Appendix — Charles Anderson, Warden v. Cornell Fuller

TABLE OF CONTENTS

Page

. Fuller v Anderson, .... F2d ....

(CAG, September 18, 1061) ...............0000 la

. District Court Memorandum Opinion and Order

Granting Writ (December 2, 1980) .............. 20a

3. Court of Appeals Order Denying the State’s Motion

to Modify Custody Order (January 23, 1981) .... 28a

. District Court Order Granting Bail

Pending Appeal (January 6, 1981) ............... 30a

. People v Fuller, 395 Mich 451 (1975) ............ 3la

. People v Fuller, 44 Mich App 297 (1973) ........ 40a

. State Court Trial Transcript Excerpt, pp 421-423 .. 43a

. State Trial Court Order Denying Supplemental

ID GRE FU TD occcvcccnccecercccccasenss 45a

Fuller v Anderson, .... F2d .... (CA6 1981) la

(Slip Opinion)

No. 80-1808

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CORNELL FULLER, ON APPEAL from

Petitioner-Appellee, the United States

v. District Court for

CHARLES E. ANDERSON, crip ns

Respondent-Appellant. — oe

Decided and Filed September 18, 1981.

Before: EDWARDS, Chief Judge, WEICK and KEITH,

Circuit Judges.

KEITH, Circuit Judge, delivered the opinion of the Court,

in which EDWARDS, Chief Judge, joined. WEICK, Circuit

Judge, (pp. 10-16) filed a separate dissenting opinion.

KEITH, Circuit Judge. This is an appeal by the State of

Michigan from a judgment of the United States District

Court for the Eastern District of Michigan granting a pe-

tition for a writ of habeas corpus. The district court granted

the writ because it found that the petitioner's jury verdict

of felony murder was not supported by sufficient evidence.

For the reasons discussed below, we affirm the judgment of

Chief Judge John Feikens.

2a Fuller v Anderson, .... F2d .... (CA6 1981)

(Slip Opinion)

[2] I

Petitioner Cornell Fuller was convicted by a jury of felony

murder in the Recorder's Court of Detroit. Michigan.!!! He

was sentenced to seve life in prison and has served at least

nine years of that sentence.

On the morning of May 18, 1970 a fire destroyed the home

of Safronia Turner at 1554 Lemay in Detroit. Mrs. Turner

and several children managed to escape the blaze, but two

of Mrs. Turner's children—Ruth and Regina—were killed

in the fire. A fire department investigation revealed that

the fire was apparently caused by a “Molotov cocktail” de-

liberately thrown into the rear of the Turner residence. Pe-

titioner Fuller was arrested and charged with first degree

murder in violation of 2 MCLA 750.316.1271 The State alleged,

as the underlying felony, that Fuller aided and abetted

Zerious Meadows in deliberately setting!3] the fire at the

Turner residence.

11)

This conviction was affirmed by the Michigan Court of Appeals,

People v. Fuller, 44 Mich. App. 297 (1973), and by a divided Michi-

gan Supreme Court, People v. Fuller, 395 Mich. 451 (1975).

[2]

MCLA 750.316; MSA 28.548 provides:

First Degree Murder—All murder which shall be perpetrated by

means of poison, or lying in wait, or any other kind of willful,

deliberate and premeditated killing, or which shall be committed

in the perpetration, or attempt to perpetrate any arson, rape,

robbery or burglary, shall be murder of the first degree, and shall

be punished by solitary confinement at hard labor in the state

prison for life.

[3]

MCLA 750.72 provides that specific intent is required in order to

commit arson:

Fuller v Anderson, .... F2d .... (CA6 1981) 3a

(Slip Opinion)

[3]

The following evidence was introduced at the Fuller trial.

Marshall Robinson, Captain of the Detroit Fire Department,

testified that a “Molotov cocktail” appeared to have caused

the fire. Robert Kuntz, a chemist with the Detroit Fire

Department, testified that gasoline was present on portions

of the house siding.

Helen Brownlee, who lived next-door to the Turner resi-

dence, testified that on the morning of May 18 she saw five

or six boys together in a group in front of the Turner home.

She testified that Cornell Fuller was one of the boys. She

saw Fuller and one or two other boys go through the front

gate of the Turner yard. They went to the rear of the

Turner residence. At that time, she saw one of the boys,

who was still in front, throw something. She yelled at the

boys because she thought they had thrown something at

her house. She ran out of her house, onto the front porch,

and saw that the Turner house was on fire.

Fourteen-year old Jeffrey Coleman, a friend of one of the

Turner children, testified that on the morning of the 18th he

left his house at eight o'clock to head for the Turner's resi-

dence. When he went through the backyard of a neighbor

Any person who wilfully or maliciously burns any dwelling

house, either occupied or unoccupied, or the contents thereof,

whether owned by himself or another, or any building within

the curtilage of such dwelling house, or the contents thereof, shall

be guilty of a felony, punishable by imprisonment in the state

prison not more than 20 years.

MCLA 767.39; MSA 28.769 provides:

Every person concerned in the commission of an offense, whether

he directly commits the act constituting the offense or procures,

counsels, aids, or abets in its commission may hereafter be pros-

ecuted, indicted, tried and on conviction shall be punished as if

he had directly committed such offense.

4a Fuller v Anderson, .... F2d .... (CA6 1981)

(Slip Opinion)

and approached the Turner's residence from the rear, he saw

Zerious Meadows on the Turner's back porch. He saw Cornell

Fuller standing inside the backyard by the gate. Coleman

testified that he saw Zerious Meadows ignite a rag that was

stuffed inside a bottle. Meadows then threw the bottle

against the Turner’s house, starting a fire. He saw Meadows

then strike a match and start another fire. Jefferey Coleman

also testified as follows:

Q. Now, after he had struck the match and started

the second fire what happened then?

A. Weil, he had jumped off the porch and then they

ran down the alley towards Kercheval.

(. When you say they ran down the alley, who ran

down the alley?

[4]

A. Zerious and Cornell.

Towards Kercheval?

A. Yes, sir.

Q. During the time that Zerious Meadows was throw-

ing the bottle against the side of the house or against

the side of the porch and lighting the match which set—

started the second fire did you see what Cornell Fuller

was doing?

A. He was standing by the gate, looking around.

Q. When you say he was looking around what, ex-

actly, was he doing?

A. I guess he was watching out for Zerious—he had

looked to Jefferson and he looked back towards Ker-

cheval.

Fuller v Anderson, .... F2d .... (CA6 1981) 5a

(Slip Opinion)

Q. He looked towards Jefferson and looked back to-

wards Kercheval?

A. Yes, sir.

Q. Did he do that once or more than once?

A. He did it more than once.

Q. He did it more than once—how many times—

THE COURT: Was this the alley gate or the gate

toward the front of the house?

A. It was the alley gate.

Q. How many times would you say Cornell Fuller

looked towards Jefferson and then looked back towards

Kercheval?

A. I wouldn't know.

Q. But it was more than once; is that correct?

A. Yes, sir.

Q. Was it more than twice?

[5]

A. Yes, sir.

Now, during the time this was taking place, Jef-

ferey, did you hear any words spoken between Zerious

and Cornell?

A. No.

Q. Did you say anything to them?

A.

No.

6a Fuller v Anderson, .... F2d .... (CA6 1981)

(Slip Opinion)

Q. Now, after—strike that, please—after the second

fire began, you testified that Zerious and Cornell left

the backyard; is that correct?

A. Yes, sir.

Q. Did they enter the alley?

A. Yes, sir.

Q. Did they enter the alley through the gate that

Cornell Fuller was standing by?

A. Yes, sir.

Q. And then they started running; is that correct?

A. Yes, sir.

Q. Were they running together or separately, Jefferey?

A. Together.

Q. And they were running towards Kercheval; is that

correct?

A. Yes, sir.

App. 83-86.

