State v. Ashford

[Cite as State v. Ashford, 2023-Ohio-3139.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY

State of Ohio Court of Appeals No. L-22-1296
L-22-1299
Appellee
Trial Court No. CR0202101808
CR0202101808
v.

Marcus Ashford DECISION AND JUDGMENT

and Decided: September 1, 2023

Jamarr Hayward Jr.

Appellants

*****

Julia R. Bates, Lucas Count Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

Joseph W. Westmeyer, III, for appellant, Marcus Ashford.

Ronnie L Wingate, for appellant, Jamarr Hayward, Jr.

*****

ZMUDA, J.

I. Introduction

{¶ 1} In this consolidated appeal, appellants Marcus Ashford and Jamarr Hayward,

Jr. appeal the judgment of the Lucas County Court of Common Pleas, denying their
respective motions to dismiss their indictments, after mistrial, based on double jeopardy.

For the reasons that follow, we affirm the trial court’s judgment.

II. Facts and Procedural Background

{¶ 2} On June 7, 2021, appellants were indicted as co-defendants in a two-count

indictment, alleging in count one: attempt to commit murder in violation of R.C. 2923.02

and 2903.02(A) and 2929.02, a felony of the first degree; and in count two: felonious

assault in violation of R.C. 2903.11(A)(2) and (D), a felony of the second degree. Each

count included a firearm specification pursuant to R.C. 2941.145(A),(B),(C), and (F).

{¶ 3} Appellant’s each appeared for arraignment and entered pleas of not guilty to

the charges. Both Ashford and Hayward filed immediate motions for discovery, and the

state of Ohio filed its discovery response and supplemental responses on June 28, 29,

August 20, 27, and November 2, 2021.

{¶ 4} On August 23, 2021, Hayward filed a motion to supplement discovery,

requesting a color copy of the photo arrays shown to the identifying witnesses. On that

same date, Hayward filed a motion to suppress the identification, arguing the police used

an unduly suggestive photo array. On November 2, 2021, Ashford filed his own motion

to suppress the identification, challenging the photo array as unduly suggestive. The trial

court held separate hearings on the motions. On December 8, 2021, the trial court denied

Ashford’s motion to suppress. On April 12, 2022, the trial court denied Hayward’s

motion to suppress.

2.
 {¶ 5} In March 2022, a new prosecutor appeared, replacing the original prosecutor

assigned to the case. The state continued to file supplemental discovery, with notice of

supplemental discovery filed April 21 and June 28, 2022.

{¶ 6} On July 1, 2022, the state requested a continuance of the trial scheduled for

July 5, 2022. The state indicated witnesses would not be available that week, and the

prosecutor had also just served discovery on the defense, with the potential for additional

discovery to follow. Appellants each objected to continuance, through their respective

trial counsel, and asked that the continuance be counted as time requested by the state for

speedy trial purposes. The trial court granted the continuance, with the time charged to

the state. The trial court scheduled a new trial date of August 30, 2022.

{¶ 7} On August 16, 2022, the state filed a notice of supplemental discovery. As

indicated by subsequent statements on the record, the prosecutor placed the discovery in a

tray at their office for the defense to retrieve, per the usual practice of the prosecutor’s

office. The discovery included a recording of conversation between the alleged victim

and Detective Heban, and consisted of discussion between the alleged victim, acting as a

confidential informant, and Heban in which the alleged victim identified Ashford and

Hayward relative to a 2019 burglary.1

1
The recording is not part of the record on appeal. The description of the recording is
based on the prosecutor’s representations to the trial court in the state’s response, filed
November 1, 2022, to the motions to dismiss.

3.
 {¶ 8} On August 19, 2022, the trial court held a status pretrial, and at the request

of all parties, confirmed the trial date. There was no mention of the recently produced

supplemental discovery at this pretrial.

{¶ 9} On August 30, 2022, trial began. In the midst of voir dire, out of the

presence of the venire, an issue arose regarding discovery. Appellants’ trial counsel

informed the trial court that the prosecutor produced a recording to the defense in the

supplemental discovery of August 16, that indicated the alleged victim in the case was a

confidential informant for a Detective Heban, beginning in 2015 or 2016 until the

present. Detective Heban was not involved in the investigation leading to the current

charges against appellants.

{¶ 10} Appellants argued that the alleged victim’s interactions with Detective

Heban and other police officers might be relevant at trial, including whether the alleged

victim had charges resolved in exchange for his cooperation as an informant. Appellants’

trial counsel believed the recordings suggested the state had additional information that

might be exculpatory or that could be used to impeach the alleged victim on cross-

examination. Appellants requested documents or other discovery regarding the alleged

victim’s arrangement with police, but the prosecutor indicated there were no documents

or other records kept for confidential informants.

{¶ 11} Despite the lack of documents or other records, appellants contended that

the state should have provided information regarding work the alleged victim did for the

state as part of discovery. The prosecutor disagreed, and argued that the state had

4.
provided the alleged victim’s prior record, and “it is not relevant whether or not he has

cooperated with vice in any other cases.” The prosecutor further argued:

So, therefore, it is not relevant whether or not he has helped get other

drug dealers off of the street because we’re not talking drugs here. We’re

talking about whether or not these two individuals shot and tried to kill him.

