State v. Bogan, 2018 Ohio 4211

Background

Clarence Bogan was indicted on four counts (aggravated murder amended to murder, felonious assault, domestic violence) for the February 2016 death of his girlfriend and tried before a jury in July 2017.
During trial Bogan repeatedly disrupted proceedings and made audible and non‑audible attempts to communicate with jurors; the court repeatedly admonished him and his counsel.
Defense counsel twice moved for a mistrial during trial (based on prejudicial testimony); both motions were denied and the court offered curative instructions.
While the jury deliberated, the foreperson first reported concerns about Juror No. 5’s competency; a courthouse employee later testified she observed Bogan mouth words toward Juror No. 5 and the juror smile. The court found that observation not warranting further action.
The jury later reported it was deadlocked on three of four counts and that a juror had erased her name on a verdict form; the trial court promptly declared a mistrial and discharged the jury.
Bogan moved to dismiss the indictment on double jeopardy grounds; the trial court denied the motion and the court of appeals affirmed, holding Bogan implicitly consented to the mistrial so double jeopardy did not bar retrial.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether retrial is barred by double jeopardy after a sua sponte mistrial	State: Retrial permitted because the record supports manifest necessity or defendant consented	Bogan: No manifest necessity for mistrial; court failed to explore alternatives (rehabilitation, alternate juror); retrial barred by double jeopardy	Court: Retrial not barred — Bogan implicitly consented to the mistrial, so manifest necessity analysis is unnecessary
Whether trial court abused discretion declaring mistrial without Himes procedural steps	State: Court acted within discretion given juror issues and defendant misconduct	Bogan: Court failed to allow argument, interview juror/foreperson, consider alternatives or take verdicts on resolved counts	Court: Acknowledged procedural deficiencies but declined to overturn because of implied consent finding
Whether an affirmed preliminary not‑guilty on Count 1 constituted final verdict before mistrial	State: No final verdict because forms were not taken/announced in open court	Bogan: Jury had reached a not guilty verdict on Count 1, so retrial on that count violates double jeopardy	Court: No final verdict was announced or recorded; retrial as to all counts allowed
Validity of implied consent doctrine to bar double‑jeopardy challenge	State: Implied consent can be found from totality of circumstances when defendant had opportunity to object	Bogan: Doctrine impermissibly pressures defendants to decide instantly and should not apply	Court: Applied implied consent (collective conduct of defense counsel) and rejected double jeopardy claim

Key Cases Cited

Oregon v. Kennedy, 456 U.S. 667 (U.S. 1982) (double jeopardy protects against repeated prosecutions but defendant’s valued right is not absolute)
Arizona v. Washington, 434 U.S. 497 (U.S. 1978) (“manifest necessity” standard for mistrials and allowances for retrial when fair trial cannot continue)
United States v. Dinitz, 424 U.S. 600 (U.S. 1976) (mistrials granted with defendant’s consent do not bar retrial)
Wade v. Hunter, 336 U.S. 684 (U.S. 1949) (defendant’s right to be tried by particular tribunal is valuable but can be subordinated to fair trial interests)
State v. Gunnell, 132 Ohio St.3d 442 (Ohio 2012) (no mechanical formula for manifest necessity; trial judge discretion reviewed for abuse)
State v. Glover, 35 Ohio St.3d 18 (Ohio 1988) (trial judge best positioned to determine need for mistrial; power to declare mistrial must be used cautiously)
U.S. v. Perez, 22 U.S. 579 (U.S. 1824) (historic articulation that mistrial power must be used with great caution)
State v. Anderson, 148 Ohio St.3d 74 (Ohio 2016) (denial of motion to dismiss on double‑jeopardy grounds reviewed de novo)