State v. Lovejoy

Lundberg Stratton, J. The issue presented to us in this case is whether the doctrines of double jeopardy and collateral estoppel apply when a jury finds a defendant not guilty as to some counts and is hung as to. other counts. We find that these doctrines do not apply where the inconsistency in the responses arises out of inconsistent responses to different counts, not out of inconsistent responses to the same count. In such cases, we further find the prosecution is entitled to retry the hung-jury counts provided that other criteria, such as sufficiency of the evidence, are met to allow retrial. — 443 — A review of the purpose and history of double jeopardy and collateral estoppel is useful in resolving this issue. Double jeopardy was established by the Fifth Amendment to the Constitution of the United States, which states: “No person shall * * * be subject for the same offence to be twice put in jeopardy of life or limb * * *.” The Fifth Amendment has been made applicable to the states through the Fourteenth Amendment. It is well established that the Double Jeopardy Clause protects against successive prosecutions for the same offense. United States v. Dixon (1993), 509 U.S. 688, 696, 113 S.Ct. 2849, 2855, 125 L.Ed.2d 556, 567. It protects a person who has been acquitted from having to run the gauntlet a second time. Ashe v. Swenson (1970), 397 U.S. 436, 445-446, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469, 476-477. As stated in Green v. United States (1957), 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199, 204: “The underlying idea [embodied in the Double Jeopardy Clause], one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” In addition to its primary function of safeguarding against governmental overreaching (see Justices of Boston Mun. Court v. Lydon [1984], 466 U.S. 294, 307, 104 S.Ct. 1805, 1812, 80 L.Ed.2d 311, 324), the double jeopardy guarantee protects a defendant’s “ ‘valued right to have his trial completed by a particular tribunal.’ ” Crist v. Bretz (1978), 437 U.S. 28, 36, 98 S.Ct. 2156, 2161, 57 L.Ed.2d 24, 31, quoting Wade v. Hunter (1949), 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974, 978. Once a tribunal has decided an issue of ultimate fact in the defendant’s favor, the double jeopardy doctrine also precludes a second jury from ever considering that same or identical issue in a later trial. Dowling v. United States (1990), 493 U.S. 342, 348, 110 S.Ct. 668, 672, 107 L.Ed.2d 708, 717. Collateral estoppel is the doctrine that recognizes that a determination of facts litigated between two parties in a proceeding is binding on those parties in all future proceedings. Collateral estoppel “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Although first developed in civil litigation, collateral estoppel has been an established rule of federal criminal law at least since this Court’s decision more than 50 years ago in United States v. Oppenheimer (1916), 242 U.S. 85 [37 S.Ct. 68, 61 L.Ed. 161].” Ashe, supra, 397 U.S. at 443, 90 S.Ct. at 1194, 25 L.Ed.2d at — 444 — 475. Collateral estoppel generally refers to the acquittal prong of double jeopardy. However, the United States Supreme Court has held that double jeopardy does not apply to cases involving inconsistent verdicts and, by implication, hung juries. In Dunn v. United States (1932), 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356, 358-359, the United States Supreme Court found that consistency in a verdict was not required and that where offenses were separately charged in counts of a single indictment, even though the evidence was the same in support of each, an acquittal on one count could not be pleaded as res judicata as to the other. The court found that the sanctity of the jury verdict should be preserved and could not be upset by speculation or inquiry into such matters to resolve the inconsistency. The court stated: “ ‘The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.’ ” Id., quoting Steckler v. United States (C.A.2, 1925), 7 F.2d 59, 60. This principle of law was further affirmed in United States v. Powell (1984), 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461, where a defendant was charged with using the telephone to facilitate crimes of conspiracy and drug possession, crimes that were alleged in the indictment separately from the telephone solicitation charge, a compound indictment. In that case, a jury found the defendant not guilty of possession or conspiracy, but guilty of telephone solicitation to distribute cocaine. Even though possession and conspiracy were predicate felonies, the United States Supreme Court still held that the inconsistent verdicts could not be overturned. The court refused to weaken the Dunn rule, finding that “a criminal defendant already is afforded sufficient protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts.” Id. at 67, 105 S.Ct. at 478, 83 L.Ed.2d at 470. The court rejected attempts by the lower courts of appeals to carve out exceptions to the Dunn case, and rejected defendant’s -argument that the principles of res judicata or collateral estoppel should apply to verdicts rendered