Clements v. Timmerman-Cooper

• Decision Date: 25 May 2012
• Docket Number: Case No. 1:11-cv-442
• Parties: BILL DAVID CLEMENTS Petitioner, v. DEB TIMMERMAN-COOPER, Warden, Respondent.
• Court: U.S. District Court — Southern District of Ohio

BILL DAVID CLEMENTS Petitioner,

v.DEB TIMMERMAN-COOPER, Warden, Respondent.

Case No. 1:11-cv-442

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON

Dated: May 25, 2012

District Judge Sandra S. Beckwith

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought pro se under 28 U.S.C. § 2254 by Petitioner Bill David Clements. He pleads the following Grounds for Relief:

Ground One: The petitioner was denied due process and equal protection of the laws when the trial court committed plain error be [sic] permitting Petitioner to be tried on a defective indictment, in violation of the Fifth and Fourteenth Amendments of the United States Constitution.

Ground Two: The petitioner was denied due process and equal protection of the law when the trial court overruled his motion(s) for Criminal Rule 29 Acquittal according to the Ohio Rules of Criminal Procedure, in violation of th [sic] Fifth and Fourteenth Amendments of the United States Constitution.

Ground Three: The petitioner was denied due process and equal protection of the law when jury convicted him against the manifest weight of the evidence, in violation of the Fifth and Fourteenth Amendments of the United States Constitution.

Ground Four: The petitioner was denied due process and equal protection of the law, by the trial court committing plain error by itserroneous instruction to the jury on the elements of the offense in the indictment, and on all of the charges being tried, in violation of the fifth [sic] and Fourteenth Amendments.

Ground Five: The Petitioner was denied the effective assistance of trial counsel, by his trial counsel's failure to challenge and move to dismiss the defective indictment, and by his failure to object to defective jury instructions at trial, and as a result this was a Sixth Amendment of the U.S. Constitutional violation of Petitioners rights to the effective assistance of trial counsel.

(Petition, Doc. No. 2.) On Judge Bowman's Order (Doc. No. 3), the Respondent Warden has filed a Return of Writ (Doc. No. 7) and Petitioner has filed a Reply in support (Doc. No. 8).

Procedural History

Petitioner was indicted by the Butler County Grand Jury on one count each of attempted aggravated burglary with a firearm specification, one count of tampering with evidence, and one count of possessing criminal tools. In addition to the indictment, he was provided a bill of particulars on the charges. After trial to a jury at which he testified, he was convicted on all counts and sentenced to seven years confinement which he is serving in Respondent's custody.

Petitioner appealed to the Butler County Court of Appeals raising the following assignments of error:

1. The trial court committed structural error or plain error where the Defendant-Appellant was tried with a defective Indictment which fails to charge offense(s), for the reason that it lacks the essential elements of Attempted Aggravated Burglary with a Gun Specification, Tampering with Evidence, and Possessing Criminal Tools, and the underlying offenses related thereto.

2. The trial court violated the defendant-appellant's Due Process rights by overruling his motion(s) for Crim. R. 29 acquittal.

3. The trial court violated the defendant-appellant's Due Process rights by overruling his motion(s) for Crim. R. 29 acquittal.

4. The trial court committed structural error or plain error by erroneously instructing the jury on the elements of Attempted Burglary with a Firearm Specification, Tampering With Evidence, and Possessing Criminal Tools.

5. The Defendant-Appellant is denied his right to the effective assistance of trial counsel by his counsel's failure to challenge the defective indictment, and by his failure to object to defective jury instructions at trial.

(Merit Brief and Reply Brief on Appeal, Return of Writ, Doc. No. 7, Exhibits 8 and 10.) The court of appeals affirmed, rejecting all of the assignments of error. State v. Clements, 2010 Ohio 4801, 2010 Ohio App. LEXIS 4065 (Ohio App. 12th Dist., Oct. 4, 2010). Petitioner then appealed to the Ohio Supreme Court, essentially repeating the same arguments he made on direct appeal and that he makes here, but that court declined to take jurisdiction. State v. Clements, 2011 Ohio 647, 2011 Ohio LEXIS 420 (2011). Petitioner then timely filed his Petition for Writ of Habeas Corpus in this Court.

Analysis

Ground One

In his First Ground for Relief, Petitioner asserts that the indictment in this case was defective because it did not include all the elements of aggravated burglary and theft, it omitted the deadly weapon element, it failed to identify the record, document, or thing which was the object of the tampering with evidence count, and it failed to identify the criminal tool allegedly in his possessionin the possession count (Petition, Doc. No. 2, PageID 5).

