John Glover v. Norris W. McMackin Warden
950 F.2d 1236
6th Cir.
1991
Check Treatment

*1 district find that $330,000. We clearly errone- GLOVER, Petitioner-Appellee, was not conclusion John court’s ous. v. he should contends Straughter next McMACKIN, Warden, Norris W. fire a two-offense-level received have Respondent-Appellant. Hand his sentence. arms enhancement No. 91-3392. in the bedroom guns found were Butterfly residence. Straughter’s White Appeals, United Court of States reason for no substantial Straughter offers Sixth Circuit. court's district de his contention that 26, Argued Sept. 1991. used fur were these termination should be conspiracy over therance of 22, Decided Nov. 1991. previous We clearly erroneous. turned as Straughter argument rejected ly have Snyder, v. See United States

now makes. (6th Cir.) (rejecting F.2d 303-04 apply it error to claim that was

defendant’s con to his cocaine enhancement

a firearms found in his handguns that were viction for — denied, nightstand), cert.

bedroom (1990).

-, 112 L.Ed.2d 111 S.Ct. Straughter’s argument reject

Similarly, we

here. argument about his

Straughter’s last 360-month sen

sentence states that to a life sen amounts

tence he received and Unusual Pun

tence and that the Cruel Eighth Amendment

ishment Clause of facts of under the such a sentence

bars patently argument meritless.

case. Miller, F.2d

See, Young e.g., (first-time Cir.1989) offender (6th

1282-86 possession with in

convicted one-time 1,300 of heroin sen grams

tent to deliver parole), prison

tenced to life — U.S. -, denied, cert. (1991).

