Opposition Brief — Foltz v. Hopson

EDITOR'S NOTE

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No. 87-120

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IN THE SUPREME COURT OF THE UNITED STATES

i

OCTOBER TERM 1986

DALE FOLTZ, PETITIONER

JONATHON HOPSON, RESPONDENT

ANSWER TO PETITIUN FOR WRIT OF CERTIURARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ROBERT F. WHITE (P31788)

Attorney for Respondent

2850 Dixie Highway

Pontiac, MI 48055

(313) 674-4320

TIMOTHY A. BAUGHMAN (P24381)

Attorney for Petitioner

12th Floor, 1441 St. Antoine

Detroit, MI 48226

(313) 224-5796

A, TABLE OF

INDEX OF AUTHORITIES

STATEMENT OF CASE

SUMMARY OF ARGUMENT

ARGUMENT

CONCLUSION

NTENTS

2

24

PAGE

B, INDEX OF AUTHORITIES

Cases

Fuller v. Anderson, 662 F. 2d 420, 424 (CA 6, 1981)

in re: » 397 U.S. 358; 90S. Ct.

1068; 25 Le. Ed. 2d 368 (1970)

Jackson yv, Virginia, 943 U.S. 307; 99 S. Ct. 2781,

2791-2792; 61 L. Ed. 2d 560 (1979)

Justices of Boston Municipal Court yv, Lydon,

466 U.S. 294; 104 S. Ct. 1805; 80 L. Ed 2d

311 (1984)

People v,. Burrel, 253 Mich 321, 323; 235 NW 170

(1931)

People v, Da Ort, 122 Mich App 159, 163-164;

332 NW2d 440 (1982)

People vy. Lucas, 402 Mich 302, 304; 262 NW2d

662 (1978)

People vy. Palmer, 392 Mich 370; 220 NW2d 393 (1974)

People vy, Turner, 125 Mich App 8, 11; 336 NW2d 217

(1983)

People vy, Williams (on remand) 117 Mich App 505,

513; 324 NW2d 70 (1982)

U.S. vy, Babers, 787 F. 2d 1022, 1027 (CA 6, 1985)

Statutes

28 U.S.C. 2254

MCLA 750.317; MSA 28.549

MCLA 767.39; MSA 28.979

Other

Michigan Criminal Jury Instruction, CJI 16:03:01

ii

14,

15

12,

21,

21,

14,

14

14,

13,

14

14,

a2

12,

13

13

12,

PAGE

17, 18

15, 20,

gas 62

22

16, 17

15

19

23

13

Ce. STATEMENT OF CASE

On June 9, 1981, after a five (5) day jury trial which

included the testimony of 15 witnesses and the introduction of 24

exhibits, Respondent Jonathon Hopson was convicted of Second-

Degree Murder in violation of MCLA 750.317 and Possession of a

Firearm in Commission of a Felony contrary to MCLA 750.227(b).

The original charge against Respondent was First-Degree Murder in

violation of MCLA 750.316 and the firearm count, however, the

jury returned a verdict for the lesser included offense of

Second-Degree Murder. On June 24, 1981, Respondent was sentenced

to life imprisonment for Second-Degree Murder and he received a

two (2) year sentence for Felony Firearm. On January 27, 1983,

the Michigan Court of Appeals, in an unpublished per curiam

Opinion, affirmed Respondent's conviction for Second-Degree

Murder but vacated the fire arm conviction. People v,. Jonathon

Hopson, Docket No, 60184 (January 27, 1983). On November 30,

1984, the Michigan Supreme Court denied Respondent's Delayed

Application for Leave to Appeal, however, Justice Levin, writing

separately, voted to grant leave to appeal Respondent's

conviction to consider whether there was sufficient evidence that

Respondent "participated in a concert action to murder". People

Vv. Jonathon Ho , Docket No. 71063 (November 30, 1984).

On January 22, 1985, while being incarcerated in the state

prison of Southern Michigan at Jackson, Respondent filed a

Petition Under 28 U.S.C. 2254 for Writ of Habeas Corpus by a

person in state custody. The in pro per Petition raises one and

only ground in support of the granting of the Petition, that is,

that Respondent's conviction for Second-Degree Murder was

"founded upon insufficient evidence" specifically, “the trial

record; does not support any evidence in terms of the essential

elements of the criminal offense, or as an aider and abettor as

defined by state law, which could justify any rational trier of

facts in concluding guilt beyond a reasonable doubt". Petition

for Writ of Habeas Corpus, Section 12(A), p. 5. On February 26,

1985, the Wayne County Prosecutors Office responded to Mr.

