Petition — Ronald C. Marshall, Superintendent, Southern Ohio Correctional Facility v. Raymond Walker

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83-151 a sTt ae

No. JUL 26 1983

Supreme Court of the United States

October Term, 1983

TED ENGLE, SUPERINTENDENT

Southern Ohio Correctional

Facility,

Petitioner

vs.

RAYMOND WALKER,

Respondent

PETITION FOR A WRIT OF CERTIORARI -

HABEAS CORPUS

To the United States Court of Appeals

For the Sixth Circuit

JAMES R. UNGER

Prosecuting Attorney

Stark County, Ohio

Dae T. Evans, Counsel of Record

Assistant Prosecuting Attorney

Chief, Appellate Division

Courthouse Annex

P. O. Box 167 - D. T. Station

Canton, Ohio 44701

Telephone: (216) 438-0897

Attorneys for Petitioner

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

QUESTION PRESENTED FOR REVIEW

Whether a United States District Court, in habeas

corpus proceedings, may substitute its judgment on rele-

vance for that of state courts interpreting Ohio law; and

under the guise of due process and through unwarranted

inferences, attempt to exercise supervisory powers over

the state trial and reviewing courts.

Il

TABLE OF CONTENTS

OAS a Ta TE SES

a ssuhormpaunaubinbeevsoncere

The Decision of the District Court Below, as Af-

firmed by the Sixth Circuit Court of Appeals, Re-

flects a Usurpation of a State’s Right to Determine

What Constitutes “Relevant Evidence” in a State

Criminal Trial Proceeding and a Departure From

the Mandate of This Court in Sumner v. Mata,

449 U.S. 539, Requiring Deference to State Court

Determinations of Factual Issues .00.0........cccceseeeees

ES EL ES

Appendix:

Opinion of the United States Court of Appeals for

ES

Opinion of the United States District Court for the

Northern District of Ohio, Eastern Division ........

Supplemental Memorandum and Order of the

United States District Court for the Northern

District of Ohio, Eastern Division ..........00.0..0.......

Order of the United States Court of Appeals for

the Sixth Circuit Denying Rehearing En

TABLE OF AUTHORITIES

Cases

Bell v. Arn, 536 F.2d 123 (6th Cir. 1976) oe . 6

Chavez v. Dickenson, 2 A.D. F.2d 727, cert. den. 364

tS Serene ene POR Sst Maro A te OM PULA BOY FEELS JRA 7

Donnelly v. DeChristoforo, 416 U.S. 637 2.0... eeceeeeceeees 5

EVOT te. CROP UNE, ET SI BID ccsiceccpccnsentsnsinnsectteceisetaeiases 8

Jarrell v. Stahl, (D.C.N.C. 1978) 446 F. Supp. 395, Aff’d

OF SL CAO niceeipscivtes Aicsbsenpueshcnsanphniceptnionapincceiatenniatiacetaiiees 6

Marshall v. Lonberger, ........ te, SR eee 8

Nelson v. Moriarity, 484 F.2d 1034 (C.A. Mass. 1973) 6

Patterson v. New York, 432 U.S. 197 .00....cccccccesseeeeeees 8

Ruse v. Cardwell, 410 F.2d 1126 (6th Cir. 1969) ............ 7

Snyder v. Illinois, 442 F. Supp. 75 0.0... csesscssssssceseeeees 6

State v. Walker, 55 Ohio St. 2d 208 (1978) 0.00. 2

Sumner v. Mata, 449 U.S. 539, 71 L. Ed. 2d 480 ............ 7

U.S. v. Johnston, 585 F.2d 119 (5th Cir. 1978) oo. 6-7

U.S. ex rel. Burnett v. Illinois, 619 F.2d 668 (7th Cir.

REID sinimnstesancdiicinasicicntagadteting wast aba masa aan ce 7

Walker v. Ohio, 441 U.S. 924 (1979) oooeecccececeeeeeeeee 3

Constitutional Provisions and Statutes

Ohio Revised Code Section 2901.01 oo... occas 2

aD Redon MOI IPOD erscecoccceornensebcntcreasinatehedicale teres 1

28 U.S.C. Section 22564 .......... Gis oiialadiiccessecmslgatiumesaaceniiaumaie 3

Title 28 U.S.C. Section 2254(D) (1) through (D) (7)

icicle ihdainleaviniiaidsinchildcplcnasiasiiaetsatchacibadiaenauomaea ase tae 4,7,8

Ua GH, DN 6 ace ree 6

Ces IE, PE: FO orciiiccttiiiie a 2

Wee, GUOURI RN OG o 3

No.

Supreme Court of the United States

October Term, 1983

STATE OF OHIO,

Petitioner,

VS.

RAYMOND WALKER,

Respondent.

PETITION FOR A WRIT OF CERTIORARI -

HABEAS CORPUS

To the United States Court of Appeals

For the Sixth Circuit

Petitioner, State of Ohio, respectfully prays that a

writ of certiorari issue to review the judgment and opinion

of the Court of Appeals for the Sixth Circuit entered in

this proceeding on March 23, 1983, and decision denying

rehearing en banc entered June 24, 1983.

OPINION BELOW

The opinion of the United States Court of Appeals for

the Sixth Circuit, which has not been officially recorded,

appears in the Appendix hereto.

JURISDICTION

The judgment of the Court of Appeals for the Sixth

Circuit was entered on March 23, 1983. A timely petition

for rehearing en banc was denied on June 24, 1983, and

this petition for certiorari was filed within 90 days of

that date. This Court’s jurisdiction was invoked under

28 U.S.C. Section 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

This case involves the 10th Amendment to the United

States Constitution which provides in relevant part:

... the powers not delegated to the United States by

the Constitution or prohibited by it to the states are

reserved to the states respectively, or to the people.

STATEMENT OF THE CASE

Respondent, Raymond Walker, was indicted by the

Stark County, Ohio, Grand Jury for the first degree felony

murder arising out of the purposeful killing of off-duty

Canton Police Detective, Guy Mack, on July 22, 1972, dur-

ing the perpetration of a robbery. The indictment was

returned on March 12, 1976. Walker was, at all critical

stages of the proceedings, represented by Attorney Stanley

E. Tolliver. His first trial, in which Walker adduced

alibi testimony of one Lamar Potts that he was continuously

in the company of Potts, drinking at various bars and

after-hours establishments in Cleveland on the weekend

of the murder, ended in a hung jury.

At Walker’s second trial, in which he adduced an

alibi defense that he was incarcerated in the Cuyahoga

County Jail at the time of the murder, the jury returned

a verdict of guilty of murder in the first degree under

former Ohio Revised Code Section 2901.01. A direct

appeal from the judgment of conviction was perfected

to the Fifth District Court of Appeals for Ohio, which

affirmed the conviction in June, 1977. Leave to appeal

was granted by the Ohio Supreme Court, which affirmed

the judgment of conviction as set forth in the opinion in

State v. Walker, 55 Ohio St. 2d 208 (1978). Petition for

3

writ of certiorari was filed to this Court, which denied the

writ. Walker v. Ohio, 441 U.S. 924 (1979). In November,

1979, Walker filed a petition for writ of habeas corpus

pursuant to 28 U.S. Code Section 2254 with the United

States District Court for the Northern District of Ohio,

Eastern Division, being Case No, C79-2132. On August 14,

1980, a United States magistrate issued a report and recom-

mendation that the petition be granted. On August 22,

1980, the Attorney General for the State of Ohio sub-

mitted for filing objections to the report and recommenda-

tion of the magistrate; and on January 28, 1981, the Honor-

able Judge John Thomas issued a memorandum and order,

followed on February 2, 1981, by a supplemental memoran-

dum and order in which he rejected all those portions of

the magistrate’s recommendations except that portion

which determined that Walker had been denied a fair

trial in violation of the due process clause of the 14th

Amendment, by reason of the introduction of six cate-

gories of evidence which the Court found to have been

irrelevant. On February 25, 1981, petitioner filed its notice

of appeal from Judge Thomas’s order. The cause was

argued before the United States Court of Appeals for the

Sixth Circuit which, on March 23, 1983, issued its opinion

affirming the United States District Court. On April 5,

1983, petitioner filed a petition for rehearing and sug-

gestion for rehearing en banc and by order dated June 24,

1983, the Sixth Circuit Court of Appeals denied such

rehearing.

REASON FOR GRANTING THE WRIT

The Decision of the District Court Below, as Af-

firmed by the Sixth Circuit Court of Appeals, Reflects

a Usurpation of a State’s Right to Determine What

Constitutes ‘‘Relevant Evidence’’ in a State Criminal

Trial Proceeding and a Departure From the Mandate

of This Court in Sumner v. Mata, 449 U.S, 539, Re-

quiring Deference to State Court Determinations of

Factual Issues.

Judge Thomas of the United States District Court for

the Northern District of Ohio, Eastern Division, concluded

that respondent’s conviction should be reversed and re-

manded for retrial because of cumulative errors and the

admission of allegedly irrelevant evidence. In his sup-

plemental opinion, the District Judge found that Title 28

U.S.C. Section 2254(D)(1) through (D)(7) were inap-

plicable in the instant case. Thus, he conceded:

(D)(1) That the merits of the factual dispute were

resolved in state court hearings;

(D)(2) That the fact finding procedures employed by

the state courts were adequate to afford a

full and fair hearing;

(D)(3) That the material facts were adequately de-

veloped at the state court hearings;

(D)(6) That the applicant received a full, fair and

adequate hearing in the state court proceed-

ings; and

(D)(7) That the applicant was not denied due process

of law in state court proceedings.

(See Appendix Opinion.)

5

The District Court Judge purported to apply Ohio law

as the standard for determining relevance. Both the Fifth

District Court of Appeals for Ohio and the Supreme Court

of Ohio, in applying the Ohio definition of relevance, con-

sidered and rejected the same claims of error. This Court

then denied certiorari to review those claims. Thus, the

question becomes whether, in applying Ohio law, the Dis-

trict Court could substitute its judgment for the Ohio

courts on the question of what constitutes relevant evi-

dence to rebut the unique alibi defense raised at trial,

to-wit: that the petitioner was in jail at the time of the

homicide—and the question of relevance generally, as it

is applied to other evidence adduced in the proceedings.

This Court has defined the scope of due process re-

view of state convictions. It has pointed out that the

scope is more limited than the exercise of supervisory

powers on review of federal convictions. The scope of

review for state court proceedings is “the narrow one of

due process” and “not every trial error or infirmity which

might call for application of supervisory powers” and

correspondingly, constitutes a “failure to observe that

fundamental fairness essential to the very concept of

justice.” Donnelly v. DeChristoforo, 416 U.S. 637 at 642.

In Donnelly, supra, this Court was careful to note that

this was not a case in which a state was alleged to have

denied defendant the benefit of specific provisions of the

Bill of Rights; but rather, the intangible concept of a

trial with unfairness so as to make the resulting convic-

tion a denial of due process. Donnelly, supra, parallels

the instant case and led this Court to examine the con-

flicting inference drawn by the lower courts from the

errors complained of, finding no clear indication that the

jury engaged in the hypothetical analysis used to reverse

the conviction in federal habeas corpus. In the instant

6

case, the District Court constantly engaged in hypothetical

analysis of the impact of the evidence upon the jury

without support in the record, i.e., see Judge Thomas’s

conclusion that certain evidence “appealed to anti-Cuyahoga

County provincialism at the expense of the defendant,”

and the conclusion that the questioning of witnesses con-

cerning John Appling “obviously sought to suggest to the

jury that Appling’s testimony would have been helpful

to the prosecution had he testified and not asserted his

5th Amendment privilege.” (Appendix, page A41).

The Sixth Circuit likewise has condemned the use

of unwarranted inference by the District Judges as a basis

for reversing state criminal convictions. In Bell v. Arn,

536 F.2d 123 (6th Cir. 1976), the Court noted that:

The District Judge concludes that the cumulative ef-

fect of the alleged errors in the petitioner’s case was

highly prejudicial and denied her the constitutional

right to a fair trial. We disagree. Barring the un-

warranted inferences of the District Judge, we find

nothing in the record to support the conclusion that

the petitioner did not have a fair trial. Bell, supra,

page 126.

Numerous cases have dealt with the proposition that

allegations that state trial courts have admitted irrelevant

testimony do not raise due process issues of such constitu-

tional magnitude as to entitle a petitioner to federal habeas

corpus relief. Nelson v. Moriarity, 484 F.2d 1034 (C.A.

Mass. 1973); Jarrell v. Stahl, (D.C.N.C. 1978) 446 F. Supp.

395, Aff’d 588 F.2d 1349; Snyder v. Illinois, 442 F. Supp. 75.

Federal courts have also recognized that once a trial judge

makes a decision as to relevance, an appellate court should

not quickly substitute its judgment for that of the trial

judge. United States v. Johnston, 585 F.2d 119 (5th Cir.

7

1978). The instant case involved the pure and simple sub-

stitution of the District Court’s judgment for that of the

trial court and other state courts on the issue of relevance.

In Ruse v. Cardwell, 410 F.2d 1126 (6th Cir. 1969), the

Sixth Circuit cited with approval, the decision of the Ninth

Circuit Court of Appeals in Chavez v. Dickenson, 2 A.D.

F.2d 727, cert. den. 364 U.S. 934. Quoting at page 1126

of Ruse, supra:

Where there is no question concerning a federally sig-

nificant external event, such as the voluntariness of a

confession, or the knowing use of perjured testimony,

a trial court’s ruling on the admissibility of evidence

may not be questioned in a federal habeas corpus pro-

ceeding.

The Seventh Circuit Court of Appeals recognized the

concept of deference to state courts on the issue of the

applicability of state law on the admission of evidence, and

held that errors in the interpretation of state authority are

for the state Supreme Court to correct, going on to state

that this Court will not take the extraordinarily intrusive

step of setting aside a state criminal conviction in the guise

of due process review simply because we disagree with the

state court’s interpretation of state law. U.S. ez rel.

Burnett v. Illinois, 619 F.2d 668 at 671 (7th Cir. 1980).

It is also clear that the District Court failed to apply

the rule established by this Court in Sumner v. Mata, 449

U.S. 539, and its subsequent opinion in Sumner v. Mata,

71 L, Ed. 2d 480, in that it failed to accord a presumption

of correctness to state court findings of fact or in lieu

thereof, to give a written explanation of the reasoning

that led it to conclude that one or more of the first seven

factors listed in Section 2254(D) were present, or the

reasoning which led it to conclude that the state finding

8

¢

was not thoroughly supported by the record. In the in-

stant case, the Sixth Circuit held on page 13 of its opinion

that: “... the state appellate court holding that there is

no evidence that shows that the defendant preserved the

issue (the John Appling affair mentioned in the opinion)

for appeal by objecting at trial, has no foundation in the

record” is a finding of fact with regard to which the panel

failed to apply Section 2254(D). (See also Marshall v.

