Speigner v. Jago

• Decision Date: 24 July 1979
• Docket Number: No. 78-3290,78-3290
• Citation: 603 F.2d 1208
• Parties: Henry SPEIGNER, Petitioner-Appellee, v. Arnold R. JAGO, Superintendent, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1208

603 F.2d 1208

Henry SPEIGNER, Petitioner-Appellee, v. Arnold R. JAGO, Superintendent, Respondent-Appellant.

No. 78-3290.

United States Court of Appeals Sixth Circuit.

Argued Oct. 9, 1978.

Decided June 13, 1979.

Rehearing and Rehearing En Banc Denied July 24, 1979.

William J. Brown, Atty. Gen. of Ohio, Simon B. Karas, Asst. Atty. Gen., Columbus, Ohio, for respondent-appellant.

Elliott R. Levine, Cleveland, Ohio (Court-appointed), for petitioner-appellee.

Before EDWARDS, Chief Judge, WEICK, Circuit Judge, and PECK, Senior Circuit Judge.

PECK, Senior Circuit Judge.

At a jury trial in the state court, petitioner Henry Speigner was convicted of second degree murder under O.R.C. § 2901.05. ¹ After unsuccessfully exercising his rights to direct appeal, Speigner petitioned the district court for a writ of habeas corpus. The district judge, in granting the writ, concluded that petitioner's conviction was "totally devoid of evidentiary support."

The present case is a difficult one because of the small quantum of evidence presented to support petitioner's conviction of second degree murder. On the one hand, there is "some" evidence of record which tends to make petitioner's guilt as to the crime charged more likely than not. ² On the other hand, and contrary to the conclusion of the state appellate court, the totality of the evidence against petitioner does not amount to evidence sufficient to support, as a matter of law, guilt beyond a reasonable doubt. Thus, the present case requires this Court to carefully delineate the extent to which a federal court is obligated to review, under Fourteenth Amendment due process, a state criminal conviction.

EVIDENCE OF RECORD

A review of the trial transcript reveals that the victim, William Bell, was murdered either late in the night of June 25, 1973, or early in the morning of June 26, 1973. His body, which had been badly beaten, was found lying in a street in Cleveland, Ohio, at approximately 7:00 a. m., June 26. It was established at trial that Bell had died of two fatal gun shots, a .32 caliber pistol shot from the front and a shotgun blast from the back.

During trial the state presented evidence that a highway patrolman had stopped Speigner was released after a short detention by the highway patrol, but he stated he would return and post a $50 bond for the driver Scott. Without fulfilling this promise, Speigner left the Cleveland area within a few days. During the period of the next ten months, Speigner traveled to various cities across the country, including San Francisco, Las Vegas, St. Louis and New York City. When he was apprehended by New York police on April 10, 1974, Speigner stated that he was aware the Cleveland police had been looking for him and he admitted that he had been acquainted with both the victim Bell and Scott, the driver of the vehicle.

Bell's automobile for a routine safety inspection at 5:02 a. m. on June 26, 1973, at a location approximately one hour's drive from the spot where the victim's body was found. When the vehicle was stopped, Speigner was a passenger in the automobile. He identified himself by use of an alias, Frank Mathews, and he presented the patrolman with a welfare card. In the course of the officer's questioning of the driver of the car, Roger Scott, Scott stated that he had rented the vehicle from the victim for $15. Speigner heard Scott's statement, and both men laughed at the fact that they had been "stuck" with an unsafe vehicle. Certain evidence presented at trial specifically refuted the rental story offered by the driver. First, testimony disclosed that Bell had used his car in his business and that he had followed a rule of never lending it to anyone, not even his brothers. Further, various checks and documents were found in a briefcase in the trunk of Bell's car, and these items were to be filed by the victim on the morning of June 26, 1973.

An inventory of the victim's car was conducted in the morning hours of June 26, 1973. This inventory revealed a shattered vent window on the driver's side of the vehicle, window glass on the front floor, blood stains of the victim's type (A) on the rear seat, a bloody fingerprint of an undetermined origin on the right front door, and a sawed-off shotgun under the seat which Speigner had been occupying. Subsequent scientific examination of the shotgun did not, in any way, connect the gun to petitioner and the gun was not test fired or otherwise proven to be the murder weapon.