Hopson's Petition by filing an Answer to Petition to Writ of

Habeas Corpus and Brief in Support. On January 19, 1986,

pursuant to its Memorandum Opinion and Order Denying Petitioner's

Application for Writ of Habeas Corpus of that same day, the

Honorable George LaPlata enter Judgment and only judgment denying

Petitioner's Writ of Habeas Corpus, On February 10, 1986,

Respondent filed his in pro per Notice of Appeal from Judge

LaPlata's Judgment of January 10, 1986. On that day also,

Respondent filed a Petition for Certificate for Probable Cause

which was denied by Judge LaPlata on February 14, 1986 pursuant

to his Memorandum Opinion and Order.

Subsequently, Respondent sought review of the denial of his

Petition for Writ of Habeas Corpus from the Sixth Circuit Court

of Appeals. After briefs were submitted by the respective

parties and oral argument was conducted, on May 20, 1987 the

Court of Appeals in a per curiam decision reversed the district

court and granted Respondent's Writ of Habeas Corpus, Petitioner

now seeks this Honorable Court's review of the Sixth Circuit's

decision. The pertinent facts are as follows.

In the early morning hours of October 10, 1979, Alfred

Hagwood, also known as the "Wolfman", suffered a fatal shotgun

wound to the right side of his body. [Tl, p. 140] According to

the coroner that performed the autopsy later that day, the fatal

wound to the deceased was inflicted by a single shotgun shell

that had been fired at least 15 feet away from the victim. [Tl],

p. 143, 148] The victim's blood alcohol content at the time of

death was .24 with his urine alcohol level being at .29. [Tl, p.

146] The coroner could not detect any evidence that the victim

was involved in a struggle prior to his death. [Tl, p. 151-152]

With the shotgun wound on the victim being on the right side

slightly toward the back, it was the opinion of the coroner that

the deceased could not have been facing the shooter when the gun

was fired. [Tl, p. 152]

The one prosecution witness that claimed personal knowledge

of the shooting was a woman named Elaine Faye Peterson. On the

night of October 9, 1979, Ms. Peterson claimed that she went to

the San-Zu-Zee Bar, located at the corner of East Jefferson and

Hart, at approximately 9:30 or 10:00 o'clock that evening. [T4,

p. 30-31) The purpose of Ms. Peterson's visit to the Bar that

evening was to find a man named Gerald Marks to buy drugs from

him. [T4, p. 31] She testified that she had lived in the area

of Jefferson, Hart, Lykaste and Hillger for approximately 1 year

and knew the victim, Alfred Hagwood, and Respondent prior to that

evening. [T4, p. 26-28] She also testified that she knew a

person named Fred Thompson who lived directly across the street

from her on Lykaste and she attended a methadone clinic at Hart

and Jefferson. [T4, p. 29-30]

Ms. Peterson stated that she stayed in the San-Zu-Zee Bar

that evening for approximately 15-20 minutes and, during that

time period, Respondent came in the bar with the "Twins", Ken and

Keith Weaver. [T4, pe. 32-33] She also stated that during the

time period the victim, Wolfman, came in the bar. [T4, p. 33]

At no time during her stay in the bar did she see Fred Thompson

in the bar. [T4, p. 33]

The witness testified that while she was in the San-Zu-Zee

Bar that evening, although the music playing was loud, she

overheard an argument between Johnny Hopson, the Twins and the

victim over a radio. [T4, p. 46] Although it was never made

clear where she was with respect to the Respondent and the

victim, she stated that she overheard some specifics of the

argument about the radio, specifically, that the "Twins and

Johnny" stated to the victim "he wouldn't need a radio where he

was going". [T4, p. 46] The Twins and Respondent then left the

bar and then the victim approached the witness and stated that

"those punks took my radio". [T4, p. 34-35] Ms. Peterson could

tell that the victim had been drinking and suggested to him that

he should go home and forget about the radio. [T4, p. 35] The

victim then left the bar with the witness following a couple of

minutes thereafter. [T4, p. 35]

When she left the bar, the witness claimed that she heard

further arguing about the radio between the victim and the Weaver

Twins. [T4, p. 3la]* The witness initially testified that the

*In Transcript 4, subsequent to p. 38, is another p. 29,

thereafter continuing through p. 38 again. For the purpose of

this appeal, Respondent has renumbered those second set of pages

as 29a-38a.,

Respondent did not say anything to the victim during this

argument outside the Bar. However, when confronted with her

prior testimony at preliminary examination by the assistant

prosecutor, Ms. Peterson changed her story and stated that all

three persons, that is, Respondent and the Weaver Twins, were

arguing with the victim outside the bar. [T4, p. 32a-34a] On

direct examination, Ms. Peterson again stated that during this

argument outside the Bar, the Respondent "didn't have much to

say", however, when confronted with the prior statement that the

Respondent and the Weaver Twins had told the victim that "if he

stayed there, he wouldn't ever see daylight", the witness agreed

that the victim had been told that by the Respondent and the

Twins, [T4, p. 35a-36a]

