*1 conviction, and REMAND for sen- Turns’s
fencing. JOHNSON, Petitioner-
Deshawn J.
Appellant, Sheriff, KARNES, Respondent-
James
Appellee.
No. 98-3099. Appeals,
United States Circuit.
Sixth April
Argued 1, 1999.
Decided Dec. *2 briefed), (argued
Dennis C. Belli Columbus, OH, for Petitioner-Appellant. briefed), L. Taylor (argued and Steven Prosecuting Attorney’s Office for Franklin, Columbus, OH, County of Respondent-Appellee. JONES, BOGGS, COLE,
Before: Circuit Judges.
JONES, J., opinion delivered the of the court, COLE, J., BOGGS, joined. which 597-99), (pp. J. separate delivered a dissenting opinion.
OPINION JONES, NATHANIEL R. Circuit Judge.
Petitioner-appellant Deshawn Johnson appeals the district court’s judgment deny- ing § petition his 28 U.S.C. 2254 for a writ corpus. habeas argues Johnson the state trial court’s a declaration of mis- trial without his consent and in the ab- sence of necessity,” “manifest coupled with subsequent State’s retry decision to him, violates the Double Jeopardy Clause of the Fifth Amendment. For the reasons herein, stated judg- we REVERSE the ment of the district court and REMAND for further proceedings.
I. 31,1996, Franklin On December Coun- ty, grand Ohio jury indicted Johnson on following aggravated six counts: bur- glary, aggravated robbery, robbery, kid- assault, napping, felonious having weapon disability. under charges the indictment stemmed from the Decem- shooting ber Stanley Humphrey. According Humphrey, he met Johnson in the fall of 1996. Over the two month followed, period that he served as a broker or middleman for drug several transac- tions in purchased which Johnson drugs. According to Humphrey, he and Johnson planned tо meet on the evening of Decem- ber 1996 to “brokering” drug discuss deal, but Johnson never arrived. Hum- said, you he with do know what shortly pistol, after went stated phrey home, unidentified man it it and an time is? knew what time was. Johnson Humphrey’s Humphrey house. arrived Q. you say you When knew Explain. briefly he and talked Johnson stated was, what explain. time it pulled gun and di- out before Johnson *3 A. I a robbery. knew it was You house. him to enter the Johnson rected know, I I was robbed. going get knew accomplice Humphrey’s checked and his I going get Reason how I know was money, or but found nei- drugs for house before that— n robbed, days Johnson, couple that Humphrey testified ther. him, at pointing gun still the then who was attorney]: [Prosecuting May ap- empty pockets, him and took made his proach? At in cash. some approximately $100 and confer at Thereupon, Court counsel struggle and Johnson point between jury the the hearing bench out of ensued, Humphrey was and Humphrey off the record: Humphrey in the stomach and chest. shot “911,” that stating called he had thereafter Q. attorney] I want to [By prosecuting “Shawn,” and was thereafter been shot stay on That’s happened day. what hospital. taken to the why I you cut off. first trial occurred jury from Johnson’s A. Okay. Somebody pull gun out on July 21 to 1997 before Frank- July you you, know what time it is. You County Al- lin Court of Common Pleas. you’re get know I had going robbed. judge robbery though dismissed nothing. case, he charge at close of State’s remaining the five counts to the submitted at J.A. 119.1 acquitted aggra- jury. Johnson was cross-examination, counsel On defense robbery burglary aggravated vated and questioned Humphrey as follows: However, was charges. jury unable to Now, sir, you aggravated described an kidnapping, reach a verdict on the feloni- assault, Thus, somebody house charges. burglary, going your weapon ous drawers, looking around pulling court declared a mistrial on these out the trial somebody goods. for You described counts. you they were pointing gun saying at trial, second state court Johnson’s Sir, going it true that a you. to rob isn’t counts, remaining commenced on three rob- jury my guilty found client not 1, 1997 the Franklin before Coun- October you? bing of Common Pleas. The events of ty Court appeal. trial are at in this habeas this issue point, At that prosecuting J.A. trial, Humphrey At the State called as its attorney objected, asked witness, and Humphrey recounted the first The con- approach counsel the bench. Humphrey’s as set forth events abоve. and counsel ference