime of felonious assault, you

would find the defendant not guilty of that crime. You would

then proceed with your deliberations to determine whether

the State has proven beyond a reasonable doubt all of the

essential elements of the lesser included offense of aggravated

assault. If you find that the State has proven beyond a reasonable

doubt all of the essential elements

(230)

of the lesser included offense of aggravated assault, then your

verdict would be one finding the defendant not guilty of felonious

assault, but guilty of the lesser included offense of aggravated

assault. On the other hand, if you find the State has not proven

beyond a reasonable doubt each and every one of the essential

elements of aggravated assault, you would then consider

whether the State has proven beyond a reasonable doubt all of

the essential elements of the lesser included offense of assault.

If you find the State has proven all of the essential elements of

the lesser included offense of assault, you would then according

to your previous finding, if that is your finding, find the defendant

not guilty of felonious assault, not guilty of the offense of

= assault, but guilty of the lesser included offense of

assault.

JAS

Now, if you find that the State has failed to prove beyond a

reasonable doubt any one of the essential elements of the

crime of the lesser included offense, or if you find that the

defendant proved by a preponderance of the evidence, the

defense of self defense, then in that case your verdict would

be one finding the defendant not guilty.

Now, Ladies and Gentlemen of the Jury, you will have with

you in the jury room four forms of verdicts. You will use the

verdict form that concurs to your finding.

JA6

State v. Isaac CA Pickaway #CA 346

No. 346

IN THE COURT OF APPEALS

FOURTH APPELLATE DISTRICT

PICKAWAY COUNTY, OHIO

(FILED FEB. 11, 1977)

*Clerk Stamp Deleted

STATE OF OHIO, Case #CA-346

Plaintiff-Appellee OPINION

vs.

LINCOLN ISAAC, DATED: February 8, 1977

Defendant-Appeliant

APPEARANCES

Richard L. Gerhardt, Prosecuting Attorney, Circleville, Ohio,

for Appellee.

James R. Kingsley, Circleville, Ohio, for Appellant.

ABELE, J.:

Defendant-Appelilant takes this appeal from a jury verdict—

finding him in violation of Section 2903.12 R.C.—Aggravated

Assault, a felony of the fourth degree. Defendant-Appellant

was originally charged by the Grand Jury on Indictment for

Felonious Assault, Section 2903.11 R.C. but, the trial jury

determined that the lesser included offense was mandated by

the facts before them.

The State of Ohio entered into evidence three photographs.

One Photo, Exhibit 2, portrays the victim soon after the assault;

it is a 8''x10"' format, displaying the front facial features,

illustrating the victim's injuries. This photo is in black and

white. In conjunction with this photo, a doctor testified: de-

scribing the extent and type of injuries and to some extent the

colors not portrayed by the photo.

A second photo, Exhibit 1, was admitted on motion of the

State, over defendant's objection, portraying the victim some

time after the assault, while in the hospital and recovering from

his injuries. This exhibit, illustrates a front facial view, in color,

of the victim. There appears also, a corrective medical appliance

attached to and partially surrounding the victims face. Along

JA7

with the introduction of this exhibit, the victim testified as to his

post- assault medical treatment, and prognosis.

A third photo, State's exhibit 3, in black and white, portrays

the crime scene; specifically a street scene with chalked in

area, described by an officer as a pool of blood.

Defendant-appellant took exception to the introduction of

the photographs.

At the close of the evidence, in the Court's charge to the

jury concerning the degree of harm one must apprehend to

claim self-defense, the Court related that:

(t-226) “Now, if the defendant had reasonable grounds and

and honest belief that he was in imminent danger of death or

great bodily harm and that the only means of escape from

such danger by injuring his assailant***.”

The Court continued:

(t-227) “The burden of proving the defense of self-defense is

upon the defendant. He must establish such defense by a pre-

ponderance of the evidence.”

From the jury verdict, Defendant-Appellant takes his appeal

to this Court and assigns five errors in the Court below: the first

of which is:

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN

ADMITTING INTO EVIDENCE PHOTOGRAPHS OF THE

COMPLAINANT.

Defendant-Appeliant argues that the photos were inflama-

tory and prejudicial to his cause; that they were neither relevant,

material, nor admissable; that the state did not require this

evidence to prove serious physical harm.

We cannot agree with the Defendant-Appellant'’s argu-

ments.

Serious Physical Harm Section 2901.01(E) requires:

a

2. *

3. Any physical harm which involves some permanent in-

capacity, whether partial or total, or which involves some

temporary substantial incapacity.

4. Any physical harm which involves some permanent serious

disfigurement, which involves some temporary serious dis-

figurement.

JAB

5. Any physical harm which involves acute pain of such

duration as to result in substantial suffering or which involves

any degree of prolonged intractable pain.”

This is not a case of prosecutorial “overkill” as the Defendant

suggest.

The photo's State's Exhibits 1. 2, 3, are probative of the

issue raised by the indictment. As noted by the Piaintiff-Appeliee,

the admission of such evidence is within the discretion of the

court. State v Cron, 140 App. 2d 76 43 O. Ops. 2d 201, State v

Fugate, 36 O. App 2d 131, 65 O. Ops. 2d 1551, State v. Hill, 12

O.S. 2d 88, 41 O. Ops. 2d 369.

The Ohio Supreme Court has noted in State v. Woodards,

6 O.S. 2d 14, 35 O. Ops. 2d 8, p. 14.

The rule is well settied that photographs and color trans-

parencies are not objectionable so long as they are properly

identified, are relevant and competent and are accurate

representations of the scene which they purport to portray.

indeed, photographs frequently convey information to the

court and jury more accurately than words. Although a photo-

graph may be rendered, inadmissible by its inflammatory

nature the mere fact that it is gruesome or horrendous is not

sufficient to render it inadmissable if the trial court, in the

exercise of its discretion, feels that it would prove useful to the

jury.

In consideration of the State's burden under Section

2901.01 (E) RC the photographs in question were pertinent to

the Jury's apprehension of the facts before it and material to

the issues to be examined. The out-of-state authority cited by

Appellant is not relevant to the Ohio law on this point. The first

Assignment of Error is not well taken and overruled.

The second Assignment of Error is:

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR

IN PERMITTING TESTIMONY AS TO THE EXTENT OF THE

COMPLAINANT'S INJURIES FAR BEYOND THAT REQUIRED

BY THE STATUTORY DEFINITION OF SERIOUS PHYSICAL

HARM.

Defendant-Appeliant cites the stipulation of facts negotiated

before trial as sufficient to establish “Serious Physical Harm”

Section 2901.01 (E) RC.

Defendant argues further that, the testimony of the victim,

as to prognosis and treatment, as well as the doctor's testimony

JAQ

as to treatment, and the police officer's testimony, acted cumu-

latively to lead the court to impose a higher penalty and to

cause the jury to ignore the Defendant's plea of self-defense.

Upon review of the entire record, the stipulation and the

supportive testimony; the Defendant's argument to limit the

State in its presentation of proof cannot be sustained.

The Defendant-Appellant concedes “Serious Physical

Harm", but the jury returned a verdict to a lesser included

offense, that of Aggravated Assault.

We cannot agree that the State was precluded from

introducing further supportive evidence of “serious physical

harm”. There is no indication in the record that the State was

so limited under the terms of the stipulation of facts agreed

upon.

The testimony received was highly relevant material and

probative of the issues at hand. The Second Assignment of

Error is overruled.

The Third Assignment of Error is:

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR .

IN REFUSING DEFENDANT'S INSTRUCTIONS ON SELF-

DEFENSE AND FURTHER IN CHARGING THE JURY AS IT

DID ON THE AMOUNT OF HARM THE DEFENDANT MUST

APPREHEND TO BE ABLE TO AVAIL HIMSELF OF SELF-

DEFENSE.

Defendant-Appeliant argues and presents cases from Idaho,

lowa, New York, and Texas that provide the requisite amount

of apprehension of fear of “bodily harm” to justify action in self-

defense. The Trial Court's charge as noted above required the

apprehension of “great bodily harm” and came directly from

the recommended charges in Ohio Jury Instructions Section

411.311,. 33,.35. Further;

“A person who is assaulted, if he believes or has good

reason to believe that he is in danger of great bodily harm, may

use sufficient force to repel his assailant and save himself

harmless, but no more.” (Emphasis added)

See, State v. Hilbrant, 7 O. Law Review 440, 54 Wkly, Law

Bull. 513, Add'd 83 O.S. 491, 94 NE 1108, State v. Wilson, 127

NE 2d 426, 700.L.A. 147, State v. Va/ter, Dayton 390, State v.

McLeod, 82 O. App. 155, 80 N.E. 2d 699.

Unlike the law of the states relied upon by Defendant-

JA10

Appellant, Ohio has promulgated and required an apprehension

of “great bodily harm” to justify reasonable action in self-

defense. Defendant's requested special charge was incorrect

and the use of the standard jury instruction by the trial court is

sustained. The third Assignment of Error is overruled.

The Fourth Assignment of Error is:

THE COURT COMMITTED PREJUDICIAL ERROR IN

INSTRUCTING THE JURY THAT THE DEFENDANT HAD A

DUTY TO RETREAT BEFORE AVAILING HIMSELF OF

SELF-DEFENSE.

Once again the Trial Court took its charge to the jury from

Section 411.31 Ohio Jury Instructions. The Defendant-Appeliant

argues that the court's charge was incorrect. Examination of

the charge on this point reveals two occasions on which the

Court discussed retreat and neither of these remotely address

the proposition to which the Defendant-Appellant refers.

As noted by the reference cited in Plaintiff-Appellee's

Brief (t-225-226):

“Now, if a person is assaulted by another, who apparently

intends to kill or cause great bodily harm, the person assaulted

is not required to retreat but may repel force with force, and

inflict the harm, if it reasonably appears to the defendant to

be necessary to do so.”

The Defendant-Appellant's Fourth Assignment of Error is

not well taken and overruled.

The Fifth Assignment of Error is:

THE COURT COMMITTED PREJUDICIAL ERROR BY

INSTRUCTING THE JURY THE DEFENDANT HAD TO PROVE

THE AFFIRMATIVE DEFENSE OF SELF-DEFENSE BY A

PREPONDERANCE OF THE EVIDENCE.

in support of his argument Defendant-Appeliant cites State

v. Robinson, 47 O.S. 2d 103, 10. Ops. 3rd 61,351 N.E. 2d 88, a

recently decided Ohio Supreme Court case, eliminating the

degree of proof referred to above. A review of the transcript

reveals that in his opening statement (t-12) and Closing (t-189-

201) statement, Defendant's counsel stated to the jury that the

burden of proof was by a “preponderance of the evidence”.