This part of the witness' testimony is crucial. On cross-

examination, the witness stated that when she left the bar she

Saw only the victim standing outside alone and not arguing with

anyone. [T4, p. 67, 68, 69, 70] Even on direct examination, the

witness could not get her story straight as to when the alleged

statement that "where he was going he wouldn't need a radio" was

made, inside or outside the Bar. [T4, p. 34a] The witness also

contradicted herself as to who made that statement to the victim

in the Bar, Originally saying that Respondent and the Twins made

it but then later saying that it was only the Twins who made the

statement in the Bar. [T4, p. 41]

After leaving the bar, Ms. Peterson then went to the house

of Gerald Marks to find him to get her drugs. Mr. Marks lived in

a basement apartment on Hillger, two blocks from the San-Zu-Zee

Bar. [T4, p. 37] She knocked on the door to Mr. Marks' house

but, when no one answered, she left and walked back across

Jefferson toward her home on Lykaste,

Once the witness crossed Jefferson to the riverside, she

looked back and heard arguing in the area of the bank at the

corner of Jefferson and Hillger Street. [T4, p. 38] She stated

that she heard the Weaver Twins and Respondent again arguing

about the radio and then saw Fred Thompson drive up in his green

Car, come out with a gun and then she heard shots fired. [T4, p.

45-46] Although Ms. Peterson stated that she heard Respondent

arguing with the victim in front of the Detroit Bank & Trust

branch, however, on cross-examination she stated that she did not

hear the Respondent say anything. [T4, p. 73] Although the

witness could not provide any testimony whatsoever as to the

particulars of the shooting itself, she did say that Fred

Thompson pulled up in his car alone to where Respondent, the

Twins and the victim were standing. [T4, p. 71] She could not

describe the gun, however, she could tell that the gun that was

taken from the car by Thompson was a shotgun. [T4, p. 50] At no

time during that evening had the witness seen the Respondent or

the Weaver Twins in Mr. Thompson's car. [T4, p. 70] After

hearing the shots, Peterson saw the victim run north on Hillger

Street and then she turned and ran home, locked the door and went

into her bedroom. [T4, p. 47, 82] She then looked out her

window and saw Thompson drive up in his car across the street at

his house and pull a sheet covering an object from the car and

take it into the house. [T4, p. 48] This witness could offer no

testimony as to what the Respondent or the Weaver Twins did after

the shots were fired. [T4, p. 97] She did state, however, that

the first time that she saw Respondent, the Twins, the victim and

Fred Thompson together that night was on the corner of Hillger

and Jefferson in front of the Detroit Bank & Trust branch after

she had gone to Gerald Marks’ house to buy drugs. [T4, p. 91-92]

Arbura Brown was employed at the San-Zu-Zee Bar as a barmaid

on October 9, 1979. (T2, pe 101) She came to work at

approximately 5:30 p.m. that day and from approximately one hour

later until closing, that is, 2:30 a.m. or 3:00 a.m., she was the

Only employee serving drinks in the Bar. [T2, p. 102-103] She

got to know Respondent during the course of her employment at the

Bar and on that date saw him come in at approximately 7:30 p.m.

[T2, 102, 107] According to the former barmaid, Respondent

argued with one Donald Massey in the Bar and then left at

approximately 8:00 p.m. [T2, p. 107-108] Respondent returned to

the Bar with one of the Weaver Twins and resumed his discussion

with Massey. Ms. Brown's attention was then drawn to a man in a

black leather jacket, later identified as the victim, sitting

with his back to the bar, something that was prohibited by bar

rules. [T2, p. 133-134, 112-114] While the man in the black

leather jacket was seated at the bar, two men approached him and

engaged in an argument causing the man in the black leather

jacket to become very angry and curse then, [T2, pe. 116]

Apparently, Respondent had left the Bar by this time but then

returned again with one of the Weaver Twins. [T2, p. 117] When

Respondent returned he was smiling and laughing and asked Ms.

Brown if she heard "the shots outside". [T2, p. 118] However,

according to Ms. Brown, Respondent, a frequent customer in the

Bar, was a friendly person with a happy disposition who enjoyed

joking a lot and maintained a smile on his face when he talked,

[T2, pe 120-121] At no time during the period that Respondent

was in the Bar that evening did he speak with anyone else besides

Donald Massey. [T2, p. 125] Ms. Brown stated that neither Fred

Thompson nor Elaine Faye Peterson were in the San-Zu-Zee Bar on

October 9, 1979. [T2, p. 127-128]

Detroit police officer, Michael Scarborough got off of work

at the Fifth Precinct near the corner of Jefferson and Hillger at

12:15 a.m. on October 10, 1979. [T2, p. 9] As he was walking to

the rear of the Precinct to get on his motorcycle with another

police officer, he heard a shotgun blast in the immediate

vicinity and fell to the ground thinking that he was being shot

at. [T2, p. 9-11] Scarborough heard three more shotgun blasts

coming from the alley running parallel to Jefferson off of

Hillger, directly east of where he was standing and, during that

time, he actually saw a male figure standing in the alley with a

shotgun. {[T2, p. 13-14] Scarborough then saw a black male

running north on Hillger. [T2, p. 15] He and his partner, with

guns drawn, then gave chase north on Hillger toward Kercheval,

one block east of Jefferson. {[T2, pe. 16-17] On the way up

Hillger, Scarborough spoke with an off-duty Detroit police

homicide detective who lived on Hillger, George Taylor. [T2, p.

