Long v. Dutton

• Decision Date: 12 July 1985
• Docket Number: Civ. A. No. 3:85-0137.
• Citation: 621 F. Supp. 1209
• Parties: Jerry Bates LONG, Petitioner, v. Michael DUTTON, Warden, Respondent.
• Court: U.S. District Court — Middle District of Tennessee

621 F. Supp. 1209

Jerry Bates LONG, Petitioner, v. Michael DUTTON, Warden, Respondent.

Civ. A. No. 3:85-0137.

United States District Court, M.D. Tennessee, Nashville Division.

February 12, 1985.

Memoranda Opinions, Findings and Order on the Merits July 12, 1985.

Joe P. Binkley and Patricia Young, Nashville, Tenn., for petitioner.

Kymberly Lynn Ann Hattaway, Asst. Atty. Gen., Nashville, Tenn., for respondent.

MEMORANDUM OPINION, ORDER, AND DIRECTIONS

NEESE, Senior District Judge, Sitting by Designation and Assignment.

The petitioner Mr. Jerry Bates Long applied to this Court for the federal writ of habeas corpus, claiming that he is in the custody of the respondent-warden pursuant to the judgment of March 18, 1983 of the Circuit Court of Humphreys County, Tennessee,¹ in violation of the Constitution, Fifth Amendment, Due Process Clause;² Fourteenth Amendment; § 1, Due Process Clause;³ and his right to a fair trial mandated by the former, United States v. Shoupe, 548 F.2d 636, 643 7 (6th Cir. 1977), reh. den. (1977); United States v. Blasco, 702 F.2d 1315, 1329 29 (11th Cir. 1983). 28 U.S.C. § 2254(a). The applicant claims he exhausted his state-remedies by presenting on direct review a part of the same questions he presents here to the Court of Criminal Appeals of Tennessee, which affirmed such judgment of convictions (but not as to punishment) on June 22, 1984 in State of Tennessee, appellee, v. Jerry Bates Long, appellant, no. 73-120-III, permis. app. den. (with concurrence in the result below only), October 1, 1984 by the S.Ct. of Tenn. 28 U.S.C. § 2254(b).

Among the applicant's claims of deprivation of federal due process of law are his allegations (in a section of his petition designated therein as 10.D.) because of the insufficiency of the evidence of his having been armed in connection with his conviction of armed robbery,⁴ and allegations (in such a section designated therein as 10.E.) because of the insufficiency of the evidence of his having been a person who committed the respective crimes in connection with his convictions of aggravated rape, of burglary in the first-degree, and of grand larceny. He asserts that his afore-designated claims 10.D. and 10.E. were not presented on his direct appeal to the appellate courts of Tennessee "* * * as same were not included in his motion for a new trial, which was heard and disposed of prior to the entry of present counsel. Said facts were referenced by present counsel during the appeal of this case to the State appellate courts, and it was noted as correct by the opinion of the Court of Criminal Appeals * * *."

The latter-named Court noted inter alia "* * * that sufficient evidence was presented to the jury to justify a rational trier of fact in finding the appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. Rule 13(e), T.R.A.P.; Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2786-2792, 61 L.Ed.2d 560 (1979), reh. den., 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979). * * *" Ib., at pg. 2. The intermediate criminal Court of Tennessee, having entertained the foregoing federal claims of the applicant on their respective merits, this Court "* * * must also determine the merits of the applicant's claims * * *" on his application to this Court for relief via habeas corpus. Lefkowitz v. Newsome, 420 U.S. 283, 292, n. 9, 95 S.Ct. 886, 891, n. 9, 43 L.Ed.2d 196 (1975), cited in Francis v. Henderson, 425 U.S. 536, 542, n. 5, 96 S.Ct. 1708, 1711, n. 5, 48 L.Ed.2d 149 (1976).

Such a determination of sufficiency, of course, must be made from the whole record. Cf. Holnagel v. Kropp, 426 F.2d 777, 779 4 (6th Cir.1970) (where a determination was necessary of whether a state-prisoner had had ineffective counsel). The respondent-warden will file an answer or other pleading within 23 days herefrom. Rule 4, 28 U.S.C. fol. § 2254. The clerk will serve forthwith by certified mail copies of the petition herein and of this order and direction upon the respondent-warden and the attorney-general and reporter of Tennessee. Id.

Within that same period, the applicant, if able, hereby is directed to produce the record of his trial before the aforementioned Court; otherwise,⁵ it shall be produced by the attorney-general and reporter of Tennessee. 28 U.S.C. § 2254(e). The noticed slow movement of the mail provides good cause for the additional time allowed. 28 U.S.C. § 2243; Rule 81(a)(2), F.R.Civ.P.