Lonberger, ........ , 82 Cri. 3027).

Two general propositions sum up the respondent’s

position in this particular case:

Preventing and dealing with crime is much more the

business of the states than it is of the federal govern-

ment. Irvin v. California, 347 U.S. 128 at 134.

Federal courts should not lightly construe the consti-

tution so as to intrude upon the administration of

justice by individual states. Among other things, it

is normally within the power of the state to regulate

procedures under which its laws are carried out. Pat-

terson v. New York, 432 U.S. 197.

These principles, together with the 10th Amendment

to the United States Constitution, were disregarded by the

lower courts by their substitution of their own standard

of relevance for that of the state courts, thereby exercising

supervisory powers over such courts without authority.

CONCLUSION

For the reasons cited above, it is respectfully sub-

mitted that a writ of certiorari should issue to the United

States Court of Appeals for the Sixth Circuit to review the

judgment of that Court and that of the United States Dis-

trict Court for the Northern District of Ohio, Eastern Di-

vision.

Respectfully submitted,

JAMES R. UNGER

Prosecuting Attorney

Stark County, Ohio

Dave T. Evans, Counsel of Record

Assistant Prosecuting Attorney

Chief, Appellate Division

Courthouse Annex

P. O. Box 167 - D. T. Station

Canton, Ohio 44701

Telephone: (216) 438-0897

Attorneys for Petitioner

Al

APPENDIX

OPINION OF THE COURT OF APPEALS

FOR THE SIXTH CIRCUIT

(Filed March 23, 1983)

Nos. 81-3117, 81-3260

UNITED STATES COURT OF APPEALS

For THE SIXTH CIRCUIT

RAYMOND WALKER,

Petitioner-Appellee, Cross-Appellant,

Vv.

TED ENGLE,

Respondent-Appellant, Cross-Appellee.

On Appeal from the United States District Court

for the Northern District of Ohio.

Before: KEITH and JoNEs, Circuit Judges and Brown,

Senior Circuit Judge.*

Jones, Circuit Judge, delivered the opinion of the

Court, in which KerTH, Circuit Judge, joined, Brown,

Senior Circuit Judge (p. 20) filed a separate concurring

opinion.

Jones, Circuit Judge. The State of Ohio appeals the

district Court’s grant of a writ of habeas corpus to Ray-

mond Walker. [2] Walker cross-appeals from the failure

*The Honorable Bailey Brown retired from regular active

service under the provisions of 28 U.S.C. § 371(b) on June 16, 1982

and became a Senior Circuit Judge.

A2

of the district court to hold that a retrial on the charge of

first-degree murder was precluded by an insufficiency of

the evidence. We affirm the order of the district court

granting the writ of habeas corpus and the remand for a

new trial.

On July 22, 1972, a robbery occurred at an A&P super-

market in Canton, Ohio. Guy Mack, an off-duty detective

with the Canton City Police Department, was shot and

killed during the robbery.

The robbery was committed by four men, three of

whom entered the store while the other remained outside.

In 1973, Warren Davidson and Fred Ogletree were con-

victed as aiders and abettors in the robbery and homicide

and sentenced to life imprisonment. Neither man, how-

ever, was believed to be the triggerman.

In late 1975, while incarcerated, Davidson and Ogle-

tree contacted Stark County authorities and implicated

Walker as the triggerman in the killing. In return for their

testimony against Walker, Stark County officials recom-

mended leniency to the Governor of Ohio.

Walker was indicted on March 12, 1976. The first

trial ended with a hung jury.’ At his second trial, Walker

contended by way of alibi that he was confined in the

Cuyahoga County Jail on July 22, 1972, the day of the

robbery and killing. The official records of the Cuyahoga

County Sheriff's Department, which were stipulated to by

counsel, reflected that Walker was indeed confined in the

Cuyahoga County Jail from April 14, 1972 to August 1,

1972. In response the state introduced an abundance of

evidence attempting to show that the officers charged

1. The magistrate noted that, according to tioner’s brief,

PR ny Sty ey hy my pty

quittal App. 28.

A3

with running the Cuyahoga County Jail were so corrupt

and/or inefficient that Walker could have gotten out of

jail before July 22 and then returned to jail before

August 1.

After his second trial, Walker was convicted of first-

degree [3] murder. His conviction was affirmed by the

Ohio Fifth District Court of Appeals in June 1977. Walker

appealed to the Ohio Supreme Court which, in a divided

vote, affirmed his conviction. State v. Walker, 55 Ohio

St.2d 208 (1978). In April 1979, the United States Su-

preme Court denied Walker’s petition for a writ of cer-

tiorari. Walker v. Ohio, 441 U.S. 924 (1979).

In November 1979, Walker filed a petition for writ of

habeas corpus under 28 U.S.C. § 2254. The petition listed

three grounds for relief: (1) that the Ohio appellate courts

erred in failing to apply the standard of review enunciated

by Jackson v. Virginia, 443 U.S. 307 (1979); (2) that under

the Jackson standard, no rational trier of fact could have

found Walker guilty of the Mack killing beyond a reason-

able doubt; and (3) that numerous trial errors resulting

in the admission of irrelevant and inflammatory evidence

cumulatively operated to deny Walker a fair trial.

The magistrate filed a 108-page recommended report

and decision in which he carefully reviewed the testimony

of the forty trial witnesses and examined the conduct of

the prosecutor in questioning witnesses and delivering his

closing argument.*? The magistrate ultimately agreed with

Walker that the state’s evidence regarding corruption and

inefficiency at the Cuyahoga County Jail went so far be-

yond meeting the legitimate issues that the focus of the

trial was no longer on Walker’s guilt or innocence, but

rather on the allegedly unlawful conduct of the officials

2. App. 27-134.

A4

running the jail. He concluded that the cumulative effect

of the evidentiary errors was to deny Walker fundamental

fairness. Having determined that a writ of habeas corpus

should issue, the magistrate then analyzed the sufficiency

of the evidence and concluded that a retrial of Walker

was precluded by Jackson because of evidentiary insuf-

ficiency.

The district court then issued an opinion which, for

reasons [4] “independently reach[ed],” concluded that

Walker was denied a fair trial in violation of the due

process clause of the Fourteenth Amendment. However,

the district court disagreed with the magistrate’s conclu-

sion that Jackson precluded a retrial, holding that apart

“from the prejudicial evidence, the prosecution produced

sufficient other evidence which, viewed in the light most

favorable to the prosecution, would permit a reasonable

trier of fact to find Walker guilty beyond a reasonable

doubt.’”*

These appeals followed.

The major questions we are required to decide are (1)

whether the district court was correct in concluding that

the admission of certain evidence by the state operated

to deny Walker due process of law; and (2) whether the

evidence against Walker was so insufficient as to preclude

a retrial.

We begin our discussion with the proposition that

errors in application of state law, especially with regard

to the admissibility of evidence, are usually not cognizable

in federal habeas corpus. Bell v. Arn, 536 F.2d 123 (6th

Cir. 1976); Reese v. Cardwell, 410 F.2d 1125 (6th Cir. 1969).

3. App. 138.

A5

Yet, errors of state law, including evidentiary rulings,

which result in a denial of fundamental fairness will sup-

port relief in habeas corpus. Handley v. Pitts, 491 F.Supp.

599, aff’d., 623 F.2d 23 (6th Cir. 1980); Maglaya v. Buckhoe,

515 F.2d 265 (6th Cir.), cert. denied, 423 U.S. 931 (1975);

Gemel v. Buckhoe, 358 F.2d 338 (6th Cir. 1966).

The magistrate, in concluding that the cumulative ef-

fect of the evidentiary errors denied Walker due process,

relied on the entire record. A condensation of his lengthy

and excellent analysis would not now be fruitful, since

the district court based its findings on six specific aspects

of the trial. It should [5] be noted that even these six

alleged errors must be considered for their cumulative

effect. Errors that might not be so prejudicial as to amount

to a deprivation of due process when considered alone, may

cumulatively produce a trial setting that is fundamentally

unfair. United States v. Jones, 482 F.2d 747 (D.C. Cir.

1973); Newman v. United States, 311 F.2d 74 (5th Cir.

1962); United States v. Maroney, 373 F.2d 908 (3rd Cir.

1967). It will suffice for our consideration to assess the

six alleged trial errors and their cumulative effect.

II

A. Evidence of criminal conviction of Major

Payne.‘

Payne had been Warden of the Cuyahoga County Jail

before and after, but not during, Walker’s recorded period

of confinement. The prosecution, over defense counsel’s

strenuous and continuing objections, was allowed to ques-

tion two defense witnesses about Payne’s criminal convic-

4. Throughout the state court trial and subsequent pro-

ceedings, references are made to a “Major Paine.” This Court

takes judicial notice of the fact that the correct title and name are

Major Edward Payne.

A6

tion (which came well after Walker’s recorded period of

detention) for theft of property from the jail. When a de-

fense witness stated that “I think it was something about

two guns that were missing,” the prosecutor asked, “What

was it, evidence?” Defense counsel once again objected on

grounds of relevancy, but the trial court ruled, “No, it’s

very relevant in this case. Overruled.” The prosecutor

then continued his attack on the integrity of the Sheriff's

Office personnel.

The district court held that the testimony regarding

Major Payne’s conviction: ®

bore no relevance to the state’s case or any issue con-

cerning the accuracy of jail records or record keeping

procedures or, more generally, to the reliability of jail

[6] security. Contrary to the trial judge’s on-the-

record conclusion that Paine’s [sic] testimony was

“very relevant in this case,” it had no tendency to

make the truth or falsity of Walker’s alibi more or

less probable than it would be without the evidence

Its sole purpose and clear effect was to prejudice

the jury’s consideration of Walker's alibi.

The state replies that:*

It is submitted that the relevance of the testimony con-

cerning Major Payne may be said to arise from the

quality of the supervisory personnel selected to keep

and maintain the Cuyahoga County Jail records upon

which the alibi was dependent. To this extent it should

make no difference whether the record indicates an

act of supervisory capacity at the exact time of

Walker’s incarceration .... The question with regard

to Major Payne reflect [sic] on the security of evi-

5. App. 142-43.

6. State’s Brief at 11-12.

A7

dence held at the jail, and jail security was a major

issue in the trial of a case in which it appears that a

supposed inmate was able to commit a crime in a town

sixty miles away.

We agree with the district court that (1) the record is clear

that Mayor Payne was not employed at the jail during

Walker’s incarceration, and (2) testimony regarding “the

security of evidence held at the jail’’ has no apparent con-

nection to the issue whether a prisoner could leave the jail

and return undetected.

B. Testimony of State Auditor.

Walker introduced jail commissary records to show

that he made numerous transactions during his confine-

ment, including one on the day of the crime. The prosecu-

tor endeavored to undermine this circumstantial evidence

by testimony of jail [7] deputies that inmates other than

Walker could have made purchases using his commissary

account.

However, the state added to this impeachment by

calling Frank Lancianese, an examiner for the Office of

the State Auditor. He testified, over repeated objections,

that (1) an audit of the commissary account funds be-

tween 1969 and 1975 revealed a $66,000 shortage; (2) the

State Auditor’s Office encountered “obstacles” in gaining

access to the commissary records; and (3) an audit of

jail vending machine profits revealed $9,000 unaccounted

for by the Sheriff's Department. The prosecutor used

this testimony in his closing argument as follows:

We have brought the records to you concerning the

audit of the sheriff’s department for one reason alone.

To show you that all the thieves and the bad people

weren’t on the inside of the jail; that if you lie and

A8

steal what says you won’t let a prisoner out for a

weekend or a few days.

The district court properly concluded that the admission

of the auditor’s testimony bore no relationship to the

issues raised by Walker’s alibi defense, was highly prej-

udicial, and was calculated to sway the jury on the basis

of guilt by association.

The state argues that the auditor’s testimony regarding

theft from the commissary fund “was relevant to rebut the

accuracy of commissary records relied on by Walker in sup-

port of his alibi defense.”” This contention must be re-

jected, since the alleged thefts did not affect the record

of commissary transactions relied on by Walker, but

showed merely that commissary funds may have at some

time been misappropriated by Sheriff's Department per-

sonnel. As for testimony regarding the vending ma-

chines, the state is compelled to concede that it “was not

relevant by any definition.’

[8] C. References to Tom Booth.

Tom Booth, a member of the Cuyahoga County

Sheriff’s Department, attended and viewed the trial but

was not a witness. The prosecution was permitted, without

any basis in the record, to insinuate that several defense

witnesses from the Sheriff's Department were being moni-

tored and coached by Tom Booth in furtherance of a

Sheriff’s Department coverup of improprieties. The state

replies that the cross-examination of the defense witnesses

was a proper inquiry to determine their credibility and

whether they had in fact been coached. The state adds

that since control of cross-examination is committed to

the discretion of the state trial court, the trial court’s

7. State’s Brief at 12.

8. State’s Brief at 13.

A9

rulings are not cognizable on habeas corpus. In support

of the latter contention, the state cites U.S. ex rel. Hickey

v. Jeffes, 571 F.2d 762 (8rd Cir. 1978). Hickey, however,

merely held that a state trial court’s admission of certain

evidence did not, under the facts of that case, constitute

an error of constitutional dimensions. 571 F.2d at 766.

Hickey does not hold that errors in discretionary rulings

can never rise to constitutional dimensions; on the contrary,

it is clear that they can. Gemel v. Buckhoe, 358 F.2d 338,

340 (6th Cir. 1966).

D. Testimony of Canton Police Sergeant Newkirk.

Walker was first located in Chicago, Illinois. Newkirk

was allowed to speculate, over objection, that Cuyahoga

County authorities impeded Walker’s extradition from

Illinois to Stark County. The state makes a claim of

relevancy. We agree with the district court’s finding that

this testimony was highly irrelevant and prejudicial con-

jecture.

E. The John Appling Affair.

As part of its case in chief, the state called John

Appling to the stand. Appling, a prisoner in 1972, had

served as a “range boss” for the cell block to which Walker

was assigned. He [9] refused to be sworn, at which point

the trial court began to question Appling concerning his

reasons for not wanting to be sworn or to testify. After

excusing the jury, the judge called counsel for both sides

to the bench. At that conference, the following inter-

change took place:

The Court: Counsel approach the bench please?

(Counsel Approach the Bench)

Mr. Ake: Your honor, the testimony we have

that we believe he can relate has absolutely nothing

Al0

to do with any Fifth Amendment right of his. We

are willing to put on for your benefit Detective

Newkirk who can give you that testimony to make a

determination. He basically—we are—we have testi-

mony to the affect [sic] that he was in the jail in

1972 with Raymond Walker; that Raymond Walker—

that he himself was allowed to walk free from the

county jail; that he knows of certain activities in the

county jail and that he in fact saw Raymond Walker

on the outside of the county jail building isn't that

correct?