In an attempt to resolve the dispute, the trial court held discussion with counsel in

chambers. The trial court memorialized the result of that discussion as follows:

THE COURT: All right. We had a conversation in chambers

about an additional request for information regarding some discovery, and

the way we’re going to resolve that is I believed the alleged victim is not

going to be called today, but the State will call the alleged victim

tomorrow; is that correct?

[Prosecutor]: That’s correct. Detective Fisher will not be here for

voir dire. I’ve asked him to go get that information the defense has

requested.

The defense, when asked, had nothing to add to the trial court’s proposed

resolution and did not otherwise place any issues on the record, relative to the

proposed resolution articulated by the trial court.

{¶ 12} In the midst of voir dire, before the jury was seated, the trial court took

breaks from jury selection and met with counsel out of hearing of the venire, to address

Detective Heban’s possible connection. First, the prosecutor indicated that Heban first

5.
came into contact with the alleged victim in 2015 or 2016. Later, in another bench

conference, the prosecutor raised the issue of Detective Heban, once more, indicating she

“would just finish my thought.” The prosecutor continued to argue that the fact the

alleged victim worked with Detective Heban as a confidential informant was not relevant.

The prosecutor maintained:

As I indicated, [the alleged victim] was reliable. This is not a search

warrant issue. It’s whether or not he was – these gentlemen shot him and

tried to kill him or not. It has nothing to do with whether or not he was an

informant with the police.

{¶ 13} Appellants’ trial counsel disagreed, arguing statements the alleged victim

made the night of the incident to officers might be relevant. Trial counsel also argued

that, without discovery, they would not be able to effectively cross-examine the alleged

victim about his work with Detective Heban, including charges the alleged victim may

have had that were reduced or dismissed based on his cooperation with police, prior to

the incident. Based upon the information provided by the state in the supplemental

discovery of August 16, appellants’ trial counsel argued that the alleged victim might

have been still working with Detective Heban on the date of the incident that resulted in

appellants’ respective charges.

{¶ 14} The trial court took the matter under advisement before recessing for lunch,

and the record reveals the proceedings resumed in chambers, with the trial court placing

the following on the record after reconvening:

6.
 Conversation was held in chambers about the issue regarding the

alleged victim’s alleged cooperation with police. My suggestion has been

to allow for the deposition of the detective before the victim is called to

avoid potential prejudice on behalf of the defendants. I am not specifically

ruling on the relevance issue yet. [The prosecutor] indicated off the record

that she has made contact with the detective and he’s discussing the matter

with his sergeant. So I think this [is] to be continued for the time being, and

let’s continue with voir dire, and we’ll address this issue again at the end of

the day.

At the end of the day, the following exchange occurred in chambers:

THE COURT: We’re in chambers outside the presence of the jury.

The state has indicated that the detective that worked with the alleged

victim as a confidential informant is talking to his supervisor. State would

like defense to file a motion cause they’re not clear as to what is being

asked. I raised the issue of potentially subpoenaing the detective. My

thought at this time is we seat the jury, do openings, and, defense, you can

file – work out a motion tonight and file it in the morning or if you want to

–

[Trial Counsel]: We’ll issue a subpoena. There’s no need for us to

file a motion if we issue [a] subpoena. He has to show up.

THE COURT: Okay.

7.
 [Trial Counsel]: And if you’re talking about depositions, then we can

ask the questions.

THE COURT: Okay. If you’re going to issue a subpoena, you can

get that done tonight, file it first thing in the morning. We’re not going to

start till at the earliest 10 a.m. So, that may be, and then I guess you’ve got

– if you want to argue, move to quash it or something, then we can have

that argument tomorrow morning before we bring the jurors in.

[Trial Counsel]: Is he going to be available to be served? I don’t

want to go through this and then he’s not available cause he’s not in town

or he’s not –

[Prosecutor]: I didn’t even ask him. I think he is in town.

THE COURT: That doesn’t sound like that’s the issue.

[Trial Counsel]: Not yet.

THE COURT: Fair enough. Anything more we need to say on this

issue?

[Prosecutor]: No, Judge. I am objecting for the record as to

subpoenaing the detective, bring him in, doing a deposition. I don’t think

that it’s relevant.

THE COURT: Understood. And I again am reserving my decision

on the relevance issue.

8.
 [Trial Counsel]: If he is – and this is inquiry. If we serve Detective

Fisher, could he get him the subpoena, since I think –

[Prosecutor]: Is he your process server?

[Trial Counsel]: I thought out of courtesy. I didn’t know we had to

fight for this.

[Prosecutor]: You could ask him.

[Trial Counsel]: Well, I’m asking you. He’s your agent, your

detective.