On cross-examination, young Coleman testified that he at-

tended “special school”, having attended regular public schools

only until the third grade. At the time of trial, young Cole-

man resided in a youth home because, as he stated, he had

run away from home. Although Coleman testified that he

approached the Turner residence from the rear and then saw

Fuller v Anderson, .... F2d .... (CA6 1981) 7a

(Slip Opinion)

[6]

the events as related in his testimony quoted above, he may

have been one of the boys who were huddled in front of

the Turner house shortly before the fire. Prosecution witness

Helen Brownlee testified that she thought a “Jefferey” was

with the group of boys. (transcript at 151, 164, 168). In

addition, it is undisputed that Coleman failed to warn the

Turner's that their house was on fire even through he was at

the scene at the time the fire began. Further, Coleman had

a fight with one of the Turner children about a month before

the fire (transcript at 195-6 and 235), and investigators at

least initially were of the view that Coleman was one of the

perpetrators of the arson.[4]

Gary Martin testified that on the morning of the fire

Jefferey Coleman stopped by his house. Martin looked out

his window, after Coleman left, and saw Cornell Fuller,

Zerious Meadows and four other boys in the alley near the

Turner house. A few minutes later, he saw the boys again

when they came through a yard running toward the alley.

Fuller and Meadows were still in the group. Finally, Jefierey

Coleman returned to Martin’s residence and said that the

Turner house was on fire.

Detective Sergeant John Roffey testified that he interviewed

Mrs. Brownlee the day after the fire. She did not identify

[4]

At the trial of Zerious Meadows, Jeffrey Coleman testified that after

the fire he was arrested, taken to a local police precinct, questioned about

his involvement and taken to the juvenile home. See People v. Meadows,

Recorder's Court No. 71-01558, trial transcript pp. 257-58.

In the instant habeas petition, Fuller alleged that the failure of the

prosecutor to disclose the above facts during Fuller's trial, and the

failure of the prosecutor to disclose Coleman’s juvenile record, deprived

Fuller of due process of law. Judge Feikens in granting the petition

found it unnecessary to reach this issue.

8a Fuller v Anderson, .... F2d .... (CA6 1981)

(Slip Opinion)

anyone at that time as being involved in the fire, and Detec-

tive Roffey testified that her in-court testimony, implicating

Fuller, was a surprise to him.

The lone witness for the defense was Hattie Fuller, the

mother of the petitioner. She testified that on the morning

of the fire her son was at home asleep until about 9:00 a.m.

Il [7]

The issue on appeal is whether the foregoing facts are

sufficient to sustain the murder conviction of Cornell Fuller.

In In re Winship, 397 U.S. 358, 364 (1970), the Supreme Court

held that the due process clause requires that all criminal

convictions must be based upon proof beyond a reasonable

doubt. In Jackson v. Virginia, 443, U.S. 307 (1979), the Su-

preme Court held that this standard has application in the

law of habeas corpus:

[I}jn a challenge to a state criminal conviction brought

under 28 U.S.C. § 2254... the applicant is entitled

to habeas corpus relief if it is found that upen the record

evidence adduced at the trial no rational t:ier of fact

could have found proof of guilt beyond a reasonable

doubt. Id. at 324.

In applying this standard in habeas corpus cases, the

federal courts must review the evidence in the light most

favorable to the prosecution. The petition must be denied

if “any rational trier of fact could have found the essen-

tial elements of the crime beyond a reasonable doubt.” Id.

at 39. See also Moore v. Duckworth, .... U.S. .... 99

S.Ct. 3088 (1979); Brewer v. Overberg, 624 F.2d 51 (6th Cir.

1980), cert. denied, .... U.S. ...., 101 S.Ct. 873 (1981);

Davis v. Campbell, 608 F.2d 317 (8th Cir. 1979). The district

Fuller v Anderson, .... F2d .... (CA6 1981) 9a

(Slip Opinion)

court recognized that conflicts in the evidence must be resolved

in favor of the State, but nevertheless found that the evi-

dence introduced at trial was too meager to support the

petitioner's conviction. We agree with the district court's

conclusion.

Under Jackson v. Virginia, we must examine the sufficiency

of the evidence here in support of each element of the pe-

titioner’s offense. Fuller was convicted of felony murder in

Michigan. A felony murder conviction under MCLA 750.316;

MSA 28.548 requires proof of each element of the underly-

[8]

ing felony. People vy. Allen, 39 Mich. App. 483, 494 (1972)

(Levin, J., dissenting), adopted, 390 Mich. 353 (1973). Thus,

Fuller could only be convicted under this statuie if the jury

could rationally have found him guilty of attempted arson

beyond a reasonable doubt.!51

In Michigan, in order to establish arson, the prosecution

must show that a person willfully and maliciously burned a

dwelling house. See note 3 supra. In order to prove attempted

arson the prosecution must show that the aider and abettor,

“if not himself possessed of the requisite specific intent, . . .

[at least] rendered his aid and assistance to the principal actor

with the knowledge that the principal himself possessed the

intent necessary to be guilty of the crime.” People v. Rigsby,

15]

People v. Aaron, 409 Mich. 672, 733 (1980), abolished the felony-

murder rule in Michigan. After this ruling the category of malice

arising from the intent to commit a felony was struck down. The

Michigan Supreme Court held that malice would have to be independ-

ently proven for each element of an alleged offense. However, this

decision has prospective effect only, id. at 734, and has no effect on

petitioner's case.

10a Fuller v Anderson, .... F2d .... (CA6 1981)

(Slip Opinion)

92 Mich. App. 95, 97 (1979). See also People v. Gordon,

60 Mich. App. 95, 97 (1979). See also People v. Gordon,

60 Mich. App. 412 (1975); People v. Poplar, 20 Mich. App.

132 (1969). The Michigan Supreme Court has held:

Mere presence, even with knowledge that an offense

is about to be committed or is being committed, is not

enough to make a person an aider or abetter or a princi-

pal in the second degree nor is mere mental approval,

sufficient, nor passive acquiesence or consent.

People v. Burrel, 253 Mich. 321, 323 (1931) (quoting 1 Cyc.

Crim. Law [Brill] § 233); People v. Casper, 25 Mich. App.

1, 5 (1970). In other words, the accused must take some

conscious action designed to make the criminal venture suc-

ceed in order to be guilty of aiding and abetting. People v.

Cooper, 326 Mich. 514 (1950); People v. Gordon, 60 Mich.

App. 412, 418 (1975).

[9]

The district court correctly concluded that the evidence

introduced at petitioner’s trial only showed that on the morn-

ing of May 18 Fuller was present at the Turner residence

along with Zerious Meadows and the other boys. The evidence

showed that Fuller looked around while Meadows started the

fires. But as Judge Feikens pointed out:

This suggests, as Jefferey Coleman surmised, that the

petitioner may have been acting as a lookout for Meadows.

It is reasonable speculation. But could a rational jury

find it to be proof beyond a reasonable doubt? No evi-

dence was presented that the petitioner intended to burn

the Turner home. The evidence that he knew that Zeri-

ous Meadows planned to do is simply too meager to sup-

port conviction. (emphasis in original )

Fuller v Anderson, .... F2d .... (CA6 1981) lla

(Slip Opinion)

We note that there was no evidence at trial that the “Molo-

tov cocktail” which started the fire was prepared in advance,

or, if it was, whether any of the boys other than Zerious

Meadows knew that the “Molotov cocktail” existed. There

was of course no evidence that any of the boys, except Fuller,

participated in the manufacture of the “Molotov cocktail”.

Moreover, there was no direct evidence that the youths

approached the Turner house with intent to set the house

on fire. Assuming Zerious Meadows had this intent, how-

ever, there was no evidence that it was shared by petitioner

or the other boys.

The only direct evidence supporting the State’s contention

that Fuller “stood guard and acted as a lookout” for Zerious

Meadows was Jefferey Coleman’s testimony that over a period

of several minutes Fuller turned his head from side to side

“more than twice”. We agree with the district court that this

is insufficient to establish beyond a reasonable doubt that

Fuller took conscious action to aid Meadows’ commission of

arson.

