Mistrial

 

Franklin County Criminal Law Casebook

Reproduced with permission from:
Timothy E. Pierce and the Franklin County Public Defender Office
 

R.C. 2945.36 -- For what cause jury may be discharged.

Basics

State v. Lee, 180 Ohio App. 3d 739, 2009-Ohio-299 – Court sua sponte dismissed an aggravated robbery charge mistakenly believing the indictment was defective. Plain error not found in continuing with the trial of a companion weapon under disability charge, or in the failure to give a cautionary instruction. Since the charge was not based the weapon used in the robbery, and not on a weapon found in the defendant‘s possession and the time of arrest, the jury would necessarily have heard the facts of the robbery.
 
Wade v. Hunter (1949), 336 U.S. 684 -- Mistrial should be declared only as a matter of manifest necessity as the defendant has a valued right to have his trial completed before a particular tribunal. Necessity here arose from troop movements in the field during WWII.
 
State v. Garner (1995), 74 Ohio St.3d 49, 59 -- "The grant or denial of an order of mistrial lies within the sound discretion of the trial court...A jury is presumed to follow the instructions, including curative instructions, given it by a trial judge...Moreover, mistrials need be declared only when the ends of justice so require and a fair trial is no longer possible..." (Citations omitted.)
 
Tingue v. State (1914), 90 Ohio St. 368 -- Paragraph three of the syllabus: "A mistrial should not be ordered in a cause simply because some error has intervened. The error must prejudicially affect the merits of the case and the substantial rights of one or both of the parties, and this is as true of the temporary absence of the judge as any other departure from due process of law during the trial of a cause."
 
State v. Scott (1986), 26 Ohio St. 3d 92, 95-96 -- Declaration of a mistrial is still a matter of judicial discretion, even when both parties join in the request.
 
State v. Broughton (1991), 62 Ohio St. 3d 253 -- Paragraph three of the syllabus: "Where jeopardy has attached during the course of a criminal proceeding, a dismissal of the case may be treated in the same manner as a declaration of a mistrial and will not bar a subsequent trial when: (1) the dismissal is based on a defense motion, and (2) the court's decision in granting such motion is unrelated to a finding of factual guilt or innocence. (United States v. Scott [1978], 437 U.S. 82...,applied and followed.)"
 
State v. Saunders (1994), 98 Ohio App. 3d 355 -- Trial court erroneously overruled motions for new trial or mistrial based upon prosecutorial misconduct during closing argument. At p. 358: "A motion for mistrial is addressed to the sound discretion of the trial court. State v. Glover (1988), 35 Ohio St. 3d 18...For the most part, a motion for a new trial pursuant to Crim. R. 33 is also addressed to the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. State v. Schiebel (1990), 55 Ohio St. 3d 71...However, when the motion addresses prosecutorial misconduct, a reviewing court must undertake a due process analysis to determine whether the conduct of the prosecutor deprived the defendant of his or her due process right to a fair trial. State v. Johnston (1988), 39 Ohio St. 3d 48, 60..."

Hung juries

State v. Christian, 184 Ohio App. 3d 1, 2009-Ohio-4811 – During a chase three passengers fired at the police from a car driven by the defendant. He was indicted on multiple counts of felonious assault. Using the verdict forms provided, the jury found him not guilty of felonious assault as a principal offender, but indicated they were unable to reach a verdict on a separate form based on complicity. The trial court erroneously discharged the defendant for want of a charging document. Complicity remained a viable theory of culpability based on the verdict forms without the need for reindictment. Complicity is implicated by every indictment. Decision follows the rationale of cases where the jury acquits on the indicted offense but hangs on a lesser.
 
Renico v. Lett (2010), 130 S.Ct. 1855 – The Michigan Supreme Court determined that a mistrial declared after four hours of deliberations was a matter of manifest necessity, but the Sixth Circuit found otherwise. Applying deferential AEDPA review, Supreme Court reverses. Determination whether the state court’s interpretation of federal law was reasonable here hinges on there being plausible alternative views of the circumstances. Opinion rehearses the Supreme Court’s prior jurisprudence on mistrials.
 
