State v. Liberatore

Per Curiam.

Where successive prosecutions are at stake, the double jeopardy guarantee serves “a constitutional policy of finality for the defendant’s benefit.” United States v. Jorn (1971), 400 U.S. 470, 479. That policy protects the accused from attempts to relitigate facts underlying a prior acquittal. See Ashe v. Swenson (1970), 397 U.S. 436. The question in this case is whether that guarantee would be violated were the state to be allowed to proceed on an aggravated murder charge pursuant to R.C. 2903.01(B) after the accused had already been acquitted of the underlying felony at a previous trial.

The United States Supreme Court has held that the doctrine of collateral estoppel is embodied in the Fifth Amendment guarantee against double jeopardy. See Ashe v. Swenson, supra, at 445. In State v. Thomas (1980), 61 Ohio St. 2d 254 [15 O.O.3d 262], this court fully applied this concept in holding, at paragraph four of the syllabus, that “* * * successive prosecutions [are] barred in certain circumstances where the second prosecution requires the relitigation of factual issues already resolved by the first.” (Emphasis added.) In so doing, we interpreted Ashe and its progeny, Harris v. Oklahoma (1977), 433 U.S. 682, to mean that “* * * a person may not be subjected to multiple prosecutions when proof of the one offense is necessary, as a practical matter, to prove the other, and both completed offenses arose out of the same criminal conduct.” Thomas, at 261.

By definition, felony murder requires proof of the underlying felony in order to sustain a conviction under R.C. 2903.01(B). So too does the language of the instant indictment.2 Any inquiry into Liberatore’s participation in the alleged conspiracy to murder Greene would necessarily require proof that appellee had committed aggravated arson, an offense of which he had been previously acquitted. The double jeopardy provisions of the federal and state constitutions would therefore bar subsequent prosecution on the aggravated murder charge. Cf. Harris v. Oklahoma, supra.

Accordingly, we hold that the guarantees of double jeopardy prohibit retrial of an accused under R.C. 2903.01(B) after the accused has already been acquitted of the underlying felony at a previous trial. The judgment of the court of appeals is therefore affirmed.

Judgment affirmed.

Celebrezze, C.J., W. Brown, Sweeney, C. Brown and J. P. Celebrezze, JJ., concur.

Locher and Holmes, JJ., dissent.

2 The indictment for aggravated murder reads as follows:

“* * * Defendant * * * unlawfully and purposely caused the death of another, to wit: Daniel J. Greene while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit Aggravated Arson. ” (Emphasis added.)