Harpster v. State of Ohio
| Citation | 128 F.3d 322 |
| Decision Date | 04 November 1997 |
| Docket Number | No. 96-3962,96-3962 |
| Parties | Donald Ray HARPSTER, Petitioner-Appellee, v. STATE OF OHIO, Respondent-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Kirk A. Migdal (argued and briefed), Akron, OH, for Petitioner-Appellee.
Philip D. Bogdanoff, Asst. Prosecuting Atty. (argued and briefed), Office of the Prosecuting Attorney, Akron, OH, for Respondent-Appellant.
Before: LIVELY, KENNEDY, and NORRIS, Circuit Judges.
Respondent-appellant, State of Ohio, appeals the District Court's order granting habeas corpus relief to petitioner-appellee, Donald Ray Harpster, under 28 U.S.C. § 2254. The District Court found that the state court in petitioner's criminal trial declared a mistrial over defense objection without manifest necessity, thereby barring retrial of petitioner on double jeopardy grounds. For the following reasons, we AFFIRM.
In the summer of 1995, petitioner lived with his girlfriend and her three year old daughter. On August 31, 1995, the girlfriend's daughter told her mother that petitioner had touched her private parts. The girlfriend and her daughter moved out of petitioner's house and went to the Children's Hospital Care Center, where the daughter repeated her allegations to a pediatric nurse-practitioner. On September 13, 1995, Akron Police Detective Edward Mathews asked petitioner to accompany him to the police station to make a statement regarding the alleged sexual abuse. After an interview lasting from thirty to forty-five minutes, petitioner denied sexually abusing his girlfriend's daughter and returned home. The investigation continued. On October 2 and again on October 10, 1995, Akron Police detectives gave petitioner polygraph examinations. The results of these examinations indicated deceptiveness, but petitioner still denied the allegations and returned home after each one. Detective Mathews questioned petitioner a fourth time on the morning of October 25, 1995. During this interrogation, Detective Mathews had petitioner read Ohio Revised Criminal Code § 2907.12, which stated that a person convicted of felonious sexual penetration "shall be sentenced to life." During the same interrogation, Mathews suggested to petitioner, but did not promise or guarantee, that there was a possibility that he could receive remedial counseling instead of a life sentence if he confessed. Petitioner then confessed, and was arrested and charged with felonious sexual penetration.
The state criminal trial began on April 15, 1996. During a pre-trial hearing, petitioner moved to suppress his confession as involuntary. Respondent moved to exclude the details of the penalty that attaches to felonious sexual penetration, namely, a mandatory life sentence. The trial court allowed petitioner's confession into evidence. It also issued the following ambiguously worded order:
.... My ruling is that the evidence does not come in. You may have the testimony that he was shown the penalty from the statute and specify what the penalty is short of stating the penalty.
You may have him testify that he was presented with the information so that you may argue whatever you wish to argue from the fact that the Defendant recognized that a certain penalty could be imposed in the particular case.
Joint Appendix at 160. Although the specific boundaries of the order were not clear, both parties and the court agreed that petitioner would not be allowed to introduce evidence that he faced a life sentence.
During opening statements, defense counsel described petitioner's fear of the penalties for felonious sexual penetration. He stated that petitioner confessed only "after hearing and knowing the terrible penalties involved." Joint Appendix at 164. Defense counsel then continued with the statement that petitioner had
realized that at that point if he didn't admit to something he didn't do, he could be punished and imprisoned and all of the things started going through his head, the fact of what happens in prison, that a little guy is likely--is going to get raped and beaten and he was scared.
Id. at 165. At this point, respondent objected to defense counsel's statements. The court summarily overruled the objection. Defense counsel continued to describe petitioner's fear of punishment, stating that he was concerned "that he wasn't going to see his family again, most importantly ... that he wasn't going to see his son Nathan again." Id.
Then the state began its case. When defense counsel cross-examined the prosecution's fourth witness, Detective Mathews, the following exchange took place:
....
....
Joint Appendix at 140-41. The prosecution then moved for a mistrial. Defense counsel objected. The court took the motion under consideration for fifteen minutes, returned to hear arguments from both parties, and then granted a mistrial over defense objections.
As it declared a mistrial, the court explained to defense counsel that its original command that petitioner "may have the testimony that he was shown the penalty from the statute and specify what the penalty is short of stating the penalty," actually meant
that no penalty was to be discussed directly or indirectly before the jury; that you were to be permitted to set the facts and circumstances of the confession so the jury would weigh the credibility to be given to that evidence, nothing was to be said to the mandatory sentencing, the type of sentence, anything on the subject.
Joint Appendix at 194. Finding that petitioner violated its order and irreparably prejudiced the jury, the court declared a mistrial.
A second trial was scheduled for July 29, 1996. On July 19, petitioner moved to dismiss the charge based on a violation of the Double Jeopardy Clause. After hearing arguments from the parties on July 26, the court denied petitioner's motion and expressed additional reasons why it had ordered the mistrial in April. The court then explained to petitioner that the problem at trial actually had been "the cumulative effect of a number of statements made throughout your opening argument leading up to the final question asked of Detective Mathews, which was clearly in violation of the court's instruction." Joint Appendix at 269. The court also stated that it had crafted the original order to allow some description of the conditions surrounding the confession. It concluded that the final question caused incurable prejudice because learning that probation would not be an option would force the jury to conclude that petitioner's fears of jail would necessarily come true upon conviction. The court also stated that it had been "very much mindful of the possibilities of a double jeopardy having attached here." Id. at 271. The judge finished her justification of the mistrial by stating, "I was particularly motivated by your inflammatory statements regarding rape and assault in prison, and that is the reason that I felt a curative instruction would be of no consequence ... so this was a carefully considered decision." Id. at 272. Because Ohio does not allow an appeal from an order denying a motion to dismiss, petitioner sought a stay of proceedings and habeas corpus relief from the United States District Court for the Northern District of Ohio.
The District Court initially stayed the state court proceedings and then granted petitioner's request for a writ of habeas corpus. The District Court based its ruling on three grounds. First it found that the trial court's enforcement of the order excluding evidence of the life sentence violated petitioner's rights under the Due Process Clause of the United States Constitution. Second, it found that petitioner's counsel had not violated the trial court's pre-trial order. Third, the court found that no manifest necessity justified a mistrial and an instruction to the jury would have cured any prejudice. Respondent appeals from the District Court's provision of habeas corpus relief.
Respondent argues that the District Court should not have stayed the state court proceedings against petitioner to allow the litigation of his double jeopardy claim before his second trial. Because petitioner is entitled to have his double jeopardy claim litigated before being retried, we reject respondent's arguments. The Fifth Amendment's Double Jeopardy Clause protects individuals "not against being twice punished, but against being twice put into jeopardy." Ball v. United States, 163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300 (1896). Therefore, "if a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge ... must be reviewable before the subsequent exposure occurs." Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 2041, 52 L.Ed.2d 651 (1977). As this court has explained, the federal adjudication of double jeopardy claims raised on pre-trial petitions for habeas corpus is appropriate when those claims have been raised and rejected in the state trial court and under state law there is no right to interlocutory appeal. See Gully v. Kunzman 592 F.2d 283, 287 (6th Cir.1979), cert. denied, 442 U.S. 924, 99 S.Ct. 2850, 61...
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