Accordingly, the judgment of the district court granting

the petition for habeas corpus is affirmed.

[10]

WEICK, Circuit Judge, dissenting: I respectfully dissent.

Petitioner Fuller was convicted by a jury in the Recorder's

Court of Detroit, Michigan, as an aider and abettor of the

arson murder of one of two young girls who died in the

fire. His defense was an alibi and in his motion for judg-

ment of acquittal filed after the verdict, he challenged the

sufficiency of the evidence. The presiding judge of the Re-

corder’s Court denied his motion. In his opinion and order

12a Fuller v Anderson, .... F2d .... (CA6 1981)

(Slip Opinion)

denying Fuller's motion for a new trial, the Judge of the

Recorder's Court stated, inier alia;

It was not contended that the defendant was the one

who threw the fire bomb which burned the house, but

the evidence established that he was the look-out while

Zerious Meadows (subsequently tried in a separate case

on this same charge) threw the fire bomb and set a

fire by pouring gasoline on the dwelling in question.

Defense counsel in his Motion for a New Trial makes

much of the fact that Cornell Fuller was only seen to

run to the alley of the premises here involved and look

up and down the alley, but the evidence also indicated

that he was the look-out and, therefore, an accessory to

the crime, equally chargeable as a principal under Sec-

tion 767.26, Compiled Laws, 1945.

Upon appeal to the Michigan Court of Appeals, the court

held, in a unanimous opinion in People vy. Fuller, 44 Mich.

App. 297 (1973):

1. Homicide—Murder—Evidence—Inferences.

A jury could reasonably infer that the defendant was

a party to the offense of aiding and abetting in the com-

mission of murder where he was shown to have come

to the scene in the company of the principal, stood at

a gate near the alley behind the house while the principal

lit and threw a Molotov cocktail, looked up and down

the alley more than once, and ran from the scene with

the principal.

(11]

Presiding Judge Quinn, who wrote the opinion for the court

stated:

Fuller v Anderson, .... F2d .... (CA6 1981) 13a

(Slip Opinion)

The first issue is a weight of the evidence question.

Our inquiry is, was evidence produced which, if be-

lieved, could certainly lead to a reasonable inference

that defendant was a party to the offense? People v.

Ford, 19 Mich. App. 519 (1969). There was evidence

that defendant came to the scene with Meadows and

others; that defendant stood at a gate near the alley

behind the house while Meadows lit and threw the Molo-

tov cocktail; that during this time, defendant looked up

and down the alley more than once; and that defendant

ran from the scene with Meadows. From these facts a

jury could reasonably infer that defendant was a party

to the offense.

The Supreme Court of Michigan in People v. Fuller, 395

Michigan 451 (1975), affirmed the conviction in a split de-

cision holding:

Cornell Fuller was convicted by a jury in Recorder's

Court of Detroit, Thomas L. Poindexter, J., of first-de-

gree murder. The prosecution contended that he aided

and abetted, by acting as a lookout, in an arson which

resulted in the death of two girls. The Court of Appeals,

Quinn, P. J., and V. J. Brennan and O'Hara, JJ., affirmed

(Docket No. 11308). Defendant appeals. Held:

1. A jury may believe or disbelieve, in whole or in

part, any of the evidence presented.

2. Evidence was presented which, if believed by the

jury, showed that the defendant acted as a lookout

for the arsonist.

l4a Fuller v Anderson, .... F2d .... (CA6 1981)

(Slip Opinion)

3. The jury determined that the prosecution had

negated every reasonable theory consistent with the

defendant's innocence of the crime chraged.

Conviction affirmed.

[12]

It is noteworthy that in affirming the conviction, the Su-

preme Court of Michigan held that the jury determined that

the prosecution had negated every reasonable theory con-

sistent with the defendant's innocence of the crime charged.

The Supreme Court of the United States held that this was

more than the constitutional requirement in Jackson v. Vir-

ginia, 443 U.S. 307, 326 (1979), citing Holland v. United

States, 348 U.S. 121, 140 (1954). In other words, the Michi-

gan Supreme Court in affirming the conviction applied a

standard of review more strict than the constitution requires

and petitioner received the benefit of this erroneous standard.

The decision of the Michigan Supreme C »urt is entitled to

great weight since it applied a standard of review more strict

than required by the constitution, Jackson v. Virginia, supra,

p. 326.

At his trial, petitioner's counsel did not object to any of

the instructions of the trial court to the jury. His sole defense

was alibi. In his opening statement to the jury, counsel for

Fuller stated:

As indicated by the Court, he (Fuller) is not named

as the party who threw the incendiary device against

this building; he was merely named as a party who was

standing by, but you must be convinced as to his identity;

that he was, in fact, the party that was an accessory to

this crime and standing by.

Fuller v Anderson, .... F2d .... (CA6 1981) 15a

(Slip Opinion)

Now, on behalf of the defendant, we will produce wit-

nesses that will establish his whereabouts at the time of

this incident. They will testify that he was at a place

other than the home of the Taylor's on May 18, 1970—

THE COURT: I think it is the Turner home, Mr.

Reilly.

MR. REILLY: Sorry, your Honor, the home of the

Turner’s—this incident occurred early in the morning.

The witnesses will testify that the defendant was in bed

—home in bed asleep.

[13]

Now, the Prosecutor has a different approach to this;

it is a question of who you believe—who is telling the

truth which is very often a different task to decide but

I think the defense will clearly indicate that the defendant

was, in fact, in bed the Morning that this incident oc-

curred.

Aiding and abetting—aided and abetted—the legal con-

cept, as the Court indicated, that would mean somebody

that is a party to an incident—I think you are all familiar

with that. You must be firmly convinced that the de-

fendant was the party who aided and abetted in this

incident. There is no question here as to the fact that

the incident occurred and the deaths were a result of

this incident and the Prosecution will show that the burn-

ing, in fact, did take place and the deaths were a result

of the burning—the burning emanated from an incendiary

device, commonly known as a Molotov cocktail. Tes-

timony will be given with regard to a chemical analysis

as to what happened. That is not the issue; the issue is

the tragic incident, a very sordid situation where the

16a Fuller v Anderson, .... F2d .... (CA6 1981)

(Slip Opinion)

deaths were pitiful. There is no question about that.

The question is whether or not the defendant, in fact,

was the party standing at the scene. That is the only

question that you have to find—the fact you have to

determine.

It is indeed conceivable that the witnesses that will

testify that they saw the defendant at the scene could

have been mistaken. I want you to consider that also.

Fuller's only witness as to the alibi was his mother who tes-

tified that petitioner was home sleeping on his bed at the

time the arson was committed. The only trouble with the

mother’s testimony was that it conflicted with the testimony

of three other witnesses. Fuller did not testify although he

was present in court at the trial. It was solely for the jury to

decide who was telling the truth.

[14]

The decision of the Supreme Court of Michigan is final

that Fuller’s conviction was in conformity with the law of the

State of Michigan and it is binding on federal courts with

respect not only to the factual findings but also as to the

law of the State. 28 U.S.C. § 2254(d); Sumner v. Mata, 101

S.Ct. 764 (1981).

There was abundant proof offered by the state to support

the finding of the jury that Fuller not only accompanied the

arsonist to the dwelling set on fire, but also acted as a look-

out. After the dwelling had been set on fire, the arsonist and

Fuller ran away together. If Fuller was innocent of any

wrongdoing, why did he run away?

Every element of the crime of aiding and abetting the

arsonist was proven beyond a reasonable doubt as was held

Fuller v Anderson, .... F2d .... (CA6 1981) 17a

(Slip Opinion)

by the Supreme Court of Michigan and is in conformity with

the decision of the Supreme Court of the United States in

In re Winship, 397 U.S. 358 (1970). In a habeas corpus

proceeding, the federal courts do not have jurisdiction for

direct appellate review. In almost every criminal trial in the

state, as well as federal courts, the evidence is conflicting and

must be resolved. In a collateral proceeding as was held

by the Supreme Court in Jackson v. Virginia, supra, the evi-

dence must be viewed in the light most favorable to the prose-

cution and the habeas petition denied if “any rational trier

of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Id. at 319. This standard ap-

plies retroactively. Pilon v. Bordenkircher, 444 U.S. 1 (1979).