Further, Defendant-Appeliant made no objection to that portion

of the charge dealing with that burden of proof, as required for

review under the terms of Ohio Rules of Criminal Procedure,

Rule 30. The failure to make such an objection waives any

JA11

error not called to the attention of the trial court. As noted by

Plaintiff-Appellee, see also, State v. Glaros, 170 OS 471, 11

O.Ops 2d 215, State v. Slone, 45 O. App, 2d 24, 74.0. Ops 2d

66. The fifth Assignment of Error is not well taken and overruled;

the verdict of the jury is affirmed.

Judgment Affirmed

Gray, P.J. and Stephenson, J. Concur

JA12

State v. isaac (Ohio Supreme Court) #77-412

NO. 77-412

THE SUPREME COURT

OF THE STATE OF OHIO

THE STATE OF OHIO,

CITY OF COLUMBUS. MOTION FOR LEAVE TO APPEAL

FROM THE COURT OF APPEALS

SAE OF re eliee tor PICKAWAY COUNTY

vs.

LINCOLN ISAAC,

Appellant.

(FILED JULY 20, 1977

It is ordered by the Court that this motion is overruled.

COSTS:

Motion Fee, $20.00, paid by James R. Kingsley

|, Thomas L. Startzman, Clerk of the Supreme Court of

Ohio, certify that the foregoing entry was correctly copied

from the Journal of this Court.

JA13

State v. isaac (Ohio Supreme Court) #77-412

No. 77-412

THE SUPREME COURT OF OHIO

(FILED JULY 20, 1977)

THE STATE OF OHIO,

CITY OF COLUMBUS.

STATE OF OHIO, APPEAL - ROM THE COURT

Appellee, OF APPEALS

vs. FOR PICKAWAY COUNTY

LINCOLN ISAAC,

APPELLANT.

This cause, here on appeal as of right from the Court of

Appeals for Pickaway County, was heard in the manner pre-

scribed by law, and, no motion to dismiss such appeal having

been filed, the Court sua sponte dismisses the appeal for the

reason that no substantial constitutional question exists here-

in.

It is further ordered that a copy of this entry be certified to

the Clerk of the Court of Appeals for Pickaway County for

entry.

I, Thomas L. Starzman, Clerk of the Supreme Court of

Ohio, certify that the foregoing entry was correctly copied

from the Journal of this Court.

JA14

State v. Bell (CCP Cuyahoga) #16366

THE STATE OF OHIO A TRUE BILL

vs. INDICTMENT FOR

KENNETH L. BELL AGGRAVATED MURDER

2903.01

(FILED Oct. 11, 1974)

*Clerk Stamp Deleted

Date of Offense: September 15, 1974

The Term of September of 1974

Case No. 16366

THE STATE OF OHIO,

Cuyahoga County

“The Jurors of the Grand Jury of the State of Ohio, within

and for the body of the County aforesaid, on their oaths, IN

THE NAME AND BY THE AUTHORITY OF THE STATE OF

OHIO, Do find and present, that the above named Defendant(s),

on or about the date of the offense set forth above, in the

County of Cuyahoga, unlawfully and purposely and with prior

calculation and design, caused the death of another, to-wit:

Nathaniel Reese

contrary to the form of the statute in such case made and

=" and against the peace and dignity of the State of

hio.

Foreman of the Grand Jury Prosecuting Attorney

JA15

State v. Beli (CA Cuyahoga) #34727

NO. 34727

COURT OF APPEALS OF OHIO, EIGHTH DISTRICT

County of Cuyahoga

(FILED APRIL 8, 1976)

STATE OF OHIO

Appellee

vs.

KENNETH BELL

Appellant

APPEAL FROM

COMMON PLEAS COURT

(Criminal)

No. 16366

JOURNAL ENTRY

This cause came on to be heard upon the pleadings and

the transcript of the evidence and the record in the Common

Pleas Court, and was argued by counsel for the parties; and

upon consideration, the court finds no error prejudicial to the

appellant and therefore judgment of the Common Pleas Court

is affirmed. Each assignment of error was reviewed and upon

review the following disposition made:

Appellant Kenneth Bell was indicted on October 11, 1974

for aggravated murder, R.C. 2903.01. The indictment alleged

that appellant had purposely, and with prior calculation and

design, caused the death of Nathaniel Reese. On April 15,

1975, following a trial before a jury, appellant was found guilty

of the lesser included offense of murder. R.C. 2903.02.

From his conviction appellant has brought this appeal

alleging five assignments of error.

The first and fifth assignments of error allege that the

verdict is against the weight of the evidence and that the

prosecutor failed to establish the corpus delicti and the identity

of the victim. Both assignments of error are without merit.

in a criminal prosecution the, state is required to prove all

material facts relating to the crime charged, including those

facts relating to the corpus delicti, which is the body or substance

of the crime charged. State v. Manago (1974), 38 Ohio St. 2d

223. The corpus delicti ina homicide prosecution involves two

JA16

elements: (1) the fact of death, and (2) the existence of the

criminal agency of another as the cause of death. State v.

Manago, supra. The corpus delicti is sufficiently established if

the state produces some evidence to support the fact that a

human being came to his death by criminal means. State v.

Cosby (1959), 110 Ohio App. 222. Proof of the identity of the

victim is not necessary to establish the corpus delicti. State v.

Schaeffer (1960), 113 Ohio App. 125; State v. Cosby, supra.

in this case the corpus delicti was adequately established.

Dr. Lester Adelson, Deputy Coroner for Cuyahoga County,

testified that he performed an autopsy on September 16, 1974

on a corpse which he had been told was that of Nathaniel

Reese. Dr. Adelson testified that the autopsy showed that the

individual's death was caused by two gunshot wounds per-

forating the chest and abdomen leading to massive fatal

hemmorrhaging. There were two other non-fatal wounds. His

conclusion was that the death was a homicide. The autopsy

report, which was introduced into evidence, certifies that the

autopsy was performed on the body of Nathaniel Reese. This

evidence adequately establishes the corpus delicti and the

identity of the victim in this case.

Appellant also contends that the verdict was against the

weight of the evidence, and that it was not proven that the

person allegedly shot by appellant was the same person on

whose body the autopsy was performed on September 16,

1974.

It is our conclusion that these contentions are without

merit.

The evidence shows that on the evening of September 15,

1974 appellant was at the Willow Inn on East 49th Street

drinking with James Clark and several other individuals. At

approximately 8:00 p.m. appellant received a phone call from

Robert Vaughn, who was a bartender at the Hub Cafe, another

bar in the same neighborhood.

Mr. Vaughn told appellant that five black males had entered

the Hub Cafe, and that he was afraid that there might be

trouble. Appellant and James Clark decided to go to the Hub

Cafe in response to the call from Mr. Vaughn. Appellant, who

also worked as a bartender, was one of a group of individuals

who worked in bars in the area who agreed to call each other

for help if it looked like trouble might develop in one of the

neighborhood bars in which they worked.

JA17

Appellant and Clark proceeded to the Hub Cafe in Clark's

car. When they arrived, they saw Robert Vaughn standing

outside of the Hub Cafe. Appellant asked Vaughn, “Where are

the colored guys?" Vaughn told appellant that they had left the

bar and had gone down East 55th Street. Appellant and Vaughn

proceeded in the direction that the black men had gone. Near

the corner of East 55th and Broadway appellant and Vaughn

approached two of the black males. At the time appellant was

armed with a .32 caliber pistol. As appellant drew nearer to the

men he fired his gun several times. One of the black men fell to

the ground.

At trial, appellant claimed that he fired in self-defense. He

testified that as he approached the two black men, Vaughn

yelled, “He's got a gun,” or “Watch out, he's got a gun.” At that

point, appellant said that he spun around and started shooting.

He stated that he did not know where he pointed the gun and

that he did not know if he actually shot the victim. He further

said that he saw one of black men with a gun.

After the shooting, appellant got back in Clark's car, and

put his gun away. As they were leaving the scene, appellant

made several statements to Clark, including “| think | killed

him,” and “It was easy.”

The police were called and arrived on the scene at

approximately 8:02 p.m. Patrolman George Unger of the

Cleveland Police Department found a young black male lying

on the sidewalk near East 55th and Broadway. He assisted in

putting the individual in a Third District police ambulance

wagon, which took the man to St. Alexis Hospital.

Detective John Staimpel of the Cleveland Police Depart-

ment was summoned to St. Alexis Hospital at approximately

8:25 p.m. to investigate a homicide which had been reported at

East 55th, in the vicinity of Broadway. He and his partner

arrived at St. Alexis at approximately 8:35 p.m. Upon arrival,

Detective Staimpel observed a Third District police station

wagon parked outside of the emergency room, with a body in

the back. Detective Staimpel followed the Third District wagon

from the hospital to the County Coroner's office. He subsequently

viewed the body at the morgue. At trial, he identified photographs

as being photographs of the body he had escorted from St.

Alexis to the County Coroner's office. These same photographs

had previously been identified by the Coroner as having been

- in conjunction with an autopsy performed on Nathaniel

eese.

JA18

After leaving the scene of the shooting, appellant and

James Clark returned to the Willow Inn. Some time later,

appellant and James Clark took Clark's car to the area of West

Third Street and left it. Clark then called the police and reported

that the car had been stolen. A couple of weeks after the

shooting appellant went to Florida, leaving his wife and children

in Cleveland. He later returned to Cleveland where he was

arrested on March 2, 1975.

It is our conclusion that the above evidence could have

properly been believed by the jury, and is sufficient tc sustain

appellant's conviction for the murder of Nathaniel Reese. The

first and fifth assignments of error are overruled.

The second assignment of erro: states that:

THE TRIAL COURT ERRED UNDER THE FIRST PART OF

THE NOLTON RULE IN CHARGING THE JURY AS TOLESSER

INCLUDED OFFENSES OR, IN THE ALTERNATIVE, UNDER

THE SECOND PART OF THE NOLTON RULE THE TRIAL

COURT ERRED IN THAT IT FAILED TO CHARGE THE JURY

AS TO ADDITIONAL LESSER INCLUDED OFFENSES.