19] Taylor told Scarborough the man had turned the corner at

Kercheval. [T2, p. 20] Scarborough eventually caught up with

the decedent on Kercheval where he was laying face down on the

pavement, bleeding to death. [T2, p. 24-25]

George Taylor was off-duty on October 9, 1979 at his upper

flat apartment at 1540 Hillger. {[T3, p. 57-58] Shortly past

midnight, he heard a shotgun blast come from the south of his

house toward Jefferson. [T3, p. 58] After looking outside and

not seeing anything, he then heard two more shotgun blasts closer

to the house, [T3, p. 60-61] Taylor then obtained his service

revolver and went out onto the front porch of the flat to see

about his wife who had gone to the store for groceries. [T3, p.

63-64) Taylor observed a man in a long dark coat running down

Hillger from the aliley towards his wife. [T3, p. 63-64] After

Taylor had let his wife in downstairs, Scarborough past and then

Taylor noticed Respondent and one of the Weaver Twins walk out of

the alley. [T3, p. 68]

According to Taylor, Respondent and the Weaver Twin walked

past the sergeant's house and up to Respondent's house, kitty-

corner across the street. [T3, p. 68-69] Taylor then observed

Hopson and the Twin go up on the porch of Hopson's house across

the street and hand something to a male person inside the house.

[T3, pe. 70-71] The detective could not tell what was being

handed or which person was doing the handing, but he believed it

appeared from the movements that something was being delivered to

the person standing inside the door. [Ts Be. TA-T3ls The

Respondent and the Twin then returned across the street towards

Taylor's house. Taylor, who said it was common knowledge in the

neighborhood that he was a homicide detective with the Detroit

Police Department, then asked the two if they saw or heard

anything to which “they” replied that they had heard shots but

didn't see "nothing". [T3, p. 73-74] Taylor is the only witness

that can place Respondent and Fred Thompson together at any time

during October 9, 1979. Although he did not see them together at

any time during the night, he did see them earlier in the day at

approximately 8:00 or 9:00 o'clock in the evening. [T3, p. 83,

88]

Testimony from the consensus of witnesses was that there was

anywhere from 3 to 4 shotgun blasts within a short period of

time. The police witnesses testified that the only type of

shotgun capable of shooting in such rapid succession would be a

pump-action shotgun which would eject the shotgun shells every

time the gun was fired. All police officers that investigated

the scene, that is, the alley off of Hillger by Jefferson could

not find any discharged shotgun shells. It was the theory of the

prosecution that the jury could infer that the objects that were

handed into Hopson's house were the missing shotgun shell

casings.

At the conclusion of the proofs, the jury was instructed on

first and second-degree murder, aiding and abetting and felony

firearm under Michigan law. The jury returned a verdict against

Respondent of guilty of Second-degree Murder and Possession of a

Firearm During the Commission of a Felony. Respondent was then

sentenced to life imprisonment and still remains incarcerated to

this day.

10

D,. SUMMARY OF ARGUMENT

THE SIXTH R T PROPERLY FOUND _THAT

RATIONAL TRIER F.FACT ULD NVICT

RESPONDENT. OF SECOND-DEGREE ER

FEDERAL HABEAS RPUS_R EW NDER ACKSON

Vv. VIRGINIA DOES NOT INTERFERE WITH ANY STATE

COURT PROCEEDINGS

FEDERAL HABEAS CORPUS REVIEW UNDER JACKSON y,

VIRGINIA IS MANDATED BY THE FOURTEENTH

{ENDMENT Ss NSTITUTION

11

PAGE

20

21

22

E, ARGUMENT

Although Petitioner suggests that there are three (3)

questions presented for review to this Honorable Court, in

reality the sole issue to be determined is the propriety of the

Sixth Circuit's granting Jonathon Hopson's Petition for Writ of

Habeas Corpus under 28 USC 2254, that is, whether the evidence

produced at Respondent's trial was sufficient to convince any

rational trier of fact of Respondent's guilt beyond a reasonable

doubt to Second-Degree Murder. Jackson y, Virginia, 443 U.S.

307; 99 S. Ct. 2781, 2791-2792; 61 L. Ed 2d 560 (1979).

Respondent submits to this Honorable Court that the quantum of

evidence as required by this Court in Jackson, Supra, was not

produced at his trial and, therefore, the Court of Appeals

correctly granted Respondent's petition for habeas corpus relief.

To properly understand the propriety of the Court of Appeals'

decision, a review of Michigan law is necessary.

Under Michigan law, the elements of second-degree murder

are:

“tal The defendant is charged with second-degree

Murder. He pleads not guilty to this charge.