THE COURT: I’m inclined to assist the defense in getting this

deposition done. The disk was handed over late. He was out of town. I’m

trying to be as fair as I possibly can. So I would appreciate if the state

would assist in producing this witness for deposition. It may end up not

being relevant. But it seems to me like to create a good record and to avoid

prejudice the defendants at least producing the testimony in some form is

the prudent thing to do. Again, I haven’t ruled on the admissibility. I

haven’t ruled on the relevance. But I would just like to make a good record,

and I think producing this witness to allow for the deposition creates that

record. Whether it’s admissible or not we can deal with that at a later time.

[Prosecutor]: I will contact him and see if he can be here tomorrow. I

will ask him to be here. They’re going to be issuing a subpoena to him.

THE COURT: Thank you.

9.
 [Trial Counsel]: Thank you.

The trial court then continued with jury selection, and the jury was seated and sworn.

{¶ 15} Prior to breaking for the day, the parties returned to discussion of deposing

Detective Heban.

THE COURT: On the record. We are outside the presence of the

jury. Go ahead.

[Trial Counsel]: Yes, your honor. I inquired, asked to approach the

Court relative to an inquiry which had to do with the status of [the alleged

victim] being a confidential informant or snitch. The question that was to

be raised was whether or not I could broach that subject in my opening

statement. The reason I wanted to know with some type of certainty had to

do with the fact that we intend to have the detective here tomorrow

morning hopefully for the purposes of a deposition to inquire of the subject

matter as relates to [the alleged victim]. I did not want to conduct my

opening statement and use information that will not be substantiated by

testimony from the witness stand, and so with that being said, I respectfully

ask the Court to continue the opening statements until tomorrow morning.

[Prosecutor]: That’s fine, Judge.

THE COURT: Okay. And the state’s going to work on producing the

detective so this deposition can happen?

[Prosecutor]: Yes.

10.
 THE COURT: Okay. And are you going to need – I’m going to be in

docket tomorrow morning. So are you going to be able to get a court

reporter, figure that out on your own, or you going to need –

(Whereupon, a discussion was held off the record)

THE COURT: Okay. An off-the-record conversation was held. I

believe I’ll be able to use a JAVS tech tomorrow morning which would free

up [the court reporter] to do the deposition of the detective at 9. Maybe you

can use another courtroom, obviously, so there’s no run-in with our jurors.

Anything else?

[Trial Counsel]: No.

The trial court went on the record one more time before adjourning for the day, and

addressed whether the defendants should be present for the deposition. Appellant’s trial

counsel waived their respective client’s presence, and the trial court ruled that the

deposition transcript would be designated for counsel only.

{¶ 16} On August 31, 2022, the matter resumed, and the trial court once more

memorialized conversations held off the record in the following exchange:

THE COURT: All right. On the record. Extensive conversations

have been held off the record. In a nutshell, there was some potentially

exculpatory evidence that [trial counsel] has identified that he received

notice of two weeks ago?

[Trial Counsel]: Yes.

11.
 [Prosecutor]: Judge, we put it in 8-16 is when we provided the

discovery to defense.

THE COURT: Okay. All right. Had – I don’t want to put words in

your mouth, [trial counsel], but had you received it earlier you probably

would have followed up with a motion to explore receiving more

exculpatory evidence; is that correct?

[Trial Counsel]: That is correct.

THE COURT: Okay. The potential exculpatory evidence raises a

potential issue for the state as well regarding a motion in limine; is that

correct State?

[Prosecutor]: Yes, Judge.

THE COURT: So because of this issue, I’m inclined to believe that

this case is not ready to be tried, and I’m considering a mistrial, declaring a

mistrial and resetting the trial date. * * *

{¶ 17} Although the trial court expressed a desire to declare a mistrial, the state

argued against a mistrial, indicating readiness to proceed to trial and arguing the

information sought by the defense from Detective Heban was not relevant to trial.

However, the state also indicated the trial court had discretion to declare a mistrial “if the

defense feels they need to look further into any other matters related to that disk that we

provided.” The prosecutor stated that her office “met our obligation” relative to

12.
discovery and intended to file a motion in limine to prohibit “mentioning any of that

material that we discussed in chambers.”2

{¶ 18} In response, trial counsel argued that the prosecutor’s account, while

accurate, ignored the fact that the state produced a disk containing potentially exculpatory

evidence two weeks before trial. Furthermore, Hayward’s trial counsel indicated he was

out of town for part of the two-week period, and the prosecutor was aware he would be

out of town when she left the discovery for the defense to retrieve. Appellant’s trial

counsel then addressed the issue of a mistrial:

[Trial Counsel]: So now with that being said, I do realize that it puts

us in a somewhat awkward position to go forward. So as far as the Court

making this determination to consider and grant a mistrial, that is our

position and have no, nothing else relative to that.

When questioned by the trial court, individually, whether they had any objection to a

mistrial, Ashford’s trial counsel stated, “No, Your Honor” and Hayward’s trial counsel

stated, “Not at this time, no.”

