O'Neal v. Morris

• Decision Date: 04 October 1993
• Docket Number: No. 92-3763,92-3763
• Citation: 3 F.3d 143
• Parties: Robert O'NEAL, Petitioner-Appellee, v. Terry L. MORRIS, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 143

3 F.3d 143

Robert O'NEAL, Petitioner-Appellee, v. Terry L. MORRIS, Respondent-Appellant.

No. 92-3763.

United States Court of Appeals, Sixth Circuit.

Argued May 6, 1993.

Decided Aug. 20, 1993.

Rehearing and Suggestion for Rehearing En Banc Denied Oct. 4, 1993.

Thomas R. Wetterer, Jr. (argued & briefed), Public Defender's Office, Columbus, OH, for petitioner-appellee.

Suzanne E. Mohr (argued & briefed), Office of the Atty. Gen. of Ohio, Columbus, OH, for respondent-appellant.

Before: MILBURN, RYAN, and NORRIS, Circuit Judges.

ALAN E. NORRIS, Circuit Judge.

The state of Ohio, on behalf of warden Terry L. Morris of the Chillicothe Correctional Institute, appeals the district court's order which conditionally granted a writ of habeas corpus on the basis that improper jury instructions and other trial errors rendered petitioner Robert O'Neal's state murder trial fundamentally unfair. We reverse.

I.

In 1981 petitioner was convicted by an Ohio jury of aggravated murder, aggravated robbery, and kidnapping in connection with the death of Henry Podborny. In January 1981 Podborny's estranged wife, Dimple, lured him from his home near Chicago on the pretense that she wished to resolve their marital difficulties. Three months later, authorities discovered Mr. Podborny's corpse in a field in Cleveland.

The evidence at trial revealed a detailed conspiracy among at least six individuals, including Dimple Podborny, her daughter-in-law, and acquaintances, to kidnap, rob, and murder Henry Podborny. The conspirators considered a number of plots, but eventually decided to have Dimple induce her husband to fly to Cleveland. Petitioner would then kidnap and hold him in the basement of an unlicensed saloon petitioner operated, while others would rob Mr. Podborny's residence and business.

On January 29, 1981, Mr. Podborny flew to the Cleveland airport, where Dimple's daughter-in-law, Lola Toney, met him and escorted him to petitioner's saloon. Minutes after Mr. Podborny entered, petitioner exited the bar and handed to Toney Podborny's wallet and other possessions. Soon after, another conspirator, Lloyd Allen, emerged from the bar and informed petitioner and Toney that he had struck Podborny with a pipe.

From January through March, Dimple, Toney, and others engaged in a variety of schemes to make it appear that Mr. Podborny was traveling on business, while they attempted to obtain his money. By late March, Toney believed Henry Podborny was no longer alive. His corpse was discovered a month later. Coroners determined that he had been struck at least five times in the head and shot once in the forehead. Petitioner, Dimple Podborny, Lola Toney, Lloyd Allen, and two others were subsequently indicted for aggravated murder, aggravated robbery, and kidnapping. After the case against three of the conspirators was resolved by a trial and a guilty plea, petitioner, Lloyd Allen, and Dimple Podborny were tried jointly and convicted on all counts. Petitioner unsuccessfully appealed his conviction to the Ohio Court of Appeals and Ohio Supreme Court.

In 1986, petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. The district court ruled that petitioner's trial had been fundamentally unfair and conditionally granted the writ. The state filed this timely appeal.

II.

Petitioner first argues that this court should not hear the state's appeal because the state's objections to the magistrate's first report, which recommended that the writ issue, were filed approximately twenty days late. See 28 U.S.C. Sec. 636(b)(1) (setting ten-day deadline for objections to magistrate's report). This court held in United States v. Walters, 638 F.2d 947 (6th Cir.1981), that a party's failure to file timely objections to a magistrate's report waives that party's right to appeal from the district court's decision to adopt the magistrate's report. Id. at 949-50. See also Thomas v. Arn, 474 U.S. 140, 142, 106 S.Ct. 466, 468, 88 L.Ed.2d 435 (1985) (approving Walters rule).

While the district court agreed to strike the state's untimely objections, it declined to adopt the magistrate's entire report. Instead, the court recommitted the case to the magistrate for further consideration. After reconsideration, the magistrate issued a second report, again recommending that the court grant the writ and incorporating much of the reasoning articulated in the first report. The state filed timely objections to the second report, which the district court considered.

