Strickland v. Marshall

• Decision Date: 11 April 1986
• Docket Number: No. C-1-83-321.,C-1-83-321.
• Citation: 632 F. Supp. 590
• Parties: Earl Lewis STRICKLAND, Petitioner, v. Ronald C. MARSHALL, Respondent.
• Court: U.S. District Court — Southern District of Ohio

632 F. Supp. 590

Earl Lewis STRICKLAND, Petitioner, v. Ronald C. MARSHALL, Respondent.

No. C-1-83-321.

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

April 11, 1986.

COPYRIGHT MATERIAL OMITTED

Earl Lewis Strickland, pro se.

Karen A. Kolmacic, Asst. Atty. Gen., Columbus, Ohio, for respondent.

OPINION AND ORDER DISMISSING PETITION

TIMOTHY S. HOGAN, Senior District Judge:

This matter is before the Court on Earl L. Strickland's petition for writ of habeas corpus and memorandum in support (docs. 2 and 5), respondent's return of the writ (doc. 6), and Mr. Strickland's traverse to the return (doc. 8). The transcript of Mr. Strickland's state court trial is also a part of the record and file in this case (doc. 7).

Petitioner claims the writ should issue for the following reasons, and we quote him:

1. The guilty verdict is not supported by legally sufficient evidence and the prosecution did not prove the elements of murder beyond a reasonable doubt. The prosecution did not prove the element of purpose/intent as defined in the offense of murder; the prosecution did not attempt to rebut, in any manner, defense evidence in which demonstrated petitioner was too intoxicated and drugged to have formed the element of intent.

2. Petitioner was denied the effective assistance of counsel as required by the Sixth Amendment under the facts of this particular case. Defense counsel failed to motion the trial court, pretrial, to suppress statements by petitioner that was incompatible with the defense advanced at trial, and where the statements were inadmissible under constitutional law. Defense counsel failed to point out to the trial judge that the state had failed to rebut the affirmative expert evidence introduced by the defense, so the elements of murder could not be found as presented by the evidence in this case. And these two failures denied petitioner of a defense that was factually substantial in nature. Then, defense counsel failed to point out to the trial court that since he was a taker of the same drug — prescribed, as petitioner was taking, that the trial judge should disqualify himself on any finding of same relative to alcohol and the facts of this case.

Respondent counters that Mr. Strickland is not entitled to the relief requested, as both claims are without merit.

No evidentiary hearing is required in this case because petitioner has not alleged any facts outside the record which, if proved true, would entitle him to the relief sought. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). The arguments made by petitioner are legal ones, and the facts necessary to resolve these issues appear in the files and records already before the Court. Further, as petitioner has elucidated his legal arguments quite clearly, the interests of justice do not require the Court to exercise its discretion to appoint counsel to assist petitioner. See, 18 U.S.C. § 3006A(g); Rule 8(c), 28 U.S.C. fol. § 2254, advisory committee note.

Summary of Facts and Proceedings

Earl Strickland was indicted by the September 1978 term of the Montgomery County, Ohio grand jury on one count of murder following the stabbing death of Flora Jean Swindle, Mr. Strickland's former common-law wife, on August 25, 1978. Mr. Strickland pled not guilty to the charge and waived his right to a jury trial. Trial to the Court was held on January 22 and 23, 1979, and the trial court pronounced its guilty verdict on January 24. Following is a summary of the evidence on which the verdict was based.

Rosa McLemore, in whose home the victim was killed, testified that she had been with Ms. Swindle all day on August 25. Around 9:00 in the evening, Ms. McLemore went upstairs to bathe and dress, leaving Ms. Swindle sitting in the livingroom of the McLemore house. Ms. McLemore's son, Jessie, came into the house and upstairs to tell his mother that Ms. Swindle was still downstairs. Later, the son called up to his mother from outside the house to tell her that Earl Strickland was entering the house carrying a gun. Ms. McLemore called the operator to connect her with the police and informed the police that a man was killing a lady at her address. She heard no gunshots, however. Ms. Swindle called upstairs for Ms. McLemore to bring $200.00 downstairs, and Ms. McLemore replied that she had no money. She then heard the victim cry out the name "Earl, Earl." She also heard Earl's voice asking about his "damn money." Her son came upstairs again to tell her that "Earl done killed Jean." When Ms. McLemore came downstairs, she found the victim lying dead on her floor and her furniture spattered with blood. Later that evening, at the police station, Ms. McLemore heard Earl Strickland's voice in the room next to her: "He said that he killed the bitch and he would intend to kill her. If he hadn't, somebody else would." Ms. McLemore also testified that, a few weeks before the killing, Earl Strickland had come to her house and created such a disturbance that Flora Jean Swindle called the police, who came and took Mr. Strickland away. On cross examination, Ms. McLemore testified that Mr. Strickland had threatened to kill Ms. Swindle during the August 3d incident and that she smelled alcohol on him that day.