The standard was incorrectly applied by the district court

when it granted the writ.

’ With the abundance of evidence in the present case, to-

gether with the inferences properly deducible therefrom, I

submit that the jury did not act irrationally in finding the

defendant Fuller guilty as an aider and abettor, nor did the

trial judge in denying the motion for judgment of acquittal

and in sentencing the defendant, nor did the three judges

[15]

of the Michigan Court of Appeals in affirming the judgment

of conviction. Nor did the majority of the judges of the Su-

preme Court of Michigan in affirming the judgment of the

Michigan Court of Appeals.

I submit again that the federal courts in habeas proceed-

ings are bound by the factual findings of the state courts.

We are deluged with habeas corpus proceedings, most of

which involve the issue as to the sufficiency of the evidence.

The rule formerly was the no evidence standard which au-

thorized collateral intervention only where there was no evi-

18a Fuller v Anderson, .... F2d .... (CAG 1981)

(Slip Opinion)

dence at all to support an important element of the crime.

The no evidence standard was modified to the “rational trier

of fact” standard, Jackson v. Virginia, supra, but this new

standard has not stemmed the tide which appears to be in-

creasing and has added to the confusion.!"1

{1}

Footnote 7 in Jackson v. Virginia states:

And the Court of Appeals for the Sixth Circuit recently rec-

ognized the possible impact of Winship on federal habeas corpus

in a case in which it held that “a rational trier of fact could

have found the defendant . . . guilty beyond a reasonable doubt.”

Spruytte v. Koehler, affirmance order, 590 F. 2d 335. An even

more recent case in that court provoked a lively debate among

three of its members regarding the effect of Winship upon federal

habeas corpus. The writ was granted in that case, even though

the trial record concededly contained “some evidence” of the

applicant’s guilt. See Speigner v. Jago, 603 F. 2d 1208 (CA6).

In Speigner, the victim was kidnapped, robbed and brutally beaten

and shot with a pistol and shotgun by the two criminals, Roger Scott

and Henry Speigner, alias Frank Mathews. He was shot in the chest

with a pistol and in the back of the head and neck with a shotgun.

The two criminals then stole the victim’s automobile and dumped his

body in a street in Cleveland and then proceeded directly to Youngs-

town, Ohio, where they were arrested later in the same day by state

police. Scott told the police that he rented the automobile from the vic-

tim for $15.00. The back seat of the automobile was covered with the

victim’s type blood and the automobile was damaged. Speigner when

arrested was seated in the passenger's seat. The shotgun was under his

seat. Speigner was convicted of murder by a jury in the state court,

which was affirmed by the state appellate court and leave to appeal was

denied by the Supreme Court of Ohio on the ground that there was

no debatable constitutional question. The district court granted a writ

of habeas corpus which the court affirmed with a dissent, as above

indicated, and Speigner was set free.

Speigner’s cohort Scott was likewise convicted in the state court which

conviction was affirmed by the state appellate court and appeal denied

by the Supreme Court of Ohio. The district court granted Scott's ap-

plication for a writ of habeas corpus and upon appeal to this court the

judgment of the district court granting the writ of habeas corpus was

Fuller v Anderson, .... F2d .... (CA6 1981) 19a

(Slip Opinion)

[16]

I would reverse the district court's grant of the writ of

habeas corpus and remand for dismissal of the petition.

reversed, the cause remanded for further proceedings consistent with

the opinion, this court distinguishing Speigner on the basis of addi-

tional evidence linking Scott with the crime not shown in Speigner.

Perini v. Scott, ..... F.2d... (6th Cir. 1981, No. 80-3219). Thus

one murderer was set free by decision of this court while his confederate

was not granted relief.

Another case involving a criminal who was set free by habeas relief

in a split decision of this court. He had stabbed his former girlfriend

some 45 times with a pen knife permanently maiming her and had

been convicted in the state court of attempted murder. His conviction

had been affirmed by the Michigan Court of Appeals and leave to

appeal denied by the Michigan Supreme Court. The district court

denied habeas relief and we reversed for an alleged trivial error in

an unobjected to charge of the court to the jury. Burton v. Bergman,

No. 80-1497 (6th Cir.). Burton did not even testify and the victim's

testimony was unrefuted. The case should also have been affirmed on

the ground that the alleged error in the court's instruction, if any, was

harmless beyond a reasonable doubt. Chapman v. California, 386 U.S.

18 (1967).

20a District Court Opinion and Order

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CORNELL FULLER,

Petitioner

vs. Civil Action

CHARLES E. ANDERSON, No. 79-73171

Respondent

MEMORANDUM OPINION

Petitioner, Cornell Fuller, a prisoner at the State Prison of

Southern Michigan at Jackson, brings this application for a

writ of habeas corpus, pursuant to 28 U.S.C. § 2254. In 1970,

he was convicted of felony murder by a jury in the Recorder's

Court of the City of Detroit, M.C.L.A. § 750.316. His con.

viction was affirmed by the Michigan Court of Appeals and

by a divided Michigan Supreme Court. People v. Fuller, 44

Mich. App. 297 (1973), aff'd, 395 Mich. 451 (1975). Supreme

Court Justices Kavanagh and Levin dissented, recommending

reversal of the conviction for insufficient evidence. Petitioner

now urges that the Constitution requires me to adopt the views

of that dissent. 7

This issue is governed by Jackson v. Virginia, 443 U.S. 307

(1979), and In re Winship, 397 U.S. 358 (1970). In Winship

the Supreme Court held that due process requires a criminal

conviction must be based upon proof of guilt beyond a reason-

able doubt. In Jackson v. Virginia, the Court adapted this

standard to the context of habeas corpus:

[I]n a challenge to a state criminal conviction brought

under 28 U.S.C. § 2254... the applicant is entitled to

habeas corpus relief if it is found that upon the record

District Court Opinion and Order 2la

evidence adduced at the trial no rational trier of fact could

have found proof of guilt beyond a reasonable doubt.

443 U.S. at 324. The evidence must be reviewed in the light

most favorable to the prosecution, and the petition denied if

“any rational trier of fact could have found the essential ele-

ments of the crime beyond a reasonable doubt.” 443 U.S. at

319. This standard applies retroactively to cases decided be-

fore it was announced. E.g., Pilon v. Bordenkircher, 444 U.S.

1 (1979); Llewellyn v. Stynchcombe, 609 F.2d 194 (5th Cir.

19§0); Brinlee v. Crisp, 608 F.2d 839 (10th Cir. 1979), cert.

denied, 444 U.S. 1047 (1980); Davis v. Campbell, 608 F.2d 317

(8th Cir. 1979); Pate v. Wainwright, 607 F.2d 669 (5th Cir.

1979); Sims v. Hopper, 603 F.2d 581 (5th Cir. 1979).

Petitioner's conviction arose out of the deaths of two young

girls in a fire deliberately set in back of their home.{!] A

next-door neighbor saw the petitioner near the house with

several other teenage boys. (Tr. 131-133). No testimony even

suggested that the petitioner may have set the fire. All evi-

dence demonstrated that Zerious Meadows, 16, lit a white

cloth in a coke bottle, and threw it toward the house. (Tr. 210-

215). According to 14-year old Jeffrey Coleman, the petitioner

was standing by the back gate of the house when this occurred.

Coleman testified as follows:

Q: Now after he [Meadows] had struck the match

and started the second fire, what happened then?

A: Well, he had jumped off the porch and thea they

ran down the alley towards Kercheval.

Q: When you say then ran down the alley, who ran

down the alley?

A: Zerious and Cornell.

1)

Petitioner was charged with the murder of only one of the girls.