115 L.Ed.2d 1052 therefore, conclude, that the convic-

We be, herein

tions sentences hereby, AFFIRMED. *2 briefed, Ak- Mitchell, argued,

Marla L. Ohio, ron, petitioner-appellee. for Gen., Atty. ar- Asst. Keyser, Donald G. briefed, Atty. Gen. Office gued, proceed- had After the cross-examination Ohio, respondent-ap- Columbus, Ohio, time, judge conducted a a short ed pellant. conference, request of at the bench applicability prosecution, address NELSON, KENNEDY Before *3 testimony the de- hearsay exclusion LIVELY, Circuit Senior Judges, and Circuit conclu- sought At the to introduce. fense Judge. conference, the court allowed sion of his line of proceed with counsel to defense KENNEDY, Judge. Circuit tes- then elicited The defense questioning. McMackin, Ward- W. Norris Respondent top- as to certain timony from the witness Institution Marion Correctional en of the in a conversation discussed ics that were petitioner is cur- Ohio, Marion, at which concerning her brother had with she had sentence, appeals the serving his rently alleged misconduct. discovery of her of petitioner a Writ granting judgment specif- inquired about counsel then Defense 2254. 28 U.S.C. Corpus under § Habeas had made the witness ic statements on District Court that agree with We responded conversation, and the witness should be it the Writ record before The follow- remember. she could not However, that Ohio’s we believe granted. place: exchange then took ing hearing sup- evidentiary for an motion your brother? Q. you did tell What proceeding state of the the record plement A. Uhm— and shall remand granted have been Q. you Do remember? purpose. A. I don’t remember. marijuana Q. you Did about talk I. found? pills that were attorney): (prosecuting FERENC MR. petitioner John Glover April On again. Objection, Clermont, grand by the indicted was sustained, rape. He Objection of was three counts THE COURT: jury on step- his sexually abused have remember. alleged to she said she couldn’t years. of course several daughter over the part of the Q. you Do remember Septem- on commenced first trial conversation, part of it? or was the first victim wit- 1985. The ber answered, Asked and MR. FERENC: cross-examination, peti- testify. On ness to do, ask her a hundred going he what’s attempted to es- defense counsel tioner’s times. had fabricated the the victim tablish THE COURT: Sustained. to divert atten- allegations in an effort rape brother, your Q. you After talked recently discovered mis- from her own any- you don’t remember conversation cross- course of the During the conduct. your about, talked to thing you went and examination, objected elev- prosecution mother; correct? is that defense counsel. questions of times to en coun- Objection MR. FERENC: [defense on the objections were basis Four badger the witness. trying sel] having asked and an- been questions badger- I’m not DEFENSE COUNSEL: objections were swered. Several ing anybody. basis, several a stated were without raised Gentlemen, is a mis- THE COURT: objection the final objections, and hearsay kind up with this trial, put I will badg- defense counsel alleged that the conduct, get your vouchers and please objec- Several ering the witness. day. for the Thank you are dismissed sustained, but several were tions were you. addition, the court had occa- In overruled. dismissing jury, the court After conferences off bench to conduct four sion say only “I want continued: appear these two of At the record. least going again, and it is nature, going try this case evidentiary have been you me, I both of and want heard to be petitioner. rulings favored analysis should, including you particular underlying reasons or attorneys like to act counsel).” (the the trial court’s mistrial order. On re- Zugelter defense Mr. mand, upheld Appeals the Court of then for December scheduled Retrial was conviction, rejecting petitioner’s his other retrial, petitioner day 1985. assignments again ap- Petitioner error. grounds motion to dismiss filed a Court, pealed which tri- barred the second that double appeal opinion. dismissed his heard and apparently The motion was al. argu- any There is no record overruled. 16, 1990, May peti- On filed his opinion by any ments or statement Corpus in the tion for Writ of Habeas then convicted judge. Petitioner was District Court for the North- United States ap- rape. Petitioner counts of of all three *4 18, September ern District of Ohio. On the Twelfth District pealed his conviction 1990, magistrate Report his filed and Ohio, of Appeals for the State Court of recommending Recommendation of error. The raising assignments five granted on the of the Fifth Writ be basis jeopar- double Appeals of found the jeopardy claim. After Amendment double “well-taken,” ordered the dy claim parties responses, filed their the Dis- petitioner dis- be reversed and judgment magistrate’s Report adopted trict Court Appeals held that charged. The Court of granted the and Recommendation and Writ his or forfeited petitioner had not waived Corpus, stayed of issuance Habeas but through the protections Fifth Amendment pending appeal by the State. timely object counsel to failure of defense mistrial, and that retrial was barred to the II. It by jeopardy. stated: double necessity Here, no manifest there was directs that no Constitution instead, mistrial, but, only a desire for a put jeopardy in of life person shall be twice protect of the trial court part Const, or limb for the same offense. U.S. from an intense prosecuting witness prohibition bars double amend. V. lawful, aggressive, yet cross-exami- by prosecutions state as well as jeopardy cannot conclude on basis nation. We U.S. Maryland, Benton v. 395 federal. transcript before us of the first trial 2056, (1969). 784, 707 89 S.Ct. 23 L.Ed.2d necessity for high degree of there was a prosecutor a is enti general rule that terminating the first trial. only one trial to make the tled to one and Glover, County No. CA Clermont v. State in flexibly more state’s case is viewed 8, unreported 14968 at 1986 WL 85-12-106 the first trial was circumstance where 29, 1986). (December of the defen the consent aborted without appealed, and the Ohio Su- The State is reached. United dant before a verdict of the 600, 607-08, the decision preme Dinitz, Court reversed 96 424 v. U.S. States Appeals on the double 1079-80, (1975). Court of 1075, 267 47 L.Ed.2d S.Ct. of remanded for consideration claim and of the constitu importance In view assignments of er- other four petitioner’s however, in such cir right, retrial tional 18, Glover, 517 35 Ohio St.3d ror. v. prose only if the permissible cumstances (1988). 900 N.E.2d as re justify the mistrial order cution can significance to the great Court attached necessity.” Arizona quired by “manifest of the trial court- circumstances visceral 505, 497, 434 98 S.Ct. Washington, v. room, including the demeanor of counsel (1978). 830, L.Ed.2d 717 54 of the witness and and the reactions consideration, therefore, first Our transcript as a jurors. Inasmuch written may be whether concerns factors, the court felt reflect those does not directing of consented found to have assume, of as the Court it could not drastic conse light In did, moti- trial court was Appeals that the consent, finding a of attached to quences protect desire to the witness. vated position that respondent’s reject to find reversi- The court therefore refused object on the petitioner to not discern the failure it could ble error where 1240 complexities of criminal difficulties Consent consent. constitutes 479-80, at 91 at 554. prosecution. Id. S.Ct. by the mechanical assessed not be is, of rule, (“[A] even the best criminal but rather an absolute

