Colvin v. Sheets
Decision Date | 12 March 2010 |
Docket Number | No. 08-4353.,08-4353. |
Parties | Cory COLVIN, Petitioner-Appellee, V. Michael SHEETS, Warden, Ross Correctional Institution,Respondent-Appellant. |
Court | U.S. Court of Appeals — Sixth Circuit |
COPYRIGHT MATERIAL OMITTED
ARGUED: Elizabeth Ann Matune, Office of the Ohio Attorney General, Columbus, Ohio, for Appellant. Dennis C. Belli Columbus, Ohio, for Appellee. ON BRIEF: Elizabeth Ann Matune, Office of the Ohio Attorney General, Columbus Ohio, for Appellant. Dennis C. Belli, Columbus, Ohio, for Appellee.
Before: SUHRHEINRICH McKEAGUE, and KETHLEDGE, Circuit Judges.
The Double Jeopardy Clause of the Fifth and Fourteenth Amendments bars retrial following a declaration of mistrial unless the defendant consented to the mistrial or there was a "manifest necessity" for the mistrial. In this habeas appeal brought under 28 U.S.C. § 2244, Respondent Michael Sheets challenges the district court's conclusion that the state court unreasonably applied Supreme Court precedent when it determined that the state trial court's declaration of a mistrial was manifestly necessary and therefore not a violation of Colvin's Fifth Amendment rights. We REVERSE.
Colvin was indicted in September 2001 on one count for the crime of felonious assault in violation of Ohio Revised Code Section 2903.11, with specifications, one count for the crime of attempted murder in violation of Ohio Revised Code Section 2923.11, with specifications, and two counts for the crime of having a weapon while under a disability in violation of Ohio Re-vised Code Section 2923.13.1 Colvin pleaded not guilty. Colvin waived a jury trial as to the two counts of possessing a weapon while under a disability, but proceeded to trial on the attempted murder and felonious assault charges in March 2003. Petitioner's co-defendant accepted a plea bargain during the course of the trial and testified against Colvin. The jury was unable to reach a verdict, and the trial court declared a mistrial.
The case then proceeded to retrial in November 2003. Prior to the retrial, the trial judge, defense counsel, and prosecutor agreed that the parties would not refer to the hung jury. Instead, it was agreed that any reference to testimony in the first trial for impeachment purposes would be characterized as "testimony in a prior proceeding."
However, during closing argument, defense counsel stated:
Reality is the State cannot prove this case beyond a reasonable doubt. The State cannot prove his case beyond a reasonable doubt. They don't have it. It's not there. Tried before. They couldn't convince the jury then and they can't do it now.
The prosecutor objected and the following discussion took place out of the hearing of the jury:
[Statement is read by court reporter.]
The jury was removed from the courtroom and argument continued:
But to say that at this point couldn't convince the jury last time, I don't think that those 12 people individually or as a group are going to be able to say well you know, didn't reach a decision, they hung.
The jury can be instructed that they are not to be bound by the outcome of any prior proceedings. That doesn't tell the jury there was a conviction, a mistrial, or an acquittal. It doesn't tell them anything about the previous proceedings. We have not told them what the jury verdict was or was not in a previous proceeding. And what they heard was what they already knew which was there was a prior trial because we've beentalking about it for three days, Your Honor.
So a curative instruction, we submit, would be the appropriate remedy. We certainly did not intentionally violate any orders of this Court. [DEFENSE COUNSEL], I know, did not do that. And a curative instruction will cure any potential confusions the Court is concerned about, Judge.
She suggested we didn't do it last time and here we are now. I don't think there's any group of people that you can pick as 12 or somebody not going to make that conclusion. So I think that that's what I understand making that position as an argument. I think the logic of that escapes me. [DEFENSE CO-COUNSEL]: If I could, Your Honor, the reason it's not just an argument, it's a good judgment argument. This jury knows that they're [sic] the second jury on this case. We didn't add anything to the body of knowledge. It was just it's [sic] argument, it's [sic] argument that we understood and certainly [Defense Counsel] understood to be within the confines of this Court's order.
[THE COURT]: No, it isn't within the confines of the Court. Yes, we did agree that we could talk about the fact that there was a prior case. We all agreed that. No, we never got to the point of saying they couldn't do it the last time and you may have trouble, too. No. That was not a part of the...
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In re Bowman, 119,270
...a sliding scale of scrutiny to be applied by an appellate court reviewing a trial judge's mistrial declaration. See Colvin v. Sheets , 598 F.3d 242, 253 (6th Cir. 2010). The lowest level of scrutiny applies when a trial judge declares a mistrial based on his or her belief the jury cannot re......
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Lynch v. Turner
...of mistrial unless the defendant consented to the mistrial or there was a ‘manifest necessity' for the mistrial.” Colvin v. Sheets, 598 F.3d 242, 244 (6th Cir. 2010). As the Sixth Circuit explained in Colvin: The Double Jeopardy Clause “protect[s] a against governmental actions intended to ......
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Pierson v. State, 06–11–00065–CR.
...that the “great deference” end of the scale is appropriate for improper comments that might cause jury bias. Id.; cf. Colvin v. Sheets, 598 F.3d 242, 246 (6th Cir.2010) (great deference granted to mistrial based on comment referring to prior hung jury). Similarly, we owe the trial court “gr......
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