1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

MICHAEL JEFFREY JOHNSON,

Petitioner-Appellant,

v.

RALPH COYLE, Warden,

Respondent-Appellee.

Appeal from the United St

for the Northern District o

No. 96-00771—David D. Dow

Argued: February 

Decided and Filed: Jan

Before: JONES, NELSON, and 

____________

COUNSE

ARGUED: Luz V. Lopez-Ortiz, OFFICE, OHIO PUBLIC DEFEColumbus, Ohio, for Appellant. MOF THE ATTORNEY GENERAOhio, for Appellee. ON BRIEF: LE. Prucha, PUBLIC DEFENDER’S DEFENDER COMMISSION, 
2 Johnson v. Coyle No. 97-4092

Appellant. Michael L. Collyer, OFFICE OF THEATTORNEY GENERAL OF OHIO, Cleveland, Ohio, forAppellee. 

_________________

OPINION

_________________

BOGGS, Circuit Judge. An Ohio state-court jury convicted

Michael Johnson of two counts of aggravated murder, each

with a capital specification, for the death of his sister, SusanBrunst. One capital specification alleged that Johnson killedBrunst with prior calculation and design; the other allegedthat he killed her in the course of a kidnapping or rape. Thejury convicted Johnson on both counts and recommended asentence of death. The state court of appeals affirmed theconviction and sentence. See State v. Johnson, 1992 WL328492 (Ohio App. Nov. 4, 1992) (unpublished).

Johnson appealed to the Ohio Supreme Court, which

reversed his conviction and remanded the case for a new trial.See State v. Johnson, 643 N.E. 2d 1098 (Ohio 1994). TheOhio Supreme Court found that (1) Johnson’s previousFlorida conviction for second-degree murder was not aconviction for a specific intent crime and, therefore, cannot bean aggravating circumstance upon which a capitalspecification can be grounded, id. at 1103–04; (2) thetestimony of three of the four witnesses who testified thatBrunst told them about Johnson’s previous attempt to rapeBrunst was inadmissible hearsay, and admitting it was anabuse of discretion, id. at 1104–05; (3) certain statements thatwere admitted into evidence constituted inadmissiblecharacter evidence, id. at 1105–06; and (4) a graphic andcrude passage in an otherwise admissible letter from Johnsonto Brunst was unfairly prejudicial, id. at 1106.

Johnson sought rehearing, arguing that the evidence

presented at trial was insufficient to support his convictionand that a retrial would thus violate his right against doublejeopardy. The Ohio Supreme Court denied rehearing.

No. 97-4092 

3The magistrate judge asserted that 

death penalty” because his state case waOhio Revised Code § 2929.06. J.A. at 2held that such a conclusion is not based oand, therefore, such a claim is not coproceeding. Id. at 71. Whether § 2929.0Johnson’s case is a matter for the Ohio cothat point. We note the issue to bring it retrial.specification at Johnson’s retrialproperly made by the Ohio courts, argue the issue in the forthcoming 

III

Sufficient evidence was presente

viewing all the evidence most favoto find beyond a reasonable doubBrunst, (2) Johnson killed Brunst design, (3) Johnson killed Brunst wto rape Brunst, and (4) assuming interpret the “restraint of liberty” testatute to be satisfied on the facts killed Brunst while kidnapping or There is no federal constitutional Johnson for murder or aggravated ma capital specification predicated oThe state may not prosecute a capJohnson’s 1984 Florida convictioJohnson’s habeas petition.
14 Johnson v. Coyle No. 97-4092

2To convict a defendant of both rape and kidnapping, Ohio law

requires the prosecution to prove “separate animus” for the two crimes,see Ohio Rev. Code Ann. § 2941.25, which has not been shown on theevidence in the record. To support the capital specification, it must bepossible for a rational jury to find beyond a reasonable doubt, on theevidence viewed most favorably for the prosecution, that Johnson rapedor kidnapped Brunst. There was no need for the state to prove separateanimus because (1) either is sufficient in itself and (2) Johnson was notconvicted of either rape or kidnapping.