Mr. Jaeck: That’s correct. During the time that

he was supposed to be confined.

Mr. Tolliver: That has to be in conflict because

I had the privilege of talking to this gentleman last

night myself and that’s not what he told me.

The Court: He refuses to testify.

Mr. Tolliver: I'll take the stand myself and tell

what he told me.

The Court: You got a subpoena on for him too.

Mr. Tolliver. I have.

The Court: And I saw that it was served too.

Mr. Tolliver: What I’m saying is that this busi-

ness about having people come in to say what he

said I don’t see how that can be allowed.

{10} Mr. Ake: Your Honor, basically the Fifth

Amendment does not protect any right here, and we're

asking the Court after being permitted to show that

he is a hostile witness to then impeach our own

witness.

After further questioning by the judge, both Appling

and the judge retired to chambers. Upon their return,

All

the judge recalled the jury and allowed Appling, without

being sworn, to take the stand, identify himself and refuse

to testify.

The state then questioned seven other witnesses con-

cerning Appling. The district court, in the proceeding

below, concluded that the state’s questions “sought to

suggest to the jury that Appling’s testimony would have

been helpful to the prosecution had he testified.” Citing

U.S. v. Vandetti, 623 F.2d 1144 (6th Cir. 1980), which dis-

cusses the constitutional problems that arise when the

state is permitted to put a witness on the stand who will

assert the Fifth Amendment, the district court stated:

The entire line of questioning about Appling leads this

court to conclude that Walker’s right to a fair trial

was grossly prejudiced by the suggestion that evi-

dence was not being presented to the jury which

would have established Walker’s guilt.

The state now contends that since defense counsel

did not object to the questions at trial, any claim of error

has been waived. In fact, the state court of appeals ap-

pears to have applied a procedural bar to raising the

issue on appeal.’ We [11] cannot agree that this error is

9. The court of appeals stated:

The fifth assignment of error complains that the court erred

in ordering a witness, John Appling, to testify and in per-

mitting inquiries concerning him throughout the trial.

An examination of the record shows that John Appling was

called as a state's witness and refused to take an oath (R.

51). Whereupon the court excused the jury and conducted

a lengthy examination of the witness (R. 52-62). Im-

mediately, the jury was returned to the box whereupon the

witness responded to questions giving his name and address

and indicating that he refused to testify, whereupon he was

excused and the jury recessed for a regular recess. We find

no objection to any of these proceedings and none has been

—- ag By us dh oral argument to the aoe. Therefore

error, any re was, is not cognizable upon appeal.

See State v. Gordon, 28 Ohio St.2d 48. -

Al2

not cognizable in this habeas proceeding. The record

clearly indicates that defense counsel objected to the

process whereby Appling would take the stand so that

the prosecution could put other witnesses on to suggest

that Appling had relevant testimony to bolster its case.

It is true that, absent a showing of cause and prejudice,

Wainwright v. Sykes, 433 U.S. 72 (1977) precludes a fed-

eral court, as a matter of comity, from hearing an issue to

which the state appellate courts applied a procedural bar.

Yet, it must also be made clear that this rule is a matter of

comity between the federal and state courts and should

not be applied to preclude federal courts from hearing fed-

eral constitutional claims when to do so does no disrespect

to the state courts and their procedural rules. Jackson v.

Cupp, 693 F.2d 867 (9th Cir. 1982). Thus, in Ulster County

Court v. Allen, 442 U.S. 140 (1979), the Supreme Court held

that the Sykes rule does not apply when it is not clear

that the state appellate court had applied a procedural bar.

Furthermore, it is now well accepted that when the state

appellate court ignores the state procedural default, the

federal courts may also reach the merits on a habeas re-

view. To do so does not denigrate the state procedural

system. Ulster County Court v. Allen, 442 U.S. 140 (1979);

Hockenberry v. Sowders, 620 F.2d 111, reh. denied, 633

F.2d 443 (6th Cir.), cert. denied, 450 U.S. 933, reh. denied,

451 U.S. 933 (1980); Cook v. Bordenkircher, 602 F.2d 117

(6th Cir. 1979); Bell v. Watkins, 692 F.2d 999 (5th Cir.

1982), Burns v. Estelle, 592 F.2d 1297 (5th Cir. 1979), aff'd.

en banc, 626 F.2d 396 (1980); Moran v. Estelle, 607 F.2d

1140 (5th Cir. 1979); Henson v. Wyrick, 634 F.2d 1080 (8th

Cir.), cert. denied, 450 U.S. 958 (1980); Quigg v. Crist, 616

[12] F.2d 1107 (9th Cir. 1980); Brinlee v. Crisp, 608 F.2d 839

(10th Cir. 1978); cert. denied, 444 U.S. 1047. See also

Martinez v. Harris, 675 F.2d 51 (2d Cir. 1982).

Al3

We believe that when a state appellate court applies a

procedural bar that has no foundation in the record or

state law, the federal courts need not honor that bar.’®

We do not by this holding sanction blanket federal court

review of state procedural rulings, rather the rule is to

ensure that the state courts do not block federal vindica-

tion of federal constitutional rights by procedural rulings

that have no basis in state law or the facts of the particular

case,

In Ohio, the appellate courts will not entertain an ob-

jection on appeal that was not raised before the trial court

“at a time when such error could have been avoided or

corrected by the trial court.” State v. Gordon, 28 Ohio

St.2d 45, 50 (1971). The underlying rationale of this rule

is the same as that in the requirement of F.R.C.P. 51; that

“the court should be given an opportunity to correct a

mistake or defect ... when it can be accomplished during

the same trial.” Presley v. Norwood, 36 Ohio St.2d 29, 33

(1973). In Presley, the Supreme Court of Ohio held that

the rationale used by the federal courts under F.R.C.P. 51

10. We note the issue as to whether this Court can, con-

sistent with Wainwright v. Sykes, reach the merits of an issue

on habeas with no showing of cause and prejudice even when

there is a technical state procedural bar. There appears to be

confusion in this Circuit as to whether constitutional infirmities

in state trials that are reviewable under state law fall outside

the Sykes requirement. There is ample authority that when

there is a plain error exception in state law, we can reach the

merits absent any Sykes analysis, if the alleged infirmities amount

to plain error. Brewer v. Overberg, 624 F.2d 51 (6th Cir.) cert.

denied, 449 U.S. 1085 (1980): Berrier v. Egeler, 583 F.zd 515

(6th Cir.), cert. denied, 439 U.S. 955 (1978); Rachel v. Borden-

kircher, 590 F.2d 200 ‘(6th Cir. 1978); Cook wv. Bordenkircher,

602 F.2d 117 (6th Cir.), cert. denied, 444 US. 936 (1979);

Krzeminski v. Perini, 614 F.2d 121 (6th Cir. 1980). Yet, the

holding in Hockenberry v. Sowders, 620 F.2d 111 (6th Cir. 1979)

appears to be in tension with that authority. See Hockenberry

v. Sowders, 633 F.2d 443 (6th Cir. 1979) (order denying rehear-

ing) [especially the dissenting opinions of Judges Keith and

Jones at 633 F.2d 445, 448]. Since we here find no adequate

state procedural bar, we need not reach this issue.

Al4

was equally controlling for the state rule. It explicitly

[13] adopted the rule that ‘once a party makes his position

sufficiently clear to the trial court, the rationale for for-

mally objecting to a charge given in disregard of that posi-

tion is no longer present.” Id. at 33, citing, inter alia, Evans-

ville Container Corp. v. McDonald, 132 F.2d 80 (6th Cir.

1942); Kentucky Trust Co. v. Glenn, 217 F.2d 4262 (6th

Cir, 1954); Pleitz v. Garrison, 413 F.2d 895 (8th Cir. 1969).

The state appellate court’s holding that there is no

evidence which shows that the defendant preserved the

issue for appeal by objecting at trial has no foundation

in the record. We need not engage in a microscopic-type

search of the trial record to conclude that the trial judge

was aware that there was a serious question raised as to

whether Appling should testify. Moreover, it is clear

that the trial judge knew that the defense objected to the

proposed minuet which would have Appling take the

stand, refuse to testify only to then allow the prosecution

to admit other witnesses’ views of what Appling might

have said. The awareness is apparent given that the trial

judge raised the first issue, as to whether or not Appling

should take the stand at all, himself. He dismissed the

jury and proceeded to question the witness. In light of

this, there was obviously no additional need to make a

formal objection. Further, the defense clearly did object

to the entire scheme once it became clear that Appling

would not testify. We do not find and therefore cannot

say that there is any support for the view that the trial

court did not have an opportunity to consider the issue

and correct itself. To the contrary, from the record, the

conclusion is inescapable that the court clearly decided

the issue against the defendant.

We thus find that we need not honor the state ap-

pellate court’s claim to procedural default. Its holding

Ald

is against the clear record and well-recognized state rule.

While state application of its own rules of procedure

would not be reviewable on habeas, the notions of comity

that underlie the Wainwright v. Sykes rule do not require

that we defer to applications of state procedural bars that

have no foundation. There [14] is no foundation here. To

hold otherwise without such a foundation would allow

state courts, through erroneous rulings, to insulate federal

constitutional questions from federal review.”

11. We are well aware of the danger of a holding which

would permit state prisoners to attack, in federal habeas actions,

state appellate court applications of state procedural rules as a

bar to the review of issues not raised at trial. To allow such

a blanket rule would undo the cause and prejudice test enunci-

ated in Wainwright and reaffirmed just last term in Isaac v.

Engle, 50 U.S.L.W. 4359 (1982). Cf. Hockenberry v. Sowders,

633 F.2d 443 (6th Cir. 1980). Yet, the Supreme Court in Ulster

County, supra, also made clear that the comity concerns under-

lying the Wainwright rule do not weaken the federal court’s

duty to vindicate federal constitutional rights. When, as here,

the state essentially adopts the federal rule for procedural bars

and it is clear from the record that the state appellate application

of the procedural bar has no foundation, we believe the comity

balance weighs most heavily on the side of not deferring to the

obviously erroneous state porcedural bar.

The Fifth Circuit has recently stated that:

the notion of comity which underlies the exhaustion doctrine

must be understood not as a capitulation of federal power to

state interests; rather, comity involves a delicate balance and

compromise of both state and federal concerns, For as

much as the unchanneled exercise of habeas corpus by the

federal courts would disrupt the integrity of the state crim-

inal process, so too would an unthinking subservience to

state sovereignty render the time-honored Writ of Liberty

sterile and nugatory. Comity requires sensitive accommo-

dation, and not simply slavish adherence, to the interests

of the states.

Carter v. Estelle, 677 F.2d 427, 442-43 (5th Cir. 1982). We are

of the belief that it would be slavish adherence to state interests

to fail to vindicate a state prisoner’s constitutional rights under

the guise of honoring a state procedural ruling that is without

foundation.

Our position gains added support from the Fifth Circuit’s

view in Rummel v. Estelle, 587 F.2d 651 (5th Cir. 1978). There,

(Continued on following page)

Al6

Footnote continued—

the defendant had failed to raise an objection at trial to the

application of the Texas habitual criminal statute. The Fifth

Circuit rejected the argument that the petitioner was now barred

from raising the issue on habeas with:

Since it is apparent that the Texas Court of Criminal

Appeals has repeatedly rejected Rummel-like challenges to

the Texas habitual criminal statute, we are at a loss to see

how any state interest would be served by demanding that

Rummel make a futile gesture at his trial

Id. at 653.

At least one other court has sought the need not to defer to

an application of a state procedural bar when it appeared from

the record to be without foundation. In Thergood v. Tedford,

473 F.Supp. 339 (D.C. Conn. 1978), the Court noted that even

though the state had evidently applied the procedural bar, there

had been an ample opportunity for the state courts to consider

the issue and correct the defect. The Court also reported that

“while it is true the petitioner did not use the precise term ‘ex-

ception’ in response to the court’s adverse ruling on the ques-

tion in issue here, his request to be heard outside the presence

of the jury after the court ruled certainly connoted an objection

to that ruling...” Believing that the petitioner had objected,

the court decided the merits in the habeas proceeding.

Finally, the position we adopt here is not in conflict with

Hockenberry v. Sowders, supra. There, this Court concluded

that under Wainwright, the federal courts cannot make an in-

—— application of the state’s contemporaneous objection

e.

Hockenberry is significantly distinguishable. The contem-

poraneous objection rule there included the discretionary caveat

that the state appellate court could ignore the procedural bar if

manifest injustice resulted. This Court merely held that federal

courts must, to some extent, defer to a state’s assessment that

the discretion to ignore the bar should not be exercised. Here,

there is doubt as to the factual issue concerning whether or not

there was an objection at trial. We do not invade upon the

state’s discretionary determination concerning its own procedural

rule. Rather, we are deciding whether an erroneous factual de-

termination by the state court in applying its nondiscretionary

rule should bar federal relief.

That Hockenberry requires that we make an assessment as

to whether the state procedural ruling is without foundation is

clear fromm the Court’s statement that “it is clear that the central

question in such an instance is whether the state court denied

petitioner’s claim on an adequate and independent state procedural

ground.” Id. at 115. When the state court erroneously reads a

clear record to find no objection by the defendant, the state

—_~ cannot be said to be an adequate one. See also footnote

, above.

Al7

[15] F. The Use of News Clippings.

The state repeatedly used newspaper clippings to “re-

fresh the recollection” of defense witnesses regarding the

“horrible conditions” at the jail. The defense witnesses

in several instances clearly stated that they remembered

nothing about the alleged incidents described in the news-

papers, yet the state persisted in its line of questioning.

The district court correctly found that the state was

successfully putting the substance of the articles in evi-

dence. At [sic] the district court stated:?*

[16] The danger of unfair prejudice to Walker is ob-

vious. Newspaper articles about matters of substantial

public controversy (i.e., the jail’s “horrible conditions,”

the prisoners’ hunger strike “against medical facilities,

bail procedures and overcrowding,” Tr. 667, the public

probe into the use of drugs by inmates, the destruction

of commissary fund records and the state audit) when

brought before the jury inhibited a dispassioned con-

sideration of an accused’s guilt or innocence. What

Cuyahoga County did or didn’t do in these matters

could not be attributed to the defendant. It appealed

to anti-Cuyahoga County provincialism at the expense

of the defendant. This heavy baggage was added to

the total irrelevance of this evidence on the issues to

be decided by the trier of fact.

In justification, the state once again simply relies on

the discretion of the state trial court. That is clearly

not enough. A state trial judge cannot operate beyond

the requirements of the United States Constitution by

claiming discretionary authority. We agree with the con-

clusion of the district court that “parade[ing]” newspaper

clippings before the jury in the manner done here con-

12. App. 158.

Al8

stituted transgressions which “invaded the defendant’s

right to a fair trial.” We reject these procedures as

abhorrent and repugnant for their inflammatory and prej-

udicial effect upon the jury.