application of circumstances, complicated affair weighty by the analysis informed by an readily apparent manage.... that a jeopar- is] inherent criminal [It considerations prohibiting whenev- mechanical rule retrial 434 U.S. Washington, v. dy. See Arizona compel discharge of (accused er circumstances 503-04, at 829-30 at consent the defendant’s subjected hazards severe when exposed to pay for the high price including only would too be prosecutions, multiple personal security and burden, also emo- added assurance but financial additional harassment.”); governmental from freedom with an unresolved associated tional stress 458, 462, Somerville, 410 U.S. 93 rea- Illinois v. wrongdoing). For these accusation (1973) “only L.Ed.2d implied sons, be S.Ct. consent should application positively (proper analysis “abjures indicate the circumstances where judge willingness acquiesce by which to any formula a defendant’s mechanical declaring in the Hogg, a mistrial propriety order.” Jones the [mistrial] Cir.1984). (6th unique varying and often situations F.2d *5 tri- during arise the course of a criminal record us indicates Nothing in the before al.”). in acquiesce willingness of to a Although he did fail order. mistrial the guid analysis is not an apparent is that such timely object, it to ance, however, for the classic formulation difficult, and have been would objection by Story in first Mr. Justice enunciated point the At no probably futile. Wheat) Perez, (9 22 v. U.S. United States it was declaration mistrial actual (1824), 579, 580, 6 L.Ed. 165 mandates potential record as a mentioned on the even necessity” for been a “manifest there have by the The sum action court. of course art, This term of “manifest the mistrial. actions, a the trial mary nature of court’s mean necessity," has come to not absolute by followed the immedi declaration swift “high degree” of a necessity, but rather jury adjournment and dismissal ate given court must be necessity. The trial court, objection rendered an both its to exercise considered broad latitude meaningless. United unlikely and See assessing specific facts in the judgment 470, 487, Jorn, 91 400 U.S. S.Ct. States on case. attendant each and circumstances (1971)(“[I]ndeed, 547, 558, 27 L.Ed.2d 543 Story: by originally As stated Justice abruptly in judge so dis acted the nature, think, in cases of this We all that, prosecutor had charging jury the the justice courts of invested the has law continuance, suggest disposed to or been authority discharge to with object discharge to the defendant verdict, whenever, in giving any from oppor jury, there would have been taking all circum- opinion, their so.”). do We to deem tunity to decline consideration, is a there into stances consent to a an omission to constitute such act, necessity for be justice would otherwise public ends of a sound They are to exercise defeated. III. impos- is subject; and it discretion on circumstances, all to define sible A. proper it to inter- render which would The test under the Fifth Amend sure, power ought to be fere. To be a retrial is barred when ment for whether caution, greatest under used with judgment initial trial is aborted before circumstances, very plain and for urgent deeply The necessarily a flexible is one. causes. obvious finality pro in criminal ingrained value (9 Wheat) Perez, at 580. U.S. 22 weighed against in ceedings must be results, discretion is not abso- court’s just in with The trial terests of the state lute, personal The constitu- given the inherent however. special consideration

