Ward v. Lockhart

• Decision Date: 09 March 1988
• Citation: 841 F.2d 844
• Parties: John Andrew WARD, Appellant, v. A.L. LOCKHART, Director, Arkansas Dept. of Correction, Appellee. 87-1341.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 844

841 F.2d 844

John Andrew WARD, Appellant, v. A.L. LOCKHART, Director, Arkansas Dept. of Correction, Appellee.

87-1341.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 12, 1987.

Decided March 9, 1988.

Nelwyn L. Davis, Little Rock, Ark., for appellant.

William F. Knight, Asst. Atty. Gen., Little Rock, Ark., for appellee.

Before McMILLIAN, Circuit Judge, ROSS, Senior Circuit Judge, and BOWMAN, Circuit Judge.

ROSS, Senior Circuit Judge.

John Andrew Ward, an Arkansas state prisoner serving a thirty-year sentence for burglary and theft of property, appeals the denial of his pro se petition for a writ of habeas corpus brought under 28 U.S.C. Sec. 2254. He argues on appeal that there was insufficient evidence to support his burglary conviction. Ward also asserts, for the first time, that he was denied effective assistance of counsel at the trial court level and that he was wrongfully sentenced as a habitual offender. We reverse and remand for further proceedings.

In 1982, Ward, age 21, was charged by information with burglary and theft of property in connection with the break-in of Wonder Junior High School in West Memphis, Arkansas. Musical instruments and shop tools, valued at approximately $2,500, were stolen from the school sometime between lock-up on Friday, February 5, 1982, and discovery of the theft on Monday, February 8, 1982. Three of the stolen musical instruments were found in Ward's possession on February 8th, as he attempted to sell them at a local pawn shop.

On the date of trial, without objection from Ward's attorney, the state prosecutor amended the information, charging Ward as a habitual offender under the Arkansas habitual offender statute, Ark.Stat.Ann. Sec. 41-1001 (Repl.1977), amended and recodified at Ark.Code Ann. Sec. 5-4-501 (1987). ¹ Following trial, the jury convicted Ward and sentenced him as a habitual offender to thirty years on the burglary charge and to ten years on the theft count. These terms were ordered to be served concurrently. Ward later appealed his burglary conviction on the grounds of insufficient evidence. The Arkansas Court of Appeals and Arkansas Supreme Court affirmed the conviction, however, in split decisions. Ward v. State, 8 Ark.App. 209, 649 S.W.2d 849 (vote of three-to-three), aff'd, 280 Ark. 353, 658 S.W.2d 379 (1983) (vote of five-to-two).

Ward later filed this pro se petition for habeas relief, claiming that the evidence produced at trial was insufficient to support his burglary conviction. The petition was reviewed by the United States magistrate. The magistrate found that Ward's possession of some of the stolen instruments, in addition to other circumstantial evidence, served to link Ward to the burglary. Viewing the evidence in the light most favorable to the prosecution, the magistrate concluded that Ward was not entitled to relief. Thereafter, the district court summarily adopted the magistrate's findings and dismissed the petition.

With the assistance of new counsel, Ward now appeals the dismissal of his petition, and raises for the first time issues of ineffective assistance of counsel at the trial court level and improper sentencing under the habitual offender statute.

Sufficiency of the Evidence

Ward argues that he is entitled to habeas relief because the evidence was insufficient to establish all the essential elements of burglary. He essentially relies upon In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970), and its progeny, in which the Supreme Court has held that due process requires the state to prove beyond a reasonable doubt every essential element of the crime charged. Under Arkansas law, "A person commits burglary if he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment." Ark.Stat.Ann. Sec. 41-2002(1) (Repl.1977), amended and recodified at Ark.Code Ann. Sec. 5-39-201 (1987). Both entry into a building and specific criminal intent are essential elements of the crime of burglary. Norton v. State, 271 Ark. 451, 609 S.W.2d 1, 3 (1980); Selph v. State, 264 Ark. 197, 570 S.W.2d 256, 259 (1978).

Specifically, Ward argues that the state failed to establish the essential element of entry. He argues that the prosecution failed to produce evidence, direct or otherwise, proving that he was inside or anywhere near the junior high school during the period in which the burglary occurred. He contends that the circumstantial evidence presented in this case supports nothing more than a finding of theft by receiving of stolen goods.

