Fitzgerald v. Lile, 5:89CV2456.

• Decision Date: 13 February 1990
• Docket Number: No. 5:89CV2456.,5:89CV2456.
• Citation: 732 F. Supp. 784
• Parties: John J. FITZGERALD, v. Roger G. LILE, Judge.
• Court: U.S. District Court — Northern District of Ohio

732 F. Supp. 784

John J. FITZGERALD, v.Roger G. LILE, Judge.

No. 5:89CV2456.

United States District Court, N.D. Ohio, E.D.

February 13, 1990.

Thomas W. Fox, New Philadelphia, Ohio, for petitioner.

Scott Mastin, Office of the Tuscarawas County Prosecutor, New Philadelphia, Ohio, for respondent.

MEMORANDUM OPINION

DOWD, District Judge.

I.INTRODUCTION.

This habeas corpus action raises a novel double jeopardy issue.The petitioner was indicted in the Common Pleas Court of Tuscarawas County, Ohio, for aggravated vehicular homicide.The petitioner's first trial ended with the declaration of a mistrial after the jury informed the trial judge that it was unable to reach agreement.After the jury was discharged, it was learned that the jury had apparently agreed to acquit the petitioner of the indicted charge, but was unable to agree on a verdict as to the lesser offense of vehicular homicide.Petitioner contends that retrial on the charge of aggravated vehicular homicide will subject him to double jeopardy in violation of the 5th and 14th amendments to the United States Constitution.¹

This case presents the issue of whether the manifest necessity principles that justify a mistrial and retrial without violating a defendant's double jeopardy rights impose on the trial court the duty to engage in a sua sponte inquiry of the jury concerning the state of its deliberations where the jury has been submitted one or more lesser included offenses.The Court finds no such duty and accordingly declines to issue the writ.

II.BACKGROUND.

On January 12-14, 1989, petitioner was tried on a one count indictment of violating Ohio Revised Code (ORC) Section 2903.06(aggravated vehicular homicide).The trial judge, Judge Roger G. Lile, instructed the jury on the aggravated vehicular homicide charge and on the lesser included offense of vehicular homicide, ORC Section 2903.07.The jurors were given two separate verdict forms, one for the aggravated vehicular homicide charge and one for the vehicular homicide charge.²The jurors commenced deliberations at approximately 9:00 p.m. on January 13, 1989, and after three hours of deliberations, the jury was returned to the courtroom.The trial judge asked the forelady of the jury "if there is a possibility of reaching an agreement in a reasonable amount of time" and prior to any response, cautioned the forelady not to indicate the status of the deliberations.The following exchange then occurred:

BY THE FORELADY:

May I ask one question?

BY THE COURT:

A Yes.

BY THE FORELADY:

Unanimous decision?

BY THE COURT:

Yes.Again, this is a case,—it's a criminal case.My instructions previously given that any decision in the case on any of the questions must be unanimous.Now, don't give me an indication of what is occurring now.My question is,—and I understand it's late,—you have been at this now for over three hours.There are times, I appreciate the fact, that you may not want to come back tomorrow but my question is, is there a possibility with an overnight rest, coming in tomorrow at 8:30, with fresh minds, that you might be able to continue your discussions?

BY THE FORELADY:

No.

BY THE COURT:

May I see counsel?...

The respondent then sent the jury back to the jury room to consider the respondent's question on the issue of whether an "agreement" could be reached.An hour later, the jury returned and the following colloquy took place:

BY THE COURT:

Mrs. Boggiani, my question to you again, at this time, would be that,—is there a possibility that after an additional period of time, that you may be able to reach an agreement in this case?

BY THE FORELADY:

No, Your Honor.

The trial judge declared a mistrial after the two discussions with the forelady of the jury.The petitioner neither moved for nor objected to the grant of a mistrial.However, after the jury was discharged, a completed jury verdict form signed by all twelve jurors and finding the petitioner"not guilty" on the aggravated vehicular homicide charge was discovered in the jury room by the court's bailiff.At a post-trial hearing, the jury forelady testified that the jury deliberated about thirty minutes on the aggravated vehicular homicide charge before signing the not guilty verdict and spent the remaining time debating the lesser included offense of vehicular homicide.

Petitioner does not contend that the trial judge knew that the jurors had decided the aggravated vehicular homicide charge when he dismissed the jurors due to their inability to come to an "agreement."Petitioner argues that the judge's failure to inquire whether the jurors had decided the indicted charge demonstrates that the trial judge lacked adequate grounds for the "manifest necessity" needed to support his decision to declare a mistrial.In his habeas application, petitioner contends that his retrial on the aggravated vehicular homicide charge is barred by his former jeopardy at the January 14, 1989 trial pursuant to the Fifth Amendment to the United States Constitution, made applicable to the states by way of the Fourteenth Amendment.Benton v. Maryland,395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707(1969).³

III.PROCEDURAL BACKGROUND.

