Opinion
Case No. 4:99 CV 1707
May 23, 2001
MEMORANDUM OF OPINION AND ORDER
Before the Court is the Motion for a New Trial or to Alter and Amend Judgment (Doc. No. 19). Petitioner Michael Sharpless asks the Court to amend the judgment entered on May 9, 2000 on two bases: (1) the Sixth Circuit, under Combs v. Coyle, 205 F.3d 269 (6th Cir. 2000), reversed the denial of habeas corpus relief to a petitioner alleging ineffective assistance of trial counsel with much less evidence than that presented in petitioner's case, and (2) the Court did not consider State v. Childs, 88 Ohio St.3d 194 (2000) when deciding the issue of a fatally defective indictment.
I.
The Court disagrees with petitioner's first contention regarding Combs v. Coyle, 205 F.3d 269 (6th Cir. 2000). Mr. Combs was sentenced to death, after a jury trial, for shooting and killing his girlfriend and her mother. As the Sixth Circuit noted, the standard for evaluating attorney performance in capital murder cases is more rigorous than in other criminal cases. In other words, the possible imposition of the death penalty alone demands a higher level of attorney performance. See Combs, 205 F.3d at 289-90 (citing ABA Standards for Criminal Justice Prosecution Function and Defense Function 120 (3d ed. 1993), Standard 4-1.2(c)).
Second, Combs' lawyer failed to object to the prosecution's use in its case in chief of Combs' prearrest silence as evidence of his guilt — a clear violation of his Fifth Amendment right against self-incrimination. (Combs, who was holding a shotgun at the scene of the crime, told the investigating officer questioning him to "talk to [his] attorney.")
Third, Combs' lawyer presented an expert who completely undercut Combs' only defense, without undertaking a full investigation of the expert's conclusions. At trial, Combs did not dispute that he shot the women; rather, his defense was that he was too intoxicated to form the requisite intent to kill them or to have committed the killings with prior calculation and design. Combs' expert testified on cross examination that Combs, although intoxicated, acted purposefully and intentionally in shooting them. To compound matters, Combs' lawyer chose to use the same expert during the sentencing phase.
Evidence of counsel's ineffective assistance in Combs was far more compelling than that proffered here. Adding to that the fact that Combs was a capital murder case makes his counsel's errors that much more consequential. For these reasons, the Court finds that Combs is distinguishable and does not form a basis for granting the instant motion.
II.
The second (defective indictment) issue is much closer, which led the Court to request supplemental briefing from the parties. Sharpless contends that he was denied his right to know the nature and cause of the offense with which he was charged because neither the indictment nor the jury instructions identified the object of the conspiracy or the overt act in furtherance of the conspiracy. Although Sharpless has not cited the source of the federal constitution giving rise to this issue, the Court will presume that he is alleging a violation of the Notice Clause of the Sixth Amendment.
Under the Notice Clause of the Sixth Amendment, a criminal defendant has the right "to be informed of the nature and cause of the accusation" against him. United States v. Maney, 226 F.3d 660, 663 (6th Cir. 2000) (citing U.S. Const. amend VI).
Ohio's conspiracy statute, which establishes the elements of the crime, is located at O.R.C. § 2923.01. Under the conspiracy statute:
(A) No person, with purpose to commit or to promote or facilitate the commission of aggravated murder . . ., shall do either of the following:
(1) With another person or persons, plan or aid in planning the commission of any such offense'
(2) Agree with another person or persons that one or more of them will engage in conduct that facilitates the commission of any such offense.
(B) No person shall be convicted of conspiracy unless a substantial overt act in furtherance of the conspiracy is alleged and proved to have been done by him or a person with whom he conspired, subsequent to the accused's entrance into the conspiracy. For purposes of this section, an overt act is substantial when it is of such character as to manifest a purpose on the part of the actor that the object of the conspiracy should be completed.
O.R.C. § 2923.01 (emphasis added).
The indictment under which Sharpless was convicted alleged that:
on or about January 27, 1997 to February 6, 1997, at the County of Portage, State of Ohio Aforesaid did with purpose to commit, promote, or facilitate the commission of Aggravated Murder, with another person or persons, plan or aid in planning the commission of such offense, and/or agree with another person or persons that one or more of them would engage in conduct which facilitates the commission of such offense, a substantial overt act in furtherance of the said conspiracy having been done by Michael S. Sharpless, or a person with whom he conspired, subsequent to the said Michael S. Sharpless's entrance into the conspiracy.
During closing arguments, the government issued a superceding indictment identifying the object of the conspiracy (Harold Ford), but failed to identify the overt act in furtherance thereof. Trial counsel did not object to the sufficiency of the indictment at any time prior to the trial court's entry of final judgment. Sharpless contends that, under State of Ohio v. Childs, 88 Ohio St.3d 194 (2000), the indictment under which he was convicted is fatally defective; therefore, his continued incarceration violates the Fourteenth Amendment.