This assignment of error is well taken.

In State v. Nolton (1969), 19 Ohio St. 2d 133, the Supreme

Court of Ohio enunciated a rule to govern trial judges in the

instruction of a jury ona lesser included offense of the offense

charged in a criminal case. The court stated:

if the evidence adduced on behalf of the defense is such that

if accepted by the trier it would constitute a complete defense

to all substantive elements of the crime charged, the trier will

not be permitted to consider a lesser included offense for the

reason that an unreasonable compromise would be invited on

the state's evidence.

On the contrary, if the trier could reasonably find against

the state and for the accused upon one or more of the elements

of the crime charged and for the state and against the accused

on the remaining elements, which by themselves would sustain

a conviction upon a lesser included offense, then a charge on

the lesser included offense is both warranted and required,

not only for the benefit of the state but for the benefit of the

accused.

Although each of the above paragraphs in No/ton appears

to set forth a separate test, it has become clear that in determining

whether an instruction on a lesser included offense is warranted

and required, both paragraphs must be considered together.

JA19

State v. Jones, No. 33966 (Cuyahoga County Court of Appeals,

December 23, 1975). Thus, although a defendant may present

a defense which, if believed, would constitute a complete

defense to all substantive elements of the crime charged, an

instruction on a lesser included offense or offenses is still

warranted and required in cases where the jury, if it chose not

to believe the defendant's defense, could reasonably find against

the state and for the accused on one or more elements of the

crime charged and for the state on the remaining elements,

which by themselves would sustain a conviction for a lesser

included offense. State v. Jones, supra.

In this case appellant was charged with aggravated murdei,

which is the purposeful causing of the death of another, with

prior calculation and design. R.C. 2903.01(A). Appellant pre-

sented the defense of self-defense. if believed, this would

have constituted a complete defense to the crime charged.

However, the evidence in this case was such that the jury, if it

chose not to believe appellant, could reasonably have found

against the state and for the accused on the element of prior

calculation and design, and for the state and against the accused

on the remaining elements of the crime charged. Thus, appellant

could reasonably have been found guilty of the crime of murder,

which is the purposeful causing of the death of another, without

prior calculation and design.

The court properly instructed the jury on both aggravated

murder and murder.

Appellant also contends that the court, having decided not

to limit the instructions to aggravated murder, should also

have instructed the jury on the additional lesser included

offenses of voluntary and involuntary manslaughter, negligent

homicide, and the four categories of assault as set forth in R.C.

2903.111 through 2903.14. It is our conclusion that the trial

court properly refused to instruct on these offenses.

Under the Noiton rule, an instruction on a lesser included

offense or offenses is required only when the evidence is such

that the jury could reasonably find against the state and for the

accused on one or more of the elements of the crime charged

and for the state and against the accused on the remaining

elements, which by themselves would sustain a conviction

upon a lesser included offense. In this case the crime charged

against appellant was aggravated murder. It is our conclusion

that the evidence was not of such a nature that the jury could

reasonably have concluded that appellant was guilty of any

JA20

lesser included offense of the crime charged other than

murder.

We find no evidence from which the jury could reasonably

have concluded that appellant was guilty of voluntary man-

slaughter, since there is no evidence that appellant caused the

death of Nathaniel Reese “while under extreme emotional

stress brought on by serious provocation reasonably sufficient

to incite him into using deadly force.” R.C. 2903.03(A). Therefore,

aninstruction on voluntary mansiaughter would not have been

proper. The request for such a charge was properly denied.

Similarly, the record does not reveal any evidence from

which the jury could reasonably have concluded that appellant

was guilty of either involuntary manslaughter or negligent

homicide.

Furthermore, since the evidence clearly shows that the

victim died as a result of appellant's action, an instruction to

the jury on assault would have been improper. State v. Champion

(1924), 109 Ohio St. 281.

The third assignment of error is that the trial court erred in

not granting appellant's motion for a mistrial on the grounds

that the prosecutor's conduct during closing arguments pre-

judiced the appellant's rights.

Appellant contends that the prosecutor on closing argument

went into matters which appellant had been precluded from

raising at trial, and which the judge had instructed both parties

to avoid on closing argument. in particular, appellant contends

that the prosecutor brought up the character of the neighborhood

in which the killing took place. However, the record reveals

that although the prosecutor did briefly comment upon the

character of the neighborhood, he did so only with regard to

facts which had been testified to or which had bee \ commented

upon by defense counsel in his closing argument.

Appellant also contends that the prosecutor impermissibly

suggested that certain witnesses who testified against appellant

had not gone to the police sooner than they did because they

were afraid of appellant. It is our conclusion that such sug-

gestions by the prosecutor were merely in responses to

suggestions by defense counsel that the testimony of these

witnesses was unreliable because those witnesses had delayed

in coming forward. The prosecutor was justified in replying to

those suggestions of defense counsel.

JA21

Appellant further contends that the court erred in not

instructing the jury to disregard the prosecutor's comment that

Duane Yingling, appellant's stepson, was “primed and pro-

grammed" before testifying on appellant's behalf. However,

the record shows that the boy admitted or cross-examination

that he had been instructed by his mother as to certain answers

to give in response to a particular question. The prosecutor's

remark in his closing argument was a proper comment upon

the evidence.

Finally, appellant contends that the prosecutor improperly

incited the passion of the jury by including vulgarities in his

closing argument. Specifically, appellant objects to the prose-

cutor's characterization of appellant's own testimony as “a

bunch of crap.” (R. 852). We find that the use of such descriptive

language, although clearly out of place in a closing argument

before a jury, was not of such a nature as to unfairly incite the

passion or prejudice of the jury.

The third assignment of error is overruled.

The fourth assignment of error is that the court erred in

excluding evidence of the character of the neighborhood in

which the alleged crime took place. This assignment of error is

not well taken.

During the trial appellant repeatedly attempted to elicit

testimony concerning the character of the neighborhood where

the shooting took place. The trial judge, believing the character

of the neighborhood to be only marginally relevant to the

issues at trial, was reluctant to allow such testimony. Never-

theless, the judge did allow limited inquiry into this area ona

number of occasions. It is our conclusion that the judge properly

refused to allow further inquiry on other occasions. The character

of the neighborhood was not at issue in the trial and was not

relevant to the determination of appellant's guilt in regard to

the crime charged. The fourth assignment of error is over-

ruled.

Finding none of the assignments of error to be well taken,

we affirm the decision of the Common Pleas Court.

JA22

(FILED APRIL 8, 1976)

*Clerk Stamp Deleted

it is ordered that appellee recover of appellant its costs

herein taxed.

The Court finds there were reasonable grounds for this

appeal.

it is ordered that a special mandate issue out of this Court

directing the Common Pleas Court to carry this judgment into

execution.

Acertified copy of this entry shall constitute the mandate

pursuant to Rule 27 of the Rules of Appellate Procedure.

Exceptions.

MANOS, P.J.,

PARRINO, J. and

KRENZLER J. CONCUR.

JOURNALIZED APRIL 19, 1976

GERALD E. FUERST, Clerk of Courts

By Peggy Moguel Deputy

JOHN M. MANOS

Presiding Judge

For plaintiff appellee: John T. Corrigan

For defendant appellant: Harvey H. Starkoff

N.B. This entry is made pursuant to the third sentence of Rule

22(D), Ohio Rules of Appellate Procedure. This is an announce-

ment of decision (see Rule 26). Ten (10) days from the date

hereof this document will be stamped to indicate journalization,

at which time it will become the judgment and order of the

court and time period for review will begin to run.

JA23

State v. Bell (Ohio Supreme Court) #76-573

NO. 76-573

OHIO SUPREME COURT

(FILED SEPTEMBER 17, 1976)

THE STATE OF OHIO,

CITY OF COLUMBUS.

STATE OF OHIO,

Appellee,

vs.

KENNETH BELL,

Appellant.

Motion for Leave to Appeal

From the Court of Appeals

for Cuyahoga County

It is ordered by the Court that this motion is overruled.

COSTS:

Motion Fee, $20.00, paid by Affidavit of Poverty

1, Thomas L. Startzman, Clerk of the Supreme Court of

Ohio, certify that the foregoing entry was correctly copied

from the Journal of this Court.

JA24

Hughes v. Engle (USDC/NE) #C77-156A

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

(FILED AUGUST 18, 1977)

*Clerk Stamp Deleted

HOWARD HUGHES,

Petitioner

Vv.

TED ENGLE,

Superintendent of

Chillicothe Correction Institute

Respondent

CIVIL ACTION NO. C77-156A

(Judge Contie)

REPORT AND RECOMMENDED

DECISION OF MAGISTRATE

Howard Hughes, the petitioner, initiated this action for

habeas corpus relief pursuant to 28 U.S.C. Section 2254 and

his request to proceed informa pauperis was granted by the

United States District Judge.

Petitioner was indicted by the Grand Jury, September

1974 Term, of Summit County, Ohio for the crime of aggravated

murder, in violation of the Ohio Revised Code Section

2903.01(A). The charge included no specifications for the

death penalty.

Petitioner plead not guilty to the indictment. In the ensuing

trial by jury, petitioner was found to be guilty of voluntary

manslaughter, Ohio Revised Code Section 2903.03, a lesser

included offense. As a result of said verdict, petitioner was

sentenced on January 27, 1975, to a term in the Ohio penal

system of from six (6) to twenty-five (25) years (Case No. CR-

74-11-1206).

Subsequent to conviction, petitioner appealed to the Court

of Appeals Ninth Judicial District. On September 24, 1975,

that Court found that the trial was free from prejudicial error

and affirmed in all respects (Case No. 7717).

Subsequent to said proceedings, petitioner filed a motion

for leave to appeal from the Court of Appeals in the Supreme

JA25

Court of the State of Ohio. On March 19, 1976, the Supreme

Court of Ohio dismissed said appeal for the reason it failed to

present a substantial constitutional question (Case No. 75-

1026).

Petitioner is now before this Court seeking federal habeas

corpus relief. In support thereof, petitioner alleges:

(1) The prosecution failed to prove that the accused was guilty

as to each and every essential element of the offense

charged and the trial court failed to so instruct the trial jury.

