Newman v. Metrish

SUTTON, Circuit Judge,

dissenting.

There is another way to look at this case. The question at hand is whether, as AEDPA demands, the state courts’ affir-mance of this conviction amounted to “an unreasonable application” of “clearly established” United States Supreme Court precedent. 28 U.S.C. § 2254(d)(1). The clearly established federal rule asks not whether we “believe[ ] that the evidence at the trial established guilt,” but “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.” Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (internal quotation marks omitted). And in asking whether the state courts reasonably concluded that “any rational trier of fact” fairly could have convicted this defendant, we may rely on circumstantial evidence of guilt. See United States v. Arnold, 486 F.3d 177, 181-82 (6th Cir.2007) (en banc). Ample evidence showed that Newman was the killer.

Newman Owned One of the Murder Weapons. Start with the uncontradicted fact that Newman owned one of the two guns used to kill Chappelear. Five months before the murder, he purchased a Ruger 9-millimeter handgun, which conclusively matched at least one of the cartridges found at the crime scene and one of the bullets recovered from Chappelear’s body. No evidence introduced at trial showed, or even hinted, that Chappelear did not still own and possess the gun on the day of the murder. And the jury heard evidence that, when viewed in the light most favorable to the prosecution, showed that he still possessed the handgun when Chappelear was murdered. One of Newman’s girlfriends, Patricia Mueth, saw a “similar” handgun in his laundry hamper just a week or two before the killing. JA 562-63.

Evidence Connected the Murderer’s Gym Bag to Newman. The day after the murder, two hunters found an abandoned gym bag that contained all of the tools of the murder. The gym bag not only contained Newman’s 9-millimeter handgun, but it also contained other items used by the murderer and linked to Newman: (1) a ski mask with hairs similar to Newman’s and the hair on one of his two dogs, (2) a jean jacket besmirched with debris that visually and chemically matched a drywall compound recovered from the car Newman was using on the day police arrested him (Newman was a drywaller) and (3) twine matching twine found in Newman’s home.

Evidence Connected Newman to the Second Murder Weapon. Inside the gym bag was another link between Newman and the murder. The murderer, the evidence showed, shot Chappelear not just with Newman’s handgun but also with a 12-gauge shotgun, and the recovered bag contained a 12-gauge sawed-off shotgun. The murderer had cut the shotgun’s wooden stock and iron barrel and had wrapped the handle with duct tape. When the police investigated Newman’s home, they discovered duct tape, a hacksaw with wood in the blade’s teeth and a pile of wood and iron shavings on a workbench in his garage.

Newman Knew the Victim. Newman knew Chappelear and had visited his home at least once in the months before the murder.

Newman Had a Motive. Newman’s own words offer a plausible motive for the killing or at the least an explanation for his armed presence in Chappelear’s home. According to Mueth, Newman told her that he wanted to rob some drug dealers, *799told her that “he wanted guns, drugs, money, anything that he could use” and implored her “daily” for the names and addresses of potential targets. JA 568. Newman knew one such target, as it turns out. Having apparently bought drugs from Chappelear before, Newman knew that he was a drug dealer, and apparently so did Chappelear’s killer, as the hiding place where Chappelear stored drugs (his freezer) had been left open for some time when his body was found.

Newman’s Alibi Suggested Guilt. In claiming that Newman spent the night of the murder at the bar where his new girlfriend (Nancy Leat) worked, Newman’s defense team added fuel to the fire. Several witnesses present at the bar that evening testified that, even though they did not recall whether Newman was present that night, Leat asked them repeatedly to tell police that Newman was there. Cf. Apanovitch v. Houk, 466 F.3d 460, 488-89 (6th Cir.2006) (rejecting sufficiency challenge and reciting the evidence relied on by the state court that included the petitioner’s “variety of inconsistent stories about his whereabouts on the night of the murder”); Jones v. Wood, 207 F.3d 557, 563 (9th Cir.2000) (same).

In the face of this evidence, I am not sure what to say. Newman owned one of the murder weapons; the other murder weapon — a sawed-off 12-gauge shotgun— was connected to him based on the metal and wood shavings found in his house; both weapons were found in a gym bag that also contained hair, twine and drywall compound that matched items from him, his dog, his house and his car; he knew the victim; he had a motive for robbing the victim and for doing so in well-armed fashion (the victim was a drug dealer); and his blundering alibi was far more suggestive of guilt than innocence. The majority may be right that the evidence at trial “support[ed] a host of permissible inferences,” Maj. Op. at 796 — some indicative of guilt, some perhaps not. But this is the answer to the wrong question, as Jackson asks only whether the jury reasonably could have convicted, not whether the evidence supported no other possibility.

At any rate, I am hard-pressed to say what that other possibility is and why this fact pattern compelled a jury — or reviewing state court — to acquit, or in the future would compel a state or federal trial judge not even to submit the charge to a jury. What after all are the “permissible inferences” of innocence or, if you will, non-guilt? Is it problematic that Patricia Mueth testified only that Newman had a “similar” handgun in his laundry hamper a week or two before the killing? Once we view the evidence the way Jackson commands, Mueth’s testimony means one of two things: either that, just before the murder, Newman still possessed the Rug-er 9-millimeter murder weapon he bought five months before the slaying or that, just before the murder, he owned a second handgun that was not “significantly different” from the murder weapon, JA 563; cf. Arnold, 486 F.3d at 182. It is the rare defense attorney who would implore a jury to acquit on the ground that his client possessed just two handguns similar to the murder weapon immediately before the murder.