No evidence was presented that Brunst was killed,

terrorized, or physically harmed anywhere other than at herapartment. There is no way to know if Brunst was killed inher apartment or removed alive and killed elsewhere.Although a rational jury might find the elements of murderand/or aggravated murder without evidence of the exactlocation of the killing, the same cannot be said forkidnapping, which requires that Brunst’s apartment be ruledout as the scene of the murder. There being no evidence forthe “purpose” element of kidnapping under either subsection(2) or (3) of Ohio Rev. Code Ann. § 2905.01(A), no rationaljury could find beyond reasonable doubt that Johnsoncommitted kidnapping under those subsections.

Therefore, to predicate a capital specification on

kidnapping, the state must prove beyond a reasonable doubtthat Johnson restrained Brunst’s liberty in order to engage insexual activity, under subsection (4) of of Ohio Rev. CodeAnn. § 2905.01(A). We held above that a rational jury couldfind beyond a reasonable doubt that Johnson raped Brunst. Atleast one Ohio court has held that the physical restraintincident to rape may constitute the restraint of liberty requiredfor kidnapping. See State v. Hatton, 1999 WL 253450, *23

(Ohio Ct. App. April 19, 1999) (unpublished) (holding thatthe defendant’s act of forcing himself on top of the victimconstituted a restraint of liberty sufficient to support akidnapping conviction).2 We are reluctant to consider this the

settled law of Ohio; however, that is a matter for the Ohiocourts. We hold that if the Ohio courts allow a conviction forkidnapping on these facts, there is no federal constitutionalbar preventing the state from arguing the kidnapping capital

No. 97-4092 Johnson filed a habeas corpus petitiagain arguing that he may not be judge recommended denial of the pconsidered Johnson’s objections district court issued a certificate of Johnson’s sufficiency-of-the-evidkidnapping and rape charges. We denial of Johnson’s petition.

I

A. The 1984 Florida Murder

In 1984, Johnson pled guilty to m

the death of a Florida woman, Dwere numerous similarities in the killings. At trial in the case before that the alleged pattern made it killed Brunst.

Johnson lived with Kathy Kelle

1980 to 1984. Hutchinson waJohnson “treated as a sister” aattracted to her. After a fight betwKeller moved in with HutchinHutchinson was responsible for his fought with Hutchinson, who formobile home. On December 29, 1Hutchinson’s body, nude from the bed. Her face had been struck repeHutchinson was very drunk when semen in her vagina, but the insufficient to determine the blood eventually confessed to the muemployed, but quit going to womurder. Johnson pled guilty to muand was imprisoned in Florida. Wletter to his sister, Susan Brunst, re10” and stating that he found her at643 N.E. 2d 1098, 1106 (Ohio 199
4 Johnson v. Coyle No. 97-4092

B. The Charged Conduct

Johnson was released from prison in 1989 and moved back

to Akron, Ohio, where he lived with his mother and youngerbrother, Thomas Johnson. Johnson’s sister, Susan Brunst,also lived in Akron. She was involved with a married man,Ron Cook.

Brunst told several friends that on the Sunday after

Thanksgiving, 1989, Johnson tried to rape her in herapartment. The friends testified that according to Brunst,Johnson told her he wanted to “lick her pussy,” held a knifeto her throat, pulled up her shirt, touched her breasts, andattempted to carry her to the bedroom, but that she was ableto talk him out of raping her. After this incident, Brunst toldher daughter, Cynthia, not to be alone with Johnson, andBrunst and Cook ceased socializing with him. Johnson lateradmitted to police that on that Sunday he heard Brunst talkingon the telephone to a woman he was interested in, telling herthat Johnson had been in prison and that he was kinky.Johnson said that he fought with Brunst and wanted to scareher, but denied that he tried to rape her.

Johnson was treated briefly at Fallsview Psychiatric

Hospital in February 1990. Johnson’s family apparentlyattempted to have him committed at that time, but the courtreleased him after three days. Johnson was angry at thefamily, particularly his brother and Brunst, for trying tocommit him, and told his brother that nobody would get awaywith “putting him away like that.” 

A woman who lived with Johnson’s aunt, Donna Gray,

testified that Johnson spent every weekend at Gray’s house inDiamond, Ohio, to drive his Jeep on trails there. On May 27,1990, Johnson took several relatives and friends with him andshowed them a trail off of Jones Road, behind the post office,that he had discovered the day before. Brunst’s body waseventually found near this trail. Johnson did not visit Graythe weekend that Brunst disappeared.

