Heard v. Jago

• Decision Date: 13 March 1981
• Docket Number: No. C-1-78-809.,C-1-78-809.
• Citation: 515 F. Supp. 162
• Parties: Lincoln HEARD, Petitioner, v. Arnold R. JAGO, Superintendent, Respondent.
• Court: U.S. District Court — Southern District of Ohio

515 F. Supp. 162

Lincoln HEARD, Petitioner, v. Arnold R. JAGO, Superintendent, Respondent.

No. C-1-78-809.

United States District Court, S. D. Ohio, W. D.

November 3, 1980.

Supplemental Opinion March 13, 1981.

Lincoln Heard, pro se.

Leo J. Conway, Asst. Atty. Gen., Columbus, Ohio, for respondent.

MEMORANDUM AND ORDER

DAVID S. PORTER, District Judge.

MEMORANDUM

This is a habeas corpus case. Respondent says that as Superintendent of the Southern Ohio Correctional Facility he has custody of petitioner, Lincoln Heard, pursuant to an entry of conviction and sentence issued by the Cuyahoga Court of Common Pleas, Ohio.

Petitioner was indicted by the January, 1976 Term of the Cuyahoga County Grand Jury for one (1) count of aggravated robbery in violation of Section 2911.01, one (1) count of kidnapping in violation of Section 2905.01, one (1) count of grand theft in violation of Section 2913.02, and one (1) count of carrying a concealed weapon in violation of Section 2923.12, all in violation of the Ohio Revised Code. Following a trial by jury, petitioner was found guilty as charged, of all counts in the indictment. Petitioner received a total sentence of fifteen (15) years to fifty-five (55) years. State v. Heard, No. CR23794 (Cuyahoga County Court of Common Pleas, 1976).

It should also be noted that petitioner was on parole at the time the present crimes were committed, thereby elevating his present sentence an extra ten (10) to twenty-five (25) years, due to a previous conviction for armed robbery. Petitioner is presently serving a total sentence of twenty-five (25) to eighty (80) years imprisonment in the Southern Ohio Correctional Facility.

Petitioner is now before the Court seeking a writ of habeas corpus. In support of his application, petitioner makes the following claims:

1. Judgment of the trial court is contrary to law in that the defendant was convicted of aggravated robbery and lesser included offense of grand theft.

2. Judgment of the court finding defendant guilty of C.C.W. carrying a concealed weapon is against the weight of the evidence and contrary to law.

3. Trial court abused its discretion and committed prejudicial error in improperly restricting defendant's inquiry into pretrial line-up.

4. Judgment of the court finding defendant guilty of kidnapping is against the manifest weight of the evidence and contrary to law.

Petitioner's first claim is that he has been subjected to double jeopardy. He claims that he has been convicted of two separate counts that amount to but one offense. The Double Jeopardy Clause allows multiple prosecutions based on a single criminal transaction as long as the statutory offenses involved are not the same. Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). Under the traditional test, offenses are sufficiently different to allow separate prosecutions if each requires proof of a statutory element that the other does not. Blockburger v. United States, 284 U.S. 299, 302, 52 S.Ct. 180, 181, 76 L.Ed. 306 (1932). Under Ohio law aggravated robbery involves "attempting or committing a theft offense ... or ... fleeing immediately after such offense ... while having a deadly weapon or dangerous ordinance ... on or about his person or under his control." Ohio Rev.Code § 2911.01(A)(1).

A "theft offense" is defined by section 2913.01(K) as a violation or a conspiracy or attempt to violate any of several specified Ohio statutes or equivalent provisions of lesser political subdivisions or of the United States. Thus, there can be no robbery conviction in Ohio without the concurrence of some underlying theft offense. There cannot be a conviction of both aggravated robbery and grand theft rising out of a single incident without violation of the double jeopardy provision of the Constitution. See State v. Harris, 58 Ohio St.2d 257, 389 N.E.2d 1121 (1979) (robbery, grand theft); State v. Nelson, 51 Ohio App.2d 31, 365 N.E.2d 1268 (1977) (robbery, petty theft).

To avoid this clear implication, the respondent here argues that the petitioner committed two separate offenses: a robbery ending when the petitioner and his accomplice took $30 from the complainant's purse at gun point and the grand theft consisting of the taking of the complainant's automobile. Petitioner and his accomplice accosted the complainant as she was entering her car. They ordered her to move to the passenger side and to hand her purse to petitioner in the rear seat. After taking complainant's money from her purse, the two men released her from the car and drove away (tr. 98-102). Under these circumstances, we cannot say that the taking of the money and the taking of the car were two separate incidents anymore than robbing a jewelry store of its cash and a case of diamonds would be. Certainly the jury was not instructed to treat these as separate (tr. 274-75, 276-77), nor was the indictment of robbery limited to a taking of money (see appendix to return). Both referred only to commission of a "theft offense." We hold therefore, that petitioner's conviction of grand theft together with the conviction of robbery violated the double jeopardy provision of the Fifth Amendment.