We need not determine whether each of the alleged

errors would, alone, require that we find a déprivation of

due process. It is clear that the cumulative effect of the

conduct of the state was to arouse prejudice against the

defendant to such an extent that he was denied funda-

mental fairness. The trial was inflamed by marginally

relevant and irrelevant evidence that was highly prejudicial.

The contrary contentions of the state are supported by

neither controlling authority nor considerations of fairness

and justice. By allowing the trial to focus more on the

claimed corruption of the Sheriff's Department than on

the issue of Walker’s guilt or innocence, the trial court

denied Walker due process of law in violation of the

{17] Constitution. We therefore affirm the district court’s

grant of the writ.

Our close examination of the trial court record com-

pels an additional comment. Such a trial as was con-

ducted here is a reminder of the role the Great Writ

must play in our jurisprudence. When a trial court permits

the constitutional protections to be overridden by zealous

prosecutors without interjecting restraining or curative

measures, the federal courts must be alert to act as the

district court did here. The methods utilized by the state

to obtain this conviction, in the words of Justice Frank-

furter, clearly “offend ‘a sense of justice’. Rochin v.

California, 342 U.S. 165, 173 (1952) citing Brown v. Mis-

sissippi, 297 U.S. 278, 285-6.

III

The remaining issue to be decided is whether the

evidence against Walker is so insufficient as to preclude

Alg

a new trial. We must hold inat under Jackson v. Virginia,

443 U.S. 307 (1979) and for the reasons set forth by the

district judge, a new trial is not foreclosed.

The state placed Walker at the scene of the crime

through testimony of (1) Davidson and Ogletree, ac-

complices to the crime, (2) Rene Clark, a disinterested

eyewitness; and (3) Mabel Mack, wife of the deceased.

The state also placed Walker outside of the jail during

the relevant period through testimony of (a) Clarence

Cash, who allegedly spoke with Walker at an “after hours”

bar during June 1972, (b) James Curry, who allegedly

spoke with Walker at a garage around mid-June, and (c)

Mrs. Willie Mae Hart, who resided near the A&P store

and who saw a brown automobile leave the scene of the

crime driven by a black man with a bad complexion “simi-

lar to” Walker’s.

The magistrate rejected the testimony of these indi-

viduals as follows: (1) Davidson and Ogletree were

promised leniency, and two witnesses testified that Ogle-

tree named Walker [18] because Walker was sleeping with

Ogletree’s wife; (2) Rene Clark had earlier identified

another suspect in a lineup in which Walker participated;

(3) Mrs. Mack said only that Walker “looked like” the

killer; (4 and 5) Clarence Cash and James Curry had

logical inconsistencies within each of their accounts; and

(6) Mrs. Hart specifically stated that she was not saying

Walker was the man she saw.

The district court held that the magistrate had erred

by weighing the testimony and failing to view the evi-

dence in the light most favorable to the prosecution. Since

credibility is not a matter of review for a federal habeas

corpus court, Pigford v. United States, 518 F.2d 831, 836

(4th Cir. 1975), and since the testimony of the state’s

witnesses, if believed, would provide sufficient evidence

A20

to support the conviction, the court concluded that Jackson

did not preclude retrial.

Walker’s main objection to this conclusion is as follows:

Rather than a selective review of the prosecution’s

case, Jackson requires that all the evidence be weighed

so as to ascertain whether any rational trier of fact

could find guilt beyond a reasonable doubt.

No matter how favorably the prosecution’s case may

be viewed, no rational mind could accept the testimony

of Ogletree and Davidson over the unsolicited and

independent testimony of [certain witnesses for de-

fendant].

This argument must fail since it merely urges this

Court to weigh the credibility of the witnesses. This we

cannot do. We agree that, from the record, the witnesses

for Walker appear more credible than those for the state,

and if we were jurors, we might be inclined to vote to

acquit in this case. But the inquiry as to sufficiency of

the evidence does not require or permit a court “to ask

itself whether it believes that the evidence at the trial

established guilt beyond a reasonable doubt.” Jackson,

443 U.S. at 319. Looking at the case in the light most [19]

favorable to the prosecution appears to mean resolving

creditability conflicts in favor of the prosecution. Compare

Jackson:

a federal habeas corpus court faced with a record of

historical facts that supports conflicting inferences

must presume—even if it does not affirmatively ap-

pear in the record—that the trier of fact resolved any

such conflicts in favor of the prosecution, and must

defer to that resolution.

A21

We believe the district court was correct in its con-

clusion that retrial is not precluded by Jackson. Therefore,

the grant of the writ and the order granting the state 120

days to retry Walker is AFFIRMED.

[20] Brown, Senior Circuit Judge, concurring in the

result.

I concur with the panel opinion that this habeas pe-

titioner, Walker, was denied federal due process by allow-

ing into evidence a great deal of totally irrelevant and

highly prejudicial evidence. I recognize that such rulings

on evidence must be egregious to amount to constitutional

error, but this is such a case. I also agree with the panel

opinion that, however, the state introduced enough evi-

dence of guilt to allow the state to try Walker again.

On the other hand, I am concerned that the panel

opinion, in dealing with “The John Appling affair” (slip

WE: ciici ), assumes that there is a problem in the area of

Wainwright v. Sykes, 433 U.S. 72 (1977) and uses this

as a springboard for the tour de force that follows. In

the course of this rather extended discussion, the opinion

suggests, inter alia, that a federal habeas court may, under

Wainwright, reach the merits of an issue where no cause

and prejudice is shown, where there is a “technical state

procedural bar” and there is “plain error.” (Slip at ........ _

n. 10.) In fact, however, there simply is no Wainwright

problem to be dealt with at all.

While it is true that the Ohio Court of Appeals did

(App. at 6) rely on the failure of defense counsel to object

to the procedure whereby Appling was placed on the stand

before the jury and claimed his immunity not to testify,

it did not rely on any alleged failure to object to questions

put to other witnesses calculated to suggest to the jury

that Appling’s testimony would have been favorable. The

A22

Ohio Supreme Court also did not rely on an alleged failure

to object to the testimony of these other witnesses in

reaching its decision. Moreover, respondent below, Engle,

does not rely in his brief here on any such alleged failure

to object to the testimony of these other witnesses. It is

this testimony that Walker complained about in district

court and in this court. This part of the panel’s opinion

is dictum and totally unnecessary.

OPINION OF THE UNITED STATES

DISTRICT COURT

(Filed January 28, 1981)

C79-2132

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

RAYMOND WALKER,

Petitioner,

Vv.

TED ENGLE,

Respondent.

MEMORANDUM AND ORDER

(Filed January 28, 1981)

THOMAS, J.

Guy Mack, an off-duty detective on the Canton City

Police Department, was shot and killed during a robbery

on July 22, 1972 at an A&P Supermarket in Canton, Ohio.

At the time, Mr. Mack was off duty shopping with his wife.

A23

The composite evidence of store employees and War-

ren Davidson and Fred Ogeltree shows that the robbery

was committed by four men, three who entered the store,

and one (Davidson) who remained outside the store. In

1973 Warren Davidson and Fred Ogeltree were convicted

as aiders and abettors in the robbery and homicide and

sentenced to life imprisonment. Neither, however, was

the triggerman.

In late 1975, while incarcerated at the Southern Ohio

Correctional Facility in Lucasville, Ogeltree and Davidson

contacted Stark County authorities through a local at-

torney, Harry Schmuck. They implicated Raymond Walker

as the triggerman in the homicide. Bennett, said by Ogel-

tree and Davidson to have participated in the robbery,

was never apprehended.

[2] At petitioner’s trial, Davidson and Ogeltree were

able to identify the fourth man only by the name “Bennett.”

In return for their testimony against Walker, a recommen-

dation of leniency was made to the Governor by Stark

County authorities.

Walker was indicted on March 12, 1976. The first trial

ended with a hung jury. At his second trial he was con-

victed of first degree murder in violation of former Ohio

Revised Code §2901.01. His conviction was affirmed by

the Fifth District Court of Appeals in June 1977. Walker

appealed to the Ohio Supreme Court which, in a divided

vote, affirmed his conviction. State v. Walker, 55 Ohio St.

2d 208 (1978). On April 23, 1979, the United States Su-

preme Court denied Walker’s petition for a writ of cer-

tiorari. Walker v. Ohio, 441 U.S. 924 (1979).

In November 1979, Walker filed a petition for a writ

of habeas corpus under 28 U.S.C. §2254. The petition

listed three grounds for relief. The first asserts that the

A24

appellate courts in Ohio affirmed his conviction upon a

constitutionally deficient standard of review. The second

asserts that under the standard of review enunciated in

Jackson v. Virginia, 443 U.S. 307 (1979), no rational trier

of fact upon the evidence of record could have found

Walker guilty of the Mack [3] homicide beyond a reason-

able doubt.! The third ground lists numerous prejudicial

rial errors, mainly in the admission of irrelevant and in-

flammatory testimony, which, cumulatively considered,

denied Walker a fair trial.

The Magistrate has filed a 108-page Recommended

Report and Decision concluding that on all grounds the

petition be granted and that “an order [be] entered dis-

charging Raymond Walker from further confinement.” In

a lengthy factual review of petitioner’s trial transcript, the

Magistrate concluded that petitioner was denied a fair

trial in violation of the due process clause of the Fourteenth

Amendment. For the reasons set forth in Part I of this

memorandum, this court independently reaches the same

conclusion. The trial court permitted the introduction of

testimony so irrelevant, prejudicial and inflammatory that

it “undermined the integrity of the fact finding process

and a fair determination of the principal fact in issue,”

that is, Walker's alibi defense. (See Habeas Corpus Peti-

tion, p.2.) The trial errors “offend a sense of justice,”

Rochin v. California, 342 U.S. 165, 173 (1952), and cannot

be considered harmless beyond a reasonable doubt. See

Chapman v. California, 386 U.S. 18 (1967).

The Magistrate also concluded that Walker should

be granted an unconditional discharge and the state should

not be permitted to retry him because under [4] Jackson,

1. Since petitioner’s first ground assumes that the Jackson

standard should have been applied by the Ohio appellate courts,

it merges with this court's consideration of the Jackson standard

in Part II of this memorandurn.

A25

“no rational trier of fact could have found proof of guilt

beyond a reasonable doubt.” For the reasons set forth

in Part II of this memorandum, this court disagrees. It is

concluded that Jackson neither requires nor permits such

a judgment and resulting freedom from retrial if the pros-

ecution so elects. Apart from the prejudicial evidence, the

prosecution produced sufficient other evidence which,

viewed in the light most favorable to the prosecution,

would permit a reasonable trier of fact to find Walker

guilty beyond a reasonable doubt.

At the second trial, Walker’s defense was that he could

not have committed the Mack homicide at the A&P store

in Canton, Ohio on July 22, 1972 because he was incar-

cerated in the Cuyahoga County jail.

Walker was indicted on February 22, 1972 for at-

tempted burglary. At his arraignment on April 14, 1972,

he pled not guilty; and bail was set at $5,000. He was,

however, unable to secure a bond for his release; and

Cuyahoga County Court records indicate that he was then

incarcerated from April 14 until August 1, 1972 when the

attempted burglary charges were dismissed.

A review of the transcript of Walker’s trial reveals

that the trial judge considered Walker’s alibi defense to

place the “character” of the Cuyahoga County Sheriff's

Department on trial. The Ohio Supreme Court, in affirm-

ing Walker’s conviction, stated that Walker

[5] having offered the records as proof of the truth

therein stated, as well as proof [sic] the facts reason-

ably to be inferred therefrom .. . placed in issue the

credibility generally of the records, the record making

process and the record keepers.

55 Ohio St. 2d at 214.

A26

An elementary rule of evidence, both under Ohio and

federal law, is that matters offered in evidence must be

relevant to the issues of the case and that evidence which

is wholly irrelevant, that is, incapable of affording any

legitimate presumption of inference as to a fact in issue,

should be excluded. Under Ohio law, relevant evidence

is “any matter of fact the effect, tendency, or design of

which, when presented to the mind, is to produce a per-

suasion concerning the existence of some other matter of

fact—a persuasion either affirmative or disaffirmative of

its existence.” Barnett v. State, 104 Ohio St. 298, 306, 135

N.E. 647, 650-51 (1922). Thus, where a fact “has a causal

connection or logical relation to another fact so as to make

the other fact either more or less probable, the first fact

is competent or is relevant to prove the second... .” Id.,

at 306, 135 N.E. at 650. This is the standard the court

shall utilize in assessing the prejudicial effect of the trial

court’s evidentiary rulings.?

States are afforded wide latitude in fashioning and

applying their own rules of evidence and criminal [6]

procedure. Manning v. Rose, 507 F.2d 889, 892 (6th Cir.

1974). Therefore, claimed trial errors relating to the ad-

missibility of evidence are matters of state law and not

generally subject to redress in habeas corpus cases, But

where the trial errors or irregularities infringe upon

a specific constitutional protection or are so preju-

dicial as to amount to a denial of due process...a

justiciable federal issue is presented in a habeas corpus

proceeding.

2. A similar definition prevails under federal law. “ ‘Rele-

vant evidence’ means evidence having any tendency to make

the existence of any fact that is of consequence to the determina-

tion of the action more probable or less probable than it would

be without the evidence.” Fed R.Evid. 401.

A27

Atwell v. Arkansas, 426 F.2d 912, 915 (8th Cir. 1970);

Maglaya v. Buckhoe, 515 F.2d 265, 268 (6th Cir. 1975).

In Maggit v. Wyrick, 533 F.2d 383, 385 (8th Cir. 1976),

the court reviewed various formulations of this due process

standard:

In order to establish a denial of due process the peti-

tioner must prove that the asserted error was so

“gross”, Taylor v. Minnesota, supra at 1121, “conspic-

uously prejudicial”, United States ex rel. Cannon v.

Maroney, 373 F.2d 908, 910 (3d Cir. 1967), or other-

wise of such magnitude that it fatally infected the

trial and failed to afford petitioner the fundamental

fairness which is the essence of due process. Lisenba

v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 289, 86

L.Ed. 166, 179 (1941). In making this determination

courts must review the totality of the facts in the

case pending before them and analyze the fairness of

the particular trial under consideration. United States

ex rel. Bibbs v. Twomey, 506 F.2d 1220, 1223 (7th

Cir. 1974)... .

In the Fifth Circuit the standard is whether the prejudicial

evidence is “material in the sense of crucial, critical, highly

significant.” Corpus v. Beto, 469 F.2d 953, 956 (5th Cir.

1972), quoting Lawrence v. Wainwright, 445 F.2d 281, 282

(5th Cir. 1971). No precise rule can be laid down. This

court is convinced, however, that under any of the above

due process formulations, the admission of highly preju-

dicial testimony that had no bearing on the elements of

the state’s case [7] or on Walker’s alibi denied him due

process of law. The injection of testimony dealing with

the following matters, cumulatively considered, was fun-

damentally unfair to the defendant and fatally infected

the fairness of his trial.