by a single jury where the jury acquitted the defendant of the predicate felony. The court held: “We believe that the Dunn rule rests on a sound rationale that is independent of its theories of res judicata, and that it therefore survives an attack based upon its presently erroneous reliance on such theories.” Id. at 64, 105 S.Ct. at 476, 83 L.Ed.2d at 468. The court analyzed why inconsistent verdicts may work against the government as well as the defendant, and thus should not be used to grant the — 445 — defendant a windfall when one cannot know the basis of the jury’s conclusions. The court therefore decided that the jury verdicts must be accepted as they stand. To do otherwise is too speculative. The court concluded: “We also reject, as imprudent and unworkable, a rule that would allow criminal defendants to challenge inconsistent verdicts on the ground that in their case the verdict was not the product of lenity, but of some error that worked against them. Such an individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury’s deliberations that courts generally will not undertake. * * * But with few exceptions, * * * once the jury has heard the evidence and the case has been submitted, the litigants must accept the jury’s collective judgment. Courts have always resisted inquiring into a jury’s thought processes * * *; through this deference the jury brings to the criminal process, in addition to the collective judgment of the community, an element of needed finality.” Id. at 6.6-67, 105 S.Ct. at 477-478, 83 L.Ed.2d at 469-470. The United States Supreme Court has applied the same principles to hung juries. In Richardson v. United States (1984), 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242, the court reiterated its determination that neither a jury’s failure to reach a verdict nor a trial court’s declaration of a mistrial following a hung jury is • an event that terminates jeopardy so as to bar a second trial on the mistried charges. Id. at 325, 104 S.Ct. at 3086, 82 L.Ed.2d at 251. The court explained the logic behind this conclusion as follows: “ ‘The double-jeopardy provision of the Fifth Amendment, however, does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed. There may be unforeseeable circumstances that arise during a trial making its completion impossible, such as the failure of a jury to agree on a verdict. In such event the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again. * * * What has been said is enough to show that a defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.’ ” Id., 468 U.S. at 324-325, 104 S.Ct. at 3085-3086, 82 L.Ed.2d at 250, quoting Wade v. Hunter (1949), 336 U.S. 684, 688-689, 69 S.Ct. 834, 836-837, 93 L.Ed. 974, 978. The Richardson court reasoned that double jeopardy does not bar retrial on mistried counts unless there is some event that terminates the original jeopardy. — 446 — Id., 468 U.S. at 325, 104 S.Ct. at 3086, 82 L.Ed.2d at 251. The court specifically-held that mistrial following a hung jury was not such an event. Having established that nothing in the federal Constitution bars a retrial after a hung jury, we now turn our attention to our own pronouncements on this issue. The issue of inconsistent verdicts in response to different counts was addressed in State v. Adams (1978), 53 Ohio St.2d 223, 7 O.O.3d 393, 374 N.E.2d 137, vacated on other grounds (1978), 439 U.S. 811, 99 S.Ct. 69, 58 L.Ed.2d 103. The court, in approving and following Browning v. State (1929), 120 Ohio St. 62, 165 N.E. 566, stated, at paragraph two of the syllabus: “The several counts of an indictment containing more than one count are not interdependent and an inconsistency in a verdict does not arise out of inconsistent responses to different counts, but only arises out of inconsistent responses to the same count. (Browning v. State, 120 Ohio St. 62 [165 N.E. 566], approved and followed.)” That proposition was reaffirmed in State v. Brown (1984), 12 Ohio St.3d 147, 12 OBR 186, 465 N.E.2d 889, and most recently approved and followed in State v. Hicks (1989), 43 Ohio St.3d 72, 78, 538 N.E.2d 1030, 1037. In Brown, the defendant was indicted on three counts of rape, one count of gross sexual imposition, one count of kidnapping, and one count of robbery. The jury found the defendant not guilty by reason of insanity as to two counts of rape and guilty as to the remaining counts in the indictment. Clearly that fact pattern involved common issues to all counts. The defendant argued that the jury could not consistently find the defendant sane as to some actions and insane as to others. Noting that the defendant did not contend that an inconsistency existed within a single count, the court found that the testimony in the case was that the defendant’s “borderline personality” could fade “in and out of sanity.” Id. at 149, 12 OBR at 188, 465 N.E.2d at 892. The court held that the finding that the defendant was insane as to two of the rape charges but sane as to the remaining charges did not require reversal of the convictions. Turning to the fact pattern involved in this case, this case clearly fits within the parameters of Broum. The defense