Grounds 2 and 4 of the petition, as to whether petitioner's conviction is supported by sufficient evidence, were briefed by respondent before the Supreme Court's decision in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), which now controls. The Court there held that the question which we must decide is whether a rational trier of fact, viewing all the evidence in the light most favorable to the state, could have found guilt beyond a reasonable doubt. Accord, Speigner v. Jago, 603 F.2d 1208 (6th Cir. 1979) cert. denied, 444 U.S. 1076, 100 S.Ct. 1023, 62 L.Ed.2d 758 (1980).

Therefore, respondent is directed to file a supplemental Return of Writ, citing those pages of the trial transcript upon which respondent relies to establish that there was sufficient evidence to justify a rational trier of fact to find guilt beyond a reasonable doubt. This supplemental Return of Writ must be filed within thirty (30) days of the date of this Memorandum and Order. Petitioner thereafter shall have thirty (30) days in which to file a reply memorandum. Any additional transcript which is necessary for us to decide this claim shall be filed as soon as practicable.

We reject respondent's contention that the petitioner failed to exhaust available state remedies as to ground 4. Petitioner has asserted that the issue was raised on his appeal by a supplemental brief filed on March 28, 1977 (see doc. 5), but even if it was not, petitioner has now no practicable recourse to state remedies after his direct appeal terminated. See, Keener v. Ridenour, 594 F.2d 581 (6th Cir. 1979).

Petitioner's third ground for relief is that the trial court abused its discretion and committed prejudicial error in improperly cutting off all inquiry by the petitioner into a pretrial line-up. Instead the trial court substituted, at the instance of the defense attorneys and over the objection of the prosecutor, an in-court line-up consisting of petitioner, his alleged accomplice, and a brother of each of them (tr. 3-22). This was done out of the presence of the jury. After the complainant correctly, and without hesitation, identified petitioner, petitioner's attorney attempted to cross-examine her in regard to an earlier police line-up in the hope of exposing a suggestive procedure. This line of questioning was immediately cut off by the trial judge as contrary to the agreement of petitioner's attorney to accept as final the Judge's conclusion as to the validity of the identification from the in-court line-up (tr. 17-18). Although this procedure leaves the record devoid of any information as to whether the in-court, pretrial identification was itself tainted by the prior police identification procedures, we cannot ignore the fact that petitioner was afforded the very procedure he himself requested. Where identification testimony is excluded, it is excluded upon due process grounds. See Manson v. Brathwaite, 432 U.S. 98, 113, 97 S.Ct. 2243, 2252, 53 L.Ed.2d 140 (1977); Jackson v. Jago, 556 F.2d 807 (6th Cir.), cert. denied, 434 U.S. 940, 98 S.Ct. 433, 54 L.Ed.2d 300 (1977); Webb v. Havener, 549 F.2d 1081 (6th Cir.), cert. denied sub nom. Jago v. Webb, 434 U.S. 873, 98 S.Ct. 220, 54 L.Ed.2d 153 (1977). Where, as here, the trial court went out of its way to allow an accused an extraordinary procedure requested by the accused and the accused agreed to forego regular procedure in lieu of that requested, we cannot say that due process has been denied. We therefore reject petitioner's third ground for relief.

ORDER

For the foregoing reasons, the Court makes the following orders. Petitioner's first ground for relief is found to be meritorious. We therefore declare that the judgment of conviction of grand theft, only, is unconstitutional because that conviction together with the conviction of robbery violates the double jeopardy provision of the Fifth Amendment. Petitioner's third ground for relief is unmeritorious and is accordingly rejected. As to grounds 2 and 4, we direct the respondent to file a supplemental return of writ, as heretofore discussed, regarding petitioner's sufficiency of the evidence claims. The supplemental return must be filed within thirty (30) days of the date of this order. Petitioner shall thereafter have an additional thirty (30) days within which he may file a reply memorandum.

The Court does not anticipate that respondent will require any additional transcript to prepare its return. However, if an additional transcript is needed, the Court will entertain a motion for enlargement of time.

So ordered.

SUPPLEMENTAL OPINION

The facts concerning the petitioner's indictment, conviction and sentence are set forth in detail in our memorandum and order of November 3, 1980 (doc. 7), in which we disposed of all but two...