[Cite as State v. Marshall, 2014-Ohio-4677.]


                     Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100840




                                      STATE OF OHIO
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                CHARLES MARSHALL
                                                        DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-97-349190-A

        BEFORE: Rocco, J., S. Gallagher, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: October 23, 2014
ATTORNEY FOR APPELLANT

Office of the Ohio Public Defender

BY: Francisco E. Lüttecke
Assistant State Public Defender
250 East Broad Street – Suite 1400
Columbus, Ohio 43215

ATTORNEYS FOR APPELLEE

Michael DeWine
Ohio Attorney General

BY: Paul L. Scarsella
Senior Assistant Attorney General

Jocelyn S. Kelly
Associate Assistant Attorney General
Ohio Attorney General’s Office
150 E. Gay Street, 16th Floor
Columbus, Ohio 43215
KENNETH A. ROCCO, J.:

       {¶1} Defendant-appellant Charles Marshall appeals his convictions after he pled

no contest to one count of involuntary manslaughter and one count of aggravated robbery,

arising out of a December 22, 1996 robbery of a Papa John’s pizza shop in Garfield

Heights and the fatal shooting of its store manager. Marshall contends that the trial

court erred and acted unreasonably in declaring a mistrial after it was discovered that a

witness statement, which had not been admitted into evidence, was improperly submitted

to the jury.   Marshall contends that his subsequent convictions violate the Double

Jeopardy Clause of the Fifth and Fourteenth Amendments to the United States

Constitution and Article I, Section 10 of the Ohio Constitution. For the reasons that

follow, we hold that the trial court exercised sound discretion in declaring a mistrial and

that the prohibition against double jeopardy does not bar Marshall’s convictions.

Procedural Background

       {¶2} On March 31, 1997, the Cuyahoga County Grand Jury indicted Marshall on

one count of aggravated murder with two capital specifications, three counts of

aggravated robbery, and three counts of kidnapping. Each of the counts also included

firearm specifications.   Marshall pled not guilty to the charges against him, and in

September 1997, the case proceeded to a jury trial. The jury found Marshall guilty on all

counts and all specifications.

       {¶3} On October 9, 1997, the jury recommended that Marshall be sentenced to

death for his conviction for aggravated murder, finding that the aggravating
circumstances outweighed the mitigating factors beyond a reasonable doubt. On October

10, 1997, the trial judge accepted the jury’s recommendation and orally pronounced

Marshall’s death sentence on the aggravated murder conviction. The trial judge also

sentenced Marshall to 58 years in prison on the other counts of which he was convicted

(nine years on each of the aggravated robbery and kidnapping counts, to be served

consecutively, along with consecutive sentences, totaling four years, on the gun

specifications).    However, the sentence was never journalized.

       {¶4} At some point after the trial judge orally pronounced Marshall’s sentence and

before a final order or journal entry was prepared, the trial judge realized that the jury had

not been properly instructed on the option of sentencing Marshall to life in prison without

the possibility of parole.1 As a result, on October 14, 1997, the trial judge vacated the

death sentence and recused himself from further proceedings in the case. The case was

then reassigned to a new trial judge.

       {¶5} In December 1997, the new trial judge (the “second trial judge”) granted

Marshall’s motion for a new trial. In the fall of 1998, a new jury was empaneled.

During jury selection, the state appealed various pretrial rulings by the trial court,

excluding certain evidence that the state sought to admit at trial. This court reversed the

trial court’s evidentiary rulings and remanded the case. State v. Marshall, 136 Ohio



       1
          Both the state and defense agreed that an error had been made in the sentencing phase and
that the jury should have been instructed regarding the option of sentencing Marshall to life in prison
without the possibility of parole.
App.3d 742, 737 N.E.2d 1005 (8th Dist.2000). The case proceeded to trial a second time

on February 1, 2001.

        {¶6} During Marshall’s first trial, Tony Haynes, a longtime friend of Marshall,

testified on behalf of the state. Haynes testified that Marshall told him that he had

committed the December 22, 1996 Papa John’s robbery along with an accomplice, and

that he had shot the store manager during the robbery. Haynes further testified that after

receiving this information, he contacted Detective Paul Mazzola, one of the Garfield

Heights police officers involved in investigating the Papa John’s robbery, and gave a

written statement to police detailing Marshall’s admission. The trial judge in the first

trial allowed Haynes to read his written statement to the jury, which was marked for

identification purposes as state’s exhibit No. 37.              The statement, however, was not

admitted into evidence.

