State v. Calhoun

• Court: Ohio Supreme Court
• Writing for the Court: DOUGLAS; CELEBREZZE; WRIGHT; CLIFFORD F. BROWN
• Citation: State v. Calhoun, 18 Ohio St.3d 373, 481 N.E.2d 624, 18 OBR 429 (Ohio 1985)
• Decision Date: 07 August 1985
• Docket Number: No. 84-1569,84-1569
• Parties: , 18 O.B.R. 429 The STATE of Ohio, Appellant, v. CALHOUN, Appellee.

Page 373

18 Ohio St.3d 373

481 N.E.2d 624, 18 O.B.R. 429

The STATE of Ohio, Appellant, v. CALHOUN, Appellee.

No. 84-1569.

Supreme Court of Ohio.

Aug. 7, 1985.

Syllabus by the Court

Where a trial judge rules midtrial that the statute upon which an indictment is based is unconstitutionally vague and thereupon dismisses the indictment, double jeopardy does not bar retrial.

Appellee, William E. Calhoun, was indicted on one count of voluntary manslaughter in violation of former R.C. 2903.03. ¹ Appellee entered a plea of not guilty. A jury trial commenced on October 18, 1982. After the jury had been impanelled and sworn, and following opening statements and the testimony of two witnesses for the state, the trial court called counsel into chambers, where the following discussion and decision transpired:

"THE COURT: Let the record show we are in chambers. It is now 11:30, and we have been discussing a problem since nine-thirty this morning, and we have arrived at the situation which is as follows:

"The Prosecutor will state that their [sic ] evidence will not establish that the defendant while under extreme emotional stress brought on by serious provocation reasonably sufficient to incite him into using deadly force caused the death of another, and that the defendant's position is equally that his client was not under extreme emotional stress brought on by serious provocation reasonably sufficient to incite him into using deadly force. Is that correct?

"MR. HENSLEY [defense attorney]: That's correct.

"THE COURT: And that is your agreement?

"MR. GOELZ [prosecutor]: That is our agreement.

"THE COURT: The state of the record being as it is and after a prolonged discussion of the impact of State v. Solomon, 66 Ohio St.2d 214, 421 N.E.2d 139, 20 O.O.3d 213, and State v. Muscatello, 55 Ohio St.2d 201, 378 N.E.2d 738, 9 O.O.3d 148, the first syllabus of which reads as follows:

" 'Extreme emotional stress, as described in R.C. Sec. 2903.03, is not an element of the crime of voluntary manslaughter.' [T]his Court's view is that a normal interpretation of the statute under the rules of construction would make this a necessary element to be proved by the Prosecutor. The impact of Muscatello seems to indicate that this is not an element, which renders the statute vague and uncertain as not informing the defendant precisely with what he is charged, and is therefore unconstitutional.

"MR. GOELZ: You want to in your entry get that langue [sic language] in, and after the holding of the Court that the statute is unconstitutional, you will want to dismiss the indictment against the defendant.

"MR. HENSLEY: I don't think you should go that far.

"(Further discussion, off the record)

"THE COURT: Therefore, the Court dismisses the indictment. You prepare an entry and submit it to Jim [defense attorney] for approval.

"There's no point in bringing the jury back, is there?

"MR. GOELZ: Not unless you want to advise them.

"THE COURT: I'll go back to the jury room and tell them, if that's all right with you.

"MR. GOELZ: That's all right.

"(Court was then adjourned)."

The state then appealed this dismissal of the indictment. The court of appeals, 10 Ohio App.3d 23, 460 N.E.2d 294, in a decision rendered on April 18, 1983, found that R.C. 2903.03 was not unconstitutionally vague and thus reversed the decision of the trial court and remanded the cause for further proceedings. This decision was appealed to the Supreme Court of Ohio, and on September 14, 1983, this court overruled the motion for leave to appeal (case No. 83-948).

On January 12, 1984, appellee was again brought before the trial court for arraignment on the same charges and same indictment. A plea of not guilty was entered.