Petitioner's application for the writ of habeas corpus is properly before the Court pursuant to 28 U.S.C. Section 2254(b) because the petitioner has exhausted his state court remedies.The trial court denied a motion for acquittal, which was affirmed by Ohio's Fifth District Court of Appeals.Regrettably, the Ohio Supreme Court by a 5-2 vote dismissed petitioner's appeal sua sponte based upon the lack of a substantial constitutional question.

The general rule of non-interference with pending state criminal prosecutions does not apply when there are exceptional circumstances demonstrating the possibility of "both great and immediate" irreparable injury.Younger v. Harris,401 U.S. 37, 46, 91 S.Ct. 746, 752, 27 L.Ed.2d 669(1971).A colorable double jeopardy claim may constitute the threat of injury necessary to fall within the exceptions to Younger.SeeWillhauck v. Flanagan,448 U.S. 1323, 101 S.Ct. 10, 65 L.Ed.2d 1147(1980)(Brennan, J. sitting as Circuit Judge on Application for Stay)(the double jeopardy clause guarantees against twice being subject to the ordeal of trial, as well as punishment);Abney v. United States,431 U.S. 651, 661, 97 S.Ct. 2034, 2041, 52 L.Ed.2d 651(1977);Doe v. Donovan,747 F.2d 42, 44(1st Cir.1984).

DISCUSSION

The petitioner asserts three arguments in support of his habeas petition: (1) the state court of appeals was in error concerning the requirements of accepting partial verdicts; (2) the trial judge lacked the "manifest necessity" to declare a mistrial because he failed to inquire of the jury whether it had reached a verdict on each included offense; (3) the signed but unannounced jury verdict was a final manifestation of the jury's intent to acquit the petitioner of the aggravated vehicular homicide offense.The petitioner argues that to retry him places him in double jeopardy.The Respondent, through the offices of the county prosecuting attorney, has moved to dismiss the petition for the writ of habeas corpus because no final verdict was ever presented to the court in the prior criminal trial and the facts do not demonstrate a violation of the petitioner's 5th amendment double jeopardy rights.

A.The Trial Court's Obligation to Accept a Partial Verdict.

Ohio's Fifth District Court of Appeals denied the petitioner's appeal, reasoning that when a defendant is charged with a single offense with lesser included offenses, a verdict cannot be reached until there is agreement on the indicted offense and the lesser included offenses.State of Ohio v. Fitzgerald,No. 89-AP-020016, slip op. at 5, 1989 WL 100118(Ohio Ct.App.August 22, 1989).In a case involving multiple indicted offenses, the Sixth Circuit held that there was no manifest necessity to grant a mistrial where the jury announced in open court that it had reached agreement on four out of five of the charged offenses.Wallace v. Havener,552 F.2d 721(6th Cir.1977), cert. denied,434 U.S. 940, 98 S.Ct. 433, 54 L.Ed.2d 300(1977).In Wallace, the trial judge denied a defense counsel request that the jurors be instructed to return the four verdicts they had reached.The Sixth Circuit affirmed the district court's grant of habeas relief to prevent the defendant's retrial on the four offenses that the jurors agreed based upon double jeopardy because the trial judge should have accepted the partial verdicts.Wallace,552 F.2d at 724.

The Ohio Court of Appeals decision cites no authority for the proposition that a jury cannot render a partial verdict in a single count indictment when there are lesser included offenses.Other courts, when considering the issue, focus upon the manifest necessity grounds for the trial judge's decision to grant a mistrial in that setting.See, for example, Stone v. Superior Court of San Diego County,31 Cal.3d 503, 183 Cal.Rptr. 647, 646 P.2d 809(1982);People v. Hickey,103 Mich.App. 350, 303 N.W.2d 19(1981).

B.The Nature of the Trial Court's Duty to Inquire as to the Status of Deliberations Concerning Included Offenses.

The petitioner's post-discharge demand that the trial court accept the signed but unannounced jury verdict form as a partial verdict is anchored in the claim that the trial judge lacked the "manifest necessity" to declare a mistrial because the judge did not poll the jury concerning the deliberations on the aggravated manslaughter charge.

The Court now considers the trial judge's duty, if any, to inquire when lesser included offenses have been submitted to the jury before granting a mistrial.The test of a trial court's discretion to grant a mistrial was first announced in United States v. Perez,22 U.S.(9 Wheat) 579, 6 L.Ed. 165(1824):

We think that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving

...