Ellis v. Black, 83-1421

• Citation: 732 F.2d 650
• Decision Date: 24 April 1984
• Docket Number: No. 83-1421,83-1421
• Parties: John R. ELLIS, Appellant, v. Charles BLACK, et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 650

732 F.2d 650

John R. ELLIS, Appellant, v. Charles BLACK, et al., Appellees.

No. 83-1421.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 12, 1983.

Decided April 24, 1984.

Berry, Anderson, Creager & Wittstruck, Robert B. Creager, Lincoln, Neb., for appellant.

Paul L. Douglas, Atty. Gen., Sharon M. Lindgren, Asst. Atty. Gen., Lincoln, Neb., for appellees.

Before BRIGHT, JOHN R. GIBSON and FAGG, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

John Robert Ellis appeals from the denial of his petition for writ of habeas corpus under 28 U.S.C. Sec. 2254 (1976). He had been convicted of manslaughter in violation of Neb.Rev.Stat. Sec. 28-403 (Reissue 1975). On appeal he reasserts each of the grounds argued before the district court: ¹ (1) that there was insufficient evidence to support a finding of guilt beyond a reasonable doubt, (2) that the cross-examination of a key witness was unduly restricted when the witness asserted a privilege against self-incrimination, (3) that the admission of evidence of other crimes, wrongs or bad acts committed by Ellis was improper, (4) that questions asked and arguments made by the prosecutor were inflammatory, and (5) that the cumulative effect of these errors requires reversal. All of these contentions were considered and rejected in the painstakingly detailed opinion of the district court, and we affirm.

Deborah Forycki, a University of Nebraska student, disappeared on October 3, 1974. She was last seen around 11:00 a.m. on her way to meet a friend for lunch. Skeletal remains, which were identified as hers, were found in an antique water wagon in a rural area near Elmwood, Nebraska, on September 13, 1978. Ellis was subsequently arrested and charged with first-degree murder in connection with her death. His trial lasted nearly three weeks. The jury acquitted Ellis of first-degree and second-degree murder but convicted him of manslaughter. The Nebraska Supreme Court affirmed the conviction, State v. Ellis, 208 Neb. 379, 303 N.W.2d 741 (1981), and because the testimony is thoroughly set forth in that opinion, we limit our discussion to those facts that are particularly material to the points raised on this appeal.

I.

We first consider the sufficiency of the evidence to sustain the manslaughter conviction. Under Nebraska law, a person commits manslaughter if he "kill[s] another without malice ... unintentionally, while ... in the commission of some unlawful act." Neb.Rev.Stat. Sec. 28-403 (Reissue 1975). ² The Supreme Court set forth the standard governing evidentiary sufficiency in Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791-92, 61 L.Ed.2d 560 (1979):

[T]he applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.

We first applied this standard in Davis v. Campbell, 608 F.2d 317, 319-20 (8th Cir.1979). In Lenza v. Wyrick, 665 F.2d 804, 812 (8th Cir.1981), we specifically applied it in a circumstantial evidence case, and observed that circumstantial evidence is to be treated no differently than direct evidence. Indeed, Jackson itself involved circumstantial evidence. 443 U.S. at 324-25, 99 S.Ct. at 2791-92. We further observed that to establish guilt such evidence need not be conclusive nor prove an absolute impossibility of innocence, and that we must consider the evidence in the light most favorable to the government. Lenza, 665 F.2d at 812.

The Supreme Court in Jackson also made clear that a state appellate decision as to the sufficiency of the evidence is entitled to deference. 443 U.S. at 323, 99 S.Ct. at 2791. In this case, both the Supreme Court of Nebraska and the district court, which expressly applied the Jackson standard, concluded that the evidence was sufficient to support the conviction. Upon reviewing the record, we conclude, in agreement with the district court, that under Jackson a rational trier of fact could have found proof of guilt beyond a reasonable doubt.