argues that because the defendant was found not guilty of a lesser included offense in Count One, that finding is res judicata or collateral estoppel as to Count Two. However, a basic understanding of how a case is sent to the jury and how the counts are presented to the jury is key to understanding why the Brown holding is still good law. The jury in this case was instructed that the case involved two counts. Count One charged the appellee with aggravated murder with prior calculation and design. Count Two charged the appellee with felony murder based on aggravat — 447 — ed robbery. The lesser included offenses tracked each separate count and were not dependent on each other. In instructing the jury and reviewing the verdict forms on the track involving Count One, aggravated murder with prior calculation and design, the judge instructed the jury to first consider aggravated murder by prior calculation and design. The court then instructed on the lesser included charge of murder to Count One: “If you find the State failed to prove the element of prior calculation and design in the charge of aggravated murder, you may consider the lesser offense of murder as to Count 1.” (Emphasis added.) The court later read the related verdict form to the jury as follows: “We the jury being duly impaneled upon our oaths and the law and evidence in this case, and having found the defendant Mark E. Lovejoy not guilty of aggravated murder as he is charged in Count 1 of the indictment, do further find the defendant guilty of murder.” The court next instructed on the second lesser included charge to Count One: “If you find that the State failed to prove purpose beyond a reasonable doubt that the defendant purposely caused the death of Nathan Curry, you must find the defendant not guilty of aggravated murder and not guilty of murder as to Count 1. You may then consider involuntary manslaughter.” (Emphasis added.) The court later read the related verdict form to the jury as follows: “We the jury being duly impaneled and upon our oaths and law and evidence in this case, and having found the defendant Mark E. Lovejoy not guilty of aggravated murder, and not guilty of murder as he is charged in Count One of the indictment, do further find the defendant guilty of involuntary manslaughter.” Count Two, felony murder based on the aggravated robbery, had a similar track: “The defendant is charged with aggravated murder in Count 2 of the indictment. Before you can find the defendant guilty in Count 2, you must find beyond a reasonable doubt that on or about the 16th day of August, 1993, in Franklin County, Ohio the defendant purposely caused the death of Nathan Curry while the defendant was committing or attempting to commit or fleeing immediately after committing or attempting to commit aggravated robbery.” The jury was asked to consider lesser included offenses of murder and involuntary manslaughter to the Count Two track, premised on aggravated robbery. The jury instructions and verdict forms paralleled the format of Count One. — 448 — The jury, in closing arguments, jury instructions and verdict forms, was advised that it had two tracks to consider, Count One, premised on aggravated murder with prior calculation and design and the two lesser included offenses based on Count One, and Count Two, felony murder while committing an aggravated robbery with its two lesser included offenses. The lesser included offenses merely flowed from the original. The jury was not charged with only one set of lesser included offenses that could apply to either aggravated murder with prior calculation and design or felony murder based on the robbery. They were given two different sets of lesser included offense verdict forms. To find that collateral estoppel applies because the wording of the lesser included offenses of “murder” was the same in each count is to ignore the simple realities of the way the case went to the jury. Once the jury decided that prior calculation and design was not proven by the state, it could be considered logical for the jury to acquit the defendant of all charges in the track of Count One as the flow of the verdict forms guided them in that direction. The jury consistently hung on all charged offenses in the track of Count Two, which involved the issue of robbery and its lesser included offenses. However, speculation as to why the jury failed to reach a verdict on the felony murder count only demonstrates the difficulty with trying to analyze a jury’s decision. The Dunn court’s pronouncement that it is best to just “accept the jury’s collective judgment” so as to preserve the sanctity of the jury process is still sound public policy. Powell, 469 U.S. at 67, 105 S.Ct. at 478, 83 L.Ed.2d at 470. This fact pattern is clearly distinguishable from State v. Liberatore (1983), 4 Ohio St.3d 13, 4 OBR 11, 445 N.E.2d 1116. In Liberatore, the victim was killed by a bomb placed in the car next to his, which was detonated by remote control. The defendant was charged with aggravated arson and aggravated murder with the aggravated arson as the predicate felony. The jury acquitted the defendant of aggravated arson and