Appeal from the United States District Court for the Eastern District of Wisconsin. No. 81-C-651 -- Robert W. Warren, Judge.
Cudahy, Eschbach, and Coffey, Circuit Judges.
The petitioner, Donald Lee Jentges, was convicted of violating Wis. Stat. § 943.02, arson of a building, and Wis. Stat. § 943.04, arson with the intent to defraud, and sentenced to concurrent terms of eight and two-and-one-half years of imprisonment. The Wisconsin Court of Appeals affirmed his conviction in an unpublished order and the Wisconsin Supreme Court denied the petitioner's request for review of that decision. Jentges filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 contending that: (1) the state presented insufficient evidence to permit the jury to find him guilty beyond a reasonable doubt; (2) that he was unconstitutionally deprived of a fair trial due to prosecutorial misconduct; and (3) that the Wisconsin Court of Appeals arbitrarily applied and ignored Wisconsin law in affirming his conviction, thereby denying him due process of law. The district court denied the petition. We affirm.
On February 14, 1976, a fire occurred in a building where the petitioner-appellant, Donald Jentges, operated a sporting goods business occupying portions of the first floor and basement, located at 700 West Wisconsin Avenue, Milwaukee, Wisconsin. Jentges reported the fire to the fire department, and when questioned by police detectives regarding his knowledge of the fire's origin, Jentges stated that while in the basement filling orders he was struck on the head with a bat, knocked to the ground and rendered unconscious, robbed and tied up. He further stated that after regaining consciousness he noticed that the basement contained smoke and that after freeing himself he ran out of the basement to report the fire. The fire marshall later concluded that the fire was an arson in nature and originated in the basement area with at least eight separate points of ignition and also that the fire was fueled by petroleum accelerants. At trial, the fire marshall testified that upon investigation he observed paper trails and other flammable items leading to metal containers of petroleum products. He concluded that the trails were used to transfer the fire from one point to another and that it probably would have taken one person an hour to plan and implement the arson scheme. The petitioner Jentges did not testify at his trial but the testimony he gave at the fire marshal's hearing was recevied as a prior statement. Jentges stipulated that he was cognizant of the fact that the destroyed merchandise was insured and that he filed a claim based on the loss. The state did not offer direct evidence that the petitioner set the fire and instead primarily relied upon the testimony of the investigating fire and police authorities and a State Crime Laboratory forensic chemist, all of whose testimony helped to establish the untruthfulness and implausibility of the petitioner's statements concerning the events leading to the fire.
SUFFICIENCY OF THE EVIDENCE.
Our review of petitioner's claim that there was insufficient evidence to support his conviction is controlled by Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). Jackson held that when a reviewing court must determine whether there is sufficient evidence to support a conviction,
"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. . . . This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts."
Id. at 319 (citation omitted, emphasis in original). See also Greider v. Duckworth, 701 F.2d 1228, 1231-32 (7th Cir. 1983); Davis v. Franzen, 671 F.2d 1056, 1057 (7th Cir. 1982). This "reasonable doubt test requires the reviewing court to consider the evidence according to the prosecution's inferences." United States v. Moya, 721 F.2d 606, 610 (7th Cir. 1983).
At trial the state introduced substantial evidence showing inconsistencies in the statements Jentges gave when reporting the fire, responding to questions from fire and police investigators and at the fire marshal's hearing. The clear and logical inference from these conflicting statements was that his version of the events leading up to the fire was incredible, and thus his story was nothing more than a fabrication to hide his guilt. The inconsistencies in his statements included the number of robbers, the number of times he was allegedly struck with a bat causing him to lose consciousness and at what point during the attack he allegedly lost consciousness. Not only were his statements shown to be contradictory through the testimony of the police and fire authorities but the physical evidence, medical evidence and expert testimony were contrary to his version of the events and bolstered the inference that Jentges' story was nothing but a fabrication.
The fire marshal testified that due to the high intensity of the fire and the smoke produced, he did not believe that it was possible that the petitioner could have traveled the 150 feet from the point where he allegedly regained consciousness to the basement exit without suffering disabling smoke inhalation and burns. The forensic chemist testified that the laboratory examination of the petitioner's clothing failed to establish that his clothing had been in contact with the type of oily smoke generated by a fire of this nature much less in contact with the dirty boiler room floor where the petitioner stated he laid before regaining consciousness. Nor did the laboratory examination support Jentges' statement to police that his assailant poured liquid shoe polish over Jentges' back after he was tied up. No shoe polish liquid residue or stains were found on his clothing. The petitioner's physical appearance immediately after the fire, was shown to be unlike that of a person who had been exposed to and allegedly inhaled smoke as the petitioner was not coughing nor were his eyes watering. The medical evidence showed that the minor head injury he somehow suffered and was treated for was at odds with his claim that he had been violently struck numerous times with a bat. Additionally, while Jentges estimated he lost consciousness for about twenty minutes, it is interesting to note that almost an hour passed between the time of his alleged attack and when he reported the fire, leaving about forty minutes unaccounted for. Our review of the record leads us to conclude that there was more than sufficient evidence for the trier of fact to conclude that the state proved each and every element of the crimes charged beyond a reasonable doubt.
The petitioner also contends that his conviction cannot be based upon circumstantial evidence since the state was unable to prove a motive for the arson. Wisconsin case law does not support this novel theory of the law, in fact any criminal conviction in Wisconsin including arson can be based in whole or in part on circumstantial evidence. State v. Koller, 87 Wis. 2d 253, 266, 274 N.W.2d 651 (1979). Wisconsin Jury Instruction -- Criminal, Number 170, which was read to the jury in this case, reads in part that "circumstantial evidence may be stronger and more convincing than direct evidence." See also Peters v. State, 70 Wis. 2d 22, 33, 233 N.W.2d 420 (1975). Our court has recently reiterated this principle in United States v. Bradshaw, 719 F.2d 907 (7th Cir. 1983), stating that "'circumstantial evidence is as pertinent as direct evidence to the establishment of guilt or innocence.'" Id. at 921 (quoting United States v. Cogwell, 486 F.2d 823, 828 (7th Cir. 1973), cert. denied, 416 U.S. 959, 40 L. Ed. 2d 310, 94 S. Ct. 1975 (1974)). The judge also cautioned the jury in this ...