711 F.2d 1305 (6th Cir. 1983), 82-3082, Payne v. Janasz

Docket Nº:82-3082.
Citation:711 F.2d 1305
Party Name:Edward PAYNE, Petitioner-Appellant, v. Joseph JANASZ, Respondent-Appellee.
Case Date:June 22, 1983
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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711 F.2d 1305 (6th Cir. 1983)

Edward PAYNE, Petitioner-Appellant,

v.

Joseph JANASZ, Respondent-Appellee.

No. 82-3082.

United States Court of Appeals, Sixth Circuit

June 22, 1983

Argued Nov. 3, 1982.

Rehearing Denied Aug. 14, 1983.

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Richard L. Aynes, Appellate Review Office, School of Law, The University of Akron, Akron, Ohio, for petitioner-appellant.

Jeffrey Posner, Cuyahoga County Prosecutor, Thomas P. Gill, Richard Wise (argued), Cleveland, Ohio, for respondent-appellee.

Before ENGEL and JONES, Circuit Judges, and VAN PELT, [*] Senior District Judge.

VAN PELT, Senior District Judge.

This case comes to us on appeal from the United States District Court for the Northern District of Ohio, 1 which denied Appellant Edward Payne's petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254.

Appellant, a major in the Cuyahoga County Sheriff's Department, was indicted by the Grand Jury of Cuyahoga County on two counts of theft in office in violation of

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Ohio Rev.Code § 2921.41 and two counts of intimidation in violation of Ohio Rev.Code § 2921.03 for acts which took place in 1975. In 1976, an Ohio state court jury found Appellant guilty of one count of theft in office and one count of intimidation. He was sentenced to concurrent sentences of 2-10 years and 3-10 years. Appellant is currently on probation as part of his sentence for these convictions.

Appellant appealed to the Court of Appeals of Cuyahoga County which, in a 2-1 decision, affirmed the convictions. State v. Payne, 7 Ohio Ops.3d 432 (1978). Appellant then appealed to the Ohio Supreme Court which dismissed the appeal. The United States Supreme Court denied certiorari on the case.

After seeking habeas relief in the district court, Appellant appeals to this court and presents the following issues for review. As stated by Appellant, these issues are:

1. Whether the State's failure to prove a lawful seizure and possession as charged in the indictment resulted in a denial of Appellant's right to be convicted only upon proof beyond a reasonable doubt of all elements of the offense charged, as guaranteed by the Fourteenth Amendment of the United States Constitution.

2. Whether the State's inclusion of the extra element of "lawful seizure" relating to Appellant's theft-in-office conviction violates Appellant's right to fair notice of the charges against him, as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution.

3. Whether the practice of the Ohio State Appellate Courts of allowing the State to disregard the restrictions of Ohio Criminal Rule 30 to the detriment of the Appellant, while requiring the accused to abide by it, violated the due process clause of the Fourteenth Amendment.

4. Whether allowing the introduction in Appellant's State trial of an out-of-court hearsay statement which was crucial to the prosecution and devastating to the defense resulted in a violation of Appellant's right of confrontation and cross-examination as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution.

5. Whether allowing the State to convict Appellant of the crime of intimidation when the State failed to prove each and every element of the crime charged beyond a reasonable doubt resulted in a denial of due process, as guaranteed by the Fourteenth Amendment of the United States Constitution.

6. Whether, upon the particular facts of the case, due process required the District Court to go beyond the Jackson v. Virginia standard of sufficiency and independently weigh the evidence.

7. Whether when it appears that substantial constitutional infirmities are present concerning Appellant's theft-in-office charge, due process as guaranteed by the Fourteenth Amendment requires the reversal of an intertwined intimidation charge.

After careful consideration, we affirm the decision of the district court.

I.

Because this case has caused a good deal of consternation in its movement through the judicial process, see State v. Payne, supra at 441 (Jackson, J., dissenting), a careful review of the facts is in order. In doing so, we are mindful that our review is limited. The following facts are of particular significance to the theft in office conviction.

At the time of the incidents in question, Appellant was the warden of the Cuyahoga County Jail and the officer in charge of Division 4. Division 4 was a special undercover force within the Sheriff's Department intended to conduct selective raids on various after hours establishments and to serve outstanding county warrants. The relevant facts of this case focus on the activities of the Appellant and Division 4 during the spring and summer of 1975.