United States v. Perez (1824), 22 U.S. 579 -- Discharge of a jury which has not reached a verdict does not bar retrial provided such discharge was a matter of manifest necessity and the ends of public justice would otherwise be defeated. Case involved a hung jury in a capital case. Also see Oregon v. Kennedy (1982), 456 U.S. 667, 672; Arizona v. Washington (1978), 434 U.S. 497, 509; Illinois v. Sommerville (1973), 410 U.S. 458, 463.
 
State v. Palmieri (1938), 13 Ohio Ops 517 -- Suggested that the concept of double jeopardy applied following a mistrial relates back to the following statement by Lord Coke: "To speak it here, once for all, is any person be indicted for treason, or of felony or larceny, and plead not guilty, and thereupon a jury is returned and sworn, their verdict must be heard, and they cannot be discharged." (i.e. without the consent of the defendant).
 
United States v. Hotz (1st Cir. 1980), 620 F. 2d 5 -- Abuse of discretion for judge to excuse seemingly deadlocked jury after only four hours of deliberations without hearing from counsel and exploring possibility of further deliberations. Retrial barred.
 
State v. Sabbah (1982), 13 Ohio App. 3d 124, 137-140 -- When a jury indicates it is deadlocked after substantial deliberations and that any verdict it might reach would be unfair, the court should declare a mistrial. It is further error for the court to make an unguarded statement to the effect that "this jury can reach a verdict if any jury can." (If any instruction is to be given in such circumstances, it must follow State v. Howard (1989), 42 Ohio St. 3d 18.)
 
Richardson v. United States (1984), 468 U.S. 242 -- A mistrial because of a hung jury does not bar retrial, even if the evidence might have been deemed insufficient to support a conviction. Jeopardy bars retrial only if there has been an event such as acquittal which terminates the original jeopardy. Also see Justices of Boston Municipal Court v. Lydon (1984), 466 U.S. 294, 308-310. (Note: Rule 29 motion would still lie to raise sufficiency.)
 
State v. Liberatore (1983), 4 Ohio St. 3d 13 -- Following the first trial where the jury found the defendant not guilty of aggravated arson and was unable to reach a verdict on an aggravated murder charge predicated on aggravated arson, the Double Jeopardy Clause barred retrial of defendant for aggravated murder.
 
State v. Rhinehart (1983), 12 Ohio App. 3d 156 -- Double jeopardy does not prevent retrial after jury acquitted defendant of assault but hung on resisting arrest charge. Each charge required proof of a fact the other did not.
 
State v. Crago (1994), 93 Ohio App. 3d 621 -- Conviction for involuntary manslaughter, as a lesser included offense to aggravated murder premised on kidnapping, did not bar retrial on remaining count arising from the same death, charging aggravated murder in the course of an aggravated robbery, where first trial ended with a hung jury.

Justification

State v. Patterson, 188 Ohio App. 3d 292, 2010-Ohio-2012 – Case was tried three times. An exhibit admitted at the second trial, but not at the third, remained in the stack sent to the jury. This consisted of a statement by a jailhouse snitch which meshed well with proof of mens rea, but appeared to have been a fabrication. After the jury came across the exhibit and discussed it, they were individually questioned and admonished to disregard it. The process was repeated before the verdict was received. The opinion rehearses conventional authority on the declaration of mistrials, and generally approves of the steps taken by the trial court, but in the end concludes the prejudicial effect of the exhibit could not be cured.
 
State v. Wilkins, 183 Ohio App. 3d 824, 2009-Ohio-4575 – Defendant’s feigned medical emergency during trial did not compel declaration of a mistrial.
 
State v. Walls, Lucas App. No. L001-1492, 2003-Ohio-493 -- Breaking news following the 9-11 attacks deemed to created manifest necessity warranting sua sponte declaration of a mistrial.
 
Illinois v. Sommerville (1972), 410 U.S. 458 -- Mistrial a matter of manifest necessity where indictment was found to be defective, and not subject to curative amendment, shortly after trial commenced. At best, any conviction which might have resulted would have been readily reversible.
 
