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State v. Jones2/24/2003
Defendant-appellant, Arthur Jones, appeals his convictions in Clermont County Court of Common Pleas, alleging that his second trial after a mistrial was barred by double jeopardy.
Appellant was stopped by Union Township Police in Clermont County for driving under the influence . Appellant was subsequently arrested and charged with driving under the influence and driving under suspension. The first jury trial ended in a mistrial during appellant's cross-examination of the arresting officer. Appellant's second trial resulted in his conviction on both charges.
Appellant appeals, raising one assignment of error.
"THE TRIAL COURT ERRED IN RETRYING THE DEFENDANT AS THE SECOND TRIAL WAS BARRED BY DOUBLE JEOPARDY WHEN THE FIRST TRIAL RESULTED IN A MISTRIAL."
First, we note that there is no indication in the record that appellant objected to the second trial or raised the issue of double jeopardy to the trial court. State v. Head (Sept. 20, 1985), Lake County App. No. 10-258 (failure to raise double jeopardy issue waived any objection to second trial). However, a reviewing court may consider a constitutional issue for the first time on appeal where the rights and interests involved may warrant it. In re M.D. (1988), 38 Ohio St.3d 149. Our decision in this case should not be relied upon as authority to accept all constitutional challenges raised for the first time on appeal. This court reserves the right under State v. Awan (1986), 22 Ohio St.3d 120, to reject constitutional objections not initially raised at the trial court level.
We will review the following facts involving the trial court's declaration of a mistrial in the instant case.
Appellant made an oral motion in limine before trial to ensure that the arresting police officers would not testify that their message from dispatch included a reference to an intoxicated individual. The state informed the trial court that the officers would be instructed to not divulge any reference from dispatch to an intoxicated individual unless appellant so inquired of the officers.
On cross-examination, appellant's counsel asked the police officer about his initial investigation of appellant. The officer's response to this question included a reference to the word "intoxicated" from dispatch. Appellant's counsel objected, moved to strike, and asked to approach the bench.
It is not clear from the record whether all the discussions before the bench were recorded. The record contains arguments from appellant's counsel that the officer's testimony was "specifically what the motion in limine was in regards to. The problem is the incriminating nature of the statement. I asked my client. He said he did hear it." The prosecutor argued on the record that he did not believe the officer's response "rises to the level of a mistrial."
The trial court then stated that the officer's response did warrant a mistrial. "It's not my role to question. It's my role to see that he [appellant] has a fair trial. There is a likelihood that the jury did hear it." The trial court proceeded to order a mistrial and schedule a second trial for the next day.
Appellant argues that the second trial should have been barred by double jeopardy. It is well-settled that a state may not twice put a defendant in jeopardy for the same offense. Benton v. Maryland (1969), 395 U.S. 784,795, 89 S.Ct. 2056. Whether a subsequent prosecution of appellant could proceed depends on whether an exception applies to the double jeopardy bar.
The state supplemented the record on appeal, pursuant to App.R. 9(E), with a transcript of a December 2002 hearing held
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