Jones v. Haskins

• Decision Date: 13 August 1971
• Docket Number: Civ. A. No. 71-82.
• Parties: Clyde JONES, Petitioner, v. E. B. HASKINS et al., Respondent.
• Court: U.S. District Court — Southern District of Ohio

343 F. Supp. 645

Clyde JONES, Petitioner, v. E. B. HASKINS et al., Respondent.

Civ. A. No. 71-82.

United States District Court, S. D. Ohio, E. D.

August 13, 1971.

Clyde Jones, pro se.

William J. Brown, Atty. Gen. of Ohio, Leo J. Conway, Asst. Atty. Gen., for respondents.

OPINION AND ORDER

KINNEARY District Judge.

Petitioner, a state prisoner, brings this action for a writ of habeas corpus under the provisions of Title 28, United States Code, Section 2241(c) (3). This matter is before the Court on the petition, return of writ, petitioner's memorandum in opposition to the return of writ, exhibits and briefs of the parties, and the bill of exceptions in State v. Clyde Jones, No. 19944 (Butler County Common Pleas Court, July 11, 12, 1967).

Petitioner was indicted on May 8, 1967, by the Butler County Grand Jury for the offense of statutory rape in violation of Section 2905.031, Ohio Revised Code. He pleaded not guilty to the charge and was tried to a jury on July 11, 12, 1967. The jury returned a verdict of guilty and petitioner was sentenced to imprisonment in the Ohio State Penitentiary for a term of five to twenty years.

Petitioner appealed his conviction to the First District Court of Appeals, which affirmed the judgment of conviction. The Ohio Supreme Court dismissed a motion for leave to appeal on the ground that no substantial constitutional question was raised. Respondent admits petitioner has exhausted his available state court remedies as required by 28 U.S.C., Section 2254(b), (c).

Petitioner alleges that he is in custody in violation of the United States Constitution in that:

1. There were defects in the arrest procedure.

2. The indictment was defective.

3. The verdict was against the weight of the evidence.

4. Evidence pertaining to his prior conviction for a criminal offense was placed before the jury before he testified in his own behalf.

5. Extrajudicial hearsay declarations of Mrs. Edna Thompson which incriminated petitioner were introduced in evidence for the truth of the matter stated.

6. The prosecutor made repeated prejudicial references to a previous indictment for assault with intent to rape, a crime for which he was not convicted.

An evidentiary hearing is not required, because the trial transcript contains a full and fair statement of the facts supporting the petition. See 28 U.S.C. § 2254(d). Each of petitioner's claims for relief will be considered below.

I

The alleged defects in the arrest procedures did not deprive petitioner of any of his constitutional rights. Defects in arrest procedures standing alone are not grounds for relief in habeas corpus. Fernandez v. Klinger, 346 F.2d 210 (9th Cir. 1965), cert. denied, 382 U.S. 895, 86 S.Ct. 191, 15 L.Ed.2d 152 (1965); Moore v. Cardwell, No. 20,037 (6th Cir. February 12, 1970).

II

The indictment, on its face, clearly charges the offense of statutory rape in violation of Section 2905.031, Ohio Revised Code. Moreover, questions concerning the sufficiency of the indictment may not be raised in habeas corpus. Knewel v. Egan, 268 U.S. 442, 446, 45 S.Ct. 522, 69 L.Ed. 1036 (1925); Love v. Perini, 418 F.2d 905 (6th Cir. 1970); Via v. Perini, 415 F.2d 1052 (6th Cir. 1969); United States ex rel. Tangredi v. Wallack, 343 F.2d 752 (2d Cir. 1965); Kimbro v. Bomar, 333 F.2d 755 (6th Cir. 1965); see also, Larch v. Sacks, 290 F.2d 548 (6th Cir. 1961).

III

Arguments based on the sufficiency of the evidence to support a judgment of conviction are not cognizable in habeas corpus. Ballard v. Howard, 403 F.2d 653 (6th Cir. 1968); Fernandez v. Klinger, supra; Edmondson v. Warden, 335 F.2d 608 (4th Cir. 1964); Schlette v. California, 284 F.2d 827 (9th Cir. 1960), cert. denied, 366 U.S. 940, 81 S.Ct. 1664, 6 L.Ed.2d 852 (1961).

IV

Petitioner's fourth, fifth and sixth allegations of error will be considered together because they raise similar constitutional questions. The events at trial which relate to these claims are set out below:

FOURTH ALLEGATION: Two references were made to petitioner's prior conviction of a criminal offense at a stage in the trial when neither his character nor his credibility as a witness were in issue. First, on direct examination, Mrs. Lora Fussner, the mother of Deborah Faye McClain, the alleged victim of a rape, testified to the substance of hearsay declarations allegedly made by Mrs. Edna Thompson which declarations included a reference to petitioner's prior criminal record. (Tr. 39).