        {¶7} During the second trial, Haynes did not testify. Although the state indicated,

in its opening statement, that it expected Haynes to testify regarding a conversation

Haynes had had with Marshall shortly after the incident, in which Marshall admitted

killing the store manager and described, in detail, the circumstances surrounding the

shooting, the state was unable to bring Haynes in to testify.2 When the state realized,

        2
           Cleveland police Sergeant Marvin Cross testified that the reason the state was unsuccessful
in bringing Haynes in to testify was due to department overtime rules. He testified that although a
bench warrant had been obtained to secure Haynes’s appearance to testify at trial, officers could not
remain on surveillance until 1:00 or 2:00 a.m., at the time and place where Haynes was expected to
appear, because “department rules would not allow us to do that, not for a witness.” He further
testified that if Haynes had been a suspect, “then the rules would definitely be a lot different” and that
they would have been allowed to expend the resources necessary to track him down.
during the course of the second trial, that it would be unable to produce Haynes as a live

witness, the state sought to have Haynes’s testimony from first trial read into the record,

arguing that Haynes’s prior trial testimony was admissible as the former testimony of an

unavailable witness pursuant to Evid.R. 804(B)(1). Following an evidentiary hearing on

the issue conducted outside the presence of the jury, the trial court ruled that the state had

not made a sufficient showing of unavailability and that Haynes’s prior trial testimony

was, therefore, inadmissible.     Although Haynes did not testify, Detective Mazzola

testified that he met with and took a written statement from Haynes. Unlike in the first

trial, however, Haynes’s statement was not read to the jury. His statement was not

admitted into evidence, and state’s exhibit No. 37 was “withdrawn” by the state.

       {¶8} The jury began its deliberations in the second trial on February 14, 2001. On

the morning of February 16, 2001, the jury foreman delivered a note to the bailiff

containing the following question: “We, the jury, have an exhibit in our possession that

was referenced during the trial but never introduced as evidence. (Tony Haynes[’s]

statement, State Exhibit 37.) Is this acceptable by the law?” The note was given to the

bailiff along with a copy of Haynes’s statement, which bore an original red state’s exhibit

sticker, numbered 37. The bailiff delivered the note and exhibit to the trial judge.

       {¶9} After consulting with other judges, the trial judge called in counsel for the

parties. The trial judge read the jury’s question to counsel. The trial judge reminded the

parties that the statement of Tony Haynes had been referenced three times during the trial

and that the court had made specific rulings with regard to the statement during the trial.
She then asked, “Do I hear a motion from the defense?” Defense counsel did not

respond. Instead, the following exchange occurred:

       [PROSECUTOR]: I don’t know how that got in there, Judge.

       THE COURT: Well, we will be having a hearing on that. I’m declaring a
       mistrial, and I will entertain motions. We will have a hearing in two
       weeks.

       [MARSHALL’S COUNSEL]: Thank you, your honor.

       THE COURT: All right. Prosecutorial misconduct is the reason for the

       mistrial.

Although the trial judge had indicated that a hearing would be held to determine how the

exhibit got into the jury room, no hearing was held, and no motions related to the trial

court’s declaration of a mistrial or any other response or objection to the trial court’s

declaration of a mistrial was filed by either party.

       {¶10} A week later, on February 23, 2001, the trial court’s declaration of a mistrial

was journalized.     The February 23, 2001 journal entry omitted any reference to

“prosecutorial misconduct” as the basis for the mistrial and instead stated that a mistrial

was declared because “out-of-court statement of Tony Haynes (State’s Exhibit 37) [was]

not properly before the jury.” The jury panel was discharged. The second trial judge

then recused herself from the case.

       {¶11} Around this same time, the state filed an application to appoint a special

prosecutor to investigate the circumstances under which the statement of Tony Haynes

had been submitted to the jury. The presiding/administrative judge for the Cuyahoga
County Court of Common Pleas promptly granted the application, and the investigation

began on February 23, 2001.

       {¶12} In March 2001, the case was reassigned to a third trial judge. On June 4,

2001, the special prosecutor issued a report, detailing the results of his investigation.

Although there was strong circumstantial evidence3 that one of the prosecutors may have

been responsible for improperly submitting the statement of Tony Haynes to the jury, the

special prosecutor indicated that there was “no direct evidence” that the prosecutor had

“engaged in any misconduct” and insufficient evidence “to sustain a criminal charge”

against him.4

       {¶13} On March 21, 2002, Marshall filed a pro se “motion to request dismissal on

grounds of former jeopardy,” arguing that (1) manifest necessity had not been established

to support the second trial judge’s sua sponte declaration of a mistrial and (2) double

jeopardy should preclude further prosecution of the case against him based on the second

trial judge’s initial statement that a mistrial was warranted due to prosecutorial

misconduct. On May 24, 2002, Marshall’s counsel filed a second motion to dismiss the

case on double jeopardy grounds, arguing that the state should be barred from retrying the


       3
          As outlined in the special prosecutor’s report, the circumstantial evidence suggesting that
one of the prosecutors may have been responsible for the statement of Tony Haynes getting to the jury
included evidence that the prosecutor was in a position to place the statement into the box of exhibits
submitted to the jury, his version of the relevant events was inconsistent with that given by other
witnesses, he failed a polygraph examination, and he made “troubling and arguably incriminating
statements” after he failed the polygraph examination.
       4
           On May 22, 2001, the matter was presented to the grand jury, but no charges were filed.
case against Marshall because (1) neither Marshall nor his attorneys5 had requested a

mistrial or were consulted prior to the trial judge’s sua sponte declaration of a mistrial and

(2) one of the prosecutors had engaged in misconduct intended to provoke a mistrial by

improperly submitting the statement of Tony Haynes to the jury. After a hearing, the

trial court denied the motion, concluding, based on the special prosecutor’s report, that

there was “[n]o evidence * * * that any prosecutor engaged in misconduct * * * [n]or * *

* any evidence * * * that any prosecutor acted with an intent to cause a mistrial in this

case.” 6    As such, the trial court held, “the Double Jeopardy Clause of the Fifth

Amendment is not triggered to bar a retrial in this matter.”7


        5
         In the second trial, the trial court had granted Marshall’s request to act as pro se co-counsel,
along with his two attorneys.