between testimony proceeded further as follows: proceeded as follows: attorney]: Q. [prosecuting Okay. Tell circumstances Court: Under what happened. us what can you you possibly could believe [Humphrey]: A. had talked out- We inquire into that? had side. He turned around. He had pros- Mr. asked, know, [Defense counsel]: [the Stead your I you phone. can use attorney] out about ecuting brought bring I I’ll yeah. phone I said said robbed, oh, [Humphrey] being about bur- says, somebody out. He is there jury said, I this glary taking place and think there? I don’t think so. So he minute, of this. complеte picture should have a turned around for a turned back robbery testimony. phrey's aggravated object to 1. Defense counsel did not Hum- Now, judges might some do that this The Court: reveals sidebar conference con- really something serious about primarily doing sisted of defense counsel question. just why that-explaining he believed that question he posed Humphrey Judge, I think [Defense Counsel]: it’s appropriate. Specifically, defense counsel jury ... should have appropriate [t]his argued testimony picture thing. of this complete Humphrey elicited from robbery about a [Prosecuting Attorney]: Judge, can we impermissible and warranted clarifica- go hear this conversation-can we to the tion on cross-examination and that the important. back? This is should not have been allowed to consider youDo want a mistrial? I’ll The Court: regarding prior evidence alleg- “bad acts” you if grant it want mistrial. *4 edly committed response, Johnson. going object I’m [Defense Counsel]: however, stated that he believed to a mistrial. question impermissible object you can The Court: You all want. that the situation could not be cured. The I going you. don’t know how it’s to cost judge then addressed the as [Prosecuting Attorney]: I don’t want to you follows: “I told I give you my ask until I talk to appellate people. option you if wanted a mistrial. I don’t right The Court: You make a decision think a it’s curable situation. If you want youDo a right now. want mistrial now? mistrial, grant a I’ll it.” J.A. at 155. The [Prosecuting Attorney]: I am concerned prosecutor responded as follows: about jeopardy ramifications. Honor, Your I went downstairs and did your The Court: You have choice right my confer. It is opinion that manifest mistrial, you now. If want a ask for it necessity makes me a ask for mistrial. not, now. If I’ll instruct the how I have never asked for one in fourteen far you want me to jury. instruct years. I regret asking one in this I’m going to wait to talk to appellate case. You can’t unring that bell. people. would never guilty feel a not verdict was [Prosecuting Attorney]: Judge, this is a fair result in this case. I’m asking to an absolutely crucial issue and for a five start over. delay— minute Id. prosecutor provided The no additional The delay? give Court: Five-minute I’ll support argument for his that manifest you five minutes. necessity compelled a mistrial. J.A. at 146^18. 5, 1997, On The November pleas judge common Johnson thereafter al- filed a motion to lowed a dismiss the (approximately remaining brief recess ten or minutes) assault, three counts (kidnapping, fifteen prosecuting to allow the felonious attorney having weapon disability) to confer with his while under office. The on judge, jeopardy double prosecuting grounds. defense counsel and the The common attorney pleas judge thereafter held a sidebar denied confer- the motion2 and John ence. The directed defense son thereafter counsel filed his petition. habeas state, record, for the his reasons for district court petition, denied the find questioning Humphrey ing about Johnson’s necessity” “manifest existed for previous robbery acquittal. The record the mistrial. timely appeal This followed. law, 2. Under judgment Ohio a trial court's rejected in the state trial court and under denying a defendant's motion to dismiss on right state law there no interlocutory jeopardy grounds double appeal appeal is not a final adjudication ... necessary federal able Crago, order. State v. protect petitioner’s 53 Ohio St.3d rights under the Double (Ohio 1990). Ohio, N.E.2d Jeopardy Where Harpster v. Clause.” 128 F.3d jeopardy (6th double Cir.1997). claims “have been raised and 325-26 2254(d)(West § Supp.1999). 28 U.S.C.