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Deputy Donald W. Campbell, a member of Division 4, was the State's chief witness and provided most of the evidence against Appellant. He testified as follows: Early on the morning of April 20, 1975, Campbell stayed at Division 4 headquarters while Appellant and other members of the Division conducted a raid 2 at a "cheat spot" at 10001 Cedar Avenue. Campbell was still in the office when the Division 4 members returned at approximately 6:00-6:15 a.m. He had an opportunity to observe the items seized which included liquor, gambling equipment, six handguns, and one shotgun. Of particular importance to this case, Campbell testified that included among the handguns were two pearl-handled 9mm automatics. These guns, he testified over objection, were in a plastic evidence bag which was marked with an evidence tag bearing the inscription "10001 Cedar Avenue." Continuing, Campbell stated that Deputy Sheriff Hosea Garner removed the two handguns from the evidence bag, placed them in a brown paper bag and gave them to the Appellant who, at around 7:30 a.m., then left the office with this package. Neither the guns nor the evidence tag were produced at trial. Campbell further testified that the remaining evidence was entered into the police inventory books. The books contained no reference to the two guns.

The State's next witness was Sims Goodman, an admitted pimp, who, at the time of trial, was incarcerated pursuant to convictions for receiving stolen property and possession of a concealed weapon. Goodman testified that on the morning of the raid he was nearby and observed Lee Jordan and Ivan Lapsley walking away from the area of 10001 Cedar Avenue. Prior to that date, Goodman had been working as a "door shaker" at Goldie's Lounge and had, at separate times, checked Jordan's and Lapsley's guns which Goodman described as 9mm automatics with snow-white grips. Subsequent to the raid, and on separate occasions, Goodman again checked the guns of these two men. Neither of the men carried the type of pistol he had seen prior to the raid. In reference to the absence of his pistol with snow-white grips, Jordan stated to Goodman, "That nigger Payne got my gun." In like circumstances, Lapsley told Goodman, "Some bright nigger got it." On cross-examination, Appellant introduced a prior statement of Goodman's in which he claimed to have been threatened by the Cleveland Police Department with further prosecution if he didn't provide information which could be used to "get" Appellant.

The final witness for the State pertaining to the theft in office charge was James Marino, a reporter for the Cleveland Press, who testified that after the raid Appellant had told him that a total of six handguns had been seized.

The Appellant's case was made up of a number of witnesses whose testimony tended to contradict that of the prosecution's witnesses. Chief among these was Deputy Garner who testified that he did not even see Campbell and the Appellant at Division 4 headquarters after the raid, let alone see or give to the Appellant the pearl-handled pistols. In addition, the other four deputies who testified also denied seeing either the pistols or the Appellant. Finally, both Jordan and Lapsley denied owning such handguns, denied seeing each other the night and morning of the raid, and denied being at 10001 Cedar Avenue that morning.

The intimidation charge is based on the following evidence: Following the April 19 raid, Deputy Campbell continued to work for the Sheriff's Department until June, 1975, when he was badly beaten while on duty. As a result of his injuries, Campbell was put on disability leave until November, 1975. He testified that during the summer of his convalescence, he was visited by several members of the Sheriff's Department. These visitors wanted the file Campbell was known to have kept concerning "irregularities" he had observed in the department. Campbell refused their requests. Campbell was subsequently fired in December of 1975.

Campbell testified that on August 1 of that summer he received a call from the Appellant requesting that Campbell, his

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wife Judith, and his partner Deputy Phillip Vari, meet the Appellant for an evening at the bar at the Eastown Motel. This meeting took place on the evening of August 2, 1975. Campbell stated that the conversation with the Appellant began in a friendly manner but soon turned to the subject of Campbell's file. Apparently Appellant wanted the file and wanted to know if it contained information which might help Appellant in defeating the Sheriff in a future election. In addition, Appellant asked Campbell if the file contained information pertaining to the Appellant. Campbell refused to either turn over the file or give Appellant any information as to its contents. Campbell then testified that Appellant stated to him, "If you don't cooperate with me, I'll make sure you never get to court." In response to Campbell's question as to what he meant by this...

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