950 F.2d 1236 (6th Cir. 1991), 91-3392, Glover v. McMackin

Docket Nº:91-3392.
Citation:950 F.2d 1236
Party Name:John GLOVER, Petitioner-Appellee, v. Norris W. McMACKIN, Warden, Respondent-Appellant.
Case Date:November 22, 1991
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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950 F.2d 1236 (6th Cir. 1991)

John GLOVER, Petitioner-Appellee,

v.

Norris W. McMACKIN, Warden, Respondent-Appellant.

No. 91-3392.

United States Court of Appeals, Sixth Circuit

November 22, 1991

Argued Sept. 26, 1991.

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Marla L. Mitchell, argued, briefed, Akron, Ohio, for petitioner-appellee.

Donald G. Keyser, Asst. Atty. Gen., argued, briefed, Office of the Atty. Gen. of

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Ohio, Columbus, Ohio, for respondent-appellant.

Before KENNEDY and NELSON, Circuit Judges, and LIVELY, Senior Circuit Judge.

KENNEDY, Circuit Judge.

Respondent Norris W. McMackin, Warden of the Marion Correctional Institution in Marion, Ohio, at which petitioner is currently serving his sentence, appeals the judgment granting the petitioner a Writ of Habeas Corpus under 28 U.S.C. § 2254. We agree with the District Court that on the record before it the Writ should be granted. However, we believe that Ohio's motion for an evidentiary hearing to supplement the record of the state proceeding should have been granted and shall remand for that purpose.

I.

On April 10, 1985, petitioner John Glover was indicted by the Clermont, Ohio grand jury on three counts of rape. He was alleged to have sexually abused his stepdaughter over the course of several years. The first jury trial commenced on September 4, 1985. The victim was the first witness to testify. On cross-examination, petitioner's defense counsel attempted to establish that the victim had fabricated the rape allegations in an effort to divert attention from her own recently discovered misconduct. During the course of the cross-examination, the prosecution objected eleven times to questions of defense counsel. Four of the objections were on the basis of the questions having been asked and answered. Several of the objections were raised without a stated basis, several were hearsay objections, and the final objection alleged that the defense counsel was badgering the witness. Several of the objections were sustained, but several were overruled. In addition, the court had occasion to conduct four bench conferences off the record. At least two of these appear to have been evidentiary in nature, and the rulings favored the petitioner.

After the cross-examination had proceeded a short time, the trial judge conducted a bench conference, at the request of the prosecution, to address the applicability of the hearsay exclusion to testimony the defense sought to introduce. At the conclusion of the conference, the court allowed defense counsel to proceed with his line of questioning. The defense then elicited testimony from the witness as to certain topics that were discussed in a conversation she had had with her brother concerning the discovery of her alleged misconduct. Defense counsel then inquired about specific statements the witness had made in the conversation, and the witness responded that she could not remember. The following exchange then took place:

Q. What did you tell your brother?

A. Uhm--

Q. Do you remember?

A. I don't remember.

Q. Did you talk about the marijuana and pills that were found?

MR. FERENC (prosecuting attorney): Objection, again.

THE COURT: Objection is sustained, she said she couldn't remember.

Q. Do you remember no part of the conversation, or part of it?

MR. FERENC: Asked and answered, what's he going to do, ask her a hundred times.

THE COURT: Sustained.

Q. After you talked to your brother, the conversation you don't remember anything about, you went and talked to your mother; is that correct?

MR. FERENC: Objection [defense counsel] is trying to badger the witness.

DEFENSE COUNSEL: I'm not badgering anybody.

THE COURT: Gentlemen, this is a mistrial, I will not put up with this kind of conduct, please get your vouchers and you are dismissed for the day. Thank you.

After dismissing the jury, the trial court continued: "I only want to say that we are going to try this case again, and it is going to be heard by me, and I want both of you

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to act like attorneys should, including you Mr. Zugelter (the defense counsel)."

Retrial was scheduled for December 10, 1985. The day before the retrial, petitioner filed a motion to dismiss on the grounds that double jeopardy barred the second trial. The motion was apparently heard and overruled. There is no record of any arguments or any statement or opinion by the trial judge. Petitioner was then convicted of all three counts of rape. Petitioner appealed his conviction to the Twelfth District Court of Appeals for the State of Ohio, raising five assignments of error. The Court of Appeals found the double jeopardy claim "well-taken," and ordered the judgment be reversed and petitioner discharged. The Court of Appeals held that petitioner had not waived or forfeited his Fifth Amendment protections through the failure of defense counsel to timely object to the mistrial, and that retrial was barred by double jeopardy. It stated:

Here, there was no manifest necessity for a mistrial, but, instead, only a desire on the part of the trial court to protect the prosecuting witness from an intense and aggressive, yet lawful, cross-examination. We cannot conclude on the basis of the first trial transcript before us that there was a high degree of necessity for terminating the first trial.

State v. Glover, Clermont County No. CA 85-12-106 at 8, unreported 1986 WL 14968 (December 29, 1986).

The State appealed, and the Ohio Supreme Court reversed the decision of the Court of Appeals on the double jeopardy claim and remanded for consideration of petitioner's other four assignments of error. State v. Glover, 35 Ohio St.3d 18, 517 N.E.2d 900 (1988). The Ohio Supreme Court attached great significance to the visceral circumstances of the trial courtroom, including the demeanor of counsel and the reactions of the witness and the jurors...

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