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Richard DILLON
Classification: Murderer
Characteristics:
Robbery
Number of victims: 2
Date of murders:
March 8,
1981
Date of arrest:
4 days after
Date of birth:
December 12,
1962
Victims profile: William Hilborn, 72,
and Mary
Hilborn, 65
Method of murder: Stabbing
with knife
Location: Petersburg, Pike County, Indiana, USA
Status: Sentenced to death on August 21, 1981. Resentenced to concurrent 60 year terms of imprisonment on each count
on August 29, 1986
RICHARD DILLON #
11
OFF DEATH ROW SINCE 12-28-84
DOB: 12-12-1962
DOC#: 13146 White Male
Knox County Superior Court
Judge Edward C. Theobald
Venued from Pike County
Prosecutor: Jerry J. McGaughey, Mark
Sullivan, Dale P. Webster
Defense: Jimmy E. Fulcher
Date of Murder: March 8, 1981
Victim(s): William Hilborn W/M/72; Mary
Hilborn W/F/65 (No relationship to Dillon)
Method of Murder: stabbing with knife
Summary:
William and Mary
Hilborn were found stabbed to death in their home in Petersburg.
Dillon was identified by a Deputy Sheriff as near
the property at the time of the murders. When questioned, Dillon
said he was not in Petersburg, but was in Princeton at the home of a
friend, Jay R. Thompson.
The murder weapon, a knife, was later found at
Thompson's car. Dillon later gave a complete confession admitting
that he and Thompson had committed the Burglary and that he (Dillon)
stabbed both victims. They gained entry by requesting to use the
telephone.
Dillon was armed with a buck knife and stabbed
both Hilborns. Both men then forced Mrs. Hilborn, by holding a knife
under her chin, to obtain money for them. Dillon then stabbed her
again, and when she fell to the floor, cut her throat. Thompson then
stabbed both victims with a folding knife to insure that both were
dead.
At Thompson's trial, a pathologist testified that
the fatal wound to both Hilborns was made with a knife similar to
the folding knife.
Conviction: Felony-Murder (2 counts),
Burglary (A Felony), Conspiracy to Commit Burglary (A Felony)
Mitigating Circumstances: no significant
history of prior criminal conduct, intoxication, 18 years old at
time of murder
On remand: On 08-29-86 Dillon pled guilty
to two counts of murder after venue to Clark County, and was
sentenced to concurrent 60 year terms of imprisonment on each count.
ClarkProsecutor.org
751 F.2d 895
Richard DILLON,
Petitioner-Appellant, v.
Jack DUCKWORTH, Warden, Indiana State Prison, Respondent-Appellee.
United States Court of Appeals for
the Seventh Circuit
January 4, 1985
Before CUMMINGS, Chief Judge, COFFEY, Circuit Judge,
and HAYNSWORTH, Senior Circuit Judge.*
CUMMINGS, Chief Judge.
Defendant Richard Dillon appeals from
the district court's denial of his petition for writ of habeas corpus.
While we affirm that court's refusal to hold an evidentiary hearing
and its finding that the state trial judge's imposition of the death
sentence complied with Indiana law, we disagree with the court's
conclusion that Dillon received effective assistance of counsel under
the Sixth Amendment.1
Accordingly the writ of habeas corpus must issue if there is no
retrial.
I
* Dillon was convicted on July 28, 1981, by the
Knox County, Indiana, Superior Court of two counts of felony murder
and one count each of burglary and conspiracy. These charges stemmed
from the March 8, 1981, stabbing murder of William and Mary Hilborn
during a burglary. The eighteen-year-old defendant was arrested four
days later after making a lengthy written confession to Indiana state
police officers, a confession that was admitted into evidence at his
trial. He had no prior criminal record.
Lawyer Jimmy Fulcher represented Dillon at trial.
Although Fulcher had some civil and criminal experience, that
experience was limited. He had been admitted to the bar for only two
and one-half years, and his only significant courtroom experience was
a "major felony trial" (Tr. Vol. I at 13) that he had just completed.