(2) To establish second-degree murder, the prosecution

must prove each of the following elements beyond a

reasonable doubt:

(3) First, that the deceased died on or about [date],

within the [location].

(4) Second, that his death was caused by the

defendant; that is, that [name deceased] dies as the

result.

(5) Third, if you find that the death was caused by

12

the defendant, you must determine whether the defendant

is guilty of any crime. The killing of a human being

by another may be entirely innocent. It is not the act

of killing itself which makes it a crime, but the state

of mind which it is done.

(6) [A killing is not murder if it is

(justified/excused) or if it occurs under circumstances

which make the killing the lesser crime of

(manslaughter/ some other lesser included offense)].”

Michigan Criminal Jury Instructions, CJI 16:3:01

MCLA 750.317; MSA 28.549

The jury was also instructed that Respondent could be found

guilty on an aider and abettor theory pursuant to Michigan

statute which provides as follows:

"Every person concerned in the commission of an

offense, whether he directly commenced the act

constituting the offense or procures, counsels, aids,

Or abets in its commission, may hereafter be

prosecuted, indicted, tried and on conviction, shall be

punished as if he had directly committed such offense."

MCLA 767.39; MSA 28.979

The Michigan Supreme Court has further defined the term

"aiding and abetting" in People vy, Palmer, 392 Mich 370; 220 NW2d

393 (1974):

"In criminal law, the phrase ‘aiding and abetting’ is

used to describe all forms of assistance rendered to

the perpetrator of a crime. This term comprehends all

words or deeds which may support, encourage or encite

the commission of a crime. It includes the actual or

constructive presence of an accessory, in pre-concert

with the principal, for the purpose of rendering

assistance, if necessary. The amount of advice, aid or

encouragement is not material if it had the effect of

inducing the commission of the crime [citation

omitted]."

Palmer, Supra at Mich 378.

Further definition of the term "aiding and abetting” has

been provided by Michigan Court of Appeals decisions which

require that a conviction under the statute be supported by the

13

following findings: (1) the principal's guilt of the charged

offense; (2) that the defendant supported or encouraged the

principal in the commission of the charged offense; and (3) the

defendant himself entertained the reckless intent of the charged

offense or knew that the principal entertained the reckless

intent. People yv, Dav Ort, 122 Mich App 159, 163-164; 332 NW2d

440 (1982) and the cases cited therein. However, mere presence,

even with the knowledge that an offense is about to be committed

or is being committed is not enough to make a person an aider and

abettor; nor is mere mental approval, passive acquiescence or

consent sufficient. People y,. Burrel, 253 Mich 321, 3233; 235 NW

170 (1931); People y,. Turner, 125 Mich App 8, 11; 336 NW2d 217

(1983). It has been held by the Sixth Circuit that in order to

sustain a conviction as an aider and abettor "the accused must

take some conscience action designed to make the criminal venture

succeed in order to be guilty". Fuller vy, Anderson, 662 F. 2d

420, 424 (CA 6, 1981).

Considering the nature of the testimony at the trial level,

it is important to realize that under Michigan law an "accessory

after the fact" remains an indictable common-law offense. People

Ve. Williams, (on remand) 117 Mich App 505, 513; 324 NW2d 70

(1982). An “accessory after the fact” is "one who, with

knowledge of the others guilt, renders assistance to a felon in

the effort to hinder his detection, arrest, trial or punishment".

People Vs cas, 402 Mich 302, 304; 262 NW2d 662 (1978). In

Lucas, the Michigan Supreme Court held that a person may not be

convicted of a crime as an aider and abettor on the basis that he

was an "accessory after the fact", Lucas, supra at Mich 304.

14

Therefore, under Michigan law, one who merely provides assistance

after the commission of the offense cannot be held criminally

responsible under the aiding and abetting statute. People va.

Lucas, supra; People y, Karst, 118 Mich App 34; NW

In applying the Jackson y,. Virginia standard, as this Court

is well aware, it is incumbent upon the Court to review the

evidence in a light most favorable to the prosecution. Jackson,

Supra, at S. Ct. 2789. Prior to the Jackson decision, the United

States Supreme Court, in the case of In re: Winship, 397 U.S.

358; 90 S. Ct. 1068; 25 L. Ed. 2d 368 (1970), held that the

Fourteenth Amendment due process clause requires that all

criminal convictions must be based upon proof beyond a reasonable

doubt. In re: Winship, supra at S. Ct. 1072. It has been held

that the Jackson standard applies regardless of whether direct or

circumstantial evidence is involved in the conviction. U.S, Ve

Babers, 787 F. 2d 1022, 1027 (CA 6, 1985).

