State v. KitchenState v. Kitchen
Michael L. Benson and Mark D. Tolles, II, Benson & Sesser, L.L.C., Chillicothe, Ohio, for appellant.
Matthew S. Schmidt, Ross County Prosecuting Attorney, and Pamela C. Wells, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for appellee.
Harsha, J.
{¶1} Following a declaration of a mistrial based on prosecutorial misconduct and scheduling of a new jury trial, the Ross County Court of Common Pleas denied Kitchen’s motions to dismiss the charge against him based on double-jeopardy and constitutional sрeedy-trial claims.
{¶2} Because the common pleas court’s interlocutory entry denying his motion to dismiss based on the constitutional right to a speedy trial does not constitute a final, appealable order, we lack jurisdiction to address the merits of that assignment of error.
{¶3} We do have jurisdiction to address Kitchen’s assertion that the trial court erred by denying his motion to dismiss based on double jeopardy. However, wе reject it because in general, there is no double-jeopardy bar to a retrial following a trial court’s granting of a criminal defendant’s motion for a mistrial. And he has not established the narrow exception to the general rule, which requires the request for a mistrial be
{¶4} Here, the state cоmmitted prosecutorial misconduct by violating the trial court’s order barring it from introducing any evidence of what Kitchen said in recorded footage that was not disclosed to him before trial. However, there is no evidence that the state intended to cause a mistrial by asking an officer one question regarding a statement Kitchen made on the undisclosed footage. Specifically, (1) there was no sequenсe of overreaching before the single question; (2) the state resisted Kitchen’s request for a mistrial and appeared genuinely surprised that it had violated the court’s order; and (3) the trial court concluded that although the state had committed prosecutorial misconduct by eliciting testimony that violated its order, it was not the state’s intent to cause the mistrial. We overrule Kitchen’s first assignment of error and affirm the trial сourt’s judgment denying the double-jeopardy motion to dismiss.
I. FACTS
{¶5} The Ross County Grand Jury returned a secret indictment charging Michael Kitchen with one count of sexual battery in violation of
{¶6} In its opening statement at the jury trial, the state asserted Sara Howell and her boyfriend let Kitchen, her high school friend, sleep over on a couch in their
{¶7} In Kitchen’s counsel’s opening statеment, he contended that Kitchen and Howell engaged in consensual sex, which had been initiated by Howell. He further conceded that when Kitchen was awakened by three law enforcement officers responding to Howell’s report of sexual battery, he lied that he did not have sex with Howell because he was terrified and did not know what Howell had told them.
{¶8} The state’s first witness, Chillicothe Police Officer Shane Simmons, testified that he and Officer Chip Campbell were dispatched to Howell’s apartment to respond to a reported sexual assault. They talked to Howell and then entered the apartment, where they observed Kitchen asleep on a couch. Then they contacted Detective Twila Goble, who arrived and with Officer Campbell, they began questioning Kitchen after advising him of his Miranda rights. Officer Simmons’s body camerа was activated during his interaction with both Howell and Kitchen. On cross-examination Kitchen’s attorney played the body camera footage that had been provided to him by the state in discovery. However, Officer Simmons testified that the footage shown was not the end of his body camera footage. He indicated he had viewed other footage from his body camera concerning the reported sexual battery.
{¶10} The next morning after receiving the previously undisclosed recording of Officer Simmons’s body camerа footage, Kitchen’s attorney again asked for a mistrial, generally asserting that “there would have been different statements and procedure and strategy in this case had we been provided it.” He claimed that even if this additional undisclosed footage was excluded, “it still doesn’t alleviate the issue that the jury knows a video exists and is not going to be play[ed] and I’ve made statements, or representations, that thе video would be played * * *.” Significantly, the parties and the trial court agreed that the state’s failure to provide this footage to the defense was unintentional.