II. As explained Harpster, question we we consider whether apрeal, On question manifest a mixed necessity is prohibits the Clause Jeopardy the Double Harpster, law fact. retrying from Johnson State of Ohio Thus, we “must decide whether the state counts-kidnapping, felonious remaining grant of a mistrial ‘involved an un- assault, weapon under having a while clearly application reasonable estab- [] conducting our we inquiry, disability. lished Federal as determined deny court’s decision to review the district ” (alteration in Supreme origi- Court.’ Id. de petition § 2254 novo. See Johnson’s 2254(d)(1)). nal; § quoting 28 For U.S.C. However, at 326. Harpster, 128 F.3d follow, the reasons that we conclude that trial cоurt’s decision review the state grant the state trial court’s decision to to the grant pursuant standards mistrial was, fact, an “unreasonable ap- Antiterrorism and Effec set forth in the plication” of Supreme Court’s “mani- (“AED- Penalty Act of 1996 tive Death necessity” fest standards. PA”). provides The AEDPA as See id. follows: III.
An
for a writ
habeas cor-
custody
pus
person
behalf of
*5
On appeal, Johnson contends
judgment of a
pursuant
to the
State
that the
in granting
state trial court erred
respect
granted
court
not be
with
shall
mistrial,
therefore,
the
and that
State’s
adjudicated on the
any
claim that was
subsequent
re-рrosecute
him
decision
unless
proceedings
merits in State court
Jeopardy
violates
the Double
Clause.
of the claim—
adjudication
Conversely,
that
the State asserts
because
(1)
in a decision
was con-
resulted
properly
the state trial court
a
declared
to,
an
trary
or involved
unreasonable
necessity,
mistrial due to manifest
there
of,
clearly established Feder-
jeopardy
was no
violation.3
double
Supreme
al
as determined
States; or
Court of
United
Clause of the
Jeopardy
Double
(2)
person
Fifth
that no
provides
in a decision
was based
Amendment
resultеd
offence
subject
of the
shall “be
for the same
to be
on an unreasonable determination
limb,”
put in
of life or
jeopardy
facts
of the evidence
twice
U.S.
light
presented
Const,
V;
amend.
see also Arizona v.
proceeding.
court
the State
questions.’’
parties
disagree
court
on state-law
3. We
also
as to
determinations
note that
Rather,
prior acquit-
67-68,
a
admissibility
of evidence of
475.
“[i]n
Id. at
112 S.Ct.
argues
review,
tal
law.
under Ohio state
Johnson
conducting
a federal court is
habeas
burglary
prior
acquittal is
that evidence of his
deciding
whether
conviction vio
limited
proseсu-
law since the
admissible under Ohio
Constitution, laws,
treatises
lated the
or
of
regard-
testimony
Humphrey
from
tor elicited
ing
68,
S.Ct.
United
Id. at
112
States."
alleged conduct. The State contends
Furthermore,
denying defendant's later
prior acquittal
to the
was inad-
reference
indictment,
state
motion
dismiss the
hearsay evidence and inadmissible
missible
Swanson,
v.
trial court
on Ohio
No.
relied
unfairly preju-
was
under
403 because it
Rule
89AP-199,
(Franklin Cy. Ct.
WL 99410
1989
dicial,
issues, and
confused the
would have
29, 1989).
Aug.
Although
App.
Swanson is an
ad-
A determination of
jury.
misled the
decision,
unpublished
are bound
this
missibility
this evidence is not within
of
we are convinced that the
decisiоn unless
purview
conducting
this court in
habeas
acquit
Supreme
decide the
Ohio
Court would
Supreme
explained
Court
review. As the
McFaul,
differently.
v.
843
tal issue
See Olsen
Cir.1988).
62,
475,
McGuire, 502 U.S.
112 S.Ct.
Estelle v.