Jessie McLemore testified that when he left his mother's house after telling her that Ms. Swindle was sleeping downstairs, he went across the street to Bea's house and was standing on the sidewalk talking to Bea when he saw Earl Strickland going into his mother's house. Jessie went back across the street and looked in the window; he saw Mr. Strickland go to the chair in which the victim was sitting and hold a knife toward her head. Jessie heard Mr. Strickland say "I'll kill her, I'll kill you." He then went next door to tell the neighbor to call the police. He went back to the house, stood on the porch, and saw Mr. Strickland kneeling on the floor straddling the prone Ms. Swindle, stabbing her with a knife approximately eight inches long. Jessie ran next door again to tell the neighbor to call the police again, and as he was coming out of the neighbor's house, he saw Mr. Strickland pass by, going down the street with the knife in his hand. Mr. Strickland was walking straight, leaning a little. Jessie went back in the house and saw the victim lying dead on the floor with blood all around. He, too, was taken to the police station later that evening, where he overheard Mr. Strickland say he meant to kill the victim. On cross examination, Jessie indicated that he thought the lean to Mr. Strickland's walk indicated that the latter had had something to drink but that "he wasn't that ... He ain't had that many drinks." Jessie also testified that there were perhaps a dozen people in front of his house that evening when Earl Strickland arrived, because the ice cream truck was on the street.

A neighbor named Kim Caldwell testified that when she heard that something was going on inside Rosa McLemore's house the evening of August 25th, she stood on the front porch and looked in the front door to see Earl Strickland stabbing Flora Jean Swindle. She ran after seeing him stab the victim once and saw Mr. Strickland leave the house carrying a knife: "He was just walking normal, you know. The knife was down by his side. He was just walking." Later that evening, at the police station, she heard Mr. Strickland say that if he didn't get her, somebody else would.

The final eyewitness, Annette Henderson, had parked her car in the neighborhood and was walking to pick up her baby-sitter when Earl Strickland approached and asked if he could come with her. Mr. Strickland appeared normal to the witness, and did not appear to be drunk. He walked away down the street. Ms. Henderson saw Mr. Strickland again, about ten minutes later, on the sidewalk in front of Bea's house. He came up and asked where Jean was. Then he went across the street and into Rosa McLemore's house. Mrs. Henderson went across the street and up onto the porch. When she looked inside she saw the knife go up and down, up and down, and then when the man got up, she ran back across the street. Mr. Strickland left the house and walked down the street with the knife in his right hand. She saw nothing unusual about Mr. Strickland's walk. At the police station, she overheard Mr. Strickland: "He said that he is glad that bitch is dead and that if he didn't kill her somebody else would."

The remainder of the prosecution's witnesses were police officers and the coroner. First to testify was Officer Thomas Bennett who identified pictures of the victim and the McLemore house and who interviewed witnesses and took them to the station. He testified that the room in which the stabbing took place was "pretty well messed up, almost like a fight had occurred in there."

John Weeks was the officer who apprehended Mr. Strickland following the stabbing of Flora Jean Swindle. He saw Mr. Strickland walking along the street at a slow, deliberate pace, carrying nothing, but wearing trousers with a large red stain on the front. Officer Weeks told Mr. Strickland why he was being arrested, patted him down, handcuffed him, placed him into the patrol car, and read him his rights. Upon being read his rights, Mr. Strickland stated that he did not want to hear them because he already knew them. The officer observed a cut on Mr. Strickland's right thumb. Once inside the patrol car, it was "quite apparent" to the officer that Mr. Strickland smelled of alcohol.

Officer George Hammann was the officer who had arrested Mr. Strickland on August 3 at Rosa McLemore's house. In his cruiser, the officer reported Mr. Strickland said "you're lucky that you arrested me at this time. He said, I'm going to kill her." On cross examination, the officer testified that Mr. Strickland was not "totally intoxicated" on August 3, although he had an odor of alcohol on his breath and was in a very angry mood.

Officer Ronald Brandenburg was assigned to the evidence crew on ...