State v. Fletcher

• Decision Date: 07 May 1970
• Citation: 22 Ohio App.2d 83,259 N.E.2d 146
• Parties: , 51 O.O.2d 183 The STATE of Ohio, Appellant, v. FLETCHER, Appellee. The STATE of Ohio, Appellant, v. FLETCHER et al., Appellees.
• Court: Ohio Court of Appeals

Page 83

22 Ohio App.2d 83

259 N.E.2d 146, 51 O.O.2d 183

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

The STATE of Ohio, Appellant, v. FLETCHER et al., Appellees.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

May 7, 1970.

Syllabus by the Court

The right against double jeopardy is a basic right fundamental to due process. Both the Fourteenth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution, proscribe a prosecution in Ohio after federal jeopardy for the same act.

John T. Corrigan, Pros. Atty., and Dennis J. McGuire, Cleveland, for appellant.

Henry S. Golland, Cleveland, for appellee Michael Fletcher.

Gerald A. Messerman, Cleveland, for appellee Willie Walker.

DAY, Judge.

In this opinion, Ohio will be referred to as the 'State' and the respective defendants, Michael Fletcher and Willie Walker, as 'defendant Fletcher' and 'defendant Walker' except when the reference is to both. In the latter reference, defendant Fletcher and defendant Walker will be called collectively the 'defendants.'

I.

On February 2, 1967, defendant Fletcher was indicted by the Cuyahoga County Grand Jury for robbery of a financial institution, with a count for the unlawful entry. A plea of former jeopardy and motion to quash the indictment were filed by the defendant.

Also on February 2, 1967, defendant Fletcher and defendant Walker were jointly indicted for robbery of a financial institution, with a count for the unlawful entry. Pleas of double jeopardy and motions to quash the indictment were filed by both defendants.

The trial court considered the pleas well taken, and the motions to quash each of the indictments were sustained with a supporting opinion. ¹

The State appeals in both instances, as it may, under the decision of the Supreme Court of Ohio in City of Euclid v. Heaton (1968), 15 Ohio St.2d 65, 72, 238 N.E.2d 790, 794, where Sections 2945.67 to 2945.70, Revised Code, were held 'constitutionally inoperative to permit an 'appeal' in a criminal case on behalf of the prosecutor from any judgment of a trial court not included within the exceptions enumerated in Section 2945.70, Revised Code.' (Emphasis added.)

These appeals will lie because the enumerated exceptions include 'a motion to quash.'

The appeals were argued together and, because of common issues, are considered together and decided together. We affirm.

II.

The State indictments rest on the same claimed criminal acts which supported charges pressed to a conclusion against the present defendants in the federal jurisdiction for the Northern District of Ohio. Each defendant acquired his status as an Ohio defendant solely because his actions took place where two levels of government were operative, i. e., federal and state. Neither defendant has been tried on the merits in the Ohio system. A description of the federal proceedings follows.

On January 27, 1967, in United States v. Michael Fletcher, deendant Fletcher was charged by information on two counts for violations of Title 18, Section 2113(a) and (c), U.S.Code. In essence, the two counts charged (1) the armed robbery of a savings and loan association whose deposits were insured by the Federal Savings and Loan Insurance Corporation, ² and (2) the receipt and concealment of money stolen from a bank whose deposits were insured by the Federal Deposit Insurance Corporation. ³ Defendant Fletcher plead guilty to the federal counts on January 26, 1697, and was sentenced to fifteen years on the first count and ten years on the second-the sentences to run concurrently.

On February 8, 1967, in United States v. Willie Walker, defendant Walker was charged by the indictment of a federal grand jury with the violation of Title 18, Section 2113(a), U.S.Code. In fine, the charge was armed robbery of a bank whose deposits were insured by the Federal Deposit Insurance Corporation. ⁴ Defendant Walker was found not guilty and an order dismissing the indictment against him was entered on May 1, 1967.

III.

The stance of the facts raises the question of double jeopardy in three aspects-where there have been federal prosecutions resulting in acquittals, convictions or pleas of guilty: ⁵

1. Does the double jeopardy clause in the Fifth Amendment to the United States Constitution, which inhibits successive prosecutions in the federal jurisdiction for the same act, apply to the states through the Due Process clause of the Fourteenth Amendment?

2. If 1. is answered 'Yes,' does the prohibition against state action block successive prosecutions in the state jurisdiction?

