Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 06-00681-John D. Holschuh, District Judge.
The opinion of the court was delivered by: Suhrheinrich, Circuit Judge.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206
Before: SUHRHEINRICH, McKEAGUE, and KETHLEDGE, Circuit Judges.
The Double Jeopardy Clause of the Fifth and Fourteenth Amendments bars retrial following a declaration of mistrial unless the defendant consented to the mistrial or there was a "manifest necessity" for the mistrial. In this habeas appeal brought under 28 U.S.C. § 2244, Respondent Michael Sheets challenges the district court's conclusion that the state court unreasonably applied Supreme Court precedent when it determined that the state trial court's declaration of a mistrial was manifestly necessary and therefore not a violation of Colvin's Fifth Amendment rights. We REVERSE.
A. State Trial Proceedings
Colvin was indicted in September 2001, on one count for the crime of felonious assault in violation of Ohio Revised Code Section 2903.11, with specifications, one count for the crime of attempted murder in violation of Ohio Revised Code Section 2923.11, with specifications, and two counts for the crime of having a weapon while under a disability in violation of Ohio Revised Code Section 2923.13.*fn1 Colvin pleaded not guilty. Colvin waived a jury trial as to the two counts of possessing a weapon while under a disability, but proceeded to trial on the attempted murder and felonious assault charges in March 2003. Petitioner's co-defendant accepted a plea bargain during the course of the trial and testified against Colvin. The jury was unable to reach a verdict, and the trial court declared a mistrial.
The case then proceeded to retrial in November 2003. Prior to the retrial, the trial judge, defense counsel, and prosecutor agreed that the parties would not refer to the hung jury. Instead, it was agreed that any reference to testimony in the first trial for impeachment purposes would be characterized as "testimony in a prior proceeding."
However, during closing argument, defense counsel stated:
Reality is the State cannot prove this case beyond a reasonable doubt. The State cannot prove his case beyond a reasonable doubt. They don't have it. It's not there. Tried before. They couldn't convince the jury then and they can't do it now.
The prosecutor objected and the following discussion took place out of the hearing of the jury:
THE COURT: What are you doing?
[DEFENSE COUNSEL]: I apologize, Your Honor.
THE COURT: Couldn't convince them then. What the hell do you think that kind of impression is going to leave with this jury? We talked about this ahead of time that we were not going to talk about the fact that it was a hung jury the last time. What the heck do you think you've just told these people?
[DEFENSE CO-COUNSEL]: I don't think she told the jury it was a hung jury, Your Honor.
THE COURT: Couldn't reach a verdict the last time. Read it. [Statement is read by court reporter.]
[DEFENSE CO-COUNSEL]: Didn't say the jury was hung, Judge.
[DEFENSE COUNSEL]: I apologize.
THE COURT: What the heck? How could you interpret that other than that? They couldn't convince them the last time.
[DEFENSE CO-COUNSEL]: I don't know, Your Honor.
THE COURT: Then why are we here a second time. They're going to go back and speculate that we didn't do it the last time. Well gee whiz. Jump in here.
[PROSECUTOR]: It's so incredibly prejudiced, the fairness of this case. I cannot even
--THE COURT: I can't believe this.
[PROSECUTOR]:-express. This is why I addressed this well before we did voir dire, so this would not be a part of anything because I did not want to taint this and have a third trial on this case. I'm not sure what kind of curative instruction you can give.
THE COURT: Without telling what the heck happened the last time. How in the heck do I cure it by just saying oh, just don't pay any attention to that? It's already done. It's already said. In order to explain to them or to make any sense out of any curative instruction I've got to tell them what the hell happened the last time so that we can understand how this curative instruction makes any sense. I don't know about you, I can't see it.
[DEFENSE CO-COUNSEL]: If I could, Your Honor, the jury already knows that there was a previous trial in this case.
[DEFENSE CO-COUNSEL]: I think instructing--providing a curative instruction to the jury that they're not to consider the outcome of any other proceedings in reaching a verdict in this case would be appropriate.
THE COURT: I don't think that solves it. What do you think?
[PROSECUTOR]: No. I think that that's the bear [sic] minimum. You can't tell her that she was mistaken because she's not and that would be prejudiced to the defense in putting some kind of impunity on that.
THE COURT: I'm taking the jury out.
The jury was removed from the courtroom and ...