District Court Opinion and Order

Q: Towards Kercheval.

A: Yes, sir.

Q: During the time that Zerious Meadows was throw-

ing the bottle against—the side of the house or against

the side of the porch and lighting the match which set—

started the second fire did you see what Cornell Fuller

was doing?

A: He was still standing by the gate, looking around.

Q: When you say he was looking around what, exactly

was he doing?

A: I guess he was watching out for Zerious—he had

looked to Jefferson and he looked back towards Kercheval.

Q: He looked towards Jefferson and looked back to-

wards Kercheval?

A: Yes, sir.

Q: Did he do that once or more than once?

A: He did it more than once.

Q: He did it more than once—how many times—

THE COURT: Was this the alley gate or the gate

toward the front of the house?

A: It was the alley gate.

Q: How many times would you say Cornell Fuller

looked towards Jefferson anc then looked back towards

Kercheval?

A: I wouldn't know.

District Court Opinion and Order 23a

Q: But it was more than once; is that correct?

A: Yes, sir.

Q: Was it more than twice?

A: Yes, sir.

Now, during the time that this was taking place,

Jeffrey, did you hear any words spokea between Zerious

and Cornell?

A: No.

Q: Did you say anything to them?

A: No.

Q: Now, after—strike that, please—after the second

fire began, you testified that Zerious and Cornell left the

backyard; is that correct?

A: Yes, sir.

Q: Did they enter the alley?

A: Yes, sir.

Q: Did they enter the alley through the gate that

Cornell Fuller was standing by?

A: Yes, sir.

Q: And then they started running; is that correct?

A: Yes, sir.

Q: Were they running together or separately, Jeffrey?

A: Together.

24a District Court Opinion and Order

Q: And they were running towards Kercheval; is that

correct?

A: Yes, sir.

(Tr. 215-218). Another witness testified that he saw the peti-

tioner, Meadows, and four other teenagers walking together in

an alley, and later saw the petitioner and Meadows run

through a yard and down an alley. (Tr. 287-89; 292-96). This

testimony was all that linked the petitioner with the arson

and resulting deaths.

The prosecutor's theory was that the petitioner had acted

as a lookout, and had, therefore, aided and abetted the com-

mission of the felony. At the close of the State’s evidence,

Fuller moved for a directed verdict of acquittal. The judge

denied the motion, stating:

The question in this case is a close one. As I regard

the testimony the defendant's complicity in the case

depends almost completely on the fact that he was

present at the scene of the crime and that he was seen

going to it and seen running afterwards. There was very

meagre evidence to call him a look-out in this particular

case; however, the Court is cf the impression that we do

have a borderline prima facie case in this instance—a

border line prima facie case—and, accordingly, the court

will reserve its ruling on the motion for a directed verdict.

It seems to me that the testimony is the kind that would

be—that there would be a high probability that the jury

would return a verdict of not quilty in this case, but

where there is a prima facie case the Court cannot specu-

late on it—on the jury’s decision in the case and the

Court will, however, reserve a ruling on the motion.

District Court Opinion and Order 25a

(Tr. 324-325). The jury returned a verdict of guilty, and the

court thereupon denied a motion to overturn the verdict.

Petitioner received the mandatory life sentence for the crime.

Both the Michigan Court of Appeals and the Michigan

Supreme Court considered the issue of the sufficiency of the

evidence. The Supreme Court, in a 3-2 decision, held that the

evidence was sufficient to convict. The dissent argued

strongly that “there was simply too many inferences that

would have to be drawn, one piled upon another, to justify

conviction of this defendant.” People v. Fuller, supra, at 459.

To rule upon the petition, I must examine the sufficiency

of the evidence in support of each element of the offense. In

Michigan, conviction of felony murder requires proof of each

element of the felony. People v. Olsson, 56 Mich. App. 500,

504 (1974). Thus, petitioner could only be convicted under

M.C.L.A. § 750.316 if the jury could find him guilty of arson

beyond a reasonable doubt.

An arson conviction, under M.C.L.A. § 750.72, requires

that a person “wilfully or maliciously burn” a dwelling house.

Section 750.71 includes aidors and abettors within the scope

of this offense. In People v. Rigsby, 92 Mich. App. 95, 97

(1979), the Michigan Court of Appeals described the mental

state necessary to sustain the conviction of an aidor or abettor

as a principal. “The aidor and abettor of a specific intent

crime, if not possessed of the requisite specific intent, must

be shown to have rendered his aid and assistance to the

principal actor with the knowledge that the principal him-

self possessed the intent necessary to be guilty of the crime.”

Accord, People v. Gordon, 60 Mich. App. 412 (1975); People

v. Poplar, 20 Mich. App. 132 (1969). I must grant the peti-

tion unless the jury could rationally find, beyond a reasonable

doubt, that the petitioner either (1) intended wilfully or

maliciously to burn the Turner residence; or (2) knew that

26a District Court Opinion and Order

Zerious Meadows intended wilfully or maliciously to burn

the home.

The evidence outlined above cannot constitutionally sus-

tain a finding that the petitioner had either of the elements of

intent required by Michigar law. The evidence establishes

only that the petitioner was with Zerious Meadows and other

boys before and after the fires were started, and that the

petitioner was looking around while Meadows started them.

This suggests, as Jeffrey Coleman surmised, that the petitioner

may have been acting as a lookout for Meadows. It is reason-

able speculation. But could a rational jury find it to be proof

beyond a reasonable doubt? No evidence was presented that

the petitioner intended to burn the Turner home. The evidence

that he knew what Zerious Meadows planned to do is simply

too meager to support conviction. The state has failed to

meet the constitutional burden imposed by In re Winship, and

no rational jury could conclude that it succeeded.

The petitioner has raised three other issues, which I do

not need to decide.

For this reason, the petition for a writ of habeas corpus is

GRANTED.

John Feikens /s/

JOHN FEIKENS

CHIEF UNITED STATES

DISTRICT JUDGE

Dated: November 20, 1980

Detroit, Michigan

District Court Opinion and Order 27a

A TRUE COPY

CLERK U. S. DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

Bonnie Humm /s/

DEPUTY CLERK

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CORNELL FULLER,

Petitioner Civil Action

vs. No. 79-73171

CHARLES E. ANDERSON,

Respondent

ORDER GRANTING PETITION

FOR A WiIT OF HABEAS CORPUS

At a session of said Court held in the Federal Building at

Detroit on the 20th day of November, 1980

PRESENT: THE HONORABLE JOHN FEIKENS,

CHIEF UNITED STATES DISTRICT JUDGE

The matter having come before this Court on Petitioner's

application for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254, and the Court being fully advised in the premises, and

for the reasons set forth in the attached Memorandum Opinion.

28a District Court Opinion and Order

IT IS ORDERED that the petition for a writ of habeas

corpus be, and the same hereby is, GRANTED.

JOHN FEIKENS /s/

CHIEF UNITED STATES

DISTRICT JUDGE

A TRUE COPY

CLERK U. S. DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

By Bonnie Humm /s/

DEPUTY CLERK

NO. 80-1808

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED—JAN 23 1981

JOHN P. HEHMAN, Clerk

CORNELL FULLER,

Petitioner-Appellee,

v. ORDER

CHARLES ANDERSON,

Respondent-Appellant.

BEFORE: WEICK, LIVELY, and JONES, Circuit Judges

Charles Anderson has filed a motion for stay pending ap-

peal of the judgment of the Eastern District of Michigan. In

its order of November 20, 1980, the district court granted

Cornell Fuller's application for a writ of habeas corpus, 28

Court of Appeals Order Continuing Bail 29a

U.S.C. 42254. Because the district court granted petitioner's

motion for bail pending appeal, Fuller was released from

custody on January 7, 1981. Thus, Anderson's motion was

restyled as a motion to modify a custody order. Fed. R. App.

P. 23(d).

It is well settled that “pending appeal by the custodian

of a prisoner who has successfully obtained a writ of habeas

corpus the prisoner is presumptively entitled to release.”