1241 recognize that a court a defendant be We importance to tional all, “able, constitutionally his required and for conclude not once to make an society through the ver- explicit finding with necessity,” confrontation of “manifest might believe to be dict of a tribunal he on nor establish the record the full ex fate,” Washing- disposed to his favorably carefully tent its considered basis for ton, (quot- at 98 S.Ct. at 434 U.S. Washington, the mistrial. 434 at 516- U.S. 486, 91 557- ing Jom, U.S. at S.Ct. at 17, 98 at 835-36. The exercise of S.Ct. 58), gainsaid. In order to ensure cannot be ground, discretion stands on much firmer adequately protected, interest is that this however, apparent it is when on the face of obligation “reviewing courts have an particular for a record the reasons deci that, satisfy the words themselves sion, analytic process leading Story, judge Mr. Justice exercised Washington that conclusion. The declaring mistrial.” ‘sound discretion’ explicit, expressly noted that an at 98 S.Ct. at Washington, analysis record and evaluation of manifest 835. necessity not qua sine non “since the provides circumstances of particular justification Wash- sufficient scrupu- court-ruling.” (emphasis the nature of the ington illustrate state Id. required. added); lous that is case discretion at at see also id. S.Ct. defense (Marshall, J., (“Where involved a mistrial declared after dissenting) the need attempted introduce in the sec- counsel obvious,’ ‘plain for a ... of the misconduct ond trial evidence requirement of some statement on the [a] prosecution the first trial. Arizona need record addressed to the for a mistrial tri- Supreme Court had ordered the second appropriate ensure that would considera prosecution had withheld al because the efficacy is given of other alter *6 trial, the exculpatory evidence. In second natives that are mistrial decisions explicit made reference to the the defense only upon improper, partly or based ade opening of the retrial in its circumstances quate, particular relevance criteria. Of prosecution The objected statement. and here, moreover, proper it would facilitate requested a mistrial. The trial court heard review, appellate avoiding and habeas the matter, arguments postponed on the but speculate to the basis for the deci need on opportuni- decision to afford the defense an trial.”). sion to terminate the allowing ty produce authority such ref- explicitly the ser- erences. The court noted B. upon a ious considerations attendant mis- proceeded in order, consciously us, record we find neither On the before so to avoid or minimize cautious fashion as necessity discretion. manifest nor sound subsequent consequences. After re- their shortly The into the declared matter, argument on the the search and The cross the victim. de- examination of ultimately granted the judge mistrial. quite legitimately attempting fense was Supreme upheld The the mistrial credibility attack the witness order, taking pains note “the that allegations, establishing a motive for the rather, precipitately,” not act but judge did namely her miscon- discovery the own possible “evincing a concern for the double questions duct. The exact nature the consequences of an erroneous rul- jeopardy the bounds of rele- asked were well within ing, he gave both defense counsel vant, prosecutor admissible material. opportunity explain their prosecutor full objections, includ- lodged of eleven a total propriety of a mistrial.” positions on exclusions, ing hearsay based on several 515-16, 434 U.S. at Washington, questions that and four on the basis degree of 835. It is that careful consid- at Several of asked and answered. had been conse- solicitude for serious eration and been overruled. objections had even is quences upon mistrials attendant Although doubt that the we do not its Perez required for a court to shoulder quite agitated, parties may have become discretion.” burden of “sound ruling conjecture turned on its among counsel and court’s shouting match “virtual may have been motivated to trial court respondent, is bench,” alleged by the as prejudice juror from protect the insufficient merit a in itself inflammatory and confron- arising from inherently trau rape cases Testifying strategy. The tational cross-examination Although do not we unpleasant. matic and that, potentially inasmuch as a court held may been experience have doubt that hypothe- satisfactory justification could be unpleasant traumatic particularly sized, did not bar retrial. double victim, find in the record cannot we this (“It is 517 N.E.2d 900. St.3d at or 35 Ohio misconduct abusive repeated sort the trial from the not clear require a mistrial that would questioning protect shouted, was to the wit- Hostile, motivation court’s even protect the witness. equal be said with It could ness-victim. controlled without can be questioning judge was concerned that that the credence mechanisms aborting trial. Other of defense counsel aggressive tactics and control witness protect the available to jury against appel- prejudicing the recess were courtroom, including granting a lee.”). analysis Court’s The Ohio threatening imposing continuance, or or or petition- on the place the burden appears effort At least some contempt sanctions. necessity did can find er to establish required sort is of this incorrect. burden is not exist. This is to meet the necessity needed sort of that mani- to establish prosecution particularly true Perez standard. Washington, 434 necessity did exist. to have fest seems not the trial court where The fact that at 830. alternatives, weighed at S.Ct. these considered possible foreclose all fails to con the record consequences against the vital their is not sufficient for a mistrial jeopardy. justifications being placed of not twice cerns se- (6th outweigh important interests F.2d 56 n. Hogg, Jones See constitution. by the federal Cir.1984), Young, 607 cured quoting Harris v. (“If (4th Cir.1979) 1081, 1085 n. 4 F.2d requested an eviden- has to abort adequate alternatives obvious and more substan tiary hearing to establish a sug disregarded, ing trial were from which to evaluate whether tial basis unjustifiably.”), gests court acted sound discretion the trial court exercised *7 denied, 444 U.S. cert. necessity. found manifest properly and (1980). L.Ed.2d 659 seeks, minimum, inquiry at a an The State asserts, and the respondent The now con into the substance of the off-the-record that the hypothesized, Supreme Ohio Court by the trial court. ferences conducted acting out of might have been trial court unlikely if it is that these conferences Even rather petitioner, for the standard, solicitude satisfy respect extreme our can the Perez precisely in this for witness. It is than the comity concerns of mandate that we for wholly of matters sort of reconstruction opportunity to estab provide the State an purview of the exclusively within the by and the necessity required lish the an most benefit from judge that would in especially trial so Fifth Amendment. This is judge’s find- analysis on the record of that this, such as the record a case where Although acknowl- reasoning. we ings and re wholly inadequate appellate to informed unique in a the trial court is edge view, that exercise and to substantiate an as matters such position to evaluate sound discretion. possible prejudice or bias