No. 97-4092 evidence. Four witnesses testified the Thanksgiving Sunday, 1989, Supreme Court ruled that the teswitnesses was erroneously-admitt643 N.E. 2d at 1104–05, but held within the “excited utterance” eexclusion, id. at 1104. Howevoffered by the State and admitted berroneously or not—would have bjury verdict, the Double Jeopardy retrial.’” United States v. Quinn, 91990) (quoting Lockhart v. NelsonAccordingly, for the purposes of thevidence from all four witnesses. nude, and the prosecution also Johnson wrote to Brunst from prisoto her.

Viewing all of the evidence pre

most favorable to the prosecution, found beyond a reasonable doubt during or immediately after raping Allowing the state to argue a capirape will not subject Johnson to do

In Ohio, kidnapping is defined 

restraint of another in order to to hor as a hostage or shield, to facilfelony, to terrorize or inflict serivictim or another, or to engage in victim’s will. There is no evideransom for Brunst or used her Therefore, no rational jury could committed kidnapping under subCode Ann. § 2905.01(A). Howevher from her apartment to facilitator harm her, or he may have restrain sexual relations against her will
12 Johnson v. Coyle No. 97-4092

the place where he is found or restrain him of his liberty,for any of the following purposes:

(1) To hold for ransom, or as a shield or hostage;(2) To facilitate the commission of any felony or flight

thereafter;

(3) To terrorize, or to inflict serious physical harm on

the victim or another;

(4) To engage in sexual activity, as defined in section

2907.01 of the Revised Code, with the victim against hiswill.

Ohio Rev. Code Ann. § 2905.01(A) (“Kidnapping”).

(A) “Sexual conduct” means vaginal intercourse

between a male and female; anal intercourse, fellatio, andcunnilingus between persons regardless of sex; and,without privilege to do so, the insertion, however slight,of any part of the body or any instrument, apparatus, orother object into the vaginal or anal cavity of another.Penetration, however slight, is sufficient to completevaginal or anal intercourse.

(B) “Sexual contact” means any touching of an

erogenous zone of another, including without limitationthe thigh, genitals, buttock, pubic region, or, if the personis a female, a breast, for the purpose of sexually arousingor gratifying either person.

(C) “Sexual activity” means sexual conduct or sexual

contact, or both.

Ohio Rev. Code Ann. § 2907.01 (in relevant part).

The prosecution presented evidence that Johnson had been

convicted of murdering Hutchinson in 1984, that her bodywas found with semen in the vagina, and that she would nothave consented to sexual relations with Johnson, see Johnson,

643 N.E. 2d at 1105. Johnson viewed both women as sisters,both had angered him, and in both cases he appears to havereacted with sexual violence toward the source of his angerand rejection. The similarity of the two cases suggests apattern, which a rational jury might have inferred from the

No. 97-4092 

On Friday, June 1, 1990, Bruns

apartment. Brunst told Cook that weekend drunk. She drank and friend that evening, then went to thwhere she had two more drinkapproximately 11:00 p.m. Johnsowith James Westberg about fifteen The barmaid told Johnson that he and that she was drunk. Later, Johnand, on his return, stated that he house, but that he was sure she would check on her the next mornitown, also tried to call Brunst sevmidnight, Brunst answered. Aftehung up, but immediately called agshe was alone, that she was going tto go. Cook called a third time “almno answer.

Johnson and Westberg left the Ea

Jeep at 1:00 a.m., when the club wanted to check on his sister, so hJohnson went into Brunst’s apartmcan. While Johnson was inside, Wand vomited for about ten minuoutside without his beer, and the tcomplex where they both lived. JBrunst was drunk and vomiting, nopen, and referred to her repeatedly he pulled up at their apartment builthe engine. Johnson was still in running when Westberg entered hmorning, another neighbor, who Johnson leaving the apartment comSaturday, June 2, Johnson did nocoworker testified that before thamissed work.

