Malinovsky v. Court of Common Pleas of Lorain County
| Decision Date | 25 October 1993 |
| Docket Number | No. 92-3691,92-3691 |
| Citation | 7 F.3d 1263 |
| Parties | John MALINOVSKY, Petitioner-Appellee, v. COURT OF COMMON PLEAS OF LORAIN COUNTY, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Daniel G. Wightman (argued and briefed), Smith & Smith, Avon Lake, OH, for petitioner-appellee.
Jonathan E. Rosenbaum (argued and briefed), Office of the Pros. Atty., Elyria, OH, for respondent-appellant.
Before: KENNEDY and SILER, Circuit Judges, and BERTELSMAN, Chief District Judge. *
This is an action for writ of habeas corpus based upon the Double Jeopardy Clause of the Fifth Amendment.
The United States District Court for the Northern District of Ohio, Eastern Division, granted petitioner his requested writ. This matter is now before this court on appeal filed by the appellant/respondent, Court of Common Pleas of Lorain County. We affirm the district court's decision.
The rather involved factual and procedural background of this case is clearly and concisely set forth in District Judge Ann Aldrich's June 12, 1992, memorandum and order. Rather than reinvent the wheel, we rely heavily on Judge Aldrich's opinion. Malinovsky v. Court of Common Pleas Lorain County, Ohio, No. 1:92VC0355, 1992 WL 164433, * 1-* 6 (N.D.Ohio June 12, 1992).
The facts of this case are not contested.
Malinovsky, who is presently free on bond set in the state court, filed this habeas corpus petition on February 29, 1992, pursuant to 28 U.S.C. § 2254. Malinovsky contests the constitutionality of his custody by the State of Ohio and seeks to prevent his retrial after the State aborted its previous trial against him prior to verdict.
Malinovsky has exhausted all of his state remedies, which he must do before petitioning for a writ of habeas corpus. 28 U.S.C. § 2254(b). Also, although Malinovsky is entitled to relief only if he is "in custody," 28 U.S.C. § 2254(a), this prerequisite has been met because Malinovsky is in custody, although he has been released on a personal recognizance bond. Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984). Thus, Malinovsky's petition is properly within the jurisdiction of the district court.
At all times relevant to this case, Malinovsky was the Chief of Police for the City of Lorain. On March 9, 1989, Malinovsky was charged in a four count indictment with: 1) extortion, 2) perjury, 3) obstructing official business, and 4) interfering with civil rights. These four charges all relate to threats allegedly made by Malinovsky to certain Lorain fire inspectors, in order to prevent the fire inspectors from citing a bingo parlor for violations of the fire code. The bingo parlor was operated by Malinovsky's daughter.
The State did not allege that Malinovsky threatened the fire inspectors directly. Rather, the State alleged that Lorain police detective sergeant Wayne Long communicated these threats to Lorain fire inspectors Anthony Cuevas and Roger Thomas at Malinovsky's request. Long threatened to have Cuevas and Thomas falsely charged with criminal conduct if they did not overlook the fire code violations. After Long communicated these threats to Cuevas and Thomas, the two fire inspectors informed their fire chief, who in turn brought Long's conversations to the attention of the Lorain county prosecutor. The county prosecutor then instructed Cuevas and Thomas to tape-record their next conversation with Long. Thomas succeeded in tape-recording a subsequent telephone conversation he had with Long, during which Long implicated Malinovsky as the instigator of the threats.
With this evidence, the State brought criminal charges against Long and Malinovsky. The two defendants were tried separately, with Long's trial first. In large part due to the tape-recorded conversation, Long was found guilty of tampering with evidence. However, Long was subsequently pardoned by Governor Celeste, and continues to serve on the Lorain Police Department.
In its case against Malinovsky, the State also intended to prove Malinovsky's guilt by introducing Thomas's tape-recorded conversation with Long. Besides Thomas's testimony about the tape recording, the State also intended to have Cuevas testify as to what Long said Malinovsky had said. Anticipating that the tape-recording and Thomas's testimony could be construed by the trial court to be inadmissible hearsay, the State made numerous attempts to raise the issue prior to trial; or, more accurately, the State tried to force Malinovsky to raise the issue prior to trial by forcing Malinovsky to file a motion to suppress. 1 For example, the State filed a "notice of intention to use evidence," admittedly in the hope that this notice would cause Malinovsky to file a motion to suppress. Malinovsky, however, did not respond. The State then filed a motion to compel Malinovsky to file objections. That motion was overruled by the trial court.
