Clark v. Jago
| Decision Date | 23 April 1982 |
| Docket Number | No. 81-3042,81-3042 |
| Citation | 676 F.2d 1099 |
| Parties | Jimmy Lee CLARK, Petitioner-Appellant, v. Arnold R. JAGO, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Albert L. Purola, Willoughby, Ohio, for petitioner-appellant.
Richard David Drake, Asst. Atty. Gen., Columbus, Ohio, for respondent-appellee.
Before KEITH and MARTIN, Circuit Judges, and DUNCAN, District Judge. *
Jimmy Lee Clark was convicted of aggravated murder and aggravated robbery after a trial by jury in the Court of Common Pleas for Lake County, Ohio. Although the jury found one of the Ohio statutory criteria for the imposition of the death penalty to have been met, 1 the Court found a mitigating circumstance 2 and sentenced Clark to life imprisonment for aggravated murder and to a term of seven years imprisonment for aggravated robbery. The sentences are to be served consecutively.
This appeal from the District Court's dismissal of Clark's petition for habeas corpus under 28 U.S.C. § 2254 presents important Fifth, Sixth, and Fourteenth Amendment questions. We believe the petition should not have been dismissed.
Appellant's challenges to the instructions regarding aggravated murder were rejected by the Ohio courts, including the Supreme Court of Ohio, State v. Clark, 55 Ohio St.2d 257, 379 N.E.2d 597 (1978). Clark's petition for a writ of certiorari was denied by the United States Supreme Court. Clark v. Ohio, 440 U.S. 950, 99 S.Ct. 1431, 59 L.Ed.2d 639 (1979). 3 For the reasons discussed below, we find that appellant's Due Process rights were violated by the jury instructions and accordingly reverse the judgment of the District Court.
The Supreme Court of Ohio summarized the facts developed during the course of Clark's trial as follows:
On the morning of December 7, 1975, appellant, Jimmy Lee Clark, and a companion, Willie Jones, drove from Cuyahoga County to a gas station located just off Interstate 90 in Lake County. Upon their arrival the two men entered the gas station and confronted the attendant, Joseph H. Bradshaw, who was sitting on a stool in the front office. When Jones produced a handgun, Bradshaw reached into his pocket and gave Jones his money. Appellant and Jones then ordered Bradshaw The Court's charge, of course, has been reviewed in totality; 5 we find the following parts pertinent:
back into the bay area of the gas station, where Bradshaw was made to lie on the floor while his coin and wallet were removed. Thereafter, appellant went into a back room and removed some coins from a money box. Following this, Jones marched Bradshaw into the back room, from which appellant heard the sound of two gunshots as he was exiting the back room. Appellant and Jones then departed in their vehicle, and soon afterward Bradshaw was discovered lying dead, face down in the back room, with bullet wounds in the head and neck. 4
Before you can find the Defendant guilty of aggravated murder you must find beyond a reasonable doubt that Joseph Bradshaw, Jr. was a living person; that his death was caused by the Defendant in Lake County, Ohio on or about the 7th day of December, 1975; that the killing was done purposely and that the killing was done while the Defendant was committing aggravated robbery.
Purpose to cause the death of another is an essential element of the crime of aggravated murder. A person acts purposely when it is his specific intention to cause a certain result. It must be established in this case that at the time in question there was present in the mind of the Defendant and/or his accomplice a specific intention to cause the death of Joseph H. Bradshaw, Jr.
An accomplice is a person who knowingly aids, abets, assists, encourages or directs or associates himself with another in the commission of a crime and he is regarded as if he were a principal offender and is just as guilty as if he personally performed every act constituting the offense. This is true even if such person was not physically present at the time the crime was committed. When two persons have a common purpose to commit a crime and one does one part and a second performs another, those acting together are equally guilty of the crime. Section 2923.03 of the Ohio Revised Code entitled Complicity reads in part as follows:
"No person acting with the kind of culpability required for the commission of an offense shall do any of the following: Aid or abet another in committing the offense."
Before you can find Jimmy Lee Clark guilty of aggravated murder in the first count of the indictment you must find beyond a reasonable doubt that he aided, abetted, assisted or encouraged another, Willie Jones, to purposely cause the death of Joe Bradshaw, Jr.