918,
(6th
Johnson has
F.2d
929
(1991),
inquiry
as to
Washington, cessity require 434 U.S. 98 S.Ct. and we a ‘high degree’ (1978). 824, 717 L.Ed.2d The Clause 54 before concluding appro that a mistrial is via applies to the States the Fourteenth 506, priate.” Washington, 434 U.S. 98 Maryland, Amendment. See Benton v. addition, S.Ct. 824. In Supreme 794, 784, 2056, 89 S.Ct. 395 U.S. 23 passing has made clear that “in on the (1969). Accordingly, “[o]nce L.Ed.2d 707 propriety of a grant declaration mistrial attaches, prosecution of a jeopardy defen ed at the behest of the or on original other than the dant before motion,” own reviewing court’s any jury, excluding contemporaneously right “balanc[e] must ‘the valued of а alternates, and sworn empaneled barred defendant to have trial completed by his (1) necessity' there is a ‘manifest unless particular tribunal summoned to sit in (2) ’ or the defendant either re judgment on ... against public him quests or consents to mistrial.” Watkins in insuring justice interest is meted (6th Kassulke, v. 141 Cir. Scott, out to offenders.” United States v. 1996); Larry, also see United States 536 82, 92, 437 U.S. 98 S.Ct. 57 L.Ed.2d (6th Cir.1976)(“If 1149, 1153 F.2d a mistrial (1978)(quoting Downum v. United improperly had been appellant’s declared States, 734, 736, 372 U.S. 83 S.Ct. retrial would have been violative of his (1963)). L.Ed.2d 100 subject Fifth Amendment right not to be Here, ed to double jeopardy.”). Johnson In balancing significant these in requested neither nor consented to the terests, reviewing courts must also afford Thus, mistrial. properly mistrial was considerable deference to the trial court’s granted only if there was a “manifest ne determination that manifest necessity war cessity” for the mistrial. ranted a Washington, mistrial. See *6 Supreme The Court first enunciated the 511, (“[T]he U.S. at 98 overriding S.Ct. 824 necessity” “manifest doctrine in United interest the evenhanded administration (9 Perez, Wheat.) 579, 22 States v. U.S. 6 justice requires of that we accord high the (1824). L.Ed. 165 The Court held that a degree est of respect to the trial judge’s judge may declare a mistrial and discharge evaluation of the likelihoоd that impar the “taking when all the circumstances tiality jurors of one or may more have consideration, into there is a manifest ne comment.”). by been affected the improper act, cessity for the public or the ends of Despite this considerable deference to the justice would otherwise be defeated.” Id. decision, state trial court’s Supreme the at 580. Recognizing significance the strongly emphasized Court has the need to mistrial, declaring a Supreme Court protect the significant defendant’s consti stated that a trial judge should declare a tutional interests: mistrial bаsed on necessity manifest “with constitutionally protected [A] interest is caution, greatest under urgent circum inevitably by any affected stances, mistrial deci- very and for plain and obvious therefore, sion. The Perez, judge, trial 22 must causes.” at Although U.S. 580. always temper the decision whether or Supreme Court has refined the doc not to abort the trial years, considering trine over the emphasis this on cau importance tion to the being has remained since defendant of Perez. For exam , able, all, ple, Washington once and for Supreme to conclude his Court further society through elaborated on the confrontation with “manifest neces sity” standard and noted that verdict of a tribunal he might the standard believe to cannot “be applied mechanically favorably disposed to or without his fate. attention to the particular problem order to ensure that con this interest is ade- fronting the trial judge.... ‘[N]ecessity’ quately protected, reviewing courts have interpreted cannot be literally; instead ... an obligation satisfy themselves that we assume that degrees there are of ne- ... the trial judge exercised “sound dis-
595 Thus, matter, if declaring a mistrial. on the argument cretion” search or irres- irrationally judge ultimately granted a trial acts mistrial.” Id. ..., con- explained his action cannot be at 1241. We further follow- ponsibly ing: doned. degree It is that of careful consideration (internal 514, quotations at 98 824
Id.
S.Ct.
and solicitude for the
conse-
serious
Perez,
omitted);
22
citations
see also
quences
upon
attendant
mistrials
is
conducting
analysis
our
as
U.S. at 580.
required
a court
shoulder its Per-
mistrial was
de
properly
to whether a
ez burden of “sound discretion.” We
judice,
in the
are mind
clared
case sub
recognize that a trial court
not consti-
is
“any
of the
question
propriety
ful that
makе
tutionally required
explicit
judicial
a fac
the exercise of
discretion is
finding of “manifest
nor to
necessity,”
only
tual matter which can
be determined
establish on the record the full extent of
dependent upon
a case
case basis
on
carefully considered
its
basis for
re
the individual circumstances under
mistrial.
exercise of
discretion
Indeed,
Larry,
at
view.”
