Hill v. Perini
| Decision Date | 21 April 1986 |
| Docket Number | No. 84-3595,84-3595 |
| Citation | 788 F.2d 406 |
| Parties | John Boston HILL, Petitioner-Appellant, v. E.P. PERINI, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
John Boston Hill, Marion, Ohio, Miriam Hirsch Sheline argued, Cincinanti, Ohio, for petitioner-appellant.
Christine Manuelian argued, Asst. Atty. Gen., Columbus, Ohio, for respondent-appellee.
Before: JONES and NELSON, Circuit Judges; and EDWARDS, Senior Circuit Judge.
This habeas corpus appeal from the Northern District of Ohio involves one significant legal question. Appellant Hill was indicted by a Hancock County Grand Jury on one count of aggravated robbery in violation of O.R.C. Sec. 2911.01. The trial jury as allowed by the judge's charge found him not guilty as a principal offender but convicted him of complicity in committing the offense of aggravated robbery. See O.R.C. Sec. 2923.03(A)(2) and (F). Appellant exhausted his remedies in the Ohio Court of Appeals and the Ohio Supreme Court. Before this court, appellant claims that he was deprived of adequate notice of the charge he was convicted on and thus deprived a fair trial.
In addition, appellant claims his conviction is in violation of the double jeopardy clause of the Fifth Amendment--a claim which we reject finding not even arguable merit under the record in this case.
For the reasons which follow, Hill's claim must be dismissed. The indictment in this case charging appellant Hill with aggravated robbery was indeed somewhat laconic:
The jurors of the grand jury of the State of Ohio, within and for the body of the County aforesaid, on their oaths, in the name and by the authority of the State of Ohio, do find and present that on or about the 12th day of March 1982, at Findlay, Hancock County, Ohio, John Boston Hill did in committing a theft offense as defined in Section 2913.01 of the Revised Code, have under his control a deadly weapon as defined in Section 2923.11 of the Revised Code, to wit: a shotgun.
While it is not customary for a person to be charged apparently as a principal offender and subsequently to be found guilty as an accomplice to the alleged crime, we find no federal law or rule which prohibits this practice. In fact, this court has expressly acknowledged that a defendant may be indicted for the commission of a substantive crime as a principal offender and convicted of aiding and abetting its commission although not named in the indictment as an aider and abettor without violating federal due process. Stone v. Wingo, 416 F.2d 857 (6th Cir. 1969).
Indeed, the Ohio Revised Code squarely permits this practice. O.R.C. Sec. 2923.03 provides:
Sec. 2923.03 Complicity.
(1) Solicit or procure another to commit the offense;
(2) Aid or abet another in committing the offense;
(3) Conspire with another to commit the offense in violation of section 2923.01 of the Revised Code;
(4) Cause an innocent or irresponsible person to commit the offense.
(C) No person shall be convicted of complicity under this section unless an offense is actually committed, but a person may be convicted of complicity in an attempt to commit an offense in violation of section 2923.02 of the Revised Code.
(D) No person shall be convicted of complicity under this section solely upon the testimony of an accomplice, unsupported by other evidence.
(E) It is an affirmative defense to a charge under this section that, prior to the commission of or attempt to commit the offense, the actor terminated his complicity, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.
(F) Whoever violates this section is guilty of complicity in the commission of an offense, and shall be prosecuted and punished as if he were a principal offender. A charge of complicity may be stated in terms of this section, or in terms of the principal offense.
(Emphasis added).
This practice has apparently been established in Ohio for over 100 years. Hanoff v. The State of Ohio, 37 Ohio St. 178 (1881).
Additionally, we note that the indictment was followed by a much more explicit statement in the Bill of Particulars:
"That on or about the 12th day of March, 1982, between the hours of 2:30 A.M. and 3:00 A.M., this defendant entered the business premises known as 'Yock's' and located at 431 East Main Cross St., Findlay, Hancock County, Ohio, in the presence of Keith Anthony Mira, and did obtain and exert control over a sum of money greater than Three Hundred Fifty Dollars ($350.00), by threat and at gunpoint,...
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Keenan v. Bagley
...that the jury may be given a complicity instruction even though the defendant has been charged as a principal offender. Hiss v. Perini (C.A.6, 1986), 788 F.2d 406, 407-08.Keenan, 81 Ohio St.3d at 151, 689 N.E.2d at 946. The Court finds this to be neither contrary to, nor an unreasonable app......
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State v. Herring
...in terms of the principal offense. See State v. Keenan (1998), 81 Ohio St.3d 133, 151, 689 N.E.2d 929, 946, citing Hill v. Perini (C.A.6, 1986), 788 F.2d 406, 407-408. We reject Herring's Sixth Amendment Moreover, Crim.R. 33(E)(2) provides that a variance between the allegations and the evi......
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State v. McKelton
...even when the state has issued a bill of particulars that refers to a defendant only as the principal offender. See Hill v. Perini, 788 F.2d 406, 407–408 (6th Cir.1986). As a result, a jury instruction on complicity is proper as long as "the evidence adduced at trial could reasonably be fou......
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Allen v. Warden, Toledo Corr. Inst.
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