demeanor the State that Petitioner contends defendant, record before us the against a evidentiary full has waived in a its interest for such provide adequate basis not an does request failure to inquiry, by of its virtue finding. return of the hearing in its evidentiary an light In below. Further, Court the Ohio Su Writ to the District we note that holding that the of the Court applied an erroneous standard Ohio Court preme ne to find manifest adequate petitioner to show record was the burden on placing in ex- request for an State’s necessity. cessity, That and the of manifest the absence majority that the state is concludes entitled Objection in its record pansion apple. at the hold to another bite decline to Report, we Magistrate’s in an its interest waived has the State that reconstruct, at this late Any effort RE- therefore record. We expansion date, con- conferences the off-the-record the District case to this MAND produce by trial will noth- ducted court expand opportunity an provide swearing ing unsupported an contest. but its con- support record to evidentiary to demonstrate ei- respondent failed The in fact necessity did that manifest tention any argument at oral in its ther brief If for the declaration exist evidentiary proceed- further likelihood anything to the add is unable the State information produce any new ings will with the Dis- us, agree record trial court’s deci- reason for the about the issue. the Writ trict Court that mistrial. Before this court to order a sion Judge, judgment in LIVELY, Circuit court order Senior a district vacates supplement dissenting. permit party record one one, re- court should this as bare as nothing There is I dissent. Respectfully, to iden- party seeking a remand quire the giving the state an justify in this record the informa- source of tify some available date, to attempt, at late opportunity to respondent sought. This being necessity for the trial establish manifest to do. was unable record reflects order. The judge’s very than the charged order other with a for that reason The way in required over not be judge’s frustration and should serious offense particularly pro- defense court attorneys, of further gauntlet to run the which conducting the trial. One counsel, judge acted ceedings were the trial because put princi- had been defendant thing disregard is clear—the of well-established total concedes, the majority granting of As the mistrials jeopardy. ples that control attorney Story defense Justice prosecutions. questioning in criminal power the mistrial order was triggered abort apparently Perez wrote at- cross-examination. has legitimate after perfectly proceeding criminal reasons, greatest Yet, unexplained used with the totally “ought to be for tached without, circumstances, so far caution, urgent trial court aborted under considering less shows, even causes.” very plain and obvious as the record for added). Wheat.) (emphasis (9 at 580 drastic alternatives. easily not de- opinion case did reading majority in this court One plain would be “very word obvious final might assume clare a mistrial courts disa- than appellate rather REMAND. AFFIRMED causes.” Two majority the writ cause, the record that on majority greed as to finds support ei- majority finds that granted. does should be finds that *8 not speculation fact had hypothesis. did not consent—in Further petitioner ther Jeopardy the mistrial. Double consent—to I believe opportunity justified, in effect be concludes specifically prohibits what will majority Clause totally necessity for of a reconstruction pro manifest tunc there was neither nunc find causes that sound discre- exercise in order nor the deficient and obvious.” majority “very fur- plain court. The not clearly ' support the record does finds that ther court order I affirm district would hypothesis that Court's corpus. of habeas granting the writ extreme solici- out of court acted pro- than to petitioner rather for the tude also holds majority the witness.

tect erroneously Supreme Court

that the Ohio es- the burden

placed ex- necessity did not

tablish that deficiencies, the Yet, despite all these ist.