MEMORANDA OPINIONS, FINDINGS, AND ORDER ON THE MERITS

The respondents conceded that the petitioner exhausted his available state-remedies as to the questions presented herein. 28 U.S.C. § 2254(b).

I.

The petitioner claims the constitutional-insufficiency of the evidence at his trial on such charges to support any of the convictions of crime for which he is held in custody by the respondent-warden. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). "* * * In a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the 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. Footnote reference omitted. * * *" Ibid., 443 U.S. at 324, 99 S.Ct. at 2791-2792 10.

"* * * No person shall be made to suffer the onus of a criminal conviction except upon sufficient proof — defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense. * * *" Ibid., 443 U.S. at 316, 99 S.Ct. at 2787 6. That, of course, assumes a properly-instructed jury. Ibid., 443 U.S. at 317, 99 S.Ct. at 2788.

"A federal court has a duty to assess the historical facts when it is called upon to apply a constitutional standard to a conviction obtained in a state court. * * *

"* * * The critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to `ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' * * * Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any as in orig. rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. * * * The criterion thus impinges upon `jury' discretion only to the extent necessary to guarantee the fundamental protection of due process of law. * * *" (Footnote references omitted.) Ibid., 443 U.S. at 318-319, 99 S.Ct. at 2788-27997.

Mr. Long was convicted of the crimes of (1) aggravated-rape, (2) burglary in the first-degree, (3) armed-robbery and (4) grand-larceny. The essential elements of those respective crimes are as follows:

1. The elements of rape in Tennessee "* * * are carnal knowledge, force, and commission of the act without the consent or against the will of the victim * * *," State v. Wilkins, 655 S.W.2d 914, 9166 (Tenn.1983), mod'f'd. on reh. (as to costs only) (1983), and aggravated-rape is an aggravated form of the offense of rape, id.

2. Burglary in the first-degree in Tennessee is the breaking and entering into a dwelling or mansion house, by night, with intent to commit a felony. State v. Bomar, 352 S.W.2d 5, 6, 209 Tenn. 166 (1961), reh. den. (1961).

3. "* * * Robbery is the felonious and forcible taking from the person of another, goods or money of any value, by violence or putting the person in fear. * * *" T.C.A. § 39-2-501(a). Thus, in Tennessee, "* * * robbery is committed either by means of violence or by fear. In many robberies both violence (force) and fear are present, but only one of these elements is necessary, either being sufficient to constitute the crime." James v. State, 385 S.W.2d 86, 88, 215 Tenn. 221 (1964), reh. den. (1964), cert. den., 381 U.S. 941, 85 S.Ct. 1777, 14 L.Ed.2d 705 (1965). Since the aforecited statute was amended so as to increase the punishment "if the robbery be accomplished by the use of a deadly weapon," as a procedural matter, "* * * simple robbery and armed robbery under the same statute are treated as being different degrees of the same crime. * *" State v. Winsett, 399 S.W.2d 741, 7433, 217 Tenn. 564 (1965).

4. "* * * The essential elements of larceny are trespass and feloniously taking and carrying away. There must be a trespass, a taking and an asportation. * * *" Wright v. State, 549 S.W.2d 682, 6843 (Tenn.1977).

The historical facts herein make plain that Mr. Wesley Bryant Martin was a person who burglarized the dwelling of Mr. and Mrs. Curte Stitt, robbed them, was an accessory to the rape of her by another, and during such trespass took and carried away their property, in Waverly, Tennessee between 11:30 o'clock, p.m., January 2, and approximately 1:00 o'clock, a.m., January 3, 1982. Other historical facts herein follow from the opinion of June 22, 1984 in State of Tennessee, appellee, v. Jerry Bates Long, appellant, no. 83-120-III in the Court of Criminal Appeals of Tennessee, permis. app. den. by S.Ct. of Tenn. (1984, with concurrence only in the result):

* * * Curte and Margaret Stitt, then age 69 and 61, respectively, were awakened at 11:30 p.m. on January 2 by two masked men. One of the men, later identified as Wesley Bryant Martin, displayed a pistol and ordered Mr. Stitt to give him all his money. He later ordered Curte to open a floor safe located in another bedroom. When Mr. Stitt was unable to open the safe without his glasses, he was "hog-tied" to a bed with electrical cord and the safe was wheeled from the house by those intruders.

Meanwhile, in another room, Margaret Stitt had been tied to the posts of

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