3. Apart from impediments in the United States Constitution, does Section 10, Article I of the Ohio Constitution prohibit second state prosecutions in Ohio for the claimed criminal acts which induced the prior prosecutions in the federal jurisdiction?

IV.

There is a deceptive simplicity about the general proposition that no man shall be twice in jeopardy in a criminal case. Therefore, to circumscribe that deception we confine ourselves to the questions formulated earlier in this opinion. This limitation avoids some very difficult problems which, if not central to the successive prosecution issue, are so related to it as to warrant a clear disclaimer. We do disclaim any intimation of opinion with respect to such problems as multiple prosecutions where there are multiple victims of a single criminal act, ⁶ or multiple crimes flowing from an act affecting a single victim, ⁷ or splitting causes or collateral estoppel, or when jeopardy has attached to prevent retrial following discharge of a jury or any other issues not encompassed in the questions stated in III. Such problems may generate constitutional questions of due process quite apart from, or interwined with, double jeopardy, ⁸ depending on the factual situation. In any event, those questions are not before us now for decision.

Confining our rule to those successive prosecutions whose succession would not be but for the circumstance of federalism in our scheme of government, we avoid deciding what is not before us and at the same time essay decision on a problem much more manageable because restricted in scope.

V.

The first question posed in III has been answered recently by the Supreme Court of the United States and is no longer in doubt. The double jeopardy stricture of the Fifth Amendment does apply to the states through the providence of the Due Process clause of the Fourteenth Amendmen. ^{9 9} Benton v. Mayland (1969), 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707.

Since the Benton case reversed a conviction for larceny on a second trial following an earlier acquittal in the same state, it does not reach the question whether the federal proscription against double jeopardy prevents a state prosecution following a federal acquittal or conviction where the only distinction of consequence between the two prosecutions is the source of the prosecuting initiative. Nonetheless, Benton casts a long shadow that makes it necessary to say that the resolution of the second question is in little doubt. That conclusion is supported in part by an analysis of two cases-Bartkus v. Illinois (1959), 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684, and Abbate v. United States (1959), 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729, and in a larger proportion by the inferences to be drawn from Benton itself.

Before Benton, a strong, although not necessarily conclusive, ¹⁰ case could be made for the proposition that Barktus v. Illinois, id., held definitively that an acquittal on a federal charge did not foreclose an indictment and conviction for the same acts in a state jurisdiction.

In Bartkus, the petitioner was first acquitted on a bank robbery charge in the United States District Court for the Northern District of Illinois and then convicted under the Illinois robbery statute on an indictment reciting facts substantially identical to the facts in the prior federal indictment.

The Supreme Court of the United States, invoking an elaborate history to support the proposition that the federal bill of rights was not intended to apply to the states through a shorthand labeled 'Due Process,' Bartkus v. Illinois, supra (359 U.S. at 124-136, 79 S.Ct. at 678-685, 3 L.Ed.2d at 687-694), ¹¹ sustained the state conviction but paid its respects to the 'double sovereignty' issue ¹² by noting that the same history, reflected and confirmed in judicial precedent, revealed that the widely followed practice was to allow second prosecutions 'even though there had been a prior trial by another government.' ¹³ The majority declined to interpose the Due Process clause of the Fourteenth Amendment to bar a second prosecution in 'disregard of a long, unbroken, unquestioned course of impressive adjudication' ¹⁴ and assigned an additional 'practical justification' in support of the declination. The justification was that a rule refusing to bar a second prosecution would prevent displacement of the states' reserve power to act, thus preventing federal action involving a relatively minor penalty from blocking state action to prosecute a much more serious offense rising from the same facts. ¹⁵

The 'no bar' conclusion in Bartkus, Mr. Justice Frankfurter said, was supported alike by '(P)recedent, experience and reason.' ¹⁶

Whatever the uses of history, they provide neither a mechanistic nor universal standard for the application of law. Least of all do they provide an excuse for ignoring the implications of a recent instruction from the highest court in the land. In deciding Benton v. Maryland, supra, Mr. Justice Marshall said, for the majority, that the prohibition against double jeopardy in the Fifth Amendment applied to the states through the Due Process clause of the Fourteenth Amendment. It was, he declared, 'Like the right to trial by jury * * * clearly 'fundamental to the American scheme of justice. '' ¹⁷ Double jeopardy could hardly have been characterized otherwise. For if the...