Scott v. Perini
| Decision Date | 30 September 1981 |
| Docket Number | No. 80-3219,80-3219 |
| Citation | 662 F.2d 428 |
| Parties | Roger SCOTT, Petitioner-Appellee, v. E. P. PERINI, Superintendent, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Simon B. Karas, Asst. Atty. Gen., Columbus, Ohio, for respondent-appellant.
Paul Mancino Jr., Cleveland, Ohio (court-appointed), for petitioner-appellee.
Before ENGEL, MERRITT and JONES, Circuit Judges.
Petitioner Roger L. Scott and Henry F. Speigner, also known as Frank Mathews, were charged in an indictment issued by a grand jury in Cuyahoga County, Ohio, with the first degree murder of William Bell on June 26, 1973. The two men were tried separately. A jury found Scott guilty of first degree murder. Speigner was subsequently convicted of second degree murder. The Ohio Court of Appeals reduced Scott's conviction to the lesser included offense of second degree murder finding insufficient evidence to support the first degree murder conviction.
Scott alleged in his petition for habeas corpus relief that the evidence was insufficient to sustain his conviction for second degree murder under Ohio law. The district court agreed and accordingly granted Scott relief. The State of Ohio appeals. We reverse.
Because our court has held that the evidence presented in Speigner's case was insufficient as a matter of law, Speigner v. Jago, 603 F.2d 1208 (6th Cir. 1979), cert. denied 444 U.S. 1076, 100 S.Ct. 1023, 62 L.Ed.2d 758 (1980), and because the sufficiency of the evidence is also an issue in this case, we are required to review the evidence in considerable detail.
William Bell was a 32 year old black male who lived and worked in Cleveland, Ohio. Bell, after being released from prison, established a business filing court papers for numerous attorneys in the Cleveland area. He also did some investigatory work for the attorney who helped him start the business. Bell carried a gun on these investigatory assignments. His 1964 Chevrolet was essential to the business; accordingly, he was reluctant to lend the vehicle even to members of his family.
William Bell's murdered body was sighted in Cleveland on the morning of July 26, 1973. Detective LaVelle of the Cleveland Police Department homicide unit proceeded on assignment to the isolated area of East 76th and Platt Avenue where he found Bell lying face up among the debris on the street. When the body was moved for transport to the morgue, Detective LaVelle observed a large blood spot where Bell's back had been in contact with the asphalt.
A detailed examination took place at the morgue. Bell, a small man at 5'5" and 112 pounds, was fully clothed. A Timex watch on his left wrist had stopped at 10:53. Detective LaVelle testified that an empty black leather holster was found on the body. Dr. Adelson, the chief deputy coroner of the Cuyahoga County Coroner's Office, observed track marks on Bell's arms which indicated previous narcotics use. Dr. Adelson opined that the use had not been recent, but was unable to rule out the possibility that Bell had used narcotics as early as two weeks before his murder.
As a result of his autopsy, Dr. Adelson discovered that Bell's death was caused by two gunshot wounds. One bullet entered Bell's chest, passed through his lung, fractured some ribs, and came to rest in the left back area. Dr. Adelson stated this wound was inflicted by a rifled weapon. Detective La Velle identified the bullet recovered by Dr. Adelson as being of .32 caliber. The second gunshot wound resulted from a shotgun blast fired from close range at the left shoulder blade region of Bell's back. Dr. Adelson described the wound left by this shot as being pear shaped with a diameter of one and a half inches. An x-ray revealed thirteen pellets in the back of Bell's head and neck.
Dr. Adelson also determined that Bell had nine broken ribs. The ulna in his left arm had been fractured. There were lacerations, tears and abrasions over Bell's face, neck and chest. Dr. Adelson found from testing Bell's blood and urine that he had been drinking; his blood alcohol was .19. His urine also indicated the presence of phenothiazine, a tranquilizer.
Dr. Adelson estimated the time of death as between 11:00 p. m. and 2:00 a. m. the night before, based in part on the fact that rigor mortis had set in. The time of death could have been as late as 3:30 a. m., however, if there had been a violent physical struggle which would hasten the onset of rigor mortis.
Bell's 1964 Chevrolet was also found by the police on the morning of July 26, 1973. At 5:00 a. m. Sergeant Little of the Ohio Highway Patrol stopped a car at the Youngstown Interchange of the Ohio turnpike because of its apparent unsafe condition. Sergeant Little observed that the car had no taillights and that it was quite noisy.