{¶ 19} The trial court then inquired whether there was “any less draconian action

that either side can think of that I should take other than declaring a mistrial today and

rescheduling this case for trial?” The parties responded as follows:

2
At the time of appeal, the state had not filed a motion in limine.

13.
 [Trial Counsel]: I was going to say other than a dismissal I don’t

think there is.

THE COURT: Anything from the State”

[Prosecutor]: No, Judge.

{¶ 20} Following this exchange, the trial court inquired, “Is there a double

jeopardy issue for me declaring a mistrial?” The state addressed the potential double

jeopardy issue, arguing there was no prosecutorial misconduct, and therefore, no double

jeopardy issue. Appellants’ trial counsel did not address the trial court regarding double

jeopardy concerns or prosecutorial misconduct. Consistent with their prior assurance to

the trial court that they had no objection to a mistrial, Ashford’s and Hayward’s

respective trial counsel raised no objection to rescheduling the trial.

{¶ 21} The trial court declared a mistrial and immediately scheduled a new trial

date with participation of all counsel. Appellants’ trial counsel consulted their respective

calendars and agreed to a new trial date on November 15, 2022.

{¶ 22} On September 16, 2022, Hayward filed a motion to compel regarding

information related to the police investigation, including the identity of other suspects,

names of all persons interviewed as part of the investigation, and the results of all

forensic tests conducted. The motion specifically referenced the proposed deposition of

Detective Heban, as follows:

The Court suggested, and the State acquiesced to, allowing a

deposition of an ancillary, nonetheless, percipient witness, prior to

14.
 commencing trial. The scheduled morning of the deposition, the State of

Ohio, reneged, refused to present the witness, and indicated it was

‘objecting’ to the deposition.

{¶ 23} On October 5, 2022, Ashford filed an identical motion to compel, with the

same argument and the same reference to the deposition.

{¶ 24} The state filed opposition to the motions to compel, arguing it provided

discovery in compliance with the Criminal Rules of Procedure.

{¶ 25} On October 12, 2022, Ashford and Hayward filed a joint motion to dismiss

the indictment, arguing prosecutorial misconduct led to the trial court’s declaration of a

mistrial. In support, Ashford and Hayward detailed the production of discovery by the

state, including the recording produced on August 16, 2022. Ashford and Hayward

argued that the late production of the recording, two weeks prior to trial, combined with

off-the-record conversations between trial counsel and the prosecutor, demonstrated

misconduct aimed at procuring a mistrial. Ashford and Hayward did not address the

issue of consent within the motion to dismiss, relying solely on argument of prosecutorial

misconduct that procured the mistrial.

{¶ 26} On November 1, 2022, the state filed its response to the motion to dismiss.

The state addressed its production of discovery, including the August 16 recording,

characterizing that recording as a video of the alleged victim’s discussion with a detective

regarding a 2019 burglary, identifying Ashford and Hayward. The state also indicated

that the video included discussion of the alleged victim’s work as a confidential

15.
informant. The state argued that, after conducting research, the prosecution determined a

deposition was not appropriate or provided for under Crim.R. 15. The state further

argued that the defense did not object to the trial court declaring a mistrial, sua sponte,

and therefore dismissal based on double jeopardy was not proper.

{¶ 27} On November 2, 2022, while the motion to dismiss was pending, the trial

court ruled on the motions to compel filed by Ashford and Hayward. The trial court

granted the motion, and “following an off-the-record discussion in chambers,” scheduled

deposition on November 9, 2022. The trial court further granted the state leave to file a

motion in limine regarding “whether the deposition should take place in camera.”

{¶ 28} Also on November 2, 2022, the state filed a memorandum in support of

permitting deposition of the state’s detective in chambers, outside the presence of

appellants. The state argued that the detective was engaged in ongoing undercover

operations, and officer safety required either closing the courtroom or shielding the

detective’s identity by permitting the detective to testify in disguise. Ashford and

Hayward each opposed the state’s motion, arguing that excluding the defendants from the

deposition is prohibited by Crim.R. 15.

{¶ 29} On November 9, 2022, the trial court held a hearing on the motions to

dismiss. At hearing, appellants’ trial counsel reiterated argument regarding prosecutorial

misconduct, referencing the discovery produced on August 16, as well as subsequent

conduct by the prosecutor and the state’s witness, Detective Heban, who failed to appear

for deposition a second time. Trial counsel also attempted to supplement the record with

16.
recollections of off-the-record discussions leading up to the declaration of a mistrial,

suggesting the defense opposed a mistrial, contrary to the record that contained Ashford’s

and Hayward’s responses to the trial court’s inquiry, indicating no objection. The trial

court took the matter under advisement. The trial court also continued the trial date of

November 15, 2022.

{¶ 30} On November 30, 2022, the trial court denied the motions to dismiss,

finding appellants consented to mistrial. Additionally, the trial court found no

prosecutorial misconduct and determined that manifest necessity required a mistrial so

that appellants might have an opportunity to explore potentially exculpatory evidence.

{¶ 31} Appellants each filed a timely appeal from this judgment, and we

consolidated the appeals for review.