Is it problematic, as the district court concluded, that the prosecution’s expert testified that ballistics tests comparing the sawed-off shotgun with shells found at the scene were inconclusive? While the prosecution could not conclusively determine that the shotgun found in the gym bag (and elsewhere connected to Newman through the metal and wood shavings) fired the shells at the crime scene, no one needed that evidence to convict. Because the abandoned gym bag, found a day after *800the murder, already contained one of the verified murder weapons and a ski mask, it hardly required a leap of logic to deduce that the shotgun found in the same gym bag was the second murder weapon. Unless, that is, the murderer possessed not just two handguns but two shotguns as well — and simply chose to leave the unused shotgun in the gym bag with the used 9-millimeter Ruger while taking the used shotgun with him. Needless to say, this was not defense counsel’s theory of the case.

Is it problematic, as the majority notes, Maj. Op. at 797, that the police did not find Newman’s fingerprints at the crime scene? No. The murderer’s gym bag not only contained two weapons and a ski mask, but it also contained cotton gloves, which would readily explain why no one found Newman’s fingerprints at the crime scene.

Is it problematic that the prosecution relied on the existence of matching twine (found in the gym bag) and duct tape (found on the sawed-off shotgun)? Yes, if that had been the only evidence of guilt introduced by the prosecution. But it was not, and the relevance of this evidence was not in its isolation but in its cumulative effect with the other far-more-damning evidence.

While it is not the prosecution’s burden to disprove every reasonable hypothesis other than guilt, see Apanovitch, 466 F.3d at 488, I cannot identify a coherent theory of acquittal. Did someone borrow or steal Newman’s handgun, then place a similar handgun in his laundry hamper, then place a hacksaw and wood and metal shavings matching the other murder weapon in his house, then place matching human hair, dog’s hair and drywall compound in the murderer’s gym bag and then convince Newman’s girlfriend to tell others to support an alibi defense that was not true and easy to contradict? Or perhaps, less nefariously, no one did any of this, and it was all a remarkable string of coincidences. Whichever way you slice it, I see nothing unreasonable in the state court’s conclusion that a rational juror could have found Newman guilty beyond a reasonable doubt.

Our most analogous precedents place serious obstacles in front of reaching a contrary conclusion. In Matthews, we rejected a sufficiency challenge to a murder conviction where the evidence showed that the defendant knew one of the victims, was seen in the area before the killing and tried to pawn a unique ring belonging to another victim a week later. See 319 F.3d at 783-84, 788-89. We held that this evidence sufficed despite an eyewitness’s testimony that the person he saw stooped over one of the victims “as if to check him out” within moments of hearing the fatal gunshots was not the defendant. Id. at 783-84 (internal quotation marks omitted). In Apanovitch, we held that, even without AEDPA’s additional layer of deference, the prosecution met its burden of showing that the defendant committed aggravated murder in the course of attempting to rape the victim. See 466 F.3d at 488-89. Circumstantial evidence showed that the defendant, who had been hired by the victim to paint her house, was familiar with the victim’s home, “had made statements to others of his desire to have sexual relations with her,” spoke with her earlier on the day of the murder, had a scratch on his face after the murder that was “consistent with” being scratched by a fingernail, offered inconsistent stories instead of an “adequate” alibi and (along with roughly a third of the male population) had the same blood type as the perpetrator. Id. And although investigators found fingerprints at the scene, none of them belonged to the defendant, nor did any other physical evidence identify him as the culprit. Id. at 464.

*801The majority^ explanations for its decision do not overcome these obstacles. While the majority offers several reasons why a rational juror might have found the prosecution’s evidence unpersuasive, Maj. Op. at 796-97, it offers nothing to show why no rational juror could have found guilt and nothing to show why that conclusion is not just wrong but unreasonable. While the majority acknowledges that circumstantial evidence may suffice by itself to sustain a conviction, id. at 796, the only example it offers involved a defendant who repeatedly confessed to the murder. See Johnson v. Coyle, 200 F.3d 987, 991 (6th Cir.2000). Wfiiile the majority says that the prosecution offered nothing “placing Newman at the scene of the crime,” Maj. Op. at 795, I wonder why “placing Newman[’s gun] at the scene of the crime” and establishing that it was one of the murder weapons does not do the trick' — particularly in view of the other evidence linking Newman to the killer’s abandoned gym bag, his acquaintance with the victim and his desire to rob a drug dealer (like the victim).

The majority’s other citations simply reaffirm an age-old rule — “mere presence” at the scene of a crime does not establish guilt in a joint criminal enterprise, see, e.g., Fuller v. Anderson, 662 F.2d 420, 424 (6th Cir.1981) — but one with no conceivable application here. Cf. Parker v. Renico, 506 F.3d 444, 452 (6th Cir.2007) (holding that “evidence [that] suggested only that [the defendant] was in a car with men who together planned a murder and that guns were in the car” was insufficient to support felon-in-possession-of-a-firearm and felony-firearm convictions); Brown v. Palmer, 441 F.3d 347, 349, 352-53 (6th Cir.2006) (holding that evidence that the defendant was “present at the scene of the crime,” had “a brief relationship with the carjaeker” and left the scene after his own car was taken by others was insufficient to support a conviction for aiding and abetting a carjacking); Hopson v. Foltz, No. 86-1155, 1987 WL 37432, at *2 (6th Cir. May 20, 1987) (sustaining a sufficiency challenge to a conviction for aiding and abetting murder where the evidence established the defendant’s presence at the scene, that he “may have argued with the victim” the day before, “may have known that someone else intended to harm” the victim and may have picked up empty shell casings after the murder).

Jackson takes for granted that reasonable minds may differ as to what conclusions a given set of facts will bear. And AEDPA implores federal judges to respect the different reasonable inferences that state-court judges may uphold in reviewing sufficiency challenges to state-court convictions. Because this double dose of deference precludes us from second guessing the jury’s decision to convict on this record, I respectfully dissent.