A28

A.

The fact of a criminal conviction of “Major” [Edward]

Paine was brought before the jury over the strenuous ob-

jections of defense counsel. Paine had been the Warden

of the Cuyahoga County jail. Although the dates of his

employment there are not exactly clear, it appears that

he was a jail official before and after, but not during,

Walker’s claimed confinement. The prosecutor was per-

mitted to question two defense witnesses about Paine’s

conviction. Frank Urankar, a deputy sheriff at the jail,

testified that Paine was not associated with the jail in

the summer of 1972 but rather “came back just a little bit

before the election in October or November, '72.”’ The

prosecutor pressed on:

Q: And then, Major Paine came in around No-

vember you believe?

A: He came in with Sheriff Kreiger in '69 and

he was with us for few years and then he left.

Q: Did hecome in asa major?

A: He was the warden when he came in.

Q: He started at the top in other words, right?

A: He was—

Mr. Tolliver: Object to relevancy.

The Court: Overruled.

[8] A: He was a major when he left and when

he came back. If I’m correct—I can’t remember.

Q: He's no longer with the Sheriff’s Department

now is he?

A: No, sir.

A29

Particularizing the questioning:

Q: Asa matter of fact he’s not with the Sheriff's

Department because he was indicted and found guilty

of—

Mr. Tolliver: Object, judge.

Q: ([T]heft of property, isn’t that true?

Mr. Tolliver: Objection.

The Court: Overruled.

He was indicted right.

And he was found guilty?

He was found guilty.

Of theft of property from the jail?

Property of the jail?

Is that true?

re PO? © Pb

I think it was something about two guns that

were missing.

Q: What was it evidence?

Mr. Tolliver: Continuing objection, judge, rel-

evancy.

The Court: No, it’s very relevant in this case.

Overruled.

A: Probably was the evidence. I don’t know.

Steven Popovich, who had worked with Urankar as a cor-

poral in jail security, was similarly questioned.

This testimony bore no relevance to the state’s case or

any issue concerning the accuracy of jail records or record

keeping procedures or, more generally, to the reliability of

jail security. Contrary to the trial judge’s on-the-record

A30

conclusion that Paine’s [9] conviction was “very relevant

in this case,” it had no tendency, to make the truth or

falsity of Walker’s alibi more or less probable than it

would be without the evidence. Paine’s conviction was

not an element of the crime for which Walker was

charged. Nor does the fact of that conviction make more

or less probable any fact bearing on jail security (which

would be pertinent to Walker’s alibi) or the credibility

of jail personnel responsible for jail security during

Walker’s claimed incarceration. Its sole purpose and clear

effect was to prejudice the jury’s consideration of Walker’s

alibi.

B.

The State Auditor’s Rebuttal Testimony

As part of Walker’s defense, his jail commissary

records, as well as testimony from several jail deputies

concerning those records, were introduced for the purpose

of showing numerous transactions in his account. The

commissary records were circumstantial evidence that

Walker was in jail on the dates of the transactions in

his account. The probative value of those records was

undermined, however, by testimony elicited by the prosecu-

tion’s cross-examination of various jail deputies that in-

mates other than Walker could easily have made the

purchases in his commissary account.

The prosecution did not stop with this proper and

permissible impeachment. In a transparent attempt to

show general financial corruption in the Cuyahoga County

Sheriff's Department, the prosecution, with [10] ccurt per-

mission, called Frank Lancianese, an examiner for the

Office of the State Auditor, as a rebuttal witness. He

testified, over the strong objection of defense counsel,

that an audit of the Sheriff's Department revealed a

A31

shortage of $66,000 in commissary account funds between

January 1969 and October 1975 and that the State Auditor’s

Office had encountered “obstacles” from the Cuyahoga

County Sheriff's Department in gaining access to com-

missary records.* The examiner was permitted to go into

detail concerning the Sheriff Department’s financial ac-

counting methods. This had nothing to do with jail se-

curity or record keeping procedures related to the jail

population. Nor did the auditor’s report on commissary

funds relate to the issue raised by Walker’s use of the

commissary records as circumstantial proof that Walker

was present in the jail to make the transactions in his

account.

The Examiner’s testimony went even farther afield

when he was questioned, over objection, about the pos-

sible misuse of jail vending machine profits. He testified

that there was approximately $9,000 of vending machine

commissions unaccounted for by the Sheriff's Department.

In addition, he was permitted to testify that the use of

some of the accounted for vending machine profits was

in violation of Ohio law.

[11] The admission of the state examiner’s testimony,‘

like that of “Major” Paine’s conviction, bore no relation-

ship to the state’s case or issues raised by Walker’s alibi

defense. It was wholly extraneous, highly prejudicial

and calculated to sway the jury’s consideration of Walker’s

alibi on a basis that “smacks of guilt by association.”

3. The examiner testified over objection that the Auditor’s

Office was able to gain possession of only some jail commissary

records by a state court action.

4. Other witnesses were also questioned about the Ex-

aminer’s audit. Sergeant Frank Urankar was asked if he knew

“that certain commissary records were burned before the —

.?” He answered, “No, sir’ before defense counsel could

appropriately object with, “What's this got to do with Raymond

Walker?” See also the cross-examination of Steven Popovich

A32

(Mag. 94.) Indeed, that this was the purpose is apparent

from the prosecutor’s final argument:

We have brought the records to you concerning the

audit of the sheriff's department for one reason alone.

To show you that all the thieves and the bad people

weren’t on the inside of the jail; that if you lie and

steal what says you won’t let a prisoner out for a

weekend or a few days. You know, there’s a saying

in the computer business that you put garbage in you

get garbage out. That’s what you have in those

records.

Cc.

Further putting the Cuyahoga County Sheriff’s De-

partment and jail in a bad light that undoubtedly in-

flamed the jury, the prosecution was permitted, without

any basis in the record, to insinuate that the testimony of

several defense witnesses was being coached by a member

of the Cuyahoga County Sheriff's Department. Sergeant

Frank Urankar was cross-examined as follows:

Q: Do you know a man by the name of Tom

Booth?

A: Tom Booth?

Q: Yes.

[12] A: Yes.

Q: And he’s a detective with the Cuyahoga

County Sheriff's Department is that true?

A: Yes, sir.

Q: And were you down here Friday’

A: Yes, sir.

A33

Q: And was Tom Booth down here Friday?

A: Yes, sir.

Q: And during the conduct of this trial where

was Tom Booth?

A: He was in this room.

Had he been subpoenaed as a witness?

No, sir.

He was down here on his own time?

> OP ©

That’s right. That’s what he told me.

Q@: And did he also tell you that he came down

because he had never seen a trial before?

At this point defense counsel objected “to all this... .”

The Court: Overruled.

A: He didn’t say that to me.

Mr. Tolliver: Note my exception.

Q: Do you know why he came?

Mr. Tolliver: Objection.

The Court: Overruled.

A: No, sir.

Q: And were you aware that he was taking notes

in the courtroom?

Mr. Tolliver: Objection, Judge.

The Court: Overruled.

Mr. Tolliver: That’s a fact not in evidence.

A: No, sir. After I—he came out and he said

he was called into the chamber by the judge and he

.

A34

told me that the judge asked him why he was here

and what was he doing in court. That’s all I know.

[13] Q: But you also know that during every

recess prior to that time he came out of the courtroom

and he had conversations with all of you didn’t he?

Again Mr. Tolliver objected, “Judge, note my continuing

objection.”

The Court: Overruled.

A: We talked to him but he didn’t say nothing

about the trial.

Q: What did he talk about?

Mr. Tolliver: Objection.

The Court: Overruled.

Mr. Tolliver: Man’s down here on his own time.

A: I didn’t know anything about that. I have

to come down until last Thursday when I got the sub-

poena. I didn’t even know what this case was about.

These same insinuations were made during the cross-

examination of Lawrence Pullin, a security sergeant at the

jail. The Magistrate’s conclusion with regard to this testi-

mony bears repeating:

The examination of Mr. Urankar and Mr. [Pullin]

concerning the presence of Mr. Booth in the courtroom

was completely improper. It was designed to convey

to the jury the impression that the trial was being

monitored by the office of the Sheriff of Cuyahoga

County, with an implication of impropriety, and that

the defense witnesses were being coached by Mr.

Booth. This was a public trial and all citizens, in-

cluding Mr. Booth, were entitled to attend. If the

A35

prosecution had any reason to believe that Mr. Booth’s

presence in the courtroom was violative of any court

order or rule the matter should have been presented to

the court without the jury being present and with Mr.

Booth being called to the witness stand (not the

judge’s chambers) to explain his presence and conduct.

It should not have been dragged before the jury with

unproven inferences and innuendos adverse to the

defense.

D.

In a further effort to disparage Cuyahoga County au-

thorities, a rebuttal witness of the prosecution [14] was

permitted to speculate about the delay in bringing Walker

to Stark County for trial. Canton Police Sergeant William

Newkirk was asked:

Q: When were you able to locate Raymond

Walker?®

Mr. Tolliver: Objection, judge.

The Court: Overruled.

A: First time he was actually located was in

May of 1975 when it was—he [was] picked up in

Chicago, Illinois. That was on the capias out of Cuya-

hoga County.

Q: Did—were you able to bring him to Stark

County as a result of that?

A: No, we weren’t. We weren’t able to get him

back to Ohio due to the fact that—

5. Newkirk testified that Stark County authorities had been

looking for Walker as a suspect in the A&P store robbery and

homicide since early 1973.

A36

Mr. Tolliver: Objection to this, judge. Supposed

to be rebuttal.

The Court: Overruled.

A: Due to the fact that either Cuyahoga County

would not extradite on their capias or Illinois wouldn’t

permit them. I’m not sure as to this day why it hap-

pened.

Q: Did you take that to the FBI?

Mr. Tolliver: Objection, judge.

The Court: He may answer yes or no.

A: Yes.

Q: Make any attempt to have the FBI extradite?

Mr. Tolliver: Objection.

The Court: Yeah. That’s sustained.

Once again the jury was presented with a highly irrelevant

and unsupported insinuation, creating more prejudice, [15]

that Cuyahoga County authorities impeded Walker’s ex-

tradition from Illinois to Stark County. Although New-

kirk stated that he was “not sure to this day why it hap-

pened,” the implication was clear: Cuyahoga County au-

thorities had something to hide by impeding extradition.

With the accused’s rights hanging in the balance, the jury

should not have received such prejudicial conjecture. It

impaired the jury’s perception of the defendant and his

alibi defense.

The John Appling Testimony

As part of its case-in-chief, the prosecution called

John Appling to the stand. Appling was currently serving

a nine to fifty-five year sentence at the Chillicothe Cor-

A37

rectional Institution, but in 1972 he had been incarcerated

at the Cuyahoga County jail and had served as a “range

boss” of the cell block to which Walker was assigned on

the fifth floor of the jail. Appling refused to be sworn,

stating, “I don’t want to testify.” The judge excused the

jury and proceeded to question Appling on his refusal to

testify.

Q: Is there a reason for not testifying in this case?

A: I don’t know nothing about it.

Q: You know nothing about it. And you do not

want to be under oath and make that statement to the

jury?

A: I don’t want to even be here.

Q: Are you invoking the Fifth Amendment you

don’t want to testify in regards to it might incriminate

you?

[16] A: Yes.

Q: And that is your statement, sir. Will you

please tell me that is your statement, sir?

A: Taking the Fifth Amendment.

Q: It’s not whether you want to testify, sir.

I'm asking you is the reason for not testifying is

because you are invoking the Fifth Amendment?

A: Yes.

The prosecutor stated to the court that Appling had

knowledge of certain Cuyahoga County jail activities, that

he had himself been allowed to walk free from the jail,

and that he had seen Walker outside of the jail when

Walker should have been confined.’ After an in-chambers

6. Walker's counsel disputed the contention that Appling’s

testimony would be as the prosecutor anticipated, stating instead

that it would be favorable to Walker's defense.

A38

(off the record) conversation between the trial judge and

Appling, the jury was recalled. Appling took the stand

without being sworn. He was permitted to state his name

and that he was presently located at “Chillicothe Correc-

tional in transit to Lucasville.” He was asked by the court,

“Alright, and you refused to testify, is that right, sir?” He

answered, “Yes.”

This was not the last the jury heard of John Appling,

however. The prosecution questioned seven other wit-

nesses about Appling. Ricardo Brown (the acting jail

warden in 1972) was asked if Appling was confined in

the Cuyahoga County jail between April 14 and August

1, 1972. He answered, “I believe he was.’ Willie High-

tower, a jail inmate testified on cross-examination that

Appling [17] was a “range boss” on the fifth floor. The

prosecutor’s questions were clearly designed to show that

Appling enjoyed a special status and privileges in the jail:

Q: And the man that they pick for the range boss

is usually the man that’s got some control over the

prisoners, right?

A: Yea.

Q: And he’s someone that the other prisoners

look to, right?

A: Yes.

Q: And when they got problems with the deputies

they kind of go to the range boss and he works it

out for them right?

A: No, they don’t work that like that. The only

thing a range boss can do is the guard come and ask

the guys for phone calls or do some work. He picks

out who he wants to pick out, but he can’t do nothing

like that.

A39

Q: Doesn’t the range boss also back in there

keep people under control?

A: Yeah, but they don’t have to.

Q: That’s why he gets to be the range boss isn’t

it?

A: Yes.

Q: Because he’s the man?

A: Yes.

Hightower, after denying that Appling received special

visiting privileges with his wife, stated

A: The least you can do as a range boss as far

as getting something from a guard would be [to]

get extra phone calls and maybe get over visits, and

like downstairs with visiting privileges or like talking

through this gate they got up there. They let you

sit down at a table downstairs instead.

Another défense witness, “Stretch’’ Myers, who had

been incarcerated with Davidson and Ogeltree at Lucas-

ville, testified for purposes of showing that [18] Davidson

and Ogeltree were attempting to frame Walker. On cross-

examination, the prosecutor returned to the familiar theme

of John Appling:

Q: Now, you rode back in the car from Lucas-

ville with a man named Appling didn’t you?

A: Yes, sir.

Q: Did you have any conversation with him?

A: Yes.

Q: Did you have any conversation with him

about what would happen to him when he got to Lucas-

ville?

A: John Appling?

Mr. Tolliver: Objection.

A40

The Court: Overruled.

Q@: Yea.

A: John Appling weighs two hundred and sixty

pounds. There’s not going to be much happen to him.

A few questions later:

Q: Did you say anything to him about the—if

he plays it right that he can have a nice job when he’s

down there?

Mr. Tolliver: Objection, Judge. Conversation

between him and somebody else.

The Court: Overruled.