United States v. Rundle, 461 F.2d 768 (3rd Cir. 1972), Fed.

R. App. P. 23(c). Though the ultimate question to be decided

in this court's ruling on the merits of the habeas corpus ap-

peal is Fuller's freedom, our present inquiry is much less

awesome. Fed. R. App. P. 23 limits the discretion of appellate

courts to modify initial orders respecting the custody of

prisoners. Jago v. United States District Court, Northern

District of Ohio, 570 F.2d 618, 625 (6th Cir. 1978). Absent

a showing of “special reasons”, the decision of the district court

governs review in this court. Id.; Fed. R. App. P. 23(d).

Anderson has failed to meet this burden.

Accordingly, the respondent's motion is DENIED.

ENTERED BY ORDER OF THE

COURT

John P. Hehman /s/

Clerk

30a District Court Order Granting Bail

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CORNELL FULLER,

Petitioner,

v. Civil No. 79-73171

CHARLES E. ANDERSON, ]

Respondent.

_

ORDER GRANTING BAIL PENDING APPEAL

At a session of said Court, held in the United States Court-

house, City of Detroit, County of Wayne, State of Michigan,

on the sixth day of January, 1981.

Present: The Honorable John Feikens Chief United States

District Judge.

Upon motion of the Petitioner, Cornell Fuller;

IT IS HEREBY ORDERED that the Petitioner, Cornell

Fuller, be granted release during the pendency of any appeal,

provided that he execute a bond in the amount of $10,000.00

and deposit in the registry of the Court the sum of $1,000.00

in security, as evidenced by the assignment of an interest in

property by his mother, Hattie Fuller, more particularly

described as Lot 264 MARSHLAND BOULEVARD SUB.

recorded in Liber 26, Page 92 of Plats, Wayne County Records,

and known as 840 Marlborough, and subject to a mortgage

to Graham Mortgage Company, such deposit to be returned

District Court Order Granting Bail 3la

upon the Court's determination that the Petitioner has per-

formed the conditions of his release.

John Feikens /s/

John Feikens

Chief United States District Judge

January 6, 1981

[395 MICH at 453]

WILLIAMS, J. This court has steadfastly supported the

right of the trier of fact, particularly the jury, to believe, or

disbelieve, in whole or in part, any of the evidence presented.

The instant case involves this doctrine.

As my brother the Chief Justice in his opinion observes,

“There was uncontradicted testimony that 16-year-old Zerious

Meadows started the fire by throwing a Molotov cocktail, and

by striking a match.” However, as he correctly notes, the

question before us is not whether defendant Cornell “Fuller

planned the arson, or that he lit the fire, but rather that he

acted as a lookout for Meadows by standing by the back gate

of the yard and looking up and down the alley.”

In our opinion, evidence was presented which, if believed

by the jury, would show just that. This is

[395 MICH at 454]

not a case of “mere presence at the scene”, for, if the jury

believed it, defendant's activities were consonant with a theory

of active participation in the crime.

The Chief Justice in his opinion carefully lays out the

testimony of the important witnesses. There is no need to

repeat this material in this opinion.

32a People v Fuller, 395 Mich 451 (1975)

The jury could connect Fuller with Meadows who perpe-

trated the arson, because, as the Chief Justice summarized,

“One witness testified she saw five or six boys hud-

dled together on the sidewalk in front of the Turner home

before it burned. She identified one of the boys as Fuller.

She said she saw him go through the gate to the back

yard of the Turner home. She saw another of the boys

in front throw something at the house and the house

caught fire. She identified one of the other boys as a boy

named ‘Jefferey’.”

This boy was Jefferey Coleman, whose testimony, well set

out by the Chief Justice, described Fuller's role in the crime.

Even if we eliminate Jefferey Coleman's speculation that “I

guess he [Fuller] was watching out for Zerious”, he still

testified that defendant was looking back and forth “to Jeffer-

son” and “back towards Kercheval” several times and that

after the fire started, Fuller and Meadows together took off

and ran toward Kercheval.

Another witness, Gary Martin, in the words of the Chief

Justice, “testified that he saw Cornell Fuller, Zerious Meadows

and four others walking together in the alley between Fair-

view and LeMay going towards Jefferson. He said he next

saw Fuller and Meadows run through a yard and then run

down to Kercheval through the alley.”

[395 MICH at 455]

It is for the trier of fact to determine if the prosecution has

“negate[d] every reasonable theory consistent with the

defendant’s innocence of the crime charged”. It was so

determined in this case.

Conviction affirmed.

People v Fuller, 395 Mich 451 (1975) 33a

COLEMAN and FITZGERALD, JJ., concurred with WIL-

LIAMS, J.

LINDEMER and RYAN, JJ., took no part in the decision of

this case.

T. G. KAVANAGH, C.]J., (dissenting). Cornell Fuller was

convicted of first-degree felony murder, MCLA 750.316;

MSA 28.548, by a jury.

Because we are satisfied after a thorough review of the

record that there was insufficient evidence to support con-

viction, we set this verdict aside.

On May 18, 1970, two young girls lost their lives in a fire

asserted to be caused by arson. There was uncontradicted

testimony that 16-year-old Zerious Meadows started the fire

by throwing a Molotov cocktail, and by striking a match. The

prosecution did not allege that Fuller planned the arson, or

that he lit the fire, but rather that he acted as a lookout for

Meadows by standing by the back gate of the yard and look-

ing up and down the alley.

One witness testified she saw five or six boys hulled to-

gether on the sidewalk in front of the Turner home before it

burned. She identified one of the boys as Fuller. She ‘aid

she saw him go through the gate to the back yard of he

Turner home. She saw another of the boys in front throw

something at the house and the house caught fire. She identi-

fied one of the other boys as a boy named “Jefferey”. She

testified she did not see anything unusual at the rear of the

Turner home because she could not see that far.

[395 MICH at 456]

Fourteen-year-old Jefferey Coleman testified that he saw

Zerious Meadows, on the back porch with a Coca Cola bottle

34a People v Fuller, 395 Mich 451 (1975)

in his hand, light a rag in the bottle and throw it against the

porch. He said he saw Cornell Fuller “standing by the gate”

in the back yard. The following colloquy then occurred:

“Q. Now after he [Meadows] had struck the match

and started the second fire what happened then?

“A. Well, he had jumped off the porch and then they

ran down the alley towards Kercheval.

“Q. When you say they ran down the alley, who ran

down the alley?

“A. Zerious and Cornell.

“Q. Towards Kercheval.

“A. Yes, sir.

“Q. During the time that Zerious Meadows was throw-

ing the bottle against the side of the house or against the

side of the porch and lighting the match which set--

started the second fire did you see what Cornell Fuller

was doing?

“A. He was stiil standing by the gate, looking around.

“Q. When you say he was looking around what,

exactly, was he doing?

“A. I guess he was watching out for Zerious—he had

looked to Jefferson and he looked back towards Kercheval.

“Q. He looked towards Jefferson and looked back to-

wards Kercheval?

“A. Yes, sir.

People v Fuller, 395 Mich 451 (1975) 35a

“Q. Did he do that once or more than once?

“A. He did it more than once.

“Q. He did it more than once—how many times—

“The Court: Was this the alley gate or the gate to-

ward the front of the house?

“A. It was the alley gate.

“Q. How many times would you say Cornell Fuller

looked towards Jefferson and then looked back towards

Kerchevel?

“A. I wouldn’t know.

[395 MICH at 457]

“Q. But it was more than once; is that correct?

“A. Yes, sir.

“Q. Was it more than twice?

“A. Yes, sir

42)

Now, during the time that this was taking place,

Sita, did you hear any words spoken between Zeri-

ous and Cornell?

“A. No.

“Q. Did you say anything to them?

“A. No.

“Q. Now, after—strike that, please—after the second

fire began, you testified that Zerious and Cornell left the

backyard; is that correct?

“A. Yes, sir.

