[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
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
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.