Fulcher's representation of Dillon occurred during a time of personal
crisis for him. In February 1981 his wife of eleven years filed for
divorce, a divorce that became final against his wishes on April 15,
1981 (Tr. Vol. I at 12). On April 18, 1981, his brother had a
motorcycle accident that left him paralyzed (id. at 6; Tr. Vol. III at
633). Trial was scheduled to begin on July 13, 1981. On July 5,
Fulcher's father, who had been quite ill for some time, underwent
emergency heart surgery and was in the hospital in very serious
condition (Tr. Vol. I at 6). This final event prompted Fulcher to file
an affidavit on July 7, attesting to his own incompetence and
requesting a continuance from the July 13 trial date so that he could
prepare adequately. The trial judge denied his request, although after
the jury was selected he did delay trial until July 20 to afford
Fulcher an extra weekend in which to prepare.
Dillon's trial concluded at the end of July. The
trial judge, following the recommendation of the jury, sentenced
Dillon to death on August 21, 1981. After exhausting all state
remedies, Dillon filed a petition for writ of habeas corpus in federal
district court. He requested the court to hold an evidentiary hearing
on allegedly new evidence relating to his claim of ineffective
assistance of counsel, a request that the district court denied.
Petitioner argued (1) that he had been deprived of assistance of
counsel in violation of the Sixth Amendment, (2) that he was convicted
in part on evidence obtained during an illegal detention in violation
of his Fourth Amendment rights, (3) that the Indiana death penalty
statute was unconstitutional, and (4) that the trial court did not
find beyond a reasonable doubt that elements to support the imposition
of the death sentence were present. The district court denied each of
these contentions. Dillon appeals the denial of the evidentiary
hearing and his claims relating to assistance of counsel and the trial
court's imposition of the death penalty.
II
The Sixth Amendment guarantees
criminal defendants the "Assistance of Counsel," which numerous
Supreme Court cases have defined as the effective assistance of
counsel. See, e.g., United States v. Cronic, --- U.S. ----, 104 S.Ct.
2039, 2044, 80 L.Ed.2d 657 (1984). Last Term, two Supreme Court cases,
Cronic and Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984), clarified the relevant standards in evaluating
allegations of ineffective assistance of counsel.2
Strickland governs the instant situation. In order to prevail under
Strickland, a defendant must prove both that counsel's performance was
so deficient that it fell below standards of reasonable professional
performance and that this deficient performance prejudiced the defense
sufficiently to deprive the defendant of a fair trial. A court's
scrutiny of counsel's performance is highly deferential. Strickland,
--- U.S. at ----, 104 S.Ct. at 2064-2065. In analyzing the counsel
provided by Jimmy Fulcher, "the question is whether there is a
reasonable probability that, absent the errors, the sentencer * * *
would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death." Id., 104 S.Ct. at 2069.
Nevertheless, the principles stated in Strickland.
do not establish mechanical rules. Although those
principles should guide the process of decision, the ultimate focus of
inquiry must be on the fundamental fairness of the proceeding whose
result is being challenged. In every case the court should be
concerned with whether, despite the strong presumption of reliability,
the result of the particular proceeding is unreliable because of a
breakdown in the adversarial process that our system counts on to
produce just results.
Id.