Cook went to Brunst’s apartmen

June 2, 1990, and found the door o
6 Johnson v. Coyle No. 97-4092

book and a small jewelry box outside the door, but there wasno sign of a struggle. Cook testified that some of the clotheshe saw Brunst wearing the day before were there, but that hefound only one of the pink socks that she had been wearing.Cook found a Budweiser can in the bedroom. Cook handledmany items, cleaned up the vomit around the toilet, andgenerally spoiled the apartment as a crime scene. An Akrondetective interviewed Cook at the apartment that evening.

Akron police interviewed Johnson several times after

Brunst was reported missing. On June 3, 1990, Johnsonadmitted that he had left his beer can at Brunst’s apartment.On June 5, Johnson spoke of Brunst in the past tense and toldpolice that although he was not guilty of the murder, he mightas well confess and get it over with because his family wastrying to slander him. He said that he had learned from hismother and his aunt Donna that Brunst’s body had beenmoved twice; that Brunst had never been in his Jeep; that hekilled Brunst for sex, drugs, and money; and that while hewas in prison in Florida he discussed committing the perfectcrime with Ted Bundy. On June 8, Johnson maintained eyecontact with the police officer who was questioning him untilhe was asked about Brunst. During June 1990, Johnson soldhis car, told his landlady that he was moving out, and refusedto help his family look for Brunst.

On June 27, 1990, a Portage County deputy sheriff found

what later proved to be Brunst’s nude body, badlydecomposed, near Jones Road in Diamond, Ohio. The deputycoroner concluded that “homicidal violence” was involved.Near the body, police found a pink sock matching the onefound at Brunst’s apartment, a pair of panties of the kindBrunst wore, and a piece of carpet torn from Johnson’s truck.In an attempt to identify the body, Portage County deputysheriffs interviewed Johnson, who happened to be the firstrelative they were able to contact. Johnson told the deputiesthat they might as well charge him because everyone thoughtthat he killed Brunst.

No. 97-4092 

The Ohio Supreme Court held th

an element of the Florida second-dconsequently, that Johnson’s “19second-degree murder was insuf2929.04(A)(5) aggravating circuJohnson, 643 N.E. 2d 1098, “Whereas an appellate court on hablaw questions de novo . . . , the fgenerally bound by state court intCaldwell v. Russell, 181 F.3d 731(citing Marshall v. Lonberger, 459 Estelle v. McGuire, 502 U.S. 62, 67we defer to the Ohio Supreme Couinsufficient evidence to prove thspecification.D. Sufficiency of the Evidenc

Capital Specification

Again, under Ohio law, “[i]mpo

for aggravated murder is precluded following is specified in the indindictment pursuant to section 294and proved beyond a reasonable d

. . . .(7) The offense was committe

committing, attempting to immediately after committing okidnapping, rape, aggravated arsor aggravated burglary, and eithprincipal offender in the commmurder or, if not the principal oaggravated murder with prior ca

Ohio Rev. Code Ann. § 2929.04(A

No person, by force, threat, or 

of a victim under the age oincompetent, by any means, sha
10 Johnson v. Coyle No. 97-4092

C. Sufficiency of the Evidence re: Specific Intent Capital

Specification

Under Ohio law, “[i]mposition of the death penalty for

aggravated murder is precluded unless one or more of thefollowing is specified in the indictment or count in theindictment pursuant to section 2941.14 of the Revised Codeand proved beyond a reasonable doubt:”

. . . .(5) Prior to the offense at bar, the offender was

convicted of an offense an essential element of whichwas the purposeful killing of or attempt to kill another, orthe offense at bar was part of a course of conductinvolving the purposeful killing of or attempt to kill twoor more persons by the offender.

Ohio Rev. Code Ann. § 2929.04(A) (in relevant part).

A person acts purposely when it is his specific

intention to cause a certain result, or, when the gist of theoffense is a prohibition against conduct of a certainnature, regardless of what the offender intends toaccomplish thereby, it is his specific intention to engagein conduct of that nature.

Ohio Rev. Code Ann. § 2901.22(A).

There is no evidence that Johnson killed or attempted to kill

more than one person in the case now before us. The statuteunder which he was previously convicted in Florida states:

The unlawful killing of a human being, when

perpetrated by any act imminently dangerous to anotherand evincing a depraved mind regardless of human life,although without any premeditated design to effect thedeath of any particular individual, is murder in thesecond degree . . . .

Fla. Stat. Ann. § 782.04(2) (in relevant part).