A person acts purposely when the jist of his offense is a prohibition against conduct of a certain nature regardless of what the offender intended to accomplish thereby. If it is his specific intention to engage in conduct of that nature he has a conscious objective of producing a specific result of engaging in specific conduct to do an act.
Purpose is a decision of the mind to do an act with a conscious objective producing a specific result of engaging in specific conduct to do an act. Purposely is to do it intentionally and not accidently. Purpose and intention mean the same thing. The purpose with which a person does an act is known only to himself unless he expresses it to others or indicates it by his conduct. The purpose with which a person does an act is determined by the manner in which it is done, the While committing aggravated robbery means that the killing must have occurred as part of those acts leading up to or occurring during the commission of the aggravated robbery and that the killing was directly associated with the aggravated robbery. (Emphasis added.)
weapon used and all of the facts and circumstances that are presented to you in evidence.
In addition to the charge on aggravated murder and aggravated robbery, the court instructed the jury to determine whether there was proof of one of the criteria for imposing the death penalty under RC 2929.04(7). The court stated:
That separate question which you will be called upon to decide is, did the Defendant, Jimmy Lee Clark, purposely cause the death of Joseph Hiram Bradshaw, Jr., while committing aggravated robbery.
After the jury was charged and began deliberation, it requested the court to define aggravated murder and aiding and abetting. The elements of the crime and the complicity statute were again read to the jury.
It should be clearly understood that a review of the constitutional adequacy of jury instructions is far different from a review of the sufficiency of the evidence. Whether there is sufficient evidence to support a conviction for aggravated murder is a question that we need not answer. 6 Rather simply stated, our query is whether the jury charge considered as a whole advised a reasonable juror that the prosecution had the burden of proof of the essential elements of the crime of aggravated murder according to Ohio law. If the charge could have been interpreted by a reasonable juror to relieve the state of its burden to prove each of the essential elements, then Clark was denied the process that the constitution makes due. Sandstrom v. Montana, 442 U.S. 510, 517, 99 S.Ct. 2450, 2455, 61 L.Ed.2d 39 (1978); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Burton v. Bergman, 649 F.2d 428 (6th Cir. 1981).
Ohio has left the company of those jurisdictions which have traditional "felony murder" offenses. In such jurisdictions first-degree murder does not always require proof of an intent to kill. The underlying felony or predicate offense may serve as an intent-divining mechanism which compounded with a homicide supports a first degree or aggravated murder conviction. See Whalen v. United States, 445 U.S. 684, 713, 100 S.Ct. 1432, 1449, 63 L.Ed.2d 715 (1980) (Rehnquist, J., dissenting).
Under Ohio law, however, purpose to kill is an essential element of the crime of aggravated murder. 7 State v. Lockett, 49 Ohio St.2d 48, 358 N.E.2d 1062 (1976), reversed on other grounds, sub nom. Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); State v. Clark, 55 Ohio St.2d 257, 379 N.E.2d 597, cert. denied, 440 U.S. 950, 99 S.Ct. 1431, 59 L.Ed.2d 639 (1979).
Both the Supreme Court of Ohio and the Court of Appeals affirmed Clark's convictions, citing State v. Lockett, supra. Paragraphs 3 and 4 of the syllabus of Lockett are as follows:
3. Where the record in a prosecution for aggravated murder committed during the commission of an armed robbery establishes 4. If a conspired robbery, and the manner of its accomplishment, would be reasonably likely to produce death, each person engaged in the common design to commit the robbery is guilty with the principal killer as an aider and abetter in the homicide although not actually present at the time of the homicide, and a purposeful intent to kill by the aider and abetter may be found to exist beyond a reasonable doubt under such circumstances.
that the participants in the offense entered into a common design to commit the armed robbery by the use of force, violence and a deadly weapon and all the participants were aware that an inherently dangerous instrumentality was to be employed to accomplish the felonious purpose, a homicide occurring during the commission of the felony is a natural and probable consequence of the common plan which must be presumed to have been intended, and such evidence is sufficient to allow a jury to find a purposeful intent to kill. 8
In State v. Scott, 61 Ohio St.2d 155, 400 N.E.2d 375 (1980), however, the Supreme Court of Ohio emphasized the importance of the element of purpose to kill in situations where a defendant is charged as an aider and abetter. In that case, Scott together with individuals named Moore and LeRoy, initiated...
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