State v. Montgomery (1982), 3 Ohio App. 3d 280 -- Mistrial properly declared where in discovery the prosecutor failed to provide the statement of a codefendant who had become a state's witness.
 
Arizona v. Washington (1978), 434 U.S. 497 -- Mistrial declared by the court was based on improper opening statement by the defense. While it might have been possible to continue trial, deference is shown to exercise of discretion by trial judge, who it was concluded had demonstrated the high degree of necessity required. Also see State v. Stimmel (February 20, 1986), Franklin Co. App. No. 85AP-647, unreported (1986 Opinions 309); State v. Abboud (1983), 13 Ohio App. 3d 62 (improper defense argument)..
 
Columbus v. Hamilton (1992), 78 Ohio App. 3d 653 -- Court should have granted motion for mistrial after prosecutor, in opening statement, announced one charge would be dropped because of a missing witness, after referring to that charge during voir dire.
 
State v. Daugherty (1987), 41 Ohio App. 3d 91 -- Mistrial should have been declared where prosecutor improperly implied that defendant's employment records would contradict her testimony, then failed to produce those records. On later examination, records in fact corroborated defendant's testimony.
 
Sidney v. Little (1997), 119 Ohio App. 3d 193 -- Defense counsel referred to client's clean driving record during opening statements. Judge granted prosecutor's motion for a mistrial. (1) Reference was not outside the bounds of proper opening statements as character may be made an issue. (2) Even if it proved to be so, mistrial was not a matter of manifest necessity as the judge could have sustained a motion in limine, given an instruction that opening statements are not argument, or withheld ruling on motion until the defendant testified or elected not to do so.
 
State v. Aldridge (1981), 3 Ohio App. 3d 74 -- Mistrial erroneously granted on prosecutor's motion. Defense counsel was entitled to cross-examine state's witness as to possible bias and court "misapprehended" permissible scope of cross. Therefore, mistrial was not granted for "good cause shown" and retrial was barred by double jeopardy.
 
State v. Flowers (September 2, 1982), Franklin Co. App. No. 82AP-323, unreported (1982 Opinions 2795) -- Reference to notation on photograph stating "Dale Flowers, burglar," combined with other irregularities entitled defendant to declaration of a mistrial.
 
State v. Paxton (1995), 110 Ohio App. 3d 305 -- Videotape was played for the jury while the judge was out of the courtroom. Audio portion contained inadmissible hearsay and should have been largely excluded. Curative instruction was insufficient. Mistrial should have been declared.
 
State v. Schmidt (1979), 65 Ohio App. 2d 239 -- Mistrial was granted at request of the prosecutor on the mistaken belief that evidence of acts of prior violence by the deceased had been improperly admitted. As there was no manifest necessity for a mistrial, retrial is barred.
 
State v. Smidi (1993), 88 Ohio App. 3d 177 -- Mistrial should have been declared where prosecutorial misconduct included (1) use of questions to put before the jury matters which were not in evidence, (2) misstatement of facts, and (3) improper argument, including specter of trade war with Japan, reference to defendant as an habitual car thief who had "gotten away with it" in the past, holding the defendant responsible for rising insurance rates, and promising jurors they would not be prosecuted if their car contained stolen parts as the prosecutor only went after "crooks."
 
Tallmadge v. Ritchie (1986), 34 Ohio App. 3d 342 -- Retrial not barred where mistrial was declared on motion of the defendant who claimed amendment of affidavit to conform to the proof presented hampered proper preparation of his defense.
 
State v. Draughn (1992), 76 Ohio App. 3d 664, 670-675 -- Mistrial was required where the prosecutor in a drug case included in his argument an appeal to the jury to convict the defendant in order to aid the police in taking back their neighborhoods from drug dealers. Opinion includes lengthy discussion of what may or may not be argued by prosecutors. A mistrial motion should be denied only when the court is satisfied that a curative instruction may avoid a miscarriage of justice. Flagrant misconduct calls for a reprimand in the presence of the jury and notification of disciplinary counsel.
 