The State freely admits that its pretrial efforts to raise the hearsay issue were made in order to allow the State to take an immediate appeal, pursuant to Ohio Crim.R. 12(J), in the event that the State received an adverse ruling on the admissibility of the evidence. Rule 12(J) provides in pertinent part:
The state may take an appeal as of right from the granting of a motion for the return of seized property, or from the granting of a motion to suppress evidence if, in addition to filing a notice of appeal, the prosecuting attorney certifies that: (1) the appeal is not taken for the purpose of delay; and (2) the granting of the motion has rendered the state's proof with respect to the pending charge so weak in its entirety that any reasonable possibility of effective prosecution has been destroyed.
As mentioned, however, the State's efforts to obtain a pretrial ruling on the admissibility of its evidence were unsuccessful, so it had no opportunity to take a pretrial appeal pursuant to Rule 12(J).
On June 6, 1989, the Lorain County Court of Common Pleas impaneled a jury and the case proceeded to trial. On June 8, 1989, the State questioned fire inspector Cuevas about the conversation he had had with Long, in which Long allegedly made comments relating to what Malinovsky had said. Malinovsky objected to the introduction of Cuevas's testimony as inadmissible hearsay. The State argued that the testimony fell under the coconspirator exception to the hearsay rule, and was therefore admissible. The trial judge, finding that an insufficient foundation had been laid for admission of the evidence under the coconspirator exception to the hearsay rule, sustained Malinovsky's objection.
A recess followed, and the State filed a notice of appeal to Ohio's Ninth District Court of Appeals, pursuant to Ohio Crim.R. 12(J). The State averred that the trial court's ruling had effectively eviscerated the State's case against Malinovsky, and that the appeal was not being taken for purposes of delay. After the recess, however, the trial court insisted that the State continue with its case, despite the State having filed its appeal.
In compliance with the trial court's direction to proceed, the State called to the witness stand fire inspector Thomas, and attempted to elicit from him testimony about the tape-recorded conversation he had had with Long. Once again, Malinovsky objected to the introduction of Thomas's testimony as inadmissible hearsay, and the State argued that the testimony fell within the coconspirator exception to the hearsay rule. The trial court again sustained Malinovsky's objection, and refused to permit the State to play the tape-recorded conversation for the jury.
Following these rulings, the trial court took another recess in order to hold a conference with the parties in chambers. During that conference, the State took the position that the trial court's evidentiary rulings were tantamount to a suppression and that pending the resolution of the State's appeal, the trial court was deprived of further jurisdiction. The State also maintained, in response to a question from the trial court, that "[t]he State is not in a position to proceed with any degree of prosecution based upon the evidence, evidentiary rulings; and to call any other witnesses would be absolutely futile." Trial transcript at 197-98.
After the State made clear that it would not call any further witnesses, Malinovsky moved for a judgment of acquittal under Ohio Crim.R. 29. In response to Malinovsky's motion for acquittal, the State's attorney declared: "Well, I'd like it clear that I have not rested, and don't feel that anybody can do anything after I filed the notice of appeal at this level." Id. at 199. However, the trial court ruled that "the appeal that has been taken is not a final order; and any attempt to perfect such an appeal is not of any legal force or effect; and, therefore, I hadn't made any order on the prosecuting attorney's office, but I had requested that you proceed with evidence in this case." Id. at 199-200.
Accordingly, the trial court resumed proceedings before the jury, and directed the State to call its next witness. Consistent with the position that it had taken during the conference in chambers, the State declared that it had no further witnesses, but declined to rest. The trial court then retired the jury, and further discussion ensued between the trial court and both parties.
During the course of those discussions, the trial court reminded the State that only one of the four charges against Malinovsky was a conspiracy count (count four), and then asked the State whether it had any separate evidence concerning the other three counts. The State responded that to prove the three other charges, it intended to rely on the same evidence that the trial court had previously ruled inadmissible, so the State could not go forward on those charges, either. Malinovsky reacted by moving for a judgment of acquittal.
The trial court reiterated...
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