III. Assignments of Error

{¶ 32} On appeal, Ashford and Hayward assert identical assignments of error, as

follows:

1. The trial court erred in finding the Defendants consented to the declaration

of a mistrial.

2. The trial court erred in denying Defendants’ motion to dismiss after it

sua sponte declared a mistrial as a result of prosecutorial misconduct that

was intentionally calculated to invite the mistrial.

3. The trial court erred in denying Defendants’ motion to dismiss

17.
 because it abused its discretion by sua sponte declaring a mistrial absent a

manifest necessity to do so.

4. Even if this Court finds Defendants consented to the declaration of a

mistrial, the trial court erred in denying Defendants’ motion to dismiss

because their consent was predicated on prosecutorial overreaching.

{¶ 33} For ease of discussion, we address some assignments of error together.

IV. Analysis

{¶ 34} We review the trial court’s denial of a motion to dismiss the indictment,

based on double jeopardy, under a de novo standard. (Citations omitted) State v.

Anderson, 148 Ohio St.3d 74, 2016-Ohio-5791, 68 N.E.3d 790, ¶ 20. In considering the

underlying basis for a mistrial, however, we defer to “the trial court’s discretion in this

area, in recognition of the fact that the trial judge is in the best position to determine

whether the situation in his courtroom warrants the declaration of a mistrial.” (Citations

omitted) State v. Glover, 35 Ohio St.3d 18, 19, 517 N.E.2d 900 (1988).

{¶ 35} The trial court sua sponte declared a mistrial after the jury was impaneled

and sworn. Once the jury is sworn, jeopardy attaches, requiring a determination of

“whether retrial is barred by the prohibition against double jeopardy.” State v. Calhoun,

18 Ohio St.3d 373, 375, 481 N.E.2d 624 (1985). The right against repeated prosecution

is not absolute. State v. Owens, 127 Ohio App.3d 65, 68, 711 N.E.2d 767 (6th

Dist.1998). “The Double Jeopardy Clauses of both the Fifth Amendment to the United

States Constitution, applied to the states through the Fourteenth Amendment, and Article

18.
I, Section 10, of the Ohio Constitution prohibit a person, for the same offense, from being

“twice put in jeopardy of life or limb.” State v. Campbell, 6th Dist. Wood No. WD-18-

035, 2019-Ohio-1174, ¶ 7, quoting the Fifth Amendment.

{¶ 36} Double jeopardy prohibitions apply to bar “(1) ‘a second prosecution for

the same offense after acquittal,’ (2) ‘a second prosecution for the same offense after

conviction,’ and (3) ‘multiple punishments for the same offense.’” State v. Mutter, 150

Ohio St.3d 429, 2017-Ohio-2928, 82 N.E.2d 1141, ¶ 15, quoting North Carolina v.

Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other

grounds, Alabama v. Smith, 490 U.S. 794, 802, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989).

In the present case, the prohibition against multiple punishments is implicated, as the

Double Jeopardy Clause “protects a criminal defendant from repeated prosecutions for

the same offense.” Owens at 68, quoting Oregon v. Kennedy, 456 U.S. 667, 671, 102

S.Ct. 2083, 72 L.Ed.2d 416 (1982).

A. Appellants consented to the mistrial

{¶ 37} The trial court denied appellants’ joint motion to dismiss, finding they

consented to the mistrial. Appellants challenge this finding in their first assignment of

error, arguing they did not expressly consent to a mistrial, and furthermore, the totality of

the circumstances fails to demonstrate implicit consent to a mistrial. They further argue

that, even if their trial counsel impliedly consented, the record of the hearing on the joint

motion to dismiss demonstrated that appellants did not give their respective trial counsel

authority to consent.

19.
 {¶ 38} As an initial matter, we note that the record indicates appellants were

present in court when the trial court declared a mistrial and scheduled a new trial date.

Furthermore, neither Ashford nor Hayward raised ineffective assistance of counsel as an

error on appeal. See, e.g., In re S.B., 183 Ohio App.3d 300, 916 N.E.2d 1110, ¶ 25 (10th

Dist.) (challenging effectiveness of counsel based on claim attorney did not advocate

client’s wishes). The Ohio Rules of Professional Conduct, moreover, allocate authority

between client and lawyer, pursuant to Rule 1.2(a), providing, in part: “A lawyer may

take action on behalf of the client as is impliedly authorized to carry out the

representation.” With no challenge to the performance of appellants’ trial counsel, and

nothing in the record to support a finding that trial counsel exceeded the implicit

authority to “carry out the representation,” we find no basis to consider any claimed

impropriety by appellants’ trial counsel. We, therefore, address the issue of consent to

mistrial without consideration of appellants’ suggestion of ineffective assistance of

counsel.

{¶ 39} “The general rule is that mistrials, granted at the request of defendant or

with defendant’s consent, do not bar retrial on the basis of double jeopardy.” State v.