36a People v Fuller, 395 Mich 451 (1975)

“Q. Did they enter the alley?

“A. Yes, sir.

“Q. Did they enter the alley through the gate that

Cornell Fuller was standing by?

“A. Yes, sir.

“Q. And then they started running; is that correct?

“A. Yes, sir.

“Q. Were they running together or separately, Jeff-

“A. Together.

“Q. And they were running towards Kercheval; is

that correct?

“A. Yes, sir.

Gary Martin testified that he saw Cornell Fuller, Zerious

Meadows and four others walking together in the alley be-

tween Fairview and LeMay going towards Jefferson. He

said he next saw Fuller and Meadows run through a yard

and then run down to Kercheval through the alley.

The testimony summarized above was the entire evidence

linking Cornell Fuller with the arson and resulting deaths.

At the conclusion of the prosecution's case, Fuller's attorney

moved for a directed

[395 MICH at 458]

verdict of acquittal. The trial judge in denying the motion

taid:

People v Fuller, 395 Mich 451 (1975) 37a

“The Court: The question in this case is a close one.

As I regard the testimony the defendant's complicity in

the case depends almost completely on the fact that he

was present at the scene of the crime and that he was

seen going to it and seen running afterwards. There was

very meagre evidence to call him a look-out in this par-

ticular case; however, the Court is of the impression that

we do have a borderline prima facie case in this instance—

a borderline prima facie case—and, accordingly, the

court will reserve its ruling on the motion for a directed

verdict. It seems to me that the testimony is the kind

that would be—that there would be a high probability

that the jury would return a verdict of not guilty in this

case, but where there is a prima facie case the Court

cannot speculate on it—on the jury’s decision in the case

and the Court will, however, reserve a ruling on the

motion.”

After the jury returned a guilty verdict, a motion to set aside

that verdict as against the great weight of the evidence was

denied.

The record does not contain sufficient evidence to support

a conviction of felony murder against this defendant. In a

prosecution for felony murder, the felony must be proven

independently of the murder. People v Allen, 390 Mich 383;

212 NW2d 21 (1973). Arson is a specific intent crime, and

proof of the corpus delicti requires the showing not only that

the building was burned but that the fire was intentionally

set. Peterson v Oceana Circut Judge, 243 Mich 215; 219 NW

934 (1928). There was inadequate proof of Fuller’s intention

to act in concert with Zerious Meadows to set this fire.

The prosecution did not contend that Fuller assisted in

planning this arson; they argued rather that he acted as a

“lookout” for Meadows, i.e., that

38a People v Fuller, 395 Mich 451 (1975)

[395 Mich at 459]

he was an “aider and abettor’. The fact that Fuller and

Meadows were seen together—that Fuller was seen by the

alley “standing by the gate, looking around” does not establish

his being a lookout for an arsonist.

Jeffexey Coleman’s speculation as to what Fuller was doing—

“I guess he was watching out for Zerious—he had looked to

Jefferson and he looked back towards Kercheval”—is not suf-

ficient tc allow a conclusion to be drawn that Fuller was acting

as a lookout. In People v Davenport, 39 Mich App 252, 257-

258; 197 NW2d 521 (1972), it was said:

“It has been said that in a criminal case ‘not only must

each of the facts from which the inference is drawn be

proved beyond any reasonable doubt, but the inference

itself must be such as admits of no other rational con-

clusion’. People v Sessions, 58 Mich 594, 606 (1886) (per

Sherwood, J). Accord: Miller v State, 250 Ind 338; 236

NE2d 173 (1968): ‘An inference, to be valid, must be

logical [citation omitted]. It must follow as an impelling

certainty from the circumstantial evidence which mothers

it, or it is not proper. Similarly, see State v Faircloth,

supra [181 Neb 333; 148 NW2d 187 (1967) }.

“Allowing a trier of fact to draw an inference in a

criminal case only if the inference follows with ‘impel-

ling certainty’ enforces the requirement that, where the

people’s case is based on circumstantial evid nce, the

prosecution must negate every reasonable theory con-

sistent with the defendant's innocence of the crime

charged.”

There are simply too many inferences that ould have to

be drawn, one piled upon another, to justify conviction of

People v Fuller, 395 Mich 451 (1975) 39a

this defendant. The prosecution has not negated “every rea-

sonable theory consistent with the defendant's innocence of

the crime charged”. The due process clause “protects the

accused against conviction except upon proof

[395 MICH at 460]

beyond a reasonable doubt of every fact necessary to con-

stitute the crime with which he is charged”. In re Winship,

397 US 358, 364; 90 S Ct 1068; 25 L Ed 2d 368 (1970).

Fuller’s presence at or near the scene of this crime will not

support a conclusion of his direct participation or of aiding

and abetting.

“*Mere presence, even with knowledge that an offense

is about to be committed or is being committed, is not

enough to make a person an aider or abettor or a princi-

pal in the second degree nor is mere mental approval

sufficient, nor passive acquiescence or consent.” People

v Burrel, 253 Mich 321, 323; 235 NW 170 (1931).

In Burrel, defendant and one Bracken picked up a girlfriend

of Bracken’s in defendant’s automobile. Defendant, as directed

by Bracken, parked the car while Bracken had sexual inter-

course with the underage girl in the back seat. Defendant sat

in the front seat with his arms over the steering wheel and

his head resting on his arms. Defendant was convicted of

statutory rape as an aider and abettor.

That conviction was reversed because there was no evi-

dence to show that defendant knew when he took Bracken

and the girl into his car and before parking that Bracken

intended statutory rape, and “[i]f it be inferred that, after

stopping the car, he knew what his guests were doing in the

back of the car, it makes no difference ° * °”. Id.

40a People v Fuller, 395 Mich 451 (1975)

So it is in the case at bar. There is no evidence that defend-

ant knew that Meadows planned to set fire to the Turner house.

There is no evidence that defendant agreed to assist Meadows

in burning the house.

While defendant may have been in a position to

[395 MICH at 461]

observe what Meadows was doing or to warn him of danger,

from this fact alone it is not reasonable to conclude that he

agreed to act as a lookout or that he did in fact assist Meadows

in perpetrating the crime.

We would reverse the conviction and discharge the defend-

ant.

LEVIN, J., concurred with T. G. KAVANAGH, C.J.

PEOPLE v FULLER

|44 Mich App at 298}

Before: QUINN, P.J., and V. J. BRENNAN and O'HARA,®

JJ.

QUINN, P.J. A jury convicted defendant of first-degree

murder, MCLA 750.316; MSA 28.548, and he was sentenced.

His application for delayed appeal was granted.

On May 18, 1970, a residential fire occurred at 1554 Lemay

in Detroit which claimed the lives of two young girls. A

cause of the fire was a Molotov cocktail thrown at the residence

by one Meadows. The prosecution claimed that defendant

*Former Supreme Court Justice, sitting on the Court of Appeals by

assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

People v Fuller, 44 Mich App 297 (1973) 4la

aided and abetted Meadows by acting as a lookout while the

latter threw the Molotov cocktail. Other facts will

[44 Mich App at 299]

be noted in the discussion of the issues raised on appeal.

The first issue is a weight of the evidence question. Our

inquiry is, was evidence produced which, if believed, could

certainly lead to a reasonable inference that defendant was

a party to the offense?, People v Ford, 19 Mich App 519

(1969). There was evidence that defendant came to the scene

with Meadows and others; that defendant stood at a gate

near the alley behind the house while Meadows lit and threw

the Molotov cocktail; that during this time, defendant looked

up and down the alley more than once; and that defendant

ran from the scene with Meadows. From these facts a jury

could reasonably infer that defendant was a party to the

offense.

During final argument, the prosecuting attorney commented

on the failure of defendant to produce additional alibi wit-

nesses. Defendant now claims that this constitutes an im-

permissible inference of guilt. No objection to the comment

was made at trial. The defense was alibi and the one alibi

witness produced named others who were present when

defendant was allegedly in the presence of the alibi witness.