(2) The petitioner was subjected to highly prejudicial com-

ments by the prosecutor which were no! cured by the

Court's instructions to disregard them, and the trial court

erred in refusing to declare a mistrial on motion by the

defense for this reason. (See petition for Writ of Habeas

Corpus, page 4)

Under the first claim above, the petitioner alleges that his

rights under the Due Process Clause of the Fourteenth Amend-

ment were violated by the trial court's charge to the jury thata

defendant must bear the burden of proving self defense. Among

other citations, the petitioner relies upon the doctrine of

Mullaney vs. Wilbur, 421 U.S. 684 (1975), seeking to apply

same to the following charge to the jury:

“... Now the Defendant is presumed innocent until! his guilt

is established beyond a reasonable doubt. The Defendant

must be acquitted unless the State produces evidence which

convinces you beyond a reasonable doubt of every essential

element of the crime charged in the Indictment, or of any

lesser offense included within that charge. . .Now if you find

that the State proved beyond a reasonable doubt a// of the

essential elements of Aggravated Murder, your verdict must

be guilty of that crime. And in that event you will not consider

any lesser offense. . . .If you find that the State proved beyond

a reasonable doubt ail of the essential elements of the lesser

crime of Murder, your verdict must be guilty of Murder. And in

that event you will not consider any lesser offense. .. Before

you can find the defendant guiity of voluntary Manslaughter,

you must find beyond a reasonable doubt that Lemuel Johnson

was a living person, that his death was caused by the Defen-

dant in Summit County on or about 26th day of October 1974,

that the killing was done knowingly, that the act causing the

death was performed while the Defendant was under extreme

emotional stress brought on by serious provocation reasonably

sufficient to incite him into using deadly force .. . if the

Defendant fails to establish the Defense of Seit-defense, the

JA26

State still must prove ali of the essential elements of the

crime charged or any lesser included offense by proof beyond

a reasonable doubt. If you find that the State proved beyond

a reasonable doubt ail of the essential elements of the crime

of Aggravated Murder, or of the lesser included charges, and

that the Defendant failed to prove by a preponderance of the

evidence the Defense of Self-defense, your verdict must be

guilty as to the charge of Aggravated Murder, or the lesser in-

cluded charges. If you find that the State failed to prove be-

a reasonable doubt any one of the essential elements of the

crime of Aggravated Murder, or any of the /esser included

charges, or if you find that Defendant proved by a prepon-

derance of the evidence the Defense of Self-defense, then

you must find the Defendant not guilty (TR. Vol. 2 330-343.)

(emphasis added).

Both the Court of Appeals of Summit County. Ohio and the

Ohio Supreme Court, rejected each of the petitioner's claim on

the merits. Picard vs. Connor, 404 U.S. 270 (1971).

On October 26, 1974, petitioner, Lemeul Johnson (the

victim), Roger Logan, Marie Hubbard and four of her children,

and Minnie Jackson were all at the latter's home at 99 Westwood

Avenue, Akron, Ohio (TR. 40-41, Vol. 1) when the petitioner

without provocation intentionally shot the victim, Lemuel John-

son, twice in the presence of all these witnesses. They all

support conclusively that the petitioner in cold blood and

without any provocation, deliberately shot and killed Lemuel

Johnson (TR. 47-48, Vol. 1).

Testimony further shows that Marie Hubbard and petitioner

had a very close relationship (TR. 74-75, Vol. 1) and, in fact,

was his former girlfriend. He attempted to pursue an argument

with her as to her relationship with new and present friend,

Lemuel Johnson, (TR. 74-75, Vol. 1). The said argument was

indirectly aimed at Lemuel Johnson (TR. 78, Vol. 1) and urged

Marie Hubbard to reveal alleged past conversations he had

with her about her current relationship with Lemuel Johnson

(TR. 76, Vol. 1). The evidence further reveals that petitioner

had been drinking and used abusive and profane language

(TR. 75, Vol. 1). It is clearly admitted by the petitioner that he

knowingly and purposely carried a deadly weapon on his person,

to wit; a gun and had it readily accessible on his person.

The evidence supports beyond any doubt that Lemuel

Johnson immediately before he was shot was extending his

hand to shake with petitioner as a gesture of friendship (TR.

94-96, 46, Vol. 1) and no hard feelings. The victim's other hand

JA27

was at his side. The petitioner refused to shake hands with

Johnson (TR. 82, 49, Vol. 1, 79, 96, 256, Vol. 2). The evidence

then proceeds to show beyond any doubt that the petitioner

was face to face with Johnson (TR. 79, Vol. 1) and about four

feet from him (TR. 80 Vol. 1) when he, the petitioner, withdrew

his gun from his person and without any cause or provocation

whatsoever, intentionally and purposely fired one shot into

Johnson (TR. 48, Vol. 1) and as he was falling (TR. 81, Vol. 1),

fired another shot into the victim (TR. 81, Vol. 1). Thereafter,

the petitioner pointed the gun at Marie Hubbard (TR. 48-49,

Vol. 1) and then gave her the gun, left the scene and was

apprehended later by the police.

On direct at the trial, petitioner admitted that he shot

Johnson twice (TR. 256, Vol. 2). Petitioner said further he

either threw the gun down on the floor or Marie Hubbard took

it from him and immediately left the scene (TR. 258, Vol. 2). On

page 256 of Volume 1, the petitioner makes a feable attempt to

lay out his theory of self defense. The following questions were

asked on direct and the following answers:

. What was your reply to the hand shake?

. | told him, “I don't shake like that.”

. Allright, What happened next? Go ahead and tel! the Jury.

He turned and started toward the door.

. Then what happened?

He turned around and come back, and that’s when he was

saying, “i'm going to tell you something. . .” And | couldn't

understand what he was saying.

Q. What was he doing when he said that?

A. He hit his pocket, and | tol¢ him to get back, and | backed

off.

Q. Then what happened?

A. | shot and he kept coming, and | shot twice.

Also on page 258, Volume |, the following questions and

answers were asked:

Q. What was your state of mind?

A. | went blank. | didn't understand what happened.

Q. Were you surprised at what you had done?

A. Yes, after | had did it.

Otherwise, the record is completely silent as to other

testimony of the alleged basis for the self defense theory. In

>O Oo FO

JA28

the alternative, the petitioner through his counsel, attempts to

persuade the jury that the evidence at best makes out a crime

of manslaughter and not murder.

In summation the defense stated:

“then it could be voluntary manslaughter only (TR. 315,

Vol. 2)... As! said to you in my opening statement, this case

never was an Aggravated Murder case. It was a way-over in-

dictment. Purposely, with prior calculation and design? No

way. Murder? No way. Voluntary Manslaughter? At the most.

However, even though purposely —because there's no question.

We admit it was an intentional shot. So it was either Voluntary

Manslaughter or it was done for self defense (TR. 319, Vol. 2). . .

It is obvious from the above statement that the defense

attempted to make the best of both worlds. The jury by its

verdict of manslaughter did in fact find no basis of self-de-

fense.

Prior to the Court charging the jury as to the law, on the

record the court asked petitioner's attorney, “What areas would

you like charge on?" (TR. 287, Vol. 2). The attorney said, “Yes, |

would like to have the charge of lesser included offense of

Voluntary Manslaughter, Murder, and Se/f-defense" (TR. 288

Vol. 2) (emphasis added). This the Court gave over the objection

of the prosecution and at the request of the defense.

Only the element of intent was in issue. Both Marie Hubbard

and her children testified as to the events surrounding the

shooting and also gave testimony as to a prior incident wherein

the petitioner had threatened Johnson.

Ohio Court of Appeals of Summit County, summed up the

entire case as follows:

“.. Little evidence, other than defendant's testimony, is shown

of any aggressive overt act by decedent compeiling or even

inciting the defendant to the violent action he took of gunning

down and killing Johnson. We reject Error No. 1. The jury had

a right, and did find against Defendant's claim of self defense...

Our examination of the testimony of the witness in this

cause convinces us that the generosity of the jury finding the

defendant guilty of the lesser included offense of voluntary

manslaughter, as opposed to murder, is most difficult to

understand...”

The transcript fully supports this conclusion.

JA29

With respect to the first claim for relief, indeed if the facts

were to support same, there would be no quarrel that a conviction

that rest upon proof that does not establish each and every

element of the crime is surely a violation of due process.

However, the facts in this case are otherwise crystal clear.

Vachon vs. New Hampshire, 414 U.S. 478 (1974). it is settled

law that allegations as to weight and sufficiency of the evidence,

most definitely do not state a constitutional claim and further-

more are not cognizable in federal habeas corpus. Brooks vs.

Rose, 520 F. 2d 653 (6th Cir., 1975); Ballard vs. Howard, 403

F.2d 653 (6th Cir., 1968).

This Court reading the transcript in this case ina light most

favorable to the petitioner, is hard put in finding any evidence

to support this claim. in fact, the totality of the transcript

completely refutes said allegation. Mullaney vs. Wilbur, (1975)

420 U.S. 685, 44 L-Ed., 2nd 508. The court held unconstitutional

a Maine statute which required the defendant to prove by a fair

preponderance of the evidence that he acted in the heat of

passion on sudden provocation in order to reduce a homicide

charge from murder to manslaughter. In Mullaney, the state

did not have the obligation of proving one of the elements of

the crime charged therein. It placed that obligation upon the

defendant to proof one of the elements of the crime by a

preponderance. However, in the event that the defendant did

not rebut the element that the state did not have to proof, it

became a presumption of law and rested unrebutted. This

differs widely with the case before review in that the question

raised here is merely and solely a statutory question and is not

a constitutional issue as it appears in Mullaney. The case

before review does in fact require the state to prove each and

every material element of the charge beyond a reasonable

doubt. Therefore, it is dissimilar to the case of Mullaney vs.

Wilbur, (supra).

The case before review requires a study of O.R.C. 2901.05,

which in pertinent part, reads:

“(A) Every person accused of an offense is presumed inno-

cent until proven guilty beyond a reasonable doubt, and

the burden of proof is upon the prosecution. The burden

of going forward with the evidence of an affirmative de-

fense is upon the accused.

JA30

“(C) As used in this section, an ‘affirmative defense is either

of the following:

"(2) Adefense involving an excuse or justification perculiarly

within the knowledge of the accused on which he can

fairly be required to adduce supporting evidence.”