The affidavit Fulcher filed alleging
his own incompetence, a claim he reaffirmed in a second affidavit
filed after the trial (Tr. Vol. I at 6-7), renders Dillon's allegation
of ineffective assistance highly unusual. That an inexperienced
attorney was defending Dillon, a young defendant with no prior
criminal record, on very serious charges augments the significance of
this affidavit. These circumstances cause us to examine Dillon's
petition with care. Although Dillon was only eighteen years old and
was facing trial on charges for which the State of Indiana had
recommended the death penalty, the trial judge seemed more concerned
with the disruption in his schedule caused by the defense's successful
change of venue motion and the inconvenience a continuance would cause
than in seriously evaluating the allegations of trial incompetence
placed before him (Tr. Vol. III 640-641). We recognize the trial
court's frustration with Fulcher's request. We also recognize that the
scheduling problems trial courts face mandate that they be granted "broad
discretion * * * on matters of continuances; only an unreasoning and
arbitrary 'insistence upon expeditiousness in the face of a
justifiable request for delay' violates the right to the assistance of
counsel." Morris v. Slappy, 461 U.S. 1, 12-13, 103 S.Ct. 1610, 1616,
75 L.Ed.2d 610 (1983) (quoting Ungar v. Sarafite, 376 U.S. 575, 589,
84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964)). Morris, however, was a
completely different case. In that case the defendant insisted that
his attorney was unprepared despite counsel's affirmative statements
that he was prepared, that he had familiarized himself with the
evidence and record to date, and that he had met with the defendant
several times. In the case before us, the attorney himself believed
that he was incompetent to try the case on grounds that amply
justified his request for delay. Nonetheless, the trial judge
arbitrarily denied Fulcher's request and so abrogated Dillon's right
to effective assistance of counsel.3
We would not reach this conclusion if Fulcher's
actions were a subterfuge to gain advantage for his client. But his
statements could not have served any trial strategy. The State
suggests that Fulcher wanted to force the State into a plea-bargaining
situation, because the State needed to try Dillon before it tried his
alleged accomplice in order to have Dillon's testimony at the latter's
trial. Nowhere does the State demonstrate that its case against the
accomplice was so weak that it in fact would have been forced to plea
bargain. In fact, much of the physical evidence introduced against
Dillon was found in the accomplice's possession or was otherwise
connected primarily to him rather than to Dillon (Tr. Vol. VIII at
2005, 2007, 2021, 2032, 2036, 2038). No other evidence to support the
State's contention appears in the record, and we reject the argument
as implausible. Even if the State would have been forced to plea
bargain had the continuance been granted, the belief that an attorney
in open court would state that he was incompetent and that he would "take
whatever disciplinary action is coming to me for being incompetent,
and for doing this to the court and to the State and to the witnesses"
(Tr. Vol. III at 638) solely to benefit Dillon by plea bargaining
stretches credulity too far.
The trial court was correct in asserting that "it's
the court's duty to determine * * * whether an attorney is competent
or not to represent a defendant" (id. at 640). The State argues that
the number of days between the catastrophic events in Fulcher's life
and Dillon's trial minimized the drain inevitably placed on him as he
tried to prepare for Dillon's trial. Specifically the State contends
that because the divorce was final eighty-nine days before trial, and
because Fulcher's father did not die until forty-seven days after
trial began (Govt.Br. at 4), those events did not impact on Fulcher's
trial preparation. Such reasoning is unduly narrow. Certainly the
emotional reverberations the events must have had on Fulcher's
concentration and mental and legal acuity merited more than the
cursory attention the trial court gave them. Perhaps a divorce eighty-nine
days before trial alone would not have affected Fulcher sufficiently
for the trial court to consider his claim with care. Perhaps another
attorney might not have been so affected. What is crucial is the
cumulative effect on Fulcher of the three events--his divorce April
15, 1981, his brother's accident three days later and his father's
surgery on July 5, 1981. That the cumulative effect is significant is
readily apparent from Fulcher's request on July 7th--only when his
father became critically ill, the proverbial last straw, did Fulcher
realize how seriously this series of events had compromised his
preparation.4
Add to the effect such events would have on any lawyer, regardless how
experienced, the fact that Fulcher had been in practice only two and a
half years, that this was his first murder case, and that evidently
his only prior criminal experience was one "major felony case," and
the cavalier attitude of the trial court is even more troubling.5
Errors by Fulcher that prejudiced Dillon's trial
support Dillon's Sixth Amendment allegation. Contrary to the view of
the district court, such errors do exist. The State of Indiana itself
identified several such errors in its argument opposing Fulcher's
request for a continuance. The State, in illustrating the great amount
of preparation it had undergone for this trial that it did not want to
see suspended for several months in case the continuance was granted,
stated that "there's an immense amount of evidence in this case to go
through" (Tr. Vol. III at 634). The State also indicated that Fulcher
had been very dilatory about giving Dillon's defenses to the State,
that in fact the alibi defense he submitted was barred for not
complying with statutory time requirements, and that Fulcher had
failed to pursue avenues of investigation that he knew were available
(Tr. Vol. III at 634-636).6
Fulcher also conceded that he had spent less than four hours with
Dillon from the time of arrest to trial (Tr. Vol. I at 6). The State
counters this admission with evidence showing that Fulcher visited
Dillon 10-15 times in the first jail in which he was imprisoned, and
may have visited Dillon in the second jail in which he was confined (id.
at 12). Even so, the frequency with which Fulcher visited Dillon in
jail is not probative of the length of his visits there. Accepting
Fulcher's statements regarding the amount of time he had taken to
prepare, it is questionable whether he could have done so adequately.