No. 97-4092 

On June 29, 1990, Akron dete

Johnson. The first thing Johnson sathe killer,” and he dared them to arrofficers several accounts of the muBrunst with a tire iron, then that hthat he shot her, referring to Brunand a “whore.” None of the accwere plausible in light of the lack injury to the recovered body, althosaid that he dumped the body bDiamond. On June 30, 1990, AkrJohnson. At his arraignment, Johnof it all and just wanted to plead g

II

Johnson argues that there is i

Brunst was a victim of homicide evidence that he killed Brunst, thethat the killing was a result of prithat there is insufficient evidence connected with rape; and that thethat Brunst’s death was connected wthe Ohio Supreme Court found revtrial, and even though that court seevidence as “weak” or as “not oshort of holding that the evidence wa conviction. See State v. Johnson1994).

When a defendant challenges 

evidence to support a conviction, viewing the evidence in the ligprosecution, any rational trier of essential elements of the crime beBagby v. Sowders, 894 F.2d 792banc); Jackson v. Virginia, 443 U
8 Johnson v. Coyle No. 97-4092

A. Sufficiency of the Evidence re: Murder

“No person shall purposely cause the death of another . . . .”

Ohio Rev. Code Ann. § 2903.02 (“Murder”). Viewing theevidence most favorably to the prosecution, there is no doubtthat a rational jury could have found that Johnson killedBrunst. Johnson is the last person known to have seen Brunstalive. He was angry with her just after he saw her. He sat inhis running vehicle rather than enter his apartment when hedrove home. A neighbor saw him leaving home at 4:30 a.m.the morning Brunst disappeared. Brunst’s nude body wasfound near an off-road trail Johnson had found days beforeBrunst disappeared. A piece of carpet from Johnson’s Jeepwas found near the body. Johnson, who had a perfect workattendance record, did not show up for work the morning afterBrunst disappeared, similar to his behavior after theHutchinson murder. Johnson did not visit his aunt inDiamond that weekend, as he had done every weekend for ayear. Johnson sold the vehicle that the piece of carpet wastaken from. Johnson told his landlady he was going to moveout and asked to have his security deposit returned. He beganto behave erratically and suspiciously in general. Heconfessed to the murder several times. He referred to hissister in the past tense before she was known to be dead. Hesustained eye contact with detectives until they asked aboutBrunst. Although circumstantial, this evidence is substantial.“Circumstantial evidence alone is sufficient to support aconviction, and ‘[i]t is not necessary for the evidence toexclude every reasonable hypothesis except that of guilt.’”United States v. Reed, 167 F.3d 984, 992 (6th Cir. 1999)(quoting United States v. Beddow, 957 F.2d 1330, 1334 (6thCir. 1992)). The evidence presented against Johnson iscertainly sufficient for a rational jury to find beyond areasonable doubt that he killed Brunst.B. Sufficiency of the Evidence re: Aggravated Murder

“No person shall purposely, and with prior calculation and

design, cause the death of another . . . .” Ohio Rev. CodeAnn. § 2903.01 (“Aggravated murder; specific intent to cause

No. 97-4092 

1Causing the death of another “whi

commit, or while fleeing immediately afcommit, kidnapping[ or] rape,” whicindictment, also constitutes aggravated m§ 2903.01(B). Because we hold that a prior calculation and design, which is sufor aggravated murder, we need not anallegations here. See infra at 11-15, for oas a capital specification.death”).1 We held above that a revidence in the record, find beyonJohnson killed Brunst. Unless thJohnson killed Brunst on his first waiting outside, it must necessarily it. While it is possible that he coumotives and, once he was there, kipassion, (1) this does not seem lipossible, a rational jury might find, that he returned later to kill her afta plan.

Johnson was mad at Brunst whe

apartment at approximately 1:30 injuries, and there was no sign apartment. These facts suggest thaevent” to ignite Johnson’s passioBrunst was alive when Johnsoapproximately 1:30 a.m., and he klikely with “prior calculation and 

On the evidence presented at tri

believe that Brunst was alive when and that he returned intending to evidence in the record, viewed prosecution, could lead a rationbeyond a reasonable doubt, Johnsocalculation and design.” There wconvict him of aggravated murder