Judge Corrigan, dissenting in State vs. Robinson, 47 Ohio

St. 2d, 103 (1976), stated:

“This statute merely reiterates the common-law principle which

places upon the defendant the burden of going forward with

an affirmative defense. The statute does not mention the de-

gree of proof required for that affirmative defense, but the re-

quirement of proof by a preponderance of the evidence, for

such affirmative defense, has been the common law of Ohio

for well over 100 years. Rather, the statute strengthens the

defendant's position, if he relies on a defense of excuse or

justification pecularily in his knowledge, by mandating that,

under such defense, he can fairly be required to adduce sup-

porting evidence. \t must be borne in mind, also that before a

defendant in a homicide case can be required to establish

that the killing by him was an unlawful killing within the degree

of the crime charged Taylor v. State (1909), 12C.C.(N.S.) 486,

21 C.D. 602.”

Further Judge Corrigan stated in Robinson:

“This court has no legislative authority and should not make

its duty of expounding statutes a cloak for supplying some-

thing omitted from an Act by the General Assembly. There

is no authority under any rule of statutory construction to add

to, enlarge, supply, expand, extend or improve the provisions

of a statute to meet a situation not provided for. State, ex rei.

Foster v. Evatt (1944), 144 Ohio St. 65."

Finally, in its’ opinion, the majority held, “Because our

decision in this case is based upon Statutory Law, one need

not consider whether Mullaney might constitutionally mandate

a similar result.”

Seemingly, the opinion in Mullaney (supra) has been mis-

interpreted by a significant portion of our legal community and

further has been miscontrued.

The underline thesis of Mul/aney (supra) is clearly stated

in Patterson vs. New York (1977), 45 U.S.L.W. 4708, 4711-13.

“We thus decline to adopt as a constitutional imperative, opera-

tive country-wide, that a State must disprove beyond a

reasonable doubt every fact constituting any and all affirma-

JA31

tive defenses related to the culpability of an accused. Tradi-

tionally, due process has required that only the most basic

procedural safeguards be observed; more subtle balancing

of soc iety’s interests against those of the accused have been

left to the legislative branch. We therefore will not disturb the

balance struck in previous cases holding that the Due Process

Clause requires the prosecution to prove beyond reasonable

doubt all of the elements included in the definition of the

offense of which the defendant is charged. Proof of the non-

existence of all affirmative defenses has never been consti-

tutionally required; and we perceive no reason to fashion such

a rule in this case and apply it to the statutory defense at issue

here. (emphasis added)

“This view may seem to permit state legislatures to reallo-

cate burdens of proof by labeling as affirmative defenses at

least some elements of the crimes now defined in their

statutes. But there are obviously constitutional limits beyond

which the States may not go in this regard. ‘[I]t is not within the

province of a legislature to declare an individual guilty or pre-

sumtively guilty of a crime.” McFarland v. American Sugar

Refining Co., 241 U.S. 79, 86 (1916). The legislature cannot

‘validly command that the finding of an indictment, or mere

proof of the identity of the accused, should create a presump-

tion of the existence of all the facts essential to guilt.” Tot v.

United States, 319 U.S. 463, 469 (1943). See also Speiser v.

Randall, 357 U.S. 513, 523-525, (1958). Morrison v. California,

291 U.S. 82 (1934), also make the point with sufficient clarity.

“Long before Winship [in re Winship, 397 U.S. 358, 364

(1970)), the universai rule in this country was that the prose-

cution must prove guilty beyond reasonable doubt. At the

same time, the long accepted rule was that it was constitutional-

ly permissibie to provide that various affirmative defenses

were to be proved by the defendant. This did not lead to such

abuses or to such widespread redefinition of crime and reduc-

tion of the prosecution's burden that a new constitutional

rule was required. This was not the problem to which Winship

was addressed. Nor does the fact that a majority of the States

have now assumed the burden of disproving affirmative de-

fenses—for whatever reasons—mean that those States who

strike a different balance are in violation of the Constitution.”

Mullaney’'s holding can be distinguished. In Mullaney we

find a Maine statute required the defendant to prove an element

of the crime charged otherwise it would be presumed and

could be rebutted by the defendant by the preponderance of

the evidence. This then is not the case in review here. In the

JA32

petitioner's case, the Ohio law does not require the defendant

to prove any of the elements of the principle charge or any of

its lesser and included offenses. The alleged claim that the

charge of Court was in violation of the United States Constitution,

is without merit. The mere requirement in a state statute setting

forth the requirements of proof as to affirmative defense, and

who must go forward in proving same, is solely and completely

a statutory issue and does not reach constitutional dimensions.

it is well to note that the latest pronouncements from the

high court, seem to clearly point out that the United States

Constitution does not forbid the state legislatures from setting

forth statutory requirements as to proof in affirmative defenses,

so long as the law definitely places the burden on the State or

Government to never-the-less prove each and all the necessary

elements of a crime charged or its lesser included offenses,

beyond a reasonable doubt. It merely becomes a state statutory

construction issue and not one involving Due Process of the

Fourteenth Amendment of the United States Constitution.

it can be further noted the Due Process Clause of the

Fourteenth Amendment to the United States Constitution does

not preclude placing upon the criminal defendant the burden

of proving an assertion of an affirmative defense. The United

States Supreme Court, in Leland vs. Oregan, (1952), 343 U.S.

790, held that a statute which cast upon a defendant the heavy

burden of proving his insanity beyond a reasonable doubt did

not violate due process where, under other statutory require-

ments, the state had the burden of proving every element of

the crime charged beyond a reasonable doubt, including in the

case of first degree murder, premeditation, deliberation, malice

and intent. It becomes crystal clear when reading the above

charge of the Court herein that the jury was told time and time

again the burden of proof placing solely upon the state to

prove all the elements of the crime and its lesser included

offense by a degree of beyond a reasonable doubt. it further

emphasizes that in the event the affirmative defense fails in its

proof, the state must sti// prove all of the elements of the crime

and the defendant has no burden to prove any of the elements

of the crime charged.

Self-defense, insanity and duress falls in a class of defenses

that in no way negates the existence of an element of the

state's case. Therefore, theoretorically possible for a trier of

fact to conclude beyond a reaeoxnable doubt that a defendant

hascommitted acrime but still brings ina verdict of not guilty. In

JA33

this kind of defense, the defendant is obviously seeking to

avoid punishment by injecting a separate factor and thus proper

for him to prove that fact.

Citing for the above, Leland vs. Oregan, supra, which

upheld constitutionality, a state rule that required defendants

to prove the defense of insanity. Further on this subject, Justice

Relinquist, in Wi/bur said he felt Le/and was still valid because:

“.., the existence or nonexistence of lega! insanity bears no

necessary relationship of the existence or nonexistence of the

required mental element of the crime.” 95 S. Ct. at 1893.

Also on this point, the Supreme Court in Revera vs. Dela-

ware, (1976), 429 U.S. Section 77, dismissed the case on the

grounds that there was no substantial federal question. In the

Supreme Court of Delaware in Revera vs. State, (1976), 351A.

2nd. 561, the Court sustained the constitutionality of a state

statute requiring a criminal defendant raising an insanity defense

to prove mental illness or defect by preponderance of the

evidence Ohio vs. rel. Eaton vs. Price (1959), 360 U.S. 246,

247.

“Traditionally, due process has required that only the most

basic procedural safeguards be observed; more subtle balance

of society's interest against those of the accused have been

left to the legislative branch. We therefore will not disturb the

balance struck in previous cases holding that the Due Process

Clause requires the prosecution to prove reasonable doubt

all of the elements included in the definition of the offense of

which the defendant is charged. Proof of the nonexistence of

all affirmative defenses has never been constitutionally re-

quired; and we perceive no reason to fashion such a rule in

this case...”

In view of the above comments, the petitioner's claim,

number one, is without merit.

With respect to the second claim for relief, the petitioner

also contends his right of due process was violated by reason

of certain prosecutorial misconduct during the prosecutor's

cross examination of petitioner and in his closing argument.

JA34

The petitioner identifies the following questions and answers

as his basis for said allegation:

Q. Now where did you but this gun that Mr. Fannelly.. .

A. | believe, | can't say exactly, but | believe it was about last

January, not this January.

Q. O.K. That was shortly after your M-1 was confiscated.

(TR. 284)

At this point, the trial court stated to the prosecutor:

That's an improper question, Mr. Zuch, and | don't want to

admonish you again.

(TR. 284)

At page 285 of Volume 2, at the request of the defendant,

the jury was told to disregard those questions. Prior to the

above exchange, Gracie Humes testified for the defense con-

cerning the petitioner's good character and propensities for

peace. Further, during petitioner's direct testimony, petitioner

indicated that he had been convicted of approximately four

misdemeanors.

Upon cross-examination, the state attempted to ask ques-

tions concerning an incident, one year previous, where the

petitioner used an M-1 carbine rifle in an attempt to settle a

disagreement over another woman. As this questioning was

attempted, the trial court requested the state, out of the presence

of the jury, to indicate its justification for area of inquiry. Three

alternate grounds were presented: Ohio's other and similar

acts doctrine, the fact that petitioner had put his character and

non-violent proclivities in issue, and that upon direct examination

that petitioner had opened up this avenue for cross-examination.

(TR. 271-274). The trial court rejected these alternatives and

instructed the prosecutor that he could not go behind any

conviction. At page 275 of Volume 2, at the petitioner's request,

told jury to disregard those questions.

The quoted question above was asked on recross, after on

redirect, the petitioner had testified as to his motivation for

owning the gun which he used to shoot Johnson. (TR. 283-

285). All objections be defense counsel sustained, and the jury

was instructed to disregard the questions (TR. 269, 275, 276,

284). A motion for mistrial was denied on the merits and also

not timely made (TR. 289).

JA35

Upon appeal the state court said the following on this

issue:

“Defendant, through another witness placed his character

in issue by the introduction of testimony as to his good character

and peaceful conduct generally. In each instance, the prose-

cution was not permitted on cross examination to be beyond

the conviction of prior violations of law. All special jury instruc-

tions requested by the defendant in this area were granted,

including the granting of all objections advanced by the defen-

dant during trial. We find no specific acts or conduct of the

prosecution, during trial or in final argument, prejudicial to

the appellant.”

The petitioner isolates from a voluminous record a few

alleged improper questions during the prosecutor's cross-

examination and in his closing argument. There is a basic and

fundamental general rule that the prosecutor may cross-examine

a witness on all relevant facts that was or could be developed

on direct examination and this also holds for fair argument to

the jury by the prosecutor, so long as the arguments are

consistent with the facts.