The Warden contends that the defectiveness of an indictment is not a claim cognizable in habeas corpus because there is no federal constitutional requirement of indictment by a grand jury in state court proceedings (Return of Writ, Doc. No. 7, PageID 27-29). The Warden also contends that this Ground for Relief is procedurally defaulted because Petitioner did not file a pretrial motion to dismiss the indictment for the asserted deficiency, as required by Ohio R. Crim. P. 12 (Return of Writ, Doc. No. 7, PageID 29-37). The Warden notes that the indictment was supplemented with a bill of particulars (Return of Writ, Doc. No. 7, Ex. 15). Finally, the Warden asserts the First Ground is without merit (Return of Writ, Doc. No. 7, PageID 50-53.)

In his Traverse, Petitioner focuses almost entirely on his argument that the Warden and the Court of Appeals are wrong as a matter of Ohio law (Traverse, Doc. No. 8, PageID 512-518). He makes no response to the procedural default argument.

On the first assignment of error, the court of appeals wrote:

[*P6] In his first assignment of error, appellant argues that the trial court erred by failing to dismiss the "fatally defective indictment" because it "omitted all of the elements" for each of the three crimes charged, thereby creating a "structural error" that requires his convictions be reversed. (Emphasis sic.) We disagree.

[*P7] At the outset, we note appellant failed to timely object to the indictment, and therefore, has waived all but plain error on appeal. State v. Horner, Slip Opinion No. 126 Ohio St. 3d 466, 2010 Ohio 3830, 935 N.E.2d 26, paragraph two of the syllabus; State v. Wagers, Preble App. No. CA2009-06-018, 2010 Ohio 2311, P7. Notice of plain error must be taken with utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice. State v. Long (1978), 53 Ohio St.2d 91, 95, 372 N.E.2d 804. [**3] An error does not rise to the level of a plain error unless, but for the error, the outcome of the trial would have been different. State v. Krull, 154 Ohio App.3d 219, 2003 Ohio 4611, P38, 796 N.E.2d 979.

[*P8] It is well-established that the purpose of an indictment is to give the accused adequate notice of the crime charged. Horner at P10; State v. Buehner, 110 Ohio St.3d 403, 2006 Ohio 4707, P6, 853 N.E.2d 1162; State v. Smith, Butler App. No. CA2009-02-038, 2010 Ohio 1721, P62. An indictment is sufficient if it contains the elements of the offense charged, fairly informs the defendant of the charge, and enables the defendant to plead an acquittal or conviction in bar of future prosecutions for the same offense. State v. Curtis, Butler App. No. CA2008-01-008, 2009 Ohio 192, P30, citing Hamling v. United States (1974), 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L. Ed. 2d 590; see, also, Crim.R. 7(B).

[*P9] Initially, appellant argues that count one of the indictment, which charged him with attempt in violation of R.C. 2923.02(A), was defective for failing to list "all of the elements of R.C. 2911.11(A)(2) Aggravated Burglary," the underlying offense for which the attempt charge was predicated. However, contrary to appellant's claim, an indictment that tracks the language of the charged offense, that identifies an underlying offense by reference to the statute number, such as the case here, is not defective for it provides the defendant with adequate notice of the charges pending against him. See Horner at P45; Buehner at syllabus; see, also, State v. Reyna (1985), 24 Ohio App.3d 79, 80-81, 24 Ohio B. 148, 493 N.E.2d 555; State v. Burch (Nov. 15, 1988), Wyandot App. No. 16-86-11, 1988 Ohio App. LEXIS 4653, 1988 WL 122479, *2; State v. Lyons (Sept. 22, 1994), Ross App. No. 94CA1997, 1994 Ohio App. LEXIS 4509, 1994 WL 534937, *2. Therefore, because count one of the indictment was not defective, appellant's first argument is overruled.

[*P10] Next, appellant argues that counts two and three of the indictment, which charged him with tampering with evidence in violation of R.C. 2921.12(A)(1) and possessing criminal tools in violation of R.C. 2923.24, were fatally defective for failing "to identify so as to be defined" what evidence he allegedly tampered with, as well as what criminal tools he allegedly possessed. However, it is clear that counts two and three of the indictment tracked the exact statutory language of both offenses, and, as a result, were properly charged. State v. Ramirez, Clermont App. No. CA2004-06-046, 2005 Ohio 2662, P50; State v. Morris, Clark App. No. 06-CA-65, 2007 Ohio 3591, P20. Furthermore, we find that any confusion appellant may have had regarding the charges pending against him was eliminated by the bill of particulars. 1 See State v. Skatzes, 104 Ohio St.3d 195, 2004 Ohio 6391, P27, 819 N.E.2d 215. Therefore, because counts two and three of the indictment were not defective,appellant's second argument is overruled.

FOOTNOTES

1 The bill of particulars stated, in pertinent part, that appellant was charged with tampering with evidence after he allegedly threw a "Colt .25 Calibur, Serial Number 77530CC out of the window of the car he was a

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