State v. Today's Bookstore, Inc. and William Nichols
| Decision Date | 23 March 1993 |
| Docket Number | 93-LW-0733,13153 |
| Parties | STATE OF OHIO, Plaintiff-Appellant v. TODAY'S BOOKSTORE, INC. and WILLIAM NICHOLS, Defendants-Appellees Case |
| Court | Ohio Court of Appeals |
JOHN SCACCIA, CITY PROSECUTOR'S OFFICE, 303 WEST THIRD STREET DAYTON, OH 45402, Attorney for Plaintiff-Appellants.
LOUIS HOFFMAN, 318 W FOURTH ST, DAYTON OH 45402 and H. LOUIS SIRKIN, 105 WEST FOURTH STREET, SUITE 920, CINCINNATI, OH 45202, Attorneys for Defendants-Appellees.
The City of Dayton appeals, pursuant to leave of court, from an order dismissing with prejudice the cases against William Nichols and Today's Bookstore (referred to collectively as "Nichols") for pandering Obscenity. The trial court ruled that: (1) a confidential memorandum from the chief prosecutor for the City of Dayton that had been "leaked" to a local television station, WDTN contained Brady material that must be disclosed to the defense, because, upon its disclosure to the press, it had lost whatever claim of attorney-client privilege it might have had; (2) the memorandum must be turned over to the defense; (3) the chief prosecutor was a material witness and was therefore subject to a defense subpoena requiring him to testify regarding his conclusions about past obscenity cases; (4) the chief prosecutor must be removed from the case because he was subpoenaed to be a witness for the defense. When the City of Dayton took the position that it could not and would not substitute counsel to try this case on the day of trial, the trial court-dismissed these cases with prejudice, as a sanction for the City's failure to comply with the trial court's ruling.
We agree with the City of Dayton that the trial court erred when it ordered the City to substitute counsel on the day of trial. Therefore, we reverse the judgment of the trial court and remand this cause for trial.
Defendants-appellees Nichols and Today's Bookstore were each charged in Dayton Municipal Court with two counts of pandering Obscenity on May 17, 1990, and the cases were consolidated for trial. The defendants filed waivers of their right to speedy trial, and the consolidated case originally proceeded to trial on April 15, 1991. After two days of jury selection, the trial court declared a mistrial because of alleged outside interference with prospective jurors. The case was re-set for trial on October 7, 1991.
On July 9, 1991, the chief prosecutor for the City of Dayton, Vincent Popp, sent a confidential memorandum regarding past obscenity cases to the City law director, Anthony Sawyer; the memorandum was intended for transmittal to the city manager. Within a day or so WDTN, also known as Channel 2 News, had obtained a copy of that memorandum from an unnamed source; the trial court commented that the memorandum had been "leaked" to the media. The news report, televised the same day that Channel 2 received the memo, showed an unreadable copy of the first page of the memorandum and quoted some of the figures and conclusions given by Popp, the author of the memo. Specifically, the news report listed in print on the screen some of the costs of prosecuting four prior obscenity cases in Dayton and printed on screen Popp's conclusion that, if the trial court were to give the same jury instructions with regard to the community standard for obscenity in the upcoming trials "it would not be prudent to expect different results" in the cases that remained to be tried (emphasis in original).
On October 9, after almost three days of jury selection and after the jury had been impaneled, and three months after the news story about the memorandum had been broadcast, the defense filed a motion for the State to produce Brady material, specifically, the July 9 memorandum from the chief prosecutor.
The City opposed the motion, claiming that the document was protected by the attorney-client privilege and, furthermore, that it did not contain Brady material. The trial court ordered that the document be turned over to the court for an in camera inspection; after the inspection, the court delivered the document to defense counsel. After reviewing the document, defense counsel indicated an intent to subpoena Popp, who was trial counsel for the City, as a defense witness. The trial court ruled that Popp could be called as a defense witness and that he must, therefore, be removed from the case. The trial court wanted another prosecutor to take over the case that same day; when the City took the position that no other prosecutor could take up the case on such short notice, the trial court dismissed the case with prejudice. The City of Dayton sought leave to appeal pursuant to R.C. § 2945.67(A) and App.R. 5(A), and this court granted leave to appeal.