It was not shown that the others were unavailable. That the

comment complained of was proper see People v Falkner, 36

Mich App 101 (1971).

We find no merit in defendant's contentions that the trial

court affirmatively mislead the jury with respect to sentence

and that sentence constituted cruel and unusual punishment.

At trial, defendant offered to stipulate that a burning took

place and that two deaths occurred as a result thereof. The

42a People v Fuller, 44 Mich App 297 (1973)

prosecuting attorney declined the offer and put in his proof

of these facts. Defendant asserts error because he claims the

[44 Mich App at 300]

prosecuting attorney's refusal permitted prejudicial and un-

necessary evidence to be heard by the jury. The refusal to

accept the offer cannot be the basis of error, however. As

stated in People « MacPherson, 323 Mich 438 (1949):

“Furthermore, the prosecutor had the right to prove

by competent testimony the facts material to the people’s

case. Counsel for defendant could not preclude the ex-

ercise of such right by undertaking to make an admission

on behalf of his client.”

The testimony of witness Coleman was crucial to the pros-

ecution. It is apparent from the record that Coleman had a

juvenile record, in addition to his current record of being in

the youth home for running away froin home. Defendant

concedes that no request for this record was made to the

prosecuting attorney. The record does not disclose that the

prosecuting attorney had Coleman's past juvenile record or

that the prosecuting attorney knew of this record. Defendant

now contends that his due process rights were violated be-

cause the prosecuting attorney failed to disclose a record it

is not shown the prosecuting attorney had or knew about.

If the trial record disclosed that the prosecuting attorney

had, controlled, or knew of Coleman’s past juvenile record,

we would reverse, People v Nettles, 41 Mich App 215 (1972).

Absent a showing that the prosecuting attorney possessed,

controlled, or knew of the past juvenile record or that de-

fendant requested its production no violation of his rights is

shown.

In addition, on cross-examination of Coleman, defense

counsel voluntarily stopped the cross-examination after Cole-

People v Fuller, 44 Mich App 297 (1973) 43a

man had acknowledged that his current residence was the

youth home and that he was there as a runaway. Further

inquiry could well have disclosed the prior juvenile record.

[44 Mich App at 301]

During Coleman’s testimony, he gave the unresponsive con-

clusion that Fuller was “watching out for Zerious [Meadows]”.

No objection was made to this conclusionary statement. The

issue was not preserved for appeal.

Affirmed.

All concurred.

{421} oo e

THE COURT: The motion will be denied.

This case was tried by a jury and the Court, of course, also

heard the testimony in the case and would find that there

was testimony in this case not only making Out a prima

facie case but justifying the jury in finding facts along the

following lines:

That, on the morning in question, the defendant, Cornell

Fuller, in company with a number of other young men and,

particularly, one 16 year old juvenile, came to the house

where the arson-murder is alleged to have taken place and

that the evidence is sufficient to indicate that at that time

they brought with them a device consisting of a Coca Cola

bottle filled with gasoline and with a cloth or paper wick

which is commonly known as a firebomb or “Molotov Cock-

tail.”

The evidence does not indicate in the case where this device

was made but the evidence would [422] indicate that it was

not made at the scene of the crime because there was no

4a State Court Trial Transcript Excerpt

container disclosed in the evidence for the gasoline in the

case. The young men went to the front of the house that was

burned and some of them were seen by witnesses to go into

the backyard, including the 16 year old juvenile, who was

identified as the one who lit and actually threw the firebomb

against the house; the defendant, Cornell Fuller, who was

present in the yard, was identified as a look-out or accessory.

Now, in view of the fact that this firebomb was obviously

constructed at some other point before it was brought into

the backyard and thrown into the house or onto the House,

all persons who came with the juvenile and who helped to

bring the firebomb could, and the jury could have found, that

they participated in this particular crime and, particularly,

the defendant, Cornell Fuller, who was in the backyard and

who was observed looking up and down the alley and who,

after the burning of the house, ran away with the juvevile

who actually threw the bomb—the firebomb.

The Court submitted the case to the jury on the question

that under the facts of the case the [423] defendant, Cornell

Fuller, having been present and participated, and having

participated in the burning of the house was, under the

statute, which is Section 767.39, chargeable as a principal,

the same as the man who actually threw the firebomb in this

case.

The testimony in the case, of course, indicated the terrible

results of the throwing of the firebomb; the house was burned;

a large family was forced to flee; the two young girls who

were in the attic were burned to death. The other members

of the family were forced to jump from the second floor and

some of them were burned and injured, and it was a tragic

circumstance.

The Court would find that there was sufficient evidence

to submit the case to the jury on the People’s theory of the

State Court Trial Transcript Excerpt 45a

case. The jury found that the defendant was guilty of murder

in the first degree and your motion will, accordingly, be

denied, Mr. Reilly.

MR. REILLY: Thank you, your Honor.

STATE OF MICHIGAN

IN THE RECORDER'S COURT OF

THE CITY OF DETROIT

THE PEOPLE OF THE STATE OF

MICHIGAN Deciet

Vs.

CORNELL FULLER, wo

Defendant.

OPINION & ORDER DENYING MOTION FOR NEW

TRIAL, SUPPLEMENTAL MOTION FOR NEW TRIAL,

AND MOTION FOR PRODUCTION OF

CONTACT REPORTS

At a session of said Court, held in the Frank Murphy Hall

of Justice, at Detroit, Wayne County, Michigan, on Dec. 15,

1971.

PRESENT: HON. THOMAS L. POINDEXTER, Judge of

Recorder’s Court.

In this case the defendant, Cornell Fuller, was tried on a

charge of arson murder in the first degree and was found

guilty by a jury in this case.

It was not contended that the defendant was the one who

threw the fire bomb which burned the house, but the evidence

46a State Trial Court Order Denying New Trial

established that he was the look-out while Zerious Meadows

(subsequently tried in a separate case on this same charge )

threw the fire bomb and set a fire by pouring gasoline on the

dwelling in question.

Defense counsel in his Motion for a New Trial makes much

of the fact that Cornell Fuller was only seen to run to the

alley of the premises here involved and look up and down

the alley, but the evidence also indicated that he was the

look-out and, therefore, an accessory to the crime, equally

chargeable as a principal under Section 767.26, Compiled

Laws, 1948.

This motion was held for some time by the Court pending

the trial of Zerious Meadows on the same charge but in a

separate case. At the time of the trial of Cornell Fuller,

Zerious Meadows, a 16 year old boy, was not bound over for

trial by the Juvenile Court and could not be tried in the first

case for the death of the young girl there involved.

After the trial of Cornell Fuller a second charge was placed

against Zerious Meadows for the death of a second young

girl in the burning of the same premises involved in the

Fuller case, and Zerious Meadows has since been convicted

of murder in the first degree in a trial by jury before a dif-

ferent Court. The reason the Court held this matter was that

it seemed only fair that if there should be an acquittal, or a

conviction on a lesser offense, in the trial of Zerious Meadows

that Cornell Fuller, as the accessory, should not be punished

for a higher degree of offense than Zerious Meadows. Both

have now been found quilty of murder in the first degree.

Nobody has attempted to point out any errors in the charge

of the Court, or in the manner of the conduct of the trial;

however, Defense Counsel now, as part of his motion for a

new trial, asks that the Prosecuting Attorney be required to

State Trial Court Order Denying New Trial 47a

furnish contact reports from the Juvenile authorities, relating

to two of the juvenile witnesses in this case.

This motion is denied for the reasons contained in the brief

of the Prosecuting Attorney, and also in the attaached mem-

orandum prepared by Mr. Lynn L. Lower, Legal Research

Aide of this Court, who has prepared an extensive memo-

randum which clearly sets forth the issues of law that this

Court adopts as the Opinion of the Court in relation to the

contact reports.

The Motions are, accordingly, DENIED.

THOMAS L. POINDEXTER /s/

Judge of Recorder's Court

( Attachment )

Distribution:

Files

Prosecuting Attorney

Defense Counsel