Mr. Tolliver: And that somebody else hasn’t—

The Court: Just aminute. Overruled. You may

answer Mr. Myers.

A: Would you repeat the question please?

Q: Did you say anything about arranging if he

testified right or didn’t testify or whatever that you

could arrange a job.

A: I did not do any talking. He did the talking.

Q: Nothing was mentioned about a job at Lucas-

ville?

[19] A: You mean could I give him a job? I’m

in no position. I can’t give you a—that’s foolish.

Q: Trustees have no control over jobs and people

in various offices and in the jail?

A: Trustees? Trustees at Lucasville. There are

no Trustees.

A4l

Q: Whatever. Prisoners have absolutely no con-

trol over who does what in Lucasville?

A: That’s correct. They have a personnel de-

partment and that’s it.

Q: Prisoners work in the personnel department?

A: Yes. I do.

Q: You work in a personnel department don’t

you?

A: True.

Q: And what's your job in the personnel depart-

ment?

A: My responsibilities are midnight counts, also

payroll and A.W.O.L.’s, etc. They have a committee

who does the hirings of six people from the adminis-

tration. They vote whether you go to work. They

vote whether you don’t.

The prosecutor’s questioning of Hightower permitted

the jury to infer that one of defendant’s witnesses may

have offered a job to Appling to persuade him not to tes-

tify. But more than that, the prosecutor’s questioning of

witness after witness about John Appling obviously sought

to suggest to the jury that Appling’s testimony would have

been helpful to the prosecution had he testified and not

asserted his Fifth Amendment privilege. As the Magis-

trate stated:

This tactic was, in all probability, more beneficial

to the prosecution than if Mr. Appling had actually

testified. First, Mr. Appling appears before the jury

as a mystery man, refusing to testify. Next, the jury

discovers that not only was he in jail when Raymond

Walker was supposed to have been there (special note

A42

taken of July 21, 1972), but that he was the range

boss, the “main man” of Mr. Walker's cell block.

Then the suggestion is planted that Mr. Appling had

been promised [20] some benefit for not testifying.

The obvious conclusion to be drawn by the jury is

that the prosecution tried to present evidence which

would have been harmful to Mr. Walker’s defense

and was thwarted in that effort. All the while the

prosecution was aware that Mr. Appling had stated

to the judge that he knew nothing pertinent to the case

and that defense counsel had represented that the

night before Mr. Appling appeared in court he had

stated he was not going to testify in the manner which

the prosecution believed he might.

(Mag. 47.)

In United States v. Vandetti, 623 F.2d 1144 (6th Cir.

1980), the court discussed the constitutional problems as-

sociated with permitting the prosecution to put a witness

on the stand who will assert a Fifth Amendment privilege.

The court cautioned that at the least it carries a ‘potential

for unfair prejudice” and should be allowed only “where

the prosecutor’s case would be seriously prejudiced by a

failure to offer him as a witness... .” Two constitutional

protections are impinged upon by the practice:

([First,] such a witness permits the party calling the

witness to build its case out of inferences arising

from the use of the testimonial privilege, Namet v.

United States, 373 U.S. 179, 186 (1963), a violation of

due process.

Second, calling such a witness encroaches upon

the right to confrontation. Douglas v. Alabama, 380

U.S. 415, 419 (1965). Inferences from such a refusal

A43

may “add critical weight to the prosecution’s case in

a form not subject to cross-examination, and thus un-

fairly prejudic[e] the defendant.” Namet v. United

States, supra, 187.

Id., at 1148.

Vandetti’s rationale applies here. The repeated ques-

tioning of witnesses, over objection, about Mr. Appling,

after he had refused to testify, was “intended to build

(21] [the prosecution’s] case out of inferences arising from

the use of the testimonial privilege.” Since’ Mr. Appling

refused to testify, it was impossible for the defense to

refute the suggestion obviously being made to the jury

by the prosecution, i.e., that it had “tried to present evi-

dence which would have been harmful to Mr. Walker’s

defense and was thwarted in that effort.” (Mag. 47.)

The entire line of questioning about Appling leads this

court to conclude that Walker’s right to a fair trial was

grossly prejudiced by the suggestion that evidence was

not being presented to the jury which would have estab-

lished Walker’s guilt.

F.

Finally, the repeated use of newspaper clippings by

the prosecutor to “refresh the recollection” of numerous

defense witnesses as to events extraneous to Walker, and

the charge against him deeply invaded the defendant’s

right to a fair trial. Frank Urankar was cross-examined

by the prosecution about a prisoner strike in July 1972

and the “horrible conditions” at the jail which prompted

investigations by county commissioners and other com-

munity groups.’

7. All of these matters are of doubtful relevance to Walker’s

_ and easily susceptible to creating a prejudicial effect upon

e jury.

A44

Q: Just for a couple of days? And didn’t even

the county commissioners come down to that jail

and community groups come into that jail because

of the horrible conditions?

Mr. Tolliver: Objection, Judge. What's this got

to do with Raymond Walker?

[22] The Court: Overruled. If he’s familiar he

can answer.

A: Well, conditions are better today.

Q: Sir, I’m going back to 1972. My question

was do you recall when during 1972 specifically the

month of July the county commissioners came into

that jail as well as some common pleas judges and

community groups?

A: I didn’t see any county commissioner on my

shift or any judge on my shift in the jail.

Q: Were you aware of their coming into that

jail whether they were in on your shift or not?

A: No, sir.

Q: Did you read the newspapers?

Mr. Tolliver: Objection, Judge.

The Court: Overruled.

A: Like I said I didn’t see any county commis-

sioners or any judge in the jail.

Q: Did you read the newspapers?

A: This was four years ago.

Q: Did you read the newspapers four years ago?

A

Yes.

A45

Mr. Tolliver: Judge, objection to this.

The Court: Overruled.

(State’s Exhibit 17 and 18 marked by the Reporter)

Mr. Tolliver: (At the Bench Outside of the

Jury's Hearing) My further objection would be that

these were taken during the daytime, not when he

was working.

The Court: Ask the question first.

Q: Sir, I'm going to show you what’s been

marked for the purpose of identification as State’s

Exhibit Eighteen and ask you to examine that and

state whether you recognize it and if so as what?

A: Well, I told you before.

Q: Sir, my question is do you recognize that?

A: I remember a hunger strike because of medi-

cation complaints. I see plumbing and overcrowding.

[23] I told you without questioning that they were

sleeping on the floors; that the jail was overcrowded.

I knew about that.

The prosecutor again paraded newspaper clippings

before the jury to “refresh the recollection” of Steven

Popovich about a drug probe at the jail. Objections

were lodged and overruled by the trial judge, who stated,

“I’m just permitting him only to use it to refresh his

memory, that’s all.” But subsequent questioning by the

prosecutor demonstrates that he was (successfully) put-

ting the substance of the articles in evidence before the

jury.

Q: Do you remember anyone denying the use—

that the investigation turned up anything to substan-

A46

tiate charges that drugs were being used in the county

jail?®

Mr. Tolliver: Objection.

The Court: Overruled.

A: No, not according to that [ie., the news

article].

Q: You don’t—you didn’t. Well, let me ask you

to read paragraph two and see if that refreshes your

memory.

Mr. Tolliver: Objection, judge.

= = * *

Q: Does that refresh your recollection?

A: According to what the paper says.

sz s s *

Q: Do you remember also that those [commis-

sary] records were burned?

Mr. Tolliver: Objection.

The Court: Overruled.

[24] A: No, I don’t remember anything about

that.

Q: Take a look at that and see if that refreshes

your recollection at all concerning that.

Mr. Tolliver: Note my continuing objection,

Judge.

The Court: This is just being used to refresh

the memory only.

8. Once again the subject matter of the questioning bears

no relevancy to Walker's alibi.

A47

Although any document, including a newspaper article,

may be used to refresh a witnesses’ recollection, the man-

ner in which they were used before the jury tended to

inflame them. The prosecutor went out of his way to

let the jury know that events at the jail had made news-

paper headlines. (See Tr. 665-67, 734, 881.) The exam-

ination could not have been more effective (or prejudictaty—~

had the prosecutor simply read the complete news articles

to the jury. {

The danger of unfair prejudice to Walker Is obvious.

Newspaper articles about matters of substantial public

controversy (i.e., the jail’s “horrible conditions,” the pris-

oners’ hunger strike ‘‘against medical facilities, bail proce-

dures and overcrowding,” Tr. 667, the public probe into

the use of drugs by inmates, the destruction of commis-

sary fund records and the state audit) when brought

before the jury inhibited a dispassioned consideration of

an accused’s guilt or innocence. What Cuyahoga County

did or did not do in these matters could not be attributed

to the defendant. It appealed to anti-Cuyahoga County

provincialism at the expense of the defendant. This heavy

baggage was added to the total irrelevance of this evidence

on the issues to be decided by the trier of fact.

[25] G.

Based upon the above analysis,*® this court concludes

that Walker did not receive a fair trial. The record is

9. The Magistrate also utilizes the prosecutor’s final argu-

ment as a basis for finding the due process violation. Defense

counsel objected only to the prosecutor’s final argument concern-

ing the testimony of Mabel Potts. The final argument was not

raised on appeal and is not presented as a basis for relief in

Walker’s petition. It is therefore not appropriately considered

as a basis for relief by this court. See generally, Jackson v.

Denno, 378 U.S. 368 (1964); Wainwright v, Sykes, 433 U.S. 72

(1977). The court has reviewed the trial errors attributed to

conduct of the trial judge and does not believe they merit in-

dependent consideration.

f

Ps

A48

replete with testimony on irrelevant matters of substantial

prejudice to Walker’s defense. Gambling, drugs, prisoner

strikes, possible financial corruption, a conviction of a

third party for theft from office, and insinuations about

the coaching of testimony and efforts to hinder Stark

County’s prosecution of Walker produced a trial atmos-

phere substantially susceptible to prejudice and wholly

at odds with traditional notions of fair play and justice.

Petitioner’s third ground for relief is therefore granted.

We turn then to petitioner’s challenge to the sufficiency

of the evidence.

II.

A.

Jackson v. Virginia

Prior to the Supreme Court’s decision in Jackson v.

Virginia, 443 U.S. 307 (1979), federal courts applied the

“no evidence” standard of Thompson v. Louisville, 362

U.S. 199 (1960) when ruling on a habeas corpus [26] pe-

tition asserting that a criminal conviction rested upon

a lack of evidence. Strictly speaking, Thompson was not

concerned with the sufficiency or weight of evidence

to support a conviction, but only with whether the con-

viction “rests upon any evidence at all.” 362 U.S. at 199.

The court held that a conviction based upon a record

wholly devoid of any relevant evidence of an essential

element of the offense violated due process of law. Hence,

only where there was “no evidence” supportive of guilt

beyond a reasonable doubt on each of the essential ele-

ments of the crime was there a constitutional violation

entitling a petitioner to relief. The “no evidence” stan-

dard did not involve the notion of weighing the sufficiency

of evidence justifying conviction.’

10. As stated by Chief Justice Warren, in Jacobellis v.

Ohio, 378 U.S. 184, 202 (1964) (dissenting), “A mere modicum

of evidence may satisfy a ‘no evidence’ standard.”

A49

In re Winship, 397 U.S. 358 (1970), however, seriously

eroded the due process underpinnings of the “no evidence”

standard. Winship dealt with the sufficiency of evidence

required under due process to support a conviction. It

held that due process protected an accused against con-

viction “except upon proof beyond a reasonable doubt

of every fact necessary to constitute the crime with which

[the accused] is charged.” 397 U.S. at 364.

In Jackson, the Court recognized the effect of the

Winship standard on a federal court’s review of state

criminal convictions:

[27] The standard of proof beyond a reasonable doubt

... “plays a vital role in the American scheme of

criminal procedure,” because it operates to give “‘con-

crete substance” to the presumption of innocence, to

ensure against unjust convictions, and to reduce the

risk of factual error in a criminal proceeding. 397

U.S., at 363. At the same time, by impressing upon

the factfinder the need to reach a subjective state

of near certitude of the guilt of the accused, the stan-

dard symbolizes the significance that our society at-

taches to the criminal sanction and thus to liberty

itself. Id., at 372 (Harlan, J., concurring).

Yet a properly instructed jury may occasionally con-

vict even when it can be said that no rational trier

of fact could find guilty beyond a reasonable doubt,

and the same may be said of a trial judge sitting as

jury. In a federal trial, such an occurrence has tradi-

tionally been deemed to require reversal of the con-

viction. [Citations omitted. ]

Id., at 315-317.

A50

A federal court therefore “has a duty to assess the

historic facts when i’ is called upon to apply a constitu-

tional standard to a conviction obtained in state court.”

Jackson, supra, at 318.

The Magistrate quotes the last paragraph of the Court’s

analysis in Jackson:

We hold that in a challenge to a state criminal

conviction brought under 28 U.S.C. §2254—if the

settled procedural prerequisites for such a claim have

otherwise been satisfied—the applicant is entitled

to habeas corpus relief if it is found that upon the

record evidence adduced at the trial no rational trier

of fact could have found proof of guilt beyond a rea-

sonable doubt.

443 U.S. at 324.

However, this brief holding needs to be interpreted

in the context of the Court’s earlier pin-pointing of the

issue which the federal habeas corpus court must decide.

Thus the Court stated:

[28] But this inquiry does not require a court to

“ask itself whether it believes that the evidence at

the trial established guilty beyond a reasonable doubt.”

Woodby v. INS, 385 U.S., at 282 (emphasis added).

Instead, the relevant question is whether, after viewing

the evidence in the light most favorable to the prose-

cution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable

doubt. See Johnson v. Louisiana, 406 U.S. at 362.

This familiar standard gives full play to the responsi-

bility of the trier of fact fairly to resolve conflicts

in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.

Once a defendant has been found guilty of the crime

A51

charged, the factfinder’s role as weigher of the evi-

dence is preserved through a legal conclusion that

upon judicial review all of the evidence is to be consid-

ered in the light most favorable to the prosecution.

The criterion thus impinges upon “jury” discretion

only to the extent necessary to guarantee the funda-

mental protection of due process of law.’*

13. The question whether the evidence is constitu-

tionally sufficient is of course wholly unrelated to the ques-

tion of how rationally the verdict was actually reached. Just

as the standard announced today does not permit a court

to make its own subjective determination of guilty or in-

nocence, it does not require scrutiny of the reasoning process

actually used by the factfinder—if known. See generally

3 F. Wharton, Criminal Procedure §520 (12th ed. 1975 and

Supp. 1978).

443 U.S. at 318-19. After the holding quoted by the Magis-

trate and after reviewing the Jackson facts, the majority

significantly further delimited the power of the federal

habeas corpus court in applying the new Jackson principle:

Only under a theory that the prosecution was

under an affirmative duty to rule out every hypothesis

except that of guilt beyond a reasonable doubt could

this petitioner’s challenge be sustained. That theory

the Court has rejected in the past. Holland v. United

States, 348 U.S. 121, 140. We decline to adopt it today.