In the instant case, the District Court denied Respondent's

Application for Writ of Habeas Corpus based upon the following

evidence that was produced at trial:

"Viewing the evidence in a light favorable to the

prosecution, the Court determines that evidence was

presented that (1) Petitioner [Respondent] threatened

the victim 2 hours before the shooting; (2) Petitioner

was seen arguing with the victim nearly immediately

preceding the fatal force used by Fred Thompson, an

acquaintance of Petitioner's; (3) Petitioner was with

Fred Thompson 3 to 4 hours before the shooting; (4)

Petitioner exhibited possible furtive actions when he

walked by a Detroit police sergeant's house minutes

after the incident; and (5) after the shooting,

Petitioner, in a smiling and laughing manner, asked a

barmaid whether she heard gunshots”.

Memorandum Opinion and Order Denying Respondent's

Application for Writ of Habeas Corpus, Page 5.

15

The only two statements that the trial court could have

considered to be Respondent's "threats" against the victim, were

those that Elaine Peterson attributed to "all three [Respondent

and the Weaver Twins]" made to the victim in the Bar, that is,

"where he was going he wouldn't need a radio" and outside the

Bar, that is, "if he stayed there he would never see daylight".

(It should be remembered that upon cross-examination, this

witness denied that any statements were made to the victim

outside the San-Zu-Zee Bar when she was leaving to get her

drugs.) Respondent submits, however, that those statements, if

they could even be attributed to the Respondent, indicate nothing

more than "mere knowledge" that the victim was to be killed.

Additionally, the District Court relied upon Peterson's testimony

that Respondent was arguing with the decedent in front of the

Bank immediately prior to the use of fatal force by Fred

Thompson. (Again, on cross-examination, this witness could not

attribute any specific statement to Respondent during this

alleged "argument" nor could the witness even state that

Respondent was saying anything.) Respondent submits that this

evidence could only be considered by a rational trier of fact

as Respondent being "merely present" during the homicide. People

Ve. Burrel, supra. The only other evidence produced of

occurrences prior to the shooting that the District Court and the

Respondent relied upon was that Respondent was seen with Fred

Thompson approximately 3-4 hours before midnight. Certainly, it

would be impossible for any rational trier of fact to infer from

that fact that Respondent “aided and abetted" Thompson in the

16

homicide slaying of Alfred Hagwood.

There was no testimony whatsoever at the trial court that

Respondent took any physical action to assist Fred Thompson in

any manner in obtaining the weapon and shooting the victim.

Respondent was already at the scene of the shooting prior to

Thompson driving up in his automobile and coming out with the

weapon. There was no testimony that Thompson was with the

Respondent during the time that the "threats" were made to the

victim in the Bar and immediately outside the Bar. There was no

testimony that Fred Thompson was even in the San-Zu-Zee Bar on

October 9 or 10, 1979. At most, the evidence of Respondent's

actions taken before the use of fatal force could only be

construed by any rational trier of fact to amount to "mere

knowledge” and "mere presence". People y,. Burrell, supra. The

fact that Respondent may have approved of Fred Thompson's killing

of the victim is insufficient also. Burrell, supra.

In the Fuller case, this Court affirmed the granting of a

Writ of Habeas Corpus for a defendant who had been convicted as

an aider and abettor to the fire-bombing of a home in which two

young persons died. In affirming the decision, the Court took

notice that the petitioner was merely present at the fire-bombed

residence when the perpetrator of the crime committed the

Criminal acts. The Court stated:

" (4) The district court correctly concluded that the

evidence introduced at petitioner's trial only showed

that on the morning of May 18 Fuller was present at the

Turner residence along with Zerious Meadows and the

other boys. The evidence showed that Fuller looked

around while Meadows started the fires. But as Judge

Feikens point out:

17

shotgun.

with the victim over the radio,

the victim.

°This suggests, as Jeffrey Coleman surmised,

that the petitioner may have been acting as a

lookout for Meadows, It is reasonable

speculation. But could a rational jury find

it to be proof beyond a reasonable doubt? No

evidence was presented that the petitioner

intended to burn the Turner home, The

evidence that he knew that Zerious Meadows

planned to do is simply too meager to support

conviction." (emphasis in original)

We note that there was no evidence at trial that

the °Molotov cocktail' which started the fire was

prepared in advance, or, if it was, whether any of the

boys other than Zerious Meadows knew that the °Molotov

cocktail’ existed. There was of course no evidence that

any of the boys, except Fuller, participated in the

manufacture of the °Molotov cocktail’.

Moreover, there was no direct evidence that the

youths approached the Turner house with intent to set

the house on fire. Assuming Zerious Meadows had this

intent, however, there was no evidence that it was

shared by petitioner or the other boys.

The only direct evidence supporting the State's

contention that Fuller °stood guard and acted as a

lookout' for Zerious Meadows was Jeffrey Coleman's

testimony that over a period of several minutes Fuller

turned his head from side to side °more than twice.'

We agree with the district court that this is

insufficient to establish beyond a reasonable doubt that

Fuller took conscious action to aid Meadows' commission

of arson."

