Fornash v. Marshall

• Decision Date: 20 October 1982
• Docket Number: No. 81-3720,81-3720
• Citation: 686 F.2d 1179
• Parties: Larry FORNASH, Petitioner-Appellant, v. Ronald C. MARSHALL, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1179

686 F.2d 1179

Larry FORNASH, Petitioner-Appellant, v. Ronald C. MARSHALL, Respondent-Appellee.

No. 81-3720.

United States Court of Appeals Sixth Circuit.

Argued May 24, 1982.

Decided Aug. 16, 1982.

Rehearing and Rehearing En Banc Denied Oct. 20, 1982.

Mark Shenfield, Cleveland, Ohio, for petitioner-appellant.

Elizabeth Dean, Karen Kolmacic, Asst. Attys. Gen., Columbus, Ohio, for respondent-appellee.

Before MARTIN, Circuit Judge, and PECK and BROWN, ^* Senior Circuit Judges.

BAILEY BROWN, Senior Circuit Judge.

Petitioner Larry Fornash appeals from the district court's denial of relief on his petition for a writ of habeas corpus. Fornash claims that he was denied the effective assistance of counsel and denied due process of law by jury instructions which improperly shifted the burden of proof when he was convicted of the first degree murder of his common-law wife, Verna Joan Adkins, in an Ohio state court in 1970. We affirm the judgment of the district court.

Fornash and Verna Adkins had lived together in Canton, Ohio for about one year prior to a separation on September 19, 1969. Testimony at Fornash's trial indicated that they had a stormy and turbulent relationship. Verna was seeing another man at the time of the separation. Fornash attempted a reconciliation, and continued to maintain contact with Verna. The evening of October 14, 1969, Verna and Fornash arrived at the home of Verna's sister to pick up Verna's youngest daughter. The couple was arguing, and Fornash shoved Verna against her car and threatened to kill her.

The morning of October 15, 1969, Fornash unsuccessfully attempted to buy some .25 caliber shells from a local storekeeper he knew. Fornash testified at trial that he succeeded in purchasing a box of .25 caliber shells from another store, and that he had done so at Verna's request, since she was fearful of intruders and needed bullets for her gun. However, according to Fornash, he only gave Verna six of the shells, since he was "leery" of her past threats to kill At about 1:00 p. m. the afternoon of October 15, 1969, Fornash and Verna visited a local attorney to discuss the legal implications of their separation. At that time, Fornash repeated his threat to persuade the authorities to take Verna's children by her earlier marriage away from her because he had been living with her. After leaving the attorney's office, Fornash and Verna drove in separate cars to a local junkyard to replace a window in Verna's car that had been broken by Fornash during one of their earlier altercations. However, the junkyard manager was not present, so Fornash and Verna decided to wait in Verna's car for the manager to return.

him, and he placed the box containing the remaining shells in the console of his car.

An eyewitness who lived near the junkyard and could see the cars testified at trial that she heard a woman scream, "Help, please help, help, please help me, please," followed by two shots which came from Verna's car. She also testified that she then saw Fornash pull a woman from the car, place her in his car, and leave. Fornash testified that Verna pulled a gun on him when he again threatened to have her children taken from her, and as they struggled for the gun, it went off, shooting Verna. Fornash claimed that he then panicked, thinking that he would be held responsible for the shooting, so he grabbed the gun and shot himself with it. In a daze, he then unsuccessfully attempted to start Verna's car, dragged Verna over to his car, retrieved the gun and Verna's pocketbook and keys from her car, and drove off for the hospital.

On the way to the hospital, Fornash encountered a Canton police cruiser. He ignored the police order to pull over, shouting: "I got to get to the hospital, I shot my wife and I shot myself." The policemen escorted him to the hospital. When he arrived, he jumped out of his car and placed the gun on top of his vehicle, following which the policemen restrained him. Fornash collapsed as the police were frisking him, and he exclaimed as he fell to the ground: "I shot her ... it was a crazy thing to do." Both Fornash and Verna had gunshot wounds in the abdomen. Verna was dead on arrival at the hospital, but Fornash survived.