{¶11} The state noted Officer Simmons’s and Detective Gobles’s statements in a Master Incident Report, which the state had provided to Kitchen and his counsel, referenced several of Kitchen’s statements from the undisclosed body camera footagе: (1) Kitchen told the officers that he did not remember having sex with Sara; (2) Kitchen told Officer Campbell he had a dream last night about having sex with his girlfriend; and
{¶12} The trial court denied Kitchen’s second motion for mistrial because: (1) despite his concession that he initially told police he did not have sex with Howell, Kitchen’s defense of consensual sex was consistent with what both the undisclosed and disclosed portion of Officer Simmons’s body camera footage revealed; (2) portions of the undisclosed body camera footage were disclosed to Kitchen in the police reports the state gave to the defense in discovery; and (3) although there were discrepancies and inconsistencies created by the state’s
{¶13} Nevertheless, the trial court prohibited the state “from utilizing any portion of the undiscovered video in any way, shape or form,” but permitted the defense to use it in any way it felt necessary. The court finally noted that it had not had an opportunity to review the undisclosed footage, but that it would reserve further ruling until the court had the chance to compare it with the reports that were provided in discovery.
{¶14} Upon return from recess the trial court instructed the jury that “[b]ased upon the State’s failure, not the defense, * * * to provide the remainder of the video, this Court has ruled that the undisclosed portion will not be admitted into evidence. Therefore, you are not to draw any inference that the Defendant has failed to produce the remainder of the video * * *.” The parties then concluded thеir examination of Officer Simmons.
{¶15} On the state’s direct examination of its next witness, Officer Campbell, it questioned him about statements Kitchen had made addressing why he stayed at
{¶16} Subsequently, the state asked Officer Campbell “when you were speaking with the Defendant in this case, did you happen to ask him about any dreams he might have had?” and the officer responded that he had. Kitchen objected and moved for a mistrial.
{¶17} The assistant prosecutor opposed the motion and stated that it was her understanding that she was permitted to ask about statements that were on the undisclosed part of the body camera footage if they were in fаct contained in the police reports provided in discovery. Kitchen’s statement about the dream was on both the undisclosed footage and the disclosed police reports. The assistant prosecutor stated that it was not her intent to violate the court’s order and moved to strike her question and Officer Campbell’s answer, and release the witness. The trial court noted that it did not understand how the assistаnt prosecutor had misinterpreted its order; it granted the mistrial. In its entry declaring the mistrial the court noted that it initially overruled Kitchen’s motion for a mistrial based on the state’s violation of
{¶19} After the state responded the trial court denied Kitchen’s motions to dismiss in two separate entries issued on the same date. Addressing double jeopardy the court concluded that “[a]lthough this Court cannot understand how his ruling was misinterpreted by the Assistant Prosecuting Attorney, this Court cannot find that the offending question was designed to goad the defendant into moving for a mistrial. It certainly was prosecutorial misconduct, but this Court cannot find that i[t] was the intention of the Assistant Prosecuting Attorney to cause a mistrial.” On the constitutional speedy-trial claim the court concluded “the five month delay in rescheduling the Defendant’s trial does not constitute presumptive prejudice” and “[e]ven in considering the four factor balancing test this Court cannot determine that the five month delay is constitutionally unreasonable.”
II. ASSIGNMENTS OF ERROR
{¶20} Kitchen assigns the following errors for our review:
- THE TRIAL COURT ERRED IN OVERRULING DEFENDANT-APPELLANT MICHAEL KITCHEN’S MOTION TO DISMISS ON DOUBLE JEOPARDY GROUNDS.
- THE TRIAL COURT ERRED IN OVERRULING DEFENDANT-APPELLANT MICHAEL KITCHEN’S MOTION TO DISMISS ON SPEEDY TRIAL GROUNDS.
A. Jurisdiction
{¶21} Kitchen contests the trial court’s entries denying his motions to dismiss on double-jeopardy and constitutional speedy-trial claims. Before addressing the mеrits of the assignments of error, we must determine whether this appeal is properly before us. Although the parties do not suggest that we lack jurisdiction, “litigants cannot vest a court with subject-matter jurisdiction by agreement”; subject-matter jurisdiction is properly raised by an appellate court sua sponte. See Cheap Escape Co., Inc. v. Haddox, L.L.C., 120 Ohio St.3d 493, 2008-Ohio-6323, 900 N.E.2d 601, ¶ 22; State ex rel. Dunlap v. Sarko, 135 Ohio St.3d 171, 2013-Ohio-67, 985 N.E.2d 450, ¶ 13.
{¶22} Courts of appeals have “such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district.”
{¶23} Clearly “the denial of a motion to dismiss on double-jeopardy grounds is a final, appealable order.” State v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23, ¶ 6. Therefore, we have jurisdiction to address the merits of Kitchen’s first assignment of error.