The skeleton was found in the water wagon, which was some ten feet long by three feet wide, lying on its back with the left arm along the side, the right hand at approximately where the right ear would be and the head turned slightly to the right. It was beneath three logs--each five feet long and four inches in diameter and apparently sawed at the ends--as well as two or three sticks four inches in diameter and a number of other sticks two inches in diameter. Wedged tightly in the water wagon's opening, which measured two feet by two and a half feet, was a roll of woven wire fencing. No jewelry, fasteners, zippers, clasps, buckles or shoes were found in the water wagon. The skeleton showed no signs of trauma or force to fracture the bones, but according to a forensic scientist, the right thumb bone and right radius at the wrist end had defects consistent with being formed by a bullet. An anthropologist disputed this, and in any event the county coroner's physician testified that such a wound would not be mortal. The water wagon had what were identified as bullet holes in its sides and a bullet was found under the skeleton at about where the kidney would have been.

Forycki had told friends that she was to meet a man for lunch at 11:30 a.m. and then be at work at 1:00 p.m. She was last seen leaving her apartment and walking toward the downtown area around 11:00 a.m. After her disappearance the police found among her possessions a note which read, "Meet John Kondowski 10:30 at the Student Union." Investigation failed to reveal the existence of a person with such a name in Lincoln.

Another young woman testified that in October of 1974--about two weeks after Forycki disappeared--she had met a man using the name "John Tronzowski", a name that was also not confirmed by investigators to be that of an existing person. She identified Ellis in the courtroom as this person. She stated that Ellis had arranged a date with her, cancelled it, and rescheduled it for a breakfast date. When she met him he was vague about where they were going, and he said that a friend had offered the use of his house where they could cook ham and eggs. This house in fact turned out to be rented by Ellis. At the house, he made sexual advances toward the young woman, who resisted them. He then grabbed and held her arm behind her back, held a butcher knife near her throat, and stuffed a handkerchief into her mouth. The handkerchief fell out and she managed to break loose. Although he threatened to break her arm if she screamed, she did scream and was eventually able to leave the house. The police were informed of the incident, but no charges were filed.

A second young woman testified about another incident involving Ellis that occurred two years later. On June 10, 1976, he called her and made a date for dinner at a restaurant that evening. After some discussion and another phone call involving changes of their meeting place, he told her that they would be going to a barbecue at a friend's house in a rural area near Elmwood instead. When he picked her up, she noticed that he had a hand-drawn map of the location with him. As they were driving near Elmwood, Ellis suddenly turned into a farm road screened by high weeds and trees. The car stopped, she felt a knife at her neck and Ellis grabbed her hair, pulling it tightly. He also tried to grab her left arm and pull it behind her. She struggled free and grabbed the blade of the knife. After somewhat calmer discussion, Ellis dropped the knife outside the car. When the woman suggested that they drive on to Elmwood, however, Ellis flew into a rage, again grabbed the top of her hair, clutched her arm and forced it behind her neck, forced her down on her knees to the floor of the car and tied her arms behind her back. He attempted to place masking tape over her mouth, but she screamed, which seemed to cause Ellis to change his mind and free her. The assault occurred within seventy-five feet of the location of the water wagon where the Forycki remains were found. Ellis was convicted and served time for this assault.

This witness testified on both direct and cross-examination that at the time of this assault Ellis stated that he knew he was sick, that he wanted to see a psychiatrist and that while in California he was in a group "that was in to inflicting pain on other people." He said that he had enjoyed this. On cross-examination, she admitted that according to her prior deposition testimony, Ellis had said that he had experienced sex bondage or sadism or masochism and had probably said that he wanted to do it with her. She also testified on cross-examination that she had not believed all that he was telling her, that she thought he was play acting, but that her statement to this effect brought an angry response.

Ellis had driven his wife's car on this occasion. A later investigation of the car revealed the presence of certain hairs exhibiting the same characteristics as the hair of Deborah Forycki. There was testimony, however, that the hair could have come from a daughter of Ellis' wife by a prior marriage.

A cellmate of Ellis' during his incarceration for the 1976 assault testified that Ellis had described the rural area near Elmwood and had said that "if you ever kill somebody and wanted to hide the body, that would be a really good place to do it, that the police would never find it." Ellis also told the cellmate that he had found a secluded place outside Elmwood to which he had taken persons from the college on occasion.

University records established that in the spring of 1974 Ellis and Forycki had classes which met the same three days of the week on the same floor of the same building and at the same time of day. The classrooms were about sixty to seventy feet apart. In the fall of 1974 the two had classes three days a week in the same building at the same time although on different floors. Ellis...