536 F.2d
however,
ground,
stands on much firmer
Supreme
has determined
when it is
on the
apparent
face of
...
guiding
Perez
principles
[ ]
“the
particular
for a
record
reasons
deci-
...
all circum
command courts
take
sion, and thе analytic process leading to
thereby
into account and
forbid
stances
that conclusion.
of an abstract
the mechanical
Hunter,
formula.” Wade
336 U.S.
(internal
omitted).
Id.
citation
After con-
(1949)(in
L.Ed.
69 S.Ct.
sidering the
set
in Perez
standards
forth
omitted).
quotations
ternal
Washington, and
rec-
reviewing
“
ord, we concluded that there
neither
standards,
Based
we con
on these
necessity
manifest
nor sound discretion”
trial
clude
the state
court did
and noted
was declared
“[t]he
declaring
its
discretion” in
exercise
“sound
shortly into the cross examination of the
necessary.
manifestly
that a mistrial was
Id.
victim.”
(“The
Larry,
sоle
See
Indeed,
authority
here.
limitation
the court
Such is
case
the state
‘manifestly
pressured
a mistrial
trial
case
determine that
Johnson’s
*7
necessary’
judge
prosecutor
is that the
must exercise
make
decision at
determining
very
only
very
moment
allowed a
brief
his ‘sound discretion’
and
argu-
justice
listening
ends of
would not be
recess before
to counsel’s
public
Further,
by a
proceed
regarding
served
continuation
ments
mistrial.
Jorn,
470,
trial
failure
consid-
seriously
v.
400 U.S.
court’s
ings.”)(citing U.S.
481,
547,
543;
declaring
a
fur-
27 L.Ed.2d
er alternatives to
mistrial
91 S.Ct.
Gori
364,
States,
mani-
finding
ther militates
against
United
367 U.S.
81 S.Ct.
(1961); Perez,
necessity
22 U.S.
mistrial. See
[the
saw the polygraph test
Although the decision of a trial court to
took in
past”);
[he]
United States v.
declare a mistrial bаsed on potential ju-
Simpson,
*5,
1991 WL
ror bias is
special
entitled to
respect, it
(6th
Cir.1991)(finding that
the trial
unreasonable
judge exercised sound discretion in declar
as established by Supreme
ing the mistrial where the trial judge “held
precedent,
to conclude that mani-
an extensive hearing on the effects and
necessity
fest
existed for a mistrial in
repercussions of the evidentiary errors”
this case....
simple
[A]
corrective in-
and “took a night to deliberate over the
struction would have sufficiently protect-
question of whether a mistrial was neces
against juror
ed
bias. Because this case
sary”).
lаcks the urgent
high
circumstances or
*8
degree
necessity
of
required to justify a
The
by
care taken
the state trial
mistrial, double jeopardy bars the retrial
judge here falls well below that exercised
petitioner.
in the aforementioned cases. The judge
Harpster,
vated but IV. assault, weap- respect kidnapping, and acquit- charges. As with all criminal ons reasons, we find the aforementioned For tals, acquittals the reason for the does not failed trial court to exercise that the state on the It could have relat- appear record. a mistrial. declаring discretion” “sound included the definition of ed elements afford considerable deference While we though by that no “aggravated,” means jury judge’s trial conclusion that certain. prejudiced by have been defense would trial, At the at- prosecuting second clearly question, we believe that counsel’s torney simply asked victim describe Supreme precedent established so, happened. He did and what of a mis- demonstrates that the declaration of his used the terms explanation course “ by neces- compelled not manifest trial was “robbery.” In the cross- robbed” and the stаte sity. Because we conclude that examination, attorney (appar- defense court’s declaration of a mistrial constituted foundation) ently by saying, began without manifest unreasonable aggravated burglary,” “You described by standard enunciated Su- necessity added) though (emphasis the victim did Court, judgment of the district preme (and He then stated: REVERSED, not use term. is RE- court is case jury’s introduced an inference into with to issue the MANDED instructions mind) jury that a found my “Isn’t it true corpus. writ of habeas you?” robbing not guilty
client
BOGGS,
Judge, dissenting.