Second, while cross-examining Mrs. Edna Thompson, the prosecutor asked the following questions:

Q. Do you know he petitioner was in prison?

A. Yes sir.

Q. Do you know what he was in prison for?

A. Yes sir, malicious entry as far as I know.

Q. Do you know the circumstances of that case?

A. No sir, I didn't question him about it. He told me he served time.

Q. Did he tell you that was the only time he served time?

A. Yes sir.

(Discussion at bench)

Tr. 65-66

The record does not disclose any specific objection to these two references to petitioner's prior criminal record.

FIFTH ALLEGATION: Mrs. Lora Fussner testified on direct examination, over the objection of defense counsel, to the following conversation:

. . . Mrs. Thompson said we have something to tell you, you had better get up and I got up and we went into the living room. I said what's happened, I knew they were home earlier than usual and Mrs. Thompson said tell her Debbie and Debbie said Clyde raped me and I said he what and she said he raped me. Mrs. Thompson said he didn't go all the way did he Debbie and Debbie said I don't know. Edna said please don't do anything about it, they will send him back to prison and she was crying and I said Debbie what did he do to you, tell me exactly what happened did he put his thing into you and she said yes and she started to cry and Edna said I will make him come over and tell you and I said what if it was your daughter what would you do, you have one almost her age and she said I would make him face up to it and come over here and face you and she said what are you going to do and I said I am going to take her to a doctor and she said I will pay for it, I will pay anything, just don't send him back to prison, don't do anything about it. I said I have to I have to know, I have to take her to a doctor to find out what happened. She said I will go and get Clyde and bring him over and she left. I called the police right away and they came and took us back to Sharonville and then we retraced it and then Debbie remembered going to the United Dairy Farmers in Sharonville and she retraced it all the way there and she remembered the different spots they had stopped and the way they had taken and the places they had parked and we went on out to where it had happened and then they called the Butler County Sheriff because it was in Butler County and they picked up us and they took us to Mercy Hospital and got a doctor in for her. Tr. 39-40.

Mrs. Edna Thompson later appeared as a defense witness, corroborating petitioner's alibi that he was at the Manor Inn at the time of the alleged rape. She denied making the statements Mrs. Fussner attributed to her which incriminated the petitioner.

SIXTH ALLEGATION: The petitioner testified on his own behalf. The prosecutor asked the following questions in the course of his cross-examination of petitioner:

Q. Going back to November of 1966 when you say you first met Mrs. Thompson, you were just out of prison one month?

A. Yes.

Q. On parole?

A. Yes.

Q. You are still on parole right now?

A. Yes.

Q. What offense were you indicted for?

Mr. Cherney: I object to this.

(Conference at Bench)

By the Court: Members of the Jury we are going to take a short recess at this time and once again we ask you not to discuss this case, allow no one to discuss it with you and above all form no opinion about the case until it is finally submitted to you.

Court recessed: 3:25

Court reconvened: 3:50

By the Court: At this time the objection will be overruled. You may answer.

A. Malicious entry.

Q. Isn't it a fact the indictment was for assault with intent to commit rape?

A. My lawyer had it reduced to malicious entry, and I got probation.

Q. Wasn't the original charge on the indictment assault with intent to commit rape?

Mr. Cherney: Objection.

By the Court: Sustained.

Q. Let me ask you this question. What place did you enter?

A. The girl I was staying with.

Q. It was at her home?

A. I had a key to the apartment.

Q. So you were charged with malicious entry?

A. She had me arrested and dropped the charges.

By the Court: Members of the Jury we have permitted you to hear this evidence but only for the purpose of determining the credibility of this witness and for no other purpose. It must not be considered for any other purpose.

Q. Have you ever been convicted of any State or Federal offenses?

A. No sir not that I know of.

Tr. 76-78.

Petitioner alleges that in each of the above instances the trial court erred in permitting the evidence to be admitted into the record. He further argues that he was so prejudiced by the admission of the evidence that he should be released from the custody of the respondent.

Federal habeas corpus exists to vindicate rights arising under the Constitution, laws and treaties of the United States. See 28 U.S.C. § 2241(c) (3). Errors in the admission of evidence committed by a state trial court, which do not violate specific constitutional guarantees are not cognizable in habeas corpus. See Reese v. Cardwell, 410 F.2d 1125 (6th Cir. 1969); Scalf v. Bennett, 408 F.2d 325 (8th Cir. 1969), cert. denied, 396 U.S. 887, 90 S.Ct. 175, 24 L.Ed.2d 161 (1969); Crisafi v. Oliver, 396 F.2d 293 (9th Cir. 1968), cert. denied, 393 U.S. 889, 89 S.Ct. 208, 21 L.Ed.2d 167 (1968); Durham v. Haynes, 368 F.2d 989 (8th Cir. 1966); Trujillo v. Tinsley, 333 F.2d 185 (10th Cir. 1964); see also, Ballard v. Howard, 403 F.2d 653 (6th Cir. 1968); Fernandez v. Klinger, 346 F.2d 210 (9th Cir. 1965), cert. denied, 382 U.S. 895, 86...