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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 464 U.S. 951

## Text

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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 cou

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0153%3A1. Public record. Not legal advice.