Puller, supra at 424

In the instant case, the facts are even more compelling

because there was no testimony whatsoever that Respondent did

anything when Fred Thompson pulled up in the car with the

prosecution, assuming that Respondent was engaged in an argument

absence of testimony that Respondent acted in concert,

encouraged, support or in any way assisted Thompson in shooting

18

Taking the evidence in a light most favorable to the

there was still a complete

Respondent recognizes that in order to sustain a

conviction under the aiding and abetting statute, the amount of

assistance is immaterial as long as it had the effect of inducing

the crime. People yv,. Palmer, supra at Mich 378. However, the

trial record is devoid of evidence of any assistance whatsoever.

In support of its denial of Respondent's Application, the

District Court also relied on two pieces of evidence that

occurred after the shooting, that is, the actions taken on

Respondent's porch in passing something inside the home and the

statements made to the barmaid at the San-Zu-Zee Bar about

"gunshots", Memorandum Opinion, Page 5. The prosecutors

theorized that these actions taken on the porch of Respondent's

home were actually the passing of the shotgun shell casings into

the home in order to hide them, However, again taking the

evidence in a light most favorable to the prosecution, the most

that that evidence could reveal to any rational trier of fact was

that Respondent was "an accessory after the fact" in hiding

evidence of the shooting. People vy. Williams, Supra. These

"possible furtive actions" as the District Court found, after the

use of the fatal force, could not be used by a rational trier of

fact to bootstrap the Respondent's guilt back to the principal

offense. Up to that point in time, the record was void of any

evidence that Respondent participated in any way to the shooting.

Finally, with respect to the conduct of Respondent in

returning to the San-Zu-Zee Bar and asking Arbura Brown in a

"laughing and smiling" manner if she had heard the shots, at

most, assuming that Respondent was present when Thompson fired

the weapon, indicates that Respondent was present and nothing

else. It should be remembered that prior to returning to the

19

EEE EOE

Bar, the off-duty homicide detective had asked Respondent if he

had heard or saw anything to which Responder* replied that he did

not see anything but he had heard shots, It is important to

remember that the barmaid testified that Respondent's jovial

mannerisms were characteristic of his demeanor as a whole when he

visited the Bar on a frequent basis.

ZT, THE SIXTH CIRCUIT PROPERLY POUND THAT NO

RATIONAL __TRIER __OF PACT COULD __ CONVICT

RESPONDENT OF SECOND-DEGREE MURDER

Petitioner claims that the Sixth Circuit erroneously applied

Jackson vy. Virginia to the case at bar. The petition claims that

the Court of Appeals “did not view the evidence in a light most

favorable to the prosecution". (See Petition, Page 28) However,

there is a conspicuous absence of any support of Petitioner's

assertion.

The sole claim of error is Petitioner's contention that the

Court of Appeals failed to attribute certain statements directly

to Respondent as supported by the testimony of Elaine Faye

Peterson. (See Petition, Page 28-29) However, assuming that the

testimony was unequivocal that Respondent had made the alleged

statements, the Sixth Circuit correctly found that the “alleged

statements at the bar and on the street corner, while showing

animus towards the victim, cannot be construed as providing

encouragement to the principal". (See Petitioner's Appendices,

Page 41a) There was a complete absence of any proof that

Respondent “acted in pre-concert with Thompson to commit the

murder". (See Petitioner's Appendices, Page 40a) Accordingly,

the Court of Appeals found that the evidence was insufficient to

convince any rational trier of fact that Respondent was an aider

and abettor in a second-degree murder.

Il, FEDERAL HABEAS CORPUS REVIEW UNDER JACKSON

v._ VIRGINIA DOES NOT INTERFERE WITH ANY STATE

COURT PROCEEDINGS

Petitioner contends that this Court should reconsider

Jackson yv. Virginia because of the decision's “unwarranted

interference with state court proceedings". (See Petition, Page

1) Although Petition makes this claim, he fails to support it

with any argument or authority whatsoever. And, indeed, he could

not because with any habeas corpus review by the federal court,

both case law and statutory requirement mandate that ongoing

state proceedings not be disrupted. Justice Stevens succinctly

stated the disposition in his concurring opinion in Justices of

Boston Municipal Court vy. Lydon, 466 U.S. 294; 104 S. Ct. 1805;

80 L. Ed 2d 311 (1984):

"This Court has long recognized that in some

circumstances considerations of comity and concerns for

the orderly administration of criminal justice require

a federal court to forgo the exercise of its habeas

corpus power. Francis y. Henderson, 425 U.S. 536, 539;

96 S. Ct. 1708, 1710; 48 L. Ed. 2d 149 (1976). For

example, we have held that federal courts should not

exercise habeas jurisdiction when the petitioner has

failed to comply with state simultaneous objection

rules, because of the weighty state interests

underlying enforcement of such rules. See Engle vu.

Isaac, 456 U.S. 107; 102 S. Ct. 1558; 71 L. Ed. 2d 783

(1982); Wainwright vy. Sykes, 433 U.S. 72; 97 S. Ct.

