State ex rel. Russell v. Perkins

• Decision Date: 25 April 1973
• Citation: 34 Ohio St.2d 48,295 N.E.2d 661
• Parties: , 63 O.O.2d 85 The STATE ex rel. RUSSELL, Appellant, v. PERKINS, Judge, et al., Appellees. No 72-657.
• Court: Ohio Supreme Court

Page 48

34 Ohio St.2d 48

295 N.E.2d 661, 63 O.O.2d 85

The STATE ex rel. RUSSELL, Appellant, v. PERKINS, Judge, et al., Appellees.

No 72-657.

Supreme Court of Ohio.

April 25, 1973.

Syllabus by the Court

1. The double jeopardy provision of the Fifth Amendment to the Constitution of the United States includes the doctrine of collateral estoppel, and is made applicable to the states through the Fourteenth Amendment. (Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, followed.)

2. Where a criminal defendant is separately indicted for various crimes occurring at approximately the same time and place, and, upon trial, is acquitted on one indictment, a writ of prohibition will not issue to enjoin a later prosecution upon another separate indictment, where the jury's general verdict of acquittal at the earlier trial could reasonably have been predicated upon an ultimate issue of fact not presented in the later indictment and trial. (Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, followed.)

James A. Russell, appellant herein, was separately indicted for seven offenses allegedly committed by him on October 16, 1971, during a labor dispute in Carroll County. In January 1972, appellant was tried in case No. 2209 upon an indictment charging, in pertinent part, that he 'did unlawfully, willfully and maliciously destroy or injure a certain motor vehicle of the value in excess of $100, the property of Ernest Bowman, and not of him the said James A. Russell, by burning the said motor vehicle contrary to Section 2909.01 of the Revised Code of Ohio * * *.'

At trial, the prosecution produced testimony placing appellant at the scene of the crime. The defense presented alibi testimony placing the appellant in Tuscarawas County and away from the scene of the crime. The jury returned a verdict of not guilty.

The Common Pleas Court subsequently proceeded to set a trial date in case No. 2205, which charged that appellant 'did knowingly assault and strike John Pothorski, deputy sheriff of Carroll County, Ohio, while said law enforcement officer was in the lawful performance of his duties during a riot contrary to Section 2901.252, division B of the Revised Code of Ohio * * *.'

The prosecutor, an appellee herein, filed a bill of particulars in both case No. 2209 and case No. 2205 which specified that the alleged crimes took place near 'the scale house' of the James Brothers Coal Company in Carroll County.

In case No. 2205, appellant filed a motion requesting leave to withdraw his plea of not guilty and demanding dismissal of the case on the grounds of double jeopardy and collateral estoppel. The trial court overruled the motion. A motion for reconsideration was likewise overruled.

Thereafter, appellant brought this action for a writ of prohibition in the Court of Appeals to enjoin the trial judge and prosecuting attorney from proceeding to try case No. 2205. The Court of Appeals denied the writ and dismissed the complaint.

Danny D. Johnson, New Philadelphia, for appellant.

Rudolph E. Battista, Pros. Atty., for appellees.

C. WILLIAM O'NEILL, Chief Justice.

In principal support of his action for a writ of prohibition appellant cites the case of Ashe v. Swenson (1970), 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, holding that the principle of collateral estoppel is part of the Fifth Amendment guarantee against double jeopardy, held applicable to the states, through the Fourteenth Amendment, in Benton v. Maryland (1969), 395 U.S. 784, 89 S.Ct. 2056, L.Ed.2d 707.

Ashe, with three others, was charged with seven separate offenses in the armed robbery of a group of poker players. He was tried and acquitted of the robbery of one of the players. Thereafter, the state brought him to trial for robbing another of the players. This time he was convicted. Justice Stewart, for the majority, stated, 397 U.S. at page 446, 90 S.Ct. at page 1195, that the question presented was '* * * simply whether, after a jury determined by its verdict that the petitioner was not one of the robbers, the State could constitutionally hale him before a new jury to litigate that issue again.' The Supreme Court concluded that the state could not.

In reaching that decision, however, the Supreme Court, at page 444, 90 S.Ct. at page 1194, propounded the following:

'The federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to 'examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rationale jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.' The inquiry 'must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings."

Subsequent to Ashe, the Supreme Court decided two cases involving collateral estoppel, applied through the Fifth and Fourteeenth Amendments: Simpson v. Florida (1971), 403 U.S. 384, 91 S.Ct. 1801, 29 L.Ed.2d 549, and Turner v. Arkansas (1972), 407 U.S. 366, 92 S.Ct. 2096, 32 L.Ed.2d 75.

Turner was indicted separately for murder in the course of a robbery, and for robbery. He was acquitted of the murder charge. The state then tried and convicted him on the robbery charge. The Supreme Court stated, at page 369, 92 S.Ct. at page 2098, that 'the crucial question, therefore, is what issues (the) general verdict of acquittal at the murder trial resolved.' The state's theory was that the jury might have believed that petitioner and Richard Turner (no relation to petitioner) robbed Yates, but that Richard actually committed the murder. The United States Supreme Court rejected that theory, stating that the trial judge had correctly charged that "all persons being present, aiding and abetting * * * in any felony, shall be deemed principal offenders * * *." The Supreme Court continued: 'Had the jury found petitioner present at the crime scene, it would have been obligated to return a verdict of guilty of murder even if it believed that he had not actually pulled the trigger.' The Supreme Court held that 'the only logical conclusion is that the jury found him not present at the scene of the murder and robbery, a finding which negates the possibility of a constitutionally valid conviction for the robbery of Yates.'

The Simpson case involved a multiple robbery and separate indictments, as in Ashe. Simpson was first convicted, then upon retrial acquitted of murdering a store manager. He was then tried and convicted of robbing a patron. The state argued that the first conviction estopped Simpson from asserting...