State v. Widner

• Court: Ohio Supreme Court
• Writing for the Court: FRANK D. CELEBREZZE
• Citation: State v. Widner, 68 Ohio St.2d 188, 429 N.E.2d 1065, 22 O.O.3d. 430 (Ohio 1981)
• Decision Date: 30 December 1981
• Docket Number: No. 81-100,81-100
• Parties: , 22 O.O.3d 430 The STATE of Ohio, Appellee, v. WIDNER, Appellant.

Page 188

68 Ohio St.2d 188

429 N.E.2d 1065, 22 O.O.3d 430

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

No. 81-100.

Supreme Court of Ohio.

Dec. 30, 1981.

Syllabus by the Court

A trial judge properly exercises his discretion in ordering a mistrial, sua sponte, when: (1) the defendant and all his lawyers have been found in contempt of court and removed from the courtroom; (2) the defendant himself requests a trial before another judge; and (3) a codefendant's trial would be immeasurably delayed by the granting of a continuance. The defense of former jeopardy will not then bar a second trial before a different judge. (United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267, followed and applied.)

Roger Widner (appellant) and his brother, Robert Widner (co-defendant), were each indicted on two counts of attempted murder of a Cleveland police officer and a private security guard, in violation of R.C. 2903.02 and 2923.02.

Since the trial court overruled a defense motion to sever ^* the trials, appellant and the co-defendant were scheduled to be tried together.

After the jury had been impaneled and sworn, and opening statements given, appellant's lawyers and the trial judge reached an impasse concerning which lawyer would conduct appellant's defense. This colloquy between the judge and defense counsel concluded when the court found both lawyers in contempt of court and had them removed from the courtroom and placed in the custody of a deputy sheriff.

Upon observing this, appellant exclaimed, "Contempt, too. * * * You are not going to burn me for something I didn't do. I will not come in front of you again." (Emphasis added.)

The trial judge obligingly found appellant in contempt of court and had appellant removed from the courtroom. The trial court ordered a mistrial as to appellant, but proceeded with the prosecution of the co-defendant. Subsequently, appellant's case was assigned to another judge.

When the proceedings resumed before a new trial judge, appellant entered a plea of no contest to both counts of attempted murder, was found guilty, and, accordingly, sentenced.

The Court of Appeals upheld appellant's conviction finding that the proceedings before the second judge had not violated his protection against double jeopardy, in contravention of the Fifth and Fourteenth Amendments to the United States Constitution.

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

John T. Corrigan, Pros. Atty., and John B. Gibbons, Cleveland, for appellee.

Marillyn F. Damelio, Lakewood, for appellant.

FRANK D. CELEBREZZE, Chief Justice.

The critical issue in this case is whether the original trial judge erred in declaring, sua sponte, a mistrial at appellant's first trial, in view of the fact that: (1) both of appellant's defense lawyers had been found in contempt of court and removed from the courtroom; (2) appellant himself expressed a desire to be tried before another judge; (3) appellant, too, had been found in contempt of court and removed from the courtroom; and (4) appellant's co-defendant was ready to go to trial on the merits before the same judge at the time the three foregoing contempt citations were effected.

It is undisputed that jeopardy attached in the case at bar prior to the declaration of a mistrial because, at the time the mistrial was ordered, the jury had already been impaneled 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.

However, under controlling precedent of the United States Supreme Court, the question of whether, under the double jeopardy clause, there can be a second trial, after a mistrial has been declared, sua sponte, depends on whether (1) there is a "manifest necessity" or a "high degree" of necessity for ordering a mistrial, or (2) "the ends of public justice would otherwise be defeated." See Arizona v Washington (1978), 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717; United States v. Dinitz (1976), 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267; Illinois v. Somerville (1973), 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425. See, also, United States v. Jorn (1971), 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543. The foregoing concept of "the ends of public justice" has also been more precisely described as "the public's interest in fair trials designed to end in just judgments." Wade v. Hunter (1949), 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974.

In evaluating whether the trial judge acted properly in declaring a mistrial, the court has been reluctant to formulate precise, inflexible standards. Rather, the court has deferred to the trial court's exercise of discretion in light of all the surrounding circumstances:

" * * * We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes. * * * But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office." (Emphasis added.) United States v. Perez (1824), 22 U.S. (9 Wheat. 579, 580) 6 L.Ed. 165. See, also, United States v. Clark (C.A. 2, 1979), 613 F.2d 391, certiorari denied 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (a second prosecution is not barred on double jeopardy grounds when the trial judge had no reasonable alternative to ordering a mistrial in the first trial).

Applying these criteria to the particular facts at bar, we conclude that the...