Under the standard [29] established in this opinion

as necessary to preserve the due process protection

recognized in Winship, a federal habeas corpus court

faced with a record of historical facts that supports

conflicting inferences must presume—even if it does

not affirmatively appear in the record—that the trier

of fact resolved any such conflicts in favor of the

prosecution, and must defer to that resolution.

Id., at 326.

A52

B.

The State’s Case

This court need not review the testimony of each

prosecution witness. But for purposes of analysis under

Jackson, the testimony of several key witnesses will be

assessed.

Davidson and Ogeltree both testified concerning Walk-

er’s planning of and participation in the A&P store robbery

and homicide. In virtually all respects, their testimony

corroborated one another as to the details of the crime—

Walker enlisting the aid of Ogeltree who took Walker

to Davidson, Davidson’s theft of a white Plymouth auto-

mobile at Walker’s request to be used in the robbery

along with Walker’s use of a brown Maverick, the aborted

robbery attempt on July 21, 1972, the return to Canton

on July 22, the robbery, homicide and getaway.

Davidson testified that Walker, Ogeltree and a man

named Bennett, who also participated in the robbery, en-

tered the A&P store armed with handguns. Ogeltree testi-

fied that he saw Walker shoot Guy Mack at one of the

checkout counters. Three shots were [30] fired, two

of which struck Mr. Mack, fatally wounding him.

In his analysis, the Magistrate frankly states that

he is “assessing the credibility of the testimony of Messrs.

Davidson and Ogeltree....” Davidson and Ogeltree are

“inherently unbelievable” because, in the Magistrate’s

view, Ogeltree may have harbored a personal grudge

against Walker." In addition, he noted that both Ogeltree

11. Defense testimony suggested that Ogeltree was lying

about Walker’s participation and the robbery and homicide be-

cause Walker had been romantically involved with Ogeltree’s

former wife. While this was certainly a matter affecting Ogle-

tree’s credibility, the jury was entitled to reject the inference

the defense wished to be drawn. The marital relationship be-

tween Ogeltree and his wife had apparently ended well before

Walker became involved with her. Moreover, the end of the

marital relationship had occurred severa] years before the rob-

bery and homicide.

A53

and Davidson stood to gain a recommendation of leniency

to the Governor if they identified and testified against

Mr. Mack’s killer.

By frankly ‘‘assessing the credibility” of state’s wit-

nesses Ogeltree and Davidson, the Magistrate assumed a

function that belonged alone to the state court trier of

fact. In deferring to the presumption “that the trier

of fact resolved any ... conflicts in favor of the prosecu-

tion,” as the federal habeas corpus court [31] must do,

it is not for this court (nor the Magistrate) to assess

the credibility of any of the state’s witnesses.’?

Clarence Cash, an operator of an “after hours” bar

in Cleveland and acquaintance of Warren Davidson and

Raymond Walker, testified that he had a conversation

with Walker at the Pink Lady Bar in Cleveland sometime

in late May or June of 1972. He stated that Walker

asked him, “How was Bay-Bay on a job?” Bay-Bay is

a nickname for Davidson and “job” is a street term for

robbery. He further testified that he saw Walker at the

bar on another occasion sometime before June 18, 1972.

James Curry, a “running mate” or friend of Davidson

and Ogeltree, testified that he talked with Walker around

mid-June of 1972 at a garage on 125th street. The testi-

mony of Cash and Curry is important because it places

Walker not in jail but free in Cleveland in June 1972.

12. Apart from the Jackson limitation in the function of

the federal habeas corpus court, it is always true that only the

trier of fact is able to measure witness credibility. Pleading a

cold transcript is no substitute for personally viewing the wit-

ness. The demeanor of witnesses in the presentation of live

testimony is an invaluable tool which only the trier of fact can

evaluate. Courts have repeatedly held that the credibility of

witnesses is not a matter of review for a federal habeas corpus

court. Pigford v. United States, 518 F.2d 831, 836 (4th Cir,

1975); Edwards v. Sasser, 462 F.Supp. 374, 376 (E.D. Va. 1979).

Jackson has not altered that standard.

A54

“ex It directly conflicts with Walker's alibi defense that he

was-incarcerated during that period of time.

The Magistfate discredits the testimony of both Cash

and Curry. The testimony of Mr, Curry is thus dis-

counted:

[32] Mr. Curry, who was picked up as a suspect

by Officer Floyd as resembling one of the persons

depicted in composites circulated by the Canton Police

and by his own admission “a running mate” of Warren

Davidson and Fred Ogeltree, fixed his conversation

as having taken place during the week before Roose-

velt Holden was killed. That would have placed it

about June 11, 1972. The record establishes without

any contradiction that on June 12, 1972, Raymond

Walker appeared before [a] judge of the Common

Pleas Court of Cuyahoga County. That being so, he

could hardly have been on the street a day earlier.

(Mag. 104.) The first difficulty with this analysis is

that the Clerk of Court’s records did not show that Walker

was in court on June 12, although the jail records indicate

that he had a court appearance on that date. This dis-

crepancy was for the jury, not this court (or the Magis-

trate), to resolve. Further, the Magistrate deduces that

the conversation between Walker and Curry was “about

June 11, 1972.” He reaches this conclusion because Curry

testified that the conversation was “during the week before

Roosevelt Holden was killed (stipulated to have happened

on June 18, 1972).” The Magistrate then concludes, “That

being so, Walker could hardly have been on the street

a day earlier,” that is, one day before Walker’s June 12

court appearance. Resolving any conflict in the evidence

concerning the exact day of the conversation was a factual

judgment for the jury to make. Viewing the evidence

in the light most favorable to the prosecution, this court

A55

(and the Magistrate) must presume that the jury con-

cluded that a conversation [33] occurred and indeed that

it happened within the time frame testified to by Curry.”

The prosecution produced a distinterested eyewitness,

Rene Clark, who was within fifteen feet of the checkout

counter where Mr. Mack was shot. She testified that

she got a good look at the robber at the checkout counter.

She positively identified Walker as the man who shot

Mr. Mack. She did not change her in-court identification

despite a rigorous cross-examination by Walker’s counsel.

He attacked her in-court identification by referring to

a line-up in which she did not identify Walker and placed

a question mark by the number of another stand-in. On

redirect, she testified that she purposefully made a mis-

identification out of fear. This is the redirect interro-

gation:

Q. Miss Clark, going to that particular lineup

situation I’d like you to tell the jury fully what hap-

pened, how you came about circling number one and

putting the question mark. Explain to them what

you have explained to me previously.

Mr. Tolliver: Objection to this.

The Court: Overruled.

[34] A. Well, they called me and I came down

and I got a son. He’s two months old now and I

13. Similarly doubting the credibility of Cash’s testimony,

the Magistrate queries, “{[W]hy Raymond Walker had to be led

to the neighborhood car-thief (Warren Davidson) by Fred Ogel-

tree the morning of his planned crime when he had been in-

quiring about the same person [with Cash] almost two months

earlier?” Again, however, this is a matter for the jury to settle.

Viewing the evidence in the light most favorable to the prose-

cution, this court (and the Magistrate) must presume that the

jury resolved any conflicts in the evidence in favor of the prose-

cution and concluded that the conversation occurred between

Cash and Walker as Cash testified.

A56

went in and I noticed the man when I went in there,

but I got a cold chill, you know what I’m saying?

Q. Now, when you say you noticed the man

when you walked in there what do you mean?

A. I recognized him on the robbery.

Q. Who?

A. The man in the plaid jacket.

Q. You're indicating the defendant?

A. Uh, huh.

Q. O.K.

A. And I went in there and I looked, you know,

and the man told me he said circle the one that

you think it is and if you’re not sure put a question

mark. I asked him again, and I couldn’t talk to

nobody else. So I had to—I wanted to make sure

that I heard him right, and so I went in there and

I circled it. And then Detective Newkirk—

Q: Let me just stop you there fore (sic) one

second. When you walked in and you looked at the

lineup were you sure right then.

Mr. Tolliver: Objection.

The Court: Overruled.

A. When I walked in I knew who it was and

I was sure but I was scared to, you know—I didn’t—

Q. Go ahead. Then you said you walked out.

A. I walked out and I went into this little room

and they have where you sign this paper that he

showed me and I put a circle and put a question

mark by it and Detective Newkirk came out and I

said Newkirk, you know—

A57

Mr. Tolliver: Objection to this conversation.

A. I knew—

The Court: Not what someone told you, Miss

Clark. she added that Walker ‘‘positively looks like

him.”

A. I told Detective Newkirk that I knew—that

I recognized him when I walked in there and I got

scared and I circled number one with a question mark.

[35] Q. When you said that did you say a par-

ticular number to Detective Newkirk?

A. Number five.

Q. Did you say I knew it was number five?

A. I said I recognize—

Mr. Tolliver: Objection.

The Court: Overruled. You may answer.

A. I said I recognized number five and I circled

number one and put the question mark by it. Be-

cause I just got—I just got stiff. I don’t know. Some-

thing just came over me. I got scared when I went

in there.

The Magistrate dismisses Ms. Clark’s explanation

because

[i]t is inconceivable that an experienced police officer

who had dedicated three years to solving the murder

of a fellow officer would permit the only eyewitness

who could identify his prime suspect to walk away

from the lineup with a threat to “kick your butt

all the way back to Detroit” [testified to by a public

defender who attended the line-up on behalf of Walker]

ringing in her ears, rather than making some effort

to have her correct the identification.

A58

(Mag. 103-04.) The question is simply not whether the

Magistrate or this court believes the testimony. Such

speculation about Rene Clark’s testimony is plainly at

odds with the requirement that the evidence be viewed

in the light most favorable to the prosecution, resolving

all conflicts in its favor and deferring to that resolution.

Other corroborating witnesses testified for the pros-

ecution. Mr. Mack’s wife, Mabel Mack, although unable

to positively identify Walker as her husband’s killer,

testified that Walker “looks very much like the man”

who shot her husband. On cross-examination she added

that Walker “positively looks like him.” [36] She was

then asked, “Are you saying that the features [of Walker]

are similar to the person you saw?” She answered,

"Ten"

Mrs. Willie Mae Hart, who resided near the A&P

store, testified that shortly after the shooting she saw

a brown compact automobile leave the scene of the crime,

driven by a black male with a bad complexion similar

to Walker’s. Although she could not positively identify

Walker, she testified that they both had the same charac-

teristic, a bad complexion. Her testimony also supported

Ogeltree’s and Davidson’s statement that Walker escaped

from the A&P store parking lot alone, driving the brown

Maverick, while the three other participants left in the

white Plymouth driven by Davidson. ¢

The testimony of the state’s principal fact witnesses

has now been reviewed. Rather than dismiss the pro-

bative value of the testimony of these witnesses as the

Magistrate did, the court must credit each of these wit-

nesses insofar as the testimony bears on the ultimate

issue to be decided by this court: whether any rational

trier of fact could find Walker guilty beyond a reasonable

A59

doubt (as emphasized in Jackson, supra, at 319). What

the Magistrate has done, Jackson says he should not do:

But this inquiry does not require a court “to ask

itself whether it believes that the evidence at the

trial established guilt beyond a reasonable doubt.”

443 U.S. at 319.

(37] C.

Walker’s Alibi

The prosecution, well aware of Walker’s alibi defense,

acknowledged from the outset that Cuyahoga County jail

records, on their face, recorded Walker as having been

incarcerated between April 14 and August 1, 1972. Like

any other alibi, however, Walker’s alibi was subject to

attack.

Prisoners upon entering the jail were recorded in

the jail register at the booking desk which kept the jail’s

total inmate population. Cards with each inmate’s photo-

graph and personal data were filled out. One card re-

mained at the booking desk while the other was kept on

the floor where the prisoner was assigned.

Ricardo Brown, the acting Cuyahoga County jail

warden between April and August 1972, testified in the

prosecution’s case-in-chief. He stated that deputies on

each floor were responsible for “keeping count of the

prisoners.” On each floor, the deputies kept “daily report

sheets” consisting of tallies of card counts and physical

or “head” counts of the prisoners. He testified that the

prisoners on each floor were “theoretically” to be counted

on each of three daily shifts. But ‘“‘as a matter of practice,”

a physical or “head” count of prisoners was conducted

only on the third shift (11 p.m. to 7 a.m.). The other

shifts simply did not physically count the prisoners.

A60

Ricardo Brown also testified regarding specific discrep-

ancies in the daily report sheets for several floors on

various [38] days, including July 21 and 22, 1972. For

instance, the daily report sheet for the fifth floor

(Walker’s), second shift (3 p.m.-1l p.m.), on July 21,

1972, showed a “head” count of 175 and a card count of

162. The daily report sheet for the same floor, first

shift (7 am. to 3 p.m.) on July 22, 1972 (the day of

the murder), showed a “head” count of 174 and a card

count of 175. Comparisons for the other floors showed

similar discrepancies.

Several sheriff’s deputies assigned to jail duties also

testified about prisoner counts. One of these, Security

Sergeant Urankar, agreed that “every night... the body

count from the floor had to match the body count down

at the booking desk.” He further answered “no, sir” to

the question, “From what you were shown by the pros-

ecutor, was there any discrepancy in any of the records

that were shown to you by the prosecutor as to the body

count?”

The Magistrate thus summed up the jail prisoner count

testimony:

While the prosecution was able to demonstrate

some discrepancies in the testimony of the sheriff's

deputies who appeared as defense witnesses regarding

the particulars as to how certain procedures were

carried out at the Cuyahoga County Jail, there was

no evidence that at anytime during the critical time

period the total head count of prisoners on the several

floors differed from the count of the jail population

as maintained at the booking desk.

(Mag. 102.)

14. Brown also testified that “more often than not” when

the head count did not match the card count, the deputies simply

changed one or the other so that they would match. (Tr. 89.)

A61

[39] Since none of the prisoner counts were stip-

ulated, it was for the jury to decide from the jail records

in evidence as well as the oral testimony of jail security

personnel what weight, if any, should be given to the

various counts. Thus the jail records did not provide

“conclusive” proof that Walker was in jail on July 22

as Walker argues in the margin.’® It is correct, as the

Magistrate concludes, that “there was no evidence that

... the total head count of prisoners on the second floor

differed from the count of the jail population as main-

tained at the booking desk.” But jail officials also testi-

fied that the “head’”’ and card counts on each floor were

supposed to match. (See Tr. 369-70, 401-02, 638, 700-01,

723-24.) The fact that “more often than not” those counts

failed to match certainly bears on the general reliability

of the jail records and the efficiency of jail personnel.**

Other testimony questions the accuracy and reliability

of the jail records. Thomas Baker, the assistant chief

[40] of records at the jail, testified that jail records indi-

cated that Walker left the jail for court appearances

on April 14, 20, and 26, May 18 and 19, June 12 and 13,

and August 1, 1972. Yet the appearance docket of the

Cuyahoga County Clerk of Courts showed that Walker

15. “[T]he record is conclusive that Walker was in the

Cuyahoga County jail on the day Guy Mack was killed, July 22,

1972. . . The jail records revealed that the third shift body

count corresponded with the booking desk records indicating that

the full complement of prisoners was present (T. 78-80, 369, 370,

691, 703, 704, 731, 781, 782, 892). [The balance of this argu-

ment falls because it depends on the assumption just argued that

the jail records are “conclusive.” As seen, this assumption is not

established.] To get into the jail, one must pass the booking

desk, two locked gates and a locked door, each of which must

be manually unlocked and take one of two manually operated

elevators to the upper floors of the jail. (T. 696-699). To get

out the reverse procedure must be followed.”