Jackson, 6th Dist. Lucas No. L-89-196, 1990 WL 40138 (Apr. 6, 1990), citing United

State v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). Although the

defense did not request the mistrial, we may imply consent “when a defendant has had an

opportunity to object to the declaration of a mistrial and fails to do so[.]” Jackson, supra,

quoting U.S. v. Puleo, 817 F.2d 702, 705 (11th Cir.1987).

20.
 {¶ 40} In State v. Jackson, 6th Dist. Lucas No. L-89-196, 1990 WL 40138 (Apr. 6,

1990), we considered circumstances in which a defendant did not object to a mistrial, but

also did not explicitly voice his consent. We noted that the defendant “had an

opportunity to object to the mistrial but [chose] to forego that opportunity.” Jackson at

*2. Additionally, we agreed with the trial court that “it is difficult to comprehend how

defendant Jackson could other than benefit from the mistrial.” Id. Therefore, we found

implicit consent to a mistrial. Id.

{¶ 41} Here, appellants, through their respective trial counsel, were attempting to

gather information on the alleged victim’s activities as a confidential informant for the

police, based on new discovery the prosecutor supplied two weeks before trial.

Appellants’ trial counsel argued that the deposition of Detective Heban was necessary to

obtain this information, to effectively cross-examine the alleged victim. Therefore, the

defense arguably benefited from the mistrial, as they gained an opportunity to explore

potential impeachment of the alleged victim, referring to the information as potentially

exculpatory evidence. Furthermore, when asked if they objected, Ashford and Hayward

– through counsel – stated they did not object to a mistrial.

{¶ 42} Other jurisdictions have found consent in circumstances similar to those

demonstrated in this case. For example, in State v. Mengistu, 10th Dist. Franklin No.

02AP-497, 2003-Ohio-1452, the Tenth Appellate District found a defendant consented to

a mistrial, even though the prosecutor made the request. In Mengistu, the defense

acknowledged it created “egregious error” by referencing a polygraph examination, and

21.
after the prosecutor requested a mistrial, stated, “I have no objection to the court

declaring a mistrial at this time and rescheduling this for a hearing at a later date.” Id. at

¶ 21. The Tenth District noted that the important consideration in determining consent

concerned whether “the defendant retain[ed] primary control over the course to be

followed.” Mengistu at ¶ 27, quoting United States v. DiPietro, 936 F.3d 6, 11-12 (1st

Cir.1991), quoting Dinitz at 609. Because defense counsel in Mengistu “acquiesced in

the decision to grant a mistrial” and “expressly consented to the scheduled of a new

trial[,]” the court found the defendant “retained control over the course to be followed”

and “retrial was not barred by double jeopardy.” Mengistu at ¶ 27, citing DePietro at 12.

{¶ 43} The Sixth Circuit Court of Appeals, in addressing the issue of implied

consent, has required “some positive indication from the record of the defendant’s

willingness to consent to declaration of a mistrial” before finding consent. (Citation

omitted) United States v. Gantley, 172 F.3d 422, 428 (6th Cir.1999). Applying this

requirement, a court must undertake “an especially careful examination of the totality of

circumstances, to ensure a defendant’s consent is not implied when there is a substantial

question of whether the defendant did, in fact, consent.” Id. at 429. The court in Gantley

found no positive indication of consent, based on the circumstances that included only the

defendant’s silence. Gantley at 429. However, other courts, applying the rule from

Gantley, have found implied consent based on a failure to object combined with other

factors. For example, in United States v. Osaghae, 20 Fed.Appx. 369, 371 (6th

Cir.2001), the Sixth Circuit found a failure to object combined with other factors,

22.
including trial counsel’s request to withdraw during trial and lengthy discussion with the

trial court regarding potential alternatives to mistrial, demonstrated implied consent to

mistrial.

{¶ 44} Here, appellants did more than fail to object. Ashford and Hayward,

through their respective trial counsel, informed the trial court that they did not object to

the mistrial. Appellants’ trial counsel then participated in selecting a new trial date, and

following the mistrial, continued to seek the deposition of Detective Heban, filing a

motion to compel which the trial court granted. All of these circumstances, in

combination, demonstrate acquiescence to a mistrial, or a positive indication of consent,

with the defense amenable to a mistrial to obtain more time to depose Detective Heban.

Based on this record, we find appellants consented to the mistrial.

{¶ 45} We therefore find appellants’ first assignment of error not well-taken.

B. Consent to mistrial was not predicated on prosecutorial
misconduct.

{¶ 46} In their second and fourth assignments of error, appellants argue that the

prosecutor’s conduct provoked a mistrial. As a result, they argue that the trial court’s sua

sponte declaration of a mistrial, or in the alternative, the defense consent to a mistrial,

prevent a retrial based on the bar of double jeopardy. As support for claims that the

prosecution provoked a mistrial, appellants point to the late production of discovery that

revealed the alleged victim’s history as a confidential informant, combined with the

state’s failure to produce Detective Heban for deposition, prior to declaration of a

mistrial.

