Brofford v. Marshall, 84-3463

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Citation751 F.2d 845
Docket NumberNo. 84-3463,84-3463
Parties17 Fed. R. Evid. Serv. 482 Lloyd Eugene BROFFORD, Petitioner-Appellant, v. Ronald C. MARSHALL, Respondent-Appellee.
Decision Date08 January 1985

Page 845

751 F.2d 845
17 Fed. R. Evid. Serv. 482
Lloyd Eugene BROFFORD, Petitioner-Appellant,
v.
Ronald C. MARSHALL, Respondent-Appellee.
No. 84-3463.
United States Court of Appeals,
Sixth Circuit.
Argued Nov. 14, 1984.
Decided Jan. 8, 1985.

Page 846

Edward Marek, Federal Public Defender, Donald Krosin (argued), Cleveland, Ohio, for petitioner-appellant.

Anthony J. Celebrezze, Atty. Gen. of Ohio, Christine Manuelian, Asst. Atty. Gen. (argued), Columbus, Ohio, for respondent-appellee.

Before MERRITT and KENNEDY, Circuit Judges, and PRATT, District Judge. *

CORNELIA G. KENNEDY, Circuit Judge.

This is an appeal from the District Court's denial of appellant Brofford's petition for a writ of habeas corpus.

Facts

Brofford's appeal stems from his conviction for the January 15, 1980, murder of Officer David Alcox of the Oak Hill, Ohio, Police Department. Shortly after 8:00 p.m. on the day in question, Brofford was stopped for a traffic violation by Alcox. While running a license check, Alcox was notified by the police dispatcher that there was a parole warrant out for Brofford. Alcox failed to acknowledge the transmission, at which time patrol cars were immediately dispatched to the scene. Upon their arrival, police officers found Alcox lying on his back beside the passenger door of his cruiser, dead from a bullet wound to his chest.

Brofford was apprehended that evening at a roadblock following a high speed chase. As he was searched, Brofford indicated the location, in his right pocket, of the murder weapon. In response to a cautionary statement from arresting officer Smith to other officers on the scene that

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they should search the suspect carefully because the victim's gun was missing, Brofford volunteered that the gun was in his truck, whereupon Smith looked in the truck and found Alcox's gun and citation book, containing a partially completed traffic ticket made out to Brofford.

There were two witnesses to the shooting, Juanita Runyon and her son Jerry, who were passengers in Brofford's truck at the time he was stopped by Alcox. Both testified that upon being stopped, Brofford put the truck in park, left it running with the lights on, got out and walked back to the cruiser, and sat down on the passenger side of the officer's automobile. A few minutes later, Brofford returned to the truck, turned off the lights, and told Juanita to keep the motor running. As Brofford went back to the cruiser, Juanita turned and saw Brofford and Alcox facing each other and talking. Just before turning away, she saw Alcox outstretch his left hand. At that moment, Jerry heard two gunshots. Brofford came back to the cruiser, blood on his hands, and threw Alcox's citation book in Juanita's lap and revolver on the dash, stating "that's not my blood, that's from him, I shot the son of a bitch." In addition, several witnesses testified that they either saw or heard Brofford's truck speeding away from the scene, one man stating that he had heard two gunshots immediately beforehand. Various items of physical evidence conclusively linked Brofford to the crime as well, including gunshot residue on his hands detected by tests performed immediately after his arrest.

The murder in question occurred in Jackson County, Ohio, a rural county with approximately 30,000 residents. Prior to trial, petitioner's counsel moved for a change of venue based upon prejudicial pretrial publicity in the news media in and around Jackson County. This motion was taken under advisement by the trial court pending efforts to empanel an unbiased jury.

Brofford's trial began March 24, 1980. Just before the panel of prospective jurors entered the courtroom, the trial judge overruled counsel's objection to the defendant being restrained in leg irons in the courtroom. Voir dire consumed approximately three hours, during which time twenty-three prospective jurors were examined in selecting a jury of twelve and one alternate. At the close of voir dire, petitioner renewed his motion for a change of venue. The motion was denied. On March 27, the jury returned a verdict of guilty of aggravated murder, and Brofford was sentenced to life imprisonment.

Appellant raises eight arguments in support of his habeas petition:

1. The trial court erred in overruling Defendant's Motion for a Change of Venue thereby denying the Defendant the right to a fair and impartial trial.