16. Indeed, several of the daily report sheets showed that

during various shifts, no card counts were even taken; or, if

taken, were not recorded. (See Tr. 668.)

A62

appeared in court only on April 14 and 26 and August 1,

1972. They do not show appearances on April 20, May 18

and 19, and June 12 and 13, 1972. (See Tr. 883-85.)

Reasons were presented to the trier of fact for disbe-

lieving the accuracy and reliability of the jail records.

Thus the records cannot be regarded as “conclusive’”’ proof.

Indeed, the Magistrate ignores the jury’s right to

accept all, or part or none of the jail records testimony.

Moreover, the jury was entitled to draw whatever infer-

ences, within its discretion, the evidence warranted, Thus,

for example, the jury might have given significance to

the fact that the head count was taken only once and

then on the third shift (11 p.m.-7 am.). Hence, even

the comparison of the total head count (of all floors)

with the booking desk count (jail slate or alternatively,

the jail register) at best gave only a once a day count

of the total jail population. Thus it offered no proof

as to the presence or absence of a prisoner from the

jail during the balance of each 24-hour day.

Although seven Cuyahoga County jail officials testi-

fied about the records and record keeping procedures,

no jail official testified on personal knowledge that [41]

Walker was incarcerated between April and August 1972

or, more particularly, on July 21 and July 22, 1972. Three

inmates of the jail testified that Walker was incarcerated

and to their knowledge did not escape at any time. Never-

theless it was for the jury, hearing those witnesses, to

determine their credibility and to doubt the reliability

of their testimony if it so chose.

Other witnesses testified on Walker’s behalf for the

purpose of impeaching the credibility of Davidson, Ogel-

tree and Rene Clark. Here, too, credibility was a matter

for the jury to determine first hand, and under Jackson,

giving weight to their testimony is not within the author-

ity of this court (or the Magistrate).

A63

The conflicting evidence undoubtedly presented the

jury a difficult question of fact. Yet, alibi defenses in-

variably present such conflicts. For instance, in Harris

v, Clusen, 487 F.Supp. 616 (E.D. Wisc. 1980), the habeas

corpus petitioner had been convicted in state court of

armed robbery. The prosecution presented four witnesses

to the robbery in Milwaukee, Wisconsin who identified

the petitioner as the robber. The petitioner presented

the alibi testimony of several family members that he

had been at a family gathering in Chicago, Ilinois on

the day of the robbery. Petitioner challenged the suffi-

ciency of the evidence under Jackson. Denying relief,

the court stated:

Viewing the evidence in this case in the light most

favorable to the prosecution, four persons identified

the petitioner as the person who committed [42]

the armed robbery, and one testified that she saw

a gun in petitioner’s possession during the commis-

sion of the robbery. Given the directly contrary

testimony of petitioner’s witnesses that he was in

Chicago at the time, the jury as the trier of facts

was required to choose between believing the pros-

ecution’s or the petitioner’s witnesses, and it was

entitled to make that choice in the manner which

it did.

Id., at 617-18. Although Walker’s alibi evidence is unique

and differs from the nature of the alibi evidence presented

in Harris, the point remains that under Jackson conflicts

in the evidence are to be resolved by the federal habeas

corpus court in favor of the prosecution. The trier of

fact in this case, as in Harris, was “entitled to make that

choice in the manner which it did.” On the competent

and relevant evidence of record, this court cannot say

the jury acted irrationally.

A64

III.

Conclusion

For the reasons stated in Part I of this memorandum,

Walker’s third ground for relief is granted. For the rea-

sons stated in Part II of this memorandum, the first and

second grounds for relief are denied. Unless the state

chooses to retry Walker within 120 days from the filing

of the memorandum and order of this court, Raymond

Walker shall be released.

IT IS SO ORDERED.

/s/ Witiram K. ToomMas

U.S. District Judge

A65

SUPPLEMENTAL MEMORANDUM AND ORDER

OF THE UNITED STATES DISTRICT COURT

(Filed February 2, 1981)

C79-2132

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

RAYMOND WALKER,

Petitioner,

VS.

ARNOLD R. JAGO, SUPT.,

Respondent.

SUPPLEMENTAL MEMORANDUM AND ORDER

Tuomas, J.

I,

On January 28, 1981, this court issued a memorandum

and order granting the third ground for relief in Raymond

Walker’s petition for a writ of habeas corpus. At p.19 of

the memorandum, this court stated, “The prosecutor's

questioning of [Willie] Hightower permitted the jury to

infer that one of defendant’s witnesses may have offered

a job to [John] Appling to persuade him not to testify.”

As clearly indicated by the quotations of testimony pre-

ceding the above statement in the memorandum, this

court’s reference at p.19 should have been to the prose-

cutor’s questioning of “Stretch” Myers, another defense

witness, and not to Willie Hightower.

A66

II.

One week before this court issued its memorandum

and order, the Supreme Court decided the case of [2]

Sumners v. Mata, 49 U.S.L.W. 4133 (1981), which dealt

with the presumption of correctness under 28 U.S.C.

§2254(d) to be applied in federal habeas corpus proceed-

ings where a state court has made “a determination after

a hearing on the merits of a factual issue....” Sua sponte

this court shall consider the effect of section 2254/(d),’ as

elucidated in Sumner, on the ruling in Part I of the

January 28 memorandum and order.

1. Subsections (1)-(7) of section 2254(d) have no applica-

tion in this case. Section 2254(d) (8) provides:

(d) In any proceeding instituted in a Federal court

by an application for a writ of habeas corpus by a person

in custody pursuant to the judgment of a State court, a de-

termination after a hearing on the merits of a factual issue,

made by a State court of competent jurisdiction in a proceed-

ing to which the applicant for the writ and the State or an

officer or agent thereof were parties, evidenced by a written

finding, written opinion, or other reliable and adequate writ-

ten indicia, shall be presumed to be correct, unless the ap-

plicant shall establish or it shall otherwise appear, or the

respondent shall admit—

® * * eo @

(8) or unless that part of the record of the State court

proceeding in which the determination of such factual issue

was made, pertinent to a determination of the sufficiency

of the evidence to support such factual] determination, is pro-

duced as provided for hereinafter, and the Federal court

on a consideration of such part of the record as a whole

concludes that such factual determination is not fairly sup-

ported by the record: And in an evidentiary hearing in the

proceeding in the Federal court, when due proof of such

factual determination has been made, unless the existence

of one or more of the circumstances respectively set forth

in paragraphs numbered (1) to (7), inclusive, is shown by

the applicant, otherwise appears, or is admitted by the re-

spondent or unless the court concludes pursuant to the pro-

a = ae aes 2 that the record in the

State court proceeding, as a whole, does not

fairly support such factual determination, the burden shall

rest the applicant to establish by convincing evidence

that factual determination by the State court was er-

roneous.

A67

[3] In Sumner, on the basis of 28 U.S.C. §2254(d),

the Supreme Court vacated and remanded a Ninth Circuit

decision granting a writ of habeas corpus. The court of

appeals had held that a pretrial photographic identifica-

tion procedure used by state police was impermissibly

suggestive and gave rise to a substantial likelihood of

misidentification of the petitioner in violation of the due

process clause of the Fourteenth Amendment. The

Ninth Circuit’s findings were “in conflict with the con-

clusion reached by every other state and federal judge

after reviewing the exact same record.”* 49 U.S.L.W. at

4136.

Writing for the Court’s majority, Justice Rehnquist

observed:

[I]t is apparent that the Court of Appeals for the

Ninth Circuit did not apply the “presumption of cor-

rectness” which is mandated by [28 U.S.C. §2254(d) ]

to the factual determinations made by the California

state courts. Indeed, the court did not even refer

in its opinion to §2254(d).

2. The habeas corpus petitioner in Sumner had been con-

victed of first degree murder of a fellow inmate at a state cor-

rectional facility. On appeal, the California court of appeals

held that the photographic identification procedure was fair,

finding that “there [was] no showing of influence by the investi-

gating officers; that the [state identification] witness had an

adequate opportunity to view the crime; and that their descrip-

tions [were] accurate.” Sumner, 49 U.S.L.W. at 4134 (quoting

the California decision). A state habeas corpus action by pe-

titioner was unsuccessful.

A federal district court denied the petitioner a writ of habeas

corpus. The Ninth Circuit reversed and granted the writ. It

found (1) that the circumstances surrounding the witnesses’ ob-

servation of the crime gave rise to a likelihood of misidentifica-

tion; (2) the witnesses had not given sufficiently detailed de-

scriptions of the assailant; and (3) considerable pressure from

prison officials and prison factions had been exerted upon the

witnesses. 611 F.2d at 758-759.

A68

[4] When Congress provided in §2254(d) that a

habeas corpus court could not dispense with the “pre-

sumption of correctness’ embodied therein unless it

concluded that the factual determinations were not

supported by the record, it contemplated at least some

reasoned written references to section 2254(d) and

the state court findings.

Id.

The Court recognized that federal habeas corpus pro-

ceedings have created a source of friction between the

state and federal judicial systems. The Court concluded

that “Congress obviously meant to alleviate some of that

friction when it enacted subsection (d)” to section 2254

in 1966. “This interest in federalism requires deference

by federal courts [under section 2254(d)] to factual deter-

minations of all state courts.” Id. at 4135. Accordingly,

the Court held that

a habeas court should include in its opinion granting

the writ the reasoning which led it to conclude that

any of the first seven factors [of section 2254(d)]

were present, or the reasoning which led it to conclude

{under subsection (8)] that the state finding was

“not fairly supported by the record.”

Id. at 4137.

This court is aware that the Ohio Supreme Court,

on Walker’s direct appeal, considered what it termed “con-

tested testimony” and rejected Walker's allegations of er-

ror. Without detailing the substance ‘of the “contested

testimony,”® the Ohio Supreme Court adopted the Ohio

[5] court of appeal’s reasoning that Walker

3. Petitioner’s brief before the Ohio Supreme Court dis-

cussed each of the evidentiary errors upon which this court relied

in Part I. The only specific discussion of the “contested testi-

(Continued on following page)

A69

having offered the records as proof of the truth there-

in stated, as well as proof of the facts reasonably

to be inferred therefrom ... placed in issue the

credibility generally of the records, the recordmaking

process and the record keepers.

55 Ohio St. 2d at 214. The Court stated:

Upon a review of the contested testimony, we

find that it was relevant, in that it tended to disprove

the accuracy of the jail records, which was a question

in dispute in the instant cause. The contested evi-

dence went to the credibility of the various jail records

by demonstrating the overall inefficiency of the per-

sons and the system in which they were maintained

and the general lack of inmate supervision.

Id. In addition, the Court found that the admission of

the “contested testimony” was “neither an abuse of dis-

cretion nor a resultant prejudicial harm to [Walker].”

Id.

In Part I, subsections A-F of this court’s memorandum

and order, six separate evidentiary “episodes” at peti-

tioner’s trial were reviewed and analyzed. In each subsec-

tion it was concluded, contrary to the Ohio Supreme Court,

that the factual information, permitted by the trial court

to be presented to the jury, was either completely irrele-

vant to the issues raised by Walker’s alibi defense or

grossly prejudicial to a fair consideration of that defense

by the jury (or both). It was concluded that the eviden-

Footnote continued—

mony” by the Ohio Supreme Court concerned evidence of gam-

bling at the Cuyahoga County Jail. 55 Ohio St.2d at 214,n.2. The

relevance (or lack thereof) of that testimony was not one of the

six main evidentiary errors in subsections A-F of Part I upon

which this court relied in finding a constitutional violation.

i

A70

tiary errors when considered together amounted to a due

process violation.

This court’s determination in Part I is “considerably

at odds” with the conclusion of the Ohio Supreme [6]

Court. See Sumner, supra, at 4134. The conflicting deter-

minations, however, are not, strictly speaking, findings

of fact within the meaning of section 2254(d). They are

legal conclusions about the relevancy and prejudice of

evidence presented at Walker’s trial. At most they are

mixed questions of law and fact. Nevertheless, to the

extent that the Ohio Supreme Court’s decision may im-

plicitly embody any findings of fact, this court concludes,

for the reasons set forth in Part I, subsections A-F of

the memorandum and order, that such findings of fact

are not “fairly supported by the record” and are therefore

not entitled to the “presumption of correctness” set forth

in section 2254(d).

Il.

Petitioner moves this court, pursuant to Fed.R.App.P.

23(c) to order his release from custody upon a personal

recognizance bond or other appropriate bond, pending the

respondent’s appeal from this court’s decision. Respondent

opposes petitioner’s motion but requests that, if granted,

bond be set at an amount and with sufficient sureties

to secure his appearance for retrial. In addition, respon-

dent requests this court to stay its order requiring a retrial

within 120 days from January 28, 1981. A hearing on

petitioner’s motion [7] to set bond and respondent’s re-

quest for a stay is hereby scheduled for April 3, 1981

at 3:00 p.m. An appropriate order shall be issued to se-

cure petitioner’s presence at the hearing.

IT ISSO ORDERED.

/s/ Witt1am K. THOMAS

U.S. District Judge

A7l1

ORDER OF THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT DENYING

MOTION FOR REHEARING

(Filed June 24, 1983)

Nos. 81-3117, 81-3260

JNITED STATES COURT OF APPEALS

For THE SIXTH CIRCUIT

RAYMOND WALKER,

Petitioner-Appellee,

Vv.

TED ENGLE,

Respondent-Appellant.

ORDER

BEFORE: KEITH and Jones, Circuit Judges, and Brown,

Senior Circuit Judge.

The appellant has filed a motion for a rehearing and

suggestion for rehearing en banc in the above-styled case.

A majority of the active Judges of this Court have not

favored a rehearing en banc and the motion was, thus,

referred to the original panel. Upon consideration of the

appellant’s request, the panel has noted nothing of sub-

stance which was not carefully considered before issuance

of the Court’s order. Accordingly, the motion for rehearing

is hereby DENIED.

ENTERED BY ORDER OF THE COURT

/s/ Joun P. HEHMaAN

Clerk