The State's own catalogue of Fulcher's deficiencies supports this
conclusion (Tr. Vol. III at 634-636). The State may have been right in
asserting that granting a continuance would have been "grossly unfair"
to the State by possibly forcing it to plea bargain with Dillon, but
this argument is irrelevant in the instant situation. Fairness to
Dillon, not to the State, is the crux.
Fulcher's lack of preparation evidenced itself at
Dillon's trial. To begin, Dillon attempted at Fulcher's recommendation
to plead guilty to being an accomplice to the murder, a plea contrary
to the facts already admitted into evidence and properly rejected by
the trial judge. The prejudice of this defective plea is not
measurable, but it surely affected the trial judge's assessment of
aggravating and mitigating circumstances.7
The Supreme Court reiterated in United States v. Cronic, --- U.S. at
----, 104 S.Ct. at 2045 n. 19, that "[o]f course, the Sixth Amendment
does not require that counsel do what is impossible or unethical. If
there is no bona fide defense to the charge, counsel cannot create one
and may disserve the interests of his client by attempting a useless
charade." No possible trial strategy could underlie this inappropriate
accomplice plea, so that it must have resulted from Fulcher's
incompetence.
Even more inexplicably, Fulcher never attempted to
plea bargain with the State. Certainly failure to initiate plea-bargaining
negotiations is not always error, but in a case in which the State
would prefer the defendant's testimony at an accomplice's trial,
defense counsel's failure to explore the possibility is inexplicable.
Whether or not the State would have regarded the attempt favorably is
irrelevant. What is relevant is the strong suggestion of unfamiliarity
with the case and lack of preparation that the failure to try to plea
bargain shows.
Fulcher's conduct at Dillon's death penalty hearing
confirms this suggestion of lack of preparation. The only evidence
that Fulcher offered, in addition to that already introduced at trial,
was an extremely limited direct examination of the defendant. Fulcher
asked Dillon his age, whether he had ever before been in trouble with
the law, whether he had intended to kill anyone, and nothing else (Tr.
Vol. VIII at 2076-2077). Fulcher offered no character witnesses,
either at the trial or at the subsequent death penalty hearing. Surely
doing so would be standard practice for an attorney defending an
eighteen-year-old with no prior criminal record. Fulcher's almost
nonexistent effort to avoid the death penalty once Dillon's guilt was
established is incomprehensible and was extremely prejudicial to
Dillon.
If Fulcher's omissions and mistakes were "within the
wide range of reasonable professional assistance," Strickland v.
Washington, --- U.S. at ----, 104 S.Ct. at 2066, given the heavy
measure of deference due to counsel's judgment, then we could excuse
them. But "all the circumstances," id., indicate otherwise. Dillon's
youth and lack of a prior criminal record, the irrevocability of the
penalty invoked, Fulcher's own inexperience, and the heavy stress
under which Fulcher, by his own admission, was unable to prepare
adequately must all be considered. In sum, his errors prejudiced
Dillon's trial sufficiently to warrant retrial.8
III
Dillon also appeals the district court's denial of
an evidentiary hearing on the issue of effective assistance of counsel.
He alleges that the discovery of new evidence compels such a hearing.
Specifically, he alleges that his trial counsel had a wager on the
outcome of the trial, that he improperly conferred with counsel for
the codefendant, and that he never attempted or initiated a plea
agreement or informed Dillon of any such agreement. The State concedes
that the district court had the authority to hold an evidentiary
hearing (Govt. Br. at 18). The only question is whether 28 U.S.C. Sec.
2254 mandated such a hearing, or if not, whether the district court
should have held a hearing anyway.
Although the State argues that these assertions
constitute issues not raised below and as such are barred from
consideration on habeas review, see Williams v. Duckworth, 724 F.2d
1439, 1442 (7th Cir.1984), the district court correctly held that the
allegations represent merely "sub-issues" of the main issue (Mem.
Order of April 20, 1984). In Williams the issue of effective
representation of counsel was not raised at all in the state court
proceedings. Dillon has raised this issue; now he merely wants to add
additional substance to his allegations. Because Dillon knew the facts
on which he bases his allegations prior to his filing for post-conviction
relief, the evidence he cites is not of a character which would
justify an evidentiary hearing. United States ex rel. Barksdale v.