2497; 53 L. Ed. 2d 594 (1977).

One of the weightiest of state interests is that

favoring speedy, efficient, and uninterrupted

disposition of criminal cases. Because of this

critical state interest, we have held that federal

courts should abstain from exercising their

jurisdiction when the effect thereof would be to

disrupt ongoing state proceedings. See, e.g., Hicks Vs

Miranda, 422 U.S. 332, 349; 95 S. Ct. 2281, 2291; 45 L.

Ed. 2d 223 (1975); Huffman vy. Pursue, Ltd,, 420 U.S.

21

592, 599-601; 95 S. Ct. 1200, 1205-1207; 43 L. Ed. 2d

482 (1975); Perez vy. Ledesma, 401 U.S. 82, 84-85; 91 S.

Ct. 674, 676-677; 27 L. Ed. 2d 701 (1971); Younger y,

Harris, 401 U.S. 37, 41-45; 91 S. Ct. 746, 749-751; 27

L. Ed. 2d 699 (1971).

Similarly, the statutory exhaustion requirement

found in the habeas statute, 28 U.S.C. § 2254, reflects

a recognition that federal habeas courts should not

disrupt ongoing state proceedings. See Rose y, Lundy,

455 U.S. 509, 518; 102 S. Ct. 1198, 1203; 71 L. Ed. 2d

379 (1982). Indeed, in our leading case concerning the

propriety of pretrial federal habeas intervention under

the exhaustion doctrine, we cautioned that such review

would be inappropriate when it threatens to disrupt

pending state proceedings and orderly state processes,

See Braden vy. 30th Judicial Circuit Court of Kentucky,

410 U.S. 484, 490-493; 98 S, Ct. 1123, 1127-1129; 35 L.

Ed. 2d 443 (1973). Thus, the habeas statute itself

reflects this concern with disrupting ongoing state

proceedings.

Justices of Boston, supra at S. Ct. 1826

Accordingly, Petitioner's claim that habeas corpus review in

accordance with Jackson y. Virginia, interferes with state

proceedings is without merit. The decision of the Sixth Circuit

Court of Appeals correctly held that Respondent was entitled to

habeas corpus relief.

Til, FEDERAL HABEAS CORPUS REVIEW UNDER JACKSON yv,

VIRGINIA _IS MANDATED BY THE _POURTEENTH

AMENDMENT, 0,5. CONSTITUTION

Petitioner contends that the holding of Jackson y, Virginia

should be re-examined because of it being an “unwarranted burden

on the federal court”. (See Petition, Page 12) The Petition

seems to suggest that the state court criminal proceedings which

encompass standards defining when a criminal case lacks

sufficient evidence for jury consideration is all that is

necessary to insure the propriety of a criminal conviction.

Respondent submits, however, that if this was, in fact,

99

sufficient, then Congress would not have enacted 28 U.S.C. § 2254

in the first place.

This Court is well aware that a habeas corpus petition

challenging the sufficiency of the evidence in accordance with

Jackson vy. Virginia is but one criteria for relief pursuant to 28

U.S.C. § 2254. There are at least seven (7) other independent

grounds for a federal court's determination in reviewing the

propriety of a state court conviction. 28 U.S.C. § 2254(d) (1)-

(7). Since Congress enacted the statute allowing persons in

custody pursuant to state court convictions to petition federal

court for relief, the fact that additional work has been imposed

on the federal judiciary is not sufficient cause to limit the

mandates of the United States Constitution. Congress' intention

is embodied in the statute and, accordingly, it is the duty of

the courts to perform a necessary function to a free society. In

Jackson vy, Virginia, Justice Stewart, writing for the majority,

stated:

",..but Congress in § 2254 has selected the federal

district courts as precisely the forums that are

responsible for determining whether state convictions

have been secured in accord with federal constitutional

law. The federal habeas corpus statute presumes the

norm of a fair trial in the state court and adequate

state post-conviction remedies to redress possible

error. See 28 U.S.C. 2254(b)(d). What it does not

presume is that the these state proceedings will always

be without error in the constitutional sense. The duty

of a federal habeas corpus court to appraise a claim

that constitutional error did occur--reflecting as it

does the belief that the 'finality' of a deprivation of

liberty through the invocation of the criminal sanction

is simply not to be achieved at the expense of a

constitutional right--is not one that can be so lightly

abjured,."

Jackson, supra at 99 S. Ct. 2791

Fe CONCLUSION

WHEREFORE, Respondent JONATHON HOPSON, prays that this

Honorable Court, in light of the foregoing argument and

authority, dismiss Petitioner's Petition for Writ of Certiorari

or, in the alternative, deny all relief requested therein.

sobmitted,

-

Respectful ly

ROBERT F. WHITE (P31788)

Attorney for Respondent

2850 Dixie Highway

Pontiac, MI 48055

Dated: October 20, 1987 (313) 674-4320