        Although the trial court did not specifically address the manifest necessity issue in its January
        6

15, 2003 judgment entry denying Marshall’s motion to dismiss, the issue was argued at the hearing on
the motion.
        7
          Marshall did not file a direct appeal of the order denying his motion to dismiss. At the
time, it was believed that the trial court’s denial of a motion to dismiss on double jeopardy grounds
was not a final, appealable order. See State v. Crago, 53 Ohio St.3d 243, 244-245, 559 N.E.2d 1353
(1990) (holding that the denial of a motion to dismiss on double jeopardy grounds was not a “final
order” within the meaning of R.C. 2953.02 and 2505.02 and that, therefore, a defendant could not
appeal the denial of a motion to dismiss based on double jeopardy grounds until after the trial was
concluded), overruling State v. Thomas, 61 Ohio St.2d 254, 400 N.E.2d 897 (1980); Wentzel v.
Enright, 68 Ohio St.3d 63, 623 N.E.2d 69 (1993), paragraph two of the syllabus; see also Marshall v.
State, 443 F.Supp.2d 911, 915 (N.D.Ohio 2006) (observing that “under Ohio law, the denial of a
motion to dismiss based on violation of the Double Jeopardy Clause is not a final appealable order”).
The law on that issue has since changed. In State v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-542,
6 N.E.3d 23, decided after Marshall filed his notice of appeal in this case, the Ohio Supreme Court
once again reversed course. Construing the General Assembly’s 1998 amendments to R.C. 2505.02
— which it determined “is more extensive than the language * * * construed in Crago” — the court
concluded that an order denying a motion to dismiss on double jeopardy grounds is a final appealable
order. Id. at ¶ 40, 60. The court reasoned that “an accused would not be afforded a meaningful
       {¶14} On April 9, 2003, Marshall filed, pro se, a third motion to dismiss on double

jeopardy grounds, raising many of the same arguments set forth in the earlier motions,

including that the trial court had abused its discretion in sua sponte declaring a mistrial,

and that his due process rights had been violated because he was not present when the

trial judge declared a mistrial, the trial judge declared a mistrial without giving defense

counsel an opportunity to be heard on the issue, and the trial judge failed to consider less

drastic alternatives, such as a curative instruction, prior to declaring a mistrial. On July

3, 2003, the trial court denied the motion based on res judicata, referencing its prior ruling

on the motion to dismiss filed by Marshall’s counsel.

       {¶15} In October 2003, Marshall filed a petition for a writ of habeas corpus with

the United States District Court for the Northern District of Ohio. This case was stayed

until final disposition of the habeas petition. In his habeas petition, Marshall raised

several issues, including that the commencement of a third trial violated double jeopardy

because the trial court’s mistrial declaration was not supported by manifest necessity.

The district court denied the petition, finding that, under the circumstances, the trial judge

had “acted rationally and responsibly” in granting a mistrial, that the trial court’s grant of

a mistrial was supported by manifest necessity, and that Marshall had impliedly consented

to the mistrial by failing to object to the trial court’s declaration of a mistrial either when

the trial judge orally announced her decision to declare a mistrial or in a subsequent


review of an adverse decision on a motion to dismiss and discharge on double-jeopardy grounds if
that party must wait for final judgment as to all proceedings in order to secure review of the
double-jeopardy decision.” Id. at ¶ 59.
written submission to the court. Marshall v. State, 443 F.Supp.2d 911 (N.D.Ohio 2006).

 Marshall did not appeal the denial of his habeas petition.

       {¶16} The stay was lifted in August 2007, and numerous pretrial proceedings

followed.   After several trial settings had come and gone, on November 25, 2013,

Marshall pled no contest to an amended charge of involuntary manslaughter, without any

specifications, and one count of aggravated robbery, also without specifications. In

exchange for his no contest pleas, the state agreed to dismiss the remaining counts and to

recommend an agreed sentence of 16 years (ten years on the involuntary manslaughter

charge and six years on the aggravated robbery count, to be served consecutively) with

credit dating back to his original arrest in 1997. The agreed recommended sentence was

to be served concurrently to sentences Marshall was then serving in other cases. With

regard to his no contest pleas, Marshall agreed to stipulate to the information contained in

all the prior trial transcripts. The trial court found Marshall guilty of the charges to

which he pled, accepted Marshall’s pleas as having been knowingly, intelligently, and

voluntarily made, and thereafter sentenced Marshall to the agreed recommended sentence

of 16 years in prison.      Marshall’s convictions and sentences were journalized on

December 4, 2013.

