Ross v. Petro

RALPH B. GUY, JR., Circuit Judge,

dissenting.

I respectfully dissent because I believe that even if manifest necessity for a mistrial existed at one point, it dissipated once Judge Bond learned of the verdicts. Importantly, Judge Bond’s declaration of a mistrial was not final when pronounced orally from the bench. The mistrial was not official until entered in the journal, and the mistrial was not entered into the journal until Thursday, November 2, 2000. State v. Stewart, 2002 WL 31886657 at *3 (Ohio Ct.App. Dec. 27, 2002). In Stewart, the defendant was charged with kidnaping and aggravated burglary with a firearm specification. After the jury had begun deliberations, they returned to the courtroom and informed the judge that they could not reach a consensus on the firearm specification. The judge mistakenly believed that they could not reach a consensus on any of the charges. She dismissed the jury and orally declared a mistrial. A few minutes later, it was discovered that the jury had signed the verdict forms for three of the charges — guilty as to two, not guilty as to one — but left only the form regarding the firearm specification blank. The jury was immediately called back, the verdicts were read, and the jurors polled. The defendant appealed, arguing, inter alia, that the trial court erred by entering the guilty verdicts after a mistrial had been declared. The Ohio court rejected the defendant’s challenge to the entry of the guilty verdicts with language equally applicable to this case:

It is axiomatic that a court speaks only through its journal, and not through oral pronouncements. Schenley v. Kauth (1953), 160 Ohio St. 109, 113 N.E.2d 625, paragraph one of the syllabus. The trial court’s mistaken oral declaration of a mistrial did not actually result in a mistrial because a mistrial judgment was never journalized. Thus, the trial court was not prevented from realizing that it had misunderstood the communication from the jury, and correcting its erroneous decision to dismiss the jury and declare a mistrial. Appellant’s assertion that the trial court erred as a matter of law by accepting the jury’s verdict after declaring a mistrial is not well taken.
Appellant argues that, because the jurors could change their minds on the verdict between the time they signed the ballots and the time they were polled, they can not be said to have agreed on the verdict until the court has polled them and accepted the verdict. We refuse to follow this restrictive view of what constitutes the jury’s agreement on a verdict. The jury, at the time each of the jurors signed the verdict forms, had agreed upon its verdict. The fact that a juror could have changed his or her mind after signing the ballot is immaterial. The jury had agreed on its verdict, *672was subsequently polled, and each juror confirmed that the judgment represented by the ballots was, in fact, his or her verdict. Thus, we conclude that the court’s acceptance of the jury’s verdict did not violate R.C. 2945.33.

Id. at *3.

In my view, once the trial judge was aware of the verdicts of acquittal, the possibility of juror bias toward Ross was eliminated. Once the possibility of bias against Ross was eliminated, the manifest necessity for the mistrial was also eliminated, at least on the counts for which the jury acquitted Ross. The trial court’s error was not in failing to enter the verdicts, but ignoring the existence of the verdicts. A similar situation was presented in Corey v. District Court of Vermont, Unit # 1, 917 F.2d 88, 89 (2d Cir.1990), in which the defendant was tried in state court for murder and aggravated assault. He was accused of shooting the victim from a distance of 92 feet. While the jury was deliberating, one juror knocked on the jury room door and asked the sheriff how far 92 feet was. The sheriff began pacing off 92 feet. The trial judge was notified of what was happening and immediately ordered the jury back to the jury room. After discussing the matter with the attorneys, the judge gave the jury curative instructions. The judge and attorneys then resumed their discussion in the judge’s chambers. The judge decided that a mistrial was necessary but that it should be declared in open court. As the judge and attorneys were preparing to return to court, the jury reported that it had reached a verdict. When the defendant asked that the judge not grant the mistrial, the judge stated that he had already declared the mistrial but would have the verdict reported for the record. The verdicts were “not guilty” on each count. The defendant filed a motion for judgment of acquittal, which the trial court denied. He appealed, but the Vermont Supreme Court affirmed. The federal district court denied his habeas petition, but the Second Circuit reversed finding that although manifest necessity may have existed prior to the moment the judge learned of the verdicts, there was no longer manifest necessity after the verdicts were read. The Second Circuit explained: “The trial court no longer has to speculate about the possible impact of misconduct affecting the jury. The trial court can look to the verdict for an answer. The failure to take into account the jury’s verdict in this case constitutes an abuse of discretion.” 917 F.2d at 92. The possibility that the trial judge had already declared a mistrial orally was of little import:

[I]t is not enough to state that the trial court had declared a mistrial before the jury notified the court that it had reached a verdict. The jury was permitted to continue in its deliberations, unaware of the proceedings in chambers. When it reached its verdict, the trial judge was given a unique opportunity. An acquittal would reveal the absence of prejudice to the defendant. With no prejudice to the defendant and no articulation of any prejudice by the state to its case, the only remaining basis for a finding of manifest necessity would be the public interest in a trial free of even the perception of an inappropriate influence on the jury. Nevertheless, the limited public interest in having a trial free of all possible taint, whether prejudicial or not, by itself cannot overcome Corey’s constitutionally protected valued right to have his trial completed by a particular tribunal.

Id. at 91 (internal quotation marks and citation omitted).

The state has not alleged any specific prejudice against it other than the public’s *673right to fair trials and the public perception that a juror unwilling to vote his conscience may have gone along with a verdict just to end deliberations sooner. I agree that those concerns are legitimate, but they are not strong enough to override a defendant’s protection against being tried twice for the same crimes. The state also stresses that the jury did not reach a verdict on every count for which Ross was charged, including the lesser-included offense of manslaughter. That fact does not change my conclusion that once it was known that verdicts had been reached on the most serious counts, reexamination of the need for a mistrial was required. Finally, the state emphasizes that because the juror’s note to the judge was written after the jury reached the three verdicts, it is clear that the jury was still deliberating and could have changed its mind as to the three verdicts. That the jury was still deliberating at the time the mistrial was declared is beyond dispute. But that fact did not foreclose the possibility of, at the very least, questioning the jurors in open court after the verdicts were discovered. It may have been determined, for instance, that the verdicts were still tentative in the jurors minds, or that they were completely finished considering those counts. Once the verdicts were discovered, the trial court should have immediately brought the verdicts to the attorneys’ attention and considered all alternatives. Irrespective of the majority’s attempt to distinguish Stewart and Corey, the facts in this case compel me to conclude that the state court’s finding that there was manifest necessity constituted an unreasonable application of clearly established federal law.