Sielaff, 585 F.2d 288, 293 n. 4 (7th Cir.1978), certiorari denied, 441
U.S. 962, 99 S.Ct. 2409, 60 L.Ed.2d 1067 (1979).
Contrary to what Dillon alleges, Strickland v.
Washington, supra, did not establish new standards for evaluating
Sixth Amendment ineffective assistance of counsel claims that would
require a hearing. Strickland, --- U.S. at ----, 104 S.Ct. at 2069.
United States ex rel. Cosey v. Wolff, 682 F.2d 691 (7th Cir.1982), is
also not to the contrary. Cosey involved a claim of ineffective
assistance of counsel, in which this Court held that the "targeted
counsel, if at all available, should be called and given the
opportunity to meet and refute the serious charges made against him."
Id. at 693. But in this case Fulcher is not available and probably
would not become available. Moreover, he has already been heard from
in the form of the affidavits he filed before trial and subsequent to
trial, in which he admitted his own incompetence. Presumably he would
not now repudiate those affidavits and so therefore would be unable to
refute the charges against him. Moreover, in Cosey the charge of
incompetence--that certain exculpatory witnesses were not interviewed
or called by the defending attorney--could be explained as a part of
counsel's trial tactics, since three of the five potential witnesses
were biased because of their relationship to the defendant and the
attorney could have believed that their testimony would be false. Id.
at 693-694. No such explanation or possible trial strategy exists here.
Consequently, the concern in Cosey that attorneys might be accused
without an opportunity to defend themselves is absent. The district
court's denial of an evidentiary hearing was proper.
IV
Dillon's final allegation concerns the trial court's
imposition of the death sentence. Indiana has a bifurcated system in
which guilt is assessed at the first stage and the sentence is
determined at the second, a process similar to that upheld by the
Supreme Court in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49
L.Ed.2d 859 (1976). Dillon alleges that the trial judge did not
himself specifically find that the State had proved beyond a
reasonable doubt each of the facts necessary to impose the death
penalty. This allegation is patently false, as the Supreme Court of
Indiana made clear in Dillon v. State, 454 N.E.2d 845, 852-854
(Ind.1983). The trial judge stated that "the court finds beyond a
reasonable doubt that the aggravating circumstances * * * outweigh the
mitigating circumstance" (quoted in id. at 854).9
We therefore affirm the district court finding that the trial judge's
findings comported with the Indiana death penalty statute.
The writ of habeas corpus is granted and defendant
will be released unless the case is retried within the next 90 days.
Justice O'Connor identified three categories of
cases in Strickland, --- U.S. at ----, 104 S.Ct. at 2067. The first is
"actual or constructive denial of the assistance of counsel altogether,"
id., in which prejudice is so likely that it is assumed as a matter of
law without inquiry into the actual facts of the individual case.
United States v. Cronic, --- U.S. ----, 104 S.Ct. 2039, 80 L.Ed.2d 657
(1984), addressed this problem. The second situation involves those
cases in which counsel has an actual conflict of interest. Again,
prejudice is presumed, provided "the defendant demonstrates that
counsel 'actively represented conflicting interests' and 'that an
actual conflict of interest adversely affected his lawyer's
performance.' " Strickland, --- U.S. at ----, 104 S.Ct. at 2067,
citing Cuyler v. Sullivan, 446 U.S. 335, 350, 348, 100 S.Ct. 1708,
1719, 1718, 64 L.Ed.2d 333 (1980). The final category, the one that
will most often arise and that Strickland concerned, involves claims
of actual ineffective representation
The proper focus of course should be on the
adversarial process rather than the defendant's assessment of his
lawyer's preparation. United States v. Cronic, --- U.S. at ---- n. 21,
104 S.Ct. at 2046 n. 21, citing Morris v. Slappy, 461 U.S. 1, 103 S.Ct.
1610, 75 L.Ed.2d 610 (1983). Consequently, little importance attaches
to Dillon's statement that he did not want Fulcher to withdraw (Tr.