23.
 {¶ 47} Although consent has been addressed as a waiver of the right against

successive prosecutions, waiver has little relevance if the prosecutor provoked the

mistrial. (Citations omitted) United States v. Dinitz, 424 U.S. at 609, 96 S.Ct. 1075, 47

L.Ed.2d 267. “In such circumstances, the defendant generally does face a ‘Hobson's

choice’ between giving up his first jury and continuing a trial tainted by prejudicial

judicial or prosecutorial error.” Id. Thus, in order to find a successive trial barred by

double jeopardy, based on prosecutorial misconduct, we must find the prosecution

intended to “goad” the defense into consenting to mistrial. See Oregon v. Kennedy, 456

U.S. at 676, 102 S.Ct. 2083, 72 L.Ed.2d 416; Anderson, 148 Ohio St.3d 74, 2016-Ohio-

5791, 68 N.E.3d 790; State v. Glover, 35 Ohio St.3d 18, 517 N.E.2d 900 (1988), syllabus.

{¶ 48} The trial court, in denying dismissal, found no misconduct by the

prosecutor that provoked a mistrial. The specific misconduct, argued by appellants in

their joint motion to dismiss, concerned the disclosure on August 16, two weeks before

the scheduled trial date, and the failure of Detective Heban to appear for deposition the

morning of August 31, 2022. In the motion to dismiss, appellants argued misconduct, as

follows:

Although the State asserts it ‘never hid any evidence’ nonetheless it

endeavored to prevent the defendants from obtaining, examining, and

utilizing lawfully requested impeachment materials to challenge the

credibility of the one witness whose testimony the State’s case is entirely

dependent.

24.
 {¶ 49} The trial court rejected appellants’ characterization of events leading up to

the declaration of a mistrial. Specifically, the trial court noted the delay by the defense in

reviewing the discovery and the lack of any request for continuance or service of a

subpoena, prior to the start of trial. The trial court concluded:

There is no indication that the prosecutor was aware that the witness

was a confidential informant and intended to hide that fact from defense

counsel. The supplemental discovery disc was provided to defense counsel

two weeks prior to trial. Apparently, defense counsel did not review the

disc until the weekend prior to trial. Defendant Hayward’s counsel cannot

state with certainty that he did not have an opportunity to review the disc

before leaving town. And, when defense counsel raised this issue

immediately before trial, the State and the Court made every effort to

address this issue while preserving the August 30 trial date. The Court finds

no indication of prosecutorial misconduct, and further finds no intent on the

State’s part to ‘orchestrate’ a mistrial, as Defendants suggest.

{¶ 50} In challenging the trial court’s finding on appeal, appellants reference

matters occurring both off the record and after the mistrial was declared. They reference

the hearing transcript for their motion to dismiss, containing recollections of matters

discussed off the record prior to the declaration of a mistrial. They also reference a court-

ordered deposition, but the trial court did not grant the defense motion to compel until

after the mistrial was declared, with earlier deposition “suggested” by the trial court to

25.
facilitate trial counsels’ discovery efforts so trial might proceed.3 Furthermore,

appellants argue that the state assured the trial court that Detective Heban would appear,

and then failed to produce the detective, knowing his failure to appear would provoke a

mistrial. The record, however, is more nuanced.

{¶ 51} Based on the record, the prosecutor indicated she would “work on

producing the detective so this deposition can happen” and would “see if he can be here,”

but otherwise continued to object to the deposition. The prosecutor also noted that

appellants’ trial counsel intended to subpoena the detective, and in the context of the

detective’s attendance, appellants’ trial counsel informed the trial court they would issue

a subpoena, stating, “if we issue a subpoena[, he] has to show up.” The next morning,

trial counsel had a subpoena in hand, but had not yet served it on the detective. Detective

Heban did not appear for deposition.

{¶ 52} In addition to relying on matters not within the record, appellants argue that

the trial court’s finding regarding prosecutorial misconduct was conclusory, and focused

on the conduct of appellants’ trial counsel rather than the intent of the prosecutor. The

record cited in support, however, belies this assertion.

{¶ 53} While appellants argued that they were correct to rely on the state to

produce Detective Heban for deposition on the second morning of trial, the trial court

3
In their briefs, Ashford and Hayward characterize the trial court’s attempt to mediate a
resolution to the discovery issue as a court-ordered deposition. This conflicts with their
position in the joint motion to dismiss, in which they acknowledged the trial court
“suggested” a deposition and tried to assist in scheduling the deposition.

26.
rejected trial counsel’s argument, noting the discussions regarding deposition and trial

counsel’s failure to issue a subpoena to the detective. The trial court addressed this at

hearing, stating:

THE COURT: But you’re doing a double standard. You’re saying

the State acted improperly because they didn’t do what they said they were

going to do, but you’re saying it doesn’t apply to us because we were going

to do it that very second instead you saying you were going to issue a

subpoena to compel the deponent to appear. It cuts against your argument

of prosecutorial misconduct because you did not do the act that would have

compelled the deponent to appear.