* * *
In 1995, Charles F. Childs, a police officer, was convicted of conspiracy to commit aggravated drug trafficking in an indictment that read:
Between the dates of December 2, 1993 and February 13, 1995, in the County of Montgomery, aforesaid, and state of Ohio, with Purpose to Commit, or to promote or facilitate the commission of Aggravated Trafficking, a violation of Section 2925.03(A)(2) of the Revised Code, did agree with another person or persons that one (1) or more of them would engage in conduct that facilitated the commission of any such offense, and that subsequent to each defendant's entrance into said conspiracy, a substantial overt act was done by each defendant or a person with whom they conspired: contrary to the form of the statute (in violation of Section 2923.01(A)(2) of the Ohio Revised Code).88 Ohio St.3d at 197. The court of appeals reversed his conviction, holding that the indictment was fatally defective because it did not properly specify at least one substantial, overt act undertaken in furtherance of the conspiracy, as expressly required under O.R.C. § 2923.01(B). State of Ohio v. Childs, No. 16325, 1998 WL 598102*5 (Ohio App. 2 Dist. Sep. 11, 1998).
Specifically, the Montgomery County Court of Appeals concluded that:
[W]hile the State presented sufficient evidence of a substantial, overt act at trial, the indictment was, nonetheless, insufficient to allege the offense of Conspiracy, since it failed to allege a specific, substantial, overt act committed by Childs or one of his co-conspirators, as required under R.C. 2923 .01 (B). Accordingly, Childs's conviction for Conspiracy to Commit Aggravated Trafficking in Case No. 95-CR-1874 is Reversed, and this court enters judgment dismissing that indictment, being the judgment that the trial court should have entered, as a matter of law. App. R. 12(B).
1998 WL 598102 at *5
The State argued that Childs waived this issue, but the court of appeals disagreed:
. . . Crim.R. 12(b)(2) provides that an indictment's failure to charge an offense can be raised at any time during the pendency of the proceedings. "The word ["proceeding"] may be used *** to describe the entire course of an action from the filing of the complaint until the entry of final judgment." Black's Law Dictionary (6 Ed. 1990) 1204. Here, Childs raised the issue in his Second Motion to Acquit, which was filed before final judgment was entered in the case. Thus, Childs raised the motion in a timely manner, pursuant to Crim.R. 12(B)(2).
1998 WL 598102 at *5
The State also contended that Childs suffered no prejudice as a result of the defect because, prior to trial, he requested and received a bill of particulars that set forth the overt acts upon which the State relied to obtain his conviction. The court of appeals rejected this argument as well.
[A] bill of particulars cannot save an invalid indictment, since a defendant cannot be "convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him."
1998 WL 598102 at *5 (quoting Russell v. United States, 369 U.S. 749, 770 (1962)).
Finally, on the issue of whether the case should be remanded to the trial court to permit the court to amend the indictment under Crim.R. 7 (D), the appeals court held:
Once the jury has returned a verdict, it is too late to focus the attention of the jury on a specific, substantial, overt act, which the jury must unanimously find the defendant to have committed, beyond reasonable doubt. Once the charge in the indictment has been submitted to the jury in a defective form, and a verdict has been returned, it is not possible to ensure that the jury's verdict has been focused upon a single, specific, substantial, overt act. It may be, for example, that three jurors, and only three, are satisfied, beyond reasonable doubt, that the defendant committed act A in furtherance of the conspiracy, while four different jurors, and only those four, are satisfied, beyond reasonable doubt, that the defendant committed act B in furtherance of the conspiracy, and the remaining five jurors, and only those five, are satisfied, beyond reasonable doubt, that the defendant committed act C in furtherance of the conspiracy. As so constituted, this hypothetical jury would not be able to return a verdict, since the jury would not be able to agree, unanimously, that any one specific, substantial, overt act was committed in furtherance of the conspiracy. This problem can be resolved before the rendition of a verdict by amending the indictment . . ., and charging the jury correctly in the language of the indictment, as amended; it is too late do (sic) do so after the jury has been instructed in terms of the defective indictment, and a verdict has been returned.
1998 WL 598102 at *6 (citing State v. O'Brien, 30 Ohio St.3d 122 (1987), paragraph 2 of the syllabus).
This ruling reversing Childs' conviction was appealed to the Ohio Supreme Court, which affirmed on March 15, 2000, noting:
The material and essential facts constituting an offense are found by the presentment of the grand jury; and if one of the vital and material elements identifying and characterizing the crime has been omitted from the indictment such defective indictment is insufficient to charge an offense, and cannot be cured by the court, as such a procedure would not only violate the constitutional rights of the accused, but would allow the court to convict him on an indictment essentially different from that found by the grand jury.88 Ohio St.3d at 198 (quoting State v. Wozniak, 172 Ohio St. 517, 521 (1961)).