       {¶17} On January 3, 2014, Marshall appealed the judgment entry of conviction,

presenting the following assignment of error for review:

       The trial court erred and acted unreasonably when it assumed manifest
       necessity and declared a second mistrial in Mr. Marshall’s case, thus
       violating the Double Jeopardy Clause and depriving Mr. Marshall of his
       right to have his trial completed by a particular tribunal.
Legal Analysis

       {¶18} Marshall argues that there was no “manifest necessity” for a mistrial based

on the improper submission of the statement of Tony Haynes to the jury and that the trial

court’s sua sponte declaration of a mistrial in the second trial was an abuse of discretion.

Marshall further argues that because the trial court abused its discretion in declaring a

mistrial, his reprosecution was barred by the Double Jeopardy Clauses of the United

States Constitution and the Ohio Constitution.

       {¶19} The Double Jeopardy Clauses of the Fifth Amendment to the United States

Constitution, applicable to the states through the Fourteenth Amendment, and Article I,

Section 10 of the Ohio Constitution protect a criminal defendant against repeated

prosecutions for the same offense.    Oregon v. Kennedy, 456 U.S. 667, 671, 102 S.Ct.

2083, 72 L.Ed.2d 416 (1982); State v. Kareski, 137 Ohio St.3d 92, 2013-Ohio-4008, 998

N.E.2d 410, ¶ 14.    The policy underlying this protection is to ensure that

       “* * * the State with all its resources and power should not be allowed to
       make repeated attempts to convict an individual for an alleged offense,
       thereby subjecting him to embarrassment, expense and ordeal and
       compelling him to live in a continuing state of anxiety and insecurity, as
       well as enhancing the possibility that even though innocent he may be found
       guilty.”

United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), quoting

Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 2 L.Ed.2d 199.

       {¶20} The constitutional protection granted a criminal defendant under the Double

Jeopardy Clause also encompasses the defendant’s “‘valued right to have his trial
completed by a particular tribunal.’” Oregon at 671-672, quoting Wade v. Hunter, 336

U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949). This right, however, is not unlimited.

 In some instances, the defendant’s right to have his case resolved by a particular tribunal

must “be subordinated to the public’s interest in fair trials designed to end in just

judgments.” Wade at 689; see also Arizona v. Washington, 434 U.S. 497, 515, 98 S.Ct.

824, 54 L.Ed.2d 717 (1978) (“Neither party has a right to have his case decided by a jury

which may be tainted by bias; in these circumstances, ‘the public’s interest in fair trials

designed to end in just judgments’ must prevail over the defendant’s ‘valued right’ to

have his trial concluded before the first jury impaneled.”).             Thus, the Double Jeopardy

Clause does not bar reprosecution in every case.

        {¶21} Where a defendant objects to a mistrial, the defendant may be retried if

“manifest necessity” exists for the mistrial, State v. Gunnell, 132 Ohio St.3d 442,

2012-Ohio-3236, 973 N.E.2d 243, ¶ 25, or if “‘the ends of public justice would otherwise

be defeated.’” State v. Glover, 35 Ohio St.3d 18, 19, 517 N.E.2d 900, quoting State v.

Widner, 68 Ohio St.2d 188, 189, 429 N.E.2d 1065 (1981), citing Washington, 434 U.S. at

505, 98 S.Ct. 824, 54 L.Ed.2d 717.8 “Manifest necessity” means a “high degree” of

necessity must exist before a mistrial may properly be declared.                However, it does not

        8
            Notwithstanding the prohibition against double jeopardy, a defendant may also generally be
retried if the defendant requests or consents to a mistrial, unless the defendant’s request for a mistrial
is precipitated by prosecutorial misconduct intended to provoke a mistrial. N. Olmsted v. Himes, 8th
Dist. Cuyahoga Nos. 84076 and 84078, 2004-Ohio-4241, ¶ 36-37, citing Oregon at 676, and Glover,
35 Ohio St.3d 18, 517 N.E.2d 900. Although Marshall argued below that the state was prohibited
from reprosecuting him because the February 2001 mistrial was the result of prosecutorial misconduct
designed to provoke a mistrial, he has abandoned that argument on appeal.
require a showing that a mistrial was “absolutely necessary” or that there was no other

alternative but to declare a mistrial. Washington at 511.

       {¶22} There is no “mechanical formula” for determining what constitutes a

“manifest necessity” for a mistrial:     “[T]he manifest-necessity standard ‘abjures the

application of any mechanical formula by which to judge the propriety of declaring a

mistrial in the varying and often unique situations arising during the course of a criminal

trial.’” State v. Gunnell, 132 Ohio St.3d 442, 2012-Ohio-3236, 973 N.E.2d 243, ¶ 27,

quoting Illinois v. Somerville, 410 U.S. 458, 462, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973).

