598 F.3d 242 (6th Cir. 2010), 08-4353, Colvin v. Sheets

Docket Nº:08-4353.
Citation:598 F.3d 242
Opinion Judge:SUHRHEINRICH, Circuit Judge.
Party Name:Cory COLVIN, Petitioner-Appellee, v. Michael SHEETS, Warden, Ross Correctional Institution, Respondent-Appellant.
Attorney:Elizabeth Ann Matune, Office of the Ohio Attorney General, Columbus, Ohio, for Appellant. Dennis C. Belli, Columbus, Ohio, for Appellee. Elizabeth Ann Matune, Office of the Ohio Attorney General, Columbus, Ohio, for Appellant. Dennis C. Belli, Columbus, Ohio, for Appellee.
Judge Panel:Before: SUHRHEINRICH, McKEAGUE, and KETHLEDGE, Circuit Judges.
Case Date:March 12, 2010
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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598 F.3d 242 (6th Cir. 2010)

Cory COLVIN, Petitioner-Appellee,


Michael SHEETS, Warden, Ross Correctional Institution, Respondent-Appellant.

No. 08-4353.

United States Court of Appeals, Sixth Circuit.

March 12, 2010

Argued: Jan. 19, 2010.

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[Copyrighted Material Omitted]

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Elizabeth Ann Matune, Office of the Ohio Attorney General, Columbus, Ohio, for Appellant.

Dennis C. Belli, Columbus, Ohio, for Appellee.


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.


SUHRHEINRICH, Circuit Judge.

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.

I. Background

A. State Trial Proceedings

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

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Ohio Revised 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:

THE COURT: What are you doing?

[DEFENSE COUNSEL]: I apologize, Your Honor.

THE COURT: Couldn't convince them then. What the hell do you think that kind of impression is going to leave with this jury? We talked about this ahead of time that we were not going to talk about the fact that it was a hung jury the last time. What the heck do you think you've just told these people?

[DEFENSE CO-COUNSEL]: I don't think she told the jury it was a hung jury, Your Honor.

THE COURT: Couldn't reach a verdict the last time. Read it.

[Statement is read by court reporter.]

[DEFENSE CO-COUNSEL]: Didn't say the jury was hung, Judge.

[DEFENSE COUNSEL]: I apologize.

THE COURT: What the heck? How could you interpret that other than that? They couldn't convince them the last time.

[DEFENSE CO-COUNSEL]: I don't know, Your Honor.

THE COURT: Then why are we here a second time. They're going to go back and speculate that we didn't do it the last time. Well gee whiz. Jump in here.

[PROSECUTOR]: It's so incredibly prejudiced, the fairness of this case. I cannot even-

THE COURT: I can't believe this.

[PROSECUTOR]:-express. This is why I addressed this well before we did voir dire, so this would not be a part of anything because I did not want to taint this and have a third trial on this case. I'm not sure what kind of curative instruction you can give.

THE COURT: Without telling what the heck happened the last time. How in the heck do I cure it by just saying oh, just don't pay any attention to that? It's already done. It's already said. In order to explain to them or to make any sense out of any curative instruction I've got to tell them what the hell happened the last time so that we can understand how this curative instruction makes any

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sense. I don't know about you, I can't see it.

[DEFENSE CO-COUNSEL]: If I could, Your Honor, the jury already knows that there was a previous trial in this case.


[DEFENSE CO-COUNSEL]: I think instructing-providing a curative instruction to the jury that they're not to consider the outcome of any other proceedings in reaching a verdict in this case would be appropriate.

THE COURT: I don't think that solves it. What do you think?

[PROSECUTOR]: No. I think that that's the bear [sic] minimum. You can't tell her that she was mistaken because she's not and that would be prejudiced to the defense in putting some kind of impunity on that.

THE COURT: I'm taking the jury out.

The jury was removed from the courtroom and argument continued:

THE COURT: I don't frankly think there's any way to fix it. What do you think?

[PROSECUTOR]: Well, my desire is to try and carve out some way to fix it, but at this moment it escapes me as to how we can give an instruction that would unring the bell in a manner that would then not be prejudicial to the defense because you can't disparage [defense counsel] for making that statement or somehow imply that her statement was wrong without hurting the fairness to their side. And I think at this point now they knew, I agree with [defense co-counsel] in saying that they were aware that there was prior testimony or at best a trial. They can probably very logically conclude that there was a prior trial because the numbers of witnesses have said yeah, I testified before.

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 COURT: We can't either.

[PROSECUTOR]: Or we'll give you the option of saying we don't have to, we have an easy out because that's what happened the last time as well as being something we had said earlier we were not going to talk about and it comes up at the worst possible moment.

[DEFENSE CO-COUNSEL]: Your Honor, if I could just briefly. As we understood the Court's ruling prior to trial and we're certainly cognizant of that, the Court's ruling was we were not to instruct the jury there was a hung jury or that they were somehow bound by the decisions of any previous proceedings. The defense did not say that. [Defense counsel] did not say that in her closing remarks. And simply put, there's not-there's no need to unring the bell. To the extent that there might be any confusion on the part of the jury at this point, a curative instruction which is the preferred remedy as I understand it for the Court of Appeals in any situation where there's confusion to the jury, a curative instruction would be the appropriate remedy at this point.

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 been

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talking 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.

THE COURT: Well, you know, whether it was intentional or not-I don't believe it was intentional, but it's kind of a deal if I drive my car down the street and I hit another car, whether it's an accident or I do it on purpose, the effect is we've got a bunged [sic] up car. And what we have right now is a screwed up case. What else do you want to say, [PROSECUTOR]?

[PROSECUTOR]: I don't disagree with [defense co-counsel] in the fact that the jury can easily conclude that there was another trial. I don't think that hurts either side of the fairness of the trial. But I do not-I cannot disagree stronger that this jury can make any conclusion other than the jury hung last time. We've talked repeatedly since voir dire. The State has, the defense has. And State having to meet a burden of proof, the State having to prove everything. We had to prove all those elements.

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...

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