Roger Scott was driving the car and Henry Speigner, also known as Frank Mathews, was a passenger. Scott was unable to produce the registration to the vehicle and possessed only an expired driver's license. Scott indicated to Sergeant Little that they had borrowed the car from William Bell for $15.00. Since Scott was unable to post the bond required for the unsafe vehicle citation, he was transported to the Mahoning County jail. Speigner was released and failed to return with the bond for Scott. He was eventually apprehended on armed robbery charges in New York.
Sergeant Little inventoried the 1964 Chevrolet, which had been pulled into an adjacent parking lot, around 7:30 that morning. He discovered a blood stain across the back seat of the car where a person's back would rest. He noted that the front vent window was broken and that glass from this window was on the floor of the car. Sergeant Little testified that the ignition was intact and that the key was present. Upon examination of the trunk, Sergeant Little found an attachee case containing court documents and uncancelled checks. Sergeant Little also discovered some clothing on the floor of the vehicle.
Patrolman Hawkins, also of the Ohio Highway Patrol, assisted Sergeant Little in inventorying the contents of the car. He discovered a sawed-off shotgun under the passenger seat of the vehicle. Patrolman Hawkins did not locate any ammunition. He also corroborated much of Sergeant Little's testimony and asserted that there were dried blood stains both across the rear seat and on the front passenger seat of the car.
Three policemen were involved in examining the car after it had been towed to a tow yard. Detective Tekautz of the Cleveland Police Department dusted the interior and exterior of the car for fingerprints. He was able to obtain prints from the right door post, a paper bag found under the steering wheel, the rear view mirror, the left rear door ashtray cover, the left door vent window, and the outside portion of the passenger's window. Detective Birt of the Cleveland Police Department attempted to match these fingerprints with those of Scott, Speigner and the victim Bell. A print found on the right door post matched that of Speigner and the print found on the paper bag matched that of Bell. None of the prints matched those of Scott. Detective Palahunic of the Cleveland Police Department performed an analysis on the stain across the back seat. He determined the dried stain to be Type A blood. Mary Cowan, a medical technologist on the coroner's staff, testified that Bell's blood was also Type A. There was testimony that Type O blood was the most common, but that twenty percent of the population had Type A blood.
Later on the afternoon of July 26, after being informed that he was under arrest for investigation in connection with a homicide, Scott was taken by Detective LaVelle from the Mahoning County jail in Youngstown to Cleveland, a trip which takes approximately one hour. En route, Scott sought to explain the events of the previous evening. He stated that he was having a few drinks in Ellis' bar with Frank Mathews and William Bell. He and Mathews rented Bell's car for $15.00 for the evening. They took Bell to the vicinity of East 76th and Central Avenue where they "dropped him off." They rode around for a while, stopping at various locations in Cleveland. According to Scott, Mathews then decided to drive to Youngstown. Scott relieved him at the wheel when he became tired. Detective LaVelle stated that the police were unable to obtain corroboration of Scott's explanation from anyone at Ellis' bar. He also testified that Scott refused to give him a written statement two days later.
On the same day, Cleveland Police Detective Leppelmeier interrogated Scott at the Cleveland Central Prison Unit interrogation room. Scott gave a different version of the events which took place during the previous evening. He asserted that a friend of his for about six years, known only as Frank, offered him a ride around 10:00 p. m. on the corner of East 83rd and Quincy Avenue. Scott, who admitted knowing Bell for 15 years, explained that he thought the car belonged to Frank. After driving through the city for a couple of hours, Frank dropped Scott off at the Grape Vine Tavern and said that he was going to look for someone named "Willie." Frank returned and picked up Scott about fifteen or twenty minutes later. They proceeded toward Youngstown at Frank's suggestion. Scott took over driving the vehicle when Frank became tired.
Scott testified on his own behalf at the trial. He explained the events of the night before and came up with a third account of his activities. According to this account, Henry Speigner picked him up on the corner of 83rd and Quincy. The two of them visited different bars and people's houses. Speigner dropped him off for a short time on Central, but returned to pick him up close to midnight. They continued to cruise around and finally decided to proceed toward Youngstown. After changing a flat tire, Scott took over the driving. Scott knew the car belonged to Bell, and Speigner informed him...
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