State v. Abboud (1983), 13 Ohio App. 3d 62 -- Because it is improper for either party to mention punishment, trial court did not abuse its discretion in declaring a mistrial when defense counsel referred to mandatory prison sentence during closing argument. Also see State v. Palmieri (1938), 13 Ohio Ops 517.
 
State v. Hipkins (1982), 69 Ohio St. 2d 80, 83 -- Brief conversation between juror and defense witness did not require mistrial when there was no discussion of the case.
 
State v. Daniels (1993), 92 Ohio App. 3d 473 -- Two jurors indicated that they thought they had been followed at a lunch break and others later expressed concern about the defendant's access to juror questionnaires. Since upon inquiry they said they said they could remain fair and impartial, it was not an abuse of discretion to deny a mistrial motion.
 
State v. Rudge (1993), 89 Ohio App. 3d 429 -- Between the guilt and penalty phase of a capital trial an alternate juror informed the bailiff that, before opening statements, one juror was overheard to say "We could save a lot of time and money and just hang him now," and that on the second day of trial another juror, upon seeing the defendant at a restaurant, said "He better enjoy it now, because he won't be around much longer." Mistrial was declared based on the first statement. (1) Mistrial was properly declared. (2) Held to be a final appealable order, from which the prosecutor may seek leave to appeal. (3) Aliunde rule did not apply as went to partiality and not discussions during deliberations. Also, a present, but non-deliberating, alternate is said not to be a member of the trial jury for purposes of aliunde rule.
 
State v. Stamper (1986), 33 Ohio App. 3d 104 -- A mistrial is properly denied when on the morning after the jury has been discharged one juror informs the judge that she has changed her mind as to the guilt of two of three defendants.

Double Jeopardy Claims - Mistrial Declared Sua Sponte

Broadview Heights v. Baron (2000), 139 Ohio App. 3d 729, 739-743 -- Defense counsel's defiant disregard of ruling on motion in limine by touching on prohibited matters during voir dire and opening statement warranted sua sponte declaration of a mistrial. Retrial was permitted.
 
State v. Glover (1988), 35 Ohio St. 3d 18 -- Syllabus: "Where the trial judge sua sponte declares a mistrial, double jeopardy does not bar retrial unless the judge's action was instigated by prosecutorial misconduct designed to provoke a mistrial, or the declaration of a mistrial constituted an abuse of discretion."
 
State v. Aldridge (1981), 3 Ohio App. 3d 74 -- Headnote 1: "A court which grants a motion for a mistrial without a showing of manifest necessity or that the ends of public justice are served has not demonstrated 'good cause.' And the court cannot prevent the double jeopardy consequences incurred by reconsidering sua sponte, and granting, a groundless defense motion for a mistrial previously denied." At p. 79: "Precise and justified reasons must be made to appear for a mistrial if a retrial is to be permitted." Also see United States v. Bristol (C.A.D.C. 1974), 325 A. 2d 183, 187.
 
State v. Widner (1981), 68 Ohio St. 2d 188 -- Syllabus: "A trial judge properly exercises his discretion in ordering a mistrial sua sponte, when: (1) the defendant and all his lawyers have been found in contempt of court and removed from the courtroom; (2) the defendant himself requests a trial before another judge; and (3) a codefendant's trial would be immeasurably delayed by the granting of a continuance. The defense of former jeopardy will not then bar a second trial before a different judge. (United States v. Dinitz, 424 U.S. 600, followed and applied.)"
 
State v. Owens (1998), 127 Ohio App. 3d 65 -- Defendant unsuccessfully sought name of confidential informant before trial, but in his opening statement the prosecutor identified the informant. Court overruled defense motion for a dismissal with prejudice, then sua sponte declared a mistrial over defense objection. Applying State v. Glover (1988), 35 Ohio St. 3d 18, reversed. Prosecutor's misconduct goaded the court into declaring a mistrial. Furthermore, mistrial was an abuse of discretion.
 
State v. Morgan (1998), 129 Ohio App. 3d 838 -- Court sua sponte declared a mistrial believing the jury was tainted with evidence which should not have been before them. Retrial was barred by double jeopardy as the record does not sufficiently establish the nature of the tainted evidence or the exploration of remedies short of declaring a mistrial.
 