hung on the aggravated murder charge. The court found that since aggravated arson was the predicate crime for the aggravated murder, a judgment of acquittal on the aggravated arson foreclosed retrial of the defendant on aggravated murder. Id. at 15, 4 OBR at 13, 445 N.E.2d at 1118.1 In this case, had the jury acquitted the appellee of the robbery, and hung on Count Two, felony murder based on the aggravated robbery (an inconsistent verdict within a count), Liberatore would clearly apply and double jeopardy — 449 — would attach. Robbery was the underlying predicate for Count Two.2 However, Libemtore did not have two distinct tracks as in this case. Murder, as a lesser included offense of each count, is not the same as a predicate felony for an aggravated murder conviction. Thus, there is no need to reach the issues raised in Libemtore because Libemtore involved inconsistencies within the same count, an entirely different issue from that involved in this fact pattern. In conclusion, we see no reason to distinguish the fact pattern in this case from that in Brown. Browning, Adams, Brown, and Hicks remain good law and resolve the issues in this case. Therefore, we hold that when a jury finds a defendant not guilty as to some counts and is hung on other counts, double jeopardy and collateral estoppel do not apply where the inconsistency in the responses arises out of inconsistent responses to different counts, not out of inconsistent responses to the same count. CROSS-APPEAL The appellate court held that the appellee had to be retried on the charge of having a weapon under disability because it was error for the trial court to reopen the evidence sua sponte after closing arguments and take judicial notice of prior proceedings in an earlier case to supply a crucial fact that the state had failed to prove. The state did not appeal the appellate court’s ruling on the judicial notice issue. However, the appellate court further found that in light of its resolution of the appellee’s first two assignments of error, the appellee’s third assignment of error which challenged the sufficiency of the evidence was moot and remanded the case to the trial court for a retrial on that charge. The appellee challenges that remand and argues that once the erroneous evidence was omitted, the court of appeals was obligated to review the remaining evidence and pass on its sufficiency. App.R. 12(A)(1) provides: “On an undismissed appeal from a trial court, a court of appeals shall do all of the following: ‡ ‡ ‡ “(c) Unless an assignment of error is made moot by a ruling on another assignment of error, decide each assignment of error and give reasons in writing for its decision.” — 450 — Because the appellate court ruled on the judicial notice issue as it did, the issue of the sufficiency of the evidence was not moot. In fact, the sufficiency of the remaining evidence then became the key issue. To simply remand the weapon under disability charge for a retrial would give the state a “second bite at the apple” and a chance to present evidence it failed to offer at the first trial. After determining that the evidence of the conviction was erroneously considered by the trial judge, the appellate court should have reviewed the remaining evidence to determine whether it was sufficient to support a conviction. While the court of appeals found that the assignment of error regarding sufficiency of the evidence was moot, we find that the court did in fact pass on this issue when it stated at page 18 of the opinion, “If the court had not taken judicial notice of this critical fact, the documents offered by the state were insufficient to prove that appellant was under a disability.” Therefore, because that assignment of error was resolved, the decision to remand was improper. In this case, the Double Jeopardy Clause applies. In fact, this is what the Double Jeopardy Clause was intended to prevent. If the state fails to present sufficient evidence to prove every element of the crime, it should not get a second opportunity to do that which it failed to do the first time. Therefore, the charge of having a weapon while under disability is dismissed. Accordingly, we reverse the judgment of the court of appeals and reinstate the judgment of the trial court as to the felony murder, aggravated robbery, and kidnapping convictions. Further, we dismiss the charge of having a weapon under disability. Judgment reversed and cause dismissed in part. Douglas, Resnick and F.E. Sweeney, JJ., concur. Moyer, C.J., Pfeifer and Cook, JJ., dissent. Footnotes [1] Justice Holmes dissented, arguing that since the defendant was not accused of placing the bomb himself, but rather was accused of being part of the organized crime murder scheme, the jury could have found the defendant not guilty of aggravated arson, but still guilty of being part of the conspiracy that directed the murder. Id. at 15-16, 4 OBR at 13-14, 445 N.E.2d at 1118-1119. [2] The Libemtore decision is, however, contrary to the United States Supreme Court’s holding in Dunn, which did not reverse a conviction even though the defendant was found not guilty of the predicate offense.