Circuit
point,
possible
there were three
At this
impermissible
of the
introduction
results
attorney
case
This
involves
defense
this information:
questioning
imper-
his
introduced
who
favorably
influ-
jury
1. The
would
trial.
material into a criminal
missible
enced
the defendant’s behalf.
“triple
he
in which
doing,
up
so
set
bind”
(or at
potentially
client would
benefit
his
2. A mistrial would be declared
suffer)
no matter the outcome.
off,
least
as
client
be no worse
there
agrees
opinion today
court’s
in this particular
was no indication
case
as a matter of
impermissible
material
partic-
or
that the current
trial
law, and
its exclusion would not
state
ularly
to the defendant.
favorable
provi-
constitutional
any
offend
federаl
and a
A mistrial would be declared
Nonetheless,
opinion
sions.
court’s
court would find
subsequent appellate
trap
shut the
set
the defense
clangs
it
not have
declared.
should
been
attorney,
go
and allows the defendant to
attor-
today’s opinion,
As
result of
contrary
my opinion,
this result is
free.
not)
(intentional or
were bril-
ney’s tactics
respectfully
dis-
to established
*9
will
attorneys
defense
no
liant. Future
sent.
attention.
pay
doubt
close
I
II
forth,
opinion fairly sets
out in its facts
As the court’s
opinion
As the
well sets
char-
section,
judge’s
may
out of
comments
underlying
events arose
initial
intemperаte.
if
as
drug
gone
vigorous,
deal
bad.
acterized
alleged
what is
to be
However,
recess,
after the
and after the
In Harpster, our court’s decision was
prosecutor decided that he wished a mis- primarily
holding
based
that
in
(again,
judgment
trial
an error
as it has
justified
defense actions that allegedly
out)
judge
argument by
turned
heard
all,
mistrial were either not erroneous at
sides. There is no indication
both
that he
case, or,
another,
one
resulted in an
attorney’s argument.
cut off the defense
prejudice
“amount of
that could have exist
record,
simply
agree
On this
cannot
that
ed,
all,
аny
if
existed at
[that] was minus
judge
“irrationally
the trial
acted
or irres-
Ohio,
322,
cule.”
Harpster
See
128 F.3d
ponsibly” in
words of
Arizona v. Wash-
(6th Cir.1997).
portion Harp
The
497, 514,
824,
ington, 434 U.S.
98 S.Ct.
54 ster cited at page
proposition
596 for the
(1978). Rather,
L.Ed.2d 717
as was the
that
a “simple corrective instruction”
Washington,
case in
judge ultimately
would have been
adequate the context
“gave both defense
prose-
counsel and the
of this minuscule or
prejudice.
nonexistent
opportunity
cutor full
to explain
posi-
their
515-16,
tions....”
Id. at
bell”
demonstrate to me that
this case more
the issue was
closely
not overlooked.
to Arizona v. Washington, 434 U.S.
497,
(1978).
98 S.Ct.
Ill not, “manifest necessity” and did in the some, The primary cases from view of explain this circuit the decision cited ade- support this quite quately. outcome are The court specifically distin- stated that guishable. provides jus- “[s]ince the record sufficient *10 ruling, state-court tification more ruling com- explain
failure constitutionally it not render
pletely does at 516- Washington, 434 U.S.
defective.”
17,
IV
Thus, no oc- I would error hold
curred, less kind of “unreason- much clearly of ... established
able by the Supreme as determined
federal the United States”
Court of to set this defendant free. See
necessary 2254(d)(1). § I would affirm U.S.C. there-
judgment of district respectfully
fore dissent. VOYK; Kerrigan; L. Paul James
Jim individually
Bellessa, and on behalf of situated, similarly Plain-
all others
tiffs-Appellants, OF LOCOMOTIVE
BROTHERHOOD
ENGINEERS, Defendant-
Appellee.
No. 98-3937. Appeals, States Court of
United
Sixth Circuit.
Argued 1999. Sept.
Decided Dec.