Appellee then filed a motion to dismiss the indictment on the grounds that he had previously been placed in jeopardy for the same charge and on the same indictment. The court, in granting the motion, first determined that the dismissal of the indictment was on the judge's own motion and that the termination of the trial was against the desire of the appellee. The court then held that there was no manifest necessity to dismiss the indictment and that to retry the appellee at this time would violate the appellee's right not to be placed twice in jeopardy. The court reasoned that "[i]f the trial judge had allowed the trial to continue to its conclusion, and applied the prosecutor's interpretation of the statute, then the defendant's [appellee's] right to have his case determined by a 'particular tribunal' would have been protected. If the jury had returned a conviction, the judge could still have found that the statute was unconstitutionally vague and arrested the judgment pursuant to Rule 34 of the Ohio Rules of Criminal Procedure. This decision could have been appealed by the State, and if the appeals court then found that the statute was constitutional, and not vague, could have reinstated the jury conviction. This procedure or approach would have protected the defendant's [appellee's] rights as well as allowed for a determination of the validity of the statute."

On appeal, the decision of the trial court was affirmed, the court of appeals stating that it agreed "with the trial court that jeopardy attached, and * * * that * * * [it adopted the trial] court's well reasoned opinion as rationale for * * * [its] holding."

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

Lee C. Falke, Pros. Atty., and Ted E. Millspaugh, Dayton, for appellant.

James A. Hensley, Dayton, for appellee.

DOUGLAS, Justice.

The issue presented in this case is whether a subsequent retrial of a criminal defendant based on the same indictment is barred by double jeopardy where a trial judge sua sponte rules midtrial that the statute upon which the indictment is based is unconstitutionally vague and thereupon terminates the proceedings. For the reasons that follow, this court holds that double jeopardy principles do not apply so as to bar retrial of the appellee under the facts and circumstances of this case.

It is undisputed that jeopardy had attached in this case prior to the dismissal of the indictment because, at the time of the dismissal, the jury had been impanelled and sworn. Crist v. Bretz (1978), 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24; Downum v. United States (1963), 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100. The question thus becomes whether retrial is barred by the prohibition against double jeopardy.

Appellee asserts essentially that a retrial would violate the Double Jeopardy Clause's prohibition against retrial inasmuch as a reversal of the dismissal would clearly require additional proceedings because there has not been a resolution of the factual elements of the offense charged. The state, in support of its position that retrial should not be barred, relies heavily on language in United States v. Scott (1978), 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65, to the effect that retrial is not barred where the dismissal is premised on legal grounds since no determination of factual guilt or innocence has been made.

It does not appear that the United States Supreme Court has addressed the precise issue presented by the appeal herein. In considering this issue, this court has come to appreciate Justice Rehnquist's observation that " * * * the decisional law in the area [of the Double Jeopardy Clause] is a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator * * *." Albernaz v. United States (1981), 450 U.S. 333, 343, 101 S.Ct. 1137, 1144, 67 L.Ed.2d 275.

In support of its position, the state cites United States v. Scott, supra. Scott, however, is not directly on point. In Scott, the court was concerned with the permissibility of a government appeal following the trial judge's midtrial dismissal on the ground of prejudicial pretrial delay pursuant to motions made by the defendant. In contrast, the dismissal in the instant case was made sua sponte by the trial court. Nonetheless, the analytical approach used by the court in Scott is instructive.

In Scott, the court embarked on a new course of analysis with respect to the Double Jeopardy Clause. First, the Scott court overruled its prior holding in United States v. Jenkins (1975), 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250. Jenkins had held at 370, 95 S.Ct. at 1013 that the government had no right to appeal the dismissal of an indictment after jeopardy had attached since " * * * further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged, would have been required on reversal and remand." (Reaffirmed in Lee v. United States [1977], 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80.)

The court in Scott replaced the Jenkins test with a new test, wherein the public's interest in the government's right to appeal an erroneous conclusion of law is to be balanced against the interest of the defendant in avoiding a second trial. The court in Scott focused on whether the termination of the proceedings had been on a ground related to the defendant's guilt or innocence, and emphasized that the public's interest in assuring that each defendant shall be subject to a just judgment on the merits of the case will be fostered by permitting appeals, and thereafter retrials where appropriate, where the termination of the first trial resulted from an erroneous conclusion of law. Id. 437 U.S. at 101, 98 S.Ct. at 2199. The court reasoned that under such circumstances, the defendant " * * * has not been 'deprived' of his valued right to go to the first jury; only the public has been deprived of its valued right to 'one complete opportunity to convict those who have violated its laws.' " Id. at 100, 98 S.Ct. at 2198.

In analyzing the instant case in the analytical framework set forth in Scott, this court finds that to bar retrial under the factual setting presented herein would...