It is well established that the Walters rule is procedural, not jurisdictional, and that this court may excuse the default in the interests of justice. Thomas, 474 U.S. at 155, 106 S.Ct. at 475; Kent v. Johnson, 821 F.2d 1220, 1222-23 (6th Cir.), amended on other grounds (6th Cir.1987). This court has also concluded that when, as here, a district court considers untimely objections, the justifications for enforcing the Walters rule dissipate. Patterson v. Mintzes, 717 F.2d 284, 286 (6th Cir.1983). Therefore, given the unique facts of this case, we conclude it is in the interests of justice to hear the state's appeal of the district court's decision that the writ be granted.

III.

In Brecht v. Abrahamson, --- U.S. ----, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), the Supreme Court recently clarified the standard we must apply on habeas review of state court convictions. If we conclude that a federal constitutional trial error ¹ occurred at petitioner's trial, we must ascertain whether the error " 'had substantial and injurious effect or influence in determining the jury's verdict' " such that it resulted in actual prejudice. Brecht, --- U.S. at ----, ----, 113 S.Ct. at 1717, 1722 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)). The habeas petitioner bears the burden of establishing such prejudice. Id., --- U.S. at ----, 113 S.Ct. at 1722.

In petitioner's case, the district court adopted the magistrate's conclusion that the jury instructions given at petitioner's trial "were so confusing and vague that a reasonable juror could have interpreted them to mean that the intent of one co-conspirator could be imputed to [petitioner]," thereby relieving the state of its burden to prove petitioner's intent to kill beyond a reasonable doubt, in violation of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

Initially, we point out that the district court employed an outdated standard for evaluating petitioner's Sandstrom claim. The court incorrectly relied upon the test espoused in Francis v. Franklin, 471 U.S. 307, 315-16, 105 S.Ct. 1965, 1972, 85 L.Ed.2d 344 (1985), and Sandstrom, 442 U.S. at 514, 99 S.Ct. at 2454, and followed by this court in Clark v. Jago, 676 F.2d 1099, 1102 (6th Cir.1982), cert. denied, 466 U.S. 977, 104 S.Ct. 2360, 80 L.Ed.2d 832 (1984), that jury instructions infringe a defendant's due process rights if a reasonable jury could have interpreted the instruction as unconstitutionally shifting the burden of proof. However, after reviewing its sometimes inconsistent articulations of the test, the Supreme Court settled on a single standard of review for jury instructions: " 'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." Estelle v. McGuire, --- U.S. ----, ---- & n. 4, 112 S.Ct. 475, 482 & n. 4, 116 L.Ed.2d 385 (1991) (emphasis added) (quoting Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1197, 108 L.Ed.2d 316 (1990)).

With this standard, we turn to the instructions at issue here. Petitioner was charged with aggravated murder, aggravated robbery, and kidnapping. Under Ohio law, a court may instruct the jury on complicity even though the defendant was charged as a principal. See Ohio Rev.Code Ann. Sec. 2923.03(A), (F) (Anderson 1993); Hill v. Perini, 788 F.2d 406, 407-08 (6th Cir.) (discussing the practice and holding that it does not violate a defendant's right to notice of the charges against him or her), cert. denied, 479 U.S. 934, 107 S.Ct. 409, 93 L.Ed.2d 361 (1986). Thus, in petitioner's case, the district court charged the jury that it could find petitioner guilty as a principal, as a coconspirator, or as an aider and abettor.

Charging a defendant as a conspirator or aider and abettor does not, however, alter the government's responsibility to establish intent to kill. Ohio law on complicity provides that for a defendant to be convicted as an aider or abettor or conspirator, he or she must possess "the kind of culpability required for commission of [the principal] offense," here, a purpose to kill. Ohio Rev.Code Ann. Secs. 2923.03(A)(2)-(3), 2903.01(A). In other words, Ohio does not adhere to the strict felony-murder rule. State v. Lockett, 49 Ohio St.2d 48, 358 N.E.2d 1062, 1070 (1976), rev'd on other grounds sub nom. Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Nevertheless, Ohio courts permit a jury to infer an aider and abettor's intent to kill when

the facts show that the participants in a felony entered into a common design and either the aider or abettor knew that an inherently dangerous instrumentality was to be employed to accomplish the felony or the felony and the manner of its accomplishment would be reasonably likely to produce death.

State v. Scott, 61 Ohio St.2d 155, 400 N.E.2d 375, 382 (1980) (citing Lockett, 358 N.E.2d at syllabus pp 3-4).

Petitioner contends that in attempting to explain these principles of Ohio law, the trial court's instructions unreasonably confused the jury. The court charged that

[p]urpose to kill is an element of the crime of aggravated murder. A person acts purposely when it is his specific intention to cause a certain result. It must be established in this case that at the time in question there was present in the mind of the defendants or...