Three warrantless searches of Fornash's car were conducted by law enforcement officials while Fornash was being treated in the emergency room. Two detectives from the Canton Police Department looked inside Fornash's car, which was parked at the hospital emergency entrance, after talking to Fornash in the emergency room, and they retrieved a live .25 caliber bullet from the front seat on the driver's side and a brown leather holster from the front seat floor. A second search by one of the detectives produced Fornash's blue denim jacket from the front seat. This search was prompted by Fornash's statement during questioning in the emergency room that he had taken the gun from the pocket of his jacket. A third search by Sergeant Branch of the Stark County Sheriff's Department produced the opened box of .25 caliber bullets placed by Fornash in the console of his car. Eight .25 caliber bullets from Fornash's pants pocket were also turned over to the police by hospital personnel.

Fornash was indicted for first degree murder by the Stark County, Ohio grand jury on November 3, 1969. Two lawyers were appointed to represent Fornash in February of 1970. The jury found Fornash guilty as charged after a trial in June of 1970, and Fornash was sentenced to life imprisonment.

An appeal of the trial court's denial of his motion for a new trial was taken by Fornash to the Ohio Court of Appeals for the Fifth Appellate District. The intermediate appellate court overruled Fornash's assignments of error and affirmed the trial court's judgment. The Ohio Supreme Court dismissed Fornash's subsequent appeal on November 3, 1971 for lack of a substantial constitutional question. These decisions are not reported.

Fornash pursued a prior federal habeas corpus action in Fornash v. Kette, No. C-2-76-901 (S.D.Ohio, March 1, 1977). This petition was dismissed for failure to exhaust Fornash filed his present pro se petition for a writ of habeas corpus in the United States District Court for the Northern District of Ohio on September 15, 1980. Counsel was appointed, and Fornash's petition was referred to the United States Magistrate, who recommended on September 8, 1981 that relief be denied. The district court, Judge George W. White presiding, adopted the magistrate's recommendation on November 12, 1981 and dismissed the petition.

available state remedies. The district court determined, among other things, that a post-conviction action was still available to Fornash to assert that he was denied the effective assistance of counsel. Fornash alleges in his present petition that he pursued a post-conviction action alleging ineffective assistance of counsel, which was denied, and that his appeal to the Ohio Court of Appeals was denied in June of 1980. The state of Ohio contended in its Return of Writ that the record does not show whether an appeal was pursued to the Ohio Supreme Court on this issue; however, the state apparently is conceding exhaustion on the ineffective assistance of counsel issue, since this issue has not been further pursued or investigated by the state.

I.

Since the defense theorized that Verna's shooting was accidental, Fornash claims that the crucial issues were intent and purpose. Accordingly, he complains that certain jury instructions shifted the burden of proof to him of the essential element of intent, thus denying him due process of law.

Fornash contends that the instruction that the jury could presume that he had a purpose or design for his voluntary acts as well as the instruction that it was presumed that he intended the reasonable and natural consequences of his acts were improper instructions. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Furthermore, Fornash claims that, because accident is not an affirmative defense in Ohio, the court erred when it instructed the jury that "(i)f the evidence fails to establish that the act was accidental, the burden of proof remains on the state to establish beyond a reasonable doubt all of the essential elements of the crime ...." App. 665. Fornash claims that this instruction was confusing and could have been interpreted by the jury as requiring him to prove by a preponderance of the evidence or even beyond a reasonable doubt that the shooting of Verna was an accident.

It is well established that "accident is not an affirmative defense" in Ohio. State v. Poole, 33 Ohio St.2d 18, 294 N.E.2d 888, 889 (1973). Accordingly, an Ohio defendant cannot be required to establish accident by a preponderance of the evidence as with affirmative defenses; instead, the defense of accident negates the essential element of intent, which the state must prove beyond a reasonable doubt. "Where the state has shown that the death was the result of design, purpose, or intent, ... then the notion of accident is necessarily excluded." Id., 294 N.E.2d at 890 (quoting Jones v. State, 51 Ohio St. 331, 38 N.E. 79, 83 (1894)).

We are of the opinion that the jury instruction on accident was not constitutionally defective. ¹ The state trial judge carefully explained that the burden was The jury instructions on "purpose" and "intent" are more disturbing. ² Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), held that a jury instruction that the "law presumes that a person intends the ordinary consequences of his voluntary acts" unconstitutionally shifts the burden of proof on the essential element of intent because the jury could interpret the instruction either as mandating a conclusive presumption that the defendant acted with intent or as shifting the burden of persuasion to the defendant. Id. at 524, 99 S.Ct. at 2459. Arguably, the Fornash jury instruction that "(a) person is...