What constitutes a manifest necessity for a mistrial is, therefore, left to the discretion of

the trial court to be decided on a case-by-case basis, taking into account all the relevant

circumstances.   This approach is “in recognition of the fact that the trial judge is in the

best position to determine whether the situation in his [or her] courtroom warrants the

declaration of a mistrial.” Glover, 35 Ohio St.3d at 19, 517 N.E.2d 900. However,

“‘the power ought to be used with the greatest caution, under urgent circumstances, and

for very plain and obvious causes.’” Gunnell at ¶ 26, quoting United States v. Perez, 22

U.S. 579, 580, 6 L.Ed. 165 (1824). “A mistrial should not be ordered in a criminal case

merely because some error or irregularity has intervened, unless the substantial rights of

the accused or the prosecution are adversely affected * * * .”   State v. Reynolds, 49 Ohio

App.3d 27, 550 N.E.2d 490 (2d Dist.1988), paragraph two of the syllabus.       The granting

of a mistrial is necessary only when “a fair trial is no longer possible.” State v. Franklin,

62 Ohio St.3d 118, 127, 580 N.E.2d 1 (1991).
       {¶23}       When a mistrial is premised on the prejudicial impact of improper

evidence, the trial judge’s evaluation of the possibility of juror bias is entitled to

“great,” but not unlimited, deference by a reviewing court. Gunnell at ¶ 28; Ross v.

Petro, 515 F.3d 653, 661 (6th Cir.2008); Washington at 514.        The trial court’s mistrial

declaration is reviewed to determine if the trial judge exercised “sound discretion in

determining whether juror bias existed and whether it could be cured.” Gunnell at ¶ 29.

  As the Ohio Supreme Court explained in Gunnell:

       [A] trial judge’s determination of possible juror bias should be given great
       deference only upon the appellate court’s satisfaction that the trial judge
       exercised sound discretion in determining whether juror bias existed and
       whether it could be cured. * * * [T]he mere specter of bias is [not] a
       manifest necessity that warrants mistrial. * * * [A]lthough a trial judge’s
       determination of juror bias is entitled to great deference, it must be
       predicated on the judge’s proper discretion in hearing the case. Mere
       supposition, surmise, and possibility of prejudice are not sufficient.

Id. at ¶ 29, 31.

       {¶24} In determining whether a mistrial is necessary, the exercise of “sound

discretion” generally requires that a trial judge allow both parties to state their positions

on the issue, consider their competing interests, and explore reasonable alternatives, if

any, before declaring a mistrial. N. Olmsted v. Himes, 8th Dist. Cuyahoga Nos. 84076

and 84078, 2004-Ohio-4241, ¶ 44, citing Ross, supra.      A trial court must act “rationally,

responsibly, and deliberately” in determining whether to declare a mistrial. Gunnell at ¶

33.     However, a trial court’s failure to make an explicit finding of           “manifest

necessity” does not render a mistrial declaration invalid, as long as the record provides

sufficient justification for the ruling. Washington at 516-517.
       {¶25} Marshall claims that the trial court’s declaration of a mistrial was nothing

more than a “kneejerk reaction regarding the potential effect of an improperly submitted

exhibit” and that the trial court failed to exercise sound discretion in declaring a mistrial

in this case because it (1) acted “abruptly rather than deliberately,” declaring a mistrial

without hearing the opinions of the parties as to the propriety of a mistrial and without

considering less drastic options to a mistrial, and (2) declared a mistrial “based on an

assumption of manifest necessity” without conducting a “meaningful inquiry into the

issue of juror bias.”       Specifically, Marshall complains that the trial judge did not

question any of the jurors, prior to her mistrial declaration, to determine (1) which jurors

examined the statement of Tony Haynes (i.e., whether it was one or all of them), (2) the

depth of that examination,9 and (3) whether a less drastic alternative, such as a curative

instruction, might have enabled the jury to continue to decide the case (i.e., whether the


       9
          The special prosecutor’s report refers to the improperly submitted exhibit as having been
“reviewed by” the jury. According to the report, the statement was first noticed by a juror on
February 15, but the issue was not immediately brought to the court’s attention. Instead, the jury
continued to deliberate the remainder of the afternoon and presented its question to the court the
following morning. There is nothing in the record that indicates what, if any, information the trial
judge had regarding the timing and circumstances surrounding the jury’s discovery of the statement of
Tony Haynes at the time she declared a mistrial. According to the special prosecutor’s report, the
jurors were interviewed as part of his investigation. The information he reports regarding the timing
and circumstances of the jurors’ discovery of the statement of Tony Haynes was thus presumably
obtained during those interviews and unknown to the trial judge at the time she declared a mistrial.
In evaluating the trial judge’s exercise of discretion in declaring a mistrial, however, we must confine
our review to the record as it existed at the time the trial court declared a mistrial, considering only
those facts known to the trial court at the time. See, e.g., Ross, 515 F.3d at 667 (“An appellate court
is hardly at liberty to use the 20/20 vision of hindsight in evaluating whether a mistrial decision
represented an exercise of sound discretion, but must, in the exercise of due deference, necessarily
confine its review to the facts known to the trial judge when the mistrial was declared.”).
jurors could reasonably be expected to disregard what, if anything, they examined if they

were to continue their deliberations). Marshall maintains that State v. Gunnell, 132 Ohio

St.3d 442, 2012-Ohio-3236, 973 N.E.2d 243, mandates such an inquiry in this case. We

disagree.