Nichols, before addressing the merits of the City of Dayton's Assignments of Error, first argues that this appeal should be dismissed because jeopardy attached at the time the jury was impaneled, so that deciding this appeal would be a purely advisory "futile act" because re-trial is barred by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.
Whether jeopardy had attached is only the first question in the analysis. More importantly, the question is whether a re-trial is barred in the case before us where, before evidence was taken, the trial court dismissed the case as a sanction for the City's having failed to substitute counsel on the day of trial after the trial court had ordered the City's trial counsel to testify for the defense.
In United States v. Scott (1978), 537 U.S. 82, 92, 98 S.Ct. 2187, 2194, 57 L.Ed.2d 65, 75, the United States Supreme Court held that jeopardy does not attach if the proceedings are terminated "favorably to the defendant on a basis not related to guilt or innocence." In Scott, the trial court had granted, at the close of all the evidence, the defendant's motion to dismiss the indictment on prejudicial pre-indictment delay. The Supreme Court, specifically overruling a line of cases that held that dismissal of the indictment after the jury was sworn amounted to an acquittal and barred re-trial, held that the Double Jeopardy Clause does not bar re-trial when the defendant deliberately sought termination of the proceedings on a basis unrelated to guilt or innocence. The dismissal was treated instead as a mistrial that does not bar a second prosecution.
Similarly, the Ohio Supreme Court in State v. Broughton (1991), 62 Ohio St.3d 253, 263, held:
* * * where jeopardy has attached during the course of a criminal proceeding, a dismissal of the case may be treated in the same manner as a declaration of a mistrial and will not bar a subsequent trial when: (1) the dismissal is based on a defense motion, and (2) the court's decision in granting such motion is unrelated to a finding of factual guilt or innocence.
62 Ohio St.3d at 266 (emphasis added). And in State v. Malinovsky (1991), 60 Ohio St.3d 20, cert. den. 60 U.S.L.W. 3403, a divided Ohio Supreme Court, citing Scott, held that the Double Jeopardy Clause does not bar a retrial "where a criminal prosecution is dismissed for a failure to prosecute after the trial court has erroneously required the state to proceed with trial despite the state's properly filed Crim. R. 12(J) appeal." Malinovsky, 60 Ohio St.3d at 24.
We note first that the trial court's decision in the case before us was unrelated to a finding of guilt or innocence. No testimony had been heard, and the court did not make any ruling, such as a ruling that an indictment is insufficient as a matter of law, that would act as a determination that the defendants could not be convicted. Rather, the trial court dismissed the case after the defense subpoenaed the prosecuting attorney, the trial court ordered the prosecutor to testify four the defense and further ordered the City to substitute trial counsel, and the City took the position that it could not and would not do so on the day of trial.
The defense, while not directly requesting a dismissal, made the motion to compel production of Brady material and subpoenaed the prosecuting attorney directly after the jury was impaneled. The defense did not object when the trial court stated that it would be necessary to dismiss the case if the defense proceeded to subpoena Popp and the City declined to substitute counsel. If, as the City contends, it had a right to decline to substitute counsel on the day of trial, then the dismissal was more the result of Nichols' unreasonable demand that the City's trial counsel be disqualified on the day of trial, than it was the result of any intransigence on the part of the City.
The primary consideration is that it is the defendant who had control over the course of events. See United States v. Dinitz (1976), 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267. The bar against Double Jeopardy is absolute only when there has been a dismissal or acquittal based on a factual determination of innocence. Malinovsky, 60 Ohio St.3d at 23; Scott, 537 U.S. at 94, 98 S.Ct. at 2195-96, 57 L.Ed.2d at 76.
Therefore, we conclude that the Double Jeopardy clause does not bar the prosecution of Nichols and Today's Bookstore.
The City's First Assignment of Error is as follows:
THE LOWER COURT COMMITTED PREJUDICIAL ERROR WHEN IT RULED THAT THE MEMORANDUM OF JULY 9, 1991, PREPARED BY THE CHIEF PROSECUTOR AND MARKED CONFIDENTIAL, WAS NOT SUBJECT TO THE ATTORNEY-CLIENT PRIVILEGE BECAUSE THE MEDIA HAD GAINED ACCESS TO IT.
Infecting virtually all of the Assignments of Error is the issue of whether Popp's memorandum was relevant, probative evidence. In our view, it was not.
Nichols presumably wanted to show that the City's chief prosecutor and present trial counsel had...
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