As Chief Justice Burger once wrote, “a criminal! trial is not

a minuet,” Taylor vs. United States (D.C. Cir., 1969), 413 F.

2nd. 1095, 1096.

The United States Supreme Court stated in Berger vs.

United States (1934), 295 U.S. 78, 88, that the prosecutor

“may strike hard blows” so long as he avoids foul ones. Courts

grant the prosecution enormous discretion in his selection of

words so long as the substance of his questions and comments

is supported by the record. United States vs. Jones (D.C. Cir.,

1973), 482 F. 2nd 747, 753 (defendant referred to as an

“executioner”; United States vs. Bivona (2nd. Cir.), 487 F. 2nd.

443, 446 (defendant's testimony characterized as “lies’); United

States vs. Lucianetti (E.D. Penn., 1972), 369 F. Supp. 358,

363-64, (defendant referred to as a “liar” and a “crook"). On

this issue also see; Donnelly vs. Di Christofo, 42 L.W. 4682

(1974); Smith vs. United States, 315 A. 2nd (D.C.C.A. 1974).

To add to the fairness of the facts in the instant case, the

Judge, with each request to admonish the Jury not to consider

those alleged improper questions was so instructed, thereby

curing any possible alleged error. The refusal to grant a mistrial

rested within the sound discretion of the trial court. Wa//ace vs.

Havener, No. 76-1028 (6th Cir., 1977).

Consequently, the prosecutor's cross-examination of the

JASE

defendant and the prosecutor's argument to the jury were far

short of any dimensions of denying the petitioner's rights under

the due process clause of the United States Constitution.

Petitioner is not entitled to a perfect trial but had more

than a fair trial, being ably represented by defense counsel.

Any attempts by the prosecution to sail into forbidden waters

were prevented by the trial court and by defense counsel to

the extent that no prejudice resulted.

In view of the above comments, the petitioner's claim,

number two, is without merit.

CONCLUSION

In the instant case there has been no showing of an

constitutional infringement in statutorily requiring the defense

to establish self-defense by a preponderance of the evidence

where, as here the jury was repeatedly instructed by the Court

in it's charge that the burden rests solely upon the state to

prove each and all of the elements of the general charge as

well as the elements of any lesser included offenses beyond a

reasonable doubt (TR. 330, 331, 336-338, Vol. 2). it further

charged the jury that even if the defense fails, the burden sti//

remains upon the state to prove each element of the crime

beyond a reasonable doubt (TR. 343, Vol. 2).

The charge as to self-defense was merely a statutory issue

and does not rise to any constitutional dimensions.

It is also noted that at page 354, Volume 2, the petitioner

takes no exception to the charge except as to the subject of

Aggravated Murder and murder.

The petitioner was afforded a full and complete charge

and the court protected the petitioner's rights of due process

as mandated by the United States Constitution.

JA37

RECOMMENDATION

it is recommended that the petition for writ of habeas

corpus be denied.

Charlies R. Laurie

United States Magistrate

CERTIFICATE OF SERVICE

1, Charles R. Laurie, United States Magistrate, do hereby

certify that a copy of the Report and Recommended Decision

of Magistrate, has been forwarded to the Petitioner, at:

HOWARD HUGHES, Reg. No. 140-983

Chillicothe Correctional Inst.

Box No. 5500

Chillicothe, Ohio 45601

via the United States Postal Service on this 18th day of August,

1977.

Charles R. Laurie

United States Magistrate

CERTIFICATE OF SERVICE

|, Charles R. Laurie, United States Magistrate, do hereby

certify that a copy of the Report and Recommended Decision

of Magistrate, has been forward to the Respondent at:

Simon B. Karras

Assistant Atty. General

30 East Broad Street

State Office Tower, Suite 1513

Columbus, Ohio 43215

via the United States Postal Service on this 18th day of August,

1977.

Charles R. Laurie

United States Magistrate

JA38

Hughes v. Engle (USDC/NE) #C77-156A

NO. C77-156A

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

(FILED NOVEMBER 27, 1978)

*Clerk Stamp Deleted

HOWARD HUGHES

Petitioner

vs.

TED ENGLE, Superintendent

Respondent

ORDER

Petitioner has moved the Court for twenty days leave in

which to file a supplemental brief in support of his petition for

habeas corpus relief under 28 U.S.C. Section 2254.

With regard to the petition herein, petitioner asserts as his

first ground for relief that the state failed to prove-beyond a

reasonable doubt every element of the crime charged, and

that the trial court failed to so instruct the jury. In his subsequent

memorandum in support thereof and contra the state's Return

of Writ, he explains such ground by alleging that his due

process rights were violated by the trial court's instruction

placing upon him the burden of proving self defense.

After reviewing the entire record in this action, however,

the Court entertains serious reservations with regard to its

rightful jurisdiction over said issue. Specifically, it is not clear

whether there has been an exhaustion of all available state

court remedies with regard to the question raised by ground

one. Thus the Court shall grant petitioner leave until November

13, 1978 to submit a brief and whatever other materials he

deems appropriate, if any, addressed to exhaustion as required

by 28 U.S.C. Section 2254(B) and (c). The state shall be granted

an opportunity to respond thereto.

JA39

Accordingly, the instant motion is hereby granted to the

extent set forth above, and petitioner shall file its brief on or

before November 13, 1978. Respondent shall file any response

thereto on or before November 20, 1978.

IT |S SO ORDERED.

*Signature Deleted

Leroy J. Contie, Jr.

U.S. District Judge

JA40

Hughes v. Engle (USDC/NE) #C77-156A

NO. C77-156A

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

(FILED JUNE 4, 1979)

*Clerk Stamp Deleted

HOWARD HUGHES '

Petitioner

vs.

TED ENGLE, Superintendent

Respondent

ORDER

Pursuant to this Court's Order of November 2, 1978,

petitioner and respondent have submitted briefs addressed to

the issue of exhaustion of state remedies as required by 28

U.S.C. Section 2254(b) and (c).

Upon consideration, the Court concludes that petitioner

has exhausted available state remedies with regard to both

grounds advanced in support of his petition. See Keener v.

Ridenour, 594 F. 2d 581 (6th Cir. 1979); Collins v. Perini, 594F.

2d 592 (Sth Cir. 1979).

In their respective briefs, petitioner and respondent have

each requested leave to file a further brief addressed to the

merits of petitioner's claims for relief.

Accordingly, the parties herein shall file briefs addressed

to the merits of the grounds advanced in support of the petition

on or before June 18, 1979.

IT 1S SO ORDERED,

*Signature Deleted

Leroy J. Contie, Jr.

U.S. District Judge

JA41

State v. Hughes (CCP Summit) CR-74-11-1206

STATE OF OHIO SUMMIT COUNTY

NO. 74-11-1206

INDICTMENT FOR: AGGRAVATED MURDER (1)

(FILED DECEMBER 16, 1974)

REVISED CODE SECTION: 2903.01(A)

In the Common Pleas Court of Summit County, Ohio, of

the term of September in the year of our Lord, One Thousand

Nine Hundred and Seventy-Four.

The Jurors of the Grand Jury of the State of Ohio, within

and for the body of the County aforesaid, being duly impanelied

and sworn and charged to inquire of and present all offenses

whatever committed within the limits of said County, on their

oaths, IN THE NAME AND BY THE AUTHORITY OF THE

STATE OF OHIO,

DO FIND AND PRESENT, that HOWARD HUGHES on or

about the 26th day of October, 1974, at the County of Summit,

aforesaid, did commit the crime of AGGRAVATED MURDER

in that he, did, purposely and with prior calculation and design,

cause the death of Lemuel W. Johnson, in violation of Section

2903.01(A) of the Ohio Revised Code, contrary to the form of

the statute in such case made and provided and against the

peace and dignity of the State of Ohio.

STEPHAN M. GABALAC

Prosecuting Attorney

Summit County, Ohio

MARY F. ROSSI

Foreman of the Grand Jury

A TRUE BILL

JA42

State v. Hughes CCP Summit CR-74-11-1206

(288)

MR. FANELLY: Yes. | would like to have the Charge of

the lesser included offenses of Voluntary Manslaughter, Murder

and Self-defense.

THE COURT: Do you care to be heard on that, Mr.

Prosecutor?

MR. ZUCH: One second, your Honor. Your Honor,

we'd merely like to bring to the Court's attention State vs.

Nolton, as regards the Charge of when Self-defense is raised.

The State maintains that the law supported by that particular

case states that when self-defense is presented that the—there's

no lesser included offenses. They are saying that he’s completely

justified in the act, and that self-defense is in and of itself an

essential element of the crime.

THE COURT: Overruled. I'm going to charge on the

lesser included of Murder and Voluntary Manslaughter.

MR. FANELLY: Your Honor, I'd like to at this time

make a motion. I'd like to ask the Court to declare a mistrial

based on the statements made by Prosecutor Zuch referring to

the M-1 rifle and that that had been made but for one purpose;

to prejudice the mind of the Jury, and that it

(289)

perhaps would lead them to believe that this man may be

involved with the Black Muslems, or something of that sort. It

was indeed a very improper question. I'm sure Mr. Zuch is a

very seasoned Prosecutor, and he should have known that was

an improper question. So at this time—

THE COURT: Mistrial is overruled, not only on the

merits of your motion but the timeliness of it. it was not made at

the time of the transgression. You may have your exception.

MR. FANELLY: Thank you, your Honor.

THE COURT: Anything else, Mr. Fanelly?

MR. FANELLY: No.

MR. KIRKWOOD: | take it the Charge will be Aggravated

Murder, Murder, Voluntary Manslaughter, with the Self-defense

extra?

THE COURT: Right. Anything else any of you want

charged on?

MR. FANELLY: You will have all the boiler plate things,

I'm sure.

JA43

THE COURT: Right. Time of argument. Now, it’s my

policy to allow you whatever time you want within reason, but

hold you to the time allotted. What is your pleasure? —

(Whereupon, at 9:58, the morning recess was had.)

CHARGE OF THE COURT

Ladies and gentlemen of the Jury: You have heara the

evidence and the arguments of Counsel, and it is now my duty

to instruct you on the law which applies to this case. The Court

and the Jury have separate functions. You decide the disputed

facts and the Court provides the instructions of law. It is your

sworn duty to accegt these instructions and to apply the law as

it is given to you. You are not permitted to change the law nor

to apply your own conception of what you think the law should

be.