{¶ 54} “When prosecutorial error even of a degree sufficient to warrant a mistrial

has occurred, ‘[t]he important consideration, for purposes of the Double Jeopardy Clause,

is that the defendant retain primary control over the course to be followed in the event of

such error.’” Oregon v. Kennedy, 456 U.S. at 676, 102 S.Ct. 2083, 72 L.Ed.2d 416,

quoting Dinitz, 424 U.S. at 609, 96 S.Ct. 1075, 47 L.Ed.2d 267. Retrial is barred only

where the misconduct is intended to “goad” a mistrial. Id.

{¶ 55} Here, there is nothing in the record to support a finding that the prosecutor

intended to provoke a mistrial. Significantly, the trial court did not find any misconduct

by the state, relevant to the discovery issued raised by appellants’ trial counsel. The trial

court noted the prosecutor produced the supplemental discovery two weeks before trial

and appellants’ trial counsel did not review the discovery until the weekend prior to trial.

27.
The trial court further noted that the prosecutor intended to proceed to trial and objected

to any delay.

{¶ 56} Additionally, appellants cite to nothing in the record demonstrating

conduct, in the context of trial, that involved an intentional act of deception or an

intentional withholding of evidence, designed to provoke a mistrial. Instead, appellants

argue that the late-produced discovery indicated the potential existence of exculpatory

evidence, and despite their awareness of this discovery prior to commencement of trial,

double jeopardy should bar a retrial based on the state’s failure to produce the detective

to permit further investigation by the defense into the matter. We find no support for

appellants’ position, relative to a known discovery dispute prior to the start of trial.

Rather, prosecutorial misconduct, for double jeopardy considerations, is generally viewed

in the context of intentional deception for the purpose of provoking a mistrial.

{¶ 57} In State v. Loza, 71 Ohio St.3d 61, 69-70, 641 N.E.2d 1082 (1994), the

Ohio Supreme Court addressed the issue of misconduct, intended to provoke a mistrial,

finding the discovery of previously unknown test results through testimony from the

state’s final witness at trial not indicative of misconduct aimed at causing a mistrial. In

Loza, the defense argued that this information and other evidence could have been used

to challenge the credibility of one of the state’s main witnesses, who testified that the

defendant confessed to her. Id. In considering an intent to provoke a mistrial, the

Supreme Court did not focus on whether the state withheld the discovery, but whether the

state committed a deceptive act by intentionally withholding the report in order to cause a

28.
mistrial. Id. at 70-71. Because the state was not aware of the report until the witness

testified, the Court determined there was “no indication that the state engaged in an

intentional act of deception, or that the state intentionally withheld exculpatory

evidence.” Id. at 71.

{¶ 58} Likewise, in State v. Hodges, 2018-Ohio-447, 105 N.E.3d 543 (7th Dist.), ¶

8; ¶ 21-23, the Seventh District Court of Appeals found no indication of a prosecutorial

“intent to create error in order to force a new trial” where Hodges’ co-defendant entered a

negotiated plea in the middle of trial, after the trial court granted a motion to strike the

testimony of the state’s eyewitness. After previously providing an alibi for Hodges, his

co-defendant incriminated him at trial. Id. at ¶ 22-23. As a result, Hodges requested that

the trial court grant a mistrial. Id. at ¶ 9. In finding no intent to provoke a mistrial, the

Seventh District noted the prosecution gained no material advantage from a mistrial, and

the only intent apparent in the record was the prosecution’s intent “to convict the

defendant with the co-defendant’s testimony.” Id. at ¶ 24.

{¶ 59} Here, there was no intent to deceive, as the prosecution disclosed the

information that led appellants’ trial counsel to believe that potentially exculpatory

evidence existed, and the trial proceeded despite this knowledge. As a result, appellants

remained in control, with knowledge of the discovery, and the record does not support a

finding that the prosecutor committed an intentional act of deception or intentionally

withheld evidence with an intent to force a mistrial.

29.
 {¶ 60} Accordingly, we find appellants’ second and fourth assignments of error

not well-taken.

C. Manifest necessity is not a consideration where there is consent

{¶ 61} In their third and final assignment of error, appellants argue the trial erred

by declaring a mistrial in the absence of a manifest necessity to do so. Because we have

determined that appellants’ consented to a mistrial, “the presence or absence of manifest

necessity is not a consideration.” Mengistu, 10th Dist. Franklin No. 02AP-497, 2003-

Ohio-1452, at ¶ 28, citing Oregon v. Kennedy, 456 U.S. at 672, 102 S.Ct. 2083, 72

L.Ed.2d 416 (additional citation omitted).

{¶ 62} Appellant’s third assignment of error, therefore, is not well-taken.

V. Conclusion

{¶ 63} For the forgoing reasons, we affirm the judgment of the Lucas County

Court of Common Pleas. Appellants are ordered to pay the costs of this appeal pursuant

to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

30.
 State of Ohio v.
Marcus Ashford and
Jamarr Hayward, Jr.
C.A. No. L-22-1296, 1299

Thomas J. Osowik, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
____________________________
JUDGE

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.

31.