THE "NO EVIDENCE" STANDARD

In reviewing the district court's grant of a writ of habeas corpus, we are obligated to adhere to the prevailing standard of review in habeas corpus proceedings, the so-called "no evidence" standard, enunciated by the Supreme Court in Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). Therein, the Court concluded that a state violates a defendant's constitutional due process when it convicts the defendant of a crime without evidence to support an essential element of the crime. 362 U.S. at 204, 80 S.Ct. 624. Cf. Vachon v. New Hampshire, 414 U.S. 478, 480, 94 S.Ct. 664, 38 L.Ed.2d 666 (1974); Harris v. United States, 404 U.S. 1232, 1233, 92 S.Ct. 10, 30 L.Ed.2d 25 (1971).

The ultimate question presented to us is whether the charges against petitioner were so totally devoid of evidentiary support as to render his conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment. Decision of this question turns not on the sufficiency of the evidence, but on whether this conviction rests upon any evidence at all.

Under the words of the (city) ordinance itself, if the evidence fails to prove all three elements of this loitering charge, the conviction is not supported by evidence, in which event it does not comport with due process of law.

Just as "conviction upon a charge not made would be sheer denial of due process," so is it a violation of due process to convict and punish a man without evidence of his guilt.

Thompson, supra, 362 U.S. at 199, 204, 206, 80 S.Ct. at 625, 628, 629.

On a superficial level of analysis, the "no evidence" standard of Thompson appears to quickly dispose of the present appeal. As we previously stated, there is "some" evidence of record which tends to establish, to a degree, that petitioner is guilty of the crime of second degree murder. For example, the victim's automobile was stopped at 5:02 a. m., a few hours after his murder, a short distance from the place where his body was discovered. At that time, blood stains of the victim's type were in the car; a bloody but unidentified fingerprint was on the door; a sawed-off shotgun was under the passenger's seat; a vent window was shattered and glass was strewn on the floor. From this evidence, a jury could reasonably infer that the victim's car might have been at the scene of his murder. When we add to this inference the facts that petitioner was a passenger in the vehicle when it was stopped at 5:02 a. m., that he was seated directly over the shotgun, and that he later admitted knowing both the victim and the driver of the vehicle, we must conclude that the record in this case contains "some" evidence relevant to the elements of second degree murder.

On a deeper level of analysis, however, the "no evidence" standard of Thompson does not automatically bar petitioner's request for relief. In decisions subsequent to Thompson, the Supreme Court has interpreted the "no evidence" standard in a manner not consistent with the narrow, literal meaning of the words, "no evidence." In these decisions, the Court has given the Thompson standard a more flexible construction, one which takes into account the fact that in virtually every criminal prosecution there is "some" evidence of record to support a conviction.

Two cases, Vachon v. New Hampshire, supra, 414 U.S. 478, 94 S.Ct. 664, 38 L.Ed.2d 666 (1974), and Johnson v. Florida, 391 U.S. 596, 88 S.Ct. 1713, 20 L.Ed.2d 838 (1968) (per curiam), illustrate the current meaning of the Thompson standard. In Johnson a defendant had been found guilty of vagrancy under a Florida statute that made it unlawful to be found "wandering or strolling" from place to place without any lawful purpose or object. At trial, the state had established that the defendant had been seated on a park bench at 4:25 in the morning; that just prior to his arrest the defendant had told the officers that he was waiting for a bus; that the buses had stopped service some five and one-half hours prior to the defendant's arrest; and that, when questioned by the officers, the defendant offered no explanation of what he had been doing for the previous three hours. This evidence notwithstanding, the majority of the Court concluded " . . . that so far as the 'wandering or strolling' ingredient of the crime is concerned, the record is lacking in any evidence to support the judgment." 391 U.S. at 598, 88 S.Ct. at 1715. As to the single evidentiary fact that the defendant had been seated on a park bench, allegedly for some three hours, Mr. Justice White wrote in dissent, "Most inhabitants of park benches reach their bench by wandering or strolling." 391 U.S. at 599, 88 S.Ct. at 1715 (White, J., dissenting). In Vachon v. New Hampshire, supra, a case decided some six years after Johnson, the Supreme Court again adopted a flexible interpretation of the Thompson standard. In Vachon The operator of the Head Shop in Manchester, New Hampshire, had been convicted of contributing to the delinquency of a minor in violation of a state statute. The minor had purchased a button inscribed "Copulation Not Masturbation" at the Head Shop from an unidentified salesperson who may or may not have been the defendant. The majority of the Court, in vacating the state's judgment of conviction, concluded that the record was "completely lacking" in evidence on the element of wilfulness, an essential element of the charge. 414 U.S. at 479, 94 S.Ct. 664. The Court reached...