       {¶26} In Gunnell, the Ohio Supreme Court considered whether a juror’s outside

research, i.e., a handwritten definition of the word “perverse” and an instruction on

“involuntary manslaughter” that the juror had printed off the internet, constituted grounds

for a mistrial. Gunnell at ¶ 9-10.      The materials had been intercepted by the bailiff

when the juror arrived in the morning to continue jury deliberations and had not been

shared with other jurors.   Id. at

¶ 8.    After learning of the juror’s possession of this information, the trial judge

conducted a brief hearing during which the trial judge first informed the parties of the

issue that had developed regarding the juror’s outside research and then proceeded to

question the juror regarding her research, including what information she had found, why

she had looked for it, and whether she had shared that information with any other jurors.

Id. at ¶ 11.   The trial court did not, however, question the juror to determine whether any

prejudice or bias was created by the information or whether the juror could disregard it.

Id. at ¶ 14, 32. A divided Ohio Supreme Court held that because the trial court failed to

conduct “any meaningful inquiry” to “ascertain the scope of the prejudice, if any, to the

[defendant] before determining that the juror could not be rehabilitated and that a mistrial

was necessary,” the trial court “did not soundly exercise” its discretion to declare a
mistrial, manifest necessity did not exist, and the Double Jeopardy Clause barred

reprosecution of the defendant. Id. at ¶ 37-40.           This case, however, is quite different.

        {¶27} First, as to the “abruptness” with which the trial judge allegedly declared a

mistrial in this case, although the trial judge acted quickly upon learning that the

statement of Tony Haynes had been improperly submitted to the jury, this is not a case in

which the parties were afforded no opportunity to state their respective positions.                 The

record reflects that the trial judge elicited the opinions of the parties and also consulted

with other judges prior to sua sponte declaring a mistrial.            Neither of the parties raised

any objection to the trial judge’s oral declaration of a mistrial or requested any additional

time to consider the issue.       Although the trial judge indicated that she would “entertain

motions,” neither party filed any motions or any other written submissions with the trial

court regarding the issue.10 The record reflects that after the trial judge orally declared a

mistrial based on “prosecutorial misconduct,” she continued to consider the issue,

ultimately ruling, in her February 23, 2001 journal entry, that a mistrial was warranted

because the “out-of-court statement of Tony Haynes (State’s Exhibit 37) [was] not

properly before the jury.”

        {¶28} Second, although it may have been preferable for the trial court to have

conducted some inquiry of the jurors to determine the timing and circumstances that led


        10
          Although Marshall criticizes the trial judge for not following through with a hearing to
determine how the statement of Tony Haynes got into the jury room, given that neither
party filed any motions or objections, we do not believe the trial court acted unreasonably in failing to
hold a hearing on the issue.
to the jury’s discovery of the statement of Tony Haynes, the extent of the jurors’

examination of the statement, and how the jurors were affected by it, we cannot say that,

under the particular circumstances here, the trial court’s failure to do so constituted a

failure to exercise “sound discretion” or otherwise precluded a finding of manifest

necessity.   A mistrial is appropriate where “‘erroneously admitted evidence is of an

exceptionally prejudicial character, such that its withdrawal from consideration by the

jury cannot be expected to remove the harm.’” United States v. Carr, 5 F.3d 986, 993

(6th Cir.1993); see also State v. Patterson, 188 Ohio App.3d 292, 2010-Ohio-2012, 935

N.E.2d 439, ¶ 47 (2d Dist.) (although court was “well intentioned” in conducting voir dire

of individual jurors regarding examination of exhibit that was improperly submitted to the

jury, “the emphasis on [the exhibit] may have only served to highlight its incendiary

impact and seared into the minds of the jurors the fact that they should not have received,

read, and discussed it”).

       {¶29} Unlike the improper material at issue in Gunnell, the potential prejudice to

Marshall resulting from the jury’s examination of the statement of Tony Haynes is

obvious and compelling. In this case, all of the jurors — not just a single juror — were

potentially impacted by the information improperly submitted to them.              There is no

dispute that all of the jurors were aware that the exhibit — which had not been admitted

into evidence at trial — had been placed into the box of exhibits delivered to the jury

deliberation room.11



        The statement of Tony Haynes was apparently not the only item improperly submitted to the
       11
       {¶30} Furthermore, the exhibit that was improperly submitted to the jury in this

case was not just any exhibit. It was a statement detailing Marshall’s confession to

murder. It was qualitatively different from other evidence the state had presented at trial

with respect to the aggravated murder charge and arguably filled a significant gap in the

state’s case — i.e., credible evidence that Marshall was the shooter — that existed after