The Childs Court concluded:
The State's failure to allege a specific, substantial, overt act in furtherance of the conspiracy in count fourteen of the indictment against Childs renders the indictment invalid.88 Ohio St.3d at 199.
Respondent herein argues that: (1) Sharpless's defective indictment claim was procedurally defaulted, precluding review by this Court, and (2) even if it was not procedurally defaulted, Childs is irrelevant because this case involved only state law issues.
* * *
The Court finds this issue particularly troubling because the Ohio Supreme Court's decision in Childs clears up any possible question that the indictment under which Sharpless was convicted of conspiracy was invalid. Indeed, Sharpless's indictment (which did not identify the object of the conspiracy, the co-conspirators or the statute, let alone the overt act) is more vague than the Childs indictment.
Today, there can be no doubt that a timely objection to such an indictment would clearly have to be sustained. Failure of a trial court to sustain such a timely objection would constitute reversible error. Because of this simple fact, the Court has engaged in substantial research to see if relief might be granted. However, the conclusion is inescapable. The motion must be denied.
Sharpless's attack against the sufficiency of the indictment has consistently been framed, giving him the benefit of the doubt, as a Sixth Amendment issue. He has two problems with this challenge. First, he procedurally defaulted a direct attack against the sufficiency of the indictment by failing to object to the indictment in a timely manner. Second, an attack upon the sufficiency of a state-issued indictment is a Fourteenth Amendment due process issue. See, e.g., Koontz v. Glossa, 731 F.3d 365, 370 (6th Cir. 1984). The Sixth Amendment only applies to federal indictments. See, e.g., United States v. Maney, 226 F.3d 660 (6th Cir. 2000). Thus, if there was a viable basis upon which the Court could overlook the procedural default, it would still be unable to review this question on the merits since it has not been presented to the state courts as a Fourteenth Amendment issue.
In Koontz, the Sixth Circuit held that:
The law is well settled that the federal guarantee of a grand jury indictment has not been applied to the states. Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). It is also well settled in this Circuit that the Constitution does not require any particular state indictment rule. In fact, it does not require an indictment at all if sufficient notice of the charges is given in some other manner. Combs v. Tennessee, 530 F.2d 695 (6th Cir.) cert. denied, 425 U.S. 954, 96 S.Ct. 1731, 48 L.Ed.2d 198 (1976). The due process clause of the Fourteenth Amendment mandates that whatever charging method the state employs must give the criminal defendant fair notice of the charges against him to permit adequate preparation of his defense. See, e.g., In Re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968); Blake v. Morford, 563 F.2d 248 (6th Cir. 1977); Watson v. Jago, 558 F.2d 330, 338 (6th Cir. 1977). This requires that the offense be described with some precision and certainty so as to apprise the accused of the crime with which he stands charged. Such definiteness and certainty are required as will enable a presumptively innocent man to prepare for trial. Combs v. Tennessee, 530 F.2d at 698.Koontz, 713 F.3d at 370.
Moreover, one could reasonably argue that Sharpless's trial counsel's failure to timely object to the indictment constitutes ineffective assistance of counsel. Although appellate counsel (a different person than trial counsel) has consistently raised numerous issues under the rubric of ineffective assistance of counsel, he has never raised trial counsel's failure to timely object to the indictment as one of them; thus, that issue is not before the Court.
Finally, appellate counsel's failure to raise ineffective assistance of trial counsel for failure to timely object to the indictment may well constitute ineffective assistance of appellate counsel. However, the question of appellate counsel's performance has never been presented to the state court of appeals in a motion to reopen the direct appeal. Even if the state appellate courts found such a motion to be untimely and, therefore, procedurally defaulted, the exhaustion of that issue in the state courts might provide "cause" sufficient to excuse the procedural default of the ineffective assistance of trial counsel claim — thereby permitting the Court to address that issue on the merits. See, e.g., Carpenter v. Mohr, 163 F.3d 938 (6th Cir. 2000) (holding that state court's denial of petitioner's ineffective assistance claim on procedural grounds did not preclude assertion of claim as cause for procedural default of sufficiency of evidence claim). But that issue is also not before the Court.
See Ohio R. App. P. 26(B); State v. Murnahan, 63 Ohio St.3d 60 (1992).
Unfortunately for Sharpless, the Ohio Supreme Court's recent decision in Childs is of no particular moment because the habeas petition, as presently constituted, does not provide the Court with a legitimate basis for granting habeas relief.
III.
For all these reasons, Sharpless' Motion for a New Trial or to Alter and Amend Judgment (Doc. No. 19) is hereby DENIED.
IT IS SO ORDERED.