2. The trial court erred in overruling Defendant's Motion for Acquittal at the close of the State's case for the reason that the State of Ohio had failed to prove each element of Section 2903.01 of the Ohio Revised Code.

3. The trial court erred in overruling Defendant's Motion to Dismiss for the reason that the Grand Jury was not properly empaneled.

4. The trial court erred in overruling Defendant's Motion to Suppress Evidence thus violating the Defendant's right to privacy.

5. The trial court erred in its charge to the jury.

6. The trial court erred in excluding defense evidence.

7. The trial court erred in permitting the Defendant to be shackled with leg irons during the trial.

8. The trial court erred in permitting the prosecution to admit into evidence a photograph which was not submitted to the defense pursuant to discovery.

Each of these contentions was rejected by the Ohio Court of Appeals, and petitioner's motion for leave to appeal to the Ohio Supreme Court was denied.

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Discussion

1. Prejudicial Pretrial Publicity

The method employed by the trial court for selecting the jury was to bring in a panel of twelve prospective jurors, conduct voir dire examinations of the panel both collectively and individually with the entire panel present, and replace those excused as necessary. The judge began by asking the panel whether any of its members knew or had any dealings with the attorneys in the case, the defendant or the victim. He then questioned the panel generally regarding their awareness of the case as reported in the media, admonishing them that the case was to be decided solely on the evidence as presented during the trial and the law as explained by the court, and asking that anyone unable to do so identify themselves. As each new person was added to the panel, the judge would put to that person individually an equivalent series of questions. Counsel questioned the veniremen individually as well. In particular, defense counsel was permitted to probe the source and extent of each prospective juror's knowledge of the crime and preconceptions as to the defendant's guilt or innocence.

Of the twenty-three prospective jurors examined, nineteen were asked in their individual voir dire if they had read or heard about the case. All responded that they had. Eighteen were asked if they had discussed the case before being summoned. Fifteen responded affirmatively. Twenty were asked if they had an opinion as to the guilt or innocence of the defendant as a result of pretrial exposure to reports of the case. Twelve responded that they had such an opinion.

Of the jurors selected, including the alternate, each one had read or heard about the case. Nine stated that they had discussed the case prior to being summoned as jurors, three state that they had not, and one was not asked. Nine stated that they had formed an opinion from what they had read or heard that the defendant was guilty, but all of those stated that they could set that opinion aside. Defense counsel exercised all of his peremptory challenges, and was not permitted to challenge for cause solely on the basis that a prospective juror admitted to having a preconceived notion that the defendant was guilty, if that juror said he or she could put that notion aside. In particular, appellant notes the statement of juror Evans:

MR. DOUTHETT: Okay now based on the evidence adduced at trial, can you put this preconceived notion aside and if the State does not sufficiently prove its case, find in favor of the defendant, in spite of your predisposition towards guilt? .... Mr. Evans?

MR. EVANS: I would unless there's ... I could not say the man is innocent unless I hear a different evidence from what I read in the papers.

MR. DOUTHETT: Are you saying ...

BY THE COURT: Well, let me talk to him for a minute. Now sir, you're going to hear throughout the course of this case that I'm going to tell you that every person ... you, this defendant, or anybody else, is presumed to be innocent until the State proves him guilty beyond a reasonable doubt, and you'll learn at other times in the trial what that definition is. Now what the question is: if the State fails to prove him guilty beyond a reasonable doubt as required by law, would you be willing to render a verdict of not guilty?

MR. EVANS: Yes sir.

BY THE COURT: All right.

The court subsequently overruled a challenge of Mr. Evans for cause made by the defendant.

In Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), the Supreme Court struck down a state capital conviction solely on the ground of prejudicial pretrial publicity. Six murders had been committed in Vanderburgh County, Indiana. Shortly after petitioner was arrested, the county prosecutor and local police officials issued press releases, which were intensively publicized. Headline stories announced that petitioner had confessed to

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the six murders and to twenty-four burglaries (the modus operandi of these crimes was compared to that of the murders and the similarity noted). Reports that the petitioner had offered to plead guilty if promised a ninety-nine year sentence, but that the prosecutor was determined to secure the death penalty, were widely circulated. In many of the newspaper stories petitioner was described as the "confessed slayer of six," a parole violator and fraudulent check artist. Petitioner sought a change of venue, which was granted, but to an adjoining county. His request that venue be changed to a further removed county was denied. At trial, the jury panel consisted of 430...

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