602 N.E.2d 725 | Ohio Ct. App. | 1991
This is an appeal by the state of Ohio from a judgment entered by the Common Pleas Court of Ross County, granting a motion to dismiss on double jeopardy grounds filed by John H. Conley, defendant below and appellee herein, to an indictment charging him with an R.C.
The following facts pertinent to this appeal appear in the record. On April 9, 1989 at approximately 6:00 p.m., appellee was traveling eastbound on Westfall Road in Ross County. At the intersection of State Route 207 and Westfall Road, appellant collided with a vehicle operated by Richard Merriman. A passenger in the Merriman vehicle was seriously injured and died at, or shortly after, the accident.
A complaint was filed in the Chillicothe Municipal Court by a deputy of the Ross County Sheriff's Department charging appellee with a violation of R.C.
On June 14, 1989, appellee was indicted by the Ross County Grand Jury, the indictment reading, inter alia, as follows:
"That John H. Conley, on or about the 9th day of April, 1989, at the County of Ross aforesaid did cause the death of another as a proximate result of the said John H. Conley committing or attempting to commit a misdemeanor, in violation of Section
On July 31, 1989, at the request of appellee, the state filed a bill of particulars reading as follows:
"The State of Ohio will prove on the trial of the above stated case the following matters:
"That John H. Conley, on or about the 9th day of April, 1989, between the hours of 5:00 and 7:00 P.M., at the intersection of State Route 207 and Westfall Road, Ross County, Ohio, did cause the death of another, to wit: Joanne Merriman, as a proximate result of the said John H. Conley committing or attempting to commit a misdemeanor, to wit: Failure to Yield the Right-of-Way, Ohio Revised Code Section
On August 17, 1990, appellee filed a motion to dismiss on the basis of double jeopardy, citing as authority Grady v. Corbin
(1990),
"The State of Ohio will prove on the trial of the above stated case the following matters:
"That John H. Conley, on or about the 9th day of April 1989, between the hours of 5:00 and 7:00 P.M., at the intersection of State Route 207 and Westfall Road, Ross County, Ohio, did cause the death of another, to wit: Joanne Merriman, as a proximate result of the said John H. Conley committing or attempting to commit a disdeameanor [sic], to wit: Obeying Traffic Control Devices, Ohio Revised Code Section
At a hearing held on September 17, 1990 on the dismissal motion, the court orally held (said holding was subsequently journalized by entry on October 11, 1990) that to prove the misdemeanor offenses set forth in the amended bill of particulars, the state would be required to utilize appellee's conduct, i.e., failure to yield the right-of-way, for which appellee had been previously convicted and, therefore, the manslaughter offense was barred by double jeopardy underGrady, supra. The court then dismissed the indictment and this appeal followed.
The
In determining whether the double jeopardy bar is applicable, historically the primary focus has been on whether the second prosecution is for the "same offense" involved in the first. InBlockburger v. United States (1932),
In Brown v. Ohio (1977),
The Ohio Supreme Court in State v. Wilkens (1980),
"An offense may be a lesser included offense of another only if (i) the offense is a crime of lesser degree than the other, (ii) the offense of the greater degree cannot be committed without the offense of the lesser degree also being committed, and (iii) some element of the greater offense is not required to prove the commission of the lesser offense."
In Illinois v. Vitale (1980),
Had the opinion concluded at that point, the Blockburger
element test would be controlling without resort to examination of actual proofs at trial. The court in Vitale, however, went on to examine another of its double jeopardy opinions, Harris v.Oklahoma (1977),
The court then stated the following in analyzing the two offenses:
"If in the pending manslaughter prosecution Illinois relies on and proves a failure to slow to avoid an accident as the reckless act necessary to prove manslaughter, Vitale would have a substantial claim of double jeopardy under the
On May 29, 1990, a sharply divided United States Supreme Court handed down Grady, supra. Essentially, the court modified the Blockburger test in cases involving successive prosecutions. In Grady, the issue presented was whether the subsequent prosecution of a defendant for homicide exposed the defendant to double jeopardy when the defendant was already convicted of driving while intoxicated and failing to keep to the right of the median. The court refashioned the double jeopardy analysis to be undertaken because of its concern that Blockburger did not appropriately give effect to the Double Jeopardy Clause's proscription against "a second prosecution for the same offense." Grady, supra,
Applying the Blockburger test, we conclude that test does not preclude prosecution by reason of double jeopardy. R.C.
"Except when directed to proceed by a law enforcement officer, every driver of a vehicle * * * approaching a stop sign shall stop at a clearly marked stop line, but if none, before entering the crosswalk on the near side of the intersection, or, if none, then at the point nearest the intersection roadway where the driver has a view of approaching traffic on the intersection roadway before entering it. After having stopped, the driver shall yield the right-of-way to any vehicle in the intersection or approaching on another roadway so closely as to constitute an immediate hazard during the time the driver is moving across or within the intersection or junction of roadways."
R.C.
"No person shall cause the death of another as a proximate result of the offender's committing or attempting to commit a misdemeanor."
Inasmuch as each statute requires proof of an additional fact which the other does not, i.e., R.C.
We are next required by Grady to determine if the prosecution of the involuntary manslaughter requires proof of appellee's conduct for which he has already been convicted. The misdemeanor violations upon which the state now intends to rely read as follows:
R.C.
"No person shall operate a vehicle * * * on any street or highway in willful or wanton disregard of the safety of persons or property."
R.C.
"No person shall operate a motor vehicle * * * street, highway, or property open to the public for vehicular traffic without being in reasonable control of the vehicle * * *."
R.C.
"No * * * driver of a vehicle * * * shall disobey the instructions of any traffic control device placed in accordance with this chapter * * *."
The issue then devolves into whether the state can prove the essential elements of the above-enumerated statutes without utilization of appellee's conduct in failing to stop and yielding the right-of-way for which he has been previously convicted.
At the motion hearing the following occurred:
"THE COURT: Well, we are presented with a situation in which failure to obey the traffic control device, reckless operation and failure to control the automobile are alleged as underlying misdemeanors to this Involuntary Manslaughter. Miss Henthorne, are you prepared to represent to the court the evidence that would support those misdemeanor allegations beyond that which we understand to have been discussed, that is, the encroachment of a * * * of an intersection without authority? Is there any * * * is there any other evidence underlying the allegations of reckless operation and failure to control?
"MRS. HENTHORNE: The underlying evidence for the reckless operation would be the * * * I believe that the evidence would show that he proceeded into the intersection without coming to a complete stop, that he did fail to yield the right of way. I think that there would also be evidence showing that he was moving at a * * * he may have been operating his vehicle at a high rate of speed. Those would be the under * * * [sic].
"THE COURT: And those would also be * * * that would also be the evidence to support the failure to control?"
In Grady, supra at 521,
"Thus, a subsequent prosecution must do more than merely survive the Blockburger test. As we suggested in Vitale, the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted. This is not an `actual evidence' or `same evidence' test. Thecritical inquiry is what conduct the State will prove, not theevidence the State will use to prove that conduct." (Emphasis added and footnote omitted.) *461
Upon our analysis of the enumerated misdemeanors in the amended bill of particulars, and given the prosecution's statement as to how it would prove such offenses, we conclude that to prove each offense it will be necessary to prove appellee's conduct in which he failed to stop at a stop sign and yield the right-of-way for which conduct he was previously convicted in violation of R.C.
Accordingly, we overrule the claim of error and affirm the judgment.
Judgment affirmed.
GREY and PETER B. ABELE, JJ., concur.