At the outset, we recognize that our review of the sufficiency of the evidence in this habeas proceeding is governed by the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In Jackson, the Supreme Court held that the relevant inquiry, for due process purposes, on review of the sufficiency of the evidence is:

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." Woodby v. INS, 385 U.S. , at 282 [87 S.Ct. 483, 486, 17 L.Ed.2d 362 (1966) ] (emphasis added). Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U.S. [356, 362, 92 S.Ct. 1620, 1624-25, 32 L.Ed.2d 152 (1972) ].

Id. at 318-19, 99 S.Ct. at 2788-89 (footnote omitted).

We are also cognizant that a state appellate court's conclusion that the evidence was sufficient to support a criminal conviction is entitled great deference by the federal courts. Id. at 323, 99 S.Ct. at 2791. Nonetheless, where a state conviction has been secured at the expense of a constitutional right, it is this court's obligation, pursuant to section 2254, to provide habeas corpus relief. Id.; Watson v. Nix, 551 F.Supp. 1, 8-9 (S.D.Iowa), aff'd, 696 F.2d 1000 (8th Cir.1982).

With these principles in mind, we consider the evidence produced at trial in this case. It is undisputed that Ward was found in possession of four musical instruments, three of which were determined to have been stolen from Wonder Junior High School, West Memphis, Arkansas, sometime between lock-up at 5:00 p.m. on Friday, February 5, 1982, and discovery of the theft on Monday morning, February 8, 1982. Ward was found in possession of these items on Monday morning, February 8th, as he attempted to sell them at a pawn shop in Memphis, Tennessee, just across the state border from West Memphis, Arkansas. A Memphis police officer who was assigned to the pawn shop squad and was called to the pawn shop in question, testified that he asked Ward for credentials or proof of ownership for the instruments. Ward told him that he belonged to a band which had disbanded and that the instruments belonged to him. Upon further questioning, Ward indicated that he had some credentials in his car. The officer then permitted him to retrieve them, but instead of returning with the credentials, Ward sped away in his car. Because the police officer was able to record a partial license plate number, the police later located the car, with its license plate removed, at a house where Ward was staying. During interrogation by West Memphis police, Ward denied having gone to the pawn shop in Memphis on February 8, 1982, claiming that he was at work that day.

At trial, the prosecution established through payroll records that Ward did not in fact report to work on February 8th. It also established through identification witnesses that Ward was the person who attempted to pawn the instruments in Memphis on February 8th. Beyond possession of the instruments, however, the prosecution did not produce any evidence connecting Ward to the scene of the burglary.

At trial, Ward admitted that he attempted to pawn the instruments in Memphis. He maintained, however, that he did not know the instruments were stolen. He claimed that a co-worker, by the name of "Gate," found the instruments in a bag in a dumpster at approximately 3:45 p.m. on Friday, February 5, 1982, while they were working for the West Memphis Sanitation Department. Ward testified that when Gate indicated he did not know how to sell the instruments, he (Ward) agreed to try to sell them for him. ²

Ward testified that he first tried to sell the instruments at Moore's Pawnshop in West Memphis, but was told the instruments were no good. He then drove to the pawn shop in Memphis, Tennessee. Ward stated that when a Memphis police detective began asking questions and told him to get proof of ownership, he got in his car and drove back to West Memphis.

Although there was no direct evidence connecting Ward to the scene of the burglary, the Arkansas Court of Appeals and the Supreme Court concluded that there was sufficient circumstantial evidence to support Ward's burglary conviction. The Supreme Court partially relied upon prior case law holding that possession of recently stolen property is prima facie evidence of guilt of both burglary and larceny, unless satisfactorily explained to a jury. "Possession * * *, not satisfactorily explained to a jury, is sufficient to support a verdict of guilt of both the burglary and larceny, even though there is no other evidence to show that the possessor had committed the crimes with felonious intent, either in person or by being present aiding, abetting and assisting another." Williams v. State, 258 Ark. 207, 523 S.W.2d 377, 379 (1975). See also Boone v. State, 264 Ark. 169, 568 S.W.2d 229, 230 (1978) (en banc). Aside from Ward's possession of the stolen instruments, the state appeals courts considered Ward's flight from the Memphis pawn shop, his contradictory statements to...