Acriminal case begins with the filing of an Indictment. The

indictment informs the Defendant that he has been charged

with a crime. The fact that it was filed may not be considered

for any purpose. The plea of not guilty is a denial of the charge

and puts in issue all of the essential elements of the crime. The

Defendant raises the issue of Self-defense, which | will explain

to you later.

Now, the Defendant is presumed innocent until his guilt is

established beyond a reasonable doubt. The Defendant must

be acquitted unless the State produces

[339]

in evidence.

The emotional stress or condition must be extreme. That

is, it must be great in nature and intensity, and it must exist at

the time of the act or acts that caused the death of Lemuel

Johnson.

However to reduce a purposeful murder to Voluntary

Manslaughter the extreme emotional stress must be brought

on by serious provocation. Provocation, to be serious, must be

reasonably sufficient to bring on the extreme emotional stress,

and the provocation must be reasonably sufficient to incite or

to arouse the Defendant into using deadly force.

In determining whether the provocation was reasonably

sufficient to incite the Defendant into using deadly force, you

must consider the mental and emotional state of the Defendant,

JA44

» and the circumstances and conditions that surrounded him at

that time.

When a person knowingly kills another while under extreme

emotional stress brought on by serious provocation reasonably

sufficient to cause him to use deadly force to kill another, then

such killing is Voluntary Manslaughter.

if the emotional stress is not extreme, or if such stress is

not present at the time of the act, or if the provocation is not

reasonably sufficient to cause the

(340)

Defendent to use deadly force or kfiowingly kill the decedent,

then such killing was not Voluntary Manslaughter.

Now, the Defendant claims that what he did was justified

on the basis of self-defense. And this defense applies to not

only the charge of Aggravated Murder, but the lesser included

charges which | have described to you.

if a person is assaulted by another who apparently intends

to kill or cause great bodily harm, the person assaulted is not

required to retreat, but may repel force with force and may kill

his assailant if it reasonably appears to the Defendant to be

necessary to do so.

To constitute Self-defense there must have been on the

part of the Defendant a careful use of his faculties and reasonable

grounds to honestly believe that there was an imminent danger

to his person or to his life. There must have been a sufficient

act coupled with an apparent present ability to carry it out to

cause the Defendant to reasonably believe that the other

parties intended to kill him or to do great bodily harm, and that

the killing of the decedent was necessary to save himself from

death or great bodily harm.

if the Defendant had reasonable grounds and an honest

belief that he was in imminent danger of death or great bodily

harm, and that the only means of escape

[341]

from such danger was by killing his assailant, then he was

justified even though he was mistaken as to the existence of

such danger.

Resort to the use of a dangerous weapon is not permitted

because of words. Vile or abusive language, or verbal threats,

no matter how provocative, do not justify an assault or the use

of a dangerous weapon.

JA45

In determining whether the Defendant had reasonable

grounds for an honest belief that he was in imminent danger,

you must put yourself in the position of this Defendant, with his

characteristics, his knowledge or lack of knowledge, and under

the circumstances and conditions that surrounded him at the

time. You must consider the conduct of the decedent and

determine if his acts and words caused the Defendant to

reasonably and honestly believe that he was about to be killed

or receive great bodily harm.

The law does not measure nicely the degree of force

which may be used to repel an assault. However, if a person

who is assaulted uses more force than reasonably appears to

be necessary under the circumstances, and if the force used is

so grossly disproportionate to his apparent danger as to show

revenge or an evil purpose to injure his assailant, then the

Defense of Self-defense is not available.

[342]

The Defendant must establish that the other party was the

aggressor and that the Defendant did not himself provoke and

cause the injury. The plea of self-defense is not available to the

person who starts a fight unless in good faith he withdraws

from the contest and informs the other party of his withdrawal,

or by words or acts reasonably indicates he has withdrawn and

is no longer participating in the fight.

A Defendant is not in a position to claim self-defense if he

thought trouble and armed with a dangerous weapon he

provoked a fight or renewed a fight that had broken off and did

not attempt to avoid it or leave the scene of trouble.

if, in the careful and proper use of his faculties, the

Defendant honestly believed and had reasonable grounds to

believe that an assailant was not able and did not intend to kill

or do great bodily harm to the Defendant, then the Defendant

having notice of his adversary's position was released from

danger, and the right to use force in self-defense ended. If

thereafter the Defendant continues he becomes the aggressor

and a subsequent injury to another is unlawful.

The burden of proving the Defense of Self-defense is

upon the Defendant. He must establish such Defense by a

preponderance of the evidence. 1343)

Preponderance of the evidence is the greater weight of

the evidence; that is, evidence that you believe because it

outweighs or overbalances in your minds the evidence opposed

JA46

to it. In determining whether an issue has been proved by a

preponderance of the evidence you should consider all of the

evidence regardless of who produced it.

if the Defendant fails to establish the Defense of Self-

defense, the State still must prove all of the essential elements

of the crime charged or any lesser included offense by proof

beyond a reasonable doubt.

if you find that the State proved beyond a reasonable

doubt a!! of the essential elements of the crime of Aggravated

Murder, or of the lesser included charges, and that the Defendant

failed to prove by a preponderance of the evidence the Defense

of Self-defense, your verdict must be guilty as to the charge of

Aggravated Murder, or the lesser included charges.

If you find that the State failed to prove beyond a reasonable

doubt any one of the essential elements of the crime of

Aggravated Murder, or any of the lesser included charges, or if

you find the Defendant proved by a preponderance of the

evidence the Defense of Self-defense, then you must find the

Defendant not guilty.

As | indicated, if the evidence warrants it, you may

[344]

find the Defendant guilty of a crime lesser than that charged in

the Indictment. However, not withstanding this right, it is your

duty to accept the law as given you by the Court, and if the facts

and law warrant a conviction of the crime charged in the

indictment, then it is your duty to make such finding uninfluenced

by your power to find a lesser offense.

The provision allowing you to find a person guilty of a

lesser included offense is not designed to relieve you of the

performance of an unpleasant duty. It is included to prevent

failure of justice if the evidence fails to prove the original

charge, but does justify a verdict for a lesser crime.

Now, you will have with you in your Jury Room one verdict

form, which will cover all the possible results you may arrive at.

| think it’s self-explanatory but I'll go over it with you.

It starts off by saying, “We, the Jury in this Case, being duly

impaneled and sworn to well and truly try and true deliverance

make between the State of Ohio and the defendant, Howard

Hughes, do find him blank of Aggravated Murder.” That's the

first charge you will consider, and if you find him guilty of

Aggravated Murder then you needn't worry about the rest of

JA47

the form. But if you find him not guilty of Aggravated Murder

then you

[348]

and that each juror has the opportunity to discuss the case and

to cast his vote. Otherwise the authority of the foreman is the

same as any other juror.

Until your verdict is announced in open court you are not

to disclose to anyone else the status of your deliberations or

the nature of your verdict.

if Counsel has any request for additional Charge or objection

to the Charge, you can approach the bench.

MR. FANELLY: May we approach the bench, please?

(Discussion between the Court, Mr. Fanelly and Mr. Zuch

at the bench, out of the hearing of the Jury and Reporter, off

the record.)

THE COURT: | think | had covered it, but to make sure

that you understand, it's been requested that | indicate to you

that if you find that the Defense of Self-defense has been

proven then you should return a verdict of not guilty on the

Aggravated Murder, and all the lesser included charges, which

would constitute an acquittal.

All right, Mr. Fanelly?

MR. FANELLY: Thank you, your Honor.

THE COURT: Okay. You may now retire.

[349]

There's achance you wouldn't reach a verdict by noon, and the

law requires that once you get a criminal case that you must—that

you cannot be separated during the lunch hour, which means

that you will have to go to lunch in a body under the charge of

the Bailiff and the Jury Commissioner. So I'll have the Bailiff

check in with you about 11:30 or so and see whether you're

going to need arrangements for lunch or not.

So with that you can retire and commence your delibera-

tions.

(Whereupon, at 10:56 a.m., the Jury retired to begin de-

liberations.)

JA48

(Whereupon, the following was had in open court, out of

the presence of the Jury:)

THE COURT: Let the record show that when the Court

invited Counsel to approach the bench for objections to the

Charge, Mr. Fanelly, out of the hearing of the Jury, made an

objection, which | will let you now state into the record.

MR. FANELLY: Yes. Thank you, your Honor. Off the

record, a minute.

[350]

(Discussion off the record.)

MR. FANELLY: First of all, may | say for the record that

I'm going to object to the entire Charge in its entirety, but for

one purpose. We are operating now under a new code in which

many things are uncertain. So for the preservation of the

record at this time, in view of the fact that this is something

new, and particularly going to the elements of purposely, with

prior calculation and design, | will at this time on the elements

of that Aggravated Murder, Murder and Voluntary Manslaughter,

object to the Charge in its entirety.

| specifically—oh. That's in generalities.

Now, specifically, | object to the Charge of Voluntary

Manslaughter in that if you read in the code, I'mcertain that the

way the Court dictated his Charge under Voluntary Man-

slaughter, that we as lawyers and the Court understands the

same, but we must take into consideration that the Charge is

given to lay people.

The code puts it in this way: “Even if the death was purposely

caused, the Defendant may be entitled to a Charge on the

lesser included offense

(351)

of Voluntary Manslaughter, where he was under emotional

stress, because proof of purpose also includes proof of

knowledge.” Under 2901.22.

In other words, there is such a gray area today. In the old

days, under Manslaughter, it was defined as hot blood. We no

longer have that Charge, so that Murder is the mere purpose-

fully taking of a life, which is intentional.

JA49

Now, Voluntary Manslaughter is a gray area under our

new code, so that even though it may be purposely, which

could be Murder or could be Voluntary Manslaughter, | believe

that the way the Court gave his Charge, it was in reverse and

not quite as understandable to a lay individual, in that if the

Court at my request would have again said, even if the death

was purposely caused—which is the element and the only

element of Murder—the Defendant may be entitled to a Charge

on the lesser included offense of Voluntary Manslaughter,

where he was under extreme emotional stress.

in other words, the Court saw fit to grant that Charge, soit's

no longer “may”, it's mandatory. So that the Court should have

given it in this fashion, as it's set out in the code, but perhaps

elucidate to the Jury as to the fact that although

[352]

in Murder all that is required is the purposeful killing, however

if it's done under emotional strain or stress—extreme emotional

strain or stress—it is elucidating on the point that | hope to try

to make today.