{¶24} However, “an order denying a motion to dismiss on speedy trial grounds is not a final appealable order * * *.” See State v. Payne, 4th Dist. Lawrence No. 16CA3,
B. Double Jeopardy
{¶25} Kitchen asserts that the trial court erred in overruling his motion to dismiss, which was based on double-jeopardy grounds. We apрly a de novo standard of review to address the denial of that motion. State v. Anderson, 148 Ohio St.3d 74, 2016-Ohio-5791, 68 N.E.3d 790, ¶ 20.
{¶26} The Double Jeopardy Clause of the
{¶27} Generally, “[w]hen a trial court grants a criminal dеfendant’s request for a mistrial, the Double Jeopardy Clause does not bar a retrial.” State v. Loza, 71 Ohio St.3d 61, 70, 641 N.E.2d 1082 (1994), citing Oregon v. Kennedy, 456 U.S. 667, 673, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982); Katz & Giannelli, Baldwin’s Oh. Prac. Crim. L., Section 74:5 (3d Ed.2018) (“The United States Supreme Court has never been willing to accept a rigid rule that would automatically bar retrial under any circumstance following a mistrial, holding, instead, that in most instances a mistrial granted with the consent or on the motion of a defendant does not bar retrial under the Double Jeopardy Clause”).
{¶29} “A reviewing court may consider the following factors in determining whether the required intent to provoke a mistrial existed: (1) whether there was a sequence of overreaching prior to the single prejudicial incident; (2) whether the prosecutor resisted or was surprised by the defendant’s motion for a mistrial; and (3) the findings of the trial and appellate courts concerning the intent of the prosecutor.” State v. Betts, 8th Dist. Cuyahoga No. 88607, 2007-Ohio-5533, ¶ 27, citing State v. Girts, 121 Ohio App.3d 539, 553, 700 N.E.2d 395 (8th Dist. 1997); see also Kennedy at 680 (Powell, J., concurring); State v. Greene, 7th Dist. Mahoning No. 02 CA 122, 2005-Ohio-2420, ¶ 24.
{¶30} In reviewing these factors here, we find no sequence of overreaching by the prosecuting attorney before the single question concerning whether Officer
{¶31} Moreover, even assuming that Kitchen could have established a sequence of overreaching before the conduct that resulted in the mistrial, the Supreme Court of the United States held in Kennedy, 456 U.S. 667, at 675-676 (1982), that “[p]rosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion * * * does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause.” See also State v. Hodges, 2018-Ohio-447, 105 N.E.3d 543, ¶ 18 (7th Dist.).
{¶32} Looking at the second factor, the record establishes that the state consistently and vehemently resisted Kitchen’s motions for mistrial. And it apparently
{¶33} On the final factor the trial court found that although the prosecutor’s violation of its order warranted a mistrial, the solitary question to Officer Campbell concerning Kitchen’s dreams was not intended by the prоsecutor to force a mistrial as a strategic trial tactic. This line of questioning concerned peripheral evidence that did not substantially detract from Kitchen’s stated defense of consensual sex and his admission that he had initially lied to the officers that he did not have sex with Howell. Because the trial court’s conclusion on this issue is supported by the record, we accord it the deference it is entitled to. Webster, 2014-Ohio-5647, at ¶ 10, citing Kennedy, 456 U.S. 667, 675 (1982).
{¶34} Based on our de novo review we agree with the trial court that this case does not fit within “the narrow exception adopted by the United States Supreme Court in Kennedy, supra * * * reserved for the limited set of circumstances where the nature of the state’s misconduct clearly and unquestionably demonstrates its intent to cause or invite a mistrial.” See State v. Kelly, 2015-Ohio-1948, 34 N.E.3d 513, ¶ 19 (1st Dist.).1 We overrule Kitchen’s first assignment of error.
V. CONCLUSION
{¶35} For lack of jurisdiction, we dismiss Kitchen’s second assignment of error, which contests the denial of his motion to dismiss on constitutional speedy-trial grounds. Having overruled Kitchen’s first assignment of error, we affirm the judgment of the trial court denying his motion to dismiss on double-jeopardy grounds.
APPEAL DISMISSED IN PART AND JUDGMENT AFFIRMED.
It is ordered that the APPEAL IS DISMIISSED IN PART AND THE JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitutе the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J. & McFarland, J.: Concur in Judgment and Opinion.
For the Court
BY:
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.