129 Ohio App. 3d 838 | Ohio Ct. App. | 1998
Defendant-appellant, Maciver Morgan ("appellant"), appeals his multiple convictions, as entered in Cuyahoga County Court of Common Pleas case Nos. CR-345074 and CR-345755, claiming that the trial court erroneously denied his motion to dismiss on double jeopardy grounds and that he was denied the effective assistance of counsel. For the reasons that follow, we reverse.
The record reflects that appellant was originally indicted on multiple counts of (1) possession of drugs, in violation of R.C.
The case proceeded to trial and after the jury began deliberations, the trial court sua sponte declared a mistrial, stating:
"The Court is, upon its own motion, pursuant to Ohio Revised Code Section
Correcting itself, the court continued:
"The Court on its own motion, granted a mistrial pursuant to Ohio Revised Code Section
Thereafter, appellant filed a motion to dismiss based on double jeopardy and requested leave to immediately appeal in the event the motion was denied. In addressing the motion before the commencement of the second trial, the court elaborated its reasons for previously granting the mistrial the week earlier. The court reasoned:
"I want to be clear on the record. A mistrial was declared in this case. last week because the jury was tainted with evidence that was not to be before them. There is in this court's opinion no allegation nor should there be any substantive belief there was prosecutorial misconduct. As a matter of fact, the court directed both counsel to check the exhibits before they went into the exhibit room. Both counsel did that. Therefore, in my opinion, both counsel are responsible for the fact that this exhibit got into the jury room. It was on the court's own motion that a mistrial was declared and was done to protect the integrity of the trial process as well as the rights of the defendant." *841
Thereafter, the trial court denied the motion and likewise denied appellant's request to immediately appeal. In the trial that ensued, appellant was found guilty of all the remaining charges, including specifications, with the exception of a finding of not guilty on one count of felonious assault. He was sentenced accordingly.
Appellant timely appeals and assigns the following errors for our review:
"I. The trial court erred as a matter of law in denying appellant's motion to dismiss on the ground of double jeopardy.
"II. The trial court erred as a matter of law by failing to grant appellant an immediate stay to appeal its ruling on the motion to dismiss.
"III. Appellant was denied his constitutional right to the effective assistance of counsel."
The Double Jeopardy Clause of the
In cases where a mistrial has been declared without the defendant's request or consent, double jeopardy will not bar a retrial if (1) there was a *842
manifest necessity or high degree of necessity for ordering a mistrial, or (2) the ends of public justice would otherwise be defeated. Id. at 505-506,
While R.C.
Nonetheless, we are troubled by the court's lack of specificity in describing precisely what evidence was not properly before the jury. As can be ascertained from the excerpted transcript, the trial court was concerned with the possibility that the jury would be irreparably tainted by this evidence. Yet, nowhere in the record is there any indication of what this "tainted evidence" consisted of or of its significance.
While the briefs of counsel touch upon this evidence, statements of counsel are not evidence and are not part of the official record. It is axiomatic that a court of appeals is bound by the record before it and may not consider facts extraneous to the record. State v. Ishmail (1978),
Moreover, in the case sub judice, there appears to have been no attention given to other, less drastic alternatives. See Sidneyv. Little (1997),
"Although from this distance and in the absence of express findings it is impossible to determine the precise extent to which defense counsel's remarks may have prejudiced the jury against the State, the circumstances set forth above suggest that any such prejudice may have been minimal and subject to cure through less drastic alternatives. For example, the jury could have been instructed to disregard any mention of prior legal rulings as irrelevant to the issues at hand, and to consider as evidence only the testimony and exhibits admitted through witnesses on the stand. Were there doubt whether such instructions alone would suffice to cure the taint, the jury could have been questioned about the extent of any prejudice. Given the anticipated length of the trial (almost two weeks), it is not unlikely that, had the jury been appropriately instructed when the court first found defense counsel to have erred in his opening statement, any prejudice would have dissipated before deliberations were to begin. For these reasons, it is impossible to conclude that a finding of necessity was implicit in the mere grant of the mistrial." Id. at 521-522,
In this case, the trial court made no attempts to cure or otherwise determine the effect of the purportedly tainted evidence. Ordinarily, great deference is accorded to the trial court in this area because the trial judge is in the best position to determine whether the situation warrants the declaration of a mistrial. Glover,
Accordingly, appellant's first assignment of error is well taken and is sustained.
The judgment of the Cuyahoga County Common Pleas Court is hereby reversed and appellant is ordered discharged in both case Nos. CR-345074 and CR-345755.
Judgment reversed.
*844NAHRA, P.J., and KARPINSKI, J., concur.