Now, your Honor, do you have your Charge there? In

other words, to finish, the Court did touch upon it, but in a

reverse fashion which would not be as greatly understood by a

lay individual as His Honor or | or the Prosecutor would under-

stand.

For example, the Court in his Charge started out under

Voluntary Manslaughter, which was the first comment, and

then he goes on into emotional stress. The Court said as

follows: The emotional stress or condition must be extreme. |

don't argue with that; that is, that it must be great in nature and

intensity, and it must exist at the time of the act or acts that

caused the death of the decedent. However, to reduce a

purposeful Murder to Voluntary Manslaughter—now he's

covering it at this point—the extreme emotional stress must be

brought on by a serious provocation. Now he has in that way

said it but in reverse, so that if it would be said as the Code fits

it, that even though the act—or the cause of death was purposely,

if it was done

(353)

under emotional strain and stress, extreme stress, then, of

course, it should be considered as Manslaughter.

So that although he has touched upon it it is much more

clear and understandable to a lay individual as set forth in the

Code, and | would be under the impression that we should

JASO

follow the definition as set forth under the Code, particularly

under the new provision.

Excuse me. Off the record a minute.

MR. ZUCH: Well, for the record, | would like to say that

the State has no idea what Mr. Fanelly is talking about.

THE COURT: | think when you say the Code, you're

not reading from the Code, you're reading from some Comment

on—

MR. ZUCH: The only way the State would like to respond

to that, your Honor, is that that is a declaration of what in fact

are lesser included offenses. That's not the text of the Statute,

that's an annotation in a book that's put out by the Program of

Continuing Legal Education.

What that paragraph that was read by Mr. Fanelly means, |

believe, is whether or not to in fact give the Charge of Voluntary

Manslaughter or not. It

[354]

certainly doesn't change the culpable mental state, if in fact

that's what he's referring to.

THE COURT: | think what you're saying is, | did it but

not as well as you could have done it.

MR. FANELLY: No, not that at all. This is something

new, and I'm not even sure, but | felt that the way the book here

explained it it was a little more clear, because, you see, Murder

is merely the purposeful taking of a life. And yet it can still be

purposeful, and if under extreme emotional stress it would be

considered Voluntary Manslaughter.

THE COURT: You may have your exception.

MR. FANELLY: Thank you.

MR. ZUCH: Does the Defense Counsel have any other

objection to any other portion of the Charge?

MR. FANELLY: | have in generalities made an objection

to the Charge insofar as the new Code, pertaining to Aggravated

Murder, Murder and Voluntary Manslaughter, because it’s so

new, in generalities, to protect the record.

THE COURT: Okay.

MR. FANELLY: Thank you, your Honor.

JAS1

State v. Hughes (CA Summit) #CA 7717

STATE OF OHIO

Summit County

STATE OF OHIO

Plaintiff-Appellee

Vv.

HOWARD HUGHES

Defendant-Appellant

IN THE COURT OF APPEALS

NINTH JUDICIAL DISTRICT

(September Term, 1975).

C.A. No. 7717

APPEAL FROM JUDGMENT

ENTERED IN THE COURT

OF COMMON PLEAS OF

SUMMIT COUNTY, OHIO

CASE NO. 74 11 1206

DECISION AND JOURNAL ENTRY

DATED: September 24, 1975.

This cause was heard September 9, 1975, upon the record

in the trial court and the briefs. It was submitted to the Court

with out oral argument. The assignments of error were reviewed

by the court and the following disposition made:

BRENNEMAN, J.

Defendant was charged with aggravated murder, R.C.

2903.01. A plea of not guilty was entered and the cause was

tried to a jury. A verdict of not guilty of aggravated murder, not

guilty of murder, but guilty of the lesser included offense of

voluntary manslaughter was returned. A new trial was denied,

and this appeal was thereafter timely filed.

JA5S2

These errors are claimed in support of this appeal:

“4. The jury's verdict was against the weight of the evidence.

“2. The prosecutor committed various acts of misconduct

and not only in the trial of this cause but in his final

argument.

“3. The court abused its discretion by its refusal to declare

a mistrial due to the misconduct of the prosecutor.

in the afternoon of October 26, 1974, one Marie Hubbard,

her four children, and one Roger Logan, Lemuel Johnson and

Howard Hughes were all congregated at the home of Minnie

Jackson. In addition to conversation, the record shows the

defendant Hughes was argumentative concerning the relation-

ship between Lemuel Johnson and Marie Hubbard in that the

defendant Hughes was formerly a boy friend of Marie Hubbard,

and that for some time prior to October 26, 1974, Lemuel

Johnson had been keeping company with Marie.

As the conversation progressed, Hughes became more

angry and aggressive in his language concerning Lemuel John-

son and Marie Hubbard. One of the children noticed a gun in

Hughes’ coat pocket. Johnson was not armed. The evidence

established that Johnson sought to make peace, and extended

his hand to Hughes in a gesture of friendhip saying, “Let's

shake and be friends.” Hughes refused, and thereupon fired

two shots at Johnson, killing him.

At trial Hughes claimed self-defense.

The jury had sufficient evidence before it, including the

testimony of the defendant, who testified to support his own

defense. Little evidence, other than defendant's testimony, is

shown of any aggressive overt act by decedent compelling or

even inciting the defendant to the violent action he took of

gunning down and killing Johnson. We reject Error No. 1. The

jury has a right, and did find against defendant's claim of self-

defense. See State v. Cliff, 19 Ohio St. 2d 31.

Defendant, through another witness placed his character

in issue by the introduction of testimony as to his good character

and peaceful conduct generally. in each instance, the prose-

cution was not permitted on cross-examination to go beyond

the conviction of prior violations of law. All special jury

instructions requested by the defendant in this area were

granted, including the granting of all objections advanced by

the defendant during trial. We find no specific acts or conduct

of the prosecution, during trial or in final argument, prejudicial

to the Appellant. See State v. Elliot, 25 Ohio St. 2d 249.

JAS3

For this reason, we reject Errors No. 2 and No. 3 as both

are cumulative as to each other.

Our examination of the testimony of the witnesses in this

cause convinces us that the generosity of the jury finding the

defendant guilty of the lesser included offense of voluntary

manslaughter, as opposed to murder, is most difficult to

understand. We do not attempt to reconcile the verdict, except

to determine if the trial was free from prejudicial error, and we

find no error of that character.

Judgment Affirmed.

JA5S4

The court finds that there was reasonable grounds for this

appeal.

It is ordered that a special mandate issue out of this court,

directing the Court of Common Pieas to carry this judgment

into execution. A certified copy of this journal entry shall

constitute the mandate, pursuant to Rule 27 of the Rules of

Appellate Procedure.

Ten days from the date hereof, this document shall constitute

the journal entry of judgment, and it shall be file stamped by

the Clerk of Court of Appeals, at which time the period for

review shall begin to run. Appellate Rule 22(E).

Exceptions.

WILLIAM H. VICTOR

Presiding Judge

—For the Court—

VICTOR, P.J. and

MAHONEY, J. CONCUR.

APPEARANCES:

STEPHAN GABALAC, Summit County Prosecutor, (Frederic

L. Zuch, Asst. Prosecutor), 53 East Center Street, Akron, Ohio

44308, For Plaintiff-Appellee.

ANGELO A. FANELLY, Attorney at Law, 930 Centran Building,

Akron, Ohio 44308, for Dependant-Appeliant.

JA5S

State v. Hughes (Ohio Supreme) #75-1026

THE SUPREME COURT OF THE STATE OF OHIO

THE STATE OF OHIO,

CITY OF COLUMBUS.

THE STATE OF OHIO,

Appellee,

vs.

HOWARD HUGHES,

Appellant.

1976 Term

To wit: March 19, 1976

No. 75-1026

MOTION FOR LEAVE TO APPEAL

FROM THE COURT OF APPEALS

for Summit County

It is ordered by the Court that this motion is overruled.

COSTS:

Motion Fee, $20.00, paid by Affidavit of Poverty

|, Thomas L. Startzman, Clerk of the Supreme Court of

Ohio, certify that the foregoing entry was correctly copied

from the Journal of this Court.

JASE

State v. Hughes (Ohio Supreme)

THE SUPREME COURT OF OHIO

THE STATE OF OHIO,

CITY OF COLUMBUS.

THE STATE OF OHIO,

Appeliee.

vs.

HOWARD HUGHES,

Appellant.

1976 Term

To wit: March 19, 1976

No. 75-1026

APPEAL FROM THE COURT OF

APPEALS

for Summit County

#75-1026

This cause, here on appeal as of right from the Court of

Appeals for Summit County, was heard in the manner prescribed

by law, and, no motion to dismiss such appeal having been

filed, the Court sua sponte dismisses the appeal for the reason

that no substantial constitutional question exists herein.

It is further ordered that a copy of this entry be certified to

the Clerk of the Court of Appeals for Summit County for entry.

1, Thomas L. Startzman, Clerk of the Supreme Court of

Ohio, certify that the foregoing entry was correctly copied

from the Journal of this Court.

JA57

CERTIFICATE OF SERVICE

Pursuant to Rule 28.5(b), Rules of the Supreme Court, |

hereby certify that the requisite number of copies of the fore-

going Joint Appendix have been served on respondents Lincoln

isaac, Kenneth Bell, and Howard Hughes by forwarding such

copies to the offices of their respective counsel, James R.

Kingsley, 157 W. Main Street, Circleville, Ohio 43113 and Jay

McKirahan, Suite 330, 22 East Gay Street, Columbus, Ohio

43215, counsel for Isaac; Richard L. Aynes, Appellate Review

Office, School of Law, The University of Akron, Akron, Ohio

44325, counsel for Bell; and J. Dean Carro, Appellate Review

Office, School of Law, The University of Akron, Akron, Ohio

44325, counsel for Hughes, by U.S. Mail, postage paid, this

_... .. day of June, 1981. | further certify that all parties required

to be served have been so served. The respondents’ addresses

are Lincoln Isaac, 310 Ray Avenue, Circleville, Ohio 43113;

Kenneth Bell, #141-727, Marion Correctional Institution, P.O.

Box 57, Marion, Ohio 43302; Howard Hughes, c/o Beasley

Surles, 163 Rhodes Avenue, Akron, Ohio 44302.

SIMON B. KARAS

COUNSEL OF RECORD