Tony Haynes failed to testify at trial and the trial court precluded the state from

introducing Haynes’s prior trial testimony. None of the eyewitnesses who testified at

trial, who were present at the Papa John’s shop at the time of the robbery, actually saw the

shooting. Although Marshall’s accomplice, Robert Martin, identified Marshall as the

shooter in a videotaped statement played for the jury,12 it is likely that minimal weight

would have been given to his identification, as a codefendant pointing a finger at an

accomplice, particularly given the inconsistences in the statements Martin gave to the

police and other evidence offered at trial calling his credibility into question. Although

Tony Haynes’s brother, Richard Haynes, testified that Marshall admitted to him, shortly

after the incident, that he had committed the Papa John’s robbery, Richard Haynes also

testified that when he asked Marshall whether he committed the murder, Marshall did not

respond. Even assuming some or all of the jurors did not examine the exhibit in depth



jury in this case. According to the special prosecutor’s report, after the mistrial was declared, the
court reporter went to the jury room to collect various items and discovered two additional written
statements from other state witnesses, bearing red state exhibit stickers, that had not been admitted
into evidence.

        Martin’s videotaped statement to police was admitted into evidence after
       12

Martin refused to testify at trial, asserting his Fifth Amendment right against
before the court was notified that the statement had been improperly submitted to the jury,

based on what the jurors had heard about the statement and Tony Haynes during the trial,

they would have been generally aware of its prejudicial subject matter.

        {¶31} Third, although there is nothing in the record that suggests that the trial

judge had a discussion with the parties regarding any less drastic alternatives to declaring

a mistrial,13 this is not a situation in which an adequate alternative to declaring a mistrial

is readily apparent.       No alternatives — other than a curative instruction — have been

suggested.     However, “curative instructions may not always sufficiently eliminate the

prejudicial impact of highly inflammatory evidence.”                 State v. Westwood, 4th Dist.

Athens No. 01CA50, 2002-Ohio-2445, ¶ 41 (where a bag of marijuana, allegedly

purchased from the defendant or someone else at his home, that had not been admitted

into evidence was improperly submitted to the jury, trial court erred in denying motion for

mistrial; “case * * * is one of those rare instances when curative instructions were

insufficient to eliminate the prejudice inflicted by inflammatory evidence”).                 Marshall

was represented by qualified, experienced trial counsel — among the top tier of criminal

defense lawyers in the state.        They did not request a curative instruction presumably




self-incrimination.

           Although there is nothing in the record that indicates that the trial judge discussed other
        13


alternatives with the parties, that is not to say she failed to consider whether there were less drastic
alternatives prior to declaring a mistrial. The record reflects that the trial judge consulted with other
judges prior to declaring a mistrial.
because they knew a curative instruction could not eliminate the potential harm.14 This

is not the type of case in which a curative instruction could be reasonably expected to

provide sufficient protection against juror bias.

        {¶32} In State v. Patterson, 188 Ohio App.3d 292, 2010-Ohio-2012, 935 N.E.2d

439 (2d Dist.), the Second District considered a similar issue.           In that case, the appellate

court considered whether a mistrial should have been declared where a statement from a

non-testifying witness was inadvertently included in a stack of the state’s exhibits given

to the jury during its deliberations. Id. at ¶ 11.       The statement, which was known to be

false, recounted certain prejudicial statements allegedly made by the defendant. Id. at ¶

19-20, 25, 80.    After it discovered the statement, the jury examined and discussed it for

45 minutes before advising the court of their discovery.         Id. at

¶ 22.   After learning about the improperly submitted statement, the trial court questioned

each juror separately regarding whether he or she had read and examined the statement,

cautioned the jury that no testimony was offered regarding the statement and that its

contents were unreliable, and instructed the jury to disregard the statement. Id. at ¶ 26.

The trial court received assurances from the jurors that they would follow his instruction

to disregard the exhibit and confirmed with the jurors that they had, in fact, disregarded

the exhibit before announcing the jury’s verdict.            Id. at ¶ 26, 56-68.       The Second

District held that the instructions and assurances provided by the jury were not enough to

        14
          Indeed, had defense counsel requested a curative instruction and been successful in
obtaining such an instruction, it could have perhaps been grounds for a challenge based on ineffective
assistance of counsel.
offset the prejudice from the improperly submitted statement and that the trial court

should have, therefore, granted the defendant’s motion for a mistrial:

       [T]he trial judge’s instructions to the jurors were insufficient as a matter of

       law to cure the prejudicial effect of State’s Exhibit 227B. * * * “We will

       not blindly assume that a jury is able to follow a * * * court’s instruction to

       ignore the elephant in the deliberation room.” United States v. Morena, 547

       F.3d 191, 197     (3d Cir.2008).    The fact that jurors believed that they

       could disregard State’s Exhibit 227B does not convince us that they did so,

       given its inherent prejudice. * * * The decision on the motion for mistrial

       should have been made on a wholly objective basis and not on the

       questioning of individual jurors regarding their deliberative process. We are

       not willing to conclude that State’s Exhibit 227B is something that can

       simply be erased from a juror’s mind. * * *

Id. at ¶ 80.