Cleveland v. Walters (1994), 98 Ohio App. 3d 165 -- Jury filled in guilty verdict form, though the immediate verbal reaction when the verdict was read, and a poll of the jury, indicated they unanimously meant to find the defendant not guilty. The mistrial declared by the judge was not a matter of manifest necessity. Appeals court enters judgment of acquittal.
 
State v. Workman (1977), 60 Ohio App. 2d 204 -- Judge resented implication that his attorney son had received favorable treatment in courtroom. Headnote 2: "Where the trial judge concluded that events have transpired which prevent him from acting in an unbiased and unprejudiced manner during the balance of the trial and it is imperative another judge conduct the trial, there is an absolute necessity for the declaration of a mistrial."
 
State v. Hood (1999), 132 Ohio App. 3d 334 -- Juror walked to prosecutor's office and borrowed a copy of Black's Law dictionary to look up a definition of aider and abettor. Sua sponte declaration of a mistrial was reasonable as the definition did not comport with Ohio law.

Double Jeopardy Claims When the Defense has Sought a Mistrial

State v. Colegrove (2000), 140 Ohio App. 3d. 306, 316 -- In electing to try a case to the bench a defendant must be aware that the judge will fulfill a dual role as finder of fact and determining admissibility of evidence. Defendant claimed court should have declared a mistrial after becoming aware of similar acts evidence only admissible at trial of specifications. Absent affirmative proof that the court improperly considered inadmissible evidence, it is presumed that the court considered only relevant, material and competent evidence.
 
State v. Dute, Hamilton App. No. C-020709, 2003-Ohio-2774, ¶ 14-25 -- Defendant sold porno tapes involving herself and others over the Internet. Mistrial should have been declared when it was learned seven jurors had been exposed to incorrect media coverage of a prior prosecution that had been the subject of a defense motion in limine. "Where the jury becomes aware of 'highly prejudicial' evidence of the defendant's past criminal behavior through news media coverage, it is per se prejudicial to the defendant." See Marshall v. United States (1959), 360 U.S. 310.
 
United States v. Jorn (1970), 400 U.S. 470, 485 -- "Where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for a mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by prosecutorial or judicial error. In the absence of such a motion, the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant's option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would both be served by a continuation of the proceedings."
 
Oregon v. Kennedy (1982), 456 U.S. 667, 679 -- As to when retrial is barred after a mistrial has been declared on the defendant's motion; "...the circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial." Also see United States v. Dinitz (1975), 424 U.S. 600; Lee v. United States (1977), 432 U.S. 23; State v. Sage (1987), 31 Ohio St. 3d 174.
 
State v. Doherty (1984), 20 Ohio App. 3d 275 -- Prosecutorial conduct must be found to have had the design of forcing the defense to move for a mistrial for jeopardy to bar a retrial. Trial court's recitation that improper cross was either by design or by error was not sufficient, since error does not meet the standard of Oregon v. Kennedy.
 
State v. Girts (1997), 121 Ohio App. 3d 539, 552 -- Lack of prior overreaching by the prosecutor, and opposition to declaration of a mistrial weigh against finding state intended to goad defense into asking for a mistrial.
 
State v. Wood (1996), 114 Ohio App. 3d 395 -- Mistrial was declared when victim's testimony made reference to other instances of domestic violence. No double jeopardy bar to retrial where prosecutorial negligence instead of intentional misconduct led to mistrial being declared. Also see State v. Loza (1994), 71 Ohio St. 3d 61, 70.
 
State v. Williams (February 23, 1995) Franklin Co. App. No. 94APA04-542, unreported (1995 Opinions 682) -- Retrial not barred by double jeopardy where prosecutor's question was inartfully phrased, but even so, did not necessitate an answer which would require defense counsel to move for a mistrial.
 
State v. Montgomery (1982), 3 Ohio App. 3d 280 -- Retrial not barred where mistrial was granted on defense motion based on prosecutor's failure to provide testifying codefendant's statement in discovery.
 

Publishing Information

Published by Timothy E. Pierce
 
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
 
Contents may not be duplicated without express permission.