C. A. 6th Cir. Motion of respondent for leave to proceed informa pauperis granted. Certiorari denied.
Opinion of
Justice Stevensrespecting the denial of the petition for writ of certiorari.
Although I believe that Jackson v. Virginia, 443 U. S. 307, was decided incorrectly, it is not at all clear to me that the Court of Appeals in this case misapplied the dicta in the Court’s opinion in Jackson. The Court of Appeals did not purport to resolve any conflict in the evidence. Quite properly it attached no weight to the fact that the defendant did not testify, or to the fact that his mother may have testified falsely in support of an alibi defense. Neither of those facts is affirmative evidence of guilt.
Based on their duty to “review the evidence in the light most favorable to the prosecution,” 662 F. 2d 420, 423 (CA6 1981), a majority of the judges of the Court of Appeals concluded — as had the District Court and two of five justices of the Michigan Supreme Court — that there was insufficient evidence in the record that the respondent had intended to commit a crime. It is quite misleading to describe the slim record in this case as “a classic case of conflicting evidence,” *1029post, at 1031, or to imply that these conscientious federal judges chose “to sit as a jury and set aside the lawful jury’s findings of fact.” Post, at 1033. What the Court of Appeals did conclude was that evidence that the respondent, like several other boys, was present at the scene of the crime was legally insufficient to permit any rational trier of fact to find beyond a reasonable doubt that respondent was a participant in that crime. See 662 F. 2d, at 423. The essence of the Court of Appeals decision is explained in the following few paragraphs:
“The district court correctly concluded that the evidence introduced at petitioner’s trial only showed that on the morning of May 18 Fuller was present at the Turner residence along with Zerious Meadows and the other boys. The evidence showed that Fuller looked around while Meadows started the fires. But as Judge Feikens pointed out:
“‘This suggests, as Jefferey Coleman surmised, that the petitioner may have been acting as a lookout for Meadows. It is reasonable speculation. But could a rational jury find it to be proof beyond a reasonable doubt? No evidence was presented that the petitioner intended to burn the Turner home. The evidence that he knew that Zerious Meadows planned to do [sic] is simply too meager to support conviction.’ (emphasis in original)
“We note that there was no evidence at trial that the ‘Molotov cocktail’ which started the fire was prepared in advance, or, if it was, whether any of the boys other than Zerious Meadows knew that the ‘Molotov cocktail’ existed. There was of course no evidence that any of the boys, except Fuller [sic], participated in the manufacture of the ‘Molotov cocktail’.
“Moreover, there was no direct evidence that the youths approached the Turner house with intent to set the house on fire. Assuming Zerious Meadows had this *1030intent, however, there was no evidence that it was shared by petitioner or the other boys.
“The only direct evidence supporting the State’s contention that Fuller ‘stood guard and acted as a lookout’ for Zerious Meadows was Jefferey Coleman’s testimony that over a period of several minutes Fuller turned his head from side to side ‘more than twice.’ We agree with the district court that this is insufficient to establish beyond a reasonable doubt that Fuller took conscious action to aid Meadows’ commission of arson.” Id., at 424.
In my judgment it would not be an appropriate use of this Court’s scarce resources to grant certiorari and review every record in which a federal court makes a conscientious effort to apply the dictates of Jackson v. Virginia. For that reason, without reaching the question whether I would have decided this case the same way the Court of Appeals did had I been a member of that court, I think this Court wisely denies certiorari.