       {¶33} This case presented a unique how-to-unring-the-bell dilemma for the trial

judge. The statement at issue detailed an admission by the defendant of his guilt to a

longtime friend.   What could be more exceptionally prejudicial to a defendant — other

than perhaps a confession of guilt written in the defendant’s own hand?       As the United

States District Court for the Northern District of Ohio aptly observed in ruling on

Marshall’s habeas petition, “[n]o juror could have been expected to put Haynes’[s]

statement out of his/her mind.” Marshall, 443 F.Supp.2d at 917. An experienced trial
judge knows when manifest necessity warrants a mistrial. The trial judge was in the

courtroom throughout the trial, observing counsel, the witnesses, and the reactions of the

jurors.    “‘Where, for reasons deemed compelling by the trial judge, who is best situated

intelligently to make such a decision, the ends of substantial justice cannot be attained

without discontinuing the trial, a mistrial may be declared without the defendant’s consent

and even over his objection, and he may be retried consistently with the Fifth

Amendment.’” Glover, 35 Ohio St.3d at 20-21, 517 N.E.2d 900, quoting Gori v. United

States, 367 U.S. 364, 368 (1961). In this case, we find that the trial court properly

determined that the “bell” sounded by the submission of the statement of Tony Haynes to

the jury could not be “unrung” to ensure a fair and just result.

          {¶34} “[T]he overriding interest in the evenhanded administration of justice

requires that we accord the highest degree of respect to the trial judge’s evaluation of the

likelihood that the impartiality of one or more jurors may have been affected * * *.”

Washington, 434 U.S. at 512, 98 S.Ct. 824, 54 L.Ed.2d 717. A review of the record

demonstrates that the trial court acted reasonably and responsibly in determining a

manifest necessity existed for the declaration of a mistrial in this case.      The record

reflects the exercise of sound discretion by the trial judge in determining both that (1)

juror bias existed as a result of the submission of the inadmissible, prejudicial statement

of Tony Haynes to the jury and (2) such bias could not have been cured but for the

declaration of a mistrial.
       {¶35} It is clear that manifest necessity supported the trial judge’s declaration of a

mistrial. However, we believe that this case is one in which declaration of a mistrial

and the retrial of the defendant would have also been warranted to ensure that “the ends

of public justice” would not “otherwise be defeated.” Glover, 35 Ohio St.3d at 19, 517

N.E.2d 900; Widner, 68 Ohio St.2d at 189, 429 N.E.2d 1065; Washington, 434 U.S. at

505, 98 S.Ct. 824, 54 L.Ed.2d 717. “[T]he ends of public justice” has been “more

precisely described” as “‘the public’s interest in fair trials designed to end in just

judgments.’” Widner at 190, quoting Wade v. Hunter, 336 U.S. at 689, 69 S.Ct. 834, 93

L.Ed. 974.

       {¶36} In this case, evidence was presented that the store manager, Rocco Buccieri,

in an attempt to prevent the commission of further felonies and to protect his two

co-workers — a high school student and a delivery man who had been forced into a rear

utility room — grabbed Marshall as he ordered Buccieri, at gunpoint, to open the safe at

the front of the store. As a reward for his bravery, Buccieri was shot twice, first in his

left side (where the bullet went through his left lung and lodged in his abdomen) and then,

after Buccieri fell to the floor, a second shot was fired execution-style, into his head right

above the left ear. The bullet went through his brain, causing massive brain damage.15

In Marshall’s first trial, after it heard and considered all of the evidence, the jury found

Marshall guilty of capital murder (and of all the other offenses and specifications with

       15
           There was evidence that three shots were fired at Buccieri. The second shot, missed
Buccieri, hit the floor, ricocheted into an open door, and was found a couple of weeks later in an
empty pizza box.
which he had been charged). Due to an error in the penalty phase — that had nothing to

due with the jury’s verdict in the guilt phase of the trial — a new trial was ordered.

       {¶37} As this case demonstrates, an error in a sentencing instruction, a police

department overtime policy that prevents the state from presenting the testimony of a key

witness, 16 and an allegedly overzealous prosecutor are not a recipe for a “fair trial

designed to end” in a “just judgment” that serves the “ends of public justice” — not to

mention justice for Buccieri, the co-workers terrorized in the Papa John’s robbery, and

their families. Under the circumstances, the trial court’s declaration of a mistrial and the

retrial of the defendant were also warranted to ensure that “the ends of public justice”

would not “otherwise be defeated” in this case.

       {¶38} For the reasons set forth above, we find that Marshall’s right to be free from

double jeopardy was not violated by the trial judge’s declaration of a mistrial.

Accordingly, we overrule Marshall’s assignment of error.

       {¶39} Marshall’s convictions and the trial court’s judgment are affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

                      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.


        See fn. 2 supra.
       16
_________________________________
KENNETH A. ROCCO, JUDGE

SEAN C. GALLAGHER, P.J., and
MARY EILEEN KILBANE, J., CONCUR