Vol. IV at 841-842). What is most significant about this exchange is
Fulcher's belief that it was required at all. Evidently he felt it was
necessary to indicate on the record that Dillon appreciated the
significance of what Fulcher had alleged in his affidavit but
nevertheless desired Fulcher to continue to represent him, thereby
implying a waiver of Dillon's Sixth Amendment right to counsel. If so,
then the State's argument that Fulcher filed his affidavit to force
the State to plea bargain does not wash. This contention relies on an
extraordinary degree of client loyalty. If it were true, then one
would think Fulcher would let the alleged error pass, instead of
bringing it to the trial court's attention, insisting on the
questioning and so possibly allowing Dillon unknowingly to waive his
Sixth Amendment right to counsel. Contrary to the belief of the
Indiana Supreme Court, see Dillon v. State, 454 N.E.2d 845, 847
(Ind.1983), the judge did not question Dillon, and nothing in the
record suggests that the judge believed such questioning to be
necessary (Tr. Vol. IV at 841-842). The questioning does indicate a
very conscientious but inept attorney trying to conduct himself
properly but somehow bungling the matter. Interpreted in this light,
the exchange between Dillon and Fulcher provides additional evidence
of Fulcher's incompetent handling of the trial
The State also emphasized in its argument to the
trial court that when the State had asked Fulcher in June at a
pretrial conference whether he contemplated either withdrawing or
asking for a continuance, Fulcher had said "he didn't know about a
continuance," but "he wasn't going to withdraw" (Tr. Vol. III at 633).
Perhaps Fulcher should have realized earlier the impact his emotional
problems were having on his trial preparation. But that factor does
not illuminate whether he really was having those difficulties and to
what extent they were affecting his competence. Fulcher's comments
indicate that only when his father had emergency surgery did he
realize the extent to which the emotional stress he was under had
disabled him from preparing adequately (id. at 637-638). Even the
State had to concede that preparing for a murder trial "is a very
strenuous thing to go through" (id. at 633)
We were advised at oral argument that Dillon's
trial was Fulcher's first capital murder case. We also note that
appellate counsel advised us at oral argument that their involvement
with the case stemmed from their being appointed to assist Fulcher in
appealing Dillon's conviction and sentence. This appointment and
Fulcher's subsequent withdrawal from the case provide further evidence
of his unfamiliarity with this type of case and his ineffectiveness in
providing Dillon competent counsel
In July 1984 Fulcher was disbarred for two years
for neglect in prosecuting a case unrelated to the one before us, so
that this dilatory pattern of conduct is not new to him. See In the
Matter of Fulcher, 464 N.E.2d 327 (Ind.1984)
At the very least, the trial judge may have viewed
the attempted accomplice plea as a calculated attempt to avoid
punishment for the crime, and so as evidence that Dillon was in no way
repentant. Such an assessment would affect his weighing of aggravating
and mitigating circumstances. The only aggravating circumstance was
that of the murder's being committed during a burglary, which the
judge was to balance against the defendant's lack of any prior
criminal history and "[a]ny other circumstances appropriate for
consideration." Ind.Code Sec. 35-5-2-9 (1982). Given the defendant's
youth and lack of any criminal record, assessing the ultimate penalty
against him seems overly harsh. The painful deaths of the two victims
evidently influenced the trial judge against the defendant, for he
refused to consider Dillon's youth on the theory that the "capability
of such cruelty in the mind of one that age cannot be considered a
mitigating circumstance" (A. 22). This, of course, would particularly
be true when the young defendant was unrepentant. We note that if the
judge's logic were valid, then age would always work against young
defendants convicted of the truly serious crimes for which the death
penalty is permitted. The trial judge's statement reveals a
misapprehension regarding the purpose of age in mitigating punishment.
Judges and juries may consider age in mitigating the death penalty
because young defendants have more of an opportunity to change their
lives and to correct for one error than those who have more of a
history of criminal conduct and are more hardened to the consequences
for other people of their criminal acts. Consequently sentencing young
adults irrevocably to death may be unfair, a consideration the trial
judge refused to adopt
We agree with the district court that the
dissenting justices were "pleading for clearer findings by the state's
trial judges, but * * * such is a matter of form more than substance"
(Mem. Order of June 21, 1984), especially in light of the trial
court's explicit statement, in our eyes, that he had found each factor
beyond a reasonable doubt
